Alan Gauntlett-Gilbert v Elite Essential Trades Pty Ltd T/A E-Lite LED Solutions

[2018] FWC 3221

[2018] FWC 3221 [Note: An appeal pursuant to s.604 (C2018/3390) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Gauntlett-Gilbert
v
Elite Essential Trades Pty Ltd T/A E-LITE LED SOLUTIONS
(U2017/13378)

COMMISSIONER MCKENNA SYDNEY, 8 JUNE 2018

Application for an unfair dismissal remedy.

[1] Alan Gauntlett-Gilbert (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy. The applicant was formerly employed as a fire sprinkler fitter by Elite Essential Trades Pty Ltd trading as E-LITE LED SOLUTIONS (“the respondent”).

[2] The application for an unfair dismissal remedy proceeded to hearing on 30 April 2018. My reasons for acceding to the application to proceed in the absence of the respondent arose against matters including the following:

•  On 15 January 2018, the Fair Work Commission (“Commission”) sent standard correspondence to the contact person for the respondent identified in the initiating process, Dean Manser. That correspondence contained information routinely provided by the Commission to respondents to applications – relevantly including providing information about matters such as the requirement to file and serve a Form F3 - Employer’s Response to Application for an Unfair Dismissal Remedy and listing details concerning an initial conciliation telephone proceeding before a Commission conciliator.

•  The respondent did not file and serve a Form F3 - Employer’s Response to Application for an Unfair Dismissal Remedy. On Wednesday 17 January 2018, however, Mr Manser sent correspondence to the Commission outlining certain matters by way of response and also seeking an adjournment of the telephone conciliation that had been listed before a Commission conciliator at 11.15am on 18 January 2017. That adjournment application was declined. File notes indicate that the conciliator’s endeavours to contact the respondent by telephone were unsuccessful; the call was not answered and a voicemail message did not result in a return call.

•  It seems from the file record that the conciliator subsequently liaised with the parties concerning the scheduling of a second telephone conciliation. The matter was then listed on 14 February 2018 for a telephone conciliation before a Commission conciliator. The file record indicates that the conciliator’s endeavours to contact the respondent for the second conciliation were also unsuccessful - with calls going to voicemail and without subsequent return calls. A file note dated 14 February 2018 indicates that the conciliator considered there would be no utility in scheduling a further conciliation, given the respondent had failed to participate on two occasions.

•  Upon the allocation of the file to me on 7 March 2018, I caused a Notice of Listing to be issued which relevantly included information concerning the listing of a pre-hearing conference and/or directions proceeding, by telephone, scheduled for 12 March 2018. That Notice of Listing also specified directions concerning the filing and service of the parties’ material for an arbitration conference/hearing in person on 30 April 2018. Correspondence accompanying the Notice of Listing provided additional information. The information in such respects was sent to the respondent by email and by Australia Post-tracked mail. Australia Post tracking confirms the Notice of Listing and the correspondence were delivered. Moreover, there was no record of any email delivery failure in relation to the electronic transmission of the same information; on the contrary, the record indicates a successful transmission.

•  There was no appearance by or on behalf of the respondent in the pre-hearing conference and/or directions proceeding before me on 12 March 2018. My Associate’s endeavour to contact the respondent by telephone concerning participating in the telephone proceeding on 12 March 2018 also was unsuccessful.

[3] On 28 March 2018, the applicant filed and served materials in accordance with the directions.

[4] The respondent did not file and serve any materials pursuant to the directions, albeit the directions specified that such materials were due to be filed and served by no later than 5.00pm on 18 April 2018. The respondent did not seek any variation or amendment to the directions. The respondent did not otherwise contact the Commission concerning the failure to comply with the directions or about any other matters.

[5] On the day of the scheduled arbitration conference/hearing of 30 April 2018, the applicant’s representative sent emailed correspondence to my Associate at 9.35am advising that his client had been delayed and seeking that the proceeding commence at 11.00am, instead of 10.00am. On my instructions, my Associate sent correspondence to the applicant’s representative, copied to the respondent, advising that the one-hour adjournment application had been granted.

[6] At 10.12am on 30 April 2018, Mr Manser (to whom all earlier communications had been sent by email and surface mail) sent emailed correspondence to my Associate which read:

“Good morning,

I was not advised of anything happening relating to this matter today?

Is this going to be carried out over phone or in person as I am currently on site out near Weatherill park.

I will need adjournment to a later date and be advised if I am required to appear in person.

Regards

Dean”

It may be noted that the email address by which Mr Manser sent his adjournment application was the same email address to which earlier Commission communications had been sent.

[7] At 10.34am on 30 April 2018, my Associate sent emailed correspondence to Mr Manser on my instructions such that he could appear by telephone at 11.00am so as to have the opportunity to speak to the adjournment application.

[8] There was no appearance by or on behalf of the respondent at 11.00am albeit arrangements had quickly been made so Mr Manser could have the opportunity to be heard by telephone in relation to making any adjournment application. The applicant’s representative submitted I should proceed in the absence of the respondent. Having considered the submissions for the applicant and considering for myself the general history of matters as to non-appearance and failure to file and serve materials in accordance with the directions, I determined to accede to the application that the hearing should proceed. I was satisfied that the respondent was aware, or ought to have been aware, from the information in the Notice of Listing and the accompanying correspondence of 7 March 2018, that directions had been issued and that the arbitration conference/hearing was listed on 30 April 2018.

[9] At 11.14am, after the hearing had commenced, the respondent sent an email to my Associate which read: “I have been on hold for 15 minutes any idea what time it will start?” At 11.22am, again on my instructions, my Associate sent further emailed correspondence to the respondent advising the hearing had by then already commenced and reiterating advice earlier given concerning addressing any technical difficulties experienced when dialling-in to proceedings. Still, there was no appearance by the respondent. The hearing was a short one, which concluded by approximately 11.30am.

[10] Mr Manser sent further emailed communications to my Associate after the proceeding had concluded relevantly including one at 12.37pm including text which read: “I was not advised that this was taking place today”.

[11] I may note that even if the respondent had availed of the opportunity to participate, albeit by telephone, in the proceeding on 30 April 2018, I would have been disinclined to adjourn the hearing to a later date if the adjournment application was based solely or principally on matters to which reference was made in Mr Manser’s emailed correspondence on 30 April 2018 sent at 10.12am (prior to the commencement of the hearing) and 12.37pm (after the respondent had been advised the hearing already had concluded). That is, the correspondence alluded to matters as to not having been advised of anything happening/relating to the matter that day; lack of knowledge as to whether the hearing was going to be conducted by telephone or in person; and the need for an adjournment if Mr Manser was required to appear in person. As noted earlier, I was satisfied that the respondent was aware, or ought to have been aware, from the information in the Notice of Listing and the accompanying correspondence of 7 March 2018, that directions had been issued and that the arbitration conference/hearing was listed on 30 April 2018.

Background

[12] As to preliminary matters, I find that the application was made within time; the applicant was a person protected from unfair dismissal; and the dismissal did not involve a case of genuine redundancy. There was no evidence as to whether the respondent was a small business employer. Given the evidence as to the circumstances of the dismissal and the absence of anything from the respondent relevant to Small Business Fair Dismissal Code considerations, this is an application where the matters fall, in any event, to be determined under the provisions of s.387 of the Act rather than pivoting on Small Business Fair Dismissal Code-related considerations.

[13] What follows is based only on matters advanced in the applicant’s case (save as to an extract of correspondence from the respondent’s Mr Manser), given the respondent did not file and serve any materials. I am bound to note that much of what was advanced in the applicant’s case concerned alleged underpayments in connection with the period of employment and payments on termination of employment, being matters in relation to which I have no jurisdiction to make orders. In that regard, I note that the evidence indicates the applicant had contacted the Fair Work Ombudsman about payment-related issues prior to the termination of employment. That is, by emailed correspondence of 29 November 2017, prior to the dismissal, a “Customer Solutions Officer” of the Fair Work Ombudsman wrote to Mr Manser regarding “non-payment of wages”.

[14] The applicant was employed on a full-time basis by the respondent as a fire sprinkler fitter from around July 2016 until 4 December 2018. As best as can be ascertained from what was set out in the correspondence (and attachments) Mr Manser sent to the Commission on 17 January 2018 in advance of the first-scheduled conciliation (which, as I have noted earlier, did not proceed), it emerges as common ground that the applicant was dismissed by the respondent on 4 December 2017. That is, Mr Manser’s correspondence read, in part, as to the date of the dismissal and the reasons for the dismissal:

“Unfortunately we were forced to terminate Alan’s employment on the 4/12/17. The final incident related from him calling our main customer after business hours (approximately 6-7pm) mumbling and in a non coherent state telling him that he would not be attending work the following week due to a pay dispute with myself. He did not try call or try to contact me that whole week and I believe his motive was purely to jeopardise my companies [sic] relationship with this customer. This customer provides our company with 70-80% of our work that week. …”

[15] While I do not reproduce the other matters set out in Mr Manser’s correspondence of 17 January 2018, this much may be noted. Despite what was written in Mr Manser’s correspondence as to not having been contacted by the applicant “that whole week” (in what I take to be approximately seven days preceding the dismissal on Monday 4 December 2017), there was evidence that the applicant did try to contact Mr Manser. For example, in emailed correspondence of 1 December 2017 the applicant wrote to Mr Manser asking that he please send “a termination of employment certificate because I cannot apply for Centrelink assistance without it”. Minutes later, however - and in a somewhat potentially contradictory way given he had sought a termination of employment certificate in order to be able to apply for Centrelink assistance, the applicant next wrote to Mr Manser in the following terms seemingly on the basis that he wished to continue to be employed, but raising issue about being paid. That further emailed correspondence read:

“I wish to know where we stand on my pay that I have not received for over three weeks.

I should have been payed [sic] weekly as per the award. In addition to my three weeks I worked a full Saturday and half Saturday the following week (11/11/17 & 18/11/17).

As I told [name], your main contractor, I would not work for you for no pay.

Could you please resolve my pay as soon as possible as I am now desperate to pay bills etc.”

[16] The applicant’s outline characterised the evidence of the applicant in support of the application as follows:

“1. The Applicant worked for 3 weeks in November 2017 for which the Respondent did not pay him for several weeks.

2. On 24 November 24 November 2017, the Applicant had two telephone conversations.

a. The applicant first advised a client that he could not deliver a product, and explained it was because he had not been paid his wages.

b. About 15 minutes after the first conversation, the Respondent (through Mr Dean Manser) and the Applicant exchanged the following dialogue, or said words to the following effect:

Respondent (through Mr Manser): “What are you doing calling my clients?”

Applicant: “I haven’t been paid for three weeks”.

3. On 29 November 2017, the Applicant inquired with the Fair Work Ombudsman about his unpaid wages …

4. On 1 December 2017, the Applicant:

a. asked the Respondent (through Mr Manser) for a termination of employment certificate, and

b. advised that the Respondent’s vehicle and phone were ready to be collected from the Applicant …

5. On 1 December 2017, the Applicant sent a further e-mail to the Respondent (through Mr Manser), asking for 3 weeks of pay that the Respondent owed to the Applicant, and noting the Applicant’s financial difficulties.

6. On or around 3 December 2017, the Applicant received 2 of the 3 weeks of pay that the respondent owed him from November 2017.

7. On 4 December 2017, the Applicant and the Respondent (through Mr Manser) exchanged the following e-mails with words to the following effect:

a. The Applicant acknowledged receipt of 2 of the missing weeks of pay, and claimed he was still owed $1,431, as well as 98.4 hours of ‘holiday pay’ and payment in lieu of notice.

b. The Respondent (through Mr Manser) advised the Applicant about the terms on which the Respondent would pay the final entitlements it owed to the Applicant, namely the return of a work vehicle to the Respondent. …”

[17] The termination of employment, by dismissal, arising against the background of such matters, then took effect on 4 December 2017.

Consideration

[18] I turn now to consider those matters which must be taken into account by operation of s.387 of the Act.

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)

[19] There is no evidence there was a valid reason for the dismissal. That is, the applicant’s evidence indicated that on 24 November 2017 he had a conversation with a client or contractor, in which he stated he had not been paid. The respondent was aware of that conversation, because he telephoned the applicant about it. Thereafter, the employment continued until the summary dismissal on 4 December 2017.

[20] In the time to the dismissal on 4 December 2017, the Fair Work Ombudsman had also, on 29 November 2017, contacted the respondent in relation to the non-payment of wages to the applicant; and the applicant himself made representations to Mr Manser on 1 December 2017.

Whether the person was notified of that reason

[21] There is no evidence the applicant was notified of a reason for the dismissal that was effected on 4 December 2017 as a summary dismissal, that is without a period of notice or a payment in lieu of notice.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[22] There was no evidence the applicant was given an opportunity to respond to any capacity-related or conduct-related reason (if any) for the dismissal.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[23] There was no evidence of any discussions relating to the dismissal and, hence, of allowing the assistance of a support person.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[24] There was no evidence the dismissal related to unsatisfactory performance (if any) or as to any prior warnings.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/ 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

[25] There was no evidence as to the size of the respondent’s enterprise and as to the likely impact of its size on the procedures followed in effecting the dismissal; and nor was there any evidence as to human resources personnel and the like.

Any other matters that the Commission considers relevant

[26] On the state of the evidence before me comprising only the applicant’s own evidence, it is difficult to have a properly-developed view of what occurred, from the respondent’s perspective, in relation to the dismissal. However, it seems to be that the applicant was, reasonably and understandably, concerned about non-payment of wages. The applicant’s concerns about this matter were exacerbated by, the applicant’s evidence indicated, the failure of the respondent to respond to his attempts to contact him about this matter.

[27] It seems that in connection with this that the applicant determined to request a “termination of employment certificate” because he could not otherwise apply for assistance from Centrelink. But the applicant then followed-up almost immediately, with a further email within minutes, noting that he had informed the contractor he would not work for the respondent for no pay; in that same email, the applicant asked that the respondent “resolve my pay as soon as possible as I am now desperate to pay bills etc”. The actual mechanism by which the dismissal was then conveyed/effected is somewhat unclear; but, as I have noted, it appears to be common ground that the dismissal was effected at the initiative of the respondent on 4 December 2017. It was also, apparently, a summary dismissal, given that the applicant is separately (from this application) claiming non-payment of two weeks’ pay with respect to notice (among other payment-related issues).

Compensation

[28] On what is available before me, I am satisfied the applicant was unfairly dismissed; the dismissal was harsh, unjust and unreasonable – and integrally interwoven with issues about non-payment of wages. Reinstatement was not sought, and I am satisfied that reinstatement of the applicant would be inappropriate given the issues of non-payment of wages and the like. I consider an order for payment of compensation, in lieu of reinstatement, is appropriate in all the circumstances of the case.

[29] In determining an amount for the purposes of an order for compensation, the Commission must take into account all the circumstances of the case, including the statute-specified matters considered in the context of Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 (“Sprigg”) and the more recent iterations of the principles and considerations arising from such matters. Here, I have not had anything to contradict the submissions for the applicant that compensation should be ordered in the amount to compensate the applicant in the amount of $16,800 gross - the amount which was submitted as appropriately constituting approximately 12 weeks of lost remuneration between the dismissal and the commencement of the new employment. I take notice also of when the dismissal took effect, that is, not long-out from the Christmas/New Year period.

The effect of the order on the viability of the employer’s enterprise

[30] An employer is bound to present evidence and/or argument as to the financial situation of the business and the likely effect that an order for compensation will have on the viability of the business for this criterion to be engaged. Here, however, there was no evidence as what effect, if any, a compensation order would have on the viability of the respondent’s enterprise. Thereby, there is nothing before me to properly consider any such effect or consider it at all.

The length of the person’s service with the employer

[31] The applicant’s length of service was the period from July 2016 to 4 December 2017, or approaching approximately one-and-a-half years.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[32] Consideration of this criterion and the application of Sprigg-type principles, in the usual way, is problematic in this particular case. That is, based on the evidence, I have no confidence that the applicant would have been paid properly or in a timely way, or paid at all, if he had not been dismissed; even on termination of employment, it appears that payment of some wages remained outstanding. The remuneration the applicant would have received, or would have been likely to receive - assuming the respondent paid wages, as it was properly obliged to do - would have been at a rate of the weekly divisor of an annual salary of $72,800 gross, plus payment for overtime as may have been worked; superannuation contributions would have been an additional component. The evidence before me, such as it was, suggests that the applicant’s employment would have continued indefinitely into the future for so long as the respondent needed an employee to undertake the work of the type performed by the applicant. However, the dismissal arose against the background of the applicant asserting his entitlement to payment of wages, and the applicant’s comment to the contractor.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[33] It appears the applicant found alternative employment reasonably quickly once he started looking for alternative employment but, it appears, did not immediately endeavour to seek to mitigate his loss by contemporaneously taking-up employment for the reason that he already had a pre-arranged holiday and was, thereby, already scheduled to be overseas for a period of time when the dismissal was effected (without, I note in passing, payment of outstanding annual leave accruals). The applicant commenced in his new job in late-February or early-March 2018. Given the exigency of the overseas holiday that was pre-arranged prior to the dismissal, I am satisfied the applicant took reasonable steps to mitigate his losses by seeking and obtaining alternative employment reasonably quickly and then commencing in that employment. Nonetheless, the applicant did not immediately commence the process of finding and commencing that new employment due to what had been pre-arranged in terms of overseas travel before his dismissal by the respondent.

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/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

[34] To the date of the hearing, the applicant had earned approximately $11,000 in the several weeks prior to the hearing and, it appears, would be likely to have continued to receive equivalent amounts in his ongoing employment with his new employer.

Any other matter that the Commission considers relevant

[35] The amount of compensation has to be considered in the context of the statutory criteria and the authorities. In this regard, I note the comments in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Allan Humphries [2016] FWCFB 7206 at [16] (which was cited with approval in Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Nurcombe [2017] FWCFB 429 at [42]):

“[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (footnotes omitted; my underlining)

[36] While I have considered the statutory criteria and the principles discussed in the authorities, I also note there are some atypical aspects to this case which do not, for the reasons to which I referred earlier, lend themselves to, or indeed reasonably allow, the strict application of the usual formulations and considerations concerning compensation orders. The timing of the year also meant the applicant lost the benefit of payment for the cluster of public holidays over the Christmas/New Year period.

[37] Against the background of what was before me and again noting the absence of any material from the respondent concerning matters which usually arise, and having regard to what I consider was an unfair dismissal of an employee stemming, root and branch, from issues integrally related to non-payment of wages, I have determined in the exercise of discretion, having regard to the circumstances as to what is before me, and a consideration of the statutory criteria and authorities, that the applicant should have a compensation order in a rounded amount of $12,000 as an unfair dismissal remedy. Were it not for my mitigation-related reservations, resulting from the overseas trip (albeit a pre-arranged one), I would have given consideration to making an order in the proposed amount of $16,800.

[38] In determining that an amount of $12,000 for a compensation order is appropriate having regard to all the circumstances of the case, there is no cause to reduce the amount on account of misconduct and the amount does not contain any component for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal. It is not misconduct for an employee to comment to a contractor words to the effect that he would not work for the respondent without being paid. Further, and for the avoidance of doubt, the compensation amount does not contain (and nor could it) any component designed to address any aspect of the applicant’s underpayment allegations.

Conclusion

[39] Given my conclusions, an order issues in conjunction with this decision that the respondent pay to the applicant an amount of $12,000 within 21 days.

[40] The proceedings are concluded.

COMMISSIONER

Appearances:

J Peñafiel, solicitor, for the applicant.

Hearing details:

2018.

Sydney:

April 30.

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