From home, Hoebergen called the Covid-19 helpline and was told to isolate at home and not to attend work or see a doctor. He called his operations manager that day – a Thursday – and said he was isolating.
Hoebergen later received a text message from AFL director Miles Roberson “to the effect that if [Hoebergen] was not at work on Monday 23 March he would be dismissed”, Urlich said.
Hoebergen did not go to work on the Monday “because he was isolating as directed”.
The next day, he did not receive his pay as expected. A text conversation with Roberson followed “became tense”, Urlich said.
Hoebergen was paid later that week and received a final holiday pay on March 31.
Roberson told the authority AFL felt it was fairer to Hoebergen to tell him he was not needed any more so he would not have to wait to be offered work by AFL and could get another job.
He also said he was concerned about Hoebergen’s reliability and said he needed staff to “step up” to face the challenges presented by Covid-19.
There were also concerns about business decline and Roberson’s ability to employ staff.
The determination said Hoebergen could “sense” he had been dismissed after the text exchange and received a letter on April 15 confirming his employment had ended.
Hoebergen believed the dismissal was unjustified and sought reimbursement of lost wages and compensatory damages and a contribution to the costs of representation he incurred. He also sought a penalty for breach of good faith.
Urlich found that, although Hoebergen had started as a casual driver, his work and pay were regular and ongoing enough that, in the eyes of the authority, he was a permanent employee and had rights as such.
“He was entitled to have his employer put its concerns to him and to be provided a fair opportunity to respond and have any response fairly considered,” Urlich said.
“In addition, the concerns had to be well founded.”
Because these were not put fairly to Hoebergen, his dismissal was unjustified, Urlich said.
The authority also found Hoebergen was upset by the dismissal and “it made him feel as if he was a bad worker” and “had a negative impact”.
However, the authority did not agree with Hoebergen’s call for reimbursement, with Urlich saying Hoebergen did not appear to have looked for a new job within the “reimbursement claim period”.
“While I accept this was the Covid-19 lockdown period, which would have created some challenge to securing new employment, it did not prevent Mr Hoebergen attempting to do so. On balance, I find Mr Hoebergen has not made himself available for work.”
The authority also found there was no breach of good faith.
“While the communications between the parties may have been tense towards the end of the employment relationship and AFL appears to have held concerns as to the genuineness of Mr Hoebergen’s absence for sickness, these matters are not of such a nature as to warrant a finding of breach of good faith.”
The authority awarded Hoebergen $8000 in compensation for humiliation, loss of dignity and injury to feelings.
Costs were reserved, with the authority instructing both parties to resolve the issue between them.
