Brianna Blackshaw v Geoff Lowe T/A Hair Barn

[2010] FWA 5586

[2010] FWA 5586

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brianna Blackshaw
v
Geoff Lowe T/A Hair Barn
(U2010/6332)

COMMISSIONER RAFFAELLI SYDNEY, 3 AUGUST 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application by Ms Brianna Blackshaw (the Applicant) that she was unfairly dismissed by her former employer, Mr Geoff Lowe who operated a hairdressing business called Geoff Lowe t/a Hair Barn (the Respondent).

[2] The definition of an unfair dismissal is set out in section 385 of the Fair Work Act 2009 (the Act). It provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

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

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

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

[3] It is not disputed that the Applicant was dismissed and that the dismissal was not consistent with the Small Business Fair Dismissal Code

[4] Neither the Applicant nor the Respondent put that the termination was a case of genuine redundancy. While the facts of this case may have raised that as a potential issue, in the absence of more evidence and well developed arguments I am unable to find that the requirements of section 389 (which defines genuine redundancy) are satisfied.

[5] Consequently, the question to be determined is whether the termination was harsh unjust or unreasonable

[6] The Applicant’s evidence included that she is 17 years old and was an apprenticed hairdresser employed by the Respondent from 19 November 2008.

[7] During her employment she received no warnings nor were there any complaints from customers.

[8] In the latter part of 2009, she raised with the Respondent her concerns that apparently no superannuation contributions had been made into her account. The Respondent said that he would get it organized. The Applicant raised the issue with her parents and they also had concerns about several other matters concerning unpaid entitlements. In fact her parents met with the Respondent on 18 January 2010 to discuss these issues.

[9] On 11 February 2010, she was informed by Ms Diane Lowe (the wife of the Respondent) that the Respondent was ceasing to operate his business. The Applicant and other employees would be employed by a new company operated by Ms Lowe.

[10] Later, the Respondent said to her “because we have changed the company structure over we cannot keep everyone on, and after what happened with you and your parents, unfortunately it has to be you.”

[11] The Applicant was aware that other apprentices were hired by the new company.

[12] The Applicant applied for several jobs until finally gaining employment on 6 May 2010.

[13] The evidence of Ms Louise Blackshaw, the Applicant’s mother, included that she and the Applicant’s father had met with the Respondent on 18 January 2010 to discuss concerns about their daughter’s entitlements, including unpaid superannuation. Nothing had been resolved and the Respondent had said that he would get back to them. At no time did the Respondent say that the company structure would change or that the Applicant’s employment would be affected.

[14] The evidence of Mr Geoff Lowe was that it had been decided that Geoff Lowe t/a Hair Barn would cease trading. His wife, Ms Diane Lowe, became the sole director of the new company, Hair Barn Pty Ltd.

[15] It was decided that the Applicant would not be re-signed with Hair Barn Pty Ltd due to under-performance. The Applicant was advised of this situation.

[16] He also said that her performance had been raised with her in the latter part of 2009. One warning at least was in writing. He could not produce a copy of this. He also said that the Applicant had caused angst among her work mates. Mr Lowe denied saying to the Applicant that the issue of entitlements raised by her and her parents had played a part in the termination.

[17] According to Mr Isaksen, the Applicant’s solicitor, the termination was unfair because there had been no prior warnings given to the Applicant, nor had any notice been given as to the change to the status of the employer.

[18] The Respondent had not provided the Applicant with a support person at the time of her termination.

[19] Finally, the Applicant had made genuine efforts to secure employment at which she has been successful. She was without a job from 12 February 2010 to 5 May 2010.

[20] The Respondent put that business ceased trading on 11 February 2010. The reason that the Applicant was not engaged by the new hairdressing business was that she had not performed well previously.

[21] Mr Lowe also indicated that he had provided several contacts for the Applicant to pursue to obtain new employment. He disputed that she had actively sought work.

Determination

[22] Both parties agree that the employment of the Applicant ceased on 11 February 2010.

[23] On its face, the termination occurred because the Respondent ceased to trade. The failure by the new owner of the hairdressing business to engage the Applicant had nothing to do with the Respondent. To accept that, would be to blindly ignore the relationship (of husband and wife) of the new and former owners of the business.

[24] I am not prepared to accept that the right hand did not know what the left was doing. The change in business and employment arrangements was under the (at least) partial control of the Respondent. The termination of the Applicant cannot be simply described as something innocently flowing from the Respondent ceasing to trade.

[25] The Applicant said that the real reason for the termination was the complaint raised by the Applicant and her parents concerning unpaid entitlements. That may be a possibility but it has been vigorously denied by the Respondent.

[26] The Respondent submitted that the Applicant under-performed and that this was the reason for her not being enaged after 11 February 2010.

[27] If I assume that performance was an issue then that provides a valid reason for termination. I then need to consider whether, in accordance with section 387(b), the Applicant was notified of that reason. In that regard, the evidence is unclear and I am unable to make any finding.

[28] As to whether the Applicant was given an opportunity to respond to the issue of under-performance, I am satisfied that this did not occur. Firstly, the Respondent was unable to specify exactly when the Applicant had been spoken to concerning her performance. Further, at no time, including at her termination was the Applicant ever provided with a support person. This is of real consequence given her young age. The Applicant was never given any real opportunity to respond to any performance concerns.

[29] I have considered all the other criteria set out in section 387, but consider that they are of little relevance here.

[30] Overall, particularly given the lack of opportunity given to the Applicant to respond concerning her performance (and) given her youth and lack of support, I find that the termination was harsh, unjust and unreasonable.

[31] That finding is predicated on an assumption that under-performance was the reason for dismissal. If the real reason was the complaint by the Applicant, then there would be no valid reason for termination and the dismissal would have been harsh, unjust and unreasonable.

[32] On either view the termination of the Applicant was harsh, unjust and unreasonable.

[33] Given that, and my previous findings, the termination was unfair as defined in section 385 of the Act.

[34] Having so found it is necessary to consider a possible remedy.

[35] The Applicant has found another job and does not seek reinstatement. Additionally, I am unsure whether it is now possible to order the Respondent to re-employ the Applicant, given that on the face of it he no longer operates a hair salon. In accordance with section 390, I am not satisfied that reinstatement is appropriate.

[36] As to compensation, the requirements set out in section 390 are satisfied and I consider that an order for payment of compensation is appropriate in all the circumstances. Section 392(2) sets out the criteria for deciding the amount of compensation. It reads as follows.

“392 Remedy—compensation

Compensation

. . .

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(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; and

(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; and

(g) any other matter that FWA considers relevant.”

[37] The Applicant sought payment of 12 weeks compensation at a rate of $413 per week. There was nothing put by the Respondent that any order would affect the viability of the Respondent’s enterprise. I am aware that the enterprise no longer operates, but there is nothing before me to suggest that Mr Lowe as an individual is unable to pay compensation.

[38] The length of service of the Applicant neither warrants additional weight nor some discount to my overall assessment.

[39] As to what remuneration the Applicant would have received but for the termination, several possibilities come into play. Firstly, if the Applicant had in reality been dismissed because of her complaints and not for any under-performance, it is likely that she would have had her employment transferred to the Respondent’s wife’s firm and she would have continued to be remunerated, at least until the end of her apprenticeship.

[40] If, on the other hand performance was an issue, the matter should have been raised with the Applicant, and even with a transfer to the new employer, she would have been under some probation or trial. The Respondent gave evidence that so as to assess if someone was performing well or not a period of one month would be a fair period for assessment. On that basis, the Applicant would have had at least another four weeks of employment

[41] As to mitigation of loss, I am satisfied that the Applicant made efforts to seek alternative employment, finally succeeding in that task.

[42] As the Applicant is not seeking any compensation after she obtained new employment the consideration under section 392(2)(e) is not relevant.

[43] In my view section 392(2)(f) is also not relevant and there are no other matters which I consider relevant.

[44] In determining the amount of compensation, I have considered the above but note that in reaching any conclusion there is a great degree of speculation involved. This is all the more herewhere there are two possible scenarios - termination because of the complaint or because of underperformance. They would likely result in different expected ongoing periods of employment.

[45] I have decided that on balance an order of six week’s pay should be ordered as compensation. The rate of $413 per week was said by the Applicant to be a fair average rate received. I have not heard from the Respondent in that regard.

[46] I propose not to issue an order for seven days. If I do not hear from the Respondent concerning the abovementioned rate I will assume that the amount $413 is correct and an order will be made for 6 weeks at $413 per week. If the Respondent objects to that amount, the matter will be relisted as a telephone hearing.

COMMISSIONER

Appearances:

J. Isaksen, solicitor for the Applicant.

G. Lowe for the Respondent.

Hearing details:

2010

Sydney:

July 8.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR999774>