[2015] FWC 8322

FAIR WORK COMMISSION

DECISION

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

Mr Farhang Zare
v
Arc Holdings (WA) Pty Ltd T/A Arc Switchboards
(U2015/5355)

COMMISSIONER RIORDAN

PERTH, 17 DECEMBER 2015

Application for relief from unfair dismissal.

[1] This decision relates to an Unfair Dismissal Application by Mr Farhang Zare (the Applicant) against Arc Holdings (WA) Pty Ltd (Arc).

[2] Mr Zare was employed by Arc from 27 April 2011 until 23 April 2015 as a first class welder/fabricator. Arc produces electrical switchboards out of steel or aluminium.

[3] Mr Zare was represented by Mr C. Fogliani from W.G. McNally Jones Staff Lawyers. Arc was represented by Ms E. Hartley from HWL Ebsworth Lawyers along with Mr M. Bycroft assisting.

[4] Mr Zare relied upon one sworn witness statement 1.

[5] Arc relied on three witness statements from Mr John Griffiths 2 Managing Director and part owner of Arc, along with Mr Kevin Mahoney who is the General Manager of Arc Switchboards and Mr Steven Parker3, the Sheet Metal Manager of Arc Switchboards.

[6] Mr Zare was summarily dismissed by Arc for serious misconduct when he refused to wash the window shutters of the workplace as directed by his supervisor.

[7] There are two important questions that need to be determined in relation to this application, namely;

a) was Mr Zare a qualified tradesman and

b) was the instruction given by Arc for Mr Zare to clean the window shutters a reasonable and lawful instruction.

Background

[8] Mr Zare was born and educated in Iran. He completed his trade studies/qualifications in Iran.

[9] In the latter part of 2010, Mr Zare made an application for permanent residency in Australia through a migration agency.

[10] In order to gain permanent residency, under the Skilled Migration Program, Mr Zare had to submit his work experience and qualifications to Trade Recognition Australia (TRA) and satisfy the requirements of the Department of Immigration.

[11] Mr Zare was issued with a Trade Recognition Australia (TRA) skills assessment for the occupation of Welder (First Class) on 6 December 2010 4. The correspondence went on to state;

“…This letter is not a qualification nor does it represent formal accreditation of your skills and experience. This successful skills assessment should be retained as it is necessary for your immigration application

To work in some occupations I parts of Australia, you may be subject to further testing, assessment or State Government licensing or registration requirements. Occupational Licences are issued by State licensing bodies. Please refer to the information for your occupation available on the Licence Recognition website…

Please note: TRA may withdraw your successful result and inform the Department of Immigration and Citizenship if it is later found that you have provided false or misleading information.”

[12] Mr Zare was then advised by his migration agency that his prospects of permanent residency may be improved if he applied for a temporary visa, known as a section 457 visa. A successful 457 applicant must have a sponsoring employer.

[13] In 2010/2011, Western Australia was in the grip of the North West Shelf mining and exploration boom. Tradesmen of any classification were in very short supply in the Perth region.

[14] Arc had been unsuccessful in attracting local skilled labour into its employment. In January 2011, Arc offered Mr Zare employment as a Sheetmetal Worker (Fabricator).

[15] Mr Zare was granted a 457 visa on 1 April 2011. His employment with Arc commenced on 27 April 2011 as a Tradesman in the discipline of Sheetmetal worker (Fabricator). His employment was governed by the “Arc Holdings (WA) Pty Ltd Collective Agreement 2009-2014” (the Agreement). Mr Zare signed the Agreement on 15 January 2011, whilst still in Iran.

[16] Schedule A of the Agreement contains the following classification structure;

Tradesperson	$28 per hour
Electrical Assistant	$18 per hour
Apprentice 1	$7.54 per hour
Apprentice 2	$9.86 per hour
Apprentice 3	$12.95 per hour
Apprentice 4	$15.27 per hour
Clerical/Admin	$18.00 per hour

[17] Mr Zare was paid $28 per hour up until 30 June 2011.

[18] In early July 2011, Mr Zare’s rate of pay was reduced to $20 per hour following a meeting with Mr Griffiths, Mr Mahoney and Mr Ford. Mr Zare was told by Mr Griffiths that they were not happy with his performance and that he was being demoted to the role of Trades Assistant. Mr Zare’s pay was increased to $22 per hour a fortnight later.

[19] In November 2011, the tradesman’s rate of pay was increased to $30 per hour. Mr Zare’s rate was increased to $26 per hour.

[20] The evidence clearly shows that Mr Zare was regarded by his supervisors as being a “slow” worker. There is no conflict that he continued to perform the same duties and utilise the same competencies throughout his employment with Arc, ie, the cutting, filing, fitting, bending and welding for the fabrication of switchboards.

[21] Throughout his employment, Mr Zare continually asked his superiors to be paid the same rate as the other tradesmen.

[22] Mr Zare received his formal accreditation from Oz Assess on 29 March 2012 as a Certificate III (tradesman) in the Engineering Fabrication Trade (MEM30305).

[23] On 20 May 2013, Mr Zare signed a new contract of employment, which classified Mr Zare as a Trades Assistant (TA). This contract was backdated to 27 April 2011. Mr Zare claims that he signed this contract under the threat of dismissal.

[24] During his evidence, Mr Griffiths continually stated that Mr Zare was employed as a Trades Assistant yet he acknowledged that he told the Western Australia Migration Authority that Mr Zare was a good tradesman and that he had been offered a permanent tradesman’s position;

“If that's what you're talking about, then why did you say that you've offered him a permanent position as a welder/fabricator, if you're really referring to him as a trades assistant?---As I said, I'm trying to do the right thing by Farhang. This is what I keep saying over and over again. We've got to do certain things with the Immigration Department otherwise you don't get through.” 5

[25] Mr Griffiths sent the following letter to Skilled Migration Western Australia:

“Skilled Migration Western Australia

How long has the position been vacant for prior to seeking an overseas employee?

The position has been available for full time permanent employment since May 2014.

Mr. Farhang Zare has been fulfilling this position whils sponsored by us on a 457 Visa for the past two years and he has proved to be a valued member of the team.

We have offered the position on a permanent basis to Mr Zare as he has the right skills and qualifications and the right attitude and work ethic that is so lacking in Australian Employees.

We do not intend to advertise further to fill this position as Labor Market Testing has proven to be a waste of time and money when seeking Australian Permanent Residents from an Industry market that is so deficient in available skilled workers.

I seek you confirmation and approval of this Nomination for Welder/Fabricator.

Sincerely
John Griffiths
Managing Director
26 May 2014” 6

[26] Mr Zare was granted permanent residency by the Australian Government on 17 December 2014.

[27] It is not disputed that Mr Zare would undertake welding every day. These welding tasks were not undertaken under close personal supervision.

[28] Arc encountered demand based difficulties during 2014-2015. As a result, employees overtime hours were cut and employees were requested to take leave in order to avoid the need for redundancies.

[29] As a result of this request, Mr Zare took leave.

[30] Mr Zare eventually contacted the Australian Manufacturing Workers’ Union (AMWU) in relation to his on-going underpayment. Mr Zare also threatened to contact the TV show “A Current Affair” in relation to his conceived discrimination.

[31] On the morning of 23 April 2015, Mr Zare was instructed to weed the garden. Mr Zare completed this task.

[32] Mr Zare was then instructed to wash the security shutters that cover the windows at the Arc factory or wash the company cars. Mr Zare refused, saying that he was not required to perform that role because he was a tradesman. Mr Griffiths, under cross examination, agreed that it was not the role of a tradesman but believed that it was the role of a Trades Assistant.

“It's not part of the normal duties of a welder/fabricator to be pulling weeds, is it?---No.

It's not an incidental task to what a welder/fabricator normally does, is it?---No.

What about a trades assistant? It's not normal - it's not part of their normal duties to be pulling weeds off the front lawn, is it?---Yes.

Yes it is or yes it's not?---Yes it is.

So you're saying trades assistants - part of the normal duties of a trades assistant is to pull weeds off the front verge?---When required, yes.

Is it part of the normal duties of a welder/fabricator to be washing shutters or windows of the front building?---No.

Is it incidental to any of the duties that they do?---No.

What about a trades assistant? Do you say that that's part of their normal duties, is to wash windows - - -?---If the need arises, yeah. I have a window cleaner so I wouldn't ask anybody to wash the windows.” 7

[33] Mr Griffiths warned Mr Zare that if he did not wash the window shutters that he would be terminated for refusing to follow a lawful direction. Mr Zare once again refused to wash the window shutters.

[34] Mr Zare was told to leave the building on the afternoon of 23 April 2015. On 23 April 2014, Mr Zare received the following termination letter;

“23 April 2015

Dear Farhang,

Re: Termination of Employment

We wish to advise you that ARC HOLDINGS (WA) Pty Ltd hereby gives you notice that your employment has been terminated as at 11.55 on Thursday 23^rd April 2015.

The reasons for the termination of your employment relate to serious misconduct, and are as follows:

Failing to carry out a lawful order – in that you refused to carry out a job which you were required to do by Kevin Mahoney.

The job you were asked to do was neither illegal or dangerous to your health.

We note that you have given an opportunity to provide an explanation as to your conduct. We confirm that, despite taking your conduct. We confirm that, despite taking your explanation in consideration, we have nevertheless decided that your actions and conduct constitute serious misconduct and that we have no other option but to terminate your employment immediately.

Under the Fair Work Act 2009, we are not required to provide you with any notice of termination. Given this, you will not be required to return to work. You accrued annual leave entitlements (if any) will be paid to you upon termination.

We remind you of your continuing obligations to keep confidential all information that is confidential to ARC SWITCHBOARDS and its clients / customers.

Please return any and all equipment not belonging to you to your Manager.

We thank you for your time with Arc Switchboards and wish you the best for the future.

Yours sincerely
T. J. Giffiths
Managing Director” 8

[35] Arc withheld $475.20 from Mr Zare’s final pay which it claimed was to pay for the locks of the premises to be changed because Mr Zare had not returned his key.

Classification

[36] The Modern Award which contains and explains classification of Engineering (Tradesperson (Fabrication) is the Manufacturing and Associated Industries and Occupations Award 2010 9(the Award). I have referred to this Award due to the lack of classification descriptors in the Agreement.

[37] Relevantly, the Award states;

“B.3.7 Wage Group: C10
[B.3.7(a) varied by PR995121 ppc 19Mar10]

(a) Engineering/Manufacturing Tradesperson—Level I

[B.3.7(a)(i) substituted by PR995121 ppc 19Mar10]

i. An Engineering/Manufacturing Tradesperson—Level I is an employee who holds a trade certificate or tradespersons rights certificate or equivalent as an:

Engineering Tradesperson (Electrical/Electronic)— Level I;

Engineering Tradesperson (Mechanical)— Level I;

Engineering Tradesperson (Fabrication)—Level I;

Furnishing Industry Tradesperson Level I;

Floor Finisher and/or Floor Coverer Tradesperson;

or equivalent;

and is able to exercise the skills and knowledge of the engineering trade so as to enable the employee to perform work within the scope of this level.

[B.3.7(a)(ii) varied by PR995121 ppc 19Mar10]

ii. An Engineering/Manufacturing Tradesperson—Level I works above and beyond an employee at the C11 level and to the level of their skills, competence and training:

understands and applies quality control techniques;

exercises good interpersonal and communications skills;

exercises keyboard skills at a level higher than the C11 level;

exercises discretion within the scope of this classification level;

performs work under limited supervision either individually or in a team environment;

operates lifting equipment incidental to their work;

performs non-trade tasks incidental to their work;

performs work which while primarily involving the skills of the employee’s trade is incidental or peripheral to the primary task and facilitates the completion of the whole task, provided that such incidental or peripheral work does not require additional formal technical training;

inspects products and/or materials for conformity with established operational standards.”

[38] I note that there is a requirement for tradesperson to utilize a variety of skills including performing non trade tasks incidental to their work. I have taken this into account.

[39] Clause B.4.5 of the Award 10 provides a list of indicative tasks for a C10 level employee. These include;

“B.4.5 For the purposes of clause 0 (level C10) the following are the indicative tasks which an employee at this level may perform:

approves and passes first off samples and maintains quality of product;

works from production drawings, prints or plans;

operates, sets up and adjusts all production machinery in a plant including production process welding to the extent of training;

can perform a range of maintenance functions including removing equipment fastenings, use of destructive cutting equipment, lubrication of production equipment, and running adjustments to production equipment;

operates all lifting equipment;

basic production scheduling and materials handling within the scope of the production process or directly related functions within raw materials/finished goods locations in conjunction with technicians;

understands and applies computer techniques as they relate to production process operations;

first class engine drivers’ certificate;

high level stores and inventory responsibility beyond the requirements of an employee at level C11;

assists in the provision of on-the-job training in conjunction with tradespersons and trainers;

has a sound knowledge of the employer’s operations as it relates to the production process.”

[40] I have taken these indicative tasks into account.

[41] I have also explored the Metal and Engineering Training Package. MEM 30305 – Certificate III in Engineering – Fabrication Trade is the relevant qualification of Mr Zare. This role is described on the website in the following manner:

“The Certificate III in Engineering – Fabrication Trade specifies the competencies required for employment as an Engineering Tradesperson – Fabrication including Metal fabrication, forging, founding, structural steel erection, electroplating, metal spinning, metal polishing, sheet metal work, welding and the use of related computer controlled equipment.”

[42] I have taken this into account.

Statutory Requirements

[43] When determining an application for an unfair dismissal remedy, I am required to consider all of the provisions of section 387 of the Fair Work Act, 2009 (the Act), which states;

“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.”

Consideration

[44] The provisions in Section 387 of the Act must be taken into consideration;

(a) Valid Reason

[45] Mr Zare had been instructed to weed the garden on 23 April 2015. Mr Zare undertook that task. Mr Zare was later that day instructed to either wash the cars or wash the window shutters. Mr Zare refused this instruction. Mr Griffiths argued that it was a lawful instruction. Mr Griffiths claimed that business was very slow at that point and that he was simply trying to keep all of his employees in paid work.

When considering whether the termination was harsh, unjust and unreasonable, the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...”¹¹

The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 12

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

In Rode v Burwood Mitsubishi 13 a Full Bench of the Australian Industrial Relations Commission said;

“The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.
It will not be enough for an employer to say that they acted in the belief that the termination was for a valid reason.”

[46] I have taken these decisions into account.

(b) Notified of the reason

Mr Zare was notified of the reason for his dismissal.

(c) Opportunity to respond

Mr Zare was given an opportunity to respond but on the basis that this opportunity was at the same meeting that he was notified of the reason, he was not given an appropriate opportunity to respond. Employees should have the opportunity to consider their response to any allegation, to seek advice from an external source, such as a union, a lawyer or their partner guardian and to respond to any allegation in writing, before the employer makes the final decision to terminate the employment relationship. I have taken this into account.

(d) Attendance of support person

Mr Zare did not request the presence of the support person at the meeting.

(e) Previous warnings

Mr Zare’s dismissal did not relate to unsatisfactory performance.

(f) Size of the employer

Arc has 25 employees. It does not employee any human resources specialists.

(g) Human Resource Management

It would appear that Mr Griffiths assured the role of HR at Arc. He advised that he does not have time to follow or document the necessary procedures in relation to what would be considered to be best practice or appropriate HR policies.

(h) Any other matters

I have also taken into account the competency standards associated with the Metals Training Package for the classification of Engineering Tradesperson (Fabrication) and the provisions of the Modern Award. I have also taken into account Mr Zare’s qualifications and the functions, tasks and competencies that he utilized throughout the entire period of his employment with Arc.

Conclusion

[47] I have taken into account all of the submissions and evidence of the parties.

[48] I find that Mr Zare was working as a mechanical tradesperson. As such, Arc was obligated to treat Mr Zare in the same manner as the other tradesman. This did not occur. Mr Zare was not being paid at the same rate as his tradesmen colleagues at Arc, although he was doing the same work.

[49] I accept the proposition that employees in medium sized businesses have a need to work in a flexible and co-operative manner. It could be argued that Mr Griffiths intentions were purely honourable in providing Mr Zare with gardening and outdoor cleaning duties instead of standing him down due to lack of work. Such a proposition would be plausible if other employees, whether tradesman or trades assistants, had also been either rostered on similar duties or the menial functions undertaken by Mr Zare had been shared with other employees or a proper explanation had been provided to Mr Zare as to the reasons why the cleaning function had to be performed. I am of the view, and find, that Arc deliberately allocated those functions to Mr Zare in the hope that he would become frustrated and resign. When Mr Zare refused to wash the window shutters, Arc dismissed Mr Zare on the misunderstanding that Mr Zare had failed to follow a lawful instruction.

[50] I find that Mr Zare was forced to sign his “new” contract of employment under duress. I accept his evidence that he was threatened with dismissal if he failed to sign the new contract. This threat has potentially very disruptive consequences for employees on a 457 visa which may result in their deportation. This duress renders the new contract as being null and void.

[51] I find that the instructions given to Mr Zare to wash the window shutters was not a lawful instruction. Mr Zare is a mechanical tradesman and is entitled to work in accordance with the Agreement, the Award and the National Competency Standards. I concur with the view of Mr Griffith that cleaning window shutters is not an incidental or peripheral function of a mechanical tradesperson working in a switchboard manufacturing environment. Mr Zare is not involved in an episode of serious misconduct. Arc have failed to satisfy the fundamental requirement that they had a valid reason to terminate Mr Zare.

[52] I find that Mr Zare was not provided with the requisite procedural fairness. It is obvious that Mr Griffiths was very upset with Mr Zare. Mr Griffiths was of the view that he had been fundamentally involved in providing Mr Zare and his family with a new life in Australia and that Mr Zare’s threat to tell his story to the media was a threat to the on-going viability of his business. Mr Zare was entitled to an appropriate warning. Mr Zare was entitled to be given time to carefully consider his response, to seek advice and respond in writing to the accusations. Mr Zare was not given an appropriate opportunity to respond. Mr Zare was treated unfairly.

[53] I find that Mr Zare’s dismissal was harsh, unjust and unreasonable. Arc did not have a valid reason to dismiss Mr Zare, nor was he provided with the necessary level of procedural fairness.

Remedy

[54] When considering the remedy, the FWC must take into account the below relevant sections of the Act;

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[55] Mr Fogliani argued that Mr Zare should be reinstated to his former role on the basis that reinstatement is the primary remedy under the Act and that Arc have not provided any financial reason why such a result would be impossible to implement. I have taken this into account.

[56] Mr Fogliani suggested that there were no identified barriers to reinstate Mr Zare apart from the fact that Mr Zare’s supervisor might feel uncomfortable because he has had to testify in these proceedings. Mr Fogliani submitted that this was not a justifiable reason for denying reinstatement. I have taken this into account.

[57] Ms Hartley submitted that reinstatement should not be considered as an option on the basis that Mr Zare has openly criticised and made unfounded and unsubstantiated claims against his work colleagues. Also, his inability to complete tasks in a timely manner places unfair pressure on his work colleagues. I have taken this into account.

[58] Mr Griffiths stated in his evidence that he had lost the necessary trust and confidence in Mr Zare as an employee as a result of Mr Zare’s threat to contact the media in relation to his predicament. I have taken this into account.

[59] I find that reinstatement would be inappropriate in this circumstance. Whilst I have found that Mr Zare’s dismissal was harsh, unjust and unreasonable, Mr Zare’s actions in threatening to contact the media and his baseless accusations against his former fellow employees make a smooth and seamless transition back into the workplace as extremely unlikely. Mr Zare has “poisoned the well” through his own actions. Mr Zare had notified his union of the problems. His issues were being dealt with in an appropriate fashion and forum. The extra step that Mr Zare took simply exacerbated the situation and led to the evaporation of the required level of trust in the employment relationship.

[60] I find that the appropriate remedy for Mr Zare is the payment of compensation.

[61] Section 392 of the Act identifies the issues that I must consider when determining the appropriate level of compensation;

“392 Remedy—compensation

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), the 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 the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the 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 the 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 the 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.”

[62] In determining this application I have to take into account all of the above criteria of section 392(2);

(a) I am of the view that the viability of Arc will not be effected by the determined Order of compensation.

(b) Mr Zare worked for Arc from 27 April 2011 until 23 August 2015. Mr Zare, until recently, had enjoyed a fairly good relationship with his employer. He would have expected to have on-going employment with Arc for the foreseeable future.

(c) Mr Zare would have continued to receive his weekly wage, with the possibility of rostered overtime.

(d) Mr Zare did not provide any physical evidence of job applications that he had lodged. Whilst I am satisfied that Mr Zare has made some attempt to find alternate employment, his endeavours could not be described as being fulsome or adequate.

(e) Mr Zare has been unemployed since he was dismissed by Arc except for 1.5 weeks of casual work.

(f) Unfortunately, the Perth labour market for tradesman is quite depressed as a result of the end of the mining boom. I am not surprised that Mr Zare has failed to find alternate employment.

(g) Arc did have an issue with the speed in which Mr Zare took to complete his allocated work. Whilst speed is not a function or assessment of skill or competency, it is certainly a desire of employers as long as it can be achieved without compromising quality and safety. If Arc wanted to take any form of disciplinary action in relation to Mr Zare’s speed, then there would have to have been extensive warnings, increased supervision and additional training provided to Mr Zare. This process would take many months to complete.

I have also taken into account the evidence of Mr Griffiths in relation to the assistance that he has provided to Mr Zare in relation to his successful application for permanent residency. It shows that Mr Griffiths saw Mr Zare as being a good employee who would have a career at Arc. I have also taken into account the time that Mr Zare has been unemployed.

[63] I note that Mr Zare has undertaken a Welding Inspection Course (CSWIP 3.1) since his termination. Due to my own research, I note that this course is of 5 days duration at a cost of $2,600. I congratulate Mr Zare for his initiative in gaining additional qualifications in an attempt to find alternate employment.

Conclusion

[64] A Full Bench of the AIRC in Sprigg v Paul’s Licensed Festival Supermarket 14established a formula to assist the Commission in determining an appropriate level of compensation. I am of the view that Mr Zare’s employment would have continued for at least six months, accepting that Mr Griffiths had seen a change in Mr Zare’s attitude once he had achieved permanent residency.

[65] In assessing the relevant contingencies as part of the process, I accept that Arc may have taken a form of disciplinary action in relation to Mr Zare’s alleged poor productivity. I have deducted 4 weeks for this contingency.

[66] I have deducted the 1.5 weeks wages that Mr Zare has received since his termination.

[67] Having found that Mr Zare’s dismissal was unfair and after careful consideration, I have decided to award Mr Zare 20.5 weeks compensation, to be paid at the rate of $30.08 per hour based on a 38 hour week. Also, Mr Zare is to be reimbursed the $475.20 that was illegally deducted from his final pay. Arc is Ordered to pay the entire amount within 14 days of this decision.

[68] An Order will be published concurrently with this decision.

COMMISSIONER

1 Exhibit F1

2 Exhibit A1

3 Exhibit A6

4 Exhibit F2

5 Transcript 24 September 2015 - PN891

6 Letter from ARC to Skilled Migration Western Australia – 26 May 2014

7 Transcript 24 September 2015 PN959 – PN966

8 Exhibit F1 – Termination of Employment Letter

9 MA000010

10 MA000010

11 (1995) 185 CLR 410 at 465 - 468

12 (1995) 62 IR 371

13 PR R4471

14 (1988) 88 IR 21

Printed by authority of the Commonwealth Government Printer

Mr Farhang Zare v Arc Holdings (WA) Pty Ltd T/A Arc Switchboards

[2015] FWC 8322

17 DECEMBER 2015

DECISION