Scott Talbot v Olivers Earthmoving Pty Ltd T/A Olivers Earthmoving

[2014] FWC 5961

[2014] FWC 5961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Talbot
v
Olivers Earthmoving Pty Ltd T/A Olivers Earthmoving
(U2014/5769)

COMMISSIONER BLAIR MELBOURNE, 28 AUGUST 2014

Application for relief from unfair dismissal.

[1] This mater is an application made under s.394 of the Fair Work Act 2009 (the Act) by Mr Scott Talbot (the Applicant) alleging that his termination was harsh, unjust and unreasonable. The respondent to the application is Olivers Earthmoving Pty Ltd t/as Olivers Earthmoving (the Respondent). This matter was conciliated on 5 May 2014 but was not settled.

[2] The matter was set down for arbitration in Brisbane on 22 August 2014. Neither party was represented. The Applicant represented himself and Mr Austin represented the Respondent. The following decision (now edited) was handed down in transcript at the conclusion of the hearing.

[3] On the balance of probabilities, the Commission is satisfied that although it may not have been the intention of Mr Austin or the Respondent to terminate the services of the Applicant, the effect of the words that were said gave the Applicant the impression that he had been terminated.

[4] The Applicant’s view is endorsed, and the Commission agrees by the following events, that there would be constant text messages on a Sunday advising what work would be available the next week and it appears that they ceased on 9 March 2014, two days after the Applicant believes he was terminated. The Applicant then received his annual leave, paid on Monday, 10 March. This also confirmed his view that he had been terminated.

[5] Therefore, the Commission would determine that there was a termination at the instigation of the Respondent. Although that may not have been its intention, that was its effect.

[6] The Commission would also determine that there was not a valid reason for the termination

[7] When considering whether the termination was harsh, unjust or unreasonable the Commission must rely upon s.387 of the Act.

[8] Section 387 of the Act states:

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

[9] The Commission is of the view that the termination was harsh, unjust and unreasonable.

[10] Reinstatement is impractical. Therefore, the Commission turns its attention to the issue of compensation. The issue of compensation is dealt with under section 392(2) of the Act

[11] Section 392 of the Act states:

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.

[12] In relation to s.392(2)(b), the Applicant commenced sometime in October 2011 and his last day was 7 March 2014.

[13] In relation to s.392(2)(d), the Applicant commenced work through an agency for approximately two to three weeks and then found permanent employment.

[14] In relation to s.392(2)(e), the Applicant earned $32,359 for the 24 weeks since the dismissal.

[15] Finally, in relation to s.392(2)(c), the Commission will award five weeks’ pay, which comes to $6650 because it does not believe that the Applicant’s employment would have lasted any more than five weeks, based on the Respondent’s submissions.

[16] Accordingly, the Commission orders that $6650, less the appropriate tax, be paid within seven days of today, 22 August 2014.

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