Industrial Relations Commission of New South Wales CITATION: Buckland -v- Golden Sea Coast Trading Co Pty Ltd [2005] NSWIRComm 1183 APPLICANT Neil Buckland PARTIES: RESPONDENT Golden Sea Coast Trading Co Pty Ltd ABN: 43 086 510 394 FILE NUMBER(S): 4288 of 2005 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - verbal dismissal - no factual basis established for dismissal - absence of documentation- no consultation - ex parte determination - dismissal held as harsh, unreasonable and unjust - reinstatement or re-employment impractical - compensation Ordered. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] HEARING DATES: 11/11/2005 EXTEMPORE JUDGMENT DATE : 11/11/2005 APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT No apperances DECISION: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 11 November 2005 Matter No IRC 4288 of 2005 Neil Buckland and Golden Sea Coast Trading Co Pty Ltd Application by N Buckland re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. EXTEMPORE EX PARTE DECISION [2005] NSWIRComm 1183 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 16 August 2005, by Neil Buckland (the applicant), and named the respondent employer as Golden Sea Coast Trading Co Pty Ltd. It appeared that the respondent employer may also trade under the name Golden Sea Coast Fashion Warehouse and the identification of the respondent employer may be more appropriately made by reference to the ABN:43086510394 (the employer). 2 Proceedings in this matter commenced on 5 September 2005 at which time the employer failed to appear. The matter was listed for further proceedings on 19 October 2005, and the employer again failed to appear. Proceedings were rescheduled for today, 11 November 2005 and regrettably the employer has again failed to appear, despite Notification of Listing for today's proceedings having being posted to the employer by registered mail. 3 The employer's regrettable failure to properly respond to these proceedings, including that there has been no Employer's Reply filed and that file records indicate that representatives of the employer used discourteous and abrupt language when contacted by office staff who were making inquiries on behalf of the Commission, has led to the Commission deciding to proceed to Hear and Determine this matter in ex-parte proceedings. BACKGROUND 4 The applicant is a man who was some thirty nine years of age at the time of his alleged unfair dismissal on 1 August 2005. The applicant had been employed for approximately one year in a full time capacity described as "Events Coordinator/Bookings Officer. 5 The applicant was summonsed to a meeting on 1 August 2005, whereupon the employer's Office Manager, a Mr Gary Speers, told the applicant words to the effect "We are going to have to let you go". The applicant questioned the reason for his dismissal and was provided with suggestion that there had been some financial or economic basis upon which the dismissal was determined. 6 The applicant was not provided with any letter of dismissal or similar documentation. The applicant was provided with final payment on or about 5 August 2005, from which amounts were deducted without the applicant's written authority. CONSIDERATION 7 The circumstances of the applicant's dismissal are disturbing, as is the subsequent conduct of the employer in respect to these proceedings. 8 The Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust. The dismissal was harsh and unreasonable because the employer provided no written explanation for the reason or reasons for dismissal. The apparent verbal explanation for dismissal was inadequate and has been incapable of being established as fact. 9 The dismissal was harsh and unreasonable because the employer did not provide the applicant with any opportunity to offer possible alternatives that may have either mitigated the impact of dismissal or avoided dismissal entirely. 10 Further the Commission finds that the dismissal of the applicant was unjust because amounts were unlawfully deducted from final payment of wages and other entitlements. 11 Consequently the Commission is prepared to find in favour of the applicant. Reinstatement or re-employment would be impractical and is not sought by the applicant. Given the employer's conduct in respect to these proceedings, the Commission would be extremely reluctant to subject the applicant to any further exposure to the employer. Therefore the Commission is prepared to provide for Relief by way of monetary compensation. The amount of compensation has been determined having regard for sections 89(5) and 89(6) of the Act. ORDERS In this matter, for the reasons outlined herein, I have Determined that the dismissal of the applicant was harsh, unreasonable and unjust and I hereby make the following Orders: 1. The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the employer pay to the applicant an amount of compensation of $9,370.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the employer to the applicant within twenty one days from the date of this Decision. oooOOOooo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.