Mr Danilo Clarito v Hitec Welding Pty Ltd

[2014] FWC 9453

[2014] FWC 9453

FAIR WORK COMMISSION

DECISION

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

Mr Danilo Clarito
v
Hitec Welding Pty Ltd
(U2014/7640)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 DECEMBER 2014

Application for unfair dismissal remedy - Arbitration - Compensation.

Overview
[1] On 11 September 2014, I delivered an ex tempore decision finding that Mr Danilo Clarito had been unfairly dismissed by Hitec Welding Pty Ltd. I also found that Mr Clarito should have a remedy for his unfair dismissal and that reinstatement was not an appropriate remedy. Further, I found that there was insufficient evidence upon which I could determine an appropriate amount of compensation for Mr Clarito, and the parties were provided with an opportunity to make submissions and provide evidence in relation to the factors in s. 392 of the Act relevant to the assessment of compensation.

[2] Those submissions and statements from Mr Clarito and Mr Hall on behalf of Hitec have now been filed. Both parties indicated that cross-examination was not required of either Mr Clarito or Mr Hall and that the question of compensation should be determined on the basis of the material on the file. I have considered the submissions and statements in relation to compensation. My decision of 11 September in relation to whether Mr Clarito was unfairly dismissed (now edited) and my further decision in relation to compensation are set out below.

Background

[3] Mr Danilo Clarito applies for an unfair dismissal remedy pursuant to section 394(1) of the Fair Work Act 2009 (the Act) in respect of his dismissal by Hitec Welding Pty Ltd. Mr Clarito was employed by Hitec as an Electrical Engineering Technician and was sponsored by Hitec under a s. 457 Visa pursuant to the Migration Regulations 1994. Mr Clarito commenced employment on 2 September 2013 and was dismissed on the grounds of serious misconduct, on 14 May 2014. Mr Clarito was paid his normal salary up until the date of his dismissal and his accrued entitlements.

[4] Mr Clarito was represented by Ms Midson of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). Hitec sought permission to be represented by Counsel. Notwithstanding the objection on behalf of Mr Clarito, I decided to grant Hitec permission to be legally represented on the grounds that I was satisfied that the Company had previously been represented by Solicitors without objection, and it would enable the matter to be dealt with more efficiently having regard to its complexity.

[5] Mr Clarito gave evidence on his own behalf. Evidence was also given on behalf of Mr Clarito by his former work colleague Mr Gregorio Garcia. Mr Garcia was also dismissed by Hitec for unrelated reasons and I dealt with his application for an unfair dismissal remedy subsequent to that of Mr Clarito.

[6] Evidence on behalf of Hitec was given by its Director Mr Joseph Lewandowski. I heard both parties’ evidence and submissions at Brisbane on 11 September 2014. In general I did not find Mr Lewandowski to be a particularly compelling witness, even making allowances for the fact that English is not his first language. Mr Lewandowski’s evidence was discursive and often non-responsive to the questions he was being asked. Where there is a relevant conflict in the evidence, I prefer the evidence of Mr Clarito.

[7] I have had regard to s.396 of the Act and determined that this application was made within the period required by the Act, that Mr Clarito is a person protected from unfair dismissal, that Hitec is not a small business employer and that there is no issue of genuine redundancy.

Legislative provisions
[8] It is necessary for me to determine whether or not Mr Clarito’s dismissal was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act as set out below:

“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 for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[9] The application involves contested facts.  After considering the matters in s. 399 of the Act and the views of the parties, I considered it appropriate to hold a hearing.  Further, this application was heard immediately prior to the hearing in Gregorio Garcia v Hitec Welding Pty Ltd 1on the basis that there were common witnesses and the parties accepted that this was the most appropriate and efficient way to deal with both applications.

[10] The Commission is obliged to make a finding about whether or not there was a valid reason for dismissal. 2 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”3 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts4, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.5

[11] In matters involving misconduct, the Commission must look at the conduct of the dismissed person and determine on the balance of probabilities what the conduct was and whether it took place. 6 The test is whether the conduct took place, not whether the employer believed on reasonable grounds, after sufficient enquiry, that the conduct took place.7 In determining whether a dismissal is unfair:

“It is not the [Commission’s] function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the [Commission] to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...” 8

[12] The matters in s.387 go to both substantive and procedural and substantive fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 9

[13] There is a distinction in the provisions of the Act between “serious misconduct” and “misconduct”. The former term is defined and the latter is not. The term “serious misconduct” is defined in s.12 of the Act and Regulation 1.07 as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or
(ii) fraud; or
(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[14] Regard may be had to this definition to decide whether there is a valid reason for the dismissal of an employee who is alleged to have engaged in serious misconduct.

Was there a valid reason for the dismissal? - s. 387(a)

[15] The reason given by Mr Lewandowski for Mr Clarito’s dismissal and the alleged serious misconduct are that on Monday 12 May 2014, Mr Clarito disobeyed a reasonable and lawful direction issued by Mr Lewandowski to attend a meeting.

[16] It is not in dispute that on 12 May 2014, there was a discussion between Mr Lewandowski and Mr Clarito, during which Mr Lewandowski discussed his views about Mr Clarito’s activities in attempting to recruit other employees to join the AMWU. Mr Lewandowski said that he raised this issue with Mr Clarito because two employees had complained about Mr Clarito “creating a disturbance” with respect to his attempts to convince them to join the AMWU.

[17] According to Mr Clarito’s version of the conversation, Mr Lewandowski spoke in disparaging terms about the union and membership and questioned whether Mr Clarito worked for the Union or Hitec.

[18] Mr Lewandowski gave two versions of the conversation. The first version in his original witness statement filed in the Commission on 18 August 2014, 10 is that he “spoke to [Mr Clarito] on 12 May 2014 and advised that he was going to speak to him regarding this matter and that he was not to be so forceful in recruiting for union membership.” In the amended version of his statement, tendered at the hearing of this matter, Mr Lewandowski said that he “spoke to [Mr Clarito] ....and ... told him to stop harassing the employees in recruiting for union membership during working hours because it was unsafe.”

[19] I have some difficulty in accepting the veracity of the second statement. However even if I do accept the second version of the conversation with Mr Clarito on 12 May 2014, it is clear that Mr Lewandowski took issue with Mr Clarito endeavouring to recruit employees to the AMWU and that at the conclusion of the conversation, the issue was not resolved.

[20] This conclusion is supported by Mr Lewandowski’s evidence that he called the two employees who had allegedly complained to him about Mr Clarito harassing them, to a meeting, and sent Mr John Hall, Hitec’s Health and Safety Manager, to ask Mr Clarito to attend that meeting. Mr Lewandowski said that he was not aware whether Mr Hall did this himself or delegated the task. Mr Hall was not called to give evidence although he was available and sitting in the hearing room throughout the course of the hearing.

[21] Mr Clarito states, and I accept his evidence, that an employee called Jai approached him and informed him that Mr Lewandowski wanted him to attend a meeting, and that the two employees (who Mr Lewandowski alleged had reported that Mr Clarito was harassing them, and who were mentioned by Mr Lewandowski in the discussion with Mr Clarito earlier that day) were already at the meeting.

[22] Mr Clarito said that he thought that this was a continuation of the meeting earlier in the day, and after parking the forklift that he was operating, used his mobile telephone to call an Organiser from the AMWU to request her to attend the meeting. The Organiser did not give evidence and in my view what the organiser told Mr Clarito is irrelevant. What is relevant is that Mr Clarito said that when Jai asked him why he was not attending the meeting, he told Jai that he would go to the meeting with a representative, and as he did not have one, suggested that the meeting be held the next day.

[23] Mr Lewandowski said that he was informed that Mr Clarito was refusing to attend the meeting. Under cross-examination, Mr Lewandowski said that Mr Hall told him that Mr Clarito was refusing to attend and that Mr Hall mentioned that Mr Clarito was asking for a representative at the meeting. Mr Lewandowski also said that it was a simple meeting to solve a problem and Mr Clarito did not need a union representative at the meeting. Mr Lewandowski confirmed that he was told that Mr Clarito was waiting for a representative to attend the meeting with him.

[24] Later in the day, Mr Lewandowski spoke to Mr Clarito about his alleged refusal to attend the meeting. There is conflict in the evidence about this conversation, however, on Mr Lewandowski’s own evidence when he asked Mr Clarito why he did not attend the meeting, Mr Clarito said words to the effect that he was waiting for his union. It is also the case that Mr Hall prepared a document termed a “Corrective Action Request” which was signed by Mr Lewandowski on 12 May 2014, stating that the root cause of Mr Clarito’s refusal to attend the meeting was that he required a representative to also be in attendance. This is said to be an act of defiance to a reasonable request by the Company Director to attend a meeting. 11

[25] Mr Lewandowski said that on 14 May 2014 he discussed this refusal with his management team and legal representatives, and caused a letter of termination to be prepared for Mr Clarito, in the following terms:

“To: Danilo Clarito

Termination of Employment Notice

On Monday, 12 May 2014 I gave you a reasonable and lawful direction to attend a meeting with some of your work colleagues. You refused to attend the meeting.

In so doing, you refused to follow a reasonable and lawful direction from me. This behaviour amounts to serious misconduct warranting summary dismissal from employment.

I therefore confirm that you are dismissed from your employment for serious misconduct effective immediately.

You will be paid all of your normal salary payment up to and including today together with your accrued entitlements.

Yours Faithfully

Joe Lewandowski

Director”

[26] I am satisfied and find that there was no valid reason for the dismissal of Mr Clarito. Quite simply, Mr Clarito did not refuse to attend the meeting. Rather he made a request that the meeting be postponed to enable a representative of his union to attend the meeting with him.

[27] In the context of the discussion earlier that day between Mr Clarito and Mr Lewandowski, it was entirely reasonable for Mr Clarito to believe that the meeting was for the purposes of continuing that discussion. It was also entirely reasonable for Mr Clarito to request that he have a union representative at the meeting, particularly when the topic of the meeting was to be Mr Clarito’s activities in recruiting members.

[28] I also accept that Mr Clarito is a vulnerable worker given that he is working under a s. 457 visa arrangement and dependent on the sponsorship of Hitec. Further, Mr Clarito’s first language is not English and there is nothing unreasonable about his desire to be represented at such a discussion is understandable.

[29] While it is also the case that Mr Lewandowski’s first language is not English, Mr Lewandowski is the Director of Hitec, holds all of the power in the relationship and had access to resources including Mr Hall, to assist him.

[30] If Mr Lewandowski believed that he was requesting Mr Clarito to attend a simple meeting to resolve a problem, then he could have provided some reassurance to Mr Clarito in this regard. He did not do so. It is also telling that Mr Lewandowski stated in his evidence that had Mr Clarito attended the meeting as requested, he would have received a warning and would still be employed. Clearly, Mr Lewandowski had formed an adverse view about Mr Clarito’s conduct and his desire to be represented at the meeting by the AMWU, and this only heightens the reasonableness of Mr Clarito’s request to have representation at the meeting.

[31] In these circumstances, I am satisfied and find that there was no valid reason for the dismissal and that the reason given by Hitec was not sound, defensible or well founded.

Was Mr Clarito notified of that reason? - s. 387(b)

[32] I am satisfied that Mr Clarito was notified of the reason for his dismissal.

Was Mr Clarito given an opportunity to respond? - s. 387(c)

[33] I am not satisfied that Mr Clarito had an opportunity to respond to the allegations about his conduct in refusing to attend the meeting on 12 May 2014. It is apparent that Mr Lewandowski decided to dismiss Mr Clarito without giving him any opportunity to explain his desire to postpone the meeting or to clarify his position in relation to attendance. Mr Lewandowski did this in circumstances where he knew that Mr Clarito was requesting representation at the meeting, and should have allowed Mr Clarito to be represented or at least spoken to Mr Clarito to clarify his position.

Was there an unreasonable refusal to allow Mr Clarito to have a support person present? - s. 387(d)

[34] There were no discussions relating to the dismissal and accordingly no refusal to allow a support person to be present. This is distinct from the refusal of a support person at the meeting on 12 May, which I have dealt with in relation to whether there was a valid reason for the dismissal.

Was Mr Clarito warned about his conduct? - s. 387(e)

[35] Mr Clarito was dismissed for serious misconduct. He was not guilty of serious misconduct, and there was no warning to him that his attempts to postpone the meeting and to have representation at the meeting were viewed as an unreasonable refusal to attend. I also note the uncontested evidence of Mr Clarito that he had not received any previous warnings about his conduct or work performance.

To what degree did the size of the employer’s enterprise likely impact on the procedures followed in effecting the dismissal? - s. 387 (f)

[36] Hitec is not a small employer and at the time of Mr Clarito’s dismissal, employed some 70 persons. The Company employs a Health and Safety Manager who also plays a human resource management role as evidenced by the fact he drafted Mr Clarito’s termination letter. Hitec has access to legal representation, which it availed itself of in deciding to dismiss Mr Clarito. There is no basis for finding that the size of Hitec impacted on the procedures followed – or lack of thereof – in effecting Mr Clarito’s dismissal.

To what degree did the absence of dedicated human resource management specialists or expertise in the enterprise likely to impact on the procedures for followed in effecting the dismissal? - s. 387(g)

[37] For the reasons set out in relation to s. 387(f) this is also not a relevant factor in the present case.

Are there any other relevant matters? - s. 387(h)

[38] Mr Clarito gives evidence of the impact of his dismissal which I accept. As previously noted, Mr Clarito is a vulnerable worker due to his visa status. The termination of his employment in his personal circumstances has had an additional harsh effect in that he is not eligible for any social services and his wife has had to cease a course of study.

Conclusion that Mr Clarito was unfairly dismissed

[39] I am satisfied that Mr Clarito’s dismissal was unfair on the basis that it was harsh, unjust and unreasonable. The dismissal was harsh because of its consequences for Mr Clarito’s personal circumstances including his vulnerability on the ground of his visa status. Mr Clarito had a position for the foreseeable future. Mr Lewandowski states that but for his refusal to attend the meeting, Mr Clarito would still be employed.

[40] Mr Clarito’s dismissal was unjust because he was not guilty of refusing to comply with a lawful and reasonable direction. The dismissal was unreasonable because it was decided on inferences that could not reasonably have been drawn from the material before the employer.

Remedy

[41] I am satisfied that Mr Clarito should have a remedy for his unfair dismissal. Mr Clarito seeks compensation. After observing Mr Lewandowski give his evidence I am of the view that reinstatement would not be an appropriate remedy. It is probable that Mr Lewandowski would not be capable of accepting that Mr Clarito was blameless in the events that led to his dismissal and I am satisfied that the employment relationship could not be re-established. I have also determined that compensation is an appropriate remedy for Mr Clarito’s unfair dismissal. In relation to compensation, s. 392 of the Act provides:

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWC considers relevant.

Misconduct reduces amount

(3) If FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or
(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[42] As previously noted, both parties were given an opportunity to call additional evidence and make submissions in relation to compensation. Neither party sought to cross-examine persons who made statements on behalf of the other party and submitted that the issue of compensation be determined on the basis of the material on the file.

[43] In relation to the factors I am required to consider, there is no evidence that any order for compensation will affect the viability of Hitec’s enterprise. Mr Clarito attached documentation to his statement in relation to compensation that is said establish that in September 2014, Hitec was advertising employees to fill what are described as “large scale projects being undertaken”. Those advertisements are for employees to fill engineering, pressure welding and pipe fitting positions.

[44] Mr Clarito had twenty months service with Hitec. In relation to the remuneration he would likely have received had he remained in employment, it is submitted that Hitec has sponsored Mr Clarito under a s. 457 visa arrangement for a period of four years and that he may have remained in employment with Hitec beyond that period and been sponsored for permanent residency. The submissions on behalf of Mr Clarito also point to the evidence of Mr Lewandowski that but for the refusal to attend the meeting, Mr Clarito may not have been dismissed.

[45] Mr Clarito’s evidence was that he earned $69,108.00 in the six month period immediately preceding his dismissal. He was paid $32 per hour for 38 hours per week Monday to Friday and 48 hours for all hours in excess of 38 per week. Prior to Easter 2014, Mr Clarito was also working 8 hours every Saturday for which he was paid $48 per hour. A payslip tendered by Mr Clarito indicated that his annual salary was $63,232.00 and his base rate was $32 per hour.

[46] Mr Clarito gave evidence that he had applied for over 70 jobs since his dismissal both on-line and in person. Mr Clarito attached a computer generated summary of those positions. As previously stated, Mr Clarito is not eligible for social services because of his visa status and had not earned any remuneration between his dismissal and the date upon which he made a statement in relation to compensation. Mr Clarito also states that it is unlikely that he will obtain other employment in the foreseeable future.

[47] Hitec submits that Mr Clarito has not provided sufficient evidence in relation to efforts to mitigate the loss of his employment and contends that he has failed to detail the suitability of the roles for which he applied; details of relevant contact persons including those who interviewed him and proof that the applications were submitted. It is also contended that notwithstanding his statement that he is disadvantaged because of his visa status, Mr Clarito has not sought reinstatement and instead seeks compensation.

[48] In relation to Mr Clarito’s earnings in the six months prior to his dismissal, it is submitted that he has not provided evidence to support his assertion that he earned $69,108.00 in that period. Mr Hall who provided a statement on behalf of Hitec asserts that the minutes from a May 2014 tool box meeting in evidence in these proceedings indicate that in 6 – 8 weeks Hitec will be dramatically reducing the number of employees due to lack of work and that current contract work is due to be completed at that time. It is also asserted by Mr Hall that had Mr Clarito continued to be employed past May 2014 he would likely have received $27,921.18 gross plus superannuation contributions of $2,652.51 on the basis that Hitec’s current work/load order book will be completed by November 2014.

[49] Mr Hall also gives the following evidence:

● Hitec has no assured work orders that are classified as imminent;
● Hitec continues to seek work in the oil and gas industry which is slowing down;
● The advertisements referred to by Mr Clarito were in relation to a project which did not proceed and no personnel were hired;
● The number of employees of Hitec has decreased from 76 to 58 between May and October 2014 and further reductions are likely;
● In the six months prior to his dismissal Mr Clarito earned $62,288.32 gross including holiday pay and was paid superannuation contributions of $5,761.67; and
● Had Mr Clarito remained in employment he would have worked 11.5 hours per day until the end of May, 8 hours per day during June, July and August and then had his hours reduced to 32 hours per week in September 2014 before being terminated due to lack of work in October 2014.

[50] Hitec submits that Mr Clarito contributed significantly to his dismissal and that it was due to his misconduct. These matters should result in a significant discount of any award of compensation. It is also submitted that a further significant discount should be made on the basis of contingencies. Hitec also seeks permission to pay any award of compensation to Mr Clarito in instalments.

Conclusion in relation to remedy

[51] It was made clear in my decision of 11 September 2014 that I had concluded that Mr Clarito was unfairly dismissed on the basis that his dismissal was harsh, unjust and unreasonable. It was also made clear that I had determined that Mr Clarito was not guilty of misconduct and that an order for compensation was under consideration. An opportunity was provided to Hitec to place evidence before the Commission in relation to relevant considerations in determining an award of compensation including the viability of its business. There is no evidence that any order for compensation in the present proceedings will impact on the viability of Hitec.

[52] It is not in dispute that Mr Clarito had some twenty months of service with Hitec. There was conflict in the evidence from Mr Hall and Mr Clarito in relation to the amount Mr Clarito earned in the six months prior to his dismissal and the amount he would have earned had he remained in employment. Neither Mr Hall nor Mr Clarito produced pay slips or other documentary evidence to support their assertions on this point. The only documentary evidence before me is a pay slip tendered by Mr Clarito setting out his termination pay which states that his annual base salary was $62,232.00.

[53] I do not accept that Mr Clarito would have had his hours reduced to the extent Mr Hall states or that he would have necessarily been dismissed in October 2014. Mr Clarito was employed in Hitec’s store and was one of two persons employed in that area. Regardless of the reduction in hours of other employees there is no evidence about stores work or whether persons are performing that work. I do accept that Mr Clarito would have had some reduction and doing the best that I can, given that neither Mr Clarito nor Mr Hall were cross-examined about their evidence, I estimate that Mr Clarito would have worked a 38 hour week from the end of May 2014 and that prior to that he would have worked a 57.5 hour week on the basis of 11.5 hours per day.

[54] I also estimate that but for his unfair dismissal, Mr Clarito would have remained in employment for at least a further six month period. In this regard he had no previous warnings in relation to his conduct and work performance, and but for Mr Lewandowski’s incorrect conclusion that Mr Clarito disobeyed a lawful and reasonable direction, Mr Clarito would not have been dismissed. In that six month period, Mr Clarito would have earned a base annual salary of $31,116.00 and a further amount of $1,872.00 in overtime payments – a total of $32,988.

[55] I accept that Mr Clarito has made reasonable attempts to mitigate the loss of his employment. He has given evidence of having applied for over 70 positions, and was not cross-examined about that evidence. I also accept that Mr Clarito would face additional obstacles in gaining alternative employment on the basis of his visa status and that he has earned no income for the six month period following the termination of his employment.

[56] As previously stated, Mr Clarito did not engage in misconduct and did not contribute to his dismissal. Rather he made a perfectly reasonable request to delay a meeting he was required to attend, until he could be represented by his Union. The employer’s response to this reasonable request was to dismiss Mr Clarito in a manner that was entirely unfair. In those circumstances I make no deductions from the compensation I intend to award Mr Clarito.

[57] In the circumstances where the employer has given evidence of a downturn in business that may have resulted in a reduction in Mr Clarito’s hours of work or the termination of his employment on the basis of redundancy, I make a 25% deduction for contingencies.

[58] I have determined to award compensation to Mr Clarito in the amount of $24,741.00 and an amount of $2,100.33 with respect to superannuation contributions (based on ordinary earnings). As previously stated, Hitec seeks permission to pay any amount of compensation in instalments. There is no evidence from Hitec in relation to its financial capacity to pay such compensation, and on the basis that the Company was given an opportunity to lead such evidence, I do not propose to provide a further opportunity in relation to the effect of an order on the viability of Hitec.

[59] However, another application for an unfair dismissal remedy involving a witness in this case, Mr Garcia, was also heard immediately after Mr Clarito’s case. Mr Garcia’s unfair dismissal case also succeeded and he has been awarded an amount of compensation. In those circumstances, I am prepared to consider a further submission from Hitech setting out a reasonable proposal for the amount of compensation awarded to Mr Clarito to be paid in instalments, and the basis upon which that request is made.

[60] The submission from Hitec in relation to payment by instalments is required to be filed by 5.00 pm on Friday 9 January 2015. Any response to that submission is required to be filed by 5.00 pm on 16 January 2015. If permission is granted for payment of the compensation amount by instalments, the Order will also operate so that any default will result in the full amount becoming immediately due and payable. If submissions from Hitec are not received by the required date, the full amount will be ordered to be paid by 23 January 2015 without further notice.

DEPUTY PRESIDENT

Appearances:

L.Midsen of the AMWUon Behalf of the Applicant.

N.Jarro of Counsel instructed by Mullins Lawyers on behalf of the Respondent.

Hearing details:

2014.

Brisbane:

October 10, 11

 1   U2014/7403

 2   Edwards v Giudice 94 FCR 561.

 3   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 4   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 5   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 6   Farrugia v Transadelaide SAIR 6.

 7   King v Freshmore Print S4213.

 8   Walton v Mermaid (1996) 142 ALR 681 at 685.

 9   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

 10   Exhibit 2.

 11   Exhibit 1 Annexure “DC-2”

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