False sexual harassment claims used to dismiss chef

An “openly gay” chef who was accused of sexual harassment has been awarded over $16,000 after he was found to have been unfairly dismissed. His employer, a Thai restaurant, argued to the Fair Work Commission that his dismissal for serious misconduct was fair under the Small Business Fair Dismissal Code.

The restaurant had sent out a survey to its female staff asking if they had been sexually harassed by the chef. But the Fair Work Commission found that rather than proving sexual harassment, the survey was used by the restaurant as a way to quickly dismiss him for serious misconduct. It was also found that the restaurant had not adhered to the Small Business Fair Dismissal Code.

This unfair dismissal case –  Ratchapol Pewsukngem v Choc Dee Thai Restaurant [2023] – was also complicated by a range of other issues. This includes the power imbalances within the restaurant. And the fact that the chef had prior to his dismissal for serious misconduct made a stop bullying order against the owner’s partner.

Chef accused of sexual harassment is awarded over $16,000 for unfair dismissal

Ratchapol Pewsukngem started working as head chef for Choc Dee Thai Restaurant in Cairns on 1 September 2019. During his Fair Work Commission unfair dismissal hearing, 57-year-old Mr Pewsukngem was described as “openly gay.” Among other names, he called himself “Jenny.”

On 1 January 2023, Mr Pewsukngem wrote a letter to Choc Dee alleging that a 30-year-old manager had been bullying him. This manager was the de-facto partner of the restaurant’s manager, 70-year-old Craig McGilvery. In his complaint, Mr Pewsukngem outlined that he had been victim to multiple instances of bullying that saw him seek psychological assistance.In one incident, he detailed how the manager had told him to “stop barking” during a verbal argument in the kitchen. Mr Pewsukngem also detailed how the manager had pressured him to work against medical advice due to a back injury.

On 1 February 2023, Mr Pewsukngem filed a stop bullying application with the Fair Work Commission. In the application, he named the manager and said that “the behaviour of her makes me very stressed. I had to go see psychology.” This action taken by Mr Pewsukngem would later turn out to be a key reason why Choc Dee dismissed him for serious misconduct.

Restaurant issues sexual harassment survey to staff

Just over a week later on 10 February 2023, Choc Dee sent out a survey to eight of its female employees. The survey said that it was a result of Mr Pewsukngem having made a stop bullying application with the Fair Work Commission. It asked staff to answer the questions “honestly.” The survey asked staff if they had “seen or heard” any sexual harassment, harassment or bullying towards Mr Pewsukngem. Also, whether any staff had seen or heard any form of name calling from Mr Pewsukngem towards colleagues.

The results of the survey did not bode well for Mr Pewsukngem. He was subsequently summarily dismissed for serious misconduct on 14 February 2023, while he was commencing his approved annual leave. His dismissal letter from Mr McGilvery cited serious misconduct, stating that Mr Pewsukngem had sexually harassed six female employees, as reported in the survey.

This included “inappropriately touching their buttocks, trying to kiss them and also body shaming” them. Mr McGilvery stated in the dismissal letter that he was “totally shocked” to uncover that Mr Pewsukngem had sexually harassed his colleagues. The dismissal for serious misconduct came less than two weeks after Mr Pewsukngem had submitted his stop bullying order with the Fair Work Commission. Feeling as if he had been treated adversely, he subsequently made an unfair dismissal application.

Choc Dee raises Small Business Fair Dismissal Code objection

When Choc Dee received notice of Mr Pewsukngem’s unfair dismissal claim, Mr McGilvery raised a jurisdictional objection to it. He argued to the Fair Work Commission that the dismissal for serious misconduct was fair based on the Small Business Fair Dismissal Code. This was because he held a belief on reasonable grounds that Mr Pewsukngem’s conduct warranted immediate dismissal.

Fair Work Commission dismisses reasonable grounds argument

At the unfair dismissal hearing, the Fair Work Commission considered the evidence related to the sexual harassment allegations made against Mr Pewsukngem. As well as whether he had been guilty of serious misconduct. But first, it considered whether his dismissal was consistent with the Small Business Fair Dismissal Code.

The Fair Work Commission concluded that it was not consistent with the Code. Particularly in regards to Mr McGilvery’s claim that the dismissal decision was made “on reasonable grounds.” The Fair Work Commission said that this did not apply “where the employer has taken the required steps in manufacturing a set of circumstance[s] deliberately designed to terminate an employee.”

The Fair Work Commission noted that “no process equivalent to the required steps in forming reasonable grounds was followed.” And that Choc Dee had not made any effort to investigate the survey results prior to dismissing Mr Pewsukngem for serious misconduct. It was also found that there were “compelling reasons for the employees to complete the survey in the manner they did.” This was because they relied on Choc Dee for their working holiday visas.

“[The owner] researched his plan, activated the survey and on an arguably a pre-meditated basis, he did not investigate or test the allegations, with the [chef],” stated the Fair Work Commission.

“Given the way in which he gathered the allegations and did not investigate them or seek the [chef’s] response, the [owner’s] belief therefore cannot be considered to be held on reasonable grounds.”

Fair Work Commission

Fair Work Commission notes “power imbalance” behind survey

The Fair Work Commission next considered the merits of Mr Pewsukngem’s unfair dismissal claim. It noted that while sexual harassment “cannot be condoned, the Commission has an obligation to test the allegations in this matter.” It was found that Mr McGilvery had clearly researched the Small Business Fair Dismissal Code. And that after doing that, he “found that matters of sexual harassment could form the basis of a summary dismissal.”

The Fair Work Commission found that the sexual harassment survey responses “had not been tested in an investigation.” Nor had they been “put to the [chef] for his response at the time of termination.” It was “clear” in the Fair Work Commission’s summation that Mr McGilvery had conducted the sexual harassment survey due to Mr Pewsukngem’s stop bullying order made against the manager, Mr McGilvery’s partner.

It was noted that the manager was also “a sister, daughter, manager and friend respectively” to the women who responded to the survey. Considering these relationships, the Fair Work Commission found that there was a “power imbalance” between Mr Pewsukngem and Mr McGilvery. And also between Mr McGilvery and the women who completed the survey.

Fair Work Commission considers serious misconduct claim

Next, the Fair Work Commission considered whether Mr Pewsukngem had been guilty of serious misconduct necessitating his dismissal. It was noted that serious misconduct must include an imminent risk to the health and safety or the reputation, viability or profitability of a business.

The Fair Work Commission found that the evidence pointed to “continuing workplace friendships” between Mr Pewsukngem and the women who claimed sexual harassment. And that there was “limited evidence” that they had experienced any detriment due to any alleged sexual harassment. It was therefore found that there was no evidence to support a dismissal for serious misconduct.

Sexual harassment was used to dismiss chef

Considering the issue of sexual harassment, the Fair Work Commission noted that its decision in this unfair dismissal case should not be considered as “precedent” regarding the issue. It explained that this unfair dismissal case was “more properly about” Mr McGilvery’s “determination to remove the [chef] from his business in the most efficient way for him.” And that the issue of sexual harassment “and the resulting evidence arose from the plan of his.”

Ultimately, the Fair Work Commission concluded that the dismissal for serious misconduct was not consistent with the Small Business Fair Dismissal Code. Nor was it fair under section 387 of the Fair Work Act 2009. Mr Pewsukngem did not seek reinstatement. Choc Dee was therefore ordered to pay him compensation of $16,245, along with superannuation.

What is the Small Business Fair Dismissal Code?

In the aforementioned unfair dismissal case, the employer argued that the employee’s summary dismissal for successful misconduct was fair. The employer claimed that the decision to dismiss the employee had been made on “reasonable grounds.” This argument was based on the Small Business Fair Dismissal Code, which the employer was bound to.

So what are the rules around dismissals outlined in the Small Business Fair Dismissal Code? The Code sets out guidelines and procedures for employers to follow when dismissing employees, with the primary aim of ensuring that such dismissals are fair and lawful.

Who does the Small Business Fair Dismissal Code apply to?

The Small Business Fair Dismissal Code applies to employees working in small businesses, which are defined as those employing fewer than 15 people. This count includes all full-time, part-time and even certain casual employees who work regularly and systematically. It is crucial to be aware of this definition, as it determines whether the Small Business Fair Dismissal Code is applicable to your situation.

If you work in a small business, you can only lodge an unfair dismissal claim with the Fair Work Commission if you were employed for at least 12 months. This is different to employees who do not work in larger businesses, where the minimum employment period is six months.

If you have worked for your employer for at least 12 months, and they decide to dismiss you, they must adhere to the Small Business Fair Dismissal Code’s requirements for the dismissal to be considered fair.

Understanding the types of dismissals under the Small Business Fair Dismissal Code

As an employee, it is important to be aware of your rights and the protections offered by the Small Business Fair Dismissal Code. If you believe your dismissal did not adhere to the Code, you have the right to challenge it via an unfair dismissal claim.

The Small Business Fair Dismissal Code outlines two main types of dismissals, each with its own set of rules and circumstances: This type of dismissal occurs when your employer terminates your employment without any prior notice or warning. It is only justified when there are reasonable grounds to believe that your conduct is so serious that it warrants immediate dismissal.

Serious misconduct, such as theft, violence, fraud, or significant breaches of workplace health and safety procedures, falls under this category. However, it’s essential to remember that the Fair Work Commission will assess the severity of your actions along with other relevant factors to determine whether your dismissal was reasonable.

In situations other than summary dismissals, your employer must provide clear and valid reasons for your termination. These reasons should be related to your conduct or your ability to perform your job effectively. Your employer is obligated to communicate the impending dismissal to you either verbally or in writing. Furthermore, they must give you the opportunity to address and rectify the issues leading to your dismissal. This may involve offering additional training or support to help you improve your performance.

What constitutes serious misconduct?

Another key issue in the aforementioned case concerned serious misconduct. This was the reason that the employee was summarily dismissed. Specifically, because the employer deemed that he had sexually harassed colleagues.

Serious misconduct in the workplace refers to actions by an employee that are contrary to the continuation of their employment. It often includes illegal or dangerous activities that can jeopardise the reputation, viability or profitability of the business. Or actions that can pose a health risk or harm a person. This type of misconduct is grave and can result in the summary dismissal of an employee.

Examples of serious misconduct

To better understand what constitutes serious misconduct, here are some examples of actions that may be deemed as such:

• Deliberately damaging or vandalising company property. This can include acts like graffiti, tampering with machinery or causing significant harm to the workplace.
  
• Engaging in deceptive and dishonest conduct with the intent to profit or gain an advantage, such as fraud or embezzlement.

• Stealing company property, supplies, equipment, confidential information or financial records.

• Deliberately disregarding safety protocols, which can endanger the safety of oneself and others. This may include unsafe handling of hazardous materials, failing to secure the workplace or misusing equipment.

• Consuming drugs or alcohol, whether before or during work hours, which impairs an employee’s ability to work safely or perform their duties effectively. Medicinal cannabis and your workplace is now a major issue.

• Verbally or physically abusing coworkers, clients or acting in a threatening or violent manner. This can include stalking or predatory behaviour.

• Bullying or sexually harassing a colleague in the workplace.

• Engaging in discriminatory behaviour based on factors like race, sex, religion or ethnicity.

• Refusing to follow lawful and reasonable instructions from your employer.

• Repeatedly failing to attend work without proper authorisation.

• Using offensive or inappropriate language while at work.

Fair dismissal process for serious misconduct

If an employer believes an employee has engaged in serious misconduct, they may have grounds for summary dismissal. This means that your employment is terminated without notice or pay in lieu of notice. However, it is essential that the dismissal is fair and reasonable. For dismissal to be considered fair:

1. The employer must genuinely believe that the employee committed serious misconduct.

2. The employer must have reasonable grounds for that belief.

3. A thorough investigation should take place before dismissal, which might involve engaging an external investigator.

4. The employee must be given the opportunity to respond to the allegations, ensuring procedural fairness.

Conclusion to: Sexual harassment used to dismiss gay

At A Whole New Approach Pty Ltd, (we are not lawyers) we have a proven track record of helping employees take action via the Fair Work Commission. We secure successful outcomes for our clients in areas such as employment, discrimination, and WorkCover issues. We specialise in unfair dismissals, forced resignations, workplace bullying, sexual harassment and more.

Our approach is accessible, affordable and honest. We’re available to assist you seven days a week, with no ongoing costs and, in some cases, a no-win, no-pay arrangement. Our team specializes in mediation, negotiation, and non-legal advocacy, aiming to resolve your concerns efficiently.

Contact us today at 1300 766 700 for a free and confidential discussion about your situation.

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