Ms White (Respondent) sought assistance from our team to represent her in an unfair dismissal remedy against employer Serco Australia Pty Ltd (Respondent) in the Fair Work Commission. This was heard by Deputy President Asbury of the Fair Work Commission on 01 June 2019. Given that the unfair dismissal application was made within the 21 day period from cease of employment, and no assertion of Serco Australia being a small business, the matter was dealt with in form of a hearing.

Background

The Respondent was dismissed for serious misconduct on 07 November 2017 having worked as a Detainee Services Officer with the Respondent since 11 May 2011. The grounds for serious misconduct set out by the Respondent was the Applicant’s failure to apply herself to her duties and remain vigilant and attentive by sleeping during shift, and using an iPad for personal use. This was in breach of Serco Australia’s Code of Conduct and Governing Principles.

The Respondent – Serco Australia

The Respondent asserted that her dismissal was harsh, unjust and unreasonable on grounds that she did not engage in serious misconduct, and she was not afforded a support person to be in discussion with Serco Australia request for meeting. The Respondent put forward that Serco advised this was a support person was not necessary, which Serco dispute. In addition the Respondent believed she was not provided an opportunity to respond to allegations and defernd herself.

The Respondent put forward that she was using an iPad whilst a fellow employee was using his iPhone, but in her case to access training through a MY HR application. It was claimed by the Respondent’s co-worker working alongside her that she was playing a game on the iPad, and that later on the co-worker saw the Respondent fall asleep, slumped in her chair with her eyes closed, in breach of Seco’s code of conduct. The Respondent co-worker took ‘evidence’ of the Respondent sleeping by taking photos on his iPhone. The Respondent agreed that she did nod off and sleep, and as such her ability to respond through the period she was on duty was compromised. Influencing factors put forward was that the nodding off and sleeping was likely due to poor lighting. The Respondent also maintained that she had attempted to log into on-line training , but had difficulty logging in.

The Respondent’s Co-Worker

The Respondent’s co-worker (who shared the same shift in this instance), under cross-examination, agreed that Serco’s Policies did not permit use of a phone to which he agreed he did have access too, and was also in breach of this policy. The co-worker also agreed to breaching the policy when he walked away to a service station to purchase a meal. The co-worker said he was not spoken to about his breaches by Serco Australia.

Escalation of Complaint to Serco Australia Management

Ultimateley, the use of the iPad and sleeping on shift was reported by the Respondents co-worker to Serco Australia, along with photographic evidence in an email complaint. This was subsequently followed through by Serco’s Facility Operations Manager, who requested a statement from the Respondent’s co-worker to commence and internal ‘fact-finding investigation’.

Remedy & Compensation

In this case before the Fair Work Commission, Deputy President Asbury was satisfied the dismissal was unfair. This was determined on the basis that the Respondent had not been on any unpaid leave prior to the dismissal, the dismissal of for serious misconduct on the grounds of ‘dishonesty’ did not have reasonable basis. Further, Deputy President Asbury did not believe the Respondent was afforded procedural fairness by way of which Serco conducted the dismissal and denied the respondent an opportunity to respond to the allegations and defend herself.

Both the Respondent and Serco did not feel reinstatement would be appropriate, which Deputy President Asbury supported. As such compensation was to be provided by Serco, assessed as per s. 392 of the Fair Work Act. Calculation was formed on the basis of the cost viability to Serco’s operation, the lengthy employment period of the Respondent, and the likely amount that would have been earnt. No deductions were made for failing to mitigate loss or in respect of misconduct – which was sought by representation for Serco Australia.

Deputy President Asbury issued an order of compensation along with his decision requiring Serco to pay compensation to the Respondent of a gross amount of $6,758 within 21 days of the date of Decision.

We Support Employees

No matter the industry you work within or the sate you reside, whether that be Victoria, Queensland, to Western Australia and everywhere in between, our team have you covered. We understand that being a victim of unfair dismissal is a challenge, but rest assured you are in good hands with Australian Workplace Discrimination Representatives (AWDR). Having supported thousand of client we are well averse to supporting employing through simple and complex workplace matters. Get in touch with our team for a confidential consultation to determine your options for the best outcome.

Source: Jacqueline Waite v Serco Australia Pty Ltd [2018] FWC 3113 (1 June 2018)

The post Case Won: Jacqueline Waite v Serco Australia (2018) appeared first on AWDR.

On 3 August 2020 Ms Renee Lancaster (Applicant) made an application against her employer Canberra Urology Pty Ltd pursuant to  the Fair Work Act 2009 for an unfair dismissal remedy. – With our representation. In this instance the Respondent, Canberra Urology disputed that the Applicant was dismissed from her employment. The Responded also objected the application on the grounds that the minimum period of employment. – also known as the probation period hadn’t been completed.

The Respondent

The Responded claimed the Applicant took her belongings and left whilst saying, “That’s it. I’ve had enough of this place, I’m out of here” and “I’m leaving. I’m out of here”. The Respondent said in a statement filed on 13 October 2020 that he took this as the Applicant resigning from her employment. In this statement the Respondent claimed he noticed the Applicant sitting at her desk the following day, asking “What are you doing here? You said You were leaving”, to which the Applicant ignores him. As such the respondent believed jurisdictional objection applied in this instance.

The Applicant’s Argument

The Applicant’s submission put forward matters to support no such resignation having occurred. 1) The Applicant was not paid a final payment with her entitlements upon the alleged resignation continued to accrue leave. 2) The Applicant wasn’t asked to return the Respondent’s property including office keys and parking pass following the alleged resignation. 3) The day immediately after the day the Applicant was said to have resigned, she attended work and later on that same day sent a text message to Dr Mulcahy advising him that she was required to leave early due to her unwell child. Importantly Dr Mulcahy responded by texting ‘no problem’. There was no question as to her alleged resignation

Outcome

The matter was put forward to Deputy President Dean through the Fair Work Commission to determine whether the Applicant in this instance met the minimum employment period. Deputy Pretendent Dean said that even if he were to accept the version of events advanced by the Respondent that the Applicant words and conduct “That’s it. I’ve had enough of this place, I’m out of here” and “I’m leaving. I’m out of here” alone do not in his view constitute a clear and unequivocal intention to resign.

Accordingly, Deputy President Dean was satisfied the Applicant had more than 12 months of employment with the Respondent. Therefore, the Applicant in this instance is a person protected from unfair dismissal.

The Respondent’s jurisdictional objection to having not met the minimum employment period to put forward an unfair dismissal application was dismissed by Deputy President Dean.

The Case Was Later Appealed By The Respondent

This case was later appealed to a full bench of the Fair Work Commission. In the case of Renee Lancaster v Canberra Urology Pty Ltd the inital outcome determined by Deputy Presedent Dean was maintained on appeal.

Need Support?

If you are in need of support, contact our team of expert Workplace Advisors. We will will work though your unfair dismissal claim and assist you with lodging an application. Get in touch quickly as you only have a very strict 21 days from the date of dimissal. Day one commences the day following the dismissal.

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In fact, the employer actually owed the employee nearly 500 hours of sick leave, and the employer was aware of this when his employee told him that he had cancer.

Employer’s Response

However, in response to the employee’s request to take sick leave, the employer placed pressure on the man to resign. This continuing pressure lasted for nearly a month, but the employee refused to resign.

During the employer’s campaign to coerce his employee to resign, the employer threatened to physically throw the man off the premises.

The Disbelief

Since he had no success in getting his employee to resign, he instead told the man that he did not believe he actually had cancer, and then sacked him, resulting in an unfair dismissal.

No Sick Pay

After sacking the employee, the employer refused to pay sick leave, wages in lieu of notice or annual leave entitlements. The man had worked for this employer for over nine years, and the wages, sick leave and entitlements have been valued at about $16,000.

Legal Action for Unfair Dismissal

Legal action was taken by the Fair Work Ombudsman in the case of this unfair dismissal.  Justice John Gilmour penalised the business and its operators a total of $41,500. The employer’s behaviour was also severely criticised.  Additionally, Perth businessman Pasquale Minniti has been fined $6500 and his private company (AJR Nominees Pty Ltd) has also been penalised an additional $35,000.

Mr Minniti and his company (Hi-Lite Automotive) have until May 25 to pay these fines.

The Fair Work Ombudsman Natalie James has stated that the business owner’s conduct in this matter was simply appalling. Additionally, the Court then signalled a warning to other businesses indicating that any similar behaviours, resulting in unfair dismissal, will simply not be tolerated.

Fired and given the sack due to sick leave?

If you have been fired or sacked due to sick leave and / or your employer has failed to pay you your sick leave entitlements, you may have a claim to put forward to the Fair Work Commission. Our team of Workplace Advisors will help make things right! Winning is in our DNA and we will fight your fight! Get started by contacting us for an obligation free and confidential consultation to discuss the circumstances around your sick leave and dismissal. We support employees with unfair dismissal Victoria and Australia wide.

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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.

Source: Ando V Personalised Freight Management

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Introduction by Deputy President Hamilton

On 14 September 2012 Deputy President Hamilton handed down a decision in which he found that the termination of Mr.Varvaris’s employment by Wilson Parking Australia on 4 May 2012 was harsh, unjust or unreasonable. Deputy President Hamilton further decided pursuant to ss.390-392 that reinstatement was not appropriate and that compensation was an appropriate remedy. He directed that the parties endeavour to settle the remedy by discussions, and that further submissions be filed on the issue of remedy if they were not able to settle the issue. In addition he decided that the remedy would be determined on the basis of those further submissions and submissions already filed. The parties were not able to settle the matter, and submissions were filed in accordance with directions.

Respondent’s Request to Persue a Claim

Mr Varvaris commenced employment with Wilson Parking on 18 August 2008, before he was dismissed on 4 May 2012 for issues of performance and excessive use of a company mobile phone. The respondent excalated a claim to the Fair Work Commission through concilliation.

However, the matter did not settle at conciliation, and Mr Varvaris elected to pursue the claim to an arbitration hearing. My Gary Pinchen from AWNA represented Mr Varvaris in this hearing on 6 September 2012.

Compensations Was Awarded

On 14 September 2012 Deputy President Hamilton handed down a decision stating that Mr Varvaris’ dismissal was harsh, unjust and unfair; he instructed the parties to attempt to settle the issue of compensation. The issue of compensation was not able to be settled by the parties. Therefore, Deputy President Hamilton handed down an order on 12 October 2012, ordering Wilson Parking to pay Mr Varvaris $17,307.69 as compensation for loss of income.

Source: Fair Work Case Varvaris v Wilson Parking

Do You Need Help With A Claim For Compensation?

If you have been the victin of unfair dimissal Victoria get in touch with our team here at AWDR. We will fight your claim and work towards getting you the compensation you deserve.

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