Fair Work no-show: Employee wins unfair dismissal compensation after employer doesn’t put up an argument

Businesses have been urged to actually be a part of any unfair dismissal claim against them, following a decision by the Fair Work Commission to grant an employee compensation after her employer declined to appear at any hearings.

Commission deputy president Brendan McCarthy said in the judgment the employer, a small art gallery in Western Australia, did not attend conciliation nor respond to multiple attempts to communicate.

Industrial relations legal expert Peter Vitale says employers not showing up to hearings happens from time to time, but businesses should always make these types of cases a priority as an absence can affect the outcome.

“If they are not there to present their case, the commission only has one basis of evidence,” he says.

“If the employer hasn’t bothered to come and put their case there, there is only one side of the story to be considered.”

The applicant, Felicity Bargmann, was working at the Murano and Gullotti art gallery in Western Australia after being employed by a Mr Gullotti.

A customer entered the gallery, enquired about a painting and asked for it to be placed on hold. But the customer didn’t leave her number, so Bargmann had to acquire it through an acquaintance. But soon afterwards, the customer said she didn’t want the painting so Bargmann erased her number from a company logbook.

Soon afterwards, Gullotti wanted to call the customer, so asked Bargmann for the number. Bargmann said she felt uncomfortable providing the number because she only got it from an acquaintance.

A series of text messages then followed, along with a phone call. Gullotti said after some discussion about the phone number that he “had had enough” and gave the employee five minutes to get the number. Soon afterwards he then terminated her employment.

“I find that she was not given a proper or reasonable opportunity to respond to the reason. There was no discussion about the termination,” McCarthy found.

The employee will receive $3,000 in compensation.

But the most important part of the case is that the employer didn’t show up to conciliation. He didn’t give any reason why. The FWC also attempted to contact him multiple times, but did not receive any response.

“I therefore rely on and accept the evidence of the Applicant,” McCarthy said, following a description about the lack of contact.

Vitale says refusal to take part in these proceedings ensures only one side of the evidence will ever be heard.

“Whether or not she’s going to see her money is another thing entirely, but this happens. The unfair dismissal applications are occasionally filled with cases where they refuse to take part.”

“The reality is that you just can’t ignore it, because it’s not going to go away.”

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