A former employee was ruled to have been unfairly dismissed after he claimed he was sacked for requesting annual leave.
Fair Work Commission judged that Red Telecom Pty Ltd was not justified in firing salesperson Mark Peters on April 24 this year.
The commission heard Peters requested by email to take four weeks of annual leave from May 13. Company director Nicholas Kontaxis declined the request, saying "We are way too busy".
When 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?”
Peters claimed he was then terminated after having a phone conversation with Kontaxis:
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.
In response, Red Telecom cited that Peters' dismissal was due to underperformance and misconduct, not the leave request.
The Commission heard from Peters that management raised no concerns about his work or misconduct before the dismissal.
FWC deputy president Lyndall Dean sided with the former employee.
"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," she said.
"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 as remediation.
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