Shane Berger v United Crib Blocks Construction Pty Ltd

[2017] FWC 3173

[2017] FWC 3173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Berger
v
United Crib Blocks Construction Pty Ltd
(U2016/8892)

DEPUTY PRESIDENT BULL PERTH, 12 JUNE 2017

Application for relief from unfair dismissal. Dismissal held to be unfair, compensation awarded, application for extension of time or to make payments in instalments. Application dismissed.

[1] On 16 March 2017, the Fair Work Commission (Commission) issued decision [2017] FWC 450 which held that Mr Shane Berger (the applicant) had been unfairly dismissed from his position with United Crib Blocks Construction Pty Ltd (the respondent). An order issued with the decision requiring the respondent to pay the applicant the sum of 8 weeks wages ($13,808.21) less the relevant tax, within 21 days of the date of the order.

[2] The 21 day period expired on 6 April 2017.

[3] On 12 April 2017, Mr George Bouhoutsos the respondent’s Director sent an email to the Commission which stated inter alia:

“We are not in a position financially to meet the requirements of the hearing (sic) The weather has affected our business over the last couple of months I am requesting if we could possibly have an extension of time or to organise payment instalments to fulfil are obligations” (sic)

[4] Section 603(2) of the Fair Work Act (2009) (the Act) allows the Commission to vary a decision on application by a person affected by the decision; it is taken that the respondent’s request is pursuant to this section of the Act.

[5] On 18 April 2017, the Commission replied recommending the parties attempt to reach agreement between themselves on a suitable payment arrangement with the applicant to report back to the Commission by 2 May 2017 on the outcome.

[6] The applicant advised the Commission by email on 3 May 2017 that the respondent had not contacted him and no alternative payment arrangements had been made. The Commission then advised the parties via email that a telephone conference would be held 1 and a Notice of Listing was sent to the parties on 4 May 2017 advising that the conference was scheduled for 18 May 2017.

[7] On 18 May 2017, the applicant was available for the telephone conference. Upon contacting Mr Bouhoutsos via phone as per the notice of listing, Mr Bouhoutsos advised he was engaged in a different meeting and was not able to participate in the scheduled conference. Mr Bouhoutsos stated that he was unaware of the conference and requested that the conference be rescheduled the following day. Despite being requested to stay on the line while that request was put to the applicant, the call was disconnected and further attempts to reach Mr Bouhoutsos at the same number were unsuccessful. The applicant advised the Commission that he had sent texts, emails and had phoned Mr Bouhoutsos prior to the telephone conference but had not received any reply.

[8] The Commission then sent an email to the respondent later that day referring to the steps taken by the Commission to address the request. The email noted that the Commission had no detail regarding the respondent’s financial circumstances, no explanation why the respondent had not responded to the applicant’s attempts to discuss a solution and no explanation as to why the respondent was not aware of the scheduled conference. The respondent was invited to provide a response by 26 May 2017.

[9] The respondent emailed the Commission on 26 May 2017 referring to his request to pay in instalments and the response from the applicant which he found ‘immoral’.

[10] The Commission advised the parties via email on 29 May 2017, that a further telephone conference would be scheduled. The Notice of Listing was issued on 29 May 2017, advising the parties that a conference was scheduled for 8 June 2017.

[11] On 8 June 2017 the applicant was contacted and available for the telephone conference however the respondent was not able to be contacted at the contact number set out on the Notice of Listing, despite numerous attempts.

[12] At the conference the applicant stated that despite numerous attempts he had been still been unable to make contact with the respondent to discuss alternative payment arrangements which he was open to.

[13] The respondent emailed the Commission in the afternoon of 8 June 2017 apologising for not attending the conference and requesting it be further rescheduled. No explanation for non-attendance was provided.

[14] It has now been 12 weeks since the order was issued to pay the applicant, within 21 days, the 8 weeks wages being $13,808.21. 2 On the advice of the applicant no payment has been made by the respondent.

[15] The respondent has failed to attend the two telephone conferences scheduled by the Commission without either an explanation or adequate explanation.

[16] Despite the Commission’s recommendation, the respondent has not made itself available to discuss an agreed solution with the applicant. No details regarding the respondent’s financial circumstances have been provided to the Commission, despite the Commission’s request on 18 May to do so by 26 May 2017.

[17] It can be seen from the above that as at today’s date the respondent has not genuinely attempted to advance its application.

[18] The respondent’s application seeking an extension of time to make the payment to the applicant or alternatively to make the payment of $13,808.21 in instalments is dismissed.

DEPUTY PRESIDENT

 1   The Deputy President was now working in Perth

 2   The parties agree that the respondent was on a salary of $90,000 plus superannuation. $90,000 divided by 52.1429 x 8 weeks equals $13,808.21

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