Aussie online operator fights unfair dismissal action

Aussie online operator fights unfair dismissal action

Digital Skies Group under fire from former director

Embattled online electronics store operator, Digital Skies Group, is embroiled in unfair dismissal proceedings brought by a former director of the company.

The company, which operates three online stores, Android Enjoyed, Camera Sky and Klukker, was put on notice by NSW Fair Trading in October last year after the regulator received a series of complaints about the company’s online stores and the electronic products sold by them.

The company’s Android Enjoyed online store sells a range of electronic goods, such as smartphones, watches, computer accessories, and laptops.

At the same time, its Camera Sky website specialises in cameras and related items, while the Klukkur store sells watches.

Now, the company is fighting off an unfair dismissal claim brought by Digital Skies Group shareholder, Christopher Harding, who had been a director of the company until September last year.

On 27 September 2016 – just weeks after NSW Fair Trading warned consumers not to deal with the company – Harding was removed as a director of the company, according to a decision published by the Australian Fair Work Commission on 20 April.

Hung Pam Lee became the sole director of the company from the date of Harding's removal from the role.

Just over a week later, on 5 October 2016, Harding made an application to the Fair Work Commission for a “remedy in respect of his dismissal by Digital Skies Group”.

At the time of the dismissal, Harding was a shareholder in the company, owning a 25 per cent stake in the company, with the remaining 75 per cent split up evenly between Sze Lok Chan, Ching Man Fong and Yuen Ho Wong.

One of the main points in the unfair dismissal claim is that Harding allegedly earned less than the agreed upon high income threshold (HIT) during his tenure with Digital Skies Group and, as such, should be given compensation.

This is a charge the company refutes.

Harding began working with the company on 22 November 2013 as its managing director, according to the Fair Work Commission.

On that day, according to Fair Work Commission documents, Harding entered into an employment agreement that provided for an annual remuneration of $140,000.

However, the agreement also provided for a deferral of the salary in the first year and the ability for the parties to agree on additional deferrals in subsequent years, with such deferrals occurring during Harding’s tenure.

“It is evident that the cash flow/income of the respondent could not support the payment of a $140,000 salary. Consequently, large parts of the salary were said to be deferred,” the Fair Work Commission stated.

On 14 October 2016, Digital Skies Group filed a response to the unfair dismissal application, objecting to the Fair Work Commission hearing into the case, and alleging that Harding earned more than the high income threshold (HIT) and, consequently, was not protected from unfair dismissal.

The company also alleged that the dismissal was consistent with the Small Business Fair Dismissal Code.

While the Fair Work Commission suggests that there is no dispute that Harding completed his minimum employment period and was not covered by a modern award, there was a dispute about whether his annual rate of earnings was less than the HIT.

However, following inquiries, Harding advised the Fair Work Commission that, for the purposes of his application for an unfair dismissal remedy, he was willing to agree that his remuneration was the actual amount paid to him.

“Consequently, the Commission, as presently constituted, is satisfied the applicant was protected from unfair dismissal,” a decision by Commissioner Johns stated.

While the remuneration matter has been put to rest by the Fair Work Commission, the broader unfair dismissal case continues, with a hearing in relation to the second jurisdictional objection – that the dismissal was consistent with the Small Business Fair Dismissal Code – still to be scheduled.

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Tags legalonline retailersDigital Skies GroupAndroid Enjoyed

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