Ousted Coolum Resort employees handsomely compensated by FWC

In early-August 2023, a subsidiary company of Clive Palmer’s Mineralogy group, terminated the employment of 125 workers at the Palmer Coolum Resort in a sudden mass sacking event purportedly initiated due to a “large amount” of “fraud, theft and other matters of dishonesty” across the entire site. The “scattergun approach” resulted in 47 unfair dismissal applications being lodged, four of which proceeded to Hearing, with Commissioner Bernie Riordan determining all matters and awarding sizeable compensation in each instance.

Electrician with carer’s responsibilities awarded $40K

The tradesman, who had been employed since 2021 and had predominantly, though not exclusively, worked on the Palmer Coolum Resort (the Resort) site, attended a toolbox meeting on the morning of 8 August 2023, where legitimate questions were raised regarding the employer’s intention to unilaterally adjust working hours by changing start and finish times and removing paid breaks, effective immediately. Workers on the construction team were instructed to leave the site at the conclusion of the toolbox meeting, by “someone who appeared to be a member of senior management from [the employer]”, which the electrician complied with. He subsequently received an email at 8pm that night which attached his termination letter, which accused him of “refusing to carry out your duties as directed”, and 20 minutes later, received a further email from the company inviting him to re-apply for his job. The employer later attempted to explain that the Resort had sacked the employer as its building company, in favour of another Palmer-owned building company, triggering the ‘job application’ email; a process Commissioner Riordan labelled a “sham”. 

The electrician argued he had never refused to work the amended roster and instead voiced genuine concerns about the implications if he could not “complete it”. His reservations arose from his carer’s responsibilities to his children resulting from a shared custody agreement which had necessitated him working part-time hours every second week over the previous year. The electrician observed that it appeared the employer “had no interest in addressing any of our concerns and thought [it] easier to terminate everybody’s employment.”

Commissioner Riordan rejected the employer’s attempts to argue that the electrician had engaged in time fraud via misuse of the company’s Tanda timesheet app, allegedly by having other employees log in for him on as many as 78 days on which he failed to attend work. The Commissioner instead accepted the electrician’s evidence that the Tanda app was “a flawed system, consistently failing, with…. glitches, poor connectivity” and acknowledged the electrician’s phone records confirmed he had made calls from the Resort (or other Palmer-owned properties) on at least 26 of the days he was alleged to have been absent but claiming payment.

Commissioner Riordan assessed the employer’s investigative process regarding time-keeping irregularities as “incomplete and unsatisfactory” and identified the company failed to afford the electrician procedural fairness, potentially because the employer’s HR specialist was one of the 125 employees dismissed at the same time. Concluding there was no valid reason for the electrician’s dismissal, and that the process was both unjust and harsh – particularly considering the loss of his family-friendly flexible working arrangement and his inability to source a similar employment scenario since termination – Commissioner Riordan awarded the electrician compensation of $39,917.68 (plus superannuation).

Peters v Drewmaster Pty. Ltd. [2024] FWC 282 (2 February 2024)

Four months’ pay for wrongly accused Resort Accountant

The accountant had over a year of service at the Resort when she arrived for work on 3 August 2023, and “learned of a rumour that she had been dismissed and ‘walked off site’ by [the employer]”, causing her to “become distressed” and require a period of personal leave (supported by a medical certificate).

Whilst on leave, the accountant was contacted by colleagues who advised her that Clive Palmer had accused her and her line manager of ‘embezzling millions’ and that he had inferred that her absence from work implied proof of her ‘guilt’. Upon returning to work on 8 August 2023, the accountant notified a colleague that she was unable to login to Tanda, to which the colleague replied, “Oh my god, I’m so sorry. I meant to tell you. Clive said anyone who wasn’t here yesterday was terminated”. It was not until 24 August that the accountant received email advice that her employment had been terminated “without notice on grounds of serious misconduct”, representing the first instance in which the allegations of misconduct were directly put to her.

At Hearing, Commissioner Riordan rejected the employer’s assertion that the accountant had resigned her employment when she took the period of personal leave in the first week of August, or that she had engaged in any level of fraud pertaining to the company’s petty cash system. The Commissioner accepted the accountant’s evidence that the petty cash system was “firmly entrenched” before her arrival and acknowledged it would have been “highly unusual and irregular for a brand new employee to suggest to senior management that they were doing something wrong in relation to the petty cash process, thereby questioning their integrity”, adding such a tactic would have been “career-limiting”.

In reference to an allegation that the accountant had inappropriately accessed petty cash funds to backpay employees, the Commissioner was satisfied that the “timekeeping system clearly didn’t work effectively” observing there would have “always been individual problems with employees’ pay”. The accountant necessarily using petty cash to correct errors in the payroll system was neither because she was “negligent” (in processing payroll), nor was it for “some malicious purpose”, as argued by the employer. Commissioner Riordan further chastised the employer for not taking simple steps to check the accountant’s phone and computer records to ascertain whether she was actually working on the days that the Tanda system had identified her absence, “even at 4am when she would start the pay run when working from home”, as an example.

Finding there was no valid reason for dismissal and that the accountant was denied procedural fairness such that she did not receive a “fair go”, Commissioner Riordan awarded compensation of 16 weeks’ pay, plus superannuation.

Roberts v Drewmaster Pty. Ltd. [2024] FWC 332 (7 February 2024)

Compensation for Head Sparky who engaged in misconduct

The employee was engaged as head electrician at the time of his dismissal, when he was marched off the Resort site on 9 August immediately after arriving, and later that morning sent the same email that had been sent to his construction team members the evening prior (referenced above in ‘Peters’). The head electrician was also forwarded the ‘job application’ email that had circulated to other tradesmen offering re-employment in his role five minutes later.

The electrician noted he was accused of attending the toolbox meeting on 9 August where he supposedly indicated he would not work the amended roster the employer intended to implement, however the employee identified the toolbox meeting had taken place the day prior on 8 August, when he had been absent on carer’s leave, which had been properly recorded in the Tanda payroll program.

The electrician asserted he never refused to work the new hours but pointed out he was not consulted about any changes or provided any explanation as to why the hours had changed. By 25 August, the employer had revised its reasons for dismissal and an email to the employee indicated he had been terminated “on the grounds of serious misconduct”, though the electrician observed the employer’s reasons had changed again by the time the matter progressed to Hearing, with the employer alleging the electrician had not been on site for 64 days (later changed to 103 days) but had still been paid for all of those days.

Commissioner Riordan – a former electrical fitter/mechanic – could not be satisfied that the electrician had behaved improperly in removing any existing electrical installation, given the photographic evidence “showed electrical equipment in a very poor state of disrepair, which was not operable or [was] likely to fail if put back into service”. The employer, “is extremely lucky that a serious injury or death has not occurred on the site”, he added. Furthermore, the Commissioner was unable to find that the electrician had provided preferential treatment to one supplier over others or, that he had claimed payment for days he was not working (reiterating that it was already established the employer’s payroll system did not record attendance accurately).

Unfortunately for the electrician, he conceded under cross-examination that he was running his own electrical contracting company as a secondary business and, on occasions, he was sending quotes and invoices to his customers using his company computer during work time. Whilst Commissioner Riordan identified this secondary employment was not in conflict with his principal role for the Resort, he observed that “running a secondary business using company time and equipment, without the knowledge of the employer”, did not set the ”appropriate ethos for his department”, and gave rise to a valid reason for dismissal.

Notwithstanding the finding the employer had a valid reason for dismissal, Commissioner Riordan expressed that the electrician had “lost a job worth $135,000 per year, by running a side business with a miniscule profit margin which involved a few hours of work per week”. The Commissioner observed, “based on the fact that the [electrician] was denied any semblance of procedural fairness and that the level of misconduct was minor compared to the consequence of his termination… I find that the termination of the Applicant was harsh”.

Concluding the electrician was unfairly dismissed, Commissioner Riordan determined compensation was appropriate, awarding $12,516 (gross) plus superannuation, after applying a 40% reduction “based on the misconduct of the [electrician] in conducting his own business during his normal working hours for the [employer]”.

Fitzpatrick v Drewmaster Pty. Ltd. [2024] FWC 351 (8 February 2024)

$33K for Plumber who participated in “condoned and encouraged” misconduct

The Principal Plumbing Contractor was summarily dismissed on 4 August 2023 but was not notified of the reasons for his dismissal because he was never furnished with a letter of termination (the employer’s HR specialist having been dismissed several days after him). The plumber deduced from the employer’s submissions to the Commission that, among other accusations, he was alleged to have directed or allowed destruction of the employer’s property and been “dishonest and deceitful” in respect of his purchasing practices.

On the employer’s evidence, the plumber had flouted the designated Purchase Approval Form (PAF) system for ordering materials on “approximately 26 occasions” over a 12-month period which resulted in the same suppliers being favoured and the employer regularly being invoiced tens of thousands of dollars for unspecified materials.

The plumber acknowledged he had “gamed” the system by using the same quotes (first obtained in March 2022) on multiple PAF’s over an extended period, even when those quotes were out of time and therefore not applicable. He further conceded that, on occasions, materials that were ordered were not contained in the PAF. Commissioner Riordan was subsequently satisfied that the plumber had been an “active participant in not complying” with the employer’s PAF system, which “resulted in the senior management of the [employer] being deceived”, constituted a “dishonest act” and provided a valid reason for dismissal.

Notwithstanding the existence of a valid reason, Commissioner Riordan accepted the plumber’s unchallenged evidence that the employer’s General Manager had sanctioned his purchasing practices and that all of his “approved PAF’s were signed off by the relevant managers, including Mr Palmer”. Furthermore, Commissioner Riordan noted that:

“There is absolutely no suggestion that the [plumber] has used the materials that he ordered for any installation outside of the Resort. There is no suggestion that the [plumber] has gained any financial or material benefit from any of the suppliers from his conduct.”

As to the allegation that the plumber had authorised destruction of the employer’s property, the Commissioner observed the employer’s view in this regard “lacks logic and commonsense” adding that, “just a few enquiries, before the [plumber] was terminated” would have established he was “not responsible for the decision in relation to the alleged destruction of property”.

Commissioner Riordan assessed that the plumber’s conduct in relation to non-compliance with the PAF system was not serious misconduct because the General Manager “condoned and encouraged” it, which marked termination as “disproportionate”. Acknowledging that the plumber was also denied any level of procedural fairness prior to termination, Commissioner Riordan ruled the dismissal to be harsh, unjust and unreasonable and awarded $33,288 (gross) plus superannuation in compensation.

Veale v Drewmaster Pty Ltd [2024] FWC 400 (14 February 2024)