Dominic Jack v Urban Climb Pty Ltd T/A Urban Climb

[2012] FWA 10498

[2012] FWA 10498

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dominic Jack
v
Urban Climb Pty Ltd T/A Urban Climb
(U2012/1092)

COMMISSIONER ROBERTS SYDNEY, 13 DECEMBER 2012

Application for unfair dismissal remedy - decision on merits subsequent to jurisdictional ruling.

[1] This decision concerns an application lodged on 11 May 2012 by Mr Jack pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Urban Climb Pty Ltd T/A Urban Climb (Urban Climb or the Company). Mr Jack’s application was the subject of an earlier decision published by me on 19 October 2012. In that earlier decision I dismissed a jurisdictional objection by Urban Climb which had claimed that the termination of Mr Jack’s employment was a genuine redundancy. The hearing of the jurisdictional application also involved evidence and submissions from the parties on the issues of valid reason and harsh, unjust and unreasonable. On application by the Company, I only determined the jurisdictional objection. The Company was granted leave to make further submissions as to merit should its jurisdictional objection be dismissed.

[2] The above process was conducted by way of written submissions from each side. In its submissions dated 25 October 2012 the Company, per Ms Hughes of Bruce Thomas Lawyers, stated “that Urban Climb does not wish to oppose Mr Jack’s application for unfair dismissal”. The Company’s submissions only dealt with the question of possible compensation and argued “that the appropriate range of compensation for the conceded unfair dismissal is 2 to 4 weeks’ pay, being $126.26 to $252.52.” Those figures were based on an average net weekly income for Mr Jack of $63.13. Attached to the Company’s written submissions were copies of four payslips for Mr Jack covering the period 7 February 2012 to 3 April 2012. Mr Jack’s employment ended with effect from 11 May 2012.

[3] In his written submissions, Mr Jack argued that compensation of 2 - 4 weeks pay “seems completely arbitrary”. Mr Jack submits that a fair assessment of his earnings would give rise to an average figure of $213.77 per week, not including superannuation with an award of 26 weeks compensation being appropriate.

[4] Before considering the questions of reinstatement and/or compensation, I must first determine whether there was a valid reason for the termination of Mr Jack’s employment. On balance, and in the light of my decision on the jurisdictional objection and the Company’s concession, I find that there was not a valid reason for the termination of Mr Jack’s employment based, as it then was, on the ground of genuine redundancy. The result may well have been different if the company had relied on other reasons such as Mr Jack’s increasingly hostile relationship with management and the operational changes within the Company’s business based on factors such as new-style equipment which led to a lower requirement for personnel.

[5] The Company does not oppose a finding that the termination of Mr Jack’s employment was unfair. The criteria for considering harshness etc are set out in s.387 of the Act and I have paid regard to all the criteria set out therein.

[6] I do not intend to traverse the evidence and submissions of the parties in regard to harsh, unjust and unreasonable, given the concession by the Company. However, I have paid regard to all the relevant material in making my determination. I therefore find that the termination of Mr Jack was harsh.

[7] Section 390 of the Act sets out the criteria concerning the ordering of a remedy for unfair dismissal and I have paid regard to each of the criteria set out in that section.

[8] It is not controversial that the first remedy to be considered by the Tribunal after making a finding that a dismissal was unfair is the possibility of reinstatement. In all the circumstances of this case, reinstatement would in my mind be both impracticable and undesirable. The employment relationship between Mr Jack and Urban Climb could never be restored. I base this view on the evidence and materials before me and my observation of the parties during proceedings on 23 August 2012. Mr Jack appears to bear a deep animus towards the management of Urban Climb, based largely on his opinion that employees of the Company have not been treated fairly in various regards. His return to the employ of Urban Climb would be a recipe for disruption and ill-feeling. I have no doubt as to the sincerity of Mr Jack’s beliefs but they are not consistent with an ability to restore the employment relationship. I therefore find that reinstatement is not an appropriate remedy in this case.

[9] Where reinstatement is not ordered, the Tribunal may order the payment of monetary compensation. Section 392(2) of the Act sets out the criteria for deciding a suitable level of compensation and I have paid regard to each of the criteria set out in that section.

[10] Specifically, I am satisfied that the effect of the order I intend to make will not have an adverse effect on the viability of the employer’s enterprise and I have taken into account of the length of Mr Jack’s service, the remuneration he would have been likely to receive if he had not been dismissed, his efforts to mitigate his loss and any remuneration earned by Mr Jack after his dismissal. I have further considered Mr Jack’s age, skills set and the financial effects on him arising from his dismissal. In that regard, I note that Mr Jack is a young man of obviously high intelligence and academic achievement. Indoor rock climbing is not his vocation but rather a largely recreational interest in his life. His dismissal by Urban Climb will have no discernable effect on his future career prospects.

[11] Pursuant to s.392(3) of the Act I am not satisfied that any misconduct by Mr Jack contributed to the Company’s decision to dismiss him and I have therefore not reduced the amount I would otherwise order.

[12] All in all, I find that the termination of the Applicant’s employment lacked a valid reason and was harsh. An order will be issued that the Company paid him a total of four week wages (less appropriate tax according to law), to be paid at the rate of $213.77 per week, a total of $855.08. This figure does not include any obligation on the employer in relation to compulsory superannuation contributions. I have arrived at the awarded figure after considering the arguments by each side as to average weekly earnings and am satisfied, on balance, that the figure provided by Mr Jack is to be preferred. The sum awarded is to be paid within 14 days of the date of this decision.

[13] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.

[14] An order reflecting this decision is in PR532319.

COMMISSIONER

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