While it might seem obvious to you, your staff need to be well aware of the contractual terms of their employment, writes Restaurant & Catering Australia.
The hospitality industry is renowned for high levels of part-time and casual work and has considerable diversity in the jobs it provides. Broadly speaking, this industry has the capacity to operate 365 days a year and in some cases 24 hours a day. Operations are dictated by seasonal peaks and equal lows. Due to these reasons, part-time hours for staff should vary from season to season.
The Hospitality Industry (General) Award says 'Part-time staff have to have a written regular pattern of work (hours and days) and employment patterns (hours) can only be changed if agreed to in writing by both parties'. Therefore, without the agreement between both parties, fixed part-time hours cannot be varied unilaterally. This in itself can cause inflexibility because the Award also states that an employee that does not meet the definition of a part-time employee will be paid as a casual employee.
This matter is particularly evident in the case of Hall v City Country Hotel Management Pty Ltd & Ors [2014] FCCA 2317 heard before the Federal Circuit Court recently, where a simple pay dispute turned into the employee being awarded damages for distress, hurt and humiliation.
The employee, Mr Hall was employed by the Whitehorse Hotel first as a casual 'glassie' where he collected glasses, cleaned tables and then worked as a casual bar tender. Hall worked days and hours that frequently differed from week to week. According to Hall's payslip he wasn't being paid casual loading in line with the Award.
When Hall was first alerted to this, he brought it up verbally with his senior manager, but nothing was followed up. Hall then put his complaint in writing to the payroll officer. After the email was sent, his manager informed him through payroll that he was a part-time employee. Further to this discussion Hall emailed the payroll officer stating he was not a part-time employee on the basis of there being no written agreement pertaining to number of hours, days, shifts etc. The payroll officer replied and stated she "would not be dictated to by any staff member" and she would "communicate with employees as she saw fit".
A week later Hall was made aware that he had been taken off the roster and followed up with his manger. His manager replied "the roster is controlled by the amount of business and casual employees don't have set hours". After numerous attempts by Hall to seek clarification, no further action was taken by the company.
This resulted in two claims by Hall: a claim for unpaid wages and a claim for adverse action.
It was found that he had suffered the following losses:
- Unpaid wages – due to not being paid the casual loading
- Loss of wages – calculated from the time he was removed from the roster
- Superannuation – as a result of loss in wages
- Distress, hurt and humiliation – the employer acted in what was deemed to be a rude, misleading and threatening manner.
This case highlights how Modern Award provisions can be inflexible and how the incorrect application of specific Award provisions can result in significant underpayment issues. This case also demonstrates how important it is for employers to deal with complaints in a professional manner and to foster this philosophy throughout their business.
This article was written by the Workplace Relations Team at Restaurant & Catering Australia. Contact them on 1300 722 878.
