Brooke Ross v The Rami Assad Family Trust and the Youssef Ali Family Trust T/A Barber Dollz
[2018] FWC 382
•23 JANUARY 2018
| [2018] FWC 382 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brooke Ross
v
The Rami Assad Family Trust and The Youssef Ali Family Trust T/A Barber Dollz
(U2017/10590)
COMMISSIONER BISSETT | MELBOURNE, 23 JANUARY 2018 |
Application for an unfair dismissal remedy – applicant dismissed – dismissal unfair – compensation considered.
[1] Ms Brooke Ross (the Applicant) has made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act). She says she was dismissed from her employment with The Rami Assad Family Trust and The Youssef Ali Family Trust T/A Barber Dollz (the Respondent) in a conversation with her supervisor (Ms Shona Borg) on 21 September 2017.
[2] The Respondent says that it did not dismiss the Applicant but rather she resigned by text message sent to the Respondent on 21 September 2017 and confirmed by further text message on 25 September 2017.
Correct name of the employer
[3] Following the conclusion of the hearing and on review of further material on the Fair Work Commission’s (Commission) file it became apparent that the name of the employer given by the Applicant (and hence on the Commission’s file) may not have been correct. Whilst the Applicant put the employer name down as Barber Dollz Da Barber House, the Respondent indicated on the Form F3 – Employer response to unfair dismissal application (and on the Applicant’s payslips as provided by the Respondent) that the legal name of the Respondent was “The Rami Assad Family Trust and The Youssef Ali Family Trust” with a trading name of “Barber Dollz”.
[4] On 18 January 2017 I sought clarification from the Applicant and the Respondent on the matter and indicated that, unless I heard otherwise, I would take that each party agreed that the information provided by the Respondent was the correct name of the Respondent and I would amend the file accordingly.
[5] The Applicant indicated that she had no difficulty with the matter. The Respondent failed to reply.
[6] Given the information provided by the Respondent on its Form F3 and its failure to otherwise respond to the Commission, I am satisfied that the correct name of the Respondent is “The Rami Assad Family Trust and The Youssef Ali Family Trust” with a trading name of “Barber Dollz”. An order amending the employer’s name on was amended on 22 January 2018 1.
Applicant’s evidence and submissions
[7] The Applicant had been employed by the Respondent since 27 February 2017 as a qualified hairdresser. She was paid a flat rate of $25.00 per hour for 38 hours per week. She was rostered to work any day, Monday to Sunday, on a varying roster.
[8] On 23 July 2017 the Applicant was at work at Barber Dollz when Mr Youssef Ali (also known as Joe), the owner of the Respondent, called and asked her to go to Da Barber House to assist. Whilst there she slipped on spilt water on the floor and fell over. She put her arm out to break her fall and apparently injured her shoulder in doing so. She returned to Barber Dollz that day but says she was unable to work the entirety of her shift as her shoulder became sorer as the day wore on.
[9] The Applicant was subsequently certified as not fit for work by her doctor in a series of medical certificates from 23 July 2017 to 30 July 2017. 2
[10] The Applicant returned to work although she had intermittent pain in her shoulder.
[11] On 10 September 2017 the Applicant attended her doctor and received a medical certificate 3 indicating she was not fit for work that day. The Applicant then apparently had a further five days off work caused by her injury.
[12] The Applicant returned to work on Wednesday 20 September 2017 when she worked the full day. The following day she says she commenced her shift at 1.00pm. About an hour into her shift she says Ms Borg asked her to go outside for a chat. The Applicant says Ms Borg said that Barber Dollz didn’t want her to hurt herself anymore so she could either finish immediately or work to the end of her shift.
[13] The Applicant took from the conversation that her employment had been terminated.
[14] On Monday 25 September 2017 the Applicant sent Ms Balinda Talevski (the partner of Joe), an employee of the Respondent, and Joe a text message which said:
Hi. I’ve just been thinking this may sound harsh but I don’t mean it too you guys didnt want me working for you anymore as you didnt want me to hurt myself anymore that’s fine but I would like my pay all of it by this week as I need money as well. It was ok for you to already have someone to cover my job before i had even gone (sic) 4
[15] The Applicant received a reply to the text message that day from Ms Talevski:
She was actually hired at Wg
And as for the decision it was based on a conversation with joe
I will try my hardest
Please understand that joe is overseas I have no contact with the accountant so the minute he knows how much the annual leave and sick is left I’ll be sure to pay it out!
We had given you a week off when it happened then noticed when Shona took over as manager you started again with pain!
Therefore don’t want you to get hurt anymore and as a business can’t have last minute to replace and cover shifts.
I will let u know as soon as we know about annual and sick (sic) 5
[16] The Applicant says that she was paid for her last two days at work (20 and 21 September 2017).
[17] The Applicant does not seek reinstatement but rather seeks compensation.
[18] The Applicant obtained on-going employment with Just Cuts commencing on 4 October 2017.
[19] Ms Jacqui Carter gave evidence for the Applicant. Ms Carter worked for the Respondent but resigned in October 2017 after what she claimed was unfair treatment of another worker. Ms Carter said that the Applicant only left work early on two occasions – on the day she injured her shoulder and another day when her shoulder hurt.
[20] Ms Kerre Walker also gave evidence for the Applicant. Ms Walker said that she was working the day the Applicant was asked to go to Da Barber House. She said that when the Applicant returned to Barber Dollz she could hardly lift her arm.
[21] Ms Walker was with the Applicant when the Applicant called Joe although she did not hear anything that Joe said.
Respondent’s evidence and submissions
[22] Ms Talevski gave evidence for the Respondent. She is the owner’s partner and generally goes store to store to make sure the business is running smoothly.
[23] She said that she was aware that the Applicant had fallen at work but was not clear on when it occurred or if the Applicant had hurt her back or leg. She said that she had not watched any videotape of the fall but Joe had, and he said that the Applicant was wearing ugg boots at the time.
[24] Ms Talevski said that the Applicant called after she fell and said that she needed to go to the doctor. The Applicant then had a week off work. She said that a week after the Applicant returned to work the pain returned and the Applicant had to take time off to rest or go to the doctor.
[25] Ms Talevski said that at about this time, Ms Borg started to manage the salon at which the Applicant worked. She said it was difficult to manage the Applicant as she was often absent with little notice or leaving early so they had to get someone in to cover all or part of her shift. She said the she and Joe decided to “offer” the Applicant “time off to recover”. She said that the next she knew she received a text from the Applicant asking when her annual leave would be paid out and she took this as notice by the Applicant of her resignation.
[26] Ms Talevski said she did not call the Applicant after receiving the text because she has seven stores to manage and with people “constantly leaving” and she left this responsibility with Ms Borg. Ms Talevski said the Applicant was paid for four hours on her final day even though she only worked one hour because she was entitled to it.
[27] Ms Talevski agreed that the Applicant took about a week off work immediately after she injured herself. She stated that the Applicant left early a few days each week because of the pain of her injury.
[28] Ms Talevski could not explain why the Applicant’s pay slips did not show any sick leave being taken around the time of the injury. She said that annual leave was deducted from the Applicant, as shown on her pay slip for the week of 11- 17 September 2017, for a further week of sick leave because she no longer had any sick leave entitlement. She could not explain why the absence was not deducted from the 43 hours of accumulated sick leave balance on the Applicant’s pay slip. 6 Ms Talevski said that the earlier period that the Applicant had taken off in July 2017 when she first had the injury was also deducted from annual leave as the Applicant had no sick leave at that time.
[29] Ms Talevski agreed that she replied to the text message from the Applicant on 25 September 2017 as set out in the Applicant’s evidence. Ms Talevski said there was an earlier text message she received from the Applicant on 21 September 2017 requesting her annual leave be paid out and that she took that message as a resignation.
[30] Ms Talevski produced the related text messages between herself and the Applicant. These were downloaded and sent to the Commission. The text message to which she referred was sent to her by the Applicant on Thursday 21 September 2017 and read:
Hi Belinda. Just wondering will all my pay and annual leave and sick pay be in my account by Tuesday morning please? (sic) 7
[31] Ms Talevski said she understood from this that the Applicant had resigned because “she was never told she was terminated and when I receive a message like that - many people have resigned literally message me “when is my annual coming through””. She did not call the Applicant to clarify the situation, she just “kept going with it”. Ms Talevski said that she accepted the request for annual leave to be paid out because there was no reason for it to be paid out unless the Applicant had resigned. She did however agree that annual leave would also be paid out in circumstances where an employee was dismissed, but maintained that had not happened in this case.
[32] Ms Talevski also gave evidence that Joe had received a call from the Applicant’s current employer on 11 January 2018. Whilst she was present during the call she did not hear what the caller said but was aware that the caller’s name was “Chris” from Just Cuts. Ms Talevski stated that he asked how long the Applicant had worked for the Respondent and if she and a co-worker had caused trouble. Ms Talevski said she would provide to the Commission a screen shot of the call.
[33] Ms Borg gave evidence that the Applicant was not happy when she arrived to manage the salon. She said that a few days after she started as manager the Applicant messaged her to say she could not come in as she had hurt her shoulder. Further, she said that the Applicant would wait for Ms Borg to be on a break and message her to say she had to leave as she was in pain. Ms Borg said that it was a recurring issue, although in cross examination she agreed that the Applicant left early or didn’t come to work maybe twice a week, but that this did not occur every week.
[34] Ms Borg said that she spoke to Ms Talevski about the Applicant being absent. Ms Talevski suggested that Ms Borg speak to the Applicant to see if she needed some time off to recover. She said she put that to the Applicant who said “yeah yeah”. She said that the conversation lasted a couple of minutes. The next she heard was a call from Ms Talevski the next day to advise that the Applicant had resigned.
[35] Ms Dahdah appeared for the Respondent. In submissions she said that the Respondent was sorry if there had been a miscommunication with the Applicant believing she had been dismissed on 21 September and that if she wanted her job back she could have it.
Consideration
Was the Applicant dismissed or did she resign?
[36] Section 386 of the Fair Work Act 2009 (FW Act) states:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[37] In this the Applicant says that she was dismissed in the conversation she had with Ms Borg on 21 September 2017. The Respondent says that the Applicant resigned by virtue of the text message she sent on 21 September 2017 requesting that her annual leave be paid out.
[38] The full extent of the text messages as sent between the Applicant and Ms Talevski, as provided by Ms Talevski, are as follows: 8
Thursday 21 September | |
Applicant to Ms Talevski | Hi Belinda. Just wondering will all my pay and annual leave and sick pay be in my account by Tuesday morning please? |
Sunday 24 September | |
Applicant to Ms Talevski | Hi I was wondering if all my money will be in this week please? If not whrn please? |
Ms Talevski to Applicant | I am sitting waiting on the accountant I can pay what u worked for the week but as for annual leave and sick I need to wait for him which Joe will let me know when he knows Headache |
Applicant to Ms Talevski | Okay i just have things to pay that’s all. Just thought it would all be done by this week. |
Ms Talevskito Applicant | I don’t have contact with the accountant and joe is overseas I wish it was aswell |
Applicant to Ms Talevski | Its all good just didnt who to contact sorry Just hopefully soon |
Monday 25 September | |
Applicant to Ms Talevski | Hi. I’ve just been thinking this may sound harsh but I don’t mean it too you guys didnt want me working for you anymore as you didnt want me to hurt myself anymore that’s fine but I would like my pay all of it by this week as I need money as well. It was ok for you to already have someone to cover my job before i had even gone (sic)9 |
Ms Talevski to Applicant | She was actually hired at Wg And as for the decision it was based on a conversation with joe I will try my hardest Please understand that joe is overseas I have no contact with the accountant so the minute he knows how much the annual leave and sick is left I’ll be sure to pay it out! We had given you a week off when it happened then noticed when Shona took over as manager you started again with pain! Therefore don’t want you to get hurt anymore and as a business can’t have last minute to replace and cover shifts. I will let u know as soon as we know about annual and sick |
Applicant to Ms Talevski | Yeah so everyone else has theirs and mine just happens not to be there?! If joe made the decision to let me go he should have all the information ready to go. So i want my money! |
Ms Talevski to Applicant | Ur weeks pay has been transferred Joe is overseas as mentioned previously |
Applicant to Ms Talevski | Yes i know joe is over seas. So was he over seas when he made the decision to let me go? If so it doesnt matter if he was or not as he is the one who made the decision so he should have organised what is owed when he made the decision [(sic), underlining added] |
[39] Ms Talevski says that she took from the very first text message that the Applicant had resigned.
[40] When questioned on this by the Commission she could not explain where, in this message, she could conclude that the Applicant had resigned except to say that people asked for their annual leave to be paid when they resign. Despite this she also conceded that a person may ask for their annual leave to be paid out when they had been dismissed.
[41] Given that annual leave is an entitlement owed to an employee, regardless of the method by which they leave employment, the Applicant asking for her annual leave payout could not, under any circumstances, have reasonably led the Respondent to conclude that the Applicant had resigned her employment.
[42] Further, the first text message of 24 September 2017 from the Applicant could not be taken as confirmation that the Applicant resigned. In any event the text messages from the Applicant on 25 September 2017 in which she mentioned Joe making the decision to let her go (underlined above) clearly indicates that the Applicant did not consider that she had resigned but that she had been “let go” by Joe. Most people would understand this to be an indication that the employment had ended at the initiative of the employer (in this case Joe).
[43] Further, Ms Talevski’s failure to contact the Applicant when she received the first message makes no sense in circumstances where the Respondent considered the Applicant not well enough to carry out her duties. In such circumstances the Applicant should, at least, have been on sick leave. Her pay slips indicate she had outstanding sick leave entitlements that she could utilise while she was having time off to overcome her injury. That the Respondent has seven shops and the attendant staff to manage is no excuse for not resolving this matter with the Applicant as soon as it became apparent that there was a misunderstanding.
[44] None of the actions of the Applicant indicate she had resigned.
[45] I am therefore satisfied that the Applicant’s employment was terminated at the imitative of the Respondent. This conclusion is supported by the submissions of Ms Dahdah of the Respondent who indicated that the Respondent was sorry if there had been any “miscommunication” on 21 September 2017.
Was the Applicant unfairly dismissed?
[46] Section 385 of the FW Act states:
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.
[47] In this case I am satisfied that the Applicant has been dismissed.
[48] The Respondent is not a small business and the dismissal did not arise due to redundancy.
[49] It there falls to consider if the dismissal was harsh, unjust or unreasonable. The criteria for this purpose are set out in s.387 of the FW Act:
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.
[50] In the circumstances of this case where it appears that the dismissal of the Applicant arose from a “miscommunication” and where I have found that the Applicant’s employment was terminated at the Respondent’s initiative, and given the lack of any other evidence, I am satisfied that there was no valid reason for the Applicant’s dismissal. Dismissing an employee to prevent that person from further injuring themselves does not provide a valid reason for dismissal to the extent it might be relied on by the employer in circumstances where there was no misconduct by the employee.
[51] As there was no valid reason for the dismissal the Applicant cannot have been notified of that reason nor given an opportunity to respond. I do note however that the Applicant did meet with Ms Borg at what she took to be the dismissal meeting.
[52] The matter between the Applicant and Respondent did not relate to the Applicant’s performance.
[53] The Respondent said in its Form F3 – Employer response to unfair dismissal application that it had 20 employees. Ms Talevski, in her evidence, said she could not keep track of any particular employee and did not follow up with the Applicant as to why she was seeking her annual leave be paid out because she was busy ensuring the salons were operating smoothly. While I accept that the Respondent is not large business and clearly does not have access to human resource expertise, the number of employees belies Ms Talevski’s evidence that she could not follow up with the Applicant with respect to her text messages on 21 or 24 September 2017.
[54] I draw no conclusions about the hearsay evidence of Ms Talevski in relation to the phone call said to have been made by the Applicant’s current employer. Following the completion of the hearing Ms Talevski sent a screen shot indicating that she had made an outgoing call to a number (+61 439 6xx xxx) that day and spoken for nine minutes. It is not evidence of an incoming call and is of no probative value to the matter before the Commission.
[55] To the extent the Respondent suggested the Applicant took time off or left early, it was agreed that this occurred when her injured shoulder was causing her pain. These absences could not justify the dismissal of the Applicant.
[56] There are no other matters relevant to the determination of whether the dismissal was harsh, unjust or unreasonable.
Conclusion
[57] Before setting out my conclusion there are some observations that need to be made with respect to the material provided to the Commission by the Respondent.
[58] In her application the Applicant said that she had never received any payslips. The Respondent, in its materials, filed a copy of each payslip of the Applicant.
[59] These payslips show that the Applicant accrued annual leave and “sick” leave every week and that she was paid a flat rate of $25.00 per hour for every hour worked.
[60] No documentary evidence was produced to indicate that the Applicant had agreed to a contract that offset the penalty rates provided for the in Hair and Beauty Industry Award 2010 of 33% for Saturday work and 100% for Sunday work. It is apparent from the rosters produced by the Applicant that she was, from time to time rostered to work on these days.
[61] Further, her payslips show no deduction for sick leave – even though she clearly produced medical certificates for a number of days in July and one in September 2017, but does show a deduction for annual leave in September. This was in circumstances where the annual leave was apparently deducted because the Applicant had no sick leave left – despite what is recorded on her pay slips of a positive sick leave balance. Furthermore, her payslip shows a reduction in accrued annual leave hours in the week of 17-23 July without any annual leave being shown to be taken that week. This week, in any event, was the week prior to the Applicant’s accident at work.
[62] This suggests an approach to record keeping that is not as careful as is required. It is a matter the Respondent would be encouraged to attend to without delay for all of its employees.
[63] For the reasons set out above I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable and that she was unfairly dismissed.
Remedy
[64] The Applicant does not seek reinstatement although the Respondent has made that offer. Rather she seeks compensation.
[65] I am satisfied in these circumstances that reinstatement is not appropriate.
[66] In determining the amount of compensation I have had regard to those matters set out in s.392(2) of the FW Act.
[67] The Applicant had worked for the Respondent for seven months. There was no indication that she was looking to leave and I am satisfied that she would have remained in employment with the Respondent for at least a further six months.
[68] The Applicant was earning $25.00 per hour ($950.00 per week) prior to her dismissal. Her lost earnings, had she not been dismissed is therefore (26 weeks at $950.00/week) $24,700.00.
[69] The Applicant obtained new employment on or about 4 October 2017, 2 weeks after the termination of her employment by the Respondent. Depending on her roster she earns between $990.00 and $1383.00 per week. For the period until 15 January 2018 (14.6 weeks) she earned a total of $15,723.32, an average of $1,076.94 per week. The Applicant’s hourly rate for ordinary hours is $26.61 per hour with a higher rate for Saturday, Sunday and Public Holiday hours, which again is comparatively greater than the $25.00 flat rate at which she was paid with the Respondent.
[70] I do not consider any other matters relevant for the determination of compensation.
[71] An estimate of the Applicant’s earnings over six months with her new employer (26 weeks at the $1076.94/week average, totalling $28,000.44) is higher than that which she would have earnt had she remained employed with the Respondent ($24,700). Because the Applicant is likely to earn more in her current employment than she would had she remained with the Respondent, and in circumstances where I am not convinced she would have remained with the Respondent for more than six months had her employment not been terminated, the Applicant has not suffered any loss in remuneration.
[72] For this reason I do not intend to make any order for compensation.
[73] Whilst I have found that no award of compensation should be made, I note outstanding issues between the Applicant and the Respondent with respect to entitlements and potential payments for weekend work. I would encourage the parties to seek to find a satisfactory resolution through direct discussion between them.
COMMISSIONER
Appearances:
B. Ross on her own behalf.
C. Dahdah forThe Rami Assad Family Trust and The Youssef Ali Family Trust T/A Barber Dollz.
Hearing details:
2018.
Melbourne:
January 15.
1 PR5599730.
2 See Applicant’s documents 1-4.
3 See Applicant’s document 5.
4 Exhibit A1, page 1.
5 Exhibit A1, page 2.
6 See Respondent’s filed materials.
7 Exhibit R1.
8 Exhibit R1.
9 Exhibit A1, page 1.
Printed by authority of the Commonwealth Government Printer
<PR599650>
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