Worker who staged sit-in not unfairly dismissed

A barista who continued to show up for work after being dismissed has failed to convince the Fair Work Commission (FWC) that her dismissal was unfair despite the FWC describing the café owner as an “incompetent employer”.

The barista was employed by a Brisbane café from February 2020 until her dismissal on 18 October 2021.  She told the FWC her employer dismissed her due to a loss of business during the COVID-19 pandemic.  The barista also alleged her dismissal came after she had raised issues with the café about unpaid wages and delays in her wages being paid.

The FWC heard that the barista went on a holiday in the weeks leading up to her dismissal.  Before the barista took the time off, she was working 5.30 am – 1.00 pm on Monday to Friday, and 5.30 am – 9.30 am on Saturdays.  After the barista returned from the holiday, she was not rostered for as many hours. 

The barista was rostered to finish work at 9.30 am on 13 October 2021, but remained at the café beyond that time.  She told the FWC she stayed back beyond her rostered finish time on a few more occasions.  The barista texted the café owner on 18 October 2021 and indicated that she would work her ‘normal’ shift the following Wednesday. The FWC understood this to mean the hours of 5.30 am to 1.00 pm with the barista staging a “sit-in” beyond the 9.30 am finish time.  The café owner later told the barista by text message on 18 October 2021 that there would be no roster for her.  The next day the owner told the barista that if she continued to turn up to the café without a roster, it would be trespass.

The FWC heard that despite being dismissed on 18 October, the barista attended the café on 20 and 21 October 2021 and worked.  The café owner was not in attendance at the café on those occasions but on the second occasion, a worker sent a text message to the owner to alert him to the situation.

While the barista threatened to involve the police over her unpaid wages concerns, it was the café owner who ultimately contacted the police.  It took the attendance of the police at the café on 21 October for the barista to agree to remove herself from the café. 

FWC outcome

Commissioner Hunt of the FWC described the behaviour of the barista in working for two days after her dismissal as “eccentric, irrational” and “aggressive conduct”.  The Commissioner found that the barista’s conduct leading up to the dismissal on 18 October 2021 was sufficiently serious to justify immediate dismissal.  The barista was “persistently and determinedly” refusing the café owner’s instructions not to work beyond her rostered finishing time and making her co-workers feel uncomfortable.

The Commissioner found the dismissal was consistent with the Small Business Fair Dismissal Code in that the employer believed on reasonable grounds that the barista’s conduct was sufficiently serious to justify dismissal:

I find that the Respondent’s belief was based on reasonable grounds. [The café owner] was at a loss to remove [the barista] from the café after her short morning shifts. She was insisting upon staying. I consider that [the café owner] reasonably believed that the only way he could prevent [the barista] from working beyond her rostered hours was to dismiss her because she was refusing to, at times, take his call, and at other times, arguing over text message and insisting she would work her usual hours.

[The barista’s] post-dismissal conduct in returning to work at the café was extraordinary. In my view it reinforces exactly why [the café owner] had to take the action he did on 18 October 2021. Of course, he had no way of knowing, on 18 October 2021, that [the barista] would return on two occasions and perform work.

The employer did not escape the criticism of the FWC with the Commissioner finding the café owner appeared to be an “incompetent employer” who failed to pay the barista on time.  The barista suffered “enormous stress” due to the late payment of her wages and the Commissioner said the owner was “hopeless” at meeting his obligation to pay wages as required by law.