Mr George Argy v Regan Mercantile T/A Evony

[2012] FWA 3944

[2012] FWA 3944

FAIR WORK AUSTRALIA

DECISION

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

Mr George Argy
v
Regan Mercantile T/A Evony
(U2011/2328)

COMMISSIONER CAMBRIDGE SYDNEY, 10 MAY 2012

Unfair dismissal - ex parte proceedings - harsh, unreasonable and unjust dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 11 November 2011. The application was made by George Argy (the applicant) and named the respondent employer as Regan Mercantile T/A Evony (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 31 October 2011. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Fair Work Australia (FWA) received a communication dated 7 December 2011 from Marco F. Mereu, General Counsel of Regan Mercantile, LLC, in which Mr Mereu stated:

“If Mr. Argy wishes to bring a claim arising out of the agreement he must do so in the State of New York, USA. Regan Mercantile, LLC does not submit to the jurisdiction of Australia in this matter and will not participate further in this process.”

[4] Despite the request by FWA, the employer failed to formalise their jurisdictional objection and did not file a Form F4 Objection to Application for Unfair Dismissal Remedy. The employer also refused to attend at the Jurisdiction Conference/Hearing held on 23 March 2012 before a Member of FWA. This resulted in the jurisdictional objection being dismissed and the matter being advanced to Arbitration 1.

[5] The employer also failed to file a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy. The employer subsequently failed to comply with Directions issued by FWA on 26 April 2012.

[6] The matter proceeded to Arbitration before FWA in a Hearing conducted in Sydney on 10 May 2012. The employer did not attend at the Arbitration Conference/Hearing and the matter proceeded ex parte. The applicant was self represented and he was also the only witness called to provide evidence in support of the claim.

Factual Background

[7] The applicant had worked for the employer in the position of Game Designer for a little over 18 months. The applicant worked in this capacity from his home in Australia. The application indicated that the employer is located at Suite 2B, 300 Rector Place, New York, New York 10280 USA.

[8] On 28 October 2011, the applicant was invited to attend a performance review meeting with David Guo, Development Director; Benjamin Gifford, Vice Development Director; Darold Higa, Producer; and Berna Bessir, Human Resources Manager. Despite the applicant receiving a satisfactory performance review on 26 August 2011, the meeting on 28 October 2011 was held to discuss allegations about the applicant’s poor performance. The applicant responded to some of the issues raised and the employer requested the applicant to attend a follow up meeting on 31 October 2011.

[9] On 30 October 2011, the applicant wrote to the Vice Development Director, Benjamin Gifford, to disclose his intention of wanting to further explain his situation and supply documentation to the employer in support of his performance.

[10] However, at the commencement of the follow up meeting on 31 October 2011, the applicant’s employment was immediately terminated and he was presented with a letter of termination. The letter of termination stated:

“On October 28, 2011 you were provided with changes in duties and scope of work from the Development Director and you refused to agree to the same. As such, this Agreement is being terminated for cause.”

[11] The applicant has alleged that the dismissal was harsh, unjust and unreasonable, as the termination of his employment was without notice and without valid reason, and furthermore, that the applicant had not been notified of the exact reason for his dismissal.

Consideration

[12] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[13] In this case the employer refused to attend at either the Jurisdiction Hearing or the Arbitration Hearing. This unfortunate and disrespectful conduct appears consistent with the evidence of the regrettable circumstances of the applicant’s dismissal.

[14] The uncontested evidence has established that: (a) the applicant was 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.

Conclusion

[15] Upon any analysis and particularly in the absence of any valid reason for dismissal, the applicant’s dismissal was manifestly harsh, unreasonable and unjust.

[16] The conduct of the employer in respect to the dismissal of the applicant and in regard to these proceedings before FWA has been highly regrettable. The applicant’s claim for unfair dismissal is granted.

Remedy

[17] The applicant has not sought reinstatement as remedy for his unfair dismissal. In the circumstances, I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.

[18] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 2 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 3.

[19] Firstly, I confirm that an Order for the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[20] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[21] Consequently for the reasons outlined above I have decided that an amount approximating with 5 months remuneration should be Ordered as compensation to the applicant. That amount is $46,425.00. Accordingly separate Orders providing for remedy in these terms will be issued [PR523526].

COMMISSIONER

Appearances:

Mr G. Argy on his own behalf.

Hearing details:

2012.
Sydney:
May, 10.

 1   PR521599.

 2 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 3   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR523525>