Mr Peter Preston v Hume Investments trading as Alpha Fresh Foods

[2014] FWC 4903

[2014] FWC 4903 [Note: An appeal pursuant to s.604 (C2014/5774) was lodged against this decision - refer to decision dated 28 August 2014 [[2014] FWC5945] for result of appeal.]

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

Mr Peter Preston
v
Hume Investments trading as Alpha Fresh Foods
(U2014/3693)

DEPUTY PRESIDENT SMITH MELBOURNE, 25 JULY 2014

Application for relief from unfair dismissal; no appearance by the respondent; 26 weeks compensation awarded.

[1] The following decision, now edited, was issued during proceedings conducted on 17 July 2014.

[2] This is an application made by Mr Peter James Preston for relief in relation to the termination of his employment, which took place on 23 December 2013. Mr Preston worked for a company called Hume Investments trading as Alpha Fresh Foods. Mr Preston was a fourth year apprentice and he says was employed from 29 November 2012 until the time of his dismissal on 23 December 2013. On the material provided by the employer they argue that he commenced on 7 February 2013.

[3] The employer in this matter has been provided with an opportunity to attend these proceedings and there are several file notes which indicate that the employer was well aware of the proceedings taking place. The employer has elected not to attend these proceedings. Therefore I find that Mr Preston commenced employment at least from 29 November 2012. There is some evidence that he commenced earlier and that Ms Rae-Maree Powell, the applicant’s mother, indicated that she raised these matters with the Fair Work Ombudsman and also the relevant superannuation authorities.

[4] Mr Preston submits that on or about 17 December he went to see a dental surgeon as he needed some teeth removed. He needed also to have a general anaesthetic and he was concerned that his employer should know about this. I have had sworn evidence from Ms Rae-Maree Powell and Mr Peter John Preston, the applicant’s father that they made arrangements to advise the employer that Mr Preston was going to be absent from his workplace. This was important because Mr Preston readily concedes that he has had warnings in the past for lateness and was anxious to ensure that his employer understood the reason for him not being present in the workplace, namely because of sickness due to complications associated with his teeth. The employer’s response to the application is that the applicant didn’t notify the intention to take leave.

[5] I have considered the evidence given by Ms Powell and Mr Peter John Preston, the parents of the applicant, who provided me with statutory declarations as well as supporting material indicating that such evidence was provided to the employer. I find that the evidence was provided to the employer and that the employer was aware for the reasons of the absence of Mr Preston due to illness.

[6] I now turn to consider whether or not section 387 of the Act has been complied with in relation to the termination of Mr Preston’s employment. Section 387 provides:

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 followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[7] Firstly, s 387(a), whether there was a valid reason for the dismissal related to the person’s capacity or conduct. In this regard there was no a valid reason given that the conduct complained about, namely absence from the workplace, was clearly dealt with by the parents of Mr Preston and I am satisfied that the employer was aware that there was an absence due to illness. I have balanced this against the warnings which Mr Preston admitted he had received for being late to work in the past.

[8] Section 387(b) deals with whether the person was notified of that reason. Mr Preston tells me today that he was not notified of the reason, he was simply told to leave.

[9] Section 387(c) deals with whether the person was given an opportunity to respond relating to capacity or conduct. It is clear that Mr Preston was not given an opportunity to respond.

[10] Sections 387(d) and (e) don’t arise in these circumstances. Section 387(f) is a relevant consideration, namely the degree to which the size of the employer’s enterprise would be likely to impact upon the procedures followed in effecting the dismissal.

[11] In this case it’s unfortunate that the employer did not attend to make any submissions on these matters and therefore I am unable to make any assessment as to the state of knowledge of the employer. There is certainly, in relation to s.387(g), an absence of dedicated human resource management.

[12] Finally in dealing with s.387(h)—any other matters the Commission considers relevant, I do consider highly relevant that efforts were made by Mr Preston to advise his employer of his illness and it appears that the dismissal arose as a direct consequence of that illness.

[13] I now turn to consider the remedies that should be ordered. Mr Preston does not seek reinstatement. He does seek an amount of money, which includes pain and suffering, and also an amount of money at the qualified butcher’s rate. I have advised that the Commission does not have the jurisdiction to award amounts for pain and suffering and I have also advised that it’s inappropriate to consider any remedy based upon a rate that Mr Preston was not earning. He was a fourth year apprentice. Therefore I now turn to the question of compensation.

[14] Section 392 is the section of the Act to which the Commission turns when considering compensation. Section 392 of the Act provides:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

[15] Section 392(a) requires the Commission to consider the effect of the order on the viability of the employer’s enterprise and 2(b)—the length of service with the employer. In this case the employer has chosen not to attend and I have no submissions in relation to these subsections. It appears, from the submissions of the applicant, that his service is just over one year.

[16] Subsection 392(c) refers to the remuneration that the person would have received or would have been likely to receive had the person had not been dismissed. Mr Preston was an apprentice butcher and had approximately nine months to go in his apprenticeship. I have considered the warnings put against Mr Preston but I am also satisfied that he was cognisant of having to correct his conduct and that’s why he took the steps he did in relation to his absence. I have formed the view that, at the least, he would have completed his apprenticeship with the employer. In relation to s.392(d) which refers to the efforts to mitigate the loss suffered, Mr Preston has had an aggravated illness as a consequence of the dismissal and has not been able to secure further employment. He has not earned any remuneration since the dismissal.

[17] Finally, therefore, I’m of the view that I will award Mr Preston an amount of 26 weeks pay at his appropriate rate and I will issue an order accordingly that the amount will be paid within 14 days of the order being issued.

DEPUTY PRESIDENT

Appearances:

P. Preston the applicant with R. Powell.

Hearing details:

2014.

Canberra:

July, 17.

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