Paul Parker v Sahib Transport Pty Ltd

[2013] FWC 6882

[2013] FWC 6882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Parker
v
Sahib Transport Pty Ltd
(U2013/8929)

COMMISSIONER BLAIR MELBOURNE, 13 SEPTEMBER 2013

S.365 - Application for relief from unfair dismissal.

[1] This decision, handed down in transcript (now edited), arises out of an application made under s.394 of the Fair Work Act 2009 (the Act) by Mr Paul Parker (the Applicant) against Sahib Transport Pty Ltd (the Respondent).

[2] The Applicant represented himself and Mr Gupri Sangha represented the Respondent at the hearing.

[3] The matter was first dealt with by conciliators of the Fair Work Commission (the Commission) in conciliation on Tuesday 28 May 2013; however, the matter was not resolved. The matter then proceeded to arbitration and was heard by the Commission on 4 September 2013.

[4] The Applicant commenced employment on approximately Friday 31 August 2012 and was terminated on Tuesday 16 April 2013.

[5] The Respondent has not complied with the directions and has not provided any material in response to the application made by the Applicant. The Applicant complied with the directions and provided the materials in support of his application and a copy of those materials were provided to the Respondent.

[6] It's important to note that the Respondent alleges that the Applicant was terminated due to a downturn in work.

[7] The Commission has serious concerns about a letter dated Tuesday 9 April 2013, which the Commission assumed was signed by the Applicant because a signature appears under a sentence that states “I, Paul Parker, understand and agree to the above terms and wages.” It is actually signed by the Respondent and addressed to the Applicant, according to the Respondent. The letter states :

“As discussed Sahib Transport Pty Ltd offer you the following agreement.

You will be paid 0.42 cents per kilometre plus your Superannuation. You will also receive a sum of $30.00 for every load and unload you do outside the Depot to Depot work.

In order to terminate your employment with Sahib Transport Pty Ltd we require notice in writing of two weeks.”

[8] On Friday 12 April 2013 a letter was addressed to the Applicant, which states as follows:

“Paul,

Due to the down turn in business Sahib Transport cannot fulfil your request for more money and Km. So unfortunately as of the above date we will no longer need your services as the Interstate MC driver. We thank you for your service and wish you luck in your future job.

Regards

Gurpreet Sangha

Managing Director”

[9] There is a signature that appears in between “Regards” and “Gurpreet Sangha”. Mr Sangha states that it is not his signature and he doesn't know whose signature it is, but acknowledged that it is on the Respondent’s letterhead and it alleges to terminate the services of the Respondent as of Friday 12 April 2013 due to a down turn in business.

[10] However, the Applicant’s statement states that on Sunday 14 April 2013 he attended a meeting with Mr Sangha and there were issues discussed regarding an alleged 50 kilometre extra paid to the Applicant. The Applicant alleges that he didn't understand what Mr Sangha was talking about. Mr Sangha says that he didn't agree to pay 47 cents a kilometre and it was misinterpreted.

[11] The Applicant states that on the same date he was then advised to take his motor lorry to AB Electrical for repairs. The Applicant states that on Monday 15 April 2013 he drove the prime mover to AB Electrical as instructed. Whilst there he received a text message from Mr James McDermott, who was the Line Haul manager of the Respondent, stating that wanted to talk to the Applicant.

[12] At about 4.30pm on Monday 15 April 2013, the Applicant arrived back at the Laverton North depot. Mr McDermott approached him and said, "I've been informed by Sunny," that is Mr Sangha, "to tell you that you have to take all your belongings out of the truck." The Applicant states that he was shocked, "Because I assumed I had done something wrong and people only get asked to remove their belongings from the truck when they are being sacked. I replied and said, You'd better have it writing."

[13] At approximately 4.42pm on Monday 15 April 2013, the Applicant states that he texted Mr McDermott and explained that the Respondent was required to provide him with a notice of termination and a separation certificate.

[14] On Tuesday 16 April 2013, a conversation is alleged to have occurred between Mr Sangha and the Applicant where it's been said that Mr Sangha said, "I have no problem with your work but, unfortunately, we couldn't resolve our pay dispute. Just go and see James, please."

[15] Now, that's some four days after a letter allegedly purporting to terminate the services of the Applicant due to a downturn in the business. The Applicant has sworn his statement under oath. The Respondent has no documents to support his assertions when questioned by the Commission about the Applicant being counselled, warned about his work performance. The Respondent does mention alleged discussions regarding 42 cents and 47 cents and whether the Applicant was a casual employee or a full time employee.

[16] The arguments by the Respondent, to some degree to the Commission, are somewhat irrelevant because they don't address the issues raised by the Applicant in his outline of evidence and in his witness statement.

[17] Given the above, the Commission is satisfied that there was a termination at the instigation of the employer and that termination occurred either by way of correspondence, dated Friday 12 April 2013, that Mr Sangha says he didn't sign, or it occurred in a conversation held on Tuesday, 16 April 2013. Either way, the Commission is satisfied that the termination was at the instigation of the employer.

[18] The Commission, therefore, given the conflicting evidence, turns its attention to section 387 of the Act, Criteria for Considering Harshness et cetera. Section 387 of the Act states as follows:

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.

[19] In relation to (a) the Commission is satisfied that there is not a valid reason for the termination of the Applicant’s services.

[20] In relation to (b), most certainly, the Applicant as of Monday 16 April 2013 was not aware of the contents of the letter dated Friday 12 April 2013, but was aware that at a meeting on 16 April 2013, he was being terminated.

[21] In relation to (c), the Commission is satisfied that no opportunity was provided to the Applicant.

[22] In relation to (d) there's been no material put to the Commission that would indicate that the Applicant was provided with an opportunity to have a support person.

[23] In relation to (e) the Commission is not satisfied that the Applicant was cautioned or warned about any work performance and spoken to about his performance.

[24] In relation to (f), the Commission understands that the Respondent is a small company. The size of the company would impact upon the procedures followed in effecting the dismissal; however, they could have obtained advice from an appropriate employer organisation.

[25] In relation to (g), the Commission is satisfied that even if there was a dedicated human resource management person it would not have affected any outcome in relation to the termination.

[26] Having determined the above in relation to section 387 of the Act, the Commission then turns it mind to remedy.

[27] The Applicant seeks to be reinstated to the Respondent. Mr Sangha, apparently in some conversation, did offer the Applicant some casual work, but the Applicant believes that he was a full time employee. The Commission does not believe that reinstatement is an option, given the conduct of the Respondent in this matter.

[28] Therefore, the Commission would turn its mind to the issue of compensation. Section 392 of the Act states as follows:

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.

[29] In relation to (a), the Commission has taken that into account and listened to the Respondent very carefully about being a small business.

[30] In relation to (b), the Applicant had marginally more than eight months service.

[31] In relation to (c), given the relationship and the way that it was going, there may not have been any more than possibly a further 10 week period of employment for the Applicant.

[32] In relation to (d), the Applicant has told the Commission that he has received approximately $10,000, which the Commission believes to be an honest assessment between the termination of employment and now.

[33] In relation to (e), the Commission has already addressed that.

[34] In relation to (f), the Applicant has indicated in his submissions that he has sought employment and worked a period of casual employment. That is how the $10,000 was earned.

[35] In relation to (g) the Commission believes that no other matters are relevant.

[36] The Commission has indicated to the Applicant that it believes that the Applicant’s employment probably would not have lasted any more than a 10 week period. The Commission accepts that the Respondent states that on average the Applicant probably earned about $1400 gross per week and that that amount fluctuated. For example, Christmas time would be a busy time. Taking $1400 gross a week, multiplied by the expectation that there would possibly be no more than 10 weeks’ more work, that comes to a total of $14,000. The Applicant has already earned $10,000 so, taking into account the effect of the order on the viability of the Respondent, the Commission will deduct that already $10,000 earned from the $14,000 expected to be earned.

[37] Therefore, the Commission orders that the Respondent pay to the Applicant the sum of $4000 gross within seven days.

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<Price code C, PR541680>