Mr James Lane v The Heights Grocer Trading as Frooty Fresh ABN: 58243884378

[2011] FWA 3214

Note: An appeal pursuant to s.604 (C2011/4627) was lodged against this decision - refer to Full Bench decision dated 13 October 2011 [[2011] FWAFB 6984]for result of appeal.

[2011] FWA 3214

FAIR WORK AUSTRALIA

DECISION

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

Mr James Lane
v

The Heights Grocer Trading As Frooty Fresh ABN: 58243884378

(U2010/13250)

COMMISSIONER CAMBRIDGE SYDNEY, 24 MAY 2011

Unfair dismissal - exparte proceedings - no discernable reason for dismissal - dismissal implemented by telephone call whilst employee was on annual leave - 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 13 October 2010. The application was made by James Clifford Lane, (the applicant) and named the respondent employer as The Heights Grocer ABN: 58243884378 (the employer).

[2] The application indicated that the date of effect of the applicant’s dismissal was 1 October 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Conciliation of the claim was unsuccessful and the matter has eventually proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 12 May 2011.

[4] The employer failed to attend at the Hearing. The employer had also failed to attend earlier proceedings that had been scheduled for 21 January 2011. Mr Adrian Cremona a Director of the employer has not provided any acceptable explanation for his repeated failures to attend to properly notified proceedings held before FWA. Consequently the Hearing of the matter on 12 May 2011 proceeded exparte. The applicant was represented by Mr P Moore a solicitor from the firm Brazel Moore. Mr Moore called the applicant and one other witness, Ms M Young to provide evidence in support of the claim.

Factual Background

[5] The applicant had worked for the employer for approximately 1 year and 9 months. The applicant worked as a fruitier and he performed tasks associated with the employer’s retail operation. The employer has approximately 10 full-time equivalent employees.

[6] On Monday, 27 September 2010 at about 7:30 pm, the applicant was advised of his dismissal by way of telephone call from the employer's manager, Mr James Hillman. At the time that he was advised of his dismissal the applicant had commenced one week of annual leave. The applicant was told that the reason for his dismissal was that he “did not get on with other employees.”

[7] The applicant was subsequently provided with an undated employment separation certificate¹ completed by the employer and which indicated that the reason for separation was shortage of work. Apparently the employer provided a further employment separation certificate which listed the reason for separation as misconduct.

[8] The unchallenged evidence of the applicant established that he had been issued with one letter of warning concerning an incident in July 2010 which involved an argument with a janitor who worked for the shopping centre in which the employer’s business was located. The applicant and the janitor subsequently reconciled their differences and each apologised to the other. The applicant believed that there was no basis for his dismissal.

Consideration

[9] 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.

[10] In this case the employer has failed to attend at either of the scheduled dates of Hearing. The employer has not provided any satisfactory explanation for this unfortunate conduct. The employer’s lack of appropriate attention to proceedings before FWA was broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal.

[11] The evidence has not revealed any valid reason for dismissal. The employment separation certificate indicated that the reason for separation was shortage of work, however there was no evidence to support such a reason. Further, there was no evidence upon which to establish any other reason for dismissal such as misconduct or poor work performance.

[12] 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

[13] The applicant was verbally dismissed via telephone call from the employer’s manager. The applicant was not provided with any coherent explanation or reason for his dismissal. There was no discernable reason for the dismissal.

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

[15] 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 has been established.

Remedy

[16] The applicant has not sought reinstatement as remedy for his unfair dismissal. Frankly that is not surprising given the conduct of the employer. 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.

[17] 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.

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

[19] 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. In particular I mention that there was no evidence of any effect that any Order of compensation would have on the viability of the employer’s enterprise. The applicant had been employed for a period of about 1 year and 9 months and if he had not been dismissed he would have been likely to have received remuneration at or about the level of remuneration at the time of dismissal for a period of at least the equivalent of the length of his employment before dismissal.

[20] I note that the applicant has made efforts to mitigate his loss. Unfortunately he has been unable to secure any alternative employment. I also note that the amount of compensation that I am prepared to provide does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[21] Consequently for the reasons outlined above I have decided that an amount approximating with 26 weeks remuneration at the base weekly rate before dismissal should be Ordered as compensation to the applicant. That amount is $16,302.00. Accordingly a separate Order [PR509829] providing for remedy in these terms will be issued.

[22] The issue of costs is reserved generally.

COMMISSIONER

Appearances:

Mr P. Moore, from Brazel Moore Lawyers, appeared on behalf of the applicant.

No appearance for the employer.

Hearing:

Sydney, 12 May 2011.

¹ Exhibit 2.

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, PR509827>