Worker subjected to adverse action wins compensation for distress, hurt

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Tuesday, October 14, 2014, 1:47pm
A hotel management company that took unlawful adverse action when it stopped giving shifts to a casual bartender who complained of being underpaid has been ordered to pay $11,000 compensation, including a sum for distress, hurt, and humiliation.

Federal Circuit Court Judge Nicholas Manousaridis found that City Country Hotel Management Pty Ltd contravened the Fair Work Act’s adverse action provisions when it removed the bartender from its roster after he sought to be repaid money owed to him for several months of bartending and glass collecting work.

Judge Manousaridis said removing him from the roster at the White Horse Hotel in the inner Sydney suburb of Surry Hills clearly resulted from his exercise of a workplace right.

The bartender started work at the hotel (managed by City Country Hotel Management) in early June 2013 as a “glassie”, collecting empty glasses from tables.

He was then given bartending shifts and, by the time he raised the underpayment issue, he was working as a bartender an average of 25 hours per week.

After notifying management that he had not been paid the award rates due to him in either position, he was initially told he was being paid the correct rates for a part-time employee.

However, the bartender said he did not meet any of the criteria for a part-time employee as he did not have an employment agreement and did not work the same number of hours or shifts each week.

He then received an email from management saying that “as you are trying to creat [sic] a fair work claim I suggest you priced [sic] with this action ASAP. When I win I will have you pay my costs”.

In awarding compensation to the bartender, Judge Manousaridis upheld his claim that he had suffered distress, hurt and humiliation as a result of the conduct of his managers, including the “mix of rude, misleading and threatening emails” sent to him in response to his wages claim.

Judge Manousaridis said the bartender was owed $2,696.91 in unpaid wages; $4,964 lost wages between his last shift on 6 January and his starting a new job on 6 March 2014; $459.17 in unpaid superannuation and $2,500 for distress, hurt, and humiliation, plus interest.

The bartender’s adverse action case against three managers has been held over until he can satisfactorily serve them court papers.

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