Dilsher Singh v Dairy Kosher Catering Pty Ltd T/A Milk n Honey

[2016] FWC 4460

[2016] FWC 4460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dilsher Singh
v
Dairy Kosher Catering Pty Ltd T/A Milk n Honey
(U2016/925)

COMMISSIONER ROE MELBOURNE, 5 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Dilsher Singh was dismissed from his employment with Dairy Kosher Catering Pty Ltd effective from 2 March 2016. He was employed as a chef from 13 August 2015 until 2 March 2016. Mr Dilsher Singh claims his dismissal was unfair. Mr Dilsher Singh was under a Section 457 visa which was sponsored by Dairy Kosher Catering Pty Ltd. Mr Dilsher Singh made his application for unfair dismissal remedy on the same day as the dismissal.

[2] I am satisfied that Mr Dilsher Singh had the minimum employment period of six months. The employer did not appear or provide any evidence or submissions that it was a small business. I am not satisfied that Dairy Kosher Catering Pty Ltd was a small business at the time of Mr Dilsher Singh’s dismissal. I did not consider that Mr Dilsher Singh was in a position to give reliable evidence about the number of employees of the company.

[3] Mr Dilsher Singh gave evidence that on 2 March 2016 he and another employee were called to a meeting with the employer, Mr Shahaf Ohana and told “I sold my business to Ido and new business will not able to sponsor you guys, you finish from this business, you can go home.” 1 There was then some discussion about entitlements and wages which had not been paid. Four days later Mr Dilsher Singh returned to the restaurant to discuss outstanding entitlements. Mr Shahaf Ohana told Mr Dilsher Singh that “I will not pay, if you don’t leave the restaurant within 5 minutes I call police.”2

[4] I am satisfied from the evidence of Mr Dilsher Singh, and the contract of employment provided in particular, 3 that Mr Dilsher Singh was a full time employee.

[5] The other employee who was dismissed at the same time as Mr Dilsher Singh, Mr Gurbinder Singh, gave evidence consistent with that of Mr Dilsher Singh. 4

[6] Evidence was also given by Mr Dilbagh Singh who also worked for the company as a kitchen hand. 5 He says that he stopped working for the company on 19 April 2016 because Mr Shahaf Ohana pushed him to do the work of pizza chef at the same time as his kitchen hand job. He says that he was a witness to the dismissal of Mr Dilsher Singh and Mr Gurbinder Singh on 2 March 2016. Following this he was asked by Mr Shahaf Ohana to take over the job of Mr Dilsher Singh.

[7] Mr Shahaf Ohana did not appear. No other person appeared on behalf of Dairy Kosher Catering Pty Ltd. I am satisfied that the application and notices of listing were sent to the correct address of the company. The company attended a non-compliance hearing on 20 May 2016 before Deputy President Kovacic. The non-compliance hearing occurred after the notice of listing and directions had been sent out on 26 April 2016. Revised directions were advised at the non-compliance hearing and a revised notice of listing was sent on the day of the hearing. I am satisfied that Mr Shahaf Ohana was aware of the hearing.

[8] On 28 June 2016 because no materials had been produced by Mr Shahaf Ohana consistent with the directions agreed at the non-compliance hearing, my Associate sent an email to Mr Shahaf Ohana reminding him that he should provide materials prior to the hearing and that “the matter will be determined on the basis of the evidence and submissions before the Commissioner at the time of the hearing.” 6

[9] I am satisfied that my decision to proceed to hear and determine the case on the basis of the material before me at the hearing is procedurally fair.

[10] For the dismissal to be a genuine redundancy the three conditions set out in Section 389 need to be satisfied:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.


(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[11] The sale of the business can in some circumstances provide a valid reason for termination. Where the sale of the business involves restructuring redundancies may occur. In other cases where the business continues after the sale employment will continue after a transmission of business. The sale of a business or the impending sale of a business will in some cases mean changes in operational requirements are required whilst in other cases there will be no requirement for changes to operational requirements.

[12] Mr Dilsher Singh gave evidence that he believed that Mr Shahaf Ohana was still involved in the business. It is not necessary to determine this matter. I accept the evidence of Mr Dilbagh Singh that he was asked by Mr Shahaf Ohana to perform the work of Mr Dilsher Singh. The business still needed a cook. I am not satisfied that the work of Mr Dilsher Singh was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[13] I am satisfied that the employment of Mr Dilsher Singh was not covered by an enterprise agreement but was covered by the Restaurant Industry Award 2010 (the Award). The Award is referred to in the employment contract. The Award includes a consultation provision. I accept the evidence of Mr Dilsher Singh that there was no consultation about the decision to terminate his employment.

[14] I am satisfied that the proposed redundancy of Mr Dilsher Singh was a significant change which had a significant effect on employees and which meets the definition in clause 8.1(a) of the Award. I am also satisfied, and it is not contested, that Mr Dilsher Singh had no meaningful opportunity to influence the decision maker. There have been many decisions of the Commission which have found that the consultation provision is not met unless there is a meaningful opportunity to influence the decision maker. There was no opportunity for Mr Dilsher Singh to discuss measures to avert or mitigate the adverse effects of the proposed change and there was no consideration by the employer of any matters raised. I am also not satisfied that Mr Dilsher Singh received written advice about the nature of the changes. It is obvious that if an opportunity had been provided Mr Dilsher Singh would have questioned the rationale for the redundancy and the selection process for the redundancy in particular.

[15] I am therefore not satisfied that the dismissal was a genuine redundancy. Section 389 of the Act 7 is not met because:

• I am not satisfied that the work of Mr Dilsher Singh was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and



• The consultation provisions of the Restaurant Industry Award 2010 have not been complied with.

[16] It is not necessary to deal with the issue of redeployment.

Was the dismissal unfair?

[17] In deciding whether or not the dismissal was unfair I am required to consider the following:

“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.”

[18] I am not satisfied that there were any issues relating to conduct or performance which led to the dismissal. I am satisfied that there was no valid reason for the termination related to conduct or performance. There is no valid reason for the termination (Section 387(a)).

[19] Mr Dilsher Singh was not dismissed because of conduct or performance. Section 387(a), (b), (c) and (e) are therefore not relevant.

[20] Mr Dilsher Singh was not refused a support person. Section 387(d) is a neutral factor.

[21] There is no evidence that the size of the business influenced the procedures utilised for the dismissal. The company did not have specialised human resources employees but I am not satisfied, based on the evidence before me, that this influenced the procedures adopted. Sections 387(f) and (g) are neutral factors.

[22] The relevant other factors (Section 387(h)) are:

• There is a suggestion that the dismissal may have been due to the sale of the business. However, the business continued trading for some time after the dismissal. For the reasons discussed earlier I am not satisfied that it was a genuine redundancy.



• Mr Dilsher Singh was on a 457 visa. The withdrawal of his sponsorship creates much greater hardship than a dismissal in the ordinary course. Mr Dilsher Singh does not have access to the same social security benefits as other employees. Mr Dilsher Singh faces the risk of deportation if he fails to find another sponsor. A dismissal in these circumstances is particularly harsh.

[23] Taking all of the factors into consideration I am satisfied that the dismissal was unfair because it was both harsh and unjust.

Remedy

[24] Mr Dilsher Singh does not seek reinstatement. He gave evidence that he does not have any confidence that he would be paid if he returned to work. I accept that reinstatement is inappropriate in these circumstances.

[25] Mr Dilsher Singh seeks compensation. He also seeks restitution for underpayment of wages. It is not within my power to make an order to rectify an underpayment as part of an unfair dismissal remedy. That is a matter which can be pursued elsewhere. I am also not permitted to include an amount of compensation for shock, distress or humiliation caused by the manner of the dismissal (Section 392(4)). I have not included any such amount.

[26] I consider it appropriate to make an order for compensation. Given the low income of Mr Dilsher Singh any compensation I might order will not exceed the compensation cap of half the high income threshold.

[27] I am required to consider the following matters in determining compensation (Section 392(2)):

“Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”

[28] There was no submission that any order would impact the viability of the enterprise.

[29] There is no allegation or finding of misconduct and no basis for any deduction for that reason.

[30] The period of service of seven months is relatively short. Short periods of service are relatively common in the industry. However, the short period of employment must be taken into account.

[31] Notwithstanding the relatively short period of employment, I consider that had the dismissal not occurred Mr Dilsher Singh would have remained in employment for the period of his 457 visa sponsorship, that is, a period until 26 August 2019. There is no reason why the sale of the business would necessarily have affected his employment for this period. Having been accepted for the 457 visa it can be assumed that Mr Dilsher Singh was a qualified cook. The visa would not have been granted unless he was qualified in an area designated by the Government to be a skill shortage area. The business, regardless of ownership, would continue to need these skills if it continued to trade. Mr Dilsher Singh needed to remain with his employer in order to remain in Australia.

[32] Mr Dilsher Singh gave evidence that despite many efforts he was unable to find new work. I am satisfied that because Mr Dilsher Singh has to find another sponsor if he wishes to remain in Australia that he has made reasonable efforts to mitigate his loss. Mr Dilsher Singh has recently found a new sponsor and is awaiting approval from the Department of Immigration and Border Protection (the Department). This is expected to take a few more weeks.

[33] Mr Dilsher Singh has not earned any income from employment in the period between the dismissal on 2 March 2016 and the date of this decision. As he is awaiting approval from the Department I do not expect that he will earn any income between the date of this decision and the date for payment of compensation.

[34] The 457 visa and the contract of employment guarantee a minimum income of $55,000 per annum. I am satisfied that this is the appropriate income to utilise for the purposes of compensation.

[35] The period of anticipated further employment between 2 March 2016 and 26 August 2019 can therefore be divided into two periods. Firstly the 20 weeks between the date of dismissal and the date for payment of compensation. Secondly the 25 months between the date for payment of compensation and the expiration of the 457 visa on 26 August 2019.

[36] Mr Singh would have earned $21,154 in the first period. This amount is reasonably certain and no deduction for contingencies should be made.

[37] In the second period Mr Singh would have earned approximately $119,231. I will deduct 25% from this amount for contingencies leaving an amount of $89,423.25.

[38] The resultant compensation of $110,577.25 far exceeds the maximum compensation amount under the legislation which in this case is six month’s pay or $27,500 less appropriate taxation.

[39] I do not consider that there are any other relevant matters than those specified in Section 392(2)(a) to (f). I have considered each of those matters. I will therefore Order that compensation of $27,500 be paid within fourteen days. I will provide liberty to apply for variation to the Order as to the payment period. The Order is published separately.

COMMISSIONER

Appearances:

Mr Dilsher Singh on his own behalf.

Hearing details:

2016

Melbourne

July 5

 1   Exhibit S3.

 2   Ibid.

 3   Exhibit S1.

 4   Exhibit S5.

 5   Exhibit S4.

 6   Email correspondence from Fair Work Commission to Mr Shahaf Ohana, dated 28 June 2016.

 7   Fair Work Act 2009 (Cth).

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