Joseph v Mercato Enterprises Pty Ltd [2016] FWC 5004 (25 July 2016) [2016] FWC 5004 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Te Hiumamaeroa Joseph v Mercato Enterprises Pty Ltd T/A Mercato e Cucina (U2016/5117) COMMISSIONER CAMBRIDGE SYDNEY, 25 JULY 2016 Unfair dismissal - no valid reason for dismissal - applicant advised of dismissal during telephone conversation - 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 Melbourne on 4 March 2016. The application was made by Te Hiumamaeroa Joseph (the applicant) and named the respondent employer as Mercato Enterprises Pty Ltd ACN: 606 606 679 (the employer). [2] The application indicated that the date of effect of the applicant’s dismissal was 21 February 2016. 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 the employer did not initially provide any documentary response to the claim by way of a Form F3. Conciliation of the claim occurred on 28 April 2016, but the matter remained unresolved. Directions were issued by the Fair Work Commission (the Commission) for the filing of evidence and submissions in preparation for the Hearing of the arbitration of the claim. The applicant has filed material in accordance with these Directions. The employer has not filed any material in accordance with these Directions. [4] The Commission’s file contains several email communications from a Mr Mark Marando who has acknowledged receipt of material on behalf of the employer. The Notice of Listing and Directions advice documents have been provided to various addresses provided by Mr Mark Marando. [5] At 6:12 pm on Sunday, 24 July 2016, the evening before the Hearing fixed for today, Mr Mark Marando who is apparently a Director of the employer, filed an F3 Employer Response to Unfair Dismissal Application. This F3 document raised jurisdictional objections indicating that it was alleged that the applicant was not an employee, and that the applicant was not dismissed. The F3 document included the following text: “THE APPLICANT WAS NOT EMPLOYED BY THE RESPONDENT. IN ANY EVENT, THE APPLICANT WAS NOT DISMISSED AND RESIGNED WITHOUT GIVING ANY NOTICE”. [6] The provision of extremely late, confounding, and seemingly contradictory information by way of the Form F3 filed on the evening before the scheduled Hearing, represents highly regrettable conduct on behalf of the employer. The veracity of the information contained in the belated Form F3 is questionable, and reflective of the employer’s generally inadequate response to the unfair dismissal claim. [7] The Hearing of the arbitration of the matter has proceeded today with the Commission granting permission pursuant to s.596 of the Act, for the Parties to be represented by lawyers or paid agents. The applicant was represented by Ms M Nasser , a lawyer, and the employer was represented by Mr Marando, a lawyer, and Director of the respondent. [8] Shortly after the Hearing commenced, an issue as to the alleged incorrect identification of the employer was raised by Mr Marando. However, this issue had not been properly articulated by the named respondent, and the applicant sought to press the claim against the employer as the named respondent. [9] In the circumstances, the Commission has decided to proceed and to hear the matter. The applicant was called as the only witness to provide evidence in support of the claim. The Commission accepted and considered the contents of a statement made by the applicant dated 30 May 2016 1 , together with an outline of submissions filed on 30 May 2016. [10] The applicant had worked for the employer (and or related entities), for a period of approximately 2 years and 4 months. At the time of dismissal the applicant worked as a Production Chef and she performed tasks associated with the employer’s restaurant and retail operation located at 297 Victoria Road, Gladesville. [11] On 21 February 2016, the applicant received a telephone call from a Grant Richardson who worked as the employer’s Head Chef. In the course of this telephone call Mr Richardson told the applicant that she was dismissed from her employment. [12] The applicant was not subsequently provided with any written confirmation of her dismissal from employment. [13] The applicant was not paid outstanding wages or other accrued entitlements. Since the dismissal the applicant has sought alternative employment without success. [14] The broadly unchallenged evidence of the applicant has established that she had been dismissed from her employment in an extraordinarily abrupt manner and without proper explanation or reason being provided. [15] 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. [16] In this case, the employer has failed to properly participate in the proceedings before the Commission generally. The employer has also failed to properly articulate a suggestion that as the named respondent, it was not the employer of the applicant. I am satisfied that the employer was provided with proper notice of these proceedings before the Commission. [17] The employer’s failure to properly advance an issue as to any incorrect identification of the employer of the applicant, is broadly consistent with and reflective of the evidence of the unacceptable circumstances of the applicant’s dismissal. In such circumstances, the named respondent should be obliged to answer the claim, and to meet the consequences of the outcome of the application. [18] The evidence has not revealed any valid reason for the dismissal of the applicant. The uncontested evidence has established that; (a) the applicant was dismissed, and; (b) the dismissal was harsh, unjust or unreasonable, and; (c) the dismissal was not consistent with the Small Business Fair Dismissal Code if it were to be applicable, and; (d) the dismissal was not a case of genuine redundancy. Conclusion [19] The applicant was verbally advised of her dismissal by telephone call, and subsequently she was not provided with a letter of dismissal which disclosed any valid reason for dismissal. [20] Upon any analysis and particularly in the absence of a valid reason for dismissal, the applicant’s dismissal was plainly harsh, unreasonable and unjust. [21] 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 [22] The applicant has not sought reinstatement as remedy for her 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. [23] 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 . [24] 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. [25] 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 2 years and 4 months and if she had not been dismissed she 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 six months. [26] I note that the applicant has made efforts to mitigate her 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. [27] Consequently, for the reasons outlined above I have decided that an amount approximating with 20 weeks remuneration at a conservative estimate of an ordinary weekly rate before dismissal, should be Ordered as compensation to the applicant. That amount is $16,689.00. Accordingly a separate Order [ PR583280 ] providing for remedy in these terms will be issued. COMMISSIONER Appearances : Ms M. Nasser appeared on behalf of the applicant. Mr M Marando appearing unrepresented. Hearing details: 2016, Sydney: July 25 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, PR583279>