DECISION

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

Adam Miller
v
Urbanite Bikes Pty Ltd T/A Urban Pedaler
(U2017/12611)

Application for an unfair dismissal remedy.

[1] On 17 October 2018 1 I issued a decision in which I found that Mr Adam Miller had been unfairly dismissed by Urbanite Bikes Pty Ltd T/A Urban Pedaler (Urban Pedaler). I subsequently issued an Order2 on 17 October 2018 which required Urban Pedaler to pay to Mr Miller the amount of “$3,025.20 taxed according to law plus 9.5% superannuation” (Order). The amount was required to be paid within 21 days of the making of the Order.

[2] On 18 October 2018 the Fair Work Commission (Commission) received correspondence from Mr Gabe Sullens, the owner of Urban Pedaler, in which he said that his business had debts, some of which were subject to payment plans and that he had “maxed out” his credit card. Mr Sullens asked for “a minimum of 12 months to pay this back in instalments.”

[3] I took this request from Urban Pedaler as a request to vary the Order issued. Mr Sullens has made an application that, if granted, would require him to pay to Mr Miller the amount of $252 per month for 12 months.

[4] In order to resolve this application I issued directions on 18 October 2018 seeking submissions and evidence from Urban Pedaler in support of the variation to the Order, submissions from Mr Miller and submissions in reply. Following a further request from Mr Sullens that day, my chambers advised him on 19 October 2018 that the Commission needed to be satisfied that Urban Pedaler’s financial circumstances were such that it could not make the payment as ordered by the Commission in one lump sum and that a 12 month instalment plan was all that could be managed.

[5] Mr Sullens replied later that day that his financial situation was confidential and he did not wish this information to be provided to anyone (i.e. Mr Miller) beyond the Commission. Mr Sullens was advised he could seek a confidentiality order on the material provided by him in relation to the financial circumstances of the business. Mr Miller subsequently advised that he did not intend to use any information to harm Mr Sullens’ business.

[6] On 25 October 2018 Mr Sullens provided slightly more detailed information to the Commission along with a request for confidentiality of that information. He included some very limited documentary support for his claims. Mr Sullens did not agree to the release of the material submitted by him to Mr Miller.

[7] Following a further exchange with Mr Sullens with respect to confidentiality and the need for Mr Miller to have meaningful material to respond to, Mr Sullens agreed that information could be provided to Mr Miller in an abridged form. This abridged information indicated that Urban Pedaler had:

•  Payment plans with two creditors;

•  A personal loan to the business which he was repaying;

•  Vendor debts; and

•  General debts such as rent, wages etc.

[8] This information was provided to Mr Miller who was asked to provide his submissions on the application of Urban Pedaler.

[9] On 6 November 2018 Mr Miller provided written submissions in which he said:

•  Mr Sullens had made no submissions on the effect of any order on the viability of the business;

•  In submissions to the re-hearing of Mr Miller’s unfair dismissal application Mr Sullens had indicated that Urban Pedaler has slowly recovered and that sales are increasing and clients happy;

•  Mr Sullens had indicated on social media that he had:

•  Accompanied clients on an overseas cycling trip to New Zealand;

•  Changed the shop logo;

•  Had re-stocked “expensive items”;

•  Hired new staff to work weekends;

•  Taken on new products; and

•  Had new shop riding kit made.

[10] Mr Miller further submitted that there is no sign on social media of financial difficulties for the business. Further, he said that Mr Sullens was aware of the unfair dismissal matter for some time so should have been prepared for an adverse outcome by putting some money aside.

[11] Mr Miller opposes the payment plan proposed by Mr Sullens. He said that, based on past experience he said he had with Mr Sullens on payment of a separate debt, he does not believe Mr Sullens would abide by that plan.

[12] Mr Miller then suggested an alternative arrangement which is outside the bounds of any order the Commission could make.

Consideration

[13] The information provided to me by both Mr Sullens for Urban Pedaler and Mr Miller is scant and of little value in assisting me reach a conclusion based on facts in relation to the merit of Urban Pedaler’s application to make the payment of the Order by instalments over a 12 month period.

[14] I have no doubt that Urban Pedaler has debts. However, this tells me nothing of the financial capacity of the business to make payment of the amount ordered to Mr Miller. Apart from advice as to bills due or upcoming on 26 October 2018 (information that the Respondent would not have shared with Mr Miller), Mr Sullens has provided no information in relation to the businesses earnings or its capacity to meet its regular payments. I am not satisfied, on this information, that I have the material or evidence necessary that would allow me to conclude that a variation to the Order is necessary.

[15] Mr Sullens has been given multiple opportunities to provide the Commission with the relevant information. On 18 October 2018 the Commission asked that Mr Sullens provide “documentary evidence in support of payment…by instalments”. Mr Sullens requested clarification of this and on 19 October 2018 the Commission advised Mr Sullens that the Commission would need to be satisfied that the Respondent did “in fact, have a range of payment arrangements with agencies…as claimed and that [his] other financial circumstances are such that [he] cannot make the payment in one lump sum and that 12 instalments is all that [he] can manage”. (Emphasis added).

[16] On 26 October 2018 the Commission emailed the parties and set aside the directions requiring Mr Miller to file submissions given “the lack of material filed by Mr Sullens”. Mr Sullens was given a further opportunity to “file with the Commission and serve on the Respondent (sic) any submissions as to why [Urban Pedaler’s] application for payment by instalment should be granted…”.

[17] Mr Sullens submitted later that day that he could not see how the information that he provided could be “up for debate” by Mr Miller and suggests that if Mr Miller knows the information is provided to the Commission, and accepted (by the Commission) as valid then that should satisfy the burden of proof.

[18] The documentary evidence filed by Mr Sullens showed that Urban Pedaler is currently paying two debts by instalment. No evidence, beyond assertions, was filed to show payroll, loan or other debts or any other aspect of the financial position of the business. Mr Sullens asserts, without evidence, that his expenses outweigh income from sales. Whilst this assertion may be true the evidence does not support a finding to this effect or allow me to conclude that Urban Pedaler should not be required to pay the amount ordered except in instalments over 12 months.

[19] Likewise Mr Miller has not provided evidence of the financial health of Urban Pedaler although he does not have access to any information that would enable him to demonstrate such a claim. I do however accept his submissions that he wishes to have his dismissal and associated matters concluded (his application having been made 12 months ago).

[20] I acknowledge that Mr Miller has been required to file his submissions on the basis of the very limited information Mr Sullens was prepared to release to him. It is Mr Miller’s right to test the claims made by Mr Sullens as to the financial position of the business. It is not up to the Commission to “accept” the information provided on the say so of one party or the other.

[21] Mr Sullens has made an application to vary the order of the Commission and it is his responsibility to make good the claim that he could not otherwise afford to meet the requirements of the Order. It is Mr Miller’s right to test such an assertion.

[22] From the material before me I cannot conclude that Mr Sullens has done as is required of him to substantiate his claim.

Conclusion

[23] I am not totally unsympathetic to Mr Sullens’ position. He does run a small business (with between two to four employees) and I do accept that income in such a situation may not be predictable. But this is no basis on which to make a sound decision. Mr Sullens needed to, firstly, provide evidence of the financial position of his business and second, show how this position supported the proposed variation of the Order sought. The information is in the control of Mr Sullens yet he chose to provide very limited information despite repeated requests of the Commission and refused to have that information released in full to Mr Miller.

[24] I am satisfied that Mr Sullens was given a fair opportunity to present his best case. In the circumstances before me I am not satisfied that there are grounds established by Mr Sullens for Urban Pedaler on which I can grant the application to vary the Order as originally issued.

[25] Mr Sullens did not put any alternative position to the Commission. Even if I was minded to vary the Order in some other way I am not satisfied that the evidence before me supports any variation of the Order (except as to the date of payment).

[26] The Order (prior to it being varied 3 to allow this application to be dealt with) required payment of the amount by 7 November 2018 (21 days from the making of the Order). The Order will be re-issued4 and will require Urban Pedaler to pay to Mr Miller the sum of $3,025.20 taxed according to law plus 9.5% superannuation. The amount is to be paid within 21 days of the making of this decision.

COMMISSIONER

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<PR702372>

 1   [2018] FWC 6280.

 2   PR701364.

 3   PR701566.

 4   PR702447.