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Employee who had relationship with co-worker wrongfully dismissed

By Portner Press on March 25th, 2019
  1. Industrial Instruments
  2. Fair Work Act

 

Two romantically involved massage parlour employees, a massage therapist and a cleaning/maintenance worker, have been awarded nearly $40,000 in an unfair dismissal claim.

They told the Fair Work Commission (FWC) they had been dismissed for breaking the business’s “no relationships” rule.

The employer denied that there was such a rule in place and said that the massage therapist had resigned voluntarily. It said it dismissed the cleaning/maintenance worker for poor attendance and selling stolen property to colleagues.

However, the FWC found that the employer did have a “policy of not allowing employees to have relationships”.

Colin Kenneth Elvin, the former owner of Foot and Thai Massage in Canberra had met individually with other employees to ask about the dismissed employees’ relationship together, days after he had learned about it.

When Mr Elvin and the business’s supervisor, Jun Millard Puerto, met with the cleaning/maintenance worker to dismiss him, they told him that his massage therapist partner, who was on a 457 visa, would be sent back to the Philippines the following day.

FWC Deputy President John Kovacic said “the evidence in this case supports a finding that [the massage therapist’s] decision to walk away from her employment … was the result of [the employer’s] conduct in intending to send her back to the Philippines. The economic impact of that would have been significant for [her] and her family in the Philippines and in my view left her with no effective or real choice but to leave her employment”.

He found that she had been “constructively dismissed” and that her dismissal was “harsh, unjust and unreasonable”. He also found that the cleaning/maintenance worker’s dismissal was “unjust and unreasonable”.

The massage therapist was awarded $29,228.55 in compensation, while the cleaning/maintenance worker received $8,000 in compensation, plus superannuation less tax on each payment.

The operators could also face jail

As well as the compensation the company will have to pay its staff, Mr Elvin and Mr Puerto could both face up to one year in prison for providing false or misleading evidence to the FWC, which is in breach of s.678 of the Fair Work Act.

Deputy President Kovacic noted a number of issues that arose in a previous hearing in March last year, which raised “serious questions regarding the reliability of Mr Elvin’s and Mr Puerto’s evidence”.

Text messages sent between the men at this hearing suggested that Mr Elvin had “sought to influence” Mr Puerto’s evidence minutes before he was sworn in.

The massage therapist and cleaning/maintenance worker in their evidence also tendered screen dumps of a translated text exchange between the cleaning/maintenance worker and Mr Puerto which highlighted inconsistency with the oral evidence Mr Puerto gave to the commission.

“In view of my concerns and the seriousness of those concerns regarding the events of 2 March 2018, I have decided to refer [the evidence] to the General Manager of the Commission to consider whether Mr Elvin and whether Mr Puerto have contravened s.678 of the Act,” Deputy President Kovacic said.

Just the tip of the iceberg

The same employer will be facing a Federal Court trial later this year, where the Fair Work Ombudsman (FWO) alleges that seven Filipino employees working on 457 visas have been collectively underpaid $912,809 for work they did between June 2012 and February 2016.

It is alleged that the workers were underpaid between $111,263 and $149,557 each and were subjected to coercion, discrimination and adverse action.

The employees were allegedly required to work 65 to 68 hours per week, but were usually only paid for 38 hours per week.

It is also alleged that six of the employees were made to pay back $800 of their wages per fortnight over a nine-month period when Mr Elvin decided that the massage parlour was not generating enough income.

Mr Elvin allegedly threatened to have the employees’ families in the Philippines killed if they complained to the immigration department.

“This type of conduct has no place in Australia and it deserves utter condemnation and appropriate sanctioning,” Fair Work Ombudsman Natalie James said.

Foot and Thai Massage could face penalties of up to $54,000 per contravention, while Mr Elvin and Mr Puerto could face penalties of up to $10,800 per contravention.

Even unintentionally underpaying staff can result in hefty penalties

Make sure you are meeting all of your obligations by reading chapter T2 Time and Wages Records in the Employment Law Practical Handbook.

Find out more.

 





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