Mr Peter Chee v Tip Top Blinds (Vic) Pty Ltd

[2010] FWA 9423

[2010] FWA 9423

FAIR WORK AUSTRALIA

DECISION

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

Mr Peter Chee
v
Tip Top Blinds (Vic) Pty Ltd
(U2010/11618)

COMMISSIONER ROE MELBOURNE, 7 DECEMBER 2010

Termination of employment.

[1] The matter arises from an application filed on 8 July 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr Peter Chee (the Applicant) for relief in respect to the termination of his employment from Tip Top Blinds (Vic) Pty Ltd (the Respondent).

[2] Following an unsuccessful conciliation conference the matter was listed for Arbitration Hearing/Conference on 6 December 2010.

[3] Notice was given on 23 September 2010 to the parties that the Applicant was required to provide material on which he intended to rely by 25 October 2010 and the Respondent to similarly provide materials by 9 November 2010 and that the matter would be heard on 6 December 2010.

[4] The Applicant failed to comply with the directions and Senior Deputy President Action convened a hearing by telephone on 28 October 2010. The proceedings were recorded. The Senior Deputy President advised the Applicant that he had until Wednesday 3 November 2010 to provide the materials. The Applicant indicated that he would be a witness in proceedings and the Senior Deputy President advised him that he should put in a witness statement. The Senior Deputy President advised the Respondent that they had until 19 November to put in their material but they were excused from this requirement in the event that the Applicant failed to put in material.

[5] Once I received the file I asked my Associate to attempt to contact the Applicant to ask him if he was going to put in material and to encourage him to do so even though the deadline was passed. My Associate rang the land line and mobile numbers provided by the Applicant on three separate days. Messages were left on each occasion that the enquiry was concerning the Arbitration on 6 December and requesting to speak to Mr Chee. My Associate also rang another number provided by the person who answered the telephone on three separate days. The Applicant did not return the calls and never spoke to my Associate.

[6] The Applicant did not attend the proceedings on 6 December 2010.

[7] The Applicant alleged in his application that he was dismissed for two incidents related to his performance namely two incidents of accidental breakage. The Applicant says that he was not warned and these were the only incidents of poor performance during approximately two years of employment.

[8] The Respondent says that there was a warning provided, that the Applicant’s performance was unsatisfactory and that the Respondent was lawfully and contractually entitled to terminate the Applicant’s employment in accordance with his contract of employment. The Respondent further said in the F3 Employer’s response to the Application on 27 August 2010 that “the Applicant is able to bring this Application but, as a matter of contract law, he cannot recover any sum over and above those amounts already paid to him”.

[9] In support of this contention the Respondent attached to the F3 Employer’s response to the Application a copy of the contract of employment which includes a clause headed Termination of Employment that:

“We reserve the right to terminate your employment without notice if you are guilty of serious misconduct, act dishonestly, incompetently or refuse to obey a reasonable request from us.

Should you decide to resign, you agree to provide us with at least 4 weeks written notice.

Should the Company decide to terminate your employment for any reason (other than those referred to above), we agree to pay all your outstanding holiday pay and long service leave (if applicable) and to provide notice equal to one week’s salary for each completed year of continuous service with us (up to a maximum of four weeks) together with an extra week’s notice if you are over the age of 45 and have completed at least 2 years of continuous service with the Company.

The Company at its sole discretion, shall be entitled to provide compensation instead of notice provide such compensation is not less than the notice period set out above and you agree to accept such compensation in lieu of notice. You also agree that such notice or compensation payment is reasonable.”

[10] I do not believe that this is an enforceable contractual clause. It does not and cannot in any way reduce the Applicant’s entitlement to protection from unfair dismissal under the Fair Work Act and does not restrict the capacity of the Tribunal to award compensation or reinstatement or the level of any compensation. It also cannot reduce the entitlements under the relevant Award and the National Employment Standards.

[11] However, in response to the Applicant’s claim that the dismissal was unfair and that there was no warning given about the alleged incidents of poor performance, the Respondent has stated that the dismissal was due to poor performance and that a warning was given. The Applicant has provided no evidence to support his claim or to refute the Respondent’s claim. In this situation I cannot find that the dismissal was unfair. I am satisfied that the Applicant had reasonable opportunity to advance his case and that he has elected not to do so. In these circumstances I must dismiss the Application.

[12] The Application is dismissed.

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