A cleaner who was sacked after taking a kitten from a cleaning job – and giving it to a friend who refused to return it – was unfairly dismissed, Fair Work Australia has found.
Judith Montague was working as a cleaner for Chadvic Cleaning Services at the YMCA’s student accommodation in Carlton, and had received two written warnings for unrelated conduct matters before being fired by owner Chaminda Fernando on February 21 this year.
Fair Work Australia Commissioner John Lewin yesterday said that while Mr Fernando had valid reason to take action over Ms Montague’s conduct, he had failed to follow aspects of the Small Business Fair Dismissal Code and ordered the cleaning company owner to pay $3940 to her.
The dismissal was ‘‘harsh, unjust and unreasonable’’ and a warning should have been given on that matter first, Mr Lewin said.
The dismissal came after Ms Montague found a kitten, which Melbourne City Council officers had been trying to rescue from a drain. Ms Montague, who has four cats of her own, had spoken of the situation in passing to a friend, who had offered to adopt the kitten if it escaped the drain.
Fair Work Australia yesterday heard there was a group of about 30 stray cats living at the site, which residents and the council kept an eye on. Staff of the cleaning company had been verbally warned not to pat or feed the cats.
However Ms Montague said she understood from council welfare officers that she or her friend could keep the kitten if it escaped the drain. Mr Fernando argued that the council first wanted to check the health of the kitten before it could be rehoused and that no official authorisation had been given.
Ms Montague said she at first thought nothing of handing the kitten to her friend, until a workmate suggested she call her boss to let him know.
‘‘I did say to Chaminda that I’ve given it to my girlfriend but I’d give her a phone call and see if she’d return it,’’ she said.
Ms Montague said at first Mr Fernando ‘‘laughed about it so I didn’t see I had done anything wrong’’.He denied this. ‘‘I did not laugh. It wasn’t a laughing matter for me. It was really serious,’’ he said.
Several phone calls later Mr Fernando rang his employee, saying the YMCA were very unhappy and would ban her from their sites, and that they wanted the kitten returned.
‘‘I asked him how much trouble I was in, he said a lot of trouble,’’ she said.
‘‘I called my girlfriend. I asked her would she give the kitten back, she said no she wouldn’t. She said under no circumstances would she give it back.’’
Worried about her job, Ms Montague rang Mr Fernando and asked if she was being terminated.
He admitted it was a heated moment. ‘‘I was a bit upset and then Judith asked me if she was being fired and I said ‘yes’.’’
Fair Work Australia heard he offered Ms Montague two weeks’ pay in lieu of notice, but later agreed without argument to five. Ms Montague said she had barely worked since and her prospects of regular income were precarious.
Mr Fernando’s barrister, Gerard McKeown, said his client’s business made very little profit after paying its staff and ran ‘‘on the smell of an oily rag’’.
Mr McKeown said his client had tried to help Ms Montague by offering generous entitlements after dismissing her and suggesting she write on her termination later that she resigned, rather than she was fired.
‘‘You have a situation where the employer was not being hard-nosed, he was trying to assist the applicant,’’ Mr McKeown said.
”We’re talking about a series of events. It’s not as if Mr Fernando’s walked in and snapped his fingers and said ‘you’re out of here’.”
Mr Fernando, who started as a cleaner himself, admitted he was initially naive when it came to some aspects of running a small business.
‘‘For me to run as a professional business I probably didn’t have much time to work out warning systems and stuff like that and it was at a time when I was trying to start up the business,’’ he said.
Fair Work Australia heard Ms Montague received one written warning for asking a YMCA to carry out photocopying for her, and another for taking too many days off work and letting her employer know too late.
But Ms Montague said she had provided doctor’s certificates for her sick days. She had been unable to attend work on some days because her employer paid her late and she didn’t have the money to pay for public transport to get to work.
When asked why there was no paper trail of complaints – excluding the two warnings – Mr Fernando told Fair Work Australia: ‘‘It was my mistake sir, I didn’t think about it. I thought everyone would listen and it [any problems] would just go away.’’
Commissioner Lewin said an absence of a human relations department at the small cleaning business – which had 11 staff at the time – had had a negative impact in the case. In deciding costs, he said he was not satisfied, due to previous written complaints, that Ms Montague would have gone on to long-term employment with the company.
Ms Montague told Fair Work Australia that it was the first time she had ever been fired. Mr Fernando declined to comment after the ruling.
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