Ms Nunthakarn Chaidechhirun v Ampm Cleaning Pty Ltd
[2025] FWC 332
•11 MARCH 2025
| [2025] FWC 332 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Nunthakarn Chaidechhirun
v
AMPM Cleaning Pty Ltd
(U2024/12675)
| DEPUTY PRESIDENT CROSS | SYDNEY, 11 MARCH 2025 |
Application for an unfair dismissal remedy – respondent failed to respond – respondent failed to attend the Hearing – no valid reason for dismissal – applicant unfairly dismissed – reinstatement not appropriate – determination to be made regarding remedy.
This matter involves an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Nunthakarn Chaidechhirun (the Applicant) claims that she was unfairly dismissed from her employment with AMPM Cleaning Pty Ltd (the Respondent).
The application was lodged on 24 October 2024 (the Application). The matter was allocated first to a conciliator who made the following note regarding the Respondent:
Thai interpreter required. No F3 filed at time of conciliation. R indicated he will be overseas next year and I have indicated it may be possible to conduct hearing remotely but it will be a matter for the Member. R likely to have 2 witnesses and uncertain whether either party will seek to be represented. A has also raised issues outside of the UD jurisdiction (MT).
It is apparent that the Respondents contact email and mobile number were, at least at that time, active and functional. The matter was allocated to my Chambers on 4 December 2024.
On 5 December 2024 my Chambers sent the following email to all parties, notifying them of the application made. The email relevantly stated:
I confirm that this matter will be the subject of a Directions Hearing and possible Member Assisted conciliation before Deputy President Cross at 9AM (Sydney time) on Tuesday, 10 December 2024.
Please send a response detailing who will be joining the conference. Ensure to include their best contact email and number to ensure the proceeding is run more efficiently.
The interpreter booked for the Applicant cancelled the appointment. As such, I decided to adjourn the conciliation to allow for the Applicant to be adequately heard. A further letter was sent to all parties on 10 December 2024, confirming the adjournment and requesting the filing of the Form F3 – Employer response.
Despite numerous further requests, the Respondent has not sent the Commission a copy of the completed Form F3. The matter was listed for conciliation on 12 December 2025, which the Respondent failed to attend. Numerous attempts were made to contact the Respondent by telephone before and on the day of the conciliation to no avail. An email was also sent on that same day which read:
Chambers notes the Respondent has failed to file their Form F3 despite being directed to do so.
The Directions Hearing will proceed as listed this morning at 9AM.
Attendance is compulsory.
After the Respondent failed to provide a response or confirm their appearance before the conference/mention scheduled on 12 December 2024, the following Directions were issued:
FINAL DIRECTIONS
1. Ms Nunthakarn Chaidechhirun (the Applicant) is directed to file with the Fair Work Commission, and serve on Ampm Cleaning Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 27 December 2024.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 10 January 2025.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 17 January 2025.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 10 January 2025.
Notes:
a) If you wish to vary these directions, you can make an application to do so in writing directly to the chambers of Deputy President Cross at: [email protected]
b) The Applicant and the Respondent should attempt to resolve this matter prior to the time for compliance with these requirements to minimise their costs in this matter.
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
d) Parties should liaise as to the provision and use of court books, exhibit bundles and authority bundles. Any materials must be supplied to the Chambers of Deputy President Cross 3 days prior to the listing.
The Applicant complied with Direction 1 above by re-filing the Application, however she failed to copy the Respondent into her email. My Chambers issued Amended Directions on 14 January 2025, attaching the Applicants material and copying in the Respondent. The email relevantly stated:
I note your correspondence of date. This correspondence was only sent to Chambers, and did not copy in the other side. Please ensure this email is forwarded to the other parties in this matter (copied), and all future correspondence is sent to all parties in the matter.
More information on communicating with Chambers can be found on the Fair Work Commission’s Fair Hearing Practice Note: Practice note: Fair hearings | FWC Main Site.
Chambers confirms receipt of your material; however you failed to send it to the Respondent. The Respondent has now been copied in and has received your material. The Directions are now as follows:
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 28 January 2025.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 4 February 2025.
On 28 January 2025, my Chambers again attempted to contact the Respondent. The email stated:
The Respondent has failed to provide a Form F3.
Chambers has contacted you via email on 12 December and 14 January in relation to your non-compliance. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.
I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.
Chambers notes the Respondents outline of submissions, witness statements and other documentary material that the Respondent intends to rely on in opposition to the application in this matter must be filed by 4pm on 28 January 2025 (this afternoon).
Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.
Once more on 29 January 2025, my Chambers sent a further email seeking Submissions from the Respondent:
Chambers has contacted you via email on 14 and 28 January 2025 in relation to your non-compliance with Direction 2. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.
I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.
Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance.
You are required to either:
·file and serve your submissions and other documents as outlined in Direction 2; or
·advise that you do not wish to file any materials; or
·make a request for an extension of time within which to file your materials, including any reason and evidence to support;
by 4:00pm on 30 January 2025.
On 5 February 2025, after multiple attempts to contact the Respondent by email and telephone, my Chambers issued the following email attaching the Court book for Hearing:
I refer to the matter above and to the repeated noncompliance from the Respondent despite multiple emails and phone calls made.
The matter will be proceeding as listed tomorrow at 10AM (Sydney time), in-person at 80 William Street. Attendance is compulsory. If you fail to attend, please note a decision may be made in your absence.
Chambers has prepared a Digital Court Book for this matter, which will assist the parties and Deputy President during the Hearing, noting it only contains material from the Applicant as the Respondent has failed to file anything. Please see Digital Court Book attached.
If you have any queries in relation to this matter or the Digital Court Book, please contact Chambers on the details listed below.
The Respondent did not respond to the above email.
The Respondent failed to attend the Hearing on 6 February 2025.
Against the background set out above of the failure of the Respondent to respond to any communication or request any extensions or adjournments, I determined to conduct the hearing in the absence of the Respondent. I note that on the day of the hearing, my Chambers made numerous attempts to contact the Respondent by telephone, however the Respondent did not answer the calls.
Legislation
Section 394 of the Act provides that a person who has been dismissed may apply to the Commission for an order under the Act granting a remedy. The Act provides that an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. It is apparent from the evidence that the Applicant was notified of her dismissal on 20 October 2024, with the dismissal taking effect on 21 October 2024. The application was made on 24 October 2024. This is within the statutory period. I am satisfied on the evidence that the Applicant commenced employment with the Respondent on 19 July 2021.
A person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
With regards to s.382(a) of the Act, as set out earlier, the dismissal took effect on 21 October 2024. I am satisfied on the evidence of the Applicant that she commenced employment on 5 July 2023. This is a continuous period of employment of more than 12 months. No matter the size of the Respondent, it is apparent that the Applicant has completed a period of employment of at least the minimum employment period.
I am satisfied that the sum of the Applicant’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold. The Applicant’s salary at the time of dismissal was $687 per week, well below the current high-income threshold.
Section 385 of the Act sets out what constitutes an unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Section 386 of the Act sets out the meaning of dismissed:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. …”
With regard to s.385(a), s.386 of the Act sets out the meaning of dismissed. It is apparent on the evidence that the Applicant was terminated on the employer’s initiative.
With regard to s.385(c) of the Act, there is no evidence as to the size of the Respondent. Therefore, the Small Business Fair Dismissal Code is not relevant.
With regard to s.385(d) of the Act, there is no suggestion that the Applicant’s dismissal was a case of genuine redundancy.
The Evidence
The Applicant commenced her part-time employment with AMPM Cleaning Pty Ltd on 5 July 2023. Her employment was abruptly terminated on 20 October 2024, without prior notice or explanation. Throughout her employment, the Applicant did not receive any payslips or superannuation contributions, despite submitting her superannuation details on 6 July 2023. She raised concerns about these issues multiple times by text and email, but her inquiries were largely ignored.
On 20 October 2024, The Applicant received an email from Mr. Nigel Carroll, General Manager of AMPM Cleaning Pty Ltd, informing her of her termination effective immediately. The email mentioned that she would receive 2.75% holiday pay over the next three weeks and that her superannuation would be paid when the company received payment. The email relevantly read:
Your time at the Gantry has come to an end, if you returned calls it didn't have to happen this way.
You will be paid 2.75% week's holiday pay over the next 3 weeks, super will be paid when we get paid shortly.
The next quarter of super will be paid when BAS is submitted to the ATO.
[Emphasis added]
However, the Applicant asserted that this termination did not comply with the minimum notice period required by law.
Following her termination, The Applicant sent an email on 21 October 2024, requesting an explanation for her dismissal and inquiring about her superannuation and payslips. She emphasized the importance of payslips for tracking payments and taxes and highlighted the lack of response from her employer regarding her previous requests.
The Applicant has obtained new employment, however that employment is for only 8 to 12 hours a week at a rate of approximately $25 per hour.
The Applicant’s evidence was uncontested, however I have no reason to doubt her testimony.
I must consider whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
Was the dismissal unfair?
Section 387(a) – whether there was a valid reason for the dismissal related to the person’s capacity or conduct
As the Respondent failed to appear at the hearing, it is unclear as to what exactly was the reason for the Applicants dismissal. The reason for the Applicants dismissal was not explicitly stated in the termination email she received from Mr Carroll, General Manager of AMPM Cleaning Pty Ltd. The email simply informed her that her "time at the Gantry has come to an end" and mentioned that if she had returned calls, "it didn't have to happen this way." This suggests that the dismissal may have been related to communication issues, but no specific reason was provided.
The Applicant expressed her concerns about the lack of prior notice or explanation for her termination in her application to the Fair Work Commission. She also mentioned that she was unsure if her inquiries about superannuation and payslips were a factor in her dismissal.
I am not satisfied that the Applicant had engaged in any form of misconduct, nor am I satisfied that there was any poor performance on the part of the Applicant.
In conclusion, I am not satisfied that there is a valid reason for the dismissal of the Applicant. There is not a sound, defensible or well-founded reason for dismissal.[1] This weigh towards a finding that the dismissal was unfair.
Section 387(b) – whether the person was notified of that reason
Notification of the “reason” relates to the “valid reason” for dismissal.[2] I am not satisfied that there is a valid reason for the dismissal in this case. There was notification of the dismissal, albeit in a vague email form issued late at night.
This is a neutral consideration.
Section 387(c) – whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.[3] It is apparent that there is no valid reason for the dismissal and so this is not a matter which is relevant. Although again, in the event that I was wrong on the question of valid reason, it is apparent that there was no opportunity given to the Applicant to respond before the decision to terminate her employment was made. This factor weighs in favour of the Applicant.
Section 387(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
There was no request for a support person by the Applicant. This is a neutral consideration.
Section 387(e) – if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal
As stated above, I am not satisfied that the Applicant’s performance was unsatisfactory as it is unclear from the evidence whether this is a reason the Respondent relied upon for her dismissal. This is a neutral consideration.
Section 387(f) and (g) – 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 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
The Applicant did not address this issue and as such it is a neutral consideration.
Section 387(h) – any other matters that the FWC considers relevant
The impact of the dismissal on the Applicant's personal and professional life should be considered. As a part-time employee on a student visa, the Applicant relied on her income to support herself and meet visa requirements. The sudden and unexplained termination of her employment has likely caused significant financial and emotional distress, further exacerbating the harshness of the dismissal.
This is a relevant consideration and weighs towards a finding of unfairness.
Conclusion
Taking into account all of the factors above, the factors all either weigh towards a finding of unfairness or are neutral considerations. There are no considerations weighing towards a finding that the dismissal was fair. Taking into account all of the matters set out above, I am satisfied that the dismissal was unjust as the employee was not provided with a valid reason for her dismissal and was not provided with an opportunity to respond. To date the Respondent has still failed to provide the Applicant with adequate reasons as to why she was dismissed.
REMEDY
The relevant provisions of the Act pertaining to remedy are contained in s.390 of the Act:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case. Note: Division 5 deals with procedural matters such as applications for remedies.”
It is also necessary to consider the Objects of Part 3-2 of the Act, especially s.381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy, and that compensation is a secondary consideration if reinstatement is not appropriate.
In this matter, the Applicant does not seek reinstatement. It is clear that the Applicants relationship with the organisation has broken down and that reinstatement would not be appropriate. Further, the Applicant has found new employment. Having taken that into account, I agree that reinstatement in the circumstances of this case is not an appropriate remedy.
Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.
The Act provides for compensation as a remedy for unfair dismissal:
“392 Remedy—compensation
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), the FWC 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 the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
The Applicant has lost remuneration as a result of the dismissal. There is no reason apparent that compensation should not be awarded. In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.
In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392(2) of the Act as set out above. No one matter is paramount, but regard must still be had to each of them.[4]
The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan[5] and I will follow that approach in determining this matter.
The effect of the order on the validity of the employer’s enterprise – s.392(2)(a)
There was no submission that there would be any effect of the order on the viability of the employer’s enterprise.
The length of the person’s service with the employer – s.392(2)(b)
The Applicant’s period of employment was approximately 15 months. The Applicant’s length of service does not weigh in favour of reducing or increasing the amount of compensation ordered.
Section 392(2)(c) - the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed
The assessment of the length of continued employment is a discretionary decision. It appears the Respondent raised one minor issue with the Applicant during the course of her employment. This was made clear in an email on 15 November 2024, after her dismissal had taken place.
I consider the Applicant’s employment would have continued for a further 2 months, had it not been terminated. The remuneration received in those 2 months would have been $5,496.00.
Mitigation/Remuneration Earned – s.392(2)(d) and (e)
The Applicant mitigated her loss and conceded that she has been working 8-12 hours a week at $25.00 an hour, earning around $250.00 per week since her dismissal. That mitigation reduces the compensation figure to $440.00 per week for 8-weeks, which comes to a total of $3,520.00 (the Compensation Payment).
Other Matters Relevant – 392(2)(g)
The Applicant did not apparently receive any pay in lieu of notice. Had notice been given, the Applicant should have been paid two weeks, as she was employed from July 2023 until October 2024.
The Applicant also sought the following:
1. Superannuation: My employer has failed to pay my superannuation contributions, despite numerous discussions on this matter. The first discussion took place in March 2024, and I followed up with an email on 24th September 2024. However, no action was taken, and my superannuation remains unpaid.
2. Annual Leave Loading: I am seeking compensation for my annual leave loading, which should have been paid out as part of my entitlements.
…
4. Pay Slips: Throughout my employment, my employer failed to provide me with pay slips, which is a legal requirement when wages are paid. This not only breaches my rights but also makes it difficult to track my earnings and entitlements.
The above outcomes sought should be pursued in a different, and appropriate, forum.
Conclusion and order as to remedy
I consider that reinstatement is not an appropriate remedy and that an award of compensation is appropriate. While I estimate the Applicant would have received at least a further two months remuneration had she not been terminated, that amount is reduced by mitigation.
I make no deduction for contingencies, consider the impact of taxation on the amount needs no accommodation, and note the Compensation Payment will be subject to the deduction of taxation. The Compensation Payment is below the compensation cap (s. 392(5) and (6)).
The Compensation Payment, less any required deduction in taxation, is to be made within 21 days of this decision. I consider that such a result satisfies the ‘fair go all round’ test in s 381(2) of the Act.
Taking into account all the circumstances, I consider an order of $3,520.00 gross, subject to the deduction of taxation, to be the appropriate order as to compensation. An Order will issue with this decision.
DEPUTY PRESIDENT
Appearances:
Ms N Chaidechhirun, the Applicant.
Hearing details:
6 February 2025.
10AM.
Sydney.
[1] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].
[2] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].
[3] Ibid.
[4] Tempo Services Limited v Klooger and Others PR953337 at [22].
[5] [2011] FWAFB 1080.
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