DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pasquale Parente
v
Selective Smash Repairs Pty Ltd
(U2019/3570)

Application for unfair dismissal remedy – no valid reason – reinstatement not appropriate – compensation awarded.

[1] Selective Smash Repairs Pty Ltd has been run by Egidio Parente for many years. Pasquale Parente is Egidio’s son and for a time was Assistant Manager of the family business. On Sunday evening of 10 March 2019, he was late for dinner at his parents’ house. His parents became angry and there was an argument. Pasquale was told to leave and never come back, either to his parents’ house or to the business of Selective Smash Repairs. He was dismissed from his employment immediately.

[2] On 1 April 2019, Pasquale sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Neither his parents nor the business responded to the application other than by participation in conciliation which was ultimately unsuccessful. The business was not represented at the hearing. As there has been no formal response to the application, there is no factual dispute to be resolved. The facts are as they are disclosed by Pasquale. The only question is whether the dismissal was unfair, and if so, what should be done about it.

Preliminary matters

[3] The application was filed one day out of time. I have decided to extend time for filing the application to 1 April 2019, because I am satisfied that there are exceptional circumstances in this case warranting an extension. The reason for delay arises due to an apparent misunderstanding about when the dismissal took effect, occurring as it did late on a Sunday evening with the first lost shift falling the following day. Pasquale was made aware of the dismissal on the Sunday night but attempts to communicate with his parents after that time have since gone unanswered, preventing any attempt to dispute the dismissal and obstructing Pasquale’s ability to obtain social security benefits or seek some form of resolution. There is no evident prejudice to the business if an extension is granted and the merits of the application on the material before me appear strong. The case is unique to Pasquale and his parents – no issue of fairness between others arises.

[4] Pasquale has completed the maximum minimum employment period of 12 months and his income was less than the high income threshold. He is protected from unfair dismissal.

[5] This is not a case of genuine redundancy.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[6] There is no evidence about how many employees were employed by the business at the time of dismissal. If Selective Smash Repairs was a small business employer at that time, it is necessary to consider whether the dismissal was consistent with the Code. I am not satisfied that it was. The dismissal occurred without warning on the evening of Sunday 10 March 2019. There is no evidence that the business or any of its officers held any relevant belief that the conduct of Pasquale was so serious that immediate dismissal would be justified. If it was other than a summary dismissal, there is no evidence of any warnings being given to Pasquale before he was dismissed. Pasquale’s evidence is that there were none.

Was the dismissal harsh, unjust or unreasonable?

[7] Valid reason: Pasquale was dismissed for arriving late for a family dinner. His relationship with his parents had been under strain for approximately one month, but there is insufficient context before me to explain why arriving late for dinner would have been a valid reason for dismissal. I am not satisfied that it was.

[8] Whether reason notified to the employee: there was no valid reason for dismissal. This is not a relevant consideration.

[9] Opportunity to respond: Pasquale had an opportunity to respond to his parents in the heated exchange that occurred on the Sunday evening.

[10] Unreasonable refusal in relation to support person: there is no evidence of any request for a support person by Pasquale.

[11] Warnings about relevant unsatisfactory performance: There is no evidence that Pasquale’s performance was unsatisfactory.

[12] Degree to which the size of the employer’s business and absence of dedicated human resources management specialists or expertise would be likely to impact on procedures followed in effecting the dismissal? There is no evidence of these matters before me. Selective Smash Repairs is a family smash repair business. Until his dismissal, Pasquale assisted his father in managing the business. I consider it unlikely that the business separately had access to sophisticated human resources policies or personnel.

[13] Other relevant matters: I am left in the dark as to any additional contextual matters that should or could have been taken into account when considering if the dismissal was unfair. It is, to my mind, extremely sad that what was once a loving family has allowed relationships to deteriorate to the extent that they have. However, Pasquale has the right to bring his claim and I must deal with it accordingly.

[14] Having considered each of the matters specified in section 387, I find that the dismissal was unjust and unfair.

What is the appropriate remedy?

[15] Reinstatement is the primary remedy under the Act for unfair dismissal. I am not satisfied that reinstatement would be appropriate in this case because Pasquale has another job and there is a genuine loss of trust and confidence between the parties which is likely to be a difficult hurdle to overcome given the deeply personal relationships involved. I am satisfied that an order for compensation is appropriate in the circumstances.

[16] Remuneration that would have been received, or would have been likely to receive, if not dismissed (s.392(2)(c)): Had Pasquale not been dismissed, there is no reason to consider that he would not have continued in employment at least for a further 6 months. In that period, he would have earned $1280.00 per week for 26 weeks, or a gross amount of $31,200 over that period.

[17] Business viability: There is no evidence that the business does not have the capacity to pay any amount of compensation. Pasquale says the business was doing “okay” although it could have been doing more. No adjustment is made on this account.

[18] Length of service: Pasquale was employed for approximately two years and 6 weeks. No adjustment of compensation is made on this basis.

[19] Mitigation efforts: Earlier attempts made by Pasquale to mitigate his loss focused on accessing Centrelink benefits and seeking employment through the Newstart program. He subsequently reached out to his own network and was able to secure employment on 2 September 2019. In my view, this could have been achieved earlier with appropriate effort. Compensation is reduced by 20% to $24,960.00 gross.

[20] Remuneration earned in the period since dismissal: Pasquale was paid two weeks’ wages in lieu of notice and has earned approximately $945.00 gross (derived from a net figure of approximately $800.00 per week) since 2 September 2019. The amount paid in lieu of notice of termination of $2560.00 gross and earnings since 2 September 2019 of approximately $8505.00 are deducted from the compensation amount, leaving a figure of $13,895.00 gross.

[21] Remuneration reasonably likely to be earned in the period between compensation order and actual compensation: The compensation order will be made payable within 30 days. Remuneration received in that period is likely to be $3780.00. That amount is deducted from the overall compensation amount, leaving a figure of $10,115.00.

[22] Misconduct: I am not satisfied that Pasquale’s conduct in arriving late to dinner on 10 March 2019 can fairly be characterised as work-related conduct. No deduction is made on this account.

[23] Other matters, including no compensation for shock, distress: No deduction is made for contingencies in this case given the lapse in time between application and decision. As the Act requires, the amount of compensation does not include a component for shock, humiliation or distress.

[24] The compensation amount that I have determined is less than the compensation cap of 26 weeks’ pay. It is not an amount that is clearly excessive or clearly inadequate. To minimise the potential risk of cashflow problems for the business, the compensation order will be made payable by instalments.

[25] An order for the payment of compensation [PR713938] will issue separately.

COMMISSIONER

Appearances:

P Parente on his own behalf.

Hearing details:

2019.

Melbourne:

October 31.

Printed by authority of the Commonwealth Government Printer

<PR713937>