Paul Roberts v Fraser-Scott Developments Pty Ltd (Receivers and Managers Appointed) (In Liquidation)

[2016] FWC 2704

[2016] FWC 2704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Roberts
v
Fraser-Scott Developments Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
(U2015/16528)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Paul Roberts was employed by Fraser-Scott Developments Pty Ltd (Receivers and Managers Appointed) (In Liquidation) from 10 September 2014 until 27 November 2015. He alleged he was unfairly dismissed. Fraser-Scott dismissed Mr Roberts for serious misconduct. It alleged that he taken stock without paying for it.

[2] On 3 April 2012, Mr Justin Walsh was appointed the receiver and manager of Fraser-Scott. On 11 April 2012, the company was wound up in insolvency and Mr Darryl Kirk was appointed its liquidator. On 5 October 2012, the Federal Court ordered that the company be wound up in insolvency. Until 10 February 2016, the Boathouse Tavern, the company in liquidation, operated the business where Mr Roberts worked. That business was sold on 10 February 2016.

[3] Neither the receiver and manager or the liquidator filed any material in opposition to the application and the receiver and manager advised that he did not seek to be heard on the application and the liquidator advised that he did not oppose the application.

Was the termination of employment harsh, unjust or unreasonable?

[4] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following.

Whether there was a valid reason for the dismissal related to Mr Roberts’ capacity or conduct (including its effect on the safety and welfare of other employees): s.387(a)

[5] Mr Roberts was dismissed for serious misconduct. No evidence was called by Fraser-Scott to support the allegations. Mr Roberts denied any misconduct. In circumstances were the employer relies on the employee’s conduct to justify dismissal the Commission must be satisfied that the conduct occurred. I am unable to be satisfied that Mr Roberts did, as was alleged, as there is no evidence before the Commission to support such a finding. I am therefore satisfied that there was no valid reason for the termination of Mr Roberts’ employment.

Whether Mr Roberts was notified of that reason: s.387(b)

[6] As there was no valid reason, Mr Roberts could not have been notified of it.

Whether Mr Roberts was given an opportunity to respond to any reason related to the capacity or conduct of the person: s.387(c)

[7] As there was no valid reason for the dismissal, Mr Roberts cannot have been given an opportunity to respond.

Any unreasonable refusal by the employer to allow Mr Roberts to have a support person present to assist at any discussions relating to dismissal: s.387(d)

[8] Mr Roberts gave evidence that he was not permitted to have a support person with him.

If the dismissal related to unsatisfactory performance—whether Mr Roberts had been warned about that unsatisfactory performance before the dismissal: s.387(e)

[9] This criterion is not relevant as Mr Roberts was not terminated for performance issues.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.387(f)

[10] There was no evidence or submission that the size of the enterprise had any impact on the procedures followed.

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: s.387(g)

[11] There was no evidence or submission about whether the employer had human resources management specialists or expertise.

Any other matters that the Commission considers relevant: s.387(h)

[12] Mr Roberts was terminated without notice. He had no previous warnings or incidents.

Conclusion

[13] I find that the dismissal of Mr Roberts was unfair. There was no valid reason to dismiss him and he was denied procedural fairness.

Remedy

[14] Mr Roberts is seeking reinstatement of his employment. Further Mr Roberts sought a payment of five months wages, being the time from his dismissal to the present date, because he has struggled to find work and will continue to struggle to find work because his reputation has been tarnished. He further wants the staff at his work place told that he had been proven innocent.

[15] The business where Mr Roberts worked has been sold and the company is in liquidation. There is no position with the company to which he could be reinstated. I am not able to make orders that the new owner offer him employment. I therefore find that reinstatement is not appropriate in these circumstances.

[16] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following.

The effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[17] There was no evidence called in relation to this criterion. I note however the company is being wound up.

The length of Mr Roberts’ service with the employer: s.392(2)(b)

[18] Mr Roberts was employed for just over a year as a casual employee. This is not a long period of service and there is no need to make any adjustment to the amount of compensation order in these circumstances.

The remuneration that Mr Roberts would have received, or would have been likely to receive, if he had not been dismissed: s.392(2)(c)

[19] Mr Roberts would have continued working for the business at least until the business was sold on 10 February 2016. At that point, his employer would have terminated his employment. Whether he would have been offered employment by the new business owner and on what terms was a matter for the new owner.

[20] Mr Roberts advised that he was paid $20 an hour and he worked 38 plus hours per week and was paid overtime and penalty rates. His last pay was $928 and his wage varied from week to week. He has sought compensation based on his last pay and no submission was made that this was not an appropriate basis to calculate the compensation. If he had remained in employment until the business was sold, he would have been employed for a further 11 weeks and two days. He therefore would have earned $10,579.20.

The efforts of Mr Roberts (if any) to mitigate the loss suffered because of the dismissal: s.392(2)(d)

[21] Mr Roberts submitted that he struggled to find work because of the false allegations that had led to his dismissal. He said he had attempted to find work through job centres but had been unsuccessful. Given there was no submission to the contrary, I am satisfied that Mr Roberts took reasonable steps to mitigate his loss.

The amount of any remuneration earned by Mr Roberts from employment or other work during the period between the dismissal and the making of the order for compensation: s392(2)(e)

[22] Mr Roberts did not earn any income from employment or other work in this period so no adjustment is necessary.

The amount of any income reasonably likely to be so earned by Mr Roberts during the period between the making of the order for compensation and the actual compensation: s.392(2)(f)

[23] Given my decision this criterion is irrelevant.

Any other matter that the Commission considers relevant: s392(2)(g)

I am not able to award any compensation for shock, distress or humiliation or other analogous hurt caused by the manner of Mr Roberts’ dismissal. However, I am able to have regard to the impact the accusation has had on Mr Robert’s ability to find work after the business was sold. The amount of compensation can be adjusted for contingencies. In this case, I consider it is appropriate to adjust the amount to have regard to the prospect that but for the dismissal, Mr Roberts may have been offered work by the new owner or that he may have been successful in gaining new employment if he had not been dismissed for misconduct. I will therefore increase the amount of compensation by 30% to compensate Mr Roberts for loss of income beyond the sale of the business.

Conclusion

[8] I will therefore order that Fraser-Scott Developments Pty Ltd (Receivers and Managers Appointed) (In Liquidation) pay to Mr Roberts $13,752.96 plus and additional $1,306.53 to his nominated superannuation fund within 14 days of the making of this order.

DEPUTY PRESIDENT

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