An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.

In Ayton v You Come Pty Ltd t/a Foodworks Ashmont [2019] FWC 6585, a long term casual employee at a supermarket claimed that she was unfairly dismissed after she received a text message from her employer which stated “I decide (sic) to give job (sic) to someone else but I will let u (sic) know if I need to to (sic) work, sorry for that”.

The employer did not participate in a conference held by the FWC or file any submissions. However, in its response to the unfair dismissal application, the employer claimed that it was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (Code).

The employer also claimed that the dismissal was justified, as the employee had engaged in misconduct involving cash register shortages, which the employee had been warned about, and because she was absent from work without explanation or notice. The employer claimed that as a result of the employee’s unexplained absence prior to her dismissal, it decided to give her position to another person to ensure that the supermarket could continue to run.

The employee denied that she had been previously advised of any shortage of money from the cash register. She submitted that she had not been subject to prior disciplinary action, given any warnings about misconduct or actually given a reason for the termination of her employment. The employee also claimed that the employer had tried to dismiss her because she was not Chinese.

Deputy President Sams, who heard the matter, held that there was “not a skerrick of doubt” that the employee had been dismissed by the text message. DP Sams also found that the employer had not complied with the Code as the employee had not engaged in the alleged misconduct.

In response to the employee’s claim that she was dismissed because she was not of a Chinese-speaking background, DP Sams exercised the power under section 590 of the Fair Work Act 2009 (Cth) (FW Act) to conduct inquiries into the allegation. Section 590 of the FW Act allows the FWC to inform itself in relation to any matter in any manner that it considers appropriate. DP Sams’ inquiries uncovered that the employer had previously posted job advertisements on Chinese Australian job forums which stated that Asian employees were preferred.

Based on this evidence, DP Sams formed the view that the employee had been dismissed because of the employer’s preference to hire staff from Asian-speaking backgrounds. DP Sams noted that this conduct likely constituted a breach of the anti-discrimination laws and that the employee was dismissed for an unlawful reason.

DP Sams was satisfied that the employee’s dismissal was harsh, unjust and unreasonable as there was no valid reason for the employee’s dismissal and no procedural fairness was afforded to the employee.

DP Sams also indicated that he would refer his decision and the file to the General Manager of the FWC to consider whether it should be referred for investigation of potential breaches of State and Commonwealth laws.

In a separate decision, DP Sams dismissed the employer’s further submissions about the reason for dismissal, stating that he would not “accept further recreation of history based purely on submissions, without cogent evidence”. The employer was ordered to pay the employee $11,803.01 in compensation (Ayton v You Come Pty Ltd t/a Foodworks [2019] FWC 7029).

Lessons for employers

Employers are reminded that a dismissal will be found to be harsh, unjust or unreasonable where there is no valid reason for dismissal and where there has been a denial of procedural fairness.

In addition, it is unlawful for employers to choose to hire (or not hire) or terminate an employee’s employment on the basis of their race.

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