Dr Curtis Poyton v Tutor2You Australia Pty Ltd T/A Tutor2You

[2018] FWC 3630

[2018] FWC 3630

FAIR WORK COMMISSION

DECISION

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

Dr Curtis Poyton
v
Tutor2You Australia Pty Ltd T/A Tutor2You
(U2018/2781)

COMMISSIONER HUNT BRISBANE, 21 JUNE 2018

Application for an unfair dismissal remedy - consent decision – unfair dismissal – no compensation ordered.

[1] On 18 March 2018 Dr Curtis Poyton made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Dr Poyton had been employed by Tutor2You Australia Pty Ltd (Tutor2You) between 28 September 2016 and 28 February 2018.

[2] Tutor2You raised a jurisdictional objection to the Fair Work Commission (Commission) determining the application on the basis that Dr Poyton resigned his casual employment on 27 February 2018, nominating a final date of employment of 4 March 2018. The Respondent denied that the employment came to end pursuant to s.386 of the Act, and submitted that its communication to Dr Poyton on 28 February 2018, no longer requiring him to perform any work, did not constitute a dismissal at the initiative of the Respondent.

[3] On 20 June 2018 the Commission convened a determinative conference. Dr Poyton appeared and gave evidence on his own behalf. Mr Scott Fell, CEO and Ms Alex Rice, Manager appeared and gave evidence on behalf of Tutor2You.

[4] Having heard the evidence of the parties, together with closing submissions, the parties agreed to the following consent position to be stated in a consent decision made by the Commission:

(a) Dr Poyton’s employment came to an end on 28 February 2018 at the initiative of Tutor2You;

(b) The dismissal was unfair within the meaning of s.385 of the Act;

(c) Dr Poyton did not seek reinstatement and the parties agree that reinstatement is inappropriate;

(d) Having regard to s.392 of the Act, Dr Poyton would not be entitled to any compensation if the Commission made a determination that there had been a dismissal at the initiative of the employer and the dismissal was unfair.This is so because there was no further work for Dr Poyton to perform between 28 February 2018 and 4 March 2018, and accordingly no remuneration relevant to the consideration in s.392(2)(c) of the Act;

(e) Each party bears their own costs and neither party will make an application for costs following a consent decision issued by the Commission.

[5] Given the consent position reached, I am satisfied that due to the Respondent’s concessions that the dismissal was at its initiative. I find Mr Poyton’s dismissal was unfair within the meaning of s.385 of the Act. With respect to remedy, I have taken into account the consent position of the parties and find that:

(a) reinstatement of Dr Poyton is inappropriate; and

(b) no compensation can be awarded having regard to Dr Poyton’s concession that, pursuant to s.392(2)(c) of the Act, the remuneration that he would have received, or would have been likely to receive if he had not been dismissed on 28 February 2018 would have been nil.

COMMISSIONER

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