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    Sacking of apprentice found to be devoid of procedural fairness and “quite simply appalling”.

    Sacking of 1st year apprentice found to be devoid of procedural fairness and “quite simply appalling”.A first year apprentice has been awarded $11,400 in compensation after a Fair Work (FW) Commissioner heard he was subjected to threats and abuse “so offensive that no employee should be expected to endure such treatment”.

    In finding there was no valid reason for the Apprentice’s dismissal, the FW Commissioner found that the manner in which the dismissal was carried out was devoid of procedural fairness and was “quite simply appalling”.

    In making her ruling, the FW Commissioner remarked, “I have not previously encountered a small business owner with such a deplorable attitude to human resource management.”

    The employment contract used by the Employer to engage employees also makes for interesting reading. In relation to wages it stated:

    “You will be paid Weekly at the rate of $15 per hour. If you are unhappy with your wage, you can f*** off. Nobody is forcing you to work here.”

    The Employer informed the FWC that he “found the contract on the internet”.

    BACKGROUND

    The FWC heard that the Brisbane Employer had discovered a former employee (later referred to as “fatty fatty boom boom”) had previously been doing “cashies” (performing cash jobs) using the Employer’s van, tools, stock, equipment and fuel.

    The Employer had formed a view that the Apprentice had been friendly with the ex-employee when they worked together and demanded that the Apprentice provide details of the cash job he had undertaken with the ex-employee and also the address at which the ex-employee was working at the time.

    In an effort to elicit the required information, the Employer sent the Apprentice a series of threatening and abusive emails including a text with an ultimatum demanding, “your choice today bro. Info or job by 4pm.” The Employers also threatened, “I will do my best to hinder and interrupt any apprenticeship you do in Brisbane”.

    The Apprentice chose not to give the Employer the private information and instead delivered the keys to a Company van back to a job site. The Employer responded with an email that included “You could have kept your job had you spilled the beans on fatty fatty boom boom”.

    The Employer later claimed that the Apprentice had effectively resigned from his job by refusing to comply with the direction to inform him of the location of the cash job and by handing back the keys to his company vehicle.

    The FW Commissioner disagreed, finding that the Apprentice did not cease employment voluntarily but rather his employment was terminated by the conduct of the Employer.

    In making the ruling the FW Commissioner referred to the emails sent to the Apprentice as being “so offensive that no employee should be expected to endure such treatment” and found the sending of the text messages and the email were acts which resulted directly or consequentially in the termination of the employment relationship.

    Further, the FW Commissioner stated, “that an employer would subject an employee, much less an Apprentice, to such language beggars belief”. The FW Commissioner said, “it is inconceivable that an employee who received such messages from an employer could have any view other than that the employment relationship had ended at the initiative of the employer.”

    The full content in the email regarding the ex-employee can be read elsewhere, but to give an idea of how the Employer communicated with the Apprentice, here are a few phrases:

    • I know a lot of sparkies remember. And you have no ideas which ones. Up yours …B**ch.
    • I’ll find out about that c*** one way or another even if not through you and I will f*** him. So you’re not stopping it from happening by keeping quiet. I’ll give ya till 4.
    • One thing you and that Fat f***ing germ should know is I f*** back.
    • “That motherf***er was stealing for months.”
    • You had your chance. I’ll still f*** that fat c*** don’t worry.
    • “I had a f***load on this summer so some details slipped through”
    • “It was that c*** with the f** son I reckon.”

    The Employer also had little regard for the Fair Work Ombudsman, emailing the Apprentice with:

    "Here’s the number for fair work Australia 13 13 94. Do you know how many calls they get per day? Boo Hoo this c*** fired me.... and “Do you know what these c***s do about it? Nothing unless it’s a company worth prosecuting. They know they’ll get nothing from me and even if they could get me for something what would it be?” and “Fair Work gonna put me out of business LMAO”

    In the decision, the FW Commissioner ruled that because of the “appalling manner” in which the apprentice was treated, reinstatement would be inappropriate, finding that the relationship had “irretrievably broken down”. The Apprentice was awarded $11,400 compensation for 12 weeks’ wages.

    RECOMMENDATIONS

    An employer is entitled to protect their business and an employee may be subject to disciplinary action in circumstances where they performed additional work for a client of the employer without permission. So there is no confusion, Employers should make the conditions surrounding additional work clear in their contracts or letters of employment. Typically we include clauses that provide that workers must devote their time and energy only to the employer, and not to perform additional work without the principal employer’s permission.

    In this instance the FW Commissioner accepted that while the Apprentice may have used the Employer’s property to undertake the cash job, it did not excuse or mitigate the abusive, threatening emails which were sent to the Apprentice

    s.394 - Application for unfair dismissal remedy - Lamacq v Smerff Electrical - [2019] FWC 181 - 14 January 2019 - Asbury DP

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