Abby Eloise Aitken v IK Enterprises Pty Ltd
[2025] FWC 561
•24 FEBRUARY 2025
| [2025] FWC 561 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Abby Eloise Aitken
v
IK Enterprises Pty Ltd
(U2024/9845)
| COMMISSIONER LIM | PERTH, 24 FEBRUARY 2025 |
Application for an unfair dismissal remedy –Applicant was casual employee – Applicant was covered by the unfair dismissal jurisdiction – dismissal was not consistent with the Small Business Fair Dismissal Code – dismissal was harsh, unjust or unreasonable – Applicant unfairly dismissed.
What is this decision about?
IK Enterprises Pty Ltd operates Nail Couture Beauty Lounge, a nail salon in Perth Western Australia. IK Enterprises employed Ms Abby Eloise Aitken as a casual Nail Technician from February 2023 until Thursday 1 August 2024. Ms Aitken was dismissed for gross misconduct.[1] Ms Aitken says that her dismissal was unfair under the Fair Work Act 2009 (Cth).
At the time of Ms Aitken’s dismissal IK Enterprises employed four casual employees. The parties agree – and I find – that IK Enterprises was a small business within the meaning of the Act.
IK Enterprises says the following about Ms Aitken’s application:
(a)Ms Aitken is jurisdictionally barred from making an unfair dismissal application as she was engaged as a casual and did not work regular hours;
(b)If Ms Aitken was protected from unfair dismissal, IK Enterprises complied with the Small Business Fair Dismissal Code when it dismissed Ms Aitken; and
(c)If IK Enterprises did not comply with the Code when it dismissed Ms Aitken, the dismissal was nevertheless still not unfair.
On Friday 13 December 2024 I conducted a determinative conference to hear evidence on the matter.
Ms Aitken represented herself. I granted permission for IK Enterprises to be legally represented by Mr Louis Lee, as they are a small business and Ms Nguyen, the owner, does not speak English as a first language.
Having considered the relevant evidence and submissions of the parties, I find that:
Ms Aitken was a regular casual who had a reasonable expectation of continuing employment on a regular and systematic basis;
IK Enterprises did not comply with either limb of the Code when it dismissed Ms Aitken; and
Ms Aitken was unfairly dismissed.
My detailed reasons follow.
Observations on the evidence
Ms Aitken gave evidence in support of her case. Ms Aitken’s recall of events and conversations was credible and consistent. I found her to be an honest and open witness. I have generally preferred Ms Aitken’s evidence where it conflicts with other witnesses.
IK Enterprises called Ms Jenny Nguyen, Ms Jenny Le and Ms Charlene Guipo. Ms Nguyen is the Salon Manager and owner. Ms Le and Ms Guipo are Nail Technicians engaged by IK Enterprises.
I did not find Ms Nguyen to be a credible witness. I have taken into account that English is not Ms Nguyen’s first language and that she was nervous to be appearing before the Commission. However, her recall of events was poor and her evidence internally inconsistent. It also came to light during the determinative conference that her written evidence did not accurately reflect events. Ms Nguyen also frequently tried to give evidence through her legal representative, Mr Lee, despite my repeated warnings to both Ms Nguyen and Mr Lee that her evidence was to come from her directly.[2] Ms Nguyen also attempted to confer with Ms Guipo while Ms Guipo was giving her evidence.[3] This has affected Ms Nguyen’s credibility and the weight I have given to Ms Nguyen’s evidence.
Ms Guipo has worked for IK Enterprises for nine months.[4] Ms Guipo also works a second job as a nanny for Ms Nguyen.[5] I found that Ms Guipo gave her evidence honestly, though not openly.
Ms Le has worked for IK Enterprises for over two years.[6] I did not find Ms Le to be particularly credible. She was prone to hyperbole in her evidence and her evidence also contradicted with Ms Guipo’s at times.
What were the events leading up to Ms Aitken’s dismissal?
3.1 Wednesday 12 June 2024
The parties disagree as to what happened on Wednesday 12 June 2024.
Ms Nguyen’s evidence is that she conducted a staff meeting at approximately 10:00am on Wednesday 12 June 2024 (12 June Meeting). This meeting included Ms Aitken, Ms Le and another nail technician. Ms Nguyen informed staff of the protocol for dealing with a client who arrives late to an appointment; that coffee breaks should be cut down; and that staff should not swear in front of clients.[7] Ms Nguyen told Ms Aitken that she had received complaints from customers about Ms Aitken getting coffees while clients were waiting for their service. Further, that Ms Aitken could not change appointment durations unilaterally; arrange service swaps with another employee; or swear in front of clients. Ms Nguyen told Ms Aitken that if there was no improvement in her performance then her employment would be in jeopardy.[8]
Ms Le’s version of events echoes Ms Nguyen’s evidence. Ms Le’s evidence is that Ms Nguyen told her that she needed to keep her workstation neat and tidy, and to perform client services within set timeframes. Ms Le’s recollection is that Ms Nguyen spoke to Ms Aitken about multiple customer complaints received about her.[9]
Ms Aitken’s firm evidence is that if there was a staff meeting, she did not attend it.
On Wednesday 12 June 2024 at 6:30pm, Ms Nguyen sent the following message to Ms Aitken:[10]
“Hey abby I just wanted to [text] you so I [haven’t] been able to see you as I’m not in the days you work. And just hard for me to get into the salon. Been super busy I’ve spoke with all the ladies individually and just spoke about a few things.
I have spoken with [Doe] about the situation that happened and she knows it was acceptable but as she allowed her emotions got the better and she had just a lot of [frustration] internally which got the better of her…
You have all worked together for a while now and know each other well enough that that’s not everyone’s character and we have our days especially if we are going through some things [internally] and just sometimes don’t know how to express it the right way.
I just want my team to all do the right thing by me. As I want to be transparent with everyone ever since [I] stepped away from my salon. I don’t make much from my salon I keep the doors open to allow everyone to have a job and also I built this business from scratch and my time in my life now I’m not able to work as I’m about to give birth soon. I’m hoping to be back in the salon by December 3 days.
So from now till then I just want everyone to do the right thing. I treat you all the best way possible and with fairness.
I’ve spoken with the girls with a few things with cleaning[.] Making sure their station is always tidy[.] Not coming to work late[.] Professional customer service. No swearing in front of customer etc[.] And just helping each other out working as team players. Because as at the end of the day if my staff aren’t working together then there is no point for me to even keep my business running.
I appreciate you all and just hope everyone gets along and just make the work environment great”
Ms Aitken replied that night with, “Hi [J]enny thanks for the message! I definitely see where you’re coming from it just felt really disappointing being around! I felt sad for Sonya as clearly there is something going on with her! I just wish she could have communicated with us better! Thanks for caring Jenny”.
I have redacted from the message the name of another nail technician employed by IK Enterprises and refer to her as Doe, as she was not called to give evidence, but appears to have played a pivotal role in the events leading up to Ms Aitken’s dismissal.
Ms Nguyen’s evidence at the determinative conference about the events of Wednesday 12 June 2024 was unfortunately jumbled and contradictory. I refer to the following:
With regards to the text message Ms Nguyen sent Ms Aitken, I asked if Ms Nguyen if she had sent a similar text to staff who weren’t at the 12 June Meeting. Ms Nguyen’s response was, “No, no. Yes. Because I do have more staff and on that day there was only, yes, three of the staff that was there.”[11]
When I asked Ms Nguyen the same question the second time, her response was, “No, just to Abby, that I have spoken with the girls, like all my staff about these situations and problems that I had in my salon”.[12]
When I put to Ms Nguyen that she had earlier said that she sent similar text messages to the staff who didn’t attend the meeting, her evidence was that she, “had a different meeting with them.”[13] When I asked for further detail, Ms Nguyen’s response was, “No a separate but, yes, well at work as well. So I would verbally tell them as well.”
With regards to the staff who weren’t present at the 12 June Meeting, I asked Ms Nguyen if she had spoken to them on a one-on-one basis or at another meeting. Ms Nguyen’s response was, “Yes, not one – well individually but together”.
When I sought to clarify how Ms Nguyen had spoken to her other staff who had not attended the 12 June Meeting, she responded that she had spoken to them directly, in a meeting, but this had occurred “during that same time, before the 12th”.[14]
Ms Nguyen also seemed to give evidence that she had only texted Ms Aitken, but “maybe” would have texted one other employee.[15]
I find that if there was a staff meeting on Wednesday 12 June 2024, Ms Aitken did not attend it. It simply does not make sense that Ms Nguyen would send Ms Aitken a text stating that she had not been able to see Ms Aitken if Ms Aitken and Ms Nguyen had met that morning.
I also note that Ms Aitken provided text messages that were sent to Ms Nguyen on Saturday 1 June 2024 that provide context to Ms Nguyen’s text on Wednesday 12 June 2024. Ms Aitken had messaged Ms Nguyen a complaint about Doe, who had attended work that day and been rude. Ms Aitken raised that Doe had spoken badly about staff to clients including using swear words. Ms Aitken asked Ms Nguyen to speak with Doe.
Ms Nguyen’s response was that she would hold a “staff meeting [ASAP]” as there were a few things she needed to “address about the salon”.[16] Ms Nguyen’s message of Wednesday 12 June 2024 makes sense in the context of Ms Aitken’s text messages of Saturday 1 June 2024.
3.2 Complaints about Ms Aitken
Ms Nguyen says that she received several complaints about Ms Aitken. I do not use full names in assessing these complaints as the people who allegedly made them did not attend the determinative conference to give evidence.
Sonja
IK Enterprises provided a letter from a client named Sonja dated Thursday 7 November 2024. It states that on Wednesday 13 March 2024, Sonja was informed last minute that her appointment had been cancelled.[17] Sonja messaged Ms Nguyen to secure another appointment. Ms Nguyen clarified that there had been a mistake and that her appointment had not been cancelled.
Ms Nguyen’s evidence is that Sonja contacted her about her cancelled appointment. Ms Nguyen called Ms Aitken at the salon; Ms Aitken told Ms Nguyen that Sonja had been rude to her, and she therefore did not want to do Sonja’s service. Ms Nguyen confirmed that she had asked Sonja to make the statement for the purpose of these proceedings.[18]
Ms Aitken did not recall the incident. Ms Aitken explained that it was common practice for her to contact Ms Nguyen to ask for a client to be reallocated to a different nail tech if they did not get along. This was so it was an easier appointment for both the client and nail tech.[19] Ms Nguyen agreed that this was a common practice with Ms Aitken, but that Ms Aitken did not contact her for this one incident with Sonja.[20]
I do not give any weight to the letter provided by Sonja. It does not name Ms Aitken; was provided after Ms Aitken’s termination; and Sonja did not attend the determinative conference to have her evidence tested.
Based on Ms Aitken’s and Ms Nguyen’s evidence, I find that Ms Aitken did cancel Sonja’s appointment and forgot to tell Ms Nguyen beforehand as she had done with prior instances.
Chantelle
Ms Nguyen’s evidence is that in or about May 2024, she received a complaint from a client named Chantelle that Ms Aitken had run overtime with a prior appointment and as a result Ms Aitken cut down the length of Chantelle’s appointment. This meant that Chantelle could not get the particular service that she was booked in for. Ms Nguyen further says that Chantelle told her that Ms Aitken spoke to her in a rude and blunt manner.[21]
Ms Aitken’s account is that Chantelle arrived at her appointment 20 minutes late. Chantelle was booked in for a manicure and pedicure service that would ordinarily take an hour. Chantelle also wanted an extra design service extra on top of that. Further, Chantelle already had polish on her feet, so removal was also required. Ms Aitken explained to Chantelle the time constraints and asked Chantelle to advise on which parts of the service she wanted.[22]
I found Ms Aitken’s recollection of the interaction to be credible. I accept Ms Aitken’s evidence in this regard.
Florence
IK Enterprises provided a statutory declaration from a client called Florence dated Sunday 10 November 2024.[23] Florence’s statutory declaration stated that she is a repeat customer who is “well known among the staff”. On Thursday 4 July 2024, Florence and her friend were booked in for appointments at the nail salon, with Florence booked in with Ms Aitken. Upon arrival at the salon, Florence requested that she be seated next to her friend for their appointments.
Florence’s statutory declaration stated that Ms Aitken refused to accommodate her request, threw up her hands and shouted, “no dude, I’m already set up here I am not fucking moving.” Florence found Ms Aitken’s body language and tone unprofessional.
Ms Aitken’s account is that she was set up for Florence’s 10:00am appointment on the upper level of the salon. Florence arrived 10 minutes late and asked to sit downstairs with her friend. Ms Aitken explained to Florence that they needed to go upstairs as that is where she was set up.[24]
Like with Sonja, Ms Nguyen asked Florence to provide a statement for these proceedings.[25] When Florence complained to Ms Nguyen about the appointment, Ms Nguyen did not raise it with Ms Aitken.[26] Ms Nguyen said that this is why she arranged the staff meeting to address with Ms Aitken the complaints she had received about Ms Aitken, but this is patently not possible given that Florence’s appointment was on Thursday 4 July 2024 and the staff meeting was on Wednesday 12 June 2024.
I do not give any weight to the statutory declaration provided by Florence. I do not find that it matters that it is statutory declaration rather than a letter. The statutory declaration was provided after Ms Aitken’s termination and Florence did not attend the determinative conference to have her evidence tested.
I found Ms Aitken’s recollection of the interaction to be open and credible. Her evidence did not change under cross-examination. I accept her account of what occurred.
Meredith
IK Enterprises provided a letter from Meredith dated Thursday 14 November 2024. Meredith’s letter stated that Ms Aitken regularly swore and was disrespectful towards other staff members. Further, that there was “tension” between staff members. The letter also stated that, “at the time I should have mentioned it to Jenny, the owner, however I didn’t, which I now regret as she may not have understood quite how things were in the salon”.
Ms Nguyen’s evidence is contrary to this – she said that Meredith did complain about Ms Aitken’s language in around April or May 2024.[27] Ms Nguyen did not raise it with Ms Aitken at the time.[28] I also do not afford weight to Meredith’s statement, but for reasons detailed later in this decision, I do find that Ms Aitken would swear at work.
3.3 Wednesday 31 July 2024
On Wednesday 31 July 2024, Ms Aitken and Ms Guipo were having lunch. Ms Aitken mentioned that she had received a 50 cent pay rise. Ms Guipo’s account is that Ms Aitken told her that she wanted to quit and that she might take some of IK Enterprises clients with her.[29] The two also discussed one of Ms Guipo’s bookings for the day, who had been booked late and so would run over time. Ms Guipo’s evidence is that Ms Aitken told her not to do the booking next time, as they did not get paid overtime.[30]
Ms Aitken agrees that she was unhappy with the amount of her pay rise as she was training other staff. However, she denies that she said she would steal clients from IK Enterprises. What she did say was that she would be working from home as she had just started taking clients at home.[31] Ms Aitken also confirmed that when Ms Guipo spoke to her about her late booking, Ms Aitken advised her that she needed to contact Ms Nguyen, otherwise they would need to figure out whether the client wanted to split the appointment, reschedule or cancel the appointment.[32]
Ms Nguyen’s written evidence is that Ms Guipo informed her that Ms Aitken had said she would take clients from IK Enterprises.[33] However, during the determinative conference it turned out that this was incorrect. What had occurred was that Ms Guipo had told Doe part of her conversation with Ms Aitken. Ms Guipo had also relayed a different part of the conversation to Ms Le, who then passed it onto Doe.[34] Doe then sent a message via WhatsApp to Ms Nguyen. As at the determinative conference, Ms Nguyen no longer had a copy of the message.[35]
Ms Nguyen’s recollection of the message is that Doe had told her that Ms Aitken was going to “cancel [IK Enterprises’] clients” and ask them to book with Ms Aitken directly through her home business.[36] Ms Nguyen’s evidence is that this was a key reason why she made the decision to dismiss Ms Aitken the next day.
Ms Nguyen did not speak to Ms Guipo or to Ms Aitken about the conversation they’d had to verify what Doe had told her.[37]
3.4 Dismissal
On Thursday 1 August 2024, Ms Nguyen sent the following text message to Ms Aitken:[38]
“Hi [A]bby,
I hope you’ve been well.
I just wanted to message you as there’s been a few issues that I have been having over the past month or 2. And usually I’m quite fair and understanding or I just let it side.
I have had quite a few complaints from clients about you that I would like to speak up about. I’ve honestly let it slide as I know these things can happen once in a while. But I feel when it starts affecting my business I have to find a solution and address the problem that’s causing a problem within my business.
Because at the end of the day my business ultimately comes first. If I’m going to hire staff that don’t respect or take care of my business. There is no point in me employing staff if they’re not taking care of my business.
I had some clients who have messaged me and have mentioned that you have cut down a service which they originally book in for.
For example. A luxe pedi.
A client was 10 min late. (which I do give grace period of running late.)
But if a client ran late and you had a bit of a gap after. I honestly do expect the service to be done.
I would only think you would cancel the booking or reduce the booking if you were back to back and there was no time after.
I also had a complaint about the way you conducted yourself when a client asked if they could sit down stairs, your repose was very erupt. And rude. (I don’t mind if you wish to not sit down stairs and stay in your space) I feel a bit upset the way you handled it with my clients (the professionalism of the response).
And yesterday the girls raised a concern about a situation yesterday which I watched back on the cameras.
Charlene messaged me yesterday that she accidentally booked a client in at 4pm and that she was going to be staying back over 30 min. You have told Charlene to cancel the appointment as I don’t pay over time
I find that comment quite upsetting. As I do. You could ask all the girls if I’ve ever paid them over time. And to me if that’s what Charlene has decided to do. She has a voice which she can speak to me and the issue will be between me and her.
I also don’t really like the fact sometimes you change the booking around. You have done it in the past and you have voiced due to because you are unable to do the service in that timeframe or you’ve disliked the client. I have tried my best to accommodate your needs to make work as easy as it [can] be for you. But sometimes in reality we have to sometimes bite our tongue and just accept we are going to get the occasional client that’s a bit hard, fussy. Can be indirectly rude which we make take into offense.
Honestly so this has been the biggest and major factor in my business.
I understand that you’re unable to complete a service within the timeframe I’ve expected. Which I have allowed you more time. To do certain sets. And this is such a hard situation for me. As for my business my business runs on paying wages. Outgoing super and products I have to take that all into consideration of the hours it takes to do a set of nails. And if I’m only charging $120 $140 to do a set of nails that will take 2 and half hours. By the time I have paid all expensive [sic] it only covers my cost. So to me there is no point in hiring staff and having these kind of overheads.
It's very hard for me to even do this. As I have never in my life. Have I ever had to let someone go. But I really have to make the difficult decision. Especially during this time as my business has been extremely quiet and have decided I can no longer employ you as an employee at my nails [sic] salon.
You are an amazing person inside. But I believe the way my business is structured and how I want things to operate. Just isn’t suitable for you. I’m so sorry. You are an amazing nail artist and I wish you all the best.
So there is no need for you to come into work any more as for Saturday I have decided to work on that day and take over the clients that are booked in with you that day.
All the best abby and thank you for being a part of my team for the past 19 months. Xx”
Jurisdiction – was Ms Aitken protected from unfair dismissal?
IK Enterprises submits there is a jurisdictional question over whether Ms Aitken can access the unfair dismissal jurisdiction as she was a casual employee with irregular hours.[39] IK Enterprises further submits that Ms Aitken’s hours were not consistent, and her hours varied from week to week depending on business needs.
IK Enterprises did not explicitly state in either their written or oral submissions the sections of the Act they rely upon or how Ms Aitken being a casual bars her from this jurisdiction.
Section 382 of the Act provides that a person is protected from unfair dismissal at a time if they have completed at least the minimum employment period (among other things). As IK Enterprises is a small business employer, the relevant minimum employment period is 12 months.[40]
A period of service as a casual employee does not count towards a period of employment unless the employee was a regular casual employee and had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. A ‘regular casual employee’ is a casual employee who has been employed on a regular and systematic basis.[41] To be ‘systematic’, the casual employment does not need to be predictable.[42]
Ms Aitken was employed on a casual basis and IK Enterprises employed her from February 2023 until Thursday 1 August 2024.
Ms Aitken submitted 85 payslips, which appears to be every single payslip she received while employed with IK Enterprises. From examining these payslips, it appears that Ms Aitken worked every week during her employment with IK Enterprises.
59 out of the 85 payslips show that Ms Aitken worked 23 hours for the relevant week. This includes the week before Ms Aitken was dismissed.[43] The remaining 26 payslips show that Ms Aitken worked between 16 to 22 hours.[44]
Ms Aitken’s unchallenged evidence is that she worked every Wednesday.[45] She also regularly worked Thursdays and Saturdays. Ms Aitken also provided text messages from Ms Nguyen confirming that Ms Aitken’s days of work were Wednesday and Saturday.[46]
Ms Nguyen’s evidence is that Ms Aitken’s hours were not consistent and that they fluctuated depending on business needs. Further, that Ms Aitken would often advise what days she required off. Fluctuation in hours and Ms Aitken taking days off are not in themselves indicators that Ms Aitken was not a regular casual employee.
I find that IK Enterprises employed Ms Aitken on a regular and systematic basis. While Ms Aitken did not work the exact same number of hours every week, the evidence clearly shows that she worked every week; she worked similar or the same days each week; she worked between 16 to 23 hours per week; and for nearly 70% of her employment, she worked the same amount of 23 hours per week.
Ms Aitken was therefore a regular casual employee. I also find that Ms Aitken had a reasonable expectation of continuing employment on a regular and systematic basis. This can be seen in the dismissal text, where Ms Nguyen told Ms Aitken not to come in on Saturday as rostered. I find that Ms Aitken completed the relevant minimum employment period at the time she was dismissed and so was protected from unfair dismissal,
Was Ms Aitken’s dismissal compliant with the Small Business Fair Dismissal Code?
5.1 Initial matters
I must be satisfied of four threshold matters before considering the merits of Ms Aitken’s application.[47]
I am satisfied of three of the four matters referred to in ss 396(a)-(d) of the Act as follows:
(a)Ms Aitken had completed the minimum employment period and was covered by the Hair and Beauty Industry Award 2020. Ms Aitken was thus protected from unfair dismissal under s 382 of the Act;
(b)Ms Aitken’s application was made within the time prescribed in s 394(2) of the Act; and
(c)Her dismissal was not a case of genuine redundancy.
The fourth matter I must be satisfied of under s 396 is whether the dismissal was consistent with the Code.
5.2 Summary Dismissal under the Code
The Code provides that it is fair for a small-business 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. The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act as including:
(a)Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.
(b)Conduct that causes serious and imminent risk to the health and safety of a person; or the reputation, viability or profitability of the employer’s business.
(c)Theft, fraud or assault.
(d)The employee being intoxicated at work.
(e)The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
In assessing whether the “summary dismissal” section of the Code has been complied with, the Full Bench of the Commission in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[48] set out the following guidance on how the “summary dismissal” section of the Code operates:
“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”[49]
It is well-settled that the Commission does not have to make a finding, on the evidence, whether the conduct occurred.[50] The Commission’s determination is whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal.[51] It is not necessary for the Commission to determine whether the employer’s belief was correct,[52] or to be satisfied that there was a valid reason for the dismissal.
In this matter, Ms Aitken was summarily dismissed. IK Enterprises submits that Ms Aitken engaged in “gross misconduct” on the basis she told Ms Guipo that that she would steal clients from IK Enterprises.[53] IK Enterprises also submits that Ms Aitken solicited clients of IK Enterprises multiple times.[54]
There was no evidence from any of IK Enterprises’ witnesses that Ms Aitken had approached clients to solicit them for her home business. Ms Aitken also strongly denied this happened.[55]
The onus is on IK Enterprises to show that Ms Nguyen in fact held the belief that Ms Aitken engaged in serious misconduct and that it justified immediate dismissal.[56] They have not discharged this onus. Based on the evidence, I am not satisfied that Ms Nguyen believed that Ms Aitken had engaged in soliciting clients away from IK Enterprises at the time she dismissed Ms Aitken.
Ms Guipo did not tell Ms Nguyen about the conversation. She told Doe. Ms Nguyen’s evidence is that Doe subsequently told her via message but could not produce the message. I accept that Doe sent some sort of message on Tuesday 31 July 2024 – as Ms Nguyen knew something about what had occurred during the day – but I only have Ms Nguyen’s word as to what was in that message. I find this problematic given the inconsistencies between Ms Nguyen’s written and oral evidence, and her contradictory oral evidence during the determinative conference.
During the determinative conference IK Enterprises asked to adjourn the proceedings so that they could call Doe as a witness. I granted this adjournment.[57] However, IK Enterprises then changed its position and chose not to call Doe and to continue the proceedings.[58]
When I was discussing the adjournment with the parties, IK Enterprises’ legal representative submitted that Doe’s evidence was a “key pillar of [IK Enterprises’] case in the alternative”.[59] Based on this, I am satisfied that IK Enterprises understood the significance of Doe’s evidence, and still chose to not take the adjournment to call her to give evidence.
I also refer to Ms Nguyen’s dismissal text to Ms Aitken, which does not mention her alleged belief that Ms Aitken was stealing clients. The dismissal text is a little over 800 words long and details a laundry list of Ms Nguyen’s grievances. I find it hard to accept that if Ms Nguyen was so aggrieved by Ms Aitken stealing clients that it was a reason for her dismissal that it would not be mentioned in the dismissal text.
If I had accepted that Doe had told Ms Nguyen that Ms Aitken was stealing IK Enterprises’ clients, I would have found that Ms Nguyen believed that Ms Aitken engaged in conduct that was serious enough to warrant dismissal. However, I would have found that the belief was not reasonable.
Doe and Ms Aitken did not get along, and Ms Nguyen knew this. This can be seen from Ms Nguyen’s text message to Ms Aitken on Wednesday 12 June 2024, and Ms Nguyen confirmed that the two did not get along when giving her oral evidence.[60] It was not reasonable for Ms Nguyen to reach a belief that Ms Aitken had engaged in serious misconduct based on a text message from an employee with known animosity towards Ms Aitken. I also note that Ms Nguyen did not conduct any further inquiry, such as speaking to Ms Aitken or Ms Guipo to confirm whatever was in Doe’s text message.
I find that Ms Aitken’s dismissal was not compliant with the first part of the Code.
5.3 Other Dismissal
The Code also provides that in cases of non-summary dismissal, the employer must give the employee a reason why they are at risk of being dismissed. The reason must be a valid reason based on conduct or capacity. Further, the employee must be warned – verbally or in writing – that they risk being dismissed if there is no improvement. The employee must be given the opportunity to respond to the warning and have a reasonable chance to rectify the problem.
I am not satisfied that there was a valid reason based on conduct or capacity. My reasoning is detailed in [80] – [95] of this decision.
As outlined in [21] of this decision, I have not found that Ms Aitken attended a staff meeting on Wednesday 12 June 2024. She therefore did not receive a verbal warning at that time. I also do not find that Ms Nguyen’s text message to Ms Aitken on Wednesday 12 June 2024 rises to the bar of a warning, as it describes general behaviours that she asked the staff to address. It does not state that if Ms Aitken did not address certain behaviours, she was at risk of being terminated.
Accordingly, I am not satisfied that Ms Aitken’s dismissal was compliant with the second part of the Code.
Was the dismissal “harsh, unjust or unreasonable”?
I now turn to consider whether Ms Aitken’s dismissal was “harsh, unjust or unreasonable” per s 385(b) of the Act.
Section 387 of the Act requires me to take into account eight matters in assessing whether Ms Aitken’s dismissal was unfair. I set out my consideration below.
6.1 Section 387(a) – was there a valid reason for the dismissal related to Ms Aitken’s capacity or conduct?
A valid reason is one that is “sound, defensible or well-founded”[61] and should not be “capricious, fanciful, spiteful or prejudiced”.[62]
Where the reason for dismissal relates to conduct, the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal actually occurred is to be determined based on the evidence,[63] and it is to be assessed on the balance of probabilities[64] taking into account the gravity of the allegations.[65] Where the reason for dismissal relates to capacity, the appropriate test is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[66]
IK Enterprises relies on the following grounds as valid reasons for Ms Aitken’s dismissal:
Ms Aitken indicated that she would steal clients from IK Enterprises;
Ms Aitken regularly swore in front of clients and was generally rude to clients;
Ms Nguyen received multiple complaints about Ms Aitken;
Ms Aitken would take breaks when a client was waiting;
Ms Aitken would change client bookings around; and
Ms Aitken took longer than expected with certain services.
I accept Ms Aitken’s account of her conversation with Ms Guipo as outlined in [42] of this decision. I do not find that she said that she would take clients from IK Enterprises. I also do not find that she did take clients from IK Enterprises. During the determinative conference there was a line of questioning about Ms Aitken’s home business and whether she had directed IK Enterprises’ clients to her Instagram account which advertises her home business. It is normal for nail technicians to advertise their work on social media. I accept Ms Aitken’s evidence that she did not use or keep mobile numbers from IK Enterprises’ records[67] to solicit clients and I accept her evidence that she did not offer home services to IK Enterprises’ clients when she was working at the nail salon.[68]
Ms Aitken was open about swearing in front of clients.[69] Ms Aitken explained that all staff would swear in front of clients. Ms Aitken’s evidence is that she would swear in front of clients who were well-known to her, and with new clients she would first gauge whether they were comfortable with such language. Ms Aitken understood that swearing doesn’t come across as professional to many people, but assumed it was acceptable at the nail salon as other staff swore in front of clients.[70] I also note in Ms Aitken’s text message to Ms Nguyen on Saturday 1 June 2024, one of her complaints related to Doe calling other staff an offensive term in front of clients.
Ms Le’s evidence is that in the two years she has worked for IK Enterprises no other staff used swear words in the salon.[71] Ms Guipo’s evidence is that other staff swore, but not in front of clients.
I accept that Ms Aitken would assess clients to see whether they were comfortable with swearing. I do find that Ms Aitken’s judgement was probably off the mark at times, or that even if her client was comfortable with swearing, clients of other nail technicians around her may not have been comfortable with her language.
In terms of whether Ms Aitken was generally rude to clients, I accept from Ms Aitken’s evidence that she would sometimes come across as blunt. Ms Aitken also gave evidence that she is neurodivergent and so can sometimes shut down in situations.[72] Ms Aitken explained that she is proficient in masking her neurodivergent traits[73] and that she had many repeat customers who were happy with her services.
I do not find that Ms Aitken was generally rude. I find that she simply wasn’t everyone’s cup of tea.
With regards to whether Ms Nguyen received multiple complaints about Ms Aitken, I have already made findings regarding the weight to be afforded to the client statements IK Enterprises tendered. I am willing to accept that Ms Nguyen did receive complaints about Ms Aitken. I also accept Ms Aitken’s accounts of her interactions with Chantelle and Florence. I do not find that that this gives rise to a valid reason for dismissal. I also note Ms Nguyen’s own evidence is that she did not raise the complaints with Ms Aitken when she received them. If the complaints were not serious enough for Ms Nguyen to raise them with Ms Aitken prior to dismissal, it is difficult to see how they were serious enough to justify dismissal.
Ms Le’s evidence was that Ms Aitken would walk out on clients and cut down services to get coffee.[74] Ms Le’s evidence was general in nature. Ms Aitken acknowledged that she would regularly get coffees on the days that she worked but would not go to get coffee if a client was due to arrive within five minutes[75]. I found Ms Aitken to be the more credible witness.
Ms Aitken and Ms Nguyen agree that Ms Aitken would change client bookings around and that she would message Ms Nguyen when she did. Ms Nguyen’s own evidence is that she did not recall raising this as an issue with Ms Aitken and would agree to Ms Aitken changing client bookings.[76] It seems that Ms Nguyen disliked Ms Aitken doing this but acquiesced to it without saying anything. Ms Nguyen is the salon owner and manager; it is entirely within her power to direct her employees to follow lawful and reasonable procedures. I cannot find that this is a valid reason for dismissal.
There is evidence that Ms Aitken did take longer than expected with some services. On Tuesday 18 June 2024, Ms Aitken messaged Ms Nguyen asking for a pay rise on the basis that she had been working hard on improving her BIAB applications and helping out with the new nail technicians. Ms Nguyen and Ms Aitken then exchanged a series of messages where Ms Nguyen set out that she wanted Ms Aitken to upsell more services and that Ms Aitken was taking longer to do some services. Ms Aitken acknowledged that she had been struggling with Gel-X extensions in the allotted time.[77]
IK Enterprises’ position on Ms Aitken taking too long with some services is somewhat undermined by one of Ms Nguyen’s text messages in this exchange, where she stated, “So a gel x with a colour I’ve given 1 hour and 20 min and only take $100 if it is going to take you longer honestly that’s fine. I will just have to charge the client more. How long do you take again for a gel x with a colour? So I know and I can work on pricing. Xxx”[78].
I find that Ms Aitken did use inappropriate language at times in front of clients and would take longer than expected with some services. I do not find that these were sufficiently serious matters to warrant dismissal.
I find that on the evidence before me that there was no valid reason for Ms Aitken’s dismissal.
6.2 Section 387(b) and (c) – notification of valid reason and opportunity to respond
An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss.[79] Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.[80]
Ms Aitken was not given notice of the reason for her dismissal prior to the event. She similarly was not given the opportunity to respond. This is a factor that weighs in favour of a finding of unfair dismissal.
6.3 Section 387(d) – any unreasonable refusal to allow a support person
Ms Aitken did not make any request for a support person, but she was also not given notice of her impending dismissal. I find that this is a neutral consideration in this case.
6.4 Section 387(e) – warnings concerning performance
In Ms Nguyen’s text message to Ms Aitken on Wednesday 12 June 2024, Ms Nguyen raises general points that she had “spoken with the girls” about, such as making sure workstations are tidy, punctuality and professional customer service. I do not find that this text message constituted a formal warning about Ms Aitken’s performance.
In text messages between Ms Nguyen and Ms Aitken on Tuesday 18 June 2024, Ms Nguyen did raise things that she wanted Ms Aitken to work on. I do not find that these amount to a formal warning about performance.
6.5 Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed
IK Enterprises is a small business that does not have dedicated human resource management specialists. I find that this did impact on the procedures (or lack of) that were followed.
6.6 Section 387(h) – any other matters the Commission considers relevant
The parties did not raise any other matters.
6.7 Is the Commission satisfied that Ms Aitken’s dismissal was harsh, unjust or unreasonable?
I have made findings in relation to each matter in s 387 as relevant to this case.
The absence of a valid reason and procedural fairness in Ms Aitken’s dismissal leads to my conclusion that her dismissal was harsh and unreasonable. It is harsh because Ms Aitken’s conduct was not sufficiently serious to warrant dismissal. It is unreasonable because IK Enterprises dismissed Ms Aitken with no procedural fairness. The absence of a valid reason and procedural fairness outweighs the other considerations under s 387.
Even if I had found that Ms Aitken’s performance issues formed a valid reason for dismissal, I still would have found that her dismissal was unfair. This is because of the weight I have given the IK Enterprises’ lack of procedural fairness when it dismissed Ms Aitken.
Remedy
I directed both parties to provide evidence and submissions on the question of remedy as well as on the merits of Ms Aitken’s unfair dismissal application. However, neither party provided enough material for me to appropriately make findings in accordance with ss 391 and 392 of the Act to determine the issue of remedy.
Accordingly, I will hear the parties separately on the question of remedy and will issue directions to this effect. The parties are also directed to attend a Member-assisted conciliation with Commissioner Tran to attempt to resolve the question of remedy by agreement.
COMMISSIONER
Appearances:
A Aitken, Applicant.
L Lee, for the Respondent.
Determinative Conference details:
2024.
Perth:
13 December.
[1] Transcript PN16.
[2] Ibid PN97; PN123; PN248; PN379.
[3] Ibid PN341; PN370.
[4] Digital Court Book (DCB) 217 [2].
[5] Transcript PN661-662.
[6] DCB (n 4) 216 [2].
[7] Ibid 215 [5].
[8] Ibid 215 [6].
[9] Ibid 216 [3]-[7].
[10] Ibid 150-153.
[11] Transcript PN126.
[12] Ibid PN153.
[13] Ibid PN155.
[14] Ibid PN181.
[15] Ibid PN191.
[16] DCB (n 4) 161.
[17] Ibid 210.
[18] Transcript PN239.
[19] Ibid PN228.
[20] Ibid PN230.
[21] DCB (n 4) 206.
[22] Transcript PN285.
[23] DCB (n 4) 211.
[24] Transcript PN302-303.
[25] Ibid PN299.
[26] Ibid PN305.
[27] Ibid PN317.
[28] Ibid PN322-PN323.
[29] Ibid PN340.
[30] Ibid PN516.
[31] Ibid PN346.
[32] Ibid PN533.
[33] DCB (n 4) 215 [10].
[34] Transcript PN516-525.
[35] Ibid PN404.
[36] Ibid PN400.
[37] Ibid PN415-418.
[38] DCB (n 4) 45.
[39] Transcript PN16.
[40] Fair Work Act 2009 (Cth) (Act), s 383(b).
[41] Ibid s 12.
[42] Angele Chandler v Bed Bath n Table[2020] FWCFB 306, affirming the approach in Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339.
[43] DCB (n 4) 54.
[44] Excluding Ms Aitken’s first and final weeks.
[45] Transcript PN87-88.
[46] DCB (n 4) 135, 149.
[47] Act (n 40), s 396.
[48] [2015] FWCFB 5264.
[49] Ibid [41].
[50] Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café[2010] FWA 7891 (Bartel DP, 14 October 2010) [60], [(2010) 204 IR 39]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359 (Pinawin) (Watson VP, Richards SDP, Cloghan C, 21 March 2012) [27], [29], [(2012) 219 IR 128]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine[2013] FWCFB 1943 (Acton SDP, Smith DP, Roe C, 24 April 2013.
[51] Ibid.
[52] Pinawin (n 50) [29], [(2012) 219 IR 128].
[53] DCB (n 4) 233 [4].
[54] Ibid 208 [6.1].
[55] Transcript PN808-853.
[56] Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 (McCarthy DP, 21 June 2011) [8]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) [28]-[29], [(2012) 219 IR 128].
[57] Transcript PN914.
[58] Ibid PN934-936.
[59] Ibid PN890.
[60] Ibid PN419-428.
[61] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), 62 IR 371, [373].
[62] Ibid.
[63] King v Freshmore (Vic) Pty Ltd Print S4213, (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [24].
[64] Edwards v Justice Giudice [1999] FCA 1836, (23 December 1999), [6]-[7], [(1999) 94 FCR 561].
[65] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336].
[66] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [62], [(2000) 98 IR 137].
[67] Transcript PN816-817.
[68] Ibid PN848-851.
[69] Ibid PN774-775.
[70] Ibid PN783.
[71] Ibid PN733-735.
[72] Ibid PN767.
[73] Ibid PN771.
[74] Ibid PN590.
[75] Ibid PN499
[76] Ibid PN545-552.
[77] Ibid PN784-789.
[78] DCB (n 4) 146.
[79] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [70]-[73], [(2000) 98 IR 137].
[80] Ibid [75].
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