FWC judges electrical company winner in unfair dismissal

The Fair Work Commission has found in favour of an employer in an unfair dismissal case, declaring the company was entitled to protect its business.

Melbourne-based Brandon Electrical was found to have acted appropriately in the dismissal of an electrical apprentice, who performed additional work for a client of the company without permission.

The FWC decided that by working on an independent basis for a client of Brandon Electrical, the apprentice was in direct competition with his employer for the work.

Apprentice Timothy Monteith lodged the case in February under the Fair Work Act 2009 declaring that he was unfairly dismissed by Brandon Electrical in January.

Monteith gave evidence to the FWC that he was unaware extra work was not allowed. He said directors Darren Carter and Drew O’Donoghue said his employment was terminated because he performed unauthorised work for the client, but he disputed this was the real reason behind his dismissal.

After hearing evidence from both sides, the FWC found the termination was “not harsh unjust or unreasonable”. The FWC found the reason stated for the termination was valid.

The apprenticeship was just two weeks short of completion, and full entitlements were paid.

When contacted by SmartCompany this morning, O’Donoghue declined to comment on the case.

Employment lawyer Peter Vitale told SmartCompany this type of “conflict of interest” case is more common in white collar industries. He says the trade industries have a history of accepting their staff do work on the side for friends or family, but working for a client of their employer is not accepted.

Vitale advises employers to make it very clear to staff in their contracts or letter of employment the conditions surrounding additional work, so there is no confusion.

“Make it clear they have to devote their time and energy only to the employer, and not to perform additional work without the principal employer’s permission,” he says.

The FWC has released a video demonstration of a mock unfair dismissal hearing, which shows the full procedure of a case and the role each participant is required to play.