'Spiteful' dismissal lands employer in doghouse

Cases

'Spiteful' dismissal lands employer in doghouse

The FWC has lambasted an employer that sacked a casual puppy carer, saying “one can only hope that the respondent takes better care of the puppies at their farm than they do of the humans in their employ”.

The FWC has lambasted an employer that sacked a casual puppy carer, saying “one can only hope that the respondent takes better care of the puppies at their farm than they do of the humans in their employ”.

The employee received compensation in lieu of reinstatement, both because he had obtained another job and because he would have had to return to working for the same manager.

Facts of case


Lance Palpal-Latoc had been employed as a puppy/dog carer for about 2.5 years.  He was a casual employee and provided evidence that his work hours varied, but he had worked at least one day every week and there was a pattern of him working extra hours during his university term breaks.

The FWC found that this amounted to a regular and systematic employment arrangement with an expectation of continuing employment.

For about two years, he worked for one manager who did not raise any issues about his performance. For his final three months, another manager took over. Her communications were mainly via email. When another employee resigned, she asked him what his “plans” were and indicated that he would be able to choose his preferred work shifts.

Some emails followed that obliquely implied criticism of some aspects of his work performance and questions about his ability to do certain tasks. A further email explained that as new casual staff were about to commence work, he had to return his locker key as there were not enough keys to go around. Also, she would evaluate the performance of all employees, including him, and decide which ones to keep. 

Mr Palpal-Latoc was then offered some extra duties, but he could not undertake them because he was not old enough to drive his employer’s work car, which in turn meant his work roster might need to be reorganised. The next day, he received an email terminating his employment. The email listed the main reasons as difficulty organising work shifts and lack of personal contact with his manager.
 
About six weeks later, he obtained other employment at a slightly higher pay rate.

Arguments


Mr Palpal-Latoc argued that he was a regular casual employee and therefore eligible to make a claim of unfair dismissal. He claimed that the dismissal was unfair because he received no prior warning of it, the employer did not raise any performance-related issues with him and did not give him an opportunity to respond to its concerns.

The employer claimed that he was not a regular casual employee. If, however, he was, the change of manager had revealed job performance shortcomings that he had then been warned about and told that termination could result if he did not improve. He had been told that some job tasks that he could not perform were essential, but the employer claimed that he said that both his university commitments and inability to drive the work car prevented him from training to learn those tasks. For all these reasons, termination of employment was justified.

In issue


The first issue was whether Mr Palpal-Latoc was a regular casual employee as defined under the Fair Work Act 2009. The FWC found that he was. The next issue was whether his dismissal was justified and done in a fair manner.

Decision


The FWC found as follows:
  • Mr Palpal-Latoc was not dismissed in compliance with the Small Business Fair Dismissal Code.
  • The employer provided no evidence that there was a valid reason for dismissal – only vague assertions related to work schedules, not understanding tasks and perhaps not being a team player. The FWC described the employer’s stated reasons as “capricious, fanciful, spiteful or prejudiced”.
  • He was not notified of the reason(s) for dismissal and therefore had no opportunity to respond. Nor had the communications with him included any warnings.
Therefore, the dismissal was unfair. Reinstatement was impracticable as he had obtained other work and would have had to work under the same manager if he returned.

Compensation of $1730.20 was awarded. This was calculated as earnings of $6426.42 based on a prediction of six months’ further employment, minus $4167.28 earned in other work since dismissal, minus $528.94 likely to be earned while awaiting the order of compensation. 
 
The bottom line: The FWC was abnormally scathing about this employer’s conduct. The employee was not dismissed for a valid reason, not given prior indication or warning of any performance issues, not told why he was dismissed and not given any opportunity to respond to any concerns the employer may have had. Because he had a regular and consistent pattern of casual employment, he was eligible to claim unfair dismissal.

Read the judgment

 
Post details