Worker gets terminated through WeChat message, alleges employer told him his services were no longer required
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a university student who worked as a waiter at a hot pot restaurant for over four years.
The worker's employment ended through a WeChat message exchange with the head chef, who told him his services were no longer required. The worker challenged both his dismissal and his employment classification under the agreement.
The waiter successfully argued he was a permanent rather than casual employee despite his written employment agreement.
The ERA found that the substance of the employment relationship prevailed over its contractual label. The worker received substantial remedies, including lost wages, compensation and significant arrears for unpaid leave entitlements spanning his entire employment period.
Employment status required substance over form
The ERA examined whether the worker was employed casually or permanently. The court noted the real nature of relationships must be examined rather than accepting contractual labels.
The worker's agreement stated he would work on an "as required" basis. However, the ERA found provisions inconsistent with casual employment, including overtime, bonuses and notice requirements.
The worker's duties expanded from waiter to include food runner, kitchen hand, dishwasher, juice bar attendant, cashier and delivery driver.
The ERA found the work performed could fairly be considered fundamental to the restaurant's operations.
Employment pattern demonstrated consistent regular work
Time records showed that over approximately four years, the worker worked consistently for most weeks. He worked at least three shifts weekly throughout his employment.
The worker used workforce management software to advise weekly availability. The employer built rosters based on this information.
The worker's availability was dictated by his university requirements. This was accommodated by the employer. The ERA found this indicated legitimate mutual expectations that work would be provided.
ERA finds integrated business systems employment
The ERA was satisfied that the worker was integrated into the employer's work systems. Time records showed he earned substantial wages over the employment period.
He requested and was granted leave throughout his employment. His work pattern accommodated reduced availability during university exam periods. The ERA concluded the worker was a permanent employee.
The court found that despite the casual label, the substance of the relationship prevailed. Performing work integral to business operations is a relevant factor when determining employment status.
Rostered shifts decreased following new hires
Several months before the dismissal, the worker observed that his rostered shifts were decreasing. This occurred around the time new employees were hired by the restaurant.
One week, the worker did not receive his usual roster. The head chef told him he was overseas and could not assist.
The worker did not receive rosters for the following two weeks. He exchanged WeChat messages with the head chef, who said there were no shifts available.
WeChat message terminated worker’s employment
At the end of the exchange, the head chef stated "You don't need to come anymore". The worker understood this to mean he was dismissed from his employment.
A few days later, the worker raised a formal personal grievance. The worker and the director spoke by telephone about the situation.
Later that same day, the worker was sent a roster with very short notice. The worker said this was insufficient notice and did not attend the rostered shift.
Attempted roster after dismissal could not cure
The parties were unable to agree on the wages claimed by the worker. The worker was not offered any further shifts after this exchange.
The worker was entitled to a fair opportunity to respond to concerns. The catalyst for the performance concerns was the worker's query about not being rostered.
The head chef raised performance concerns and then sent the worker away. The ERA found this was a dismissal that could not be cured by later attempts to roster the worker.
Performance concerns raised only after roster query
The court stated that "the employment relationship, by the actions of [the employer's] authorised representative, had been terminated". This meant the dismissal occurred through the head chef's WeChat message.
The ERA then considered whether the dismissal was justified under employment law. The court concluded that the worker's dismissal was unjustified because proper process was not followed.
The worker sought reimbursement of lost wages for the period after dismissal. Despite extensive efforts, he was unable to find another job for several months. The worker was entitled to reimbursement of lost wages totalling over $5,000.
ERA awards compensation for humiliation injury
The worker said he was upset by the dismissal. He felt particularly distressed when his work performance was unfairly criticised without prior warning.
The ERA found the circumstances had a negative impact on the worker. He was entitled to compensation for humiliation, loss of dignity and injury to feelings totalling $12,000.
The court stated that "the unjustifiability of [the worker's] dismissal has been established by [the employer's] failure to follow minimum statutory requirements". No deduction was made from the remedies awarded to the worker.
Worker entitled to sick leave bereavement arrears
The worker claimed entitlements for two days of sick leave and three days of bereavement leave. These claims covered five days spanning several years of his employment.
The ERA found the qualifying employment period had been met. The restaurant was ordered to pay arrears totalling $445.00 for these unpaid leave entitlements.
The worker had received time and a half for some public holidays worked, but not all. The ERA was satisfied that he was entitled to time and a half for work performed on specific public holidays throughout his employment.
Restaurant ordered to pay public holiday entitlements
The restaurant was ordered to pay arrears for public holiday work. There was no dispute that the worker had not been paid alternative holidays for the public holidays worked.
The ERA ordered payment totalling over $1,000 for alternative holiday entitlements. The worker was entitled to four weeks of holiday pay annually as a permanent employee.
The restaurant was ordered to pay holiday pay totalling nearly $7,000. This amount covered the worker's annual leave entitlements for his entire period of employment with the restaurant.
COVID subsidy underpayment claim established evidence
The worker claimed underpayment of COVID wage subsidies during lockdown periods. The claims covered two separate lockdown periods spanning several weeks.
The worker had provided detailed calculations to support his claim. The restaurant did not provide a substantive response to these calculations.
The ERA stated that "the claim is established" based on the evidence presented. The restaurant was ordered to pay underpaid COVID subsidy payments totalling over $1,200. The worker was also entitled to interest on all arrears owed.
Penalty records breach declined despite delay
The worker sought a penalty for the employer's failure to provide wage and time records on request. The restaurant acknowledged it had received the request but had unintentionally overlooked it.
The ERA found the statutory obligation to provide records on request is clear. The delay in providing the requested records was not acceptable under the law.
However, the court stated that "this is not a matter where a penalty is warranted," given the circumstances. Leave to recover against the director personally was also declined by the ERA. The court reserved costs and encouraged the parties to resolve any cost issues between themselves.
