s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no employer response - remedy

• [1] This decision concerns an application by Mr Ben Marcakis (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act), in relation to his employment with PWB Vegetation Management Pty Ltd (the Respondent).

• [2] On 10 June 2025, Mr Marcakis applied to the Commission for a remedy for unfair dismissal. The Respondent did not provide a response.

• [3] Mr Marcakis commenced his employment with the Respondent on Monday 25 November 2024 and was informed on Tuesday 27 May 2025 that this position was being made redundant on that day, having served 6 months with the Respondent. He was employed as a Vegetation Worker - Supervisor. The Applicant submits that the dismissal was unfair as it was not a genuine redundancy. The Applicant seeks compensation as his remedy.

• [4] The Respondent failed to submit a Form F3. The Respondent also did not attend the Mention. Subsequently, upon issuing of Directions by my Chambers, the Respondent failed to comply with any of the directions and did not attend the hearing. Therefore only the Applicant's submissions and materials were relied upon and tendered.

• [5] I find that the Applicant was dismissed and is a protected person from unfair dismissal.

• [6] Section 385 of the Act requires that I decide four matters before considering the merits of Mr Marcakis' application. They are whether the person was dismissed, the dismissal was harsh, unjust or unreasonable. The dismissal was consistent with the Small Business Fair Dismissal Code and, the dismissal was a case of genuine redundancy.

• [7] There is no evidence before me that the Respondent is a small business and therefore protected by the small business dismissal code. I find that the Applicant completed the minimum employment period to be protected by unfair dismissal.

• [8] The Applicant submits that the purported redundancy was not a genuine redundancy. In the absence of any submissions or evidence to the contrary and the consideration of all the matters below, I accept that the redundancy was not genuine.

• [9] The Applicant contends that the redundancy was not genuine because the work required of him continued after his dismissal. In the hearing, Mr Marcakis gave evidence that the Respondent continued operations and that his role was handed to another worker and the company continued to run the same vegetation management crews under the same operations manager across Victoria and New South Wales. In addition, he submits his position was still required and relies on the Respondent's advertisements for no fewer than 23 roles before, during and after his dismissal.

• [10] Mr Marcakis stated that there was no consultation or genuine effort to explore alternatives. Given he had all the relevant qualifications, Mr Marcakis submits that redeployment was possible.

• [11] The remaining issue requiring a determination is whether the dismissal was harsh, unjust or unreasonable. These elements are discussed below.

Whether dismissal was harsh, unjust or unreasonable

Whether there was a valid reason for the dismissal

• [12] The facts are as disclosed by Mr Marcakis in his submissions and evidence. On 27 May 2025, the Respondent emailed a redundancy letter to the Applicant. This letter outlines that his position is no longer required due to changes in the business operations and workforce structure and that it is effective immediately.

• [13] Finding above that the redundancy was not a genuine one, I find there is no valid reason for dismissal.

• [14] The letter of redundancy outlines that the position was made redundant with immediate effect. Therefore, according to the letter, the Mr Marcakis was notified on 27 May 2025.

Whether the person was given the opportunity to respond

• [15] The Applicant submits there was no opportunity to respond. This is evidenced in the following. An email from the Respondent to Mr Marcakis dated 22 May 2025 states that two representatives from the Respondent would be flying over to meet with Mr Marcakis for a meeting but did not disclose that the meeting related to redundancy. Mr Marcakis responded on the same day stating he was available for the meeting, although he asked what the meeting was about and whether he was required to prepare for it. Mr Marcakis informed the Respondent on 26 May 2025 that he would no longer be able to attend the meeting scheduled for 27 May 2025 as it was his rostered day off. Subsequently, the Respondent sent an email on 27 May 2025 to Mr Marcakis outlining that several attempts had been made to contact him. This cover letter also attached the formal redundancy notice. Mr Marcakis responded on the same day acknowledging the decision and complied with their requests to return the company vehicle.

• [16] The Applicant did not have an appropriate opportunity to respond to his dismissal because he was advised of it in email on 27 May 2025 and the dismissal was immediate.

Whether there was a refusal by the employer for the person to have a support person

• [17] Mr Marcakis notes in his submissions that he did not ask for a support person in connection with the discussion that led to the dismissal.

Whether dismissal was related to unsatisfactory conduct

• [18] The dismissal was noted by the employer as a redundancy. No evidence suggests the dismissal was related to unsatisfactory conduct.

Size of the employer's enterprise and absence of dedicated human resources department

• [19] No information has been provided by the Respondent that confirms the size of the business. Evidence of the correspondence indicates that the Respondent has multiple managers in charge of differing facets of the business. It appears the General Manager handled the redundancy talks with Mr Marcakis. It does not appear the Respondent has a dedicated human resources department.

• [20] The Applicant's submissions and evidence regarding other factors include that he:

• Raised multiple safety concerns with the Respondent.
• Needs to support a family of five and that his partner is still on maternity leave.
• Is under severe financial impact arising from the dismissal including the arrangement with his mortgagor to later mortgage payments and that he cannot fuel to attend job interviews in Ballarat.
• Has not received all his outstanding entitlements.

• [21] The dismissal has had a severed financial impact on Mr Marcakis. I consider that the financial hardship imposed on Mr Marcakis is a matter relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.

• [22] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the Applicant's dismissal was harsh, unjust and unreasonable.

• [23] Therefore, I am satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

• [24] Having found the Applicant was unfairly dismissed, I must consider whether reinstatement is appropriate. The Applicant is not seeking reinstatement and all things considered I am satisfied it would be inappropriate to reinstate him.

• [25] I do consider it appropriate that I make an order for the payment of compensation and now consider the criteria for deciding the quantum of compensation as per s.392 of the Act.

Remuneration that would have been received, or would have been likely to receive, if not dismissed

• [26] Mr Marcakis submits that had he not been dismissed, he would still be employed and that the appropriate compensation ordered be up to the statutory cap of 26 weeks' pay.

• [27] There is nothing before me to contradict Mr Marcakis' evidence that he would've continued in his employment had he not been dismissed. Mr Marcarkis' weekly earnings prior to dismissal were $2,115.38 and the statutory cap of this salary is $54,999.88.

• [28] There is no evidence that the Respondent does not have the capacity to pay any amount of compensation. Absent evidence in this regard, no adjustment is made to the compensation amount.

• [29] Noting that Mr Marcakis was employed for marginally more than six months, this length of service alone is not a powerful force for a compensation remedy of a significant quantum.

• [30] For this reason, I adjust the compensation amount to 10 weeks.

Efforts by the person to mitigate the loss suffered

• [31] I am satisfied that Mr Marcakis has taken reasonable steps since the dismissal to mitigate his loss. He has provided the evidence regarding his efforts to mitigate his loss. As at the date of the hearing, Mr Marcakis advised that he had applied to over 35 advertised positions, carefully tailored each of his applications to meet the job criteria and had travelled from his home in Ocean Grove to Melbourne to attend interviews. He gave further evidence that he had participated in multiple interviews. Furthermore, Mr Marcakis has re-enrolled in vocational education training to increase his qualifications to improve his chances of finding employment. No adjustment to the compensation is made on this account.

Remuneration earned in the period since dismissal

• [32] There is no evidence in relation to remuneration earned in the period since dismissal. No adjustment to the compensation amount is made on this account.

Remuneration reasonably likely to be earned in the period between compensation order and actual compensation

• [33] Absent evidence as to Mr Marcakis' work situation post-dismissal, it is not possible to make a reasonable estimate of this kind or to adjust the compensation amount on this basis.

• [34] There is no evidence of any misconduct on the part of Mr Marcakis.

• [35] I do not consider any other matter regarding the quantum of compensation relevant in my consideration.

• [36] When these factors are considered together, the compensation amount to be awarded to Mr Marcakis is 10 weeks' pay. The amount of compensation does not include any amount for shock, distress or the like and does not exceed the statutory cap. As no application has been made for the compensation to be paid in instalments no such order will be made.

• [37] An order for the payment of compensation [PR793643] will issue separately.

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