FWC pans double dismissal by Cabaret Club

The Fair Work Commission has handsomely compensated two former employees of a Gold Coast cabaret venue after they were sacked for breaching confidentiality by discussing a co-worker’s new salary rate over social media, following near-identical termination processes labelled deficient in the “extreme”.

Both the Box Office Attendant and Bartender had nearly two and a half years’ service when they were summarily dismissed on 3 February 2023, after having been “ambushed” by multiple senior managers and accused of “distributing confidential personal financial information of another employee”. During each dismissal meeting, the employees were told their behaviour in disclosing “confidential financial information” constituted a “criminal offence”, while the Bartender was deliberately misled by the club’s CEO as to how the employer had become aware the employees had shared the co-worker’s salary rate over social media.

On examination, Commissioner Crawford established the employer only uncovered the offending message after having accessed a former employee’s private social media accounts, “without her consent”, via the work mobile she had returned on her departure. Commissioner Crawford assessed the employer’s actions in this regard to be “far more serious than that of either [the Box Office Attendant] or [the Bartender]” and determined management had more likely, “taken extreme offence at what [the Bartender] was saying privately about [a manager] and about some [club] promotions”.

Despite confirming both employees had likely breached the confidentiality terms of their employment contracts when the private disclosures regarding their co-worker’s new salary rate were made, Commissioner Crawford identified their actions were not sinister, given the employees concerned “were all friends”. The Commissioner further noted that neither employee understood the salary rate constituted confidential information that they were not entitled to discuss (given that it was originally freely disclosed during an out-of-hours dinner between friends) and as they were “not using the information to try and gain an advantage or cause detriment to [the employer]”; the behaviour amounted to “simply discussing work issues with a friend”. Noting that the “pay secrecy provisions recently inserted into the FW Act” provided a “relevant background matter” when assessing whether the offending disclosures constituted a valid reason for dismissal, Commissioner Crawford was unable to conclude the conduct in discussing their co-worker’s salary rate to be “sufficiently serious” to warrant dismissal of the Box Office Attendant or the Bartender.

In determining there was no valid reason pertaining to the termination of either worker’s employment, Commissioner Crawford observed:

“The way [the employer’s] representatives presented the severity of what had occurred during the meetings on 3 February 2023 made it seem like [the Box Office Attendant] and [the Bartender] had broken into [the employer’s] equivalent to a “Watergate complex”, stolen key intellectual property secrets and posted them on WikiLeaks. However, all they had done was privately discuss the salary rate of a friend, and the salary rate was quite unremarkable.”

Commissioner Crawford was also scathing of the dismissal process, finding both employees were “ambushed” in being summoned to meetings they were given no notice of, nor indication the discussion related to a disciplinary matter. This also meant there was no opportunity afforded for either worker to request a support person, obtain advice or respond to the concerns levelled against them. In reference to the Bartender specifically, the Commissioner commented, “All of this constitutes a terrible way to treat a young employee”.

Finding both dismissals to have been unfair, Commissioner Crawford turned to consider remedy, immediately determining reinstatement, which was not sought in either instance, to be inappropriate. After weighing all necessary factors, the Box Office Attendant was awarded compensation of $18,525.00 (gross), plus $2,037.75 superannuation, while the Bartender received $12,855.39 (gross), plus $1,414.09 superannuation.

Louie and Another v Project 88 TPF Pty Ltd TA Pink Flamingo Spiegelclub [2023] FWC 2630 (11 October 2023)