A chef who consumed alcohol while working at a high-end Sydney restaurant will receive more than $11,000 in compensation after the national fair work umpire ruled his dismissal was harsh, unjust and unreasonable.
Michiaki Miyazaki, who trained in a three-star Michelin restaurant in Kyoto, was employed by Sydney Omakase Pty Ltd as head chef of Besuto, an upmarket restaurant located in Circular Quay and founded by restaurateur Joel Best.
Miyazaki had known Best for 20 years, spent time together with him socially, and had been invited to work in his restaurant, relocating from Japan to Sydney for the job in 2023.
Miyazaki was earning $40,000 a year in wages, but Best also paid for his accommodation at a rate of $700 a week, flights to Japan twice a year and a gym membership. The accommodation deduction for a person on Miyazaki’s pay is usually limited to about $250 a week.
The case highlights the complexity of dismissing employees for alcohol consumption in some workplace contexts, and problems that can arise from unconventional pay arrangements and personal relationships.
While there was no dispute that Miyazaki consumed alcohol at work, Fair Work Commission deputy president Judith Wright said arrangements between the two men blurred lines between their professional and personal relationships.
“In most employment relationships, [consuming alcohol at work] would be regarded as misconduct justifying dismissal,” she said. “However, in this case, the matter is complicated by Miyazaki’s friendship with Best and the practice of drinking sake with customers in the restaurant.
“Miyazaki may well have thought that as long as he could fulfil his role as head chef, practices such as drinking at work would be tolerated because of their friendship, even if this was not acceptable in other workplaces.”
Wright also said it was possible drinking at work as an omakase chef was acceptable in Miyazaki’s home country, making it important to clearly outline expectations in a formal document, which the restaurant did not do.
Best said he sacked the chef due to ongoing conduct and performance issues after repeated discussions, warnings and opportunities for improvement, and claimed Miyazaki had consumed four to five bottles of alcohol a week without authorisation.
However, Wright found she could not exclude the possibility that Miyazaki was permitted to consume alcohol after work given the “rather unusual remuneration arrangements” between them.
The chef’s gross weekly pay was also below the relevant award rate and his annual leave accumulated at his weekly wage rather than the entire rate including his accommodation allowance.
“Given these discrepancies and [the unusual pay arrangements] it is possible that Best also paid Miyazaki ‘in kind’ by permitting him to consume alcohol supplied by Sydney Omakase after work,” Wright said.
The commission concluded there was insufficient evidence that Miyazaki had breached a direction to stop drinking at work, that he was intoxicated at work or that he had consumed alcohol belonging to the restaurant without authorisation.
“If there were issues with Miyazaki’s performance, I would have expected Sydney Omakase to receive complaints from customers and other staff,” Wright said. “There was no evidence that such complaints were ever received.”
Wright also noted there was no evidence of written warnings, and that Best admitted some of the alleged verbal warnings had been given in informal settings such as a sauna.
Wright said Miyazaki’s alleged misconduct was not the reason for his sacking, the dismissal was procedurally unfair and that the chef experienced financial hardship because he had been dismissed without notice, had his statutory entitlements withheld, was evicted from his home and required to vacate the property he lived in within five days.
“These actions left Miyazaki without a home or any money, and were likely to offend both residential tenancies legislation and the Fair Work Act,” Wright said.
The commission concluded Miyazaki was likely dismissed because he could not confirm to Best that he had the passion to continue as head chef: a reason that falls short of “serious misconduct”.
The commission ordered compensation for the chef of $11,753.84, which amounts to eight weeks of pay.
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