Matthew Thurgood v Adadn Pty Ltd
[2021] FWC 99
•15 JANUARY 2021
| [2021] FWC 99 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Thurgood
v
Adadn Pty Ltd
(U2020/13060)
DEPUTY PRESIDENT DEAN | SYDNEY, 15 JANUARY 2021 |
Application for an unfair dismissal remedy – applicant unfairly dismissed - compensation ordered.
[1] This decision concerns an application made by the Mr Thurgood (the Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy in relation to his employment with Adadn Pty Ltd (the Respondent).
[2] The Respondent did not file a Form F3 (Employer Response to Unfair Dismissal Application) and failed to attend conciliation conference which was scheduled for 29 October 2020.
[3] The matter was subsequently referred to me for hearing. Directions were issued for the parties to file and serve material and the matter was listed for hearing on 19 January 2021. The Respondent did not comply with the Directions and did not file any material.
[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), as the Applicant’s representative, filed submissions and a statement of the Applicant in compliance with the Directions. On 18 December 2020, Mr Fischer of the CFMMEU wrote to the Commission requesting that the matter be determined ‘on the papers’.
[5] In considering this request it is relevant that the Respondent has displayed a deliberate disregard for the Commission’s process by failing to appropriately engage and comply with directions in respect of several matters. 1
[6] In the circumstances, I consider it appropriate to determine the matter on the basis of the material filed.
BACKGROUND
[7] The background and circumstances leading to the Applicant’s dismissal set out below are established by the uncontested evidence of the Applicant.
[8] The Applicant commenced employment with the Respondent on 5 June 2019 as a full-time carpenter. His employment was governed by the Building and Construction General On‐Site Award 2010 (the Award). His verbal employment contract provided a base rate of pay of $38 per hour, travel allowance of $20 a day and a weekly payment of $100 to his account with the Australia Construction Industry Redundancy Trust.
[9] On 8 September 2020, he attended the work site as normal. At the end of the shift he and other workers were packing up tools when they were approached by Mr Ori Arslan and the following conversation took place:
“Mr Arslan: That’s it guys, you’re finishing up today.
Another worker: Why?
Mr Arslan: There’s no more work.
The Applicant: Do we get a notice period? Or redundancy?
Mr Arslan: No, ADADN is labour hire, you don’t get that.
The Applicant: Ok, thanks for having me employed.
Mr Arslan: When you get back to Brisbane, give me a call.”
[10] The Applicant found employment about two weeks after the dismissal.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[11] Notwithstanding the absence of any response from the Respondent, the CFMMEU acknowledged that there may be a jurisdictional issue in this matter, being whether the dismissal was for redundancy reasons arising from a shortage of work.
[12] The CFMMEU contended that the dismissal was not a case of genuine redundancy. It submitted that the onus is on the Respondent to demonstrate that the dismissal was a genuine redundancy within the meaning of the Act, and s.389 defines a case of genuine redundancy as follows:
(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[13] The CFMMEU disputed the possibility that the Respondent had a shortage of work and that the Applicant’s job is no longer required to be performed. In the alternative, it was contended that the Respondent failed to comply with the consultation obligation prescribed in clause 8 of the Award which provides as follows:
“8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.”
[14] The CFMMEU submitted that the Respondent failed to discuss with the Applicant the shortage of work and any proposed redundancy and did not provide in writing all relevant information about the proposed change. In this regard, the CFMMEU pointed to the Applicant’s evidence that he was summarily dismissed without consultation or prior notice and that there was no consultation process at the time of the dismissal.
[15] It was submitted that there was no valid reason for the dismissal and the dismissal was harsh, unjust and unreasonable.
[16] The CFMMEU seeks on behalf of the Applicant an order for compensation of two weeks’ wages equating to $5,972.00 gross, that being what the Applicant would have earned between his dismissal and the date on which he found work.
[17] It was submitted that the amount of $5,972.00 was calculated on the basis of an average weekly gross earnings of $2986.23 per week which included a $100 superannuation contribution.
[18] The CFMMEU has made the following submissions about matters under s.392(2) of which the Commission must take into account in determining the amount of compensation:
a. The Applicant’s relatively short length of service should be a neutral factor in the calculation of the amount of compensation.
b. The Application would have continued his employment had he not been dismissed.
c. The Applicant acted to mitigate his loss immediately but was only able to obtain alternative employment around 2 weeks after his dismissal on 23 September 2020.
d. The conduct of the Respondent in summarily terminating the Applicant’s employment without notice had caused him significant hardship and economic loss.
e. An order for compensation is appropriate in circumstances of the substantive and procedural unfairness of the dismissal.
CONSIDERATION
Was the dismissal a case of genuine redundancy
[19] Having considered the evidence and material I am satisfied and find that the dismissal was not a case of genuine redundancy within the meaning of the Act. There is no evidence to support a finding that there was a shortage of work, or that the consultation requirements outlined above were met.
[20] I now turn to consider whether the Applicant’s dismissal was unfair on the basis of the criteria in s.387 of the Act.
Protection from Unfair Dismissal
[21] I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act.
Was the dismissal unfair?
[22] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[23] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
[24] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[25] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd2as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[26] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.3
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? - s.387(a)
[27] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.6
[28] The Applicant’s dismissal did not relate to his capacity or conduct. Given my finding that the dismissal was not a case of genuine redundancy, I am satisfied and find that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct.
Was the Applicant notified of the valid reason? - s.387(b)
[29] As I have not found that there was a valid reason for the dismissal, this factor is not relevant to the present circumstances 7.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? – s.387(c)
[30] As I have not found that there was a valid reason for the dismissal, this factor is not relevant to the present circumstances 8.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? - s.387(d)
[31] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[32] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”9
[33] There is no evidence that the Applicant was unreasonably refused a support person.
Was the Applicant warned about unsatisfactory performance before the dismissal? - s.387(e)
[34] The dismissal did not relate to unsatisfactory performance and this factor is therefore not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise and the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[35] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.10 On the contrary, the absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”11
[36] There is no evidence as to the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
Other relevant matters - s.387(h)
[37] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[38] In this matter there are no other relevant matters to be considered.
Conclusion as to unfairness
[39] Having considered each of the matters specified in s.387 of the Act and on the basis of the uncontested evidence of the Applicant, I am satisfied that there was no valid reason for the dismissal of the Applicant, and the dismissal was harsh, unjust and unreasonable.
[40] I now turn to the appropriate remedy.
Remedy
[41] Having found that the Applicant was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him.
[42] Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
a. I am satisfied that reinstatement is inappropriate; and
b. I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[43] In this case, I am satisfied that reinstatement is inappropriate. The Applicant does not seek reinstatement and has obtained alternative employment. I am also satisfied that an order for the payment of compensation is appropriate, given my finding that his dismissal was unfair.
[44] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation including:
(a) the effect of the order on the viability of the Respondent;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if he had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by him because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[45] In determining an amount to be paid as compensation, and as was noted by a Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act … is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).12
Effect of the order on the viability of the Respondent’s enterprise (s.392(2)(a))
[46] There is no evidence before me as to the effect of an order for compensation might have on the viability of the Respondent.
Length of the Applicant’s service (s.392(b))
[47] The Applicant was employed for about 15 months. This is a relatively short period of time, and I consider that it does not support reducing or increasing the amount of compensation ordered.
Remuneration received, or likely to be received (s392(2)(c))
[48] In terms of the remuneration received, or likely to be received (s392(2)(c)), there is no evidence before the Commission as to how long the Applicant’s employment would have continued.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal (s.392(2(d))
[49] I am satisfied that the Applicant took reasonable steps to mitigate his loss, having found alternative employment 2 weeks’ after his dismissal.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation (s.392(2)(e))
[50] The evidence of the Applicant was that he had not earned any other remuneration from the dismissal until 2 weeks later when he obtained other employment.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation (s.392(2(f))
[51] There is no evidence before the Commission as to this factor.
Other relevant matters (s.392(g))
[52] There are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’.
Shock, distress etc (s392(4))
[53] The amount of compensation does not include a component for shock, humiliation or distress.
CONCLUSION
[54] I am satisfied that an amount equivalent to two week’ remuneration, being the period of time the Applicant was without work, is appropriate compensation in this matter. I am satisfied that this amount of compensation above takes into account all the circumstances of the case as required by s.392(2) of the Act.
[55] Accordingly, I will make an order that the Respondent pay an amount equivalent of $5,972.00 gross less taxation as required by law to the Applicant, within 14 days of the date of this decision. An order to this effect will be separately issued.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR726073>
1 See [2020] FWC 2406, [2020] FWC 3147, [2020] FWC 6184 and [2021] FWC 98.
2 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
3 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
5 Ibid.
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
7 Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
8 Ibid.
9 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
10 Jetstar v Meetson-Lemkes[2013] FWCFB 9075, [68].
11 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
12 (1998) 88 IR 21.
0
12
0