Head chef who hung up on HR loses his unfair dismissal claim

What happened

John Bell was the head chef and cook at the Inspirations Motel in Mullewa, a remote rural community in Western Australia. The motel is owned by Meedac Incorporated, an Aboriginal corporation. According to Meedac, Mr Bell had been running the motel since he started in May 2018.

In April 2021 Meedac brought in a human resources manager, based in Geraldton, to make sure the motel was complying with workplace law. She said the motel was struggling to keep new staff, and that departing employees blamed ‘not being able to work with Mr Bell’.

In June 2021 a new Indigenous employee resigned. The HR manager said that when she asked Mr Bell why, he replied with words to the effect of ‘that kind don’t last long’. At a meeting soon after, she told him that comments about a person’s colour, cultural background or sexual orientation would not be tolerated. She said he would not acknowledge her and at one point put his hand in her face, saying words to the effect of ‘I can’t hear you’.

The directions he did not follow

The HR manager also found that Mr Bell was submitting timesheets that said only ‘Work/Not Work’, instead of start times, finish times and breaks, and she told him to fill them in properly. In September 2021 he failed to turn up to a meeting about alleged racial slurs, without letting anyone know.

Mr Bell was on workers’ compensation leave from 30 September 2021. He returned to work on 15 October while still certified unfit, saying the staff rostered on had handed him the keys and left. When the HR manager asked why he was at work and asked for a medical certificate, she said he told her ‘you’ve got more problems than my certificate. I have things to do’, and hung up. On 18 October he refused to come to another meeting and ended the call.

On 19 October a manager gave him written allegations and told him to take time to read them and come back at 3:00pm. Instead he denied them all on the spot and did not return. Meedac stood him down on full pay and emailed asking him to show cause why he should not be dismissed. His reply said that his lawyers would ‘provide you with a brief’. He was dismissed by text message on 20 October and paid in lieu of notice.

Why: the legal test

Mr Bell applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). He said the trouble began when he asked for time off in lieu (TOIL) for overtime he said he was owed, and that the process was rushed and flawed.

Under s 387 the Commission weighs several factors, starting with whether there was a valid reason for dismissal relating to the worker’s conduct. A valid reason is one that is ‘sound, defensible or well founded’, and in a misconduct case the employer must prove the conduct actually happened. Employees must obey directions that are lawful and reasonable, and the employer does not have to show its direction was the best possible course of action.

What the Commission decided

Deputy President Beaumont said there was ‘a striking paucity of direct evidence’ for some allegations, so much turned on whom to believe, and the Commission preferred the HR manager. A key reason was a WorkCover certificate Mr Bell’s doctor amended after the conciliation conference to move his planned retirement from December 2021 to March 2022, which could have increased any compensation. The Deputy President called that evidence ‘disturbingly contrived’.

The Commission found that Mr Bell spoke to the HR manager disrespectfully, did not attend two meetings and hung up on her twice, and said this alone was enough for a valid reason. He also failed to complete his timesheets as directed. Other allegations, including telling staff to ignore management and failing to supply rosters and menus, were not proven. It accepted that he made disparaging remarks about staff’s ethnicity and sexual orientation in his discussion with the HR manager, but noted that had already been dealt with.

On process, Mr Bell knew the allegations and had a chance to respond, but never asked for more time. The Deputy President noted it was not evident he had been told the purpose of the 19 October meetings, which put him at a disadvantage on the question of a support person, and took that into account. It also rejected his theory that the dismissal was really about TOIL. Weighing everything, the dismissal was not harsh, unjust or unreasonable, and the application was dismissed.

What this means for you

If your employer gives you a direction about how to do your job, even about paperwork, it is generally expected to be followed if it is lawful and reasonable. If you disagree, raise it calmly and in writing rather than ignoring it.

If you receive allegations or a show cause letter, give a real answer to each point, and ask for more time or a support person if you need them. A blanket denial, or a reply that only says lawyers will be in touch, may leave the employer’s version unanswered.

Employers should note that only proven allegations count, and that telling the worker what a meeting is for is part of a fair process. A worker who wants to bring an unfair dismissal claim must lodge it within 21 days of the dismissal.