Court orders employer to pay maximum fine after abuse and threats to sacked worker

A court has ordered a Penrith-based transport operator to pay a near-maximum penalty after it heard he sacked a driver for taking carer’s leave and then “abused and threatened to harm” him.

Matthew Atkins, who trades as M.L.A. Transport, was hit with fines totalling $20,000 – close to the maximum penalty for an individual in an unlawful adverse action claim.

Judge Rolf Driver ordered Atkins pay $10,000 to the driver Michael Vella for non-economic loss, and a further $10,000 in punitive damages to the Transport Workers Union, which brought the case on Vella’s behalf.

The Federal Circuit Court heard that on August 6, 2013, Vella had told Atkins he had to take his daughter to a medical appointment on August 9 and would not be able to come into work on that particular day.

The court heard Atkins denied Vella’s request for leave and informed Vella he expected him to work.

The night before his shift, Atkins sent Vella a text message outlining his work for the next day.

Vella informed Atkins he would not be attending work due to his carer’s responsibilities. Atkins then told Vella if he did not attend work, his employment would be terminated.

Judge Driver said Atkins had initially refused to participate in the case, having previously ordered him to pay Vella $7770 for outstanding wages in February. Vella told the court Atkins had not yet paid that sum.

Vella also told the court Atkins had continued to abuse and threaten him and his family after the dismissal and did “burnouts” outside his house.

Atkins admitted threatening Vella and apologised for it, but denied doing “burnouts” outside Vella’s residence.

“The conduct was blatant and disgraceful,” Driver found.

“I have decided to award compensation to Mr Vella for his pain, suffering, hurt, distress and humiliation in the sum of $10,000.”

SmartCompany spoke to Atkins, who says he will be appealing the decision.

M+K Lawyers partner Andrew Douglas told SmartCompany the penalty was at the top end of the range.

“It’s a big fine,” said Douglas.

Douglas says in an adverse action claim, there is a reverse onus on an employer to show the action taken to terminate the employee is not against their workplace rights – in this case, Vella’s carer’s leave.

“There are a whole lot of lessons from this case,” says Douglas.

“The apparent bad behaviours that followed can never really be explained, but businesses must be aware of workplace rights.”

Douglas says employers are often driven by operational needs of their business and unaware a worker’s responsibility to their family actually gives rise to a workplace right.

“For a lot of people this is a relatively new idea… and it’s not communicated well,” he says.

Wayne Forno, TWU NSW State Secretary, told SmartCompany the courts had tuaght MLA Transport a very expensive lesson.

“The TWU has a zero tolerance approach to employers who try to bully, harass or rip off their workers,” says Forno.

“This case is a classic example of a bully employer abusing his power. What he did was in direct contravention of the Fair Work Act, even before you include the abuse and stress caused to Michael and his family.”