Mr Nicholas Olson v Blue Mountains Water Brewery 1888 Pty Ltd

[2019] FWC 902

[2019] FWC 902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Nicholas Olson
v
Blue Mountains Water Brewery 1888 Pty Ltd
(U2018/9239)

VICE PRESIDENT HATCHER SYDNEY, 12 FEBRUARY 2019

Application for an unfair dismissal remedy – remedy granted – compensation ordered.

[1] On 25 January 2019, I issued a decision 1 in which I found that Mr Nicholas Olson had been unfairly dismissed by Blue Mountains Water Brewery 1888 Pty Ltd (Blue Mountains Water) and that monetary compensation would be the appropriate remedy. In relation to the quantification of compensation, I indicated in the decision that I was concerned that the parties (particularly Blue Mountains Water) had not at the determinative conference adequately addressed the matters required to be taken into account under s 392(2) of the Fair Work Act 2009 (FW Act). Accordingly I determined that I would express my provisional views concerning the quantification of compensation and then allow the parties a period of seven days to make any further submissions as to this issue. My provisional view, having taken the s 392(2) matters into account, was that the amount of compensation should be $6,347.70 less applicable tax.

[2] Mr Olson lodged a submission expressing satisfaction with the provisional assessment of compensation. Ms Tracey Cui responded on behalf of Blue Mountains Water by email on 31 January 2019 as follows:

“Hi,

I felt very sad and unfair about your decision.

As Nicholas Olson said, I am facing a huge amount fine and huge business losing as the product quality re-call issue since the driest month in Australia on July 2018. I even could not affordable to pay a solicitor fee $1100 to prepare documents, so I attended the court to follow this case by myself on time, Nicholas didn’t attend the court, but you gave him an opportunity via the phone on the court and  judged this case according to his documents, his paper is not true as there is only have 9 staff in our company, so we are a small company, Nicholas was casual staff and previous owner told me he always gave casual staff only one day notice. Now in our small town, Nicholas talked with all previous casual staff, my our water business cannot affable for this problem, it is really too hard for me.

I really felt sad and unfair.

Best Regards

Tracy Cui.”

[3] Following the above responses, I remained concerned that Blue Mountains Water had not in its response addressed any of the s 392(2) matters. Accordingly I caused an email to be sent to Blue Mountains Water (and Mr Olson) on 4 February 2019 directing attention to the terms of s 392(2) of the FW Act and inviting submissions in response to the provisional assessment of compensation within a further seven days.

[4] Ms Cui sent a further email in response on 11 February 2019 which simply stated:

“Hi,

I really felt sad and unfair, it is unfundable for me.

Regards

Tracy Cui”

[5] In her first email, where Ms Cui said “my our water business cannot affable for this problem”, I assume that this was intended to convey, when read in the context of the entire email, that the provisional amount of compensation was not affordable to the business. Likewise I assume that in the second email Ms Cui intended to convey that the provisional amount was not able to be funded by her.

[6] Arguably, these contentions may be relevant to s 392(2)(a), “the effect of the order on the viability of the employer's enterprise”. However there is no material before me that would demonstrate that the viability of Blue Mountains Water – that is, its capacity to continue to operate as a business – would be endangered by an order for the payment of $6,347.70. Ms Cui’s emails, taken at their highest, constitute an assertion that Blue Mountains would currently have some difficulty in paying that amount. And they arise not higher than the level of assertion: Ms Cui has not provided any financial information or detail to support that assertion. I do not consider that Ms Cui has submitted anything relevant to s 392(2)(a) which would justify a reduction in the amount I have provisionally assessed. However, to address any difficulty in respect of capacity to pay, I will allow an extended period of eight weeks in which Blue Mountains Water is to pay the assessed amount of compensation.

[7] Ms Cui’s emails did not address any other s 392(2) matter, and accordingly I see no reason to depart from my provisional assessment of compensation. Blue Mountains Water will be required to pay Mr Olson the amount of $6,347.70, less applicable tax, within eight weeks of the date of this decision as compensation for his unfair dismissal. An order to give effect to this decision will be issued separately.

VICE PRESIDENT

Appearances:

N. Olson on his own behalf

T. Cui for Blue Mountains Water

Determinative Conference details:

2018.

Sydney:

20 December

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 1   [2019] FWC 131