[2012] FWA 10434 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adrian Kennedy
v
S & CK Earthmoving Pty Ltd
(U2012/5366)
COMMISSIONER BLAIR |
MELBOURNE, 12 DECEMBER 2012 |
S.394 - application for unfair dismissal remedy.
The above matter is an application under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The application was made by Mr Adrian Kennedy (the Applicant) against his former employer, S & CK Earthmoving Pty Ltd (the Respondent). The matter was arbitrated on 11 December 2012 and the following decision (now edited) was made in transcript at the hearing:
[1] In determining harshness etc, section 387 of the Act states as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[2] In relation to (a), in the material provided to the Tribunal, in the case there was no valid reason for the dismissal relating to the person’s capacity or conduct. It appears that the termination of the Applicant’s employment is that it resulted from what appeared to be a family issue.
[3] In relation to (b), the material before the Tribunal indicates that there was simply a phone call indicating, “don’t turn up or go and look for a job somewhere else”.
[4] In relation to (c), this simply did not occur. The Applicant was provided with no opportunity to respond to any reason for the termination. As indicated earlier, the termination did not relate to the capacity or conduct of the person.
[5] In relation to (d), this did not occur.
[6] In relation to (e), there is no issue in relation to the performance of the Applicant in this particular matter. Again, the termination appeared to relate to a family issue.
[7] In relation to (f), it would appear by the conduct of the Respondent that, regardless of the size of the employer and the likely impact on the procedures followed, it wouldn’t have made one ounce of difference given, as the Tribunal indicated earlier on transcript, what appear to be a belligerent attitude, on behalf of the Respondent.
[8] In relation to (g), it has no impact whatsoever, given the conduct of the Respondent in this particular matter.
[9] Therefore, the Tribunal finds that there was no valid reason for terminating the Applicant.
[10] The Tribunal notes that the Applicant does not seek reinstatement but seeks the maximum amount of compensation under the Act, less monies that had already been earned.
In determining compensation, section 392 of the Act states:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
[11] In relation to (a), the Tribunal has no material before it to indicate what effect any order for compensation may have on the enterprise.
[12] In relation to (b), the Tribunal is advised that the Applicant has some five years’ service with the Respondent.
[13] In relation to (c), the Tribunal is of the view that there would have been an ongoing employment relationship if it hadn’t soured due to a family matter.
[14] In relation to (d), the Tribunal has indicated that the Applicant has not only found alternative employment but has been looking for alternative employment.
[15] In relation to (e) and (f), the Tribunal has been advised that the sum of $4900 has been earned through income.
[16] In relation to (g), the Tribunal notes that the submissions on behalf of the Applicant that it’s suggested that this is probably at the top end of what may be deemed to be harsh, unjust and unreasonable.
[17] The Tribunal has gone through the requirements to determine that and has found that there was no valid reason for the termination. Therefore, the Tribunal does not have to determine the harsh, unjust or unreasonable provisions but the Tribunal does agree with the submissions of the Applicant, that it shows a total disregard for the Applicant’s rights and the appropriate fairness that’s required under the Act.
[18] Accordingly, the Tribunal will accept the amount that is sought, $25,000. That sum is to be paid within 14 days from the date of the issuing of the Order.
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