A noodle bar waitress who was sacked after asking for a pay rise has won her unfair dismissal claim and $4,000 compensation.
The Fair Work Commission rejected the employer’s argument that the woman was sacked because of poor work performance, finding that she was unfairly dismissed because her husband had told her boss that she was not being paid the legal Award rate and wanted more money.
Kailun Lin had worked at the Jack’s Noodle restaurant in the northern suburbs of Adelaide since April 2017.
The Commission heard that she worked regular shifts on Tuesday and Wednesday nights, averaging 13 hours a week and was paid between $10 and $13 an hour.
She often worked other shifts as well, which were not recorded and paid in cash.
As a Food and Beverage Attendant Level 2 under the Restaurant Industry Award 2010, she was entitled to be paid $24.41 an hour in 2017/18, and $25.28 an hour by the time she was sacked.
In addition, she should have received a casual loading of 25 percent, and extra payments to work on Saturdays and at other times.
Husband complains about pay rate
At the end of her shift on November 24 last year, Ms Lin’s husband Scott Chappell confronted Jack’s Noodle boss Mr Yujie Liu about her pay rate, because she was reluctant to do so herself.
In response, Mr Liu told Mr Chappell that the business could not afford to pay more, so Mr Chappell said that his wife would no longer work extra shifts and only work her rostered two days a week until she could be paid properly.
Three days later, during her next regular shift, Ms Lin told the Commission that she was fired:
“Mr Liu told me that he was not happy about Scott coming in to see him last week and talking about how I should be paid correctly. He gave me my pay from last week and that day, and told me not to come back to work.
“He talked about how after all his expenses, his salary is lower than mine and then said words to the effect of ‘I am a small business, if you want a higher paid job you should go find a big business.’”
Mr Liu told the Commission that he had not dismissed Ms Lin, but rather temporarily stopped arranging work for her due to serious misconduct, involving poor customer service and attitude arising from her “family problems” brought to a head by Mr Chappell attending the workplace to demand a pay increase which was not warranted.
He argued that this caused damage to the reputation, viability and profitability of the business.
Further, the restaurant boss described the unfair dismissal application and Ms Lin’s claim for compensation as “malicious blackmail”.
Ms Lin denied that there were any significant work performance matters, or that she had ever been warned that her continuing employment was in jeopardy.
What the Commission found
Commission Peter Hampton found that Ms Lin had been dismissed, and the reason for the dismissal was her husband’s request for a pay rise on her behalf.
“It is clear to me that Mr Liu considered that the approach made by Ms Lin’s husband, combined with his view about their family arrangements (that the husband should go out and get a job and Ms Lin should work for a large business if she wanted to be paid more money), formed the actual reasons for the decision,” Commission Hampton said.
He described Ms Lin’s evidence as “given openly and honestly” and found that she had indeed been paid below legal wages as set out in the Award.
“I ultimately accept that she was initially paid something in the order of $10.00 per hour with that increasing to $13.00 per hour at the conclusion of employment,” he said.
“It is apparent to me that the obligations of the Award played very little, if any, role in the determination of the wages and conditions under which Ms Lin was engaged.”
While he did find that some allegations of poor customer service and customer complaints against Ms Lin were substantiated, Commissioner Hampton concluded that they did not constitute a valid reason for dismissal, and the dismissal had not been consistent with the Small Business Dismissal Code.
Commissioner Hampton said he was “satisfied that the dismissal of Ms Lin was harsh, unjust and unreasonable.”
He ordered Jack’s Noodle to pay her the equivalent of twelve weeks pay which was $3,944.
Ensure you make the right claim
Industrial relations expert Miles Heffernan from Fair Work Claims said his firm would have lodged a different claim on behalf of Ms Lin.
“Here we had an employee clearly exercising a workplace right, which was to make an inquiry about her pay, and she was sacked because of it – so not only was her dismissal unfair, it was also unlawful, which meant that she was entitled to make a general protections claim involving dismissal,” he said.
“The advantage of making a general protections claim is there is no limit on the amount of compensation that can be awarded, unlike an unfair dismissal claim, and penalties can be imposed on the employer too.
“We would definitely have fought this case as an unlawful dismissal and demanded substantial compensation if we had represented Ms Lin.”
Mr Heffernan advised anyone who has been dismissed from employment to seek urgent expert advice before taking action.
“You only have 21 days from the date of your dismissal to lodge a claim, and you can only make one type of claim, so it’s important that you get the right advice to ensure that you make the best claim to achieve the outcome that want – whether that is reinstatement, or the maximum amount of compensation that you deserve to get,” he said.
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