Legal

A gateway to disaster: Unfair dismissal case lost by fencing company after a breakdown in communications

Yolanda Redrup /

A small fencing business has lost an unfair dismissal case, with the commissioner indicating the employer’s lack of human resources expertise and procedures led to the inappropriate termination.

The employee, Aaron Jordan, was a casual employee with Security Fencing and had been working with the business for over two years when he was terminated.

Despite being classed as a casual employee, Jordan worked around 38 hours each week.

In late January, Jordan injured his arm in an incident unrelated to work. He later told his boss he required a day off to get stitches removed.

Aside from visiting the doctor, Jordan also attended a court hearing at which his driver’s licence was suspended – except he didn’t tell his boss.

On the same day, Jordan’s father – who worked at the same business – was dismissed following a fight with another employee.

The following Tuesday, Jordan went to work only to discover the locks had been changed, preventing him from gaining access to the site. Upon telephoning his boss, he learnt the locks had been changed because of the incident involving his father.

Jordan was also questioned about his failure to attend work on the Friday. During this conversation, he was told there was no work for him and considered himself dismissed.

In the employer’s account of events, Jordan had not informed his boss he would require a whole day off on February 8, nor that he was attending a court case and had his licence suspended.

Despite these factors, the employer said on the telephone he’d told Jordan there were no hours for him “at the moment” because the business was going through a downturn, and that Jordan had not responded to his questions about losing his licence and the court case.

The employer also argued having a licence was fundamental to Jordan’s job.

In the case the Commissioner ruled the termination was unfair.

The FWC ruled Jordan’s boss had “no real intention of continuing the applicant’s employment”, because he was “annoyed about the applicant’s failure to appear for work on Friday, February 8 and he believed that the applicant had deceived him about his movements on that day”.

“I do not accept that the applicant set out to deliberately deceive [his boss,] Mr Ketley, about his whereabouts that Friday… Clearly there was a lack of appropriate communication, no doubt exacerbated by the altercation between Mr Ketley and the applicant’s father which occurred on the same day,” Commissioner Deegan found in the judgement.

Deegan ordered Jordan, who had since found new employment, to be paid an amount equivalent to two weeks wages based on the average number of hours worked in his final eight weeks of employment.

Workplace law expert Peter Vitale told SmartCompany if a casual employee works at the business on a “regular and systematic” basis for over 12 months, they fall under unfair dismissal laws.

“What it does demonstrate is you can’t assume that because someone is classified and paid as a casual employee that they won’t have access to the protection of the unfair dismissal jurisdiction.

“Practically speaking, the Commission has probably taken the view that as a longer-term employee Jordan deserved some sort of remedy and made its findings accordingly,” he says.

Vitale says because Jordan only received two weeks of pay, the whole exercise was effectively “fighting over sheep stations”.

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