Alanna Atherinos v Bariano Group Pty Ltd

[2016] FWC 855

[2016] FWC 855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alanna Atherinos
v
Bariano Group Pty Ltd
(U2015/10045)

VICE PRESIDENT WATSON MELBOURNE, 9 MARCH 2016

Application for unfair dismissal remedy – whether dismissed – whether application filed within statutory time limit – whether minimum employment period satisfied – transfer of employment – whether genuine redundancy – whether terminal of employment harsh, unjust or unreasonable – whether valid reason for dismissal – Fair Work Act 2009, ss.22, 383, 384, 385, 386, 387, 389.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Ms Alanna Atherinos who was employed by Bariano Group Pty Ltd (Bariano). Ms Atherinos worked at various stores which she contends are all part of the Bariano Group, from approximately October 2014 to July 2015.

[2] Bariano opposes the application on the jurisdictional bases that Ms Atherinos did not meet the minimum employment period, she was not dismissed as she resigned from her employment, any dismissal was a case of genuine redundancy, and the application was filed outside of the 21 day statutory time limit.

[3] The matter was listed for hearing on 21 December 2015. Mr A Jenshel of counsel appeared on behalf of Ms Atherinos and Mr N Huynh (Huynhdai) appeared on behalf of Bariano. Evidence was given by Ms Atherinos and Mr Jay Jones, Retail Area Manager during the relevant period. The statement of Ms Ching Tan, bookkeeper for Bariano Group Pty Ltd, was also admitted into evidence.

[4] Following the hearing the parties had the opportunity to file full written submissions and supplementary witness statements on matters foreshadowed at the hearing. Parties had liberty to apply to cross-examine the witnesses in relation to any further witness statements filed. No such request was made. To the extent that the supplementary submissions and statements involve contested and relevant facts they have been adequately dealt with in the hearing of 21 December 2015.

Background

[5] There is some contention between the parties concerning the employment history of Ms Atherinos.

[6] Ms Atherinos states that she commenced employment at the Bariano Moorabbin DFO Store in September/October 2014 and worked there until February 2015. Ms Atherinos states that during that period she was required to work at other Bariano stores from time to time, as it was common practice for staff to be swapped and borrowed between stores.

[7] Ms Atherinos gave evidence that on 8 February 2015 she was moved from the Moorabbin store to the Chadstone store. She states that she was not interviewed for the role, did not resign from her role at the Moorabbin store and her annual leave was not paid out. She states that she did not sign a new tax file declaration at the time, but was requested to do so about a month after she had commenced at Chadstone.

[8] Ms Atherinos states that on or about 16 June 2015 she became aware that the Chadstone store would be closing down on 5 July 2015. Ms Atherinos says that she was advised by Mr Jay Jones, Retail Area Manager during the relevant period, that she would be transferred to the South Yarra store together with Ms Jemma Pereira-Jani. Ms Atherinos states that she commenced working at the South Yarra store on 6 July 2015.

[9] Ms Atherinos states that she was rostered to work on 19 July 2015 with Ms Pereira-Jani. Ms Atherinos says that she spoke with Ms Pereira-Jani early that morning and told her that she was sick and could not come to work. Ms Pereira-Jani told her that she would let Ms Miranda, the store manager, know.

[10] Ms Atherinos’ evidence is that on 20 July 2015 she was advised by Ms Ellen De Filipps that her rostered shift for both 20 and 21 July 2015 were cancelled for allegedly failing to notify of her absence in accordance with company policy.

[11] Ms Atherinos gave evidence that on 23 July 2015 she sent an SMS to the South Yarra store manager to ascertain whether she had any further shifts for the week but received no response.

[12] Ms Atherinos states that later on on 23 July 2015 she received a letter dated 14 July 2015 at her home address, which included a stamp but does not appear to include a post mark. The letter was dated 14 July 2015 and states as follows:

“As previously communicated, the business unfortunately has concluded its lease and hence it’s ongoing business. The agreed separation date for all employment is 5th July 2015

As such, your last day of employment with Bariano Chadstone Pty Ltd shall be Sunday 5^th July 2015.

Other franchisee or entities associated with the brand might have casual positions which you can apply for however we wish to emphasise that those entities are separate to Bariano Chadstone Pty Ltd and do not form part of any previous employment commitments with you. Your contract and awards with Bariano Chadstone Pty Ltd will not be transferable or continued with other entities.

We required that you sign the confidentiality guaranty below, provide access to your company email, internet websites and social media log in details and return all company assets. After such, we will pay you all accrued entitlements and outstanding remuneration, including superannuation, up to and including the last day of your employment with us.

…”

[13] Ms Atherinos says that she took this letter to mean that she was dismissed.

[14] Ms Atherinos’ evidence is that on 24 July 2015 she received a text message from Ms Pereira-Jani asking if she was working on 25 July 2015 as she was still on the roster. Ms Atherinos advised that she had not heard back from the Store Manager so she did not know. After checking with the store manager, Ms Pereira-Jani told her that she was not working tomorrow, and that she did not appear on the roster for the following week.

[15] Ms Athernios states that she was never advised that she was ever rostered on again.

[16] Ms Athernios says that on 5 August 2015 she noticed that Bariano were advertising a number of vacancies within their stores, on their Facebook page. Ms Atherinos produced a screen shot of the Facebook post.

[17] Bariano do not contest that Ms Atherinos worked at the Moorabbin DFO store from October 2014 until February 2015.

[18] Bariano contends that Ms Atherinos resigned from Bariano Group Pty Ltd in the Moorabbin DFO store in order to work at Bariano Chadstone Pty Ltd (in liquidation). It states that it is clear there was a change of employer, as the location, salary, job title and pay slip changed.

[19] Bariano agrees that the Chadstone store closed and that Ms Atherinos commenced working at the South Yarra store on 6 July 2015. However, Bariano submits that Ms Athernios was not ‘transferred’ to the South Yarra store. It is submitted that her contractual matters with Bariano Chadstone Pty Ltd were settled, as all leave, super and other entitlements were paid to Ms Atherinos on 6 July 2015.

[20] Bariano submits that Ms Atherinos applied for the position as store manager in South Yarra, which is a store belonging to Bariano Group Pty Ltd. It refers to the evidence of Mr Jones, who states that the South Yarra store agreed to trial Ms Atherinos on a casual basis to determine whether she was suitable for the business. Mr Jones states that no permanent employment was guaranteed, and that after working several days, Ms Atherinos was deemed unsuitable for the available roles.

[21] Bariano submits that the letter dated 5 July 2015 was posted, and that Ms Atherinos should have received it by 17 July 2015. It agrees that Ms Atherinos’s last day of paid employment was 17 July 2015 and contends that this is the date her dismissal took effect.

[22] It is necessary to make some findings as to the circumstances of Ms Atherinos’s employment. Ms Atherinos was employed at various stores in different capacities. The Chadstone employment was with a different employer. It appears that the facts establish that there were three separate contracts of employment because entitlements were likely paid out at the end of the service with the stores and there was a clear change of duties and employment status at each of the locations. It is more likely that there were three separate contracts of employment rather than one contract of employment although this in itself may not be of significance to the issues that fall for determination.

Relevant legislation

[23] Before considering the merits of the application, the Commission must consider whether the application was made within the period required, whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code (if applicable) and whether the dismissal was a case of genuine redundancy. 1

[24] Section 394 of the Act provides that the application for unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the FWC allows.

[25] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period. The meaning of minimum employment period is set out in s.383 of the Act:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[26] Section 384 of the Act concerns period of employment:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[27] Division 3 of the Act contains relevant provisions for determining jurisdictional and merit aspects of the application. The Division relevantly provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[28] The meaning of genuine redundancy is set out in s.389 of the Act:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[29] Once any preliminary matters have been determined, 2 the Commission may consider the merits of the application. Section 387 of the Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Whether Ms Atherinos was dismissed

[30] I propose to consider this matter first as the conclusions I reach have a bearing on the other questions I am required to consider. Ms Atherinos contends that she was dismissed by Bariano, and that the dismissal was both express and implied.

[31] To the extent that the dismissal was express, Ms Atherinos submits that it comprised the ‘separation letter’ dated 14 July 2015.

[32] To the extent that it was implied, Ms Atherinos submits it comprised:

• the failure of the South Yarra Store Manager to reply to her text message on 23 July 2015 in which she sought to confirm her shifts for the rest of the week



• the advice given by Ms Pereira-Jani on 24 July 2015 that she was not working on Friday 25 July and had been removed from the roster for the following week, and



• the failure to allocate any work to her since.

[33] Bariano submits that Ms Atherinos was never promised any shifts beyond 25 July 2015 either express or implied. Bariano submits that Ms Atherinos was employed as a casual employee at the South Yarra store, not on a regular and systematic basis. Bariano submits that it is within its rights not to allocate shifts to its casual employees due to availability, performance, best alternatives or operational reasons.

[34] The redundancy of the position at Chadstone, dealt with in the 14 July 2015 dismissal letter is not of any relevance. An employment relationship existed thereafter at the South Yarra store. Casual shifts were offered. Some were worked. One was not worked. Some further shifts were cancelled. Ms Atherinos was deemed unsuitable for the roles at the store and she was not offered further shifts.

[35] In my view the conscious decision of Bariano to end the casual employment relationship constituted a dismissal. Even though the period of casual employment at South Yarra was short, and the other positions are likely to have involved separate contracts of employment, the decision to cease rostering shifts should be seen in the context of the contiguous employment at the other two locations. I find that Ms Atherinos was dismissed from the casual position at South Yarra.

[36] Ms Wong gave evidence of the decision to dismiss. It arose from events on 19 July 2015 and a subsequent consideration of those events by Ms De Filipps. Ms De Filipps advised her on 20 July that her shifts for 20 and 21 July had been cancelled. On 23 July Ms Atherinos sent a text requesting clarification as to the status of her rostered shifts and received no response. On 24 July Ms Pereira-Jani informed her that she was still on the roster for 25 July 2015. Later on 24 July she was advised by Ms Pereira-Jani on instruction from Ms De Filipps that she was no longer rostered for work on 25 July and had been removed from the roster for the following week. I find that the dismissal occurred on 24 July 2015 when the decision by Ms De Filipps to dismiss Ms Atherinos was communicated to her.

Extension of Time

[37] Ms Atherinos submits that her application for unfair dismissal remedy was filed within the 21-day statutory time limit. Her evidence is that her dismissal took effect on 23 July 2015, the date she received the ‘separation letter.’ Ms Atherinos’ application was lodged on 13 August 2015, which is 21 days after the date she submits the dismissal took effect.

[38] Bariano submits that Ms Atherinos’ application was lodged more than 21 days from the date of dismissal. Bariano contends that Ms Atherinos received the letter of termination before 23 July 2015 because it was written on 14 July 2015 and posted on 15 July 2015. Bariano submits that Ms Atherinos mentioned the letter to her colleague Ms Pereira-Jani on 19 July 2015 so it appears that she was aware of the letter on 19 July 2015.

[39] Bariano submits that Ms Atherinos’ last day of employment was 17 July 2015, and that as the application was lodged on 13 August 2015, it was lodged more than 21 days from the date the dismissal took effect.

[40] I have found that the termination letter related to the Chadstone employment and is not relevant to the termination of the South Yarra employment. I have found that the first communication of the cessation of the South Yarra employment was 24 July. That is therefore the date of the dismissal and the application lodged on 13 August was within the 21 day time limit.

Minimum Employment Period

[41] Ms Atherinos submits that her evidence discloses that she was employed exclusively by Bariano Group Pty Ltd from 5 October 2014 until she was dismissed on 23 July 2015, and never employed by Bariano Chadstone Pty Ltd. Ms Atherinos submits that the fact that the she was paid wages by Bariano Chadstone Pty Ltd does not amount to a resignation or otherwise alter the prior employment relationship between Ms Atherinos and Bariano Group Pty Ltd, and relies on Damevski v Giudice 3 to support her proposition. Ms Athernios further submits that a change in workplace does not have this effect either. Ms Atherinos submits that her service from 5 October 2014 was “continuous” for the purposes of s.384(1), and therefore she has served the minimum employment period.

[42] In the alternative, it is submitted that Bariano Chadstone Pty Ltd (in liq.) and Bariano are associated entities, with the result that transfers of employment have taken place for the purposes of s.22(5) of the Act. It is submitted that, therefore, Ms Atherinos’ service from October 2014 was “continuous” for the purposes of s.394(1), therefore she has served the minimum employment period.

[43] Bariano submits that Bariano Group Pty Ltd and Bariano Chadstone Pty Ltd are two different companies, each of which employ its own staff, make its own income, and report and pay its own tax. Barino further submits that there was a distinct employment basis and position when Ms Atherinos worked as a sales assistant at the Moorabbin DFO Store owned by Bariano Group Pty Ltd, to a full time store manager at Chadstone Pty Ltd, to when she was a trial casual employee at Chapel St by Bariano Group Pty Ltd. Bariano submits that Ms Athernios’ pay slip, group certificate and pay rate confirm the distinction between the employers.

[44] Bariano submits that if the length of service at the Moorabbin and Chapel Street stores was combined, Bariano Group Pty Ltd employed Ms Atherinos for a period of less than 6 months.

[45] Bariano submits that the service of Bariano Chadstone Pty Ltd (in liq.) did not benefit Bariano Group Pty Ltd and should not count towards service with Bariano. It submits that this factor distinguishes it from the situation in Damevski v Giudice, cited by Ms Atherinos.

[46] Further, Bariano submits that there was no transfer of employment. It submits that there is no paperwork or agreement between Bariano Group and Bariano Chadstone in relation to a transfer of employment, and the letter of separation from Bariano Chadstone of 14 July 2015 reflects this. It submits that Ms Atherinos was employed by Bariano Group at its South Yarra store as a casual employee on a trial basis only.

[47] A transfer of employment is defined in s.22(7) of the Act as including employment with a second employer within three months of employment ending with a first employer where the two employers are associated entities. It is not disputed that the Chadstone employer and the South Yarra employers are associated entities under the Corporations Act 2001. A similar transfer occurred when Ms Atherinos transferred from Morrabbin to Chadstone. A period of service with the first employers counts as periods of service with the second employers in each case. Therefore the period of service with Bariano Group includes the period at Moorabbin since October 2014 and the period at Chadstone from February 2015 to 5 July 2015. The casual employment at South Yarra may not count as service itself because it may not have been regular and systematic and may not have given rise to a reasonable expectation of continuing employment but the minimum employment period is satisfied in any event by the consideration of the earlier employment periods.

Genuine Redundancy

[48] Ms Atherinos submits that the decision to terminate her employment was attributable solely to considerations of her suitability rather than any legitimate operational requirements. Ms Atherinos submits that the email from Mr Huynhdai of 27 October 2015 to her representative and the Commission which states that Ms Atherinos “was not offered any further full time/part time contract as the owner do not feel she was suitable for their store” supports this conclusion, and establishes that the duties previously performed by her were still required to be performed by someone.

[49] Ms Atherinos submits that that General Retail Industry Award 2010 applied to her employment, which contains an obligation to consult where an employer makes a decision to introduce certain major workplace changes which are likely to have significant effects on employees. Ms Atherinos contends that the decision to make her redundant is a major change with significant effects within the meaning of the Award. Ms Atherinos submits that Bariano did not comply with the obligation to consult in terms of s.389(1)(b) of the Act and has not adduced any evidence concerning this matter.

[50] Ms Atherinos contends that it is clear that the failure to redeploy has the result that the dismissal was not a genuine redundancy. It is submitted that there were more options for redeployment, given that in Ms Atherinos’ submission, Bariano operates within a group of associated entities.

[51] Bariano maintains the separation between Bariano Group Pty Ltd and Bariano Chadstone and submits that it was Bariano Chadstone that made the Ms Atherinos redundant due to its closure. It submits that the change was discussed with Ms Atherinos and an alternative employment option was provided (at the South Yarra store), however it submits that it was made clear that the alternative arrangement would not be permanent.

[52] Bariano submits that in any case, Bariano Chadstone is not the respondent, and if Ms Atherinos would like to dispute the dismissal by Bariano Chadstone, she must make a separate application specifying Bariano Chadstone as the respondent to the application.

[53] Bariano submits that Bariano Group (South Yarra store) employed Ms Atherinos on a casual, non-fixed, non-ongoing basis and ended the employment relationship after 19 July 2015. It submits that Bariano did not promise Ms Atherinos ongoing employment at its South Yarra store, and therefore there is no obligation to consult as there is no ‘change’.

[54] In response to Ms Atherinos’ submission that the email of 27 October 2015 establishes that the duties previously performed by her were still required to be performed by someone and that the termination of her employment appears to be attributed to her suitability rather than operational reasons, Bariano states that it does not deny this, in the case of her employment with Bariano Group Pty Ltd.

[55] The termination that is challenged in this application is the termination by Bariano Group from the South Yarra store. The letter of termination from the Chadstone store is not relevant. I find that the termination is not on account of a genuine redundancy.

Harsh, Unjust or Unreasonable

[56] Ms Atherinos contends that there can be no valid reason for the termination within the meaning of s.387(a) of the Act because no reason for the dismissal has been identified. Ms Atherinos submits that Mr Huynhdai’s evidence that she was “unsuitable” is not a valid reason.

[57] Ms Atherinos submits that it follows that there can be no “notification” within the meaning of s.387(b) of the Act because the real reason for the dismissal has never been communicated.

[58] Ms Atherinos contends that no opportunity to respond within the meaning of s.387(c) of the Act was given in respect of any factor in her dismissal. Ms Atherinos further contends that as a matter of logic, procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond, and cites Crozier v Palazzo Corporation Pty Ltd 4 to support her proposition.

[59] Ms Atherinos submits that no support person or discussions within the meaning of s.387(d) was provided or took place.

[60] Ms Atherinos submits that there is no suggestion that there was any “unsatisfactory performance” within the meaning of s.387(e) or that any warning was ever given.

[61] Ms Atherinos submits that to the extent the size of Bariano’s enterprise is relevant, there is nothing about its group of companies that precluded a minimally sensitive mode of dismissal, but Ms Atherinos’ dismissal was, in her submission, high-handed and disingenuous.

[62] Ms Atherinos submits that in light of the above, there is no other conclusion but that the termination of her employment was harsh, unjust and/or unreasonable.

[63] Bariano submits that Ms Atherinos came to her shift on 17 July 2015 with runners and ripped jeans, which is contrary to company policy. Further, Bariano submits that Ms Atherinos did not come to her shift on 19 July 2015 and did not give her manager notice of this. Ms Atherinos failed to provide a doctor’s certificate for her absence, contrary to company policy.

[64] Bariano submits that it is a valid reason not to continue to offer employment in the context that Ms Atherinos was was employed as a casual on a ‘trial’ basis and no permanent contract was given or promised.

[65] Bariano submits that in relation to ‘notification’, it has been communicated many times throughout the unfair dismissal case. It also submits that Bariano did not notify Ms Atherinos that it was prepared to employ her on a permanent basis.

[66] In relation to the relevance of the employer’s enterprise, Bariano submits that it is a small business with less than 7 full time/ part time staff, and it does not have any dedicated human resources staff.

[67] I will consider each of the factors in s.387 to determine whether the dismissal of Ms Atherinos was harsh, unjust or unreasonable.

[68] There appears to have been some justification for dissatisfaction of Ms Atherinos at the South Yarra store. However I am not persuaded that the there was a valid reason for the dismissal. The circumstances needed to to be investigated more thoroughly and the overall period of employment given weight. I do not consider that in the context of her employment history the reasons of appearance and nonattendance amounted to a reason for dismissal that was sound, defensible and well founded.

[69] Ms Atherinos was not notified of the reasons for her dismissal nor given an opportunity to respond to the reason in relation to her conduct or capacity.

[70] There were no discussions about unsatisfactory performance and no denial of a support person for such discussions.

[71] Ms Atherinos was not warned about any performance issues prior to her dismissal.

[72] The absence of HR professionals and the size of the Bariano undertaking may excuse some errors in process. However the shortcomings of the dismissal are very significant and cannot entirely be attributed to lack of professional assistance.

[73] I have regard to the perception of Bariano that it was under no obligation to roster shifts for Ms Atherinos and the advice to her that she was undergoing a trial for a more secure position. I also have regard to the other periods of employment at the Moorabbin and Chadstone stores.

[74] Bariano treated Ms Atherinos on the same basis as a new casual sales assistant on trial. In fact she had a history of employment including a promotion to a more senior role. In my view fairness dictates that this history needed to be taken into account in the assessment of her suitability for ongoing employment and the procedures it applied for addressing performance and reliability issues. Termination was not a reasonable response to the circumstances that had occurred. In all of the circumstances I find that the termination of Ms Atherinos’s employment was harsh, unjust and unreasonable.

[75] As there were various preliminary issues that attracted the attention of the parties and their perspective of the matter overall I am not in a position to determine the remedy that should be awarded in the matter. I direct the parties to discuss the question of remedy and attempt to agree on an outcome. If the parties are unable to reach agreement on remedy the matter will be listed for a short further hearing to hear submissions on remedy.

VICE PRESIDENT

Appearances:

Mr A Jenshel of counsel on behalf of Ms Atherinos.

Mr N Huynh on behalf of Bariano Group Pty Ltd.

Hearing details:

2015.

Melbourne.

21 December.

Final written submissions:

Ms Atherinos on 17 December 2015.

Bariano on 18 January 2016.

 1   Fair Work Act 2009, s.396.

 2   See Fair Work Act 2009, s.396.

 3 [2003] FCAFC 252 at [63].

 4 (2000) 98 IR 137 at [75].

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