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Guzman Y Gomez, better known as GYG, was recently taken to the Fair Work Commission (FWC) by a former employee who previously alleged that the fast-food franchise reduced her shifts because of her skin colour.
A former casual employee at fast-food franchise GYG filed an unfair dismissal application to the FWC, alleging that her shifts were completely reduced by her employer for no clear reason.
Beginning her employment in 2023, the former GYG worker had regular shifts right up until July 2024, when the number of shifts she was usually offered suddenly dropped. The worker made numerous attempts to obtain further shifts – yet to no avail.
The worker filed a complaint to the fast-food franchise, alleging she had been discriminated against in her allocation for work. The complaint was addressed by GYG’s human resources specialist, who began an investigation, originally determining that local managers decide shift allocation and that GYG did not guarantee shifts to casual employees.
After the lodging of the complaint, the worker still attempted to seek shifts from the local managers – to which they claimed that there were no shifts available. The worker then raised the issue again with HR the following month, who reassured the worker that she was still, in fact, employed by GYG.
After more unsuccessful attempts to acquire shifts, she filed an application to the FWC in September, alleging that her hours had been reduced to zero and that GYG was discriminating against her on the basis of race.
GYG responded to the application, denying the allegations of racial discrimination. Instead, it claimed that the worker did not meet performance standards and that there had been a breakdown in the working relationship.
A conference was held in the commission on 10 October 2024 to deal with the discrimination claim; however, the dispute was not resolved. The worker was not provided with any further shifts, and GYG notified her that she was no longer employed. On 11 November 2024, the worker then filed her current unfair dismissal application.
In this application, the worker obtained evidence from 10 colleagues vouching for her performance, saying she was, in fact, a good worker. The commission agreed with this notion, stating that the worker “was a hard worker who was trusted to train others”.
Commissions findings
The commission noted that GYG continued to assure the worker that she was still employed by the franchise, yet her requests for shifts towards her local managers went unanswered.
The process in which the worker’s shifts were dropped and how the investigation was handled was found by the commission to “cause confusion” for the worker on “part as to her rights”.
“GYG did not make it clear that it had no intention of providing [the worker] with work until the conference in the discrimination matter on 10 October 2024. The unfairness that arose from the procedures followed is that GYG’s delay in dealing with the discrimination claim and its failure to provide [the worker] with shifts while that claim was being processed left [the worker] in limbo,” said the commission.
“She was told she was employed but she was not provided with work, and she did not receive wages.”
The commission noted that due to the employer’s large size (employing over 10,000 workers by its own account) and with many of their staff being young workers, GYG has a dedicated human resource management specialist to properly deal with this issue.
“The participation of those specialists did have an impact on the procedures that were followed. The impact was an adverse one,” said the commission.
The HR team’s adverse impact on this entire process lea to the commission consideration, which found that GYG management failed to act professionally in dealing with the employment dispute the worker raised; wasn’t mindful of their workforce being younger people experiencing their first workplace; and failed to acknowledge the significant harm neglecting these aspects can cause to their employees.
In the case of the worker, she noted in her evidence that, throughout the process, “I was so depressed and felt worthless, I was crushed. From the happy young girl that wanted to grow and constantly improve myself I was changed to a self-isolated person struggling to find motivation to leave the bedroom.”
GYG failed to submit direct evidence pertaining to the workers’ circumstances. Therefore, the commission found that the dismissal was, in fact, harsh, unjust, and unreasonable.
“She was a hard worker who was treated poorly by GYG” was the closing statement by the commission, noting that the fast-food franchise “led no evidence and made no submissions justifying or explaining its treatment” of the worker.
The commission also noted that “GYG has effectively gained a benefit from its poor treatment of [the worker] by taking advantage of her casual status and refusing to provide her shifts for the last 10 weeks of her employment”.
The worker received a remedy of $10,252.35.
RELATED TERMS
According to the Australian Human Rights Commission, discrimination occurs when one individual or group of people is regarded less favourably than another because of their origins or certain personality traits. When a regulation or policy is unfairly applied to everyone yet disadvantages some persons due to a shared personal trait, that is also discrimination.
When a company terminates an employee's job for improper or illegitimate reasons, it is known as an unfair dismissal.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
