Harish Kumar v Michael Lawler Transport Pty Ltd
[2024] FWC 1497
•25 JULY 2024
| [2024] FWC 1497 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harish Kumar
v
Michael Lawler Transport Pty Ltd
(U2023/12348)
| DEPUTY PRESIDENT LAKE | BRISBANE, 25 JULY 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – not dismissed – employer stopped providing shifts – jurisdictional objection dismissed – remedy for unfair dismissal – compensation awarded.
Mr Harish Kumar (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Michael Lawler Transport Pty Ltd (the Respondent).
A conciliation was held on 22 March 2024 and the Respondent was not in attendance. The matter was listed for an in-person hearing on 22 April 2024. The Applicant was self-represented, and the Respondent was not in attendance.
Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold and that his dismissal was not a case of genuine redundancy.
The Respondent raised a jurisdictional objection that the Applicant was not dismissed and therefore not protected from unfair dismissal. I have identified that the Respondent is a small business where the Small Business Dismissal Code could apply. These matters will be determined before considering the merits of the Application.
Background and Procedural History
The Applicant commenced his employment with the Respondent from July 2022 as a Truck Driver.
On 20 November 2023, Mr Michael Lawler, Director of the Respondent, asked Mr Kumar to wash a truck. The Applicant responded that he washed the truck, but he would wash it again. The Applicant stated that he was asked to do an ‘acid wash’ on the truck, but was unable to do so because of heavy rainfall, and that the ‘acid’ would be slippery. The Applicant stated that he performed a ‘normal wash’.
On 21 November 2023, the Applicant received shifts to drive to Caboolture at 6:10am. Later that morning, the Applicant stated Mr Lawler called him and was told “not to come to work for a while.” At 2:24pm that day, the Applicant followed up with Mr Lawler regarding their phone call. Mr Kumar stated the following:
“I understand you are unhappy with me after not cleaning the truck, yet as I explained, the task was possible to complete under such heavy rainfall due to it being life-threatening. You know I always wish to do a good job to the best of my abilities, then go home to my family. All I can say is there’s a limit to how much I can risk for my job although you know I love my job… as I love being alive more. As a full-time employee whom has not received a formal warning in the past, please clearly state your intent for not asking me to come anymore.
Am I fired? Am I receiving a warning? Am I on paid leave? Please explain. Kind regards, Harish Kumar”
On 24 November 2024, the Applicant sent a text to Mr Lawler writing ‘Hi mate I haven’t received last weeks pay yet Thanks’.
On 3 December 2024, the Applicant sent another text to Mr Lawler stating ‘Hey mate I haven’t received any pay for the last week And also I am still waiting for you reply regarding my employment [status] Thanks’.
The Applicant lodged his unfair dismissal application on 11 December 2023.
On 12 January 2024, the Commission attempted to contact the Respondent about lodging a Form F3 – Employer’s Response. No response was received. The Commission attempted to contact the Respondent again on 15 January 2024. The Respondent confirmed his correct email address and stated he would check his junk mail.
A staff conciliation was listed on 31 January 2024. The Respondent did not attend. The conciliator attempted to contact the Respondent on multiple occasions with no response.
On 1 February 2024, the Respondent called the Commission stating that he worked nightshift and did not check his emails or phone during the day and was unaware of the conciliation. The matter was then allocated to another member of the Commission.
On 7 February 2024, a staff member of the Commission called the Respondent regarding the member assisted conciliation and asked his availabilities. It was indicated to the staff member that the Respondent would be available around 4pm and that email would be suitable for future correspondence. The matter was listed for conciliation on 21 February 2024.
On 21 February 2024, the Respondent did not attend the member assisted conciliation despite the Respondent being contacted on four occasions with no response. The matter was then allocated to me on 1 March 2023.
On 8 March 2024, I issued Directions and a Notice of Listing for a further member assisted conciliation before me listed for 22 March 2024.The Respondent did not attend this conference.
On 24 March 2024, the Applicant filed his materials in support of his application, and this was served to the Respondent.
On 10 April 2024, a letter was issued from my Chambers regarding non-compliance with Directions as no correspondence was received from the Respondent to date. In the letter, the Respondent was given until 15 April 2024 to provide a Form F3 and submissions in response to the Applicant’s unfair dismissal claim. It was also flagged that if the Respondent failed to engage with the Commission, the Commission may determine the matter in his absence under s.600 of the Act.
On 15 April 2024, Respondent lodged a Form F3. The matter was listed for an in-person hearing on 8 May 2024.
The Applicant appeared at the hearing and represented himself. Despite numerous attempts to contact the Respondent by telephone and email, the Respondent did not attend. Additional time was provided for the Respondent to attend, with the option for the Respondent to appear via Microsoft Teams. There has been no response from the Respondent to date.
The Respondent was given every opportunity to engage with the Commission to defend the unfair dismissal allegation, and failed to do so, the matter was heard in the Respondent’s absence pursuant to s.600 of the Act.
Was the Applicant dismissed under s.386 of the Act?
Section 386(1) of the Act provides when an Applicant is dismissed:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s imitative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
A dismissal occurs at the employer’s initiative when the employer’s action “directly and consequentially” results in the termination of employment, and had the employer not taken the action, the employee would have remained employed.[1]
The Applicant’s evidence is not contested besides the Form F3 filed by the Respondent. The Form F3 states that the Applicant was not dismissed. However, apart from claiming that the Respondent is “happy to have Harish continue working for this company”, no detail of the jurisdictional objection has been provided. The Respondent has not provided any evidence explaining why the Applicant has not received any shifts since 21 November 2023.
I am satisfied that the Applicant was terminated on the employer’s initiative when Mr Lawler failed to provide a response to the Applicant regarding his employment status on 3 December 2024. If Mr Lawler had intended to retain the Applicant, all he had to do was communicate with Mr Kumar regarding his rosters.
Mr Lawler indicated that he hired someone to cover the Applicant. Given that Mr Lawler provided no response to the Applicant during the proceedings, it appeared that the Applicant’s employment ended by the Respondent. I am satisfied that the Applicant was dismissed by the Respondent in accordance with s.386 of the Act. This objection is dismissed.
Was the Applicant dismissed in accordance with the Small Business Fair Dismissal Code?
In the Form F3, the Respondent states that there were only 4 employees at the time of the Applicant’s dismissal. This was not contested by the Applicant.
The Small Business Fair Dismissal Code states the following:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In non-summary dismissal cases, the employee must be warned that if there is no improvement to their conduct or capacity, they could be dismissed.
The employee must be given a reason as to why their employment is at risk and the reason must be a valid reason based on their conduct or capacity to do the job.
The employer must give the employee an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
A valid reason for dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[2] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[3] The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[4]
It appeared that there was an issue regarding Mr Kumar not washing a truck. However, the Respondent did not provide further context regarding why the Applicant was not receiving shifts, or why he was not being communicated to, it appears that the reason was not substantiated.
Mr Kumar has not received any further shifts since 21 November 2023, and the Respondent has not communicated with him since this date. Thus, the Applicant has been unable to respond or address any issues that Mr Lawler may have raised.
The Respondent has not complied with the Small Business Fair Dismissal Code.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh unjust or unreasonable. As required by the Act, I consider the following:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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
(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; and
(h) any other matters that the FWC considers relevant.
The criteria are applicable to the extent they are relevant to the factual circumstances.[5] Given that valid reason and process have been explored in determining whether the Respondent unfairly dismissed the Applicant, I have briefly considered the size of the employer’s enterprise.
(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 (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
The Respondent is a small business of approximately 4 employees and appears that Mr Lawler does not have any specialist human resources management given that he drives the trucks himself. I have considered that the size of Mr Lawler’s business impacted the procedures followed.
Conclusion
I am satisfied that the Applicant’s dismissal was harsh, unjust and unreasonable in considering all the circumstances. The dismissal was harsh given that the Applicant had repeatedly followed up with the Respondent regarding his employment status with no response. This has created financial hardship and has been out of stable work from the date of dismissal to hearing.
Furthermore, the dismissal was unjust as the Applicant had no opportunity to respond. The Applicant attempted to contact the Respondent on multiple occasions with no avail. The dismissal was also unreasonable given that there was no substantive reason to dismiss the Applicant, and if there was a reason, the Respondent should have outlined the reasons why. The Applicant was unfairly dismissed, and I now turn to remedy.
Remedy
Given that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy. Section 390 of the Act provides the following:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
The Respondent stated in his Form F3 that he was “happy” for the Applicant to continue working. However, reinstatement would not be appropriate given Mr Lawler has failed to take any of the Applicant’s calls and ordering reinstatement would not be practical as he has failed to correspond with the Applicant. Therefore, compensation is the only appropriate remedy.
Section 392 sets out the considerations for awarding compensation:
“392 Remedy—compensation
Compensation
(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.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(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; and
(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; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket,[6] and has been applied and developed by Full Benches of the Commission in the context of the current Act.[7] The authorities indicate that assessing compensation involves a four-step process, noting that the guidelines are not a substitute for the words in the Act.
“Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). Furthermore, the length of service with the employer[8] and the ability to find a new role are relevant factors in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.[9]
Step 3: Discount the remaining amount for contingencies.[10]
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment.”
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
The Applicant stated that he was paid $1,705 per week (gross). The Respondent stated in his Form F3 that the Applicant was paid $1,300 per week (net). I accept the Applicant’s gross calculations in assessing the compensation cap given that the calculations are not too far off.
The Applicant had worked for the Respondent for one year and five months. The Applicant was still out of work at the time of hearing. However, I am not satisfied that the Applicant had genuinely attempted to fully mitigate his loss. Even though the truck driver role that he was performing with the Respondent may slightly differ, there would be sufficient driver jobs in Brisbane for the Applicant to find another role.
The Applicant has been working as an Uber driver while he seeks another role as a truck driver. I am conscious that he has made applications on Indeed and was taking some time off to be with his newborn. However, the Applicant was not Uber driving as regularly and frequently compared to his past role.
As a result, I have determined that the maximum compensation cap, considering the Applicant’s length of service, and not being able to fully mitigate his loss would be 16 weeks. The compensation cap amounts to $27,280.
Step 2: Deduct monies earned since termination.
The Applicant has not been able to secure stable employment since his dismissal. The Applicant has been working as an Uber driver while he seeks another role as a truck driver. Although I consider that he would have been earning some income, it is not appropriate to make a deduction under this step. There are no applicable deductions under this step.
Step 3: Discount the remaining amount for contingencies.
There are no applicable deductions under this step.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
In Bowden v Ottrey Homes Cobram and District Retirement Villages,[11] the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave the taxation for determination. I will leave the issue of taxation for determination by the Respondent.
Order
The Respondent is ordered to pay a gross sum of $27,280 within 30 calendar days of the date of this Decision to the Applicant’s nominated bank account that was on payroll. I Order accordingly.[12]
DEPUTY PRESIDENT
Appearances:
H. Kumar appearing for himself as the Applicant.
Hearing details:
2024.
Brisbane.
8 May.
[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] [2021] FWC 4 at 118.
[4] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[5] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[6] (1998) 88 IR 21.
[7] Bank of Sydney Ltd T/A Bank of Sydney v Repici[2015] FWCFB 7939.
[8] Fair Work Act 2009 (Cth) s 392(2)(b) - (c) and s 392(2)(g).
[9] Ibid s 392(2)(e).
[10] Ibid s 392(2)(a), (d) and (f).
[11] [2013] FWCFB 431.
[12] PR777513.
Printed by authority of the Commonwealth Government Printer
<PR775804>
0
9
0