COVID changes to restaurant didn’t protect it from an unfair dismissal suit
To keep the business running throughout COVID-19 restrictions, a Melbourne restaurant changed its offering, from serving fine dining “hot-pot” to take-away stir-fry. As a result of a decrease in his working hours throughout lockdowns the applicant, the restaurant’s Head Chef, was forced to apply for rent relief. He contacted his employer, requiring certification of the decrease in his income.
At the end of July, the applicant received a letter from the respondent for the rent relief, which stated that his employment had commenced on 1 July 2018 and terminated on 12 July 2020. With little English skills, the applicant said that he was not precisely aware of what was outlined in this letter, but he maintained regular contact with the respondent regarding opportunities for ongoing work.
In November 2020, after the applicant had not worked for several months, his daughter translated the letter, where the applicant claimed he discovered his termination. Furious that the respondent had “dragged this on for four months”, the applicant filed an unfair dismissal application. The respondent submitted that the applicant could not return to work at the restaurant because he was not a stir-fry chef, which the restaurant now required. The applicant disputed the suggestion that he could not perform stir-fry duties, as well as the criticism of his ability to prepare take-away meals.
The Commission was satisfied that, although the case did not involve a genuine redundancy under the Fair Work Act 2009 s 389, the applicant’s position was redundant. However, under the relevant Restaurant Industry Award 2010, the respondent was required to provide notice of and discuss the operational changes with the applicant and take measures to avoid their adverse effects.
The Commission was ultimately satisfied that the respondent’s failure to adequately consult with the applicant regarding the business changes rendered his dismissal harsh. Compensation of $7,500.00 (totalling five weeks’ remuneration) less taxation was ordered to the applicant.
Key Takeaways:
- Operational changes must be discussed with employees and measures must be taken to avoid or reduce their negative impacts
