A Melbourne man sacked from his family’s smash repair business after being late for Sunday dinner at his parent’s house has been awarded $10,000 compensation by the Fair Work Commission.
Commissioner Sarah McKinnon ordered Egidio Parente, the owner of Selective Smash Repairs, pay the compensation to his son, Pasquale Parente, after upholding the latter’s unfair dismissal claim and finding his sacking was unjust.
On the Sunday evening of March 10 this year, Pasquale, who was assistant manager of the family business, was late for dinner at his parents’ house.
His parents became angry and there was an argument. Pasquale was told to leave and never come back, either to his parents’ house or to the business. He was dismissed from his employment immediately.
On April 1, Pasquale made an unfair dismissal claim. Neither his parents nor the business responded to the application other than by participation in conciliation which was ultimately unsuccessful.
The business was not represented at the hearing and the parents did not formally respond to the application so the commission found there was no factual dispute to be resolved.
Commissioner McKinnon said the “facts are as they are disclosed by Pasquale” and the only question was whether the dismissal was unfair, and, if so, what should be done about it.
She said Pasquale was made aware of the dismissal on the Sunday night but attempts to communicate with his parents since have gone unanswered.
This has prevented his attempt to dispute the dismissal and obstructed his ability to obtain social security benefits or seek some form of resolution.
“The case is unique to Pasquale and his parents – no issue of fairness between others arises,’’ she said.
She said she was not satisfied that the sacking was consistent with the Small Business Fair Dismissal Code.
“Pasquale was dismissed for arriving late for a family dinner,’’ she said.
“His relationship with his parents had been under strain for approximately one month, but there is insufficient context before me to explain why arriving late for dinner would have been a valid reason for dismissal. I am not satisfied that it was.”
She said Pasquale had an opportunity to respond to his parents “in the heated exchange that occurred on the Sunday evening” but there was no evidence that his work performance was unsatisfactory.
“It is, to my mind, extremely sad that what was once a loving family has allowed relationships to deteriorate to the extent that they have,’’ she said. “However, Pasquale has the right to bring his claim and I must deal with it accordingly. “
“Having considered each of the matters specified in section 387 (of the Fair Work Act), I find that the dismissal was unjust and unfair.”
She said she was not satisfied that reinstatement would be appropriate because Pasquale had another job and there was a “genuine loss of trust and confidence between the parties which is likely to be a difficult hurdle to overcome given the deeply personal relationships involved”.
Had Pasquale not been dismissed, there is no reason he would not have stayed working for the family business for at least a further 6 months.
In that period, he would have earned $1280.00 per week for 26 weeks, or a gross amount of $31,200.
“There is no evidence that the business does not have the capacity to pay any amount of compensation,’’ she said. “Pasquale says the business was doing “okay” although it could have been doing more”
She said earlier attempts made by Pasquale to mitigate his loss focused on accessing Centrelink benefits and seeking employment through the Newstart program. He subsequently reached out to his own network and was able to secure employment on September 2.
She said he could have achieved employment earlier “with appropriate effort”, and cut the compensation by 20 per cent. She also deducted the two weeks’ wages paid in lieu of notice and the income he will get before the compensation order applies in early December.
Awarding him $10,115 compensation, she said: “ I am not satisfied that Pasquale’s conduct in arriving late to dinner on 10 March 2019 can fairly be characterised as work-related conduct.
To minimise the potential risk of cash flow problems for the business, Pasquale’s father will be able to make compensation payments in instalments.