Talking on the phone during work hours: Worker cries unfair dismissal

Fair Work looks into employer's disciplinary process

Talking on the phone during work hours: Worker cries unfair dismissal

The Fair Work Commission (FWC) recently dealt with a case involving unfair dismissal claims in a small retail business.

The dispute centred around a casual worker's termination and the circumstances surrounding it, highlighting important aspects of employment law in Australia.

In this case, the FWC had to navigate through conflicting accounts from both the worker and the employer, examining issues such as casual employment expectations, proper dismissal procedures, and what constitutes a valid reason for termination.

No more shifts available

The case revolved around a casual retail assistant who had been working at a delicatessen in southeast Melbourne.

The worker claimed she was unfairly dismissed after experiencing a panic attack at work, which was triggered by a conversation with her mother who lived in a war zone in Ukraine.

According to the worker's testimony, her manager confronted her while she was on the phone and yelled at her to leave.

A few days later, she received a text message stating there were no shifts available for her that weekend. When she inquired about her employment status, she received no response.

The employer, on the other hand, denied terminating the worker's employment. They argued that the worker had either resigned or abandoned her job, citing allegations of bullying made against the manager by the worker's partner.

Employer’s version of events

The manager provided a different account of the events. He stated that he had asked the worker to end her phone call and serve customers, and when she said she was feeling unwell, he suggested she shouldn't have come to work as she was handling food.

Other witnesses, including a bookkeeper and another retail assistant, testified that the worker often spoke on her mobile phone during working hours and was sometimes rude to customers.

The bookkeeper mentioned that she could see from closed-circuit recordings that the worker would often talk on her mobile phone during working hours.

Another retail assistant stated that she had never seen the worker being bullied by the manager or anyone else, but often noticed the worker speaking on her mobile phone and not attending to customers.

However, the FWC noted that these allegations lacked specific details and were not previously brought to the worker's attention by management.

The worker strongly denied being rude to customers and refuted the evidence about her frequent phone use during work hours.

The disciplinary process and dismissal notice

The FWC determined that the worker had indeed been dismissed on the employer's initiative. The Commission rejected the employer's claim that the worker had resigned or abandoned her employment, stating:

"It is completely untenable for the company to suggest that [the worker] resigned or abandoned her employment in these circumstances. Contrary to the company's submission, the fact that [the worker] had accused [the manager] of bullying her and had threatened legal action against him did not mean that she was resigning or abandoning her employment. There is simply no logical basis for this contention."

The FWC emphasised that there was no valid reason for the dismissal and that proper procedures were not followed. The decision stated:

“First, there was no valid reason for dismissal. It has not been established that [the worker] did anything wrong. I find that [the worker] did speak on the phone during working hours but that this was not inappropriate. She was never warned or counselled about this by the company, which suggests that it had no concerns about her conduct.”

“I accept that [the part-time retail assistant] believed that [the worker] was rude to customers but that does not mean that this was in fact the case. The details of these incidents are not before the Commission. [The worker] strongly denied that she was rude. In my view, the differences in these witnesses' evidence reflects a difference of perspective; I am unable to conclude that [the worker] was rude without specific details of what allegedly occurred. I accept [the part-time retail assistant]'s evidence that a customer complained to her about [the worker], but it is not known specifically what [the worker] is said to have done, and in any event the content of the customer's statement would be hearsay,” the FWC said.

“But even if the company were right to say that [the worker] spoke on the phone too often and was discourteous to customers, and that these were valid reasons for dismissal, this would be outweighed by the lack of any fairness in the process of effecting the dismissal. [The worker] was never told by management that she was doing anything wrong. [The part-time retail assistant] said that she spoke to [the worker] about her interactions with customers, but she was just another employee, with no authority to speak for the employer,” the FWC added.

As a result of the unfair dismissal finding, the FWC ordered compensation for the worker. This case serves as a reminder to employers about the importance of following proper procedures when terminating an employee's employment.

The decision also highlights the protections afforded to casual employees who work on a regular and systematic basis, even when their hours may be variable.

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