Failure to take out rubbish bin insufficient reason for termination

A Filipino dance instructor working in Australia under a sponsored visa arrangement has won significant compensation following a Fair Work Commission determination that failing to take out a rubbish bin at the end of his shift was not sufficient reason to warrant his termination.

Mr C commenced working for CareToDance on 23 January 2023 as a Dance Instructor after being recruited by the company to fill a skills shortage. The business provides dance lessons in ballroom and Latin social dancing at its studio in Rozelle, an inner Sydney suburb, employing six staff. Consequently, the business is covered by the Small Business Fair Dismissal Code (the Code).

It was common practice that at the end of the last lesson for the day, instructors would tidy up, including collecting any rubbish lying around the studio and either carrying it to a garbage bin outside the studio or leaving the rubbish in the studio to be taken out at the beginning of the next day.

On 23 July 2024, Mr C and another employee, Mr N, collected the rubbish at the end of their session. Mr C told his co-worker that as it was after 9 pm, he would leave the rubbish in the reception area to be removed the following day. After he left, Mr N took the rubbish out.

The following day, both workers attended a daily meeting chaired by the studio’s owner, Mr B, where the topic of the rubbish removal was raised. The owner challenged Mr C about his failure to remove the rubbish and said that he could leave the business if he failed to do as he was told.

A short second meeting was held the following day, after which the owner sent the accounts team an email stating that Mr C wished to terminate his position and visa with immediate effect. Mr C was included in the email distribution and promptly responded to all parties challenging the owner’s version of events and stating he had been unfairly dismissed.

Deputy President Tony Slevin determined that the business had terminated Mr C’s employment at the conclusion of the second meeting by issuing him, “with an ultimatum to obey his directions or leave”. The Deputy President highlighted Mr C’s actions in promptly responding to the email on 24 July 2024, suggesting that he did not intend to resign from his position or abandon his employment.

The Deputy President noted that, “the failure to take out the rubbish on 23 July 2024 did not justify dismissal. So far as it could be considered misconduct for failing to follow an instruction, it was a minor matter. Mr (C) cleaned the studio at the end of his classes, was aware he had to take the rubbish out, but decided to follow a common practice of not doing so at the end of the night and intended to do so the next day”.

As an aside, the Deputy President referred to Mr C’s termination letter mentioning an earlier final written warning he had received dated 17 May 2024, claiming he failed to follow orders, was reluctant to perform assigned tasks, shifted responsibilities, and displayed a general lack of respect in front of other staff.

Critically, as noted by the Deputy President, Mr C was not provided with an opportunity to respond to the warning or given a reasonable chance to rectify the problem, as no discussions took place. Therefore, this warning was incompatible with the requirements of the Code.

In deciding that the termination was unfair, the Deputy President acknowledged that the working relationship had broken down and reinstatement was inappropriate.

He awarded compensation of $24,496.54, which represented approximately 40% of Mr C’s annual salary with the dance studio.

Mr C v Caretodance Pty Ltd [2024] FWC 3580 (24 December 2024)

For queries about the Small Business Code, issuing warnings, terminating employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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.

Ref: 485.0225