Darren Roche v Tunstall Plant Hire Pty Ltd T/A Tunstall Plant Hire

[2020] FWC 5680

[2020] FWC 5680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Roche
v
Tunstall Plant Hire PTY LTD T/A Tunstall Plant Hire
(U2020/10682)

DEPUTY PRESIDENT MASSON MELBOURNE, 26 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 6 August 2020, Mr Darren Roche (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Tunstall Plant Hire Pty Ltd T/A Tunstall Plant Hire (the Respondent) on 4 August 2020. The matter was subsequently programmed and was heard on 15 October 2020.

[2] In a decision issued on 19 October 2020 1 (the Decision) I found that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. I further found that reinstatement was not appropriate, and that compensation should be awarded. In doing so I determined that 2 weeks’ pay, that being $2,940.00 gross less taxation as required by law, to the Applicant in lieu of reinstatement was appropriate.

[3] The Respondent sought, and I granted, a further opportunity for it to make submissions and file evidentiary material in respect of the impact of an order for compensation of the above-referred amount on the viability of the Respondent’s enterprise (s. 392(2)(a)). Dates for the filing of submissions and materials by the Respondent and Applicant in respect of s. 392(2)(a) consideration was set out in the Decision.

[4] In an email to my chambers on 26 October 2020 the Respondent advised that it did not wish to make any further submissions in respect of s. 392(2)(a). Consequently, I am satisfied that an award of compensation of $2,940.00 gross, less taxation as required by law, will not have an effect on the viability of the Respondent’s enterprise, such that the proposed order for compensation should be reduced or not made.

Conclusion

[5] I am satisfied that the Applicant was protected from unfair dismissal and that the dismissal was unfair.

[6] I have found that reinstatement is inappropriate, but that compensation of the above amount is appropriate in all of the circumstances.

[7] The payment of the required compensation of $2,940.00 gross, less taxation as required by law, is to be made to the Applicant by the Respondent within 14 days of this decision.

[8] An order will be issued with this decision.

DEPUTY PRESIDENT

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 1   [2020] FWC 5417