Court Rules Frances Was Unfairly Dismissed

• General News
• 15th March 2012

Fair Worker Australia has ordered Ontraq Haulage to pay a former employee, Ms Frances Boon, $7, 304 plus superannuation after it found that she had been unfairly dismissed.

Mr Kevin Otway, General Manager of Ontraq Haulage, represented the company in court and claimed that Ms Boon had not been dismissed but left her employment on her own accord.

He said this was after he confronted her about a customer complaint alleging that Fran had been "rude". He stated "if you can't treat my customers correctly, you should look for another job."

The TWU successfully argued that the verbal exchange between Ms Boon and Mr Otway went beyond Mr Otway giving Ms Boon a choice as to whether she remained in his employment or not. And Mr Otway had in fact used words of "you're finished/get out/you can find another job."

Central to Ms Boon's case was the Employment Separation Certificate given to her by the company upon termination.

The Certificate stated the reason for separation was due to "unsatisfactory performance" and that the "owner terminated employee".

However, Ontraq's director, Ms Kelly Otway, claimed that is was "human error" when she completed the certificate, despite giving evidence that her knowledge about the incident didn't come from her father, Kevin Otway, instead it came from "another person" who worked in the office.

In her evidence, Ms Boon best described the exchange between her and Mr Otway as a "vitriolic outburst" and that Mr Otways demeanour towards her was "very very agitated."

"When [Kevin] confronted me he was just screaming at me; accusations about being rude to clients. [He said] Your'e not paid to be rude to clients and you're finished. You can get out. Go and find another job..."

"It's very hard to speak to Mr Otway when he's in that phase, and when there was a moment I said "I was not rude." That's the only words I could say, "I was not rude" but you have to fit those words in between [Mr Otways verbal tirade]." Frances told the court.

In his evidence Mr Otway described himself as a "disciplinarian" as he has a military and police force background and he did not agree with his employees misbehaviour and treating his customer in that manner that Ms Boon had been accused of.

On the subject of behaviour I must say the contrast between the demeanour in court of Mr Otway and Ms Boon could not have been more extreme.

In preparing for and handling her case, I found Frances to be a softly spoken person who had always been very polite with me and to be quite honest, I found her to be a lovely woman.

In course she delivered her evidence in a very controlled and polite manner.

On the other hand, to me, Mr Otway, in cross examining Frances, came across as very forceful and bordering on intimidating. It was almost like being witness to a police interrogation.

Fair Work Australia is an industrial court which is set up to sensibly sort out disputes between employees and employers.

And in this case they found in favour of the employee. And I firmly believe they made the right decision.