A cleaner who was sacked after taking a stray kitten from a cleaning job was unfairly dismissed, Fair Work Australia has found.
Judith Montague was working as a cleaner for Chadvic Cleaning Services when she was sacked by the owner Chaminda Fernando after she took the kitten, which Melbourne City Council officers had been trying to rescue from a drain.
There was a group of about 30 stray cats living at the site owned by the YMCA and Montague took the kitten home and gave it to a friend.
When Fernando found out about the kitten, he rang Montague and told her the YMCA were very unhappy and would ban her from their sites, and that they wanted the kitten returned.
Montague’s friend would not give the kitten back and so Fernando sacked Montague.
Fair Work Australia Commissioner John Lewin said yesterday that while Fernando had valid reason to dismiss Montague, he had failed to follow aspects of the Small Business Fair Dismissal Code and ordered Chadvic to pay $3,940 to her.
Fernando claimed that during Montague’s employment she was given several verbal and two written warnings, with the second warning in January this year clearly labelled “final warning”.
Following the hearing, Fernando told SmartCompany the dispute was the first time he had been to court.
“We paid her the costs that we ask her to pay and that was it, we had to do it to save our jobs,” he said.”
Fernando would not say why he was focused on the ownership of one kitten when there were 30 stray kittens living at the site.
“We did it for the health and safety of the kitten and to make sure there was no harm done,” he said.
Grace Collier, owner of Australian Dismissal Services, represented Chadvic at the hearing and told SmartCompany the YMCA had a feral cat population and had an agreement with the local council requiring it to manage that population and have the kittens vaccinated and desexed until they can be homed.
“The issue is that the kitten was the property of the YMCA and the YMCA demanded that its property be returned,” she says.
“The commissioner found there was a valid reason for dismissal because it is theft.
“But the way [Fernando] did the sacking was not technically legally perfect, in hindsight the whole problem with this case and this system is that it is very easy for an industrial specialist to come along and find fault with the process.”
Collier says the Fair Work Australia conciliation process is problematic because of a focus on settlement.
“The issue is that the conciliators are not required to give an idea of the merits of the case at the conciliation case,” she says.
“It is a very flawed system but it is the only system we have.”
She says the cost of a court hearing averages $10,000 a day and in this case $8,000 in “go away” money was requested.
“The system is a game of bluff and my client elected to go to trial, but lost,” Collier says.
Cara Waters is the editor of SmartCompany. Cara was previously a senior reporter at the Financial Times website FT Adviser in London and has also worked for The Sunday Times.
