Husband dismissed after 'outburst' in front of customers
The Fair Work Commission (FWC) recently dealt with a dismissal application from a worker who claimed she was fired with her husband after the latter had an argument with her employer.
Malgorzata Wisniewska filed an application to deal with a general protections dispute involving her alleged dismissal by her employer, Atif Fouad Aziz. Meanwhile, the employer argued that she was not dismissed.
The worker said she was fired on 16 April 2023, on the same day her husband, Patrick Siudek, was dismissed.
The employer said he only dismissed Siudek following an incident that allegedly occurred the previous day. It also argued the worker was rostered to work on 15 and 16 April but did not attend her rostered shifts, nor did she return to work after that.
The incident between the worker’s husband and the employer
The employer operates a small establishment named Wang Pizza & Diner in Wallerawang, New South Wales. The worker and her husband, Siudek, were both engaged by the employer on a casual basis, starting from the diner’s first day of operations on 10 March 2023.
Notably, throughout their employment period, they were the only employees. The incident between the worker’s husband and the employer happened on 15 April 2023 inside the diner.
According to records, Aziz said that Siudek was aggressive during this conversation and refused to work until the pay issue was resolved. He and the worker were also rostered to work later that day.
Meanwhile, Siudek said “he was not aggressive,” and he left the premises after their conversation. He also said “he did not work that day because Aziz did not ask him to, and thought he was next rostered to work the following Wednesday, with his pay being ‘sorted out’ before then.” As a result, he called his wife who was in Sydney at the time, and she drove to Wallerawang to work in the diner.
The Commission found that Siudek and the worker were rostered to work on 15 and 16 April, being their standard workdays, however, neither attended their rostered shifts.
The employer texted the worker’s husband the day after their conversation and said:
“Hi. I was disappointed by your outburst in front of my customers. This was very unprofessional. Anyway, you are no longer welcome on the premises. Please email me a full breakdown of what you think I owe you and [your wife] including superannuation to date. I will then give to my accountant who will reconcile and pay you what you are owed as per your entitlements. Regards Atif”.
The wife was rostered to work but did not attend on any day after her husband’s argument with the employer.
The worker also did not contact Aziz to say she would not be attending work, nor did Aziz contact the worker to ask why she did not attend work.
Her husband then wrote a lengthy email that included the following paragraph: “Finally, as you have terminated our employment, please send our respective Employment Separation Certificates.”
HRD previously reported on the unfair dismissal claim of a husband-and-wife team who managed a resort together. Meanwhile, the employer claimed that the spouses deserved to be fired because of “poor performance,” including “bad language, theft,” and taking sick leaves when they didn’t need them.
In another case, a husband allegedly resigned on behalf of his spouse. The federal court discussed how he allegedly talked to the employer on the phone and said his wife was “never coming back”.
Was there a joint dismissal of the spouses?
In its decision, the FWC noted that the worker “correctly identified that there was no communication between [her and the employer] that constitutes an express termination of employment, either by way of the [worker] notifying the [employer] of her resignation or unavailability for further work, or by the [employer] advising her she was dismissed or would no longer be offered further casual shifts.”
“The act that precipitated the end of [her] employment, is that she made a decision not to attend work for her rostered shifts, following the discussion between Aziz and her husband.”
It also said that the worker was wrong in believing that the text message that the employer sent to her husband “was an indication that she would no longer be offered shifts.”
It said the employer “was taking steps to resolve the issues that had been raised at this time so any issues could be rectified.”
“It was the decision of the [worker] not to attend her rostered work shifts on 15 and 16 April that was the catalyst for the termination of her employment. This was not a termination at the initiative of the [employer],” the FWC said.
Thus, it rejected the worker’s application and said that she was not dismissed.
