Richard Barker v PMD Australia Pty Ltd T/A Production Machinery Development Australia

[2013] FWC 6702

[2013] FWC 6702

FAIR WORK COMMISSION

DECISION

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

Richard Barker
v
PMD Australia Pty Ltd T/A Production Machinery Development Australia
(U2013/9688)

COMMISSIONER STEEL ADELAIDE, 6 SEPTEMBER 2013

Termination of employment - Alleged misconduct.

[1] This matter concerns a claim by the applicant for unfair dismissal by his former employer being an employer that the Small Business Fair Dismissal Code applies to. The Commission finds the employer was a small business employer for those purposes at the time of the dismissal.

[2] The employee was instantly dismissed for alleged misconduct. He was paid his accumulation provisions, time worked and an additional five weeks and two days in lieu of notice and “termination pay”.

[3] The Commission having heard from the parties in conference, their various recollections and explanations of the events in question, has formed the following views as to the application based on that information and a consideration of equity, good conscience and the probability of the events in question.

[4] The applicant failed to follow instructions of the employer in terms of the completion of a normal task by him, despite three separate instructions to do so. In scenario this I prefer the employers version of events.

[5] The applicant was instantly dismissed by the employer for misconduct after the third occasion as described above.

[6] The applicant’s non-performance in the circumstances could not be considered to be serious and wilful misconduct that falls within the “Summary Dismissal” definition of the Small Business Fair Dismissal Code (the Code) as contemplated by s.388 of the Fair Work Act 2009 (the Act). In terms of being an “Other Dismissal” within the code, the applicant did not receive a warning as contemplated by the Code.

[7] The Code specifies the following:

“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.”

[8] Without this process and its requirements the dismissal of the applicant is an unfair dismissal under the Code.

[9] In terms of remedy the Commission has taken into account the receipt by the applicant of five weeks and two days’ pay as payment in lieu of notice and the termination pay at the time of his instant dismissal. The applicant has subsequently retired from work at age sixty-five years and is receiving an aged pension. His service with the employer was in excess of nine years and he intended to work for two more years prior to his dismissal.

[10] Taking all the circumstances into account and the above matters the Commission determines that the remedy for the applicant’s dismissal shall be compensation of an additional payment of four weeks and three days pay at the rate of $885.00 per five day week, less appropriate taxation, to be paid to the applicant within fourteen days of this decision.

[11] On order to this effect will be issued separately.

COMMISSIONER

Appearances:

Mr R Barker in person

Mr K Krieg for the respondent

Hearing details:

2013:

Adelaide

5 September

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