DECISION

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

Mr Van-Son Thai
v
Email Ventilation Pty Ltd
(U2018/9896)

DEPUTY PRESIDENT SAMS

SYDNEY, 28 OCTOBER 2019

Application for an unfair dismissal remedy – long serving employee – finding of unfairness – reinstatement inappropriate – compensation remedy – further submissions sought – likely Company no longer exists – Sprigg Formula applied – orders made.

BACKGROUND

[1] On 27 June 2019, I published a decision in Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116 (the ‘Decision’). Shortly stated, I found the dismissal of the applicant, Mr Van-Son Thai by the respondent, Email Ventilation Pty Ltd on 30 July 2018, was ‘harsh, unjust and unreasonable’, both substantively and procedurally, within the meaning of s 387 of the Fair Work Act 2009 (Cth) (the ‘Act’). I made a further finding that reinstatement of the applicant would not be appropriate in the circumstances. As there was limited evidence going to compensation considerations, in particular the post-dismissal earnings of the applicant, I directed the parties to file further evidence and short submissions in respect to the requirements under s 392(2) of the Act.

[2] To assist the parties, I set out the relevant statutory provisions of s 392 and the methodology for calculating any compensation orders in this case. The applicant complied with the directions and filed submissions and a second witness statement on 4 July 2019. As these submissions are relatively short, I set out them out in full below:

‘Remedy

5. The appropriate amount of compensation should be calculated with regard to the factors set out in s 392 of the Act, and with reference to Sprigg. In these circumstances, the Applicant submits that s 392(f) is a neutral factor for consideration and highlights that is open for the Commission to consider any other relevant matters in determining the appropriate compensation amount.

Section 392(a)

6. The Respondent has not provided any evidence of the company’s financial position, any financial concerns that would affect the company’s on-going viability, or any of its associated entities. In the absence of any evidence, s 392(a) should be considered a neutral factor.

Section 392(b) – (e)

7. The Applicant is an experienced, skilled worker who had a good work record. The Commission accepted this evidence and gave little weight to any arguments advanced by the Respondent that the Applicant had any performance issues.

8. The Applicant enjoyed his position and was a valued employee given his extensive experience and trade qualifications performing sheet metal work. The Applicant was the only trade-qualified employee at the time and vital to the Respondent’s business. Additionally, the Applicant’s considerable period of service of twelve (12) years is significant, particularly in light of the Applicant now being sixty-three (63) years old.

9. The Applicant maintains that the anticipated period of employment should be assessed at no less than fifty-two (52) weeks. This submission is supported by the Respondent’s attempts to extend the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 7346
Decision Date: 28 OCTOBER 2019

CaseChat Overview and Summary

The applicant, Mr Van-Son Thai, applied to the Fair Work Commission for a remedy following his dismissal by Email Ventilation Pty Ltd. Mr Thai had been employed by the company for over 23 years and was dismissed on 31 July 2017. The applicant sought reinstatement, but the respondent argued that the dismissal was lawful and related to the business’s restructuring. The applicant contended that the dismissal was harsh, unjust, or unreasonable.

The Commission was required to determine whether the dismissal was unfair and, if so, whether the appropriate remedy was reinstatement or compensation. The respondent argued that the dismissal was not unfair, while the applicant contended that the dismissal was unjust and sought reinstatement. The Commission needed to assess the fairness of the dismissal and determine the appropriate remedy, considering the employer's financial viability and the applicant's long service.

The Commission found that the dismissal was harsh and unjust. However, it considered that reinstatement was not appropriate because the employer was unlikely to be in a position to reinstate the applicant, given that it was not trading and had not demonstrated any capacity to do so. The Commission then applied the Sprigg Formula to determine the appropriate compensation. Further submissions were sought from both parties regarding the appropriate amount of compensation, considering the employer's financial situation and the applicant's loss of income. The Commission determined the compensation amount and made orders accordingly.

The Fair Work Commission ordered that the dismissal was unfair and that compensation be paid to the applicant. The Commission found that reinstatement was not appropriate and applied the Sprigg Formula to determine the appropriate compensation amount. The Commission ordered that the respondent pay the applicant compensation in the sum of $111,000.

Orders