Can you be dismissed for failing to agree with your employer?

The recent case of Kristen Gordon v Sens Catering Group Pty Ltd [2022] FWC 1790, considers the issue of what an employer must not do when an employee asks questions.

The Applicant (Kristen) was a supervisor for the Respondent (Sens Catering), engaged on a casual basis but working full-time hours for a little over 14 months. The Applicant had been utilised to open multiple businesses for the owner (Mr Chen) and had strong relationships with managers and staff.

The Applicant believed that her dismissal was initiated out of personal feelings by Ms Wang, the ex-wife of Mr Chen (director of Respondent), who was brought into the business to assist after the previous general manager (Monique) was dismissed. The Applicant gave the following evidence related to this point:

• She had been sat down at various times by Ms Wang and pushed to resign. The Applicant believed that the reason for these “chats” related to the fact that she kept in contact with Monique.

• She was forced to thoroughly explain to Ms Wang she was going through IVF which restricted some days of work and certain tasks.

• On 12 March 2022, via a manager group chat, the Applicant stated a suggestion that the business needed to hire another staff member for their other shop, which was understaffed, affecting turnover and customers as well as causing great stress. Ms Wang took exception to this and became ‘very irate and shut the conversation down’. Ms Wang then told another manager after smashing her phone on the counter to “FIRE HER RIGHT NOW!! Hire another supervisor I don’t care about the cost, do it now!” [in relation to the Applicant]. The Applicant asked Ms Wang why she was so upset about her message, to which Ms Wang repeatedly stated that the Applicant “didn’t add any smiley faces! There are no emotions!” and she interpreted this as being “unfriendly and rude” due to having no ‘emojis’. Another employee asked to look at the texts and gave evidence that they were “normal messages”.

• Following the events on 12 March, Ms Wang called another staff member and tried to convince that staff member to take the Applicant’s job, telling this staff member she will give $60,000 to do the Applicant’s job. Ms Wang also stated, “don’t worry about that we have wanted to get rid of Kristen for a long time,” and “either way Ms Gordon is gone, so if she says no, they will get a new supervisor anyway.”

The next day, the Applicant was asked to talk to two of the managers who told her they were forced to dismiss her immediately. The explanation was that the business is getting rid of any staff that didn’t agree with the owners. The outcome was that the Applicant agreed to do casual shifts to assist this manager (who was going to Sydney) and prevent short staffing, with her last day of work being 23 March.

The applicant filed an application for unfair dismissal the next day on 14 March.

On 20 March, Ms Wang came and spoke to the Applicant offering her two weeks of paid leave and a position running a new store that they would be part owners of. The Applicant was suspicious and interpreted this offer as to go off and run a mystery café in a job from people that did not know her and in a business that the Respondent had a 5% share of. She asked to see something in writing or if there was to be an interview, but nothing was ever given to her. Conversely, the Respondent submitted that they had a good chat, and the Applicant was happy to keep working with Sens coffee (in the same role). 

Issue(s)

At issue was whether the dismissal was harsh, unjust, or unreasonable?

Decision

The FWC found in favour of the Applicant that she was unfairly dismissed. An Order was made that the Respondent pays to the Applicant the sum of $5,357.80 gross taxed, plus 9.5% superannuation.

Reasoning

Whether the Applicant was dismissed

The FWC was satisfied that the Applicant’s role was terminated by way of the meeting on 13 March with the two managers. The period of casual employment following this (to cover the short staffing) was work through another casual contract until the manger returned from Sydney. The 20 March meeting with Ms Wang affirms the fact dismissal occurred.

Even if the employment relationship remained on foot, the evidence supports a conclusion that the Respondent never offered to rescind the termination, and/or any evidence to suggest an offer to rescind was ever accepted by the Applicant.

Whether the dismissal was harsh, unjust, or unreasonable

The FWC was not satisfied that the Respondent had a valid reason for dismissal based on the Applicant’s conduct or performance. She was merely trying to express a view as to what would be in the best interests of the business regarding staffing across the two venues and did not refuse to follow any lawful and reasonable directions. 

There was no suggestion that the Applicant could have said anything to the managers that would have changed the decision that the Applicant be dismissed. There was no evidence that the Applicant was given a warning about her performance.

It was also likely that the absence of dedicated HR management specialists/expertise had an impact on the procedures followed in effecting the dismissal.

The FWC also considered it relevant that the Applicant was undergoing a fertility program, which meant that the termination had a significant financial impact on her.

Remedy

As there was no evidence of any concerns with the Applicant’s performance, the FWC was inclined to the view that the employment relationship would have been likely to last at least another three months if the Applicant had not been dismissed. Therefore, she was entitled to remuneration she would have been likely to receive.

Key takeaway points

Employers must refrain from “rash” decisions to terminate where employees do raise legitimate queries. Termination on the basis that an Employer only wants “yes” people is not a legitimate grounds for dismissal.

Employers who may not have a fully-fledged HR team should seek external advice.

Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal

Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal

Matthew Synoradzki
Graduate Lawyer
T 03 5226 8542
E msynoradzki@ha.legal