Drunk barista, cash employees and unfair dismissal

Drunk baristas and allegations of cash in hand employees was not enough to keep an application for unfair dismissal alive.

There’s a bit of back and forward in the background:

  • A barista was sacked on the ground of being drunk at work. He brought a claim for unfair dismissal.
  • His employer said it was a small business and the barista hadn’t worked for long enough to make the unfair dismissal claim.
  • The barista said because his employer owned two cafes, it had enough employees to cease being a small business.
  • His employer gave the number of employees, including casuals engaged on a regular and systematic basis and affirmed that it’s a small business. It was, on any construction, less than 15.
  • The barista hit back, claiming there were extra casual staff paid cash in hand.

The barista had no evidence of these extra cash in hand employees. The best he could do was assert it.

Why the number of employees is important

The minimum duration of employment to make an unfair dismissal claim is 6 months – unless the employer is a small business employer, in which case it’s 12 months.

The barista had worked between 6 and 12 months. The answer to that question was crucial to his case.

The answer to that depends on the number of employees in that business and in any associated entity. The employer readily conceded that her two businesses were associated entities.

Next is working out the number of employees, based on an ordinary headcount. It needs to include casuals employed on a “regular and systematic basis”. That’s an overly complicated question which depends heavily on the facts. It seems to me that that in most cases, hospitality casuals are employed on that regular and systematic basis.

If the employer (including its associated entities) employs fewer than 15 people, it’s a small business employer.

In this case, the FWC found that the employer had fewer than 15 employees on any construction of the facts. The FWC couldn’t accept the barista’s assertion (without evidence) that there were more employees.

The barista wasn’t employed for the required period of time of 12 months, so his unfair dismissal claim was thrown out.

Two bonus takeaways

This case suggests there’s an additional benefit to paying some employees cash in hand – as long as they’re kept off the roster. Bear in mind, of course, just how unlawful it is to pay employees cash in hand to keep them off your books.

Being drunk at work (or a work event) does not always justify automatic termination of employment. That’s despite the Fair Work Regulations specifying it as serious misconduct.

Read the decision

Sorocuk v The Resident Cafe [2016] FWC 4946

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