Amanda Page v Wedderburn Petroleum Pty Ltd T/A Wedderburn Petroleum Caltex Tasco

[2014] FWC 2595

[2014] FWC 2595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Page
v
Wedderburn Petroleum Pty Ltd T/A Wedderburn Petroleum Caltex Tasco
(U2013/15111)

COMMISSIONER RYAN MELBOURNE, 16 APRIL 2014

Application for relief from unfair dismissal.

[1] The Applicant, Ms Amanda Page filed an application for an Unfair Dismissal Remedy against Wedderburn Petroleum P/L on 21 October 2013 in relation to her dismissal from employment on 8 October 2013. The application was dealt with at a telephone hearing on 3 April 2014.

[2] The Respondent Wedderburn Petroleum P/L operated an automotive fuel retail outlet and roadhouse at Wedderburn under the Caltex brand name.

[3] The Applicant had been employed as a Console Operator since February 2011 and in about June 2013 the Applicant was asked to take over as Manager of the site. The Applicant employed additional staff, increased the trading hours of the site and improved both the quality and the sales of the take away food at the site.

[4] On or about 7 October 2013 Mr John Shaw, SHE Manager of TASCO Petroleum, the fuel distributor, attended the Wedderburn site and placed locks on all of the fuel bowsers to prevent the sale of fuel. The justification for this action was that the Respondent had not paid the distributor for fuel for some time. An email from Mr Shaw to the Applicant on 10 February 2014 in response to a request from the Applicant for information about the reasons for the closure of the site on 7 October 2013 was as follows:

“Amanda, for legal reasons we cannot comment on statements made. However I can pass onto you a comment by our Director:

“I can say that Tasco termination notice was first issued on September 3 (with 30 days notice)

The Notice was issued due to failure to remit monies owing to Tasco over a lengthy period of time.”

I hope this helps

Regards

John Shaw”

[5] On or about 8 October 2013 the previous Manager of the site, Ms Lorraine Grossers, telephoned the Applicant and advised the Applicant that Mr Craig Dunn the owner of the Respondent had contacted her (Ms Grossers) asking her to contact all employees and to have the employees return all keys for the site to Ms Grosser by 5pm on that day.

[6] The Applicant contacted Mr Craig Dunn asking what was going on as she was the Manager at the time. Mr Dunn advised the Applicant that the site would be closed but that he (Mr Dunn) was working on reopening the site and that he hoped it would be very soon.

[7] Mr John Shaw also contacted Ms Grosser advising that if the weeks takings for the site were paid into the Tasco bank account then the locks would be removed and the site could continue trading. Mr Shaw also asked Ms Grosser to arrange for a stock take to be done.

[8] The Applicant assisted in the stocktake and as soon as that was finished the Applicant was advised that there would be no further work for her until further notice.

[9] The Applicant stated that Mr Craig Dunn refused to allow the takings of the site to be paid into the Tasco account. The Applicant further stated that up to and including the day the site closed all pay slips and daily reports were being faxed to the office of Mr Stephen Prior and with all money being banked into the Commonwealth Bank account of Mr Stephen Prior. Mr Prior was the sole Director and Company Secretary of Wedderburn Petroleum P/L from March 2005 until 19 September 2013 when Mr Craig Dunn became the sole Director and Company Secretary.

[10] The site did reopen but with new owners.

[11] Since speaking to Mr Craig Dunn on the last day of work, 8 October 2013, the Applicant has not had contact with Mr Dunn or anyone else representing the Respondent.

[12] The Applicant was not formally advised that her employment had been terminated but it is clear from the actions of the Respondent that the employment relationship between the Respondent and the Applicant was effectively terminated by the Respondent on 8 October 2013.

[13] Since the Applicant’s application was received by the Commission every attempt to contact Mr Craig Dunn has proven fruitless. Even a hand delivered letter from the Commission to Mr Dunn’s residential address directing him to contact my Chambers failed to elicit any response from Mr Dunn.

[14] Service of all material on the Respondent has been to the registered address of the Respondent which is care of Mr Stephen Prior. Contact with Mr Stephen Prior established that all material served on the Respondent at its registered business address was given to Mr Craig Dunn.

[15] At no time has the Respondent sought to defend the application made by the Applicant nor has the Respondent taken the opportunity provided to it to attend proceedings in relation to this application.

[16] Part of the material filed by the Applicant was a media release from the Fair Work Ombudsman dated 18 February 2014 identifying that the Fair Work Ombudsman had commenced legal proceedings in the Federal Circuit Court against the Respondent for underpayment of $47,258.00 of wages to two console operators.

[17] Having regard to the requirements of s.396 I decide as follows:

• the application in this matter was made within the period required in s.394(2), and,



• the Applicant is a person protected from unfair dismissal, and,



• the dismissal was not consistent with the Small Business Fair Dismissal Code, and,



• the dismissal was not a case of a genuine redundancy given that the Respondent did not comply with the obligation in clause 8 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010.

[18] Having regard to the provisions of s.387 of the Act I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable. I have taken into account each of the relevant criteria set out in s.387. Each of the criteria in s.387 (a), (b), (c), (d) and (e) are not relevant in the present matter. The criteria in s.387(f) and (g) would appear to have neutral value in considering whether the dismissal was or was not harsh, unjust or unreasonable. The criteria in s.387(h) is relevant. I consider the manner in which the Respondent disposed of the services of the Applicant and the callous manner in which the Respondent dealt with the Applicant including the refusal of the Respondent to engage with the Applicant in any form of consultation over the demise of the business and the employment of the Applicant to be relevant matters which support a finding that the dismissal is harsh, unjust or unreasonable.

[19] I have considered the provisions of s.390, 391 and 392 and determine that it is appropriate that an unfair dismissal remedy be ordered in this matter. Reinstatement is not an appropriate remedy but compensation is an appropriate remedy.

[20] I have considered all of the circumstances of this matter including each of the criteria in s.392 and I determine that an amount of compensation of $5000.00 is appropriate.

[21] I note that nothing has been put to the Commission that an order for compensation would have an effect on the viability of the employer’s enterprise. I have taken into account the Applicant’s length of service but this factor does not in my view require any increase or decrease in the amount of compensation that should be ordered. I have taken into account the likelihood that the Applicant’s employment may not have continued long after 8 October 2013 even if the Applicant had not been effectively dismissed on that day. Therefore it is reasonably clear that the Applicant would not have received much by way of remuneration if she had not been dismissed when she was. I accept that the Applicant’s employability is extremely limited. The Applicant identified that she had a pre-existing injury which limited her capacity to work and that she was very grateful when employed as a console operator as the work performed for the Respondent was within the limitations imposed by her injury. I accept that the Applicant has not found work in Wedderburn since her dismissal both because of her pre-existing injury and because of the real lack of available work in the small country town of Wedderburn. I have considered the conduct of the Respondent in effecting the dismissal as a matter directly relevant to the calculation of compensation. I have also considered the impact that loss of employment has had on the Applicant. The amount of compensation does not include any component prohibited by s.392(4). The amount of compensation does not need to be reduced for misconduct of the Applicant as such did not occur. The amount of compensation is less than the compensation cap set by s.392(5) and (6).

[22] The Applicant contended that she had not been paid for overtime worked and that she had not been paid the correct penalties or loadings for weekend work. These allegations are not relevant to the Commission’s consideration of an amount of compensation for unfair dismissal and I have specifically ignored these matters when calculating an amount of compensation.

[23] An order to give effect to this decision will be issued requiring payment within 14 days.

COMMISSIONER

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