WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00713

DELIVERED : Monday, 23 July 2012

FILE NO. : U 113 OF 2012 and B 113 OF 2012

Applicant

AND

BILL DONESKI TRADING AS Clean Image Cleaning Services WA

Respondent

Catchwords : Industrial law (WA) - Alleged harsh, oppressive and unfair dismissal - Alleged denied contractual benefits - Principles applied - Applications upheld - Contractual benefits claim does not provide sufficient compensation for unfair dismissal - Additional compensation ordered.

Legislation : Industrial Relations Act 1979 ss 29(1)(b)(i), 29(1)(b)(ii)

Result : Applications upheld.  Orders made

Representation:

Applicant : Mr L Cohen

Respondent : No appearance

Ex Tempore

1         The Commission has before it two applications, the first is an unfair dismissal application brought by Mr Cohen against Clean Image Cleaning Services WA that was accepted out of time in earlier proceedings before the Commission today. The applicant’s testimony in that matter has been adopted by the Commission for the purposes of these proceedings.  The Commission also adopts its brief ex tempore reasons in relation to the background of the applicant’s claim and the circumstances of the termination of his employment.

2         The second application is one brought under section 29(1)(b)(ii) of the Act that seeks the recovery of certain contractual entitlements which it is said by Mr Cohen were denied on termination of his employment.  Specifically those claims are firstly, two weeks’ salary for the final two weeks of his employment in the amount of $3076.92 gross.  Secondly, one week’s salary in lieu of notice in the sum of $1,538.46 gross.  Thirdly, the sum of $200 for a travel allowance for a period of two weeks and finally, a pro rata sum in respect of a bonus under his contract in the amount of $1,316.67 nett. 

3         The respondent business Clean Image Cleaning Services WA was engaged in the business of commercial cleaning.  The applicant testified that he commenced as the general manager of the respondent business on 27 March 2012 under a written contract of employment which was executed by the parties to it, they being Mr Cohen and the principal of the respondent, Mr Doneski, on 23 March 2012.  A copy of the contract was tendered as exhibit A1.  The appointment of Mr Cohen as the general manager of the respondent followed an interview shortly before, with Mr Doneski. 

4         The essential terms of the contract for present purposes include firstly, payment of a salary of $80,000 per annum which amounts to some $1,538.46 per week gross.  Secondly, payment of a bonus, as it is described, of $5,000 every three months or per quarter.  Mr Cohen in his testimony informed the Commission that in reality this was a part of his agreed remuneration of $100,000 per annum, which he discussed with Mr Doneski prior to accepting the position of general manager.  Thirdly, payment of the sum of $100 per week in respect of a fuel allowance for the use of Mr Cohen’s private motor vehicle and finally, that either party to the contract may terminate it in accordance with its terms by the giving of one week’s notice. The applicant was also on three months’ probation, which was specified in the contract, however, during that time, one week’s notice was still required to be given by either party. 

5         The applicant’s uncontested evidence was that he performed well in accordance with his contract of employment and did all that was required of him by Mr Doneski in the performance of his duties as general manager from his commencement on 27 March 2012.  In the first two weeks it appears that Mr Cohen was paid the salary and allowances in accordance with his contract although he informed the Commission that his payments were received at least one week late.  The applicant was paid his salary and allowances at that time in cash.  As has already been referred to in the extension of time proceedings earlier today, on or about 20 April 2012 Mr Cohen received a telephone call on his mobile phone when he was travelling home after work. He was informed by Mr Doneski that he would not be paid and furthermore, that the respondent could not pay his salary or other allowances.  Mr Doneski informed Mr Cohen that he was not to come back to work. 

6         In the Commission’s view the applicant was, as a consequence of that telephone call, plainly dismissed by that event and was dismissed without notice.  The Commission is also satisfied that the applicant was not paid his salary for the prior fortnight or paid his travel allowance to which he was entitled under his contract of employment.  The applicant’s evidence also was that there were no complaints or concerns raised by Mr Doneski or any other person on behalf of the respondent, about his work performance prior to 20 April 2012. 

7         As to the contractual benefits claim brought by Mr Cohen, the Commission is satisfied and I find that the applicant has been denied contractual benefits due to him under his contract of employment.  These denied contractual benefits include payment of salary for the fortnight prior to his dismissal on 20 April 2012 in the sum of $2,430.77 nett.  Secondly payment of one weeks’ salary in lieu of notice which I imply as a term into the contract of employment between Mr Cohen and the respondent in the sum of $1215.38 nett.  Thirdly payment of a travel allowance of $200 at the rate of $100 per week in the sum of $200 nett. 

8         Finally, as to the bonus, as it was described in the written contract of service, of $5000 per quarter, whilst the letter of appointment does not refer to its payment on a pro rata basis, in view of the unchallenged testimony of Mr Cohen that the bonus was in reality part of his agreed salary, the Commission is prepared to imply a term into the contract to the effect that it should be paid on a pro rata basis as part of Mr Cohen’s overall remuneration.  Therefore, the Commission will make an order in favour of Mr Cohen for denied contractual benefits in the total sum of $5,162.82 nett.

9         As to the claim for unfair dismissal, the applicant was dismissed for no fault of his own.  On the evidence, the respondent in the Commission’s view can only be described as unscrupulous.  Mr Cohen is now out of work and with dependants to support. He has not yet obtained other employment, despite reasonable endeavours to do so.  It is plain that for the purposes of the Commission’s jurisdiction and power, unfair dismissal and contractual benefits claims are separate and distinct.  Satisfaction of one by order does not necessarily satisfy the other.  The Commission is not satisfied in the circumstances of this particular case, that the payment of three weeks’ salary in the contractual benefits matter, will satisfactorily compensate the applicant for his unfair dismissal by the respondent. 

10      The applicant has suffered considerable loss as a consequence of the conduct of the respondent, which loss is ongoing.  According to his testimony, Mr Cohen gave up a position he had for some years to take his new position with the respondent.  In all of the circumstances the Commission considers that a further two months compensation for loss arising from the unfair dismissal would be just and equitable.  Accordingly an order will be made for compensation for unfair dismissal in the sum of $9,723.00 nett.

11      Finally, therefore, the Commission proposes to make the following orders in disposition of both applications. 

12      Firstly in relation to the unfair dismissal that is application U 113 of 2012, as raised during the course of the proceedings the name of the respondent will be amended.  That amendment will be that the present respondent in the application be deleted and in lieu thereof, the respondent be named as “Bill Doneski trading as Clean Image Cleaning Services WA”.

13      Secondly there will be a declaration that the applicant was harshly, oppressively and unfairly dismissed by the respondent on or about 20 April 2012.  Thirdly that the respondent pay to the applicant, as compensation for the unfair dismissal, the sum of $9,723.00 within 21 days.

14      Insofar as application B 113 of 2012 is concerned the Commission will make the following orders.

15      Firstly in the same terms as the unfair dismissal claim the name of the respondent be amended to read “Bill Doneski trading as Clean Image Cleaning Services WA”.

16      Secondly that the respondent pay to the applicant, as denied contractual benefits, the total sum of $5,162.82 nett within 21 days.