Sacked: tensions bubble over in the kitchen

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Sacked: tensions bubble over in the kitchen

A chef who was accused of being verbally aggressive and telling her supervisor to 'shut up' was unfairly dismissed, the Fair Work Commission has ruled.

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By Rachel O'Connor

A chef who was accused of being verbally aggressive and telling her supervisor to 'shut up' was unfairly dismissed, the Fair Work Commission has ruled. 

Background


Frances Newchurch began her permanent part-time employment with Tangentyere Council Aboriginal Corporation (TCAC) in 2016.

Several incidents occurred in 2016 involving Ms Newchurch and her supervisors where she was alleged to have been verbally abusive and controlling towards other staff.

The catalyst was on 11 November when she ordered her supervisor out of the kitchen telling her to ‘shut-up’.  On 28 November 2016, a meeting was held with Ms Newchurch and her employment was terminated on the grounds of her conduct.   

Arguments


The commission had to determine if the termination was unfair according to s382 of the Fair Work Act (‘the Act’) and assess whether it fulfilled the test for harshness under s387 of the Act. 

Ms Newchurch submits that her account of the incidents differs vastly from that of her supervisors, including the incident on 11 July 2016.

She submitted that some staff had been taunting and laughing at her and that as a result she asked them to leave the kitchen. She then submitted a formal complaint about the incident to HR.  

Ms Newchurch said she attended a meeting on 16 August 2016, but denied it was about her behaviour or the need to change it. She further denied being ‘verbally aggressive’ on 11 November and questioned other workers' version of events.

Ms Newchurch denied the claim she had problems taking direction from a white person. She was not given any notice about the meeting regarding her termination. 

Evidence was submitted on behalf of TCAC by various witnesses and workers. This included submissions that Ms Newchurch’s behaviour changed once she became a permanent part-time employee. This was in regard to the way she took direction and communicated with her supervisors.

It was submitted that she yelled at her supervisor, Mr Rosalski to ‘get out of the kitchen’. It was further submitted that as a result of these incidents a meeting was held to discuss her behaviour and that she agreed to make changes.

However, the final incident on 11 November was evidence that she had not lived up to this claim. There were various witness statements that suggested she bullied staff and didn't act with respect. 

TCAC claimed there was no evidence that Ms Newchurch submitted a formal complaint. As a result, it sought to re-open the case to include further evidence.  

However, the commission dismissed the TCAC’s application to re-open the case, saying it would not be fair or reasonable. It accepted Ms Newchurch has raised concerns. 

The commission found there was not a valid reason for the dismissal, therefore it had been harsh. It did not find she was blameless,  but said that her conduct required remedial action rather than dismissal.

It further held that even if the dismissal was not harsh, the lack of procedural fairness in the process would be. This included the failure to advise Ms Newchurch that the meeting on 16 August was a performance review meeting.

Additionally, Ms Newchurch was not provided with any warning or reason for her termination nor was she given an opportunity to refute this decision. 

Ms Newchurch did not seek reinstatement. Compensation to be determined at a future date.

Newchurch v Tangentyere Council Aboriginal Corporation [2017] FWC 4231
 
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