Orders made for payment to employee who was unfairly dismissed
The Commission has ordered an employer pay $9,438.89 in compensation for loss and injury to an employee who was unfairly dismissed. The decision was heard in the absence of the respondent, after the Commission declined to grant the respondent a third adjournment.
The applicant was employed at Mageela Cottage & Boarding Kennel (Kennel), commencing on 27 June 2018. On 1 February 2020, the applicant identified a shortfall between her gross and net pay. The applicant sent a text message to the respondent, who informed her that this was deducted for bathroom, food, drink, and phone usage breaks.
On 3 February 2020, the respondent told the applicant that he did not like her attitude, and that she was difficult to be around. The respondent informed the applicant that she was dismissed. The respondent immediately locked the door as the applicant exited the room. On 28 February 2020, the applicant made an application to the Commission alleging she had been dismissed unfairly. Conciliation did not result in an agreement and the matter was listed for hearing. The Commission made directions for parties to file and serve an outline of submissions seven days before the hearing.
The respondent sought to have the hearing of the matter adjourned on three occasions. The respondent did not provide any evidence to support his reasons for seeking an adjournment but referred to issues of staffing at the Kennel. An adjournment was granted in the first two requests. Two days prior to the third hearing date, the respondent indicated that he was unable to attend the hearing and would not be available until January. The respondent had not yet filed its outline of submissions. The respondent argued that a progression of the matter without his submissions or presence would be a miscarriage of justice.
The Commission determined that the respondent had not complied with previous directions concerning the submissions or the scheduling of hearings. The Commission considered that any further extension of time would not result in the submissions being filed. The Commission determined that the prejudice to the applicant in delaying her hearing any further outweighed any prejudice to the respondent and proceeded in the absence of the respondent.
The applicant submitted that the respondent failed to consult her about any performance issues prior to her dismissal. The applicant provided evidence that she had raised concerns for the wellbeing of a dog at the Kennel and argued that the respondent had not addressed any performance issues in this instance, or at any other time.
The applicant contended that following the dismissal, the respondent threatened to tarnish the applicant’s reputation with future employers. The applicant further contended that the respondent accused her of reporting the Kennel to the RSPCA. When the applicant denied these allegations, the respondent threatened to euthanize 60 dogs if the applicant did not disclose who made the report.
The respondent did not file submissions or attend the hearing. In a response filed with the Commission prior to conciliation, the respondent stated that the applicant was terminated for neglecting the welfare of the animals; falsely claiming hours worked; damaging the profitability of the business; refusing to communicate with the respondent; disruptive and upsetting behaviour towards fellow employees and dishonesty. The respondent provided no evidence to support these allegations.
The respondent admitted that he dismissed the applicant immediately after hearing from another employee that the applicant had allegedly mistreated one of the dogs and had allegedly failed to follow instructions. The applicant contended that the alleged reasons provided by the respondent were baseless, and an attempt to justify his actions.
The Commission accepted the applicant’s submissions and evidence provided at the hearing.
The Commission concluded that, even if the respondent did have concerns about the applicant’s performance, the respondent did not seek an explanation or response from the applicant. Rather, the respondent decided to dismiss the applicant as soon as the applicant presented for her next shift. The Commission determined that the applicant took reasonable steps to mitigate her loss, by retraining and securing alternative employment five weeks after the dismissal.
The Commission was also satisfied that the applicant had suffered distress beyond that of most dismissals due to the behaviour of the respondent, in locking the applicant out immediately after dismissal; threatening to euthanize 60 dogs; and threatening to tarnish the reputation of the applicant.
The Commission awarded $6,438.89 to the applicant in compensation for lost wages and notice, and $3000 for the injury suffered. The decision can be read here.