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9 unfair dismissal wins and one shocking failure

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A-manager-grabbing-an-employee-by-his-shirt.
A manager grabbing an employee by his shirt. This manager should be terminated. We get calls daily about intimidation and threats in the workplace. Employee rights and casual workers rights are improving at the Fair work Commission. 9 unfair dismissal wins is important reading

Swearing, theft, cocaine: 9 shocking unfair dismissal cases

Most unfair dismissal cases brought before the Fair Work Commission are standard affairs. But sometimes, there are cases that involve highly unusual circumstances, involving anything from theft and swearing, to viewing pornography and using drugs. In this article, we share nine of the more intriguing unfair dismissal cases in recent times.

Worker fired for swearing at boss gets job back

The unfair dismissal case Symes v Linfox Armaguard Pty Ltd [2012] involved crew leader Craig Symes, who was responsible for transporting cash. He had suffered a workplace injury that saw him placed on light duties. Two months later, he was told by his manager that he would remain on light duties as he was still taking a long time to perform cash runs.

The key incident in this case took place on 15 December 2011 during a monthly staff meeting. Frustrated at still being placed on light duties, Mr Symes stormed out of the meeting. When his manager told him to return, Mr Symes told him to “get f**ked. His anger continued to boil over later in the lunchroom, where he expressed his frustration with his roster. In front of his manager, Mr Symes complained about the “f**king roster” before punching the roster board

Despite issuing an immediate apology and a formal letter of regret, Mr Symes was summarily fired for serious misconduct the next day. At his unfair dismissal hearing, the Fair Work Commission noted that while Mr Symes’ behavior constituted serious misconduct, his sacking was deemed harsh, unjust and unreasonable.

It was found that Armaguard lacked a valid reason to terminate his employment. The use of foul language, while inappropriate, was commonplace in Armaguard’s work culture. And although Mr Symes did not comply with his manager’s request to return to the meeting, it was not considered a valid “direction” in a legal sense.

Mr Symes was also sacked without a reasonable opportunity to respond to the allegations of serious misconduct. The Fair Work Commission ordered Mr Symes’ reinstatement, acknowledging his 11 years of unblemished service.

Employee-leaving-office-after-being-fired-and-carrying-his-belongings
Employee leaving office after being fired and carrying his belongings. He is waving goodbye knows he should be terminated for his behaviour. Hung over or asleep at work also applys here.

Train worker reinstated despite using cocaine

In this unfair dismissal case – Reece Goodsell v Sydney Trains [2023] – a train worker’s bad decision while out with friends almost cost him his career. Mr Goodsell, a team leader for Sydney Trains who had worked there for 26 years, took a period of annual leave. During this time, he decided to try cocaine while out on the town with friends. Mr Goodsell told the Fair Work Commission that he believed the cocaine would be out of his system by the time he returned to work in four days’ time.

But when he returned, Mr Goodsell underwent a random drug test. This gave a positive result for a cocaine metabolite, which saw Mr Goodsell placed on suspension. He was then subject to a workplace investigation. In his response to the notification of investigation, Mr Goodsell said that his trying cocaine was a “once-off” and an “error in judgement.” He also said that he was “deeply apologetic.”

He never consumed drugs defence

Mr Goodsell argued that when he returned to work, he did not feel impaired “in any way.” And that if he felt like he was, he would have never turned up to work. He said that he had never before consumed drugs during his 26 years at Sydney Trains. And that he was “worried sick” about losing his job.

Mr Goodsell’s words, however, fell on deaf ears. He was later fired, with both he and Sydney Trains accepting that he had breached company drug and alcohol policy. Sydney Trains stated that his role “overseeing health and safety” of his team members weighed into the decision.

In his unfair dismissal claim, Mr Goodsell argued to the Fair Work Commission that “having traces of the metabolite” in his system was not a valid reason for his dismissal. He said that Sydney Trains did not offer evidence that he was impaired at work or unable to perform his duties safely.

The Fair Work Commission sided with Mr Goodsell. It found that there was no evidence that he was “under any impairment” due to the cocaine use. It noted that his positive reading revealed a “very low dosage” in his system. Therefore, his sacking was ruled as unfair and Sydney Trains was ordered to reinstate him.

Robots-replace-human-jobs,-employee's-are-thrown-in-the-trash.
Robots replace human jobs, employee’s are thrown in the trash. AI technology is changing everything. Careful the employer doesn’t use your behaviour to sack you and avoid redundancy payments. We get these call’s all the time.

Dismissed worker asked “why she is so white”

In the unfair dismissal case Martin v Donut King Chirnside Park T/A Hersing Pty Ltd [2012], Vyvyanne Martin argued to the Fair Work Commission that she had been fired for poor performance. However, she said that she never received a warning about her performance. Ms Martin also contended that she had been fired due to her age, saying that her employer favoured younger employees to avoid paying her the appropriate minimum wage.

She said that on several occasions the business owner Ms Wu said it would be cheaper to hire a 15 or 16-year-old rather than provide her shifts. Ms Martin also claimed she had been subject to racial discrimination. She told the Fair Work Commission that on at least two different occasions Ms Wu had “asked why she was so white.”

Ms Taylor also claimed that Ms Wu had said that she wanted to get rid of her. She also alleged that she had been fired due to raising concerns about her pay. And that she had been bullied by Ms Wu in addition to being regularly exposed to harmful chemicals.

In her defense, Ms Wu argued that Ms Martin’s sacking was based on her conduct, non-cooperation, and poor performance. Ms Wu contended that Ms Martin was argumentative and constantly rude. The Fair Work Commission, however, sided with Ms Taylor. It found that Hersing did not provide a valid reason for the termination, as there was no warning about Ms Martin’s poor performance.

The sacking was therefore found to be harsh, unjust and unreasonable. Hersing was ordered to pay Ms Taylor $1,120 in compensation.

Clock-on-its-side.-9-unfair-dismissal-wins-and-one-shocking-failure.
Employees are still being dismissed for sleeping in. The troubling aspect to this its mainly for employee’s who are working from home (WFH)

Car executive dismissed for looking at bikini website wins 25K

The unfair dismissal case Roelofs v Auto Classic (WA) Pty Ltd [2016] involved the employee scoring a massive payday. It all started when a female colleague reported seeing explicit material on Mr Roelofs’ screen in February 2015. Following this incident, he received a “first and final warning,” accompanied by the restriction of access to pornography on his computer.

In June 2015, the female colleague accessed Roelofs’ computer to view his internet history. She claimed to have discovered a webpage titled “Wanderlust, wildly beautiful women in nature.” The site featured images of women in bikinis and lingerie. Wescoast BMW’s management soon reviewed Ms Roelofs’ web history, dismissing him for serious misconduct for viewing pornography.

Mr Roelofs, however, denied the allegations. He maintained that his computer was infected with a virus, causing internet pages to open randomly. Mr Roelofs also argued that the lack of specificity in the accusations deprived him of a genuine opportunity to respond.

The Fair Work Commission found that Westcoast BMW had a valid reason to sack Mr Roelofs. However, it also found he was denied procedural fairness as he was not provided a proper opportunity to respond. He had lacked clarity regarding the specific allegations, hindering Mr Roelofs from addressing the issues raised against him adequately. Westcoast BMW was ordered to pay him $25,314 in compensation.

Devil-employer.-9-unfair-dismissal-wins -and-one-shocking-failure.
Not all employers are bad, most in fairness are good to their people. But there is a percentage that are truely the devil. I’m not sure because they had unhappy childhood’s or they are just complely obsessed with making profits, however it impacts on those around them. These are truely toxic workplaces.

Worker dismissed for stealing can of coke wins $28K

The case of Adam Jolley v Cannon Hill Services Pty Ltd [2020] involved Adam Jolley, an employee at a meat abattoir in Queensland. He was instantly fired for serious misconduct after taking a can of Coke from a vending machine without payment. His employer spotted the theft after reviewing security footage.

When confronted, Mr Jolley admitted to the theft and promptly apologised, stating that the act was “out of character.” He also tried to explain his actions. Mr Jolley said that the vending machine had short-changed him on several occasions, leading him to believe he was justified in taking the can. The machine’s faultiness was backed up by other employees, who said they had lost money to it.

Despite finding a valid reason for dismissal, the Fair Work Commission deemed that terminating Mr Jolley’s employment was unfair. Working in his favour was Mr Jolley’s honesty and genuine remorse. Also, his favourable track record at the company and the fact the theft was a once-off. His employer was ordered to pay him $28,280. This amount took into account Mr Jolley’s imminent eligibility for pro-rata long service leave.

Sad-thoughtful-employee-sitting-on-bed-at-home-holding-mobile-phone-looking-in-the-distance.
Sad thoughtful employee sitting on bed at home holding mobile phone looking in the distance. Thinking maybe she would have tried harder at her job, not answered her boss back. Now without a income and needing to look for a new job. There are consquences of our actions, this applies to all of us.

Worker reinstated despite racial abuse of colleague

The unfair dismissal case Joseph Johnpulle v Toll Holdings Ltd T/A Toll Transport [2015] involved a dock hand for Toll Joseph Johnpulle. He had been fired for making racially insensitive comments to a co-worker of Afghani origin. Mr Johnpulle’s comments included saying “Are you from the Taliban?” and “I enjoy seeing people having their hands cut off, do you enjoy that too?” He had also asked his colleague “Does Islam say to kill?”

Upon receiving the complaints, Toll initiated a show cause process, putting the allegations to Mr Johnpulle. He denied all accusations and asserted that his co-worker had also made racially offensive comments. The company decided to terminate Mr Johnpulle’s employment as he had breached its workplace policies. In his termination letter, Toll also cited the three previous times he had verbally abused the colleague. Mr Johnpulle had previously received a warning about these instances, and the matter had been settled at the time.

The Fair Work Commission took issue with Toll factoring in past instances of misconduct. It found that “going back to revisit settled disputes, issues and allegations to be inappropriate and unfair.” It was noted that providing verbal warnings for racial comments in the past indicated a culture of tolerance. And that it failed to send a clear message that such conduct would not be tolerated.

While acknowledging that Mr. Johnpulle’s comments were offensive and inappropriate, the Fair Work Commission ruled that the dismissal was not fair. Toll was therefore ordered to reinstate him.

Male-employee-sitting-on-the-ground-depressed.
Male employee sacked for sexual harassment, this is still going on in workplaces across Australia. (we get the calls). His career and reputation now in tatters. Behavour in workplaces has to be “very correct” now.

Son fired by dad for being late to dinner wins $10K

The case Pasquale Parente v Selective Smash Repairs Pty Ltd [2019] involved a father and son dispute that really got out of hand. Pasquale Parente was assistant manager of his family’s auto shop business and the son of its owner. Shockingly, Mr Parente was fired by his dad after arriving late for a family dinner on 10 March 2019. 

As the business qualified as a small enterprise, the Fair Work Commission assessed the termination against the Small Business Fair Dismissal Code. The sacking fell short in multiple aspects. Namely, Mr Parente had received no prior warnings and there was a lack of evidence justifying immediate termination.

The Fair Work Commission also considered whether arriving late for a family dinner could constitute a valid reason for dismissal. It found that arriving late for a family dinner was deemed non-work-related conduct. There was also no valid reason for termination based on Pasquale’s tardiness. The Fair Work Commission therefore ruled that the sacking was unjust and unfair. It ordered Mr Parente’s dad to pay him $10,115.00 in compensation.

I-quit-message-on-a-computer-keyboard.
I quit message on a computer keyboard. Sometimes its better to resign that to be terminated. Get advice before taking this step. It depends how much strife your in, maybe you can be packaged out with a good reputation. Get advice, give us a call.

Worker fired for searching for new job while at work

The case Stuart Chadwick v Amber Traffic Design Group Pty Ltd [2017] involved a young graphic designer who scored a massive $10,374 for his unfair dismissal. Mr Chadwick had been given his marching orders after his employer discovered he used its internet and his work phone to search for a new job. Plus, he had copied work files and sent them to his private email, which was against company policy.

When his boss confronted him about seeing to his personal matters while at work, Mr Chadwick accused him of invading his privacy. He told his boss that he had deleted the emails, however Mr Chadwick was sure that he did not believe him. He left the office shortly after and soon received a text saying that he was sacked for serious misconduct.

Mr Chadwick told the Fair Work Commission that Amber Traffic regularly found fault with his work and that he had been previously threatened with the sack. Ultimately, it was found that Mr Chadwick had not intentionally violated company policy. Also, that sending work files to his private email did not have the potential to cause significant damage to Amber Traffic.

The Fair Work Commission accepted that Mr Chadwick had sent the files so that he could create a portfolio to send to prospective employers. This was found not to be reasonable grounds for summary dismissal.

Boss-pointing-the-door-to-an-employee-who-has-been-terminated.
We all sit on the sidelines watch and read what happens to others. Learn from what happens to others. You don’t want a turn at this experiance. I’ve never had someone ring me up and say to me “Gary i enjoyed getted dismissed today”.

Electrician fired for talking about sex life

This unfair dismissal case – Mr Lindsay Swift v Highland Pine Products Pty Ltd – [2023] – bucks the trend of all the others we have covered in this article. 50-year-old Mr Swift worked as an electrician for Highland Pine Products in Oberon, NSW. In 2022, he was placed on a performance improvement plan for his impunctuality, taking too long on meal breaks and improper use of company property. Soon after he was placed on the plan, Mr Swift’s manager received a number of emails concerning his behaviour.

These emails stated that his colleagues were “finding working with him difficult and at times off putting.” Mr Swift’s coworkers said that he had once told a new employee that he would not need his brain while working on the dry mill floor. He had also discussed his sex life with female coworkers and showed them photos of women he had “rooted.” Mr Swift also often introduced himself to others saying “Hi, I’m the electrician, I like to root.”

He was soon fired for serious misconduct. At his unfair dismissal hearing, Mr Swift admitted to the Fair Work Commission that he sometimes said to coworkers “Did you do any rooting on the weekend?” He argued that it was a “common greeting” in his workplace. And that “sexual innuendo” was common at Highland Pines. The Fair Work Commission, however, said that there was no evidence that anyone other than Mr Swift said such things.

Working with muppets

Highland Pines argued that it was right in sacking him. The company said that he often left handwritten notes in a communication book like “…working with muppets.” Also, that he would lose his temper and refer to others as “f**king idiots.” The Fair Work Commission also heard that Mr Swift would make farting noises over the radio and would often say “f**king bastards.” He also once described a coworker as being “dumb as dog s**t.” And that he often said “f**k,” “c**t” and b**ch.”

Despite Mr Swift’s extremely foul-mouthed behaviour, the Fair Work Commission said that it was “tolerated” by Highland Pines to an extent. This was because some of his comments were made “years ago” and were “never actioned” by management, who often heard them. However, it was ruled that Highland Pines had a valid reason to fire Mr Swift as he had a “repeated pattern of disparaging and offensive conduct directed towards female employees.” Also, that he “demonstrated a lack of respect” of company policy. His unfair dismissal claim was therefore rejected.

Employee-being-a-target-for-arrows from-their-employer.-9-unfair-dismissal-wins.
Life fires arrows at us daily. Avoid those and being a target from your employer. You have rights its how you excise them is the key.

Conlusion to: 9 unfair dismissal wins

Call us at A Whole New Approach today. AWNA are not lawyers. We can provide the expert guidance needed to make a successful claim with the Fair Work Commission. But act fast, as you have just 21 days from the day of your dismissal to lodge a claim.

We operate in every Australian state and territory and we offer a no-risk, no-fee service. Over the last 30 years we have successfully assisted more than 16,000 employees in seeking justice through the Fair Work Commission.

Contact us today at 1800 333 666 for a free and confidential conversation about your specific situation.

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