Summary
A chef was accused of making discriminatory remarks against indigenous employees and employees who were people of colour and members of the LGBTQ community. During the investigation, there was insufficient evidence against the chef, but the chef failed to follow the HR manager’s instructions and behaved towards the HR manager in a disrespectful manner.
He refused to properly fill out timesheets, refused to provide medical statements showing he was fit to work, refused to attend meetings to discuss the allegations against him, and refused to make himself available to the HR manager. He was sacked for misconduct.
Disrespecting HR Manager is misconduct and a valid reason for dismissal
A chef had been managing a rural motel since he began employment in May 2018. The rural hotel was one of a chain of motels owned by a company of Indigenous persons.
Motel’s problems retaining employees
The motel struggled to retain newly hired employees. In 2021, the General Manager of the company that owned the motel recruited the Human Resources Manager to inspect the rural motel to ensure that the workplace was operating within the context of occupational health and safety laws.
Employees could not work with the chef
The HR Manager then spoke with the former employees and found that they left because they were unable to work with the chef. One newly hired employee in particular, an Indigenous woman, immediately resigned.
The HR Manager then asked the chef why the Indigenous woman had resigned. The chef replied, “that kind don’t last long.” The HR Manager then spoke with the Indigenous woman and discovered that she resigned because the chef yelled at her in front of customers and made racial jokes about her in the workplace.
The HR Manager reported these things to the General Manager who then scheduled a meeting with the chef and the HR Manager. At this meeting, the HR Manager informed the chef of her findings and about the complaints and issues raised by present and former employees against him.
During the meeting, chef had made comments about not trusting Indigenous employees to show up to work or to dress appropriately at work, and when they did go to work, they “smelt.” The HR Manager also found out that the chef referred to a lesbian-identifying employee as “the boy.”
Failure to accurately complete timesheets
The HR Manager also raised the issue of staff members including the chef failing to submit properly completed weekly timesheets. The timesheets submitted by the chef only stated “work/not work” without noting the employees’ breaks, and start and finish times. The HR Manager then instructed the chef to correctly fill in his timesheets and submit them promptly. The HR Manager also noted the chef’s failure to submit menus as he was required to.
Disrespectful behaviour toward the HR Manager at the meeting
The chef responded to the HR Manager by placing his hands in front of the HR Manager’s face and saying “I can’t hear you” or “I’m not listening to you.” The General Manager and the HR Manager advised the chef against making comments about employees’ colour, cultural background, or sexual orientation as it constituted a form of bullying and would not be tolerated by the management.
Refusal to attend an allegations meeting
On 7 September 2021, the HR Manager directed the chef to come to a meeting with her and the Administration Officer to answer allegations that the chef had used racial slurs and made racist comments. The chef failed to attend this meeting. The HR Manager then rescheduled the meeting, but the chef refused to answer her calls or offered the excuse that he was busy.
Chef’s Intention to resign
On 24 September 2021, the chef met with the HR Manager and the Administration Manager to inform them that he was intending to resign from his position on 12 December 2021. That date given by the chef was a Sunday and was not in line with the payroll. The HR Manager then contacted the chef and advised him that his last day would be Friday, 10 December 2021.
Workers’ compensation claims
The chef then went on workers’ compensation leave from 30 September 2021 until 18 October 2021. His WorkCover WA Progress certificate of capacity stated that the chef had been injured on 29 September 2021 and was medically assessed on that same day by a doctor who was a friend of the chef.
It was never clarified how the chef had been injured or what the extent of his injuries were. The Work Cover Certificate declared that the chef was totally unfit for work until 18 October 2021.
Early return to work
Against his doctor’s advice, the chef returned to work early on 15 October 2021. When the HR Manager confronted him about this, the chef told her that his doctor will change his certificate and clear him as fit for work. He then told the HR Manager that she had more problems than his WorkCover Certificate and that he had things to do. The chef hung up on the HR Manager.
The chef claimed that he returned to work early because the female staff handed him their keys and told them that they were leaving. At that time, the motel was fully booked and the chef was unable to work. The chef worked only until 18 October 2021 and then went back on leave.
Failed to submit medical certificate, filed a second workers’ compensation claim
The HR Manager required the chef to provide a medical certificate from his treating doctor. Instead of submitting the required medical certificate, the chef submitted a second WorkCover Certificate stating that the chef had increased stress levels due to baseless allegations made against him of having made homophobic and racist remarks.
Allegations meeting
The HR Manager then called the chef to another meeting on 18 October 2021 to discuss the allegations against him. The chef told the HR Manager that he would not come in and the HR Manager had no right to demand his presence and hung up.
The next day, the HR Manager called the chef once more and invited him to attend a meeting at 1:00 pm and at 3:00 pm. The HR Manager did not attend the meetings as she perceived a conflict of interest since some of the allegations that will be raised with the chef concerned his behaviour toward the HR Manager.
Allegations letter and disciplinary meeting
The chef was given an allegations letter and he was told to take time to read the allegations so that he can respond to them. He was directed to return at 3:00 pm to give his response to the allegations. The chef decided that he will not wait until 3:00 pm to give his response. He denied all the allegations and said that the allegations were untrue.
The allegations against the chef were that:
- He told the employees to forget the instructions given by the HR Manager because he was the boss and he expected the employees to do things his way and to ignore all the HR Manager’s instructions.
- He continued to make racist jokes about an Indigenous employee, about his culture and his body odour, continued to joke about employees’ dark skin colour, and made jokes about another another employee, despite being instructed to desist.
- Coming in to work on 15 October despite being on personal leave and despite been certified by the doctor to be totally unfit for work, and then failing to submit the required medical certificate
- Telling employees that he had made workers’ compensation claims only to get back at the HR Manager who sought to sack the chef. The chef hoped that his workers’ compensation claim would result in the HR Manager’s termination from employment.
- Failing to submit copies of rosters and menus to the HR Manager.
Refused to respond to allegations
The chef never showed up for the 3:00 pm meeting where he was supposed to be told that he would be stood down on full pay while the allegations against him were going to be investigated. He was directed in an email to show cause why his employment should not be terminated. Instead of sending a response to the allegations and submitting a show-cause response as to why he should not be terminated, the chef informed that he had already hired lawyers who will provide the HR Manager with a brief.
Dismissed from employment
The HR Manager then sent the chef a text message informing him that his employment had been terminated and a letter of termination will be sent to him. He was later paid in lieu of notice. The letter of termination was sent on 21 October 2021. The chef was dismissed for refusing to carry out lawful and reasonable instructions; failing to follow Company policies and procedures; actively encouraging other employees to disregard Company policies; and behaving in a discriminatory way.
Chef’s poor credibility
The Fair Work Commission found that there was little direct evidence to support the allegations against the chef but the chef himself brought little evidence beyond his bare denials. The FWC favoured the testimonial evidence of the HR Manager, finding that the chef’s credibility had been severely compromised because of his bogus workers’ compensation claims and the belated amendments made on the workers’ compensation forms by his doctor.
Valid reason for the dismissal
The FWC did not believe that the termination of the chef was because he had asked for time off in lieu of payment for his accumulated overtime. The chef was in his 60s and he had informed the motel management that he wanted to retire in December 2021.
The chef had a duty to comply with reasonable and lawful directions such as accurately completing timesheets but he refused to comply. The chef also failed to exhibit respect to co-workers particularly toward the HR Manager on at least two occasions. There was no excuse for the chef’s discourteous conduct. He had been notified of the allegations against him and provided with the opportunity to show cause why he should not be dismissed. The chef never asked for additional time in which to respond and his response to the show-cause email failed to address the allegations made against him.
Therefore, there was a valid reason for the dismissal and the dismissal was not harsh, unjust or unreasonable. The application was dismissed.
Source:
John Bell v Meedac Incorporated [2022] FWC 905 (20 April 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2022/905.html
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