Karimbalan Jayakrishnan v Sincore Engineering Pty Ltd T/A Sincore Engineering Pty Ltd

[2014] FWC 2984

[2014] FWC 2984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karimbalan Jayakrishnan
v
Sincore Engineering Pty Ltd T/A Sincore Engineering Pty Ltd
(U2013/3117)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 MAY 2014

Application for relief from unfair dismissal - remedy - compensation awarded.

[1] On 17 April 2014, I issued a decision 1 in which I found that the termination of Mr Jayakrishnan was unfair. The application was listed for a further hearing on remedy.

[2] At the hearing on 1 May 2014 evidence was called by Mr Jayakrishnan and Mr Singh.

[3] Mr Jayakrishnan sought reinstatement. He further sought compensation for lost wages in the period until January 2014, and after that date he sought the difference between the amount he would have earned if he had remained in employment and the amount he earned from his business.

[4] Mr Singh gave evidence that the current Thailand project would be completed at the end of June 2014 and the company had no further projects. As a result, the company will need to reduce staffing numbers further. It was his evidence that if he was required now to reinstate Mr Jayakrishnan he would need to terminate the employment of another employee.

Remedy

[5] In circumstances where the uncontested evidence of Mr Singh is that there will be no work for Mr Jayakrishnan after the end of June 2014 and that there will be further redundancies within two months, I consider that reinstatement would be inappropriate.

[6] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[7] Mr Jayakrishnan is seeking the maximum compensation available under the Fair Work Act 2009.

[8] The uncontested evidence of Mr Singh and the financial records of the business disclose that such a payment would have a significant impact on the business. Mr Singh submitted that a lesser payment would not cause the business to shut down nevertheless it would have a detrimental impact on the business. This evidence was not contradicted. This criteria weighs against a higher compensation payment.

(b) the length of Mr Jayakrishnan’s service with the employer;

[9] MrJayakrishnan had worked for Sincore for just over four years. This is neither a long or short period of service and does not impact on the amount of compensation.

(c) the remuneration that Mr Jayakrishnan would have received, or would have been likely to receive, if he had not been dismissed;

[10] Had Mr Jayakrishnan not been dismissed he would have remained working for Sincore until the end of June 2014 when the Thailand project ended.

(d) the efforts of Mr Jayakrishnan (if any) to mitigate the loss suffered because of the dismissal;

[11] Mr Jayakrishnan gave evidence of his attempts to mitigate his loss and I accept that he has taken steps to find alternative employment. As a consequence in January 2014 he started his own business. However we has continued to look for work as an employee. Mr Singh submitted that the difficulty Mr Jayakrishnan had in finding work was a function of the state of the vehicle production industry. I accept Mr Jayakrishnan has attempted to mitigate his losses.

(e) the amount of any remuneration earned by Mr Jayakrishnan from employment or other work during the period between the dismissal and the making of the order for compensation;

[12] Mr Jayakrishnan earned from his own business $10,210 to the week ending the 18 March 2014. I assume he continued to earn monies after that date. Mr Jayakrishnan was also paid four weeks pay in lieu of notice.

(f) the amount of any income reasonably likely to be so earned by Mr Jayakrishnan during the period between the making of the order for compensation and the actual compensation;

[13] Mr Jayakrishnan continues to earn monies from his own business but that amount varies from week to week.

(g) any other matter that the Commission considers relevant.

[14] It was submitted that I should have regard to the mortgage insurance payments received by Mr Jayakrishnan whilst he was unemployed. I do not consider that these payments are relevant to the determination of compensation.

Conclusion

[15] I consider that Mr Jayakrishnan is entitled for compensation for the period he was not working. It was his evidence that he commenced operating his own business from 7 January 2014. Had Mr Jayakrishnan been employed to 7 January 2014 he would have earned $23,370. He was paid four weeks pay in lieu of notice. I will deduct four weeks from the total leaving $18,450. I will deduct 25% for contingencies being $4,612.50 leaving a total of $13,837.50.

[16] I will therefore order Sincore to pay Mr Jayakrishnan $13,837.50 within 21 days of the making of this order.

DEPUTY PRESIDENT

Appearances:

Mr Jayakrishnan representing himself.

Mr Singh representing Sincore Engineering Pty Ltd.

Hearing details:

2014.

Melbourne:

1 May.

 1   [2014] FWC 2323.

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