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Worker’s retainer with law firm hinders Fair Work application
A chicken factory worker fired for allegedly hitting a woman was unable to convince the Fair Work Commission his termination was unfair partly because he had retained a law firm.
Naomi Neilson
A chicken factory worker allegedly caught hitting a woman in the warehouse’s car park said he was unfairly fired.
Dong Khan Pau Guite told the Fair Work Commission he should not have been terminated from Inghams Enterprises in May after a security guard witnessed him allegedly hit his colleague and partner.
That same night, Guite was arrested for the alleged assault and held in police custody overnight. He consulted the firm Doconade Lawyers the next day to assist with the criminal charges.
He conceded an incident occurred but denied hitting the woman and did not accept the behaviour was serious misconduct.
Guite’s Fair Work application was made 23 days outside the 21-day filing deadline, and he failed to convince commissioner Emma Thornton there were exceptional circumstances for the delay.
“In my view, it would be unfair to applicants in a similar position to that of Guite to allow this application to extend time,” Thornton said.
“To do so would be inconsistent with other decided cases of the commission and detract from ensuring fairness through application of similar principles in matters involving similar considerations.”
Guite submitted that his delay was due to his difficulty in speaking English, a lack of understanding of Australian law, and his focus on the practical and psychological impacts of the criminal charges.
He added he was a refugee from Myanmar and had lived in a refugee camp in India before arriving in Australia in December 2010.
Following his termination, Guite said he asked friends and family about what steps he could take to get his job back.
His representative added Thornton should be persuaded because of Guite’s “language and cultural barriers” and his “misunderstanding of the industrial relations law”.
However, his retainer with the law firm weighed against him.
“Instead of promptly contacting his criminal lawyer about his dismissal from employment that resulted from the same situation as his arrest … Guite sought advice from his family and friends.
“His evidence was to the effect that he sought advice from people with their own lack of knowledge of Australian law and challenges communicating in English rather than the lawyer of the law firm whom he had already engaged to act for him,” Thornton said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
