DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Anthony Evans-Marshall, Ahmed Aduhamadi and Mark MacDonald
v
Adadn Pty Ltd
(U2020, 3644, 4103 & 5251)

Application for relief from unfair dismissal.

[1] Mr Anthony Evans-Marshall (First Applicant), Mr Ahmed Abuhamdi (Second Applicant) and Mr Mark MacDonald(Third Applicant) have all made applications to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that they have been unfairly dismissed from their employment with Adadn Pty Ltd (Respondent/Employer).

[2] The Applications were filed separately on 26 March 2020 (First Applicant), 3 April 2020 (Second Applicant) and 20 April 2020 (Third Applicant). The matters were originally allocated to the late Deputy President Kovacic. The Deputy President decided to jointly program the matters for determinative conferences to be conducted on 3 and 4 August 2020. On 31 July 2020 the Deputy President died. The matters were reallocated to me. I heard them all on 4 August 2020. There was no attendance by the Respondent. In more detail below I set out the procedural matters that occurred prior to the matters being allocated to me. I am satisfied that the Respondent was afforded every opportunity to participate in the proceedings. It elected not to do so. 1 I have had regard to all of the material that had been filed in the matters when the Deputy President had carriage of them in coming to this decision.

[3] The Applicants all seek compensation and the Second Applicant also seeks reinstatement. While the applications did not travel in tandem, there is much overlap in their procedural history, and in the evidence and submissions, to make it appropriate to deal with the applications in the one decision.

[4] In coming to this decision, the Commission, as presently constituted, has had regard to the filed material, the oral evidence and other documents tendered during the determinative conference. That material was as follows:

When can the Commission order a remedy for unfair dismissal?

[5] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[6] Both limbs must be satisfied. I am therefore required to consider whether the Applicants were protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicants were so protected, whether the Applicants have been unfairly dismissed.

When is a person protected from unfair dismissal?

[7] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[8] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

[9] In the present matters it is uncontested, and I am satisfied that, in respect of each of the Applicants:

a) they were protected from unfair dismissal;

b) they were dismissed;

c) the Respondent was not a small business;

d) the dismissals were not a case of genuine redundancy.

[10] I am also satisfied that each of the applications were made within 21 days of the respective employment of each of the Applicants ending.

Background

[11] As stated above, although it was provided with every opportunity to do so, the Respondent played no part in the proceedings. Consequently, I am left with the uncontested evidence of the Applicants.

The First Applicant - Evans- Marshall

[12] I make the following findings of fact in relation to the First Applicant:

•  On 23 May 2019, the First Applicant began his employment with the Respondent as a full-time CW3 Carpenter.

•  The First Applicant relocated from New South Wales to the Australian Capital Territory for the position.

•  The First Applicant’s employment was covered by the Building and Construction General On‐Site Award (the Modern Award). The Modern Award provides for consultation in Part – 8.

•  The First Applicant also received the following contractual entitlements:

•  a base rate of $38.00 per hour;

•  a living away from home payment of $200.00;

•  accommodation; and

•  a weekly payment of $100.00 to the First Applicant’s Australian Construction Industry Redundancy Trust.

•  The First Applicant is a member of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

•  The First Applicant generally worked 6 days per week, making around $2000 - $3000 gross per week.

•  The First Applicant’s time sheet did not have the $200 working away from home allowance and $100 a week payment to his ACIRT account reflected on it.

•  On 11 December 2019:

•  the First Applicant was engaged in ‘stripping jump’ as instructed by his supervisors.

•  During this exercise the First Applicant suffered an injury to his back

•  The First Applicant sought medical treatment for this injury

•  The First Applicant was provided with a work cover certificate (December Certificate) of capacity noting he had suffered a back injury

•  The site foreman picked the First Applicant up from the medical centre and drove him back to site

•  When the First Applicant arrived on site he presented to the site office and supplied the foreman with the December Certificate.

•  The First Applicant Mr Ernest Kain was also in the site office.

•  The First Applicant then left the site.

•  Around a week later:

•  the First Applicant visited the doctor where he was provided with a further medical certificate due to the injury he suffered.

•  The certificate was valid until 18 December, which was up until the point the First Applicant had annual leave booked.

•  The First Applicant visited the work site and provided this certificate to either Mr Ernest Kain or another supervisor.

•  The individual the First Applicant handed the certificate to, said something to effect of ‘Oh well, I’ll see you next year, then’.

•  During the period 18 December 2019 and 7 January 2020 the First Applicant attempted to contact Mr Ernest Kain multiple times in relation to his pay.

•  On 20 December 2019 Mr Erenest Kain sent a text message to the First Applicant outlining that the Respondent was still waiting to hear from the insurance company about the approval of his claim.

•  On 7 January 2020:

•  the First Applicant returned to Canberra to attend his Doctors appointment

•  When he arrived at his appointment, he was told that he could not be seen because the Respondent had not paid their account

•  The First Applicant phoned a staff member of the Respondent and notified them of this.

•  The Doctor did see the First Applicant, however, would not provide the medical certificate until either the First Applicant of the Respondent paid the account.

•  Some time after this appointment the First Applicant returned to Sydney

•  On 13 January 2020, First Applicant was then contacted by Mr Kain instructing him to attend an appointment with a doctor located in Canberra that had been organised by the pay roll officer for the Respondent.

•  The First Applicant did not attend this appointment, the first application outlines that he did not attend this appointment as it was scheduled for the following day and he did not have money to pay for petrol to drive from Sydney to Canberra.

•  The First Applicant phoned and cancelled this appointment

•  The First Applicant attempted to contact Mr Kain on a number of occasions, however, Mr Kain outlined that he had not yet talked to Ms Karen Rowland, the payroll officer at the Respondent about his situation.

•  At some point during March 2020, the First Applicant had another phone call with an employee of the Respondent, who the First Applicant knows to be called ‘Beau’.

•  The First Applicant was advised by Beau that he would be back paid once his workers compensation claim had been finalised.

•  On 18 March 2020, the First Applicant received a payslip from the Respondent that stated his employment had ended on 17 March 2020.

•  No reason for the termination of his employment was provided by the Respondent.

•  On 26 March 2020, the First Applicant commenced proceedings.

The Second Applicant - Abuhamdi

[13] I make the following findings of fact in respect of the Second Applicant:

•  On 21 August 2019 the Second Applicant commenced employment with Respondent as a full-time CW3 Labourer.

•  The Second Applicant relocated from New South Wales to the Australian Capital Territory for the position.

•  The Third Applicant’s employment was covered by the Building and Construction General On‐Site Award (the Modern Award). The Modern Award provides for consultation in Part – 8.

•  The Second Applicant received a living away from home payment of $200.00.

•  The Second Applicant is a member of the CFMMEU.

•  The Second Applicant generally worked 6 days per week, making around $2000 - $3000 gross per week.

•  The Second Applicant worked on Saturday 28 March 2020

•  On Monday 30 March 2020 the Second Applicant did not attend work as he visited a Doctor and received a medical certificate, which he provided to the Respondent

•  On the morning of Tuesday 31 March 2020, the Second Applicant:

•  attended the work site he was working at.

•  was approached by Mr Ori Arslan, an officer of the Respondent who advised him that a screen had fallen at the site on the Sunday and there was no more work for him at the site, effective immediately.

•  advised he was not at the work on Sunday, Mr Arslan said words to the effect of ‘I don’t care’.

•  had his employment terminated.

•  On 3 April 2020, the Third Applicant commenced proceedings.

The Third Applicant – MacDonald

[14] I make the following findings of fact in respect of the Third Applicant:

•  On or about 1 July 2019 the Third Applicant commenced employment with Respondent as a full-time CW3 Carpenter.

•  The Third Applicant relocated from Queensland to the ACT for the position.

•  The Third Applicant’s employment was covered by the Building and Construction General On‐Site Award (the Modern Award). The Modern Award provides for consultation in Part – 8.

•  The Third Applicant also received the following contractual entitlements:

•  a higher base rate of $38.00 per hour;

•  a living away from home payment of $200.00;

•  accommodation; and

•  a weekly payment of $100.00 to the Third Applicant’s Australian Construction Industry Redundancy Trust.

•  The Third Applicant is a member of the CFMMEU.

•  The Third Applicant worked for the Respondent without incident from 1 July 2019 to 2 April 2020.

•  On 3 April 2020:

•  the Third Applicant attended work as normal.

•  During the day, the Third Applicant heard from other workers that Mr Ori Arslan, the Third Applicant’s supervisor, was unhappy with the Third Applicant spending time on his phone.

•  Following this chat, Mr Arslan approached the Third Applicant and said words to the effect of: “You Queenslanders are so expensive… If you can’t strip this jump before the end of the day, you’re fired.”

•  After completing the required work ahead of time at around 1pm or 2pm, the Third Applicant called his leading hand, and the leading hand told the Third Applicant that he was fired.

•  The Third Applicant collected his tools and left the site at the end of the day.

•  At around 3pm or 4pm, the Applicant called Mr Arslan, who said words to the effect of “Hi Mark. The job is finishing up and we have to fire some people, I’ve been told you’re spending too much time on your phone and not getting the work done.”

•  The Third Applicants employment ceased.

•  On 20 April 2020, the Third Applicant commenced proceedings.

Procedural history of the Applications

[15] Before turning to consider the merits of the applications I set out the procedural history to illustrate my reasons for hearing the matters in the absence of the Respondent. The history is based on the material on the file and correspondence from my Chambers after the matters were allocated to me for hearing.

The First Applicant - Evans- Marshall

[16] The first Applicant lodged his application on 26 March 2020. The Application was listed for a conciliation conference on 4 May 2020. Prior to the conciliation conference, the Respondent was asked to provide a Form F3 – Employer’s response to the application setting out its position in relation to the claim. The Respondent did not file the Form F3 Response and did not attend the conciliation conference. As such the first conciliation conference did not proceed due to the Respondent’s non-attendance.

[17] A file note indicates that a case manager from the Commission’s Unfair Dismissal Case Management Team (UDCMT) contacted the Respondent twice on 29 April 2020 to follow up the Form F3 with the Respondent and also obtain contact details for the upcoming conciliation.

[18] The Commission sent correspondence by email advising the matter would be listed for a further conciliation on 20 May 2020 and again asked the Respondent to complete the Form F3. The matter was not settled at this conciliation.

The Second Applicant - Abuhamdi,

[19] The Second Applicant lodged his application on 3 April 2020. The Application was listed for a conciliation conference on 12 May 2020. Prior to the conciliation conference, the Respondent was asked to provide a Form F3 – Employer’s response to the application setting out its position in relation to the claim. The Respondent did not file the Form F3 Response and did not attend the conciliation conference. As such the conciliation conference did not proceed due to the Respondent’s non-attendance.

[20] On the same day the Commission sent correspondence by email advising the matter would be listed for hearing. Ms Karen Rowland, Finance Officer for the Respondent, contacted the Commission requesting that the matter be listed for another conference. The emailed outlined:

Hi Keith,

As discussed with Ahmed who’s number I believe you have 0456 000 426. On the day Ahmed will be able to bring me into the conference. As I have been reading over them matters and the employee’s seem to be giving misleading information.

But we please request the if possible this matter and I believe there is one for Anthony Evans;Marshall, and Ahmed Al Saedi could be heard all at once on one day the only days I am not available are Tuesday and Wednesday. And due to the pandenmic I am working from home and between the hours of 9.00am and 2.00pm are suitable.

If you can please confirm you have received this email.

Karen Rowland

Finance Officer

ADADN PTY LTD

The Third Applicant - MacDonald

[21] The third Applicant lodged his application on 3 April 2020. The Application was listed for a conciliation conference on 1 June 2020. Prior to the conciliation conference, the Respondent was asked to provide a Form F3 – Employer’s response to the application setting out its position in relation to the claim. The Respondent did not file the Form F3 Response and did not attend the conciliation conference. As such the conciliation conference did not proceed due to the Respondent’s non-attendance.

All Applicants

[22] On 19 June 2020, correspondence was sent to the Parties from the Chambers of Deputy President Kovacic which stated:

Dear Parties

RE: U2020/3644 - Evans-Marshall v ADADN Pty Ltd

RE: U2020/4103 - Abuhamdi v ADADN Pty Ltd

RE: U2020/5251 - MacDonald v ADADN Pty Ltd

The above three matters are allocated to the Chambers of Deputy President Kovacic. The Respondent is yet to file a Form F3 by way of response to the above applications.

Chambers requests that the Respondent file a Form F3 response for each of the abovementioned matters as soon as possible. A copy of the Form F3 is attached for your convenience.

Kind regards

Acting Associate to Deputy President Kovacic

[23] Directions for filing of material in the matters were sent to parties by the Deputy President’s Chambers on 18 June 2020. The Applicants were directed to file their material by 2 July 2020. The Respondent was directed to file its material by 23 July 2020. The Applicants were directed to file any reply submissions by 30 July 2020. The Directions also included a Notice of Listing setting down each matter for hearing. The First Applicant at 2pm on 3 August 2020, the Second Applicant at 10am on 3 August and the Third Applicant at 10am on 4 August 2020.

[24] On 24 July 2020, the Deputy President issued Form F51’s ‘Order Requiring a Person to Attend the Fair Work Commission’ for each matter, requiring Mr Ahmed Dib for the Respondent to attend each of the hearing times.

[25] On 30 July 2020 the matters were allocated to me to hear. On the same day, I listed the matters for a Mention and/or directions hearing via telephone for 11:30am the following day, 31 July 2020.

[26] A Notice of listing to that effect was sent to the parties by my Chambers. That same day my Associate contacted the head office of Adcon Group and asked to speak with Mr Danny Isaac, the Managing Director to alert him to the listings of 31 July and the following week. The Receptionist advised my Associate that she would get Mr Isaac to call her as a matter of urgency. The receptionist was also unable to tell my Associate if Mr Dib still worked for the Respondent. On this same morning my associate called both Mr Dib and Mr Isaac and left voicemails for them both.

[27] When my Associate did not hear back from Mr Isaac by the afternoon she again called the head office of Adcon Group and explained why she was calling, the receptionist provided Mr Issacs’s email. My Associate emailed Mr Isaac’s and outlined:

Dear Mr Isaac

I bring you attention to three matters that are now before Commissioners Johns of the Fair Work Commission that relate to Adadn Pty Ltd. There is a joint Mention and/or directions listing for the three matters via teleconference tomorrow, Friday 31 July 2020 at 11:30am (AEST) (see attached Notice of Listing for dial in details). Can you please ensure that yourself or a representative from Adadn Pty Ltd dials into the teleconference tomorrow.

The matters are:

- U2020/4103 - Abuhamdi v Adadn Pty Ltd (listed for Arbitration hearing on Monday 3 August 2020 at 10:00am (AEST))

- U2020/3644 - Evans-Marshall, Anthony v ADADN Group (listed for Arbitration hearing on Monday 3 August 2020 at 2:00pm(AEST))

- U2020/5251 - MacDonald, Mark v Adadn Pty Ltd (listed for Arbitration hearing on Tuesday 4 August 2020 at 10:00am (AEST))

These matters were previously before Deputy President Kovacic, however, due to unforeseen circumstances he is no longer able to deal with them.

I note, the Notice of Listing details for tomorrow were also emailed to Mr Ahmed Dib earlier today and I made several attempts today to make contact with Mr Ahmed Dib and yourself to confirm attendance tomorrow and also attendance at the hearings next week.

Kind regards

Associate to Commissioner Johns OAM

[28] On Friday 31 July 2020 at the scheduled commencement time of the Hearing the Applicants Representative Mr Fischer from the CFMMEU was in attendance. The Respondent again did not appear. As it appeared likely that the Respondent would not engage with the proceedings, I directed that the matters be relisted at the following times:

- First Applicant 12pm Tuesday 4 August 2020;

- Second Applicant 11am Tuesday 4 August 2020; and

- Third Applicant 10am Tuesday 4 August 2020.

[29] On 31 July 2020, my Associate again contacted the Parties via email and outlined:

Good evening Parties

Please see attached Notice of Listings in relation to matters:

- U2020/5251 - MacDonald v Adadn Pty Ltd

- U2020/4103 - Abuhamdi v Adadn Pty Ltd

- U2020/3644 - Evans-Marshall v Adadn Pty Ltd

I note these matters are listed for Arbitration Conference/Hearing this coming Tuesday 4 August 2020 at the respective times listed on each Notice of Listing.

Please let me know if you have any questions.

Kind regards

Associate to Commissioner Johns OAM

[30] At 10am on 4 August 20200, which was the scheduled commencement time of the hearing for the Third Applicant Applicants representative was in attendance and the Respondent did not appear. My Associate contacted Mr Dib via phone at the start time of the first hearing Mr Dib did answer one call, my Associate reminded him of the Order for him to attend the hearing that was issued by the Deputy President, however, he outlined he would be not attending and that my Associate was best to contact Mr Ori Aslan. My Associate phoned Mr Aslan and he outlined that he would not attend the hearings for today. My Associate proceeded to call Mr Dib back multiple times in an attempt to get him to appear, however the calls went unanswered. As such, I proceeded to hear the matters in the Respondent’s absence.

[31] To afford the Respondent one final opportunity to file submissions and any evidentiary material in relation to the matters, the following email was sent from my Chambers to the parties (including the email address for Ms Rowland and Mr Isaac) on 9 September 2020:

Dear Mr Isaac

U2020/4922 Teixeira v Adadn Group was heard on 2 July 2020 before Deputy President Kovacic in Canberra. Despite being provided with the opportunity to do so, there was no attendance by a representative of Adadn Pty Ltd. This matter has now been reallocated to Commissioner Johns for him to issue a decision.

Further matters, U2020/5251 MacDonald v Adadn Pty Ltd; U2020/4103 Abuhamdi v Adadn Pty Ltd; and U2020/3644 Evans-Marshall v Adadn Pty Ltd, were heard before Commissioner Johns on 4 August 2020. Despite being provided with the opportunity to do so, there was also no attendance by a representative of Adadn Pty Ltd in those matters.

As a final opportunity to afford Adadn Pty Ltd with procedural fairness the Commissioner now provides you with a final opportunity to file submissions and any evidentiary material in relation to these applications. If you wish to do so these must be filed by close of business Friday, 11 September 2020.

If you do not file any submissions and/ or evidentiary material the Commissioner will decide the applications on the basis of the material before him. If you do provide material, the Commissioner will provide the Applicants with the opportunity to provide further submissions or evidentiary material in reply.

Kind regards

Associate to Commissioner Johns OAM

[32] The Respondent did not file material nor reply to the correspondence.

Was the dismissal harsh, unjust or unreasonable?

[33] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 2

[35] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[36] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5

[37] The Respondent made no submissions. There was no evidence that any of the dismissals related to their capacity or conduct. Consequently, I am satisfied that, in respect of each of the Applicants, there was no valid reason for the dismissals.

Was the Applicant notified of the valid reason?

[38] Because there was no valid reason for the dismissals it necessarily follows that the Applicant was not notified of any such reason. 6

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[39] Because I have not found that there was a valid reason for each of the dismissals, this factor is not relevant to the present circumstances. 7

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[40] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[41] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”8

[42] This factor is not relevant to the present matters.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[43] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Impact of the size of the Respondent on procedures followed and Absence of dedicated human resources management specialist/expertise on procedures followed

[44] The size of a Respondent’s enterprise may impact on the procedures followed by it in effecting a dismissal. Further, the presence of dedicated human resource management or expertise in a Respondent’s enterprise should ensure a higher standard of management of human resources.

[45] The Applicants representative submitted that the size of the Respondent’s enterprise did not mean that it was open to the Respondent to apply procedures that were devoid of fairness as follows:

S387(f) & (g) – the respondent’s business is a major formwork contractor, operating up and down the eastern seaboard of Australia with hundreds of staff at any one time. They have specialist payroll staff who perform HR functions; and there is no reason not to hold them to a high standard in relation to this dismissal.

[46] The process, or complete lack of process left much to be desired. However, in all the circumstances of these matters, I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

What other matters are relevant?

[47] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. I have not taken into account any other matters than those addressed above.

Is the Commission satisfied that the dismissals of the Applicants were harsh, unjust or unreasonable?

[48] Where relevant I have made findings in relation to each matter specified in section 387 as relevant.

[49] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 9

[50] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissals of each of the Applicants was harsh, unjust and unreasonable.

Conclusion

[51] I am therefore satisfied that the Applicants were unfairly dismissed within the meaning of section 385 of the FW Act.

Remedy

[52] Being satisfied that each of the Applicants:

•  made an application for an order granting a remedy under section 394;

•  was a person protected from unfair dismissal; and

•  was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order reinstatement, or the payment of compensation.

[53] Under section 390(3) of the FW Act, I must not order the payment of compensation to any of the Applicants unless:

(a) I am satisfied that reinstatement of an Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of the Applicants inappropriate?

[54] Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In respect of each of the Applicants I am satisfied that reinstatement is inappropriate. The Respondent has demonstrated that it is an appalling employer. Nothing in its conduct towards the Applicants is redeeming. It would be completely inappropriate to expect that the Applicants should again work for the Respondent. Consequently, I am satisfied that in all of the circumstances reinstatement is inappropriate in respect of each of the Applicants.

[55] I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[56] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 10

[57] However, having regard to the conduct of the Respondent towards each of the Applicants, in all the circumstances, I consider that an order for payment of compensation is appropriate.

Compensation – what must be taken into account in determining an amount?

[58] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 11 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages12.”13

[59] Section 392(2) of the FW 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.

[60] I consider all the circumstances of the matters below.

Effect of the order on the viability of the Respondent’s enterprise

[61] Because the Respondent decided not to participate in the proceedings here was no evidence or submissions about what effect, if any, an order might have on the viability of the Respondent’s enterprise. Consequently, I am satisfied that an order for compensation will not have an effect on the viability of the employer’s enterprise.

Other matters

[62] I make the following findings of fact in relation to each of the Applicants:

Compensation – is the amount to be reduced on account of misconduct?

[63] If I am satisfied that misconduct by any of the Applicants contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct. There being no evidence or submissions about the valid reason for dismissal, any reduction for misconduct is not relevant in these three applications.

Compensation – how does the compensation cap apply?

[64] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[65] The high-income threshold immediately before the dismissal was $148,700. Half of that amount is $74,350.

[66] I will reduce the amounts of compensation to the extent they exceed the statutory limits.

[67] In light of the above, I make three separate Orders that will be issued with this decision that the Respondent pay the following amounts to the Applicants within 21 days of the date of this decision:

a) The First Applicant - $16,107.50 16.

b) The Second Applicant - $52,450.61. 17

c) The Third Applicant - $38,470.17. 18

[68] In the event of non-compliance with the Orders, I refer the Applicants to the information set out on the Commission’s website in relation to the enforcement of Fair Work Commission orders in an appropriate court which can be found at the following link. (https://www.fwc.gov.au/unfair-dismissals-benchbook/role-of-the-court#field-content-0-heading)

Commissioner

Appearances:

T Fischer for the Applicants.

No appearance by or on behalf of the Respondent.

Hearing details:

4 August.
2020.
Sydney via video.

Printed by authority of the Commonwealth Government Printer

<PR724662>

 1   This is not the first time that the Respondent has elected not to participate in Commission proceedings; see Hilario v Adadn Pty Ltd [2020] FWC 2406

 2   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 3   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 4   Ibid.

 5   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 6   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

 7   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

8 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 9   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

 10   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

 11   (1998) 88 IR 21.

 12   [2013] FWCFB 431.

 13   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

 14   As stated by a majority of the Full Court of the Federal Court in He v Lewin [2004] FCAFC 161, [58], “[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.”

 15   The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal (see Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45]) What is reasonable depends on the circumstances of the case (see Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581).

 16   PR724651

 17   PR724652

 18   PR724653