Acting with emotion (rather than logic) can unfortunately lead an employer to make poor or irrational decisions about terminating an employee’s employment.

The case of Ms Kristen Gordon v Sens Catering Group Pty Ltd [2022] FWC 1790 is a timely reminder for employers to minimise emotion in the decision-making process and to ensure that a fair process is followed.

Background

Kristen Gordon (Applicant) was employed as a supervisor at Sens Catering Group Pty Ltd (Sens Catering) for over 14 months prior to her dismissal.  The Applicant assisted the owner, Jerry Chen (Mr Chen), to open multiple businesses and had a strong positive working relationship with managers and staff.

Mr Chen’s ex-wife, Ms Wang, was brought into the business in November 2021 to replace the former general manager.  The Applicant subsequently asserted that:

• Ms Wang and Mr Chen (on separate calls) asked the Applicant to post in the group chat that Ms Wang was Mr Chen’s wife, and that Ms Wang would be making business decisions in place of the previous general manager.

• Ms Wang pushed the Applicant to resign various times, with Ms Wang saying to the Applicant that she (the Applicant) could “go to Fair Work … if you want, we don’t care.”

• On 12 March 2022, during a managerial group text, the Applicant expressed her view that the business needed to hire another staff member. Ms Wang became very irate and shut the conversation down. A manager gave evidence that she witnessed Ms Wang smashing her phone on the on the counter, jumped up and down while screaming that the manager must “Fire her (the Applicant) immediately,” and “get a new supervisor” and that she “doesn’t care what it costs.” The manager said that Ms Wang informed her that the Applicant was arguing with her and because there were no emojis in the text messages, the Applicant was being rude.

• That same night, Ms Wang phoned another staff member and said that she will give the other staff member $60,000 to do the Applicant’s job. The staff member gave evidence that Ms Wang had asked her, “are you worried about hurting her feelings? Don’t worry about that we have wanted to get rid of [the Applicant] for a long time.” Ms Wang informed the staff member that if she rejected the role, either way, the Applicant is ‘gone’ and they will ‘get a new supervisor anyway’.

• The next day on 13 March 2022, two managers advised the Applicant that they were forced to dismiss her on Ms Wang’s instructions.

On 20 March 2022, Ms Wang offered the Applicant two weeks of paid leave and a position running a new store that they would be part owners of. The Applicant was suspicious of this offer and said that it was not an offer to return to her job but to run a mystery café in a job from people that did not know her and in a business that Sens Catering had a 5% share of or ‘something like that.’ The Applicant asked to see something in writing. However, nothing was ever given to her.

The Applicant filed an unfair dismissal application before the Fair Work Commission (Commission). Sens Catering raised a jurisdictional objection that the Applicant was not dismissed.

Finding

The Commission found that the Applicant’s employment was terminated on 13 March 2022 during the meeting with the two managers.  The Commission also found Sens Catering never offered to rescind the termination and / or any evidence to suggest an offer to rescind was ever accepted by the Applicant.

The Commission also found that the Applicant was unfairly dismissed for the following reasons:

• The Commission was not satisfied that Sens Catering had a valid reason for dismissal based on the Applicant’s conduct or performance. Relevantly, the evidence did not support a conclusion that the Applicant refused to follow a lawful and reasonable direction and there was nothing else to support a conclusion that the Applicant’s action constituted a valid reason for dismissal.

• The Applicant was not given an opportunity to respond to the reason for termination. Relevantly, Ms Wang gave instructions to the manager to dismiss the Applicant immediately. There was no suggestion that anything that the Applicant said could have changed the decision that she be dismissed.

• The evidence did not support that the Applicant was given a warning regarding her performance.

• Sens Catering’s lack of dedicated human resource management specialist was likely to have impacted on the procedures followed in effecting the dismissal.

• The Applicant was undergoing a fertility program at the time of her dismissal and Ms Wang was aware of this. The termination had a significant financial impact on the Applicant which has impacted on her ability to continue with the program.

The Commission held that reinstatement was not appropriate.  However, Sens Catering was ordered to pay the Applicant $5,357.80 less applicable taxation, plus 9.5% superannuation.

Key Lessons

• Employers should not dismiss an employee when affected by emotion. Cool heads make wise decisions.

• Employers should have a genuine reason to dismiss an employee and have evidence to support the reasons should the decision be challenged subsequently.

For more information please contact:

Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au                                                                                                            

Geeta Vanugopal
Associate
T +61 3 9611 0135
E: gvanugopal@sladen.com.au