Employer says behaviour made a 'combative' environment amid unfair dismissal claim
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim lodged by a worker against her employer, the trustee for the Dolphin Hotel Unit Trust, a hotel.
The worker claimed that she was unfairly dismissed from her employment, while the employer argued that the worker was a casual employee and therefore not protected from unfair dismissal under the Fair Work Act 2009 (the Act).
The case examined the details of casual employment and the factors that determine whether a casual employee is employed on a "regular and systematic basis" and has access to unfair dismissal protections.
Background of the case
The worker started as a casual employee on 24 April 2021. She worked as a sales representative and bar supervisor until her termination on 10 November 2023.
The worker's contract of employment, dated 31 May 2021, stated that she was employed on a casual basis and would not have reasonably predictable or regular hours of work.
Throughout her employment, the worker took several breaks at her own choice, ranging from one to four months. From April 2023 until her termination, her weekly hours varied from 2 to 36 hours per week.
Issues with the worker's performance
On 22 August 2023, the employer's management met with the worker to address concerns about her behaviour and performance.
The issues included sending herself on breaks during peak trade, closing the bar without approval, customer complaints, and not arriving to shifts on time.
The worker acknowledged a decline in her performance but attributed it to the passing of a co-worker in May 2023.
Following a bar supervisors meeting on 31 October 2023, the worker allegedly posted comments on social media platforms, criticising the management team and encouraging negative behaviour among staff.
Negative comments against management on WhatsApp
According to records, several staff reported that the worker had posted on the Dolphin Fam Bam (Facebook Chat) criticizing the management team. That chat group was set up as a social platform only. It was for staff to invite each other to events or ask questions relating to work.
“The [worker] was spoken to about appropriate social media use but continued to use those platforms to vent her own opinions on the management team,” the decision said.
Around 9 November 2023, the worker began excluding certain employees, whom she considered "managerial", from the staff group chat on WhatsApp. The worker made various comments on the staff group chat that the employer saw as “a major concern” as her content used language that “could incite bad behaviour and negativity toward leadership and management.”
Those messages were:
“The dolphin family chat has always been a management free safe space for delfino's to vent. I want it to stay that way [heart emoticon].”
“Its inappropriate to be cutting shifts when you're mad at staff without having a conversation about it. [We’re] adults and their communication needs to be better. I'm always happy to fight for you guys without the fear of backlash but messaging me privately only gets us so far. Please speak to the management team and communicate your frustrations as well.”
On 10 November 2023, at the start of her shift, the worker was asked to meet with the employer. The latter explained that her continued decline in behaviour and attitude “could no longer be accepted.”
“He also spoke about the social media chats and how it was inappropriate to exclude people, and not appropriate to encourage people to speak poorly of management. The [worker] left the building after this meeting, and she was paid for the shift for that day. The [worker] was provided with a termination letter,” the decision said, adding that her actions were viewed as inciting “a negative and combative” environment.
Termination of employment
The worker was informed of the termination of her employment due to "persistent concerns regarding your behaviour and attitude, particularly in relation to your role as a Bar Supervisor."
The employer also cited the worker's involvement in a group chat that "fostered negative comments about the management team, thereby creating a divisive atmosphere."
The termination letter stated:
"Despite our efforts to address these issues, there has been a consistent pattern of behaviour that is incompatible with the standards and values we uphold."
The FWC's decision
The FWC rejected the employer's jurisdictional objection and found that the worker's employment as a casual employee was on a "regular and systematic basis." The Commission emphasised that "it is the employment that must be on a regular and systematic basis, not the hours worked."
The decision quoted the reasoning from Yaraka Holdings Pty Ltd v Giljevic:
"It should be noted that it is the 'engagement' that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement."
The FWC concluded that the worker had a reasonable expectation of continuing employment by the employer on a regular and systematic basis, based on the contractual obligations and the regularity of engagement.
Regarding the unfair dismissal claim, the FWC found that the employer had valid reasons for the dismissal related to the worker's conduct and behaviour. The decision stated:
"Indeed, in addressing the general reason, the worker conceded taking a break during peak service, inappropriately turning lights and music off, and overall behavioural inconsistency."
The Commission also noted the worker's involvement in social media chats that fostered negative comments about the management team, as outlined in the termination letter.
While the FWC dismissed the employer's jurisdictional objection and found that the worker was protected from unfair dismissal, the Commission ultimately determined that the dismissal was not "harsh, unjust, or unreasonable" due to valid reasons related to the worker's conduct and behaviour.
