Victorian unfair dismissals: 4 times workers won big

Victorian unfair dismissal payouts have in recent years regularly been amongst the highest in the country. In this article, we explore four recent payouts handed out by the Fair Work Commission in Victoria. These payouts were awarded to workers of all stripes – from a casual truck driver to a full-time beauty salon worker – who in the end got back at their employer for their mistreatment.

How to lodge an application

But first, if you do not know much about unfair dismissals, let’s start with the basics. To lodge an unfair dismissal application in Victoria, you need to meet certain eligibility requirements. It is also essential to act fast. The Fair Work Commission only gives you 21 days from the date of your employment termination to lodge your application. Only in very exceptional circumstances are late applications accepted.

For more details on how to make an unfair dismissal claim in Victoria, view our page here. You can also learn about the different types of unfair dismissal here. Or you can call us on 1800 333 666 for a free and private discussion.

The Fair Work Commission process

Upon submitting your application with the Fair Work Commission, it will also be sent to your employer for a response. Depending on the response, the Fair Work Commission may organise a conciliation. The goal of a conciliation is for you and your employer to come to an agreement. It is an informal proceeding where both sides get the chance to make their arguments and statements.

However, if no agreement is reached during conciliation, your application can be escalated to a hearing. This is a more formal proceeding than a conciliation and is adjudicated by the FWC. Both employer and employee are given the chance to submit evidence to be weighed by the commission, who will provide a final decision on whether you were unfairly terminated or not.

If the ruling is in your favour, the commission will then decide on a remedy, which can be either financial compensation or reinstatement. Now that you know the basics, let’s look at four Victorian unfair dismissal cases that proceeded to a formal hearing. And as a result, the employees were awarded huge payouts.

Casual truckie fired for pay complaints wins $15K

The Victorian unfair dismissal case Stefan Richardson v Geelong & Surfcoast Laundry T/A Swim Alumni Pty Ltd[2017] saw a casual truck driver win big at the Fair Work Commission.

Stefan Richardson had been employed by Surfcoast Laundry in Geelong, working 38 hours per week. He was fired on 18 November 2018 for being involved in three accidents and a road rage incident within the space of a year. The most recent of these events took place in September 2016.

However, Surfcoast did not provide any warnings to Mr Richardson prior to his sacking. Therefore he was not given the chance to tell his side of the story. The company also did not tell him the reasons for his sacking.

Worker complained about underpayments

Mr Richardson told the Fair Work Commission that prior to him being sacked, he had complained multiple times to Surfcoast about the company underpaying him. His hourly pay rate was rectified in June 2016, but Surfcoast did not reimburse him for historical underpayments. Just under a week prior to his sacking, Mr Anderson approached the company’s owner to ask about the back payments.

Surfcoast had 11 employees and therefore had to comply with the Fair Work Commission’s Small Business Fair Dismissal Code. This outlines that it is fair for an employer to fire an employee if it reasonably believes their conduct is serious enough to justify a summary termination.

Fair Work Commission provides ruling

The Fair Work Commission in Victoria stated that Mr Anderson’s three truck accidents “warrants some level of intervention” by Surfcoast. However, the business did not have a valid reason for dismissal. The commission was not satisfied that his actions amounted to misconduct.

It was found that one of the reasons Surfcoast fired Mr Anderson was because he had exercised a workplace right to complain about his pay. This violated the general protections provisions of the Fair Work Act 2009. It was also accepted that Mr Anderson had been denied procedural fairness. Ruling his sacking unfair, the FWC awarded Mr Anderson $14,995 in compensation.

Foodora driver fired for The Project appearanceawarded $16K

The Victorian unfair dismissal case Joshua Klooger v Foodora Australia Pty Ltd [2018] involved another case of an employer underpaying a worker. Melbourne-based 28-year-old Joshua Klooger started working as a delivery driver for delivery app Foodora in March 2016. As an independent contractor, he was paid $14 per hour, in addition to $5 for every delivery he performed.

In October 2017, Foodora made a change to its policy regarding shift allocations to drivers. The changes penalised drivers who declined a shift, did not show for a shift or worked fewer shifts over weekends.

Driver complains about Foodora on The Project

Over the course of his time as a Foodora driver, Mr Klooger’s hourly rate progressively fell. “I thought I had found the dream job. Getting paid to ride a bike,” Mr Klooger told press following his FWC hearing. “At the time, it was pretty good. I was getting $14 an hour and $5 per delivery,” he said outside the commission in Sydney.

“It reduced to $13 an hour, $3 per delivery. Then in October 2016, it dropped down to $10 an order and zero per hour.” By early 2018, his hourly rate had fallen to just $7 per order. In February of that year, Mr Klooger was interviewed by Channel Ten’s The Project, during which he voiced his complaints about delivery driver pay. Shortly after this TV appearance, Foodora contacted Mr Klooger about concerns about a potential violation of confidentiality and intellectual property rights.

This was not due to his TV appearance, but because the company alleged Mr Klooger refused to transfer ownership of a Telegram chat group to Foodora. The chat group was used by Melbourne-based drivers to allocate shifts. In March 2018, Foodora emailed Mr Klooger saying that his contract was terminated based on his refusal to transfer the chat group.

“Plainly unjust”: Fair Work Commission makes decision

At his unfair dismissal hearing, Mr Klooger contended that he had been sacked for talking publicly about his pay grievances. Foodora made a jurisdictional objection on the basis that Mr Klooger was a contractor, not an employee. However, the Fair Work Commission ruled that he was in fact an employee. This was because its ability to control his shifts, including where and when he worked, was indicative of an employee-employer relationship.

The Fair Work Commission also found that Mr Klooger’s dismissal had been “plainly unjust, manifestly unreasonable, and unnecessarily harsh.” It ruled that Foodora did not have a valid reason for firing him. The company, which was in voluntary receivership at the time, was ordered to pay Mr Klooger $15,559. Foodora subsequently stopped operating in Australia in August 2018.

Melbourne worker accused of fraud awarded over $20K

Another huge payout was awarded in the Victorian unfair dismissal case Jennifer Diaz v The Trustee for Sol Degendorfer Family Trust T/A Solene Paris [2018].  On 22 March 2017, Jennifer Diaz resigned from her role as a full-time nail technician at Melbourne beauty salon Solene Paris. She claimed that she had done so as she had been threatened and bullied by her employer for complaining about her super not being paid. She was owed $7,000 in superannuation and over $17,000 in back pay.

A day after she resigned, Ms Diaz received an email from Solene Paris informing her that she had been sacked effective immediately. The reason the business cited was that she had provided a back-dated medical certificate to get sick leave. Solene stated that asking a doctor to back date a medical certificate “could be a fraudulent act.” 

Fair Work Commission decides

In her unfair dismissal claim, Ms Diaz argued to the Fair Work Commission that she did not back date the medical certificate. Nor that she had received any warnings from Solene Paris about her sacking. Solene Paris argued that along with Ms Diaz’s alleged fraudulent actions, she was fired for poor performance and her “questionable” ethics generally.

The FWC however, sided with Ms Diaz. It was “not satisfied that Ms Diaz sought to commit a fraud on Solene Paris.” And that Solene Paris had not provided sufficient evidence for the charge. The commission also found that Solene Paris did not provide evidence for her poor performance or her so called questionable ethics.

It was also accepted that Solene Paris had not provided Ms Diaz with procedural fairness. The Fair Work Commission ultimately ruled that her sacking had been harsh, unjust and unreasonable. Solene Paris was ordered to pay her $19,206 plus 9.5% superannuation.

Melbourne employer refuses to pay 21K payout, fined further $57K

An employer truly received their comeuppance in the Victorian unfair dismissal case Amanpreet Kaur v The Trustee for Mehtaab Family Trust T/A Paint Splash [2021].

In February 2020, Indian migrant Amanpreet Kaur began working as a full-time painter for Paint Splash in Melbourne. In her Fair Work Commission claim, she stated that she had not been paid over a month’s worth of wages. She said that when she requested to be paid, her employer “refused, failed and neglected to provide me with my work schedule.”

Ms Kaur then sent a letter to the business via her lawyer, stating that if they did not respond she would consider her employment terminated. After several attempts at making contact, Ms Kaur determined that she had been effectively terminated on 1 April 2021.

Employer refuses to comply with Fair Work order

At Ms Kaur’s unfair dismissal hearing, the Fair Work Commission agreed that she had been terminated on the initiative of Paint Splash. It found that the business had not complied with the Small Business Fair Dismissal Code. Also, that it did not have a valid reason to terminate Ms Kaur.

The Fair Work Commission therefore ruled that his sacking had been unfair. And Paint Splash was ordered to pay her $21,491.17 plus superannuation and unpaid leave entitlements within two weeks.

Employer cops massive fine from Fair Work Ombudsman

However, the owners of Paint Splash refused to pay Mr Kaur his compensation. So she sought assistance from the Fair Work Ombudsman, which attempted to make the business’s parent company, Mehtaab Group, comply. These attempts proved unsuccessful, so Mehtaab Group was taken to court.

In May 2023, the Federal Circuit and Family Court imposed penalties totaling over $57,000 against Mehtaab Group and its director, Vikramjeet Singh Khalsa, for breaching the Fair Work Act. Namely, for failing to comply with a Fair Work Commission order to compensate a worker who was unfairly dismissed. Also, for not complying with a Fair Work Ombudsman Compliance Notice regarding outstanding annual leave entitlements.

The court’s ruling not only imposed financial penalties on Mehtaab Group. It also obligated the company to settle the outstanding compensation for unfair dismissal, along with superannuation and unpaid annual leave entitlements.

Ombudsman wanted to send a warning to employers

The Fair Work Ombudsman Sandra Parker said that the regulator pursued this case as it wanted to make an example of employers who fail to comply with its orders, as well as those of the Fair Work Commission. “It is fundamental for the integrity of the workplace relations system that Fair Work Commission orders and our Compliance Notices are complied with,” Ms Parker said.

“The Fair Work Ombudsman is prepared to take legal action to ensure that employees receive all compensation and entitlements they are lawfully entitled to. Any employees with concerns about their pay or entitlements should contact the FWO for free advice and assistance.”

Conclusion to: 4 huge Vic payouts

We at A Whole New Approach have been helping workers with unfair dismissal claims for over three decades. If you have been unfairly treated by your employer, we can help you gain compensation. We are not lawyers but the nations leading workplace advisors and commentators. AWNA are proud of our staff and the outcomes they get for our clients.

We have helped over 16,000 Australian workers seek redress through the Fair Work Commission. If you have experienced unfair dismissal, bullying, workplace harassment or any other violation of your employee rights, contact us today.

Call 1800 333 666 to organise a free and private consultation.

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