A worker has won his unfair dismissal claim and $12,000 compensation after being sacked for requesting annual leave.
However, experts say the telecommunications salesperson missed out on a higher payout because he made the wrong claim.
An employee is eligible to make a general protections claim if a dismissal happens as a result of making an complaint or inquiry about employment.
General protections claims usually result in much higher payouts and penalties than unfair dismissal claims.
Worker wins unfair dismissal after requesting leave
Mark Peters worked for Red Telecom Pty Ltd since June 2017, selling services to clients across Sydney and the Central Coast.
In April this year, Peters contacted company director Nicholas Kontaxis requesting four weeks annual leave from 13 May.
Kontaxis denied the request, saying “We are way too busy”.
Furthermore, he said “that’s not how it works” when Peters said he had “extremely necessary” reasons to be off work.
In an email, he wrote:
“You can’t just take time off without approval. Sorry mate.
“I can’t authorise leave at this time. We are very busy and we are short staffed.
“I am sure you can appreciate you are a valuable part of the team that I can not loose [sic] for a month.
“Thank you for understanding. What is the time off for?”
Email followed by telephone call
Peters told the Fair Work Commission the two spoke on the telephone following the email.
Kontaxis: Why do you need to go off?
Peters: It’s a personal issue.
Kontaxis: It doesn’t work like that. You cannot take holiday leave unless I approve it.
Peters: I’m entitled to my holidays. I haven’t had one in two years.
Kontaxis: If you take that leave, we’ll say that you have abandoned your job.
Peters: Well I said I can’t do much about that but I’m not abandoning my job. I just want to take my holiday.
Kontaxis: You seem to be unhappy lately. What’s the reason for that?
Peters: I’m not unhappy, I’ve just got some personal issues that I need to sort out.
Kontaxis: We may as well finish you up now.
Peters: I don’t want to leave the job.
Kontaxis: We’ll finish you up today.
Shortly after the call, Red Telecom locked Peters out of work computer systems.
He did not receive a written notification of his termination.
“SACKED SALES MANAGER DIDN’T HAVE THE RIGHT TO TAKE COMPASSIONATE LEAVE”
Employer claims dismissal was for under performance and misconduct
Peters filed a claim for unfair dismissal in the Fair Work Commission.
Red Telecom claimed under performance and misconduct as reasons for the dismissal, and not the leave request.
However, the Commission heard management failed to raises any concerns about Peter’s work or misconduct before the dismissal.
As a result, deputy president Lyndall Dean ruled in favour of Peters:
“In terms of the alleged misconduct, the evidence does not establish that this occurred.
“These allegations seem to be an attempt to justify Mr Peters’ dismissal after the event.
“It was not made clear to Mr Peters that his employment was at risk if his sales did not improve.
“The evidence of Mr Kontaxis is particularly relevant, in that it was clear he did not consider warnings of any kind were beneficial in improving the performance of a sales person.”
Ms Dean ordered Red Telecom to pay $12,278 compensation.
Industrial advocate Miles Heffernan from Industrial Relations Claims says Peters could have filed a different claim.
“Instead of filing an unfair dismissal claim, we would have filed a general protections claim,” he said.
“Because in this case, the employer took adverse action against the worker for exercising a workplace right.
“The advantage of filing a general protections claim is the compensation awarded is usually higher, and penalties can be imposed on the employer.
“The lesson here is to seek expert advice before you file a claim.
“But remember, you only have 21 days from the date of your dismissal to do so – so don’t delay.”
Please call our team at Industrial Relations Claims today on