The manner of dismissal was framed as “extraordinary heartless disregard” but the larger issue is that the small business, like so many like it, had no experts in workplace compliance able to push back on horrible decisions.

In the case of Siri vs Urban Orchard Food, a chef in hospital due to complications with his pancreatic cancer was summarily dismissed after his employer alleged he “abandoned his position”. The chef then lodged an unfair dismissal application with the Fair Work Commission (FWC) which was upheld by Commissioner Cambridge.

The circumstances

The chef worked full time for Urban Orchard Food (which is owned by Ms Levette) for just over two years. Over that time, Levette claimed to have given him “numerous verbal warnings” regarding his performance. The chef disputed that, saying that at no point did he feel like his “job was in jeopardy.” While still employed at Urban Orchard Food, the chef found out he had pancreatic cancer and needed to take leave for blood tests and a stint in hospital.

On 12 November 2018 the chef was admitted to hospital following stomach pains and his wife notified Levette that he would require paid sick leave from 13 to 16 November. The chef says that on the evening of 16 November he telephoned Levette telling her he would be able to go back to work on Monday 19 November.

Levette’s account of events differs. She submitted a text message to the commission that read, “Hi. I hope [the chef] is feeling better. Can you let me know his plans for work please?”

There was no text message response for a few days, and Levette viewed that as the chef abandoning his position and so called him on the Sunday.

“Ms Levette had no difficulty making telephone contact with the applicant, and she advised him that he had been dismissed from his employment because he had not kept her informed about his return to work,” Cambridge says.

“Ms Levette told the applicant that she had hired someone else to fill his position. Further, during the telephone conversation that included advice to the applicant of his dismissal, Ms Levette told the applicant that he had been an unreliable employee.”

The SBFD

At the time of the chef’s employment, Levette’s business had less than 15 staff and she put it to the Fair Work Commission (FWC) that the chef’s application should not be upheld because the dismissal was consistent with the Small Business Fair Dismissal Code (SBFD). In particular, Levette referred to this section:

“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.”

But Levette also alleged that for the two years that the chef was employed he also committed several misconduct and breaches including:

• Taking regular sick leave for no apparent reason
• Commencing work late at least once per week for the entire period of his employment
• Taking extended breaks without recording these on his timesheets
• Inability to cope under pressure when the cafe was busy
• Inability to follow instructions
• Disturbing the flow of the kitchen with childish antics
• Undermining the authority of the head chef
• Being an unproductive staff member due to his personal lifestyle choices

In this sense, she was saying that the dismissal was not just a summary dismissal, done immediately in response to “serious” misconduct, but also a more considered dismissal that was the culmination of years of behaviour.

The (non-existent) double dismissal

It seems as if Levette would have benefitted from a person with HR knowledge when she first considered dismissing the chef (and a lawyer to help her navigate the laws relevant to the hearing). Being the owner of a small business, you can imagine why she might have balked at the cost, but even a few hours of advice could have alerted her to the mistakes she was making.

From a layman’s perspective it makes complete sense that, if you’re asked to justify a dismissal, you mention every issue you have ever had with the employee and see what sticks. But that’s not how the law works. If you summarily dismiss someone, the law around ordinary dismissal is not relevant.

As Cambridge puts it, “[T]he other dismissal provisions of the SBFD Code do not represent a fall-back position that might be used to buttress a summary dismissal.”

Looking back

According to the decision, the employer’s primary reason for the dismissal was the fraudulent completion of timesheets “and the associated dishonesty”.

The main piece of evidence for this was something that happened a month before the dismissal. The chef closed the shop half-an-hour early and he failed to provide an adequate explanation as to why. Levette says this was evidence of his fraud. Cambridge disagreed on a few levels – including that the employee was allegedly already given a formal warning, and the timesheet was not later adjusted – but in particular pointed out the disconnect between that event and the dismissal.

“The alleged misconduct upon which the dismissal was said to have been founded was known to the employer on and from 13 October 2018. However, the employment was permitted to continue after that event in the full knowledge of the extent and nature of the alleged misconduct.”

Cambridge summarises the claim this way: “The employer has attempted to resurrect the early closure of the shop on 13 October 2018 and to misrepresent that event as serious misconduct involving timesheet fraud, so as to provide a reason for the summary dismissal of the applicant.

“The fallacious resurrection of previous conduct of the applicant…could not provide sound, defensible or well-founded reason for dismissal. Rather, such reason was capricious, fanciful and spiteful.”

Misleading information

Following on from his dismissal, the chef requested a job separation certificate and a week later was provided a Centrelink Employment Separation Certificate which stipulated the reason for summary dismissal was ‘unsuitability for this type of work’.

The chef’s representative [Nguyen] submitted that the certificate made no mention of the employer’s claims of the alleged misconduct or unsatisfactory performance “let alone fraud”. He says that his client was really dismissed due to his illness. “The employer was aware of his hospitalisation and anticipated potential further absence from work.”

Cambridge agreed with Nguyen, saying, “The real reason for the dismissal of the applicant was his absence on sick leave involving his hospitalisation and the prospect of further absences from work due to his illness.” Cambridge summarised the issues with the dismissal.

• The dismissal was an unjust and unreasonable process
• The chef was not given the opportunity to respond or provide an explanation
• Nor was there an opportunity to clarify his health issues
• The reason for the dismissal could not be established in fact, so the dismissal couldn’t be considered “sound, defensible or well-founded”

Having found that Levette’s dismissal was unfair, Cambridge also reprimanded the business owner on a more personal level.

“The absence of management specialists or other expertise, and the informality that would understandably exist in a small business, could not provide justification for the unnecessarily undignified implementation of a dismissal by way of a telephone call.

“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.”

While it’s likely the commissioner would have shown more sympathy had the process been more tactful, it’s unlikely this would have actually changed the ruling.

The chef did not seek reinstatement and instead sought financial compensation which Cambridge awarded, after making reduction due to the viability of the business and the fact that the chef would have been absent on unpaid personal leave he awarded $18,2000.

HRM has written previously about how HR can help support employees who have cancer.