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A café in the inner city of Adelaide was ordered to compensate a former employee it unfairly dismissed after she raised “legitimate” issues about her leave and salary entitlements.
Gonva Group, the operator of Cafetal Coffee Company in Kent Town, was ordered to pay a former part-time food and beverage attendant $13,158.97 in lost remuneration and $1,447 for superannuation.
The Fair Work Commission found the staff member’s dismissal by business owner and managing director Julián Gonzalez was “harsh, unjust and unreasonable” and lacked evidence.
Commissioner Emma Thornton was told the staff member raised two major entitlement issues with Gonzales in the lead-up to her termination, but both were “legitimate” and “appropriate”.
The first occurred in a meeting with Gonzales and other staff in September 2023, when she questioned why permanent employees were not paid for public holidays when the café was closed.
Gonzales accused her of “constantly interrupting” other staff in the meeting and “making rude, snide or belittling comments”.
The day after the meeting, the staff member said she called Fair Work and confirmed her entitlements, but she told the officer that Gonzales’ failure was “a matter of misinformation as he is not a bad person”.
When the staff member raised this with a kitchen manager, Gonzales told her both she and the kitchen manager would be removed from the Monday roster because the majority of public holidays fell on this day and he did not want to have to pay them.
The staff member told Fair Work she suggested switching to a casual position so she could keep the Monday shift because she had a young child and childcare arrangements were already in place.
However, no changes were ever made.
The second took place amid the staff member’s scheduled abdominal surgery and her plan to take two weeks off.
Although originally scheduled for early October, health issues meant the surgery was postponed twice to early November.
Gonzales said the café “did not have enough staff to replace her” during those two weeks and told Fair Work the business had to invest “significantly” to hire and train a replacement.
After the surgery was cancelled a second time, the staff member offered to take one week of annual leave so she “did not bother anyone” but insisted on returning to work the following week.
However, when Gonzales told her she had to take the leave because his wife made arrangements to work in her place, the staff member reached out to Fair Work to confirm her entitlements.
Gonzales was informed of this.
Before she could return to work and before her surgery, Gonzales said he reviewed the Small Business Fair Dismissal Code.
In also completing a checklist, Gonzales selected “yes” to a question asking if the employee “threatened me or other employees, or clients, with violence, or actually carried out violence in the workplace”.
Gonzales provided no evidence of this.
He emailed the staff member to inform her she had been dismissed, and he claimed it was because her time off caused inconveniences and the business had “money problems with you due to your aggressive, verbal behaviour” that had reached “unacceptable levels”.
Gonzales accepted during cross-examination he did not issue the staff member with any warnings about the alleged misconduct.
In preferring the staff member’s evidence, Thornton found her communications were not aggressive or inappropriate.
Thornton added Gonzales saw the staff member’s raising of the entitlement issues to be a “lack of respect for him as an employer”.
“I find the raising of the complaints in and of themselves was not misconduct and, further, the manner in which they were raised by the applicant in the relevant meeting or meetings was not misconduct.
“I find that the applicant raised reasonable questions and issues with her employment, in a reasonable manner,” Thornton said.
Thornton added that any alleged inappropriate communication was unreliable because of the “vagueness” and lack of evidence.
While Gonzalez was found to have held a reasonable belief he had grounds to terminate the staff member in October 2023, as evident by his completion of a checklist, Thornton said his response to the violence question weighed against him because he could “not have reasonably believed that to be correct”.
