Worker’s panic attack over mother in Ukraine ends in sacking

A Melbourne-based business has been ordered to compensate a former worker it unfairly dismissed after she suffered a panic attack while speaking to her mother, who is based in a war zone in the nation of Ukraine.

Brazil Catering, which runs the Feast Delicatessen in Hampton, south-east Melbourne, was ordered to pay a former casual retail assistant $10,292.89 in lost remuneration and $1,132.22 in superannuation.

The Fair Work Commission (FWC) found the staff member’s dismissal by manager Jim Totos was “harsh, unjust and unreasonable”, and lacked no valid reason for a dismissal.

The staff member presented evidence that on 25 February 2024, she experienced a panic attack during a shift at work, having earlier spoken to her mother, who lives in a war zone in Ukraine. The staff member then called her partner to pick her up from work.

At the time, her manager, Totos, saw her speaking on the phone and confronted her, and the staff member asked him to allow her to finish the call.

Neither Totos nor the staff member gave evidence that Totos was aware she was on a call with her mother in an active war zone.

According to the staff member, Totos yelled at her to leave, resulting in the worker leaving her shift in tears and waiting outside on the street for her partner to pick her up.

Totos claimed the staff member was on her mobile phone as customers were entering the store, which is why he asked her to end the call.

When the call was completed, Totos recounted, the staff member told him “she was sick and that her partner would collect her”, to which Totos replied that “if she was sick, she should not have come to work, given she was serving food to customers”.

On 1 March 2024, Totos sent the staff member a text stating: “Hi [staff member], I hope you’re feeling better, please note that there are no shifts available this weekend. [The shift manager] will be in touch with you for any further shifts. Thanks.”

Totos stated that later that day, he received a call from the staff member’s partner, seeking to speak to him immediately, to which Totos declined. He said he would contact them the following day as he was about to jump on a flight.

The staff member’s partner then said that the following day would not be appropriate as they were seeking legal advice over Totos’ “bullying behaviour” towards the staff member.

On 2 March 2024, the staff member replied to Totos’ original text message, asking whether she was still employed by the company, to which she received no response.

Claims from the company and other workers stated that the staff member’s attitude towards her work was “rude” and lacked punctuality.

Zlata Hanzekovic, who worked with the staff member on Saturdays, said that she never saw her be bullied by Totos or anyone.

She went on to claim the staff member was often speaking on her phone and not attending to customers, and on 24 February 2024, a customer complained about the staff member’s attitude, labelling her as rude.

The company concluded that it had not dismissed the staff member and that instead, she had resigned or abandoned her employment, claiming she was a casual employee who was simply told that no shifts were available for her at the time.

However, FWC deputy president Alan Colman found that it was very clear that the staff member’s employment was, in fact, terminated on the company’s initiative.

Although Totos’ evidence of what transpired on 25 February 2024 was accepted, his actions on 1 March 2024 clearly outlined that no shifts would be made available to the staff member.

Based on the staff member’s shift routine, it was found that for over a year, she worked on a regular and systematic basis, meaning there was an expectation of this employment continuing.

Therefore, in the absence of being allocated a shift, the staff member now had no work.

The claims that the staff member was misaligned with company values regarding her attitude while working, thus warranting dismissal, were dismissed as the lack of fairness in the process outweighed the evidence.

The staff member was not warned nor approached about her behaviour by management.

Due to the staff member being employed for over one year, it was Colman’s view that she receive an amount equal to a year’s remuneration. Had she not been dismissed, the staff member would have continued to work for at least this period.

The staff member needed the extra money in addition to her weekday job to help her mother in Ukraine. She also made reasonable efforts to mitigate her loss, earning $192.50 since her dismissal.

Editor's note: This story has been amended to note that no evidence was presented to suggest that Totos was aware that the staff member was on a call with her mother.