Employee wins $9600 in unfair dismissal case, after employer is a no-show

For the second time this year employers are being urged to actually attend unfair dismissal hearings, after an employee of a Melbourne tiling business was granted compensation following a hearing where his employer did not attend.

Deputy president GR Smith of the Fair Work Commission found in his judgment the employer “did not attend, but was aware of the proceedings”.

The Fair Work Commission found Joe Perfetto, once an employee of Straitline Tiling Contractor, had been unfairly dismissed and Straitline Tiling Contractor was ordered to pay $9600 to Perfetto in compensation, less tax.

Perfetto had been dismissed from his employment on November 23, 2012, in a telephone conversation with his employer on the grounds of being unreliable and failing to turn up to an unpaid job.

A requirement of Perfetto’s job was attending a trade school, a necessity under his training agreement.

As well as working during the day, Perfetto had been working some nights to assist his employer in renovating his other business, a restaurant called Stuzzi, without remuneration.

On the night Perfetto was dismissed he received a call from his employer, after he had attended trade school, asking him why he wasn’t at the restaurant. Perfetto stated he was not able to assist his employer that evening and this triggered his termination.

In a note placed in the case file, Straitline Tiling Contractor said Perfetto had been dismissed due to lack of work, but as the employer was not present at the hearing and Perfetto argued this was false, Smith ruled Perfetto’s termination had been unfair.

“It appears the grounds for his dismissal were that Mr Perfetto was unable to attend further unpaid work at the employer’s other business, and whilst there is no evidence to this effect, he advised the union and the matter was unable to be resolved.

“I also note the concern held by Mr Perfetto that his employer was reluctant to permit him to attend trade school, as he has put in submissions that he had missed trade school on other occasions due to work demands by the employer,” Smith says.

Smith ruled Perfetto’s dismissal was not in line with the small business fair dismissal code and determined he was terminated “harshly, unjustly and unreasonably”.

SmartCompany contacted Straitline Tiling Contractor, but no comment was available.

TressCox Lawyers partner Rachel Drew told SmartCompany it’s uncommon, although not unheard of, for an employer not to attend an unfair dismissal hearing.

“There are lots of possible reasons for this, often a company could be in a difficult financial situation or simply not understand the significance of these hearings.

“However it doesn’t automatically mean the other side will win. The commission will always exercise its discretion, but when the party isn’t there to highlight the best parts of their case, it’s more likely it will be an unfavourable outcome for them,” she says.

Drew says it’s not unusual for workers to be expected to work outside of the usual nine to five workday, but Perfetto’s situation is not common in unfair dismissal cases.

“There is certainly a concept in professional employment that you do more hours than nine to five, but with Perfetto, this is a different type of work he does and it’s possible this worker would have a separate claim for compensation,” she says.

For businesses, Drew says it pays to recognise the significance of unfair dismissal cases.

“In this case we don’t have the employer’s side, so employers really need to be aware that ignoring it [unfair dismissal claims] is at their own peril,” she says.

Drew says compensation for unfair dismissal cases is typically “quite modest”.

“It’s limited to six months compensation of the employee so the absolute maximum is around $60,000, but this will increase from July 1 to $64,650.

“It is quite common for the awards to be fairly modest. The commission also has to take off any income the employee earns after their termination,” she says.

In this case, the amount of compensation Perfetto received was lowered because he had received $1200 from Centrelink.

Earlier this year the owner of a Western Australian art gallery failed to attend an unfair dismissal conciliation despite the FWC attempting to contact him, this resulted in an employee receiving $3000 in compensation as the other side of the case was unable to be heard.


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