Mr Christopher Haywood v G Musolino atf the Musolino Family Trust T/A Portobello Food Kitchen Bar

[2013] FWC 8785

[2013] FWC 8785

The attached document at page 1 replaces the document previously issued with the above code on 8 November 2013.

Correction to date of issue.

Andrew Dickin

Associate to Commissioner Steel

Dated 8 November 2013

[2013] FWC 8785

FAIR WORK COMMISSION

DECISION

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

Mr Christopher Haywood
v
G Musolino atf The Musolino Family Trust T/A Portobello Food Kitchen Bar
(U2013/1525)

COMMISSIONER STEEL ADELAIDE, 8 NOVEMBER 2013

Termination of employment - Small business - Genuine redundancy.

Introduction

[1] This matter is an application pursuant to s.394 of the Fair Work Act 2009 (the Act). The applicant Mr Christopher Haywood asserts that he was unfairly dismissed from employment and he seeks a review of that decision.

[2] Conciliation in this matter was unsuccessful and the matter went to hearing.

[3] It is not contentious that the respondent employer is a national system employer for purposes of s.380 of the Act and that the applicant was a protected person pursuant to s.382 of the Act.

[4] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Evidence

[5] The respondent proprietor Mr Gino Musolino provided evidence. Mr Haywood and Mr Vu Manh Huy Dinh provided evidence for the applicant. The Commission found all parties generally of assistance in their evidence.

Preliminary matters

[6] In this matter it is not contentious between the parties that the applicant was dismissed. The respondent asserts the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC) and also a genuine redundancy.

[7] The applicant submitted in contrast that the respondent was not a small business employer and hence the dismissal was not consistent with the SBFDC. Further, the applicant asserts that the dismissal was not a case of genuine redundancy and therefore pursuant to s.385 of the Act that the dismissal was harsh, unjust and unreasonable.

[8] Pursuant to s.396 of the Act the Commission is required to consider these matters before it deals with the merits of the application. It follows thus that if the respondent is a small business employer and the dismissal was consistent with the SBFDC as defined in the Act and/or the dismissal was a genuine redundancy as defined, this application cannot succeed and shall be dismissed.

Is the respondent a small business?

[9] Section 23 of the Act states as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.”

[10] The definition of such an employer therefore focuses on the number of employees employed at the time of the dismissal.

[11] The respondent evidenced a series of monthly payroll activity statements prepared by their accountant. 1 In regards to the date of dismissal, 30 April 2013, the statements indicate a total of 12 people were employed during the period 1 April 2013 to 30 June 2013 but does not allow sufficient accuracy to identify the relevant number of staff, including regular and systematic casual staff, employed on the dismissal date. It is apparent the statements include a number of staff that worked limited hours in the nominated period.

[12] In cross examination Mr Musolino gave evidence that at the date of termination of the applicant the respondent had between eight and ten employees. There was an assertion by Ms Harrison for the applicant, that a person called Giancarlo had worked on the day of the dismissal of the applicant and he is subsequently noted as employed between 1 April 2013 and 30 June 2013.

[13] The respondent also asserted in evidence that the applicant had arranged various casual employees to work at various times on a limited cash-in-hand basis. This was against the proprietor’s will or instruction and thus the respondent did not apparently consider these people his employees. 2 The respondent indicated that he had, subsequent to the dismissal of the applicant, employed two kitchen hand staff but that they did not work regularly.3

[14] The applicant in his evidence states that the respondent at the time of dismissal had:

“...between 10 and 12 employees actively working as well as a number of casuals that hadn't done shifts in a while who would pop in now and then to do an occasional shift.” 4

[15] The applicant further referred to another employee “Georgina,” apparently a Ms Bueti, being an employee, and confirmed another employee in an associated company being Mr Potter. Those two individuals are listed on the previously mentioned payroll activity statements.

[16] Considering the evidence, the Commission is satisfied and accordingly finds that the available records produced by the respondent and the evidence of the various witnesses sufficiently reflect that the number of relevant employees for the consideration of the respondent’s status under s.23 of the Act is fewer than 15 employees. The Commission has taken into consideration the various references to casuals and to “cash-in-hand” employees and considers that such casual employees are not of sufficient regularity to fall within the head count required pursuant to s.23 of the Act. Hence the respondent is regarded as a small business employer in this matter.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[17] The Commission as above has found the respondent was a small business employer and thus shall turn to the consideration of s.385(c) as to whether the dismissal was consistent with the requirements of the SBFDC.

[18] Section 388 of the Act provides as follows:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[19] In this respect the code within Section.388 and the associated checklist document provides as follows.

“The Code

...

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employees conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a chance to rectify the problem, having regard to the employee’s response.

...

Procedural Matters

In discussions with an employee in circumstances where a dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.” 5

[20] For the Commission’s purposes in this matter the circumstances of the dismissal are not identified as either a summary or performance related dismissal. The Commission is therefore required to consider whether a valid reason for dismissal was given to the applicant and whether he had an opportunity to respond and have a person present to assist in those discussions.

[21] Before doing so it will be convenient in this matter to consider the other arm of the argument in relation to genuine redundancy.

[22] In regard to genuine redundancy, the respondent must act consistent with the requirements of s.389 of the Act which states as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[23] The obligation in regard to consultation within the Restaurant Industry Award 2010 are found at clause 8. It states:

“Part 2 - Consultation and Dispute Resolution

8. Consultation regarding major workplace change

8.1 Employer to notify

(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

8.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 0, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.

(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[24] Thus the respondent employer in these circumstances must notify and discuss pending redundancies with affected employees as early as practicable after a definite decision has been made.

Facts and consideration

[25] The Commission having considered all the evidence in this matter provides the following factual context in regard to whether there has been compliance with the above aspects of the SBFDC and or the dismissal was a situation of genuine redundancy.

[26] The evidence is that the applicant worked hours, usually over five days of the week, generally at lunchtime (11.45 am until between 3.00 pm and 4.00 pm) and then dinner (5.45 pm or 6.00 pm until close usually about 9.00 pm to 9.30 pm). Later hours for functions were extremely rare. The applicant arranged a roster which did not include specific hours. The applicant did not keep records of his hours despite being requested to do so and failed to utilise the respondent’s computer system for that purpose.

[27] Mr Potter, for the respondent, provided submissions as to the financial situation of the respondent and the causes of the downturn in their trade that he asserts had occurred. The respondent’s premises trade only on 25-30 hours per week, depending on demand. The business suffered some downturn in turnover and the proprietor decided he had to restructure or reduce staff after accessing various information documents from the Fair Work Ombudsman. The respondent was aware of the need to comply with the SBFDC and obtained such a checklist. The proprietor, the applicant and Mr Dinh are all qualified chefs or cooks. Mr Dinh’s employment was arranged with regard to a two-year immigration agreement. In the circumstances that he was not drawing an income from the business, the proprietor determined that the applicant’s was the full-time position which was to be considered for redundancy.

[28] Given the evidence in this matter the Commission is satisfied that the business was in financial stress and the respondent had identified that operational changes were required to relieve such stress. The respondent had identified the applicant for redundancy predominantly on financial considerations.

[29] The respondent, on 12 April 2013, found the applicant distributing food to other staff from the premises stores. He protested such actions and was told by the applicant that all restaurant stock belonged to him and that he was entitled to hand it out as he desired. 6

[30] They further talked about the issue of unpaid employee superannuation that resulted in the respondent arranging such payments a few days later.

[31] The respondent was further advised by the applicant that if the respondent ever tried to terminate his services he would take an unfair dismissal claim, that in addition to his salary he was entitled to one half of the gross proceeds of any functions and that he was responsible for the employment of the staff. The respondent did not discuss these assertions as he considered the applicant’s quirkiness was harmless. 7

[32] The respondent also submitted in evidence that the applicant took it upon himself to have various days off in lieu to compensate for lack of public holidays. He regularly failed to attend work on such days notwithstanding that such days off did not apply or were not authorised by the respondent. The respondent described this as “being held to ransom.” 8

[33] The respondent arranged for a person seeking chef work to do a trial shift at the premises on the 26 April 2013. The applicant had applied for annual leave on that day. The respondent instructed the applicant as to required kitchen labour on that day and the nature of the trial shift for the chef. The applicant requested the details of the trial chef and explained he intended to interview the chef. This was refused by the respondent.

[34] In consideration of the evidence the Commission finds that the respondent was concerned with the behaviour of the applicant and his lack of regard for them as his employer. The resistance by the applicant to instruction and the lack of regard indicated by various exchanges indicates a difficulty of control by the respondent illustrated by: the food issue; the time off in lieu issue; the nature of the roster and the hours of work of the applicant. The relationship was not one of mutual respect within an employment context.

[35] The applicant took advice from his union, United Voice, at this time. 9 Knowing the respondent had arranged a trial shift on the above date the applicant did not go on annual leave but turned up for work at the restaurant on that day. He “explained to Gio that I decided to come to work so I could meet the new chef and see how he does in a trial shift.”10 The respondent apparently did not send the applicant home.

[36] The applicant further states that “at 5.30 pm Antony (Mr Dinh) and I awaited the arrival of Cameron (the trial chef).” 11 The trial chef did not attend. The applicant states he was concerned at the security of his job and he then decided to take all of his personal possessions home at that time. He further copied the computer files on the respondent’s computer. The respondent states he was only aware the applicant deleted certain files.

[37] The Commission finds that the applicant was concerned as to his future employment at this time. His actions illustrate that he felt the threat of termination of his employment. He also, because of his influence in the restaurant, his awareness of kitchen budgets and the turnover, was aware of the trend in trade of the business. He could not have been unaware circumstances had to change.

[38] Following the dismissal of the applicant the respondent reorganised the kitchen staff and took a chef role in the kitchen himself. From the evidence of Mr Dinh he now reports as cook to the respondent proprietor Mr Musolino. 12 The hours of work have changed, a kitchen hand commenced some three or four weeks later, a person called Giuseppe then commenced as well as Mr Potter doing some limited kitchen duties hours. Some cooking tasks were reallocated to the kitchen hand.

The events of the 30 April 2013, the day of dismissal

[39] The applicant’s version is that he attended for work on the 30 April. At 8.10 pm the respondent advised he wished to meet with the applicant at 8.30 pm. The applicant wanted to know what the meeting was about and the respondent advised he would be told at the meeting.

[40] The applicant then stated “I have already told you I will not have any formal discussions with you without a witness of my choice present”. 13 The respondent then offered Gina as a witness to which the applicant refused. The respondent then said “well Giancarlo is here.”14

[41] Just after 8.30 pm the respondent tried to have the meeting and the applicant waited until Giancarlo was observing and Gina was present. He then stated to the respondent that he wanted a witness of his choice present, that he did not accept Giancarlo or Gina as witnesses, so another time would be required for a meeting.

[42] He was asked to take a seat to which he replied:

“I have requested my legal right to have a witness of my choice present at this meeting to which you have unlawfully ignoring. Please let me know when you would like to reschedule this meeting so I can arrange a witness of my choice to be present.” 15

[43] The applicant then left the premises. The applicant’s evidence is that he provided the above or “words to that effect” in this exchange.

[44] The respondent’s version is that they were endeavouring to meet and talk about the financial position of the business and the impending changes. They assert that they had flagged to the applicant that some changes were necessary in the business some weeks previous. 16 They state that the applicant did not advise he wanted a witness “of his choice” until he apparently was leaving. He rejected the two witnesses suggested by the respondent and refused to talk to the proprietor. It is clear the applicant left when he chose to do so.

[45] The respondent states that they had made a decision on redundancy of the applicant sometime in mid April but had not raised it with the applicant until 30 April.

[46] The respondent later that night hand delivered to post boxes copies of a dismissal letter to two addresses associated with the applicant. 17 They observed the applicant’s car at one address and assumed he had received the letter. That letter details the dismissal of the applicant on the basis of redundancy due to operational requirements as a result of a downturn in business. This letter was also provided via email on 1 May 2013.

[47] In consideration of the requirements of the SBFDC the Commission finds that there was a valid reason for dismissal of the applicant, being for operational reasons. However the reason was not given to the applicant before dismissal. There was no opportunity for discussion as the applicant left when he chose to and hence was not given a reason why he was at risk of being dismissed. In regard to the opportunity to have someone present to assist the applicant, he was given the choice of two work colleagues which he used as witnesses to his dialogue with the respondent before leaving. The Commission finds that he was therefore not deprived of the procedural opportunity to have a person present to assist in discussions with the respondent. The Commission finds that in total the dismissal therefore does not conform with the requirements of the SBFDC.

[48] In consideration of the requirements of the dismissal being characterised as a “genuine redundancy” the Commission finds the employer no longer wanted the job to be performed by anyone because of changes in the operational requirements of the business as per s.389(1)(a). However there is no evidence of compliance with the requirements to notify and discuss with the applicant his redundancy as per s.389(1)(b).

[49] In consideration of redeployment in the business or associated entities as per s.389(2) the Commission is satisfied on the evidence that the respondent considered redeployment but the only alternative was work as a kitchen hand. The Commission considers the respondent’s view was correct that the applicant would not have taken such work. In totality the Commission finds that the dismissal of the applicant was not a “genuine redundancy” as required by the Act.

Findings

[50] The Commission has therefore found the following in this matter:

● The respondent is a small business employer as defined in the Act.
● The dismissal did not comply with the SMFDC.
● The dismissal was not a case of “genuine redundancy” as defined in the Act.

Was the dismissal “unfair”?

[51] Given the above findings the Commission must now turn to a consideration of this dismissal against the indicia provided by s.387 of the Act as to whether the dismissal was harsh, unjust or unreasonable.

[52] Section 387 provides the following to be taken into account in consideration.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[53] In regard to s.387(a) the respondent is a small business and was affected by business conditions and a reduced turnover such that the respondent owner could not draw an income from the business. Reducing staff and reorganising the business was determined as an operational change that would result in the position of head chef not being required. The Commission considers this is a valid reason for dismissal of the applicant in the circumstances.

[54] In regard to s.387(b) the applicant was notified of his dismissal by letter delivered on the same day as the attempt by the respondent to discuss his dismissal. It is noted the applicant refused to partake in the discussions and he left the premises.

[55] In regard to s.387(c) the applicant was dismissed by letter without being notified of the reason for dismissal. The applicant refused to partake in discussions without a witness of his choosing being available. The respondent provided a choice of two colleagues of the applicant as witnesses. Both were refused. The meeting was organised by the respondent to discuss with the applicant his pending redundancy. It did not take place because of the reluctance of the applicant and hence the question whether he was given an opportunity to respond remains undefined as the meeting was frustrated.

[56] In regard to s.387(d) in the circumstances and evidence of the events provided the employer did not unreasonably refuse to allow a support person to be present. The respondent is a small business employer and provided a choice of two attending employees as witnesses, both refused by the applicant even though he required a “witness” of his choice. The Commission does accept that a support person, or someone to assist, refers to support and assistance to the applicant but in the prevailing circumstances the applicant made a clear choice not to proceed with the meeting.

[57] Section 387(e) is not relevant to the considerations in this matter.

[58] In regard to s.387(f) the respondent is a small business but in evidence in the attempts by them to access advice and obtain the information on the appropriate approach to their employees they provided a small business checklist. The size of their business and experience in these matters has been significant in their approach to managing the issues with the applicant.

[59] In regard to s.387(g) the effect of the absence of dedicated human resource management specialists on the procedures followed was significant in this matter. The respondent decided the applicant was the person to be redundant some two weeks before the events leading to his dismissal. However no approach for discussions or consultation occurred during this period. The attempts at a meeting with the applicant were without significant notice and when things became frustrated in that the applicant refused to have a meeting at that time and left the respondent simply delivered a dismissal letter by hand to post boxes and then an email the next day. Such lack of consultation did not provide a reason to the applicant why he was at risk of dismissal, thus negating the coverage of the SBFDC. Such lack of timely discussion and advice as per the prevailing industry Modern Award requirements on the impending changes and dismissal for redundancy with the applicant further negated the dismissal being regarded a ‘genuine redundancy’.

[60] In regard to section 387(h), “any other matters,” the Commission has already referred to the identified tension in the relationship between the applicant and the respondent. The respondent did have some concerns with the applicant’s performance in regard to his attitude and behaviour. The applicant was reluctant to take instruction and indicated a lack of regard for the respondent. The respondent found him difficult to control with unsanctioned arrangements by the applicant occurring in the workplace and little indication of mutual respect.

[61] Given that the respondent had to make commercial changes in his business and had employed Mr Potter to assist the Commission considers that the tension in the applicant’s relationship with the respondent would not have generated an enduring relationship.

[62] The Commission also received submissions from the applicant on the non-payment of notice and redundancy pay on his dismissal. The dismissal was for operational reasons and the applicant was redundant albeit not a genuine redundancy as found.

[63] The applicant submitted that if the respondent was found to be a small business that an obligation to pay redundancy pay arises under the Restaurant Industry Award 2010. The claim relates to the form of sub-clauses 17.5 and 17.6 of the Award. The first clause 17.5, relates to NAPSA employees and the second clause, 17.6, to Division 2B state employees. The sub-clauses are in identical terms (save for reference to NAPSA and Division 2B State Awards) and provide:

“(a) ..., an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with terms of a notional agreement preserving a State (or Division 2B State) award:

(i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement-based transitional instrument (or Division 2B State employment agreement) or enterprise agreement had applied to the employee; and...”

(Words in parenthesis are the mirrored contents of sub-clause 17.6)

[64] The applicant asserts that in either case the relevant State Award would have been the Cafes & Restaurants (SA) Award and that contained a redundancy provision applying to small business. That Award provides for an entitlement of four weeks redundancy pay when dismissed for redundancy in circumstances akin to those of the applicant. The applicant submitted that the failure to pay redundancy in cognition of an entitlement to such pay was unreasonable. (see Middap v Australasian Meat industry Employees’ Union 18and Wynn’s Winegrowers Pty Ltd v Foster.19)

[65] In the Award Modernisation decision of 19 December 2008 a full bench of the Australian Industrial Relations Commission provided for the above clause in regard to NAPSAs, to be included in Modern awards. They stated in that decision:

“There are a number of different redundancy pay schemes in State awards and legislation which are reflected in NAPSAs. These schemes sometimes include provisions which are more beneficial for employees than those contained in the NES. Provisions in this category include more generous redundancy pay scales, redundancy pay for employees of small businesses, different calculations for base pays and so on. It is appropriate that these interstate differentials be taken into account in transitional provisions.” 20

[66] In the Award Modernisation decision in regard to 2B State Awards of 5 November 2010 a full bench of Fair Work Australia referred to the above provision as:

“...the standard provisions relating to redundancy entitlements and accident pay which preserve entitlements for the transitional period.” 21

[67] The bench in that decision varied awards to include the similar redundancy provision for 2B State Award employers.

[68] In the Modern Awards Review 2012 - Transitional Provisions decision of 18 July 2013 a full bench of the Fair Work Commission identified, in referring to an earlier full bench decision, that the originating decision on transitional provisions should:

“...apply uniformly to employers covered by modern awards, and that there would be no distinction between employers under a modern award who had been bound by a pre-modern instrument and those who came into the industry covered by the modern award after 1 January 2010. It said:

[31]We deal now with the coverage of the transitional provisions. It is desirable that all employers covered by the modern award in question should be bound by the same transitional provisions. So far as practicable, the same minimum obligations should apply to all employers and the same minimum entitlements should apply to all of the employer’s employees. Employers who are obliged by the transitional provisions to pay minimum wages, penalties or loadings higher than those in the modern award during the transition period might be at a significant disadvantage if employers were permitted to come into the industry after 1 January 2010 and operate under the modern award conditions. Such a situation might have serious consequences for competitiveness and perhaps also for employment. There are other examples indicating why there should be a degree of uniformity. The provisions will apply to three identifiable groups of employers. First, they will apply to employers covered by a transitional minimum wage instrument or an award-based transitional instrument immediately prior to 1 January 2010. Secondly, they will apply to employers which would have been covered by such an instrument but for the operation of an agreement-based transitional instrument. Thirdly, they will apply to employers which would have been covered by a transitional minimum wage instrument or an award-based transitional instrument had they been employers in the industry or of the occupations covered by the award immediately prior to 1 January 2010.” 22

[69] Given these references the Commission concludes that the transitional provisions in the relevant Modern Award covering the respondent in this matter give rise to a liability to pay severance pay on the occasion of redundancy regardless that the respondent is a small business as defined. Such a liability arises within the transitional provisions which expire on 31 December 2014.

[70] The applicant further indicated that he has a current application against the respondent before the Industrial Relations Court of South Australia (the Court) in regard to moneys claimed other than redundancy pay. It is the Commission’s intention therefore that those matters will not be a consideration in this decision as it is before the Court.

Conclusion

[71] Taking all the above into account the Commission has formed the view the applicant’s dismissal was harsh and unreasonable in the circumstances. He was afforded no consultation and discussion on his pending redundancy. He was not advised of the reason why he was at risk of being dismissed. He was not advised as soon as practicable of the decision being made and he was not afforded an opportunity to respond but advised by letter and email. He was further not provided with a redundancy payment as per the provisions of the prevailing Award.

[72] Turning to the issue of remedy and taking into account the evidence, submissions and the findings in this matter the Commission is of the view that the appropriate remedy in this matter is not reinstatement as there is no potential positive relationship between the parties to base such a remedy on.

[73] In terms of compensation and considering the criteria identified within s.397 of the Act and the issue of severance pay as above, the Commission had formed the view that the appropriate compensation in this matter is an amount of eight weeks pay at the salary rate of $1099.46 per week gross. An order shall be issued separately to this effect.

COMMISSIONER

Appearances:

Ms L Harrison for the applicant

Mr A Potter for the respondent

Hearing details:

2013:

Adelaide

9 September

 1   Exhibit R4

 2   PN 261-262

 3   PN 263-274

 4   PN 444

 5   See   Exhibit R1 at para 19

 7   Ibid at paras 23-26

 8   PN 187

 9   Exhibit A1 at para 28

 10   Ibid at para 31

 11   Ibid at para 34

 12   Exhibit A2 at para 36

 13   Exhibit A1 at para 55

 14   Ibid at para 58

 15   Ibid at para 73

 16   PN 193

 17   Exhibit A1, Annexure D

 18   [2000] SAIRComm 19 at para 28

 19   (1986) 53 SAIR 347 at 367

 20   [2008] AIRCFB 1000 at [61]

 21   [2010] FWAFB 8558 at [29]

 22   [2013] FWCFB 4539 at [13]

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