Stitcher sews up the boss

Moore v Slondia Nominees Pty Ltd (No.2) [2012] FMCA 989 (31 October 2012)

A shoe repair company has been hit with $35,000 in pecuniary penalties and fines for taking adverse action against an employee. The employer knew that the employee had commenced proceedings in the industrial court alleging underpayments from previous work. The employee, a repairer with stitching skills, was told by the employer after Christmas that there would be “no more hours” for her as business was in decline.

The employee took the company to court again, this time claiming she was dismissed because she had exercised a “workplace right”, namely suing for her proper wages. The federal magistrates court agreed with her, finding that the employer had sacked her because of her claim.

The law in this area requires an employer to prove their innocence, that is, the onus of proof is reversed. This employer produced considerable documentary evidence, showing the economic fortunes of the company. But there was a major piece of evidence “missing”. Not one other employee, from a business operating in three states, lost their jobs at the same time.

The decision lists all the evidence in detail. It is clear the magistrate found this anomaly to be fatal to the employer’s case. If the business was in so parlous a state, how come only one employee out of three states lost her job? True, some employees had their overtime reduced, but as the magistrate pointed out from the evidence, all businesses have fluctuations all the time. In fact from the evidence the magistrate was able to see there had been worse times for the business and there had been no dismissals.

This case underlines the reality that if an employee is pursuing a workplace right, much better to engage them in dialogue about that, than dress up a dismissal as a retrenchment. The original claim was less than $5000, so the employer was well and truly stitched up.