Unfair dismissal cases cannot deal with debts

The Fair Work Commission does not have the power, when determining an unfair dismissal case, to order an employer to pay statutory or contractual entitlements to an employee, although smart employers will often use the occasion of a conciliation conference to try to reach a total (often termed a “global”) settlement of issues with an applicant former employee.

“Conclusion

Because Mr Dean’s dismissal was a case of genuine redundancy, the Commission has no jurisdiction to consider the merits of his unfair dismissal application. I will however make some concluding observations.

Mr Dean has been treated very badly. He was given one day’s notice of dismissal after 17 years’ service. The evidence indicates that he had earlier been encouraged to retire. He did not receive payment in lieu of notice under s 117 of the Act, which, given his period of service and age, amounted to five weeks’ pay. He was not paid his redundancy entitlements under s 119, which amounted to ten weeks’ pay. Mr Dean is clearly entitled to these amounts. I say this not in the exercise of power, but as a statement of the obvious.

Mr Dean sought an order that the company pay these entitlements. I explained at the hearing that the Commission has no jurisdiction to make such an order, and that any legal proceedings to recover these amounts would need to be brought in a court. The Fair Work Ombudsman may be able to assist Mr Dean in that regard. However, in my opinion, the company should make these payments to Mr Dean immediately. I have put the company on notice about what I consider to be its clear legal obligations.

If the company does not now pay Mr Dean his redundancy entitlements and payment in lieu of notice, and Mr Dean is put to the trouble of bringing proceedings in a court to recover them, a court may take judicial notice of the company’s conduct in considering the quantum of any penalties for breach of the Act.”

Dean v Victoria Cold Storage  [2020] FWC 4073 delivered 4 August 2020 per Colman DP