Greg Warren v NCI (Vic) (now known as NCI (37) Pty Ltd)
[2010] FWA 836
•8 FEBRUARY 2010
[2010] FWA 836 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
NCI (Vic) (now known as NCI (37) Pty Ltd)
(U2009/11940)
COMMISSIONER BLAIR | MELBOURNE, 8 FEBRUARY 2010 |
S.394 application for unfair dismissal remedy - arbitration
[1] This matter was first dealt with by conciliators of Fair Work Australia (the Tribunal) in conciliation on 25 September 2009; however, the matter was unable to be resolved. The matter then proceeded to arbitration by the Tribunal. The arbitration was dealt with by way of public hearing.
[2] Mr Warren (the Applicant) represented himself. NCI (Vic) (now known as NCI (37) Pty Ltd) (the Respondent) did not attend the hearing.
[3] The following decision (now edited) was handed down in transcript:
[4] “In determining whether or not the correct employer has been named in the application, based on the material provided to the Tribunal, the Tribunal is satisfied that the correct respondent has been named in the application. The correct employer is NCI (37) Pty Ltd, not NCI (Vic) which is now in administration.
[5] The Tribunal comes to that view for two reasons:
1. that the letter of termination handed to Mr Warren dated 2 September 2009 is on the letterhead of NCI (37) Pty Ltd, 30 Mercedes Drive, Thomastown Victoria 3074; and
2. on the separation certificate the document is signed down the bottom, although I don’t know whose signature it is, and the employer details are the business/trading name of NCI (37) Pty Ltd, 30 Mercedes Drive, Thomastown 3074.
[6] Based on that information the Tribunal is satisfied that the correct employer in this matter has been named in the application, NCI (37) Pty Ltd.
[7] In relation to the criteria used to determine whether or not the termination is harsh, unjust and unreasonable, the Tribunal is satisfied that, based on the material provided by Mr Warren in answering the questions of s.387(a) to (g) of the Fair Work Act 2009, that the questions have been answered correctly from Mr Warren’s point of view.
[8] Given that there are no submissions from the Respondent, the Tribunal is satisfied that Mr Warren’s application meets the criteria of the Tribunal to determine that the termination was harsh, unjust and unreasonable.
[9] The Tribunal will now turn to the issue of compensation.
[10] When determining compensation, the Tribunal must take into account any monies that the Applicant has earned from the date of termination.
[11] The maximum the Tribunal can award is 26 weeks and the Applicant was terminated approximately 23 weeks before the date of the arbitration.
[12] In finding that the termination was harsh, unjust and unreasonable, the Tribunal is prepared to award the Applicant the amount of $9637 nett. This amount is arrived at by taking the amount earned through Centrelink, $4600, from the amount the Applicant would have earned over the 23 weeks since the termination took effect.
[13] An Order will be issued separately to this Decision.
[14] The Tribunal is now adjourned in this matter.
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