Madeline Tan v Allbern Printing Services Pty Ltd T/A Allbern Print & Design

[2013] FWC 3696

[2013] FWC 3696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Madeline Tan
v
Allbern Printing Services Pty Ltd T/A Allbern Print & Design
(U2013/5675)

Madeline Tan
v
Allbern Digital Print & Design Pty Ltd T/A Allbern Digital Print & Design
(U2013/5689)

COMMISSIONER BLAIR MELBOURNE, 12 JUNE 2013

S.394 application for unfair dismissal remedy.

[1] This is an application made under s.394 of the Fair Work Act 2009 (the Act). Ms Madeline Tan (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 13 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 alleges that she commenced employment in approximately August 2010. The date of termination was approximately 27 December 2012. The termination arises out of a series of text messages from Mr Brent Tagell. The primary text is dated 27 December 2012 at 11.18am. It states:

“Lastly, I want card back now. Leave with a shop or sone where next hour please and that will officially be last communication. Your wages and super will out in over next few weeks and email statement at end. Was great working with you. I hope your loyalty, honesty and attitude rubbed off in staff. Glad I had a mate to confide in about parents, feel like the have given myself up to the devil.”

[5] One assumes the devil is the Applicant.

[6] The Respondent is a small business employer for the purposes of section 388, as they employ fewer than 15 people. The Applicant was summarily dismissed for reasons that appear to be in the series of text messages, which she is totally unaware of and denies any allegations made in the series of text message which appear to commence on 27 December 2012 at approximately 02.15am.

[7] Section s388(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] As indicated, the Applicant denies any of the allegations made by the Respondent concerning serious breaches of her duties as an employee. The Applicant asserts that none of the issues put to her in the text messages were ever raised with her. She also states that during the period of employment she has never been counselled, warned, or indicated in any way that her employment may be terminated for any reason.

[10] It would appear, prima facie, that there was no a valid reason for the termination of the Applicant. The Respondent has written to the Commission, asserting the same allegations previously made to the Applicant and seeking an adjournment of the matter. The Respondent was advised that the matter would not be adjourned, and that the matter would proceed. For whatever reason, the Respondent has failed to attend.

[11] The Commission determines that there was a termination at the instigation of the employer and there was no valid reason for the termination, the Commission doesn't have to deal with the issue of whether the termination was harsh, unjust and unreasonable.

[12] The Commission, then, turns its mind to the issue of compensation.

[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) the Commission is unaware of any effect that it may have because the respondent has failed to attend.

[15] In relation to (b), the service would have appear to be approximately two years.

[16] In relation to (c), the Applicant advises that she was earning approximately $750 gross per week. She has been out of work for approximately 21 weeks. That would mean that she would have earned a total of $15,750 up to today’s date.

[17] In relation to (d), the Applicant indicates that she has been studying but she has got some casual work and earned an income of some $4000 approximately but has been waiting on this matter to be resolved.

[18] In relation to (e), as previously indicated, the Applicant has earned approximately $4000 gross.

[19] In determining and taking into account the criteria under s.392(2) of the Act, determining that there was not a valid reason for termination and taking into account the approximate $4000 that the Applicant earned, and approximately $15,750 that she would have earned if she had remained in employment, the Commission determines that the sum of $11,750 gross be paid by the Respondent no later than one month from the date of issue of the Decision and Order for Compensation.

[20] An order for compensation will also be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR537715>