Simon Krygger v Robert Polizzi trading as Summerhill Drafting Service

[2013] FWC 3737

[2013] FWC 3737

The attached document replaces the document previously issued with the above code on 12 June 2013.

The Decision names the first and second correct respondents to the application, as varied by the Order [PR537786] and who are bound by the Decision [2013] FWC 3737 [PR537767].

Also, the name of Counsel acting on behalf of the Applicant has been corrected.

Patti Ladd

Associate to Commissioner Blair

Dated 11 September 2013

[2013] FWC 3737

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Krygger
v
Robert Polizzi trading as Summerhill Drafting Service; and
Summerhill Drafting Service Pty Ltd
(U2013/6313)

COMMISSIONER BLAIR MELBOURNE, 12 JUNE 2013

Application for an unfair dismissal remedy - decision ordering compensation.

[1] This is an application under section 394 of the Fair Work Act 2009 (the Act). Mr Simon Krygger (the Applicant) was represented by Ms Swiney, of Counsel. Robert Polizzi trading as Summerhill Drafting Service (first Respondent) and Summerhill Drafting Services Pty Ltd (second Respondent) (together the Respondent) did not appear at the hearing; however, representatives of the Respondents’ liquidators observed proceedings.

[2] An application was made by the Applicant under s.586 of the Act to add Summerhill Drafting Service Pty Ltd as the second respondent to the application. An Order [PR537786] was made by the Commission which, in part, adds a second respondent to the original application in accordance with that application.

[3] The Commission also amended the name of the first Respondent to be that recorded on the form F3. The name of the first Respondent to the application is Robert Polizzi trading as Summerhill Drafting Service.

[4] The Applicant has presented material explaining why they believe the termination was harsh, unjust and unreasonable.

[5] The only material provided by the Respondent is a form F3. The form F3 states, at point 2, that the reasons for dismissal are that the Applicant is “[a]lways absent, unreliable, never on time, provide agenda explaining the expectations and conditions of the office with neat and casual collared shirt. A small business requires reliable staff. The business is affected from all his sick leave.” Then, at point 3, the Respondent states at the last sentence that, “[d]uring this time I explained my reasons for Simon to be made redundant.” There is, in the Commission’s view, a terrible inconsistency between point 2 and the last sentence of point 3.

[6] In questioning, Mr Krygger says that he was never spoken to or warned or counselled about his work performance or about any other reliability. He does say that there was a period of time where he was ill and had time off, but it appears that was with the consent and understanding of the Respondent.

[7] During the Applicant’s employment, a period of approximately 14 years, there was never any mention of his services being terminated or the possibility of his services being terminated.

[8] The Commission must ask itself one of two questions: was there a valid reason for the termination and if there was a valid reason, whether the termination was harsh, unjust and unreasonable; or if there was no valid reason for the termination.

[9] Based on the material that has been provided to the Commission, the Commission is satisfied that there was a termination at the instigation of the employer and there was not a valid reason for the termination of Mr Krygger in this instance.

[10] Having determined that there was not a valid reason, the Commission does not have to turn its mind to whether the termination was harsh, unjust or unreasonable.

[11] The Applicant is not seeking reinstatement in this matter, but seeking compensation. The maximum compensation under the Act is six months’ pay. However, section 392(2) of the Act states:

In determining an amount for the purposes of an order under subsection (1), 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 -

[12] Ms Swiney, on behalf of the Applicant, indicates that, in her view, the Respondent is solvent and I have no contrary material to say otherwise -

(b) the length of the person’s service with the employer -

[13] The Applicant has approximately 14 years’ service with the Respondent -

(c) the remuneration that the person would have received or would have been likely to receive if the person had not have been dismissed.

[14] The Commission understands that the Applicant was on approximately $1050 per week.

[15] The Applicant commenced employment with a new employer on 20 May 2013. The applicant was terminated by the Respondent on 21 January 2013. During that 16 week period, the Applicant could have earned $16,800.

(d) the efforts of the person, if any, to mitigate the loss suffered by the person because of the dismissal.

[16] The Applicant advises the Commission that he commenced alternative employment on 20 May 2013. One assumes from that that the Applicant had been seeking alternative work.

(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.

[17] The Commission understands that the Applicant has earned or has the potential to earn approximately $5000. That is, he has earned $550 for a small job, but there is some three and a half thousand dollars plus $600 in two invoices that are outstanding which he expects to be paid.

(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 FWA considers relevant.

[18] Given the above, that the amounts the Applicant could have earned was $16,800 and the amount that the Applicant has earned, or possibly earned, that is approximately $5000, the Commission is prepared to order the sum of $11,800 gross be paid within one month from today’s date.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR537767>