Leanne Nicholson v Allbern Printing Services Pty Ltd T/A Allbern Print & Design

[2013] FWC 3704

[2013] FWC 3704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Nicholson
v
Allbern Printing Services Pty Ltd T/A Allbern Print & Design
(U2013/5853)

COMMISSIONER BLAIR MELBOURNE, 12 JUNE 2013

S394 application for unfair dismissal remedy.

[1] This is an application made under s.394 of the Fair Work Act 2009 (the Act). Ms Leanne Nicholson (the Applicant) represented herself. No-one appeared for Allbern Printing Services Pty Ltd t/a Allbern Print & Design and Allbern Digital Print & Design Pty Ltd t/a Allbern Digital Print & Design (the Respondent).

[2] This matter was first dealt with by conciliators of the Fair Work Commission (the Commission) in conciliation on 14 February 2013; however, the matter was unable to be resolved. The matter then proceeded to arbitration by the Commission on 3 June 2013. Communication was received from Mr Tagell, for the Respondent, seeking an adjournment. That application for adjournment was not granted and Chambers confirmed that the matters would be heard as scheduled, on 3 June 2013. Chambers also noted that the Respondent had not yet filed materials in line with the Directions issued on 13 March 2013.

[3] The following decision (now edited) was handed down in transcript at the conclusion of the hearing:

[4] The Applicant states that she commenced employment in on 19 April 2010 and was dismissed on 2 January 2013. The dismissal came by way of a text message on 2 January 2013 at 7.47am, which stated, in the middle of a very long paragraph:

“Well don’t be bothered by working for me again, you were never coming back anyway”.

[5] The Applicant has taken that as being the termination, and the Commission would agree that that would indicate that her services were no longer required by the Respondent.

[6] The Respondent is a small business employer for the purposes of section 388 as they employ fewer than 15 people,

[7] Section s.388(2) of the Act states:

“(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[8] The Small Business Fair Dismissal Code, in relation to summary dismissal, states as follows:

“Small Business Fair Dismissal Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[9] The Applicant states that during her period of employment she was never counselled, warned, or given an indication that her employment was in jeopardy. The Applicant is aware of the allegations made against another employee whose employment has also been terminated and she appears to be wound up into those allegations by the Respondent. The Applicant denies any knowledge of the allegations made by the Respondent.

[10] The Respondent sought an adjournment of today’s proceedings based on material that was available to him. The Commission did not grant the adjournment application. It would appear that, as far as anyone is aware, the allegations made against both terminated employees have never been brought to the attention of the police.

[11] The Commission finds that there was a termination at the instigation of the Respondent and that, based on the uncontested material provided to the Commission by the Applicant, there was not a valid reason for the termination of her employment.

[12] Finding that there was not a valid reason for termination, the Commission then turns its mind to remedy. Reinstatement is not an option that the Commission would consider relevant.

[13] In relation to compensation, s392(2) of the Act states:

“(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.”

[14] In relation to (a), there has been no material provided to the Commission to indicate what effect, if any, any order of the Commission would have on the viability of the Respondent.

[15] In relation to (b), the Applicant was employed for approximately two years.

[16] In relation to (c,) the Applicant advises that she was earning approximately $680 nett per week. That would mean that she would have earned a total of $14,280 up to today’s date.

[17] In relation to (d), the Applicant found new employment approximately seven weeks after the termination of her employment.

[18] In relation to (e), the Application has earned approximately $10,500.

[19] In relation to (f) and (g), the Applicant found other employment seven weeks after being terminated and the date of termination to today’s date is approximately 21 weeks. Therefore, if we take seven weeks from the 21 weeks, the Applicant has earned approximately $10,500. The Commission estimates that in the period between termination and finding new employment, the Applicant should have earned the sum of $4,760.

[20] Therefore, the Commission orders that the sum of $4,760 net be paid in compensation be paid by the Respondent no later than one month from the date of issue of the Decision and Order for Compensation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR537725>