'Rough diamond' barista unfairly fired for swearing at customers

Barista Rachel Ferrari was fired from her job at the Flying Bean coffee cart in Petone thanks to her use of foul language. Photo / 123RF

A barista whose friendly banter with customers allegedly extended to asking them "what the f*** do you want" has won $16,000 from her former employers after she was fired for using foul language.

Rachel Ferrari started work at The Flying Bean coffee cart on The Esplanade in Petone in February 2015.

Her employment had been largely harmonious but in 2017 Flying Bean director Rachel Solomon-Smith asked her to be careful in how she spoke to clients, the Employment Relations Authority said. Ferrari admitted she sometimes swore in front of customers.

But she claimed that "regular clientele liked their coffee served with robust social interaction, and her "friendly banter" contributed to the reason customers would keep coming back to the cart, the authority said.

In February 22, 2018 Solomon-Smith told Ferrari and a colleague to stop swearing around customers.

But two days later a customer laid a complaint, saying the barista often used foul language such as asking "What the f*** do you want".

"I don't mind when it's just me, but many times she speaks like this when other customers are there waiting for coffee or waiting to be served. Some have expressed to
me that the language was a bit much," the customer told Flying Bean director Robert Smith in an email.

The Flying Bean wrote to Ferrari in March to say they were treating the issue as serious misconduct and considering dismissal.

Later that month she and a witness met with her employers, at which time she commented along the lines that the swearing was "just banter", and "I know who I can and who I can't banter/swear with".

Her bosses concluded she would not stop swearing or change her behaviour, and wrote to her to say they were intending to fire her.

Ferrari then filed a personal grievance with the Employment Relations Authority, in part claiming the Flying Bean did not give her enough information to respond to the complaints.

The hearing said there was "no real dispute that [the barista's] language towards customers was full-bodied", and Smith had characterised the barista as a "rough diamond".

But Smith conceded that while Ferrari had at times been asked to mind her language she had never been disciplined on the matter before - which suggested her language was tolerated until February 22, the authority said.

A fair and reasonable employer would not discipline an employee for conduct it had previously accepted, the authority said.

It would thus only be fair to take disciplinary action after the February meeting.

The authority also found the Flying Bean did not properly investigate exactly when the swearing happened, leaving Ferrari at a unjustifiable disadvantage.

It was unlikely Ferrari had sworn at the customer between the staff meeting on February 22 - when Ferrari had been told not to swear - and the complaint on February 24, as she had not been rostered on to make coffee in that time.

At their meeting in March it appeared the two parties had been talking at cross purposes, the ERA said. The Flying Bean's directors believed Ferrari was refusing to change her behaviour, but in fact it was likely she had been referring to events prior to February 22.

A letter from Ferrari said she had taken on board concerns about her language - undermining the cafe's claim that she was not willing to change.

Ferrari said she had been distressed by her employer's actions and had gone to a "dark place". The authority awarded her $12,000 for distress and humiliation plus $4186 in lost wages and interest, covering the eight weeks it took her to find another permanent job.