Stuart Tait v Nepean Roofing Pty Ltd

[2014] FWC 8406

[2014] FWC 8406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Tait
v
Nepean Roofing Pty Ltd
(U2014/9881)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Stuart Tait was employed by Nepean Roofing Pty Ltd (Nepean Roofing) and its predecessor companies from April 1999 until his employment was terminated on 19 May 2014.

[2] Due to an administrative error at the Commission, the application was served on Mr Michael Fowler of Nepean Roofing and Sheet Metal Pty Ltd. No response to that correspondence was received.

[3] Upon the discovery of this error, I caused the application to be served on Nepean Roofing at its registered office. Nepean Roofing did not, as required by the Fair Work Commission Rules 2013, file a response to the application.

[4] On 5 August 2014, directions were issued to the parties to file and serve material in support of and in opposition to the application. Mr Tait filed material but no material was filed by Nepean Roofing. The matter was listed for hearing on 9 October 2014 and again on 19 November 2014.

[5] The notice of listing was sent to the registered address of Nepean Roofing and the address of the business and the email address of the business.

[6] There was no attendance at the hearing by Nepean Roofing. I was satisfied that Nepean Roofing was on notice of the hearing and proceeded to hear and determine the matter.

[7] Mr Tait gave sworn evidence that on 19 May 2014 he went to attend work as normal. Mr Tait found a note on his front door advising him that someone had taken the work ute. The note said “sorry mate, need your work ute for an early delivery that needs to be done.” While the note was signed Mr Tait did not recognise the signature.

[8] As a result Mr Tait was late for work that day. When he arrived at work Mr Fowler, who was the owner of Nepean Roofing, told him he no longer had a job “because he was going to close the doors.” Mr Fowler made some allegations of wrong doing. Mr Tait denied any wrong doing. Mr Tait was not paid his notice, or his accrued entitlements. Mr Tait said the business continued to operate for the next six weeks.

[9] Mr Tait said that there had been no discussion with him before the day he was dismissed about the business shutting down.

Jurisdiction of the Fair Work Commission

[10] There is no dispute that Mr Tait is a person who was protected from unfair dismissal.

[11] The Fair Work Act 2009 provides that a person has not been unfairly dismissed in cases of genuine redundancy.

[12] Section 385 provides:

S385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[13] A genuine redundancy is defined as follows:

S389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[14] Whilst Mr Tait’s evidence suggests that Nepean Roofing was in financial difficulties, without evidence from Nepean Roofing, I am unable to conclude that Nepean Roofing no longer required Mr Tait’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Mr Tait’s evidence was that the business did not shut down immediately and Mr Fowler had raised other issues with him at the time of his dismissal.

[15] However even if it were established on the evidence that Nepean Roofing no longer required Mr Tait’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise., Nepean Roofing did not comply with its obligations under the Manufacturing and Associated Industries and Occupations Award 2010.

[16] This was clearly not a genuine redundancy as defined in the Fair Work Act 2009. In the absence of any evidence from Nepean Roofing I am unable to find that any of the elements of a genuine redundancy have been established.

[17] I am therefore required to determine if the termination of Mr Tait’s employment was harsh, unjust or unreasonable.

s387(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);

[18] There is no evidence that Mr Tait’s employment was terminated because of any conduct or performance issues. Mr Fowler made certain allegations however there was no evidence to support those allegations and Mr Tait denied doing anything wrong. There is no evidence of any misconduct by Mr Tait and in the absence of any evidence to the contrary I find that there was not a valid reason for the termination of Mr Tait’s employment.

s387(b) whether Mr Tait was notified of that reason;

[19] Given there was no valid reason, Mr Tait could not have been notified of that reason before the decision was taken to terminate his employment. This is a neutral consideration.

s387(c) whether Mr Tait was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[20] Given there was no reason related to Mr Tait’s capacity or conduct, this is a neutral consideration.

s387(d) any unreasonable refusal by the employer to allow Mr Tait to have a support person present to assist at any discussions relating to dismissal;

[21] Mr Tait did not request a support person attend the meeting.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Tait had been warned about that unsatisfactory performance before the dismissal;

[22] There was no evidence that Mr Tait’s employment was terminated for poor performance.

s387(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;

[23] There was no evidence on which I could make any finding in relation to this criterion. However no matter what the size of the business, employees are entitled to be treated respectfully and this did not occur in this case.

s387(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;

[24] There was no evidence on which I could make any findings in relation to this criterion.

s387(h) any other matters that the Fair Work Commission considers relevant.

[25] There are no other relevant considerations.

Conclusion

[26] Mr Tait had worked for this company and its predecessors for 15 years. Despite this long service his employer summarily dismissed him and did not pay him his entitlements. On his last day of work the vehicle he used to transport him to work was taken without any notice to him. Despite this he got himself to work only to be faced with unsubstantiated allegations and dismissal. Even if it were established that Nepean Roofing was a small business its treatment of Mr Tait did not meet the minimum standards required of any employer.

[27] I find that the termination of Mr Tait’s employment was harsh, unjust and unreasonable. This termination was particularly harsh as Mr Tait, a long serving employee, was terminated without warning, without payment in lieu of notice and without the payment of his outstanding entitlements.

Remedy

[28] Mr Tait is not seeking reinstatement of his employment.

[29] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[30] There is no evidence of the impact of any order on the viability of the employer’s business. I do note that on 12 November 2014 an application to wind up Nepean Roofing had been made to the Supreme Court. I also note Mr Tait’s evidence that Nepean Roofing was no longer operating out of the premises he had worked at.

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

[31] Mr Tait had worked for Nepean Roofing and its predecessors for 15 years. This is a long period of employment. This weighs in favour of compensation.

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

[32] Had Mr Tait not been terminated on the 19 May 2014 I consider that he would have remained in employment for a further six weeks. This is when Mr Tait said the business shut its doors. Mr Tait earned $800 per week.

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

[33] Mr Tait obtained another position within a month of the termination of his employment and he is earning more in his current position.

(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;

[34] As Mr Tait is earning more in his current position this criteria is not relevant.

(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;

[35] As Mr Tait is earning more in his current position this criteria is not relevant.

(g) any other matter that the Fair Work Commission considers relevant.

[36] There were no other matters that I consider relevant.

Conclusion

[37] Having found that Mr Tait was unfairly dismissed I order that Nepean Roofing pay Mr Tait six weeks pay namely, $4800 less applicable taxation plus $456 to Mr Tait’s superannuation fund. This represents the amount he would have earned had he remained in employment until the business shut its doors. I have not reduced that by the amount he earned in that time because Mr Tait after lengthy service is required to start again. He has lost his accrued sick leave as well as other benefits that accrue with service. This amount is to be paid within 14 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

S Tait on his own behalf.

No appearance by the Respondent.

Hearing details:

2014.

Melbourne:

9 October and 19 November.

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