DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Koichi Yokohata
v
Lidco Oregon Australia Pty Ltd ABN: 65 167 858 442
(U2015/4706)

Unfair dismissal - exparte proceedings - no valid reason for dismissal - applicant verbally advised of dismissal - no written advice of dismissal - dismissal harsh, unreasonable and unjust - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 8 April 2015. The application was made by Koichi Yokohata (the applicant) and named the respondent employer as Lidco Oregon Australia Pty Ltd ABN: 65 167 858 442 (the employer).

[2] The application indicated that the date of effect of the applicant’s dismissal was 20 March 2015. Consequently the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The material contained in the file has established that conciliation of the claim did not occur because the employer failed to participate in a Conciliation Conference arranged for 1 May 2015. Directions were issued by the Fair Work Commission (the Commission) for the filing of evidence and submissions in preparation for the Arbitration of the claim. The applicant has filed material in accordance with these Directions. The employer has not filed any material, either in accordance with these Directions or more generally.

[4] The Commission’s file contains various notations and other materials which confirm that the employer has been advised of this matter on numerous occasions including an express mail receipt of the Notice of Listing for today’s Arbitration Hearing.

[5] In view of the record of conduct of those who apparently have responsibility to act on behalf of the employer, it was unsurprising that the employer failed to attend at the Hearing of the matter today or provide any other contact or explanation for non-attendance.

[6] Consequently, the Commission has proceeded to hear the matter ex parte and has accepted and considered the contents of a statement made by the applicant dated 12 June 2015 1, together with an outline of submissions filed on 15 June 2015.

[7] The applicant had worked for the employer for a period of approximately 7 months. At the time of dismissal the applicant worked as a Technical Manager. It appeared that the employer is part of a group of Companies which, inter alia, provides design and fabrication of aluminium windows, frames and similar products. The applicant’s work included design and technical specification functions associated with aluminium windows, doors and similar products.

[8] On or about 5 March 2015, the applicant provided written confirmation of his earlier verbal advice to the employer that he would be absent from work from 6 March until about 16 March as he had to undergo a medical surgery. On 16 March the applicant telephoned the employer and advised that his recovery from the surgery was taking a little longer than first anticipated and that he would return to work on Friday 20 March 2015. The employer took no issue with this advice.

[9] The applicant returned to the workplace on 20 March and completed a leave application form which included a medical certificate to cover the period of absence from 6 to 19 March. When the applicant presented the leave form and medical certificate to the employer he was verbally dismissed and told by the employer that he was not “meeting our expectation.”

[10] The applicant was not paid outstanding wages or other accrued entitlements. The applicant has not been provided with a letter of dismissal or any other written documentation regarding the termination of his employment.

[11] Since the dismissal the applicant has sought alternative employment and he has managed to gain some alternative employment albeit at a lower rate of remuneration.

[12] The unchallenged evidence of the applicant has established that he had been dismissed from his employment in an extraordinarily abrupt manner and without proper explanation or reason being provided.

[13] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[14] In this case the employer has failed to participate in any conciliation of the matter. The employer has also failed to attend at the Hearing or provide any explanation for non-attendance. I am satisfied that the employer was provided with proper notice of these proceedings before the Commission. The employer’s failure to properly attend to proceedings before the Commission is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal.

[15] The evidence has not revealed any valid reason for the dismissal of the applicant. The uncontested evidence has established that; (a) the applicant is a person protected from unfair dismissal, and; (b) the applicant was dismissed, and; (c) the dismissal was harsh, unjust or unreasonable, and; (d) the dismissal was not consistent with the Small Business Fair Dismissal Code if it were to be applicable, and; (e) the dismissal was not a case of genuine redundancy.

Conclusion

[16] The applicant was verbally advised of his dismissal and subsequently not provided with a letter of dismissal or other documentary confirmation of the termination of employment.

[17] Upon any objective analysis and particularly in the absence of a valid reason for dismissal, the applicant’s dismissal was manifestly harsh, unreasonable and unjust.

[18] The conduct of the employer in respect to the dismissal of the applicant and in regard to these proceedings before the Commission has been highly regrettable. The applicant’s claim for unfair dismissal has been established.

Remedy

[19] The applicant has not sought reinstatement as remedy for his unfair dismissal. Frankly that is not surprising given the conduct of the employer. In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.

[20] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket  2 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 3.

[21] Firstly, I confirm that an Order of payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[22] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act. In particular I mention that there was no evidence of any effect that any Order of compensation would have on the viability of the employer’s enterprise. The applicant had been employed for a period of about 7 months and if he had not been dismissed he would have been likely to have received remuneration at or about the level of remuneration at the time of dismissal for a period of at least a further six months.

[23] I note that the applicant has made efforts to mitigate his loss. I also note that the amount of compensation that I am prepared to provide does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[24] Consequently, for the reasons outlined above I have decided that an amount approximating with 20 weeks remuneration at the ordinary weekly rate before dismissal should be Ordered as compensation to the applicant. That amount is $50,000.00. Accordingly a separate Order [PR570940] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr D Cabal, solicitor appeared for the applicant.

Hearing details:

2015.

Sydney:

August, 18

 1   Exhibit 1.

 2   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 3   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR570930>