“Honest and decent” employer exonerated in worst unfair dismissal case in 16 years

The Fair Work Commission has found in favour of a small plumbing business in an unfair dismissal case which shocked the Commissioner with the employee’s “spurious” claim.

The employee, Martin Holland, brought the claim for $40,000 against Omega Plumbing after his employer arranged a meeting to discuss questions about the validity of his plumbing licence and the status of his motor vehicle driver’s licence.

The commission found shortly after the meeting started, Holland stood up, reached into his back pocket and produced a folded piece of paper which he described as his resignation letter.

The letter was unfolded and Holland gave it to the managers who read its contents and verbally confirmed that the applicant’s resignation was accepted.

But at the hearing, Holland claimed in “somewhat amazingly stark contrast” that his managers had threatened him and stood over him, producing a piece of paper and a pen and forcing him to write out the letter of resignation.

Commissioner Cambridge found Holland had provided the FWC with deliberately false and misleading evidence and dismissed his application for unfair dismissal.

“In my 16 years’ experience this case represents something of a nadir,” he found.

“I have great sympathy for the employer who has clearly conducted his business with great emphasis upon acting with honesty and integrity at all times.”

Commissioner Cambridge found Omega Plumbing was an honest and decent employer which was challenged with a “spurious” unfair dismissal claim.

“A claim of this nature operates to discredit the broader unfair dismissal regime and provides a perspective which potentially damages the position for all genuine and legitimate claimants,” he found.

Allan Ferguson, the owner of Omega Plumbing, told SmartCompany the experience had been pretty tough on his business and he had been particularly intimidated by Holland’s solicitor, who told him the case would be a “slam dunk”.

“It has been a very hard thing as the owner of a business with 40 staff suspecting that your manager may have been involved in something scandalous, but I had complete trust in my management,” he says.

“The incident raised questions about my leadership team and put doubt in my mind, as Holland had been with us for six years and had been a good employee.”

Ferguson says instead of paying money to a solicitor he decided to represent himself, but was relieved to find the Commissioner “had a way of knowing who was telling the truth and who wasn’t.”

Ferguson has some tips for other small business owners in a similar position.

“My advice would be always back your management team, and I did that, and always tell the truth to the court, tell it as it is. The truth will always win.”

Andrew Douglas, partner at M&K Lawyers, told SmartCompany the case was “extraordinary”.

Douglas says when relationships between employers and employees break down often an employer will offer a way out in the form of an agreement that the employee will resign, so that it does not damage the employee’s CV.

“Even if an employer says ‘We have to work out a way for you to exit the business and we will look after you if you resign’, that would be a constructive dismissal and the employer would lose,” Douglas warns.

“It is not uncommon for employees in a fit of emotion or hurt to actually provide their resignation either in writing or orally, but if they withdraw it shortly afterwards explaining the high emotion involved, the court will probably find in the employee’s favour.”

Douglas says the lesson for small businesses is that if someone offers their resignation you should ask them to put it in writing that they have resigned and that the offer has been accepted.

“No matter what happens, remember as an employer to act generously because it is the employer’s conduct that is first placed under scrutiny by any court,” he says.

“This is a case where the employer has done everything right and so they won because of that, there is no upside in being aggressive when someone is a difficult employee.”

SmartCompany was unable to get in touch with Holland for comment.

 

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