Eden McGinty v Hair & Co Pty Ltd
[2023] FWC 1257
•29 MAY 2023
| [2023] FWC 1257 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Eden McGinty
v
Hair & Co Pty Ltd
(U2023/1149)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 29 MAY 2023 |
Application for an unfair dismissal remedy — Applicant apprentice/trainee hairdresser – Applicant’s Mother made complaints or inquiries as to her daughter’s pay, and terms and conditions of employment with the Respondent employer and Training Services NSW – Applicant summarily dismissed by Respondent following her Mother’s complaint to Training Services NSW – assertion by Respondent as to compliance with Small Business Fair Dismissal Code rejected – assertions by Respondent as to unsatisfactory performance or conduct by Applicant unsupported by evidence and rejected - no valid reason for dismissal – no procedural fairness - dismissal harsh, unjust and unreasonable – reinstatement inappropriate – award of compensation appropriate remedy – matter to be programmed to determine compensation amount to be awarded.
Introduction
Ms Eden McGinty (Applicant) has filed an Unfair Dismissal Application (Application) with the Fair Work Commission (Commission). The Applicant alleges that she was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by her former employer, Hair & Co Pty Ltd (Respondent).
The Respondent runs a hairdressing salon called Hair & Co at the Eastern Creek Quarter (ECQ) Shopping Centre. At the time of her dismissal, the Applicant was a minor, undertaking an apprenticeship/traineeship in hairdressing with the Respondent.
By way of its Form F3 Employer Response, the Respondent objects to the Application on the basis that it is a small business employer who has complied with the Small Business Fair Dismissal Code (SBFDC), and otherwise denies that the Applicant was unfairly dismissed.
At the hearing, the Applicant was represented by her Mother, Ms Mary McGinty, and the Respondent was represented by Mr Jalal El Hallak, Director.
Evidence and submissions
The Applicant relies upon correspondence from her Mother to Training Services NSW dated 2 February 2023, a series of text messages from her Mother to Mr Hallak raising concerns about the Applicant’s pay and working conditions, a document outlining the potential toxic effects of Keratin Treatments that contain formalin, a statement from her Father (Mr Maurice McGinty) outlining his understanding of the Applicant’s working relationship with the Respondent, documents setting out payments made to the Applicant during her employment, and the Applicant’s Apprenticeship/Traineeship Training Contract with the Respondent dated 6 June 2022.
Apart from filing a Form F3 Employer Response, annexing a SBFDC Checklist dated 21 February 2023, the Respondent did not file any evidence or submissions in accordance with the Directions that were issued on 30 March 2023. Despite being chased up as to such non-compliance with Directions by my Chambers, no response was received from the Respondent. Given this non-compliance, I did not permit the Respondent to rely upon any further written evidence or submissions at the hearing.[1] Mr Hallak’s explanation as to the Respondent’s non-compliance with Directions was as follows:
“Okay, well, I’m running a business, working here, and I don’t have time to file evidence, and go through my staff and stop all my staff and file evidence, over a matter that I don’t think is unfair dismissal. That’s her side of the story.”[2]
Noting that neither the Applicant nor Mr Hallak filed any witness statement evidence prior to the hearing, I permitted them both to provide oral evidence at the hearing, and be subject to cross-examination.[3]
Factual findings
Based upon the evidence relied upon by both parties at the hearing, I make the findings of fact set out in the paragraphs that follow.
The Applicant commenced employment with the Respondent on 16 October 2021.[4]
On 6 June 2022 (at the age of 16) the Applicant signed (entered into) a registered Apprenticeship/Traineeship Training Contract (Contract) with the Respondent to undertake a Hairdressing Certificate III qualification on a full time basis. The commencement date of the Apprenticeship/Traineeship was backdated to 2 January 2022.
Under the terms of the Contract, the Respondent agreed and promised to:
“
a)employ and train the apprentice/trainee as agreed in our Training Plan and ensure the apprentice/trainee understands the choices that he/she has regarding the training
b)provide the appropriate facilities and experienced people to facilitate the training and supervise the apprentice/trainee while at work, in accordance with the Training Plan
c)make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan
d)provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in this Contract
e)release the apprentice/trainee from work and pay the appropriate wages to attend any training and assessment specified in our Training Plan
f)meet all legal requirements regarding the apprentice/trainee, including but not limited to, occupational health and safety requirements and payment of wages and conditions under the relevant employment arrangements
g)repay any payment I receive that I am not entitled to
h)work with our RTO and the apprentice/trainee to make sure we follow our Training Plan, keep training records up-to-date, and monitor and support the apprentice/trainee’s progress; and
i)let the relevant State/Territory government department, authority or agency and the RTO know within five working days (or when the local State/Territory legislation requires, if this is different) if our Training Contract has become jeopardised.”[5]
The Applicant’s Mother is specifically listed as the Applicant’s Parent/Guardian under the Contract, and is required under the terms of the Contract to “uphold the responsibilities … for the [Applicant under the Contract] until [she] is 18 years of age”.[6]
Between September 2022 and January 2023, the Applicant’s Mother sent Mr Hallak various text messages regarding the Applicant’s pay and working conditions, covering such topics as non-payment of annual leave, non-payment of annual leave loading, non-payment of superannuation, underpayment of weekly wages, non-payment of overtime, non-payment of public holidays, absence of payslips, absence of tax information, absence of rostering information, failure to provide lunch breaks, providing (late) 3.00pm lunch breaks, rostering the Applicant for less than 38 ordinary hours per week, absence of annual leave and sick leave accrual balances, and the Applicant’s inability to access Apprenticeship incentives due to the non-provision of her payslips. One of the text messages from the Applicant’s Mother to Mr Hallak reads:
“I’m sorry Jay [Mr Hallak] but you need to pay her as per the apprenticeship agreement and while she is a minor, I need to ensure she is paid correctly according to the award”.
In her Form F2, the Applicant highlights that her Mother had also raised with Mr Hallak health and safety concerns around senior staff instructing the Applicant to apply toxic keratin treatments to clients (as the senior staff refuse to inhale the toxic formaldehyde contained in such treatments). On days where the Applicant was applying such keratin treatments, she would come home with headaches, a sore throat and/or nausea.
On 2 February 2023, the Applicant’s Mother wrote the following letter to Training Services NSW (NSW Department of Education), who administers Apprenticeship/Traineeship Training Contracts in NSW:
“I, Mary McGinty am the mother of Eden McGinty who is currently enrolled in a Hairdressing Apprenticeship with Hair & Co at Eastern Creek. I am writing to you as, I phoned Training Services on Tuesday to discuss Eden’s apprenticeship as her employer arranged to meet with a representative from METG advising that he will be removing Eden from the current contract and signing her up with METG. I was advised to send an email outlining my concerns.
·No on the job training
oEden is not being mentored/trained in the workplace. I feel that Eden is not being trained correctly as she does not have a senior staff member showing her correct procedures when attending to clients. Eden consults with clients and performs services as requested by the clients. Eden practices colouring, foils and hairstyles at home and performs her duties to the best of her ability using methods she uses at home on family and friends.
·TAFE – Practical and Theory
oA TAFE Teacher attends the salon for 2 hours each fortnight to train Eden
oEden is given no time during work hours to do her TAFE theory work. I have asked her employer to ensure that Eden is allowed time to study and do assignments as she is often too tired from work to study at home.
oEden has been given assessment tasks to complete on clients at work while being recorded. When there is an opportunity to complete the particular tasks and asks for assistance from the senior staff, she does not get the support needed to complete the task.
·Salon Tasks
oIn the workplace, Eden must do as instructed by any senior staff member at all times. Eden is told by senior staff that being the apprentice, she must do all the cleaning which includes sweeping, mopping, wipe down benches, washing towels and hanging them out, high cleaning, taking out the garbage and get change for the salon from other stores in the centre. Eden is also given the task of applying Keratin treatment containing formaldehyde as the senior staff say they do not want to breathe in the chemical, on one occasion one of the senior staff commented that Eden has young lungs so she can afford to breathe in the toxins. I do not believe that appropriate work, health and safety measures are followed in this salon. On many occasions when I pick Eden up from work, she is suffering from a sore throat, headaches and lethargic, Eden tells me that it is due to the number of keratin treatments she was made to do on that day.
·Pay
oEden is not being paid appropriately, she does not receive payslips and no superannuation payments made. Each week I have to work out what Eden should be paid and accrued leave entitlements, she does not get paid overtime when she works over 38 hours, she does not get appropriate breaks. I am constantly texting her employer but most of the time, I am ignored. Eden recently took 2 weeks annual leave, her leave was paid but no 17.5% loading which I have reminded her employer, he replies that she will be paid correctly but never resolved. I waited for Eden to come home from work to confirm that everything in this letter is correct, she confirms that Jay has paid her $196.00 leave loading for the 2 weeks annual leave she took recently.
oI have spoken to Eden’s employer about breaks. On many occasions, Eden is not allowed to go to lunch due to the salon being busy or she ends up going to lunch at 3.30pm (as she did today). Eden starts work at 9am each day, no other breaks allowed, only one half hour unpaid break to be taken only when salon is not busy. (I understand this needs to be taken up with Department of Fair Work).
·Incentives for Apprentices
oEden is unable to claim any of the incentives she is entitled to due to receiving no payslips from her employer. I have requested payslips from her employer on several occasions to no avail. This is very upsetting for Eden, she feels her employer does not support her with her apprenticeship.
·Meeting with METG and owner of Hair & Co. Eastern Creek
oEden’s employer advised her of a meeting with a representative from METG on Thursday (today). I advised Eden not to sign anything without myself present as she is under 18 years of age.
oThe meeting was at 2.30pm with Jay (Eden’s boss), myself, Eden and the METG officer. Jay advised me that today he will be signing Eden up with METG and forget her current contract. I asked METG how is the change beneficial, she replied that Jay would receive better support and more of an incentive to sign Eden up. I asked what does Eden get out of this, the METG rep said “Nothing”.
oI advised METG that Eden is doing fine under the current arrangement and I mentioned that Jay is not paying her correctly, not paying her superannuation and he does not provide payslips which means Eden is unable to access her incentives that are rightfully hers. Jay said that he has paid Eden’s superannuation, I asked Eden to check her account, there was nothing added by Hair & Co. I advised Jay that he in fact did not make the payments.
oI also mentioned that he needs to care for Eden’s health and wellbeing and that Eden needs to have a lunch break at a reasonable hour and not 3.30pm or 4pm after working 6 or 7 hours. Jay said that he will allow Eden to split her lunchbreak, she can have 15mins in the morning and 15 minutes at 2pm, 3pm or 4pm whenever the salon is not busy. I informed him that that is not reasonable, Eden needs a good half hour away from the salon to rest and eat her lunch and that he should give her a paid break in the morning, he said no to that.
oThis meeting turned into an argument, Jay said that he has had enough of me interfering in his business, he will run his business his way and he will not be listening to my complaints anymore. He is fed up with receiving text messages from me reminding him to pay superannuation, tax, leave loading and requesting leave balances.
oUltimately, Jay said to the METG representative to forget signing Eden up, he is giving her 2 weeks to resign and go find some other place to work. I advised Jay that Eden will not be resigning, that she is here to complete her apprenticeship and that he needs to pay her correctly and do the right thing by her. Jay then said, Eden is gone in 2 weeks, she will be resigning. I advised Eden not to resign and I asked Jay for everything in writing if he will be dismissing Eden.
Kind regards,
Mary McGinty”
On 8 February 2023, the Applicant was dismissed (verbally) by Mr Hallak.
As at the date of the hearing, the Applicant has not been paid for the days she worked in the week of her dismissal, nor has she been paid any notice or her accrued untaken annual leave entitlements by the Respondent.
Relevant law regarding unfair dismissal
Section 385 of the Act qualifies a claim for unfair dismissal:
“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”.
The parties are not in dispute as to the following:
(a)The unfair dismissal application was made within the period required by s.394(2) of the Act.
(b)The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c)The Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d)The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties.
The Respondent objects to the Application on the basis that it complied with the SBFDC in dismissing the Applicant. Apart from filing a completed SBFDC checklist, there is no evidence before me whatsoever as to the Respondent’s asserted compliance with the SBFDC. I therefore dismiss the Respondent’s contention that the Applicant’s dismissal was consistent with the SBFDC, and move to consider whether the Applicant’s dismissal by the Respondent on 8 February 2023 was harsh, unjust or unreasonable.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.
“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”.
The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to her capacity or conduct
An employer bears the persuasive onus of establishing that there was a valid reason for an employee’s dismissal.[7]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[8] Further, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[9]
Where the dismissal relates to conduct, the reason for dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[10] The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[11] The onus of proof in relation to misconduct rests with an employer, and the standard of proof is based upon the balance of probabilities (the more serious an allegation, the higher the burden upon an employer to prove that allegation).[12]
Where a dismissal relates to capacity (i.e. where the reason is associated or connected with the ability of the employee to do the job),[13] and there is a dispute as to an employee’s requisite capacity, it is for the Commission to resolve that dispute as a matter of fact.[14]
At around 12.00pm on 8 February 2023, the Applicant received a telephone call from a representative at Training Services NSW who advised the Applicant that a meeting was being arranged to mediate the issues raised in the letter from her Mother (dated 2 February 2023)[15] with the Respondent. Post this telephone call, the Applicant’s Form F2 states:
“At 1.42pm on the same day, my employer Jalal El Hallak phoned me stating in a sarcastic tone, what Training Services had spoken to him about outlining the points my mother raised in her letter. Jalal continued to say that he was done and sick of hearing these complaints and that he is returning to the shop, that once he arrives I am to immediately leave the premises and never to return and to have my uniforms together. Jalal then hung up on me.
At 2.07pm, Jalal entered the salon approaching me saying that he will drive me home. I declined and said that I will get someone else to drive me home. Jalal then walked away from me, I then said “Is this it?”. Jalal said, “Yes this is it…leave!”. I was upset and in shock at what had happened, I called my mother who was at work, Jalal then yelled out to me in the shopping centre from a distance saying “EDEN! RETURN YOUR UNIFORMS TOMORROW!”, he then must have realized I had a funeral to attend to the next day as I had request to have the day off and then said, “OR FRIDAY!”. I replied with, “You will get your uniforms after you pay me out” with my mother still on the phone.”[16]
During the hearing on 17 May 2023, the Applicant gave the following oral evidence (whilst under oath) as to her dismissal:
“DEPUTY PRESIDENT: All right, so Ms McGinty, do you want to go through in your own words, what you say occurred on 8 February 2023?
APPLICANT: Yes. So, I started work that morning, at 9 o’clock.
DEPUTY PRESIDENT: Sorry, can you speak up?
APPLICANT: I started work that morning, at 9 o’clock. While I was working I got a phone call, and I asked the manager or the staff that was on, if I could go outside for a second, because we were very quiet, to like, see who it was that called me. So, I went outside and I listened to the voicemail and it was Janine(?) from Training Services New South Wales. I then tried to call her back. She didn’t answer me. But then she called me back while I was in the salon, so I answered it and I walked out of the salon. She then went through points of things that my mum had brought up in an email that she’d sent to her, stating that I wasn’t being paid properly, I wasn’t getting paid properly, I – no superannuation was sent to me, I never once received a pay slip, and it was just confirming that all of these points are correct. She then said to me she was going to organise a mediation meeting between me and Jalal, and I forgot that day because I’d tried for many, many months to ask for my payslips, my superannuation, and I never once received it. So, I thought that’d (indistinct) who mediated it. So, I then hung up from her. I went back into the salon, went about my day’s work. I was then washing one of the staff’s hair when I got a call from Jalal.
I answered it, and he was sarcastically saying to me, all the things that Janine had brought up, with not being paid properly, then not being trained properly, that my staff won’t train with me properly, that’s what he was saying to me. And he basically said, ‘I’m sick of it, I’m sick of you and your mother. I’m returning to the shop in 20 minutes. When I get there, you’re going to immediately leave, and get all your uniforms together.’ And then he hung up on me. And then I was in a pretty state of shock, so I called my mum and I was crying, and explained it to her. Like, and then he walked in the salon and he could see I was crying, and my mum stayed on the phone, and he walked up to me and he said, ‘Come, I’ll take you home.’ I said, ‘No, it’s okay, I’ll get someone to pick me up.’ He then walked away from me. So, I walked up to him and I said, ‘Is that it?’ He said, ‘Yes, that’s it, (indistinct). So, I left the salon and I was walking through the centre, when he yelled out to me. He said, ‘Eden’, and I said, ‘Yes’, and he said, ‘Make sure you return those uniforms to me by tomorrow’. And then he realised that I had the funeral on Saturday, so he said, ‘Or Friday’, and then I said, ‘You’ll get the uniforms when you pay me out.’
DEPUTY PRESIDENT: Okay, thank you. And have you been paid out all your entitlements?
APPLICANT: No, I wasn’t even paid the days that I worked that week.”[17]
Mr Hallak, despite the opportunity to do so, asked no questions of the Applicant concerning her evidence.[18]
During the hearing on 17 May 2023, Mr Hallak gave the following oral evidence (whilst under oath) as to the Applicant’s dismissal:
DEPUTY PRESIDENT: So, Mr Hallak, what do you say occurred on 8 February 2023?
MR HALLAK: On 8 February we came into work. We were having a lovely day at work. I offered to leave the salon to go and pick up some supplied on the day. And then I got a phone call from MEGT, Nicole, and said, ‘We had a meeting with Eden about a week before, and she’s claiming that she’s treated unfairly in the salon. And I told Nicole, I just – ‘I treat her like my own child, you know, like, I give her lunch, I buy her lunch, I look after her, and I’ve gone out of my way to treat this young girl like my own. She’s been working with me for a year and never had a problem, or any issue with Eden, and we’ve loved Eden here.’ And she said, ‘Oh, she’s got a problem, she’s claiming that you’re treating her unfairly, and you’re that – you’re’ – and then I just rang up Eden on the day and I said, ‘What’s going on with you and your mother? What’s this issue with you and your mother? It’s dragged on for a you happy.’ I said, ‘You need to leave.’ And that was the end of it. And I walked back into the salon and I said, ‘You need to leave, darling. You can’t stay here. Yeah? It’s not working out.’ But she walked out and I said, ‘You can drop your uniforms off and I’ll pay you all your entitlements.’ And that’s my version of the story. And I have two witnesses in the salon on the day that can go on the oath and vouch for what I’m saying. And that was the end of it. I mean, I’ve taken this young girl on and I gave her an opportunity. I looked after her. And then when the mother interfered, all the problems eroded (sic). Yeah? And you can speak to Eden, and Eden will vouch for this. I bought her lunch, I trained her, I looked after her, I always made sure she had a break. I paid her correctly. I did – multiple times I’ve taken out Eden and I’ve sat down with her about her wage, and her mother, yeah? The only issue started when her mother started interfering. And I explained to Eden, ‘You’ve got to get your mother not to interfere in your apprenticeship.’ And that’s my version of what happened on the day. And I just told her to leave because I couldn’t deal with it anymore. So, at the end of the day, I told her, ‘You’ll be paid your entitlements.’ I paid her super, and I’ll pay her holiday and whatever’s remaining, which I have on file, once her uniforms are returned. That’s my version of the story on the day.[19]
The Respondent submits that there was a valid reason for the Applicant’s dismissal. In this regard, the Respondent, in its Form F3, makes allegations against the Applicant as to poor performance, failure to follow instructions, inappropriate behaviour, conflict of interest, and bullying. The Respondent says that the Applicant received verbal warnings as to these matters, which have been diarised.
The difficulty with the foregoing allegations of the Respondent is that they are not supported, in any shape or form, by evidence.
Having regard to the evidence of the Applicant and Mr Hallak given under oath at the hearing, the text message exchanges between the Applicant’s Mother and Mr Hallak between September 2022 and January 2023, and the letter from the Applicant’s Mother to Training Services NSW, I find that the reason for the Applicant’s dismissal was her making complaints or inquiries (through her Mother) as to her on-going terms and conditions of employment at the Respondent. Such a reason is not sound, defensible or well founded. Rather, in the facts and circumstances of this case, this reason is capricious and spiteful. In making this finding, I specifically reject the allegations of the Respondent, as made by Mr Hallak, that the reason/s for the Applicant’s dismissal concerned any conduct or performance issues on her part.
I conclude that the Respondent had no valid reason to dismiss the Applicant from her employment. This leans toward a finding that the Applicant’s dismissal was harsh, unjust and unreasonable.
s.387(b) - Whether the Applicant was notified of the valid reason; and s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to her capacity or conduct
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[20] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit, plain and clear terms.[21]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra[22]:
“the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”[23]
Given my finding that the reason relied upon by the Respondent to dismiss the Applicant is not a valid reason, I treat the criteria under s.387(b) and (c) of the Act as neutral considerations in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
As noted by a Full Bench of this Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present”.[24]
There were no submissions made by either party regarding s.387(d) of the Act. I therefore consider this criterion as a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before her dismissal
A warning for the purposes of s.387(e) of the Act must clearly identify:
· the areas of deficiency in the employee’s performance;
· the assistance or training that might be provided;
· the standards required; and
· a reasonable timeframe within which the employee is required to meet such standards.[25]
In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[26] In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.[27]
As the Applicant’s dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. Indeed, there is no evidence before me of any unsatisfactory performance issues concerning the Applicant’s employment with the Respondent.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))
The Respondent is a small business employer. There is no evidence to suggest that the size of the Respondent’s enterprise likely impacted upon the procedures it followed in effecting the Applicant’s dismissal.
The absence of a dedicated human resource management specialist does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment”.[28]
Neither party put forward substantive or relevant submissions that go directly to either of the criterion under ss.387(f) and (g) of the Act. I therefore treat both of these criterion as neutral considerations in this case.
s.387(h) - Any other matters that the Commission considers relevant
Procedural fairness is one factor that the Commission may take into consideration under s.387(h) of the Act when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.[29] Ordinarily, procedural fairness requires that an allegation be put to a person and that they be given an opportunity to answer it before a decision is made.[30] Further, although s.387(d) of the Act does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all the circumstances and taken into account under s.387(h).[31]
In this case there has been a total absence of procedural fairness afforded to the Applicant in effecting her dismissal. This weighs towards a finding that the Applicant’s dismissal was harsh, unjust and unreasonable.
I have found that not only was there no valid reason for the Applicant’s dismissal, but that the Applicant did not engage in any misconduct or poor performance in the lead up to her dismissal by the Respondent. This weighs towards a finding that the Applicant’s dismissal was harsh, unjust and unreasonable.
It has long been established that the effects of dismissal on the personal or economic situation of a dismissed employee may be taken into consideration under s.387(h) of the Act.[32] The unchallenged evidence is that the Applicant was a minor undertaking an apprenticeship/traineeship at the time of her instant dismissal, which Mr Hallak (as decision-maker in determining to dismiss the Applicant without notice) was obviously well aware of. This weighs towards a finding that the Applicant’s dismissal was harsh, unjust and unreasonable.
Was the Applicant’s dismissal unfair?
I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.[33]
In relation to the criterion set out under s.387 of the Act, I have found that:
(a) various criterion weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(b) other relevant criterion are neutral considerations.
In view of the findings and conclusions set out in this decision, I find that the Applicant’s dismissal was unfair (i.e. harsh, unjust and unreasonable within the ordinary meaning of those terms).
Remedy
The Applicant does not seek reinstatement, nor do I consider it appropriate given the total breakdown in the employment relationship. The issue of remedy therefore turns to whether compensation should be awarded and, if so, its quantum.
In the facts and circumstances of this case, I consider that an award of compensation to the Applicant to be an appropriate remedy for her unfair dismissal.
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement:
“392 Remedy—compensation
…
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”.
Section 392(6) of the Act sets out the method for calculating the total amount of compensation. It reads:
“(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.”
Calculation of compensation
Evidence was not tendered during the hearing by the parties in relation to the matters specified under s.392 of the Act. Directions will therefore be issued to enable the parties the opportunity to engage with these matters prior to any order for compensation being made. An Order dismissing the Respondent’s SBFDC objection will also be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Mary McGinty (Applicant’s Mother), appeared for the Applicant.
Mr Jalal El Hallak, Director, appeared for the Respondent.
[1] Transcript, PN5-PN50.
[2] Ibid, at PN108.
[3] Ibid, PN102, PN149-PN155, PN162, PN171-PN181.
[4] Form F3, Item 3.1, at [1].
[5] Apprenticeship/Traineeship Training Contract, p.5.
[6] Ibid.
[7] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
[8] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[9] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[10] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520, 263 IR 1, at [28].
[11] King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019, at [23] to [24].
[12] Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth), s.140.
[13] Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031, at [14].
[14] See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.
[15] See paragraph [15] of this decision.
[16] Form F2, Item 3.2, at [1.3] and [1.4].
[17] Transcript, PN118-PN121.
[18] Ibid, PN122-PN154.
[19] Ibid, PN167.
[20] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[21] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].
[22] [1996] IRCA 568.
[23] Ibid.
[24] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[25] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd[2013] FWC 3034, at [32].
[26] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].
[27] Ibid.
[28] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C), at [21].
[29] Telstra Corporation v Streeter [2008] AIRCFB 15, at [27].
[30] Kioa v West [1985] HCA 81, at [22] (per Wilson J). See also at [11] per Gibbs CJ.
[31] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[32] Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), at [26].
[33] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].
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