Misagh Abdoliseisan v SBS Group

[2015] FWC 4649

[2015] FWC 4649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Misagh Abdoliseisan
v
SBS Group
(U2015/3807)

COMMISSIONER RYAN MELBOURNE, 21 JULY 2015

Application for relief from unfair dismissal – remedy - compensation.

[1] The Commission gave a decision in transcript on 3 June 2015 that Mr Misagh Abdoliseisan (the Applicant) had been unfairly dismissed by SBS Group (the Respondent). On the same day the Commission issued directions to the parties to file and serve their respective submissions in relation to remedy. Both parties complied with the Commissions directions and both parties have agreed that the Commission determine the issue of remedy on the papers.

[2] The Applicant contends that the appropriate remedy to be granted is an order for reinstatement and an order for compensation. The Applicant’s submission misunderstands the provisions of the Act.

[3] It is clear that the Applicant wants an order for reinstatement pursuant to s.391(1)(a) and that the Applicant has sought an order for lost remuneration pursuant to s.391(3) in the amount of $14,700. In the alternative it would appear that the Applicant seeks an order for compensation under s.392 of an amount of $24,585.00.

[4] The Respondent contends that no remedy should be granted to the Applicant. The Respondent contends that if the Commission decides to grant the Applicant a remedy then the Respondent contends that reinstatement is inappropriate. The Respondent contends that if the Commission considers that the remedy of compensation is appropriate then the appropriate amount of compensation is $5,000.00.

[5] Having regard to all of the circumstances of this matter the Commission considers that a remedy is appropriate but that the remedy of reinstatement is singularly inappropriate. Given the very direct relationship between the Applicant and both Mr Grimshaw and Mr Weeks, the effective owners of the Respondent, it would appear that the employer/employee relationship has irretrievably broken down.

[6] The Commission is of the view that the remedy of compensation is appropriate in all the circumstances of the present matter.

[7] Whilst the Applicant contends that his employment would have continued for at least five years the relationship between the Applicant and the Respondent was already fractured before the dismissal and if the dismissal had not occurred it is most likely that the employment relationship would have ended within 6 months.

[8] The Applicant has made efforts to mitigate his loss and the Applicant has found other casual employment which has enabled him to earn an amount of $2175.00 up to 14 June 2015.

[9] The Respondent contends that “an order for payment of a large sum of compensation will significantly impact the viability of the Respondent’s small business”. The Respondent relied on a Default Judgement issued by the County Court of Victoria against a person who owed a very substantial debt to the Respondent. There is nothing in the material relied on by the Respondent which suggests that an order for compensation which is not an order for payment of a large sum of compensation would affect the viability of the Respondent’s business.

[10] The Respondent seeks that if any order for the payment of compensation be made then the Respondent be permitted to pay the amount required in instalments.

[11] The Commission has taken into account all of the circumstances of the case including each of the relevant criteria listed in s.392(2) of the Act. The Commission has not included in the amount of compensation to be ordered any amount precluded by s.394(4) and the Commission has reduced the amount of compensation that it would otherwise have ordered under s.394(1) by an appropriate amount on account of misconduct 1 of the Applicant which contributed to the employer’s decision to dismiss the Applicant.

[12] The Commission determines that the appropriate amount of compensation is $5000.00 to be taxed at the appropriate rate. The Commission determines that the amount of compensation is to be paid as a single payment and to be paid by close of business on 28 August 2015.

[13] An order giving effect to this decision will be issued separately.

COMMISSIONER

 1   Transcript at para 737.

Printed by authority of the Commonwealth Government Printer

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