Mr Hamza Saeed v Allied Security

[2017] FWC 2060

[2017] FWC 2060

FAIR WORK COMMISSION

DECISION

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

Mr Hamza Saeed
v
Allied Security
(U2016/12185)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 20 APRIL 2017

Application for relief from unfair dismissal.

Compensation

[1] Further to my decision in [2017] FWC 1212, I make the following compensation decision. I note that Allied Security was given due notice to file written submissions addressing remedy, but wrote to chambers advising that it did not intend to do so.

[2] I also note that the representative of Allied Security wrote to chambers that “the company ceased trading in 2015 and is in the process of winding up” 1 and it made the same apparently unfounded submissions during proceedings. In the absence of specific evidence to this effect or formal communication from Allied Security’s liquidators, I am not satisfied that Allied Security has entered insolvency and adopt the same approach.

[3] Mr.Saeed did not seek reinstatement because of the circumstances. I am satisfied that reinstatement of Mr.Saeed is inappropriate within s.390(3) as a satisfactory working relationship is unlikely to be restored. Within s.392(1) I consider that it is appropriate to order that the employer, at the time of the dismissal, pay compensation to Mr.Saeed in lieu of reinstatement.

[4] Secondly, I have taken into account all the factors in s.392(2). I have taken into account the decisions in Sprigg v Paul’s Licensed Festival Supermarket 2, Ellawala v Australian Postal Corporation3, Smith v Moore Paragon Australia Ltd4, and Haigh v. Bradken5.

[5] In relation to s.392(2)(a) I am satisfied that a payment of compensation will not have an effect on the viability of the employer’s enterprise.

[6] In relation to s.392(2)(b) I have taken into account the length of Mr.Saeed’s service which is approximately 17 months 6.

[7] In relation to s.392(2)(c), Mr.Saeed submitted that his ordinary earnings per week were $1,497 gross per week 7. I am not satisfied that he would have continued his employment with Allied Security indefinitely. In my view, Allied Security no longer wished to maintain an employment relationship with Mr.Saeed. Had it followed proper processes, Mr.Saeed would have maintained employment for approximately a further four weeks.

[8] In relation to s.392(2)(d) I am satisfied that Mr.Saeed made efforts to mitigate his loss by looking for and obtaining alternative employment. Mr.Saeed submitted that he commenced employment with an alternative employer on 20 October 2016 8.

[9] In relation to s.392(2)(e), Mr.Saeed submitted that since his dismissal on 25 September 2016 he has commenced employment with a new employer and earns $1,040 gross per week 9.

[10] I have taken into account s.392(2)(f) and refer to the view formed in paragraph [9].

[11] I turn to deal with s.392(2)(g), any other matter the Commission thinks is relevant. In the circumstances, I have regard to all the submissions and evidence.

[12] Pursuant to s.392(5) and (6), the amount ordered by the Commission to be paid to Mr.Saeed must not exceed the total amount or remuneration received by Mr.Saeed for any period of employment during the 26 weeks immediately before the dismissal.

[13] Consistent with Haigh v. Bradken 10in my view the amount of four weeks’ pay, $5,988, should be ordered as compensation in lieu of reinstatement. I have not made any deductions due to income earned by Mr.Saeed since termination, as it has been submitted he did not earn any income for approximately four weeks following his termination. Further, I do not find it appropriate to apply a contingency reduction to this figure as contingencies are known.

Costs

[14] The applicant also seeks costs pursuant to s.400A(1) of the Act on the basis of the respondent’s alleged unreasonable conduct. This is said to be raising arguments which were so obviously untenable and manifestly groundless that they could not possibly succeed.

[15] The only submissions put by the respondent were essentially groundless. In particular the respondent appears to have deliberately misled the Commission by stating that the company was being wound up without providing any evidence of this, and when the evidence later provided by the applicant indicated the contrary: Walker v. Mittagong Sands Pty Ltd 11.

[16] The applicant was forced to respond to this and other misleading submissions relating to the trading name and whether it is operating, and this was a cost to it and an unnecessary cost. The Commission and other parties should be able to rely on material put by a party, and not be completely misled. Other submissions of the respondent were also groundless as my decision records. I was able to place no or almost no weight on the submissions of the respondent. Reasonable conduct does not include deliberately misleading the Commission, and the respondent has conducted the defence of the application in an unreasonable manner.

[17] I will order costs against the respondent as sought.

Order

[18] An order relating to compensation and costs is contained in PR591715.

DEPUTY PRESIDENT

 1   Email from Damian Black dated 6 April 2017.

 2 Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21

 3   Ellawalla v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 at [31]

 4 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]

 5   [2014] FWCFB 236

 6   Applicant’s Outline of Submission’s on Remedy at paragraph 13

 7   Ibid at paragraph 19.

 8   Ibid at paragraph 22 and attachment A-2

 9   Ibid at paragraph 25

 10   [2014] FWCFB 236

 11 (2011) 210 IR 370

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<Price code A, PR591794>