| FWC 3801 [Note: An appeal pursuant to s.604 (C2018/2938) was lodged against this decision - refer to Full Bench decision dated 14 August 2018 [ FWCFB 3815] for result of appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Logan City Electrical Service Division Pty Ltd
BRISBANE, 21 JULY 2017
Application for an unfair dismissal remedy – uncontested application – application granted – compensation awarded
 This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Christopher Antonarakis who alleges that the termination of his employment Logan City Electrical Service Division Pty Ltd (the Respondent) was unfair.
 Mr Antonarakis filed his originating Form F2 application on 30 January 2017 against “Logan City Electrical Service” and listed the contact person as Mr Peter Burnitt.
 The matter was listed for Conciliation before a Fair Work Commission Conciliator on 3 March 2017. The Conciliation was unable to proceed as the Conciliator was unable to contact Logan City Electrical Service. A letter was subsequently sent to Mr Peter Burnitt advising him that if the Commission did not receive any communication from Logan City Electrical Service by 5 March 2017, the matter would be referred to a Member for arbitration. No communication was received from Mr Burnitt.
 The matter was listed for arbitration for 22 May 2017 and directions were issued to the parties for filing material. Mr Antonarakis filed his submissions on 5 April 2017 after receiving an extension. Logan City Electrical Service failed to file submissions by the due date being 24 April 2017.
 On 26 April 2017, the Fair Work Commission Unfair Dismissal Team (UDT) attempted to call Mr Burnitt regarding submissions. Mr Burnitt was not available to speak with and a message was left with a person by the name of “Sheryl”.
 On 28 April 2017, the UDT again attempted to call Mr Burnitt. “Sheryl” advised that Mr Burnitt was not due back in the office until the following week. Sheryl advised the UDT she was aware of the application. Sheryl advised she would take a message for Mr Burnitt and would get back to the UDT on 3 May 2017.
 On 3 May 2017 no communication was received from Logan City Electrical and the matter was allocated to my chambers. I subsequently listed the matter for Mention by telephone for 17 May 2017.
 On 9 May 2017, my Associate attempted to contact Mr Burnitt to confirm his appearance at the scheduled Mention. My Associate was advised by the Receptionist that Mr Burnitt was in a meeting, and took a message including the telephone number for chambers. The Receptionist advised my Associate she would “pass the message on now.”
 On 17 May 2017 during the course of the Mention, it was discovered that Mr Antonarakis had incorrectly identified the Respondent in his Form F2 application. Mr Antonarakis subsequently filed an application to amend application U2017/918 to correctly identify the Respondent as “Logan City Electrical Service Division Pty Ltd”. The Hearing date for 22 May was vacated.
 On 19 June 2017 I issued Decision  FWC 3232 to amend application U2017/918 to correctly identify the Respondent as “Logan City Electrical Service Division Pty Ltd”. It is notable that the address on the originating application was the same as the principal place of business address on the ASIC company extract.
 The matter was then listed for Mention by telephone for Wednesday 5 July 2017. A Notice of Listing was sent to the Respondent at email@example.com notifying it of the scheduled telephone Mention.
 On 5 July 2017, my Associate attempted to contact Mr Burnitt for the telephone Mention. My Associate spoke to a person by the name of “Tiana” who advised her that Mr Burnitt was unavailable. My Associate advised Tiana that a Notice of Listing was sent to Mr Burnitt on 19 June advising him that the matter was listed for Mention at 2:00pm that afternoon. Tiana told my Associate that she would pass on the message to Mr Burnitt.
 The Matter was then re-listed for Hearing on 20 July 2017. A Notice of Listing was sent to the Respondent, by email at firstname.lastname@example.org and by Express Post to the registered postal address listed on ASIC.
 Mr Antonarakis represented himself at the Hearing, accompanied by his support person Mr George Sotiris. The Respondent failed to attend the Hearing.
 I am satisfied that the Respondent’s failure to engage with the Commission has not been due to a lack of awareness of the application against it, but rather due to a conscious decision not to participate in the proceedings. Multiple attempts have been made by the Commission to notify the Respondent of the proceedings, by way of emails, letters and telephone calls. I am satisfied that the Respondent has been aware of this matter, and that it has had ample opportunity to respond to this application, however has chosen not to do so. On that basis I am prepared to treat the application as being uncontested.
 Mr Antonarakis gave oral evidence at the hearing in addition to his written submissions. He commenced employment with the Respondent on 6 March 2012 as an apprentice refrigeration and air-conditioning mechanic until his termination.
 Mr Antonarakis submitted that in 2014 he became a trade qualified serviceman and was given a service vehicle to use until his termination.
 Mr Antonarakis submitted that as far as he was aware he had a good working relationship with the Respondent, the staff and clients, and had never received an official warning.
 Mr Antonarakis submitted that on 12 January 2017, he was called in by the Service Manager Trevor Forrester and was told that the boss Peter Burnitt wanted him gone on Monday but that there was too much work that needed to be done. Mr Antonarakis submitted that after asking for a reason, he was told by Mr Forrester that Mr Burnitt had driven past and “busted me doing a “cashy” on the weekend of the 17/12/2016 if i (sic) was doing that then i (sic) must have been stealing.” 1
 Mr Antonarakis submitted that he denied doing a cash job as he did not remember what he was doing on that date due to the shock of the moment. Mr Antonarakis submitted he asked what evidence Mr Burnitt had. Mr Antonarakis submitted that Mr Forrester agreed with him that he had not done a “cashy”, and said he didn’t want to fire Mr Antonarakis but that Mr Burnitt wanted him gone and that he had no choice.
 Mr Antonarakis submitted Mr Forrester told him to take a few days off and to come back in next week and it would be sorted out. Mr Antonarakis submitted he then asked “am i (sic) fired” to which Mr Forrester replied “have a couple of days off” and said he would call next time Peter Burnitt was in the office so he could come in.
 Mr Antonarakis submitted that no call was ever made to him. Mr Antonarakis submitted that on the 16 January 2017 after not receiving a call from either Mr Forrester or Mr Burnitt, he phoned the Respondent and was put through to Mr Forrester who said he would call when Mr Burnitt came in. Mr Antonarakis submitted he again did not receive a phone call.
 Mr Antonarakis submitted that on 17 January 2017 he received a text from an employee saying Mr Burnitt was in the office. Mr Antonarakis submitted he then went in to the office whereby he asked Mr Forrester to let Mr Burnitt know that he wanted to see him. Mr Antonarakis submitted that Mr Forrester denied Mr Burnitt was in, though he could see Mr Burnitt’s car and that his office lights were on.
 Mr Antonarakis submitted that he then went to speak to Mr Burnitt who was in his office, and asked him why he had not received a phone call, and asked what was going on. Mr Antonarakis submitted that Mr Burnitt replied that it was Mr Forrester’s decision to terminate his employment and that he had left it all to Mr Forrester. Mr Antonarakis submitted that Mr Burnitt told him that Mr Forrester saw him doing a cash job at Birkdale on 17 December 2016.
 Mr Antonarakis submitted this was a contradiction to when Mr Forrester told him that it was Mr Burnitt who saw him at Birkdale.
 Mr Antonarakis submitted that he explained he was helping George Giorgas, a family friend, repair his pool fence and that was why the Tool boxes were open.
 Mr Antonarakis submitted that Mr Burnitt put the blame squarely on Mr Burnitt for his termination. Mr Antonarakis said he asked for a separation certificate whereby Mr Burnitt replied that they would sort it out and send it.
 Mr Antonarakis submitted that as at 23 January 2017 he had not received a separation certificate or payment summary, so he went into the office. Mr Antonarakis submitted that the office staff said neither Mr Forrester nor Mr Burnitt were in, and that they would let them know that he was looking for those items. Mr Antonarakis submitted that he then called numerous times on his mobile and left a number of messages, which again went ignored.
 Mr Antonarakis submitted that on 27 January 2017, he called Mr Forrester approximately 20 times. He submitted that he then used a different phone, which Mr Forrester answered straight away. Mr Antonarakis submitted he again asked for his separation certificate and payment summary, to which Mr Forrester replied “yep” and that he would send it by the following Friday. Mr Antonarakis submitted nothing arrived. Mr Antonarakis submitted that he sent follow up emails on 29 and 30 January 2017, to which he received no reply. Mr Antonarakis submitted that on 31 January 2017 after submitting his F2 application with the Commission at 9am, he then received the Separation Certificate at 10am that same day.
 Mr Antonarakis submitted he has still not received a payment summary, nor has he had any other communication with Trevor Forrester or Peter Burnitt.
 The only evidence concerning whether the Respondent was a small business employer was that of Mr Antonarakis whose evidence, though vague concerning the issue, was that he believed the Respondent had been 10 and 15 employers.
 On balance it is likely the Respondent is a small business employer. On the evidence the Respondent has not complied with the Small Business Fair Dismissal Code as there is no basis to be satisfied that the Respondent believed on reasonable grounds that Mr Antonarakis’ conduct was sufficiently serious to justify immediate dismissal, or, in the event the dismissal could be regarded as with notice, that Mr Antonarakis was warned that he risked being dismissed and was given an opportunity to respond to the warning and that the Respondent had a valid reason to dismiss him.
 I must now consider the matters in s.387.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
 An Employment Separation Certificate provided by Mr Antonarakis at the hearing, which appears to be signed by Mr Peter Burnitt and dated 31 January 2017 stated that Mr Antonarakis ceased employment on 11 January 2017, and the reason provided is “Unsatisfactory Conduct.”
 Mr Antonarakis was first told of the allegation against him on Thursday 12 January 2017. The conduct alleged against him was said to have occurred on 17 December 2016. Whilst the application itself states that the date of termination was 12 January 2017, it would appear from Mr Antonarakis evidence that it is more likely the case that termination did not occur until the following Tuesday 17 January 2017 when Mr Antonarakis confronted Mr Burnitt. Whilst nothing in particular ultimately turns on whether termination had effect from 11 12 or 17 January, I am more inclined to the view that it was from 17 January 2017.
 I accept Mr Antonarakis’ evidence that he did not do a “cashy” as appears to have been the justification for his termination. There is no evidence to the contrary. On that basis there is no valid reason for termination of his employment related to his capacity or his conduct.
 Mr Antonarakis was notified of what appeared from his evidence to be the underlying motivation for his termination on 12 January 2017 by Mr Forrester, and again by Mr Burnitt on 17 January 2017, however Mr Forrester and Mr Burnitt according to the evidence accused each other of being the witness to the alleged conduct, and the decision maker in relation to the matter. The effect of Mr Forrester’s direction to Mr Antonarakis on 12 January 2017 was that even though he was engaged on a full time permanent basis he ceased to be paid, or to attend for work.
 Mr Antonarakis was denied an opportunity to respond to the allegation by his employer’s refusal to engage in any meaningful process to consider his response. Mr Antonarakis did not request a support person however on the evidence the Respondent did not intend to engage in any process in which a support person could be involved.
 The dismissal did not relate to unsatisfactory performance. It appears that the Respondent was a small employer and therefore its size and absence of dedicated human resources specialists in the enterprise would have in all likelihood impacted on the procedure it followed in effecting the dismissal.
 Whilst it is somewhat speculative it appears that the Respondent formed a view Mr Antonarakis was performing work for himself while employed by the Respondent. The evidence does not support that was the case and Mr Antonarakis was denied any form of procedural fairness. I am satisfied having considered all of the matters that are relevant under s.387 that the dismissal was harsh, unjust and unreasonable.
 Mr Antonarakis did not seek reinstatement. On the evidence reinstatement would be inappropriate. I am satisfied an order for payment of compensation is appropriate in all of the circumstances of the case.
 Proceeding on the basis that Mr Antonarakis dismissal took effect from 17 January 2017, he was not paid any notice despite having been employed for a period of just under 5 years. It was his evidence as a full time permanent employee he earned $30 per hour working a 38 hour week. That equates to a weekly wage of $1,140 per week.
 Applying the formula set out in Sprigg v Paul’s Licensed Festival Supermarkets 2, given the evidence of Mr Antonarakis concerning his future intentions had he not been terminated, and no other evidence of matters that could have brought the employment relationship to a sudden ending, I am satisfied he would have remained in employment for at least a further six months. That equates to an amount of $29,640 dollars. Mr Antonarakis indicated in his evidence he had been advised he could commence an electrical trade some time earlier and to his disappointment that had not eventuated. For this reason I am not inclined to assess a period longer than six months.
 Mr Antonarakis said he established his own business that commenced to operate at the end of February 2017 and that he has earned approximately $10,000 from that business since it began to operate. That amount will be deducted reducing the amount of compensation to $19,640. I make no further deduction for contingencies.
 There is no evidence that the order will affect the viability of the business. Mr Antonarakis’ length of service at just under five years is not a basis to reduce the amount of the order. Mr Antonarakis gave evidence that he had applied for other employment and established his own business. I am satisfied he has made efforts to mitigate his loss and make no further reduction to the amount of compensation on that basis.
 There are no other matters that I consider relevant. I intend to issue an order that Logan City Electrical Service Division Pty Ltd pay to Mr Antonarakis the sum of $19,640 gross taxed according to law plus superannuation at the rate of 9.5% on the amount within 21 days.
Mr C. Antonarakis appearing on his own behalf
Final written submissions:
1 Applicant’s Outline of Submissions at .
2 (1998) 88 IR 21
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