A pelican feeder has won his unfair dismissal claim after being sacked for swearing.
His employer also accused him of failing to provide information about the sale of badges to tourists.
Although the man worked just one hour a week, the Fair Work Commission heard the case, and found his employer did not have a valid reason for the dismissal.
Furthermore, the Commission found it failed to provide the worker with procedural fairness.
Pelican feeder wins unfair dismissal
Gary Matthews worked for the San Remo Fisherman’s Co-Op in southern Victoria as a pelican feeder for 18 years.
The co-op takes part in a range of activities in the area, including the daily feeding of pelicans.
Matthews earned $29.00 a week for the one hour feeding sessions he performed on a Tuesday.
The co-op also allowed him to sell badges and collect donations to raise money for the Pelican Research Group to promote the welfare of pelicans in the region.
However, that changed when the Department of Environment, Land, Water and Planning started investigating.
The Department expressed concerns the co-op had been profiteering from wildlife.
Worker refused to hand over details of badge sales
As a result, the co-op’s general manager, Paul Mannix, stopped the sale of badges and collection of donations.
He asked Matthews on numerous occasions to provide details of the revenue raised from the badge sales, however, Matthews refused.
Matthews claimed Mannix wouldn’t tell him why he wanted the information.
At a subsequent pelican feeding session, a visitor asked Matthews about the badges.
Matthews assumed the visitor was a ‘stooge’ sent by management to set him up, and later confronted Mannix about it.
During the heated exchange, Matthews swore at his manager, using words to the effect:
“What you did was very f-cking disrespectful.”
The general manager responded that it was:
“Effing offensive that you would make such an accusation”.
Mannix subsequently dismissed Matthews by email for:
- refusing to provide the financial details of the badge sales;
- his offensive accusation that Mannix had sent a ‘stooge’; and
- swearing at Mannix.
“CAN YOU BE SACKED FOR SWEARING AT WORK?
What the Commission found
However, Commissioner David Gregory found none of the reasons constituted a valid reason for dismissal.
Specifically, he found:
- The failure to comply with the request for information was not of such gravity or importance as to constitute the rejection or repudiation of the employment contract; and
- It was “an exercise of hair-splitting” to suggest the expression ‘effing’ had any less intent than ‘fucking’, and in any event, the employee’s language was used in frustration and not directed with any aggression or threat, and it was in the context of a robust discussion between employees who otherwise had a good relationship.
Mr Gregory also found Mannix failed to provide Matthews with an opportunity to respond to the allegations against him.
He therefore found the dismissal unfair, and ordered to co-op to reinstate Matthews.
Mr Gregory also noted Matthews’ length of service and dedication to the welfare of pelicans.
Employers should always seek legal advice before dismissing an employee
Industrial advocate Miles Heffernan from IR Claims says the case is a lesson for employers.
“Despite Mr Matthews working just one hour a week, the Fair Work Commission found him eligible to make an unfair dismissal claim,” he said.
“And furthermore, it ruled in his favour.
“Employers must always follow proper processes during a disciplinary process, including providing a worker with the chance to respond to any allegations against them.
“Failing to do so will almost always result in an unfair dismissal claim.”
Please call our team at Industrial Relations Claims today on