Edwin Domingo v John Pinawin T/A Rosevi. Hair. Face. Body

[2011] FWA 8882

Note: An appeal pursuant to s.604 (C2012/2182) was lodged against this decision - refer to Full Bench decision dated 21 March 2012 [[2012] FWAFB 1359] for result of appeal.

[2011] FWA 8882

FAIR WORK AUSTRALIA

DECISION

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

Edwin Domingo
v
John Pinawin T/A Rosevi. Hair. Face. Body
(U2011/8514)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 20 DECEMBER 2011

Termination of employment.

[1] Mr Domingo made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) against John Pinawin trading as Rosevi. Hair. Face. Body (the respondent). Both parties were self represented.

[2] Mr Domingo attended the hearing in a T-shirt bearing the logo “expect a drunk”. Mr Domingo's evidence could not have been less useful had he in fact turned up drunk. He was not able to give any coherent evidence on any relevant matter. In this regard he would not be assisted or directed.

[3] Three witnesses for the respondent gave evidence. That evidence was of variable relevance. In summary the respondent's defence to Mr Domingo's application was that his employment had been terminated because of his deteriorating attitude. The allegation against him was that his lifestyle had affected his performance. I had no difficulty in accepting that that was the case.

[4] I am satisfied that there was a valid reason for the dismissal with notice of Mr Domingo’s employment which was related to his capacity and conduct.

[5] I am satisfied that Mr Domingo was notified of the reason for his dismissal.

[6] I am satisfied that Mr Domingo was given an opportunity to respond to the reason for his dismissal which was related to his capacity to perform his duties.

[7] There was no evidence Mr Domingo requested a support person or any evidence that there was any unreasonable refusal to provide a support person for discussions related to Mr Domingo’s dismissal.

[8] Mr Domingo’s dismissal related to unsatisfactory performance. There was no evidence before me that Mr Domingo was warned about his unsatisfactory performance. However I have concluded that a warning in the circumstances of this application was unnecessary.

[9] The size of the employer's enterprise and the absence of dedicated human resource management specialists or expertise within the respondent enterprise has been taken into account by me.

[10] Mr Domingo’s employment was terminated summarily. No monies were paid in lieu of notice. In this respect his dismissal was harsh, unjust or unreasonable.

[11] I am persuaded that the summary dismissal of Mr Domingo from the employment of the respondent was harsh, unjust or unreasonable. Dismissal with notice would not have been harsh, unjust or unreasonable.

[12] Reinstatement is not appropriate. Compensation is appropriate. I order compensation be paid to Mr Domingo in an amount equal to the monies Mr Domingo would have been entitled to had he been dismissed with notice. A separate order to this effect will be issued today.

SENIOR DEPUTY PRESIDENT

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