Martin Ashley v Karpati Advanced Technology Group Pty Ltd

[2015] FWC 5227

[2015] FWC 5227

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Martin Ashley
v
Karpati Advanced Technology Group Pty Ltd
(U2014/9347)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 AUGUST 2015

Application for relief from unfair dismissal.

[1] I heard this application in Sydney on 7 May 2015. The applicant represented himself. The respondent was represented by Mr Hammer, a Director. Neither party were of much assistance and much of the evidence had to be extracted by questions from me. Following the hearing I received, at my request, further submissions in correspondence from the parties.

[2] The respondent, in its Employer Response, stated that Mr Ashley was not dismissed but also, that Mr Ashley was dismissed in compliance with the Small Business Unfair Dismissal Code (Code). The respondent did not provide any evidence that it was a small business employer. However, I was satisfied on the evidence before me that Mr Ashley’s period of employment was greater than 12 months.

[3] I have had regard to s.396 of the Fair Work Act 2009 (the Act) and determined that this application was made within the period required by the Act, that Mr Lombardo is a person protected from unfair dismissal and that there is no issue of genuine redundancy.

[4] I am satisfied that the parties were in dispute over non-payment of wages to Mr Ashley for attendance at a show. I am satisfied that voices were raised. I am satisfied that Mr Hammer told Mr Ashley to get out and removed his keys to the warehouse.

[5] On balance I am satisfied and find that the employment of Mr Ashley was terminated by Mr Hammer, a Director of the respondent, in circumstances that were harsh, unjust or unreasonable. For completeness, if the respondent is a small business employer, I am satisfied that its dismissal of Mr Ashley was not in accordance with the Code.

[6] When determining this application I was satisfied and found the following:

● Mr Ashley was employed by the respondent from February 2005 until his termination of employment by the respondent on 6 September 2014.
● Mr Ashley’s salary at termination of employment was $45,000. His gross weekly wage was $862.40.
● Following termination of his employment Mr Ashley was unemployed from 6 September 2014 until 6 October 2014.
● Mr Ashley was incapacitated for work and paid workers’ compensation from 7 October 2014 until 30 December 2014.
● From 1 January 2015 to date Mr Ashley continues to be unemployed although certified as fit for restricted duties.

[7] Having determined that the applicant’s employment was terminated in circumstances that were harsh, unjust or unreasonable I now have to consider remedy.

[8] I have considered the provisions of s. 392 of the Act. I am satisfied that reinstatement would not be an appropriate remedy in the circumstances of this application.

[9] Having determined that reinstatement is not an appropriate remedy in the circumstances of this application I have to consider whether compensation would be appropriate. I have considered the provisions of s.392 of the Act. No submissions were made by the respondent regarding any effect of an order for compensation on the viability of the respondent’s enterprise. The length of Mr Ashley’s service was a positive factor. I have considered the remuneration that Mr Ashley would have received if his employment had continued. I have considered Mr Ashley's efforts to mitigate his loss. Mr Ashley has not earned any other income from other employment or work since termination of employment until this Order. I do not consider it reasonably likely that Mr Ashley will have earned any money from the date of his last correspondence to me and the publication of this decision and order. I am satisfied that compensation is appropriate.

[10] I have determined that the applicant should be paid compensation for the period 6 September 2014 to 6 October 2014, a period of 4.3 weeks. At the applicant’s gross weekly wage this is an amount of $3,708.32. I have also determined that the applicant should be paid a further 6 weeks compensation from 1 January 2015 until 14 February 2015, after which period I consider it reasonable that the applicant should have located alternative work. This is an amount of $5,174.40. I have made this determination taking into account Mr Ashley’s limited evidence as to any continuing disability.

[11] I order that the respondent pay Mr Ashley the sum of $8,882.72 plus superannuation within 14 days.

SENIOR DEPUTY PRESIDENT

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