Lachlan Horn v Shark Lake Food Group Pty Ltd

[2012] FWA 5114

Note: An appeal pursuant to s.604 (C2012/4486) was lodged against this decision - refer to Full Bench decision dated 3 October 2012 [[2012] FWAFB 8292] for result of appeal.

[2012] FWA 5114

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lachlan Horn
v
Shark Lake Food Group Pty Ltd
(U2012/4116)

COMMISSIONER WILLIAMS PERTH, 20 JUNE 2012

Termination of employment.

[1] This matter involves an application made by Mr Lachlan Horn (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Shark Lake Food Group Pty Ltd (the Respondent).

Introduction

[2] At the hearing of this matter Mr Horn was self represented. There was no appearance on behalf of the Respondent.

[3] The day before the hearing proceeded my associate received an email from Mr Wildberger, the Managing Director of Shark Lake Food Group Pty Ltd requesting that the hearing be adjourned to a future date because he had other pressing business commitments on the day of the hearing.

[4] By return email Mr Wildberger was advised that I had considered his request for an adjournment of the hearing. The email explained that:

• On 26 March 2012 the notice of listing advising the parties that this matter would be heard in Esperance on Friday, 1 June 2012 was emailed, faxed and posted to him. Attached to the notice of listing were directions requiring the Applicant to provide his witness statements and submissions by 18 April 2012 and the Respondent to provide its witness statements and submissions in reply by 11 May 2012.



• In compliance with those directions the Applicant emailed two witness statements and his submissions to Mr Wildberger and Fair Work Australia on 15 April 2012.



• As at 11 May 2012 nothing in reply was received from the Respondent. On 15 May 2012 Fair Work Australia wrote to Mr Wildberger by post, fax and email reminding him of the above. The letter said that the hearing of the matter will proceed on 1 June 2012 and if no materials are filed by the Respondent the application may be decided in his absence based on the material the Applicant has provided.



• Following this letter there has been no contact from the Respondent and no witness statements or submissions have been filed.



• In summary the Respondent had failed to comply with the directions that were issued.



• The notice of listing sent to the Respondent in March included a note that requests for adjournments are to be made in a timely manner and that Fair Work Australia will consider the interests of the other party and the limited availability of Fair Work Australia.



• The morning before the hearing Mr Wildberger had requested that the hearing be adjourned to another date because he had other important business commitments.



• Accepting the importance of his other commitments at face value he was advised that it was a decision for the Respondent whom represents them at the hearing.



• There was no requirement for Mr Wildberger to attend the hearing in person. He had not personally been ordered to attend the hearing and no witness statement from him has been filed with the Tribunal and served on the Applicant.



• Considering all of the above Mr Wildberger was advised that I did not grant his application for an adjournment and that the hearing of this unfair dismissal application would proceed as previously advised in the notice of listing at 9.30 a.m. on Friday, 1 June 2012 at the Esperance Courthouse, Dempster Street Esperance.

[5] On the basis of this background I proceeded to hear and determine Mr Horn’s application in the absence of the Respondent.

The Evidence

[6] In compliance with the directions that were issued Mr Horn provided a written outline of his evidence and also a witness statement by Mr Wiremu Simon. Both of these were provided to the Respondent as mentioned above.

[7] Both Mr Horn and Mr Simon gave evidence at the hearing.

[8] Their evidence recounts a series of events that relevantly was as follows.

[9] Mr Horn at the time of his dismissal had been employed by the Respondent for approximately 3 years.

[10] In late November 2011 Mr Horn damaged a tendon in his right hand whilst at work and liability for the injury in terms of workers compensation was accepted by the Respondent’s insurer.

[11] Over the following weeks the workers compensation payments Mr Horn received from the Respondent was incorrect on a number of occasions, each time being less than the appropriate amount.

[12] On 17 December 2011 Mr Horn was advised by the Respondent’s Payroll Officer that Mr Wildberger was the only one who could do the payroll and arrange Mr Horn’s payments over the Christmas shutdown because the Payroll Officer was going on holiday.

[13] The Payroll Officer advised Mr Horn not to worry and he would leave instructions for Mr Wildberger as to how to arrange the correct payment for Mr Horn every week.

[14] Following this, the first payment Mr Horn received on 21 December 2011 was correct but the second payment received on 30 December 2011 was two days late and was also short approximately $400.

[15] Later that day Mr Horn went to Mr Simon’s house who is a work colleague and Mr Simon suggested Mr Horn ring Mr Wildberger to resolve the pay issue.

[16] Mr Horn rang Mr Wildberger and asked him about the incorrect pay and told him that he wasn’t happy with the poor management. In response Mr Wildberger loudly and crudely abused him over the phone and told Mr Horn that he would fix his pay up when he was ready. In reply Mr Horn admits he swore and told Mr Wildberger to just fix it and then hung up.

[17] Next on the 3 January 2012 Mr Horn checked his bank account to see if Mr Wildberger had paid the outstanding monies but this had not occurred.

[18] Later that day in discussions with Mr Simon they agreed that they would go to the Respondent’s premises and talk to Mr Wildberger about the shortfall and also the fact that Mr Simon hadn’t received any payslips for a period of time.

[19] When they arrived they went into Mr Wildberger’s office. Mr Wildberger acknowledged Mr Simon but ignored Mr Horn. Mr Simon asked about his payslips and Mr Wildberger went to the computer, located these and told Mr Simon they would be emailed to him.

[20] Mr Simon asked Mr Horn if he had anything he wanted to ask Mr Wildberger. Mr Horn then said to Mr Wildberger that his pay was short but before he could finish speaking Mr Wildberger jumped up, threw his chair back and started yelling at Mr Horn and swearing at him saying he was not having this conversation about money. Mr Wildberger then stood over Mr Horn in a threatening manner, pointing his finger and saying in abusive language that he would fix it when he was ready to fix it.

[21] Mr Horn in response said he was tired of Mr Wildberger yelling at him and that all he wanted was the compensation that was owed to him. Mr Horn held up his injured finger and yelled words to the effect of, ‘look at my finger, I can’t even bend it. All I want to do is think about getting better not whether my pay is going to be correct or not. I just want my money’.

[22] Mr Simon told Mr Horn to calm down and they both left the premises.

[23] On 9 January 2012 Mr Horn received a text message from Mr Powell, the Plant Manager, who told him not to come to work the next day because Mr Wildberger was angry and didn’t want Mr Horn there.

[24] Having heard nothing further, on 11 January 2012 Mr Horn arrived at work and went to get his uniform but was called aside by Mr Powell who told him it wasn’t a good idea to be there and he should go home. Mr Powell promised to organise a meeting with Mr Wildberger but this meeting never occurred.

[25] That evening Mr Horn sent Mr Powell a message saying that he was coming to work the next day and that if Mr Wildberger doesn’t want him there he needs to give him a separation certificate explaining why he was dismissing him.

[26] Early the next morning on 12 January 2012, before Mr Horn got to the Respondent’s premises, he received a text message from Mr Powell saying that he would drop off his separation certificate and that if Mr Horn went to work Mr Wildberger will ring the police and put a restraining order on him.

[27] Subsequently Mr Horn received a separation certificate from the Respondent through Centrelink.

[28] That separation certificate says he was no longer employed as of 31 December 2011 which Mr Horn points out cannot be correct because he did not have the final meeting with Mr Wildberger until after this date, on 3 January 2012.

[29] Mr Horn gave evidence about ‘Attachment 1’ which is a written record of verbal warning dated 28 April 2011 that the Respondent had provided with its form F3−Employer’s Response to Application for Unfair Dismissal Remedy (Employer’s Response).

[30] Mr Horn says that the signature that appears at the bottom of ‘Attachment 1’ is not his signature. Mr Horn says that he was never warned in the terms set out in ‘Attachment 1’ and he never signed ‘Attachment 1’.

[31] As explained above there was no appearance on behalf the Respondent. I have considered the information provided by the Respondent in its Employer’s Response. This was completed and signed by Mr Wildberger.

[32] In terms of the critical events that occurred in late December of 2011 and early January of 2012 Mr Wildberger’s response confirms that there was the telephone conversation with Mr Horn regarding payments and that there was a meeting with Mr Horn, Mr Simon and himself on 3 January 2012 at the Respondent’s premises.

[33] The critical difference between Mr Wildberger’s account of these events as set out in the Employer’s Response and the evidence of Mr Horn and Mr Simon is that Mr Wildberger says that it was Mr Horn who became verbally abusive on the phone and it was Mr Horn who raised his voice and that Mr Wildberger felt threatened by Mr Horn’s presence and feared that he would be attacked. Mr Wildberger’s response was that once Mr Horn was outside his office he told him not to return to the Respondent’s premises or he would call the police.

[34] In this case the only two witnesses who had given evidence to the Tribunal were Mr Horn and Mr Simon. I have no reason not to accept their evidence as truthful and do so. There is no evidence before the Tribunal to support the assertions made by Mr Wildberger in the Employer’s Response he completed.

Consideration

[35] The criteria for determining whether the dismissal in this case was harsh, unjust or unreasonable are set out in section 387 of the Act as follows:

“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.”

[36] In this case the evidence discloses that Mr Horn had queried the Respondent about repeated shortfalls in the payment of his workers compensation. The Respondent’s Managing Director, Mr Wildberger, in response had been abusive to Mr Horn on the phone and contemptuous of his problems. When Mr Horn attended the Respondent’s premises on 3 January 2012 to pursue the issue of the unpaid amounts the Respondent’s Managing Director, Mr Wildberger, repeated this behaviour and acted in a physically aggressive manner. Whilst Mr Horn may have responded by yelling and swearing at Mr Wildberger the evidence discloses on both occasions that this was in response to worse behaviour by Mr Wildberger in the first instance.

[37] Given these findings there is nothing before the Tribunal that demonstrates that the Respondent in this case had a valid reason for the dismissal of the Applicant at all.

[38] The Respondent did not notify Mr Horn of the reasons for his dismissal before he was dismissed and Mr Horn had no opportunity to provide a response to the reasons he was to be dismissed for.

[39] The Applicant was not dismissed for unsatisfactory performance.

[40] The Respondent is a medium sized business with around 70 employees. The Respondent is a large enough employer to have had the capacity to follow an appropriate procedure when it dismissed the Applicant, but this was not done.

[41] There is no evidence before the Tribunal as to whether or not the Respondent has dedicated human resources specialist or resources.

[42] According to the separation certificate that was completed by the Respondent’s staff, Mr Horn at the time of his dismissal had been employed by the Respondent since 6 October 2008.

[43] Considering all the above I am satisfied that the dismissal of Mr Horn was harsh, unjust and unreasonable. Mr Horn was unfairly dismissed by the Respondent.

Remedy

[44] Given the obvious antipathy by the Managing Director of the Respondent towards Mr Horn I am satisfied that it is not appropriate to reinstate Mr Horn. I do consider it is appropriate that an order for the payment of compensation be made in the circumstances.

[45] There is no information regarding the effect of any compensation order on the viability of the Respondent but given the size of the business I have no reason to believe such an order is problematic in that regard.

[46] The Applicant worked from October 2008 until his dismissal in January 2012.

[47] The Applicant’s gross remuneration, as set out on the Respondent’s insurers notice to the Applicant accepting workers compensation liability, was $ 1 314.04 per week.

[48] The Applicant actively sought to mitigate his loss by seeking other employment following his dismissal and took up a new job three weeks before the hearing of this matter.

[49] Considering the fact that there was some obvious conflict between the Managing Director and Mr Horn and that he had been injured in the workplace and that he has been employed only since 2008 my assessment is that were it not for him being dismissed that in all likelihood he would have remained in employment with the Respondent for a further period of eight months, being through to 13 September 2012.

[50] Mr Horn gained new employment from around 14 May 2012. Mr Horn advised that his pay from this employment is only half the amount he was earning when working with the Respondent.

[51] The Applicant has been receiving full weekly workers compensation payments of $1 314.04 per week from the date of his dismissal up to him commencing his new employment around 14 May 2012. However for the period between the beginning of this new employment and 13 September 2012 the Applicant will earn $657.02 per week less than he would have had he remained in employment with the Respondent. This equates to an amount of $11 826.36 gross. This is the remuneration the Applicant would have received had he not been dismissed minus the remuneration he is expected to earn over this period.

[52] The evidence demonstrates that there was no misconduct on the part of Mr Horn that contributed to the employer’s decision to dismiss him and so there will be no reduction in this amount. The amount of $11 826.36 gross is the amount of compensation in lieu of reinstatement that I determine the Respondent should in all the circumstances of this case pay to Mr Horn.

[53] An order to that effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

L Horn on his own behalf.

Hearing details:

2012.
Esperance:
June 1.

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