Mr Rocco Luppino v Labour Barn Pty Ltd

[2015] FWC 572

[2015] FWC 572

FAIR WORK COMMISSION

DECISION

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

Mr Rocco Luppino
v
Labour Barn Pty Ltd; Delitalia Market Grocer
(U2014/3805)

VICE PRESIDENT LAWLER SYDNEY, 21 JANUARY 2015

Application for relief from unfair dismissal.

[1] This is an application for an unfair dismissal remedy.

[2] The respondent did not appear at the hearing notwithstanding multiple notifications by both email and telephone (notice having been given to both Delitalia Market Grocer Pty Ltd and The Labour Barn Pty Ltd).

[3] For the reasons given in transcript the Commission finds that:

● the Applicant was protected from unfair dismissal;
● the dismissal was harsh, unjust or unreasonable having regard to the matters specified in s.387;
● the applicant was unfairly dismissed;
● that reinstatement is not an appropriate remedy and that an order for compensation ought be made.

[4] There was some confusion over the correct identify of the employer. The Labour Barn Pty Ltd and Delitalia Market Grocer Pty Ltd are each registered companies and separate legal entities. On the material before the Commission, it is more likely that The Labour Barn Pty Ltd was the employer of the applicant and that the order for compensation should be made against that entity.

[5] I have had regard to the matters specified in s.392. The failure of the respondent to appear means that I have no evidence that would allow me to conclude that the proposed order would affect the viability of the respondent’s enterprise.

[6] I am satisfied that the applicant was earning $1750 gross per week as an employee of the respondent. He was terminated unfairly on 28 December 2013. He remained unemployed for a period of about 3 weeks. He then regained employment with Harris Farm as a stacker on $1063 per week. He was promoted to second in charge after about a month and his salary increased to $1180 per week. He remained on that wage as at the time of the hearing on 19 December 2014.

[7] I am satisfied that the applicant has made reasonable attempts to mitigate his loss.

[8] The loss suffered by the Applicant to the date of the hearing was:

(a) 3 weeks at $1750 per week = $5,250
(b) 4 weeks at $687 ($1750 - $1,063) per week = $2,748
(c) 43.7 weeks at $570 ($1750 - $1,180) per week = $24,917

giving a total loss of $32,915.

[9] The Applicant is suffering an ongoing loss of $570 per week.

[10] The amount of the statutory cap on compensation in this case is $45,500 ($1750 x 26 weeks = $14,725).

[11] I find it more likely than not that the applicant would have continued in employment with the respondent for a prolonged period if he had not been unfairly dismissed such that the proper amount of compensation exceeds the statutory cap and that, accordingly, an order should be made in the amount of the cap.

VICE PRESIDENT

Appearances:

The Applicant on his own behalf

There was no appearance by the Respondent

Hearing details:

2014:

Sydney;

16 December

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