Dropped from the gelato roster for cheaper junior staff

Angela Shadwell, 23, worked weekdays on a fixed roster at a small gelato kiosk inside a seafood restaurant at Scarborough, Queensland. She was a casual paid $25.99 an hour, the bare minimum award rate for her job. In May 2019 the restaurant around it was being renovated and opened only on weekends.

She had told the owner, Mr Krsek, that she could not work on Friday 17 May because of an unpaid photography internship. On 14 May he asked her to reschedule it, and she could not. Her evidence, which the Commission accepted, was that on the phone that evening she asked whether he would fire her if she did not work the Friday. He said he just would not give her any more shifts and, when she pressed, 'Well, yes.' The next morning he said the shop would close on weekdays, and texted that her role was 'currently not financially viable'.

The shop did not close. Mr Krsek asked a former employee to come back, and others covered the shifts Ms Shadwell had worked. The other staff were paid $20.79, $10.39 and $18.19 an hour; some were school-aged juniors. He argued that he had not dismissed her at all, because she had asked for a separation certificate.

Commissioner Hunt found that his phone call and texts ended her employment, and that she had a reasonable expectation of continuing to work those shifts. The real reason was that he wanted cheaper staff in place of her adult rate of pay. That was not a valid reason related to her conduct or capacity, and because he did not rely on any misconduct or performance problem, the Small Business Fair Dismissal Code did not protect him.

Ms Shadwell found a new job a week later, so her loss was small. She was awarded $1,223.64 plus superannuation, payable in two instalments.