Mr Andrew Ham v Arlington Catering & Events Pty Ltd

[2014] FWC 5427

[2014] FWC 5427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Ham
v
Arlington Catering & Events Pty Ltd
(U2014/3695)

VICE PRESIDENT WATSON MELBOURNE, 13 AUGUST 2014

Application for relief from unfair dismissal - Small Business Fair Dismissal Code - Genuine redundancy - Absence of consultation - Redundancy pay not paid - Application granted - Compensation ordered - Fair Work Act 2009, s.394, s.387.

[1] This decision is an amended version of a decision given in transcript on 8 August 2014 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Mr Andrew Ham against Arlington Catering & Events Pty Ltd. The application was made on 9 January 2014. Mr Ham was dismissed from his employment on 22 December 2013.

[2] The application alleges that the termination of employment was harsh, unjust or unreasonable. That is essentially the question I need to determine in this application based on the evidence that is before me.

[3] The employer has been given an opportunity to file material and appear in the matter today and a telephone conference was conducted with the employer on 25 July 2014. Unfortunately the employer has not filed any material apart from the initial response and has not responded to directions to file witness statements or outlines of submissions in the matter. I am therefore satisfied that the employer was aware of the hearing today and has had every opportunity to file material and attend and make submissions in the matter. As the employer has not done so, it is necessary for me to determine the matter based on the material submitted on behalf of the applicant, Mr Ham.

[4] A number of questions arise in the application which I have discussed with, Mr Ham through the evidence he has given and in submissions today. I am satisfied that the employer did employ more than 15 employees as at the date of the termination of employment. Therefore, the employer is not a small business within the meaning of the Act. Given the circumstances of the termination I am not sure that that would have made any real difference in any event as it appears that the Small Business Fair Dismissal Code does not address the question of redundancy situations. Redundancy situations are dealt with in the unfair dismissal provisions of the Act by way of an exclusion in the case of genuine redundancies which are defined in the Act as including a number of elements.

[5] I am satisfied in the circumstances of this case that all of those elements are not present. In particular circumstances of the dismissal did not involve consultation as required by the relevant Award. Termination was communicated but without any consultation and discussion of alternatives. Therefore, the termination is not a case of genuine redundancy for the purposes of the Act.

[6] That then brings into play the question of whether the termination was harsh, unjust or unreasonable. I am required to have regard, so far as they are relevant, to the criteria in s.387 of the Act. Those criteria appear to be drafted more in relation to issues of conduct and performance than economic reasons but nevertheless they involve questions of whether there is a valid reason for the dismissal and whether there is procedural fairness as to the process adopted in coming to a decision to terminate the employee’s employment. Factors also go to the size of the enterprise and the availability dedicated resources such as would impact on the expected standards in relation to procedures in particular. I have regard to those factors generally.

[7] I think it is relevant to note that the employer communicated a reason relating to business circumstances as the reason for the termination, a business restructure and an intention not to have any person perform the role that Mr Ham had been performing - the position of Function Manager/Bar Manager. A decision on those matters is well established to be within the purview of an employer, although such decisions can be called into question if there is some reason to believe it is not the real or genuine reason or that it was a stated reason which was not actually carried into effect. In this case, it does appear that redundancy was likely to be the real reason and it is likely to have been carried into effect by virtue of functions that were previously performed being reallocated to other staff members given that those functions are likely to be required in the business in the future on an ongoing basis.

[8] I do consider however, that the process adopted by the employer in this matter left a lot to be desired. In particular it would have been a fair process to discuss the situation with Mr Ham who was a long serving employee in a senior position and to explore alternatives to making him redundant. I consider that the process was seriously deficient in that regard. I also consider that failure to properly consider obligations on termination of employment which appear to include an obligation to pay redundancy pay under the National Employment Standards in the Act. It appears to be a further element of unfairness in relation to this matter. In those circumstances and having regard to all of the circumstances I find that the termination of Mr Ham’s employment was unjust and unreasonable and that I should consider an appropriate remedy arising from that finding.

[9] I am required by the provisions of the Act to have regard to a number of factors in relation to remedies. Reinstatement is not sought in this case and I find that reinstatement is not appropriate. In terms of compensation the criteria include the effect of the order and the viability of the employer’s enterprise, length of service, remuneration that would have been received, efforts to mitigate the loss, the amount of remuneration earned since the dismissal, the amount of income reasonably likely to be earned into the future, as well as any other factors that I consider are relevant.

[10] In my view, the evidence establishes that Mr Ham took appropriate steps to obtain other employment. There is no reason having regard to those circumstances to reduce an amount that might otherwise be owing. I consider that it is appropriate to have regard to the obligation to pay redundancy pay, and that it was not paid, as well as the period between termination and obtaining other employment. However, those factors are overlapping in the sense that redundancy pay is intended to assist in providing income during any intervening period between the redundancy and when other employment is obtained.

[11] In my view it is appropriate in all the circumstances to make an order for payment to Mr Ham from Arlington Catering & Events Pty Ltd of an amount equal to the amount of redundancy pay that appears payable under the National Employment Standards. That amount for service of nine years and less than ten years is 16 weeks. An order to that effect is issued in conjunction with this decision (PR554103).

VICE PRESIDENT

Appearances:

Mr A. Ham, on his own behalf.

Hearing details:

2014.

Melbourne.

8 August.

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<Price code A, PR554102>