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Casual Worker Threatened With ‘elimination’ Wins Unfair Dismissal

Casual worker threatened with ‘elimination’ wins unfair dismissal

A casual worker threatened with ‘elimination’ by her employer has won her unfair dismissal case and $14,550 compensation.

The business sacked the woman after she refused to make up 29 hours she took as sick leave while receiving JobKeeper.

However, industrial advocates say the woman made the wrong claim, and as a result, probably missed out on a bigger pay out.

Casual worker threatened with ‘elimination’

The woman worked as a Machinist for Brisbane-based Vamos Pty Ltd for 23 years.

The company employed her as a casual on a 38-hour-week, however, when JobKeeper started, her roster reduced to 29 hours.

Vamos sacked her on 6 July 2020, claiming a shortage of work.

It also said it could no longer claim JobKeeper for the woman, because she had two-weeks approved annual leave coming up.

However, the worker claimed Vamos deliberately took her off JobKeeper and subsequently sacked her because she questioned her workplace rights.

Specifically, she refused to make up 29 hours she previously took as sick leave while on JobKeeper.

Bludgers not entitled to free money

The company’s HR manager Leah Akoka warned the worker she would be “eliminated” if she refused to make up the time. 

Furthermore, Akoka claimed she had a right not pay people to bludge or have a holiday.

She also told the worker she would not get free money whether she was entitled to JobKeeper or not.

In response, the worker denied being a bludger.

She also confirmed that both the ATO and Fair Work Ombudsman had advised her she did not have to make up the hours.

Fair Work Commission

In the Fair Work Commission, Akoka claimed the business terminated the worker due to a shortage of work, and not for her capacity or conduct.

However, Vamos head of production, Zeeshant Shaukat, admitted hiring new staff after dismissing the woman.

As a result, Commissioner Chris Simpson rejected the suggestion the company sacked the worker because of a downturn in business.

“[The worker] was terminated because [Vamos] formed the view that [the worker] should be terminated in response to her refusal to make up the 29 hours sick leave for which she received pay.

“The employer was not entitled to require [the worker] to make up the 29 hours for the period during which she was sick.”

Commissioner Simpson found Vamos did not have a valid reason to sack the worker.

He subsequently ordered the company to pay her $14,550.


LEARN MORE

READ COMMISSIONER SIMPSON’S FULL DECISION


Wrong claim

Despite the successful claim, industrial advocate Miles Heffernan says the worker made the wrong claim.

“The minute you are sacked for making an inquiry or complaint about your workplace rights, you are eligible to make a general protections claim,” he said.

“A general protections claim often results in higher compensation pay outs than a standard unfair dismissal claim.

“That’s why it’s important to get urgent expert advice if you have been dismissed from employment.”


RELATED

“SACKED WORKERS LOSING THOUSANDS BY MAKING THE WRONG CLAIM”

READ THE STORY HERE


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Fair Work Claims is part of the Supportah Network.

We are a private consultancy and advocacy firm with no affiliation to any government agency, commission or tribunal.

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