By Gaby Grammeno Contributor

A chef sacked for bad language, refusing an order and ‘aggressively’ waving a knife has won her unfair dismissal case, highlighting the importance of context and rigorous investigation before branding behaviour as serious misconduct.

The worker was employed from June 2023 by a Chinese food chain’s business in a Melbourne emporium. She was on a sponsored student visa due to expire in September 2024. 

Six months into her employment as a chef, mainly preparing meals and catering for restaurant staff and assistants, the employment relationship had deteriorated – she felt she was being bullied, ‘persecuted’ and that her complaints were not being addressed. Her employer in turn complained about her work performance. 

On 22 December 2023, she was told she was not a good fit for the business and invited to resign. When she declined, she was told it would be her ‘last day’ of working there.

Later that day she received a letter from her manager advising her of allegations of serious misconduct against her and that she was being stood down with pay, pending an investigation. 

Though she was given some opportunity to participate in the employer’s investigation and respond to the allegations, she thought her employer’s decision to terminate her had already been made and communicated to her.

After receiving confirmation of her termination, she applied to the Fair Work Commission for an unfair dismissal remedy, seeking reinstatement, or if not, compensation.

 

In the Commission

The chef submitted that there were no grounds for terminating her employment. She claimed she was the victim of fabricated evidence contrived by her former manager to cover up the manager’s own bullying and her failure to address the chef’s complaints. She also cited what she referred to as an attempt by the company’s HR manager to cover up her unlawful termination on 22 December 2023 and the associated attempt to force her to sign a resignation on that day.

She said she’d made numerous complaints about bullying and safety concerns in her workplace, that her complaints were ignored or not acted upon, and that her termination was partly in retaliation for these complaints. She claimed she’d been a good worker, and denied the formal allegations of misconduct that the employer cited as the reason for her termination.

The allegations related to her conduct on four separate occasions. First, she’d verbally harassed a co-worker accusing him of fabricating his academic record and calling him a 'dumbass'. Another time, she’d rushed into the kitchen holding a knife and ‘aggressively asked a colleague where the grindstone was’. She’d referred to a colleague as a '[female] dog’s … genitals', and she’d refused an order to prepare a steak for a birthday celebration, engaging in a heated conversation about it with her supervisor.

Commissioner Scott Connolly heard evidence from the employer that the chef had been sent several warning letters, but she denied receiving them, and they were never produced in court.

The company’s position was that the manager who verbally dismissed her on 22 December 2023 was not acting on behalf of the company and held no authority or formal human resources position in the business. The Australian HR manager for the employer was based in Los Angeles. She gave evidence that in December 2023 she became aware of staff members’ complaints about the chef. She understood that the chef’s manager had tried to address these issues previously but they remained unresolved and were appearing to escalate. She then decided to suspend the chef to allow for a proper investigation into the allegations.

She instructed the chef’s supervisor to advise the chef of this, and the supervisor gave the chef a letter to that effect, which set out the allegations and invited the chef to attend an online meeting to provide a response.

This was followed up by a further email confirming the suspension decision, repeating the invitation for the chef to respond and inviting her to an online meeting on 25 January 2024. This meeting lasted about two hours, and the HR manager said the chef had ample opportunity to respond to each allegation. She was also advised of the potential outcomes of the investigation, including termination.

Three weeks later the HR manager invited the chef to a further meeting to address the concerns, but the chef did not attend.

Considering this failure to respond, the results of the investigation and the fact that some staff had said they’d resign if she returned to the workplace, the HR manager decided the chef’s behaviour amounted to serious misconduct, and issued a notice of termination on 25 February. 

Following this, the chef made social media posts damaging to the employer and allegedly threatening other staff.

Commissioner Connolly formed the view that it was more likely than not that the chef had used an inappropriate tone and language in speaking to other staff, but that ‘context … is critical’.

 

Context

‘In this context, kitchen hands and chefs talking robustly, perhaps less than appropriately towards each other is hardly controversial. … I do not accept less than appropriate language of itself would necessarily constitute misconduct, let alone be grounds for dismissal,’ he said. Likewise, he noted that a chef carrying a knife in a kitchen and looking for a grindstone is not necessarily a threat to health and safety.

Moreover, contested evidence and the absence of a key witness meant that misconduct involving a knife was not established.

The Commissioner accepted that her refusal to prepare a steak amounted to a degree of misconduct, but took the view that the misconduct was not serious, and not a valid reason for her dismissal, which was harsh, unjust, and unreasonable. 

 

Investigation was inadequate

He was not satisfied that the employer had conducted a fair, thorough and objective investigation into the allegations. He said the LA-based HR manager was unable to articulate that she took proactive steps to verify the information she was given by the management team in Melbourne.

When she was told in December 2023 that it was her ‘last day’, this was clearly an unauthorised dismissal without notice, prior warnings or evidence of a valid reason to justify dismissal. 

‘I do not accept that [the chef] has been afforded procedural fairness or that her employer has applied an appropriate amount of rigour and due diligence into the allegations made against her prior to forming a decision to terminate her employment’, he said.

He also said that the delay in responding to allegations of misconduct dating back three months did not appear consistent with having strict procedures for conducting workplace investigations.

Though reinstatement was not appropriate due to the breakdown of the employment relationship, the Commissioner ordered the employer to compensate the chef, as she’d suffered financial loss due to the dismissal, and had not been able to secure a comparable alternative income afterwards.

After taking into account all the matters to be considered in determining an amount, and reducing the sum by 5% because of the chef’s misconduct, the Commissioner ordered the employer to pay her $15,622.48 less tax, plus superannuation.

 

What it means for employers

Terminating a worker’s employment is a serious matter, particularly so in cases of serious misconduct. Before making this decision an employer should take steps to clearly provide an employee with due warning and an opportunity to rectify objectionable behaviour.

 

Read the decision

Yanping Yuan v Hai Di Lao Melbourne Proprietary Limited [2024] FWC 3313 (12 December 2024)