Industrial Relations Commission of New South Wales CITATION: Smith v Paddington Osteopathic Centre (No.2) [2009] NSWIRComm 1017 APPLICANT PARTIES: Angela Mary Smith RESPONDENT Paddington Osteopathic Centre FILE NUMBER(S): 1366 of 2008 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - amount of compensation assessed under section 89(6) - basis for assessment of compensation. LEGISLATION CITED: Industrial Relations Act 1996[NSW] CASES CITED: D & R Commercial Pty Ltd v Flood, Full Bench of Industrial Relations Commission of NSW, [Wright P, Walton VP & Tabbaa C], 113IR 344. HEARING DATES: 2 April 2009 DATE OF JUDGMENT: 2 April 2009 EXTEMPORE JUDGMENT DATE : 2 April 2009 APPLICANT Ms S Southgate, solicitor Kingsford Legal Centre LEGAL REPRESENTATIVES: RESPONDENT Mr P Strain, barrister Solicitors for respondent Gibson Howlin Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 2 April 2009 Matter No IRC 1366 of 2008 Angela Mary Smith v Paddington Osteopathic Centre Application by Angela Mary Smith re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION NUMBER 2 EXTEMPORE [2009] NSWIRComm1017 1 This Decision is issued further to the earlier Decision made in this matter on 6 February 2009. 2 The applicant's unfair dismissal claim taken pursuant to the provisions of Part 6 of Chapter 2 (sections 83-90) of the Industrial Relations Act 1996 [NSW], (the Act), was successful. In the earlier Decision the Commission found in favour of the applicant Angela Mary Smith, against her former employer, the Paddington Osteopathic Centre (the respondent). 3 The issue of the quantum of any compensation was specifically not determined in the earlier Decision and has been the subject of further proceedings including today's Hearing. 4 The Commission has provided each Party with a further opportunity to adduce evidence and make submissions on the question of appropriate Relief in the form of monetary compensation. In particular the Parties have logically addressed the provisions of sections 89(5) and 89(6) of the Act. 5 The Commission has considered the evidence and submissions of the Parties regarding the question of the amount of compensation to be paid to the applicant. In particular the Commission has examined the evidence involving the details of the remuneration received by the applicant both before and after dismissal. 6 The question of appropriate Relief for the applicant's unfair dismissal should properly acknowledge the Authority provided by the Full Bench Decision in the matter of D and R Commercial Pty Ltd v Flood D & R Commercial Pty Ltd v Flood, Full Bench of Industrial Relations Commission of NSW, [Wright P, Walton VP & Tabbaa C], 113IR 344. (D and R Commercial). 7 Section 89(6) of the Act requires that when assessing any Order of compensation, the Commission is to take into account attempts made to find alternative employment and the remuneration received in any alternative employment. It is clear from the Authority as established by the Full Bench Decision in D and R Commercial, that this assessment should not necessarily be reflected in any particular arithmetic or definitive way. 8 It must also be recognised that Orders for payment of compensation should not be construed to be some punitive means by which the apparent severity of the unfair dismissal would be reflected by the amount of any Order made. It is also well established that Orders for compensation should not operate to unjustly enrich the successful litigant. Consequently it would seem that the Commission should guard against making some connection between the quantum of any Order made pursuant to section 89(5) of the Act, and any degree of identified unfairness in the dismissal event. 9 Further there should also be recognition of various other impacts of the unfair dismissal which were not capable of any direct or tangible financial quantification. Although there was not extensive evidence led about any psychological impact of the applicant's dismissal, the evidence did reveal some understandable anxiety and humiliation that accompanied the circumstances of the dismissal in this case. 10 There were also other non-financial impacts of the dismissal that can be identified. The applicant lost many years of service that would have contributed to various service related benefits which were essentially zeroed as a consequence of the dismissal. These impacts are sometimes described as the loss of non-transferable employment credits. In other words, the applicant had to start from scratch with any new employment in terms of her length of service, and all that is attached to length of service is lost and therefore compensable. 11 The loss of the period of employment has attached loss of identifiable financial components such as the length of service for entitlement to long service leave, and various other non-transferable credits such as sick leave. These are losses for which some calculation could be made. There are also some less tangible impacts. A variety of non-financial impacts would be occasioned by the loss of well established employment in a specialised vocation. For instance, the applicant's curriculum vitae would always suffer, at least, in general presentation, as a consequence of the dismissal from the employment. 12 Therefore, the assessment of the amount of compensation to be Ordered pursuant to section 89(5) of the Act, must take into account those matters mentioned in section 89(6). However the assessment need not be confined to some identified financial loss. Indeed the assessment should properly extend beyond a balance sheet calculation. 13 The Commission has therefore made assessment of compensation in this matter having considered the further evidence and submissions made by the Parties. This consideration has incorporated the various elements mentioned including both identified calculated amounts and various non-tangible components. 14 In this matter reinstatement or re-employment of the applicant would be impractical. Therefore the Commission is prepared to provide for Relief by way of monetary compensation. The amount of compensation has been determined in accordance with sections 89(5) and 89(6) of the Act. ORDERS 1. The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the respondent pay to the applicant an amount of compensation of $19,000.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the respondent to the applicant within twenty eight days from today, 2 April 2009. oooOOOooo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.