Zambrero store ordered to pay worker compensation after firing her over penalty rates and saying she looked like a “homeless person”

A Zambrero franchisee has been ordered to pay a former worker $2000 in compensation after he fired her on the spot when she and her mother went to speak with him about a company email he sent singling out her performance.

The email in question was sent to other staff members the week after the worker had asked if she would be paid penalty rates to work on Anzac Day.

The employee lodged unfair dismissal proceedings with the Fair Work Commission after being dismissed from her part-time role as a fast food server in May.

In April this year, the worker was rostered on to work at Zambrero Victoria Park for April 25, 27 and 29.

The commission heard evidence that the worker asked her boss whether she would be receiving penalty rates for the shift worked on April 25, the Anzac Day public holiday, but was informed the business would only be paying the “normal rate for all public holidays”, and that anyone not happy with this could have their shift taken by someone else.

The worker completed her Anzac Day shift but was not paid public holiday loading rates. The Commission heard that on the same day the payslip for that pay cycle was sent, the employer sent an email to all staff that the worker felt singled her out for poor performance.

In an email seen by the Commission, the franchise operator said he had issues with “almost everyone” on staff, and then mentioned the worker by name and said “your uniform was incomplete all week last week. Also coming to work on time is important if your shift starts at 12:00 you need to be ready to work at 12 PM”.

The worker arrived early for her shift on the day that the email was sent, and approached the franchise owner with her mother to discuss penalty rates and the email.

The Commission was told that when the employee’s mother asked why she wasn’t paid penalty rates for Anzac Day, the employer said “it was his choice” what he paid.

The worker asked him why she was singled out in the email to other staff for her behaviour, and the Commission heard his reply was “because she had not worn her cap the week before and he said she looked like a homeless person”.

In the course of this conversation, the worker said the franchise owner turned to her and said, “you’re fired, you can leave now”.

The employer provided evidence to the Commission that the staff member was dismissed because of repeatedly not complying with work rules, putting the business and customer’s health at risk, and “rising her voice at the employer [sic]”.

However, in considering the case, Fair Work Commissioner Bruce Williams said that the concerns raised by the worker during the meeting with the employer and her mother were “quite reasonable”.

“I am not satisfied that there were valid reasons to dismiss,” the commissioner found.

He said even if there were valid concerns about the worker’s performance and presentation, these had not been formally communicated to her at any point, except “in the most general sense” through staff-wide emails.

He ordered Zambrero Victoria Park to pay the worker $2,184 in compensation, the equivalent of seven weeks’ pay.

Zambrero general manager Bianca Azzopardi told SmartCompany this morning that the Zambrero support office has “knowledge of the dismissal case involving a franchise partner and the previous employee in question”.

“In this case and with all situations, we continually provide our franchise partners with advice and guidance to consider in regards to the operation of their businesses.

“Procedures and systems are also put in place across the group for all aspects of staff management and employee performance that are not only aligned to national employment standards but go above and beyond to create a positive workplace culture that makes Zambrero an enjoyable place to be and be a part of.”

SmartCompany attempted to contact the franchisee but did not receive a response prior to publication. The staff member could not be contacted for comment prior to publication.

Regulators watching businesses closely on communication and penalty rates

Workplace lawyer Peter Vitale says he believes the claims made about the employer in this case are the exception among business operators.

“I don’t think that the vast majority of employers … would openly single out an employee,” he says.

Businesses need to stay vigilant when communicating with staff about performance, he says, and be careful that any mention they make to other employees about a worker does not have the potential to cause disputes down the line.

“The first obvious thing here is that singling someone out in that way might constitute part of a pattern of bullying behaviour — that’s something employers need to be very careful about.” 

Vitale warns businesses that regulators don’t take a kind view of employers if they are suspected of knowing their obligations but breaching these. While he hopes the claims made about the employer in this case are only a concern for “a minority” of businesses, he says the case does suggest not all business owners communicate with staff in an appropriate way.

“I think this demonstrates the employer may need to brush up on a lot of things, including his communication skills,” he says.

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