Mr Daryl Adcock v Moltoni Waste Management

[2012] FWA 10191

[2012] FWA 10191

FAIR WORK AUSTRALIA

DECISION

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

Mr Daryl Adcock
v
Moltoni Waste Management
(U2011/14755)

COMMISSIONER ASBURY BRISBANE, 3 DECEMBER 2012

Application for unfair dismissal remedy - compensation granted.

[1] In a decision released on 13 November 2012, I determined that Mr Adcock had been unfairly dismissed by Moltoni Waste Management Pty Ltd and that he should be awarded an amount of nine weeks wages as compensation for his unfair dismissal. 1 The application was determined on the basis of material on the file, following correspondence from Moltoni Waste Management Pty Ltd received on 2 May 2012, agreeing to that course of action and indicating that it would not defend the application or seek to cross-examine Mr Adcock. In all correspondence with Fair Work Australia Moltoni Waste Management Pty Ltd has been represented by Mr Greg Petrie.

[2] As there was insufficient material provided on behalf of Mr Adcock upon which the quantum of compensation could be assessed, I issued further Directions requiring a statement from Mr Adcock in relation to the matters in s.392 of the Fair Work Act 2009 (the Act) and provided an opportunity for Moltoni Waste Management Pty Ltd to provide further material, or to indicate whether it sought to cross-examine Mr Adcock in relation to his further statement.

[3] On 20 November 2012, email correspondence was received from Mr Petrie in the following terms:

“I returned to work from a period of leave yesterday and am in receipt of document PR531291, received by email on 13 November 2012.

Since my last communication to Commissioner Asbury on 2 May 2012, my representation of Moltoni Waste Management has ceased. Accordingly, I am not in a position to provide a response or any additional information in relation to this matter. I am not aware of who the appropriate contact (if any) would be.

I am aware that Moltoni Waste Management ceased trading in early April 2012, and my understanding is that receivers have been appointed to the Moltoni Waste Management business.”

[4] This correspondence is somewhat surprising given the considerable amount of correspondence to Fair Work Australia on behalf of Moltoni Waste Management Pty Ltd under the signature of Mr Petrie as General Manager of that Company and the fact that Mr Petrie has signed the Form F3 Employer’s Response to Unfair Dismissal Remedy, in that capacity. I also note that a considerable amount of correspondence directed to Mr Adcock in the course of his employment and put into evidence in these proceedings, is under the signature of Mr Petrie as General Manager Moltoni Waste Management incorporating Gippsland Waste Services and Towards Zero. The AWU on behalf of Mr Adcock has also provided material from the Australian Securities and Investment Commission indicating some relationship between Moltoni Waste Management Pty Ltd and Gippsland Waste Services.

[5] Further it is the case that as recently as June 2012 Mr Petrie appeared before another member of Fair Work Australia representing Moltoni Waste Management in proceedings whereby the Company sought to vary redundancy payments to three employees on the basis of incapacity to pay. 2 In my view it is improbable that Mr Petrie should no longer have knowledge of the appropriate contact for a Company in which he so recently appears to have had a close involvement.

[6] Mr Adcock provided a further statement on 20 November 2012 in which he asserts that:

● At the point of his dismissal on 9 December 2011 he was earning an amount of $980 per week gross;
● On 6 February 2012 he commenced alternative employment as a casual labourer with a labour hire company; and
● In this role Mr Adcock works up to 50 hours per week at the rate of $29.50 and is paid overtime, shift penalties and weekend penalties in addition to that amount.

[7] Mr Adcock also stated that he suffered additional hardship by being required to take out a personal loan to cover living expenses and prearranged building work on his home, and that he repaid that loan using equity in his home after paying interest until October 2012.

[8] The lapsed time between 9 December 2011 and 6 February 2012 is a period of 8 weeks and not 9 weeks as initially stated by Mr Adcock. Having considered the material filed in response to the further Directions, I have now determined to award an amount of 8 weeks wages as compensation for Mr Adcock’s unfair dismissal. In determining to award this amount of compensation, I consider that the effect of the order on the viability of the employer’s business will be minimal, given Mr Petrie’s advice in relation to its current status. Mr Adcock had over one years’ service with the Company. I consider that Mr Adcock would have received income from Moltoni Waste Management Pty Ltd for the 8 week period covered by the compensation, if he had not been dismissed.

[9] Had Mr Adcock remained in employment for that period, he would have received an amount of $7,840.00. Given that the compensation I have awarded covers an 8 week period from the date of Mr Adcock’s dismissal, I make no further deduction for income earned during the period between the making of the order and the payment of compensation. There are no other relevant matters. Further, there is no basis for reducing the amount of compensation for misconduct.

[10] Accordingly, I have determined that Mr Adcock should be paid an amount of compensation of $7,840.00 less taxation at the appropriate rate. An Order to this effect will issue with this Decision.

COMMISSIONER

Final written submissions:

20 November 2012

 1   [2012] FWA 6943

 2   Moltoni Waste Management v Fairs, Ellen and Birkett [2012] FWA 5590.

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