No compensation for “out of touch” hospitality worker wrongly stood down

Deputy President Lake of the Fair Work Commission has declined to award compensation to a Gold Coast hospitality employee, despite confirming she was unlawfully stood down twice in August and September, finding it would be unfair to her employer and colleagues who agreed to “share the burden of the pandemic”.

The full-time front of house employee accepted she was legitimately stood down between 8 to 13 August 2021, during a hard lockdown in Queensland, but disputed two further stand down periods of 13 to 16 August and 26 August to 8 September that she was also subjected to. The worker claimed the additional stand downs were imposed after she refused to sign an agreement to temporarily reduce her hours, a request that had been put to the resort’s entire workforce at the time. The employee insisted she could have been usefully employed during the additional stand down periods and disputed there was a genuine stoppage of work after 13 August. She further argued she should have been permitted to perform a backlog of administrative tasks or been retrained or redeployed into housekeeping.

In proceedings before the Commission, the resort’s General Manager indicated the business was in “survival mode” after operating at approximately 10% capacity in August and less than 38% in September and October, with capacity not expected to exceed 22% in November. During this period, the General Manager said the employer had been making every effort to retain their workforce and share the limited available work amongst their employees fairly, and as equally as possible. The General Manager reported the worker was one of only two employees who refused the arrangement to reduce hours and she had since returned to her full-time duties, while 80% of her colleagues remain on reduced hours.

Deputy President Lake said he had “considerable sympathy” for the employer, noting it “navigated its way through an incredibly difficult time and has sought to look after all staff fairly and equally” but was not able to conclude the additional periods of stand down were lawful under s524 of the Fair Work Act 2009.  Despite this finding, and despite acknowledging the employee would have found being without her full-time income “difficult, frustrating and incredibly stressful”, he was not inclined to award her compensation.

Instead, the Deputy President observed:

“the Applicant’s refusal to accept the reduced hours, and then to seek to bring this application to recoup the remuneration she would have received had she not been stood down for a brief period, despite now having been returned to work in a full time capacity, seems out of touch with the realities of the industry in which she works. The [employee’s] attitude seemed particularly evident when she asked why she could not take on the role of housemaid. One would think that any reasonable person would have understood that to pay someone to be retrained into a new role would have been a huge burden on an employer in financial turmoil. More importantly, as pointed out by [the General Manager] in his evidence, to do so would deprive other hardworking employees of their own hours and income. Even to provide the [employee] with her full time hours in the role that she ordinarily perform (sic) would deprive others who also perform those roles of their income. It seems that the business and most of its staff understood that given the difficult circumstances caused by the pandemic, it was best to share the burden equally. The [employee] did not share that perspective.’

Deputy President Lake concluded it would not be an appropriate exercise of power to make monetary orders in favour of the employee, adding, “to do so would not be fair to either the [employer] or the approximately 268 other staff who agreed to the temporary reduction in hours to share the burden of the pandemic”.

Shanks v Schwartz Family Co [2021] FWC 6332 (12 November 2021)