Employee claims bullying forced reaction that terrified proprietor and staff
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a sous chef who argued his dismissal was unfair following an incident where he lost his temper in the restaurant kitchen.
The case arose when the worker was dismissed after allegedly shouting, swearing and slamming pots and pans in an unsafe manner that posed serious safety risks to staff, with the incident witnessed by the restaurant proprietor.
The worker argued the dismissal was unfair because it followed months of alleged bullying, harassment and micromanagement from the head chef, and that he was forced into having the reaction due to workplace pressures.
He maintained that he was constantly under harassment and severely abused, bullied and humiliated by management, particularly the head chef who had set him up for failure.
The employer contested the worker's claim, arguing the dismissal was justified due to the serious safety risks posed by the worker's aggressive behaviour, which included slamming kitchen equipment near hot oil and creating dangerous conditions.
The restaurant maintained that despite supporting the worker through personal difficulties, his conduct had deteriorated and posed unacceptable risks to staff safety.
Employment progression leads to behavioural concerns
The employment relationship involved a worker who commenced casual employment at a restaurant in July 2024, proving adept as a chef and subsequently being offered a part-time role. In October 2024, he was offered a full-time sous chef position reporting to the head chef, with the restaurant undertaking to sponsor his visa application at the head chef's encouragement.
However, soon after the visa sponsorship began and he moved into the full-time role, management claimed the worker's conduct began to deteriorate.
The head chef alleged the worker displayed increasingly argumentative and hostile behaviour, engaging in disruptive behaviour in the kitchen with erratic and manic tendencies, with other staff complaining about excessive unscheduled smoke breaks, volatile mood swings and inappropriate language.
In September 2024, the head chef informed the kitchen team via group chat that breaks would be rostered and published on a laminated break sheet, requiring adherence.
According to management, the worker's non-compliance with this directive became a recurring issue throughout his employment, with regular conversations needed about taking unscheduled breaks.
Workplace tensions escalate
Multiple incidents occurred through late 2024 and early 2025 that increased management concerns. In October 2024, an employee expressed a preference not to work with the worker, requesting shifts only when the head chef was rostered, and a candidate who completed a work trial decided not to return, citing unwillingness to work with the worker.
On 31 December 2024, the worker was allegedly found vaping in the cool room, which management stated breached Tasmania's liquor licensing and public health legislation and could have harmed the trading licence. On 1 January 2025, the worker disclosed personal challenges affecting his mental health, with the head chef offering support and providing crisis support line information.
Throughout February 2025, tensions escalated with the worker complaining about rostering and the team, and the head chef requesting that he cease oversharing personal information after receiving inappropriate graphic text messages. Multiple confrontations occurred about break adherence, with the worker allegedly disparaging the head chef and mocking his appearance and physical condition.
Critical incident occurs during busy service
On 8 March 2025, the worker was rostered to work despite being covered by a medical certificate stating he was unfit for work due to haemorrhoids from 28 February to 9 March. The proprietor was working the pass while the worker ran the hot section of the kitchen, with the head chef having left the premises earlier in the evening before the incident occurred.
Throughout the evening, the proprietor became increasingly concerned about how the worker was treating a new staff member called "Lakshay," repeatedly berating him in what she considered a harsh and inappropriate manner despite the new employee performing well, given his limited experience.
The proprietor felt compelled to reassure Lakshay on several occasions that he was doing a great job.
Towards the end of the service, the proprietor witnessed the worker completely lose his temper, aggressively demanding the new staff member leave the front section of the kitchen.
When the proprietor intervened, telling the worker that the staff member was not the problem and his treatment had been unacceptable all night, the worker "reacted with extreme aggression," shouting, swearing and ranting loudly while slamming pots and pans around the kitchen onto hot plates and splashing food into the hot fryer in an unsafe manner.
Workplace safety concerns prompt immediate action
The proprietor's evidence described feeling genuinely scared by the worker's behaviour, noting: "The way he was aggressively shoving pots across the stove and splashing items into the hot oil as a result, posed a significant safety risk to anyone nearby."
She had to tell the worker to go home three times in a firm and assertive manner before he eventually left the kitchen and venue, with her remaining scared for the entire duration of the incident.
After the worker left, the proprietor was visibly shaken and immediately walked to their other business to speak with the director, explaining what had occurred. The director gave evidence that the proprietor came to see him visibly shaking and upset, recounting the incident, consistent with her evidence about the serious safety risks of the conduct, particularly the dangers of hot oil burning staff.
The worker initially denied being asked to leave the venue, responding "I wanted to leave," but later accepted he was asked to leave because he was "really worked up" and conceded he was "absolutely worked up."
He claimed he only asked the staff member to "step away and go help in another area of the kitchen" and that he had to take matters into his own hands because the head chef was setting him up for failure.
Dismissal meeting reveals lack of insight
Over the following days after 8 March, the proprietor spoke to staff members who reportedly described the head chef as the only one trying to fix the kitchen situation, while the worker's behaviour appeared driven by paranoia, with multiple staff members describing him as his own worst enemy. On 10 March 2025, management decided to meet with the worker to discuss his employment future, though he was not told the meeting's purpose.
The meeting took place on 11 March 2025 between the proprietor, director, head chef and worker. According to the proprietor: "We outlined our concerns and [the worker] was given the opportunity to respond. Unfortunately, he did not accept responsibility for his actions."
During the meeting, the worker was only interested in talking about perceived food wastage and did not seem to understand that the meeting's purpose was about his unacceptable and dangerous behaviour on 8 March.
The proprietor's evidence was that, given the seriousness of the incident and the risk she believed the worker posed to staff safety, the decision was made to terminate his employment with payment in lieu of notice.
The worker was informed he was not permitted to return to the venue in any capacity, with management viewing the dismissal as necessary to "ensure our safety, the safety of our employees and the viability of our business."
Post-dismissal behaviour escalates concerns
After dismissal, the worker's behaviour became increasingly concerning. On 8 April 2025, two employees informed the proprietor that the worker had returned to the premises despite directions not to attend, confronting employees near the rubbish room in an erratic manner and making veiled threats directed at management.
The employees were so distressed that they contacted another employee to drive them to their cars, reporting that the worker was waiting and pointing at them in a threatening manner.
On 9 April 2025, CCTV footage showed the worker knocking on the venue window and dancing erratically before putting out a cigarette on the ground outside the door. Police were contacted and advised the restaurant to apply for a restraint order. The worker also started a social media campaign against the business and the head chef, sending shocking Instagram messages calling the head chef abusive terms.
On 5 May 2025, the restaurant owners obtained an interim restraint order against the worker, followed by a full restraint order on 28 May 2025 extending until May 2026, covering all employees while undertaking employment. The head chef also obtained separate restraint orders, with all orders including exceptions for court or tribunal proceedings.
FWC finds valid dismissal reasons despite procedural issues
The FWC found the worker's conduct on 8 March constituted serious misconduct that posed significant safety risks. The Commission noted:
"The gravity of the misconduct of [the worker] is significant. He has caused a risk to the health and safety of himself and other employees. I consider the misconduct to be serious misconduct." The FWC found the worker's behaviour represented "a sound and defensible reason for dismissal."
However, the Commission identified procedural failings, noting the worker was not given prior advice of the meeting's purpose on 11 March where he was dismissed. The FWC stated:
"The failure to properly notify [the worker] prior to the meeting of the purpose of the meeting contributes to a level of unfairness with the process of the dismissal." The Commission also noted concerns about the worker attending work while covered by a medical certificate.
The Commission found the worker lacked insight into his behaviour, noting his "outrageous Instagram messages sent to [the head chef] after his dismissal underline his failure to have any insight into his behaviour." The FWC also considered the personal and economic consequences, including the worker becoming homeless and facing visa difficulties requiring $8,000 in personal costs.
Application dismissed despite mitigating factors
The FWC acknowledged several factors weighing toward unfairness, including procedural failings, the worker attending work while on medical leave, and personal economic consequences. However, the Commission concluded these factors were insufficient to outweigh the gravity of the misconduct and safety risks posed.
The Commission stated: "While there are some failures in providing procedural fairness to [the worker] set out above as well as personal and economic consequences for [the worker], I am not satisfied in the circumstances of this case that these factors are sufficient to displace the weight to be accorded to the valid reason for [the worker's] dismissal."
The FWC concluded: "having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of [the worker] was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal, an opportunity to respond and a complete lack of insight into his conduct. The other factors weighing in favour of a finding that the dismissal was unfair were not sufficient to displace the weight I accord to other s.387 criteria and in particular the valid reason for dismissal."
