Fair Work awards pastry chef $9K in wrongful dismissal suit

This employee's dismissal takes the cake

Fair Work awards pastry chef $9K in wrongful dismissal suit

In a recent case, the Fair Work Commission considered the potential consequences of workplace stealing. The applicant worked as a pastry chef assistant at the respondent, a bakery and retail store. English was the applicant’s second language.

Throughout 2020, the applicant received several warnings from the respondent for failing to complete tasks, being dismissive and unhelpful, baking excess produce and clocking off early.

In October 2020, while checking whether staff were complying with their rostered start and finish times, the respondent’s director reviewed CCTV footage of the bakery. One morning, footage showed the applicant and another employee, the respondent’s cake decorator, preparing a sponge cake. The applicant placed the sponge cake into a carry bag and left the premises. Throughout the footage, the applicant did not attempt to hide or disguise her actions.

After viewing the footage, the respondent’s director opined that the applicant had stolen the sponge cake. He subsequently sent her an email, inviting her to a disciplinary meeting the following morning. The applicant replied that evening, requesting that the respondent postpone the meeting until her union representative could attend.

The following morning, the applicant arrived at work. After a few hours, the respondent’s director called her into his office, making no mention of holding the meeting. When she arrived, she saw the respondent’s lawyer, who advised her that the respondent had terminated her employment.

The applicant submitted that her dismissal was unfair. She asserted that the produce she took was wastage. Further, she stated that she did not steal the sponge cake but rather sought the cake decorator’s permission before taking it home.

The Commission found that, contrary to the applicant’s submission, the sponge cake was not wastage. However, it accepted her evidence that taking produce from the kitchen without paying was not uncommon amongst employees. It was also satisfied that the applicant’s actions were based on her honest (albeit mistaken) belief that the cake decorator had the authority to allow her to take the sponge cake without paying.

Given this, the Commission was not satisfied that the applicant’s actions constituted a valid reason for her dismissal. It further held that, although the applicant spoke basic English, the respondent was unfair and prejudicial in not rescheduling the disciplinary meeting to allow her to have an English-speaking support person present.

With this, the Commission found that the dismissal was unfair and ordered compensation of $9,064 to the applicant.

Key Takeaways:

  • To avoid confusion, employers should clarify acceptable and non-acceptable workplace practices
  • Where an employee’s misconduct is based on a genuine belief, it may not give rise to a valid reason for dismissal
  • Employers must always ensure they follow fair and correct procedures when dismissing employees

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