Alexandra Koromilas v Martand International Pty Ltd (ABN: 99 145 535 324)

[2013] FWC 1053

[2013] FWC 1053

FAIR WORK COMMISSION

EXTEMPORE DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alexandra Koromilas
v
Martand International Pty Ltd (ABN: 99 145 535 324)
(U2012/11159)

COMMISSIONER CAMBRIDGE SYDNEY, 14 FEBRUARY 2013

Unfair dismissal - exparte proceedings - extension of time granted - no valid reason for dismissal - dismissal implemented verbally when employee returned from sick leave - harsh, unreasonable and unjust dismissal – compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 5 July 2012. The application was made by Alexandra Koromilas, (the applicant) and named the respondent employer as Martand International Pty Ltd ABN: 99 145 535 324(the employer).

[2] The application indicated that the date of effect of the applicant’s dismissal was 14 June 2012. Consequently the application was not made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Conciliation of the claim was not attempted and the matter was listed for Extension of time Conference/ Hearing on 14 December 2012. On 14 December 2012 the employer failed to appear and the matter has eventually proceeded to Hearing in respect to the extension of time and if necessary, the substantive matter, for arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney today, 14 February 2013.

[4] The employer has again failed to attend at the scheduled proceedings before the Commission. The Commission has received correspondence dated 12 February 2013 from Jayakumar Vedaranyam, the employers Director. Relevantly this correspondence states: “I have already furnished my written submission and I have nothing else to provide. I request the honourable commissioner to decide based on my submission.”

[5] Consequently the Commission has proceeded to hear the matter ex parte and has accepted and considered the contents of the submission made by the employer and filed on 23 October 2012. The applicant and one other witness provided evidence during the Hearing in support and elaboration of written statements which had been filed. On the basis of this material the Commission has been prepared to determine the application.

[6] Firstly, in respect to the extension of time question the applicant has provided evidence relating to the reason for the application having been made 7 days beyond the 14 day time period. The evidence provided by the applicant has established that she had mistakenly believed that the Fair Work Ombudsman (FWO) was pursuing matters including any claim for unfair dismissal.

[7] The applicant had contacted the FWO very soon after her dismissal. Unfortunately a degree of understandable confusion arose as the applicant did not understand that the FWO and the then Fair Work Australia (FWA) were different entities and that her claim with the FWO did not automatically activate a claim with FWA. As soon as the applicant became aware of the need to make a separate application for an unfair dismissal with FWA she did so.

[8] Consequently I am satisfied that exceptional circumstances exist which provide for an appropriate basis to extend the time of the lodgement of the application and thereby permit the further Hearing and consideration of the substantive claim.

[9] Turning to the substantive matter, the applicant had worked for the employer and a prior related employer for a total period of approximately 2 years and 2 months. The applicant worked as a Sales Manager and she performed tasks associated with the employer’s retail operation. The employer had approximately 30 full-time equivalent employees working at various locations.

[10] From about 23 April 2012 the employer stopped paying the applicant her regular wages. Although the applicant complained about the absence of wage payments she continued to work up until the termination of her employment on 14 June 2012.

[11] The applicant was unwell and absent from work during the period 1 June to 8 June 2012. The applicant provided appropriate medical evidence supporting her absence from work. On 14 June 2012 the applicant attempted to return to work at the employer’s Maroubra store. Upon her return to work the applicant was advised by her line manager, Trevor Louis, that she had been dismissed from her employment because she had been absent on sick leave.

[12] The applicant was not provided with any written confirmation of the termination of her employment nor was she paid outstanding wages and other entitlements.

[13] The unchallenged evidence of the applicant has established that she had been subjected to reprehensible and grossly substandard treatment as an employee. The applicant believed that there was no proper basis for her dismissal. I agree.

[14] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[15] In this case the employer has failed to attend at either of the scheduled dates of Hearing. The employer has relied upon a one-page submission which is reflective of a general disregard for providing even the most basic of standards of conduct as an employer. The employer’s lack of appropriate attention to proceedings before the Commission is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal.

[16] The evidence has not revealed any valid reason for dismissal. The uncontested evidence has established that; (a) the applicant was dismissed, and; (b) the dismissal was harsh, unjust or unreasonable, and; (c) the dismissal was not consistent with the Small Business Fair Dismissal Code if it were to be applicable, and; (d) the dismissal was not a case of genuine redundancy.

Conclusion

[17] The applicant was verbally dismissed by her line manager because she had been absent from work for a short period of sick leave.

[18] Upon any analysis and particularly in the absence of a valid reason for dismissal, the applicant’s dismissal was manifestly harsh, unreasonable and unjust.

[19] The conduct of the employer in respect to the dismissal of the applicant and in regard to these proceedings before the Commission has been highly regrettable. The applicant’s claim for unfair dismissal has been established.

Remedy

[20] The applicant has not sought reinstatement as remedy for her unfair dismissal. Frankly that is not surprising given the conduct of the employer. In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.

[21] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket  1 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 2.

[22] Firstly, I confirm that an Order of payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[23] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act. In particular I mention that there was no evidence of any effect that any Order of compensation would have on the viability of the employer’s enterprise. The applicant had been employed for a period of about 2 years and 2 months and if she had not been dismissed she would have been likely to have received remuneration at or about the level of remuneration at the time of dismissal for a period of at least the equivalent of the length of her employment before dismissal.

[24] I note that the applicant has been able to make efforts to mitigate her loss. I also note that the amount of compensation that I am prepared to provide does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[25] Consequently for the reasons outlined above I have decided that an amount approximating with 26 weeks remuneration at the base weekly rate before dismissal should be Ordered as compensation to the applicant. That amount is $30,000.00. Accordingly a separate Order [PR534108] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

The applicant in person.

Hearing details:

2013.

Sydney:

February, 14.

 1 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 2   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR534109>