Employer’s ploy to dismiss workers backfires

Two young workers dismissed by a Gold Coast cabaret club have been awarded a total of over $31,000 by the Fair Work Commission. The workers had been dismissed for speaking about a colleague’s pay. An act the employer discovered by viewing private social media discussions without their consent.

The FWC found that the employer treated the young workers as if they had broken into the “Watergate complex” to post its secrets on “WikiLeaks”. The Fair Work Commission stated that the dismissals were a “terrible way to treat a young employee.” In this article, Young workers win, we look at the events of this unfair dismissal case. And we look at another case involving a young casual worker who was dismissed for raising complaints about underpayments. Unfortunately, these two unfair dismissal cases highlight the exploitative tactics that some employers commonly use to infringe on the rights of young workers.

The exploitation of young workers in Australia

A 2019 study by Griffith University surveyed 330 undergraduate students who shared their stories and experiences related to workplace exploitation. The study found that nearly three-quarters (74.2 per cent) had endured some type of exploitation, abuse or harassment in their first job.

Over half (51.5 per cent) of the participants reported instances of economic exploitation, including incorrect pay and the denial of proper breaks. Verbal harassment was another common experience. Almost half (49.1 per cent) of the participants admitting to facing humiliation, insults and berating from colleagues or superiors.

Approximately one-third (32.1 per cent) of the participants had to deal with hazardous work conditions, often due to inadequate training or supervision. And they were also expected to perform tasks that violated workplace health and safety regulations. A significant portion, 29.4 per cent, had endured ongoing bullying at their workplace. And shockingly, 14.5 per cent had experienced sexual harassment, which included unwelcome sexual behavior, jokes and unwanted advances.

Young workers unfairly dismissed by dodgy employer

A clear case of an employer taking advantage of young workers was the subject of the unfair dismissal case. Known as the Louie and Another v Project 88 TPF Pty Ltd T/A Pink Flamingo Spiegelclub [2023]

Claudia McLeod and Sierra Louie worked for the Pink Flamingo Speigelclub (owned by Project 88) cabaret club in Broadbeach, the Gold Coast. Ms McLeod was employed in a full-time box office and administration position. While Ms Louie was employed part-time in the wait staff and bartender team. The key event of this unfair dismissal case took place on 3 February 2023. This was when both Ms McLeod and Ms Louie were called into separate meetings without warning.

Workers are dismissed for serious misconduct

During these meetings, both employees were summarily dismissed by Project 88. The company cited serious misconduct as the grounds for dismissal. Specifically, it alleged that the two workers had distributed confidential personal financial information of one of their colleagues.

They were both told by a manager that “we have been sent some screenshots of conversations that have been happening on social media that we need to address…”. The manager also asked the question “Are you aware it’s a criminal offence to distribute private, confidential information about another employee?”. This claim – that sharing the confidential information was a criminal act – was however false.

Employer access employee’s phone without consent

While Project 88 had accused the workers of criminal offenses, at their unfair dismissal hearing, the irony of this was not lost on the FWC. It revealed that a Project 88 senior manager had accessed an employee’s phone without their consent. Specifically, to view social media messages that revealed the confidential information had been shared by the two workers.

The Fair Work Commission deemed this act to be “far more serious” than what Ms McLeod and Ms Louie did. It found that Ms Louie had sent the social media message only after another employee disclosed the confidential pay information. This was at an out of hours dinner. The FWC acknowledged that Ms Louie did not know that the colleague had not authorised her friend to share the pay information. Nor that either Ms Louie or Ms McLeod knew that such information was confidential.

Serious misconduct was greatly exaggerated

The Fair Work Commission specifically called out Project 88 for making a mountain out of a molehill with regard to what the two workers had actually done. It stated that the company made it appear like the duo had “broken into Project 88’s equivalent to a ‘Watergate complex’. In turn stolen key intellectual property secrets and posted them on WikiLeaks”.

However, the Fair Work Commission said that all the pair had done was “privately discuss the salary rate of a friend, and the salary rate was quite unremarkable.” It stated that “calmer heads needed to prevail” among Project 88’s senior management. It was suspected that Project 88 management had taken “extreme offence” to the bartender’s comments about some of its promotional activity.

Employer treated young employees “terribly”

The Fair Work Commission further criticised the actions of Project 88’s management, stating “All of this constitutes a terrible way to treat a young employee.” It was found that the dismissal of the two employees was not justified. And that the managers had “ambushed” the employees at the meetings and had given them false information about how they found out about the pay disclosure.

The Fair Work Commission highlighted that Project 88 did not provide the employees with notice of what would be discussed in the meetings. And that it had provided them the chance to have a support person present. It was therefore found that the bartender made “compromised” admissions when she told Project 88 that she heard about her colleague’s pay rate from the attendant.

Fair Work Commission finds young workers were unfairly dismissed

The Fair Work Commission found that Project 88 had denied the bartender the opportunity to respond to the allegations made against her. This had “substantial consequences,” as the bartender could have sought advice. And by doing that, she would have learned how Project 88 accessed the social media messages, and therefore could not rely on them.

“This in turn may have meant that [the bartender] would not have identified [the attendant] as her source and no action could have been taken against [the attendant],” the Fair Work Commission stated.

Ultimately, the FWC found that both young workers had been unfairly dismissed. Reinstatement was not considered due to the fractured relationship between the employees and Project 88. Therefore, the company was ordered to pay the attendant $18,525 and the bar tender $12,855 plus superannuation.

Young casual worker exploited and unfairly dismissed

Underpayment is a common way that employers exploit young workers. And sometimes they are dismissed simply for raising the issue of underpayment. This is what happened in the unfair dismissal case Sebastien Mezino v Baia the Italian Pty Ltd T/A Baia THE ITALIAN [2017].

The case involved French national Sebastien Mezino, who was dismissed after raising a complaint that he had been underpaid by over $25,000. Mr Mezino started working for Baia The Italian in November 2015. He was employed as a casual floor supervisor for the restaurant located in Sydney’s Darling Harbour. He commenced employment earning a starting rate of $20 per hour.

Casual worker raises pay rate concerns

However, just three weeks into his employment, Mr Mezino had a conversation with Markus Stauder, the restaurant’s general manager. During this conversation, he expressed concerns about his wage rate. Mr Mezino pointed out that his previous waiter position entitled him to a higher wage.

While Mr Stauder acknowledged Mr Mezino’s concerns, he suggested it was too early to modify the pay rates. Mr Stauder, however, promised more hours per week and potential career progression to a manager’s role, coupled with a sponsorship offer.

Employer exploits young worker’s dedication

Mr Mezino was a very dedicated young worker. In his claim, he told the FWC that he was “happy” to work over 50 hours a week. Mr Mezino said that he wanted to show Mr Stauder that he was “worth their investment.” In January 2016, he was entrusted with establishing recruitment procedures at the restaurant. This was a significant responsibility that fueled his ambition to become a manager.

The sense of being part of the restaurant family deepened Mr Mezino’s commitment. By April 2016, Mezino was being rostered as a manager. But he was surprise that his wages remained unchanged. Mr Mezino was still working “a great deal of hours” but he was still only earning $20 per hour. And he was not earning any overtime or penalty rates. When Mr Mezino brought this up with Mr Stauder, the latter simply said that his promotion came with a probation period. He said that his pay would be evaluated in a few months’ time.

Casual worker denied pay increase

Despite not experiencing a salary increase, Mr Mezino continued his dedication. In his unfair dismissal claim, he told the Fair Work Commission that he believed he was progressing towards the opportunity of a four-year sponsorship in Australia. This finally came in November 2016, when Mr Mezino was given an offer letter for sponsorship. However, he was disheartened to learn that a salary increase would only occur once the sponsorship was approved.

In his unfair dismissal claim, Mr Mezino told the Fair Work Commission that after not receiving an increase, he began to “feel underpaid.” This was based on the fact that he had been making such a big effort and had new responsibilities.

Young worker discovers he was underpaid

In March 2017, Mr Mezino received an employment agreement document which referenced an industry award. This prompted him to research the award’s provisions, which revealed that he had been underpaid since the beginning of his employment. Not long after, Mr Mezino suffered a non-work-related injury and was issued a medical certificate. However, he returned to work before fully recovering, as Mr Stauder informed him that he was not entitled to sick leave or paid holidays. This situation raised concerns for Mezino.

“This company has never been caught by Fair Work”

On April 19, 2017, Mr Mezino had a meeting with Mr Stauder, during which he presented the results of his research on wage underpayment. In his unfair dismissal claim, Mr Mezino said “[Mr Stauder’s] attitude was to me very deplorable.” He recounted how the manager stated that he “would pass along the information I gave him to our restaurant owner who according to him would simply cancel my visa application and fire me.”

Mr Stauder also told Mr Mezino that he had no chance of success if he went to the Fair Work Ombudsman to complain. He brazenly told him that “this company has never been caught by Fair Work.”

Casual worker is dismissed for raising pay issue

Mr Mezino subsequently sent Mr Stauder a letter on 19 April 2017. In the letter, he stated that the total underpayments from the restaurant amounted to $25,124.40. This set in motion a series of events that eventually led to Mr Mezino’s dismissal. The next day, he was removed from a work-specific Facebook group conversation used for management purposes. And in the Facebook group, the restaurant announced that Mr Mezino was leaving the restaurant.

He returned to the workplace the next day and immediately sought to clarify his employment status with Mr Stauder. When asked if he had been dismissed, Mr Stauder simply said “I do not know.” He then denied Mr Mezino to view the roster and gave him the email address of one of the restaurant’s owners to take it up with them. Mr Mezino never received a response to his letter. And having felt he had been unfairly treated, he subsequently made an unfair dismissal claim with the Fair Work Commission.

Fair Work Commission rules casual worker was unfairly dismissed

At Mr Mezino’s hearing, the FWC found that the restaurant did not have a valid reason to dismiss him. It was found that he was not provided with any notification of the reason for his dismissal. Nor was he given any opportunity to respond to the reason for the dismissal.

The Fair Work Commission found that the reason for Mr Mezino’s dismissal was “squarely related” to the fact that he raised his underpayment issue. It called out the restaurant for “behaviour of the shabbiest type.” Namely, for using “its s.457 visa-related leverage concerning potential work-related sponsorship in the course of underpaying an employee.” And then to “dismiss the employee when he sought to assert entitlement to proper pay and conditions.”

Reinstatement was deemed inappropriate as Mr Mezino no longer resided in Australia. Instead, the Fair Work Commission ordered the restaurant to pay him $15,000 for his unfair dismissal.

Conclusion to: Young workers win, is important reading

If you feel that you have been subject to unfair dismissal, or that your employer has taken adverse actions against you, contact A Whole New Approach. We are not lawyers. We specialise in providing expert support for cases involving unfair dismissal and adverse action. With over three decades of experience, we have successfully assisted more than 16,000 employees in every Australian state and territory

It is crucial to take swift action since you must file your unfair dismissal claim or general protections claim within 21 days of being dismissed. A Whole New Approach can simplify the process of submitting your claim to the Fair Work Commission, making it a quick and effortless procedure. We also offer a no win, no fee policy.

Reach out to us today at 1800 333 666 for a confidential and complimentary consultation.

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