Bodiya Perera v Dimasalt Pty Ltd T/A Cuts and Color
[2012] FWA 6220
•26 JULY 2012
[2012] FWA 6220 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bodiya Perera
v
Dimasalt Pty Ltd T/A Cuts & Color
(U2012/5583)
COMMISSIONER GOOLEY | MELBOURNE, 26 JULY 2012 |
Application for unfair dismissal remedy.
[1] Ms Bodiya Perera (the Applicant) was employed by Dimasalt Pty Ltd trading as Cuts & Color (the Respondent) from 21 February 2009 until her employment was terminated on 20 February 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that she was unfairly dismissed. The application was referred to conciliation on 19 March 2012, and then for hearing on 4 June 2012.
[3] Mr Sherhan Fernando appeared for the Applicant and Mr George Dimaris appeared for the Respondent.
[4] Ms Perera gave evidence on her own behalf and Mr Fernando, the Applicant’s husband, gave evidence. Ms Jeanan Samia and Ms Melva Kiepas gave evidence for the Respondent.
Jurisdiction of Fair Work Australia
[5] There is a dispute that the Applicant is a person who was protected from unfair dismissal as the Respondent submitted that the Applicant’s employment was not terminated.
The Evidence of the Applicant
[6] The Applicant was employed as a full time hairdresser at the Knox City salon of the Respondent. On 8 January 2011 the Applicant went on maternity leave. She was due to return to work in January 2012. 1 On 10 September 2011 the Applicant met with her manager Ms Jeanan Samia and told her that she wished to return to work part time after her maternity leave ended. It was her evidence that Ms Samia agreed that she could work on Tuesdays and Fridays from 9am to 5pm.2
[7] On the basis of this agreement the Applicant organised child care for those days. 3 In November and December 2011 the Applicant left messages about her return to work for her manager who advised her that she had not had an opportunity to discuss the matter with her area manager.4
[8] On 12 December 2011 the Applicant met with Ms Samia to discuss her return to work and again was told it was OK and that Ms Samia just needed to let the “bosses” know.
[9] On 29 December 2011 she was told by Ms Samia that she no longer had a full time position at the Knox City salon and that they could not accommodate her request for part time work as they had hired new full time staff in early December. 5 The Applicant said that Ms Samia told her that “the bosses don’t want anyone who comes from maternity leave. Because they make problems and we can’t rely on them.”6 She was told she needed to speak to Ms Kiepas who was the area manager.7
[10] The Applicant then rang Ms Kiepas on 29 December 2011 and told her what had transpired. Ms Kiepas told her that there were no positions at the Knox City salon because they had recently hired new staff. 8
[11] On 2 January 2012 the Applicant sent a letter to Ms Samia in which she confirmed what she understood was their agreement. She advised that she would commence part time work from 10 January 2012. 9
[12] On 3 January 2012 the Applicant received a phone call from Ms Kiepas who told her that she could work at the Knox City salon on Fridays and she would see if there was work for her on another day at another salon. 10
[13] The Applicant told Ms Kiepas that she had never been told she would have to work at another location but she indicated that she would consider working at the Forrest Hill Shopping Centre salon on Tuesdays if that was available. 11 The Applicant told Ms Kiepas that she could not travel far because of her family responsibilities.12
[14] The Applicant asked Ms Kiepas if they could not offer her a part time position whether she still had her full time position. Ms Kiepas told her that she did not have a fulltime position at the Knox City salon and if she wanted a full time position she would have to travel to other salons and work on weekends and nights. 13
[15] On 5 January 2012 Ms Samia rang the Applicant and asked her to complete a new tax file declaration form and the Applicant was advised that she would need to start work at the Knox City salon on 13 January 2012. 14
[16] On 9 January 2012 the Applicant was rung by the store manager at the Forrest Hill Shopping Centre and told she was rostered to work at the Forrest Hill salon on Tuesday 17 January 2012. 15
[17] On 13 January 2012 the Applicant commenced her permanent part time position working at the Forrest Hill salon on Tuesdays from 9am to 5pm and at the Knox City salon on Fridays from 10am to 5pm.
[18] On 31 January 2012 the Applicant arrived at work at the Forrest Hill salon. Her name had been removed from the roster for the next week. That morning the Applicant was asked to work on Saturday at Dandenong and she agreed. At 5pm that day she was told by the manager at Forrest Hill that there was no work from the next week as her permanent staff member was returning from annual leave. She was told to ring the Knox City salon to find out if they had work for her. She rang Ms Samia and she was offered work at the Knox City salon on Tuesdays and Fridays for the next two weeks. The Applicant worked at the Knox City salon until 17 February 2012. 16
[19] On 17 February 2012 the Applicant saw that her name was not on the roster at the Knox City salon for the next week. She rang Ms Samia and was told by Ms Samia that she had been told by Ms Kiepas that she could no longer offer her work at the Knox City salon and to take her off the roster. Ms Samia told the Applicant that she would work it out on her return from holidays. 17
[20] On 20 February 2012 the Applicant was told by Ms Samia that she was not to return to work and that she could not assist her further. The Applicant rang Ms Kiepas but she did not return her call. 18
[21] The Applicant then received a call from Ms Samia and was told that there was no work for her. The Applicant collected her pay on 20 February 2012 and did not work for the Applicant after that date. 19
[22] The Applicant commenced work for another employer on 27 February 2012. She is working 15.5 hours per week and is paid the same rate of pay as she received from the Respondent. Until she lodged her application on 1 March 2012, she had no contact with the Respondent. 20
[23] Mr Fernando gave evidence which supported his wife’s evidence. He went to the Knox City salon on 2 January 2012 and met with Ms Samia to deliver the Applicant’s letter which advised of her return to work. It was his evidence that Ms Samia told him that there was no room for the Applicant at the Knox City salon as they had employed new staff and she was not willing to cut their hours. It was his evidence that Ms Samia told him that she knew that the Applicant was returning to work when she hired new staff. When he reminded her that the Applicant had a right to return to work, Ms Samia told him to contact Ms Kiepas to see if they can find work for her at another salon. 21 Mr Fernando asked Ms Samia if it was company policy that no one is allowed to return to work after maternity leave and Ms Samia said “no they are allowed to come back but they cannot be working at one place if they are part time. They have to travel to other salons; they may have to work late nights. Priority will be given to permanent staff, full time staff.”22 Mr Fernando taped this conversation.23
The Evidence of the Respondent
[24] Ms Samia gave evidence in which she denied that staff who were employed after the Applicant went on maternity leave were employed to replace the Applicant. It was her evidence that they replaced other staff who resigned. 24
[25] It was her evidence that the Respondent accommodated the Applicant’s needs in the last three months of her employment prior to her going on maternity leave when she stopped working late nights. It was her evidence that the Applicant was never told that this would continue when she returned from maternity leave. 25
[26] Ms Samia gave evidence of her conversation with Mr Fernando on 2 January 2012. She told him that there had been no agreement that the Applicant would work on Tuesdays and Fridays and there had only been preliminary discussions. 26 She received the letter from the Applicant and she rang the Applicant the next day to discuss the letter. She told her that the request to work Fridays was fine but that Ms Kiepas would contact her about Tuesdays as she could not offer her work on Tuesdays. It was her evidence that there was other work available at nights and weekends but the Applicant was not available to work those times. It was Ms Samia’s evidence that the Applicant was not dismissed.27 It was her evidence that the Applicant told her on 20 February 2012 that she no longer wanted to work for the Respondent.28
[27] Ms Samia accepted that when she returned from annual leave on 20 February 2012 the Applicant did not have any hours on the roster at the Knox City salon. 29 It was her evidence that this was a mistake.30
[28] Ms Samia denied telling the Applicant that there was no work for her. 31 It was her evidence that on 20 February 2012 she told the Applicant that she was back on the roster for Fridays but that the Applicant told her she did not want to accept those hours.32
[29] She accepted that on 30 September 2011 the Applicant requested to work Tuesdays and Fridays but she denied knowing the Applicant had to arrange child care. 33 She said she did not know about the need to book child care until December 2011.34 It was her evidence that she did not agree to the Applicant’s request but told her she would try to accommodate her request.35
[30] In cross examination Ms Samia said that on 30 September 2011 she offered the Applicant other hours, for example Thursday and Friday late nights and weekends but the Applicant rejected these hours. 36
[31] In cross examination Ms Samia admitted she told Mr Fernando that the bosses had put in place new rules but she said those were new rules for “people coming back” whether from maternity leave or other reasons. Ms Samia said “we just have to sort of set around their ways and they have to set around our ways so we can come to an agreement.” 37
[32] Ms Kiepas gave evidence that she was contacted by the Applicant on 29 December 2011 about her return to work. The Applicant told Ms Kiepas that she wanted to work two days per week. She said she only wanted to work at the Knox City salon. 38
[33] Ms Kiepas rang Ms Samia to see if she had any shifts for the Applicant to work. She then rang the Applicant and told her that she could work at the Knox City salon on Fridays. She told the Applicant that if she could work other days then there would be hours at the Knox City salon or there could be work at other salons. The Applicant refused these offers and she told Ms Kiepas that she would discuss it with her husband. 39
[34] The Applicant rang her back and told her that she would go to another salon so she was placed at the Forrest Hill salon on Tuesdays. This shift was given back to another staff member after she returned from holidays. Consequently the Applicant was given shifts at the Knox City salon. 40
[35] Ms Kiepas gave evidence that she was instructed to cut back shifts in February 2012 by the managers of the Respondent. It was her evidence that this was why the Applicant lost hours for a week. She latter contradicted this evidence and said that the Applicant was removed from the roster by mistake. 41 It was her evidence that the Applicant then refused to work on Fridays at the Knox City salon because she was not provided with work on Tuesdays. It was her evidence that the Applicant was not dismissed as it was her decision not to work at the Knox City salon.42
[36] Ms Kiepas attached to her evidence a text message she received from the Applicant in which the Applicant advised her of her agreement with Ms Samia about her hours of work. 43
[37] Ms Kiepas did not make it clear to the Applicant that her shift at the Forrest Hill salon was not permanent but it was her evidence that the manager at the Forrest Hill salon made this clear to the Applicant. 44 This manager was not called to give evidence.
[38] It was her evidence that if the Applicant had been willing to go to the Endeavour Hills salon there was work for her there but she rejected this offer. 45
[39] Ms Kiepas accepted that prior to going on maternity leave the Applicant was permanently at the Knox City salon and she was not required to go to other salons. 46
[40] Ms Dinesha Foneska another employee of the Respondent gave evidence that her return to work part time after maternity leave was accommodated by the Respondent. 47
[41] Ms Jessica Hunt another employee of the Respondent gave evidence. She was present when on 20 February 2012 the Applicant was offered the Friday at the Knox City salon, which the Applicant refused. 48
[42] Ms Boon Lan Tan another employee of the Respondent gave evidence. She was present when Mr Fernando attended the store. She did not listen to the conversation. 49
Was the termination of employment harsh, unjust or unreasonable?
[43] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[44] The Applicant, prior to going on maternity leave, was employed as a full time hairdresser at the Knox City salon. There was no written contract of employment, so subject to her common law obligation to obey reasonable instructions of her employer, there was no unilateral right of the employer to require the Applicant to work at other locations.
[45] The Applicant submitted that her employment was terminated on 17 February 2012 when she was removed from the roster. The Respondent denies her employment was terminated and that while it accepted she had been removed from the roster, on 20 February 2012 she was offered work at the Knox City salon on the following Friday which she declined. It was submitted that she made no further attempt to contact the Respondent about her shifts and she was not dismissed.
[46] This situation arose because the Applicant requested to return to work part time after her maternity leave. I accept her evidence that she did this in September 2011 when she asked to return to work two days per week. I accept her evidence that it was agreed she could work on Tuesdays and Fridays at the Knox City salon. While Ms Samia denies that she agreed to this, the Applicant’s evidence on this before the Tribunal was reflected in her letter to the Respondent in January 2012 and her text message to Ms Kiepas. It is also consistent with her organising child care for those days. I accept that the Applicant would not have organised and paid for child care without a commitment from the Respondent that these were the days she would work.
[47] Unfortunately the Respondent did not advise the Applicant until the last minute that what it had agreed to earlier was no longer agreed. Consequently on 2 January 2012 the Applicant sought clarity from the Respondent about her return to work.
[48] The Applicant returned to work as a permanent part time employee on 13 January 2012 working Fridays at the Knox City salon and Tuesdays at the Forrest Hill salon. She understood this to be a permanent arrangement. There was no direct evidence that she was told that the appointment to Forrest Hill was temporary.
[49] While I accept that the Respondent attempted to accommodate the Applicant’s request for part time work it considered that it was entitled to place the Applicant at any location as well as vary her hours depending on the availability of hours at the salons.
[50] There was no evidence that when the Respondent agreed to the Applicant’s request to work part time it had regard to its obligations under the Hair And Beauty Industry Award 2010 (the Award) which requires part time employees to have a written agreement setting out the hours worked each day; which days of the week the employee will work; the actual starting and finishing times of each day.
[51] If part time work on the terms sought by the Applicant was not possible the Applicant should have been told. Alternatively, having regard to its obligations under the Award, the Respondent could have offered the Applicant part time hours on terms consistent with those obligations. Because the terms under which the Respondent was prepared to offer part time work was never made clear to the Applicant, she was denied the opportunity to exercise her right to return to work full time at the Knox City salon.
[52] I find that for the week beginning 20 February 2012 the Applicant was not rostered to work on the Tuesday or the Friday. I do not accept the evidence of Ms Kiepas that this was a mistake. In her statement, filed with the Tribunal and adopted by her in the witness box, she said that the Applicant was not on the roster that week because Ms Kiepas had been told to reduce the number of hours worked in the salon. Ms Kiepas repeated this in her email to Mr Daniel Bodrick on 9 March 2012. While she later said the removal of the Applicant from the roster was a mistake, I do not consider this evidence to be truthful.
[53] While I accept that the Applicant was told on 20 February 2012 that she could work on the next Friday at the Knox City salon there was no evidence that the Applicant was told what her permanent hours and place of work would be going forward. Further the only reason the Applicant was offered this work was because she made enquiries of the Respondent about why she was not offered work. It is clear from the evidence that the Respondent was not willing to provide the Applicant with work on Tuesdays and Fridays at reasonable locations.
[54] I consider that the Applicant was entitled to treat the decision of the Respondent to not provide her with work on Tuesdays and Fridays at a reasonable location as the termination of her employment. I find that there the termination of the Applicant’s employment was at the initiative of the Respondent.
[55] The Respondent did not have a valid reason for terminating the Applicant’s employment.
s387(b) whether was notified of that reason;
[56] The Applicant was not notified of the reason for the termination of her employment.
s387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[57] Given the findings, this criteria is not relevant.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[58] Given the findings, this criteria is not relevant.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[59] There was no issue with the Applicant’s performance.
s387(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;
[60] This was not a small business. It has 17 salons.
s387(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;
[61] No submissions were made on this criteria. There was no evidence that there were any dedicated human resource management specialists employed by the Respondent. There was no evidence that the Respondent sought advice about its obligations under the National Employment Standards or the Award. I consider that this had an impact on what happened.
s387(h) any other matters that FWA considers relevant.
[62] The Applicant was returning from maternity leave and she sought to negotiate with her employer, in good time, part time work.
Conclusion
[63] While I do not consider the Respondent deliberately set out to deny the Applicant her workplace rights its actions in treating her request for part time work so informally resulted in the Applicant being denied her workplace rights. Once the Respondent agreed to allow her to return to work part time she had a workplace right to regular and systematic hours of work in accordance with the Award. This is not a benefit bestowed by the Respondent but a right under the Award. Further if the Respondent did not wish to accommodate her request for part time work on the terms she set out, it should have clearly advised her, in good time, of its position.
[64] The informal way the Respondent managed its employment relationships by not making it clear to the Applicant what is was prepared to agree to prior to her return from maternity leave prevented the Applicant from exercising her right to return to work full time after maternity leave.
[65] For the reasons set out above I find that the termination of the Applicant’s employment was harsh, unjust and unreasonable.
Remedy
[66] The Applicant is not seeking reinstatement of her employment. 50
[67] In assessing any amount in lieu of reinstatement, Fair Work Australia is required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[68] No submissions were made on this criteria.
(b) the length of the person’s service with the employer;
[69] The Applicant had worked with the Respondent for three years.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[70] Had the Applicant not been dismissed she would have continued to work part time. There were no submissions made about the amount she would have earned.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[71] The Applicant obtained employment on 27 February 2012 and was paid the same wages as she received from the Respondent.
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;
[72] There was no evidence on this.
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;
[73] There was no evidence on this.
(g) any other matter that FWA considers relevant.
[74] The Applicant has lost accrued sick leave and service towards long service leave but no evidence was given as to whether there was any accrued sick leave available to the Applicant.
[75] The Applicant was required to pay for two days child care which she did not use.
[76] The Applicant sought compensation for the emotional stress and humiliation as well as the discrimination suffered. Section 392(4) prevents Fair Work Australia from awarding compensation for shock, distress or humiliation or any other analogous hurt cause by the manner of the dismissal.
Conclusion
[77] As a result of the termination of her employment the Applicant was out of work for one week. I have decided that compensation is appropriate. The Applicant’s economic loss is one week’s pay. I will therefore order the Respondent to pay the Applicant two days pay less taxation. In addition the Respondent must pay the appropriate superannuation contribution to the Applicant’s superannuation fund.
[78] The parties are directed to advise Fair Work Australia of the rate of pay which was applicable at February 2012 within seven days of the date of this decision, after which orders to give effect to this decision will be issued.
COMMISSIONER
Appearances:
S Fernando for the Applicant.
G Dimaris for the Respondent.
Hearing details:
2012.
Melbourne:
June 4.
1 Exhibit A3 at [1]
2 Ibid at [2]
3 Ibid at [2]
4 Ibid at [3]
5 Ibid at [4]
6 Ibid at [5]
7 Ibid
8 Ibid at [6]
9 Appendix 1 to Exhibit A3
10 Exhibit A3 at [8]
11 Ibid
12 Ibid
13 Ibid
14 Ibid at [9]
15 Ibid at [10]
16 Ibid at [13]
17 Ibid at [15]
18 Ibid at [16]
19 Ibid [16]-[18]
20 Transcript PN 195-200
21 Exhibit A1 at [5]
22 Exhibit A2
23 Ibid
24 Exhibit R1
25 Ibid
26 Ibid
27 Ibid
28 Ibid Appendix A
29 Transcript PN 274
30 Ibid PN 463
31 Ibid PN 283
32 Ibid PN 473
33 Ibid PN 317
34 Ibid PN 394
35 Ibid PN 330
36 Ibid PN 380
37 Ibid PN 490
38 Exhibit R2
39 Ibid
40 Ibid
41 Transcript PN 715
42 Ibid
43 Exhibit R2
44 Transcript PN 633
45 Ibid PN 644
46 Ibid PN 664-665
47 Exhibit R3
48 Exhibit R4
49 Exhibit R5
50 Transcript PN 961
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