Employer argues move was too 'risky' at metal fabrication business
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued an unfair dismissal after being unadvised that his employment was at risk.
Adding up to the alleged unfair dismissal was the worker’s personal circumstances, specifically his parental obligations to his son.
Prior to the case, the worker commenced full-time employment with the metal fabrication business on 18 November 2020 as a fabrication tradesman.
In early 2021, the worker took full-time custody of his son who has special needs and was needed to be taken to multiple NDIS appointments and activities.
“[The worker] was able to secure before school care for his son so that he could commence work at 7am after dropping his son at before school care,” the case stated.
Around June 2021, the worker approached the employer and suggested that he start work before 7 am to oversee the dispatch of materials sent to the site each morning.
The worker contended that the employer allowed him to bring his son to work and be taken to school by one of the company employees when they did their deliveries.
“[The worker] says that he agreed with [the employer] that he would record the time taken for the staff member to drop his son at school as a break on his timesheet,” the case stated.
He further argued that the employer agreed that he could start late and finish early where necessary to take his son to his various NDIS and other appointments.
However, the employer denied that he agreed that the worker could bring his son to the workplace or that other employees could drive the child to school.
Ultimately, on an email sent by the employer to the worker on 18 January 2023, it advised the worker that the company could no longer maintain his employment because of:
The worker contended that no performance issues had been raised with him previously and that he understood that the employer had agreed that he store his belongings at the workshop.
“[The worker] also stated he had recorded on his time sheet as a break any time employees had taken to drop his son at school,” the case stated.
After examining the case, the Commission found that the worker’s dismissal was harsh, unjust, and unreasonable.
It noted that the worker’s termination was harsh given the personal circumstances that the worker was facing including his caring responsibilities and sustaining a hand injury.
The Commission heard the worker’s claim and noted that the dismissal was unjust because the worker was not alerted to the fact that his employment was in jeopardy before the decision was taken to terminate his employment as workshop manager.
Further, the dismissal “was unreasonable because the opportunity to avoid dismissal was not properly explored and if it had been could have avoided the need for the dismissal to occur,” the Commission stated.
Ultimately, the FWC ordered the employer to pay the worker an amount of over $45,000 gross (less taxation as required by law) instead of reinstatement.
