Marcel Russig v Coletti Corp Pty Ltd as Trustee for the Coletti Family Trust T/A Coletti Refrigeration

[2014] FWC 7849

[2014] FWC 7849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marcel Russig
v
Coletti Corp Pty Ltd as Trustee for the Coletti Family Trust T/A Coletti Refrigeration
(U2014/12596)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Marcel Russig (the Applicant) lodged an Unfair Dismissal Application (the Application) in respect of his employment with Coletti Corp Pty Ltd as Trustee for the Coletti Family Trust T/A Coletti Refrigeration (the Respondent).

[2] The Respondent employed less than 15 employees at the time the Applicant was dismissed. The Respondent provided a Small Business Fair Dismissal Code Checklist (the SBFDC Checklist).

[3] Essentially the Respondent asserts in the SBFDC Checklist that the Applicant was dismissed because of his capacity to do the job. The Respondent stated that the Applicant “failed to maintain and obtain mandatory Federal and State licensing for commercial refrigeration and air conditioning”. The Respondent also stated that the licensing requirements were a condition associated with the Applicant’s s.457 visa.

[4] The SBFDC Checklist also asserts that:

● the Respondent warned the Applicant;

● that a reasonable amount of time was provided (the Respondent says one year and five months) to comply with the licensing requirements;

● training was provided to the Applicant;

● the Applicant was demoted because he did not hold the requisite licenses but his salary was not reduced. Additionally his work performance deteriorated in the demoted position;

● records of the warnings were kept and attached to the SBFDC Checklist;
● the Applicant was given a warning “of pending termination” on 1 July 2014 if his licenses were not obtained by 31 August 2014. The Applicant is said to have declined to attend an interview on 1 September 2014.

[5] The Applicant provided an extensive account of why he asserted the dismissal was unfair. He asserted that the dismissal was for other reasons. The Applicant says that he was on leave between 21 July 2014 and 10 October 2014.

[6] The Applicant’s main complaint seemed to assert that his trade recognition by the authorities that supervise and regulate trade recognition in Australia was not due to any lack of diligence on his part. For example he states that he applied for a Trades Certificate in December 2013 and in March 2014 he was advised that he had used the incorrect form. He says that he then sent in the correct forms but in July 2014 he was informed his application was rejected because he did not fulfil a requirement of four years practical experience.

[7] The Applicant says that part of the requirements was a copy of an employment contract from the Respondent which he says he was never given. The Applicant says he was then given an employment reference on 12 August 2014 but he did not think it would be satisfactory for the trade recognition purposes. He therefore wrote out his own reference and provided it to the Respondent to edit and approve as they saw fit. He submitted it on 14 August 2014 (which seems to be by way of an appeal against the original application) to the trade recognition authority. He received a letter on 19 September 2014 showing recognition for his trade as a Refrigeration Mechanic which had been recognised on 12 September 2014. He then sought and gained a full license on 6 October 2014.

[8] I accept that the Applicant was frustrated with the processes and complications to get his license.

[9] However the test for me here is whether the Respondent complied with the Small Business Fair Dismissal Code (SBFDC). If the Respondent complied with those requirements then by operation of s.385(c) of the Fair Work Act 2009 (the FW Act) “a person has been unfairly dismissed if the Fair Work Commission (the FWC) is satisfied that the dismissal was not consistent with the Small Business Fair Dismissal Code” (original emphasis). Of course that means if an employee has been dismissed consistent with the SBFDC then the dismissal is not unfair.

[10] The FW Act provides at s.388(2) that:

“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.

[original emphasis]

[11] Here I am satisfied that immediately before the dismissal the Respondent employed less than 15 employees. Indeed that does not appear to be disputed. The Respondent also appears to me to have complied with the SBFDC. Whilst there are a series of complaints about the Respondent and Mr Coletti the Applicant has not satisfied me that the Respondent has not complied with the SBFDC.

[12] I am therefore obliged by operation of s.385(c) of the FW Act to dismiss the Application.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 29 October 2014.

Respondent, 23 October 2014.

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