Summary
A barista working as a casual at a small coffee shop in Brisbane was summarily dismissed and was told that her services were no longer needed. She claimed that her sacking was due to her making complaint with the Fair Work Ombudsman about underpayment or delayed payment of salaries. She also claimed to have been bullied by her co-workers and that a new barista was hired while she was on holiday. The employer claimed that the sacked barista staged a “sit-in” and refused to leave the café even after her shift was finished.
A sit-in at the workplace to protest reduced work hours, not a legal course of action
An espresso bar hired a barista on Valentine’s Day 2020 as a casual. The espresso bar was small and employed only 3-4 casual staff members on weekdays and 5-6 staff on weekends. Only 2 baristas worked per shift. The barista made coffee, served customers and accomplished the general opening and closing procedures. On weekdays, she started work at 5:30 am and worked until 1:00 pm.
Delayed payment of wages
In December 2020, the staff noticed that their pay was delayed. The barista then checked her payslips and found that her hourly rate on weekdays and weekends was incorrect. She also noticed that she was not given unpaid breaks on days when she worked from 5:30 am until 2:00 pm. The owner clarified the issue with the Fair Work Ombudsman and with his accountant and began paying for 20-minute breaks if the barista worked longer than six hours.
Duties beyond paygrade
Some of the casual staff members who had been hired resigned after having arguments with the barista. The barista began to feel that she was being made to perform duties of a general manager and so, she asked the bar to increase her hourly rate as befits a supervisor or manager. The owner of the espresso bar refused to increase the hourly wage rate of the barista. From that time on, the barista only did the regular work of a casual employee and refused to do the work of a supervisor or a manager as those were beyond her pay grade.
Reduced work hours
The barista asked to take one week off. The management explained that if the barista took one week off, the espresso bar would have to hire another barista in her absence, and when she came back, since there would be three baristas, their work hours would be reduced so that all three baristas could work. When the barista came back to work, the roster was made to fit each barista’s availability. Her work hours were reduced, and she only worked from 5:30 am until 9:30 am to accommodate the third barista.
Sit-in at the espresso bar
In the month of October 2021, the barista started sitting in the espresso bar even after she had finished her shift at 9:30 am. She insisted that she would sit in the bar until 1:00 pm and be paid the hours she sat in the espresso bar. Even on days that she was not rostered, she still stayed in the espresso bar. She yelled at the staff saying that if they told her to leave, they would get in trouble for bullying her. The espresso bar informed her that there will not be rostered the following week.
Threats of further sit-ins, demand for increased work hours
At the end of one week of sitting inside the espresso bar without being rostered, the barista then asked the espresso bar to reduce the work hours of the two other baristas to increase hers to her previous work hours. She threatened that she will sit in the espresso bar during her work hours until she was given the work hours that were rightfully hers. She also threatened the owner of the espresso bar that she would go to the police.
Involvement of the police
The owner of the espresso bar told the barista that they should both meet at the police station the next day. The owner appeared at the police station but the barista did not. The police advised the owner that he could sack casual staff and if the barista insists on sitting in the espresso bar, then it would be trespass.
Summary dismissal of the barista
Based on this advice, the espresso bar sent the barista a message on 18 October 2021 that her service was no longer required.
Insisted on working despite dismissal
Two days later, the barista showed up for work on 20 and 21 October 2021. A staff member informed the espresso bar owner that the barista insisted on working. The barista then sat in the bar until the owner called the police, who asked the barista to leave.
Application for unfair dismissal
The barista then sought a more favourable Separation Certificate that did not include the word “misconduct”, as the reason for her separation was that that she may obtain benefits from Centrelink. On October 28, 2021 the barista filed an application for unfair dismissal at the Fair Work Commission.
Was the barista’s dismissal unfair, unreasonable or harsh?
Espresso bar failed to pay wages on time, caused stress
The FWC found that the espresso bar failed to pay wages on time as he was required by law. When the espresso bar hired a third barista, it was within its lawful rights to do so. Even when the work hours of the barista were subsequently reduced because a third barista had been hired, this had not been done for unlawful reasons or to as a reprisal against the barista.
Barista’s response to reduced work hours was eccentric and irrational
The barista’s response to her reduced work hours were eccentric and irrational. She threatened the staff and the owner of the espresso bar and caused distress to the staff. The barista was not entitled to continue to work the hours she wanted to work. She should have brought legal action to contest the reduction of her work hours, but she was not entitled to remain in the workplace, disobeying lawful instructions of her employer to leave, and exhibiting aggressive behaviour.
Sufficient reason for dismissal
These actions of the barista were sufficiently serious to justify immediate dismissal. The espresso bar staff members and owner did not know what to do. They had no resources or authority to prevent the barista from continuing to work even after her rostered hours. And when the barista showed up to work despite having been dismissed, it only further justified the beliefs of the espresso bar owner that the barista would continue with her behaviour if not stopped by the police.
The application for unfair dismissal was dismissed.
Source:
Mylie Kirsten Woodland v One4All Holdings Pty Ltd t/a Espresso Garage Southbank [2022] FWC 1088 (9 May 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2022/1088.html
