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Landscapers fined over allowance sack threats

More than $13,000 in fines and compensation orders have been imposed after a casual employee was threatened with the sack for pursuing a vehicle allowance when using his own motor vehicle for work duties.

Tuscan Landscape Company Pty Ltd has been penalised $9000 after admitting it applied coercion to the employee and breached the Fair Work Act by telling him he "should not expect a good outcome" and "may be fired for causing trouble".

The company - which distributes landscape supplies to retailers in QueenslandNSW and  Victoria - has also been ordered to pay the employee $3381 compensation for the resulting economic and non-economic loss he suffered, including stress and anxiety, hurt, humiliation and inconvenience.

In addition, the company's northern regional manager Steven Commons and Queensland state manager Matthew Thompson have been fined $540 and $550 respectively.

The penalties, imposed by Judge Michael Burnett in the Federal Circuit Court in Brisbane, are the result of legal action by the Fair Work Ombudsman.

Fair Work Ombudsman Natalie James says the Court decision should serve to remind employers that it is not unacceptable to apply undue pressure to an employee querying his or her minimum entitlements.

The employee, a merchandiser based in Brisbane, was required to use his own motor vehicle to drive to, from and between various work sites but was not paid an allowance to do so, when he was actually entitled to a rate of 74 cents a kilometre.

After raising the issue of a vehicle allowance with his employer and being refused, the employee received advice from the Fair Work Infoline on applicable vehicle allowances.

The employee then raised the issue again with Thompson, who responded that he would speak to his superiors, but that the employee "should not expect a good outcome" and if he pursued the matter, "may be fired for causing trouble".

Thompson subsequently advised the employee that Tuscan would not pay him a vehicle allowance and his only option was to keep a log book and claim the expense back on his tax.

After learning that the employee had lodged a complaint with the Fair Work Ombudsman over the matter, Thompson phoned the employee and used words to the effect that if he "kicked up a fuss the big bosses probably would not be happy and would say just sack this guy".

Commons subsequently advised the company's senior book-keeper that if Tuscan was required to pay the employee a vehicle allowance, he would reduce the employee's hours of work or prohibit him from using his motor vehicle for work-related purposes.

Tuscan and the employee subsequently agreed to resolve the complaint however, in the course of negotiations Commons telephoned the employee and said words to the effect that if the employee was not satisfied with a proposed outcome then he and the company should "go their separate ways".

During this period, Tuscan ceased to engage, or offer to engage, the employee for casual employment and, when the employee inquired about his employment status was informed that his hours would return to normal after his claim was resolved.

The conduct breached workplace laws in that it amounted to threats with the intent to coerce the employee to not claim his vehicle allowance entitlement.

The conduct of ceasing to communicate with the employee, altering his position and ceasing to offer him casual employment because he sought to access his vehicle allowance entitlement also breached the general protection provisions of the Fair Work Act.

After the Fair Work Ombudsman investigated, Tuscan back-paid the employee his unpaid vehicle allowance.

Source: Fair Work Ombudsman Media Release 16 May 2014

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