WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2019 WAIRC 00662 CORAM :Commissioner D J Matthews HEARD : Friday, 2 August 2019 DELIVERED : THURSday, 29 August 2019 FILE NO. : U 69 OF 2019 BETWEEN : Shilna Malde Applicant AND Richard Trainer Respondent CatchWords : Unfair dismissal claim - Proceeded in the absence of respondent - Applicant unfairly dismissed - Reinstatement and re-employment impracticable - Compensation ordered Legislation : Industrial Relations Act 1979 s26 Result : Application granted Representation: Counsel: Applicant : In person Respondent : No appearance === REASONS FOR DECISION === ¶1 (Given extemporaneously at the conclusion of proceedings – as edited by Commissioner Matthews) ¶2 I proceed in the absence of the respondent in this matter, because, despite being properly served by the Western Australian Industrial Relations Commission with notice of the hearing, the respondent did not put in an appearance and was not outside the hearing room when called by my Associate. ¶3 These proceedings were commenced against “The Trustee for M4 Unit Trust”. ¶4 The contract of employment produced by the applicant and dated 31 January 2019 was between “M4 Unit Trust as Trustee for the M4 Unit trust” and the applicant. ¶5 That description of an entity seemed nonsensical to me and I enquired of the applicant as to whom she had dealt with in relation to her employment and the execution of the contract. She gave evidence that in relation to both she dealt exclusively with a person named Richard Trainer. ¶6 On the basis of the applicant’s evidence, I am of the view that the applicant’s true employer was Richard Trainer. I consider that it is consistent with equity, good conscience and the substantial merits of the case to amend the respondent to “Richard Trainer”. I have a concern that the case would be affected by “technicalities and legal forms” if I do not make such an order. ¶7 The applicant was employed by the respondent on 31 January 2019. Her employment lasted until April 2019. On 8 April 2019, the respondent sent an email to the applicant sacking her. ¶8 In that email the respondent essentially contended that the applicant had not been performing her role in accordance with expectations and the agreed rate of “website builds” per week. These are allegations that the applicant disputes entirely. She gave evidence she was doing a good job and I have no reason to disbelieve her. She appeared to me to be entirely honest and credible. ¶9 The respondent also contends in the email that the applicant's contract of employment provided for a three-month trial. I have read the contract of employment. There is no reference in it to a three-month trial or any probationary period. In any event, it is still possible for a dismissal to be unfair where it occurs during a probationary period. A probationary period does not give an employer carte blanche authority to treat people however they like. ¶10 The circumstances of the applicant’s dismissal were certainly unfair. You cannot simply overnight, or suddenly, tell someone they are not performing at the expected level and sack them. An employer has to discuss any shortcomings identified and give the employee a chance to improve. An employee has to be warned of the implications of not improving and given a chance to improve and to complete their obligations under the contract. That is what fairness requires, you cannot just unilaterally sack someone on the basis of alleged poor performance without more, even if the person is on probation. ¶11 Therefore, I have no hesitation in finding that the termination of the applicant was unfair. The applicant does not seek reinstatement with the respondent, that is fair enough. The respondent is clearly a very bad employer. Reinstatement is the primary remedy, but if I consider it to be impracticable, and I do so here, then I may move to other matters such as re-employment or compensation. Re-employment again is not feasible, the respondent is a bad employer. ¶12 So, we move then to the question of compensation. Given that the respondent had resolved in his mind to end the employment of the applicant, the question is how long would that have taken to achieve that in a fair way. The respondent did not come along to explain his concerns with the applicant’s performance. On the basis of the applicant’s evidence and her presentation in court, which was one of an earnest and capable human being, I have no reason to believe that she would not have gone on performing at a good level into the future and that the respondent, short of operational difficulties within the business, would have continued to employ her. ¶13 I have not heard anything from the respondent about any difficulties within his business, so I have no basis whatsoever upon which to come to any conclusion other than the applicant would have continued in the employment of the respondent into the indeterminate future and for that reason I order the maximum compensation under the Industrial Relations Act 1979, which is six months’ of salary, which in the applicant’s case would be an amount of $20,007. ¶14 So, the order will be that Mr Trainer pay to Ms Malde the sum of $20,007 forthwith.