Employee claims performance issues were not raised properly, 'lacked specific details'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application filed by a worker against their former employer, a Japanese restaurant in Brisbane.
The worker, who was employed as a floor manager, alleged that he was unfairly dismissed from his employment and sought compensation as a remedy.
In this case, the worker argued that there was no valid reason for his dismissal and that he was not notified of the reasons for his dismissal or given an opportunity to respond before the decision was made.
The employer, on the other hand, maintained that the worker's dismissal was justified due to performance issues.
The worker started working for the employer on 12 December 2022. The employer operates Japanese restaurants in Brisbane and Melbourne, with various companies employing people to work in the restaurants under the direction of the director/executive chef or his appointed managers.
On 17 October 2023, the worker was notified of his dismissal, with the termination letter stating that the dismissal would take effect on 24 October 2023.
The reason for dismissal provided in the termination letter was based on several issues that had been consistently raised and observed during the worker's tenure, specifically in the areas of “Booking Schedule and System, Information Sharing, Professional Communication, Independence as a Manager, Leadership and Trust, and Resolving Late Service Issues.”
The worker filed an unfair dismissal application on 18 October 2023, before the termination took effect. The employer did not raise any jurisdictional objections, and the matter proceeded to conciliation and then to a determinative conference.
During the proceedings, it came to light that the employer had indicated on its Form F3 employer response that it only had seven employees at the time of the worker's dismissal.
If this were the case, the employer would be considered a "small business employer," and the longer minimum employment period of 12 months would apply.
However, upon further investigation, it was determined that the employer was an associated entity of another company, which had 15 employees at the time of the dismissal.
The FWC found that the director/executive chef controlled the group of companies, with the various companies employing people to work in the restaurants at his direction or that of his appointed managers.
As a result, the employer was not considered a "small business employer," and the worker had completed the minimum employment period of six months.
The FWC considered the merits of the case, taking into account the evidence provided by both parties. The worker relied on his unfair dismissal application, termination letter, contract of employment, and a spreadsheet suggesting a claim of $571,046.00 from the employer.
The employer relied on its Form F3 employer response, the worker's payslips, emails between the worker and the director/executive chef, and statements from other employees.
The FWC noted that the alleged performance issues were identified at a very high level in the termination letter and emails, lacking specific details about the concerns with the worker's performance.
The director/executive chef had raised concerns about the worker's performance in an email dated 20 June 2023, to which the worker provided a comprehensive response denying the allegations. However, subsequent communications from the director/executive chef reverted to raising vague, high-level issues with the worker's performance.
The FWC found that the employer had not provided sufficient evidence to establish that the worker's performance was unsatisfactory at the time of dismissal or during the proceedings.
"I do not consider that [the employer] has provided sufficient evidence to establish that [the worker's] performance was unsatisfactory, either at the time of dismissal or during the unfair dismissal proceedings. [The employer] did not provide evidence to establish that [the worker's] performance was deficient in any of the six areas identified in his termination letter."
After considering all the evidence and applying the relevant provisions of the Fair Work Act 2009 (Cth), the FWC concluded that the worker's dismissal was unfair.
The FWC found that there was no valid reason for the dismissal and that the worker was not notified of the reason for dismissal or given an opportunity to respond before the decision was made.
"I am satisfied that the dismissal of [the worker] was unjust and unreasonable because there was no valid reason for his dismissal."
The FWC also noted that if it had found a valid reason for dismissal, it would have still considered the dismissal to be harsh given the worker's age and the fact that the performance issues raised were not overly serious.
"If I had found that there was a valid reason for dismissal, I would have found the dismissal was harsh given [the worker's] age and because the performance issues raised against [the worker] were not overly serious."
In determining the appropriate remedy, the FWC considered the worker's length of service, the remuneration he would have received had he not been dismissed, his efforts to mitigate his loss, and any income earned since the dismissal.
The FWC estimated that the worker would likely have remained employed for a further two months, until 17 December 2023, given the ongoing communication issues between the worker and the director/executive chef, as well as some evidence of the worker having difficulties with other staff.
The FWC ultimately ordered the employer to pay the worker $7,694.98 less taxation, plus superannuation of $846.45, within 14 days of the decision.
This decision serves as a reminder to employers of the importance of ensuring that any dismissal is based on valid reasons and that employees are afforded procedural fairness throughout the process.
