The approach taken to dissecting a small business dismissal in an unfair dismissal case is well illustrated by a clinical decision by Commissioner Williams, sitting in Perth, in Mantovani v Industrial Automation Group Pty Ltd (2015) FWC 5242 delivered 4 August 2015.
The Commissioner first found as fact that the motivation for the dismissal was the raising of polite concerns by the employee about he and some of his colleagues experiencing delays in being paid. Next the Commissioner made a finding of fact that the respondent employer was a small business after a head count at the time of the dismissal and concluded that it was.
Next the Commissioner turned his attention to whether or not the Small Business Fair Dismissal Code had been complied with thus; “Mr Mantovani’s actions in previously pursuing and continuing to pursue concerns about the delayed payment of his and other employees’ wages and superannuation was not a valid reason to dismiss him based on his conduct or capacity to do the job. Underscoring this is that in relation to Mr Mantovani’s concern about payments for himself, section 341 of the Act provides that an employee has a workplace right to make a complaint or enquiry in relation to his or her employment.
Mr Mantovani had not been warned verbally or in writing that he risked being dismissed for any valid reason. I find that the dismissal of Mr Mantovani was not in compliance with the Small Business Fair Dismissal Code.”
Next the Commissioner analysed whether the dismissal was a genuine redundancy and found that it was not.
Finally, the Commissioner turned to determine whether the dismissal was harsh unjust or unreasonable under sec 387 of the Act. He noted that he had already found that there was no valid reason for the dismissal;”In this case as I have found above there was not a valid reason for the dismissal related to Mr Mantovani’s capacity or conduct. Rather what occurred was that Mr de Graaf sought to disguise the real reason for dismissing Mr Mantovani by saying his position was redundant when this was not in fact the reason for dismissing him”
The Commissioner concluded that sub-secs (b) through (e) were not relevant in the factual circumstances of the case and that (f) and (g) were not “mitigating factors”.
In a classic judgment about a remedy, Commissioner Williams held that notwithstanding that reinstatement was the primary remedy available to the Commission when it has found in favour of an applicant in an unfair dismissal case, “In this case the evidence has disclosed a serious deterioration in the relationship ….(and) I am satisfied that in the circumstances reinstatement is inappropriate and that in order for the payment of compensation would be appropriate.”
The Commissioner then looked at whether an award of compensation would be likely to affect the financial viability of the respondent, concluding that it would not.
In assessing compensation, Commissioner Williams recognized the “the deterioration in the relationship between” the applicant and the respondent and concluded that it was unlikely that the applicant’s employment would have lasted for more than 4 months beyond the dismissal date and then calculated the difference between what the applicant would have earned during that time and what the applicant had earned (mitigating his loss) and ordered that the respondent pay that sum gross after tax was deducted and forwarded to the ATO.
Judgment was entered accordingly so to speak.