Section 4 PIDA Limit on amount of compensation
4 - (1) Section 49 of the 1996 Act (remedies) is amended as follows.
(2) At the beginning of subsection (2) there is inserted "Subject to subsection (6)".
(3) After subsection (5) there is inserted-
(a) the complaint is made under section 48(1A),
(b) the detriment to which the worker is subjected is the termination of his worker's contract, and
(c) that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A".
The heading is misleading, in that there is no limit on compensation (the heading refers to subsection 3 of this section which is redundant, for the reasons given below).
Where a tribunal has found that a worker was victimised in breach of s.2 (s.47B ERA), it must make a declaration to that effect and may make an award of compensation: s.49(1) ERA. Compensation awards are assessed based on what is "just and equitable in all the circumstances", having regard to the infringement complained of and any loss suffered by the worker as a result of the detriment: s.49(2). These losses specifically include expenses reasonably incurred by the complainant and the loss of any benefit he might otherwise have expected: s.49(3). The worker is under a duty to mitigate his losses (s.49(4)) - which, if his contract is terminated, includes obtaining or seriously seeking another job. Finally the tribunal has to reduce the award by such sum as it considers just and equitable where it finds the worker himself had contributed to or caused the detriment: s.49(5).
This subsection has no effect as there will be no limit on compensatory awards where an employee is dismissed (see the Note to section 8 below). Had there been such a limit, this subsection would have ensured that a worker who was not an employee could not have received a larger award where his contract was terminated than if he had been an employee who had been dismissed in breach of this Act.
"contract of employment" : s.230(2) ERA
"employee" : s.230(1) ERA
"worker" : s.1 PIDA, s.43K(1) ERA