An electrical contractor who calls himself the “Nazi Sparky” and claims to be “Brisbane’s best Holocauster”, has been ordered to pay an apprentice more than $11,000 in an unfair dismissal claim.
Simon Hickey, director of Smerff Electrical – whose website has white supremacist material published alongside advertising for electrical services – denied that he dismissed the apprentice electrician, but had rather given him an ultimatum.
He accused the apprentice of fraudulently using his company’s van, tools and other property to undertake a cash job with a former employee of his company who he had dismissed, allegedly for stealing. He said that he had demanded that the apprentice provide information about the cash job and the new address where the former employee was working at that time.
Mr Hickey maintained that the apprentice failed to comply with the ultimatum and voluntarily left his job by returning the keys to the company vehicle, which Mr Hickey accepted as his resignation.
Fair Work Commission (FWC) Deputy President Ingrid Asbury accepted that while the apprentice may have used company property to undertake the cash job and said that it was “arguable that [the apprentice] was abusing his privileges” and “arguably reasonable” that Mr Hickey requested him to reveal the address of the cash job where his tools and equipment were used, it did not however “excuse or mitigate” the tirade of the “appalling” expletive-laden, threatening messages which the director sent to the apprentice.
“Fair Work gonna put me out of business LMAO”
In part of a text message, Mr Hickey told the apprentice “Your choice today bro. Info or job by 4 pm. I’ll find out about that c*** one way or another even if not through you and I will f*** him. So you’re not stopping it from happening by keeping quiet. I’ll give ya till 4”.
He then said in an email about 12 hours later “You could have kept your job had you spilled the beans on fatty fatty boom boom but no.” He also gave the apprentice the telephone number of the FWC and said “Do you know what these c***s do about it? Nothing unless it’s a company worth prosecuting.”
“Fair Work gonna put me out of business LMAO,” Mr Hickey said.
He also told him “I will do my best to hinder and interrupt any apprenticeship you do in Brisbance [sic]. I know a lot of sparkies remember. And you have no ideas which ones. Up yours”.
Employer’s abuse repudiated the employment contract
Deputy Asbury said “No employee should ever be subjected to the threats and abuse meted out by Mr Hickey”.
She said that Mr Hickey’s request for the apprentice to provide information was “couched in language so threatening and offensive” that he “did not have an option to comply”.
“In order to comply, [the apprentice] would have been required to return to work … in circumstances where [he would be treated] in a manner that no employee should be required to endure.
“That an employer would subject an employee, much less an apprentice, to such language beggars belief.
She further noted that “The text message exchange also made clear that Mr Hickey was perfectly capable of pursuing the matter regardless of whether [the apprentice] assisted by giving Mr Hickey the information he was requesting”.
“There was no belief on the part of Mr Hickey that [the apprentice’s] refusal to provide the relevant information was serious misconduct.
“Rather, Mr Hickey dismissed [the apprentice] because he would not assist [him] in his pursuit of revenge against the former employee,” she said.
“I am satisfied that Mr Hickey’s conduct … was such that he repudiated the contract of employment and gave rise to a right in [the apprentice] to accept the repudiation.
She said there was “no valid reason” for the apprentice’s dismissal that was unfair, harsh, unjust and unreasonable and “devoid of procedural fairness and quite simply appalling”.
Former employee entitled to compensation for loss of wages
Deputy Asbury believed that reinstatement would be inappropriate, considering that the relationship Mr Hickey had with the apprentice had “irretrievably broken down”.
In concluding, because of the “appalling manner” in which the apprentice was treated, she couldn’t be satisfied that his employment with Smerff Electrical would have extended beyond 12 weeks.
She awarded the apprentice $11,400 compensation for 12 weeks’ wages, which Mr Hickey was ordered to pay within 21 days.