Employee Wins Payout After Humiliating ‘Disability’ Accusation

Published July 09, 2019 (last updated July 20, 2020) -
An employee criticised as being ‘ungrateful’ for securing a restaurant job despite her disability has won $12,500 in compensation for the hurt and humiliation she experienced during her dismissal.

The part-time employee who was employed for a total of 12 weeks and two days by the Brisbane restaurant told the Federal Circuit Court she had been “particularly humiliated” by the manner of her dismissal, especially by the suggestion that she had been unappreciative for having been given the opportunity for a job “notwithstanding her disability.”

Judge Salvatore Vasta stated, “That uncontested allegation was most unkind and would have been extremely hurtful to the [employee],” observed.

The judge found that the employer breached the s340(1)(a)(ii) prohibition on taking adverse action against an employee because they have exercised a workplace right when it dismissed her for making a complaint or enquiry about her employment.

Other Fair Work Act contraventions related to the failure to pay the employee correctly included:

  • failing to pay in lieu of notice period;
  • failing to pay the minimum rate for ‘Handyperson’ work;
  • failing to pay at the higher ‘Handyperson’ rate;
  • paying the employee on a Friday (as prohibited by clause 26.1 of the Award);
  • failing to make superannuation contributions;
  • failing to pay additional leave loading of 17.5%;
  • and failing to pay the Applicant in full for the work she performed

In the Federal Circuit Court yesterday, the restaurant directors were each called three times yet none responded to the call and failed to appear in court for the penalty hearing – despite having been given sufficient notice.

Ultimately, the court found the directors to be severally liable to pay to the applicant compensation for hurt and humiliation.

Judge Vasta ordered the three directors to pay the sum for hurt and humiliation, plus almost $1,816.50 to correct underpayments under the Hospitality Award, unpaid notice pay: $548.70, and unpaid annual leave entitlements: $605.05 and over $113,000 in penalties.

Judge Vasta directed that the penalties be split equally between the employee and the Commonwealth.

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