Mr Nicholas Howe v Freechoice Vending Australia Pty Ltd

[2014] FWC 8964

[2014] FWC 8964

FAIR WORK COMMISSION

DECISION

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

Mr Nicholas Howe
v
Freechoice Vending Australia Pty Ltd
(U2014/7790)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 16 DECEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr Howe for an unfair dismissal remedy pursuant to section 394(1) of the Fair Work Act 2009 (the Act).

[2] I heard this application in Brisbane on 17 October 2014. Mr Howe represented himself. Free Choice Vending Australia Pty Ltd (Free Choice) was represented by Ms Ozioko, National Human Resources Manager. I delivered a decision in transcript that day and issued an Order that the respondent pay to the applicant the before tax sum of $10,769.20 by close of business 31 October 2014.

[3] I had regard to s.396 of the Act and determined that this application was made within the period required by the Act, that Mr Howe was a person protected from unfair dismissal, that Free Choice was not a small business employer and that there was no issue of genuine redundancy.

[4] It was necessary for me to determine whether or not Mr Howe's termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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 for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[5] Having considered the evidence and submissions of the parties I resolved various factual issues relevant to the criteria I was required to consider pursuant to s.387. I found Mr Howe a reliable and credible witness. In resolving the factual background and any conflict in the facts I preferred the evidence of Mr Howe. I have set out my key factual findings below.

Valid reason - s.387(a)

[6] Mr Howe’s employment was terminated for not applying the Free Choice policy in relation to the non-payment of commissions when debtors had not resolved outstanding debts. I am satisfied that Mr Howe was not made sufficiently aware of the change in the policy which Free Choice complained about. The circumstances in which Mr Howe was alleged to have been informed of this change was such as to make it unlikely that any reasonable person would recall the instruction. That notification should have been provided in writing. It was not reasonable to criticise Mr Howe for failing to apply the policy. In the absence of a satisfactory and timely explanation there was not a valid reason for the termination of Mr Howe’s employment. I am satisfied that Free Choice's reasons for the termination of Mr Hutton’s employment were not sound, defensible and well founded.   

Notification of Reason - s.387(b)

[7] Mr Howe was notified of the reason for the termination of his employment.

Opportunity to Respond - s.387(c)

[8] I am satisfied and find that there was no opportunity to respond to the reasons provided by Free Choice for the termination of Mr Howe’s employment. Mr Howe was not provided with procedural fairness. There was no appropriate opportunity for Mr Howe to meet with Free Choice management and discuss the issues on which Free Choice relied for the termination of his employment. Such a meeting was essential for procedural fairness. Mr Howe was entitled to have an opportunity to explain his position, for Free Choice to consider that position and then for Free Choice to make an informed decision about terminating his employment.

Support Person - s.387(d)

[9] There was no opportunity for a support person to attend.

Unsatisfactory Performance - s387(e)

[10] Performance was irrelevant except in relation to the issue relied on by Free Choice for the termination of Mr Howe’s employment.

Procedures for implementing dismissal - s.387(f) and (g)

[11] I was satisfied and found that the procedures adopted by Free Choice were unfair and inappropriate.

Any other relevant matters – s.387 (h)

[12] I considered the financial and social consequences to Mr Howe of termination of employment.

Conclusion

[13] Having considered the requirements indicated in s.387 of the Act I was satisfied that the dismissal of Mr Howe was harsh, unjust or unreasonable. I therefore allowed the application.

Remedy

[14] I ordered Free Choice to pay compensation in the gross sum of $10,769.20. Mr Howe was unemployed for 10 weeks. Compensation was calculated by taking into account the loss of income to Mr Howe arising from the termination of his employment for 10 weeks at $2,153.84 per fortnight.

SENIOR DEPUTY PRESIDENT

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