Employee Sacked by Noodle Restaurant After Questioning Pay Rate Wins Unfair Dismissal Case

A casual worker sacked by an Adelaide noodle restaurant after her husband questioned her pay rate has been awarded 12 weeks’ wages with the Fair Work Commission (FWC) finding she was unfairly dismissed.

What happened

The worker, Ms Lin, was employed for just over 16 months working regular shifts.  She told the Commission she had commenced on a rate of $10 per hour which had risen to $13 later in the employment.  The wages were paid in cash and there were no time and wages records to verify what was paid to Ms Lin.

On 24 November 2018, her husband attended the workplace and spoke to the owner about his wife’s pay rate.  He told the owner he did not believe the business was paying his wife correctly and fairly by the Award. 

Three days later, Ms Lin was told by the owner, Mr Liu, that her salary was higher than his and if she wanted a higher paying job, she should go find a big business.  Mr Liu said he was not happy about the worker’s husband coming in to see him and talking about how she should be paid correctly.  Mr Liu gave the worker her pay and told her not to come back to work.

In the Fair Work Commission, the business argued Ms Lin was excluded from unfair dismissal protection because she had not worked regularly and systematically as a casual employee.  In the alternative, the business argued Ms Lin was dismissed over concerns about poor customer service.

What the FWC found

The FWC found Ms Lin was protected from unfair dismissal, having worked regularly during the employment and had a reasonable expectation of ongoing employment. 

While the FWC accepted there were some legitimate performance concerns with respect to Ms Lin, they did not form a valid reason for her dismissal.  Commissioner Hampton found the approach made by Ms Lin’s husband, combined with Mr Liu’s view about their family arrangements (i.e. that the husband should go out and get a job and that Ms Lin should should work for a large business if she wanted to be paid more money) formed the actual reasons for Ms Lin’s dismissal.

Commissioner Hampton ordered the restaurant to pay Ms Lin 12 weeks’ wages at the correct Award rate for her classification for her unfair dismissal.

Lin v Yujie Liu T/A Jack’s Noodle [2019] FWC 1822