Argument for compensation to be aligned to JobKeeper scheme dismissed by FWC

Argument for compensation to be aligned to JobKeeper scheme dismissed by FWC.png

Argument for compensation to be aligned to JobKeeper scheme dismissed by FWC

Despite ruling an employee had been unfairly dismissed, Commissioner Bisset has rejected his claim that compensation should be based on comparisons with projected entitlements under the Federal JobKeeper scheme.

On 26 August 2020, Commissioner Bisset had issued a decision that the employee had been unfairly dismissed from his employment with MySharedServices Pty Ltd (MSS) on 9 April 2020. In the decision, Commissioner Bisset found that the employee had not been terminated due to genuine redundancy as MSS had failed to fulfil it’s consultation obligations under the relevant industrial award.

Commissioner Bisset sought submissions from both parties on remedy, and as the employee was not seeking reinstatement, considered the arguments of both parties for financial compensation.

The worker claimed his intention was to stay with MSS for five years and that the company was looking for an employee who could commit to their long term future.

In sharp contrast, MSS submitted that the business had suffered a significant decline during the COVID-19 pandemic and indicated that it was not possible to foresee long term employment for him in the current environment, particularly as the pandemic effects “are yet to play out”. At the time of the dismissal, the company was reviewing all employees’ roles on a daily basis.

Consequently, they argued that he would have remained employed at most for only one further week.

Despite the failure to adequately consult with the employee concerning the redundancy, Commissioner Bisset agreed that he would have been terminated one week later in any event if the consultation had correctly occurred. Accordingly, he was granted the equivalent of a week’s pay with superannuation.

A secondary argument raised by the employee in submissions was that if MSS had enrolled in the JobKeeper scheme, he would have been retained in employment for up to a year and received $25700 gross payments.

The argument was roundly dismissed, with Commissioner Bissett commenting, “it is not the Fair Work Commission’s role to require an employer to enrol in the JobKeeper program. What Mr Browne might have received had the Respondent chosen not to make any employees redundant is, in my view, to engage in speculation well beyond any evidence before me”.

Accordingly, Commissioner Bissett determined the employee receive total compensation limited to $961.54 plus 9.5% superannuation.

B v MySharedServices Pty Ltd [2020] FWC 5279 (2 October 2020)

For queries about dismissal or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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