Adam Coverlid v Jacobs Tyres Pty Ltd T/As Jacobs Tyres & More
[2012] FWA 4616
•4 JUNE 2012
[2012] FWA 4616 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Adam Coverlid
v
Jacobs Tyres Pty Ltd T/As Jacobs Tyres & More
(U2011/3312)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 4 JUNE 2012 |
Termination of employment.
Introduction
[1] Adam Coverlid (the applicant) was dismissed by his employer, Jacobs Tyres Pty Ltd t/as Jacobs Tyres & More (the respondent or the employer) 1 on 10 December 2011. This decision deals with his application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy.
[2] Correspondence received by the Tribunal on 11 April 2012 from Grant Jacobs, Owner/Manager of the respondent business, advised that he could not attend any meetings or hearings as this would be financially damaging to the business. He requested that Fair Work Australia (FWA) determine that the applicant was not unfairly dismissed and expressed the view that the documents he provided supported such a finding. He further requested that any arbitration or proceedings be cancelled. This request was refused.
[3] On 8 May 2012 my office sent correspondence to Mr Jacobs advising that the information he had provided in support of the decision to dismiss the applicant may have limited or no weight if it was challenged by the applicant and he was not available to give evidence in support of it.
[4] There was no appearance by the respondent at the hearing on 14 May 2012. Having formed the view that the respondent was aware of the proceedings and the consequences of a failure to attend and having received no response to the correspondence of 8 May 2012, the hearing proceeded in the respondent’s absence.
[5] The applicant was unrepresented. He was unfamiliar with court processes and in view of Mr Jacobs’ absence, I put the respondent’s allegations and the supporting documentation that was relied upon to the applicant for his response. Where reference is made in this decision to the contentions/submissions/statements of the respondent, I am referring to the information provided in the Form F3 Employer’s Response Form, Mr Jacobs’ submission (with attachments) received by the Tribunal on 11 April 2012 and email correspondence from Mr Jacobs to Fair Work Australia (FWA) dated 10 January 2012.
[6] The details of the allegations and the applicant’s evidence in relation to them are dealt with shortly, however it is convenient to note that the respondent cited three matters as triggering the dismissal of the applicant. 2 These were:
● Using the respondent’s account without authorisation;
● Attempting to poach the respondent’s clients; and
● Theft of money paid by a client to the business on 23 August 2011.
[7] The respondent also relied on two prior verbal warnings that were allegedly given to the applicant in September and October 2011, and referred to conduct which allegedly occurred post dismissal.
[8] The applicant commenced with the respondent in May 2010 as a full time employee. I understand from the evidence that the applicant’s position included replacing and/or rotating tyres on clients’ cars, ordering parts from suppliers and receiving payments from clients for work undertaken. The applicant had a set of keys to the premises and from time to time had control of the shop in the absence of Mr Jacobs.
[9] The reliability of the applicant’s evidence is dealt with in the narrative of facts below. It is abundantly clear from the applicant’s evidence as well as the written information supplied by Mr Jacobs that the relationship between them is an acrimonious one. The applicant’s animosity toward Mr Jacobs was evident in his frequent inability to deal with the questions I put to him without venturing into additional commentary on the respondent’s character and actions to an extent which made it difficult to ascertain relevant information. As unsatisfactory as this situation was, the applicant’s evidence is the only evidence before FWA and must be given appropriate weight.
[10] The applicant’s written submission 3 was accompanied by three letters. The first letter is from Ms Stroh, a friend of Ms Stewart, who stated that the applicant often worked Saturday’s and this letter was put forward in support of the applicant’s contention that he was underpaid. This is not a matter relevant to the characterisation of the dismissal and the letter has not been taken into account for this purpose.
[11] The second letter is from the proprietor of Elite Auto Electrics, Mr Kidd, who stated that he has known the applicant since the applicant commenced employment with the respondent and had found him to be honest and reliable. I have attributed limited weight to this letter since the applicant’s dealings with Mr Kidd’s business are not detailed.
[12] The third letter is from the applicant’s partner, Ms Stewart, who stated that she overheard the discussion between Mr Jacobs and the applicant on 10 December 2011 when the applicant was dismissed. The significance of the letter is that it supports the applicant’s version of events.
[13] Since the applicant’s dismissal Ms Stewart has become involved in the ever widening dispute with Mr Jacobs. I am unable to form a view as to whether her letter is coloured by this situation and/or her allegiance to the applicant as she was not called to give evidence. I regard this letter as a matter to be taken into account, but not determinative of the disputed facts.
The Facts
The allegations that led to the dismissal
[14] Mr Jacobs asserts that on 9 December 2011 he was advised by the Store Manager at Repco that the applicant was using the respondent’s account there to book up parts. Mr Jacobs stated that the applicant had no authority to do so. An invoice from Repco dated 9 December 2011 shows that four spark plugs were booked to the respondent’s account, to be paid by cash on delivery (COD). I note that the person who placed the order is not identified on the account and as such it does not, on its face, lend weight to the allegation.
[15] Nonetheless, the applicant stated that he did use the respondent’s account to purchase parts for his own use to take advantage of the lower prices charged to the respondent. He stated that he always made it known to Repco when he made a purchase for private use and that he received a separate invoice that he paid for out of his own funds. He stated that he kept such invoices separate from the invoices relating to the respondent’s business to avoid confusion. 4 As to the issue of authorisation, the applicant said that Mr Jacobs had allowed him to put private purchases on the respondent’s account earlier in the year when he was building his car5 and that other employees also used the respondent’s account for private purchases. The applicant stated that he found it hard to believe that Mr Jacobs was unaware that this was occurring.
[16] It is likely that Mr Jacobs was not aware that the applicant was booking up parts for his own use on the respondent’s Repco account because the applicant took steps to keep his invoices separate. I have some difficulty with the applicant’s explanation as to why he did this, since his invoices were differentiated from the business invoices by the inclusion of the applicant’s name. However, in light of the evidence of the previous authorisation given by Mr Jacobs and the practice of other employees, I find that this allegation is not substantiated.
[17] Mr Jacobs’ submission states that the second allegation arises from an approach to him from a customer who showed him a receipt prepared by the applicant for the purchase of new tyres for landscaping equipment. The receipt, bearing the respondent’s letterhead, had the applicant’s name and contact details hand written on it. Mr Jacobs alleges that the applicant had offered his own services to the customer in competition to the respondent business. It is not clear from Mr Jacobs’ statement whether this is an inference on his part or whether this is what the customer conveyed to him. It is also stated that the customer wished to retrieve the old tyres that had been replaced but that they could not be located. No specific allegation is identified by Mr Jacobs in this regard and I am unsure what, if anything is being suggested.
[18] The applicant gave evidence that the customer had a landscaping business and that he had a discussion with him about doing some work at the applicant’s house. The applicant said that he asked the customer to contact him when he was free to do the work, and wrote his details on the receipt for that purpose. He said that he had no idea where the replaced tyres were, and that they had probably been disposed of.
[19] The inclusion of the applicant’s details on the customer’s receipt is not sufficient to conclude that he was attempting to poach the customer from the respondent, nor is there sufficient evidence to conclude that the applicant committed any wrong doing in relation to the customer’s tyres that had been replaced.
[20] The third allegation that led to the applicant’s dismissal was a situation that came to Mr Jacob’s attention via a phone call on the morning of 10 December 2011. He stated that on 23 August 2011 at 11.10am the applicant invoiced work to a customer and received payment in cash for the amount of $99.50. At 1.35pm, after the business had closed, it is alleged that the applicant reversed the invoice using the computer system and pocketed the money. The relevant invoices were provided by Mr Jacobs and the applicant agrees that they show that the original transaction was reversed. The applicant’s name appears on both invoices.
[21] The applicant stated he was not at the shop after 1.00pm that day and that this could be verified by checking the security records, since each employee with keys to the business has their own code for the alarm system. He stated that the name of the salesperson that appeared on the invoice was chosen by the person operating the computer from a drop down menu of names. The applicant suggested that Mr Jacobs entered the shop after he had left, reversed the transaction and put his, i.e. the applicant’s name on the new invoice that was then generated.
[22] While the applicant’s evidence in relation to the reversed invoice tends to strain credibility, in light of Mr Jacobs’ absence from the proceedings, the limited testing of the applicant’s evidence as well as the absence of the security records for the day in question, there is insufficient evidence to determine that the allegation of theft has been substantiated.
The dismissal
[23] Limited material has been put forward on the discussion between the parties on 10 December 2011. It is agreed that Mr Jacobs drove to the applicant’s residence shortly before 1.00pm and that the applicant was working on a car in his garage at the time. It is also agreed that Mr Jacobs accused him of making a false WorkCover claim and requested that the applicant return the keys to the shop.
[24] When I asked the applicant whether Mr Jacobs had mentioned the 23 August invoices on 10 December prior to his dismissal, he stated:
“He said something about a phone call. He said, “I’ve had a phone call.” I think he may have actually been referring to the invoice regarding me poaching customers, because he said some guy rang or something and wanted his second hand bobcat tyres back... .” 6
[25] Mr Jacobs recorded the following in his Form F3 Employer’s Response:
“On December 10th, 2011 at 12:50pm I went to the residence of Adam Coverlid and demanded the keys in his possession belonging to Jacobs Tyres which he surrendered. I explained to him what I had learned in the last 24hrs. and offered him the opportunity to explain himself. Adam Coverlid’s response was “I’m sorry for taking money and stuff”. I explained to Adam Coverlid that he was out of warnings and that a written warning is at the premises of Jacobs Tyres for him to sign and his employment at Jacobs Tyres is terminated.”
[26] It appears that Mr Jacobs was of the view that the final warning was a requirement for termination. The fact that the warning had been prepared prior to meeting with the applicant tends to indicate that Mr Jacobs had made up his mind to dismiss the applicant in advance of the discussion between them.
[27] The applicant strenuously denies that he apologised or made any admission concerning theft of money from the business, and this is supported by the letter from Ms Stewart. The applicant estimated that the conversation lasted 30 seconds to one minute and that he was shocked by what transpired.
[28] I consider that it is likely that the respondent did put the allegations to the applicant, including the allegation relating to the 23 August invoices. The applicant’s evidence that Mr Jacobs cited a phone call he received earlier that day correlates with Mr Jacobs evidence that this was the time and means by which the 23 August invoices came to his attention. I am not satisfied however that that the applicant was invited to respond to the allegations. Rather, I find that the allegations were advised to the applicant as the reasons for the decision to dismiss.
The verbal warnings
[29] The applicant stated that he did not receive any verbal warnings from Mr Jacobs, nonetheless he addressed the incidents that were said to have formed the basis of the warnings as set out in Mr Jacobs’ documents. The incident that allegedly led to the September 2011 warning concerned a complaint from a customer, who will be referred to as JP, and who Mr Jacobs asserts was the subject of “verbal abuse” from the applicant on 3 September 2011.
[30] JP wrote a letter of complaint to Mr Jacobs on 6 September 2011. 7 In the letter it is stated that JP made a booking for a tyre rotation on 3 September at 8.00am. It was stated that the applicant opened the workshop at 8.05am and stood around drinking coffee, while JP waited. When JP approached the applicant to commence work he was “rude, abrupt and arrogant”.
[31] According to Mr Jacobs, he spoke to the applicant on 5 September “... and explained verbal abuse is not condoned...” 8 In the later correspondence to FWA, Mr Jacob’s alleges that he asked the applicant to explain his actions and “... then informed him that that I am officially giving him a first warning”.
[32] The applicant accepted that he may have been late in opening the shop by five minutes on that day. He stated that the customer was agitated but that he believed he had dealt with JP in a proper manner and that the job was finished before the time JP had specified. The applicant agrees that he was spoken to by Mr Jacobs about JP’s complaint; although he said it was approximately two weeks after the event. He said he was asked why the customer was kept waiting and was reminded that JP was a long standing customer. He denied that he was warned. The applicant said that the upshot of his discussion with Mr Jacobs was that employees had to attend the shop ten minutes before opening time in future and it was his task to advise the employees accordingly. He also stated that Mr Jacobs acknowledged that JP could be difficult at times.
[33] There is insufficient evidence before me to make an adverse finding against the applicant on the manner in which he spoke JP or that he received a warning, although it is not in dispute that the applicant was late opening the shop on that day.
[34] Mr Jacobs also contends that on 6 October he warned the applicant for “taking money that belonged to Jacobs Tyres”. 9 The relevant circumstances are that the applicant had undertaken a tyre rotation for a customer and written “free” next to her booking in the diary that records all booked jobs. This much is agreed. Mr Jacobs asserts that the customer had in fact paid an amount of $34.50 to the applicant, which the applicant pocketed. Mr Jacobs stated that the applicant refused to explain his actions.
[35] The applicant accepts that he may have written “free” in the jobs diary but said that he did not charge the customer for the tyre rotation. He stated that “someone else booked the job out and charged her” 10 and then had given the money to him, which he placed in the till with the rest of the takings. In other evidence the applicant stated that the customer paid the money to him.11 According to the applicant, he placed the till money in the fridge at the close of business consistent with the procedure adopted by Mr Jacobs. When asked why no receipt was given to the customer, the applicant stated that it was the ‘practice’ at the shop that no receipts are given unless requested.12 The applicant also stated that the respondent’s wife took money from the fridge from time to time.
[36] I have some difficulty with the applicant’s evidence as to whether he received the money from the customer and as to why no receipt was issued. I also find it surprising that if Mr Jacobs believed that the applicant stole from the business that he would consider a verbal warning appropriate, although I do not discount that this may reflect Mr Jacobs’ confusion about his rights as an employer. However, in the absence of any evidence from Mr Jacobs’ or his wife on whether money was taken from the fridge or on the practice regarding the issuing of receipts, there is insufficient evidence before me to justify an adverse finding against the applicant in relation to this allegation. I make no finding on whether the applicant received a verbal warning.
Other allegations
[37] Further allegations against the applicant have been made by Mr Jacobs in the material he has filed with the Tribunal. It is asserted that the applicant continued to book materials to the respondent’s account at Repco after he was dismissed. Invoices from Repco dated 11 and 17 December 2011 were attached to Mr Jacobs’ submission and were said to support this allegation. The applicant stated that, after he was dismissed, he opened his own account at Repco and the invoices relied upon by the respondent actually relate to this account. He pointed out that the invoices that post-dated his dismissal did not have the respondent’s name on them.
[38] The Tribunal has cited the invoices forwarded by the respondent as referred to above as well as a bundle of invoices tendered by the applicant (Ex A1) that pertain to the period he was employed. The respondent’s name is not included in the invoices of 11 and 17 December, which is not surprising since the inclusion of the respondent’s name in the earlier invoices was contained in the area of the invoice which identified the recipient of the delivery. Significantly, all the invoices contain the same customer number. On the evidence before me I conclude that the applicant continued to use the respondent’s account to book up materials for his private use after he was dismissed. The applicant would have been well aware that he had no authorisation to make these purchases on the respondent’s account.
[39] This is a matter that bears on the issue of the applicant’s credibility. Since it occurred post-dismissal, it cannot be relied upon by the respondent to justify the dismissal but it may be a matter that is relevant to the issue of remedy.
[40] It is further alleged that the applicant tried to swap a tyre that belonged to the respondent business for the hire of a trailer for personal use from Blackwood Hire Centre. A letter from the General Manager of Blackwood Hire Centre dated 3 January 2012, attached to Mr Jacobs’ submission, states:
“To whom it may concern
Early in 2011, one of our staff made me aware that a staff member at ‘Jacobs Tyres and More’ had approached him with the intention to swap a new tyre for a trailer hire for his personal use.
I contacted Grant [Jacobs] and notified him of the situation.”
[41] Apart from the fact that the above letter does not identify the employee in question, there is no evidence that the matter was raised with the applicant at the time or subsequently. The applicant stated that he paid $70 to hire a car trailer from Blackwood Hire Centre on one occasion when he was using Mr Jacobs’ land cruiser. On the evidence and information before the Tribunal, I find that this allegation is not substantiated.
The statutory context
[42] Section 385 of the Act stipulates the matters that FWA needs to be satisfied of in order for a person to establish that he or she has been unfairly dismissed:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[43] It is common ground, and I accept, that the applicant was dismissed and that the dismissal was not a case of genuine redundancy. As such, in the present case, paragraphs (b) and (c) must be established to the satisfaction of FWA in order for the applicant’s dismissal to be held to be unfair.
[44] Section 396 of the Act prescribes that FWA must determine certain matters before considering the merits of the application. Those matters are: whether the application was made within the prescribed time limit; whether the person is protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. 13
[45] The application was made within the prescribed 14 day time limit. Sections 382 and 383 set out the prerequisites in order for a person to be protected from unfair dismissal. In the present matter the respondent is a small business employer as defined in s.23 of the Act, having less than 15 employees at the time of the applicant’s dismissal. The applicant had completed the minimum employment period defined in s.383(b) of the Act, having approximately 17 months service at the time of dismissal. His annual earnings were below the high income threshold. I am therefore satisfied that the applicant is a person who is protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code
[46] The Small Business Fair Dismissal Code is in the following terms:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[47] On the information before FWA it appears that the respondent summarily dismissed the applicant for serious misconduct, even though there is some suggestion in Mr Jacobs’ submissions that the termination was as a consequence of the further misconduct by the applicant after two previous warnings. 14 No notice of termination was provided. The allegations against the applicant are of a serious nature, including theft, and I have therefore proceeded on the basis that the applicant was summarily dismissed.
The approach to a dismissal involving a small business
[48] In Pinawin v Domingo, 15 a Full Bench of FWA considered the approach of the Tribunal to determining whether the employer believed on reasonable grounds that the employee’s conduct justified summary dismissal. The Bench stated:
“[29]... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[49] The non-attendance by Mr Jacobs at the proceedings presents particular problems in assessing the genuine belief held by the employer at the time of dismissal. The submission filed by Mr Jacobs indicates a strong view that the applicant had committed serious misconduct and there is no doubt that theft in the circumstances described by Mr Jacobs would warrant summary dismissal.
[50] In assessing whether Mr Jacobs’ belief was based on reasonable grounds, it is appropriate to consider the investigation conducted by Mr Jacobs; whether the allegation was put to the applicant; and whether any response from the applicant was taken into account in reaching the decision to dismiss. 16
[51] On the evidence before the Tribunal I am unable to find that the applicant admitted taking money from the respondent. I conclude that the applicant did not have a reasonable opportunity to defend the allegations against him. In these circumstances the respondent’s belief that the applicant stole money from the business was not based on reasonable grounds.
[52] I am led to a similar conclusion in relation to the allegation that, in the course of his employment, the applicant booked parts for his private use to the respondent’s account at Repco without authorisation.
[53] Finally, there is no information before the Tribunal on which to conclude that the respondent had a reasonable belief that the applicant attempted to poach a customer and/or committed some unspecified wrong doing in relation to the customer’s replaced tyres.
[54] On these grounds I conclude that the applicant’s dismissal was not consistent with the Small Business Fair Dismissal Code. In accordance with s.385(b) of the Act I now turn to consider whether the dismissal was harsh unjust or unreasonable.
Was the dismissal harsh unjust or unreasonable
[55] Section 387 sets out the matters which FWA must take into account in determining whether the dismissal was harsh unjust or unreasonable:
“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.”
[56] In contrast to the test under the Small Business Fair Dismissal Code, that the employer must have a belief based on reasonable grounds that the applicant’s conduct justifies summary dismissal, whether there is a valid reason for the dismissal requires that the Tribunal reach its own conclusion on the evidence before it as to whether the alleged misconduct occurred. Having regard to my findings in relation to the allegations against the applicant as set out in paragraphs [16], [19] and [22] of this decision, I conclude that there was not a valid reason for dismissal.
[57] I have also found that the applicant was notified of the allegations against him only at the time of the dismissal and consequently was not given an opportunity to respond to them.
[58] Given my findings on the manner of the dismissal, the applicant was not given any opportunity to request that he have a support person present to assist him. It is implicit that a failure to provide an opportunity to respond to the allegations is a refusal to allow representation.
[59] As I have found that the dismissal was based upon the alleged misconduct of the applicant, rather than performance issues, s.387(e) of the Act has no application.
[60] The respondent is a small business with no dedicated human resource specialists or expertise. I am satisfied on the information provided by Mr Jacobs that his approach to the dismissal reflected a limited understanding of his rights and obligations as an employer. I also accept that he did not have ready access to industrial advice to guide his approach.
[61] There are no other matters that I consider should be taken into account. I find that the dismissal of the applicant was unjust and unreasonable. Mr Jacobs denied the applicant an opportunity to respond to the allegations and, on the evidence before FWA, there was not a valid reason for dismissal.
Remedy
[62] The applicant seeks compensation. In accordance with s.390(3) of the Act compensation must not be ordered unless FWA is satisfied that reinstatement is inappropriate and that an order for payment of compensation is appropriate in the circumstances. I am satisfied that reinstatement is not appropriate and that the applicant should not be denied compensation.
[63] Section 392 of the Act deals with compensation as follows:
“392 Remedy—compensation
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.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
- (i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
[64] In relation to s.392(2)(a) of the Act, there is no evidence before me to enable an assessment of the impact of any order for compensation on the viability of the employer’s enterprise.
[65] The applicant’s length of service is not substantial and has been given limited weight.
[66] I am satisfied that absent the dismissal, the applicant would not have continued in employment for much longer due to the nature of the relationship with Mr Jacobs. Although much of the bad blood between the parties is as a result of the dismissal, the disintegration of the relationship began prior to the dismissal and having regard to the evidence of the applicant I consider that he has contributed to this situation. At the least I find that he took liberties in the manner in which he operated which would have given Mr Jacobs cause for concern and eroded his confidence in the applicant. The applicant’s conduct post-dismissal in continuing to use the respondent’s Repco account reinforces this view. I consider that the employment would have been unlikely to have continued beyond a further four weeks from the date of dismissal.
[67] Section 392(2)(e) refers to “the amount of any remuneration earned by the person from employment or other work during the period between the dismissal ....”. The applicant was in receipt of income maintenance payments under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA) for a period that commenced shortly before the date of dismissal and extended to 20 January 2012. For the purposes of this section of the Act I regard these payments as “remuneration earned ... from employment”, since the payments are in substitution of the average weekly earnings that the worker would have otherwise received. 17
[68] The applicant stated that, although he earned $650 per week he was paid only $450 per week in income maintenance payments. The applicant has other avenues to pursue any shortfall in this regard 18 and it is not a matter relevant to the calculation of compensation by FWA.
[69] In view of my assessment as to the likely duration of the employment absent the dismissal, the applicant has effectively suffered no loss of earnings as a result of his dismissal.
Conclusion
[70] I have concluded that the applicant’s dismissal was harsh and unreasonable. I further conclude that he has or will be able to recoup lost earnings for the period that I have assessed as the likely duration of the employment had the dismissal not occurred. In these circumstances no order for compensation is appropriate.
DEPUTY PRESIDENT
Appearances:
A Coverlid on his own behalf
No appearance for the Respondent
Hearing details:
2012
Adelaide
May 14
1 The respondent was identified in the application as “Jacobs Tyres and Mechanical”. Based on information provided by the employer in the Form F3 Response and documentation on the file, the application was amended in proceedings on 14 May 2012 to insert the name of the respondent as appears in this decision.
2 Attachment to the Form F3 Employer’s Response.
3 Dated 6 March 2012.
4 PN 229.
5 PN 233.
6 PN 292.
7 Attached to the respondent’s submissions.
8 Form F3 Employer’s Response.
9 As above.
10 PN 109.
11 PN 111, 113.
12 PN 108 to 122.
13 Section 396(a) to (d), respectively.
14 Form F3 Employer’s Response.
15 John Pinawin T/A RoseVi. Hair. Face. Body v Edwin Domingo, [2012] FWAFB 1359.
16 Harley v Rosecrest Asset Pty Ltd T/As Can Do International, [2011] FWA 3922 at para [9], endorsed by the Full Bench in Pinawin v Domingo, above, at para [29].
17 Section 35A of the WRCA.
18 Section 90 of the WRCA.
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