It was not disputed that the head chef of Besuto, a Sydney omakase restaurant, drank alcohol at work. The Fair Work Commission found his dismissal unfair regardless. It found no evidence that his employer, Sydney Omakase Pty Ltd, had ever put a rule on drinking in writing, and found that it gave its first formal direction to stop only two days before the dismissal. It also found that the evidence did not establish he breached that direction.
Deputy President Wright ordered the company to pay $11,753.84 plus superannuation, less tax, on or before 2 November 2026. The decision, [2026] FWC 3383, was issued in Sydney on 19 October 2026.
At a glance
- Parties: A former head chef and Sydney Omakase Pty Ltd, operator of the Besuto restaurant
- Citation: [2026] FWC 3383, Deputy President Wright
- Section: Fair Work Act 2009, s.394, s.388 (Small Business Fair Dismissal Code), s.387, s.392
- Outcome: Dismissal inconsistent with the Code and harsh, unjust and unreasonable; $11,753.84 compensation plus superannuation
- Who it affects: The parties; small business employers relying on the summary dismissal limb of the Code
The head chef started on or about 29 May 2023. Joel Best, the company’s director and owner and a friend of more than 20 years, had invited him to help establish the restaurant. He worked full time, upwards of 70 hours a week, on $40,000 a year in wages, and the company paid his accommodation at $700 a week. At the hearing the company accepted that the Hospitality Industry (General) Award 2020 applied to him and that his classification was Level 6 Cook (tradesperson) grade 5.
Mr Best ended his employment on the night of 7 March 2026. A termination letter dated that day cited “multiple verbal and written warnings regarding the consumption of alcohol during working hours”. The head chef said he did not receive the letter until it was served on him in the proceedings on 9 July 2026.
A reason that was not serious misconduct
Sydney Omakase had nine employees at the time. It argued the dismissal was consistent with the Small Business Fair Dismissal Code, a set of steps which, if followed by an employer with fewer than 15 employees, means a dismissal is not unfair. Its solicitor first told the Commission it relied on the Code’s “Other Dismissal” limb. In evidence, Mr Best corrected this to the “Summary Dismissal” limb, which covers dismissal without notice or warning for serious misconduct.
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
Applying the two-step test in Pinawin T/A RoseVi Hair Face Body v Domingo [2012] FWAFB 1359, the Deputy President did not accept that the company held a belief that the conduct justified immediate dismissal. According to Mr Best’s own witness statement, he made the decision after the head chef could not say, when asked after lunch service, whether he still had the passion for the head chef role. Mr Best only noticed that the head chef seemed intoxicated later, after dinner service.
Messages Mr Best sent within hours of the dismissal said the restaurant would not reopen the following week. They also said the head chef had until Friday to leave his unit, referred to a debt, and said Mr Best was “very sad”. None gave drinking as the reason for the dismissal. The Deputy President noted that messages sent within three days had “a markedly different tone”, referring to a lawyer and a bar tab.
The Deputy President found the passion question “appears to be a performance concern rather than one which amounts to misconduct or serious misconduct”. On that basis the Code was not complied with.
that the dismissal was a summary dismissal under the Code for “drinking alcohol on [the] job”. At the hearing Mr Best said the reasons were drinking and being intoxicated at work, and taking the company’s alcohol, which he said a stocktake begun after the dismissal had revealed.
that he received no warnings and had no opportunity to respond to specific allegations. He said Mr Best had permitted him 720 millilitres of alcohol a week, that he complied with the direction to stop apart from a small amount of sake with customers, and that he was not intoxicated.
that the dismissal was inconsistent with the Code and that there was no valid reason relating to performance, drinking in breach of a direction, intoxication or unauthorised consumption of the company’s alcohol.
No written rule on alcohol
On performance, the Deputy President found no objective evidence of deficiency and no evidence of complaints from customers or staff. The head chef had run the kitchen with limited supervision while Mr Best spent two to three months a year in Japan.
On drinking, the decision said: “In most employment relationships, this would be regarded as misconduct justifying dismissal.” The Deputy President found the case was complicated by the friendship, which included a $25,000 personal loan, flights and a gym membership. The Deputy President said Mr Best was “to be commended” as a supportive employer and friend, but that the arrangements likely “blurred the lines” between the professional and personal relationship.
The Deputy President said the practice of staff drinking sake with customers was likely to have added further uncertainty “as to what was considered acceptable and unacceptable levels of alcohol consumption”.
The Deputy President said it was “particularly important” that expectations about drinking were recorded in employment contracts or another document, and found no evidence the company ever did so. The first formal direction not to drink came at a staff meeting on 5 March 2026. The Deputy President found the head chef complied, and that the evidence fell short of showing he had been intoxicated at work on 7 March 2026 or on any other occasion.
Mr Best gave evidence that the stocktake showed four to five bottles a week consumed without authorisation, and denied any 720 millilitre arrangement. The Deputy President considered such an allowance during work hours “very unlikely” but could not rule out that the head chef had been permitted to drink after work. Mr Best had provided no stocktake evidence.
Pay, accommodation and the eviction
The Deputy President observed that the head chef’s gross weekly pay of $769.23 “appears to be below the Award rate”. Accommodation took up almost half of his weekly pay, even though the Award at the time allowed only $253.75 to be deducted for it. His annual leave also appeared to accrue on the $769.23 figure. Given these arrangements, the Deputy President considered it possible he was paid partly “in kind” through alcohol after work.
The head chef was required to vacate the company-provided accommodation within five days, and his statutory entitlements were withheld to pay off the loan. The Deputy President found these actions left him “without a home or any money” and were “likely to offend both residential tenancies legislation and the FW Act”. The company paid his statutory entitlements after the hearing.
The decision also found no evidence of any written warnings. Mr Best conceded some verbal warnings were given informally, including in a sauna. The company did not offer a support person.
Eight weeks’ pay, the amount sought
Reinstatement was not sought. Applying the Full Court’s test on how long the employment would have lasted, the Deputy President found it unlikely to have continued beyond three months, valued at $19,100. That finding took into account the deteriorating relationship and that the head chef was unwell. He had found casual work about two days a week, which the Deputy President accepted as reasonable mitigation.
Compensation was set at eight weeks’ pay, the amount the head chef sought. It was calculated as eight times his weekly pay of $769.23 plus the $700 accommodation allowance. Under s.392(3) no reduction was made, the Deputy President being satisfied that misconduct did not contribute to the decision to dismiss.
The observations about the head chef’s pay and accommodation deduction were made within the unfair dismissal decision. The decision did not make a finding of underpayment. The Deputy President noted that some of his entitlements may remain outstanding because of the irregular way he was paid.
Source: [2026] FWC 3383
General information only. OnNotice reports developments in Australian industrial relations, human resources and workplace law. This article is for education purposes only and is not intended to form professional advice. Always confirm against the primary source and seek specific advice relating to your circumstances.