John Heath v Nu-Lite Home Improvements Pty Ltd T/A Nu-Eco Windows

[2010] FWA 8629

[2010] FWA 8629

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Heath
v
Nu-Lite Home Improvements Pty Ltd T/A Nu-Eco Windows
(U2010/10411)

COMMISSIONER BLAIR MELBOURNE, 9 NOVEMBER 2010

s.394 - application for unfair dismissal - arbitration.

[1] This application was lodged in Fair Work Australia (the Tribunal) on 8 July 2010 by John Heath (the Applicant). The respondent in the matter is Nu-Lit Home Improvements Pty Ltd trading as Nu-Eco Windows (the Respondent).

[2] The matter was first dealt with by conciliators of the Tribunal in conciliation on 4 August 2010; however, the matter was unable to be resolved. The matter then proceeded to arbitration and was heard by the Tribunal on 8 November 2010.

[3] The following decision (now edited) was handed down at the conclusion of the arbitration hearing.

[4] “The Tribunal indicated earlier, based on the documentation and the fact that the respondent withdrew a jurisdictional objection based on whether there was an employer/employee relationship, that the Tribunal formally determines that there was an employer/employee relationship and, therefore, the Applicant is entitled to bring a claim under the Fair Work Act. 2009 (the Act).

[5] Section 387 of the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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 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 FWA considers relevant.

[6] Looking at the requirements of section 387:

(a) Whether there was a valid reason for the dismissal related to the person's capacity or conduct including its affect on the safety and welfare of other employees.

[7] It would appear to the Tribunal that there was not a valid reason for the dismissal of Applicant in this matter. The Applicant's conduct, as identified in verbal and written submissions, was that he was simply invited to make an investment into the Respondent's business. He indicated to the Respondent he would be seeking some advice about that. Advice was put together in writing and it would appear that the Respondent has misconstrued the effect of that advice or, in fact, the importance of the document that had been put together.

(b) Whether the person was notified of that reason.

[8] The person, that is the Applicant, was not provided, in the Tribunal's view, with a satisfactory reason as to why his services were being terminated.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

[9] The Tribunal is satisfied that the Respondent has not complied with provisions (c) of section 387, in that the Applicant was not provided with the opportunity to respond.

(d) Any unreasonable refusal by the employer to allow a person to have a support person present to assist in any discussions relation to dismissal.

[10] The Tribunal is also satisfied that the employer has not complied with (d) of section 387. The Applicant was not offered the opportunity to have a support person.

(e) If the dismissal related to unsatisfactory performance by the person where the person had been warned about the unsatisfactory performance before the dismissal.

[11] The Tribunal is satisfied that this matter does not go to the issue of unsatisfactory performance, therefore that provisions is irrelevant.

(f) The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in affecting the dismissal.

[12] Again, the Tribunal would say that that's a question that does not need to be answered. It would appear that the Respondent, even if it was an employer of significant size, has appeared to take the path of not providing procedural fairness or natural justice.

(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise that are likely to impact on the procedures followed in affecting the dismissal.

[13] Again, the reasons provided by the Tribunal in relation to (f) apply to (g).

[14] The Tribunal has also looked at section 388, the Small Business Fair Dismissal Code, and the Tribunal is satisfied that although the Respondent is a small business, under no circumstances has it complied, or attempted to comply with, the Small Business Fair Dismissal Code.

[15] Therefore, the Tribunal determines that the termination of the Applicant, when looking at the requirements required under section 387 is harsh, unjust and unreasonable.

[16] Having determined the three criteria, the Tribunal now turns its mind to compensation. Having heard submissions from Mr Brett as to what the Applicant seeks, the Tribunal orders that the sum of $19,168.75 be paid to the Applicant in order to settle this matter.

[17] Payment shall be made within two weeks from the date of hearing that is, 22 November 2010.

[18] The Applicant also stated that they wish to press their application for costs.

[19] The mere fact that the Respondent did not agree to settle in conciliation does not generally go against the Respondent. They are entitled to take their respective position. It's a question of whether or not based on any view of a reasonable person, the Respondent's position was just totally unacceptable.

[20] There are a number of factors to consider: One, the mere fact that the Respondent declined to settle in conciliation should not go against them if they believe that their case is reasonable. Second, the mere fact that the Applicant put in writing a reasonable proposition from their view to settle and the Respondent did not should not go against them if they believe that their case is reasonable.

[21] What goes against the Respondent in this matter though is, in the Tribunal's view, the following:

1. They did not comply with the directions issued by the Tribunal in order for this matter to progress properly;

2. They raised a jurisdictional objection which was later withdrawn;

3. As part of the decision made by the Tribunal as to the termination being harsh, unjust and unreasonable, the Tribunal referred to section 388 of the Act, the Small Business Fair Dismissal Code, under no circumstances, and in the Tribunal's view, did the Respondent attempt to comply with that code. They also did not make any attempt to comply with section 387 of the Act; and

4. They failed to provide proper instructions to their legal representative, which prompted the Respondent’s representative to withdraw.

[22] Therefore, the Tribunal grants the claim for costs against the respondent.

[23] In order to assess that claim the Applicant is to provide to the Tribunal the costs they seek. The Tribunal will then look at that for taxing purposes and will issue a decision in due course as to the appropriate amount it is prepared to order in costs.

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