Hiring during notice period undermines employer's financial difficulty claims
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application made by a worker who challenged her termination from a Melbourne business.
The worker argued her employer used a false claim of financial difficulties to justify her dismissal, while continuing to advertise for new staff positions during her notice period. She also claimed possible age discrimination, suggesting her supervisor had made concerning comments about her age.
Despite multiple hearing notices and contact attempts, the employer failed to participate in any of the proceedings, leaving the FWC to decide the case based solely on the worker's evidence and submissions.
The employer, Lucky 88 Enterprises, completely disengaged from the FWC process throughout the unfair dismissal case. The FWC made extensive efforts to contact the business through multiple channels without success.
When initially contacted, George Sleiman, who was listed as the contact person for the employer, denied being the worker's employer. Commission notes recorded his response:
"[The employer] was nominated as George Sleiman at Wellington Park Kennels, he refused to attend and when rung said he was not [the worker's] employer (although she reported to him) but an employee of Precise Training which leases the site from the employer Lucky 88."
The FWC discovered that Peter Sleiman, George's brother, owned Lucky 88 Enterprises along with other businesses. Despite sending correspondence to identified addresses and calling available phone numbers, no meaningful response was received from any representative of the employer.
After scheduling multiple hearings in January 2025 with no appearance from the employer, the FWC decided it was fair to proceed with the case based solely on the worker's evidence.
The worker received an email on 30 September 2024 terminating her employment at the pet kennel business effective 13 October 2024. The dismissal followed a brief meeting with George Sleiman and her supervisor, Amelia Todd. The email cited "financial difficulties due to lack of work in our industry" as the reason for termination.
However, the worker presented evidence directly contradicting this claim. She testified that the business advertised for new positions during her notice period and hired several staff shortly after her termination.
When asked if she agreed with the stated reason for her dismissal, the worker replied: "No... Well, considering they advertised for new staff within my two-week notice period. There was peak season coming up, in which case they employed another five people after I left."
She explained that the business was actually approaching its busiest period: "when people generally go away on holidays. So at Christmas, Melbourne Cup Day, school holidays, all of those types of things. Public holidays. That's classed as peak period."
The worker also noted that her rostered hours had been changed shortly before dismissal, suggesting the decision to terminate her employment had been made before any discussion of financial difficulties.
The FWC examined whether the termination constituted a genuine redundancy under section 389 of the Fair Work Act, which requires three essential elements: the job no longer being needed due to operational changes; proper consultation with the worker; and consideration of redeployment options.
The worker's evidence about new staff being hired directly undermined the claim that her position was no longer required. The FWC noted this advertising activity "could suggest that a business has overstated its poor financial position or that it no longer requires a person's job to be done by anyone."
Additionally, the FWC found the worker's employment was covered by the Miscellaneous Award, which requires consultation about major workplace changes under clause 27. No such consultation took place before her dismissal.
The continued hiring activities also indicated the employer had not considered redeploying the worker to another position within the business or its associated entities.
Based on these factors, the FWC concluded: "These matters, taken as a whole, lead me to conclude that [the worker's] dismissal was not a genuine redundancy."
The worker, aged 50 at the time of the hearing, suggested her age was a contributing factor in her dismissal. She described a problematic relationship with her supervisor, Amelia Todd, who allegedly made concerning comments about her age.
In her submission, the worker stated that Todd "micro managed me from the start" despite her requests for guidance on how to perform her duties correctly. She claimed Todd made explicit comments about her age: "She told me in my first year of being there that she would not have employed me if she knew my age and also prevented me from employing a very suitable applicant because the applicant was over the age of 35 years."
The FWC considered the worker's age as a relevant factor, noting that "people above the age of 45 generally have some greater difficulty in obtaining replacement employment."
The worker had relocated from Adelaide to Melbourne for the job and remained in Melbourne after dismissal because she couldn't afford to return, adding to the hardship caused by the termination.
After determining the dismissal was unfair, the FWC had to decide on an appropriate remedy. The worker did not seek reinstatement, and the FWC agreed this would be inappropriate given the circumstances.
The FWC calculated compensation using the established "Sprigg formula" from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket. This involved estimating how long the worker would likely have remained employed had she not been dismissed.
The FWC determined a period of six months was appropriate, noting: "If she had not been dismissed, [the worker's] employment is likely to have continued for some time. Even though she had some difficulties with her employer, there was a financial imperative for her to continue working as she did, at least until she was able to obtain suitable alternative employment."
The FWC found the dismissal was "harsh and unjust as there is no apparent valid reason for her dismissal and it is unreasonable since the former employer could have discussed its business situation with [the worker] in order to find a mutually acceptable alternative to dismissal, but chose not to."
After detailed calculations accounting for lost wages, superannuation, and the worker's earnings from new casual employment at a lower rate, the FWC ordered the employer to pay $11,622 in compensation plus $1,337 in superannuation contributions.
