Dismissal payouts: 3 examples
Unfair dismissal payouts are often awarded to employees who lodge aclaim with the Fair Work Commission. When reinstatement of the employee is not viable, the Fair Work Commission has the discretion to order an payout. The amounts awarded to employees vary. The average payout is usually about six to eight weeks pay. However in recent years, we have seen a number of huge payouts awarded, three of which we detail in this article.
Beauty trainers win over $100K
In 2022, three trainers for a Melbourne beauty college were collectively awarded an unfair dismissal payout of over $100,000. The three beauty trainers, Teresa Delfino, Stefania Taverna and Karlee Hunt, worked at the Melbourne College of Hairdressing and Natural Medicine for several years. The key event that eventually led to their huge payout took place in September 2021. This was when the trainers raised concerns regarding wage theft within the college.
Trainers refuse to work after complaints ignored
The college, however, did not respond to the trainers’ complaints. So they subsequently lodged underpayment complaints with the Fair Work Ombudsman. When their demands for proper payment were not met, Ms Delfino, Ms Taverna and Ms Hunt decided to take a stand. They refused to conduct any further training classes until the college paid them the wages they deserved.
This led to the college doing something that would eventually lead to the trio winning their massive payout’s. Instead of addressing the wage theft allegations and rectifying the situation, they sent an email to students stating, “Teri, Stefanie and Karlee will not be returning to MCOHB.” The email also stated that the trio “have decided to take another path in their lives.” And that “because of their absence, we have been left short of suitable trainers to work with you to complete your learning journey.”
Fair Work Commission hears unfair dismissal claim
At the trainers’ unfair dismissal hearings, the email that the college sent featured as a key piece of evidence. It proved that the college had sacked the trainers and that they had not resigned voluntarily. What led to the well above average payout’s was that the college had breached the Small Business Fair Dismissal Code (SBFDC) when terminating the trainers.
The SBFDC outlines specific procedures for small businesses when dismissing employees. This includes providing warnings and opportunities for performance improvement before dismissal. It also requires that employees are given a chance to respond to warnings. The Fair Work Commission stated that “the dismissals were not a case of genuine redundancy and that the dismissals were not consistent with the SBFDC.”
The college initially attempted to evade the case by claiming they were in administration. But it failed to file a proper application for a stay before the Fair Work Commission’s deadline. Making the college’s situation worse was the fact that its CEO failed to attend the Fair Work Commission hearing. He had brazenly stated that it “would be a waste of time.”
Fair Work Commission awards massive unfair dismissal payout
Ultimately, the Fair Work Commission ruled that the college did not have a valid reason to sack the trainers. It also found that it had failed to provide them with reasons for their termination or an opportunity to respond. It then considered a remedy for the three trainers, which resulted in their receiving substantial unfair dismissal payouts.
The college was ordered to pay Ms Taverna the maximum 26 weeks’ pay of $49,900, along with 10.5% superannuation. Ms Delfino was awarded the maximum 26 weeks’ pay of $48,998, again with 10.5% superannuation. Lastly, Ms Hunt received $13,699 in addition to 10.5% superannuation.
“Like a Monty Python sketch:” Fair Work Commission awards teacher $87K unfair dismissal payout
Another Fair Work Commission case that led to a huge payout is Amara Somasundaram v Department of Education & Training, North-Eastern Victoria Region [2016]. This was a case where the employer’s actions were so absurd that the FWC likened them to two Monty Python sketches.
The case involved Amara Somasundaram, a teacher at Sherbrooke Community School in the Victorian town of Sassafras. Prior to her dismissal, Ms Somasundaram went on WorkCover leave in June 2011. There had been tensions between her and the school’s staff that led to a deterioration in Ms Somasundaram’s health. A doctor appointed by the Department of Education & Training had advised her that a mediator should step in to help relieve the tensions. However, the mediation never took place.
Unfair dismissal payout: Teacher publicly criticises school
Ms Somasundaram returned to her teaching position from her WorkCover leave in November 2013 and subsequently faced allegations of unprofessional behaviour. On 19 November 2013, she read out a prepared statement at a whole school meeting. And she sent emails to all staff members that questioned the decision-making process at the school.
In the email, she also criticised the communication procedures with parents and students and the appointment process for leadership positions. These emails, in her view, were necessary to raise concerns about the school’s conduct. However, they were perceived by the school administration as unprofessional and, in some instances, as harassment.
Teacher is dismissed by school
Ms Somasundaram was told to not send any more emails. But in February and June 2014 she sent several more emails criticising the school. She had also covertly recorded meetings. Ms Somasundaram did this to protect herself and ensure there was an accurate record of these meetings. Ms Somasundaram also claimed that she was being bullied by several staff members, including the school’s acting principal. She claimed this took place prior to her WorkCover leave in 2011.
As a result of these allegations and incidents, the Department of Education & Training dismissed Ms Somasundaram on 23 January 2015. It cited vague allegations of “disgraceful, improper, or unbecoming” conduct. Ms Somasundaram subsequently lodged an unfair dismissal claim with the FWC.
Unfair dismissal payout: Teacher has Fair Work Commission hearing
At Ms Somasundaram’s Fair Work Commission hearing, the case took a surprising turn. The Department of Education & Training acknowledged that her dismissal could be considered harsh and extended an offer to reinstate her.
However, despite this acknowledgement, it continued to argue that reinstating Ms Somasundaram was inappropriate. This was because the department felt there was an “irretrievable breakdown of trust and confidence” between the school and the teacher. To compound the contradictions in their stance, the department attempted to introduce new evidence and file fresh submissions to the case. These attempted to bolster their argument regarding the dismissal’s harshness.
Fair Work Commission likens actions to Monty Python sketches
The FWC found the department’s behaviour to be unreasonable, inappropriate, and lacking reasonable cause. To emphasise the ludicrous nature of the situation, it likened the department’s stance to two iconic Monty Python’s sketches. “Two sketches from Monty Python come to mind as providing a very good analogy to the position adopted by the Respondent,” the Fair Work Commission stated. “The first is the Dead Parrot Sketch and the second is the Black Knight Sketch.”
In the Dead Parrot sketch, a shopkeeper ludicrously insists that a clearly deceased parrot is merely “resting.” While in the Black Knight sketch, the knight insisted that losing an arm “Tis but a scratch”, having no arms is “a flesh wound”, and after having no limbs left said “We’ll call it a draw.”“The same sense of absurdity is found in the actions of the [Department],” the Fair Work Commission said.
Teacher receives huge unfair dismissal payout
Ultimately, the Fair Work Commission ruled that Ms Somasundaram had been unfairly dismissed. It then considered a remedy. Ms Somasundaram had filed for the department to foot her legal bills, so this was also taken into account. In the end, the Fair Work Commission ordered the Department of Education & Training to pay her an unfair dismissal payout of $87,000.
Fair Work Commission awards security guard unfair dismissal payout of over $31K
Another case that resulted in a substantial payout is Mr Michael Scott v Latrobe Regional Hospital. The case involved Michael Scott, who worked as a security guard for Latrobe Regional Hospital in Traralgon, Victoria. The 58-year-old had worked there for eight years, from June 2010 until his dismissal in August 2018.
The key incident that eventually resulted in Mr Scott’s win took place on the evening of 20 June 2018. Around 7pm, a registered nurse at the hospital called a “code grey.” This is a call designed to trigger a coordinated response to emergency situations involving personal threats.
Employee attempts to apprehend drunk man
The code grey had been triggered by an intoxicated patient within the hospital, who had made a reckless attempt to leave the premises. The patient was barefoot and shirtless, and showed clears signs of being drunk, namely unsteadiness and slow movement. Mr Scott received a call for assistance and headed to the hospital’s entrance. He approached the nurse in charge and inquired if the patient was permitted to leave, which she said he was not.
Physical altercation ensues
What happened next would feature as a key event in this case. Mr Scott took it upon himself to intervene. He positioned himself in front of the patient, blocking his exit, and secured the patient’s right arm. The patient then kicked Mr Scott in the groin and become increasingly aggressive. Mr Scott in turn shouted at the patient that he would “take him down,” before engaging him in a neck lock. This led to the patient sustaining a cut on his nose.
Employee is dismissed
After the incident, Mr Scott went to the police to report the assault. It had all been captured on the hospital’s CCTV cameras. And Mr Scott had recorded the footage with his phone. When police arrived, he provided the video from his phone. However, the problem was that he had captured the video without authorisation from the hospital coordinator.
This case took an unfortunate turn for Mr Scott a few weeks after the incident. On 6 August 2018 the hospital sent him a dismissal letter. In the letter, the hospital stated that the 20 June incident amounted to serious misconduct, which justified his immediate workplace termination.
Parties make unfair dismissal arguments to Fair Work Commission
Facing the prospect of having to provide Mr Scott with compensation, the hospital presented its case to the Fair Work Commission. It alleged that Mr Scott had responded to the June 20 incident with unnecessary aggression. And that he had encroached too closely into the patient’s personal space. Also, that he had lost his temper and self-control following the patient’s assault.
Meanwhile, Mr Scott argued to the Fair Work Commission that he had recently completed practical de-escalation, engagement and prevention (DEEP) technique training in May 2018. His claim was that he adhered to DEEP technique and acted in self-defence rather than retaliation, aiming to contain the volatile situation effectively. In other words had done his job properly, by the “book”.
Unfair dismissal payout: Fair Work Commission provides ruling
At Mr Scott’s hearing, the Fair Work Commission accepted that he had employed some force during the June 20 incident. However, it was found that the force was not excessive. The hospital’s argument that Mr Scott had lost his temper was rejected. But the Fair Work Commission acknowledged that Mr Scott had breached the hospital’s DEEP policy by invading the patient’s personal space. Also, by acting prematurely, given the patient’s distance from a potential escape.
“The fault in Mr Scott’s conduct was that he acted too soon in placing himself in front of the patient and taking him down in a neck lock,” the Fair Work Commission stated. It also said that the hospital’s human resources department’s failure to safeguard the CCTV video footage was “perplexing.”
Fair Work Commission awards unfair dismissal payout
The FWC found that the hospital did in fact have a valid reason to dismiss Mr Scott. However, this had to be considered against other factors. Namely, the responsibility that Mr Scott had to prevent the patient from leaving the hospital. And the hospital’s restraint policy, which emphasised limiting physical intervention.
The Fair Work Commission found that Mr Scott’s conduct had breached the hospital’s policy. However, it ruled that his sacking was harsh and unreasonable. Both Latrobe Regional Hospital and Mr Scott agreed that reinstatement was not a viable option. This was because their employment relationship had deteriorated irreversibly.
The hospital was therefore ordered to pay Mr Scott an unfair dismissal payout of $31,618.34.
Are you eligible for an unfair dismissal payout?
If you have experienced a termination that was harsh, unjust or unreasonable, you may be eligible to make a claim with the Fair Work Commission. Our team at a Whole New Approach (we are nor lawyers) can help simplify the process of making a claim. And we can provide the expert guidance you need to get a maximum payout.
We help workers in every Australian state and territory, who benefit from our no win, no fee service. Make sure to act quickly, as you only have 21 days from the date of your dismissal to lodge your claim. Casual employee rights or being subjected to a unfair workplace investigation, call us immediately.
Reach out to us today at 1800 333 666 for a confidential and complimentary consultation.
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