Mr Carl Pope v D. and E. Air Conditioning Pty Ltd

[2014] FWC 1149

[2014] FWC 1149

FAIR WORK COMMISSION

DECISION

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

Mr Carl Pope
v
D. & E. Air Conditioning Pty Ltd
(U2013/2899)

DEPUTY PRESIDENT SMITH MELBOURNE, 21 FEBRUARY 2014

Application filed out of time; minimum employment period; genuine redundancy?

[1] Mr Colin Pope believes that he has been unfairly dismissed from his employment with D. & E. Air Conditioning Pty Ltd (the employer). Mr Pope was employed on 6 August 2012 and by letter dated 2 August 2013 had his employment terminated with effect from 9 August 2013.

[2] The employer raises three jurisdictional objections:

● The application is out of time
● Mr Pope had not served the minimum period of employment of 12 months, and
● The termination of employment was a genuine redundancy.

[3] At the commencement of proceedings on 10 February 2014 I considered each of the objections and dismissed them. I deal with each one in turn.

● Application is out of time

[4] The letter terminating the employment of Mr Pope stated: “Further to our meeting of today’s date, we write to confirm our discussions in relation to your employment and that we have given you notice of separation with the company as of the 9th August 2013”.

[5] The application was lodged on 29 August and is therefore within time.

● The minimum period of employment

[6] In this connection the employer misunderstood the terms of s.383 of the Fair Work Act 2009 (the Act) and thought that a period of twelve months applied. The employer is not a small business and so the objection was without substance.

● The termination was as a result of a genuine redundancy

[7] It became clear that the terms of s.389 of the Act had not been considered. The employer is bound by the Manufacturing and Associated Industries and Occupations Award 2010. [MA000010] There had been no consultation. In addition, little evidence was led in relation to this aspect and the evidence disclosed:

● At the time of dismissal nothing was said about redundancy;

● It was only when the separation certificate was sent did it mention redundancy;

● The majority of the evidence from the employer dealt with poor performance and not the state of the business. Some passing reference was made to the work previously done continuing but slowing down.

[8] Having dismissed the jurisdictional objection the following Ex-Tempore decision (edited) was given:

“. . . . I have already decided on the jurisdictional matters and I now turn to the substance of the argument. In essence, this matter concerns an employee who, in the view of the employer, was not performing at a sufficient level to maintain the employment. The termination of employment not only came as a surprise to Mr Pope, but it put at risk his remaining in Australia. Mr Pope was on a 457 visa. Whilst the employer considered that his performance was poor, there was no evidence that he was warned that his job was at risk.

At best the evidence was that he was mentored and coached. It’s readily accepted that there wasn’t any disciplinary or similar-type discussion. It’s a very short matter and one that is easily dealt with. Given the circumstances of this case, I find that the termination of Mr Pope was harsh. I now have to consider whether or not there should be a remedy. The first matter to which the Commission turns is whether the person should be reinstated. This is not sought by Mr Pope, and I also consider it not to be an appropriate remedy in these circumstances. I accept the evidence of the employer that it was not satisfied with the performance of Mr Pope, although, as I said earlier, this came as a surprise to him.

I now turn to whether or not there should be any compensation arising out of this matter, and to that end attention is directed to s.392 of the Act. The first matter I have to consider is the effect of any order on the viability of the employer’s enterprise. There has been no submissions on this point, and accordingly I find that there is no effect on the viability of the employer’s enterprise. The second matter is the length of the person’s service with the employer. The service with the employer has been either just short or slightly in excess of 12 months employment, and that is a neutral factor in my consideration.

The third item is the remuneration that the person would receive or would have been likely to have received had the person not been dismissed. This raises an interesting question given that, following Mr Pope’s dismissal, the terms of his 457 visa did not apply and he could not work. Therefore, he was unable to receive any remuneration up until a week before he secured other employment, which was on 2 December. He then received a visa to work in Australia. The next item is the efforts of the person, if any, to mitigate the loss suffered by the person because of the dismissal. Again, this raises the same issue, but it’s clear to me that Mr Pope made all efforts once he secured the relevant visa, and indeed to his benefit, secured his employment within one week.

The next item is the amount of any remuneration earned by the person from employment or other work during the period between dismissal and the making of the order for compensation. Here again it raises the same question in relation to the 457 visa and the inability for Mr Pope to work. The further matter is the amount of any income reasonably likely to be so earned by a person during the period during the making of the order for compensation and the actual compensation. Again, I have the benefit of knowing that Mr Pope has secured further employment, in his words, at about the same rate”. The final matter is any other matter that FWC considers relevant.

I consider the general handling of the termination in light of the 457 visa as a relevant consideration. I also consider as a relevant consideration the four weeks that was paid to Mr Pope in advance of the one week’s pay in lieu of notice. Accordingly, I have taken that into consideration and the period of time which Mr Pope was unable to secure employment and have decided that a further 10 weeks’ pay should be paid to him. Reasons for decision will be issued together with an order requiring the payment of 10 weeks’ pay, and that is to be paid within 21 days of my order issuing. The matter is now adjourned.”

[9] It is necessary for me to give brief further reasons as to why I considered the termination of employment to be harsh and the amount of compensation selected.

[10] The impact on Mr Pope of the termination of employment was to him devastating. Whilst the employer appeared to be unhappy with his performance, he did not understand that his employment was in jeopardy. Mr Pope was married to an Australian citizen and was on a visa which required him to be in known employment. The impact of his termination left him in a position where he was facing being removed from Australia and not being able to work. This was within the knowledge of the employer. To terminate the employment of a person in these circumstances without any warnings or notice of poor performance is harsh. Mr Pope had to move back to Brisbane where he relied upon his parents-in-law while he sought to remain in the country.

[11] In relation to the compensation, I have considered the impact upon him being unable to seek work as a consequence of the action of the employer. If the employer had provided warnings to Mr Pope he may have improved his performance or began preparations to change his visa status. I considered the additional payment made of four weeks to Mr Pope in accordance with the submission of the employer. In essence, Mr Pope sought 16 weeks’ salary. I have deducted the four weeks paid and a further two weeks for contingencies. The compensation is for earnings forgone as a consequence of the termination at the initiative of employer which, in these circumstances, were not able to be quickly remedied by Mr Pope. I am satisfied that he acted as quickly as he could to regularise his status in Australia and then to seek employment.

[12] The order is attached to this decision.

DEPUTY PRESIDENT

Appearances:

C. Pope the applicant.

P. Verberne with C. Way and B. Harris on behalf of D. & E. Air Conditioning Pty Ltd.

Hearing details:

2014.

Melbourne:

February, 11.

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