Employer argues 'disrespect' was not allowed in the workplace
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application brought by a worker against her former employer, a small food and beverage business trading as Cafetal Coffee Company. The worker, a permanent part-time food and beverage attendant, claimed she was unfairly dismissed and sought 13 weeks' pay as compensation.
In this case, the worker argued that she had been terminated after raising legitimate concerns about her employment conditions, such as payment for public holidays and understaffing issues.
The employer, however, alleged that the worker's conduct amounted to serious misconduct, citing reasons such as verbal intimidation, illegal recording of conversations, and inappropriate use of her mobile phone at work.
Breakdown of workplace relationship
The worker started her employment with the employer on 10 October 2022 as a food and beverage attendant on a permanent part-time basis. She worked a regular roster of 32 hours per week, which increased to include weekend shifts when the café started opening on Sundays.
The worker and the employer had a friendly relationship for most of her employment, with the worker assisting the business by shopping for food outside of her working hours and bringing her own utensils to work.
However, the relationship began to deteriorate when the worker raised concerns about permanent employees not being paid for public holidays when the café was closed. The worker had previously worked in hospitality businesses and had been paid for public holidays.
She raised the issue at a staff meeting on 27 September 2023, where she felt she was "cut off abruptly and belittled in front of other staff."
Worker raised ‘legitimate concerns’
The worker maintained that the issues she raised regarding her working conditions were reasonable and not intended to be disrespectful.
She sought advice from the Fair Work Ombudsman about her entitlement to payment on public holidays and shared this information with the kitchen manager, expressing her desire for everyone to "be informed and work on the same page."
The worker also faced challenges when her planned surgery was cancelled due to illness. She offered to take annual leave for the remainder of the week starting 23 October 2023 so she "did not bother anyone," but insisted on returning to work the following week as a permanent part-time employee.
Employer’s allegations of serious misconduct
The employer, who had recently become the sole owner and director of the business, took exception to the worker's communication style, describing it as "constantly interrupting" and "making rude, snide or belittling comments."
He claimed that the worker's actions constituted a "lack of respect in the workplace." The employer also alleged that the worker had threatened him with violence and engaged in illegal activity by recording conversations without consent.
He stated that he relied on the Small Business Fair Dismissal Code in deciding to terminate the worker's employment, asserting that her conduct amounted to serious misconduct.
The employer complained about the inconvenience caused by the worker's cancelled surgery and the need to hire and train a new staff member to replace her during her expected leave.
He also claimed that the worker used her mobile phone inappropriately during work hours in the kitchen, despite the worker denying this allegation.
Cultural considerations in the workplace
During the hearing, the worker submitted that cultural differences between Colombia, where both parties were from, and Australia might have influenced the events leading to her dismissal.
She explained that in Colombia, employees often refrain from speaking up or asking for their basic rights due to a "culture of fear" and the perception that the boss is of a higher social standing. The worker argued that raising questions about entitlements should not be taken as a personal attack or a sign of disrespect.
“[People] live in a culture of fear. We don't normally speak up or ask for anything, even our basics,” the worker said.
The worker went on to say that in Columbia "the boss" is considered “high in social standing and an employee is considered low” which is why employees “cannot say anything because it is considered disrespect. I understand if I used bad words, threats ... but to speak out for myself, to raise questions or to confront someone about something that has gone on for some time should not be taken as an attack,” the worker added.
Was it unfair or harsh dismissal?
After considering the evidence, the FWC preferred the worker's version of events, finding that her queries were legitimate and not raised in an aggressive or inappropriate manner.
The Commission said, "The [employer] was offended by what he perceived to be actions of the [worker] that were disrespectful to him. He is entitled to feel that the actions of the [worker] were disrespectful, but I do not accept that the [worker] was in fact disrespectful or otherwise inappropriate in her communications with the [employer]."
The FWC found no valid reason for the dismissal, noting that "the action to dismiss the [worker] was not sound or defensible."
The Commission also determined that the worker was not given an opportunity to respond to the alleged reasons for her dismissal.
While the FWC acknowledged the employer's inexperience in industrial relations and the lack of human resource expertise in the small business, it ultimately concluded that the dismissal was harsh, unjust, and unreasonable.
While the worker's submission regarding the "culture of fear" in Colombia provided context for the events leading to her dismissal, the FWC emphasised that these cultural considerations do not override the applicable industrial laws in Australia.
The Commission stated, "Ultimately, this cultural consideration, while relevant to the events that occurred in this matter, does not override applicable industrial laws that protect employees from dismissal if they ask questions or raise queries with respect to their conditions of employment in an appropriate and lawful manner."
