Angela Joy Park t/a Summerjade Hair Salon v Jorja McGennan

[2024] FWCFB 293

[2024] FWCFB 293

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.604—Appeal of decision

Angela Joy Park t/a Summerjade Hair Salon
v
Jorja McGennan

(C2024/1990)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT WRIGHT SYDNEY, 24 JUNE 2024

Appeal against decision [2024] FWC 633 of Deputy President Lake at Brisbane on 11 March 2024 in matter number U2023/5979 – permission to appeal refused.

Introduction

1. Ms Angela Joy Park, trading as ‘Summerjade Hair Salon’, has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission is required, from a decision of Deputy President Lake. The decision concerns the order of payment of an amount of compensation to a dismissed employee in unfair dismissal proceedings brought under s 394 of the FW Act.

1. This appeal was the subject of a hearing before us on 11 June 2024. At the conclusion of the hearing we delivered our decision, which was to refuse permission to appeal, and indicated that we would issue our reasons for this decision in due course. Our reasons for the decision are set out below.

Background

1. The background to the application may be briefly stated. The respondent, Jorja McGennan, worked as a hairdresser at Summerjade Hair Salon in Hervey Bay in Queensland. The salon is owned by the appellant, Ms Park. Ms McGennan commenced as an apprentice in April 2021. Her employment came to an end on 4 July 2023 and Ms McGennan lodged an unfair dismissal application on the same day.

1. The unfair dismissal application was the subject of unsuccessful conciliation on 19 September 2023 and the matter was subsequently listed for hearing on 24 October 2023. The appellant contended that Ms McGennan was not dismissed or, in the alternative, that she had been dismissed in accordance with the Small Business Fair Dismissal Code.

1. On 31 January 2024, the Deputy President handed down an initial decision in the matter.[1] In short, the Deputy President found the employment had been terminated on the employer’s initiative for the purposes of s 386(1)(a) of the FW Act by reason of the appellant having sent text messages to Ms McGennan giving her ‘two weeks notice to terminate [her] employment’.[2]

1. The Deputy President found that the appellant had failed to comply with the Small Business Fair Dismissal Code. In particular, the Deputy President found that the appellant had not complied with the following aspect of the Code:[3]

The employer must give the employee an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

1. The Deputy President was then required to consider whether the dismissal was harsh, unjust or unreasonable for the purposes of s 387 of the FW Act. The Deputy President concluded that there was a valid reason for dismissal as a result of performance issues such as Ms McGennan using her mobile phone inappropriately during work hours, her quality of work not being up to standard, and her poor attitude resulting in a loss of the business of a long-term client.[4]

1. However, the Deputy President found that there were procedural deficiencies in the dismissal which could not be overlooked and supported the finding that the dismissal was harsh, unjust or unreasonable. In particular, the Deputy President found that Ms McGennan was not given an opportunity to improve her performance arising from her written warning, the issue of the long-term client was escalated too quickly, and the issue could have been better resolved if more time and consideration had been put into addressing the long-term client. As a result, the Deputy President was satisfied that Ms McGennan was unfairly dismissed.[5]

The decision under appeal

1. The Deputy President conducted a second hearing in relation to the question of remedy on 21 February 2024. Both parties were self-represented at this hearing. The Deputy President subsequently published a decision dated 11 March 2024 in relation to the question of remedy.[6] This is the decision the subject of the appeal.

1. In the decision, the Deputy President noted that both parties indicated that they did not wish to consider reinstatement as the relationship had broken down.[7] It may be inferred that the Deputy President accepted that reinstatement was inappropriate and payment of compensation was appropriate in all the circumstances of the case for the purposes of s 390(3) of the FW Act. The Deputy President then applied the approach to assessing compensation in unfair dismissal cases, as found in Sprigg v Paul Licensed Festival Supermarket.[8]

1. In short, the Deputy President found that, had she not been dismissed, Ms McGennan would have continued employment until the conclusion of her apprenticeship on 13 October 2023 and would have earned $13,066.28 in that period before tax. He then deducted $2,000 from this, being earnings she received in alternative employment at a surf shop, and further reduced the amount of compensation by the equivalent of three weeks’ pay on account of Ms McGennan’s work performance and contribution to the breakdown of the employment relationship, and by a further amount of two weeks’ pay on account of the payment she received in lieu of notice.[9] As a result, the Deputy President ordered that the appellant pay Ms McGennan $6,554.33 before tax, to be paid in two instalments, being $3,277.17 within 30 days of the decision and a further $3,277.16 within 60 days of the decision.

Appeal Grounds and Submissions

1. The appellant seeks permission to appeal from the Remedy Decision dealing with compensation. Four grounds of appeal are advanced as follows:

1.The tribunal failed to take into consideration relevant facts relevant in deciding a remedy, specifically the post termination conduct of Jorja in which she admitted under oath to taking clients from my salon to her aunt’s salon, causing detriment to my business and indirect income to herself.

2.The tribunal also failed to take into consideration Jorja’s oral submissions that she only earned ‘$2,000’ at the surf shop, without requiring her to submit evidence which was missing from her original submissions on remedy, and only raised on cross-examination.

3.The tribunal failed in not considering relevant case law I submitted when determining whether the remedy should be reduced to zero.

4.The tribunal failed in not taking into consideration the significant financial consequences to a small business in determining a payment schedule if a remedy is to be awarded.

1. The decision under appeal is one to which s 400(1) of the FW Act applies and, as such, the Commission must not grant permission to appeal unless it considers that it is in the public interest to do so. The appellant did not separately address the question of permission to appeal beyond asserting in the notice of appeal that it is in the public interest to ascertain appropriate remedies in these matters.

Consideration

1. The test imposed by s 400(1) of the FW Act has been described as a stringent one.[10] Whether or not it is correct to say that permission to appeal should only be granted rarely, the legislative intention is that the threshold for a grant of permission to appeal in relation to unfair dismissal proceedings is higher than that pertaining to appeals generally.[11] The apparent objective is to constrain the time, costs and inconvenience associated with unfair dismissal proceedings by limiting the circumstances in which an appeal may be brought in such proceedings.

1. The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.[12] Some circumstances which may warrant permission to appeal being granted include where a matter raises issues of importance and general application, there is a diversity of decisions, the decision at first instance manifests an injustice or the result is counter-intuitive or the legal principles applied appear disharmonious with other recent decisions.[13] Mere identification of error may, in itself, be insufficient to warrant a grant of permission to appeal. However, permission to appeal will rarely be granted unless an arguable case of appealable error is demonstrated.[14]

1. For the reasons which follow, we do not consider that the grant of permission to appeal would be in the public interest in this matter. In particular, we do not consider that the appeal raises any issue of general importance or application or that the appellant has raised an arguable case of appealable error.

Ground 1: Alleged Taking of Clients

1. The first ground advanced in the notice of appeal concerns evidence given by Ms McGennan at the compensation hearing to the effect that she had referred clients of the appellant to her aunt after her dismissal. We understand the ground to be that the Deputy President ought to have taken that matter into account in assessing the amount of compensation.

1. The issue arose during the compensation hearing as a result of submissions made by the appellant that Ms McGennan had been earning money by undertaking work at home. In dealing with that submission, the Deputy President asked for Ms McGennan’s response. Her reply was as follows:[15]

THE DEPUTY PRESIDENT: Ms McGennan, you’re under oath. How would you like to answer that?

MS McGENNAN: I have been sending all my clients that wanted me to do their hair - I have been sending them to my auntie instead, so I haven’t actually done hair at home at all.

1. Although the appellant raised an issue as to the relationship of Ms McGennan with her aunt, she did not directly or clearly submit that the evidence should be brought to account in the assessment of compensation.

1. We do not consider that the Deputy President failed to consider this evidence. The Deputy President recorded in his decision that Ms McGennan had referred her clients to her aunt’s salon.[16] An inference that a matter has been overlooked should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.[17] A decision-maker is not expected to set out every consideration which passes through the decision-maker’s mind,[18] or to refer to ‘every piece of evidence and every contention’ made by a party.[19]

1. In any event, Ms McGennan’s evidence rose no higher than that she had referred some clients of the appellant who approached her to her aunt’s salon after her dismissal. In the absence of an express contractual restraint provision, it is not generally a breach of an employee’s obligations to approach or deal with clients of his or her former employer after the employment has come to an end.[20] In those circumstances, it is not clear why Ms McGennan’s conduct would be relevant to the assessment of compensation arising from the dismissal. However, given that we are satisfied the evidence was considered by the Deputy President, it is not necessary to express a concluded view in relation to that matter.

1. Ground 1 raises no arguable case for appealable error.

Ground 2: Surf Shop Earnings

1. The second ground is that the Deputy President erred in taking into account earnings of $2,000 from Ms McGennan’s alternative employment at a surf shop she obtained after dismissal. We understand the ground to be that the Deputy President should not have accepted Ms McGennan’s oral evidence that her earnings from the employment at the surf shop were approximately $2,000.

1. During the hearing on 21 February 2024, the Deputy President asked Ms McGennan how much she had earned working at the surf shop and explained that it was necessary for the Commission to understand how much Ms McGennan had earned from other employment in order to ensure she was not over-compensated. Ms McGennan replied that she had earned: ‘Roughly about 2,000’.[21]

1. The appellant did not dispute this statement during the hearing or submit any evidence to suggest that Ms McGennan’s evidence as to her earnings was not correct. Ms McGennan’s statement as to her earnings was made under oath. In those circumstances, there was no error in the Deputy President accepting Ms McGennan’s evidence as to her estimated earnings. Indeed, it is not clear that the Deputy President would have had any grounds to reject that evidence in circumstances in which it was not challenged. It may have been possible for the appellant to interrogate Ms McGennan as to her earnings or seek the production of documents in relation to that matter. That was not done.

1. We are conscious that the appellant was, by that stage of the proceedings, not represented and may not have understood the procedural steps open to her. However, that does not give rise to any error on the part of the Deputy President in accepting the uncontroverted evidence of Ms McGennan.

1. There is no merit in this ground of appeal. Further, and in any event, the appellant has not established that there is a serious possibility that a reconsideration of Ms McGennan’s earnings at the surf shop based on actual pay records would lead to any substantial change to the amount of compensation, or even that the outcome would change in the appellant’s favour.

Ground 3: Relevant Case Law

1. The third ground is that the Deputy President failed to consider relevant case law referred to by the appellant as to whether compensation should be reduced to zero. The appellant referred to a single authority being the decision of Commissioner Cambridge in Folwell v Primetime Contracting Pty Ltd t/as Hi-Trans Express[22] (Folwell).

1. In Folwell, the employee was dismissed for misconduct involving an incident of speeding when driving a heavy vehicle which the Commissioner characterised as a ‘critical infringement and gross breach of safety’. The Commissioner found the dismissal was nonetheless unfair as a result of procedural deficiencies. However, the Commissioner concluded that an order for the payment of compensation was not appropriate due, it appears, to the nature of the misconduct.[23]

1. In this matter, the Deputy President recorded the appellant’s submission that compensation should be reduced to zero on the basis that there were valid reasons for the dismissal.[24] The Deputy President subsequently considered the extent to which any compensation should be reduced on account of Ms McGennan’s conduct and determined that compensation be reduced by the equivalent of three weeks’ pay.

1. The Deputy President plainly considered the appellant’s submission that compensation should be zero on account of Ms McGennan’s conduct having been found to provide a valid reason for dismissal. The Commission is not required to refer to each authority cited in the course of submissions. The substance of the submission was considered and dealt with by the Deputy President, including by reducing the amount of compensation.

1. No arguable error is demonstrated.

Ground 4: Financial Consequences

1. The final ground is that the Deputy President failed to take into account the financial consequences to a small business in determining a payment schedule if a remedy was awarded.

1. The short answer to that ground is that the Deputy President expressly considered that matter. The Deputy President said:[25]

I see that there may be some issues of viability of the Respondent paying the Applicant upon issuing this Order as they are a small business. The Respondent will be given additional time to pay the Applicant in instalments.

1. The Deputy President determined that the compensation be paid in two instalments, the first within 30 days of the decision and the second within 60 days.

1. To the extent the appellant suggests that the Deputy President failed to take into account the financial consequences of an order for compensation on a small business, the ground must fail. The Deputy President expressly did so. Furthermore, beyond the fact that it is a small business, there was no evidence before the Deputy President as to the financial circumstances of the business or the impact upon it of a relatively modest compensation payment.

1. Again, the ground gives rise to no arguable error.

Conclusion

1. Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) of the FW Act requires that permission not be granted. Accordingly, we order that permission to appeal is refused.

PRESIDENT

Appearances:

A Park, appellant.
J McGennan, respondent.

Hearing details:

2024.

Sydney via video link using Microsoft Teams:
11 June.

[1]  [2024] FWC 255.

[2] Ibid [31]–[34].

[3] Ibid [41].

[4] Ibid [46].

[5] Ibid [68]–[69].

[6]  [2024] FWC 633.

[7] Ibid [6].

[8]  Sprigg v Paul Licensed Festival Supermarket [1998] AIRC 989, 88 IR 21.

[9]  [2024] FWC 633 [20]–[21], [23]–[24].

[10] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCA 54, 192 FCR 78 [43] (Buchanan J, with whom Marshall and Cowdroy JJ agreed).

[11] Workpac Pty Ltd v Bambach[2012] FWAFB 3206, 220 IR 313 [14]; Barwon Health – Geelong Hospital v Colson[2013] FWCFB 4515, 233 IR 364 [6].

[12] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78 [44]–[46]; Water Corporation v Batchem[2017] FWCFB 760, 263 IR 189 [27].

[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 [27].

[14] Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 [30]; Water Corporation v Batchem [2017] FWCFB 760, 263 IR 189 [28].

[15] Transcript, 21 February 2024 PNs 53–54.

[16] [2024] FWC 633 [13].

[17] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593 [47]; Lo v Chief Commissioner of State Revenue [2013] NSWCA 180, 85 NSWLR 86 [10].

[18] Steed v Minister for Immigration and Ethnic Affairs [1981] FCA 197, 37 ALR 620, 621.

[19] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593 [46]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, 240 IR 178 [47].

[20] Robb v Green [1895] 2 QB 1, 15; GD Searle & Co Ltd v Celltech Ltd [1982] FSR 92, 101–102; Deeson Heavy Haulage Pty Ltd v Cox [2009] QSC 277 [85] (McMeekin J).

[21] Transcript, 21 February 2024 PN 26.

[22] Folwell v Primetime Contracting Pty Ltd t/as Hi-Trans Express[2020] FWC 1257.

[23] Ibid [52]–[56].

[24] [2024] FWC 633 [11].

[25] Ibid [26].

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