Alyssa Anderson v Beautiful Hair Burwood Pty Ltd T/A Beautiful Hair
[2019] FWC 5808
•21 AUGUST 2019
| [2019] FWC 5808 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alyssa Anderson
v
Beautiful Hair Burwood Pty Ltd T/A Beautiful Hair
(U2019/2052)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 21 AUGUST 2019 |
Unfair dismissal – no appearance by or on behalf of respondent – dismissal harsh, unjust and unreasonable – compensation ordered.
Introduction and background
[1] Ms Alyssa Anderson was employed by Beautiful Hair Burwood Pty Ltd trading as Beautiful Hair (Beautiful Hair) as an apprentice hairdresser prior to her dismissal on 24 February 2019. On 26 February 2019, Ms Anderson filed an unfair dismissal application (Application) in the Fair Work Commission (Commission), alleging that her dismissal was harsh, unjust and unreasonable.
[2] Beautiful Hair has not filed a response to the Application, did not participate in a conciliation conference, has not filed any witness statements, documents or submissions in accordance with directions made by the Commission, or at all, and did not attend the hearing of the Application in the Commission in Newcastle on 13 August 2019. Notwithstanding those matters, I am satisfied that Beautiful Hair was aware of the Application and the fact that it was listed for hearing in the Commission in Newcastle on 13 August 2019, for the following reasons:
• Ms Anderson provided the following contact details for Beautiful Hair in her Application:
“Miss Eman Hamed
Owner
Phone: [deliberately omitted]
Mobile: [deliberately omitted]
Email:[email protected]”
• On 4 March 2019, the Commission served a copy of the Application on Beautiful Hair by emailing it to the email address provided in the Application ([email protected]). In the same correspondence, the Commission notified Beautiful Hair of the listing of the Application for conciliation on 27 March 2019;
• On 22 March 2019, a staff member of the Commission spoke to a person named Tracey in relation to the Application. Tracey informed the staff member that the respondent’s business had “changed hands approximately two weeks ago” and provided an email address of [email protected] for the previous owner of the business. Later on 22 March 2019, the Commission sent a copy of the Application to Ms Eman Hamed by email (using the email address [email protected]), together with notification of the conciliation scheduled to take place at 9:45am on 27 March 2019;
• On 26 March 2019, the Unfair Dismissal Team (UDT) within the Commission received the following email from Ms Hamed:
“From: Emily Hamed [email protected]
Sent: Tuesday, 26 March 2019 2:15 PM
To: UDT
Subject: Ref year 2019/2052
To whom it may concern,
Thank you for your call today, sorry for the delay as the original email was sent to my business partner Hasham.
Unfortunately Hasham is overseas at the moment, itinerary attached.
Can we please postpone this matter for approx. 6 weeks until my business partner returns to Australia so be can assist you with this matter, as he is the one that deals with that side of the business.
Many Thanks
Emily Hamed
[mobile telephone number deliberately omitted]”
• The mobile telephone number provided by Ms Hamed at the foot of her email sent at 2:15pm on 26 March 2019 was the same mobile telephone number as Ms Anderson provided in the respondent’s contact details part of her Application;
• On 26 March 2019, the Commission emailed a copy of the Application to Ms Hamed, using the email address she had used to correspond with the Commission on that day ([email protected]);
• On 27 March 2019, the Commission acceded to Beautiful Hair’s request for an adjournment of the conciliation. The conciliation was rescheduled to take place on 24 April 2019 and the parties were notified of that new date for the conciliation;
• On 24 April 2019, there was no appearance by or on behalf of Beautiful Hair at the conciliation. The file was then allocation to the chambers of Deputy President Cross, who made directions preparing the matter for hearing and set a hearing date of 26 June 2019 in the Commission in Newcastle. Those directions were sent to Beautiful Hair by email to Ms Hamed at [email protected];
• On 11 June 2019, Ms Anderson filed and served material in support of her Application. Ms Anderson served her material on Beautiful Hair by emailing it to Ms Hamed at [email protected];
• Beautiful Hair did not comply with the directions made by Deputy President Cross for it to file and serve any witness statements, documents and submissions it wished to rely on in relation to the Application;
• On 21 June 2019, a staff member of the Commission spoke to a person by the name of Sian in reception at Beautiful Hair, who informed the Commission that Ms Hamed was currently in the Middle East, would not be back for another four weeks, and could not be contacted during this period;
• On 24 June 2019, Deputy President Cross cancelled the hearing scheduled to take place on 26 June 2019, on the basis that “the Respondent is not within Australia to attend the hearing”. Notice of the cancellation of listing was sent to Ms Anderson and Beautiful Hair (at [email protected]);
• On 3 July 2019, the matter was transferred from the chambers of Deputy President Cross to my chambers. On the same day, I issued directions requiring Beautiful Hair to file and serve any submissions, witness statements and other documentary material it wished to rely on in relation to the Application by 1 August 2019, and listed the Application for hearing in the Commission in Newcastle at 10am on 13 August 2019. A notice of listing to that effect was emailed to Ms Anderson and Beautiful Hair (at [email protected]) at 2:02pm on 3 July 2019;
• Beautiful Hair has not filed any material in accordance with the directions I made on 3 July 2019, or at all; and
• the hearing of the Application commenced at 10am on 13 August 2019 in the Commission in Newcastle. Ms Anderson appeared for herself. The matter was called three times outside the court. There was no appearance by or on behalf of Beautiful Hair. I adjourned to allow my Associate to attempt to contact Beautiful Hair by telephone. Those attempts were unsuccessful. I then proceeded to hear the Application in the absence of Beautiful Hair.
[3] It is apparent from this summary of events since the filing of the Application that Beautiful Hair has been given every opportunity to participate in these proceedings in a meaningful way. Indeed, the proceedings have been adjourned twice to accommodate Beautiful Hair’s convenience. In the result, it is clear that Beautiful Hair has elected not to participate in the proceedings or attend the hearing. That being the case, it is appropriate that I determine the Application on the basis of the evidence adduced by Ms Anderson, including Ms Anderson’s answers, on affirmation, to my questions of her at the hearing.
Ms Anderson’s evidence
[4] Ms Anderson gave oral evidence that the content of her statement was true and correct. Ms Anderson’s statement included the following relevant information:
“I am filing this unfair dismissal claim as I believe I was unfairly terminated.
I was not given (nor was I paid) two weeks notice.
I was advised by the area manager via email at 11:40pm on the 18th February, that the store was closing down and the salon would be under new management from the 24th February 2019 (copy attached).
I had already been forwarded a text message earlier the same day that had been sent to two other staff members but I did not receive it (Copy Attached) This text message advised the other staff that positions were safe and this was part of a whole new structure.
I do not believe that I had not fulfilled my role as an apprentice hairdresser and believe I should have been kept on.
The fact that the other girls were advised earlier and I was informed of termination (not just a revamp of the store) I find this extremely unfair.
The manager and another first year apprentice were also told the shop had sold – Not just reopening under another name.
I would like my unpaid waged [sic] paid, unpaid leave, superannuation paid, and I have been advised that I can claim up until I find another job.”
[5] The email to which Ms Anderson referred in her statement is in the following terms:
“From: Tracey Camilleri [email protected]
Date: 18 February 2019 at 11:40:49 pm AEDT
To: [email protected]
Subject: Closing of beautiful hair
To all staff at Beautiful hair greenhills,
We regret to inform you that as of Sunday the 24th February, the salon will be closing down, the salon will be under new management (new ownership) and we have been instructed to terminate all current staff.
Unfortunately the salon hasn’t progressed as we had hoped.
Please take this notification as termination of employment with beautiful hair.
We wish you all the best for your future endeavours.
Tracey Camilleri”
[6] The text message to which Ms Anderson referred in her statement is in the following terms:
“iMessage
Today 1:41pm
Tracey
Good afternoon girls
You will probably get notice that the salon is closing for 2 weeks this Sunday
This is true however we are reopening with a new name and new management
You will both retain your positions.
Please don’t be worried about it but don’t tell anyone that you’ve heard that from me.
This is part of a whole new structure and very exciting news.
I’ll be in touch again soon with more info and a group meeting
Sorry
It’s Tracey for those if [sic] you that don’t have my number
[7] Ms Anderson also oral gave evidence that the answers she included in her Application were true and correct, including the following:
“1. Your Employment
1.1 What date did you begin working for your employer? 20/11/2017
1.2 What date were you notified of your dismissal? 18/02/2019
1.3 What date did your dismissal take effect? 24/02/2019
…
3.1 What were the reasons for the dismissal, if any, given by your employer?
The salon had a potential buyer and was re opening in two weeks by the potential buyer with a new name. Although I have photo evidence employees at work received a message by the area manager (Tracey Camilleri) the employee’s positions were safe and to return back to work after two weeks in the same salon with its new name.
3.2 Why was the dismissal unfair?
I was never notified of any reasons other than the salon had a potential buyer – as stated above, employees still remained employed. I didn’t receive any warnings either, written or verbal and was only given one week notice for terminated employment. Also was an asset to the salon by providing facial waxing and tinting. Without receiving any complains or warnings or a legitimate reason for employment being terminated. I think it is unfair dismissal. The owners have two sister companies and own several salons I could have been employed at if selling the salon I worked at was the reason for dismissal”
[8] Further, the oral evidence given by Ms Anderson in answer to my questions at the hearing included the following:
• Ms Anderson commenced employment with Beautiful Hair on 13 November 2017 as a second-year apprentice hairdresser. She commenced her hairdressing apprenticeship with a different employer in October 2016;
• Ms Anderson worked for Beautiful Hair in its salon located in Greenhills, New South Wales (Greenhills Salon);
• In the period from 13 November 2017 until her dismissal in February 2019, Ms Anderson worked between about 30 and 38 hours per week for Beautiful Hair, including one paid day per week (7 hours) at TAFE;
• In the period from about the start of 2019 until her dismissal in February 2019, Ms Anderson worked about 30 hours per week for Beautiful Hair, including one paid day per week (7 hours) at TAFE. Most of that work was undertaken from Monday to Friday;
• At the time of Ms Anderson’s dismissal from Beautiful Hair in February 2019, the following employees worked with Ms Anderson at the Greenhills Salon:
◦ Ms Cindy Won – Store Manager and hairdresser;
◦ Ms Tracey Camilleri – Area Manager and hairdresser. Ms Camilleri worked at the Greenhills Salon about one or two days per week;
◦ Ms Jasmin Neilson – second-year apprentice hairdresser;
◦ Ms Josie Milne – first-year apprentice hairdresser;
◦ Ms Jennifer Easter – third-year apprentice hairdresser; and
◦ Ms Emily Butler – first-year apprentice hairdresser
• During her employment with Beautiful Hair, Ms Anderson understood that Ms Hasham Hamed and Ms Emily Hamed (brother and sister) owned Beautiful Hair. They were rarely in the Greenhills Salon during Ms Anderson’s employment with Beautiful Hair. Ms Emily Hamed was responsible for paying the employees of Beautiful Hair during Ms Anderson’s employment. Mr Hasham Hamed is the “authorised person” on the PAYG Payment Summary provided by Beautiful Hair to Ms Anderson in respect of the financial year ending on 30 June 2019; 1
• In the week commencing Monday, 11 February 2019, Ms Anderson worked 21 ordinary hours (including 7 hours at TAFE) and took 7 hours of annual leave. 2 However, Ms Anderson did not receive any payment for that work;
• On Monday, 18 February 2019, Ms Anderson attended TAFE and was told by Ms Butler that Ms Camilleri had informed her that everyone’s employment at the Greenhills Salon was “getting terminated by Sunday”. Ms Butler also informed Ms Anderson that Ms Camilleri was undertaking a trial of a third-year apprentice hairdresser in the Greenhills Salon on 18 February 2019;
• On Monday, 18 February 2019, Ms Neilson forwarded a copy of the text message set out in paragraph [6] above to Ms Anderson and informed her that she (Ms Neilson) and Ms Easter had received the text message from Ms Camilleri;
• On Monday, 18 February 2019, after speaking with Ms Butler and receiving a copy of the text message from Ms Camilleri, Ms Anderson called Ms Hasham Hamed by telephone to find out what was happening. Mr Hamed informed Ms Anderson that the Greenhills Salon was not making enough money, everyone’s employment would come to an end on Sunday, there was a potential buyer for the business, and it was up to the potential buyer whether the existing employees would be kept on. Ms Anderson told Mr Hamed that she had seen a text message saying that some of the girls’ positions were safe. Mr Hamed said he did not know anything about that;
• At 11:40pm on Monday, 18 February 2019, Ms Anderson received an email from Ms Camilleri, the contents of which are set out in paragraph [5] above;
• On Tuesday, 19 February 2019, Ms Anderson worked at the Greenhills Salon from 9am until about 3pm. On Wednesday, 20 February 2019, Ms Anderson was not rostered to work at the Greenhills Salon. On Thursday and Friday, 21-22 February 2019, Ms Anderson was rostered to work at the Greenhills Salon, but did not attend work. Instead, she provided Beautiful Hair with a medical certificate from her general practitioner, stating she was unfit to work on those days. Ms Anderson has not received payment from Beautiful Hair for her work or sick leave in the week commencing 18 February 2019, nor has Ms Anderson received from Beautiful Hair payment for her accrued annual leave, annual leave loading, payment in lieu of notice, redundancy pay or outstanding superannuation entitlements;
• Ms Anderson contends that she was notified of her dismissal on 18 February 2019, and it took effect on 24 February 2019;
• At the time of her dismissal in February 2019, Ms Anderson understood that Beautiful Hair operated hair salons in various locations in Sydney, including at Burwood, Miranda and Bondi. At that time, Ms Anderson also believed that Mr Hasham Hamed and Ms Emily Hamed were involved in other hair salons located in the Central Coast and Sydney trading under the business names “La Allure” and “Tangled Hair”. Ms Anderson was aware of Mr and Ms Hamed’s involvement in the businesses trading as “La Allure” and “Tangled Hair” because she was asked during her employment with Beautiful Hair to prepare gift vouchers for “Tangled Hair” and from talking to other people in the business. Ms Anderson conceded, however, that she does not know which entity or entities own the businesses trading as “La Allure” and “Tangled Hair”;
• Ms Anderson is aware that four employees of Beautiful Hair (Ms Milne, Ms Easter, Ms Neilson, and Ms Camilleri) continued working at the Greenhills Salon after 24 February 2019, but three did not (Ms Anderson, Ms Butler and Ms Won). Ms Anderson does not know if there was any change to the identity of the employer of the four employees who continued working in the Greenhills Salon after 24 February 2019. Ms Anderson is not aware of the Greenhills Salon closing down for any period of time at or about 24 February 2019, but she is aware that the Greenhills Salon changed its name from “Beautiful Hair” to “Hair X Studio” in about March 2019;
• Ms Anderson is aware that the Greenhills Salon trading as “Hair X Studio” closed down about one or two months before the hearing on 13 August 2019. Ms Anderson is aware that furniture was removed from the Greenhills Salon at the time it was closed down; and
• Ms Anderson did not receive any written or oral warnings about her performance or conduct during her employment with Beautiful Hair. In about the start of February 2019, Ms Anderson’s manager spoke to her about needing to “upsell more” and to work a bit quicker, but I accept Ms Anderson’s evidence that these discussions did not constitute warnings to her.
[9] I found Ms Anderson to be a credible witness. She answered my questions in a direct and responsive manner and gave consistent evidence throughout the proceedings. I accept the evidence given by Ms Anderson as truthful and reliable.
When can the Commission order a remedy for unfair dismissal?
[10] Section 390 of the Fair Work Act 2009 (Cth) (Act) provides that the Commission may order a remedy to a person if:
(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and
(b) the person has been unfairly dismissed.
[11] Both limbs must be satisfied. I am therefore required to consider whether Ms Anderson was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Anderson was so protected, whether Ms Anderson has been unfairly dismissed.
When is a person protected from unfair dismissal?
[12] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[13] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
Has Ms Anderson been dismissed?
[14] A threshold issue to determine is whether Ms Anderson has been dismissed from her employment with Beautiful Hair.
[15] Section 386(1) of the Act provides that a person has been dismissed if:
(a) the person’s employment with their employer has been terminated on their employer’s initiative; or
(a) the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[16] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[17] By reason of the email sent by Beautiful Hair’s Area Manager, Ms Camilleri, to Ms Anderson on 18 February 2019 (see paragraph [5] above], I find that Ms Anderson’s employment with Beautiful Hair was terminated at the initiative of Beautiful Hair.
[18] I am therefore satisfied that Ms Anderson has been dismissed within the meaning of s 385 of the Act.
Initial matters
[19] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the Application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[20] Section 394(2) of the Act requires an application to be made within 21 days after the dismissal took effect.
[21] I find that Ms Anderson was dismissed from her employment on 24 February 2019 and made the Application on 26 February 2019. I am therefore satisfied that the Application was made within the period required by subsection 394(2) of the Act.
Was Ms Anderson protected from unfair dismissal at the time of dismissal?
[22] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[23] Ms Anderson was employed by Beautiful Hair on a continuous basis from 13 November 2017 to 24 February 2019. She was therefore employed for at least the minimum employment period.
Modern award coverage
[24] I find that, at the time of dismissal, Ms Anderson was covered by an award, being the Hair and Beauty Industry Award 2010 (HB Award).
[25] I am therefore satisfied that, at the time of dismissal, Ms Anderson was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[26] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[27] The evidence reveals that seven employees, including Ms Anderson, were working in the Greenhills Salon at that time of Ms Anderson’s dismissal, but I do not have any evidence as to the total number of employees Beautiful Hair had in its enterprise, nor whether Beautiful Hair had any Associated Entities, at that time. In light of the evidence given by Ms Anderson about other Beautiful Hair salons and other hair salons with which the owners of Beautiful Hair were associated, there is a live issue as to whether Beautiful Hair was a small business employer within the meaning of s 23 of the Act at the time of Ms Anderson’s dismissal. Beautiful Hair has the evidentiary onus in relation to this issue, and has not discharged that onus. Accordingly, I conclude that the Beautiful Hair was not a small business employer within the meaning of s 23 of the Act at the relevant time. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply.
Was the dismissal a case of genuine redundancy?
[28] Under s 389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
[29] Section 389(2) of the Act provides an exception to a genuine redundancy where redeployment is reasonable. It provides that 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 the employer’s enterprise or the enterprise of an associated entity of the employer.
[30] There is some evidence to suggest that Beautiful Hair no longer required Ms Anderson’s job to be performed by anyone because of changes in the operational requirements of its enterprise. In particular, the 18 February 2019 email from Ms Camilleri to Ms Anderson stated that the Greenhills Salon “hasn’t progressed as we had hoped” and “the salon will be closing down, the salon will be under new management (new ownership) and we have been instructed to terminate all current staff”. In addition, Mr Hamed informed Ms Anderson on 18 February 2019 that the Greenhills Salon was not making enough money, everyone’s employment would come to an end on Sunday, there was a potential buyer for the business, and it was up to the potential buyer whether the existing employees would be kept on. Further, the trading name of the Greenhills Salon changed in about March 2019 from “Beautiful Hair” to “Hair X Studio”.
[31] However, the evidence weighing against a finding that Ms Anderson’s dismissal was a case of genuine redundancy is, in my assessment, significant. The text message sent by Ms Camilleri on 18 February 2019 to two Beautiful Hair employees is revealing, particularly insofar as is states that “we are reopening with a new name and new management. You will both retain your positions. Please don’t be worried about it but don’t tell anyone that you’ve heard that from me. This is a part of a whole new structure and very exciting news” [emphasis added]. The reference to “we are reopening with a new name and new management” suggests a renaming or rebranding of the Greenhills Salon, rather than a sale of the business to new owners. The use of the definite expression “you will both retain your positions” points in the same direction. Further, Ms Camilleri’s request for the recipients of the text message “not to tell anyone” suggests that there were no genuine redundancies and Beautiful Hair did not in fact no longer require Ms Anderson’s job to be performed by anyone because of changes in the operational requirements of its enterprise. Coupled with the 18 February 2019 text message from Ms Camilleri is the fact that four of the seven employees who were working in the Greenhills Salon at the time of Ms Anderson’s dismissal kept working in the Greenhills Salon after that time. Finally, I accept Ms Anderson’s evidence that Ms Camilleri told Ms Butler that Ms Camilleri was undertaking a trial of a third-year apprentice hairdresser in the Greenhills Salon on 18 February 2019. If there had been changes in the operational requirements of Beautiful Hair’s business such as to justify a decision to no longer require Ms Anderson’s job to be performed by anyone, it is difficult to understand why Ms Camilleri was trialing a new third-year apprentice hairdresser on 18 February 2019, or why she told Ms Butler that she was doing so. For these reasons, I am not satisfied on the evidence that Beautiful Hair no longer required Ms Anderson’s job to be performed by anyone because of changes in the operational requirements of Beautiful Hair’s enterprise.
[32] In addition, it is clear on the evidence that Beautiful Hair did not comply with its obligations under the HB Award 3 to consult with Ms Anderson about any redundancy of her position, including its obligations thereunder to:
• give in writing to Ms Anderson all relevant information about the changes including their nature, their expected effect on employees, and any other matters likely to affect employees; and
• discuss with Ms Anderson measures to avoid or reduce the adverse effects of the changes on employees.
[33] As to redeployment, there is no evidence of any positions which may have been available or suitable, at the time of Ms Anderson’s dismissal, in any of Beautiful Hair’s other salons or in any hairdressing salon operated by any Associated Entity of Beautiful Hair. In all the circumstances, I am not satisfied that it would have been reasonable for Ms Anderson to be redeployed within Beautiful Hair’s enterprise or the enterprise of an Associated Entity of Beautiful Hair.
[34] For the reasons given, I find that Beautiful Hair’s dismissal of Ms Anderson was not a case of genuine redundancy within the meaning of s 389 of the Act.
[35] Having considered each of the initial matters, I am required to consider the merits of the Application.
Was the dismissal harsh, unjust or unreasonable?
[36] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[37] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 4
[38] I set out my consideration of each below.
Was there a valid reason for the dismissal related Ms Anderson’s capacity or conduct?
[39] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 5 and should not be “capricious, fanciful, spiteful or prejudiced.”6 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.7
[40] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.8 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 9
[41] There is no suggestion in the evidence that the reason for Ms Anderson’s dismissal related to her capacity or conduct. I accept Ms Anderson’s evidence that she did not receive any warnings in relation to her performance or conduct prior to her dismissal and the discussion she had with her manager in early February 2019 about improving her “upselling” and working a bit quicker was in the nature of guidance or coaching.
[42] In all the circumstances, I find that there was no valid reason for Ms Anderson’s dismissal related to her capacity or conduct.
Was Ms Anderson notified of the valid reason?
[43] Because I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 10
Was Ms Anderson given an opportunity to respond to any valid reason related to her capacity or conduct?
[44] Because I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 11
Did Beautiful Hair unreasonably refuse to allow Ms Anderson to have a support person present to assist at discussions relating to her dismissal?
[45] Ms Anderson did not request to have a support person present at any discussions relating to her dismissal. It follows that Beautiful Hair did not unreasonably refuse such a request by Ms Anderson.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[46] For the reasons given above, I find that Ms Anderson was not warned of any unsatisfactory performance before her dismissal.
To what degree would the size of Beautiful Hair’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in Beautiful Hair’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[47] As stated above, I have very little evidence as to the size of Beautiful Hair’s enterprise or the absence or otherwise of dedicated human resource management specialists or expertise in its enterprise. Even assuming (in Beautiful Hair’s favour) that Beautiful Hair’s enterprise was small at the time of Ms Anderson’s dismissal and it did not have any dedicated human resource management specialists or expertise, those matters do not excuse the very poor procedures followed by Beautiful Hair in effecting Ms Anderson’s dismissal, in particular the lack of information contained in Ms Camilleri’s email dated 18 February 2019, and the failure to instigate any discussion with Ms Anderson about the alleged “closing down” of the Greenhills Salon or the termination of her employment.
What other matters are relevant?
[48] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[49] The fact that Ms Anderson was employed by Beautiful Hair for about 1.25 years at the time of her dismissal and she had a good employment record is a relevant consideration, as is the fact that Ms Anderson has not been able to find ongoing alternative employment after her dismissal by Beautiful Hair.
Is the Commission satisfied that the dismissal of Ms Anderson was harsh, unjust or unreasonable?
[50] I have made findings in relation to each matter specified in section 387 as relevant.
[51] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 12
[52] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Ms Anderson was harsh, unjust and unreasonable because there were no valid reasons for her dismissal, there was no genuine redundancy of her position, she was not afforded procedural fairness in the process leading up to her dismissal and the dismissal has had harsh consequences for Ms Anderson, namely a sustained period of unemployment.
Conclusion on unfair dismissal
[53] I am therefore satisfied that Ms Anderson was unfairly dismissed within the meaning of section 385 of the Act.
Remedy
[54] Having found that Ms Anderson was protected from unfair dismissal, and that her dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. Ms Anderson requested the remedy of reinstatement, but I am satisfied that it would be inappropriate to reinstate Ms Anderson in circumstances where the Greenhills Salon has recently closed down, I do not have any evidence as to any other hair salons owned by Beautiful Hair or any of its Associated Entities, nor do I have any evidence concerning any position in any such business which may be suitable to Ms Anderson, and having regard to the way in which Ms Anderson was treated in the process leading up to her dismissal, I am satisfied that her relationship with Mr and Ms Hamed has deteriorated to a significant extent. As a result, I need to consider whether compensation is appropriate.
[55] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 13
[56] Having regard to all the circumstances of the case, including the fact that Ms Anderson has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.
[57] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Ms Anderson. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
[58] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket 14 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.15 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Ms Anderson would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))
[59] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 16
[60] Ms Anderson gave evidence, which I accept, that she enjoyed working at Beautiful Hair and intended to remain working for Beautiful Hair until at least the end of her apprenticeship, which was due to be completed at the end of this year. Also of relevance is the fact that Ms Anderson was not given any warnings in relation to her performance or conduct during her employment with Beautiful Hair. Further, four of the seven employees working in the Greenhills Salon were kept on after 24 February 2019. On the basis of the text message sent by Ms Camilleri to Ms Neilson and Ms Easter on 18 February 2019, I find, on the balance of probabilities, that those four employees retained employment with Beautiful Hair after 24 February 2019.
[61] The fact that the Greenhills Salon closed down shortly before the hearing is significant. No evidence was adduced as to what happened to the employees working in that business at the time it closed down. There is the prospect that they were employed by other businesses owned by Beautiful Hair or an Associated Entity of it. However, the greater likelihood is that the employees working in that business at the time it closed down had their employment terminated at that time, particularly having regard to the fact that the only hair salons of which Ms Anderson was aware that were owned by Beautiful Hair or connected to Mr or Ms Hamed were based in Sydney or the Central Coast.
[62] In all the circumstances, I find that Ms Anderson would have remained employed by Beautiful Hair until the Greenhills Salon closed down. Ms Anderson gave evidence that the closure took place about a month or two before the hearing. I find, on the balance of probabilities, that the closure occurred on 28 June 2019, which is half-way between 13 June 2019 (two months before the hearing) and 13 July 2019 (one month before the hearing).
[63] In the period from about the start of January 2019 until her dismissal, Ms Anderson worked about 30 hours per week (including 7 hours paid work per week at TAFE) for Beautiful Hair, mostly from Monday to Friday. I find that Ms Anderson would have continued to work the same hours and earn the same income from Beautiful Hair had she not been dismissed on 24 February 2019. Ms Anderson’s hourly rate was $16.97 per hour. That equates to $509.10 per week ($16.97 x 30 = $509.10). The period from 24 February 2019 to 28 June 2019 was 18 weeks. It follows that in that period Ms Anderson would have received $9,163.80 gross ($509.10 x 18 = $9,163.80).
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[64] At the time of the hearing (13 August 2019), the only remuneration earned by Ms Anderson since her dismissal on 24 February 2019 was one month’s worth of work she undertook, on a trial basis, at a hair salon in Cardiff, New South Wales in May 2019. Ms Anderson was not offered on-going employment at that salon at the conclusion of her one-month trial period. During that one-month trial period, Ms Anderson worked 38 hours per week, including 4 hours on a Saturday. Her weekly gross earnings in that job were $667.26 ($16.97 x 34 hours + $22.5701 x 4 hours = $667.26). It follows that in the month of May 2019 Ms Anderson earned $2,891.46 ($667.26 x 4.33333 = $2,891.46).
[65] The calculation at this point is $9,163.80 - $2,891.46 = $6,272.34.
Viability (s 392(2)(a))
[66] No evidence was adduced that any particular amount of compensation would affect the viability of Beautiful Hair’s business.
[67] No adjustment will be made on this account.
Length of service (s 392(2)(b))
[68] Ms Anderson’s relatively short period of service does not justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
[69] Ms Anderson has made numerous efforts to obtain alternative employment following her dismissal on 24 February 2019. In particular, she has made job applications using a variety of sources, including SEEK, and for a range of jobs, not just hairdressing. Further, Ms Anderson sought and obtained the one-month paid work trial in May 2019.
[70] In all the circumstances, I am satisfied that Ms Anderson acted reasonably to mitigate the loss suffered by her because of the dismissal and do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s 392(2)(g))
[71] It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Anderson was subject might have brought about some change in earning capacity or earnings. 17 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[72] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 18
[73] Because I am looking in this matter at an anticipated period of employment which has already passed (25 February 2019 to 28 June 2019), there is no uncertainty about Ms Anderson’s earnings, capacity or any other matters during that period of time.
[74] In all the circumstances I have decided that it is not appropriate to discount or increase the figure of $6,272.34 for contingencies.
[75] For the reasons stated, I have found, on the balance of probabilities, that if Ms Anderson had not been unfairly dismissed on 24 February 2019, she would have remained in employment with Beautiful Hair until the Greenhills Salon closed down on 28 June 2019. At that time, her employment would have been terminated and I am satisfied, on the balance of probabilities, that she would have been given actual notice of termination prior to the closure of the Greenhills Salon and the reason for dismissal would have been redundancy, in which case she would have been entitled to receive four weeks’ redundancy pay under s 119 of the Act. Having regard to the purpose of a compensation remedy to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied, 19 I consider it relevant in the circumstances of this case to include the four week redundancy payment to which Ms Anderson would have been entitled on 28 June 2019 to the compensation calculated thus far. The compensation amount then becomes $8,308.74 gross ($6,272.34 + (4 x $509.10 = $2,036.40). This amount represents the gross sum Ms Anderson would likely have received (less tax) had she not been dismissed by Beautiful Hair on 24 February 2019 and instead continued to be employed by Beautiful Hair until 28 June 2019. This calculation is intended to put Ms Anderson in the position she would have been in but for her unfair dismissal on 24 February 2019.20
[76] Save for the matters referred to in this decision, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
[77] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s 392(3))
[78] Ms Anderson did not commit any misconduct, so this has no relevance to the assessment of compensation.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[79] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5)-(6))
[80] The amount of $8,308.74 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Ms Anderson was entitled in her employment with Beautiful Hair during the 26 weeks immediately before her dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $8,308.74 by reason of s 392(5) of the Act.
Instalments (s 393)
[81] No application was made by Beautiful Hair for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on compensation
[82] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $8,308.74. 21
[83] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $8,308.74 (less taxation as required by law) in favour of Ms Anderson is appropriate in the circumstances of this case. I will issue an order PR711543 to that effect.
DEPUTY PRESIDENT
Appearances:
Ms Alyssa Anderson, on behalf of herself.
The Respondent made no appearance.
Hearing details:
2019.
Newcastle:
13 August.
Printed by authority of the Commonwealth Government Printer
<PR711540>
1 Exhibit 5
2 Exhibit 6 (pay slip dated 22 February 2019)
3 Clause 8
4 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
5 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
6 Ibid.
7 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
8 Edwards v Justice Giudice [1999] FCA 1836, [7].
9 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
10 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
11 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
12 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
13 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17].
14 (1998) 88 IR 21.
15 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.
16 Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17].
17 Ellawala v Australian Postal Corporation Print S5109 at [36].
18 Enhance Systems Pty Ltd v Cox PR910779 at [39].
19 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17].
20 Bowdenv Ottrey Homes Cobram [2013] FWCFB 431at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35].
21 Smith v Moore Paragon Australia Ltd w(2004) 130 IR 446 at [32].
9
0