Mr Joe Perfetto v Straitline Tiling Contractor Pty Ltd

[2013] FWC 3698

[2013] FWC 3698

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

Mr Joe Perfetto
v
Straitline Tiling Contractor Pty Ltd
(U2012/16475)

DEPUTY PRESIDENT SMITH MELBOURNE, 26 JUNE 2013

Termination harsh, unjust and unreasonable; respondent didn’t attend; additional unpaid work a relevant consideration; compensation awarded.

[1] The following decision, now edited, was issued during proceedings conducted on 5 June 2013.

[2] In accordance with the Fair Work Act 2009, 1 I have conferred with the parties and it was their wish, with which I concurred, that the matter be conducted in conference. In that conference, I marked as Exhibit W1—witness statement of Robert Perfetto and W2— witness statement of Mr Joseph Perfetto.

[3] The respondent employer did not attend but was aware of the proceedings.

[4] Given that I needed to ask Mr Robert Perfetto a number of questions, I also thought it appropriate that he give me answers to those questions under affirmation, and accordingly he was affirmed by my Associate.

[5] This matter involves a termination of employment of Mr Joseph Perfetto, who was terminated in his employment from a company known as Straitline Tiling Contractor Pty Ltd (Straitline).

[6] Mr Perfetto was dismissed from his employment with Straitline on 23 November 2012, in a telephone conversation with the proprietor. The background facts are basically these;

● Mr Perfetto was attending a trade school as required under his training agreement, and on some nights was working at the employer’s other business, a restaurant called Stuzzi.

● Mr Perfetto states that he was working at that restaurant tiling to assist his employer to renovate the restaurant and he was doing so without receiving any remuneration.

[7] On 23 November, after attending trade school, Mr Perfetto states that he had a call from his employer asking where he was and he advised that he’d been attending trade school. He stated that he was not able to assist his employer with the unpaid work that evening, to which Mr Perfetto says in his evidence that the employer accused him of being unreliable, and in that conversation terminated his employment.

[8] Before considering the merits of the matter, I must decide, in accordance with s.396, whether the application was made within the period required under s.394(2).

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[9] I also need to decide whether or not Mr Perfetto is a person protected from unfair dismissal. 2 I find that Mr Perfetto completed the minimum period of employment and his earnings were less than the high income threshold. I also find that Mr Perfetto was covered by the National Building and Construction Industry Award 2010.3

[10] Therefore I find that Mr Perfetto was a person protected from unfair dismissal. The respondent employer, I am told by Mr Perfetto, is regarded as a small business. It doesn’t appear to me on the material put by Mr Perfetto that the employer dismissed Mr Perfetto consistently with the small business fair dismissal code.

[11] In notes placed on the file, there is a conversation with Straitline that Mr Perfetto was dismissed due to lack of work.

[12] I put this to Mr Perfetto during the conference, and he advised me that there was plenty of work going on at the time, and this is probably confirmed by the fact that he was also performing duties for his employer to renovate the restaurant after hours.

[13] I am satisfied that Mr Perfetto was dismissed harshly, unjustly and unreasonably.

[14] It appears the grounds for his dismissal were that Mr Perfetto was unable to attend further unpaid work at the employer’s other business, and whilst there is no evidence to this effect, he advised the union and the matter was unable to be resolved.

[15] I also note the concern held by Mr Perfetto that his employer was reluctant to permit him to attend trade school, as he has put in submissions that he had missed trade school on other occasions due to work demands by the employer.

[16] In considering the remedy, the first matter to which the Commission turns is reinstatement. Given the history of this matter, the failure of the employer to attend, I am satisfied that reinstatement is inappropriate.

[17] Therefore, it is appropriate for me to turn to consider an order for payment of compensation, and in doing so I must consider the provisions of s.392 of the Act, and I turn to s.392(2), the criteria for deciding amounts.

“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.”

[18] I will deal with each criteria separately.

(a) The effect of the order on the viability of the employer’s enterprise.

[19] In this regard, the employer has not chosen to attend the proceedings and there is no evidence that could indicate any effect on the viability of the employer’s enterprise.

(b) The length of the person’s service with the employer.

[20] The service is in excess of 12 months.

(c) The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed.

[21] Evidence has been given and submissions put that Mr Perfetto’s weekly income was approximately $800.

(d) The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal.

[22] I’ve been advised by Mr Perfetto that he has obtained other employment from 18 February this year.

(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.

[23] There is other remuneration received during the period of employment in the form of Centerlink payments of approximately $1200.

(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.

[24] The nature of the dismissal, in my view, gives rise to consideration of how long Mr Perfetto would have worked had he not been dismissed, unfairly, harshly or unjustly.

[25] There is nothing before me that would indicate that Mr Perfetto would not have remained in employment for an indeterminate period or at least more than six months.

(g) any other matter that the FWC considers relevant.

[26] I do take into account the fact that Mr Perfetto was being required to work at his trade that he was learning for his employer, without pay, in another business.

Conclusion

[27] I am limited by the Act to a maximum of 6 months compensation. I take into account the work history, the conduct of the employer and the $1,200.00 received from Centerlink. I will make an order in this case that Mr Perfetto be paid an amount of $9600.00, less appropriate taxation.

DEPUTY PRESIDENT

Appearances:

R. Wainwright for the applicant.

Hearing details:

2013.

Melbourne:

June, 5.

 1   ss.398 and 399 of the Act

 2   s.382 of the Act

 3   Also covered by the FTAA Enterprise Agreement 2011-2015 between Straitline Tiling Contractor Pty ltd and the CFMEU, [AW890672  PR518677]

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