Brisbane Restaurant pays heavy price for General Protections breach

An employee, who’s service fell shy of three months employment, has been awarded a whopping payout, amounting to tens of thousands of dollars, for her dismissal which was found to breach the general protections provisions of the Fair Work Act 2009 (Cth). The manner of the dismissal was held to be particularly humiliating, given her employer’s suggestion she had been ungrateful for having been employed “notwithstanding her disability”.

The worker was scheduled to commence employment on a part-time basis on 27 November 2017, having been engaged to perform primarily front-of-house hospitality duties. She disclosed before commencing employment that she suffered from chronic regional pain syndrome and fibromyalgia (a condition typically characterised by widespread muscle and joint pain and fatigue) both of which were classed as disabilities. Despite having a number of “coffee meetings” with the owners of the business, the employee did not work her first shift until 18 December 2017, and for this work she was required to report to a site the employer was refurbishing and was directed to undertake building and construction work that she was not qualified to perform. The employee never ended up performing any front-of-house hospitality duties for the employer.

During the very brief period the worker was employed, her job network provider had reason to twice question the employer over the employee’s pay and, another time, queried the fact that taxation and superannuation were not being contributed on the employee’s behalf. The worker also raised her own concerns regarding privacy (in one instance, her payslip was forwarded to another worker) and inconsistencies in the amounts and methods of payments owing to her. The employee raised additional workplace health and safety concerns regarding the refurbishment site she ended up working at, including unqualified workers being directed to work with live electrical wiring and not having a first aid kit or trained person available onsite. The employee further claimed she was directed to attend work when she was subject to a medical certificate that certified her unfit for work.  

The employee’s dismissal was effected in February 2018, following a sequence of events which saw the worker initially require two days off on 13 and 14 February due to a wrist injury which was sustained at work. The employee felt pressured to return to work against her medical practitioner’s advice, and this caused her to exacerbate a pre-existing injury to her left shoulder and upper back. When the employee began to struggle with her duties, one of the owners began to harass her in front of her colleagues and openly discussed her medical issues. The worker did not attend work the following Monday, 19 February 2018, because she had an appointment with a neurologist for which she had been pre-approved for leave. On Tuesday, 20 February 2018, the employee received an unexpected email terminating her employment. The email expressly cited among the reasons for terminating the employment her complaint about receiving payments in cash as opposed to a direct transfer of funds and lamented the employee’s absences from the workplace due to her medical conditions. The worker was not provided any form of notice and did not receive her entitlements.

In considering the case, Judge Salvatore Vasta of the Federal Circuit Court found that the employer breached the s340(1)(a)(ii) prohibition on taking adverse action against an employee because they have exercised a workplace right when it dismissed her for making a complaint or enquiry about her employment. Judge Vasta also observed that the “uncontested allegation” that she had been ungrateful to be employed despite having a disability was “most unkind” and would have been “extremely hurtful to the employee”.

Judge Vasta awarded the employee $2,970.25 for underpayment of wages and a further $12,500 for hurt and humiliation. In addition, he fined the employers $113,400 in penalties which are to be split equally between the employee and the Commonwealth, netting the worker in excess of $70,000 compensation.

Bristow v Sonny’s Restaurant & Bar & Ors [2019] FCCA 1639 (27 May 2019)