Sacked: 'fix' your marriage if you want job back

Sacked:
By Marise Donnolley on 16 May 2017 A childcare centre director whose dismissal was 'capricious, fanciful and prejudiced" has been awarded almost $30,000 compensation.

The Fair Work Commission ruled the termination had been harsh, unjust and unreasonable.

Background


Ms S was a director of a childcare centre, owned by her husband's family, from about 2007 until July 2016.

When her marriage broke down, her father-in-law, Mr K, told her "you cannot work here because of your husband. If we fix the situation with your husband, the job is available".

The commission heard "fixing" the marriage was most unlikely, given the woman's uncontested evidence that her ex-husband had physically assaulted her on numerous occasions (resulting in two apprehended violence orders), divorced her twice, stolen from their joint account and accused her of being an unfaithful wife and a thief.
 
Mr K gave his daughter-in-law no indication when she might return to work, and no indication that she or her ex husband could work in another centre owned by Mr K and thereby not have contact with each other.

Despite this, he maintained that Ms S voluntarily left her employment. During proceedings he also attempted to construct a case of misconduct, post dismissal, which was rejected.

Deputy president Sams found there had not been a valid reason for the dismissal.

Procedural fairness


He also found there had been an "abysmal failure" by the employer to notify Ms S of the reason for her dismissal, and she had not been given an opportunity to respond.

DP Sams also dealt with the employer's allegations of poor performance issues in 2013.

"Relying on very stale performance issues, which must have been satisfactorily addressed at the time, as evidence of the applicant's misconduct was, in my view, wrong, vindictive and little more than an afterthought," he said.

"It is preposterous to submit that for three and a half years, with the applicant in a close-knit family unit, that the respondent was not fully aware of the applicant's performance and management of Buzzbee and did not one thing to warn her of any perceived shortcomings about which it now complains. These post facto protestations have a distinctly hollow ring about them." 

The commission ruled the dismissal was harsh, because there was no evidence upon which the respondent could form the belief Ms S had engaged in conduct it alleged was discovered after her dismissal.

It was unreasonable in that it was premised on an invalid reason which could not be justified in any circumstances. It was harsh because the applicant lost her job for confected reasons, after many years of service, with the obvious economic detriment which flowed from her dismissal.

She was denied payment in lieu of notice and the payment of her other outstanding entitlements (as yet undetermined).

DP Sams awarded the woman $29,714 plus 9.5 per cent superannuation.

CS v HK Group Pty Limited t/a Buzzbee Long Day Care Centre – No 2 (U2016/10383) [2017] FWC 2027

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