An apprentice fired on the spot via text message for failing to show up to work has won a $6,000 compo payout after the Fair Work Commission ruled the employer did not comply with the Small Business Fair Dismissal Code.
Amid ongoing argument about whether the code should be overhauled, a case heard by the Brisbane branch of the Fair Work Commission yesterday hinged on the document.
The business, which employs four people, was found to have fired an apprentice on the spot last year via text message after an apparent miscommunication over whether the worker was rostered on for that week.
The apprentice submitted they had not been notified on Sunday evening regarding their roster for the week ahead and assumed they needn’t come in. However, the employer was expecting him and subsequently attempted to contact him in the early hours of Monday morning, but the worker was asleep and missed the calls.
The apprentice had also previously claimed he was not paid properly by his employer for his time attending TAFE.
“I take it by now showing up for work and ignoring everyone’s calls is your way of letting us know you have finished,” the employer texted the apprentice.
“I was told not to come in last week and then I didn’t receive anything about working Monday until the morning,” the apprentice replied to his boss, once he awoke.
“Let’s just call it a day then if that’s your attitude,” his employer responded.
The commission found the worker provided no satisfactory explanation for failing to show up for work, but concluded the behaviour did not constitute grounds for terminating his apprenticeship.
The employer originally argued he had not actually dismissed the worker, but the commission found he had, which further complicated matters for the business because under the code, the employer’s best argument would be they satisfied the conditions of “summary dismissal”.
Summary dismissal involves sacking a worker on the spot, usually for serious misconduct. It is one of two dismissal conditions in the code, alongside the broader “other dismissal” category.
If firms with fewer than 15 workers follow the code when firing a worker, the dismissal cannot be ruled unfair, but in this case, the commission found the business had not complied with the code.
“It is extraordinarily difficult for an employer to satisfy the Commission that the Code has been met relevant to a summary dismissal if the employer asserts that there was no dismissal by the employer,” commissioner Hunt said.
“This is so because the Code requires the employer to assert and demonstrate that they had a reasonable belief that the person had engaged in serious misconduct.”
Commissioner Hunt also explained the FWC’s reading on summary dismissal.
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal,” Hunt said.
“Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
Yesterday the Australian Small and Family Enterprise Ombudsman released a review of the Small Business Fair Dismissal Code, recommending it be overhauled to make it easier for businesses to understand its operation.
There has been concern changing the code could make it easier for firms to fire workers, shifting the balance of power further in favour of business owners, but the ombudsman has argued more effective use of the code could also cut down on non-compliant sacking.
In the case at hand, commissioner Hunt considered the employer knew the conduct was not sufficiently serious to justify immediate dismissal.
“[The worker] was an indentured apprentice, and obligations arise between parties to an apprenticeship over and above obligations in a traditional employment relationship,” Hunt said.
“[The employer] ought to have known, given his evidence of having employed apprentices in the past, that contractually, there is an obligation not to unilaterally terminate the relationship.”
“Far more should have been done by [the employer] to get the apprenticeship and employment relationship back on track and it was unjust and unreasonable to sever the employment relationship,” Hunt later said.
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