Scott Andrew You v E Group Facilities Management Pty Ltd T/A E Group
[2010] FWA 5517
•23 JULY 2010
[2010] FWA 5517 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Andrew You
v
E Group Facilities Management Pty Ltd T/A E Group
(U2010/306)
COMMISSIONER DEEGAN | CANBERRA, 23 JULY 2010 |
Termination of employment.
[1] This is an application for an unfair dismissal remedy lodged 25 February 2010 by Mr Scott Andrew You in respect of the termination of his employment by E Group Security on 23 February 2010.
[2] The matter was listed for a conciliation conference on 23 March 2010. The employer did not take part in the conciliation conference.
[3] The matter was listed for hearing on 4 June 2010. There was no appearance for the employer at the hearing. At the hearing the applicant was represented by an official of his union, the Liquor, Hospitality and Miscellaneous Union (the LHMU).
[4] The matter proceeded in the absence of the employer. The applicant had filed a statement 1 setting out the evidence upon which he relied. One other witness, Ms Kim Reynolds, was called to give evidence on the applicant’s behalf.
[5] It was the applicant’s evidence that from November 2007 he was employed as a security officer, on a part-time basis, by the company holding the security contract at the Penrith Panthers Leagues Club (PPLC). In that position he worked 15 hours each week. When that firm’s contract with PPLC was not renewed he gained employment with the new security contractor E Group Security. It was the applicant’s evidence that he had contacted E Group Security by fax seeking employment and had been invited for an interview.
[6] According to the applicant at the interview he was told by Simon Smith, Operations Manager for E Group, that he could commence work with E Group on 28 March 2008 with the same status, working the same hours and at the same locations as he had with his previous employer. He was issued with two shirts, a lanyard, a cap and a jacket by Mr Smith. All the uniform apparel carried the E Group logo.
[7] The applicant stated that his hours remained at 15 per week for the first three to four months of his employment but then began to vary. As they totalled 30 each fortnight they remained acceptable to him. It was his evidence that his roster was advised to him each week by the E Group rostering officer. He was not required to contact E Group for this purpose.
[8] On 20 November 2009 the applicant was working at PPLC when he was involved in an incident with an abusive patron. According to the applicant’s evidence, after the incident he was approached by a member of the PPLC in-house security who verbally abused him, accusing him of putting her “in harm’s way” by his actions in relation to the incident with the patron. He was distraught as a result of the abuse and asked for the duty manager and security supervisor to be called. Because of his condition the security supervisor told him to go home. The next day he was informed by the E Group Operations Manager that the PPLC duty manager had decided he was not to return to work at the club. He was, however, offered shifts at a hospital and a hotel. He worked his last shift for the respondent at the hotel on 5 December 2009.
[9] When the applicant did not receive his roster for the following week he contacted E Group and was informed that there was no work available, but he would be contacted as soon as work became available.
[10] The applicant regularly enquired of E Group about work and was advised none was available and to call again the following week. His union attempted to resolve the matter on his behalf through discussions with the respondent in December 2009 and January 2010. The respondent continued to claim that work would be offered as soon available. In February 2010 he saw security positions were being advertised by E Group despite the fact that he had been advised that there was no work available. He made further enquiries but was advised that the only available work was on the Central Coast. Despite this the applicant noted security positions being advertised by E Group that were in locations where he was available to work.
[11] The applicant considered that the actions of his employer amounted to the termination of his employment.
[12] Evidence given by the applicant at the hearing was that he generally earned about $315 per week from his position with E Group and was unable to find other suitable work until 6 March 2010, when he commenced employment with another security firm. His employment opportunities were restricted as he suffered from both rheumatoid and osteoarthritis and was in receipt of a disability pension.
[13] The evidence of Ms Reynolds was that she was a member at PPLC and a friend of the applicant, whom she had known for over 20 years. It was her evidence that she regularly attended PPLC on Friday and Saturday nights and often saw the applicant there dressed in an E Group Security uniform.
The employer
[14] The applicant maintained that he was employed by E Group Security. It was this employer he had approached seeking work and he was employed by Mr Simon Smith who purported to be the Operations Manager for E Group Security. In March 2009 he had sought from, and was issued with, a reference necessary to retain his security licence by Glen Lynch, Operations Account Manager. This reference was annexed to the applicant’s statement and was on E Group letterhead with the words “E Group Security” directly under the E Group name. The reference referred to the applicant as being an employee and providing “this firm” with a high level of commitment, among other comments directed at attesting to his suitability to work in the security industry.
[15] When the applicant lodged his application seeking a remedy for unfair dismissal, the employer he nominated, “E Group Security”, was advised of the application.
[16] The matter was listed for conciliation. The LHMU, on the applicant’s behalf, sought the consent of E Group (through Mr Simon Smith) to have the scheduled telephone conference converted to a face-to-face conference. A response was received from Sami Chamoun indicating that E Group required evidence the applicant was employed by it as the firm did “not have the time or resources to entertain claims until we have evidence staff was actually employed by our firm.” In response, the LHMU provided the applicant’s group certificate for the previous financial year and a photograph of his E Group uniform. The emails 2 indicating this exchange were tendered in evidence at the hearing.
[17] On 18 March 2010 the employer E Group was again notified by Fair Work Australia (FWA) that the application for a remedy for unfair dismissal was listed for a conciliation conference on 23 March. An email was sent to FWA from Sami Chamoun of E Group in response to the notice of listing indicating that the applicant was not employed by “our firm E Group Security”. The email trail shows that the FWA notice had been forwarded to Sami Chamoun by Mr Simon Smith.
[18] Both the LHMU and E Group were sent directions for the filing of documents prior to the arbitration on 4 June. The LHMU complied, E Group did not. A further reminder of the arbitration was sent to E Group (Simon Smith) on 1 June 2010. That reminder also notified E Group that in the absence of any appearance or submissions the matter might be determined on the materials before FWA.
[19] After the hearing, E Group was provided with a copy of the transcript by the transcript provider. In response, Sami Chamoun sent to the transcript provider an email indicating that the applicant was not an employee of E Group Security Pty Ltd stating that “(a)ll you have to do is check his payslips.”
[20] On 19 July 2010, the LHMU applied to amend the name of the employer in this matter to E Group Facilities Management Pty Ltd, as this was the name of the employer indicated on the applicant’s group certificate.
[21] The application to amend was listed for hearing on 23 July 2010. Shortly after the notice of listing was issued Sami Chamoun contacted FWA to indicate that neither he nor Mr Smith would be able to attend the hearing of the application. His email queried the necessity for their attendance, suggesting that the situation was clear and that the applicant was employed by E Group Facilities Management Pty Ltd and stating, “(i)s this not simple and straightforward enough to get the application amended.”
[22] At the hearing on 23 July 2010, Mr Acev of the LHMU appeared for the applicant. There was no appearance by any person representing E Group or E Group Facilities Management. I was satisfied that the applicant’s employer had been made aware of the hearing and given an opportunity to attend to indicate any opposition to the application. On the basis of the lack of an appearance and the above email message I accepted that there was no objection to the application. I granted the application to correct the name of the respondent on the application.
[23] I am satisfied that the applicant was employed by E Group Facilities Management (the name on his 2008–2009 Group Certificate). The LHMU provided E Group with a copy of the applicant’s Group Certificate. I am also satisfied that E Group, E Group Security and E Group Facilities Management Pty Ltd are, in fact if not legally, the same entity.
[24] I am satisfied that, from the date this application was filed, the respondent was aware that it employed the applicant and that the applicant was pursuing a remedy for unfair dismissal against it. The respondent’s employee Simon Smith and accountant Maria Cavallaro acknowledged the employment relationship in a series of emails with the LHMU in January 2010, which were tendered by the LHMU in support of the application to amend the name of the respondent. Both these persons were copied into emails subsequently forwarded to FWA by Sami Chamoun, on behalf of E Group.
[25] E Group refused to acknowledge the employment relationship because the application was lodged in the name E Group traded under in the security industry rather than that of the legal entity responsible for making payment to the applicant. The applicant believed that his employer was E Group Security. E Group provided him with uniforms displaying that name. E Group Security is one of the names by which the organisation publicly identifies itself.
[26] In my view, the actions taken by E Group in relation to this application, that is denying the employment relationship and refusing to participate in the proceedings, are not the actions of a responsible employer.
Consideration and conclusion
[27] Although the respondent did not appear at the arbitration of this matter I am satisfied that it received notice of all conferences and hearings and also received the directions issued for the filing of documents for the purposes of the arbitration. The employer received copies of the applicant’s statement, and that of his witness, some weeks in advance of the hearing but chose not to attend to defend the claim. The respondent acknowledged receipt of the transcript of the arbitration proceedings so was in a position to acquaint itself with the matters canvassed at that hearing.
[28] On the unchallenged evidence put for the applicant I am satisfied that there was no valid reason for the dismissal related to the applicant’s capacity or conduct. The applicant was at no time notified of any reason for the dismissal and thus afforded no opportunity to respond to such a reason. No evidence was put to suggest that the respondent at any time unreasonably refused to allow the applicant be assisted by a support person. There is no evidence that the dismissal was related to any unsatisfactory performance by the applicant. On the scant evidence available I am unable to draw any conclusions about the size of the respondent or its access to dedicated human resource management specialists. The respondent did not take the opportunity to claim that any lack of such access was a factor in the procedures by which the dismissal was effected.
[29] In determining this matter I have also taken into account that the respondent allowed the applicant to believe that further work would be offered to him when this was apparently not its intention. The only evidence before me suggests that work suitable for the applicant was being advertised by the respondent but was not offered to the applicant. The applicant was offered no work from 5 December 2009 but was never told that his employment had ended. The applicant reached his own conclusion that he no longer had a position with the respondent only when the evidence of available work not being offered to him could not be denied. This occurred in late February 2010. By 6 March 2010 the applicant, now aware he was no longer employed by E Group had obtained other employment. Had the respondent properly notified the applicant that he was no longer to be employed the applicant may have obtained an alternative position much earlier.
[30] In all the circumstances and particularly as a result of the manner in which the dismissal was effected I find that the termination was harsh, unjust and unreasonable.
Remedy
[31] The applicant has obtained alternative employment and does not seek reinstatement. In those circumstances I am satisfied that reinstatement is not appropriate.
[32] I am satisfied that this is a case where it is appropriate that compensation be awarded. The applicant was unemployed for 13 weeks. He sought to mitigate his loss immediately it was clear that his employment had been terminated. In all the circumstances set out above, although the applicant was employed by the respondent for a period of less than two years, my view is the applicant should be compensated for his loss.
[33] As the evidence was that the applicant was unemployed for a period of 13 weeks, it is my intention to order that the respondent pay to the applicant as compensation for his unfair dismissal, an amount equal to the sum he earned in his position with the respondent in the 13 weeks immediately preceding 21 November 2009 (the day his regular duty at PPLC was terminated). An order to that effect is published separately.
COMMISSIONER
Appearances:
Mr C Acev of the Liquor Hospitality and Miscellaneous Union for the applicant
No appearance for the respondent
Hearing details:
Arbitration
Sydney
4 June 2010
Application to amend
Canberra/Sydney video-conference
23 July 2010
1 Exhibit LHMU 2
2 Exhibit LHMU1
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