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UpdatesMay 31, 2019

Employee with cancer was unfairly dismissed: FWC

A wholefood café owner has been lambasted by the Fair Work Commission (FWC) for her summary dismissal of a chef who couldn’t attend work after he received cancer treatment.

A wholefood café owner has been lambasted by the Fair Work Commission (FWC) for her summary dismissal of a chef who couldn’t attend work after he received cancer treatment.

Gabrielle Levette, the owner of Urban Orchard Food in Sydney’s Circular Quay, had granted the chef four days’ sick leave when he was admitted to hospital with severe stomach pain related to his pancreatic cancer.

On the fourth day, a Friday morning, the employee was discharged from hospital. He alleges he called Ms Levette and told her he would not be returning to work until Monday.

Ms Levette disputed this conversation took place. She said she texted the employee that morning to ascertain when he would be returning to work and she received no response.

She then called the employee two days later to advise him she was dismissing him from his employment, as he had abandoned his position.

In that conversation she told the employee he was unreliable and that she had offered his job to another cook.

An attempt to ‘construct support’ for a summary dismissal

Ms Levette maintained she had complied with the Small Business Fair Dismissal (SBFD) Code because she had reasonable grounds to believe the employee had been fraudulently completing his timesheets on an ongoing basis.

She claimed that she had given the chef a verbal warning for closing the store half an hour early on one occasion and had repeatedly verbally warned him for various performance and conduct issues which included:

However, FWC Commissioner Ian Cambridge rejected Ms Levette’s assertions and found that the chef had been unfairly dismissed.

“In its approach to the defence of the unfair dismissal claim, the employer has attempted to rely upon both parts of the SBFD Code which respectively relate to summary dismissal and other dismissal. This is a somewhat unusual approach as any dismissal must logically fall within the SBFD Code to be either a summary dismissal or an other dismissal, and could not conceivably be both”, he said.

“It is difficult to comprehend how, in circumstances where the employer acknowledged that the dismissal of [the employee] was summary in nature, that is, it was implemented with immediate effect via telephone call, and there was no notice or payment in lieu of notice provided to [the employee], that such dismissal could somehow be construed to be appropriately assessed against the other dismissal provisions of the SBFD Code.

“In simple terms, the other dismissal provisions of the SBFD Code do not represent a fall-back position that might be used to buttress a summary dismissal.

“The employer has attempted to construct support for its summary dismissal of [the employee] with the use of [the employee’s] early closing of the shop on 13 October so as to translate into reasonable grounds for a purported belief in the existence of misconduct that would comply with the summary dismissal part of the SBFD Code.

“However, in circumstances where the employer was clearly aware of that conduct on and after 13 October, and it had allegedly implemented only verbal warning about the conduct, it could not subsequently have reasonable grounds for a belief that the conduct was, suddenly on or about 18 November, sufficiently serious to justify immediate dismissal.

‘Extraordinarily heartless disregard of another human being’

“Although [the employee] may have exhibited some level of what might be described as less than perfect work performance, conduct and capacity, these were not matters that jeopardised the ongoing employment,” Commissioner Cambridge said.

“The employer acted with callous and undue haste when it engaged a replacement employee.

“Importantly, the employer did not provide [the employee] with an opportunity to clarify the prognosis of his health issues and the impact that his illness may have on his ongoing capacity to attend work in both the short and longer terms.

“There was no opportunity for [the employee] to have a support person present during any meeting or other process that dealt with any issues surrounding the ongoing employment of [the employee]. The employer made the decision to dismiss [the employee] without any discussion or other communication with him, and instead it just telephoned him to let him know the bad news.

“This unnecessarily harsh approach was compounded by the extraordinarily heartless disregard for the personal circumstances of another human being who was suffering from pancreatic cancer.

“The procedure that the employer adopted whereby it advised [the employee] of his dismissal by way of telephone call, and which was for reasons that [the employee] had no prior knowledge of, was plainly unjust, manifestly unreasonable, unnecessarily harsh, and in this case, unconscionably insensitive,” he said.

Commissioner Cambridge ordered the employer to pay the chef, who had been working at the store for just over two years, $18,200 in compensation.

This was after he reduced the compensation amount by 20% to factor in the “impact on the viability” of the business and a further 10% to “allow for the likelihood that [the employee] would have been absent on unpaid personal leave for a period after dismissal”.

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