General protections; assessing compensation for contraventions Part 2

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Compensation for general protections contraventions Part 2; how to calculate compensation for economic loss
Economic loss
“I am satisfied that, in determining the economic loss suffered by the Applicant, because of the contraventions, the proper approach to be adopted, given the Applicant was terminated from her employment, is that set out at [5] above.
I do not consider the approach adopted in the MUA decision and Rakic is one which commends itself in the circumstances of this matter. In each of these decisions, the Court was required to assess the loss of opportunity suffered by the particular Applicants, because of the Respondent(s) contraventions of the relevant statute. In Rakic, Justice Bromberg made it clear that the adoption of the counterfactual analysis was necessary in circumstances where there were a range of hypotheticals that could apply in respect of the Applicant’s loss of opportunity. In these proceedings, the loss of opportunity does not arise, nor are there a range of hypotheticals to consider.
In my opinion, the relevant evidence in deciding the economic loss suffered by the Applicant, as a consequence of the contraventions, is as follows:
a. the Grosvenor Hotel was a small workplace;
b. the Applicant primarily interacted with the Second Respondent (the owner of the business);
c. the Second Respondent’s style of management was one which the Applicant found difficult to work with;
d. the Applicant struggled to discern the Second Respondent’s expectations of her;
e. her approach was to seek guidance and training from him;
f. this approach was not something the Second Respondent believed necessary. His style was one, he said, which involved pointing out to the employee the error and informing them to do what he said was appropriate;
g. the Applicant had already struggled, she says for some time, to cope with what she alleged to be sexual harassment from a former owner of the business. She looked forward to a cooperative working relationship with the Second Respondent and made it clear she was disappointed in this regard; and
h. the events on the Friday preceding the contraventions reveal, on the one hand, the extreme distress of the Applicant, given what she says was the attitude of the Second Respondent to her desire for guidance and training and, on the other hand, the Second Respondent’s lack of awareness of her distress.
Having regard to the above, I have formed the opinion, that the personalities of the Applicant and the Second Respondent (her direct boss) were completely mismatched. The following evidence given by the Applicant about the discussion between her and the Second Respondent is, in my view, revealing:
o “And how did that conversation make you feel?Just – I could sort of foresee what was happening and I felt stressed. And I had really tried the best I could to work with a whole new business plan that I had no training in whatsoever. I don’t know how to replicate The Points’ business within this business. And I just thought he was completely disappointed in everything that I was doing. He was continuously going to be berating me all the time about it and it was just overwhelming. It was – what I thought was going to be a really great learning experience had turned into a nightmare.” (T22.4)
o And you were asked – I think the last question was about whether you would still have been employed a year afterwards. Let me ask you this: if the business had protected you from the sexual harassment and if Mr Yanni had been able to acceptably moderate his behaviour towards you, would you have stayed in employment? Yes. (T57.46)
The Applicant’s evidence was that the Second Respondent had not protected her from the sexual harassment and I am satisfied that it is more than likely that the Second Respondent would not have moderated his behavior.
The Applicant said that she had given up two jobs for the position of Events Manager at the Grosvenor Hotel and was bitterly disappointed by the workplace.
I am confident that, if the contraventions had not taken place, the Applicant (who was experienced in her area of work) would have sought alternative employment at the earliest time possible. It must be recalled that the contraventions took place after the Applicant and the Second Respondent had engaged in a discussion which, on the evidence, distressed the Applicant and made her aware that the Second Respondent’s management style was not one that would assist her perform her responsibilities as Events Manager.
I am satisfied, the Applicant would have remained on sick leave for at least a further week after 25 August 2014: that is, returning to work on Monday, 1 September 2014. The reference by the Respondents to the “loss of trust and confidence” in the Liability Judgment is misplaced. In context, it is clear the loss was on the part of the Second Respondent and was a finding made in the context of the contraventions and not prior to the contraventions. I am satisfied that it is likely the Applicant would have obtained alternative employment within a period of no more than four months. From the Respondents’ point of view, there is no dispute that she was a valued employee and I am satisfied there would have been no reason for the First Respondent to terminate the Applicant’s employment before the four-month period.
Accordingly, I am satisfied that the Applicant’s loss in earnings stream, because of the contraventions, was a period of four months from 1 September 2014; that is, until 1 January 2015. Given the relatively short period of time, I am satisfied that a 5% discount should be applied to this income stream for contingencies or vicissitudes. This discount takes into account that her existing psychological symptoms may have affected her capacity to work. The Applicant’s evidence is that she commenced working on a casual basis in October 2014 for one or two nights a week and then at a venue, Rah Bar, earning $250.00 weekly. Her evidence is from October 2014 to the date of these proceedings (May 2016) she has earned $18,750.00.
I reject the Respondents’ submission that the Applicant has not proven that she has mitigated her loss. It is the Respondent who bears the evidentiary responsibility. The Respondents rely on the failure of the Applicant to discover all her payslips from Rah Bar and her personal income tax return. The Applicant’s response to the Respondents’ argument that she failed to discover her income tax return is that she did not submit one, as she did not reach the threshold required. I accept this evidence. As to the discovery of her payslips while she worked at Rah Bar, it was apparent from the cross-examination that the Applicant had provided some payslips to the Respondents. The Court was not informed which payslips were not discovered. In the circumstances, I find the Respondents have not discharged the evidentiary onus. Accordingly, I am satisfied that the Applicant has taken the appropriate steps to mitigate her loss.
The income earned by the Applicant from October 2014 until 1 January 2015 should be offset against the value of the four-month income stream she would have earned had she remained employed by the First Respondent for the period of four months, discounted by an amount of 5%.
On the evidence before the Court, I am confident I can say that her weekly gross income was $1,056.15 (Exhibit R1). Four months (16 weeks) is equivalent to $16,898.40. Discounting the value of this income stream by 5% results in an amount of $16,053.48.
The Court is presently not in a position to calculate the value of the discounted four-month income stream offset by income earned by the Applicant over the period from October 2014 until 1 January 2015. I have formed the view that, in the absence of documentary evidence of income actually earned, the fairest method to calculate the appropriate offset is as follows:
a. assume the Applicant earned $18,750.00 gross from October 2014 to the date of trial;
b. estimate the pro rata weekly income from 1 October 2014 to the date of trial; and
c. multiply this amount by a period of four months and offset the discounted four-month income stream by this amount.
In addition, the resultant figure will be requested to be offset by the payment in lieu of notice the Applicant received which was $1,056.00.
The parties will be required to draw up minutes reflecting my decision regarding the economic loss suffered by the Applicant.
Given my findings as to compensation, it is unnecessary for me to deal with the question of how the receipt of a DSP should be treated. Nor, in my view, is it necessary to address the Applicant’s claim the Court should adopt an alternative method involving a “grossed up” amount.

Collison v Brighton Road Enterprises Pty Ltd T/A The Grosvenor Hotel & Anor (No.2) (2016) FCCA 1798 per Jones J