Emily Hudson v RSL Club Yeppoon
[2022] FWC 1975
•26 JULY 2022
| [2022] FWC 1975 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emily Hudson
v
RSL Club Yeppoon
(U2022/4537)
| COMMISSIONER SIMPSON | BRISBANE, 26 JULY 2022 |
Application for an unfair dismissal remedy –Dismissal consistent with the Small Business Code – Application dismissed.
On 19 April 2022, Ms Emily Hudson (Ms Hudson/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against RSL Club Yeppoon (the RSL/the Respondent).
The matter was scheduled for a conciliation before a Commission Conciliator on 20 May 2022, however on 9 May 2022, the Respondent wrote to the Commission to advise that they would not take part in any conciliation with Ms Hudson. The matter was then allocated to me for determination.
The matter was listed for a Directions Hearing on 27 May 2022 and directions were issued for the filing of material. The matter was subsequently listed for hearing on 8 July 2022 at which, both parties represented themselves.
On 3 June 2022, the Respondent filed a Form F3 Employer response form objecting to the application on the basis that it was a small business and had complied with the Small Business Fair Dismissal Code (SBFDC).
BACKGROUND
The Respondent is a Return Services League of Australia Club registered with the Australian Charities and Non-for-profit Commission as a non-for-profit community club run mostly by volunteers. The Applicant was employed as a Casual Cook from 2019 until the termination of her employment on 28 March 2022.
The Respondent submitted that the reason for the termination of the Applicant’s employment was serious misconduct following an incident where she left the premises before her scheduled finish time resulting in loss of profit and potential damage being done to the Respondent’s reputation.
LEGISLATION
Small Business Fair Dismissal Code
It was not disputed by Ms Hudson that the Respondent was a small business with less than 15 employees at the time of Ms Hudson’s dismissal. I accept that the Respondent is a small business employer.
In relation to summary dismissal, the SBFDC, provides as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
If it is determined that the dismissal complied with the SBFDC the application must be dismissed. If it is determined that the dismissal did not comply with the Code, it becomes necessary to determine whether the dismissal was unfair in accordance with section 387.
Section 387 of the Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
SUBMISSIONS AND EVIDENCE
On 13 June 2022, the Applicant filed submissions, a witness statement of her own and statements from the following witnesses:
Mr Daryl Ryan (Bar Staff and personal friend of the Applicant)
Mr Jason Watkins (Owner of the Waterfront Seafood Bar and Grill Yeppoon, Applicant’s current employer)
Ms Penelope McConnell (Parent of the Applicant)
The Respondent relied solely on its Form F3 and a completed SBFDC checklist.
The Applicant said that during her employment with the RSL, she experienced increasing pressures relating to the quantity of meals that she was required to attend to. She stated that she believed that the increase in clientele had been in some part because of her service.
The Applicant said she was originally employed to work Friday, and Saturday evenings and she should expect to cook between six and twenty-five meals each night. The Applicant said over the course of her time there this increased to Thursday (Rotary dinner), Friday, Saturday, and Sunday evenings. The Applicant said she would prepare for and cook between twenty and sixty meals with only one kitchen hand for assistance. The Applicant said she was questioned by the Board President Bill Tahu about the number of extra hours she was working. The Applicant said she was still the only chef and was expected to do all the food preparation for each day. She said she tried to prepare as much as she could on Thursdays and Fridays while she was already at the Club but often sold out and had to prepare more food to accommodate the number of customers they were now serving.
The Applicant stated that at times, board members of the Respondent would use demeaning language when referring to herself and other female staff in referring to them as ‘madam’ in a negative context. She also stated that at times, Ms June Tahu (Committee Member) would comment to customers regarding the Applicant that “she’s not a chef, she’s just a cook”.
The Applicant stated that she felt the Respondent had unrealistic expectations relating to the quantity of meals she was required to prepare and serve. Ms Hudson also stated that she had issues relating to how the service was run, specifically the way orders had been taken.
The Applicant said the meals she was preparing each night had increased dramatically but there was an expectation by Ms Tahu that she could serve each table their meals within twenty minutes. The Applicant said Ms Tahu would refer to a local hotel which has more than one chef and several kitchen hands and their ability to serve meals within twenty minutes. The Applicant said she tried to explain that this was not possible with one chef and one kitchen hand in a small, ill-equipped kitchen.
The Applicant said when Ms Tahu took orders from the diners, she would write them on dockets and then place the dockets in a clip in the kitchen. The Applicant said she would assume that Ms Tahu would put them in the order that she had received them so that would be the order in which the Applicant would prepare them, however on more than one occasion Ms Tahu came into the kitchen and stood in the place where the Applicant needed to be to complete her tasks and would rearrange the order of the dockets to prioritise customers that she felt were more important.
The Applicant said that on one occasion she had completed cooking and was preparing to plate up an order for a table of ten (10), and Ms Tahu came into the kitchen and said, “This order is for the Directors, it should have been done first”. The Applicant said Ms Tahu made her stop serving the table she had completed all but putting the food onto plates, and start the order for the Directors.
The Applicant said on very busy nights when they had a queue of people out the door, Ms Tahu would keep seating people in the dining area and taking orders. The Applicant said Ms Tahu would take orders from several tables then bring all the dockets into the Applicant at once. The Applicant said they were all placed on clips by Ms Tahu so the Applicant had no way of knowing who had ordered first or last. The Applicant said she would then start chastising the Applicant because people were waiting too long.
The Applicant said prawns featured on the menu, and they would buy them frozen in bulk amounts. The Applicant said as part of the meal preparation, she would defrost the number of prawns she estimated would be needed that day. The Applicant said if they sold all of the defrosted prawns, she would let Ms Tahu know and advise her not to take any more orders that required prawns.
The Applicant said that despite this Ms Tahu kept on taking orders and when the Applicant said they cannot serve any more prawns tonight Ms Tahu argued with her that there were still frozen prawns and that she should use them. The Applicant said she refused as firstly fast defrosting seafood is something that she was taught never to do, and secondly the freezer is located in the dining area and if the Applicant was dining in the RSL, she would not like to witness the chef using frozen food for her meal.
19 March Incident
The Applicant said Marie Koia (Ms Tahu’s sister) was her kitchen hand. The Applicant said Ms Koia has some issues with short term memory, but the Applicant always found her to be a very capable kitchen hand. The Applicant said to her knowledge Ms Koia is not in a paid position but is a volunteer. The Applicant said one of Ms Koia’s responsibilities is to tidy the bathrooms at the end of the day. On this particular night, Ms Koia was in conversation with a lady who was going to be coming into the kitchen as an extra hand. The Applicant said she decided to tidy the bathrooms for Ms Koia so that the two ladies could have a talk. The Applicant said she bent over a rubbish bin when Ms Tahu came up behind her and said “What are you doing that for, this is what we pay Marie to do”.
The Applicant said she was only trying to help and that she was already on her own time. The Applicant said Ms Tahu then said, “What was going on in the kitchen tonight?” to which the Applicant said she replied “What do you mean?” The Applicant said Ms Tahu replied, “All the banging of the pots and pans and slamming the oven door”. The Applicant said she responded, “It’s a commercial kitchen and we had a lot of customers (40 plus meals) I had two ladies in the kitchen and I needed to give them directions in order to get the meals out”. The Applicant said Ms Tahu responded, “I couldn’t hear what people were saying!” The Applicant claimed she then said “If you don’t like the way I run the kitchen then I can just leave”.
The Applicant said she then walked past her and went down the hallway to try to diffuse the situation. The Applicant said Ms Tahu yelled after her “You can’t walk away from me when I’m talking to you!” The Applicant said the barman Darryl Ryan said “June, you can’t yell at your employees like that” to which she replied “Mind your own business. This has nothing to do with you. You don’t even know what is going on!”
The Applicant said she went back to the kitchen, emptied the dishwasher and went home. The Applicant said following this incident, she wrote a letter of complaint regarding Mr and Ms Tahu’s behaviour to the Board. The Applicant said she passed the letter on to the Secretary, Sharon King. The Applicant said she asked that the letter be presented to the Board and if she could attend the next meeting so it could be discussed, and a solution found. The Applicant said she had no idea if the letter was or was not presented to the Board at their meeting held on Monday 28 March 2022 as she was not notified of the meeting, and she has never received any feedback about the content of the letter.
Frozen Prawns
The Applicant claimed that Ms Tahu was in charge of taking orders from customers coming into the dining room. The Applicant described another incident between herself and Ms Tahu where she said that despite Ms Tahu being told that they had ran out of prawns she continued taking orders for meals which included prawns. The Applicant said Ms Tahu insisted that they had prawns in the freezer and that the Applicant should have served them anyway.
The Applicant said she tried to explain again that they cannot serve frozen prawns or fast thaw them. The Applicant said Ms Tahu didn’t seem to want to hear her. The Applicant said she went back to the kitchen feeling distressed, upset, angry and confused.
The Applicant said after she thought about what had just occurred, she informed the other staff members that she was going home and that there would not be any meals served that night. One barmaid and the Board members sister both left with her. The Applicant said she did not ask nor expect them to.
The 25 March Incident
The Applicant said that at 11.30am on 25 March she picked up the meat from the butcher. The Applicant said Ms Koia, Kerri Smith (bar staff) and herself began the preparation for the night’s meals.
The Applicant said it was Ms Tahu who informed the bar staff who was booked in for the night, not herself. The Applicant said Ms Tahu then said to her “By the way we need to have a chat later” to which she said she relied “About what?” and Ms Tahu said, “I can’t talk right now, come on mate” and left the premises with Ms Koia.
The Applicant said that left her on edge and wondering what this ‘chat’ could be about. The Applicant said she became very anxious particularly after what had happened in the bathroom the week before.
The Applicant said she rang Board member and Bar Manager Darryl Thompson and asked if he could be an independent witness at the ‘chat’. The Applicant said at 5.15pm Ms Tahu and Ms Koia returned and Mr Thompson arrived shortly after. The Applicant said she was in the kitchen working. The Applicant said she walked out of the kitchen toward the cool room, and encountered Ms Tahu who said “Thommo is here Em, okay to meet in the office?”
The Applicant said she went to the office and Ms Tahu sat up on an elevated stool while Mr Thompson and herself both sat lower down on chairs which made her feel intimidated from the start. The Applicant said the first item Ms Tahu wanted to discuss was her sister Ms Koia. The Applicant said Ms Tahu said, “I have been having Marie assessed so you need to seriously keep an eye on her because if she’s not fit to work you need to tell me straight away”.
The Applicant said there had been discussion about Ms Koia in the past and the Applicant was very uncomfortable about being put into this situation. The Applicant said she regarded Ms Koia as a friend, she has stayed at her home and has gone on family outings with them. The Applicant said she did not want to take any part in having her declared incompetent, and she did not see that as any part of her role at the Club.
The Applicant said she answered “Marie is quite good at her job and if you take this away from her you will take away her purpose in life”. The Applicant said then there was continued discussion between Ms Tahu and Mr Thompson about Ms Koia.
The Applicant said she was then asked by Ms Tahu if the Applicant thought she was capable of doing the ordering for the restaurant. The Applicant said she stated that had been doing that since she started. The Applicant then said Ms Tahu reiterated “Do you think you are capable of doing it?” To which the Applicant said she replied “Yes”. The Applicant said then the issue of the frozen prawns came up again, and she explained that the average amount of meals requiring prawns is ten so that’s how she measures how many to defrost during preparation.
The Applicant said that Ms Tahu kept insisting that if the RSL have prawns in the freezer
and customers wanted them, they should be providing them. The Applicant said then it went round in circles again, the Applicant trying to explain why they cannot do it and Ms Tahu insisting that they could.
The Applicant said she then said “I don’t think that I am willing to discuss this anymore. You know what if you don’t like the way I perform just sack me”. The Applicant said she then got up to walk out and Ms Tahu said to Mr Thompson “See Thommo, this is what I’m talking about”. The Applicant said she was then aware that she was under scrutiny. The Applicant said when she returned to the kitchen, she was distressed, upset, angry and confused. The Applicant said she thought about what the rest of service that night would be like. The Applicant said she went outside for a short break and had a think about what had just occurred.
The Applicant said she was angry about the prawn issue and offended by the questioning of whether she was capable of doing the ordering or not. The Applicant said she was particularly upset about Ms Koia and her situation. The Applicant said she went back into the kitchen and put all of the food back into the freezer. The Applicant said she packed up all of the equipment that she had been using in the kitchen that belonged to her and took that to her car.
The Applicant said she returned to the deck side of the building and said to Mr Thompson “I’m leaving, I can’t do this anymore”. The Applicant said she then went to the bar side and told Graham Cathcart, a committee member “I’m leaving, there won’t be any meals tonight”. The Applicant said there was no actual response from either man. The Applicant said she then went back into the kitchen to tell Ms Koia that she was leaving.
The Applicant said she walked back past Ms Tahu who was still taking orders. The Applicant said that apparently the two Committee members had not told Ms Tahu that the Applicant was leaving. The Applicant said that she went to the bar to Darryl Ryan and Kerri Smith (bar staff) and said “I’m leaving” to which Ms Smith replied “I will be there in a minute”.
The Applicant said she went to her car and realised that she had not completed a time sheet. The Applicant said she went back into the building via the back door. The Applicant said the Deputy President Ian Cavanough’s office is at the back door, and he asked the Applicant “What’s going on?” and the Applicant said she replied “I’m leaving because she (Ms Tahu) is a bully and I can’t be here anymore” The Applicant said Mr Cavanough then said “Okay, can’t we have a discussion about it?” to which the Applicant said she replied, “I am over it, I have to go”. The Applicant said that by this time she was extremely anxious and not in the right frame of mind to have a discussion.
The Applicant said she got into her car and Ms Smith was already in there then Ms Koia came out of the back door and said, “I’m coming with you” and got in her car. The Applicant claimed she said, “You can’t do that” and she answered “I am an adult. I can do what I like.”
The Applicant said at 7.30pm she rang Mr Cavanough to try to explain what had happened, and told him everything that had occurred that day. The Applicant claimed Mr Cavanough said “I wasn’t aware of what had happened in the office. I will call you back tomorrow”.
The Termination
The Applicant said that the following day, Mr Cavanough contacted her and enquired about her wellbeing. The Applicant said that she replied that she was in the same state she had been the previous night and informed she would not return to the workplace whilst Ms Tahu was on the premises.
On Monday 28 March 2022, Ms Hudson received an email informing her that her employment had been terminated effective immediately for serious misconduct. The Termination letter reads:
“Dear Emily
Termination of Your Employment
I am writing to you about the termination of your employment with Yeppoon RSL.
The Yeppoon RSL Board has decided to terminate your employment on the grounds of serious misconduct. Your employment will end immediately.
You have been paid for all time worked to date.
Your allegations of bullying by the President Bill Tahu and Board Member June Tahu and your request to meet with the Board have been noted.
Consequently, Deputy President Ian Cavanough will arrange a meeting with you and the other Board members regarding these allegations.
Please phone Mr. Cavanough on [phone number redacted] to arrange a suitable date and time.
You may seek information from the Fair Work Ombudsman. You can call them on 131394 or visit their website at type="1">
The Applicant was terminated from her casual job effective from 28 March and started a fulltime job on Thursday 31 March 2022.
CONSIDERATION
Whether the Respondent complied with SBFDC
As is apparent from the terms of the SBFDC, it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. It is not necessary to determine whether the misconduct in fact occurred or that the belief held by the employer was correct.[1]
There is no dispute that during the course of the Applicant’s shift on 25 March 2022, she made a deliberate decision to leave the premises in the early evening while the Respondent was in the process of taking orders for meals from members and guests. The Applicant understood the consequences of her actions. The Respondent submitted that this meant that meals had to be refunded and could not be supplied which resulted in loss of profit and potential damage being done to the Respondent’s reputation.
The dismissal will have been consistent with the Code if the evidence establishes the Respondent’s reasonable belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. I am satisfied that the Respondent held the belief as a matter of fact that the Applicant engaged in the conduct and that the Applicant’s conduct was serious, and that the conduct justified immediate dismissal.
Having reached those conclusions, it is then necessary to consider whether there are reasonable grounds for the Respondent to hold the belief. On the material before me, I am satisfied that the act of the Applicant in consciously deciding not to remain at work and consciously deciding not to fulfil her contractual obligation to prepare meals for members and guests of the RSL at the very point when members had already paid for meals and were sitting and waiting to be served was, in the context of the evidence before me, that there are reasonable grounds for the Respondent to hold that belief that the Applicant had engaged in serious misconduct justifying summary dismissal.
I accept that the Applicant was upset about the exchange that had occurred between Ms Tahu and herself during the meeting that commenced at approximately 5.15pm on the 25 March 2022, however the evidence concerning the nature of the exchange does not provide a proper basis for the Applicant to decide to simply walk out of the workplace.
It is apparent that there had been some deterioration in the relationship between the Applicant and Mr and Ms Tahu, and the Applicant claimed in her unfair dismissal application that earlier conduct towards her, and the conduct in the meeting amounted to bullying. Even on her own evidence I am not satisfied that the alleged conduct was such that it would justify the Applicant’s actions, and it is not clear that the Applicant had been bullied. However even if it were the case, that the conduct of Mr and Ms Tahu had been inappropriate, it did not justify the Applicant’s actions. There are other ways such issues can be addressed.
Serious misconduct as defined in Fair Work Regulation 1.07 includes conduct that is wilful and deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, and also includes conduct that causes series and imminent risk to the reputation, viability or profitability of the employer’s business.
The consequences of the Applicant’s actions were serious for the Respondent because her actions were without notice and the Respondent had no way to find an alternative way to serve members and guests. I accept the Respondent’s submission that the consequences of what occurred had the potential to cause reputational damage to the Respondent. The Applicant’s evidence included that she had stated to a representative of the Respondent that she would not return whilst Ms Tahu was on the premises.
Every case will turn on its own facts, however the other events referred to by the Applicant that she has relied on to defend her decision to simply leave the workplace at the particular time when she did, are not sufficient to ameliorate her conscious decision to do so such that it would not fall within the meaning of serious misconduct because of those events. That full context including that she was the only chef working at the Respondent, and that her decision would obviously cause the Respondent to be unable to serve meals supports the conclusion that the Respondent’s belief that the conduct was serious misconduct was reasonable.
CONCLUSION
For those reasons, I am satisfied that the dismissal was consistent with SBFDC and therefore the application must be dismissed.
I note that during the hearing it became clear that the Applicant had obtained other employment within the space of two days after her termination and was continuing in that employment as at the time of the hearing, and further the Applicant was receiving an income at least the equivalent of what she received at the Respondent in that new employment. Given that evidence it seems that even if I were to be wrong about the Applicant’s dismissal being consistent with the SBFDC, and that her dismissal was unfair, given she did not seek reinstatement the maximum likely remedy that would have been available would most likely have been no more than two days’ pay.
COMMISSIONERAppearances:
Ms Emily Hudson on her own behalf.
Mr Ian Cavanough and Mr Bill Tahu for the Respondent.
Hearing details:
2022
Brisbane (by Telephone)
8 July[1] Hart v Forex 1 Pty Ltd ATF Trading Rental Trust[2018] FWC 942.
Printed by authority of the Commonwealth Government Printer
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