James McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd

[2013] FWC 3577

[2013] FWC 3577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James McCarron
v
Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd
(U2012/13636)

COMMISSIONER BISSETT MELBOURNE, 5 JUNE 2013

Application to vary Order PR537057 - remedy for unfair dismissal - compensation - payment in instalments.

[1] On 17 May 2013 I granted the application made by Mr James McCarron (the Applicant) for unfair dismissal remedy against Commercial Facilities Management Pty Ltd (the Respondent). The Decision [[2013] FWC 3034] was issued and an Order made [PR537057] for the Respondent to pay the Applicant $13,060.00 gross in compensation. This Order required payment to be made by Monday 3 June 2013.

[2] On Friday 31 May 2013 the Respondent made a written request to the Fair Work Commission to pay the amount specified in the Order in instalments. It claims that in February it had suffered ‘major financial bad debt’ that it says has left the company struggling to cover wages and pay their creditors. These issues had not been raised during submissions or the hearing, and were made one business day before the amount in the Order was due to be paid.

[3] The Respondent requests that it be permitted to pay the amount in equal instalments of $1,306.00 per month over a ten month period.

[4] On receipt of the request of the Respondent my associate forwarded the correspondence to the Applicant with a request that he provide any submissions on the Respondent’s request. The Applicant indicates that he objects to the request and claims he faces ongoing personal financial difficulties as a consequence of his period of unemployment following his dismissal. He notes that the Decision noted that no application had been made for payment by instalment and that there was no evidence provided at the time that a compensation Order would affect the viability of the Respondent.

[5] There has been considerable delay between the date that the Order was issued and the Respondent making the request to have it varied. It would have been of assistance to the Commission had the Respondent afforded the Commission more time to consider the issues it has raised.

[6] Section 393 of the Fair Work Act 2009 expressly provides that an order can be issued to permit the payment of compensation under the unfair dismissal remedy provisions in instalments.

[7] On balance, I have decided to grant the Respondent’s request for the payment of the Order to be made by instalments. When considering the time period for the instalment payments to be made the business needs of the Respondent must be weighed against the needs of the Applicant to access the compensation. On the information provided there does not appear adequate justification for the instalments to be made over a period as lengthy as 10 months.

[8] Considering all the circumstances, I have decided that the Respondent should be permitted to make the compensation payment in three equal instalments in fortnightly intervals, with each instalment being $4353.34. A variation to the Order will be issued with this decision.

COMMISSIONER

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<Price code A, PR537563>