Unfair Dismissal Applicant Awarded $70K in Claim Against Small Business Employer

The Fair Work Commission (FWC) has awarded compensation of $70,000 to an applicant who was employed as a business analyst with a small business employer.

The applicant in the matter, Ms Chen, worked for five years with the respondent employer, TIOBE.  TIOBE sought to rely on poor performance as the reason for the dismissal of Ms Chen but Commissioner Bissett of the FWC found the business owner could not identify any date or detail of discussions he claimed to have had with Ms Chen to discuss her performance.  The Commissioner stated:

“If there are areas of concern with respect to an employee’s work performance the obligation is on the employer to identify the performance concerns, to be clear on the level of performance required, to provide training and support as necessary to the employee and to provide regular feedback on how the employee is progressing as required. Without these steps an employee cannot know what is required of them and whether or not they are progressing as desired by the employer.”

The employer also sought to rely on Ms Chen’s conduct in relation to posts made on the staff messaging system which were critical of the business.  But the Commissioner found the comments were posted by Ms Chen’s husband without Ms Chen’s knowledge.  Ms Chen could therefore not be held responsible for her husband’s actions in this regard.

Commissioner Bissett determined Ms Chen should be awarded $70,000 compensation representing 26 weeks salary, including superannuation.

Cathy (Yaqin) Chen v TIOBE Pty Ltd T/A TIOBE [2018] FWC 4173

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