Ruming v Stella Engineering [2016] FWC 2731 (2 May 2016) [2016] FWC 2731 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Christopher Ruming v Stella Engineering (U2015/16872) SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 2 MAY 2016 Application for relief from unfair dismissal – dismissal inconsistent with Small Business Fair Dismissal Code – reinstatement not appropriate – compensation ordered. [1] On 16 December 2015, Mr Christopher Ruming applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Stella Engineering. [2] The matter was heard today, 2 May 2016. Mr Ruming represented himself. Mr Ryan Retton-Howe and Mr Michael Woodcock appeared for Stella Engineering. Mr Retton-Howe was Mr Ruming’s supervisor. Mr Woodcock is the managing director of Stella Engineering. Mr Ruming, Mr Retton-Howe and Mr Woodcock all gave evidence at the hearing and were cross-examined. [3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision. Whether dismissal consistent with Small Business Fair Dismissal Code: s.385(c) [4] I am satisfied that Stella Engineering was a small business employer at the time of Mr Ruming’s dismissal. I accept the evidence that Stella Engineering had a total of 13 employees at the time. The other people referred to by Mr Ruming were either contractors or were irregular casuals, and should not therefore be included in the relevant calculation. [5] The Small Business Fair Dismissal Code says that in cases other than summary dismissal: ‘…the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response…’ [6] I am satisfied that Stella Engineering did not give Mr Ruming a warning that he was at risk of being dismissed if he did not improve his performance. Accordingly, his dismissal was inconsistent with the Small Business Dismissal Code. [7] I therefore need to consider whether Mr Ruming’s dismissal was harsh, unjust or unreasonable. 1 Valid reason: s.387(a) [8] Mr Ruming was dismissed for two reasons, his absences from work and his poor performance when he was at work. [9] The first was not a valid reason for his dismissal. I am satisfied that Mr Ruming’s absences were legitimate, and were largely due to illness. He did not fail to comply with any requirements by his supervisor for medical certificates, etc. [10] I am satisfied that his poor performance was a valid reason for his dismissal. He made too many mistakes and the quality of his work was not up to scratch. Notification of that reason and opportunity to respond: ss.387(b) and (c) [11] He was not notified of those reasons until after the decision to dismiss him had been taken, and therefore he had no opportunity to respond. Warnings about unsatisfactory performance: s.387(e) [12] As I have already noted, he was not properly warned about his unsatisfactory performance before being dismissed. Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g) [13] Stella Engineering is a small business and this would be likely to have an impact on the procedures followed in effecting the dismissal. It lacks access to human resource management expertise. Conclusion and remedy [14] I am satisfied that Mr Ruming’s dismissal was unjust and unreasonable, primarily because of the failure to warn him that his employment was in jeopardy if his performance did not improve. I have also had regard to the fact that one of the grounds of dismissal – temporary absence due to illness – was potentially unlawful. [15] I do not think reinstatement would be appropriate, especially as it is not being sought by Mr Ruming. I do, however, think an amount of compensation would be appropriate in all the circumstances. [16] In determining an amount of compensation I have had particular regard to the following factors: Given the applicant’s poor performance – even if he had been given an appropriate warning, I doubt that his employment would have lasted more than about nime weeks. He has already been paid three weeks’ notice. [17] Accordingly, I order that Stella Engineering pay Mr Ruming an amount of compensation equivalent to six weeks’ pay. An order to this effect will issue concurrently with this decision. SENIOR DEPUTY PRESIDENT Appearances : C Ruming in person. R Retton-Howe and M Woodcock for Stella Engineering. Hearing details: Sydney. 2016. May 2. 1 Fair Work Act 2009 (Cth) s.385(b). Printed by authority of the Commonwealth Government Printer <Price code A, PR579774>