By Alex Millman and Troy Wild, NRA Legal
A café supervisor who was dismissed for calling his manager a ‘racist b****’ has been awarded a to-be-determined amount of compensation by the Fair Work Commission.
The case highlights how the particular circumstances in which an action was taken can drastically change the outcome.
Coffey v QBar Darwin Pty Ltd  FWC 4312
The Applicant, Mr Phillip Coffey, was employed by QBar Darwin on a casual basis between October 2015 to March 2017, after which he did not receive any further shifts.
Mr Coffey started having issues with his employment when a new manager, Ms Marii Stanley, commenced employment as the manager of the café.
Ms Stanley was Estonian, and shortly after commencing Mr Coffey and other staff noticed a ‘cultural shift’ as Ms Stanley had a habit of employing staff of Estonian extraction and conversing with these staff in their native language, and generally created the impression that these staff were ‘favoured’ over other staff.
Mr Coffey raised his concerns, and those of other staff, with the owner of the café in October 2016, describing the situation as ‘cultural exclusion’. Mr Coffey was assured that hiring decisions were made on the basis of skills and experience, not cultural background.
On 17 February 2017, Ms Stanley and a number of the Estonian staff were leaving work to attend an exercise class, and Ms Stanley farewelled the remaining Estonian staff in their native language.
When Mr Coffey farewelled Ms Stanley in English, she appeared to ignore him. Mr Coffey then said to Mr Lin, another employee, “she (Ms Stanley) can be a racist b****.” This was overheard by a friend of Ms Stanley, who reported it to her and the café owner.
Mr Coffey admitted to making the remark, and made no apology for doing so. Rather, he contended that, as a comment in a private conversation, it ought not be used against him. He also claimed that the language in the workplace was sufficiently robust that the comment was not out of character of the workplace.
The café owner attempted to meet to resolve issues between Mr Coffey and Ms Stanley, however Mr Coffey refused, claiming that there had been “enough excuses made for bad behaviour shown to me and other colleagues by my manager over the last few months …”
He also alluded to speaking to regular customers about the cultural issues in the café.
At the same time, the café was experiencing a downturn in business. Because of this, combined with the strained relationship between Mr Coffey and Ms Stanley, the café owner made the decision to not offer Mr Coffey any more shifts.
As a preliminary matter, Commissioner Michelle Bisset held that, as a regular and systematic casual employee who was suddenly not offered any further shifts, Mr Coffey was dismissed from his employment.
Commissioner Bisset determined that of Mr Coffey’s actions, his comments about Ms Stanley and his discussing internal staff issues with customers were the more egregious. The Commissioner noted that Mr Coffey’s “saving grace” was that the “racist b****” comment was not made in front of customers.
Commissioner Bisset described Mr Coffey’s actions as “at best … inappropriate and unprofessional”, and warranting some form of reproach, but was not convinced that they warranted dismissal, and consequently found that there was no valid reason for the dismissal.
The Commissioner also found that by simply not giving Mr Coffey any further shifts, the café owner had denied him the opportunity to respond to the reasons for his dismissal.
In light of these factors, Commissioner Bisset determined that Mr Coffey’s dismissal was harsh and unjust. She also determined that reinstatement was not practical, and asked the parties to make submissions about the appropriate amount of compensation.
Lessons for employers
Commissioner Bisset’s comment about Mr Coffey’s “saving grace” highlights how the particular circumstances influence the outcome of the case. It is quite likely that the Commissioner would have found in favour of the employer if Mr Coffey had made his remark in front of customers.
As such, when considering whether to dismiss an employee, it is vital that employers consider all of the circumstances, and understand that there is no such thing as a ‘one size fits all’ approach to dismissals except in the most serious of circumstances.
The case also emphasises how regular and systematic casual employees cannot simply be dropped off the roster at the employer’s convenience; the mere fact that an employee is a ‘casual’ does not mean they do not have the right to ongoing employment in these circumstances.
It is this need to consider all of the circumstances which makes dismissing an employee a legal minefield.
NRA can assist you to understand your obligations and the matters you need to consider in your own particular circumstances; to find out how, call 1800 RETAIL (1800 738 245).