Nuri Dogru v Peel Manor House

[2011] FWA 5120

[2011] FWA 5120

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nuri Dogru
v
Peel Manor House
(U2011/5620)

COMMISSIONER WILLIAMS PERTH, 4 AUGUST 2011

Termination of Employment.

[1] This application has been lodged by Mr Dogru who is applying for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The Respondent employer is Peel Manor House.

[2] The application was dealt with by a Fair Work Australia conciliator however the matter was not settled.

Background

[3] The Respondent employer raised the jurisdictional objection that it is a small business employer and the Applicant has not completed the minimum period of employment.

[4] Consequently on 3 May 2011 I wrote to both parties explaining the jurisdictional objection the employer had raised. I directed the parties to provide written submissions dealing with this issue and foreshadowed that, if possible, the matter would be dealt with on the papers.

[5] Neither party complied with those directions.

[6] Subsequently Mr Dogru contacted my chambers by email regarding his final payments from the Respondent. Mr Dogru was advised that he may wish to contact the Fair Work Ombudsman regarding these matters.

[7] On 21 June 2011 the parties were provided with a Notice of Listing advising that the matter was listed for hearing on 3 and 4 August 2011.

[8] Attached were directions requiring the parties to provide written materials in support of their respective cases. Again neither party complied with those directions.

[9] On 4 July 2011 Mr Dogru was contacted by email regarding his non-compliance with those directions. No response to this email has been received.

[10] On Wednesday 3 August 2011 as advised to the parties in the Notice of Listing the hearing commenced at 10:00am. There was no appearance by the Applicant or on his behalf. Mr McManus, a Director of Peel Manor House appeared for the Respondent. I proceeded with the hearing and at the conclusion of that at approximately 10:20am there was still no appearance from the Applicant.

[11] As at the date of this decision there has been no further contact from the Applicant.

[12] Accordingly I will proceed to deal with this matter on the basis of the materials and evidence provided by Mr McManus at the hearing.

The legislation

[13] Section 382 specifies when a person is protected from unfair dismissal as follows:

s. 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.

[14] From the evidence of Mr McManus I accept that at the time of the termination of Mr Dogru, on 1 March 2011, the Respondent employed five full-time employees including the Applicant and a further six casual employees were engaged on a regular and systematic basis. There is no suggestion there is any other related entities. Consequently I am satisfied that the Respondent was, at the time of termination of the Applicant, a Small Business Employer. Consequently the minimum employment period applicable under s.383 is 12 months.

[15] The evidence of Mr McManus is that the Applicant was employed from 10 July 2010 through to and including 1 March 2011. Therefore I am satisfied that the Applicant had not completed 12 months employment with the Respondent. The Applicant has not completed the required minimum period of employment to make an application such as this.

[16] Consequently I find that the Applicant is not protected from unfair dismissal. The Applicant is not entitled to make this application and so on that basis this application will be dismissed for want of jurisdiction.

[17] While this is not strictly necessary, for completeness I will briefly consider the other preliminary matter based on the evidence that was given by Mr McManus.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[18] The effect of section 385 is that if a person’s dismissal was consistent with the Small Business Fair Dismissal Code then that person has not been unfairly dismissed.

[19] S.388 states that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if

(2)(b) The employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

The Small Business Fair Dismissal Code is set out below:

Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[20] In this case the evidence of Mr McManus is that the behaviour of Mr Dogru on or about the 20th of February 2011 amongst other things involved abusive language and threatening behaviour to staff, deliberate damage to or wastage of kitchen stock, refusing to continue working and leaving the premises without permission during a shift.

[21] During subsequent discussions in the following days regarding his behaviour Mr Dogru proposed to Mr McManus that the Respondent enter into an arrangement with Mr Dogru whereby he would continue to be paid by the Respondent but he would not attend for work and would repay to the Respondent the “wages” they paid to him. This arrangement was designed so as to have the appearance that the Applicant was still employed by the Respondent. Mr Dogru apparently proposed this sham arrangement in order to mislead the Department of Immigration as to the length of time he had worked for the Respondent. Mr McManus told Mr Dogru he was not willing to enter into such an arrangement which he viewed as a fraud.

[22] Unsurprisingly Mr McManus viewed Mr Dogru’s conduct as sufficiently serious to justify immediate dismissal.

[23] Consequently I am satisfied for the purposes of s.385 that the dismissal was consistent with the Small Business Fair Dismissal Code.

Conclusion

[24] In summary I find that:

• The Applicant was not protected from unfair dismissal.



• If I am wrong in that conclusion then in any event the dismissal was consistent with the Small Business Fair Dismissal Code and so the Applicant has not been unfairly dismissed.

[25] Consequently this application will be dismissed and an order to this effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

Mr C McManus for the respondent.

Hearing details:

2011

Perth

August 3

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