Fair Work Australia (FWA) recently had to determine whether an
aggrieved employee had the requisite 6 months' continuous
employment to bring a claim for unfair dismissal under the Fair
Work Act 2009 s.394.
In Naeem Zaman v Foxy Four Pty Ltd t/as Fernwood Fitness
Tuggeranong, the applicant had been employed by the respondent
from February 2011 to take fitness classes. The issue was whether
he had resigned on 31 August 2011 (as the Respondent maintained)
and been re-engaged in December 2011 or whether (as the Applicant
alleged) he had continued to work there, albeit having handed over
his classes temporarily to someone else "whilst a faulty
microphone was fixed".
The evidence revealed that not only had the applicant verbally
resigned on 31 August but that he had also attended his own leaving
party in September at which he was presented with a DVD. He sought
to dismiss this evidence, saying that he thought that the party was
for two other departing (female) employees who were both given
flowers. Asked what he thought the DVD was for, he replied that he
did not know but did not consider it a farewell gift as he was not
given flowers. When it was suggested that this might be because the
recipients were female, the applicant responded that he himself
would have appreciated flowers.
In his determination to succeed, the applicant also tried to
produce false evidence to show that he had taken classes during the
break in his employment. Not surprisingly, his credibility suffered
badly and his claim failed.
Dubious unfair dismissal claims are nothing new but situations
such as this, which would in most other courts lead to costs
consequences for the loser, beg the question whether it is fair for
employers in such circumstances to bear the financial burden of
defending (and defeating) such claims.
Section 570 (2) (a) and (b) permits an order for costs "if
the court is satisfied that the party instituted the proceedings
vexatiously or without reasonable cause or... that the
party's unreasonable act or omission caused the other party to
incur the costs" (author's emphasis). Although seldom
used, it is worth employers bearing these provisions in mind when
faced with potentially spurious claims.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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