An employer’s ignorance of the law is no excuse, and its failure to comply with a Fair Work Commission (FWC) order is reprehensible. That is the conclusion of the Federal Circuit Court, which recently levied a “significant penalty” against Agad Property Consulting Pty Ltd—practically doubling the employer’s financial obligation in an unfair dismissal matter.
Agad originally recruited an employee from Abu Dhabi for their Sydney office. All went well—with no performance issues—but in a year’s time Agad dismissed the employee with no reason given. The employee filed an unfair dismissal complaint with the FWC.
There, Commissioner John Ryan determined that Agad’s dismissal of the employee was in retaliation for the employee’s declining to remain in Sydney for an additional day to assist Agad’s managing director with matters unrelated to Agad Property business. Ryan ruled the dismissal “harsh and unfair”, and awarded the employee $48,651.
In his finding, Commissioner Ryan acknowledged his responsibility to make allowances for Agad’s obvious lack of human resources (HR) knowledge, but observed that an employer’s lack of HR management experience or specialisation does not exempt the employer from the legal necessity to treat an employee fairly.
Agad failed to pay the ordered unfair dismissal award to the former employee, who, as a result, was forced to depend on social security to support himself and his family. The employee then filed a complaint in Federal Circuit Court (FCC). Steven Amendola, a partner with the Ashurst law firm, represented the employee on a pro bono basis.
FCC judge Norah Hartnett confirmed that Agad’s management had been made aware of Commissioner Ryan’s unfair dismissal order and had refused to comply. She determined that the employer’s noncompliance resulted in additional “stress and financial hardship” to the employee. Judge Hartnett assessed a penalty of $40,000, which is 80% of the maximum allowed by law.
Amendola, the employee’s lawyer, usually works on the other side of labour disputes, representing the employer. In this unfair dismissal case, though, he called the employer’s contempt “egregious”. “They treated this guy appallingly”, he said. His next steps are to immediately act to collect the original award, plus the FCC judgment (in addition to legal costs) from the employer.
