Adam Ian Cameron v Matthew Peter Ortlipp T/A Bilcor Refrigeration

[2014] FWC 1113

[2014] FWC 1113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Ian Cameron
v
Matthew Peter Ortlipp T/A Bilcor Refrigeration
(U2013/2778)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 17 FEBRUARY 2014

Application for relief from unfair dismissal - finding dismissal was unfair - compensation ordered.

[1] This decision concerns an application made by Mr Cameron for an unfair dismissal remedy. The application is made under s.394 of the Fair Work Act 2009 (the Act). I heard this matter on 12 February 2014. At the conclusion of that hearing, I announced that I had decided the applicant’s dismissal was harsh, unjust and unreasonable and that an order for compensation for an amount equal to 5 weeks wages (less tax) would be made. These are my reasons for that decision.

Background - procedural matters

[2] The respondent did not file a form F3 Employer Response. There was no appearance for or on behalf of the respondent at the conciliation conference which was arranged for this matter. Numerous attempts were made by the unfair dismissal unit to contact Mr Ortlipp by way of his email address and a mobile telephone number which the applicant had nominated as being the appropriate one to be used. I understand Mr Ortlipp is the proprietor of the respondent.

[3] Directions were issued to the parties for the filing of submissions and witness statements. The applicant complied with those directions but the respondent did not. After several attempts by the unfair dismissal unit to contact Mr Ortlipp about his non-compliance he sent a brief email on 28 January 2014. He listed what he described as "numerous reasons" why he had dismissed the applicant. No detail was given about any of these reasons. He concluded his email with the advice: "I won't be attending any hearing as this is crap. You need to look from the employer's position. Thanks matt." No request was made for me to consider this email as the respondent’s attempt (albeit late) to comply with directions earlier given. I should indicate that I did not mark that email as an exhibit and have not taken its content into account. In the absence of the respondent complying with the directions which were made I saw no proper basis for it to be taken into account. The applicant would have been entitled to have opposed my marking the email as an exhibit in the absence of Mr Ortlipp’s attendance and an opportunity to cross-examine him on its content.

[4] Finally, I record that on 4 February 2014 an email was sent by my Chambers to the applicant and the respondent. In it a request was made for the provision of a copy of some documents which were identified in that email. It also confirmed the date this matter was listed for hearing and advised the parties that the matter would proceed in the absence of either of them and that orders may be issued in their absence.

Section 398 conference and the evidence

[5] When the matter was called on for hearing on 12 February 2014 I spoke to the applicant about how best to proceed with his application. I explained the options and took his comments into account. I decided to proceed by way of a conference.

[6] I marked as exhibits the following documents:

• the s.394 application (which contained a description as to why the applicant asserted his dismissal was unfair and also provided some detail in relation to the background to his employment and other related issues); 1

• the applicant’s outline of submissions; 2 and

• the applicant’s witness statement. 3

[7] The applicant addressed me on the remedy that he sought and why he submitted that, in the circumstances of this matter, reinstatement would be inappropriate. He sought an order for compensation equivalent to 5 weeks’ wages.

The Act - application of relevant provisions

[8] I will now refer to the several provisions of the Act that I am required to take into account. Firstly, pursuant to s.382 of the Act, I find that the applicant is a person protected from unfair dismissal. There does not seem to have been any attention given to whether a modern award applied to his employment but I think it likely he was covered by the Road Transport and Distribution Award 2010. 4 In any event, his annual rate of earnings was less than the high income threshold.

[9] I next refer to s.385 of the Act. I am satisfied thatthe applicant had been dismissed and this had occurred on Sunday 11 August 2013. No issue of genuine redundancy arises in this matter. I am satisfied the dismissal was not consistent with the Small Business Code (the Code). In relation to the application of the Code, I took into account the applicant’s advice about the number of employees engaged by the respondent. There were fewer than 15 employees at the relevant time and, accordingly, I considered whether the respondent had complied with the Code; it had not.

[10] The applicant commenced employment with the respondent on 16 December 2011. He was dismissed on 11 August 2013. He had been engaged as a driver and undertook the delivery of dairy products to customers. The respondent was a franchisee of Parmalat Australia. The applicant was engaged as a casual employee and worked six days a week Monday to Saturday. He was paid $1,400 per week (gross). There was an additional amount of superannuation to be paid and it seems that an issue arose about whether the respondent was making this payment. I return to this later. I will now turn to the factors with I must take into account under s.387 of the Act.

(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);

[11] When the applicant arrived for work at approximately 1am on Saturday 10 August 2013 he reviewed his orders and noticed that there were a couple of orders from customers that did not order on weekends. He removed the products for these orders from the pallets that were waiting to be packed into his truck. He returned the products to the cool room. He packed his truck with the remaining orders and commenced his deliveries. He returned to the depot about 9am, unloaded and washed the back of his truck, and left the depot.

[12] Prior to this time, there had been a number of errors with the ordering and picking of products. There had been a new person in the office and also some difficulties with the late ordering procedures. One particular customer, who I will refer to as Baxter’s, had never ordered on a Saturday. The applicant had therefore assumed orders for that customer had been put out in error.

[13] On Sunday, 11 August 2013 at around 4pm, Mr Ortlipp rang the applicant and told him he was dismissed effective immediately. He said the applicant was not ‘working out’ and that he didn't need to come in to work. He said Baxter’s had not received their order and they needed it. I interpose here to note that the applicant advised me the reference to Baxter’s meant to a customer of the respondent which was a juvenile detention centre. The applicant had said that this customer had never ordered on Saturday and that he, the applicant, had spoken to them before about the days they did want their orders delivered, which was on their regular set days. Mr Ortlipp did not want to discuss the matter further and told the applicant that he had until 6pm on that day to return the truck and depot keys. The applicant’s wife did so.

[14] I accept the evidence of the applicant and find that the respondent did not have a valid reason to dismiss him.

(b) - whether the person was notified of that reason

[15] The applicant was advised in a telephone conversation he had with Mr Ortlipp that he was being sacked for failing to deliver an order to Baxter’s.

(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[16] The applicant was given no real opportunity to respond to the reason given by Mr Ortlipp for terminating his employment.

(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

[17] In light of the way in which the applicant’s employment was terminated, no opportunity arose for him to request a support person to assist him and, it follows, that the respondent did not refuse any request for such a person to assist.

(e) - if the dismissal related to unsatisfactory performance by the person — whether the person had been warned about that unsatisfactory performance before the dismissal

[18] There was no evidence before me of any warning the applicant had received for unsatisfactory performance.

(f) and (g) - 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 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

[19] The small size of the respondent’s business and workforce probably had an impact on the manner in which it went about dismissing the applicant. It is unlikely it had any human resources personnel. The dismissal was done in an unsatisfactory manner without giving the applicant any warning about the incident that Mr Ortlipp referred to in his telephone conversation and without giving the applicant any opportunity to explain why he had decided to not deliver to Baxter’s on that weekend.

(h) - any other matters that the FWC considers relevant.

[20] The applicant referred to numerous aspects of his employment with the respondent which he believed were, in whole or in part, the real reason behind Mr Ortlipp’s decision to dismiss him. As I have found earlier there was no valid reason for the dismissal I need only refer briefly to these matters. I need not make a finding about each of them. In the absence of any evidence from the respondent I indicate that, it is at least arguable, some of the matters raised by the applicant did motivate the respondent to dismiss the applicant.

[21] The applicant had, prior to his dismissal, raised with Mr Ortlipp concerns he had about superannuation not being paid for him or the other employees. He had also complained that no payslips were being provided. The applicant had also complained about the road worthiness of the truck he was required to drive.

Dismissal unfair - compensation

[22] Having considered all of the factors I have referred to above I have decided the dismissal of the applicant was harsh, unjust and unreasonable. He has been unfairly dismissed. Having made that finding I next turn to s.390 of the Act.

[23] I have decided that reinstatement of the applicant is inappropriate, and a payment of compensation is appropriate in all the circumstances of this matter. In arriving at my decision as to the amount of compensation which I should order, I have taken into account the criteria referred to in s.392 of the Act. In this respect I had no evidence that an award of compensation would affect the financial viability of the respondent. At the time the applicant was dismissed he had been employed for over 19 months and, had he not been dismissed, he would have continued to be paid at least the same amount per week as he had to that date. The applicant was able to secure new employment approximately 5 weeks after he was dismissed. There is no evidence that, in the interim period, he received any remuneration from other employment. There is no basis to reduce the amount by reference to the considerations in s.392(3).

[24] I decided to order an amount of compensation in lieu of reinstatement, equal to 5 weeks at $1400.00 per week gross less applicable taxation. An order reflecting this decision will be issued at the same time this decision is published. The order will require the respondent to pay the compensation to the applicant within 14 days of today’s date.

SENIOR DEPUTY PRESIDENT

Hearing details:

2014.
Sydney:

February 12.

 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit A3

 4   MA000038

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