Ms Krystal Raharuhi v Damincorp Pty Ltd T/A Smoko HQ

[2014] FWC 6598

[2014] FWC 6598

FAIR WORK COMMISSION

DECISION

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

Ms Krystal Raharuhi
v
Damincorp Pty Ltd T/A Smoko HQ
(U2014/5772)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 SEPTEMBER 2014

Application for unfair dismissal remedy - Arbitration - Compensation.

Background

[1] This is an application made by Ms Krystal Raharuhi under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Damincorp Pty Ltd t/a Smoko HQ (Damincorp). Ms Raharuhi was employed by Damincorp from 6 August 2013 until her dismissal on 7 March 2014.

[2] The matter was listed for hearing on 21 and 22 August 2014. Directions were issued requiring the parties to file and serve an outline of submissions and witness statements. Submissions were received from Ms Raharuhi in accordance with the Directions.

[3] On 4 August 2014 correspondence was received from Mr Campbell on behalf of Damincorp requesting an extension of time in which to file material. The matter was listed for mention on 7 August 2014, in order to determine whether an extension of time or an adjournment should be granted. The matter was listed for hearing on 19 September 2014 and Damincorp was directed to file an outline of submissions and witness statements by 11 September 2014. Mr Campbell was allowed a further period to file material and an adjournment of the hearing dates was granted.

[4] Mr Campbell did not comply with the revised Directions. On 16 September 2014 my Associate sent an email to Mr Campbell requesting advice as to whether he intended filing any material in the matter. On 17 September 2014 Mr Campbell emailed his response, which was not in the form of a submission, or a witness statement, and was unsigned.

[5] Ms Raharuhi attended the hearing on 19 September 2014, however there was no appearance on behalf of Damincorp. My Associate made an unsuccessful attempt to contact Mr Campbell. The matter proceeded in Mr Campbell’s absence.

[6] The following decision, now edited, was issued during proceedings on 19 September 2014.

[7] I am satisfied that the Applicant is a person protected from unfair dismissal on the basis that she is a casual employee with more than six months employment and states that she was employed on a regular and systematic basis. I am also satisfied on the basis of the Applicant’s evidence that she had a reasonable expectation that she would have continuing employment on a regular and systematic basis at least until she ceased work to give birth to her child, and that she could return to work after a few months and continue to work as she had previously done. The Respondent, on the basis of the Applicant’s evidence, is not a small business employer.

[8] The Applicant has attended the scheduled hearing and given her evidence under oath. The respondent has not appeared and has not responded to any of the directions that were issued. The Respondent has not filed submissions or a witness statement, and the material filed is not responsive to the Applicant’s material.

[9] I accept the applicant’s evidence on the basis that it is unchallenged. I accept that the Applicant has established that she was dismissed, on the basis that she has been provided with no work since March 2014.

[10] When I consider the criteria in s.387 of the Act I am satisfied that the dismissal was unfair on the grounds that it was harsh, unjust and unreasonable. In reaching that conclusion I have considered the fact that there does not appear to have been a valid reason for the dismissal. Ms Raharuhi states that although she was pregnant and was planning to take time off in order to have her child, she intended to work initially until the end of March and then until the 4th April and had discussed this with management of Damincorp. There is evidence that she had emailed the respondent querying why her shifts had been reduced. There is also evidence that the respondent had decided to replace her. The Applicant denies that she had asked to be taken off the vans on the basis of her pregnancy and states that she was fit to perform her usual work, including driving vans, up until 4 April 2014.

[11] On that basis I am satisfied that there was no valid reason for the dismissal. I am satisfied there was no notification to the applicant of the reason for her dismissal. There seems to have been no notification to her about anything to do with her employment. I am also of the view that there is no evidence she was given any opportunity to respond to any reason for her dismissal related to her capacity or conduct and it appears that there was no such reason.

[12] In relation to s.387(d) of the Act, given that there were no discussions about the dismissal, the absence of a support person is not relevant. There is no evidence that the dismissal was related to unsatisfactory performance, so warnings do not enter into my consideration.

[13] The degree to which the size of the employer’s enterprise would impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal is a matter that I have no evidence about, given the failure of the respondent to attend the hearing; and to provide a statement; or comply with directions, despite considerable effort to make contact with the respondent.

[14] I am also of the view that it is relevant that the applicant was dismissed at a point where she had planned to be absent in four weeks from the date of the dismissal because she was due to give birth. Dismissal at this time would have added an additional hardship and I have no doubt it would have been very difficult for her to find another job in that short period to make up for the lost income that resulted from her dismissal. I accept the Applicant’s evidence that her dismissal followed a period after Christmas when her regular hours of work had been significantly and unilaterally reduced.

[15] I am satisfied that the Applicant has been unfairly dismissed and that reinstatement is not appropriate. I have determined to award an amount of compensation. I am going to compensate the Applicant on the basis of 45 hours per week which she says was the upper level of hours that she was working prior to Christmas. The Applicant’s hourly rate was $21.50 and the period over which I will calculate the compensation is from the date of the applicant’s dismissal, which she states was 7 March 2014 until 4 April 2014, when the Applicant would have ceased work. I make no allowance after 4 April 2014 on the basis that the Applicant was a casual employee and may not have resumed employment with the Respondent after the birth of her child.

[16] I have calculated the amount of compensation as $3,870.00. That amount, less taxation deductions required by law, is required to be paid within seven days of today’s date. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Ms K. Raharuhi on her own behalf.

Hearing details:

2014.

Brisbane:

September 19.

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