In Daniel KerlevBasketball Tek Academy Pty Ltd T/A Basketballtek[2017] FWC 962, the employee, Mr Kerle, was a basketball coach and admin officer for Basketballtek. However, after just 9 months of employment, Mr Kerle was dismissed on 17 October 2016. Mr Kerle then claimed that his dismissal was unfair because he was dismissed with immediate effect and for no valid reason. Mr Kerle, therefore, made an unfair dismissal claim before the Fair Work Commission.
In its response, Basketballtek argued that Mr Kerle was dismissed because it could no longer sustain his employment, being under significant financial pressure, which is effectively a redundancy.
Basketballtek’s No Show
After Mr Kerle filed his claim and Basketballtek submitted its response, Basketballtek did appear to be under significant financial pressure. Basketballtek did not file any further submissions or statements after its response. Meanwhile, Mr Kerle filed several documents, including submissions and witness statements.
Then, on 5 January 2017, correspondence was received from a representative of Basketballtek, stating that the company had gone out of business and would be put into liquidation in the near future. It also stated that the company would not be pursuing its objection to Mr Kerle’s claim of unfair dismissal and that it would not file any further material in relation to the matter.
Finally, on the day of the hearing on 27 February 2017, only Mr Kerle appeared before the Fair Work Commission. Basketballtek was absent.
Mr Kerle’s Arguments
The Fair Work Commission then solely heard Mr Kerle’s arguments. He said that his performance had always been exemplary and that there had been no complaints against his work performance.
On 16 October 2016, Mr Kerle noticed that he had not been paid for the previous week. He sent an email to the General Manager of Basketballtek, querying the matter. The next day, after receiving no response to the email, Mr Kerle tried to call the General Manager. The General Manager did not answer but called back later the same morning, telling him that his employment was terminated with immediate effect.
Mr Kerle asked for a termination letter. In that termination letter were statements to the effect that Basketballtek simply could not sustain Mr Kerle’s employment and was under significant financial pressure.
On the same day, Mr Kerle heard that another employee, who was formerly a part-time assistant coach, received a full-time position to take over the duties of Mr Kerle. Despite this, Basketballtek argued, before its absence, that Mr Kerle’s role had been made redundant.
Decision
First, the Fair Work Commission held that Basketballtek had obligations to consult about redundancy per an award that applied to Mr Kerle. Basketballtek did not consult Mr Kerle at all. Therefore, there was not a genuine redundancy, due to a failure to follow the unfair dismissal laws.
The Fair Work Commission then held that, especially since Mr Kerle was notified of his termination for the first time via a telephone conversation and was then not allowed any opportunity to respond to any reasons, the dismissal was harsh, unjust and unreasonable in contravention of the laws on unfair dismissal
Moral of the Story
Employees should know their rights and seek advice because there are strict deadlines for filing applications before the Fair Work Commission. Here, despite the traumatic nature of his dismissal, Mr Kerle was quick and filed his unfair dismissal claim within 8 days of the dismissal.
The employer failed in its claim because of the failure to follow proper consultation requirements before making an employee redundant. This could have been avoided had the employer obtained brief advice from a lawyer on the termination of employment issue.
If you have any query regarding a redundancy, please contact our redundancy lawyers.
[mki-form heading=”Need Help with an Employment Matter? Contact us Now.”]
Read More
Teacher warned, allowed to continue teaching, sacked-was the dismissal unfair?
Sacked For Refusing Free Flu Vaccine – Dismissal Upheld
Be Careful What You Post On Facebook – A Swim Instructor’s Unfair Dismissal Claim
Contravening a modern award makes employer liable for payment of backpay to underpaid employees and civil penalties
Repeated instances of inappropriate, unprofessional conduct and neglect of duties found to be valid reasons for termination
Secretly recording disciplinary meetings with your manager is a valid cause for dismissal
Pecuniary penalty awarded to employee made to do unpaid “dips” before a shift
Refusing a pregnant employee’s return to work – an adverse action prejudicial to employment for which employer meted civil penalty
Coughing in co-employee’s face is a valid reason for dismissal
