This story beggars belief, and it might be one of the most appalling you hear all year.
In May last year a Brisbane electrician attempted to force an apprentice to provide information about an ex-employee. Instead the apprentice refused, filed for unfair dismissal, and ended up walking away with $11,400 in compensation.
‘JL’ was hired as an apprentice for Smerff Electrical, a company owned and operated by self-identified ‘Nazi sparky’ Mr Hickey (his website has Pepe the Frog on its banner, and his business was a corporate sponsor of the US-based nationalist and anti-semitic website The Daily Stormer).
Hickey had grown suspicious of a different former employee’s cash jobs and use of company funded petrol cards and so decided to do some investigating but required information from JL regarding the whereabouts of the former employee’s work site. As outlined by the Fair Work Commission’s decision, Hickey eventually offered JL an ultimatum via text, “Your choice today bro. Info or job by 4pm.”
JL refused to share the information with Hickey. The company later tried to claim that JL committed serious misconduct, refused to carry out a reasonable instruction, and had voluntarily left his job (he left his keys in the company vehicle), but the FWC member disagreed.
In the decision, Deputy President Asbury writes, “I am satisfied that JL’s employment was terminated on the initiative of the Mr Hickey, the owner of Smerff. No employee should ever be subjected to the threats and abuse meted out by Mr Hickey.” It’s an interesting point, as she’s effectively saying that the abusive nature of Hickey’s correspondence (by email and text) itself was evidence of a dismissal. “It is inconceivable that an employee who received such messages from an employer could have any view other than that the employment relationship had ended at the initiative of the employer.”
Later, she remarks, “I have not previously encountered a small business owner with such a deplorable attitude to human resource management.”
A fine line?
Some worksites have a culture that encourages banter which stretches the boundaries of good taste. But whatever your particular ‘line’ is when it comes to workplace appropriateness, Hickey was way beyond it. And not just at the end.
A disputed employment contract between Hickey and JL includes the colourful stipulation, “You will be paid Weekly at the rate of $15 per hour. If you are unhappy with your wage, you can f**k off. Nobody is forcing you to work here.”
The full exchange regarding the ex-employee can be read in the report, but just to give you an idea of how Hickey communicated, here are a few of the more gross phrases.
- “That motherf**ker was stealing for months.”
- “I had a f**kload on this summer so some details slipped through”
- “It was that c**t with the f*g son I reckon.”
Other times his communication was bizarre, such as when he quoted white supremacist David Lane. “To make a race horse pull as much as a plow horse you can only cripple the plow horse…either way the pursuit of equality is the destruction of excellence.”
So where is the line between colourful language, and language that hurts you in an unfair dismissal case?
“My view is that colourful language should be avoided at all times in the workplace but where it particularly escalates in terms of tenor and use may be grounds for disciplinary action,” says Aaron Goonrey, partner at Lander and Rogers.
Hickey didn’t just deploy foul language in his attempt to persuade JL to provide information, he offered monetary inducements and other benefits. “You can have second year wages and super if you want…That’s if you wanna [sic] tell me all you know about [former employee]”.
The whole situation is strange – bribing an employee in this manner is anything but typical. So what does the law say about it?
“In terms of the bribing, I can’t reconcile that with the right of the employer to make a lawful and reasonable request of an employee,” says Goonrey.
“You have certain personalities who are not aware, or do not care about, the nature of employment law and the relationship is governed by laws that allow people such as JL to make claims when they’ve been treated poorly.”
Does an employee have a duty to fulfil a request like this? After all, it was regarding a job where the ex-employee used Hickey’s equipment.
The short answer is that it depends.
In this case, Goonrey suggests that if relaying information about the former employee’s whereabouts were to incriminate JL in any way, then Hickey’s request for information wouldn’t be reasonable.
Certainly refusing to share the details of the cash job with Mr Hickey wasn’t enough to dismiss JL, says Goonrey.
“There are a few aspects to this case; the way and manner which Hickey asked questions and administered them, and what the Commission was looking at was the procedural and substantive fairness that was afforded to JL in relation to this manner.”
Despite of all his behaviour, Hickey did not at any point seem afraid of landing on the wrong side of the Fair Work Commission.
“Here’s the number for fair work Australia…Do you know what these c***s do about it? Nothing unless it’s a company worth prosecuting.”
Not for the first time in his life, the Nazi sparky was quite wrong.
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