A Melbourne catering company will face court for allegedly ignoring a Fair Work Commission order to compensate an employee who had been unfairly dismissed.
Arlington Catering & Events is facing legal action after the commission ordered the business to pay $15,384 to a former employee who it said was unfairly sacked and not given any redundancy pay.
Andrew Ham was dismissed from his role as a function and bar manager in 2013 following nine years with the company due to what the business owner described as a company restructure.
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At the time of the decision, vice president of the Fair Work Commission Graeme Watson said the process adopted by the employer “left a lot to be desired”.
“In particular, it would have been a fair process to discuss the situation with Mr Ham, who was a long serving employee in a senior position, and to explore alternatives to making him redundant,” Watson said.
“I consider that the process was seriously deficient in that regard.”
While Watson said he believed the reason for the dismissal was true, the fact the employer did not discuss alternative options with the employee resulted in it being an unfair dismissal.
“In those circumstances and having regard to all of the circumstances, I find that the termination of Mr Ham’s employment was unjust and unreasonable, and that I should consider an appropriate remedy arising from that finding,” he said.
The employee lodged a complaint with the Fair Work Ombudsman after the compensation was not paid within the required 21 days.
Sarah Lock, principal at Workplace Law Specialists Brisbane, told SmartCompany this case highlights how the Fair Work Commission has limited power in forcing businesses that do the wrong thing to pay the necessary compensation without court action.
“The Fair Work Commission has limited power to assist in obtaining the full settlement monies or part payment,” Lock says.
“In my experience I have asked for matters to be relisted for direction or a further conference to see if the parties can come to another arrangement in retrieving the monies.”
Lock says if a business does not comply with the commission’s order to pay compensation, then action can be taken in the Magistrates Court or another state’s equivalent.
“It is a relatively easy process but can take time,” she says.
“You may also be able to apply for costs spent in retrieving the amount.”
Fair Work Ombudsman Natalie James said in a statement the employer watchdog made several requests for Arlington Catering & Events to comply with the commission’s order.
“Our inspectors tried to engage with this business to resolve the matter, but were not able to secure co-operation,” James said.
“Building a culture of compliance with workplace law is important, and employers should be aware that we are prepared to take action where appropriate.”
The compensation remains unpaid, with a directions hearing listed in the Federal Circuit Court in Melbourne for February 19.
SmartCompany attempted to contact Arlington Catering & Events, however, the company’s phone was disconnected. Its website is also currently offline.