TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.388, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant commenced as full-time Automotive Engine Reconditioner in 2010 – respondent purchased business in April 2013 and engaged applicant on a casual basis for three months – applicant subsequently engaged full-time until his employment ended on 18 October 2016 – applicant submitted there was no valid reason for dismissal and that he was not afforded procedural fairness or an opportunity to respond – respondent raised jurisdictional objections claiming applicant was not an employee but a sub-contractor – Stevens applied – although there was no employment contract between applicant and respondent, evidence was suggestive of employment on nearly all indicia identified in Stevens – satisfied that applicant was an employee – respondent raised further jurisdictional objection that applicant was not dismissed but had resigned during week of 22 October 2016 – applicant submitted that he was dismissed on 18 October 2016 following text message from respondent which included use of phrases such as ‘you’re a replaceable pawn’ and ‘time has come for u [sic] to part ways’ – evidence suggested that respondent sent message based on belief that applicant had given private information to his ex-wife’s partner – respondent subsequently instructed someone to go to applicant’s house and take his workshop keys – applicant submitted that he attended workshop on 21 October 2016 to discuss issues raised in text message, however, respondent refused to have discussion and told applicant to ‘Get your stuff and get out’ – on balance of evidence, Commission satisfied applicant was dismissed effective 21 October 2016 – jurisdictional objections not established – whether respondent complied with Small Business Fair Dismissal Code (the Code) – respondent put forward several claims against applicant as justification for dismissal, including disclosure of personal information to his exwife’s partner and allegation that applicant offered drugs to another person in workshop – applicant denied disclosing personal information and submitted that allegation that he offered drugs was fabricated – respondent accepted that he had no evidence of what applicant said to his ex-wife’s partner – evidence concerning drug allegation was vague and was not raised with applicant at the time – Commission determined the issue which led to termination of applicant was the belief that applicant disclosed personal information – not satisfied that this issue, nor any other issue raised by respondent, gave reasonable grounds to summarily dismiss applicant – not satisfied that dismissal complied with the Code – no valid reason for dismissal and respondent’s own evidence is that he refused to engage in discussion with applicant following termination, thereby, applicant was not given opportunity to respond – satisfied that dismissal was harsh, unjust and unreasonable – reinstatement not appropriate – Sprigg adopted to calculate compensation – business ceased trading two weeks after applicant’s employment ended – respondent accepted that business would still be trading if applicant was still employed – Commission determined applicant would have continued employment for at least another 16 weeks, equating to $12,800 – deducted $4,840 remuneration received by applicant from casual employment since dismissal – deducted 20% for contingencies given the small nature of the business and that there was a reasonable level of uncertainty about future employment – ordered compensation of $6,368 gross tax plus 9.5% superannuation. Zielke v Pro-built Engine Reconditioning P/L t/a Pro-Built Engine Reconditioning
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