Mr Harpreet Bawa v The Labour Barn Pty Ltd T/A Delitalia Market Grocer Pty Ltd

[2014] FWC 9461

[2014] FWC 9461

FAIR WORK COMMISSION

DECISION

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

Mr Harpreet Bawa
v
The Labour Barn Pty Ltd T/A Delitalia Market Grocer Pty Ltd
(U2014/8904)

VICE PRESIDENT LAWLER SYDNEY, 30 DECEMBER 2014

Application for relief from unfair dismissal.

[1] This is an application for an unfair dismissal remedy.

[2] The respondent did not appear at the hearing notwithstanding multiple notifications by both email and telephone.

[3] For the reasons given in transcript, a copy of which is being prepared and will be provided to the parties, the Commission finds that:

● the Applicant was protected from unfair dismissal;
● the dismissal was harsh, unjust or unreasonable having regard to the matters specified in s.387;
● the applicant was unfairly dismissed;
● that reinstatement is not an appropriate remedy and that an order for compensation ought be made.

[4] There was some confusion over the correct identity of the employer. The Labour Barn Pty Ltd and Delitalia Market Grocer Pty Ltd are each registered companies and separate legal entities. On the material before the Commission, it is more likely that The Labour Barn Pty Ltd was the employer of the applicant and that the order for compensation should be made against that entity.

[5] I have had regard to the matters specified in s.392. The failure of the respondent to appear means that I have no evidence that would allow me to conclude that the proposed order would affect the viability of the respondent’s enterprise.

[6] I am satisfied that the applicant was earning $566.37 gross per week as an employee of the respondent. He was asked to take leave on 27 April 2014 and never advised that he could return to work. He has suffered loss since that time.

[7] I am satisfied that the applicant has made reasonable attempts to mitigate his loss. From 21 May 2014 the Applicant has been earning about $288 per week (I note that the Applicant advised the Commission of a higher average rate for earnings for this period after the hearing and I act on that advice).

[8] In the period from 27 April 2014 to 21 May 2014 the Applicants loss was $1,925 (3.4 weeks at $566.37 per week). In the period from 21 May 2014 to 30 December 2014 the applicant’s loss was about $8,868 (31.9 weeks at $566.37 - $288 = $278.37). The Applicant continues to suffer loss at a rate of about $278 per week.

[9] I find it more likely than not that the applicant would have continued in employment with the respondent for a prolonged period if he had not been unfairly dismissed such that the proper amount of compensation exceeds the statutory cap and that, accordingly, an order should be made in the amount of the cap ($566.37 x 26 weeks = $14,725).

VICE PRESIDENT

Appearances:

The Applicant on his own behalf

There was no appearance by the Respondent

Hearing details:

2014:

Sydney;

22 December

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