John is from New Zealand and did not have education and could not read and write. However, by experience, he has acquired trade skills to be working as order man and later a factory worker doing the trusses, doors and related products.
In 2016, he came to Australia to work with the factory owned and operated by a big business with branches all over Australia. He works in Victorian Branch and he started as casual and later as probationary for three months. After three months, he became regular with all the benefits accorded to his level of competency.
In the course of his time and right after he became permanent, he was accused of working under the influence of alcohol. But he was not terminated because the employer was not able to prove his culpability. He was returned to work, but he was made as casual for which he was made to sign the papers.
After he was made casual, he started to notice that he was not being paid his overtime rate and time. He could not complain immediately because he was not sure if his thoughts are correct. But observing other workers with whom he works, he noticed that whilst they work together his pay is less than what they received. He kept all his pay slips and time.
He waited for the right time to make the complaint. He claimed that for three weeks he did not get the correct overtime which is about four hours daily excluding 12 hours during Saturdays.
The management accepted the complaint and had an initial meeting to sort out the incorrect payment or non-payment of his overtime. The minutes of the meeting were taken and due to John’s uncomfortable position, he sought the attendance of his lawyer.
The meeting was adjourned for two weeks and prior to the next meeting, John was called to the office by his immediate manager and told him that he doesn’t need to return to work. He was surprised by the action taken by the management. The employer did not provide him any paperwork and did not give him any reasons for his termination. So, he sought advice from his lawyer on what to do.
His lawyer decided to write to the employer about his employment status and question why the company does not have any job for him, and that the meeting should continue to resolve his overtime and other employment concerns.
The employer responded and said that it did not have any available job for John and it is true that he was asked to remove himself from the company premises.
The lawyer lodged the application under section 365 of the Fair Work Act (2009) (‘the Act’).
The issue is about the complaint and inquiry about his overtime which resulted in his dismissal.
This is exactly what the legislation wants to protect. He has workplace right to make a complaint and should not be dismissed from employment should he make an inquiry.
During the conciliation conference, the matter was not resolved and hence a certificate was issued under section 368 of the Act.
Related: The injured worker