The following is a case decided recently by the Fair Work Commission in Lachlan Horn v Shark Lake Food Group Pty Ltd [2012] FWA 5114. MKI Legal are experienced unfair dismissal lawyers and the following is a summary of that case.

The worker’s right hand was injured whilst at work. The company’s insurer accepted liability for worker’s compensation and paid him for it. Unfortunately, the workers compensation payments made to him by the company were always short by several hundred dollars each month. He informed the payroll officer about it but as it was nearly Christmas, the payroll officer was set to go on holiday. He was referred to the manager of the company who alone can order payment for him of the amounts he was claiming.

When the worker approached the manager, he was discourteously dismissed by the manager. The worker waited until January for the payment of the balance due to him for the month of December but it was unpaid. Come January, the payment made to him was again short of $400. He called the manager who was again discourteous to him. The worker swore at the manager.

A few weeks later, a colleague took the worker to see the manager. The manager was courteous and accommodating toward the colleague but when the worker began talking to the manager, the manager overthrew the chair he was sitting on and began berating the worker, leaning over him in a threatening manner, and pointing his finger at him. The worker left with his colleague.

The next day, his supervisor sent him a text message telling him that it was best for him not to go to work as the manager was there. This happened several days until the worker reported for work, confronted the manager and told him that if he were going to be treated shabbily he might as well be given his separation certificate. When he was issued a separation certificate, the certificate informed him that he was dismissed from his employment as of December.

The worker knew that this was not a typographical error but just like the short payments on his worker’s compensation, this was a deliberate attempt on the part of the manager to prevent him filing an unfair dismissal action. He filed it anyway and presented his evidence as well as the testimonial evidence of his colleague.

The Commission found that the worker was unfairly dismissed. In the first place, the dismissal was not due in any part to any cause related to his unsatisfactory performance, incapacity or misconduct in the discharge of his duty. He had been an employee for three years and had no prior record of any misconduct at work. There is no proof that the company was reducing its workforce and that the worker’s position has become genuinely redundant. He was merely claiming what was rightly due to him for worker’s compensation for an injury sustained whilst at work.

More importantly, the manner by which he was dismissed was harsh, unjust and unreasonable: he was not given any prior notification of the reason why he was being dismissed nor was he given any opportunity to respond to the reason of his dismissal.

The Fair Work Commission noted that the strained relations between the manager and the worker precludes them from ordering his reinstatement to his former position and thus awarded him compensation for his unfair dismissal. In arriving at the judgment award for unfair dismissal, the Commission noted that although he was able to find work after he was dismissed his wage was much lower than the wages he was paid during his employment with the company. The difference between his former wage prior to dismissal and his present wage was the basis of the judgment award multiplied by the number of months from his dismissal until the time that the case was decided.

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