Mr Luca Balatti v Aussie Supplements Pty Ltd ABN: 30 135 045 082

[2015] FWC 4674

[2015] FWC 4674

FAIR WORK COMMISSION

DECISION

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

Mr Luca Balatti
v
Aussie Supplements Pty Ltd ABN: 30 135 045 082
(U2015/301)

COMMISSIONER CAMBRIDGE SYDNEY, 10 JULY 2015

Unfair dismissal - exparte proceedings - no valid reason for dismissal - applicant advised of dismissal during telephone conversation - written advice confirmed dismissal but without explanation - dismissal harsh, unreasonable and unjust - 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 23 January 2015. The application was made by Luca Balatti (the applicant) and named the respondent employer as Aussie Supplements Pty Ltd ABN: 30 135 045 082 (the employer).

[2] The application indicated that the date of effect of the applicant’s dismissal was 4 January 2015. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] The material contained in the file has established that conciliation of the claim did not occur because the employer failed to participate in a Conciliation Conference arranged for 9 April 2015. Directions were issued by the Fair Work Commission (the Commission) for the filing of evidence and submissions in preparation for the arbitration of the claim. The applicant has filed material in accordance with these Directions. The employer has not filed any material, either in accordance with these Directions or more generally.

[4] The Commission’s file contains a note that on 19 June 2015, a Mr Leigh Taylforth was contacted by telephone as the nominated contact person for the employer. This file note includes the following:

“TC with Leigh Taylforth (R’s contact). I advised him that the respondent was due to file submissions on the 15 June but have not been filed and that the matter is listed for a hearing on 10 July. Leigh responded by saying that he doesn't know anything about this matter and that he cannot help me with this. I explained that he is the contact on the file and that the Commission has had previous contact with him about this matter. Leigh said he couldn't help and hung up on me.”

[5] In view of the record of conduct of those who apparently have responsibility to act on behalf of the employer, it was unsurprising that the employer failed to attend at the Hearing of the matter today or provide any other contact or explanation for non-attendance.

[6] Consequently, the Commission has proceeded to hear the matter ex parte and has accepted and considered the contents of a statement made by the applicant dated 21 May 2015 1, together with an outline of submissions filed on 25 May 2015.

[7] The applicant had worked for the employer for a period of approximately 3 years. At the time of dismissal the applicant worked as a Retail Store Manager and he performed tasks associated with the employer’s retail operation in Wollongong. It appeared that the employer has retail operations at various locations including Wollongong, Shellharbour and Canberra.

[8] On or about 2 January 2015, the applicant received a telephone call from a Mick Smith who worked at the employer's Canberra office. In the course of this telephone call Mr Smith alleged that the applicant was being investigated in connection with the alleged sale of illegal substances, presumably from the employer's Wollongong retail outlet. Mr Smith then told the applicant that he was to be dismissed from his employment.

[9] Subsequently, on or about 6 January 2015, the applicant received a letter dated 5 January 2015 2, which confirmed the dismissal of the applicant “by cause, effective immediately.” The letter of dismissal provided no further explanation for the reason or reasons for dismissal. The letter of dismissal was signed by Leigh Taylforth as Managing Director of the employer.

[10] The applicant was not paid outstanding wages or other accrued entitlements. Since the dismissal the applicant has sought alternative employment and only recently gained another job.

[11] The unchallenged evidence of the applicant has established that he had been dismissed from his employment in an extraordinarily abrupt manner and without proper explanation or reason being provided.

[12] Section 385 of the Act stipulates that the Commission must 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.

[13] In this case the employer has refused to participate in any conciliation of the matter. The employer has also failed to attend at the Hearing or provide any explanation for non-attendance. I am satisfied that the employer was provided with proper notice of these proceedings before the Commission. The employer’s failure to properly attend to proceedings before the Commission is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal.

[14] The evidence has not revealed any valid reason for the dismissal of the applicant. 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 if it were to be applicable, and; (d) the dismissal was not a case of genuine redundancy.

Conclusion

[15] The applicant was verbally advised of his dismissal and subsequently provided with a letter of dismissal which did not disclose any reason for dismissal.

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

[17] The conduct of the employer in respect to the dismissal of the applicant and in regard to these proceedings before the Commission has been highly regrettable. The applicant’s claim for unfair dismissal has been established.

Remedy

[18] 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.

[19] 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  3 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 4.

[20] 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.

[21] 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 3 years 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 six months.

[22] I note that the applicant has made efforts to mitigate his loss. 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.

[23] Consequently, for the reasons outlined above I have decided that an amount approximating with 18.43 weeks remuneration at the ordinary weekly rate before dismissal should be Ordered as compensation to the applicant. That amount is $17,880.00. Accordingly a separate Order [PR569264] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr R Webley, solicitor appeared for the applicant.

Hearing details:

2015.

Sydney:

July, 10.

 1   Exhibit 1.

 2   Exhibit 1 – Annexure “B”.

 3   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 4   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, PR569263>