Shane Withers v S & J Hire Pty Ltd

[2011] FWA 2556

[2011] FWA 2556

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Withers
v
S & J Hire Pty Ltd
(U2011/5084)

Karl Peterson
v
S & J Hire Pty Ltd
(U2011/5086)

COMMISSIONER RYAN MELBOURNE, 29 APRIL 2011

Termination of employment - respondent in liquidation - compensation ordered.

[1] Applications for an Unfair Dismissal Remedy were filed by both Mr Shane Withers and Mr Karl Peterson (the Applicants) on 15 February 2011 after both were dismissed on 1 February 2011 from their employment with S & J Hire Pty Ltd (the Respondent).

[2] A conference was listed for 16 March 2011 before a Conciliator. The notice of listing for this conference was given to the Respondent on 22 February 2011. The Respondent failed to attend the conference on 16 March 2011.

[3] The Applicants applied to Fair Work Australia on 17 March for an Expedited Hearing of their applications. That application was heard by SDP Acton on 25 March 2011. The Respondent did not attend that hearing.

[4] Directions were issued by Fair Work Australia on 25 March 2011which required the Applicant to file and serve the material it wished to rely on by noon on 1 April 2011 and the Respondent to file and serve the material it wished to rely on by noon on 15 April 2011. The Applicants complied with the directions and the Respondent did not. On 15 April 2011 the Applicants applied for a Non Compliance Conference/Hearing in the week beginning 18 April 2011. That application was not granted and the Applicants were advised of that on 18 April 2011. On 18 April 2011 a liquidator, Dye & Co. Pty Ltd (the Liquidator) was appointed to the Respondent.

[5] At the hearing of the applications on 29 April 2011 the Applicants appeared and were represented by the Construction, Forestry, Mining and Energy Union (CFMEU). There was no appearance by the Respondent. Mr Wainwright of the CFMEU advised the Tribunal that he had spoken to a representative of the Liquidator who indicated that the Liquidator would not be attending the hearing and that if any orders were issued by the Tribunal then such orders should be sent to the Liquidator.

[6] Both Applicants gave evidence to the Tribunal in support of their applications.

[7] I have considered all of the evidence in these applications and the submissions of the Applicants.

[8] Before considering the merits of the applications I must decide those matters listed in s.396.

[9] The applications in both matters were made within the period required by subsection 394(2).

[10] Each of the applicants is protected from unfair dismissal within the meaning of s.382.

[11] There is no material before me which suggests that the Small Business Fair Dismissal Code applied to the Respondent. If the Small Business Fair Dismissal Code did apply to the Respondent then there is no material before which on which I could be satisfied that the Respondent complied with that Code.

[12] On the evidence of the Applicants and having regard to the submissions of the Applicants I am satisfied that the dismissal in each case was not a genuine redundancy within the meaning of s.389.

Unfair Dismissal - s.385

[13] I am satisfied that each applicant was dismissed within the meaning of s.386.

[14] I have already determined that the Small Business Fair Dismissal Code did not apply.

[15] I am satisfied that each dismissal was not a genuine redundancy.

[16] The issue to be determined is whether the dismissal of each applicant was harsh, unjust or unreasonable.

Criteria for Considering Harshness, etc - s.387

[17] No issues as to the conduct or capacity of each of the applicants was raised with them by the Respondent and on the evidence before me it is clear that the dismissal of each applicant was not related to any reason concerning the Applicants’ conduct or capacity.

[18] There was no unreasonable refusal by the employer to allow each of the Applicants to have a support person present to assist at any discussions relating to the dismissal.

[19] The evidence suggests that the Respondent did not have dedicated human resource management specialists or expertise and that the Respondent was not a large business. However I do not consider that either matter impacted on the procedures followed by the Respondent in the dismissal of the Applicants.

[20] I am satisfied that the dismissal of each applicant was harsh, unjust or unreasonable.

Remedy - s.390

[21] Both the applicants have applied for a remedy of compensation.

[22] In the circumstances of these application where the Respondent is in the process of being liquidated an order for reinstatement is inappropriate and an order for compensation is appropriate in all the circumstances.

Compensation - s.392

[23] Each Applicant had sought in the written submissions filed on 1 April 2011 an amount of compensation “representing a restoration of lost pay”. In oral submissions at the hearing the Applicants amended their claim to compensation to an amount of $2992.50 each. This amount represents a little over 2 weeks pay but well short of 3 weeks pay for each Applicant.

[24] On the evidence before me it is clear that had the Applicants not been dismissed on 1 February 2011 each would have continued to be employed for between 3 weeks and 10 weeks.

[25] I have considered each of the criteria in s.392 and determine that the appropriate amount of compensation for each Applicant is $2992.50.

[26] An order giving effect to this decision will be issued separately.

COMMISSIONER

Appearances:

Mr R Wainwright for the applicants

Hearing details:

2011
Melbourne
29 April

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