William McAlaney v Print Group Australia
[2010] FWA 416
•22 JANUARY 2010
[2010] FWA 416 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Print Group Australia
(U2009/10552)
COMMISSIONER BLAIR | MELBOURNE, 22 JANUARY 2010 |
Application for unfair dismissal remedy - arbitration.
[1] This matter, which is before Fair Work Australia (the Tribunal) is an application for remedy in relation to an alleged unfair dismissal. The applicant in the matter is William McAlaney and the respondent is Print Group Australia, now in administration. No representative for the respondent appeared before the Tribunal at the arbitration proceedings.
[2] The following decision (now edited) was handed down in transcript at a hearing which took place on 21 January 2010 in Melbourne.
[3] In considering section 387 of the Fair Work Act 2009 (the Act) the tribunal will answer the questions in order to determine whether the termination was harsh, unjust and unreasonable.
[4] (a) Whether there was a valid reason for the dismissal related to the person's capacity or conduct.
The Tribunal is satisfied that there was not a valid reason for the termination of Mr McAlaney.
[5] (b) Whether the person was notified of that reason.
Mr McAlaney was not notified. Mr McAlaney simply received a letter of termination without any warning.
[6] (c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.
In relation to 387(a) and 387(c) it would appear that termination related to Mr McAlaney refusing to sign over some shares to Mr Mullins, representing the respondent in the matter. Therefore, there was no valid reason for the termination based on the person's capacity and conduct, and the person wasn't given an opportunity to respond to any issue regarding capacity or conduct because that was not the underlying issue for the termination.
[7] (d) Any unreasonable refusal by the employer to allow a person to have a support person present to assist at any discussions relating to dismissal.
The submission of Mr McAlaney was that that was not the issue relating to the meeting; the meeting was simply called to discuss the shares issue. There was no mention of any possibility of dismissal and Mr McAlaney was accompanied by his wife.
[8] (e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal.
The tribunal is satisfied that there was never an issue raised regarding unsatisfactory performance by Mr McAlaney and there were no warnings related to any issue regarding any alleged unsatisfactory performance.
[9] (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.
I am advised by Mr McAlaney that the company has approximately 15 - or slightly less - employees.
[10] (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 procedure followed in effecting the dismissal.
The Tribunal is not satisfied that the outcome would have been the different if the company had a dedicated specialist.
[11] In regards to the above, as indicated, the dismissal, in the Tribunal's view, relates to the inability or the unreadiness of Mr McAlaney to sign over shares to Mr Mullins.
[12] Based on the answers to the questions above, the Tribunal is satisfied that there was no valid reason for the termination of Mr McAlaney and that in meeting the requirements of 387(a) to (g) and (h), the Tribunal would determine that the termination was harsh, unjust and unreasonable.
[13] The tribunal will now turn its mind to the issue of remedy. On the issue of remedy, the difficulty here, as indicated in transcript earlier, is that the company is in administration and the Tribunal has been advised by the administrator that there are no funds to pay out any entitlements and any award of compensation to Mr McAlaney in this particular matter.
[14] However, the Tribunal thinks it is important to hand some form of compensation to Mr McAlaney in regards to what it believes to be an unsatisfactory performance on the part of the respondent in the way in which it handled the termination.
[15] The Tribunal must be also cognisant of the fact that whatever compensation it awards, it is a matter of whether or not that compensation can be redeemed from the administrator or the respondent directly.
[16] Bearing that in mind, the Tribunal will order that the sum of $13,009.88 be awarded to Mr McAlaney. That's a gross sum, based on $1,501.14 per week multiplied by 8.6 weeks.
[17] The respondent has two weeks to pay it from the date of issue of the order accompanying this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR992853>
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