Mr Ao Tang v PR Palais Royale Guesthouse T/A Palais Royale Guesthouse

[2010] FWA 5882

[2010] FWA 5882

FAIR WORK AUSTRALIA

DECISION

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

Mr Ao Tang
v
PR Palais Royale Guesthouse T/A Palais Royale Guesthouse
(U2010/7860)

COMMISSIONER CAMBRIDGE SYDNEY, 3 AUGUST 2010

Unfair dismissal - exparte proceedings - instant dismissal during temper tantrum at management meeting - no payment of accrued and other entitlements - harsh, unreasonable and unjust dismissal – compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 7 April 2010. The application was made by Ao Tang, (the applicant) and named the respondent employer as PR Palais Royale Guesthouse T/A Palais Royale Guesthouse, ABN: 47 022 799 570 (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 23 March 2010. Consequently the application was made one day beyond the 14 day time limit prescribed by subsection 394 (2) of the Act. In the circumstances of this case I believe that exceptional circumstances exist so as to permit Fair Work Australia (FWA) to extend the time limit. Consequently, having regard for the factors set out in paragraphs (a) to (f) of subsection 394 (3) of the Act, the application shall be allowed to proceed.

[3] The employer refused to participate in conciliation of the claim and the matter proceeded to arbitration before FWA in a Hearing conducted in Sydney on 3 August.

[4] The employer also refused to attend at the Hearing and the matter proceeded exparte. The applicant was self represented and he was also the only witness called to provide evidence in support of the claim.

Factual Background

[5] The applicant had worked for the employer for a little over 8 months. The applicant worked as a “Conference and Events Manager”. However the applicant performed a wide range of both managerial and menial tasks associated with the operation of the Palais Royale Guesthouse located at 230 Katoomba Street, Katoomba. The employer has approximately 10 full-time equivalent employees.

[6] The applicant was dismissed during a verbal outburst of Rose Kasunic, the employer’s Managing Director. The verbal outburst of Ms Kasunic occurred on 23 March 2010 during a management meeting. As part of what can be described as a temper tantrum, Ms Kasunic verbally dismissed both the applicant and the General Manager/Sales Director, Mr Tilt. The applicant and Mr Tilt were angrily directed to immediately leave the employer’s premises. Subsequently Mr Tilt was asked to return to work and apparently given an apology from Ms Kasunic. There was no recant of the dismissal made to the applicant.

[7] Following his dismissal the applicant sought to obtain payment for entitlements due upon termination of employment. Unfortunately, at the time of Hearing the employer had not made any payment of termination entitlements owed to the applicant.

Consideration

[8] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[9] In this case the employer refused to attend at either the conciliation or the arbitration Hearing. This unfortunate and disrespectful conduct appears consistent with the evidence of the deplorable circumstances of the applicant’s dismissal.

[10] The uncontested evidence has established that; (a) the applicant was 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.

Conclusion

[11] The applicant was verbally dismissed during a temper tantrum of Ms Rose Kasunic the employer’s Managing Director. The applicant was not provided with payment of entitlements due upon termination of employment nor was he given any written confirmation of dismissal. There was no discernable reason for the dismissal.

[12] Upon any analysis and particularly in the absence of any valid reason for dismissal, the applicant’s dismissal was manifestly harsh, unreasonable and unjust.

[13] The conduct of the employer in respect to the dismissal of the applicant and in regard to these proceedings before FWA has been highly regrettable. The applicant’s claim for unfair dismissal is granted.

Remedy

[14] The applicant has not sought reinstatement as remedy for his unfair dismissal. Frankly that is not surprising given the conduct of Ms Kasunic. In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.

[15] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket  1 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 2.

[16] Firstly, I confirm that an Order of the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[17] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[18] Consequently for the reasons outlined above I have decided that an amount equal to 15 weeks remuneration should be Ordered as compensation to the applicant. That amount is $18,173.10. Accordingly separate Orders providing for remedy in these terms will be issued [PR500126].

COMMISSIONER

Appearances:

Applicant appeared in person.

 1   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 2   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

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<Price code A, PR500125>