Gary Fowler v Tramic Pty Ltd T/A Carrum Downs Regional Shopping Centre
[2011] FWA 2143
•8 APRIL 2011
Note: An appeal pursuant to s.604 (C2011/4166) was lodged against this decision.
[2011] FWA 2143 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gary Fowler
v
Tramic Pty Ltd T/A Carrum Downs Regional Shopping Centre
(U2010/13400)
COMMISSIONER GOOLEY | MELBOURNE, 8 APRIL 2011 |
[1] Mr Gary Fowler was employed by Tramic Pty Ltd (Tramic) from 10 September 2008 until his employment was terminated on 6 October 2010.
[2] Mr Fowler lodged an application for relief pursuant to section 394 of the fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed.
[3] On 3 November 2010 the employer filed a response to the application lodged by Mr Fowler. In that response it was stated that the reasons for termination was poor work performance and that Mr Fowler had been given numerous warnings about his performance. The application was referred to conciliation on 11 November 2010 but it was not resolved.
[4] The matter was listed for hearing on 11 February 2011 but there was no appearance by the respondent. Ms Debbie Taylor the respondent’s representative was contacted by Fair Work Australia and she advised that she would not be attending because settlement discussions were taking place. At the hearing I determined to adjourn the matter.
[5] The matter was listed for hearing on 18 March 2011. The notice of listing advised the parties that if a party did not appear the matter would proceed in their absence. The respondent did not appear and my associate contacted Ms Taylor prior to the hearing. Ms Taylor advised that she had not received the notice of hearing but she confirmed that the email address and fax number to which the notice of listing had been sent was correct. The file showed that the fax had been successfully sent. Ms Taylor advised that she was not attending as payments had been made to Mr Fowler and she considered the matter had been concluded. Ms Taylor was advised that the matter could be adjourned for a period that morning to enable her to attend but Ms Taylor advised that she would not attend.
The Evidence
[6] The only evidence before me was the unchallenged evidence of Mr Fowler.
[7] Mr Fowler represented himself at the hearing and gave sworn evidence.
[8] Mr Fowler advised that he had been having discussions with Ms Taylor and that he thought he was going to be reinstated. He advised that he received a cheque from Tramic for three weeks pay being the balance of the five week period he had been unemployed.
[9] Mr Fowler gave evidence that he commenced employment initially as a full time night cleaner and at the date of his termination he was based at the Ballarto Road Shopping Centre as a maintenance person. He worked between the two centres.
[10] Mr Fowler gave evidence that on 6 October 2010 when he went to collect his pay cheque he was told by Ms Trish Little that his employment had been terminated. He was not given a reason for his termination. Mr Fowler contested his termination and said he needed to speak to Ms Taylor. Mr Fowler also told Ms Little that the amount he was paid was not correct. After trying unsuccessfully to contact Ms Taylor Mr Fowler handed in his keys as requested.
[11] After leaving the workplace Mr Fowler spoke to Ms Taylor on the phone and she denied any knowledge of the termination. Mr Fowler raised with Ms Taylor his concern that the amount paid on termination was incorrect.
[12] Mr Fowler was not paid the correct termination monies for about four-five weeks and did not receive a separation certificate which meant he was unable to obtain Centrelink benefits.
[13] Mr Fowler gave evidence that he was never given any warnings about his performance or conduct.
[14] At the date of his termination Mr Fowler was earning $740.38 per week. He was paid two weeks pay in lieu of notice.
[15] Mr Fowler was unemployed for five weeks after the termination and he currently earns approximately $720 per week.
[16] On 16 February 2011 Mr Fowler received a letter from Tramic which stated:
“Gary, following up on our recent discussions in relation to the Fair Work Claim you have taken out against Tramic, we have agreed to pay you the 3 weeks of $1760.52.
Upon the acceptance of this payment, you are in agreement that the matter has been resolved and that no further claims can be forthcoming upon our company.
Also on acceptance of this payment you are reminded that everything that transpired under your Fair Work Australia claim is confidential and cannot be discussed further.”
[17] It was Mr Fowler’s evidence that he did not agree to this and his discussions with Ms Taylor had been about him getting his job back.
Jurisdiction of Fair Work Australia
[18] There is no dispute that Mr Fowler is a person who was protected from unfair dismissal. Further there is no evidence before Fair Work Australia that Tramic is a small business and it was not submitted that Mr Fowler had been made redundant. Therefore Fair Work Australia has the jurisdiction to determine the application.
Was the termination of employment harsh, unjust or unreasonable?
[19] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[20] Mr Fowler gave evidence that no reason was given for the termination of his employment. He gave positive evidence that he was a good worker who had been assured that his employment was safe. As there is no evidence before me to support the allegations in the employer’s response to the application I find that the grounds relied upon have not been substantiated and therefore there was no valid reason for the termination of Mr Fowler’s employment.
s387(b) whether Fowler was notified of that reason:
[21] Mr Fowler was not notified of the reason for the termination of his employment.
s387(c) whether Fowler was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[22] Mr Fowler was not given any opportunity to respond to the reasons for the termination of his employment.
s387(d) any unreasonable refusal by the employer to allow Fowler to have a support person present to assist at any discussions relating to dismissal;
[23] There were no discussions relating to the dismissal.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Fowler had been warned about that unsatisfactory performance before the dismissal;
[24] There is no evidence that Mr Fowler was warned about any alleged unsatisfactory performance.
s387(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
[25] No submissions were made on this criterion.
s387(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;
[26] No submissions were made on this criterion.
s387(h) any other matters that FWA considers relevant.
[27] There was a delay in paying Mr Fowler his entitlements and the failure to provide Mr Fowler with a separation certificate prevented Mr Fowler from accessing Centrelink benefits.
Conclusion
[28] Having regard to the factors set out above, in particular the absence of any valid reason for the termination of Mr Fowler’s employment, I find that the dismissal was harsh, unjust and unreasonable. As the dismissal was not for a genuine redundancy, nor, if the Code was applicable, was the dismissal consistent with the Code, I find that Mr Fowler was unfairly dismissed.
Remedy
[29] Section 390 of the FW Act empowers Fair Work Australia to order a remedy if an employee is unfairly dismissed:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[30] In dismissing Mr Fowler without warning Tramic has displayed a total disregard for its obligations as an employer generally and its obligations under the FW Act.
[31] Mr Fowler seeks reinstatement and compensation. He gave evidence that he was out of work for five weeks and now earns slightly less than he did in his employment with Tramic. That Mr Fowler actively sought reinstatement through direct discussions with his employer shows a commitment to his employment which is commendable. However his employer’s treatment of him at the time of the termination of his employment and subsequently, as well as its attitude to Mr Fowler’s application before Fair Work Australia does not auger well for the reinstatement of a positive employment relationship.
[32] The FW Act provides that when considering the appropriate remedy there is an emphasis on reinstatement. However in all the circumstances I do not consider that reinstatement is appropriate.
[33] Section 392 of the FW Act sets out the criteria to be followed when determining the level of compensation to be paid to an employee in lieu of reinstatement.
[34] Section 392(1) and (2) of the FW Act provides as follows:
“(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:”
s392(2)(a) the effect of the order on the viability of the employer’s enterprise;
[35] No submissions were provided on this criterion.
s392(2)(b) the length of the person’s service with the employer;
[36] Mr Fowler had worked for Tramic for over two years.
s392(2)(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[37] As Mr Fowler was a good employee with no history of performance issues it is difficult to see that, barring redundancy, his employment would not have continued for a significant period of time. However I accept Mr Fowler’s evidence that his employer actively considered the use of contractors and therefore there was a prospect that Mr Fowler may have been made redundant.
[38] Mr Fowler was earning $740.38 gross per week plus $66.63 paid as superannuation per week.
s392(2)(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[39] Mr Fowler found work after five weeks. His entitlement to Centrelink benefits whilst unemployed was affected by the failure of Tramic to provide him with a separation certificate at the time of his termination.
s392(2)(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;
[40] He was paid two weeks pay in lieu of notice. He commenced work five weeks after his termination and is earning $720 per week. I assume superannuation is being paid.
s392(2)(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;
[41] The amount to be earned in two weeks is $1569 including superannuation.
s392(2)(g) any other matter that FWA considers relevant.
[42] Mr Fowler has been paid an additional $1760.52. However this money was not paid as a result of any settlement agreement reached between Mr Fowler and Tramic. I have had regard to the fact that Mr Fowler remains in employment.
[43] The termination of his employment and the delays in paying him accrued entitlements and providing him with a separation certificate caused Mr Fowler financial hardship. Further, as a result of the termination of his employment his accrued service which counts toward redundancy, long service leave and parental leave has been set to nought.
[44] Taking into account the above matters I have decided to award Mr Fowler $5000 as compensation. I therefore order that Tramic pay Mr Fowler $5000 minus applicable taxation within 14 days. An order [PR508260] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
G Fowler on his own behalf.
Hearing details:
2011.
Melbourne:
February 11.
March 18.
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<Price code C, PR508236>
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