Mark Jurga & Andrew DeWittv v XSite Services Pty Ltd

[2021] FWC 2721

[2021] FWC 2721

FAIR WORK COMMISSION

DECISION NO. 2

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Jurga
v
XSite Services Pty Ltd
(U2020/12363)

Andrew DeWitt
v
Xsite Services Pty Ltd
(U2020/12554)

COMMISSIONER CAMBRIDGE SYDNEY, 13 MAY 2021

Unfair dismissals - exparte proceedings - no valid reason for dismissals - applicants verbally advised of dismissal - no written advice of dismissals - dismissals harsh, unreasonable, and unjust - compensation Ordered.

[1] This Decision has been made in respect of two applications for unfair dismissal remedy that were taken pursuant to s. 394 of the Fair Work Act 2009 (the Act). On 19 January 2021, the Fair Work Commission (the Commission) issued a Decision [2021] FWC 169 (the Jurisdictional Decision) which dismissed jurisdictional objections that were taken against each of the applications.

[2] The first application (U2020/12363) was lodged at Sydney on 15 September 2020. The first application was made by Mark Jurga (Jurga or the first applicant), and the respondent employer in that matter was named to be SMP Solutions PTY LTD or X Site Group. Relevantly, SMP SOLUTIONS PTY LTD has been clarified to be a Company withan ABN: 95 139 706 184 (SMP). Subsequently, the named respondent to the first application has been amended to be XSITE SERVICES PTY LTD which has an ABN:16 146 704 618 (Xsite Services).

[3] The second application (U2020/12554) was lodged at Sydney on 18 September 2020. The second application was made by Andrew DeWitt (DeWitt or the second applicant), and the respondent employer in that matter has been identified to be XSITE SERVICES PTY LTD which has an ABN:16 146 704 618 (Xsite Services). The second applicant has been represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[4] Both the first and second applications indicated that the employment of the respective applicants commenced in January 2020, and the date that each of the applicants’ dismissals took effect was 28 August 2020. Consequently, both the first and second applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[5] Following the Jurisdictional Decision, the matters were the subject of Mention and Directions by telephone proceedings held on 11 February 2021. On 11 February 2021, Peter Bouzanis from PADE Consulting Pty Ltd appeared on behalf of the respondent entities, SMP and Xsite Services. During the proceedings, an issue arose regarding the identification of the correct respondent in the first application, and Mr Bouzanis indicated that he would communicate with the first applicant regarding whether the respondent in that application could be correctly identified.

[6] On 11 February 2021, Directions were issued by the Commission for the filing of evidence and submissions in preparation for the arbitration of the claim. The applicants have filed material in accordance with these Directions. The respondent entities have not filed any material, either in accordance with these Directions or more generally.

[7] On 12 February 2021, the Commission was provided with a copy of correspondence sent by Mr Bouzanis to the first applicant which inter alia, invited Jurga to consent to the application “being amended to name SMP Solutions Pty Ltd and no other as the respondent in the proceedings.”

[8] On 14 April 2021, the Commission sent correspondence to Mr Bouzanis and PADE Consulting Pty Ltd which referred to the Directions that had been issued on 11 February 2021 and alerted the respondent’s representatives to the apparent failure to provide any material by 12 April 2021, as required by the Directions issued on 11 February 2021. On 16 April 2021, Mr Bouzanis sent an email communication to the Commission which relevantly advised that he would “no longer be assisting Xsite Services Pty Ltd in the above proceedings and that all future communications should be directed to Sandra Kiceec at [email protected].”

[9] In view of the advice provided by Mr Bouzanis, on 16 April 2021, the Commission sent correspondence to Ms Sandra Kiceec which referred to the Directions that had been issued on 11 February 2021 and alerted her to the apparent failure of the respondent(s) to provide any material in accordance with those Directions. On 19 April 2021, Mr Bouzanis provided the Commission with a Form F54 - Notice that lawyer or paid agent has ceased to act for a person. The Form F54 indicated that Xsite Services Pty Ltd was the named respondent in both the first and second applications and confirmed that Peter Bouzanis from PADE Consulting Pty Ltd had ceased to act for Xsite Services.

[10] On 29 April 2021, the Commission sent further correspondence to Ms Sandra Kiceec at Xsite Services which referred to the previous correspondence of 16 April 2021 regarding the respondent’s failure to provide material in accordance with the Directions of the Commission issued on 11 February 2021. Further, this correspondence advised that if the respondent failed to properly deal with its position in respect of the proceedings, the matter would potentially proceed ex parte to Hearing and Determination, and that Orders may be made against the respondent in their absence.

[11] In view of the record of conduct of those who apparently have responsibility to act on behalf of the respondent, it was unsurprising that the respondent failed to attend at the Hearing of the matter today or provide any acceptable explanation for its non-attendance.

[12] Consequently, the Commission has proceeded to hear the matter ex parte and has accepted and considered the contents of statements made by the applicants dated 15 March 2021, together with an outline of submissions document filed by the CEPU on 16 March 2021.

[13] The applicants had worked for the respondent, Xsite Services, for periods of approximately 8 to 9 months. Jurga was engaged as a Telecommunications Field Supervisor, and DeWitt was employed as a Telecommunications Rigger.

[14] On 28 August 2020, the applicants (and others) were called to a meeting at a Edmundsen Park site where they were addressed by the respondent’s General Manager, Mr Richard Street, who advised the assembled group of employees that they were dismissed from employment. The dismissals allegedly arose from the respondent having no further work for inter alia, the applicants to perform, and mention was also made of alleged non-compliance with verification of competency requirements of the principle for which the respondent had a contractual engagement.

[15] The applicants were not provided with any documentary confirmation of the termination of their employment or any reasons for their dismissals. The applicants were not paid outstanding wages or other accrued entitlements.

[16] Since the dismissals, the applicants have sought alternative employment and recently DeWitt has secured alternative employment. Jurga obtained some casual employment and subsequently commenced as a contractor.

[17] The unchallenged evidence of the applicants has established that they each have been dismissed from employment in an extraordinarily abrupt manner and without proper explanation or reason being provided.

[18] The applicants were persons protected from unfair dismissal in satisfaction of s. 382 of the Act.

[19] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[20] The evidence has not revealed any valid reason for the dismissals of the applicants. The uncontested evidence has established that; (a) the applicants were dismissed, and; (b) the dismissals were harsh, unjust, and unreasonable, and; (c) the dismissals were not consistent with the Small Business Fair Dismissal Code which was found in the Jurisdictional Decision, to not be applicable, and; (d) the dismissals were not a cases of genuine redundancy.

[21] In this case, the respondent has refused to participate in conciliation of the applications. The respondent has also failed to attend at the Hearing or provide any acceptable explanation for its non-attendance. I am satisfied that the respondent, Xsite Services, was provided with proper notice of these proceedings before the Commission. The respondent’s failure to properly attend to proceedings before the Commission is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicants’ dismissals.

Conclusion

[22] The applicants were verbally advised of their dismissals and subsequently not provided with a letter of dismissal or other documentation that notified of any reason for the dismissals.

[23] Upon any analysis and particularly in the absence of a valid reason for the dismissals, the applicants’ dismissals were manifestly harsh, unreasonable, and unjust.

[24] The conduct of the respondent in respect to the dismissals of the applicants and in regard to these proceedings before the Commission has been highly regrettable. The applicants’ claims for unfair dismissal have been established.

Remedy

[25] The applicants have, at Hearing, not sought reinstatement as remedies for their unfair dismissals. In the circumstances, particularly as the employment relationships were irreparably damaged by the events of 28 August 2020, any reinstatements of the applicants would not be appropriate remedies.

[26] The Commission has decided that compensation would be an appropriate remedy for each of the applicants’ unfair dismissals, and consideration has been made of the factors which involve the quantification of any amount of compensation.

[27] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. The Commission has approached the question of compensation having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 1 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 2 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide3; Balaclava Pastoral Co Pty Ltd v Nurcombe;4 and Hanson Construction Materials v Pericich5(Pericich).

[28] Firstly, the Commission confirms that Orders for payment of compensation to the applicants will be made against the respondent employer in lieu of the reinstatements of the applicants.

[29] Secondly, in determining the amount of compensation that is to be Ordered, the Commission has taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[30] There was no evidence provided which established that Orders of compensation would impact on the viability of the respondent’s enterprise.

[31] The applicants, Jurga and DeWitt, had been employed for periods of about 8 to 9 months. Jurga would have been likely to have received remuneration of approximately $2,115.00 per week if he had not been dismissed. DeWitt would have been likely to have received remuneration of approximately $1,826.00 per week if he had not been dismissed.

[32] There was no evidence which established that the employment of the applicants was likely to conclude at any identifiable point in time. Consequently, the Commission has determined that the employment of the applicants would have, in each case, been likely to have continued for at least a period equivalent to the length of time that they had been employed, about 8 months.

[33] For the purposes of calculation of remuneration that the applicants would have received or would have been likely to receive if they had not been dismissed, the Commission has considered that the employment of the applicants would have continued for a period of 26 weeks following the terminations of employment. Therefore, the total remuneration that Jurga would have received in the notional period of 26 weeks following dismissal amounted to a figure of $54,990.00, and the total remuneration that DeWitt would have received in the notional period of 26 weeks following dismissal amounted to a figure of $47,476.00.

[34] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $16,500.00 in the case of Jurga, and $8,500.00 in the case of DeWitt. Both applicants were not paid any amount in lieu of notice, nor at the time of Hearing, had they been paid their due entitlements.

[35] Thirdly, in this instance there was no established misconduct of the applicants, and consequently no reduction has been made to the amount of compensation to be provided to the applicants on account of any established misconduct.

[36] Fourthly, the Commission confirms that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicants by the manner of the dismissals.

[37] Fifthly, the amounts Ordered do not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[38] Consequently, for the reasons outlined above, taking into account all of the circumstances of these cases, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, the Commission has decided that the amount of compensation to be provided to Jurga should be a gross figure of $38,490.00, and the amount of compensation to be provided to DeWitt should be a gross figure of $38,976.00.

[39] Accordingly, separate Orders [PR729796] and [PR729797] providing for unfair dismissal remedies in these terms will be issued.

COMMISSIONER

Appearances:

Mr D Austin, from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for the applicants.

Hearing details:

2021.

Sydney:

May, 13.

Printed by authority of the Commonwealth Government Printer

<PR729794>

 1 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 2   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 3   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 4   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 5   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.