Dismissal of casual complaining barista by incompetent employer upheld

Dismissal of casual complaining barista by incompetent employer upheld

The Fair Work Commission has determined that the dismissal of a casual barista who behaved in an ‘eccentric’ manner following her termination was reasonable, notwithstanding her claims that the separation was linked to a series of complaints she had raised during her employment.

The barista, MKW, commenced work at the Espresso Garage Southbank in Brisbane on 14 February 2020 until she was terminated from her employment on 18 October 2021.

During her employment, she had raised several concerns about failing to be afforded breaks, not receiving payslips, and not being paid on time.

The catalyst for her eventual termination stemmed from her request to take a holiday in October 2021. The director of the business, Greg Chae, insisted that two baristas be on every shift, and following MKW’s request, hired a third barista who commenced employment a week before she departed.

Upon her return, she found that her shifts had been reduced to accommodate sharing of hours between her and the other two staff.

On the morning of 13 October 2021, she was rostered from 5:30 am to 9:30 am. However, she decided to remain at the café after the end of her shift.

In the hearing before Commissioner Jennifer Hunt, she acknowledged that she stayed at the café beyond the expiration of her shift on several further occasions, which the Commissioner described as “she had been staging a sit-in beyond hours of 9:30 am”.

On 18 October 2021, she advised Mr Chae via text that she would work until 1 pm that day. Shortly thereafter, he replied by text message that there would be no further rostered hours for her. The following day he advised her that if she continued to come to the café, she would be regarded as a trespasser and that he had already advised the local police station of the situation.

Nevertheless, she attended the café on 20 and 21 October 2021 and worked. Her appearance became disruptive to other staff on duty. They attempted to contact Mr Chae to inform him of her attendance but could not reach him.

Commissioner Hunt acknowledged there had been difficulties between Mr Chae and the applicant, noting, “Mr Chae appeared to me to be an incompetent employer, failing to pay to Ms (W) her wages on time”.

Nevertheless, Commissioner Hunt acknowledged the employer’s ability to change her rostered hours of work. As the Commissioner noted, “I do not consider that the decision was for any unlawful reason, and not because Ms (W) had been making complaints”.

Moreover, “Ms (W’s) response was eccentric and irrational; she made threats and followed through with them. She continued to stay beyond her rostered finishing time and caused distress to those she worked with and to Mr Chae”.

Ultimately, the Commissioner noted,

“I do consider that Ms (W’s) conduct was sufficiently serious to justify immediate dismissal. She was persistently and determinedly refusing Mr Chae’s instructions not to work beyond her rostered finishing time. I accept that she was making her co-workers feel uncomfortable, and they clearly lacked the skills to properly deal with the matter”.

The application was dismissed.

MKW v One4All Holdings Pty Ltd t/a Espresso Garage Southbank [2022] FWC 1088 (9 May 2022)

For queries about casual engagement, wages entitlements, misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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