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

Misagh Abdoliseisan has brought an application for relief from unfair dismissal against the SBS Group, a prominent media and broadcasting organisation in Australia. The dispute arose from the termination of Mr Abdoliseisan's employment, which he claims was unjust and in breach of the Fair Work Act 2009. The Fair Work Commission, tasked with overseeing the application, was required to determine whether the dismissal was indeed unfair and, if so, what remedy, including compensation, was appropriate.

The primary legal issue before the Commission was whether the dismissal of Mr Abdoliseisan was justified under the provisions of the Fair Work Act. The Commission considered whether the employer had a valid reason related to the employee's capacity or conduct, or whether it was a case of harsh, unjust, or unreasonable dismissal. Furthermore, the Commission assessed the proportionality of the dismissal in relation to the circumstances of the case and whether the employer had followed a fair process.

In its decision, the Commission found that the dismissal of Mr Abdoliseisan was indeed unfair. The employer had failed to provide sufficient evidence to justify the termination on the grounds of capability or conduct. Moreover, the process leading to the dismissal was deemed to be inadequate, lacking procedural fairness. Consequently, the Commission ordered the SBS Group to compensate Mr Abdoliseisan for the unfair dismissal. The compensation was calculated based on the lost earnings and entitlements Mr Abdoliseisan would have received had his employment continued.

The Commission's final order required the SBS Group to pay Mr Abdoliseisan compensation in the amount of $45,000, reflecting the financial loss suffered due to the unfair dismissal. Additionally, the employer was mandated to reinstate Mr Abdoliseisan to his previous position, should he be willing to return to work, or to provide him with alternative employment of similar status if reinstatement was not feasible. This decision underscores the importance of procedural fairness and the need for employers to substantiate any claims of dismissal based on employee performance or conduct.

Misagh Abdoliseisan v SBS Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established