Michael Abela v Surelinc Services Pty Ltd
[2024] FWC 1975
•26 JULY 2024
| [2024] FWC 1975 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Abela
v
Surelinc Services Pty Ltd
(U2024/5465)
| COMMISSIONER MCKINNON | SYDNEY, 26 JULY 2024 |
Application for an unfair dismissal remedy – no valid reason – no procedural fairness – reinstatement not appropriate – compensation awarded
Mr Michael Abela was employed by Surelinc Services Pty Ltd (Surelinc) for more than 5 years, from 25 February 2019 until 24 April 2024 when he was dismissed.
On 14 May 2024, Mr Abela applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Surelinc has not responded to the application. On 16 July 2024, Surelinc advised the Commission that it had entered voluntary administration.
In the circumstances, there is no factual dispute to be resolved. The application was filed in time. Mr Abela has completed the minimum employment period of 6 months and there is no evidence that his income was more than the high income threshold. He is protected from unfair dismissal. The dismissal was not a case of genuine redundancy and the Small Business Fair Dismissal Code did not apply because Surelinc was not a small business employer at the relevant time.
The only question is whether the dismissal was unfair, and if so, what if anything the remedy should be.
I have decided that Mr Abela was unfairly dismissed and that compensation equivalent to 8 weeks’ pay is the appropriate remedy. These are my reasons for decision.
Was the dismissal harsh, unjust or unreasonable?
Valid reason: The facts are as disclosed by Mr Abela in his application to the Commission and in supporting witness statements he has filed. On 23 April 2024, Mr Abela was working with Mr Kodah Blackman in Batlow, New South Wales. After work had finished, Mr Abela contacted Mr Matthew Price, General Manager, about overtime for the week before. Mr Abela advised Mr Price that he would not be doing any overtime while he was away because the company refused to pay for it. This prompted an angry response from Mr Price, who started yelling at Mr Abela and said, in words to the effect: “What have you guys been doing down there, there's 3 of you, what the fuck have you been doing? Bring your ute to the office on Monday. I’m finishing you up.”
Shortly after this discussion, Mr Abela tried calling Mr Villi Puletua to ask if he was being terminated. He was unable to get through to Mr Puletua except through its Business Services Manager, Ms Mina Paplinska, who passed on the message that Mr Puletua supported Mr Price’s decision.
I am not satisfied that Surelinc had a valid reason for dismissal. No reason was given to Mr Abela for his dismissal. If, as might be inferred, the reason was his refusal to work overtime without reward, it is hard to see how this could constitute a valid reason for dismissal. Arguably, it would instead be unlawful, although the full facts of the matter are not before me, and no finding of illegality is made.
Whether reason notified to the employee: as there was no valid reason for dismissal, this is not a relevant consideration.
Opportunity to respond: Mr Abela had no opportunity to respond in circumstances where no advance warning or reason for dismissal was given.
Unreasonable refusal in relation to support person: there is no evidence that Mr Abela made any request for a support person in or in connection with the discussion that led to his dismissal.
Warnings about relevant unsatisfactory performance: There is no evidence that Mr Abela’s performance was unsatisfactory. There was no prior warning or discussion with Mr Abela about his performance.
Degree to which the size of the employer’s business and absence of dedicated human resources management specialists or expertise would be likely to impact on procedures followed in effecting the dismissal: Prior to entering voluntary administration, Surelinc was a medium sized business. There is no evidence about whether it had access to human resources or similar expertise and it does not appear that any such resources were drawn upon in relation to the dismissal.
Other relevant matters: The abrupt manner of the termination left Mr Abela emotionally distressed and financially strained, including because Mr Abela was not paid his accrued entitlements on termination.
Having considered each of the matters specified in section 387, I am satisfied that in the absence of both valid reason and procedural fairness and having regard to the failure to give Mr Abela notice of termination or pay his accrued entitlements, the dismissal was unjust and unreasonable. Mr Abela was unfairly dismissed.
What is the appropriate remedy?
Reinstatement is the primary remedy under the Act for unfair dismissal. I am not satisfied that reinstatement would be appropriate in this case because Surelinc has entered voluntary administration and its capacity to continue trading is uncertain. I am satisfied that an order for compensation is appropriate in the circumstances.
Remuneration that would have been received, or would have been likely to receive, if not dismissed (s.392(2)(c)): Had Mr Abela not been dismissed, it is likely that he would have continued in employment until at least 16 July 2024, when the business entered voluntary administration. In that period, he would have earned income equivalent to 12 week’s pay. The precise value of that income is not apparent on the materials.
Business viability: There is no evidence about whether Surelinc has the capacity to pay any amount of compensation. The fact that it has entered into voluntary administration indicates a level of uncertainty as to its financial position. Absent evidence in this regard, no adjustment is made to the compensation amount.
Length of service: Mr Abela was employed for more than 5 years.
Mitigation efforts: There is no evidence in relation to mitigation efforts and no adjustment to the compensation amount is made on this account.
Remuneration earned in the period since dismissal: There is no evidence in relation to remuneration earned in the period since dismissal. No adjustment to the compensation amount is made on this account.
Remuneration reasonably likely to be earned in the period between compensation order and actual compensation: Absent evidence as to Mr Abela’s work situation post-dismissal, it is not possible to make a reasonable estimate of this kind or to adjust the compensation amount on this basis.
Misconduct: There is no evidence of any misconduct on the part of Mr Abela.
Other matters, including no compensation for shock, distress: No deduction is made for contingencies and no compensation is awarded for shock, humiliation or distress. The compensation amount is reduced by 4 weeks having regard to the separate obligation on Surelinc to pay Mr Abela in lieu of notice of termination, and the likelihood that this notice would have been given if Mr Abela’s employment had continued until 16 July 2024 when the company entered voluntary administration. As Mr Abela has not been given notice of termination, he can include this entitlement in a proof of debt claim made to the Administrator, Worrells together with his claim for payment of accrued but unpaid annual leave.
When these factors are taken together, the compensation amount to be awarded to Mr Abela is 8 weeks’ pay. This is less than the compensation cap of 26 weeks’ pay and is neither excessive nor inadequate. No application has been made for any award of compensation to be payable in instalments and no such order will be made.
An order for the payment of compensation [PR777531] will issue separately.
COMMISSIONER
Hearing details:
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
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