Employee Sacked After Calling Boss a "Backstabbing C**t" Awarded Maximum Unfair Dismissal Compensation.

On 23 December 2016 Mr Trialonas made an unfair dismissal application to the Fair Work Commission pursuant to section 394 of the Fair Work Act 2009. Mr Trialonas sought a financial remedy from his employer, which he identified as “3D Scaffolding”.

3D scaffolding disputed the identity of the employer and Commissioner Johns subsequently held a preliminary unfair dismissal hearing. At the preliminary hearing Commissioner Johns determined that the Applicant had commenced proceedings against the wrong entity “because of the confusing and unexplained labyrinth of Docherty Group Companies”. He accordingly ordered that the application be amended to record the respondent as Steric Solutions Pty Ltd.

The Evidence

Commissioner Johns determined that:

  1. on 6 December Mr Trialonas had a disagreement with the Director of Steric Solutions (Ms Docherty) about machinery that was obstructing a pathway. An argument ensued, in the course of which he called Ms Docherty a “backstabbing cunt”.
  2. Ms Docherty subsequently sent him home.
  3. On 7 December 2016 the applicant sent Ms Docherty a text message and apologised. Ms Docherty did not respond, so Mr Trialonas called her. They chatted for a short while. Ms Docherty invited Mr Trialonas to her home that evening so that they could talk.
  4. On 8 December 2016 the applicant attended for work. He and Leanne Docherty interacted normally and there was no discussion of the disagreement.
  5. On 9 December 2016 James Docherty (Ms Docherty’s uncle and Director of 3D Scaffolding) attended the site. The pair had a loud disagreement in which he directed Ms Docherty to dismiss the Applicant.
  6. After the discussion with her uncle, Leanne Docherty approached the applicant and told him that “James had directed her to dismiss [him]”.
  7. On 14 December 2016 Mr Trialonas and Ms Docherty met at a pub. They subsequently spent a few hours together drinking and talking. Ms Docherty apologised to the applicant for putting him off so close to Christmas. Ms Docherty conceded that her uncle “had forced her to do it against her will”.

The Decision

Steric Solutions contended that the Applicant was dismissed “for serious misconduct including but not limited to language, intimidation, bullying and serious safety breaches”. Although Commissioner Johns commented that the language was “beyond the pale” and “intended to disparage Ms Docherty” he did not accept that it’s use was the reason for the dismissal.

Rather, His Honour noted that “Ms Docherty unequivocally reinstated him on the evening of 7 December 2016. She did not even give him a written warning about the events that led to termination on 6 December 2017. She did not give him a written warning about issues associated with language, intimidation, bullying and serious safety breaches”.

The Commissioner subsequently decided that the real reason for the dismissal was that Ms Docherty’s uncle, James Docherty, directed her to do so: “The reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone.”

Unfair Dismissal Compensation

Commissioner Johns acknowledged that this demand put Ms Docherty in a “difficult position”. However, he determined that it was not a valid reason for the dismissal within the meaning of the Act. The Commissioner accordingly ordered that Steric Solutions pay Mr Trialonas the equivalent of 6 months’ salary.

This article was originally published at https://www.employee-assist.com.au/swearing-employee-wins-max-unfai...

Amnon Kelemen is a leading unfair dismissal specialist and the Director of Employee Assist

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