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Canberra massage parlour text messages read to Fair Work Commission

Text messages read in the Fair Work Commission showed a former massage parlour owner had told an employee what to say in the hearing, contradicting other evidence that had been given.

In the second hearing of the unfair dismissal case involving two workers at Canberra Foot and Thai massage parlour, massage supervisor Jun Millard Puerto was called as a witness for the business, which was represented by Colin Elvin.

In the final moments of the day's proceedings messages from Mr Elvin to Mr Puerto, with instructions about what to say in the hearing, were read to the commission by an interpreter.

In what Fair Work Commission deputy president John Kovacic described "a couple of very difficult days" on March 1 and 2, evidence attempting to challenge credibility of witnesses on both sides was heard.

The commission is considering whether two employees were unfairly dismissed in October 2015. Delo Be Isugan claims that she was forced to run away from her position at the massage parlour after becoming fearful that she would be sent back to the Philippines. She had started a relationship with fellow employee Bartolome Durado, which she says was against rules for employees put in place by Mr Elvin. Mr Durado claims he was also unfairly dismissed because of the relationship.

Canberra Foot and Thai massage parlour in Belconnen was represented by former owner and director Colin Elvin, who told the commission that he was now working as a consultant for the business. He said it was more appropriate for him to represent the business than its current owner as he was owner at the time of the alleged unfair dismissal.

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Deputy president Kovacic asked Mr Elvin multiple times throughout the second day of hearings to stop messaging on his phone. Stefan Russell-Uren, legal officer for United Voice and representing the two workers, asked that the phones of Mr Elvin and Mr Puerto be surrendered to the commission, stating that he suspected Mr Puerto had materially changed his evidence on the advice of Mr Elvin. He also tendered a photo of Mr Elvin speaking to Mr Puerto during the lunch break in proceedings.

In what the deputy president conceded was an "highly extraordinary" move, a message sent from Mr Elvin to Mr Puerto was read as evidence. It included instructions on what to say to the commission.

Earlier in the day, Mr Elvin gave evidence that he did not terminate Ms Isugan or Mr Durado for their relationship, but that he had asked other staff about Ms Isugan's performance as a massage therapist. He said she received below-average ratings in customer surveys and that she was disruptive in a quiet workplace. 

Mr Elvin also alleged that Mr Durado had sold stolen items to other staff members at the massage parlour. He said that there were no rules against relationships between staff.

During Mr Elvin's evidence, Mr Russell-Uren attempted to tender a recording, which he said was a conversation between Mr Elvin and his employees and would contradict the evidence given in the hearing. The deputy president asked that a transcript of the recording be made so that it could be considered as a possible piece of evidence at a later hearing.

Mr Puerto told the commission that Ms Isugan's relationship with Mr Durado was "part of the reason" she was dismissed. In the case of Mr Durado, he said the relationship was a secondary reason, but that the primary reason was that he sold items to other workers and disappeared at times.

Earlier in the proceedings, Mr Puerto changed his witness statement to say that he was going to recommend that the company dismiss Ms Isugan, and it was not Mr Elvin who told Mr Durado of plans to dismiss her. 

Staff at the massage parlour were restricted from having relationships, Mr Puerto told the hearing, in order to avoid negative associations between brothels and massage parlours.

There will be a further hearing in the case, which is expected to take place late in April.