Mr Shi Ming Ni v T&E Tools Pty Ltd
[2010] FWA 7512
•1 OCTOBER 2010
[2010] FWA 7512 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shi Ming Ni
v
T&E Tools Pty Ltd
(U2010/6963)
COMMISSIONER CAMBRIDGE | SYDNEY, 1 OCTOBER 2010 |
Unfair dismissal - unsatisfactory attendance record - unsatisfactory performance - dismissal for anticipated absence beyond period of approved leave - harsh and unreasonable dismissal – compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 15 March 2010. The application was made by Shi Ming Ni, (the applicant) and named the respondent employer as T & E Tools Pty Ltd (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 12 March 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation and has proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 10 September 2010.
[4] The applicant was self represented and he was also the only witness called to provide evidence in support of the claim. The employer was also un-represented. Mr R Kirkpatrick, a Director of the employer, appeared for the employer and gave evidence as the only witness called in defence of the claim.
Factual Background
[5] The applicant had worked for the employer for about 20 months. The applicant worked as a warehouse packing employee. The employer operates a business that involves importation and distribution of hand tools and similar products.
[6] During the applicant's relatively short period of employment he had taken a considerable amount of leave without pay primarily for personal purposes involving return to his homeland, China. On or about 12 February 2010 the applicant advised the employer that he intended to return to China during the following month, March 2010.
[7] The applicant completed a Leave and Annual Holiday Request form for the period 17 March to 8 April 2010. The employer's representative, Patience Kilpatrick, approved the applicant's leave request and signed the request form. 1
[8] Prior to the applicant commencing his period of approved leave the employer reconsidered the implications of the absence of the applicant. The employer discussed with the applicant the potential that he may seek to extend his absence from work beyond the period that had been approved as leave. The applicant was unable or unwilling to stipulate a date for his return to Australia from China.
[9] On 12 March 2010, the employer decided that because the applicant had not stipulated a date that he was returning to Australia, the anticipated extended absence of the applicant was unacceptable and therefore the applicant was dismissed. The applicant was given a letter of termination which, inter alia, stated the following reasons for termination:
“1.Unsatisfactory performance while carrying out different duties.
2. Unsatisfactory attendance records in the past one and half years.”
[10] On termination the applicant was paid accrued leave entitlements and a further two weeks pay in lieu of notice.
[11] Following his dismissal the applicant travelled to China and returned to Australia after a period of approximately 12 weeks.
The Case for the Applicant
[12] The applicant said that his dismissal was unfair because he was not given any warning about any performance concerns. Further, the applicant said that his performance was good and his leave had been pre-approved. Therefore the applicant said that there was no valid reason for his dismissal.
[13] The applicant also said that he was denied procedural fairness when he was called to the meeting of 12 March 2010 without a support person and without advance notice of the reason for the meeting. The applicant said that he did not agree with the reasons that the employer gave for his dismissal and that he had no time to respond to any of the issues raised because the dismissal took place immediately during the meeting.
[14] The applicant advised that he did not want to return to employment with the employer but instead sought monetary compensation as remedy for his unfair dismissal.
The Case for the Employer
[15] Mr Kirkpatrick said that he did not believe that the dismissal of the applicant was unfair. Mr Kirkpatrick said that the applicant had been absent from work for one reason or another for at least 55 days during his short period of employment. Mr Kirkpatrick said that the employer's business and other employees suffered as a result of the applicant's extended absences from work.
[16] Mr Kirkpatrick said that the applicant could not confirm a date for his return to Australia from China and that the employer was therefore facing a further extended and indefinite period of absence of the applicant. Mr Kirkpatrick said that this was unfair on the employer and on other employees. Mr Kirkpatrick also said that the applicant had agreed with this during the meeting held on 12 March 2010, and that the applicant had acknowledged and agreed that the termination of his employment was appropriate in the circumstances.
Consideration
[17] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[18] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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 FWA considers relevant.
Valid reason for the dismissal related to capacity or conduct
[19] Although the letter of termination indicated that unsatisfactory performance represented one reason for dismissal, the evidence provided by Mr Kirkpatrick clarified that the fundamental reason for the applicant's dismissal was the anticipated absence of the applicant for a further indefinite period.
[20] The applicant had been granted approved leave until 8 April 2010. Although the employer's predictions that the applicant would extend his stay in China beyond this date have to some extent been vindicated, at the time at which the applicant was dismissed the employer was speculating that the applicant could not or would not return at or shortly after the expiration of the period of his approved leave. Consequently the primary reason for the applicant's dismissal was, at the time that the decision to dismiss was taken, a matter of speculation.
[21] Consequently the reason for the dismissal of the applicant cannot be held to have been a matter of fact. Therefore there was no valid reason for the applicant's dismissal.
[22] The more appropriate course of action for the employer would have involved unequivocal warning to the applicant that there would be no tolerance for any absence beyond the date of the approved leave. Instead the employer pre-empted events and based the dismissal on a prediction.
[23] On balance however it must be recognised that the applicant had a very poor attendance record. Any employer is entitled to require particular levels of attendance well above that of the applicant. However the employer had approved the applicant's absences including that which precipitated the decision to dismiss. The actions of the employer operated to condone what would ordinarily be seen to be unacceptable levels of absenteeism.
Notification of reason for dismissal
[24] The employer provided notification of the reasons for the applicant's dismissal. Unfortunately for the employer, those reasons have been established not to represent valid reasons for dismissal.
Opportunity to respond to any reason related to capacity or conduct
[25] The employer did not provide proper opportunity for the applicant to respond to concerns regarding his level of absenteeism. The applicant should have been properly advised before the meeting of 12 March that termination of employment was being contemplated as a consequence of the employer's reconsideration of the forthcoming period of leave. It would have been conceivable that if the applicant was given advice of the potential for dismissal he may have reconsidered arrangements for his return to Australia from China and thereby satisfied the employer's concerns about any extended absence.
Unreasonable refusal to allow a support person to assist
[26] There was no evidence that the applicant was given an opportunity to have a support person to assist during the meeting of 12 March. There was also no evidence that the applicant requested and was refused to have a support person in attendance.
Warning about unsatisfactory performance
[27] To the extent that any unsatisfactory work performance represented reason for the applicant's dismissal there was no evidence of any warning about such unsatisfactory performance.
Size of enterprise likely to impact on procedures
[28] I have had cognisance of the relatively small size of the employer's business and I have recognised that in this instance some greater informality and flexibility would be appropriate when dealing with the procedures that were utilised in respect to the dismissal of the applicant.
Absence of management specialists or expertise likely to impact on procedures
[29] I have also had regard for the absence of management specialists or expertise in connection with employment matters. Employment management specialists may have intervened earlier as the applicant's absenteeism became a concern, and therefore the issue of the employer condoning the level of absenteeism may have been alleviated. However the erroneous basis for establishing a dismissal on an anticipated subsequent event remains as fundamentally unreasonable action.
Other relevant matters
[30] In this instance there were no other relevant matters that related to either the circumstances of the dismissal or established factors that the employer should have contemplated as part of the determination to dismiss.
Conclusion
[31] The applicant was dismissed for unsatisfactory performance and absenteeism. Upon analysis there was no evidence to establish any unsatisfactory performance. In addition, although the level of absenteeism was excessive, the actions of the employer had condoned this level of absenteeism. Further, and central to the reason for dismissal, the employer anticipated that the applicant would not return to work upon the expiration of his approved leave. Consequently the primary reason for the applicant's dismissal had no basis in fact.
[32] Therefore there was not a valid reason for the dismissal of the applicant relating to either capacity or conduct. Accordingly, the dismissal of the applicant was harsh and unreasonable.
Remedy
[33] The applicant did not seek reinstatement as remedy for his unfair dismissal. There was little evidence upon which I could be satisfied that the applicant had genuinely sought to mitigate any losses arising from dismissal. In particular the applicant's extended absence in China would have severely reduced the prospects for obtaining alternative employment.
[34] In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of limited compensation would represent an appropriate remedy for the applicant's unfair dismissal.
[35] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 2 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd3.
[36] Firstly, I confirm that an Order of the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[37] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act. In particular, the provisions of subsection 392 (2) (d) of the Act relating to the efforts of the person to mitigate the loss suffered because of the dismissal, has impacted significantly upon the determination of the amount of compensation provided to the applicant.
Consequently for the reasons outlined above I have decided that an amount approximating with 4 weeks remuneration should be Ordered as compensation to the applicant. That amount is $2,538.00. Accordingly separate Orders [PR502116] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Applicant represented himself.
Respondent represented by Mr. C. Kirkpatrick (Managing Director).
Hearing details:
Sydney, Friday 10 September 2010
1 Exhibit 2.
2 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
3 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR502115>
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