A South Australian noodle restaurant has been ordered to pay a worker $3,900 in compensation after bungling their dismissal.
The restaurant dismissed a casual waiter without notice in November last year after a dispute between the worker’s partner and the business over pay rates.
The worker alleged she was being paid hourly rates of $10.00 per hour when she started in 2017, later increasing to $13.00 per hour.
The business dismissed the worker on the spot in the days following the pay dispute, citing allegations of poor performance, although the director later conceded the argument was a “trigger”.
In determining the case, Fair Work commissioner Peter Hampton assessed whether the business had followed proper procedure in firing the worker, finding there was no basis for summary dismissal.
Hampton accepted the worker was, at least initially, paid “in the order” of $10 an hour, far below relevant award entitlements.
“It is apparent to me that the obligations of the Award played very little, if any, role in the determination of the wages and conditions under which … [the worker] was engaged,” he said.
In providing evidence to the commission, the business owner said a pay rise would be subject to his profitability and the performance of the worker.
But maintaining it was ultimately not for the commission to decide whether the worker had been underpaid, Hampton said a lack of notice and opportunity for the worker to respond contributed to the dismissal being unfair.
He did, however, note the lack of dedicated human resources processes in the small business was a “meaningful allowance” contributing to the overall fairness of the process.
“Given the facts of the matter and the statutory considerations, and despite the existence of some limited mitigating circumstances, I am satisfied that the dismissal … was harsh, unjust and unreasonable,” he said.
Workplace lawyer Peter Vitale says the case is a good example in the importance of following proper workplace procedure when dealing with disputes.
“It’s a good example of a very small business simply not having any awareness of the requirements of the law,” he says.
“The commission found while there was some cause for concern about the employee’s performance, it really only warranted a warning.”
Under the Fair Work Act, summary dismissal is only justifiable in cases of serious misconduct, including theft, fraud, violence and “serious breaches of occupational health and safety procedures”.
Vitale says employers need to be able to demonstrate those justifications before the FWC.
“The basic test is that the employee has acted in a way which demonstrates that they are an unwilling or incapable of meeting their basic obligations as an employee and that’s behaviour such as theft, intoxication or serious breach of safety,” he explains.
“An incidence of bad customer service doesn’t necessarily reflect an employee’s overall attitude.”