Mr Kazi Hasanuzzaman v Amrita Foods Pty Ltd - [2012] FWA 5409

[2012] FWA 5409

FAIR WORK AUSTRALIA

DECISION

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

Mr Kazi Hasanuzzaman
v
Amrita Foods Pty Ltd
(U2012/4398)

COMMISSIONER MACDONALD

SYDNEY, 9 AUGUST 2012

Application for unfair dismissal remedy - termination on ground of assault - alleged assault by applicant from two years prior - termination on ground of assault - successful underpayment claim by applicant before Fair Work Ombudsman prior to termination - applicant denied assault - termination - hearing - Small Business Fair Dismissal Code - summary dismissal - Pinawiu v Domingo Full Bench Decision applied - employer needs to satisfy two steps set out in Pinawin v Domingo - belief and reasonable grounds to justify immediate dismissal - onus and standard of proof on employer - employer failed to satisfy it had reasonable grounds to justify immediate dismissal - dismissal unfair - compensation considered - employer failed to keep proper wage and time records - compensation ordered.

[1] This decision arises from an application by Mr Kazi Hasanuzzaman (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (Cth) for a remedy in respect of his dismissal by Amrita Foods Pty ltd (the Respondent).

[2] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 27 January 2012.

[3] Conciliation of the unfair dismissal application took place before an FWA Conciliator on 7 February 2012.

[4] The Respondent put on its response to the unfair dismissal application on 14 February 2012.

[5] The Hearing took place on 11 May 2012 in Sydney.

[6] At the Hearing, the applicant represented himself with assistance from his wife, Ms A Akter. The Applicant gave evidence in the proceedings.

[7] At the Hearing, the Respondent was represented by Ms Therese Ngo, Manager, who is responsible for the day to day administrations of the company. Ms Ngo also gave evidence in the proceedings.

[8] The Respondent had also filed a witness statement for Mr Phong Ngo, Managing Director but who was not available to give evidence in the proceedings. Accordingly, his witness statement was not accepted into evidence before FWA.

[9] Subsequent to the hearing my office sought further and better particulars from the Respondent as to the remuneration received by the Applicant in the last six months or so and/or the average weekly hours of work for that period, of his employment. An email of 15 May from the Respondent advised that the Applicant’s bundy cards listing his start and finish times could not be located. The Respondent instead provided copies of the Netbank transfer into the Applicant’s account which shows the remuneration and hours worked for four weekly pay periods in July 2011 only. Follow-up enquiries by my office to the above information provided, went unanswered.

BACKGROUND

[10] The Applicant commenced employment with the Respondent on 20 December 2006, as an Assistant Pastry Chef.

[11] The Applicant lodged a complaint with the Fair Work Ombudsman (FWO) on 24 October 2011, claiming underpayment of wages. This complaint was upheld. The FWO wrote to the Applicant on 24 November 2011 advising that the Respondent was to pay him $21,196 gross.

[12] The Applicant had gone overseas on 8 November and upon his return in the New Year, made enquiries about his return to work hours arrangement. During one of his enquiries on 16 January 2012 with Ms Therese Ngo, he was advised of an incident involving him and another employee, Mr Fahim Chowdhury who had claimed that the Applicant had assaulted him with a baking tray.

[13] By letter dated 17 January, the Applicant was advised that a finding had been made he had hit Mr Chowdhury with a baking tray and he was dismissed from employment. The letter was given to him on 25 January.

FINAL SUBMISSIONS

For the Applicant

[14] Ms Akhter, for the Applicant, put the following in final submissions:

(a) There was not a valid reason for the dismissal as the assault incident had not taken place.

(b) The applicant heard of this assault incident on 16 January from Ms Therese Ngo. He telephoned his wife (Ms Akhter) who sought to speak to Ms Ngo but the latter refused to talk to Ms Akhter. The failure by Ms Ngo to speak to Ms Akhter was an unreasonable refusal by the employer to allow the Applicant to have a support person.

(d) The Applicant had a very good relationship with Mr Fakim Chowdhury who was allegedly hit with a baking tray by the Applicant.

(e) The dismissal was harsh and the Applicant has been without a job since his dismissal.

(f) The maximum compensation of twenty-six (26) weeks was sought.

For the Respondent

[15] Ms Therese Ngo, for the Respondent, put the following in final submissions:

(a) The misconduct did take place and the Applicant was accordingly dismissed.

(b) Under cross-examination, the Applicant gave inconsistent statements.

(c) The Applicant is a litigious person because he put in another complaint to FWO following settlement of his first underpayment claim. This raised an issue, to a degree, as to the Applicant’s credibility.

(d) The Respondent had offered the Applicant a daytime shift upon his return from overseas. Therefore, his dismissal was because of the assault and not because the Applicant had filed a complaint with the FWO.

(e) As for compensation, if granted, the Respondent should not be punished. The Applicant has a valuable set of skills as an assistant pastry chef and should have been able to find a job easily.

Applicant in Reply

[16] Ms Akhter in reply put the following:

(a) The Applicant’s English was not very good. His statements were not inconsistent. He asks questions about questions put to him by Ms Therese Ngo, in order to understand the question being asked.

(b) The second complaint to the FWO was to seek its assistance that the calculation of the Applicant’s termination payments was correct.

CONSIDERATION

[17] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[18] Section 396(a) requires that an unfair dismissal application be made within fourteen days from the date of dismissal, being the time limit specified by section 394(2). The letter of dismissal is dated 17 January 2012 but the Applicant says it was not received until several days later. 1 The unfair dismissal application was lodged on 27 January and that date is within the fourteen day time limit of the date of the termination letter, let alone the date the letter was actually received. Accordingly, section 396(a) is satisfied.

[19] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. The Applicant worked for a small business employer but had more than twelve months service. Therefore, the Applicant is a person protected from unfair dismissal.

[20] Section 396(c) requires that a dismissal be consistent with the Small Business Fair Dismissal Code. Ms Therese Ngo’s witness statement advised that the Respondent employed 8-12 full time employees. 2 This fact made the Respondent a small business employer and the Small Business Fair Dismissal Code (the Code) then comes into play. Accordingly, the issue for immediate consideration is whether the dismissal was consistent with the Code.

[21] The Small Business Fair Dismissal Code states:

“Commencement

The Small Business Fair Dismissal Code came into operation on 1 July 2009.

Application

The Fair Dismissal Code applies to small business employers with fewer than 15 employees (calculated on a simple headcount of all employees including casual employees who are employed on a regular and systematic basis).

Small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement. If an employee is dismissed after this period and the employer has followed the Code then the dismissal will be deemed to be fair.

Employees who have been dismissed because of a business downturn or their position is no longer needed cannot bring a claim for unfair dismissal. However, the redundancy needs to be genuine. Re-filling the position with a new employee is not a genuine redundancy. The requirements for determining whether a dismissal was a genuine redundancy are contained in section 389 of the Fair Work Act. The Small Business Fair Dismissal Code Checklist attached to this document can assist in determining whether redundancy is a genuine redundancy.

Further information on the application of the Code, genuine redundancy and unfair dismissal is available at or by contacting the Fair Work Infoline on 13 13 94.

The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.

Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[22] The Code describes two types of dismissals: “summary dismissal” and “other dismissal”. The termination letter states that, following an investigation, the Respondent concluded there was a “prima facie” case that the Applicant had assaulted Fahim with a baking tray. 3 That reason for dismissal is labelled “violence” and puts the type of dismissal into the category of “summary dismissal”. The termination letter states that had the Respondent been aware of the assault at the time (2009), then there would have been instant dismissal. Given that the reason for dismissal is an assault, I will apply the “summary dismissal” provision of the Code.

[23] When an employer dismisses an employee on the ground of summary dismissal, then the Code states that it is fair for the employer to do so, if the “employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”.

[24] In Pinawin v Domingo, a Full Bench of FWA considered the approach to be taken by FWA when determining whether the employer believed on reasonable grounds that the employee’s conduct justified summary dismissal. 4 The Bench approved of the approach taken by two tribunal members 5 in their respective decisions and then stated:

“[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.

[31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo’s conduct was sufficiently serious to justify immediate dismissal.” (Underlining added.)

[25] The question I need to consider is whether the Respondent believed on reasonable grounds that the Applicant’s conduct (assault) was sufficiently serious to justify immediate dismissal.

[26] In regard to that consideration, I will now apply the second step set out in the above Full Bench extract, as to whether the Respondent carried out a reasonable investigation into the assault allegation.

[27] As to that reasonable investigation, the onus is on an employer to satisfy FWA that they have carried out a reasonable investigation. It is not for a dismissed employee to satisfy FWA that the investigation was reasonable or otherwise.

[28] The employer has satisfied FWA that it has carried out a reasonable investigation, if it satisfies FWA to the requisite standard of proof. The standard of proof that applies in unfair dismissal cases, is balance of probabilities. Thus, a Full Bench of the Australian Industrial Relations Commission said of the concept of standard of proof in Brinks Australia Pty Ltd v Transport Workers’ Union of Australia:

“It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes.” 6

[29] The foregoing quote from the Full Bench pronounces not only on the standard of proof (balance of probabilities) but as well pronounces on the strength of the evidence necessary to establish a fact. The strength of the evidence required to be produced by an employer to prove a fact varies depending on the seriousness, gravity of the matter to be proven.

[30] In the case of the operation of the Small Business Dismissal Code in respect of a dismissal, an employer carries the onus to show that it had a belief, based on reasonable grounds, that an employee’s conduct justified dismissal. But in the case of summary dismissal, the onus is on the employer to show that it had a belief, based on reasonable grounds, that an employee’s conduct was sufficiently serious to justify instant dismissal.

[31] Having set out above that the onus is on an employer to satisfy FWA that it has carried out a reasonable investigation, based on the balance of probabilities, I will now consider whether the Respondent, in the case before me, carried out a reasonable investigation into the assault allegation.

[32] The witness statement of Ms Therese Ngo (Ex. 2) advises that an employee, Fahim Chowdhury had a conversation with her in or about mid-January 2012. He told her of an incident he had with another employee (Martin). The Applicant became involved in the incident and struck Mr Chowdhury with a baking tray on the arm. Subsequently, Ms Ngo said she had a meeting with the Applicant. At that meeting, she discussed his future working patterns and she deposed “I also investigated the issue of violent behaviour with the applicant”.

[33] The termination letter of 17 January 2012, sheds light on this meeting. It says that the allegation of Fahim Chowdhury was raised with the Applicant who denied the assault.

[34] The termination letter (Exhibit 1, Annexure D) also states that the Applicant contacted Mr Phong Ngo, Managing Director, to discuss his working hours and was told by Mr Phong Ngo “that we were currently investigating this incident and that we would write to you in relation to your working conditions and/or results of our investigation”. The termination letter then declares that Mr Phong Ngo asked the Applicant if he had hit Fahim Chowdhury and the Applicant had responded, “It was a long time ago, we are friends now.”

[35] The termination letter then says that “We have confirmed with other employees who were working on the day and Di has come forth to confirm that he did offer to call the police on Fahim’s behalf but Fahim refused.” The “Di” mentioned above is the uncle of Ms Therese Ngo. Mr Phong Ngo is the father of Ms Therese Ngo. 7

[36] Finally, the termination letter concludes on the issue of investigation as follows: “As a result of our investigation and your lack of co-operation in providing a reasonable excuse we must take the prima facie case, which is, you did assault Fahim with a baking tray.”

[37] The foregoing extracts show that Ms Therese Ngo raised the assault allegation with the Applicant on or around 16 January. He denied the allegation. The Applicant then spoke with the Managing Director seemingly on the same day. Apart from a discussion about hours of work, the Managing Director has asked the applicant if he assaulted Fahim Chowdhury. Certain words are recorded as being the Applicant’s response: “It was a long time ago, we are friends now.” These words arguably have a negative connotation by suggesting that the Applicant has conceded that he assaulted his fellow employee.

[38] The termination letter then records, in later paragraphs, the following: “We have confirmed with other employees who were working on the day and Di has come forth to confirm that he did offer to call the police on Fahim’s behalf but Fahim refused.”

[39] On one reading, the termination letter suggests by its above format that the investigation continued on after Ms Therese Ngo and Mr Phong Ngo spoke to the Applicant. If that scenario is correct, then there is no evidence that this additional investigation and its detrimental outcome was put to the Applicant for his response before his dismissal. That response scenario would be on the basis of not denying the Applicant natural justice in terms of what the additional investigation uncovered and putting that to the Applicant for his response. There is no evidence, however, that there was an additional investigation.

[40] On another reading, there was no additional investigation after Ms Therese Ngo raised the allegation with the Applicant. The evidence for this scenario is that the dismissal letter is dated 17 January being about one day after Ms Therese Ngo raised the assault allegation with the Applicant. What investigation then had taken place by 17 January in order to constitute a reasonable investigation?

[41] As to this investigation scenario, the evidence discloses that Fahim Chowdhury spoke to Ms Therese Ngo and then the termination letter states that “we” (that is, unspecified persons) confirmed the baking tray incident with “other employees” (not specified) who were working on the day and with Di (the uncle of Ms Therese Ngo) who came forth to confirm that he did offer to call the police on Fahim’s behalf when Fahim told him of the baking tray assault but Fahim refused.

[42] I have issues with the above alternate scenario, for establishing that the employer carried out a reasonable investigation into the matter.

[43] The term “other employees” is plural but the account of the alleged assault by Ms Therese Ngo only identifies one employee being present during the alleged assault - that is, a person called Martin. Further, I do not know if he was interviewed as part of the investigation. (Martin was not called to give evidence.)

[44] The Employer’s Response to the unfair dismissal application was not tendered as evidence but was used for the cross-examination of the Applicant by Ms Therese Ngo. Attachment “A” to the Employer’s Response states that the Respondent concluded that the violence took place based on the witness statement of Fahim Chowdhury and “witness statements from fellow colleagues”. The Employer’s Response attached the witness statement of Fahim Chowdhury but, curiously, no witness statements from fellow colleagues. Given that it was a simple matter to attach Mr Chowdhury’s witness statement, then why not the statements of the other (unidentified) colleagues? (Mr Fahim Chowdhury was not called to give evidence.)

[45] The other person who is named in respect of this investigation, is “Di” who is the uncle of Ms Therese Ngo. The evidence discloses that he was not present during the alleged assault. He gets a version of the alleged assault from Fahim Chowdhury. There is no evidence that he spoke to the Applicant or Martin at the time of the alleged assault, in respect to Mr Chowdhury’s complaint of an injured arm. (“Di” was not called to give evidence.)

[46] This is significant because Fahim Chowdhury’s account (as given by Ms Therese Ngo) is that Mr Chowdhury “got into a fight with Martin ... (who) said some slang things, very offensive to me and my religion so I shouted back, that’s when Hasan (the Applicant) picked up the baking tray and he hit me with it ...”. On this account why would the Applicant strike Fahim Chowdhury? 8 This fight account was between Martin and Mr Chowdhury. From an investigator’s point of view, might the alleged assailant be Martin, given that account?

[47] Finally, I turn to the termination letter that declares that Mr Phong Ngo asked the Applicant if he had hit Fahim Chowdhury and the Applicant had responded; “It was a long time ago, we are friends now.” The Applicant was cross-examined on this matter but to no avail. His understanding of the questions as to this matter being put to him (because English is not his first language) was such that the cross-examination was not able to elicit his understanding as to what was being asked of him. Elsewhere, during the cross-examination, he denied hitting Fahim Chowdhury. Given my observation of the Applicant in the witness box, I did not form the view that he was evading the matter contained in the termination letter.

[48] The foregoing issues of concern about the investigation process cause me to conclude that the Respondent has not convinced FWA that it carried out a reasonable investigation into the assault allegation. Accordingly, the dismissal of the Applicant was not consistent with the Code.

[49] The final matter that must be decided by FWA before considering the merits of an unfair dismissal application is paragraph (d) of section 396: whether the dismissal was a case of genuine redundancy. This matter is not relevant to these proceedings.

[50] Having found that the dismissal was not consistent with the Code, I will now determine the merits of the unfair dismissal application. In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to have regard to the factors set out in section 387(a) to (h) inclusive.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[51] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.

[52] The termination letter advises that the conduct which led to the Applicant’s dismissal was an assault against Fahim Chowdhury with a baking tray.

[53] For the reasoning set out below, I find that there was no valid reason for the dismissal of the Applicant. Firstly, the Applicant denied the allegation. Secondly, the person who made the allegation, Fahim Chowdhury, did not give evidence in the proceedings. Thirdly, the only witness (Martin) to the alleged assault, did not give evidence in the proceedings. Fourthly, the “other employees” and Di did not give evidence in the proceedings. Fifthly, the person who made the decision (Mr Phong Ngo) to dismiss the Applicant did not give evidence in the proceedings.

(b) whether the person was notified of that reason;

[54] The Applicant was notified in writing of the reason for dismissal

(c) whether the person was given an opportunity to respond to any reason related to the capacity of conduct of the person;

[55] The Applicant was asked if he had hit Fahim Chowdhury and he denied doing so. There is no evidence that the views of “other employees” or Di as to the alleged assault, was put to the Applicant for his response.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[56] The Applicant did not raise this issue per se. The Applicant’s first language is not English and he asked his wife to speak to Ms Therese Ngo about his employment situation.

(e) if the dismissal related to unsatisfactory person by the person - whether the person had been warned about that unsatisfactory performance before the dismissal;

[57] The reason for termination was not based on the Applicant’s performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[58] The Respondent’s a small business employer and does not have dedicated human resource personnel.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[59] This issue has been considered in paragraph (f) above.

(h) any other matters that FWA considers relevant;

[60] A matter of relevance is the Applicant’s service period - approximately 5 years.

[61] The Respondent raised as an issue the credit of the Applicant because he allegedly gave inconsistent answers. I reject that submission. The Applicant’s first language is not English and I took that into account in my observation of his evidence given from the witness box.

CONCLUSION

[62] The Applicant filed a section 394 unfair dismissal application in respect of his dismissal by the Respondent.

[63] The Respondent’s reason for dismissal of the Applicant’s service is set out in its termination letter and gives the reason as an assault by the Applicant some two years before his dismissal. The assault was said to have been made by the Applicant when he struck another employee, Mr Fahim Chowdhury on the forearm with a baking tray.

[64] In defending the unfair dismissal claim, the Respondent said it was a small business and the dismissal had been effected, consistent with the Code.

[65] Given that the reason for dismissal was an assault, I then applied the “summary dismissal” provision of the Code, even though the Respondent did not specifically put that submission. The alleged assault had taken place some two years prior to the dismissal.

[66] When an employer dismisses an employee on the ground of summary dismissal, then the Code states that it is fair for the employer to do so, if the “employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”. In considering that criterion, I applied the approach set out by a Full Bench of FWA in Pinawin v Domingo. Having applied that approach I came to the finding that the Respondent had not carried out a reasonable investigation into the assault allegation. Accordingly, the Respondent could not rely upon the Code to say that its dismissal of the Applicant was fair and therefore beyond FWA’s further consideration.

[67] Having found that the dismissal was not consistent with the Code, I then determined the merits of the application - was the dismissal harsh, unjust or unreasonable? That question took into consideration the factors set out in section 387(a) to (h) inclusive. A consideration of those factors led to the conclusion that there was no valid reason for the dismissal.

[68] The Applicant seeks the remedy of compensation only. Given the circumstances of the case, the remedy of compensation is appropriate. The Respondent was opposed to compensation being granted.

REMEDY

[69] Pursuant to section 392(1) of the Act, FWA now confirms that an order for payment of compensation will be made in favour of the Applicant, by the employer, in lieu of the remedy of reinstatement.

[70] Section 392(2) sets out the criteria for deciding on the quantum of compensation:

“(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 FWA considers relevant.”

[71] FWA sets out below its consideration of the above factors.

[72] The Respondent made no incapacity to pay compensation submission in support of any impact of a compensation order on the viability of the Respondent’s enterprise: s.392(2)(a).

[73] The Applicant had some five (5) years’ service: s.392.(2)(b).

[74] The next criterion for consideration is the remuneration the person (dismissed employee) would have received, or would have been likely to receive, if the person had not been dismissed: s.392(2)(c).

[75] The Applicant’s correct remuneration for his work with the Respondent was the subject of a successful underpayment claim by him before the Fair Work Ombudsman.

[76] The evidence that fell during the proceedings disclosed that the Applicant was not provided with pay slips but there was a bundy clock for recording the hours worked. FWA requested the supply of the hours worked by the Applicant in order to calculate any compensation that might be ordered. 9 My office received an email from the Respondent (subsequent to the Hearing) advising that the bundy cards for the Applicant could not be located. The Respondent provided, per that email, the remuneration and hours worked by the Applicant for the month of July 2011 only. The parties also advised during proceedings that the correct gross rate of pay for the Applicant should have been the part-time rate of $16.908897 per hour.10

[77] The month of July data shows four entries of weekly pays and hours worked. The total number of hours worked for that July month is 127 hours. The average hours worked per week is 31.75

[78] The Applicant gave evidence that he sought to mitigate his loss of remuneration through his dismissal, but was unsuccessful: s.392(2)(d). Accordingly, there was no remuneration received: s.392(2)(e) and no remuneration was therefore likely to have been earned by him: s.392(2)(f).

[79] The other matter to be taken into account in considering the quantum of compensation is the Applicant’s length of service: s.392(2)(g).

[80] Having taken all of the above matters into account, as well as the circumstances of the case, and also having regard to the “fair go all round” concept (section 381(2) of the Act), FWA shall make an order for compensation for $13,958 gross. That assessment is derived from the 31.75 hours average per week multiplied by the maximum compensation of 26 weeks’ pay multiplied by the agreed hourly rate of $16.908897. A separate Order [PR527696] providing for a remedy in those terms will be issued.

COMMISSIONER

Appearances:

Mr Kazi Hasanuzzaman represented himself with the assistance of his wife Ms A Akter

Ms Therese Ngo for Amrita Foods Pty Ltd

Hearing details:

2012
Sydney
11 May

1 Transcript PN 73

2 Exhibit 2, para 2

3 Exhibit 1, Annexure D

4 John Pinawin T/A RoseVi. Hair. Face. Body & Mr Edwin Domingo [2012] FWAFB 1359

5 Narong Khammaneechan v Nanakhon ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891 (Deputy President Bartel) and Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 (Senior Deputy President O’Callaghan).

6 PR922612 per Guidice J, Action SDP and Hingley C at [7]

7 Exhibit 2, para 7 and para 4 respectively

8 Ibid., para 7

9 Transcript PN 552 to PN 572

10 Exhibit 1, Annexure C

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