Real Estate Employer Dismissed Worker ‘Dishonestly’: FWC

A Real Estate Agency that failed to turn up to an unfair dismissal hearing has been found by the Fair Work Commission (FWC) to have unfairly dismissed its Property Manager.

The FWC hearing was due to proceed in Bathurst on 11 April when the employer failed to appear.  The FWC managed to contact the employer by phone and warned him the hearing might start without him if he did not attend.  He replied, ‘Do what you have to do, I’m not coming’.  The hearing did proceed, and the FWC ultimately found in favour of the worker.

What happened

The worker, Ms Walker, was employed by the Agency as a Property Manager in November 2016.  She gave evidence that at no point during her employment was she ever given a formal warning regarding her conduct or performance.  The Agency alleged in documents filed with the FWC that Ms Walker had failed to attend to her tasks, had been the subject of complaints and engaged in unethical conduct.  It filed a letter to Ms Walker dated 4 March 2018 which complained of lost clients and warned that without a big improvement, changes would be made.  Ms Walker said she had never seen the letter until it was filed in the FWC proceedings. 

In about November or early December 2018, Ms Walker was advised by the employer that the Agency would be closing down for a five-week period between 21 December and 4 February 2019.  Ms Walker travelled to Queensland to visit friends.  On 28 December Ms Walker received an email from the Agency’s accountant entitled, ‘Edwin Fenwick realty – final pay 27th Dec’.  The email referred to Ms Walker’s ‘final termination pay’ and payments to be made to her in this regard. 

Ms Walker returned from Queensland on about 7 January 2018 and around two days later, she noticed the Agency’s office was open despite being informed it would be closed until February.  Ms Walker went into the office to find out what was going on and was handed a proposed contract under which she would work under an ABN for a set fee each week with no tax, superannuation or holiday pay.  Ms Walker was ‘gobsmacked’ and left the office without responding.

A number of events occurred in the ensuing week which culminated in Ms Walker being sent a letter from the Agency telling her, among other things, that there would be no more work for her due to, ‘lack of funds loosing property management gaining none in two years [sic]’.  Ms Walker went to the Agency the same day and collected her personal belongings.  She filed her unfair dismissal claim that afternoon.

What the FWC found

Vice President Hatcher of the FWC found the actual reason for dismissal was ‘completely illegitimate’.  He found the Agency had sought to unilaterally convert Ms Walker’s employment to one of an independent contractor.  The Vice President said this was simply an attempt by the business to avoid its obligations as an employer. He criticised the business for effecting the dismissal in a ‘fundamentally dishonest manner’ by failing to consult with Ms Walker about what it intended to do or give her any advance notice. 

The Vice President went on to say that Mr Smith of the Agency tried to obscure the fact that Ms Walker’s employment was being terminated at all, pretending not to know about the termination email sent by the accountant, and requiring Ms Walker to sign a new contract to establish her as an independent contractor:

At no stage did Mr Smith frankly explain to Ms Walker what he was doing, and the dishonesty continued into the proceedings before the Commission with the respondent’s contumacious denial that any dismissal had occurred at all.

Ms Walker was awarded eight weeks’ pay for her unfair dismissal.

Walker v Kunchaya Klindokput t/as Fenwick Realty [2019] FWC 131

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