Thomas Trevan v Vardan Towing & Transport Pty Ltd
[2025] FWC 49
•8 JANUARY 2025
| [2025] FWC 49 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Trevan
v
Vardan Towing & Transport Pty Ltd
(U2024/7418)
| COMMISSIONER YILMAZ | MELBOURNE, 8 JANUARY 2025 |
Application for relief from unfair dismissal – whether genuine redundancy – no genuine redundancy – dismissal was harsh, unjust or unreasonable – compensation ordered
On 27 June 2024, Mr Thomas Trevan (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Vardan Towing & Transport Pty Ltd (the Respondent). This application was first subject to an extension of time hearing and a decision dated 30 July 2024 granting the extension. This decision now simply deals with the merit of Mr Trevan’s application and remedy.
Mr Trevan commenced employment on 18 September 2023 in the position of transport co-ordinator/dispatcher and was dismissed on 13 May 2024 by email allegedly due to a downturn in business.
In the course of both the extension of time and these merit proceedings, the Respondent failed to make submissions, therefore this decision is based on the evidence provided by the Applicant.
On Sunday evening before the hearing, my chambers received a Form F53 from the Respondent seeking to be represented by a lawyer at the hearing. Representation was denied on the basis that the submission for leave did not satisfy the requirements of s.596(2) of the Act.
At the hearing Mr Trevan gave sworn evidence and the Respondent was represented by Ms Neha Sandhu, General Manager, who also gave sworn evidence.
On the day of the hearing the Respondent submitted that it was a small employer with fewer than 15 employees and the dismissal was a genuine redundancy but led no evidence in support of these submissions. This decision rejects the Respondent’s jurisdictional objections on the basis that at no point did it lead evidence in support of its objections. I am satisfied that the Respondent was given ample opportunity to file and serve its materials both in support of its jurisdictional objections and in respect to merit. It is relevant to summarise the background and lack of engagement by the Respondent in this matter:
27 June 2024 –Application made.
1 July 2024 – Application forwarded to the Respondent by the Commission.
3 July 2024 – Notice of listing sent to the parties.
5 July 2024 – Case management hearing with both parties present. The Respondent did not raise any jurisdictional objections. Parties were put on notice that the extension of time issue required submissions and a hearing on the extension of time was listed for 24 July 2024. The Respondent gave an undertaking to file its Response Form F3, and to provide to the Applicant a copy of his contract of employment, all payslips and make good the payment for outstanding wage entitlements by COB 8 July 2024.
10 July 2024 – The Commission corresponded with the Parties after the Applicant confirmed that the Respondent did not fulfil its undertakings provided on 5 July 2024. Parties were advised that the matter will proceed with the extension of time hearing and again directed the Respondent to file their Form F3 by 5pm 11 July 2024.
12 July 2024 – The Commission again directed the Respondent to file their Form F3. The Applicant filed and served his submissions and evidence. No jurisdictional objections had been raised, therefore the proceedings related only to the extension of time.
19 July 2024 – The Respondent’s materials in reply were due but were not filed or served.
24 July 2024 – At 10.00am on the day of hearing the Respondent did not join and a phone call was made to Ms Sandhu. Ms Sandhu explained she knew nothing of the matter despite her attendance at the case management hearing and having received all correspondence from the Commission including the notice of listing and directions. When her adjournment request was not granted, she hung up the phone and did not join the hearing. The link to the hearing was sent to the Respondent, she did not join and at 10.20 am the Commission received an email explaining that she was on sick leave and at a doctor’s appointment and would like to appoint a lawyer. However, there was no further contact from the Respondent.
24 July 2024 – Despite the Respondent not joining the hearing, the Commission sent to the Respondent instructions should it appoint a lawyer.
30 July 2024 – Decision published granting an extension of time.
5 August 2024 – Parties were sent a notice of listing for the directions hearing on 16 August 2024 at 4.30pm.
16 August 2024 – At 3.17pm the Respondent sent an email advising that their call went to voice message twice and asked whether any paperwork would be required prior to the hearing. It is noted that chambers had received no missed calls nor messages. Nevertheless, an immediate email response was sent advising that the form F3 was still outstanding. At 4.20pm the Respondent forwarded the Form F3 noting the objections based on genuine redundancy, small business and compliance with the Small Business Fair Dismissal Code and an out of time application. At 4.36pm the Respondent sent a zip file containing the Applicant’s payslips.
16 August 2024 – The Respondent did not attend the directions hearing. The Parties were sent written directions and the notice of listing for the hearing on merit and jurisdiction (genuine redundancy, small business fair dismissal code and minimum period of employment) for 28 October 2024. Parties were also directed to attend a Member Assisted Conciliation Conference.
4 October 2024 – The Respondent’s materials were due, but not filed or served.
11 October 2024 – The Respondent was directed to file its submissions by 4.00pm 14 October 2024 and to provide an explanation for its failure to comply with the Commission’s directions. The Respondent was also directed to attend the Member Assisted Conciliation conference scheduled on 24 October 2024.
14 October 2024 – The Respondent did not file or serve any submissions on merit or the jurisdictional objections it raised in the Form F3.
24 October 2024 – At 8.30am the Parties attended the Member Assisted Conciliation conference, but the matter was not resolved. The parties were put on notice that the hearing would proceed. Due to the lack of engagement by the Respondent, my Chambers sent an amended notice of listing at 1.35pm for hearing on Teams instead of the scheduled in-person hearing. At 4.34pm Chambers was contacted by a lawyer advising that he was representing the Respondent and sought a 4-week adjournment. The adjournment request was denied.
The Respondent had ample opportunity to file evidence and submissions regarding its jurisdictional objections and in response to the Applicant’s materials on merit, but it did not. The Respondent’s General Manager made oral submissions but further sought extensions to file materials. These further requests for extensions to file materials were denied.
As there is no evidence in the alternative, I find that the Applicant met the minimum employment period and that his employment was covered by a modern award. The Respondent presented no evidence that it was a small business and Mr Trevan gave sworn evidence of his knowledge of employees engaged in head office and as drivers, thereby challenging the submission that the business employs fewer than 15 employees. Accordingly, the relevant minimum employment period is 6 months, which Mr Trevan met. Consistent with the evidence of Mr Trevan, I observe that the Respondent’s website projects a sizable and sophisticated family business in freight transportation, logistics solutions, heavy haulage, plant and equipment transport and sizable fleet of 150 owned vehicles nationally operated by experienced operators servicing a range of industries including construction and heavy vehicles/agricultural. It is also not in dispute that the Director of the Respondent owns multiple business entities. I reject the submission, unsupported by evidence, that the business employs fewer than 15 employees. Pursuant to s.382 of the Act I am satisfied that Mr Trevan is a person protected from unfair dismissal. There is no contest that Mr Trevan was dismissed within the meaning of s.386 of the Act.
Submissions and evidence of the Applicant
Mr Trevan gave sworn evidence that he commenced employment with the Respondent on 18 September 2023, as a full-time transport coordinator/dispatcher on $73,000 per annum plus superannuation. Mr Trevan signed his contract of employment electronically but was not given a copy despite his numerous requests. A copy of the email cover sheet requesting electronic signature of the contract was tendered in evidence, but the link to the contract became inactive, he says, once he signed the contract.[1] The same email states that a final contract copy in pdf will be emailed, however, Mr Trevan confirmed that he never received a copy. I am satisfied that Mr Trevan at no point received a copy of the contract. In fact, the General Manager undertook to provide a copy to the Applicant on 5 July 2024. It was only at the hearing on 28 October 2024 that the Respondent asserted that the Applicant did not sign the contract of employment.
Mr Trevan also tendered in evidence all Facebook Messenger communications between himself and the Business Development Manager, Mr Josh Soupe (also his direct line manager) which shows that he was employed by Mr Soupe on behalf of the Respondent following an interview on 4 September 2023. Ms Sandhu delayed producing and sending the contract, however Mr Trevan and Mr Soupe communicated regularly and on 8 September 2023, the offer of $73,000 plus superannuation and the start at 7.00am on 18 September 2023 was confirmed in Messenger between them.
Mr Trevan also submits that at no point did he receive any payslips and, following his dismissal and on checking with the ATO, he discovered that no tax had been paid by the Respondent on his earnings, nor any superannuation contributions made. Payslips only became available to him on 16 August 2024 moments before the merit directions hearing. This evidence of failure to pay tax and superannuation was not disputed by the Respondent.
On Sunday 13 May 2024, at 11.04pm Mr Trevan received an email with a letter of termination attached. The cover email states:
“Good evening Tom,
The purpose of this notice is to confirm the outcome of a recent review by Vardan Towing and Transport of its operational requirements, and what this means for you.
As a result of economic downturn, the position of second Transport Coordinator is no longer needed. Regrettably this means your employment will terminate immediately.
Your employment will end immediately. Please refer to the attached letter of termination.
Kind regards,
Neha Sandhu
General Manager, Vardan Towing & Transport”
The letter of termination repeats what is provided in the cover email in addition to confirming the dismissal is a redundancy and based on Mr Trevan’s period of employment he would be paid 1 week of notice in lieu and his wages up until the last day that he worked.
On 13 May 2024 at 11.07pm Mr Trevan messaged his manager Mr Soupe with “I just got fired?” This message was not responded to until 4 June 2024 which was:
“Happy birthday mate.
Sorry I haven’t reached out earlier.
Just want to let you know that the decision was made without my knowledge or input.
Happy to give you a reference for any new position you are going for.”
On 14 May 2024,[2] Mr Trevan followed up by email to Ms Sandhu asking for his payslips to check his leave and loading entitlements, and again on 3 June 2024[3] Mr Trevan requested by email his payslips and outstanding entitlements. These emails went unanswered.
On 5 June 2024,[4] Mr Trevan again emailed Ms Sandhu advising that as there had been no response to his emails of 14 May and 3 June, he had prepared letters of formal request which he attached to the email. His two letters of request formalised to the Respondent his clear requests for information. The letters attached to the email are as follows:
“Dear Ms Sandhu,
As you are aware I am a former employee of Vardan Transport. I worked as a dispatcher at your Truganina location between September 2023 and May 2024. I would like to check my employment entitlements.
To do this, I need information from my employment records. Can you please provide me with the following records for the period 1 September 2023 to 30 May 2024:
·the businesses legal name and ABN
·my start date
·my termination date and the reason for my termination
·my employment status (full-time, part-time or casual)
·records of the hours I worked (including date/day of the week, start and finish times and breaks)
·pay slips or other records of my pay (including loadings, penalty rates, overtime, and other amounts)
·any deductions from my pay
·my leave records showing leave accrued and taken (both paid and unpaid).
Please note that I am allowed to obtain copies of these records under the Fair Work Regulations 2009.
Please provide these records to me by 7 June 2024. They can be sent by email at [redacted].
Please contact me on [redacted] if you would like to discuss this request.
Yours sincerely,
Thomas Trevan”
And:
“Dear Ms Sandhu,
As you are aware I am a former employee of Vardan Transport. I worked as a dispatcher at your Truganina location between September 2023 and May 2024. You will also be aware of an email sent from yourself on the 13th of May 2024 in which you informed me of your intent to make my position redundant effective immediately.
In this notice you also stated that;
“You will be paid the salary of the 1 week notice period”
as well as
“You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment”Under the Fair Work Regulations 2009 you are required to make any final payments within 7 days of the notice period of ceased employment. Therefore I should have received those payments by the 20th of May 2024 and to date of this letter I have received nothing nor any statement of remittance to show the amount you intend to pay.
Please provide a final payment statement with funds transferred to me by 7 June 2024. They can be sent by email at [redacted].
Please contact me on [redacted] if you would like to discuss this request.
Yours sincerely,
Thomas Trevan”
On the same day, 2 minutes later, Ms Sandhu responded apologising for the delay and stated that his payment was “being finalised in the system” and that he would be paid on 6 June 2024. Mr Trevan followed up again with Ms Sandhu on 11 June 2024 advising her that he was still awaiting his entitlements.[5]
Mr Trevan submits that he contacted the Fair Work Ombudsman (FWO) and provided evidence of 8 telephone calls made by the FWO[6] to the Respondent which went unanswered and 2 emails[7] explaining the reason for the contact and requesting a response. Mr Trevan submits that he was informed on 21 June 2024 that the FWO could not ascertain details of the legal entity nor ABN of the Respondent to assist with the pursuit of outstanding entitlements or with the necessary details to claim unfair dismissal. Despite the efforts of both the Applicant and the FWO, the Respondent did not engage with their former employee or the FWO. It ignored its legal employment obligations. It was not until 27 June 2024, that Mr Trevan managed to obtain the Respondent’s ABN and confirmation of the legal entity from a former client of the Respondent.
The extent of the underpayment of entitlements became more alarming to Mr Trevan on finding that no tax was paid, even though it was deducted from his wages and no superannuation contributions were made by the Respondent. This evidence was tendered in the extension of time hearing, which shows the seriousness of the Respondent’s total disregard of its legal obligations to its employees, to the tax office and its dismissal of compliance authorities (FWO).
Mr Trevan gave evidence that a second transport co-ordinator/dispatcher was employed on 29 April 2024 and on 15 May 2024, he confirmed that the person had retained their employment having spoken directly to the person. Mr Trevan submits that he was able to determine that he was the only employee made “redundant”, and an additional transport coordinator/ dispatcher was employed some 4 weeks after his dismissal.[8]
In addition, Mr Trevan submits advertisements for the same role appeared on Seek on 16 May 2024 and the Respondent regularly advertised driver vacancies. Mr Trevan gave evidence that the business employed around 12 employees in the office and around 40 drivers. He submits that the Respondent was aware of his driver qualifications yet failed to consult or consider his appropriateness for any other role. Mr Trevan contends that the dismissal was not a genuine redundancy and that the termination of his employment contravened the unfair dismissal protections in the Act.
Submissions and evidence of the Respondent
There was no evidence tendered by the Respondent, other than the payslips sent in a bundle on 16 August 2024.
During the hearing Ms Sandhu was sworn in to give oral evidence. Her statements were unconvincing, vague and her story changed. I did not find her a credible witness; her evidence was unreliable. While she submits that she consulted and advised of the probable redundancy prior to the dismissal, this evidence was shown to be baseless when Mr Trevan read out Ms Sandhu’s referenced email of 5 May which related to an RDO and with no reference to any downturn in business or redundancy. For the balance of her oral evidence, she could not recall what was said nor when it was said with any assurance.
Ms Sandhu admitted to employing another coordinator/dispatcher just weeks before Mr Trevan’s dismissal, yet he was selected for redundancy. She submits that the new person was dismissed during the probationary period sometime in June — after Mr Trevan’s dismissal. Ms Sandhu gave evidence that she employed 6 office-based staff while Mr Trevan was employed and now has 6 employees. After further questions on this point, she changed her oral evidence that the 6 included an employee in the workshop. There was also contest over whether some 50 drivers were directly employed or engaged as contractors or a combination. No corroborating evidence was submitted. I give little weight to Ms Sandhu’s oral evidence in terms of the alleged reason for the dismissal as economic downturn or that the dismissal was a genuine redundancy.
Evidence relating to payment of Mr Trevan’s entitlements was also imprecise. At one point, Ms Sandhu stated that he was yet to be paid and then stated he was paid. The alleged payment of $1041.60 on 16 August 2024 for outstanding annual leave and notice amounted to less than one week of his wages. A payslip was not tendered for this payment. Ms Sandhu alleges that Mr Trevan was overpaid but could not explain how or why with any precision, other than offering the reason being a clerical error.
Mr Trevan was offered a job at $73,000 gross per annum plus superannuation, for 40 hours per week of ordinary time. But he was paid less at $71,999 gross per year. Mr Trevan confirmed that he received into his bank account a net weekly sum of $1089.60. The payslip shows a gross wage of $1384.60 for a 40-hour week and tax deducted of $295 per week. In the last pay cycle, Mr Trevan was stood down for a week, but the Respondent did not pay him wages. Instead, it applied annual leave from his accrued annual leave. Mr Trevan contested the evidence that he ever took annual leave and Ms Sandhu did not provide any evidence of annual leave taken other than the payment of 40 hours while he was stood down in the last fortnight of his employment. This evidence is corroborated by the payslip for the period 29 April to 13 May 2024. While Mr Trevan gave evidence that he did not apply for leave, Ms Sandhu stated it was “agreed” (that is that Mr Trevan did not object). The evidence suggests that Ms Sandhu stood Mr Trevan down and simply paid the period as annual leave without express agreement to treat the absence from work as a period of annual leave.
On closer examination of the bundle of payslips, the records raise further problems in relation to accuracy of accrual of annual leave. To illustrate, each payslip indicates an accrual of 6.1538 (presumably hours) in each pay period despite the progress of time. However, payslip numbers 11, 13, 15 and 24 record annual leave taken of 8 hours, 32 hours, 24 hours and 40 hours respectively. This means that 104 hours of annual leave was recorded as paid to Mr Trevan. However, Ms Sandhu advised that on 16 August 2024, a payment of accrued annual leave was also paid. Mr Trevan was employed for 30 weeks; this would amount to 92.4 hours of accrued annual leave for a 40-hour week. Further Mr Trevan denies ever requesting annual leave during his 8 months of employment. Due to these discrepancies, the accuracy of the payslips is questionable.
Mr Trevan was not paid $73,000 gross per annum, despite the offer of employment by Mr Soupe. The payslips show a salary of $71,999 per annum. The last pay period payslip does not correctly include outstanding wages, notice, annual leave and annual leave loading. Superannuation is recorded on the payslips but was not paid into Mr Trevan’s nominated superannuation fund. Mr Trevan gave evidence confirming no receipt of payments into his superannuation fund. Further, I accept Mr Trevan’s evidence, which was not challenged by credible evidence from the Respondent, that the deduction of tax from his wages had not been forwarded to the ATO at the time of the hearing. Mr Trevan submits that, as a consequence, he was unable to complete his tax return.
Following the hearing Ms Sandhu filed a copy of the contract of employment, which was not admitted into evidence.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether I am satisfied that a dismissal was harsh, unjust or unreasonable, I 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.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[9]
Consideration
Whether there was a valid reason
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[10] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[11]
The Respondent contends that the dismissal was a genuine redundancy. Section 389 of the Act defines genuine redundancy where the person’s employer no longer requires the person’s job to be performed by anyone because of changes to operational requirements, and the employer complied with any consultation obligations in an applicable modern award. The Respondent provided no evidence to meet the first limb of s.389. The Respondent’s witness gave evidence that a third transport co-ordinator/dispatcher was employed not long before Mr Trevan was dismissed[12] and that this third role remained in place after the dismissal.[13] Mr Trevan gave evidence that this role was created because of workload.[14] Ms Sandhu asserts that the third dispatcher was subsequently dismissed either for failing to complete the probation period or due to “economic downturn” (neither of which was apparent from the conflicting evidence). Mr Trevan tendered evidence of a Seek advert on 16 May 2024 (3 days after his dismissal) for a customer service/dispatcher[15] and evidence of a message from Mr Soupe, (Mr Trevan’s supervisor) advising that the decision to dismiss was made without his knowledge or input.[16] Evidence tendered by Mr Trevan contested the alleged genuine redundancy. It is also notable that no evidence from the Respondent was forthcoming regarding the impact on the total number of dispatchers employed by the business.
The second limb of s.389 concerns compliance with consultation obligations contained in an industrial instrument. There was no contest that the Clerks – Private Sector Award 2020[17] applied to Mr Trevan’s employment. Mr Trevan gave evidence that he was given no prior warning nor engaged in any discussions of an impending redundancy. The Respondent also tendered no reliable evidence on this point. In addition, there was no evidence before the Commission of consultation as provided for in clause 38 of the Clerks – Private Sector Award 2020. Further, the Respondent provided no credible evidence as to why Mr Trevan was not considered for any alternative role, despite its ongoing measures to recruit staff.
Therefore, the Respondent has not met the requirements of s.389 of the Act such that it is open to me to conclude that the dismissal was not a genuine redundancy, for the application to be excluded from the unfair dismissal protections in the Act. As a genuine redundancy cannot be found, the unfair dismissal provisions must be considered in relation to Mr Trevan’s dismissal.
The unfair dismissal protections require consideration of valid reason and procedural fairness under s.387 of the Act. The reason given to Mr Trevan for the dismissal with immediate effect in the letter of termination was that the business had experienced an economic downturn. There is no further explanation in the letter of what is meant by “economic downturn”. The evidence shows that the Respondent did not pay the Applicant his notice nor any severance payment on termination of his employment.
The Respondent’s witness made a number of conflicting and unclear statements under oath. Statements were made about loss of jobs or sales as economic downturn. She also made a passing comment about cash flow and Mr Trevan’s performance as the reason for not offering redeployment. None of these statements were properly articulated or corroborated by evidence. Consequently, the reason for dismissal was not well-founded, defensible or sound.
It was following the dismissal that Mr Trevan discovered that the tax deducted from his wages had not been paid to the ATO and no superannuation contributions made. The Respondent did not disclose to Mr Trevan that these obligations were not met at all during his 8 months of employment or on termination. I do observe that the Respondent did not suggest that failure to comply with its obligations was attributable to “economic downturn” for the business. On this basis, and in the absence of any reliable evidence, no conclusions can be made on the reasons for its failure to make good its legal obligations. And cautiously, no assumptions can be made that failure to comply with legal obligations is indicative of financial constraints on the business.
The Respondent asserts that the reason for the dismissal was economic downturn. This reason is not sound, defensible or well-founded based on the absence of evidence before the Commission. Accordingly, I am unable to make a finding that the Respondent had a valid reason to dismiss Mr Trevan.
Whether the person was notified of that reason
The Respondent did not notify the Applicant of its reason for dismissal prior to the email received at 11.04pm on Monday 13 May 2024. I am satisfied there is no reliable evidence of prior knowledge of redundancy and note that the dismissal was immediate. This consideration does not weigh in favour of procedural fairness.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The Respondent does not assert that the dismissal is due to performance or conduct. Therefore, this consideration is not relevant to whether Mr Trevan was given an opportunity to respond to the reason for dismissal. Further, while Ms Sandhu stated that Mr Trevan was not considered for the advertised role on 16 May because of his prior poor performance, no evidence of counselling or warning of performance was tendered.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There was no opportunity for the Applicant to call a support person. The dismissal was over email at 11.04pm. This factor is neutral.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
The Respondent does not assert that the dismissal is due to performance or conduct. Therefore, this consideration is not relevant.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
The Respondent asserts the business is small, yet no evidence as to the size of the business was tendered. As referred to earlier, Mr Trevan gave evidence of his awareness of at least 50 drivers and up to 12 employees in the head office. Further, the Respondent’s website leads the reader to conclude that the business is not small but sizable.
Putting aside any finding on the size of business, the Respondent’s witness gave evidence of engagement in customer service, a workshop, sales, dispatchers and drivers. The business also employs Ms Sandhu as the General Manager and active in the business is its Director. From Mr Trevan’s evidence, it can be concluded that the Respondent engaged a Business Development Manager,[18] a driver trainer, two in bookings, a dispatch/operations line and general inquiries.[19] While this information does not enable any conclusive finding over size of the enterprise, its breadth of coverage is diverse, and it is reasonable to expect at least a minimal level of fairness and compliance with its obligations. There was none to be identified.
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
It is not known whether the Respondent had access to human resources specialists, but following the application for leave to be legally represented, it can be concluded that the business had access to legal expertise. Nevertheless, as no firm findings can be made regarding this criterion, this is a neutral factor.
Any other matters that the FWC considers relevant
Throughout each process of Mr Trevan’s application, the Respondent has shown total disregard for the law, for its obligations to pay Mr Trevan’s legal entitlements and a disregard towards this Commission, the FWO and potentially the ATO.
It is concerning, and a serious matter, that Vardan Towing & Transport has defied the Commission’s process, in spite of the possible consequences of a decision against it. Even more alarming is its contravention of its legal obligations with indifference. I do consider this matter of such importance that it ought to be brought to the attention of the General Manager of the Commission for referral to the FWO. It is reasonable to form the view that the contraventions against Mr Trevan are likely to be more widespread than one individual. In addition, Ms Sandhu in her closing submissions states that the business cannot afford a compensation order of 24 weeks as sought by Mr Trevan. There was no evidence before me on the viability of the business to meet any order issued, however I do hold genuine concerns that the Respondent may simply ignore any order based on its conduct before the Commission.
Conclusion – whether harsh, unjust or unreasonable?
I have considered each matter specified in s.387 against the evidence before me and do find that Mr Trevan was unfairly dismissed. I do find the dismissal was not a genuine redundancy as defined by s.389 of the Act. Further, I do not find that there was a valid reason for the dismissal and have considered the balance of relevant criteria concerning harshness in s.387 of the Act. For each of the relevant criteria, the Respondent’s behaviour has fallen short of procedural fairness. I am not satisfied that Mr Trevan was notified of the reason for the dismissal prior to receipt of the email advising of the dismissal on 13 May 2024. I am not satisfied that the dismissal was a redundancy due to the lack of consultation or any genuine consideration of alternative employment. The process of bringing the dismissal to an end was harsh — the dismissal was a surprise and following the email of 11.04pm on 13 May 2024, the Respondent ceased all communication. Not only were the Applicant’s minimum entitlements not met, but the Respondent also ignored the Applicant’s pursuit of his entitlements and requests for access to his payslips and contract.
I have found that the Respondent had no valid reason for the dismissal and that the dismissal was unfair within the meaning of s.385. I am satisfied that an assessment of the evidence, or the lack of, against the criteria in s.387 do weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.
As I find the dismissal was unfair, I am required to consider whether to award a remedy.
Remedy
On being satisfied that the application was made under s.394 of the Act, and because I have found Mr Trevan was unfairly dismissed, I may order a remedy under s.390 of the Act. When Mr Trevan lodged his application he sought reinstatement, however, due to the behaviour of the Respondent during each step of the proceedings, the Applicant submits that trust has broken down and reinstatement is no longer practical or appropriate. In the present circumstances I do find that reinstatement is not appropriate. A trusting workable relationship between Mr Trevan, Ms Sandhu and Mr Soupe is unlikely, so I consider that, should a remedy be awarded, an order for compensation is appropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by a Full Bench of the Commission, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[20]
The Applicant submits that payment of compensation is appropriate in the circumstances. The dismissal, he submits, was not a genuine redundancy and he is unaware of why he was dismissed. Procedurally, the Applicant points to the level of unfairness in the process and indifference shown by the Respondent to its legal obligations. The Applicant seeks 24 weeks of compensation because of the impact of the dismissal and his efforts before the FWO and this Commission to pursue his legal entitlements.
The Respondent presented very little to challenge the submissions and evidence of the Applicant on the few occasions it engaged with the Commission. It submits it cannot afford compensation of 24 weeks.
Based on the evidence before me that led to the finding that the dismissal was unfair, the harshness of the process displayed by the Respondent and its lack of responsiveness justifies an order for compensation in place of reinstatement.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
The business is sizable and there is no evidence regarding the viability of the business. Therefore, I am not satisfied that an order for compensation would have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
The Applicant’s length of service was 8 months. This is not a long period, but there was no evidence of performance or conduct to suggest possible termination of employment in the near future. Mr Trevan advised that he intended to continue his employment with the Respondent and believed he had performed well. In fact, the evidence of the message from Mr Soupe indicated there was no concern regarding performance or conduct and that the dismissal was without his knowledge and consultation.
The maximum compensation under the Act is 26 weeks, and Mr Trevan proposes 24 weeks, which is the period from his dismissal until the hearing on merit. The Applicant also seeks back pay for the underpayment and all entitlements still owing to him.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court,
“[i]n determining the remuneration that the Applicant would have received or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[21]
There was no evidence that the employment may have come to an end because of performance or conduct nor was there any evidence of financial challenges facing the Respondent to cause a redundancy. Mr Trevan had already served a period of 8 months without incident. There was no evidence to support a period of future employment less than the maximum of 26 weeks. For these reasons I find that employment in all likelihood would have continued for a further period of 26 weeks. Mr Trevan was employed on a package of $73,000 per annum, therefore 26 weeks’ pay would amount to $36,500.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[22] What is reasonable depends on the circumstances of the case.[23]
The Applicant gave evidence that he had applied for positions with local council, private enterprise, and other government services.[24] He submits that he had attended interviews, and some applications were still live as at the date of hearing. However, he expressed difficulty with not having a reference from the Respondent and in some situations his eligibility was hampered by a requirement to disclose that he has an unfair dismissal application on foot. Despite these alleged efforts, Mr Trevan states that he has not secured employment. Because Mr Trevan has not presented any verifiable evidence of these efforts, it is not possible to determine that reasonable steps have been taken to mitigate the loss. As I am not satisfied that the Applicant took all reasonable steps to mitigate his loss, it warrants a reduction of 25%.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
Mr Trevan provided no evidence of any earnings since dismissal.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
The Applicant provided no evidence of likely income from the date of the order until payment of compensation.
Other relevant matters
This dismissal was absent of any procedural fairness and the indifference displayed by the Respondent requires an order of compensation. Despite the grounds for compensation, as I have found that the Applicant did not take reasonable steps to mitigate his loss and did not disclose any income received, a reasonable reduction is necessary (identified as contingency).
The order of compensation
An order of 26 weeks’ pay, which is the maximum cap, is awarded. This is a figure of $36,500 gross. No notice was paid to the Applicant, and I consider it appropriate to include notice in this sum of 26 weeks. There are no deductions except for contingencies of 25%. This leaves a gross figure of $27,375. Tax is to be deducted according to law and forwarded to the ATO.
I am satisfied that the amount of compensation is appropriate to the circumstances of this case and the criteria for deciding compensation under s.392(2). Misconduct is irrelevant[25] the figure does not include an amount for shock, distress etc,[26] and the compensation does not exceed the cap.[27]
An order will be issued for the payment of the net sum ($27,375 less tax) within 14 days of this decision into Mr Trevan’s bank account. Superannuation on this compensation is also payable directly into Mr Trevan’s nominated superannuation fund in accordance with the Superannuation Guarantee requirements.
However, should the Respondent seek a further period, or payment by 2 instalments, it may make an application to vary this order. If an application is made to vary this order, it must be made within 7 days of this decision and evidence to support its application to vary is required.
Finally, Mr Trevan seeks assistance to access his outstanding wage entitlements. This Commission is unable to assist, but with the referral to the FWO, I expect a likely resolution in Mr Trevan’s favour.
COMMISSIONER
Appearances:
Mr T Trevan, Applicant
Ms N Sandhu, for the Respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams)
28 October.
[1] Adobe acrobat signature request sent on behalf of Neha Sandhu, dated 15 September 2023.
[2] Emailed at 8.18am.
[3] Emailed at 12.04pm.
[4] Emailed at 1.21pm.
[5] Emailed at 12.27pm.
[6] 14 June 2024 at 12:09, 18 June 2024 at 11:39, 18 June 2024 at 16:23, 19 June 2024 at 15:35, 19 June 2024 at 16:05, 19 June 2024 at 16:06, 20 June 2024 at 15:46, and 20 June 2024 at 15:55.
[7] 14 June 2024 at 12.25 and 18 June 2024 at 16.24.
[8] Exhibit A-1, Applicant’s Statement of Evidence.
[9] Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd [2002] AIRC 317, [69].
[10] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[11] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[12] This was confirmed as 29 April 2024 by Mr Trevan.
[13] Mr Trevan gave evidence that he spoke to his colleague (Second third dispatcher) on 15 May confirming she was the second dispatcher.
[14] See Exhibit A-1, Applicant’s Statement of Evidence.
[15] Applicant’s material, Document 11.
[16] Applicant’s material, Item 5 in Document 1, dated 4 June 2024.
[17] The Respondent confirmed the application of the Modern Award in its Form F3 response.
[18] Mr Josh Soupe, direct supervisor of Mr Trevan: see. Applicant’s material, Item 1 in Document 1.
[19] Applicant’s material, Document 3.
[20] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[21] He v Lewin [2004] FCAFC 161, [58].
[22] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] (‘Biviano’) citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[23] Biviano, [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[24] Applicant’s Outline of Argument: Merit at 7.
[25] S.392 (3).
[26] S.392(4).
[27] S.392(5).
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