Failure to take out the rubbish? Workplace task clash ends in costly payout
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where the central question was whether a worker had resigned or was dismissed.
The employer argued three key points: that the worker had resigned, that the dismissal complied with the Small Business Fair Dismissal Code, and that the dismissal was not harsh, unjust or unreasonable.
The worker, who held a temporary skill shortage visa, contested these claims. He argued that what the employer characterized as a resignation was actually a dismissal following a dispute about after-hours duties, and that proper procedures weren't followed.
The case highlighted how a disagreement over end-of-shift duties led to an unfair dismissal claim, requiring the Commission to examine both the Small Business Fair Dismissal Code requirements and general protections against unfair dismissal.
The case involved a dance studio in Rozelle, Sydney employing around six staff. The worker started in January 2023 under a temporary skill shortage visa due to expire in January 2025.
According to his written contract, his duties included providing dance instruction, preparing lessons, selling dance programs, performing maintenance duties, and attending promotional events.
The employment relationship ended after a dispute about taking out rubbish. On July 23, 2024, the studio director instructed the worker to dispose of rubbish at the end of the evening.
When the worker left it in reception to handle the next morning after his 9:00 PM finish, another instructor ended up taking it out.
Evidence showed the worker performed his main duties well, with the Commission noting: "There was no issue with [the worker's] capacity to perform his job. I was provided with material, including endorsements from students, that indicated he was a dedicated instructor who was well liked by his students."
A meeting the next day became confrontational. The Commission's findings quoted the studio director's ultimatum accurately:
"You can stay here, and in our meetings, if I say you do this, you do that, you do it. If you have an issue, I don't want you to open your mouth in front of everyone, but you have to book a private meeting with me. If you can't do it, you can pick up your things, go home and the position is terminated instantly."
The Commission found that while a May 17, 2024 warning letter existed, it was never properly discussed with the worker.
As stated in the decision: "[The worker] had no recollection of the instances referred to in the warning and those matters had not been explained to him."
The Commission determined that the employer failed to meet the Small Business Fair Dismissal Code requirements. The Code requires employers to give workers a chance to respond to warnings and reasonable opportunity to improve - neither occurred in this case.
The Commission emphasized that proper procedures weren't followed, noting that no discussions occurred where the worker could have had another person present to assist - a requirement under the Code.
The situation was considered particularly problematic given the worker's status as a skilled migrant who had relocated specifically for this role.
The Commission made three key findings, stating: "[The worker] was dismissed, that his dismissal was not in accordance with the Small Business Fair Dismissal Code, and that the dismissal was harsh, unjust or unreasonable."
Regarding the initial incident, the Commission found: "The failure to take the rubbish out in the evening was not of such moment that it was going to impact on [the employer's] business in any significant way, if at all. This was a minor matter that did not justify dismissal."
The Commission ordered compensation, stating: "[The worker] should receive compensation of $24,496.54 in lieu of reinstatement." The employer was given 21 days to pay this amount, less applicable taxation.
