Nicolaou v Architectural Project Specialists [2017] FWC 5224

In the recent case of Nicolaou v Architectural Project Specialists [2017] FWC 5224 (13 October 2017), the Fair Work Commission (the FWC) held that an employee (Jason Nicolaou, the applicant) had been unfairly dismissed  on 19 May 2017 as a result of his  failure to show up on a job site. 

Background

Deputy President Booth found that Architectural Project Specialists (APS, the Respondent) was wrong to summarily dismiss the applicant. APS, the employer, had contacted the worker on voicemail and by text message on 19 May 2017 to inform him the business needed its company car and tools returned as they were “moving on”.

The applicant claimed that in the days 17 and 19 May 2017 he had been struck down and bed-ridden with food poisoning and he further claimed that he had informed his employer by text message that “. . .  I can’t make it in”  see [para 12] of [2017] FWC 5224 . The decision to dismiss the worker was made after he failed to attend work on 17 May 2017, when he failed to inform the business about his absence. APS management, told the court “. . . that he had warned Mr Nicolaou  [the applicant] about his poor attendance ‘a hundred times’.” [see para 38] of [2017] FWC 5224.

Findings of the Commission

Deputy President Booth decided the worker was covered by the Small Business Fair Dismissal Code, as the business had nine employees at the time of dismissal. In considering whether the actions of the applicant warranted a summary dismissal, Deputy President Booth found that, failing to attend work and not being contactable for 24 hours was not serious enough behaviour for automatic dismissal.

Deputy President Booth, in reaching her decision, observed that while APS alleged the applicant's non-attendance had been ". . . a pattern of behaviour over some time, the company was not able to provide evidence of warnings to the employee or instances where his wages were affected by non-attendance".  See para 39 of [2017] FWC 5224 as follows:

In summary there was no valid reason for the dismissal, which was harsh, unjust and unreasonable and therefore unfair; see [para 56] of [2017] FWC 5224 .

It was noted that “… whilst reinstatement is the primary remedy under the [Fair Work] Act, I note [the applicant] does not seek reinstatement and APS argues strongly against reinstatement …”  The Applicant and APS “. . .  wouldn’t have the same respect for each other ” with the APS Management saying “ . . . the builders wouldn’t allow him onsite”. [see para 57]of [2017] FWC 5224.  As  a result reinstatement was not ordered see [at para 60] of [2017] FWC 5224:

Reaction from APS the Employer

In considering the outcome of the judgment, a spokesperson for APS  is reported as saying that the business had done everything it could to support the employee, and was disappointed that despite sending “. . . so many warnings”, the decision to dismiss the worker will lead to the company paying compensation.

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Nicolaou v Architectural Project Specialists [2017] FWC 5224 (13 October 2017)

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