Knife-wielding chef wins $17K unfair dismissal payout
A Melbourne chef who was sacked for allegedly insulting colleagues and “aggressively” waving a knife has been handed a huge unfair dismissal payout. The culture of the kitchen in which she worked was a key consideration for the Fair Work Commission. It ruled that “less than inappropriate behaviour” was often expected in a kitchen. And it was not uncommon for a chef to wield a knife.
The employer was also found to have denied the chef procedural fairness. The Commission concluded that the employer had decided to sack the chef before it launched an investigation into her alleged serious misconduct.
This unfair dismissal case – Yanping Yuan v Hai Di Lao Melbourne Proprietary Limited [2024] – is an example of how employers must consider the context of workplace culture when deciding to fire an employee.
Chef dismissed for calling colleague ‘dumbass’ wins big unfair dismissal payout
Yanping Yuan began working for Haidilao as a chef in June 2023 under a sponsored student visa arrangement. Haidilao is a Chinese hotpot chain that operates restaurants across Australia. Ms Yuan worked at the Haidilao Hotpot Emporium in the Melbourne CBD. Her role involved preparing meals for restaurant staff and assisting in the kitchen.
On 22 December 2023, Ms Yuan had a conversation with a Handilao manager. A transcript of this conversation, translated from Mandarin, was provided to the Fair Work Commission. The manager said that Ms Yuan had been issued three warnings since she began in her role. He brought up that Ms Yuan had been involved in an “unpleasant event” at the restaurant.
Chef refused to resign, then was dismissed
The manager said she had not been a “good fit” and asked her if she wanted to resign. Ms Yuan said she “definitely” did not want to resign. The manager responded by saying that she had been dismissed. Ms Yuan then claimed that she had suffered “persecution” at the hands of another manager and asked what the company was going to do about it.
She asked for written confirmation of the decision, stating, “You terminate my contract, bring me something in writing, not from your mouth.” She subsequently left the workplace and did not return.
Employer alleged chef ‘rushed into the kitchen holding a knife’
Later that day, the restaurant’s branch manager sent a letter to Ms Yuan suspending her with pay pending an investigation into the allegations made against her. The letter detailed several allegations. This included that Ms Yuan called a colleague a “dumbass” and another colleague “as a dog’s female genitals.”
She was also alleged to have “rushed into the kitchen holding a knife and aggressively asked a colleague where the grindstone was.” Handilao also accused Ms Yuan of disobeying a direction to prepare a steak for a birthday celebration
Chef called out employer for ‘Illegal behaviour’
On 27 December 2023, Ms Yuan emailed Haidilao’s HR manager to say that the allegations against her were “illegal and baseless.” She claimed the company was “bullying” its staff. The HR manager replied saying that Ms Yuan had not been dismissed. Rather, she had been suspended pending an investigation into her misconduct.
However, Ms Yuan replied saying that she had already been dismissed. She told the HR manager that Handilao was making “excuses” for its “illegal behaviour.” On 25 January 2024, Ms Yuan had a two-hour online meeting with the HR manager. The duo discussed the serious misconduct claims against her and Ms Yuan gave her side of the story.
Following the meeting, on 24 February 2024, the HR manager emailed Ms Yuan to inform her that the allegations against her had been substantiated. She was told the next day that she was summarily dismissed for serious misconduct. Ms Yuan was offered two weeks’ pay in lieu of notice.
Parties contested date of dismissal
Ms Yuan subsequently lodged an unfair dismissal application with the Fair Work Commission. She argued that she had been dismissed on 22 December 2023. She claimed the investigation into her allegations and her final termination were merely attempts to justify an already-made decision.
Meanwhile, Haidilao argued that Ms Yuan was not dismissed in December but was placed under investigation. It contended that the final decision to terminate her employment was justified based on the findings.
In response to Ms Yuan’s unfair dismissal claim, Handilao offered evidence based on interviews with two staff members. The company asked them about the offensive names Ms Yuan allegedly called them and about her performance generally. Handilao said that Ms Yuan refused to respond to a second opportunity to respond to her colleagues’ claims.
Fair Work considered context of workplace culture
At Ms Yuan’s unfair dismissal hearing in December 2024, the Fair Work Commission sided with her. It heard in-person evidence from the two workers and did not consider their testimony as “convincing.” The Commission, however, did accept that the two workers and Ms Yuan did not get along and had little respect for each other. It also acknowledged that what Ms Yuan said was “less than appropriate.”
While making these observations, the Fair Work Commission noted that the “context” of the situation was critical. It said that the workplace culture Ms Yuan worked in was indicative of a busy restaurant kitchen. In this environment, it said that it was not controversial to say that chefs often spoke to each other “less than appropriately.”
Given this workplace culture in Handilao’s kitchen, the Commission did not agree that offensive language would necessarily amount to serious misconduct.
Fair Work said carrying knife in kitchen ‘not controversial’
The Fair Work Commission addressed Handilao’s accusation that Ms Yuan had been seen waving a knife “aggressively” a number of times. It said that one of Ms Yuan’s coworkers had reported that she had been “extremely frightened” after witnessing this. However, Handilao did not provide this co-worker to be cross-examined at the unfair dismissal hearing.
The Commission noted that Ms Yuan denied ever wielding a knife aggressively. It found that this accusation had not been proven by Handilao. It also factored in the workplace culture of the kitchen. The Commission said that it would not be “controversial” for a chef in a busy kitchen to be seen “carrying a knife looking for a grindstone.”
Procedural fairness was denied, said Fair Work
With regards to the allegation that Ms Yuan had refused to make a steak and argued with her manager about it, the Fair Work Commission determined that this indeed happened. It said that this refusal constituted misconduct. However, it stopped short of regarding this refusal as serious misconduct justifying Ms Yuan’s summary dismissal. The Commission therefore ruled that there was no valid reason for Handilao to terminate her employment.
It also felt that the company’s investigation into the serious misconduct allegations was not fair, thorough or objective. The Commission said that the HR manager, who was based in the United States, did not sufficiently determine if the information given to her about Ms Yuan’s misconduct was in fact true. Specifically, the manager did not make an effort to ascertain if she was even working on the days that the alleged misconduct took place.
Given these failings, the Fair Work Commission therefore found that Ms Yuan had been denied procedural fairness. It said that Handilao had not carried out its investigation with the “appropriate amount of rigour and due diligence.”
Chef wins huge unfair dismissal payout
The Fair Work Commission said that it was “clear” Ms Yuan had been dismissed on 22 December 2023. This was the day in which she had the conversation with a manager that was recorded. The Commission said that she had been fired without notice or warning. It also said that the decision had been made without any evidence that Ms Yuan was guilty of the reasons for her termination.
What all this meant was that, in the Commission’s view, Ms Yuan had been fired before the investigation into her alleged serious misconduct took place. It said that even if it granted that Ms Yuan was fired in February 2024, Handilao did not have a valid reason to have done so.
Ultimately, the Fair Work Commission decided that Ms Yuan had been unfairly dismissed. It therefore ordered Handilao to pay her an unfair dismissal payout of $17,419 in compensation.
Dismissed worker argues ‘f**king idiot’ slur part of workplace culture
Another unfair dismissal case that involved a worker who claimed their behaviour was indicative of the culture at their workplace is Mr John Lanzafame v Artisan People Pty Ltd [2023]. John Lanzafame began working for Artisan People in March 2019. Trading as Visco Foods, the company sources and delivers food to hospitality businesses. Mr Lanzafame was employed as a brand ambassador. He had previously worked as a chef and restauranter.
Mr Lanzafame was fired in May 2022 for serious misconduct. Visco Foods alleged that he engaged in inappropriate communications with colleagues and potential clients.
Told colleague she was ‘a suck a..e’
The first of these inappropriate communications took place in December 2020. Mr Lanzafame allegedly sent an email to a female colleague saying “Don’t ever talk to me, don’t ever email me.” He said that she was “nothing,” “useless” and “a suck arse.” The female colleague told the Fair Work Commission that she felt “degraded” and “bullied” by the comments.
In March 2021, Mr Lanzafame had also called the female colleague a “f**king idiot.” She said she was “shocked” by this insult and that it left her in tears. She said that in her 50 years of life she had never been spoken to like that by a workmate.
In April 2022, Mr Lanzafame was alleged to have sent a series of text messages to a male colleague. These contained insults and threats directed at the colleague and his son. Mr Lanzafame wrote that the colleague was “licking [a manager’s] arse” and called the colleague a “looser (sic).” When the colleague replied, Mr Lanzafame told the colleague to “Be careful.”
Worker had conflict of interest
Visco Foods also alleged that Mr Lanzafame had been working as a chef at Brighton Golf Club, a Visco Foods customer. It was claimed that he was engaged as an executive chef for two days a week to assist with kitchen operations. Visco Foods considered this a serious breach of his contract’s conflict of interest clause. It also said it was a potential risk to the company’s reputation.
Visco also alleged that Mr Lanzafame failed to comply with company policies and procedures on multiple occasions. It said he did not use company forms for order submissions and failed to complete credit application forms required to establish new customer accounts. These indiscretions were also viewed as serious misconduct.
Worker argued offensive language part of workplace culture
In May 2022, Mr Lanzafame was dismissed for serious misconduct. He was told by his manager “don’t bother coming back tomorrow. You’re out of here.” He subsequently lodged an unfair dismissal application with the Fair Work Commission. In his application, Mr Lanzafame admitted that the language he used toward colleagues was regrettable.
He said that his choice of words could have been “wiser.” However, he claimed that offensive language was “typically used” at Visco Foods and “often used” in the kitchen. Mr Lanzafame said that swear words had “long been tolerated” at the company. He said that workers often used them and were not subject to disciplinary action.
Employer admitted it did not follow procedure
Mr Lanzafame argued that his dismissal had been harsh as the incidents had occurred months or years prior to his sacking. He claimed that Visco Foods did not taken any action at the time that they happened, despite knowing about them.
Visco Foods, on the other hand, argued to the Fair Work Commission that the sacking was just. It said that it had an obligation to ensure the safety and wellbeing of its staff. The company, however, did admit that it in dismissing Mr Lanzafame it had not “followed procedure to the letter.” Despite this, Visco Foods said that it was “100% sure” it made the right move in terminating him.
Fair Work rejects workplace culture argument
At Mr Lanzafame’s unfair dismissal hearing, the Fair Work Commission found that Visco Foods did have a valid reason to sack him. It rejected Mr Lanzafame’s argument that his comments needed to be considered in light of the inappropriate language often used in the workplace. Instead, the Commission sided with testimony from the colleagues he had insulted, who said they were offended by his language.
However, turning to the procedural fairness of Mr Lanzafame’s termination, the Fair Work Commission sided with him. It said that Visco Foods had not “sufficiently” warned him about his inappropriate behaviour. The Commission said that employees must be “warned not to abuse coworkers.”
It also concluded that Visco Foods did not give Mr Lanzafame an opportunity to respond to his misconduct. This was because he only became aware of some of the complaints against him around the time of, or after, his termination.
Unfair dismissal payout reduced due to serious misconduct
The Fair Work Commission found that Visco Foods did have a valid reason to sack Mr Lanzafame. However, it concluded that the lack of procedural fairness he was afforded outweighed this.
Finding that he had been unfairly dismissed, the Commission said that reinstatement was not appropriate. It estimated that Mr Lanzafame would have been employed by Visco Foods for a further two weeks. He was awarded monetary compensation. However, the amount was reduced by 50 per cent due to his serious misconduct.
After also deducting money Mr Lanzafame had earned since his sacking, he was awarded an unfair dismissal payout of just $100.
Unfair dismissal payout, find out what you may get
If you have been let go unfairly, you have the right to challenge it. But you must act fast. You only have 21 days from your dismissal date to lodge a claim with the Fair Work Commission.
At A Whole New Approach, we’ve supported over 16,000 Australian workers in taking action through the Fair Work Commission over the past 30 years. Our experienced team is here to help you build the strongest possible case against your employer.
We operate on a no win, no fee basis, and your first consultation is free and completely confidential. Call us today on 1800 333 666.
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