Mr Tafaoga Ape v Javier Vilches T/A Email Ventilation

[2011] FWA 5213

Note: An appeal pursuant to s.604 (C2011/5789) was lodged against this decision and the order arising from this decision [PR514124] - refer to Full Bench decision dated 29 November 2011 [[2011] FWAFB 7562] for result of appeal.

[2011] FWA 5213

FAIR WORK AUSTRALIA

DECISION

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

Mr Tafaoga Ape
v
Javier Vilches T/A Email Ventilation
(U2011/6160)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 2 SEPTEMBER 2011

Termination of employment.

[1] I heard this application pursuant to s394 of the Fair Work Act 2009 (the Act) on 8 July 2010 in Sydney. Mr Kennedy, legal officer of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (‘AMWU’), appeared for the applicant, Mr Tafaoga Ape. Mr Vilches appeared on his own behalf.

[2] The preliminary issue for determination in this application was whether Mr Ape’s employment was terminated at the initiative of Mr Vilches or whether he abandoned his employment.

[3] In relation to this issue and the merits of his substantive application Mr Ape gave oral evidence 1, relied upon a written witness statement2 and provided a written outline of submissions.3

[4] Mr Ape’s evidence was that on 8 March 2011 he was directed by Mr Vilches to stay at home until his dispute regarding unpaid superannuation entitlements had been finalised. 4

[5] On 10 March 2011, Mr Ape attended a meeting with Mr Vilches. There is a dispute as to what occurred at this meeting. Mr Ape was angry regarding his unpaid entitlements, as was Mr Vilches, and I am satisfied that the behaviour of both parties was less than satisfactory. Mr Ape’s evidence is that he has not been contacted by the respondent or offered any further work since that meeting, even though he was a full-time employee. He has also said that he had not received any remuneration or relevant entitlements for work performed between 3 - 8 March, 2011. 5

[6] Mr Ape’s evidence was that he had attempted to contact Mr Vilches on numerous occasions following this meeting regarding both pay and further work. All contact proved fruitless until 14 March 2011 6 when Mr Vilches terminated his employment during a telephone conversation by stating “I don’t want to deal with you anymore.”7

[7] Following this telephone conversation Mr Ape received a letter from Mr Vilches 8 dated 15 March 2011 referring to Mr Ape’s voluntary resignation. Mr Ape denied that he had voluntarily resigned and sent an email to that effect to Mr Vilches on 16 March 2011.9

[8] Mr Ape has not obtained other full-time employment. He has a wife and 5 children. 10 His gross weekly income was $1,064.

[9] Mr Vilches’ evidence was that he did not intend to terminate Mr Ape’s employment on or around 7 - 11 March 2011. 11 He gave evidence that he had offered Mr Ape work on or around this time, which Mr Ape refused. He said Mr Ape’s refusal was particularly inconvenient at the Wollongong site, where “......he was required urgently”.12 Mr Vilches claimed that it would not have been a ‘good business decision’ to terminate Mr Ape’s employment at that time as he had ongoing projects and had experienced a loss of experienced personnel.13

[10] Mr Vilches also relied on the oral evidence and witness statements of Ms Magdalena Marcelo 14, Mr John Stephan15 and his brother-in-law Mr Ernesto Alvarez16. The written and oral evidence of these three employees did not assist Mr Vilches. Mr Stephan’s oral evidence did not persuade me that he did not say that “Javier was looking to put people off”. Ms Marcelo’s evidence failed to persuade me that Mr Ape had resigned his employment on 7 March 2011. She was unsure about material dates and her evidence was inconsistent.17 I did not accept Mr Alvarez as a witness of truth. All of the statements appeared to have been prepared by Mr Vilches or with his assistance.

[11] I find that Mr Ape’s employment was terminated at the initiative of Mr Vilches. Given this finding, I am required to apply the following section of the Act:

Section 387

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[12] I have considered s387(a) of the Act. I have determined that there was not a valid reason for the dismissal of Mr Ape related to his conduct or performance. Mr Vilches decided that he no longer required Mr Ape to perform work. They had a fight concerning Mr Vilches’ admitted non payment of superannuation entitlements. That was the reason for the termination of Mr Ape’s employment. I have also determined that there was also no valid reason for the termination of Mr Ape’s employment arising from any of the particular misconduct or failures of performance subsequently identified by Mr Vilches. The documentary material that Mr Vilches provided in relation to these allegations was inadequate to establish any of those grounds. I was also not persuaded by Mr Vilches’ direct evidence on these matters wherever he had firsthand knowledge of the events, which was in very limited circumstances.

[13] I have had regard to s387(b) and (c). Mr Ape’s evidence regarding Mr Vilches’ failure to give him any notice or the opportunity to respond, was set out in his outline of submissions. 18 It was Mr Ape’s evidence that he had never received any warnings at work.19 Mr Vilches denied this. I prefer Mr Ape’s evidence. Mr Ape was not given any opportunity to respond to any reason relied on for his dismissal. I have had regard to these matters.

[14] I have considered s387(d)(e), (f) and (g). These matters are not relevant. There are no other matters of significance to which I have had regard pursuant to s387(g).

[15] I have decided that reinstatement is inappropriate in all the circumstances of this application. Neither Mr Ape nor Mr Vilches argued that their relationship was capable of restoration. It is clear that there has been acrimony and conflict in the past and I am satisfied that if Mr Ape was reinstated it would continue.

[16] Having decided that reinstatement is inappropriate I have to consider what other remedy might be appropriate. I have given consideration to s392 of the Act.

S392 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), FWA 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 FWA considers relevant.

[17] In relation to s392(2)(a) there is no evidence before me regarding the viability of the employer’s enterprise or any effect that an order for compensation might have on that enterprise.

[18] In relation to s392(2)(b) I consider Mr Ape’s length of service with Email Ventilation to be a positive factor. 20

[19] In relation to s392(2)(c), I have had regard to the income that Mr Ape would have received had he not been dismissed.

[20] In relation to s392(2)(d), I have had regard to the efforts of Mr Ape to mitigate his losses. I consider them to be unimpressive. Whilst it might have been difficult for Mr Ape to find work of exactly the same kind as his work with Mr Vilches, I consider that he has made no effort to find work of any other kind. No explanation was provided to me as to why Mr Ape could not find work in some other industry to minimise his losses during this period. It is not appropriate that, having been dismissed, he should simply look for a certain kind of work and that work alone. Mr Ape had an obligation to mitigate his losses. In my view he has not done so in any satisfactory fashion. 21

[21] I have had regard to s392(2)(e) and (f). Mr Ape has not found full-time employment since he was terminated on or around 14 March 2011. 22 He has earned $1500 from work performed as a contractor for Clearview in April 2011.

[22] Having had regard to all those matters which arise for consideration pursuant to s392(2) I have decided to award Mr Ape eight weeks compensation. A separate order will issue.

SENIOR DEPUTY PRESIDENT

Appearances:

Applicant: Mr Joseph Kennedy (Legal Officer, AMWU)

Respondent: Mr Javier Vilches (Owner, Email Ventilation P/L)

Hearing details:

2011

Sydney

8 July

 1   Transcript PN591

 2   Exhibit Felise/Ape3 Statement of Mr Ape

 3   Exhibit Felise/Ape1 Submissions of the Applicants

 4   Ibid, [19]

 5   Ibid, Annexure ‘TA3.’

 6   Ibid.

 7   Exhibit Felise/Ape3 Statement of Mr Ape, [54].

 8   Exhibit Felise/Ape3 Statement of Mr Ape, TA1

 9   Exhibit Felise/Ape5 Email train dated 17 March, 2011

 10   Exhibit Felise/Ape3 Statement of Mr Ape

 11   Transcript PN1491; PN1543; see also Exhibit Vilches4, [2]

 12 Exhibit Vilches 4, [2], [11].

 13   Ibid, [11].

 14   Exhibit Vilches 2, Statement of Magdalena Marcelo

 15   Exhibit Vilches 1, Statement of John Stephan

 16   Exhibit Vilches 3, Statement of Ernesto David Alvarez.

 17   Transcript PN 886-1009

 18   Exhibit Felise/Ape1 Submissions of the Applicants

 19   Exhibit Felise/Ape3 Statement of Mr Ape, [16].

 20   Ibid, Annexure ‘TA3.’

 21   Ibid, ‘TA4’

 22   Exhibit Felise/Ape3 Statement of Mr Ape, [68].

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<Price code C, PR513195>