A Melbourne hotel that claimed an inability to engage in face-to-face discussions before making a chef redundant during the city’s second COVID-19 lockdown must compensate her for unfair dismissal, after falling foul of award consultation obligations.
The Maori Chief Hotel retrenched its chef in July last year, telling her via email and registered post that the government-mandated coronavirus restrictions left it with no choice but to close down and it did not expect business to bounce back until a vaccine became available.
The directors apologised in the email for not speaking in person with the chef, who had worked at the hotel for 15 years, but said it was “not possible in the current environment”.
They said in the email to contact them if she had any questions, and in the letter said she could “seek information about the terms and conditions of employment” from the FWO.
The chef said in support of her unfair dismissal application that she did not respond because the directors made it “abundantly clear that I was being made redundant as they were closing down the business suggesting permanent closure”.
But she belatedly filed the application in November, after the hotel advertised on its Facebook page that it was “looking for chefs” to work “35-40hr p/w nights & weekends included contracted award wage”.
The Maori Chief Hotel told the tribunal it was an “overly ambitious advert” placed by the venue manager and that it had in fact re-engaged two former casual bar workers who performed no kitchen duties.
The employer also objected to the application on jurisdictional grounds, arguing it complied with the Small Business Fair Dismissal Code, and maintained the dismissal amounted to a genuine redundancy within the meaning of s389 of the Fair Work Act.
But Commissioner Tanya Cirkovic noted that, except for summary dismissals, the code requires employers to have a valid reason based on conduct or capacity.
As redundancies are based on business or operational needs, she found the chef’s dismissal inconsistent with the code.
Nor did it constitute a genuine redundancy, Commissioner Cirkovic said, given the employer did not comply with its consultation obligations at clause 38 of the hospitality award.
One of the directors cited in explanation for not making contact a “stressful period”, “unusual circumstances” and his belief that any conversation about the chef’s dismissal would be “emotionally charged” due to the pandemic and her personal circumstances.
The director added that because any conversations would not be “face to face” due to lockdown restrictions, he was reluctant to contact the chef and instead left it to her to initiate discussions.
Commissioner Cirkovic said she the submissions had not persuaded, as nothing prevented the employer from calling the chef or arranging to speak to her via other means.
Finding redundancy non-genuine because of the way the company carried it out, the commissioner found the hotel’s “failure to comply with the consultation provision in the award rendered the [chef’s] dismissal unfair”.
Commissioner Cirkovic awarded the chef compensation of two weeks’ pay, to cover the further period she would have remained employed if the hotel had complied with the award’s consultation provision and engaged in the required discussions.
Michelle Sposito v Maori Chief Hotel [2021] FWC 700 (12 February 2021)
