Barista stayed past her shifts, then kept working once sacked

What happened

Mylie Woodland started as a barista at Espresso Garage, a small café in Brisbane's South Bank, on 14 February 2020. The business employed fewer than 15 people, so it was a small business under the Fair Work Act 2009 (Cth). She was a casual, and before a week's holiday in October 2021 she worked 5:30am to 1:00pm on weekdays.

The job had real problems. Ms Woodland said her pay often arrived late, payslips went missing and she was not given breaks, and she had been in touch with the Fair Work Ombudsman. The Commission agreed the owner was at fault on pay: it called him "an incompetent employer" who failed to pay her wages on time, and found she suffered "enormous stress" as a result. The owner accepted he owed her $658.55 for breaks she had not been given.

When she took her week off, the café took on a third barista. On her return the available hours were shared between three, and she was rostered for about four hours each morning.

The sit-in

Ms Woodland did not accept the cut. She acknowledged that on 13 October 2021 she stayed at the café past her 9:30am finish, knowing the owner was trying to call her, and that she stayed back several more times. A co-worker said she told him that if he got involved it would be bullying. The Commission accepted the owner's evidence that she told him she expected to be paid for the extra hours.

Before dismissing her, the owner went to the local police station about the situation. On 18 October 2021 he texted her that there would be no roster for her. The next day he told her that coming to the shop without a roster was trespass.

On 20 and 21 October 2021 she came back anyway and worked, helping to open the café at 5:30am. She left on 21 October when police attended and asked her to move on.

The claim

On 28 October 2021 Ms Woodland applied to the Commission under s 394, saying her dismissal was harsh, unjust or unreasonable. She said she lost her job for exercising her work rights, that staff had bullied her, and that a new barista was hired a week before her holiday. The café objected that it was a small business and had complied with the Small Business Fair Dismissal Code.

Why: the legal test

Under s 385, a dismissal is only unfair if, among other things, it was not consistent with the Small Business Fair Dismissal Code. Section 396 makes the Commission decide that question before it considers the merits of the claim. If a small business followed the Code, the claim must be dismissed, and the Commission never asks whether the dismissal was harsh.

The Code has a rule for summary dismissal, meaning dismissal on the spot without notice or warning. It is fair "when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal". The Code gives theft, fraud, violence and serious safety breaches as examples, but the list is not closed. So the Commission asked two questions: did the owner genuinely hold that belief, and was it based on reasonable grounds?

What the Commission decided

Commissioner Hunt first found that hiring a third barista was a lawful decision, and that the cut in hours was not made because Ms Woodland had complained.

Her response, the Commissioner said, was "eccentric and irrational". She was not entitled to demand the hours she wanted. If she disagreed with the roster she could contest it lawfully, but she was "not, however, entitled to remain at work, disobeying instructions to leave". Her conduct was not theft, fraud or violence, but it was serious enough to justify immediate dismissal: she was "persistently and determinedly refusing" the owner's instructions, and her co-workers were uncomfortable and did not know how to deal with it.

The owner's belief was also reasonable. The Commissioner found he reasonably believed that dismissing her was the only way to stop her working beyond her rostered hours. Her return after the dismissal was "extraordinary" and reinforced why he acted, though he could not have known about it when he made the decision. The café had complied with the Code, so the application was dismissed for lack of jurisdiction.

What this means for you

Here the employer's own failure to pay on time did not stop it relying on the Code: the Commission dealt with the late pay and the sit-in as separate issues. If your hours are cut or you are underpaid, the safer course is a complaint to the Fair Work Ombudsman, a claim for unpaid wages, or advice about whether the cut was lawful. Refusing to leave the workplace puts your job at risk.

If you believe your hours were cut, or you were dismissed, because you complained about your pay, that can be a separate general protections claim. If you work for a small business, the Code can decide an unfair dismissal claim before its fairness is considered at all, so it is worth getting advice early. A Fair Work dismissal claim must be lodged within 21 days.