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Queensland café employee unfairly sacked for not using ‘smiley emojis’

The Fair Work Commission (FWC) held that a supervisor at a Queensland coffee franchise was unfairly sacked, after her boss blasted her for not using ‘smiley face emojis’ in a text message over rosters. The employer dismissed the casual restaurant supervisor after she sent the general manager text messages asking for additional staffing on weekends. The general manager interpreted the messages as ‘unfriendly’ because the supervisor ‘didn’t add any smiley faces’. Another employee said that when the general manager received the text, she got so angry she smashed her phone on the counter and jumped up and down while screaming at the cafe manager to ‘fire her right now!’

Based on the information available to the FWC, the Commissioner found it likely that if the supervisor hadn’t been unfairly dismissed, she would have kept her job for at least three more months. So, the Commissioner calculated that the supervisor would have earned roughly $14,300 and subtracted her wages from a short-term casual job and left the compensation at $5350 plus superannuation.

Kristen Gordon v Sens Catering Group Pty Ltd [2022] FWC 1790 (11 July 2022)


Brisbane sushi restaurant fined $355,000 for ‘serious contraventions’

The Fair Work Ombudsman (FWO) has secured a total of $355,000 in penalties in court against the operators of a Brisbane sushi restaurant, after they deliberately underpaid employees and falsified records. The company, which operates a sushi restaurant in Paddington, was fined $305,000 while its sole director and restaurant manager personally received a penalty of $50,000. These penalties are the second highest the FWO has obtained in a Queensland matter and one of the highest nationally.

Despite having previously been formally cautioned by the FWO for underpaying staff, the company deliberately underpaid 34 employees a total of $75,716 between December 2018 and March 2019. The company, (and its director) knowingly provided the FWO false records during an investigation. As a result, the Court was satisfied that eight of the underpayment contraventions amounted to ‘serious contraventions’.

Fair Work Ombudsman v Delishesco Pty Ltd [2022] FedCFamC2G 471 (17 June 2022)


FWC finds sacking of employee for discussing pay with colleagues ‘reasonable’

The Federal Circuit Court has held Primo Foods’ dismissal of a Brisbane quality assurance officer for breaking its confidentiality policy on pay was ‘reasonable’ in light of concerns about staff conflict and privacy and did not breach his workplace rights. Interestingly, the ruling comes as the Albanese government has made comments about banning pay secrecy clauses in contracts.

The Australian Meat Industry Employees Union argued the employee’s termination was unlawful because it was actually in response to a protected bullying complaint. However, Primo Foods said obtaining and discussing confidential salary information was against its code of conduct and warranted termination. This was after also considering the employee’s ‘dishonesty’ about the matter and a previous warning about an unrelated matter. The Commissioner rejected the union’s claims that the bullying complaint played any part in the reasons for dismissal.

Australian Meat Industry Employees Union v Primo Foods Pty Ltd [2022] FedCFamC2G 540 (5 July 2022)


ALP government plans to take bold action against harassment

Earlier this month, the Attorney General attended the Respect@Work Council Forum to recognise and outline the Government’s commitment to implement in full the recommendations of the Respect@Work report. the Attorney General has reiterated the Government’s commitment to imposing a positive duty on employers to prevent sexual harassment in the workplace, via an amendment to the Sex Discrimination Act.
Importantly, he said the Government will also follow Sex Discrimination Commissioner Kate Jenkins’ recommendations to amend the Fair Work Act 2009 (Cth) to explicitly prohibit sexual harassment, enable unions or other organisations to bring sex discrimination legal action on behalf of complainants, and establish cost protections for complainants (amongst other things).

Media Release: Respect@Work Council Forum highlights Government’s commitment to addressing sexual harassment

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