Gordon Hunt v Sheriff Taylor
[2019] FWC 7439
•30 OCTOBER 2019
| [2019] FWC 7439 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gordon Hunt
v
Sheriff Taylor
(U2019/9956)
DEPUTY PRESIDENT DEAN | SYDNEY, 30 OCTOBER 2019 |
Application for an unfair dismissal remedy – compensation ordered.
[1] The following decision, now edited, was delivered ex tempore at the conclusion of the proceedings on 28 October 2019.
[2] This decision concerns an application made by Mr Gordon Hunt on 5 September 2019 for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009. Mr Hunt claimed that he had been unfairly dismissed from his employment by Mr Sheriff Taylor (the Respondent). Prior to lodging this application, Mr Hunt filed another application naming the respondent as Sydney Glass Warehouse Pty Ltd (SGW) of which Mr Taylor was a Director. SGW was deregistered on 26 May 2019. Mr Hunt discontinued that application on 5 September 2019.
[3] On 11 September 2019 I issued a decision 1 granting an extension of time for the lodgement of Mr Hunt’s application which was not made within the 21 day statutory timeframe.
[4] The Respondent did not file a response to the application.
[5] On 11 September 2019 the Commission issued Directions requiring the Respondent to provide an outline of submissions and any witness statements upon which they intended to rely. A notice of listing was also issued advising that a hearing would be held on 23 September 2019.
[6] The Respondent did not file any material in accordance with the Directions and did not attend the proceedings on 23 September 2019.
[7] Mr Hunt was also unable to be contacted on 23 September 2019, and so the hearing was rescheduled to 28 October 2019.
[8] Mr Hunt gave evidence that he was employed by the Respondent on 13 November 2017 as a yard person.
[9] He was summarily dismissed via a text message by the Respondent on 5 March 2019. Mr Hunt said that he was unable to contact the Respondent and his calls and text messages were not returned. He did not receive any payment in lieu of notice.
[10] Mr Hunt gave evidence that prior to the termination of his employment he was not warned by the Respondent verbally or in writing as to his performance. He also said that his workplace was a yard which was open and exposed, without toilet facilities for seven months, and had no shelter, power or provision to store food or water.
Was the dismissal harsh, unjust or unreasonable?
[11] There are certain criteria that the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable which are set out at s.387 of the Act. I am required to consider each of these criteria in reaching my conclusion, which I now do.
Valid reason - s.387(a)
[12] The first criterion is whether there was a valid reason (s.387(a)).
[13] A ‘valid reason’ is a reason that is sound, defensible or well-founded, and not capricious, fanciful, spiteful or prejudiced. The reason should be justifiable on an objective analysis of the relevant facts.
[14] Based on Mr Hunt’s evidence which is set out above, and in the absence of any evidence proffered by the Respondent, I am not satisfied that there was a valid reason for the termination of Mr Hunt’s employment.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[15] In relation to the two criteria provided in s.387(b) and (c), notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,2 in explicit terms3 and in plain and clear terms,4 and the employee must also be provided with an opportunity to respond.
[16] On the evidence before me, I am not satisfied that Mr Hunt was notified of the reason for his dismissal, and he was not given an opportunity to respond.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[17] The next criterion is a refusal by the employer to allow a support person (s.387(d)).
[18] Mr Hunt was terminated via text message and there was no discussions relating to his dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[19] In terms of any warnings regarding unsatisfactory performance (s.387(e)), a warning must make it clear to an employee that their employment is at risk unless the performance issue is addressed. 5
[20] I accept Mr Hunt’s uncontested evidence that he was never warned of unsatisfactory performance and that he was not aware that the Respondent was considering dismissing him.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[21] The next criterion is the impact of the size of the Respondent on the procedures followed (s.387(f)), and any human resources management specialist/expertise that they have (s.387(g)).
[22] There is no evidence about the size of the Respondent’s enterprise and its impact on the procedures followed.
Other relevant matters - s.387(h)
[23] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters that might be relevant. I do not consider that there are any other matters that are relevant in this case.
Conclusion
[24] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I find that the dismissal of Mr Hunt was harsh, unjust and unreasonable, and therefore unfair.
Remedy
[25] Having found that Mr Hunt was protected from unfair dismissal, and that his dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him. Mr Hunt seeks the remedy of compensation.
[26] Under section 390(3) of the Act, I must not order the payment of compensation to Mr Hunt unless:
a. I am satisfied that reinstatement is inappropriate; and
b. I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[1] In this case, I am satisfied that reinstatement is inappropriate, and an order for payment of compensation is appropriate.
[2] There are certain factors that I need to take into account when determining an amount to be paid as compensation which are set out in s.392(2) of the Act.
[3] I have taken account of those factors and applied the Sprigg Formula 6 to determine the appropriate compensation.
Remuneration received, or likely to be received (s392(2)(c))
[4] In terms of the remuneration received, or likely to be received (s392(2)(c)), I consider it unlikely that Mr Hunt’s employment would have continued for a long period of time.
Remuneration earned and income likely to be earned (s392(2)(e) and (f))
[5] Mr Hunt gave evidence that he had not earned any other remuneration from the dismissal until three months later when he obtained other employment.
Length of service (s392(b))
[6] Mr Hunt was employed for just under two years. This is a relatively short period of time, and I consider that it does not support reducing or increasing the amount of compensation ordered.
Viability (s392(a))
[7] In terms of viability (s392(a)), there is no evidence before me as to the effect of an order for compensation might have on the viability of the Respondent.
Mitigation efforts (s392(d))
[8] In terms of Mr Hunt’s mitigation efforts (s392(d)), Mr Hunt gave evidence that he obtained other employment three months after his dismissal. I therefore consider it appropriate to reduce the amount of compensation otherwise calculated for this factor.
Other relevant matters (s392(g))
[9] In terms of other relevant matters (s392(g)), there are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’.
Shock, distress etc (s392(4))
[10] The amount of compensation does not include a component for shock, humiliation or distress.
Conclusion
[11] In my view, the application of the Sprigg formula does not yield an amount that is clearly excessive or inadequate.
[12] I am satisfied that it is appropriate to order a remedy of compensation in the amount of eight weeks’ pay, less appropriate taxation. An order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
G Hunt, on his own behalf.
Hearing details:
Sydney.
2019:
October 28.
Printed by authority of the Commonwealth Government Printer
<PR713782>
1 [2019] FWC 6329.
2 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
3 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
4 Previsic v Australian Quarantine Inspection Services Print Q3730.
5 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
6 (1998) 88 IR 21.
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