Kiefer Skyrme v Melbourne Removals Pty Ltd T/A Melbourne Removals

[2014] FWC 7528

[2014] FWC 7528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kiefer Skyrme
v
Melbourne Removals Pty Ltd T/A Melbourne Removals
(U2013/17791)

COMMISSIONER WILLIAMS PERTH, 27 OCTOBER 2014

Termination of employment.

[1] This matter involves an application made by Mr Kiefer Skyrme (Mr Skyrme or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Melbourne Removals Pty Ltd T/A Melbourne Removals (the respondent).

[2] At the hearing of this matter on 21 October 2014 there was no appearance on behalf of the respondent. The notice of listing for this matter was both emailed and posted to the respondent in April 2014. The direction attached to the notice of listing required the respondent to file written statements of evidence and any other materials by 10 September 2014. No materials of any type have been filed by the respondent nor has the respondent at any time contacted the Commission with regard to this application since the notice of listing was sent.

[3] By way of context I note that the conciliation which was attempted in February 2014 could not take place because the Fair Work conciliator was unable to contact the respondent’s representatives through various phone numbers and messages were left at a number of phone contacts but were not returned.

[4] The directions attached to the notice of listing advised that if either party failed to comply with the directions the matter would proceed and be decided on the basis of the materials filed in compliance with those directions, which in this instance are the materials filed by Mr Skyrme.

[5] Mr Skyrme was self represented at the hearing and gave evidence in support of his application.

The evidence

[6] Mr Skyrme presented as a believable witness and I have no reason not to accept his evidence in full and do so.

[7] The respondent is a furniture removal business.

[8] Mr Skyrme was first employed in April 2013 and worked at the respondent’s business in Perth until 4 December 2013.

[9] After a period in his employment the respondent and Mr Skyrme agreed that he would commence a diploma in business management and once this was completed he would remain with the respondent for at least two years as was required by his 457 Visa requirements.

[10] Mr Skyrme is unsure as to the total number of employees of the respondent nationwide however it seems that the respondent is a medium sized business. In Perth the respondent employed only one other person which was Mr Skyrme’s Manager Mr Anand Sekar (Mr Sekar) to whom Mr Skyrme reported.

[11] In October of 2013 the respondent’s National Manager “Matt” arranged for Mr Skyrme to fly to Melbourne to gain a broader appreciation of the respondent’s operations.

[12] Having returned to Perth after the trip Mr Skyrme felt that Mr Sekar’s attitude towards him had changed. Mr Sekar was finding fault with Mr Skyrme for no reason and was generally cold towards him.

[13] Mr Skyrme tried to find out from Mr Sekar why he was dissatisfied or unhappy with Mr Skyrme but Mr Sekar would not explain and Mr Skyrme believed he had done nothing wrong.

[14] Mr Skyrme contacted Matt in Melbourne in an attempt to find out what Mr Sekar’s concerns with him were but this proved to be futile and no explanation was provided to him.

[15] On around 4 December 2014 Mr Sekar sent a text message to Mr Skyrme asking him to attend the office for a talk.

[16] Mr Skyrme attended as requested and Mr Sekar then told Mr Skyrme that there had been “problems” but when pressed by Mr Skyrme for an explanation Mr Sekar would not say what these were. Mr Sekar then told Mr Skyrme that there was no more work for him and he should hand in his keys.

[17] At no stage did Mr Sekar explain what the reason for dismissing Mr Skyrme was.

[18] Mr Skyrme had not received any prior verbal or written counselling or warnings regarding his conduct or performance.

[19] After being dismissed Mr Skyrme sought alternative employment but given the time of year he was not able to obtain another position until the beginning of February 2014. He continues to work in that position and earns $400 gross per week in that role.

[20] Prior to being dismissed Mr Skyrme was earning an average of $750 nett per week.

Consideration

[21] The question for the Commission to determine is whether the dismissal of Mr Skyrme was harsh, unjust or unreasonable. The criteria the Commission must take into account in considering this are specified in section 387 of the Act which are set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

Valid reason

[22] The only evidence before the Commission regarding the events leading up to the dismissal and regarding the dismissal itself was that given by Mr Skyrme.

[23] It is clear from the evidence that there was no valid reason for the dismissal of Mr Skyrme.

Notification of the reason

[24] Mr Skyrme was not notified of the reasons for his dismissal other than in the vaguest terms that there had been unspecified problems.

Opportunity to respond

[25] While there was a discussion with Mr Sekar it could not be said that there was an opportunity for Mr Skyrme to respond to the reasons for dismissal given these were not explained at all.

Support person

[26] The respondent did not refuse to allow Mr Skyrme to have a support person present at the final discussion that ended in his dismissal.

Performance warnings

[27] No warnings were given to Mr Skyrme about any perceived unsatisfactory performance prior to his dismissal.

Size of the enterprise

[28] The respondent was a medium sized enterprise. The procedure adopted by the respondent was deficient in all ways and fell well short of what could reasonably be expected of a business of its size.

Human resource specialists

[29] The evidence does not disclose whether the respondent had dedicated human resource specialists.

Conclusion

[30] There was no valid reason for the dismissal of Mr Skyrme. No explanation was given to Mr Skyrme as to why he was being dismissed and consequently he was denied the opportunity of responding to whatever the respondent’s concerns were which remain unknown.

[31] In all the circumstances I am satisfied that Mr Skyrme’s dismissal was unjust and unreasonable. The dismissal of Mr Skyrme was unfair.

Remedy

[32] Considering the respondent’s failure to participate in the proceedings the likelihood is that reinstatement is not appropriate. This is reinforced by the fact that Mr Skyrme now has other employment which he has been in for eight months. Consequently I find that reinstatement is not appropriate in this case however I am satisfied that it would be appropriate for the Commission to make an order for compensation.

[33] The criteria for deciding the amount of compensation to be ordered are provided for in section 392 of the Act which is set out below.

“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.”

[34] There is no evidence as to the effect of an order for compensation on the viability of the respondent’s enterprise.

[35] At the time of his dismissal Mr Skyrme had been employed for approximately eight months.

[36] The evidence is that the parties had reached an understanding that Mr Skyrme would study for his diploma of business management and after this was to remain with the business for approximately a further two years. It is reasonable then to conclude that were it not for his dismissal Mr Skyrme would have remained in the respondent’s employment for a minimum of two and a half years.

[37] Consequently the remuneration that Mr Skyrme would have received if he had not been dismissed is the equivalent of two and a half years wages at the rate of $750 per week nett.

[38] Mr Skyrme gained employment two months after he was dismissed and has continued to be employed in this position where his wages are $400 per week gross.

[39] Considering the criteria in section 392(2) of the Act and the unusual facts in this case where there was an express commitment by Mr Skyrme to remain in the employment for a number of years to come it would be appropriate to order an amount of compensation which would be the difference between the remuneration Mr Skyrme would have received for two and a half years with the respondent minus the lesser amount he has been earning in his new position and assumedly will continue to for the same total period of time of two and a half years, noting that this amount was not earned for the first two months when he was unemployed.

[40] The compensation cap relevant in this instance is the total amount of remuneration which Mr Skyrme received or was entitled to during the 26 weeks immediately before his dismissal which amounts to 26 x $750 = $19 500 nett. Obviously this amount will be less than the amount I would have ordered under section 392(2) and consequently the maximum amount that the Commission can order in this case is an amount equal to the compensation cap of $19 500 nett.

[41] An order for compensation will be issued in conjunction with this decision requiring the respondent to pay to Mr Skyrme the amount of $19 500 nett within 21 days.

COMMISSIONER

Appearances:

K Skyrme on his own behalf.

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<Price code C, PR556951>