'Working' in the tearoom - unfair dismissal

02 June 2020

The FWC has ruled in favour of an employer that terminated the employment of a worker who had spent 44% of his time, excluding his entitled breaks, in a tearoom.

In issue

  • Excessive time in the tearoom, as opposed to working did provide valid reason for termination and the termination was fair.

The background

Mr Shokry Milad and Mr Medhat Botros (the Applicants) lodged an application to the Fair Work Commission (FWC) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (FWA).

Melbourne Health employed each of the Applicants in the role of ‘environmental services employee’ responsible for the cleaning of the hospital operating suites.

Each of the Applicants were terminated for serious misconduct arising from the following circumstances where the Employer found that:

  1. they were spending an hour or more of their time each day in the tearoom while they should have been on duty;
  2. they only had 30-minute meal breaks allocated to them in the tearoom; and
  3. when the allegations were put to them, their subsequent denials or reasons were unsatisfactory.

Each Applicant put forward that their dismissal was a product of corruption and racism and that dismissal was an excessive penalty given their age and length of service.

Further, they argued that they were discriminated against as the other employees who were also caught for doing same thing were not subjected to dismissal.

The decision at trial

The FWC accepted the evidence out forward by Melbourne Health that the two employees spent substantial time in the tearoom rather than working. Further the FWC accepted that such time constituted being absent from work and was misconduct. As such, the FWC was satisfied on the evidence that Melbourne Health held valid reasons for its dismissal of both Applicants pursuant to s 387 of the FWA.

Significantly Melbourne Health had CCTV footage of the tearoom which is elected not to submit into evidence in the FWC. The FWC noted this was surprising considering the relevance of the CCTV footage and discounted privacy concerns raised by Melbourne Health.

The Court recognised that the age of the Applicants’ and length of service could render a hard, unjust or unreasonable termination of employment. However, the serious misconduct and absence of remorse outweighed this factor.

The process to termination was considered fair by the FWC noting:

  1. each employee was notified of the reasons for termination prior to the termination; and
  2. the employees did respond to the reasons prior to termination (even though they were not show the CCTV footage and the FWC commented this was unsatisfactory).

Implications for you

If employees are not doing the job for which they are paid, employers have a valid reason for dismissal. This case is a reminder to ensure management checks are in place to identify absences during work hours.

Further, it is best practice to provide the evidence of the misconduct to the employees, in this instance although not fatal it would have been wise to show the employees the CCTV footage for their comment.

Shokry Milad: Medhat Botros v Melbourne Health T/A Royal Melbourne Hospital [2020] FWC 1939

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