Friday, 04 July 2014 3:41pm
The Fair Work Commission has slammed a major employer for sacking a worker for "serious misconduct" that occurred after he was diagnosed with "acute stress reaction".
The engineer, employed by John Holland Pty Ltd's former Tullamarine Airport aircraft maintenance division in Victoria, was dismissed in December last year for refusing to change rosters and making "alarming, incorrect and threatening statements" in public about John Holland and its managers.
His alleged misconduct included sending an email to John Holland Group managing director Glenn Palin that accused the aircraft maintenance managers of being incompetent and "trying to kill me and my family".
The worker claimed he was unfairly dismissed, and FW Commissioner John Ryan found the employer's actions were "towards the major end" of the "scale of unfairness".
He found the worker had been suffering from mental health problems since January 2013, missed more than six months of work in 2013 due to his condition, and provided medical certificates showing he was being treated by a psychiatrist and a psychologist.
"It is neither sound nor defensible to rely upon the conduct of an employee with an obvious mental health problem in drawing a conclusion that the conduct of the employee amounts to serious misconduct," Commissioner Ryan said.
"The conclusion drawn by the [employer] that the conduct of the [worker] in sending the email [to Palin] constituted serious misconduct is simply not well founded."
The Commissioner noted that the worker's treating doctor had recommended that he remain on his original roster, rather than move to a new roster and role that he had no practical experience in.
Further, he found the employer failed to pay sufficient regard to the combination of the worker's mental health issues and his "somewhat poor English language skills".
Commissioner Ryan upheld the worker's claim, but said he was unable to order his reinstatement because John Holland's Tullamarine operations had closed.
He said he would order compensation based on submissions on the wages and redundancy payments made to other engineers when the operations closed.