In the recent decision by the Fair Work Commission in Mr Domenic Gugliandolo v LTG Goldrock Pty Ltd [2013] FWC 7903, the Applicant’s employment was terminated by the employer Respondent on the basis that the Applicant had failed to trade profitably. This requirement was included in the contract of employment, which allowed the contract to be terminated if the Applicant’s performance was unsatisfactory in terms of the profitability criteria.

On balance, the Fair Work Commission concluded that the termination was unfair on the basis that even if the there was a valid reason for the termination:

  • the Respondent had increased the Applicant’s pay only a few months prior to the dismissal;
  • the Respondent had expressed confidence in the ongoing relationship only six weeks prior to the termination;
  • achieving profitable results from trades was not the only criterion for the Applicant’s continuing employment;
  • the Applicant was not notified of the reason for the termination prior to it occurring; and
  • the Applicant did not receive any warning in respect to his unsatisfactory performance and was not given any opportunity to rectify the perceived unsatisfactory performance.

The Applicant was awarded compensation of $14,714 less appropriate taxation, being the amount that the Applicant would have earned if for three and four months pay had he not been dismissed less the one money pay in lieu of notice already received by the Applicant.

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