Brittni Halpin v Sofiia Evelina Kemp T/A Viva Italia

[2017] FWC 3335

[2017] FWC 3335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brittni Halpin
v
Sofiia Evelina Kemp T/A Viva Italia
(U2017/2660)

COMMISSIONER SIMPSON BRISBANE, 22 JUNE 2017

Application for an unfair dismissal remedy – Employer did not comply with Small Business Fair Dismissal Code – Dismissal unfair – Compensation ordered

Background

[1] On 12 March 2017, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Ms Brittni Halpin alleging that the termination of her employment with Sofiia Evelina Kemp T/A Viva Italia (the Respondent) was unfair.

[2] Ms Halpin commenced employment with the Respondent on 2 November 2015 until her termination on 20 February 2017. Ms Halpin’s period of employment at the restaurant Viva Italia predated the time when the Respondent employed Ms Halpin, as she was first employed at the restaurant in June 2013. The evidence in the matter supported a conclusion that the period of service with the old employer should count as service with the Respondent in accordance with s.384 of the Act.

[3] The Respondent did not file a response to the unfair dismissal application.

[4] The matter was listed for Conciliation before a Fair Work Commission Conciliator on 11 April 2017. The Respondent, Ms Sofiia Kemp, was unable to be reached on the telephone number listed on the F2 application.

[5] On 12 April 2017 the Conciliator sent an email to Ms Kemp at [email protected] requesting she contact the Commission. The Commission did not receive a response from Ms Kemp.

[6] On 24 May 2017, the Fair Work Commission Unfair Dismissal Team (UDT) attempted to call Ms Kemp. On calling the listed contact number, a gentleman answered who revealed that Ms Sofiia Kemp no longer worked in the business. He noted there had been significant legal issues and several people calling the business looking for the owner. He advised that a person by the name of “Tara” had taken over the business approximately three weeks after the business was abandoned.

[7] On 25 May 2017, the UDT again attempted to contact Ms Kemp on her mobile phone. A voicemail was left requesting Ms Kemp contact the Commission. Ms Kemp was also reminded that material for the Respondent was due Monday 29 May 2017.

[8] On 29 May 2017, a member of the UDT again attempted to contact Ms Kemp without success. A voicemail was left requesting Ms Kemp contact the Commission.

[9] On Monday 8 May 2017, the UDT sent an email to Ms Kemp at [email protected] attaching material received from Ms Halpin. An automatic reply was received:

“UNDELIVERABLE – This email address is no longer active.”

[10] The matter was referred to my chambers and subsequently listed for a telephone Mention on 8 June 2017. My Associate attempted to contact Ms Kemp on the mobile number provided, where it went to voicemail. The voicemail identified that it was the telephone number of Ms Sofiia Kemp. My Associate left a message confirming the matter was listed for Mention, that the Commission had still not received any material from the Respondent and that the matter was set down for a hearing on 22 June 2017.

[11] At the commencement of the hearing on 22 June 2017 there was no appearance for the Respondent. I am satisfied on the basis of the history of the matter that the Respondent is aware of the proceedings but has elected not to participate. I decided to proceed to hear and determine the matter. Ms Halpin was represented by her friend Ms Nicola Moutsastos.

Applicant’s Evidence and Submissions

[12] Ms Haplin’s witness statement 1 and Ms Shields witness statement 2 were admitted into evidence. Ms Halpin also relied upon a written submission dated 8 May 2017, a copy of a text message, calculations provided for the purpose of a submission concerning compensation and three payslips.

[13] Ms Halpin submitted that she commenced employment at Viva Italia as an apprentice in Certificate III Commercial Cookery in 2013, and was promoted to Head Chef after completing her Certificate III in 2016. Ms Halpin submitted her duties included preparation and cooking of food, cleaning, ordering, banking, hiring staff and training staff.

[14] Ms Halpin submitted that on 2 November 2015 Ms Sofiia Evelina Kemp took over ownership of Viva Italia. Ms Halpin submitted that during her employment under the Respondent, she was held under varying employment types including full-time and casual.

[15] Ms Halpin submitted that the Respondent operated the restaurant which is located in Ipswich, Queensland. Ms Halpin submitted that the Respondent was, during Ms Halpin’s employment, a registered Individual/Sole Trader in Queensland and an Employer within the meaning of the Fair Work Act 2009.

[16] Ms Halpin submitted that she was not the subject of any disciplinary action during her employment.

[17] Ms Halpin submitted that on 15 January 2017 she advised Ms Kemp she was pregnant. Ms Halpin submitted that after this time Ms Kemp told fellow co-worker Samantha Shields that Ms Halpin “should just quit already”. 3

[18] Ms Halpin submitted that on 20 February 2017 she received a text message from Ms Kemp stating:

“It breaks my heart to say that I have to do what’s best for the restaurant which means letting you go”. 4

[19] Ms Halpin submitted that Ms Kemp also alleged in the text message that Ms Halpin:

● Told co-workers that they were getting underpaid;
● Didn’t tell the Respondent she was looking for another job;
● Let others poison her opinion.

[20] Ms Halpin submitted that she denies the allegations and believes the Respondent’s allegations are vexatious.

[21] Ms Halpin submitted that there was no valid reason for dismissal. She submitted that the alleged conduct, which formed the basis of termination, never occurred. Further, Ms Halpin submitted that there was no sufficient evidence for the Respondent to reasonably conclude the conduct occurred.

[22] Ms Halpin submitted that the decision to terminate her employment was unjust as she did not engage in the conduct as alleged. Ms Halpin submitted she had no previous disciplinary action taken against her and therefore the decision was harsh. Further, Ms Halpin submitted that she was never afforded an opportunity to respond to the alleged conduct, nor were the allegations presented to Ms Halpin prior to dismissal. Ms Halpin submitted this impaired Ms Halpin’s ability to provide evidence against the allegation, and disadvantaged her unfairly and without explanation or justification.

Legislation

[23] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

[24] Section 388 provides for a Small Business Fair Dismissal Code. It was accepted by Ms Halpin that the Respondent was a small business within the meaning of the Act.

[25] On the available evidence I am satisfied that the dismissal of Ms Halpin was a dismissal without notice. There is no evidence to support a conclusion that the Respondent believed on reasonable grounds that the Ms Halpin’s conduct was sufficiently serious to justify immediate dismissal. I am not satisfied that the Respondent complied with the Small Business Fair Dismissal Code. On that basis I must now determine whether the dismissal was unfair applying the criterion in s.387.

[26] Section 387 relevantly provides:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[27] The matter has proceeded uncontested and I have accepted the evidence of Ms Halpin and Ms Shields. On the basis of that evidence and submissions I am satisfied that there was not a valid reason for dismissal. Further Ms Halpin was notified of the reason for dismissal by a text message and not given an opportunity to respond to the reasons related to her capacity or conduct. As there was no discussion relating to the dismissal before it occurred, no opportunity arose for Ms Halpin to request a support person to be present for discussions. Ms Halpin was not warned about unsatisfactory performance. The employer was a small business and did not have dedicated human resource expertise in the enterprise which would have impacted on the procedures followed effecting the dismissal.

[28] In terms of any other matters that are relevant, the evidence is that the Respondent was aware that Ms Halpin was 13 or 14 weeks pregnant at the time of the dismissal and the approach of the Respondent in dismissing Ms Halpin by text message reflects very poorly on the Respondent.

[29] Having considered each of the elements of s.387 I am satisfied that the dismissal was harsh, unjust or unreasonable.

Remedy

[30] The Applicant has not sought an order for reinstatement, nor would it be practical or appropriate for such an order to be made in all of the circumstances and on that basis I do not intend to make such an order. The alternative remedy is an order for the payment of compensation.

[31] Section 392 of the act provides:

“Remedy—compensation

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2)  In determining an amount for the purposes of an order under subsection (1), the FWC 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 the FWC considers relevant.

Misconduct reduces amount

(3)  If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4)  The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

Compensation cap

(5)  The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a)  the amount worked out under subsection (6); and

(b)  half the amount of the high income threshold immediately before the dismissal.

(6)  The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii)  to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period--the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[32] Applying the formula in Sprigg v Paul’s Licensed Festival Supermarket 5I have estimated that the remuneration that Ms Halpin would have received had she not been dismissed would have been a further seven weeks’ wages given the uncontested evidence that the Respondent continued to operate the business until 13 April 2017. Accepting Ms Halpin’s uncontested evidence that her average weekly wage was $978 per week, that figure multiplied by 7 equals $6,846 dollars. Ms Halpin did not earn any remuneration between the dates of her dismissal on 20 February 2017 and when the Respondent ceased operating the restaurant on 13 April 2017.

[33] The question of the effect of an order on the viability of the Respondent’s enterprise is not relevant as the Respondent no longer conducts the enterprise and the period for which it has been determined Ms Halpin would have remained in employment is limited to a period during which the Respondent did conduct the enterprise.

[34] I do not propose to make any further deduction for contingencies. Ms Halpin’s length of service as defined in s.384 of the Act was from June 2013 to February 2017, a period of three years and eight months. I make no change to the amount of compensation based on Ms Halpin’s length of service.

[35] Ms Halpin submitted that during the period 20 February 2017 to 20 April 2017 she received no income from employment and she was actively looking for work.

[36] There was no evidence of misconduct that might warrant any further reduction in the amount of compensation.

[37] I intend to issue an order that Sofiia Evelina Kemp pay to Brittni Halpin $6,846 dollars gross taxed according to law and 9.5% superannuation contributions on that amount within 14 days of the date of this decision. The order will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

Ms Nicola Moutsastos appearing for the Applicant

Hearing details:

2017.

Brisbane:

22 June

 1   Exhibit 1, Statement of Brittni Halpin.

 2   Exhibit 2, Statement of Samantha Shields at para v.

 3   Exhibit 2, Statement of Samantha Shields.

 4   Attachment “C” - text message.

 5   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.

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