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Apprentice unfair dismissal case highlights the importance of getting dismissal right

A recent case before the Fair Work Commission (Commission), has highlighted the importance of getting dismissals right, and complying with obligations under the relevant modern award.

The case involved a small painting business in Queensland, which employed a second year apprentice painter.

The apprentice was required to work weekends, and in some cases, up to 50 hours per week without penalty rates, in order to get the job finished so the employer could avoid possible liquidated damages. The employer claimed the apprentice had agreed to a ‘flat rate of pay’ instead of their requirement to pay overtime rates.

The apprentice was dismissed immediately by text message for failing to turn up to a Sunday shift, which he had requested to have as a day off. The employer maintained that the apprentice was warned that he would lose his job if he did not turn up for the Sunday shift.

Following termination of employment, the apprentice lodged an application for Unfair Dismissal with the Commission.

The employer maintained that the apprentices failure to turn up for the shift was essentially the ‘final straw’ in a series of issues including failing to turn up to work on time, leaving early, and issues relating to timesheets.

In determining that the apprentice was unfairly dismissed, the Commission highlighted:

  • The need to engage with the apprentices Australian Apprenticeship Support Network (AASN) provider in terms of issues relating to misconduct;
  • To request a young, indentured apprentice to work repeated Saturdays and Sundays without payment of penalty rates after having completed ordinary hours during the week was ‘extraordinarily unreasonable’;
  • The importance of complying with Award terms, in this case specifically those of the Building and Construction General Onsite Award 2010, as to what constitutes ‘reasonable overtime’, and overtime obligations;
  • The employer did not comply with the Small Business Fair Dismissal Code as the reason to dismiss the employee was not a valid reason for dismissal (the requirement for the employee to work the Sunday was unreasonable).

In this case the employer’s non-compliance with their obligations far outweighed the claimed misgivings of the employee. The Commission accordingly ordered the employer to pay the former employee the equivalent of eight weeks wages (plus superannuation) in compensation.

This case highlights the importance of needing to comply with your award obligations, and following due processes in dismissing an employee.

HIA Workplace Services are available to discuss employment related matters, including information and advice relating to your obligations under your modern award. For further information and assistance call 1300 650 620.