Ross Weightman v Octeros Cabinets

[2022] FWC 3371

[2022] FWC 3371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ross Weightman
v

Octeros Cabinets

(U2022/9548)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 DECEMBER 2022

Application for an unfair dismissal remedy – Application dismissed.

1. On 26 September 2022, Mr Ross Weightman made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Weightman’s unfair dismissal application is Octeros Cabinets (the Respondent).

1. A telephone conciliation before a Commission staff member was listed to take place on 31 October 2022. In its early attempts to engage with the Respondent, the Commission used contact details outlined in Mr Weightman’s Form F2 – Unfair Dismissal Application (Form F2). Eventually, on 26 October 2022, contact was made with Mr Scott Dwan by telephone. At this time, Mr Dwan confirmed his email address and indicated he would be happy to receive a reminder email from the Commission regarding the requirement for the Respondent to respond to the Form F2. Accordingly, at 2.31pm on 26 October 2022, an email was sent to the nominated email address for the Respondent, attached to which was a letter:

·   Referring to an earlier email sent to the Respondent on 4 October 2022 which had a copy of Mr Weightman’s unfair dismissal application attached;

·   Advising that the Form F3 _ Employer response to unfair dismissal application (Form F3) was overdue and requesting that a completed Form F3 be filed and served as soon as possible; and

·   Requesting the Respondent to confirm its contact details for the purposes of the telephone conciliation or advise the Commission if it did not wish to take part in conciliation.

1. The telephone conciliation did not however ultimately proceed on 31 October 2022 because no one from the Respondent was contactable at the appointed time. As the Respondent did not respond to follow-up correspondence from the Commission, the matter was allocated to me.

1. On 7 November 2022, I caused an email to be sent to Mr Dwan’s nominated email address advising that a Notice of Listing with details of a mention to be held on 9 November 2022, together with Directions setting out when the parties were required to file their material for the further conduct of the unfair dismissal application would be sent to him. When the mention took place before me on 9 November 2022 at 10.00am, Mr Dwan could not be contacted, despite multiple attempts to call him on his mobile telephone number and the landline listed in the Form F2. A voice message was left on Mr Dwan’s mobile number, however the landline was disconnected. The Mention proceeded in the absence of the Respondent. Under the Directions, Mr Weightman was directed to file and serve his material by no later than 3.00pm on 21 November 2022. Mr Weightman complied with the Directions.

1. On 28 November 2022, I conducted a Non-Compliance Hearing in another unfair dismissal application involving the Respondent.[1] Mr Dwan appeared at this and advised that the Respondent had gone into voluntary administration. He agreed to provide my Chambers with the contact details of the Administrator so that the Commission could engage with the Administrator for the future conduct of the file. Contact details were provided for Christopher Baskerville of Jirsch Sutherland Insolvency Solutions and he was sent the relevant materials associated with Mr Weightman’s application.[2] This email, dated 7 December 2022:

a)Outlined that no material had been filed by the Respondent and that the matter was due to be heard at 10.00am on 22 December 2022;

b)Included a request for advice as to the administrator’s intended approach for responding to the unfair dismissal application;

c)Included a caution that in the absence of hearing from the administrator, the hearing listed for 22 December 2022 would proceed having regard to the material before the Commission. 

1. There was no response until 21 December 2022, when Mr Matt Mullen of Grant Thornton advised in an email sent at 10.14am that Graham Killer and Matthew Byrnes of that organisation had been appointed as the joint and several Voluntary Administrators of the Respondent and had just become aware that Mr Weightman’s unfair dismissal claim was listed for hearing on 22 December 2022. The email also outlined:

“The Administrators do not intend to defend Mr Weightman's unfair dismissal claim, but may be able to assist the Commission in relation to the impact that their recent appointment may have on possible remedies available under the Fair Work Act 2009 (Cth). If you consider that their presence will be of assistance, we propose that John Deppe of Grant Thornton appear at the hearing for this purpose.”

1. At 8.34pm on 21 December 2022, Mr Weightman sent an email to my Chambers which outlined the following:

“Good evening DP Clancy,

I’m writing to inform you that im unable to attend the hearing tomorrow due to work commitments,

I have nothing further to add to my application I’d just like to reiterate the below,

Redundancy weeks notice to be paid,
All annual leave to be paid from 2019,
All coinvest (long service ) to be paid.

As I’ve still been unsuccessful in securing another full time foreman position I’ll need to be working through these holidays, I’m sure you understand.

I eagerly await the out come of this hearing and thank you for your time in addressing my case. 

Kind regards

Ross Weightman”

1. The matter proceeded on 22 December 2022. Only Mr Deppe of Grant Thornton appeared. Mr Deppe stated that he was not in a position to comment on the unfair dismissal application but confirmed that the Respondent had gone into voluntary administration on 28 November 2022 and that a fist meeting of creditors had been held on 8 December 2022. Mr Deppe also stated that the administration was at an early stage and the Administrators sought an adjournment until 31 March 2023. It was suggested by Mr Deppe that by this time a decision would be made for the Respondent to either be liquidated or placed under a Deed of Company Arrangement.

1. Mr Deppe said that if the Respondent was liquidated the Fair Entitlements Guarantee (FEGS) safety net scheme would have application.

1. I have had regard to the request made on behalf of the Administrators for an adjournment but have decided not to grant it. In the circumstances, I consider the most appropriate course is for me to determine this application based on the material currently before the Commission. I have adopted this position because:

a)Mr Weightman has not requested an adjournment and in fact, “eagerly” awaits the outcome of the hearing;

b)Mr Weightman stated on 21 December 2022 that he had nothing further to add to his unfair dismissal application beyond reiterating that he sought the payment of “Redundancy weeks notice” and all annual and long service leave;

c)The Administrators advised they are not in a position to comment on the unfair dismissal application and do not intend to defend Mr Weightman's claim of unfair dismissal; and

d)The Administrators only suggested that they may be able to assist the Commission in relation to the impact their appointment may have on possible remedies available.

Initial matters to be considered – s.396 of the Act

1. Mr Weightman’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and I consider there can be no dispute that he is a person protected from unfair dismissal because he had completed the minimum employment period, having been employed full time as a foreman from 14 October 2019 until 9 September 2022, and had an annual rate of earnings ($135,000)[3] that was less than the high income threshold (s.396(b)). Further, as it is not asserted that the Respondent was not a small business employer, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, it has not been claimed and nor does the material before me suggest the dismissal was a case of ‘genuine redundancy’ within the statutory definition of that term (s.396(d)).

Section 385 of the Act – was the dismissal unfair?

1. As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Weightman was dismissed (s.385(a)). Further, as outlined above, this would not appear to be a matter that involves a small business, such that consideration of whether Mr Weightman’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of genuine redundancy within the statutory definition of that term (s.385(d)).

1. This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:

“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.”

1. The unsworn statement of Mr Weightman provided to the Commission outlines the following:

·   On 9 September 2022, Mr Brad Walker, Construction Manager, telephoned Mr Weightman and advised him that he had been made redundant effective immediately due to lack of work.

·   On 10 September 2022, Mr Weightman sent an email to Mr Dwan and Mr Walker inquiring about his employment status as he had not received any written notice of his redundancy.

·   On 11 September 2022, Mr Walker replied to Mr Weightman via text message stating ‘that is correct’ in reference to Mr Weightman’s email enquiry as to whether he had been made redundant. Mr Walker also advised Mr Weightman that he would receive an email at the end of the week outlining his redundancy.

·   Mr Weightman did not receive any such email.

·   On 14 September 2022, Mr Weightman was paid out his annual leave.

·   On approximately 14 September 2022, Mr Weightman sent an email to the Respondent’s Accounts department enquiring about his two weeks’ notice period but did not receive a response.

·   On 27 September 2022, Mr Weightman received his separation certificate via email. The contents of the email stated ‘Please see attached separation certificate’ with no further information regarding payment or the circumstances leading to the redundancy.

·   Mr Weightman sent an email in reply enquiring about his redundancy payment because he did not think it was correct.

·   Ms Samantha Cracknell responded advising that Mr Weightman had been terminated from all systems. Ms Cracknell also advised that Mr Walker had stated that he had had a verbal discussion with Mr Weightman regarding his two weeks’ notice and therefore Mr Weightman had worked his notice period and was not entitled to a notice payment.

·   Mr Weightman sent an email in reply to Ms Cracknell requesting a reconciled account to show that his CBUS, Incolink and CoInvest payments had been paid. He also refuted the claim that Mr Walker had given him verbal notice and that he was aware of the notice period. Mr Weightman also explained that he was not provided anything in writing and his separation certificate was sent almost a month after his alleged notice period and that Mr Walker was copied into this email.

·   On 29 September 2022, Mr Walker telephoned Mr Weightman, but he did not answer.

·   On 4 October 2022, Mr Walker sent an email to Mr Weightman outlining that Mr Weightman was given verbal notice and that Mr Weightman was aware of this because he had asked Mr Walker for a reference.

·   Mr Weightman sent an email in reply to Mr Walker advising him to put everything in writing moving forward. He also outlined the timeline of events and informed Mr Walker that he did not believe the correct procedures were followed nor did he believe his redundancy was valid. Mr Weightman further advised that he lodged an application to the Fair Work Commission.

·   Mr Weightman did not receive any further correspondence from the Respondent.

Consideration

1. Having outlined the criteria in s.387 of the Act, I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.

Was there a valid reason for dismissal relating to Mr Weightman’s capacity or conduct? – s.387(a)

1. Based on the material before the Commission, I am not persuaded there was a valid reason for Mr Weightman’s dismissal related to his capacity or conduct.

Notification of the valid reason – s.387(b)

1. As I am not satisfied there was a valid reason for the dismissal related to Mr Weightman’s capacity or conduct, this factor is not relevant to the present case.[4]

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

1. As I have not found there was a valid reason for the dismissal related to Mr Weightman’s capacity or conduct, this factor is not relevant to the present case.[5]

Unreasonable refusal by the employer to allow a support person – s.387(d)

1. It has not been alleged that there was any unreasonable refusal by the Respondent to allow Mr Weightman to have a support person present to assist in any discussions relating to the dismissal. The factor is therefore not a relevant consideration in the circumstances of this case.

Warnings regarding unsatisfactory performance – s.387(e)

1. Mr Weightman’s dismissal does not appear to have been related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialists/expertise on procedures followed - s.387(g)

1. There is no material before the Commission confirming the size of the Respondent and therefore, I am not in a position to conclude whether or not it has been a relevant factor in this case (s.387(f)). On the material before the Commission, it seems unlikely that the Respondent had dedicated human resources specialists or expertise (s.387(g)). Mr Weightman had contact with at least three colleagues employed by the Respondent in relation to his dismissal but none of them appear to have been a human resources practitioner. I am therefore prepared to conclude there was an absence of dedicated human resources management specialists or expertise and, having regard to the allegations relating to how the dismissal of Mr Weightman was effected (which are discussed further below), this may have had a negative impact on the procedures followed.

Other relevant matters – s.387(h)

1. Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant.

1. I have noted Mr Weightman worked for the Respondent for almost 3 years and that much of what has left Mr Weightman aggrieved is his concern that he was not paid the correct notice entitlement, annual leave loading or CBUS, Incolink and CoInvest contributions.

1. I have also noted that in his unsworn statement, outline of argument and Form F2, Mr Weightman has outlined that he was verbally advised that the Respondent had to reduce staff numbers due to a lack of work. I observe that this is not disputed by the Respondent because during a Non-Compliance Hearing on 28 November 2022 in another unfair dismissal application involving the Respondent which concerned an employee alleging dismissal on 16 September 2022,[6] Mr Dwan stated of the Respondent:

“The whole thing is we were winding all the jobs up, that’s why we put everyone off. We’d finished all our work in Victoria…”[7]

1. A review of the unsworn statement also reveals Mr Weightman’s suggestion that he did not receive written notification of his dismissal on the basis of redundancy beyond Mr Walker replying “that is correct” in an email he sent Mr Weightman on 11 October 2022 responding to Mr Weightman’s enquiry as to whether he had been made redundant.

1. Further, the unsworn statement of Mr Weightman reveals that there is a dispute between the parties on the question of how much advance notice Mr Weightman received of his dismissal due to redundancy. Whereas Mr Dwan stated “We were winding the business up, everyone knew that”[8] and the position of Mr Walker is put as being that Mr Weightman was given advance notice of his redundancy, the various statements of Mr Weightman infer his position is that there was no consultation regarding the decision made by the Respondent to dismiss him on the basis of redundancy.

1. Finally, while the contents of the Form F2 and Mr Weightman’s outline of argument indicate that Mr Weightman believes he could have kept working a little longer by being assigned to other jobs in Melbourne, these are bare allegations and contrary to what was stated by Mr Dwan.

Conclusion

1. I have considered each of the matters specified in s.387 of the Act. While I am satisfied the matters in ss.387(a)-(f) have no relevance to this case, the difficulty I have in determining an outcome for this unfair dismissal application is that when weighing the matters raised in relation to s.387(g) and s.387(h), I merely have competing allegations before me because of the failure of both parties to attend and confirm their accounts of the factual background. This was ultimately their choice, but the consequence of their non-attendance has been that their respective assertions could not be tested.

1. As such, I am left with untested matters and contested bare allegations which are not sufficient for me to be satisfied in relation to s.387(g) and s.387(h). The only reasonable conclusion therefore is that I am not satisfied the dismissal was harsh, unjust or unreasonable based on the material before me.

1. Having dealt with ss.385(a), (c) and (d) in the manner outlined in [12] above and not being satisfied Mr Weightman’s dismissal was harsh, unjust or unreasonable (s.385(b)), I cannot conclude that Mr Weightman was unfairly dismissed. His unfair dismissal application must therefore be dismissed.

1. By way of concluding remarks, I have noted that Mr Weightman has alleged that he was not paid the correct notice entitlement, annual leave loading or Incolink and CoInvest contributions. Mr Weightman should have regard to the FEGS safety net scheme.[9] While unpaid superannuation guarantee contributions cannot be claimed through this scheme, Mr Weightman (subject to satisfying the eligibility criteria and adhering to the prescribed timeframes) may be able to claim:

a)unpaid wages—up to 13 weeks;

b)unpaid annual leave and long service leave;

c)payment in lieu of notice; and

d)redundancy pay.

1. Mr Weightman may therefore wish to liaise with the Administrators regarding the FEGS safety net scheme and additionally, make his own direct enquiries in relation to it.

1. An order dismissing the unfair dismissal application made by Mr Weightman in U2022/9548 will be issued with this Decision.

DEPUTY PRESIDENT

Hearing details:

Melbourne.
22 December.
2022.

[1] Tayfun McMahon v Octeros Cabinets (Vic) Pty Ltd (U2022/9322).

[2] The Form F2, Form F3 Directions dated 7 November 2022, Mr Weightman’s outline of argument and witness statement and the various documents upon which he intended to rely

[3] Unsworn statement of Mr Weightman filed with the Commission.

[4] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 200), [41]: Read v Gordon Square Child Care Centre[2013] FWCFB 762, [46]-[49].

[5] Ibid.

[6] Tayfun McMahon v Octeros Cabinets (Vic) Pty Ltd (U2022/9322).

[7] Ibid, Transcript 28 November 2022 at PN 35.

[8] Ibid, Transcript 28 November 2022 at PN 37.

[9]

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