Bingquan Li v A & C Restaurant Pty Ltd (ABN: 49144964956) T/A Chatswood Kam Fook Restaurant

[2016] FWC 6500

[2016] FWC 6500

FAIR WORK COMMISSION

DECISION

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

Bingquan Li
v
A & C Restaurant Pty Ltd (ABN: 49144964956) T/A Chatswood Kam Fook Restaurant
(U2016/5424)

COMMISSIONER CAMBRIDGE SYDNEY, 21 SEPTEMBER 2016

Application for relief from unfair dismissal - sale of business redundancy - significant procedural deficiencies - dismissal unreasonable - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made under s. 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 16 March 2016, and it was made by Bingquan Li (the applicant). The respondent employer was identified as A & C Restaurant Pty Ltd (ABN: 49144964956) T/A Chatswood Kam Fook Restaurant (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 29 February 2016. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] This application was one of five related unfair dismissal applications taken against the employer, all of which concerned terminations of employment that occurred at the same time, and in respect of the same circumstances. The five related applications were listed together for two days of Arbitration Hearing/Conference on 8 and 9 August, despite no contact being made with the respondent employer.

[4] Shortly after the five applications were allocated, I arranged for Australian Securities and Investment Commission (ASIC) searches to be undertaken, and current and historical Company records for the employer were obtained. Notices of Listing for the scheduled Hearing were then properly served upon the registered address for the employer.

[5] At the Hearing, each of the applicants appeared and each represented themselves. Each of the applicants provided evidence as a witness called in support of their respective unfair dismissal claim. The employer was granted permission to be represented at the Hearing by Mr J Cameron, a lawyer from the firm of Johninfo Lawyers Pty Ltd. Mr Cameron did not call any witnesses to provide evidence on behalf of the employer, but he did introduce evidence in the form of a copy of a page of a contract for sale of business document. 1

[6] Each of the applicants made submissions in support of their respective unfair dismissal claim. Mr Cameron made submissions on behalf of the employer which acknowledged that the notice of termination of employment provided to each of the applicants was inadequate. Mr Cameron made further submissions about the amount of any compensation that might be provided to the various applicants in the event that their dismissals were found to be unfair.

[7] The Commission made an extempore determination of the applications and advised the Parties that, taking into account the various factors contained in s. 387 of the Act, the Commission was satisfied that the dismissal of each of the applicants was unreasonable and thus unfair. Specifically, the Commission determined that the failure to provide adequate notice of what may have been valid reason for dismissal rendered the dismissal of each of the applicants to be unfair.

[8] The Commission noted the evidence of different circumstances of each of the applicants including length of service and in respect to remuneration received in other employment since the dismissals. Consequently, the Commission decided that further consideration was needed to enable proper determination of the appropriate amount of compensation to be provided to each of the applicants as remedy for their respective unfair dismissal.

[9] This Decision is provided as confirmation of the extempore determination made during proceedings held on 8 August whereby the dismissal of the applicant was found to have been unfair. The subsequent consideration has involved the determination of appropriate remedy.

Remedy

[10] The applicant has not sought reinstatement as remedy for his unfair dismissal. Instead, he has sought remedy in the form of payment of an amount of monetary compensation.

[11] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[12] 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 have been established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 2 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 3.

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

[14] 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.

[15] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.

[16] The applicant had approximately 5 years and 7 months service with the employer. The applicant would have been likely to have received remuneration of approximately $600.00 per week, before tax, if he had not been unfairly dismissed. There was significant prospect that the employment of the applicant would have concluded because of the sale of the employer’s restaurant business.

[17] Following the dismissal, the applicant made efforts to mitigate the loss suffered because of the dismissal. At the time of Hearing, the applicant had not secured any alternative employment.

[18] Thirdly, in this instance there was no misconduct which contributed to the employer's decision to dismiss.

[19] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[20] In respect to the determination of the quantum of compensation to be provided to the applicant, I have had regard for the loss of non-transferable employment credits associated with employment of over five years’ duration. I have also had regard for the notice requirements prescribed by s.117 of the Act as they would apply to a person with the period of continuous service of the applicant.

[21] Consequently, for the reasons outlined above, I have decided that an amount approximating with 8 weeks gross remuneration should be Ordered as compensation to the applicant. That amount is $4,800.00. Accordingly, separate Orders [PR585269] providing for remedy in these terms will be issued.

COMMISSIONER

Mr B Li appeared for himself.

Mr J Cameron, solicitor appeared for the employer.

Hearing details:

2016.

Sydney:

August, 8.

<Price code A, PR585266>

 1   Exhibit 11

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

 3   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