Brazil Catering appeals unfair dismissal of worker who experienced a panic attack

A Melbourne-based catering company, which had been ordered to compensate a former worker who was unfairly dismissed after she suffered a panic attack, has appealed the decision.

As previously featured on HR Leader, Brazil Catering, which runs Feast Delicatessen in Hampton, south-east Melbourne, has sought to appeal and stay the decision regarding the unfair dismissal claim of a former casual retail assistant.

The company was ordered to pay their former casual retail assistant $10,292.89 in lost remuneration and $1,132.22 in superannuation. This came after 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 just spoken to her mother, who lives in a war zone in Ukraine.

The worker then was picked up by her partner and left to go home, telling Totos that “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.”

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.

The company believed that it had not dismissed the staff member and that, instead, she had willingly 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.

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

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 company, however, has now argued that Colman’s view was unjust and unreasonable, containing factual errors and irrelevant considerations.

The company also submitted that significant errors occurred throughout the process and that the deputy president considered irrelevant factors and failed to consider relevant ones.

It was also mentioned that Totos’ was overseas, and there may be practical difficulties with arranging payment in compliance with the compensation order by 16 July 2024.

Vice president Mark Gibian, who reviewed the appeal, refused to stay the application.

In regards to the overseas aspect, Gibian said: “In any event, that is not a matter relevant to the stay application. If there is a genuine practical difficulty with complying with the order in the time provided, that is a matter that ought to have been taken up with the deputy president by way of an application to vary the order.”

Gibian stated that although the company appears to be small, there was no material before the commission to suggest that the compensation order would cause it any immediate financial difficulty.