No-Show Employer Found to Have Unfairly Dismissed Employee

Giuseppe Trigilia (the Applicant) has been awarded $6,486.72 after the Fair Work Commission found that he was unfairly dismissed.

What happened

The dismissal related to three alleged incidents of aggressive behaviour and misconduct. Di Carlo Civil Construction (the Respondent) issued their first written warning on 26 October 2016. It stated:

“At a previous meeting you were advised that your conduct towards Robert Di Carlo…was unacceptable…This is your first warning letter. Your employment will be terminated if your conduct does not improve in future”.

A second warning letter was issued on 8 March 2018. Once again it referenced alleged inappropriate verbal conduct towards managerial staff. In a subsequent ‘toolbox meeting’ in November that year the Respondent alleged the Applicant had made verbal threats. A termination letter was issued on 27 November. The Respondent had alleged that owing to the seriousness of the alleged threats a summary dismissal (dismissal without notice) was necessary.

However, the Respondent did not file written submissions in accordance with the Commission’s directions. Moreover, despite a number of attempts to contact the business no party for the Respondent was present at the subsequent telephone mention. Even when the matter was brought before the Commission for hearing no party for the Respondent was present or even contactable.

What the FWC found

At hearing, Deputy President Clancy considered the facts of the case and their supporting evidence. According to the Deputy President’s consideration the Applicant was not given an opportunity to respond to allegations and the dismissal procedure was not consistent with the Small Business Fair Dismissal Code. Moreover, DP Clancy believed the Applicant’s evidence over the Respondent, stating:

“I am not satisfied the conduct alleged by DCCC occurred. Mr Trigilia’s account was convincing and unchallenged. I am not persuaded there was a valid reason for the dismissal related to Mr Trigilia’s conduct.”

Trigilia v Di Carlo Civil Construction Pty Ltd atf Di Carlo Drainage Trust

We can help

Need help with dismissing an employee or responding to an unfair dismissal claim? Give us a ring. Our experienced consultants are experts in industrial and employment disputes.