Mr David Hooker v Digital Books T/A Everything Adult
[2012] FWA 9012
•22 OCTOBER 2012
[2012] FWA 9012 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Hooker
v
Digital Books T/A Everything Adult
(U2011/11692)
DEPUTY PRESIDENT SWAN | BRISBANE, 22 OCTOBER 2012 |
[1] This application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 [the Act] is made by Mr D Hooper [the applicant] against Digital Books T/A Everything Adult [the respondent].
History of the application
[2] This matter has been subject of a jurisdictional challenge and a further mention before another member of Fair Work Australia [FWA] prior to being arbitrated.
[3] The jurisdictional challenge related to identifying the number of employees engaged by the respondent vis a vis Small Business provisions in the Act. The Tribunal rejected the respondent’s challenge. The next matter related to a “compliance with directions” requirement on the part of the applicant. The Tribunal determined to extend time in which the applicant could file submissions and witness statements.
Representation
[4] The applicant represented himself and Mr C Ange [a consultant with the respondent] acted on behalf of the respondent.
[5] Before the hearing, both parties were given relevant copies of the section of the Act under which the matter would be arbitrated.
Evidence
[6] Mr Hooker’s evidence was as follows:
- Had worked for the respondent for 11 months and three weeks.
- He claimed that he had worked unpaid and underpaid by the respondent on some occasions.
- There was a claim of personal harassment and verbal abuse by Mr Agne towards him.
- He was dismissed without prior notice.
- He had not been compensated for lack of notice and had not been paid for holidays owing or lost wages.
[7] Mr Ange’s evidence was that:
- He had dismissed the applicant because he was closing the store at which the applicant had worked and there had been a general decline in the business over time.
- He agreed that he had not provided the applicant with notice of his dismissal.
- He stated that he had told the applicant that the business was suffering. In evidence the applicant confirmed that point, but stated that Mr Ange said a range of things, none of which could be verified.
- He had paid Mr Hooker notice requirements and other unpaid amounts.
Consideration of Act
General comments
[8] Both parties represented themselves and, other than claim and counter-claim between the two parties, there was little by way of verifiable evidence as it went to questions of (a) employment at the various stores owned by the respondent and (b) whether or not what occurred was a genuine redundancy. [This lack of ‘satisfactory proof’ was an issue also confronted by the first Member hearing the jurisdictional challenge].
[9] There were no witnesses called by either party and no witness statements were sought to be tendered by either party.
s.387 CRITERIA FOR CONSIDERING HARSHNESS ETC.
[10] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable FWA 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);
[11] Debate ensued between the parties as to whether or not the last store in which the applicant had worked had closed and whether the business generally was facing financial difficulties. The applicant said he had walked into the store, after his dismissal, to find it still in operation and the respondent was adamant that the store had closed.
[12] Photographs were produced by the applicant of the store at which he had worked which showed that there was a sign stating “Everything Adult” on the front of it. The respondent said the inside of the store had changed and the business was not conducted from that store any more.
[13] In the absence of any further material, it is very difficult to make an informed finding on this point. However, based upon the evidence given by both parties, I accept the applicant’s evidence that the store retains the respondent’s signage however I have accepted the respondent’s evidence that it does not conduct business from that address any more.
[14] While the respondent does operate other stores within the Brisbane area and the applicant has worked at other stores during his employment, I have accepted the respondent’s evidence that there has been a general decline in business.
[15] The valid reason which exists relates to the closure of the respondent’s business at the particular store at which the applicant had worked.
(b) whether that person was notified of that reason
[16] The applicant agreed that he had often been told by Mr Ange that the respondent’s business was failing, but he queried the veracity of this statement as Mr Ange frequently made statements about a range of issues which were often found to be inaccurate.
[17] Notwithstanding that, the applicant was told by Mr Ange of the reason for his dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[18] This factor was not addressed within that context.
(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;
[19] This issue was not addressed at this hearing.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
[20] There were no submissions made on this point.
(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;
[21] There were no submissions made on this point.
(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;
[22] There were no submissions made on this point.
(h) any other matters that FWA considers relevant
[23] There is no requirement to add anything further under this section.
Conclusion
[24] This has been a difficult matter to hear and determine. There was a heightened amount of animus between the parties and that alone made it very difficult to unearth what the real issues were. This was further complicated by the fact that neither party was represented.
[25] The lack of any real documentary or corroborative evidence added to the difficulties.
[26] All that I could unravel from the evidence before me was that the respondent’s business was failing and that the applicant was dismissed on the spot by the respondent.
[27] The respondent says it had paid to the applicant all outstanding monies relating to notice and wages. The applicant says he received money, but that it arrived weeks after the termination. Neither has identified accurately what quantum was involved. To that end, I accept that appropriate payments were received by the applicant.
[28] So far as the applicant’s claims regarding underpayment of wages etc, this is not a matter to be considered under this application.
[29] Beyond that, I would only be speculating as to what further matters I should consider.
[30] I dismiss the application. In doing so, I believe that there was a valid reason for the termination of employment and that the applicant had been notified of the reason. The business was failing and it would have been fruitless for the respondent to have considered other positions for the applicant within its business.
[31] Once again, this has been a most unusual matter and, in my view, all that can be done to consider all elements of the claim have been duly considered.
[32] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D. Hooker representing himself
Mr Ange representing himself
Hearing details:
2012
Brisbane
18 June
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<Price code A, PR530491
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