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Unfair DismissalJanuary 8, 2015
A Brisbane technician working for Hitec Welding has been found by the Fair Work Commission to have been unfairly dismissed by his employer. The employee, Garcia, has been employed by the welding company for 4 years and was accused of misconduct after allegedly urinating behind a shed.
Garcia was pinned by his employer as the “culprit” however there was not enough strong evidence that he was responsible for the ‘stench of urine so strong it took several litres of disinfectant – to overpower it’. Garcia’s employer, Jozef Lewandowski, went to many lengths to rectify the situation. He installed a porta-loo and told his staff to use it or alternatively walk 10 minutes to where there were 11 plumbed toilets on the site. Later Lewandowski then concreted the area.
The Fair Work Commission Deputy President Ingrid Asbury told the court, on Christmas Eve, that Mr Garcia had been unfairly dismissed and that his dismissal was harsh, unjust and unreasonable. Mr Garcia was reinstated and paid $16,900 in compensation and superannuation. He is thankful for this as he is currently working on a 457 visa, is sponsored by Hitec Welding and is on the path to becoming an Australian citizen.
Lewandowski failed to successfully terminate his employee because there were flaws in his case. There was a lack of evidence, only one other staff member could account for Garcia urinating behind the shed. That staff member told the courts that he saw Garcia “adjusting his clothing while leaving the area on one occasion”. Lewandowski also failed to provide written warnings in a clear and precise manor. Lewandowski had suggested that a warning letter was sent in the mail, however Deputy President Ashbury accused Hitec Welding of fabricating this written warning and she wondered why Lewandowski didn’t give the letter to Garcia in person whilst at work.
If you are an employer and currently do not know the appropriate measures to discipline a staff member or provide warnings for unfavorable behaviour or other misconduct in your workplace call Employsure today on 1300 651 415 or fill in the form below. We are here to help employers from employment relations issues, such as unfair dismissal claims, and we are ready to take your call.
*Information sourced via The Australian newspaper.