Kate Mitrevski v Yugoslav-Australian Welfare Association Incorporated

[2010] FWA 4940

[2010] FWA 4940

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kate Mitrevski
v
Yugoslav-Australian Welfare Association Incorporated
(U2010/8399)

COMMISSIONER HARRISON SYDNEY, 6 JULY 2010

Termination of employment - unfair dismissal.

Introduction

[1] Kate Mitrevski (the Applicant) commenced employment as a Social Welfare Worker with the Yugoslav-Australian Welfare Association Incorporated (the Respondent) in January 1986.

[2] On 29 April 2010 the Applicant lodged an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[3] The matter was set down for conciliation on 20 May 2010 and both parties were formally advised. Directions were forwarded to the Respondent together with a Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy. The Respondent did not comply with the directions and did not attend the conciliation conference.

[4] On 24 May 2010 a Notice of Listing and Directions were issued to the parties setting the matter down for Arbitration Conference/Hearing at 10.00am on 5 July 2010. The Applicant complied with directions and served on the Respondent an outline of submissions and witness statement through her union, the Australian Services Union (ASU). The Respondent did not comply with the directions and when the matter was heard before me on 5 July 2010, the Respondent did not appear.

Submissions

[5] At the hearing of the matter Mr Edmund Fry of the ASU appeared with the Applicant. Mr Fry submitted that all attempts to contact the Respondent had failed since December 2009. Between December 2009 and 15 April 2010, the Applicant was paid in cash left in an envelope under the door of the Respondent’s office. In recent proceedings before the NSW Chief Industrial Magistrates Court seeking payment of entitlements, the Respondent also failed to appear. It was said the Administrator and President of the respondent association are the subject of a police investigation for fraud and larceny.

[6] As Mr Fry put it:

“The respondents have disappeared in effect. This dismissal was brought about after they stopped paying the applicant and stopped any communication with her. The respondent has been served with the conciliation notice as well as the notice of the hearing, as well as the outline of submissions and witness statement. I have an affidavit of service for the last point. They have disappeared.” 1

[7] In summary, it was submitted that:

• The NSW Department of Community Services which funds the Respondent has been attempting to contact the Respondent since 2009;



• The Applicant’s employment has been terminated without notice by the Respondent;



• There has been no contact from the Respondent to give any explanation as to why the employment was terminated;



• The termination of employment by the Respondent was harsh, unjust and unreasonable as there was no explanation given, no warning and no reason for the termination to take place;



• The termination was the result of bad management by the service and subsequent abandonment of the Applicant by the Respondent;



• The Respondent also failed to abide by the Small Business Dismissal Code in terminating the Applicant’s employment.

[8] The only material facts before me in this matter are those presented by the Applicant. The Respondent’s repeated failure to comply with directions or to contest the application in any manner leaves me in a situation whereby I accept the unchallenged submissions and witness statement of the Applicant.

Considerations

[9] Section 385 of the Act defines unfair dismissal as:

“A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[10] I am satisfied that the provisions of s.385(a), (b) and (c) have been met. In this matter there has been a dismissal within the meaning of the Act as set out in s.386(1).

[11] In considering whether the dismissal was harsh, unjust or unreasonable I must take into account the provisions of s.387 of the Act which provides:

“(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 upon 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.”

[12] On the material before me I have concluded that there can be no valid reason for the termination. The behaviour of the President and Administrator of the respondent organisation in walking away from their responsibility of managing the association has had a substantial impact on the Applicant. She was not notified of her employment status or given any semblance of fair treatment.

[13] The size of the Respondent’s undertaking and apparent lack of dedicated human resource management may have been a mitigating factor in the Respondent’s behaviour however this can be no more than a mere assumption.

[14] Having regard to all of the criterion above in s.387 I find the termination of the Applicant harsh, unjust and unreasonable.

[15] Section 390 of the Act provides a remedy for unfair dismissal. It reads:

“390 When FWA may order remedy for unfair dismissal

(1) [When FWA may order reinstatement or compensation] Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person; if:

(a) FWA 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) [Person must apply for order] FWA may make the order only if the person has made an application under section 394.

(3) [FWA must not order compensation unless appropriate] FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[16] In this matter I am satisfied that the conditions set out in s.390(1) and (2) exist. This is a case where reinstatement is not a practical option. I therefore consider it appropriate to make an order for the payment of compensation in lieu of reinstatement.

[17] In considering an amount of compensation, s.392(2) of the Act provides:

“....(2) In determining an amount for the purposes of an order under subsection (1), FWA 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 FWA considers relevant.”

[18] Mr Fry, for the Applicant, sought an order for the maximum compensation allowed under the Act. The effect of such an order on the viability of the Respondent is entirely unknown given the future likelihood or otherwise of funding by the NSW Department of Community Services.

[19] The Applicant had been employed by the Respondent for 24 years. This is a significant period which weighs heavily in favour of the Applicant.

[20] I am unaware of any efforts of the Applicant to mitigate her loss because of the of the dismissal or of any income earned since the dismissal.

[21] I am satisfied there would be no reason why the Applicant would not have continued to work for the Respondent for another five years had the Respondent not walked away and abandoned the undertaking.

[22] In balancing all the circumstances of this case I determine that the Applicant be paid a sum equivalent to 26 weeks wages plus compensation for lost superannuation contributions which would otherwise have been paid for a period of 26 weeks.

[23] Subject to further advice concerning the Applicant’s hourly rate being provided to my Associate, I will issue an order giving effect to this decision.

COMMISSIONER

Appearances:

E.Fry, Australian Municipal, Administrative, Clerical and Services Union, for Ms K. Mitrevski.

Hearing details:

2010.

Sydney:

July 5.

 1   Transcript, PN4.

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<Price code C, PR998934>