An east coast landscaping business and two of its employees have been fined for threatening to sack a worker who asked for a car allowance owed to him.
After a legal battle which has lasted more than two years, the Federal Circuit Court in Brisbane has ordered Tuscan Landscape Company to pay $9000 for applying coercion to the worker and breaching the Fair Work Act by telling him he “should not expect a good outcome” and “may be fired for causing trouble”.
Tuscan Landscape Company, which supplies landscaping products in Victoria, NSW and Queensland, was also ordered to pay the worker $3381 in compensation for the employee’s non-economic loss, including stress, anxiety, hurt, humiliation and inconvenience, while two regional managers were each fined around $550 for their part in the incident.
The employee lodged a complaint with the Fair Work Ombudsman after he was not paid an allowance for using his own car to drive to and from work, despite being entitled to an allowance of 74 cents per kilometre.
The worker raised the issue with his supervisors on more than one occasion and after lodging a complaint with the ombudsman was told if he “kicked up a fuss the big bosses probably would not be happy and would say just sack the guy”.
While Tuscan Landscape Company and the employee eventually agreed to settle the dispute, and the amount of the car allowance was repaid after the ombudsman opened its investigation, he was told during the negotiations that if he was not satisfied, he and the company should “go their separate ways”.
Throughout the negotiations, Tuscan Landscape Company also stopped offering casual work to the worker, who was told his hours would return to normal once the claim was resolved.
Employment lawyer Peter Vitale told SmartCompany “it seems the court is sending a pretty clear message that you can’t try to intimidate an employee from claiming their entitlements”.
“If you explore the cases historically, you’ll find instances of similar behaviour. But it’s never been acceptable and it’s not acceptable now,” he says.
Vitale says the size of the underpayment to the employee is just one of the factors taken into account in these cases.
“The interesting aspect of this case seems to be the awarding of compensation for stress, anxiety, hurt and humiliation,” says Vitale. “This would be relatively unusual in this type of case.”
Vitale says the legislation governing both unfair dismissal and fair work cases involving bullying prohibit awarding compensation for non-economic loss, but in this case there has been a separate order to compensate the employee for this type of loss.
“I think we’re likely to see more adverse action claims for that type of loss and I would expect that the Fair Work Ombudsman might, depending on the circumstances, include a claim like that more often,” says Vitale.
SmartCompany attempted to contact Tuscan Landscape Designs but did not receive a response prior to publication.
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Eloise is an experienced business journalist and editor, who has held senior editorial roles at SmartCompany since 2014. Prior to joining SmartCompany, Eloise was news editor at Books+Publishing, the trade press for the Australian book industry. Eloise has degrees in media and communications, marketing and business management, and political science. You can follow her on LinkedIn, and Twitter at @ellykeating.
