A distracted work sacked for using his mobile wins $7k
A martial arts instructor who was sacked after his boss caught him on CCTV using his mobile phone during class has been awarded nearly $7000 compensation.
The case raised "new and novel issues" around workplace surveillance, according to the Fair Work Commission, which noted that it is "not bound by the strict rules" of the Evidence Act and may consider any material in deciding a case - even if it has been "obtained illegally".
Saar Markovitch worked at the Krav Maga Defence Institute, which has gyms in Surry Hills, Bondi Junction and Caringbah, for nearly three years and was manager of the Bondi gym from February 2017 until May 2018.
The business is owned by his friend Ron Engleman. Both men served in the Israeli army together and Mr Engleman sponsored Mr Markovitch to come to Australia on a 457 visa to teach the popular self-defence discipline.
In May last year, Mr Engleman was using his mobile phone to access CCTV footage from cameras that had recently been installed in the Bondi gym when he noticed Mr Markovitch using his phone when he should have been supervising students.
When he went back through earlier footage, he observed Mr Markovitch spending a substantial amount of his working time sitting at the reception desk using his phone, which he felt posed a serious safety risk to clients and warranted summary dismissal.
Mr Markovitch lodged an unfair dismissal claim in June last year. Fair Work Commissioner Bernie Riordan found in his favour, refusing to allow the CCTV footage as evidence as it had been illegally obtained.
Under the NSW Workplace Surveillance Act, employees must be given written notice 14 days prior to any surveillance commencing, any cameras must be clearly visible and there must be signs notifying employees that they may be under surveillance.
"When attending for work, every employee has a right and expectation that their employer will abide by the law," Mr Riordan said in the October 18 decision.
He added that the alleged breach of safety was "not of sufficient magnitude to warrant a determination to override the provisions of the Workplace Surveillance Act".
"The respondent's decision to terminate the applicant was based on evidence obtained from the CCTV recordings of the gym," he said.
"These recordings were not conducted in accordance with the NSW Workplace Surveillance Act 2005. This means that the recordings were obtained illegally. As a result, the respondent has no evidence to infer that a serious safety incident has occurred. Therefore, the provisions of the Small Business Code have not been met."
That decision was quashed on appeal by the Full Bench of the Fair Work Commission, which said it was "arguable" Mr Riordan did not properly address the question, as required under the law, of whether Mr Engleman "had a belief on reasonable grounds that the respondent's conduct was sufficiently serious to justify immediate dismissal".
"Rather, it appears the Commissioner considered and answered a different question - namely, whether the CCTV footage had been obtained illegally under the Workplace Surveillance Act," they said in a January 17 ruling.
Granting permission to appeal, they noted that the Fair Work Act empowers the Commission to "inform itself in any manner (it) considers appropriate" and that "there is no limitation or restriction on that inquiry, including presumably, by permitting the Commission to accept evidence that may, or may not, have been obtained illegally".
"Accordingly, we consider that an arguable case has been established that the Commissioner's finding that the inadmissibility of the CCTV footage, because it was said to have been illegally obtained, was an error," they said.
"We consider this case raises new and novel issues in the Commission's unfair dismissal jurisdiction, for which Full Bench guidance may be necessary."
The appeal was upheld on June 19, with the case then sent back for re-hearing. On Tuesday, Fair Work Commissioner Ian Cambridge ruled that "although there was valid reason", Mr Markovitch's summary dismissal as opposed to dismissal with notice was "unnecessarily harsh".
"The applicant made further submissions which sought to re-agitate the alleged illegality of the use of the CCTV footage from the Bondi gym," Mr Cambridge said in his decision.
"The submissions made by the applicant acknowledged that his conduct, as was established by the CCTV footage, was something that he was ashamed of. However, according to the applicant, the employer consistently broke the law in the way in which that conduct was identified and subsequently used by Mr Engleman."
He found that text messages from Mr Engleman encouraging Mr Markovitch to continue coaching in the gym for a further two weeks until he returned to Israel "clearly demonstrated that he did not genuinely believe that the applicant's conduct was sufficiently serious to justify immediate dismissal".
In a series of texts on May 21, Mr Engleman wrote, "We continue forward, stay busy. Dedicate yourself to leave a good legacy here. Focus on the positive. Soon you will be in Israel with the family. There you can take care of your wounds. Now there is work to do."
The sacking therefore did not comply with Small Business Fair Dismissal Code, Mr Cambridge said, and Mr Engleman "adopted an unreasonable process including the absence of a proper opportunity for the applicant to be heard before the decision to dismiss was made".
Mr Markovitch, who has since started coaching at X Fighting gym in Bondi Junction, was awarded compensation of $6924, equal to six weeks pay.