Mr Benoit Martin v TCB Elite Security

[2014] FWC 2834

[2014] FWC 2834

FAIR WORK COMMISSION

EXTEMPORE DECISION

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

Mr Benoit Martin
v
TCB Elite Security
(U2012/1002)

COMMISSIONER CAMBRIDGE SYDNEY, 30 APRIL 2014

Unfair dismissal - exparte proceedings - dismissal implemented without providing natural justice - no valid reason for dismissal - harsh, unjust, and unreasonable 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 Brisbane on 2 May 2012. The application was made by Benoit Martin (the applicant) and named the respondent employer as TCB Elite Security ABN: 37 094 277 311.

[2] The application indicated that the date of effect of the applicant’s dismissal was 20 April 2012. Consequently, the application was made within the 14 day time limit then prescribed by subsection 394 (2) of the Act.

[3] An employer’s response to the application for unfair dismissal was filed by T. C. B. Training Academy P/L ABN: 37 094 267 311 (TCB Training Academy). Following unsuccessful attempts at conciliation, the arbitration of the claim commenced before Fair Work Australia (FWA), later to become the Fair Work Commission (the Commission), in a Hearing conducted in Brisbane on 12 September 2012.

[4] At the Hearing held on 12 September 2012, the applicant appeared unrepresented with the assistance of a French language interpreter. Mr Paul Pavlovski announced his appearance and stated that he was the CEO of TCB Elite Security. During the Hearing on 12 September, the issue of the identification of the correct respondent was raised with the parties. Mr Pavlovski stated that the applicant had been employed by TCB Training Academy. The applicant did not seem to disagree with this assertion but he made no suggestion that the named respondent, TCB Elite Security, should be changed to TCB Training Academy.

[5] Despite the absence of clarity regarding the name of the correct respondent, the Hearing continued on 12 September and evidence was provided by the applicant as a witness. During the cross-examination of the applicant by Mr Pavlovski, it became apparent that a company that Mr Pavlovski was involved with, presumably and later verified to be, TCB Training Academy, had commenced proceedings against the applicant in the Magistrates Court of Queensland for the recovery of monies allegedly overpaid to the applicant. In brief, the overpayments were alleged to have occurred as a consequence of false claims for which the applicant had been dismissed.

[6] The issues which had become the subject of proceedings against the applicant in the Magistrates Court of Queensland were essentially the same issues under consideration in the proceedings before the Commission (then FWA). Consequently, the Hearing was adjourned and the proceedings were stayed pending an anticipated outcome of the related Magistrates Court matter.

[7] After a lengthy period during which the Commission was advised that the related Magistrate Court proceedings remained on foot and had expanded to include counter-claims made by solicitors acting for the applicant, the applicant was advised that his unfair dismissal claim could not reasonably be stood over indefinitely. In correspondence dated 7 November 2013, the applicant was advised that his claim for unfair dismissal remedy would be dismissed for want of prosecution unless the applicant established that a clear time frame for finalisation of the matter could be ascertained.

[8] On 20 November 2013, the applicant advised the Commission that the Hearing of his claim for unfair dismissal remedy could proceed from March 2014. Proceedings in the matter recommenced with a Directions proceeding held on 5 February 2014. At this proceeding the applicant continued his appearance unrepresented, and there was no appearance by or on behalf of any respondent. Directions were made and the matter was fixed for further Hearing on 30 April 2014.

[9] The Commission received correspondence from a Toni Celona dated 3 February 2014. It appeared that this correspondence was made in response to the Notice of Listing for the Directions held on 5 February 2014, and provided in response to the Notice sent to TCB Elite Security. Subsequent attempts to confirm that neither Mr Celona nor anyone else with a connection to TCB Elite Security or any related entity, would be filing any material in accordance with the Directions issued for the Hearing fixed for 30 April 2014, were unsuccessful.

[10] The applicant filed further material on 24 February 2014. This further material indicated that the related Magistrate Court proceedings and the cross-claims made by the applicant, had not been heard or otherwise determined and that finalisation of those proceedings appeared to be frustrated by, inter alia, the withdrawal of the solicitors who had been acting for TCB Training Academy. Further, this material has asserted that TCB Elite Security is the trading name for TCB Always Australia Monitoring Pty Ltd ACN: 091 890 238 (TCB Always Australia).

[11] On 2 April 2014, the Commission was sent a copy of a letter which had been sent from solicitors acting for TCB Always Australia and Mr Celona to the applicant. This letter contained certain assertions regarding the correct respondent to the applicant’s unfair dismissal claim. In relevant summary, it was asserted that: (a), the ABN of 37 094 277 311 given in the application for TCB Elite Security did not exist; (b), the employer of the applicant wasTCB Training Academy (ACN: 094 267 311); and (c), TCB Training Academy was deregistered on 26 January 2014.

[12] The Hearing of the matter commenced as scheduled on 30 April 2014. The Applicant continued his appearance unrepresented, and there was again no appearance by or on behalf of any respondent. In these circumstances, the Commission has proceeded to hear and determine the matter ex parte. The applicant was the only witness who provided evidence. On the basis of this material, the Commission has been prepared to determine the application.

[13] The applicant had worked for an entity which traded as TCB Elite Security (the employer) for a period of approximately two years and five months. The applicant worked as a Security Officer.

[14] The applicant was dismissed by way of a letter dated 20 April 2012 which inter alia, alleged that the applicant had engaged in gross misconduct by acting dishonestly. The dishonestly was primarily alleged in respect to the applicant making claim for payment of wages for periods of travelling time, for which it was alleged, he was not entitled to any payment.

[15] I note that the letter of dismissal of 20 April 2012, was signed by Paul Pavlovski, Chief Executive Officer, TCB ALWAYS AUSTRALIA MONITORING PTY LTD.

[16] The employer made the findings of gross misconduct against the applicant without first providing proper opportunity to hear from the applicant. The employer did not ensure that the applicant was given a proper opportunity to answer allegations that were set out in a letter dated 5 April 2012. Importantly, the applicant did not receive this letter of allegation because it was posted to a wrong address.

[17] The unchallenged evidence of the applicant established that he genuinely believed that he had made legitimate and lawful claim for start and finish times which represented an entitlement for payment. The applicant did not act dishonestly and at best, he may have acted only in mistaken but genuine belief of his entitlement. Further, the applicant had been dismissed without being properly provided with an opportunity to offer explanation or make out a defence.

[18] The applicant believed that there was no proper basis for his dismissal. Upon the unchallenged evidence of the applicant, I am compelled to find that the applicant was dismissed in circumstances which denied him natural justice. Further, I am compelled to find that the applicant did not act dishonestly as asserted by the employer. Therefore, there was not valid reason for the dismissal of the applicant.

[19] Section 385 of the Act stipulates that FWC is to be satisfied that four 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.

[20] In this case, the employer has failed to attend at either of the scheduled dates of further Directions or further Hearing. The employer’s lack of appropriate attention to proceedings before the Commission is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal.

[21] 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 if it were to be applicable, and; (d) the dismissal was not a case of genuine redundancy.

Conclusion

[22] The applicant was dismissed for alleged gross misconduct involving dishonesty. The finding of gross misconduct was made without providing the applicant with natural justice. The applicant did not act dishonestly.

[23] Consequently, the applicant’s dismissal was harsh, unjust and unreasonable.

[24] The conduct of the employer in respect to the dismissal of the applicant and in regard to the more recent proceedings before the Commission has been regrettable. The applicant’s claim for unfair dismissal has been established.

Remedy

[25] The applicant has not sought reinstatement as remedy for his unfair dismissal. 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.

[26] 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.

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

[28] 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. In particular, I mention that there was no evidence of any effect that any Order of compensation would have on the viability of the employer’s enterprise. The applicant had been employed for a period of about two years and five months and if he had not been dismissed, he would have been likely to have received remuneration at or about the level of remuneration at the time of dismissal, for a period of at least the equivalent of the length of his employment before dismissal.

[29] I note that the applicant has made efforts to mitigate his loss and he has obtained other employment. I also note that the amount of compensation that I am prepared to provide does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[30] Consequently for the reasons outlined above I have decided that an amount approximating with six weeks remuneration at the base weekly rate before dismissal should be Ordered as compensation to the applicant. That amount is $5,335.00. Accordingly, a separate Order [PR550117] providing for remedy in these terms will be issued.

[31] In view of the absence of precision with the identification of the employer, I am unable to include any specific ABN or ACN in the accompanying Order which shall be made against the named respondent, TCB Elite Security.

COMMISSIONER

Appearances:

Mr B Martin, appeared with the assistance of a French Interpreter, on his own behalf;

Mr P Pavlovski,appeared on behalf of the employer on 12 September 2012.

There was no appearance by or on behalf of the employer on 30 April 2014.

Hearing details:

2012.

Brisbane:

September, 12.

2014.

Sydney (via Video Link to Brisbane):

April, 30.

 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.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550119>