He paid himself for full-time work despite reduced duties and remote set-up
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed his foreign employer did not afford him any chance to respond to the issues that may have caused his dismissal.
According to the Commission, the worker has been the manager and primary caretaker of his employer's bakery, given the significant language barrier for the owners. However, what led to the ultimate dismissal of the employee?
‘Exploitative worker’
According to the employer, the worker became related and involved with their family business through a personal relationship with the son's employer.
As a full-time employee, the worker's shift was from Monday to Friday between 6:00-4:00 pm. However, such a schedule would change and include weekends if another worker was unavailable or called in sick.
"The Applicant's [worker] pay rate was said to be $28.0492 per hour or $2,243.94 before tax per fortnight," the Commission said.
Despite their almost close-knit relationship, events took a significant turn in November 2022, when an email was sent by a new bakery manager to a client stating that the former manager, being the worker, was no longer employed in the bakery business.
The employer sent a further email to the clients stating, "[w]e have had an issue where our mail server has been compromised by a bad actor suspected to be a former employee."
The employer contended that the worker abandoned his employment. Instead of performing his supposed work at the bakery's location in Nannup, he changed his role.
The employer also said that he was employed to perform work at the Nannup bakery as a bakery manager, barista and bookkeeper, "and of his own volition he had changed his role to suit his purpose," without its consent.
"He had reduced the days of work where he was present at the Nannup store," the employer said. It added that he unilaterally decided to work from home and claimed a full-time wage.
Meanwhile, the worker said the employer agreed that he would work three days per week at home, due to a drop in sales in the business.
He argued that regardless of his presence at the Nannup store, he was still doing business-related services.
He said that given that all the communications concerning the business, including customer inquiries, were always directed to him because he can comprehend English better than other staff, he “does not work any fewer days,” contrary to his employer's argument.
FWC's decision
In deciding the case, the Commission noted the existing language barrier for the owners of the bakery, who all spoke English as a second language.
It said this eventually led to the worker navigating most business operations. "It is clear that the Respondent [employer] was dependent on the Applicant [worker] to run or manage its business, including being present to assist with service in the bakery," the FWC said.
"Whilst it might often be observed that there is a power imbalance between employer and employee, with the employer predominately possessing authority, in the circumstances of this case that power imbalance was reversed," it added.
Ultimately, despite the worker learning of his dismissal through a correspondence directed to a client, the Commission was not satisfied that the termination was unfair.
"I consider that the Applicant's [worker] repudiation of his employment contract by unilaterally changing his work location and thereafter claiming a full-time wage for part-time work was, in the circumstances, exploitative," the FWC said.
"Any procedural deficiencies are outweighed by the gravity of the conduct engaged in," it added.
