Y v Hai Di Lao Melbourne Proprietary Limited [2024] FWC 3313
KEY TAKEAWAYS:
A recent unfair dismissal case in the Fair Work Commission (FWC):
- is a reminder for investigators that not every instance of inappropriate conduct in the workplace will rise to the level of misconduct
- reinforces the importance of having clear complaints handling and workplace investigation processes.
The case
A part-time chef working at a Melbourne restaurant on a six-month student visa was verbally dismissed from her job in December 2023.
The same day the chef received a letter from her employer suspending her on pay and advising that allegations of misconduct had been made against her and would be investigated, and that the chef would be given an opportunity to respond.
The allegations included that the chef had abused her co-workers, engaged in unsafe behaviours, had used inappropriate language and defied a direction. The chef denied the allegations claiming the termination of her employment was a retaliatory act to earlier bullying and safety concerns she had raised with her employer.
The investigation
The restaurant’s Los Angeles-based HR manager conducted an investigation, which included a meeting with the chef during which the chef responded, denying the allegations.
The investigation concluded that the allegations were substantiated and that in particular, the employee’s repeated use of offensive language and “breach of workplace safety polices by wandering around with a knife on several occasions …amounted to serious misconduct, justifying her dismissal”.
The chef’s employment was terminated in writing and she subsequently lodged an unfair dismissal claim with the FWC.
FWC decision
The FWC upheld the claim finding that the chef’s dismissal was harsh, unjust and unreasonable.
After reviewing the evidence, the Commissioner found only one of the four allegations against the chef amounted to misconduct, and concluded that on its own this was not a valid reason to terminate her employment.
The FWC noted that workplace context was critical in this case. While accepting that some of the evidence of the chef’s use of language and overall conduct supported the allegations, it did not support a finding of ‘insubordination or serious misconduct justifying dismissal’. The Commissioner stated:
“Context, however, is critical… kitchen hands and chefs talking robustly, perhaps less than appropriately towards each other is hardly controversial. In this context, I do not accept less than appropriate language of itself would necessarily constitute misconduct, let alone be grounds for dismissal … it is perhaps even less controversial for chefs in a kitchen to be seen carrying a knife looking for a grindstone.”
The Commission further found the employee had not been given a written opportunity to rectify her conduct, provided due process or afforded procedural fairness in the investigation process.
The Commission ordered the employer to pay approximately $17,500 in compensation to the employee.
Key learning for investigators
Workplace investigators are often asked to judge whether substantiated conduct potentially amounts to misconduct, for example by breaching an organisation’s policies.
This case serves as an important reminder that not every less than appropriate comment will constitute misconduct and that the context will always be important.
The decision harks back to the words often cited in workplace cases — that it is important to remember that from time to time, employees will make mistakes and that ‘one must apply the standards of men, and not those of angels’.
More information
If you or your team are looking for a refresher in workplace investigations best practice, experts from Q Workplace Solutions – one of Australia’s largest independent specialist workplace investigations firms – is holding an online training workshop on Internal Workplace Investigations: The Fundamentals over two half days on 12 and 13 March. Register here.
Q Workplace Solutions’ team of experienced and legally qualified investigators are trusted by public and private organisations, including ASX-listed companies and government departments, to investigate complex and often highly sensitive allegations of employee wrongdoing. They also undertake reviews of organisations, divisions or units, and provide training, coaching and external advisory support to internal investigators and teams.
