'Treated like a naughty child'... and then sacked

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'Treated like a naughty child'... and then sacked

An admin assistant who claimed she was ‘treated like a naughty child’ at work has won her unfair dismissal case.

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An admin assistant who said she was ‘treated like a naughty child’ at work has won her unfair dismissal case.

Facts and background


Vanessa Rojas began employment as an administration assistant with Beacon Products on 29 September 2009. She believed that, over the years, she had built positive relationships with her colleagues and was always professional with her manager, Lyndell Curley. 

Ms Rojas said that problems started when Karen Comerford was transferred to head office and took an immediate dislike to Ms Curley. Ms Comerford openly complained about Ms Curley being lazy and incompetent, and the two of them would argue loudly in the office. There was a particular incident, in which Ms Comerford told Ms Curley to “f**ck off you fat c*nt”. 

Ms Curley believed that Ms Rojas was supporting Ms Comerford and became cold towards Ms Rojas. This did not improve, even after Ms Comerford resigned.

Ms Rojas claimed to be surprised when, on 24 October 2017, the director of the company, Warren Skry, met with her and raised Ms Curley’s concerns about her attitude. Mr Skry insisted that it was Ms Rojas’ job to allay Ms Curley’s insecurities and make her happy. Ms Rojas continued to act professionally and focused on her work duties.

However, two days later she received a written warning, saying that her “behaviour and attitude towards management remains below the expected standards of Beacon Products”. 

On 15 December 2017, Mr Skry dismissed Ms Rojas in a meeting in which he blamed her for Ms Comerford’s resignation. She said she felt intimidated and was crying. 

Mr Skry said that he terminated Ms Rojas’ employment because she would openly discuss her dislike of Ms Curley with other staff, would exclude Ms Curley from office conversations and would blatantly ignore common pleasantries towards Ms Curley.

He conducted an informal investigation of the complaints by speaking to staff who apparently corroborated Ms Rojas’ treatment of Ms Curley. Mr Skry noted that staff were “much happier” with Ms Rojas gone. 

Ms Rojas denied the allegations, saying Ms Curley treated her “like a naughty child”. She also said that she had suffered stress and anxiety during her time at Beacon and since her dismissal. 

The law


Workers are generally protected from unfair dismissal under Part 3-2 of the Fair Work Act. A dismissal is unfair if it is harsh, unjust or unreasonable (s387). There are several criteria in deciding whether a decision is harsh and the first criterion is whether the decision was valid (s387a)). Other criteria include whether the worker was notified of the reason for the dismissal (s387(b)), and whether the worker was given an opportunity to respond to the reason (s387(c)). 

If a worker has been unfairly dismissed, the FWC may order the worker’s reinstatement or the payment of compensation (s390). 

In issue 


The question to be decided was whether Ms Rojas' dismissal was harsh, unjust or unreasonable and therefore an unfair dismissal. 

Considerations and decision


In determining whether Ms Rojas’ dismissal was unfair, the FWC took into account a number of factors including whether Ms Rojas’ behaviour could be characterised as serious or ‘grave’ misconduct, whether there was a valid reason for the dismissal, and whether Mr Skry notified Ms Rojas of the allegations against her.

The FWC found that Ms Rojas’ behaviour could not be characterised as serious or ‘grave misconduct’ and it could not conclude there was a valid reason for the dismissal. 

The FWC also considered other factors such as whether Mr Rojas was given an opportunity to respond to the allegations and whether she was allowed a support person present at any discussions relating to the dismissal. However, these did not have much bearing on the decision because Mr Skry did not have a valid reason for dismissing Ms Rojas. 

The FWC made an order for $3384 of compensation because it did not believe reinstatement was appropriate. 

Read the judgment 


Vanessa Rojas v Beacon Products Pty Ltd [2018] FWC 4317 (16 August 2018)
 
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