A factory worker who was sacked, then reinstated for calling his female boss a “backstabbing c**t” has won an $10,000 payout after a second hearing in the Fair Work Commission.
Minas Trialonas filed an application for unfair dismissal after being sacked by Steric Solutions in December 2016. In September last year, the Fair Work Commission found in his favour and ordered compensation of $25,766.
The employer lodged a successful appeal, and the decision was overturned by the full bench of the Commission.
The case was sent back for redetermination by deputy president Peter Sams, who on Thursday once again found in Mr Trialonas’ favour.
“Putting aside that the language was so grossly vulgar to have been inappropriate in any circumstances, the fact it was directed to a woman — and the applicant’s manager no less — is utterly inexplicable and unacceptable,” Mr Sams said.
“In other circumstances, it would be sufficient grounds for summary dismissal. But that was not to be and the applicant’s employment continued for a further three days, until he was dismissed for an entirely different and invalid reason on December 9, 2016.”
According to Mr Trialonas, on December 6 he approached his boss, Leanne Docherty, about machinery obstructing the pathway where he worked in the factory.
After Ms Docherty said it was “not a big deal”, Mr Trialonas reminded her he had vision problems and had previously injured himself stumbling over machinery.
An argument ensued in which Ms Docherty told him to “pull his head out of his f***ing arse” and he responded by calling her a “back-stabbing c**t”.
She then directed him to go home.
He sent her a text message apologising the next day, With the message not replied to, he called her where they chatted “for a short while”. Ms Docherty then invited Mr Trialonas to her home so they could talk.
Mr Trialonas returned to work the next day, only to be sacked again by Ms Docherty, at the direction of her uncle and business owner James Docherty, a day later on December 9.
When asked why, she told him it was because “you do not listen”.
In her submission, Ms Docherty said Mr Trialonas was sacked for his foul language, “consistently calling me a ‘b**ch’, ‘c**k sucker’ and numerous times telling me to ‘go f**k myself’,” as well as for “intimidating behaviour” and “serious safety breaches”.
“He called me a ‘back stabbing c**t’ and was instantly dismissed,” she said. “I allowed Minas to return to work on a trial basis as I felt sorry for him, I then realised I had made a mistake, his behaviour, bad attitude and safety breaches continued. I realised I could no longer continue a working relationship with him.”
Mr Sams said the uncontested evidence pointed to the Mr Trialonas and Ms Docherty having resolved their disagreement, and he apologised for his foul language.
“He returned to work next day and they both interacted as normal. In other words, there was no dismissal, and certainly no dismissal based on the applicant’s conduct on December 6, 2016,” he said.
“This incident was not the reason for the applicant’s dismissal — in fact, Ms Docherty appeared to have accepted his apology. However … Ms Docherty now seems to have had a ‘change of heart’.”
Mr Sams said there was “complete disconnect between what Mr Docherty claimed to be the reason for the dismissal and what the applicant was told”, describing it as an “extraordinary and hopeless denial of procedural fairness”.
He said the reasons given for the dismissal were “not only ‘capricious’ and ‘fanciful’, but were contradictory”, and Steric Solutions had “not provided any evidence or details” of the allegations of safety breaches.
“I am led to a conclusion that these issues were ‘cobbled together’ after the event,” Mr Sams said, finding that the dismissal was harsh, unjust and unreasonable.
“Reinstatement of Mr Trialonas is inappropriate,” he said. “I determine the alternative remedy of an order of compensation for Mr Trialonas’s unfair dismissal of $10,695.20. I consider this amount reflects the statutory object of ensuring a ‘fair go all round’.”
Original Decision: FWC 5068
Full Bench Appeal:  FWCFB 479
Redetermined Decision:  FWC 3996