Daniel Marriott-Heath v Rainbow Wholefoods Pty Ltd

[2021] FWC 1676

[2021] FWC 1676

FAIR WORK COMMISSION

DECISION

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

Daniel Marriott-Heath
v
Rainbow Wholefoods Pty Ltd
(U2020/11314)

Catherine Lister
v
Rainbow Wholefoods Pty Ltd
(U2020/11315)

COMMISSIONER CAMBRIDGE SYDNEY, 1 APRIL 2021

Unfair dismissals - employment terminated on the employer’s initiative - no valid reason for dismissals - significant procedure errors and lamentable employment practices - harsh, unjust and unreasonable dismissals - compensation Ordered.

[1] This Decision is made in respect of two applications for unfair dismissal remedy that were taken pursuant to s. 394 of the Fair Work Act 2009 (the Act). The applications were lodged at Sydney on 20 August 2020. The applications were respectively made by Daniel Leigh Marriott-Heath and Catherine Lister (the applicants) and in both matters the respondent employer is Rainbow Wholefoods Pty Ltd ABN: 86 604 881 870 (the employer or Rainbow Wholefoods).

[2] The applications indicated that the date that the applicants’ dismissals took effect was 31 July 2020. Consequently, the applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act. Lawyers acting on behalf of the employer filed Form F3 responses to each of the unfair dismissal applications which identified a jurisdictional objection on the basis that each of the applicants had not been dismissed from employment.

[3] The matters were not resolved at conciliation, and they have proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Lismore on 21 January 2021. At the Hearing, each of the applicants represented themselves, and they each provided evidence as witnesses, and introduced further evidence from one other witness.

[4] Mr J Adams, solicitor, from the firm of John Adams & Associates was granted permission to appear on behalf of the employer. Mr Adams adduced evidence from a total of three witnesses including what may be described as primary evidence for the employer, which was adduced from its two Directors, Mr Anthony Stillone and his wife, Ms Nghi Stillone.

Factual Background

[5] Mr Marriott-Heath had been employed for a period of almost one year and nine months and he worked as a shop assistant. Ms Lister had been employed for a total period of almost 13 years, and from January 2010, she was engaged as one of the joint Managers of the employer’s business operations. The applicants worked at the employer’s retail shop located at 49 Terania Street, North Lismore.

[6] The employer operated a retail health food store at the Terania Street location (the shop) which sold a wide variety of foodstuffs including fresh fruit and vegetables, refrigerated perishables, herbs, seeds, flowers, powders, and other concoctions. The shop had operated successfully for about 20 years.

[7] On 16 July 2020, the employer issued a public notice to its customers which advised that it had made a decision to close the shop. The notice regarding the shop closure was posted on the employer’s Facebook site, and it was also displayed at the front of the shop. The notice that was posted on Facebook mentioned that the shop closure was expected to occur on September 1^st.

[8] The employer’s decision to close the shop arose from a directive issued by the Lismore City Council (the Council) in relation to non-compliance with relevant development approval requirements that were applicable to the shop location. On 26 July 2020, the employer’s Director, Mr Stillone, had been hospitalised when he received further advice regarding the Council’s directive that the shop had to close. At around this time, Mr Stillone received advice from his Agent, Mr Oshlack, that the Council directive could be challenged, and would be found to be invalid, and therefore the shop could remain open.

[9] On or about 27 July 2020, Mr Oshlack went to the shop and spoke with inter alia, Ms Lister about the asserted invalidity of the Council directive and the prospect that the shop could remain open. Although there was considerable conflict about the detail of the conversation that occurred between Mr Oshlack and Ms Lister, it was clear that Ms Lister was not persuaded that there was proper basis for her to alter the publicised closure notice. Further, although she had a joint managerial role, Ms Lister did not believe that she had authority to alter the position that had been publicised by the employer which anticipated the closure of the shop.

[10] On Thursday, 30 July 2020, Mr Marriott-Heath had a text message exchange with Mr Stillone who at that time was still in hospital. Mr Marriott-Heath told Mr Stillone that as part of the preparations for the anticipated closure of the shop he was commencing to take annual leave from the following day, 31 July 2020. The text message exchange between Mr Marriott-Heath and Mr Stillone became disagreeable, and after Mr Marriott-Heath confirmed that he was commencing to take annual leave on the following day, Mr Stillone spoke with his wife and advised her that in the absence of Mr Marriott-Heath, she would need to attend the shop on the following day. The stress associated with the various concerns regarding the operation and pending closure of the shop caused a significant deterioration in the health of Mr Stillone, and his blood pressure rose dramatically such that he had to be sedated whilst still in hospital.

[11] On Friday, 31 July 2020, Ms Stillone became increasingly concerned about the state of her husband’s health. Mr Stillone’s condition had not been assisted by the contact that had been made by Mr Marriott-Heath and the other joint Manager, Mr Gibbs, who had telephoned Mr Stillone and enquired about the termination of employment arrangements that would apply for all employees when the shop closed.

[12] As a result of Ms Stillone’s heightened anxiety regarding her husband’s health, she decided to advise all of the staff that from 6 pm that day, 31 July 2020, the shop would close. Ms Stillone contacted Mr Marriott-Heath by telephone and told him that the shop would close at 6 pm that day and without any indication that the closure was anything other than permanent.

[13] Ms Stillone then went to the shop and advised all other employees that the shop would close at 6 pm that evening. Ms Stillone instructed one of the employees to post a notice on the employer’s Facebook site to provide advice of the shop closure. This Facebook notice included the statement, “We have made the decision to close our store today. We understand this is a great inconvenience but unfortunately Tony’s health is worsening due to stress.” 1

[14] During the time that Ms Stillone attended the shop on the afternoon of 31 July 2020, a heated and disagreeable exchange occurred between her, Ms Lister, and the other joint Manager, Mr Gibbs. It appeared that Ms Stillone felt that the conduct of inter alia, Ms Lister and Mr Gibbs had contributed to the deterioration in her husband’s health, such that she feared for his life. Following the unpleasant exchange between the joint Managers and Ms Stillone, Ms Stallone left the shop, and then Ms Lister prepared letters of dismissal for all of the employees.

[15] At around 6 pm, all of the employees left the shop, and the two joint Managers, Mr Gibbs and Ms Lister, went to the hospital with the letters of dismissal for all staff which had been prepared by Ms Lister and which required signing by Ms Stillone. However, Ms Stillone was not at the hospital. Mr Gibbs telephoned Ms Stillone and she advised him that she had returned to the shop. Mr Gibbs and Ms Lister then drove back to the shop and presented the letters of dismissal to Ms Stillone for signing. Ms Stillone was at the shop with her children at this point and she refused to sign the letters of dismissal. Mr Gibbs and Ms Lister then left the shop premises.

[16] At around 7:15 pm, Ms Stillone sent a text message to Mr Gibbs and Ms Lister requesting that they meet her at the shop at 3 pm the following afternoon (Saturday, 1 August). Mr Gibbs and Ms Lister discussed the events that occurred during the day and they decided that they would have no further contact with Ms Stillone. Mr Gibbs sent a response text message to Ms Stillone which indicated that he was not interested in meeting with Ms Stillone at the shop at 3 pm the next day because, as he stated, “You just sacked me I’m a dumb arse.” 2 Consequently, neither Mr Gibbs nor Ms Lister attended the shop the next day (Saturday) as had been requested in the text message from Ms Stillone.

[17] On the following Monday, 3 August 2020, both Mr Marriott-Heath and Ms Lister noticed that the shop had reopened. The employer’s Facebook page contained a message that was posted on 3 August 2020, which included mention that, “… the shop is closing down but we are trying to stay open as long as possible. … hope to see you in the store while we are open.” 3 On and from 3 August 2020, (until 8 January 2021), the shop was being operated by some of the staff who were working at the shop on the preceding Friday, 31 July, and they were initially assisted by other volunteer workers, and subsequently new employees were also engaged. There was no further contact made between the employer and either Mr Marriott-Heath or Ms Lister.

[18] On 20 August 2020, the applicants filed their unfair dismissal claims, and at no subsequent point in time, up to and including the Hearing held on 21 January 2021, has the employer provided any documentation or payment in respect to the finalisation of the employment of the applicants, other than an unexplained payment of $724.00 that was made to Mr Marriott-Heath.

[19] Since the terminations of their employment, both applicants have unsuccessfully sought to obtain alternative employment. The applicants have not sought reinstatement as remedy for their alleged unfair dismissals, but alternatively, monetary compensation, which the applicants have mistakenly believed would include payment in respect of notice and accrued entitlements due upon termination.

The Case for the Applicants

[20] Both of the applicants made brief oral submissions during the Hearing.

[21] Mr Marriott-Heath stated that he had worked at Rainbow Wholefoods for about 20 months, and on 31 July 2020, he received a phone call from Ms Stillone at about 4 pm. According to Mr Marriott-Heath, during this phone call, Ms Stillone told him not to come back in to work at the shop as the shop was shutting from then. Mr Marriott-Heath said that after the phone call on 31 July, he received no further contact from Ms Stillone or any other representative of the employer.

[22] Mr Marriott-Heath stressed that he had received no phone calls, text messages or other contact from the employer requesting that he return to the shop either on Saturday, 1 August, or at any other subsequent time. Mr Marriott-Heath challenged the veracity of the evidence that had been provided by Ms Stillone, and he sought payment in respect of his notice and accumulated annual leave which he had calculated to amount to a total of $7,146.66.

[23] Ms Lister stated that she had been working for Rainbow Wholefoods for more than 10 years and there had been no reason, or performance issue raised about her work when on 31 July 2020, she was sacked by Ms Stillone. Ms Lister asserted that Ms Stillone had asked her not to come back to work at the shop anymore, and she did not get a letter of termination or a separation certificate. Ms Lister said that her dismissal was harsh, unreasonable, and unjust.

[24] Ms Lister stated that she had not been paid for the last three days of her employment nor had she received five weeks’ notice of termination or any of her accrued employment entitlements. According to the submissions made by Ms Lister, her last three days of pay amounted to $648.00, five weeks’ notice of termination was $5,400.00, payment in respect to long service leave was $8,640.00 and her accrued annual leave entitlement amounted to $33,890.40.

[25] In further oral submissions, Ms Lister stated that she wanted to clarify that the applicants had no motive to sack themselves, and that she and the others needed their jobs. Ms Lister submitted that she rejected the text message invitation from Ms Stillone to return to the shop on Saturday, 1 August, because she was scared that she would be yelled at and scolded again.

The Case for the Employer

[26] Mr Adams filed an outline of submissions document on behalf of the employer, and he supplemented this material with further oral submissions during the Hearing. The employer submitted that there was not sufficient admissible evidence for the Commission to find that the applicants were dismissed by the employer.

[27] The submissions that were made on behalf of the employer rejected the evidence of Ms Lister regarding her alleged dismissal by Ms Stillone on 31 August 2020. The employer submitted that there was no evidence to support the proposition made by Ms Lister, that Ms Stillone had “on the spot sacked every one of us” or that she had instructed that letters of dismissal should be typed up.

[28] In respect to the position of Mr Marriott-Heath, the employer submitted that Ms Stillone denied telling him that the shop would not be opening anymore. It was further submitted that the purported dismissals were either the result of a misunderstanding or arose from other motives on the part of the applicants and Mr Gibb[sic].

[29] According to the submissions made by Mr Adams, the employer maintained that the applicants were not dismissed at all. Mr Adams referred to evidence provided by Ms Stillone that she did not say what she was alleged to have said by the applicants. Mr Adams said that the shop was closing on the 31^st because Ms Lister insisted on it, or alternatively, because Ms Stillone’s husband was dangerously ill, Ms Stillone needed everything to stop, and she just wanted the shop to close down that night and then wanted to talk to the applicants the next day, but they refused to respond.

[30] Mr Adams said that there had never been any allegation that the employer refused to pay entitlements. Mr Adams said that if the applicants had gone to Mr Stillone and discussed the matter, their entitlements would have been paid but instead, they came to the Commission.

[31] Mr Adams further submitted that the applicants would have been invited back to the shop when it opened again on the Monday if they had answered their phones. Mr Adams also submitted that the applicants may well have been planning to be dismissed by drafting up their own letters of dismissal and trying to get the employer to sign it when he was on death’s door.

[32] In any event, according to the submissions made by Mr Adams, as far as Ms Stillone was concerned, it was a temporary closure until her husband was released from hospital, and there was no dismissal. Mr Adams further acknowledged that the employer had made no submissions which addressed the issue of any unfairness, but it instead maintained that the applicants had not been dismissed.

Consideration

[33] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(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.”

No Dismissals Issue

[34] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicants were each a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of both fact and law. Further, section 386 of the Act prescribes a meaning of “dismissed”. Relevantly, sub-section 386 (1) of the Act is in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[35] In this instance neither of the applicants provided written or verbal resignations but instead they each treated the words and actions of Ms Stillone on the afternoon and evening of 31 July 2020, as their respective dismissals. Consequently, the evidence of the events of 31 July 2020, have required careful examination in order to determine whether the words and actions of Ms Stillone in respect of each of the applicants, could properly represent their respective terminations of employment on the employer’s initiative.

[36] The circumstances of each of the applicants were slightly different. Mr Marriott-Heath was not at work on 31 July 2020, and his interaction with Ms Stillone on that day was essentially confined to the telephone call which he said occurred at about 4 pm. Ms Lister was at the shop on the afternoon of 31 July 2020, when Ms Stillone attended the premises and instructed that the shop would shut from 6 pm that evening. Ms Lister was also involved in further direct personal interactions with Ms Stillone after the shop was shut, and when she and Mr Gibbs returned and unsuccessfully attempted to have the letters of dismissal signed by Ms Stillone. In addition, unlike Mr Marriott-Heath, Ms Lister received a text message invitation to return to the shop at 3 pm the next day, Saturday, 1 August, and meet with Ms Stillone.

[37] There were a variety of aspects of contested evidence regarding the events of 31 July 2020, as they related to the actions and words spoken by Ms Stillone. For instance, Ms Stillone testified that she could not recall having any telephone conversation with Mr Marriott-Heath on 31 July 2020. However, Mr Marriott-Heath provided succinct, consistent, and believable recollections of the telephone conversation during which Ms Stillone advised that the shop would shut from 6 pm that day. The Facebook message that was posted on 31 July 2020 4, has provided compelling support for the version of the telephone conversation as deposed by Mr Marriott-Heath.

[38] Upon careful consideration of the totality of the evidence given by all witnesses and having had the benefit of observing these individuals during the Hearing, the Commission has adopted a preference for the evidence provided by the applicants wherever that differed from the testimony given by Ms Stillone. Unfortunately, the evidence provided by Ms Stillone appeared to suffer as a result of her propensity to on occasions, become excited and somewhat anxious.

[39] It was clear that Ms Stillone was in a state of high excitement and anxiety on 31 July 2020. She was understandably very concerned about her husband’s health. However, the level of anxiety that Ms Stillone was experiencing on 31 July 2020, caused her to make a series of unfortunate and perhaps irrational decisions. The evidence clearly established that Ms Stillone had decided to shut up shop at 6 pm on 31 July 2020, and although she subsequently suggested that the shop closure was only for a few days until her husband came out of hospital, there was no suggestion of any qualification of this nature at the time. On 31 July 2020, all employees and customers would have understood from the actions and words of Ms Stillone, and the accompanying information provided on the employers Facebook page, that the shop had shut earlier than had previously been anticipated, 1 September, and that it had shut permanently.

[40] It appeared that after a short period of reflection and by about 7:13 pm, Ms Stillone had reconsidered her decision to shut the shop, and she unsuccessfully endeavoured to invite Ms Lister and Mr Gibbs to meet with her at 3 pm on the following day at the shop. Given the evidence of the nature and extent of the disagreeable conversations that occurred between Ms Stillone and Ms Lister on the afternoon and evening of 31 July 2020, it was understandable and reasonable for Ms Lister to feel that there was no capacity for any restoration of the employment relationship at that time.

[41] In the case of Mr Marriott-Heath, there was simply no attempt by the employer to pursue the restoration of the employment relationship. Further, in the week commencing 3 August 2020, it was clear to the employer that the applicants, (and Mr Gibbs), were treating the circumstances of 31 July 2020, and the actions and words of Ms Stillone, as their dismissals from employment. However, unfortunately, the employer made no further attempts to restore the employment relationships that had been severed on 31 July 2020. There would seem to have been some prospect for reconciliation with Mr Marriott-Heath and perhaps Ms Lister, but regrettably it appeared that there was little motivation from any of the Parties for any appeasement of the damage that was done on 31 July 2020.

[42] Consequently, the evidence has established that the applicants were dismissed on 31 July 2020. The words and actions of Ms Stillone on that day represented the termination of each of the applicant’s employment on the employer’s initiative, and in satisfaction of the meaning of dismissed contained in subsection 386 (1) (a) of the Act. Therefore, as there was no suggestion that the dismissals of the applicants were consistent with the Small Business Fair Dismissal Code, or that the dismissals involved redundancy circumstances, the matters must logically proceed to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissals of the applicants were harsh, unjust or unreasonable.

Harsh, Unjust or Unreasonable

[43] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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); and

(b) whether the person was notified of that reason; and

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

(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; and

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

(f) 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

(g) 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; and

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

S. 387 (a) - Valid Reason for the Dismissals Related to Capacity or Conduct

[44] The evidence did not disclose any clearly articulated reason for the dismissals of the applicants. The dismissals of the applicant arose from the overexcited and anxious concern that Ms Stillone had for her husband’s health, the deterioration of which she had irrationally and capriciously attributed to, inter alia, the applicants. Therefore, the reasons for the dismissals of the applicants were not sound, defensible, or well-founded.

[45] Consequently, there was no valid reason for the dismissals of the applicants.

S. 387 (b) - Notification of Reason for Dismissal

[46] The employer did not provide notification of the dismissals of the applicants.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[47] The applicants were not provided with an opportunity to respond to the precipitous and irrational actions of Ms Stillone on the afternoon and evening of 31 July 2020.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[48] There was no unreasonable refusal to allow the applicants to have the assistance of support persons during the discussions related to the dismissals, because there were no such discussions.

S. 387 (e) - Warning about Unsatisfactory Performance

[49] The applicants were not dismissed for unsatisfactory performance and this factor is not relevant.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[50] The employer is a small business operation and therefore the Commission has provided accommodation for the adoption of unsophisticated and informal procedures in respect to employment related matters.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[51] The employer had no dedicated human resource management specialists and therefore the Commission has provided accommodation for the adoption of unsophisticated and informal procedures in respect to employment related matters.

S. 387 (h) - Other Relevant Matters

[52] Although there may have been some conjecture about whether the applicants had been dismissed on 31 July 2020, very disturbing evidence was provided at the Hearing which revealed that the employer had taken no steps to make payment to the applicants of their entitlements that were due upon termination. The failure to pay accrued employment entitlements at the time of termination of employment or shortly thereafter, would potentially introduce an unlawful element to the termination of employment even if the circumstances did not involve dismissal from employment.

[53] Consequently, in circumstances where the employer has had the benefit of legal advice from an early stage of the proceedings, it was very troubling for there to have been no attempt by the employer to make payments of accumulated employment entitlements which the employer recognised were owed to the applicants even if it was subsequently established that the terminations of the applicants’ employment were not on the employer’s initiative. The overall consideration of the totality of the evidence has presented a disturbing, lamentable, and generally substandard approach taken by the employer in respect to employment practices.

[54] It appeared that the applicants mistakenly believed that the unpaid employment entitlements which they are owed could be recovered as part of the outcome of these unfair dismissal claims. It would not be proper for the Commission to indicate any potential alternative means for pursuit of the unpaid entitlements that may be available to the applicants.

Conclusion

[55] The determination of these unfair dismissal claims has firstly focused upon an examination of the evidence concerning whether the applicants were dismissed from their employment. A careful analysis of all of the evidence surrounding the circumstances of 31 July 2020, in particular the words and actions of Ms Stillone on the afternoon and evening of that day, has confirmed that each of the applicants’ employment was terminated on the employer’s initiative. The applicants were dismissed in satisfaction of the meaning of dismissed found in subsection 386 (1) (a) of the Act.

[56] As a result of the finding that each of the applicants was dismissed from their employment on 31 July 2020, and as there were no other jurisdictional impediments to the applications, the Commission has proceeded to determine whether the dismissals of the applicants were harsh, unjust or unreasonable. The circumstances surrounding the dismissals of the applicants have been assessed taking into account the criteria contained in s. 387 of the Act.

[57] The Commission has determined that there was no valid reason for the dismissals of either of the applicants that related to their capacity or conduct. Further, the Commission has identified that various aspects of the dismissals of the applicants involved defective procedure, and the failure to pay due entitlements within a reasonable time following the terminations of employment, has potentially provided an unlawful element to the terminations of the employment of the applicants.

[58] Upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissals of the applicants were harsh, unjust and unreasonable. Therefore, the applicants’ claims for unfair dismissal remedy have been established.

Remedy

[59] The applicants have not sought reinstatement as remedies for their unfair dismissals. In the circumstances, particularly as the employment relationships were irreparably damaged by the events of 31 July 2020, any reinstatements of the applicants would not be appropriate remedies.

[60] The Commission has decided that compensation would be an appropriate remedy for each of the applicants’ unfair dismissals, and consideration has been made of the factors which involve the quantification of any amount of compensation.

[61] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. The Commission has approached the question of compensation having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 5 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 6 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide7; Balaclava Pastoral Co Pty Ltd v Nurcombe;8 and Hanson Construction Materials v Pericich9(Pericich).

[62] Firstly, the Commission confirms that Orders for payment of compensation to the applicants will be made against the respondent employer in lieu of the reinstatements of the applicants.

[63] Secondly, in determining the amount of compensation that is to be Ordered, the Commission has 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.

[64] There was no evidence provided which established that Orders of compensation would impact on the viability of the employer’s enterprise. Indeed, the evidence that was provided by Mr Stillone mentioned that the employer’s new business operation at a warehouse location included engagement of new employees, and provision of $100,000 worth of stock.

[65] The applicants, Mr Marriot-Heath and Ms Lister had been employed for periods of about 20 months and 13 years respectively. Mr Marriott-Heath would have been likely to have received remuneration of approximately $856.40 per week if he had not been dismissed. Ms Lister would have been likely to have received remuneration of approximately $1,360.00 10 per week if she had not been dismissed.

[66] There was evidence which established that the employment of the applicants was likely to conclude in conjunction with the closure of the shop. The shop closure was initially anticipated to take place on 1 September 2020. However the evidence has subsequently established that the shop closed on 8 January 2021. Consequently, the Commission has determined that the employment of the applicants would have, in each case, been likely to have continued up until the shop closure on 8 January 2021.

[67] For the purposes of calculation of remuneration that the applicants would have received or would have been likely to receive if they had not been dismissed, the Commission has considered that the employment of the applicants would have continued until the shop closure on 8 January 2021, which is a period of 23 weeks following the terminations of employment. Therefore, the total remuneration that Mr Marriott-Heath would have received in the notional period of 23 weeks following dismissal amounted to a figure of $19,697.20, and the total remuneration that Ms Lister would have received in the notional period of 23 weeks following dismissal amounted to a figure of $31,280.00.

[68] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0 in both cases. Both applicants were not paid any amount in lieu of notice, nor at the time of Hearing, had they been paid their due entitlements.

[69] Thirdly, in this instance there was no established misconduct of the applicants, and consequently no reduction has been made to the amount of compensation to be provided to the applicants on account of any established misconduct.

[70] Fourthly, the Commission confirms 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 applicants by the manner of the dismissals.

[71] Fifthly, the amounts Ordered do not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[72] Consequently, for the reasons outlined above, taking into account all of the circumstances of these cases, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, the Commission has decided that the amount of compensation to be provided to Mr Marriott-Heath should be a gross figure of $19,697.20, and the amount of compensation to be provided to Ms Lister should be a gross figure of $31,280.00.

[73] Accordingly, separate Orders [PR728232] and [PR728152] providing for unfair dismissal remedies in these terms will be issued.

COMMISSIONER

Appearances:

Mr D Marriott-Heath and Ms C Lister appeared unrepresented.

Mr J Adams, Solicitorfrom John Adams & Associates appeared for the employer.

Hearing details:

2021.
Lismore:
January, 21.

Printed by authority of the Commonwealth Government Printer

<PR728151>

 1   Exhibit 3 - Attachment 9.

 2   Exhibit 7 @ paragraph 16.

 3   Exhibit 3 - Attachment 11.

 4   Exhibit 3 - Attachment 9.

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

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

 7   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 8   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 9   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.

 10   Form F3- Employers response to unfair dismissal application @ paragraph 1.5.