Casual worker's compo claim sparked dismissal

Cases

Casual worker's compo claim sparked dismissal

A casual tyre-fitter who was fired after he raised a worker’s compensation claim has won his unfair dismissal case.

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An on-call casual tyre-fitter who was fired after he raised a worker’s compensation claim has won his unfair dismissal case. 

Background 


Joshua Smith began a second period of employment with Johnny’s Tyre Service as a tyre fitter in February 2016. In July 2017, the business was evicted from its premises located at Emu Plains in Sydney. 

On 11 July Mr Smith and a director of the business, Mr Gulla, were cleaning up the premises for the move. They lit a fire in a drum to burn unwanted items. Mr Smith threw a container of accelerant on the fire which exploded and caused significant burns on his upper body. He remained in hospital for seven days and required ongoing treatment. 

Mr Smith raised the issue of worker’s compensation with Mr Gulla and subsequently their relationship became tense. Mr Gulla verbally advised Mr  Smith that his employment was being terminated. The employer was a small business and did not keep any employment records or documentation in relation to its staff. 

Mr Smith's claim for worker’s compensation was successful and he received benefits, except for a period of three weeks. He commenced an action for unfair dismissal against his employer on 8 August seeking compensation for the unpaid three weeks and the difference between his wages and what he received under worker’s compensation. 

The law 


If a person is dismissed, and that dismissal is harsh, unjust or unreasonable, then it is unfair (s385 of the Fair Work Act 2009).

There are several criteria for setting out whether a dismissal is harsh, unjust or unreasonable (s387) and these include whether or not there was a valid reason, whether the person was notified of the reason and whether the person being fired was given an opportunity to respond. 

Arguments 


Mr Smith's representative (his partner Ms Maskiell) argued that the dismissal was unfair. She claimed the employer made out that Mr Smith was not dismissed initially and then changed its position, saying he was dismissed due to serious misconduct, namely the fire incident on 11 July 2017.

Ms Maskiell also claimed that the employer denied that Mr Smith was an employee at the time of the fire incident.

Mr Smith sought compensation of $8,112.00.
 
The employer was represented by Ms Hoban who argued that the dismissal was not unfair. She claimed that Mr Smith was verbally, but not formally, dismissed because of his misconduct, which caused his injuries.

Ms Hoban further argued Mr Smith had been informed of the reason why he was dismissed and given an opportunity to respond.

The employer challenged the amount of compensation sought, claiming it should be reduced in light of Mr Smith not accepting an offer to return to work. 

Legal question 


The Commission sought to determine whether Mr Smith's dismissal was harsh, unreasonable or unjust based on the criteria under s387 of the Fair Work Act 2009.

The decision 


In relation to the misconduct claim, the Commission noted that the responsibility lay on the employer to ensure the fire was not lit in the first place and that it was extinguished immediately.

It also found that the dismissal happened after a conversation between Mr Smith and his employer whereby Mr Smith indicated his desire to seek workers compensation. These conversations, however, were not found to represent an acceptable opportunity for Mr Smith to respond to the dismissal. 

The Commission held that Mr Smith was dismissed not because of misconduct but because he wanted to claim workers compensation. Therefore, the dismissal was unlawful and invalid.

Commissioner Cambridge also said the dismissal arose because the employer wanted to avoid taxation and regulatory authorities. 

Ultimately it was held that Smith’s dismissal was harsh, unreasonable or unjust. He was awarded $3378 (three weeks' remuneration) compensation. 

Joshua Smith v Johnny's Tyre Service Pty Ltd

 
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