Casual threatened before being unlawfully terminated

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Casual threatened before being unlawfully terminated

In a recent decision, the Fair Work Commission has awarded significant compensation to a long term casual employee who was threatened by the company’s Human Resource (HR) Manager after making enquiries about several employee conditions prior to her termination.

The former employee had worked in the same job as a Machinist for approximately 23 years. The business had changed ownership several times, and she had been employed by the current owners since 2018. Engaged as a casual, the Machinist’s hours had been reduced during the pandemic from 38 hours per week to 29 hours per week to align to JobKeeper payments of $750 per week. On 6 July 2020, she was told by her employer she was no longer eligible for JobKeeper and issued with a separation certificate on 8 July.

The employee claimed her separation was linked to a period of sick leave she took from 25 May to  28 May. Upon returning to work, she was told by her supervisor that she had to repay the time she had off, comprising 29 hours, by working additional hours unpaid. She contacted the Australian Tax Office (ATO) and the Fair Work Ombudsman (FWO), who both told her there was no such requirement.

After unsuccessfully trying to clarify the matter with local management, she was referred to the company’s HR Manager. She claimed before Commissioner Simpson that she was told, “if she did not repay the hours, she could be ‘eliminated’”. She claimed that the HR Manager repeatedly used the phrase ‘eliminated’ during the conversation.

On 6 July 2020, the employee returned to work after a short period of leave. Her supervisor again requested she work unpaid to make up for the 29 hours of sickness absence. Later that day, she was told that the company’s Head of Production wanted her gone immediately. She packed her belongings and left the factory on the same day.

In assessing the facts of the case, Commissioner Simpson rejected the employer’s claims that the separation was due to a shortage of work and the employee’s lack of availability. Rather as he commented, “I have formed the view the real reason for Mrs Greene’s dismissal was due to the fact that the Respondent formed the view she was no longer eligible for JobKeeper and because she refused to make up the 29 hours of Sick Leave”.

Consequently, he determined that the employer did not have a valid reason for dismissal and that there were no other factors that otherwise rendered the termination fair.

The employee did not seek reinstatement. Commissioner Simpson ordered the company to pay compensation of over $14,550.

Vamos [2020] FWC 5909 (6 November 2020)

For queries about jurisdictional matters or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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