Employer's decision also puts worker's status in country at risk
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where a worker argued he was dismissed without warning after taking carer's leave to attend to his injured wife.
The worker claimed the dismissal came after a disagreement with management about finding a replacement for the shift he needed to miss.
The case highlights the challenges that can arise when managing sudden employee absences and navigating tensions between personal emergencies and operational needs.
The worker was employed as a chef at a seafood restaurant from January 2023 until July 2024. Prior to this, he had worked at the same restaurant under a different business entity from March 2021.
The business was owned through a family trust, with the director's step-daughter and her partner managing daily operations.
His employment record showed no formal warnings. Instead, he had received two pay rises for performance in September 2022 and November 2023. He worked in Australia under a Temporary Skill Shortage (subclass 482) visa that was sponsored by the employer.
The chef's brother also worked at the restaurant as head chef, which later became relevant to witness testimony about workplace behaviour.
On July 29, 2024, the chef needed to take carer's leave when his wife had a serious fall and was taken to hospital by ambulance.
The restaurant manager, who wanted to attend a family birthday celebration that evening, told the chef to find someone to cover his shift.
When the chef said this request was illegal, communications between him and the manager became heated.
That same evening, after he returned home from the hospital with his wife, he was dismissed immediately.
The employer argued the dismissal was justified due to the chef's alleged aggressive behaviour. Key evidence included this statement from management:
"Staff in particular [the manager] had threatened to leave the business on a number of occasions as they felt they could not tolerate being at the business and being in fear of their safety from [the worker]."
However, the chef denied all allegations. His wife, who was present during the phone calls on July 29, testified that it was the manager who was yelling.
His brother, who worked alongside him, also stated that he never witnessed the alleged aggressive behaviour.
The Commission found serious issues with how the employer handled the situation:
"At no time prior to his dismissal, did [the director], or any other person on behalf of [the employer], put to [the worker] the allegations it relied on to terminate his employment. As a result, [the worker] did not have a chance to respond to those matters before the decision was made to summarily dismiss him."
The FWC made several critical findings in determining that the dismissal was unfair:
"Because there was no valid reason for the dismissal of [the worker], he was not notified of any valid reason."
"Where the evidence of [the worker], [his wife] and [his brother] conflicts with the evidence contained in the witness statements made by [the director] and [the manager], I prefer the evidence given by [the worker], [his wife] and [his brother]."
"Having considered each of the matters specified in section 387 of the Act, I am satisfied the dismissal of [the worker] was harsh, unjust and unreasonable."
The FWC said that the worker’s dismissal had significant consequences for his visa status, giving him 180 days to find a new sponsor. Though he found new work by September 18, 2024, his new employer required him to apply for a new visa rather than transfer the existing one, creating additional costs of approximately $17,000 for him and $10,000 for his new employer.
The Commission awarded $4,184.62 in compensation, calculated from the period between his notice payment ending and starting his new job. This amount represented just over three weeks of lost wages but didn't include costs related to his visa situation.
