A telecommunications salesperson has won his unfair dismissal claim and more than $12,000 compensation after he was sacked for requesting annual leave.
Industrial advocates say the employee might have been awarded more money if he had made a general protections claim, instead of an unfair dismissal claim.
‘We are way too busy’
Mark Peters worked for Red Telecom Pty Ltd since June 2017, selling various services to clients across Sydney, Newcastle and the Central Coast.
In April this year, Mr Peters contacted company director Nicholas Kontaxis requesting four weeks annual leave from May 13.
Mr Kontaxis denied the request, saying “We are way too busy”.
When Mr Peters responded that he had “extremely necessary” reasons to be off work, Kontaxis replied that “that’s not how it works”.
“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?”
Mr Peters told the Fair Work Commission that the two then had a telephone conversation with words to the effect of:
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, Peters found he was locked out of the company’s computer systems.
He did not receive a written notification of his termination.
Employer claimed dismissal was for under performance and misconduct
Mr Peters filed a claim for unfair dismissal in the Fair Work Commission.
Red Telecom argued that his dismissal was the result of under performance and misconduct, not the leave request.
But the Commission was told that management had not raised any concerns about Mr Peter’s work or misconduct before the dismissal.
Deputy president Lyndall Dean ruled in favour of Mr 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.”
Red Telecom was ordered to pay $12,278.20 compensation.
Industrial advocate Miles Heffernan from Industrial Relations Claims said Mr Peters could have filed a different claim.
“Instead of filing an unfair dismissal claim, we would have filed a general protections claim, because in this case, the employer took adverse action against the worker for exercising a workplace right,” he said.
“The advantage of filing a general protections claim is that the compensation awarded is usually higher, and penalties can be imposed on the employer.
“The lesson here is to make sure you get some expert advice if you have been dismissed from employment before you lodge a claim – but remember, you only have 21 days from the date of your dismissal to file a claim – so don’t delay.”
If you have been unfairly dismissed from employment, you may be entitled to compensation or reinstatement.
But you only have 21 days to make a claim, so don’t delay!
Please call our specialist team at Industrial Relations Claims today on
1300 045 466