Workplace Relations Act 1996 – s.643 – Application for relief re (unlawful and harsh, unjust or unreasonable) termination of employment
Unfair Dismissal After Taking A Day Off Sick
Mr Ando was employed by Personalised Freight Management from 17 September 2007, until his dismissal on 8 July 2008. He put forward that he was dismissed after taking a day off due to illness.
Mr Ando was represented by AWNA’s Mr Gary Pinchen in an arbitration hearing conducted on 7 October 2008. On 22 October 2008 Commissioner Smith handed down a decision ruling that Mr Ando’s dismissal was harsh, unjust or unfair. Commissioner Smith ordered that the Respondent pay Mr Ando an amount of $5,144 as compensation for economic loss.
Commissioner Smith’s Edited Decision
[1] The following now edited decision was given in transcript on 6 November 2008.
“This is an application pursuant to s.658 of the Workplace Relations Act 1996 (the Act) for an order in relation to the payment of costs arising out of the decision issued by me on 22 October 2008.
In the circumstances of that decision the company, whilst its Solicitors provided material, was not represented at the proceedings other than by an employee of the company who was unable to put forward any materials at all to assist the Commission.
In relation to the present application I am satisfied that Personalised Freight Management has caused costs to be incurred by Mr Ando and that those costs have been incurred because of Personalised Freight Managements unreasonable position in these proceedings including failing to be properly represented.
It has failed to put any submissions and it has failed to support material put by the Solicitors representing it. A proper case has been made out for the awarding of costs. Therefore an order shall be made.
In addition, the Solicitors on the record Georgeson & Company, Solicitors will be allowed five working days to put submissions to me as to why they should not be enjoined in accordance with s.658(4) of the Act to the order in relation to costs.
[2] By letter dated 11 November, Georgeson & Company made submissions as to why an order should not be made against it. In short, it submitted that no application was formally made; no conclusion could be drawn that it caused costs to be incurred or that costs were incurred because of any unreasonable act or omission. Further it outlined the instructions it had been given. I am satisfied that Georgeson & Company were acting according to their instructions.
[3] Whilst disappointed that a level of courtesy was not extended by advising the Commission of the limited instructions held by Georgeson & Company, there is no basis for awarding costs against the representative.
[4] An order will issue only against the respondent.
