Mr Mitchell Finn v Penrith Seafoods Pty Ltd

[2013] FWC 5468

[2013] FWC 5468

FAIR WORK COMMISSION

EXTEMPORE DECISION

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

Mr Mitchell Finn
v
Penrith Seafoods Pty Ltd
(U2012/15493)

COMMISSIONER CAMBRIDGE SYDNEY, 7 AUGUST 2013

Unfair dismissal - exparte proceedings - no valid reason for dismissal - dismissal implemented by text message - 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 18 December 2012. The application was made by Mitchell Nehemiah Finn (the applicant), and named the respondent employer as Penrith Seafoods Pty Limited ABN: 12 001 968 556(the employer).

[2] The application indicated that the date of effect of the applicant’s dismissal was 5 December 2012. Consequently the application was made within the 14 day time limit which was prescribed by subsection 394 (2) of the Act at the time.

[3] Conciliation of the claim was unsuccessful and the matter was initially programmed for a Hearing in respect to a Jurisdictional objection raised by the employer. The employer failed to file material in support of the Jurisdictional objection and did not appear on the day of the scheduled Hearing but instead advised that the objection was withdrawn.

[4] The matter was subsequently listed for Arbitration Conference/Hearing before the Fair Work Commission (the Commission) commencing at 10:00am today, 7 August 2013. At 9:06 am today Ms Veronica Papacosta from the employer, advised the Commission by e-mail that “Due to personal circumstance” she would not be present at the scheduled Arbitration proceedings. It has subsequently been clarified that no one from the employer has made arrangements to attend the proceedings and Ms Papacosta advised that the employer would rely upon its response provided in the Form F3 lodged at an early stage of the proceedings.

[5] Consequently, the Commission has proceeded to hear the matter ex parte and has accepted and considered the contents of the employer’s reply filed on 10 January 2013. The applicant was the only witness called to provide evidence in support and elaboration of a written statement which had been filed on 3 June 2013. Three further statements made by individuals were admitted as evidence. On the basis of this material the Commission has been prepared to determine the application.

[6] The applicant had worked for the employer for a period of approximately 3 years and 4 months. The applicant worked as a Shop Assistant and he performed a variety of tasks associated with the employer’s retail operation. The employer has approximately 17 employees working at various locations.

[7] From about April 2010, the applicant raised complaints with the employer about the absence of any pay advice information. The employer paid the applicant and apparently most of its other employees cash in hand. The applicant and other employees that the applicant was aware of would be paid in cash placed inside an envelope. On the outside of the envelope the name of the applicant was written and this amounted to the only pay advice information that the employer provided.

[8] As a result of the applicant’s initial complaints the employer provided the applicant with some wage payment advice by way of pay slips for a period of about two weeks in 2011. The employer then returned to payment of wages to the applicant by the cash in hand (envelope) method. The applicant made further complaint in 2012 about the absence of wage payment advice and in August 2012 the employer provided the applicant with weekly pay slips and deposited the identified net payments into the applicant’s bank account.

[9] In November 2012, some of the other employees started to raise concern with the employer about absence of wage payment advice and other matters including the amount of wages paid and other entitlements such as superannuation. The employer was aggrieved by what was perceived to be the applicant discussing his and the other employees’ employment entitlements. The applicant was rebuked by the employer and warned that he would be dismissed from employment if he continued to raise complaint or discuss with other employees issues regarding employment entitlements.

[10] On 3 December 2012, the applicant noticed that his weekly wage had not been deposited into his bank account as anticipated. On the following day, 4 December the applicant asked the employer about his wages not having been deposited into his bank account and he was told that he was to be paid in cash.

[11] On the next day, 5 December, the applicant went to the employer’s Penrith shop to collect his wages in cash and he discovered that the envelope contained about $50 less than he expected. Following some discussion the employer requested that the applicant return the cash and that the arrangements would be made to have the applicant paid via bank transfer. The applicant then gave the cash back to the employer.

[12] At 6:52 pm that evening (5 December 2012), the applicant received a text message from the employer which advised that he had been dismissed from employment because inter alia, he had “... been causing disruptions with staff and their wages despite being told not to....”.

[13] The unchallenged evidence of the applicant established that he had been subjected to reprehensible and grossly substandard treatment as an employee. The applicant believed that there was no proper basis for his dismissal. I agree.

[14] 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.

[15] In this case the employer has failed to attend at either of the scheduled dates fixed for Hearing. The employer has relied solely upon its submissions contained in the reply Form F3. This approach is reflective of a general disregard for providing even the most basic of standards of conduct as an employer. The employer’s lack of appropriate attention to proceedings before the Commission is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal.

[16] The evidence has not revealed any valid reason for dismissal. The uncontested evidence has established that; (a) the applicant was a person protected from unfair dismissal, and; (b) the applicant was dismissed, and; (c) the dismissal was harsh, unjust or unreasonable, and; (d) the dismissal was not consistent with the Small Business Fair Dismissal Code if it were to be applicable, and; (e) the dismissal was not a case of genuine redundancy.

Conclusion

[17] The applicant was dismissed because he sought to be paid wages and other entitlements in accordance with his lawful rights. The applicant was advised of his dismissal by text message.

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

[19] 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.

[20] In view of the quite disturbing evidence regarding wage payments made by cash in hand and the failure of the employer to maintain appropriate wage records and other procedures, I propose to refer a copy of this Decision and the transcript of proceedings to the Investigations Branch of the Australian Taxation Office and also to the FairWork Ombudsman.

Remedy

[21] 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.

[22] 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  1 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 2.

[23] 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.

[24] 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 4 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.

[25] 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.

[26] Consequently, for the reasons outlined above I have decided that an amount approximating with 22 weeks remuneration at the average weekly rate before dismissal should be Ordered as compensation to the applicant. That amount is $16,500.00. Accordingly a separate Order [PR539928] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Ms J Prats, Solicitor from Connect Legal with Mr Aslanian, on behalf of the applicant.

No appearance for the respondent.

Hearing details:

2013.

Sydney:

August, 7.

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

 2   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 C, PR539926>