Worker Who Queried Pay Met With Blank Roster

An employee who was sent a blank roster after querying her wages was dismissed in a manner the Fair Work Commission described as “capricious and spiteful.”

Background

The applicant in the matter was employed as teacher and tutor at a private learning college (selective school), teaching classes which involved conducting lessons of course material, including mathematics.  She was paid $140 for working on Saturdays and $20 per hour for work on weekdays. 

After seeking advice from the Fair Work Ombudsman about award rates of pay, the worker and some of her colleagues raised the issue with the owner.  The following week, the applicant received her roster via text message and saw that she was not rostered on at all.  The applicant sent a text to the owner querying her absence from the roster to which the owner responded, “because we cannot match your requirements.”  The applicant replied, “You cannot pay the minimum wage?”, and the owner texted back with, “Hoping you find a higher wage job, thanks.” 

FWC result

In the Fair Work Commission, the employer argued the applicant was actually a volunteer not an employee.  It ultimately withdrew that claim.  The employer also claimed the dismissal was consistent with the Small Business Fair Dismissal Code, but Deputy President Boyce of the FWC dismissed that argument as “baseless.”  The employer went on to claim that the applicant was dismissed because she was given warnings, complaints were made about her, and that she failed to answer student questions.  Deputy President Boyce wholly rejected those assertions saying they were not supported by any evidence.  After weighing up the criteria for deciding whether a dismissal is unfair, the Deputy President said:

…I am satisfied, on the basis of the evidence and findings set out in this decision, that the Applicant’s dismissal by the Respondent was “harsh, unjust and unreasonable”. Her dismissal was absent a valid reason, absent procedural fairness, and absent any warnings as to unsatisfactory performance. I therefore find that her dismissal squarely fits with the ordinary meaning of each of the words harsh, unjust and unreasonable.

The applicant was awarded compensation for her unfair dismissal of $6,980.70 plus superannuation.

Causer v Refined Learning Pty Ltd T/A ABC Refined Learning [2021] FWC 4357