Felicity Bargmann v Stilnovo Pty Limited T/A Murano and Gullotti

[2013] FWC 1080

[2013] FWC 1080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Felicity Bargmann
v
Stilnovo Pty Limited T/A Murano and Gullotti
(U2012/9967)

DEPUTY PRESIDENT MCCARTHY PERTH, 19 FEBRUARY 2013

Application for unfair dismissal.

Background

[1] On 10 October 2012 Mrs Felicity Bargmann (the Applicant) lodged an application for unfair dismissal remedy. She asserted that she had been unfairly dismissed from her employment with Stilnovo Pty Ltd trading as Murano and Gulloti (the Respondent).

[2] It appeared to me that a conciliation conference had not taken place before the application was allocated to me. I therefore listed a telephone conference for 20 November 2012. The Respondent did not attend the conference. I wrote to the respondent on 6 December 2012 requesting an explanation for the non-attendance. No response was received.

[3] On 19 December 2012 I issued Directions requiring the Respondent to provide an outline of submissions and any witness statements upon which they intended to rely upon. I required this material to be provided by 16 January 2013. I also issued a notice of listing for a conference and or hearing to be held on 30 January 2013. The Notices were clearly received by the Respondent as a Mr Gulloti rang my Associate on 19 December 2012.

[4] The Respondent did not provide any documentation nor attend the proceedings on 30 January 2013. My Chambers was not in receipt of any request by the Respondent for an adjournment.

[5] I proceeded on 30 January to hear evidence from the Applicant. She attested to the grounds for her application and provided screen prints of the text messages (see paragraph 13) she referred to in the application lodged.

[6] I adjourned proceedings and wrote to the Respondent requesting an explanation for the non attendance at the proceedings. I requested a response by 8 February 2013. No response to that request was received.

[7] I therefore rely on and accept the evidence of the Applicant.

[8] The Applicant stated that she had been employed by the Respondent in a part time capacity for about two years. The Respondent is a small art gallery in Subiaco. One of the partners or proprietors is a Mr Gullotti.

[9] The Applicant evidenced that prior to her termination she had not been warned about her performance or conduct.

[10] The incident that appears to have led to the dismissal arose on 27 September 2012 when a customer came to the Claremont Quarter Exhibition and enquired about a painting. The customer requested that the painting be placed on hold. The Applicant placed the customers address for inclusion on the mailing list. The customer did not provide her mobile number and apparently was not asked to. Mr Gullotti brought the need for a mobile number contact to be included in contact details to the Applicants attention. The Applicant obtained the customers mobile number from an acquaintance but not from the customer herself and copied it into the visitors book.

[11] On 28 September 2012 the customer returned and informed the Applicant she was no longer interested in the painting. The Applicant removed the “on hold” notation and scratched out the mobile number in the visitors book.

[12] On 29 September 2012 the Applicant was not at work. Another employee rang the Applicant, apparently under direction of Mr Gullotti and requested the customer’s phone number. The Applicant refused to provide the number given that she had not obtained it directly from the customer. She undertook to get permission for it to be provided to Mr Gullotti. Apparently he wanted to ring the customer himself.

[13] A series of text messages followed between Mr Gullotti and the applicant relating to the refusal to provide the mobile number of the customer. Mr Gullotti then rang the Applicant. The Applicant explained to Mr Giullotti that she had not obtained the number directly from the customer and felt it would be inappropriate to ring the customer on that number in the circumstances. Mr Gullotti stated to the Applicant that “he had had enough” and after some discussion gave the Applicant five minutes to get the number and permission from the acquaintance to use it.

[14] The Applicant copied her text message sent to her acquaintance seeking that permission. Mr Gullotti responded almost immediately terminating the Applicants employment.

[15] I find that there was no valid reason for the termination of the Applicants employment.

[16] Arguably the Applicant was not notified of the reason for termination but it was clear it was because of her conduct in not providing the customers mobile phone number to Mr Gullotti. I find that she was not given a proper or reasonable opportunity to respond to the reason. There was no discussion about the termination. The Respondent is a small, if not micro business and that size clearly impacted on the lack of fair procedures for the termination as did the lack of any human resources advice about fair procedures. The Respondent did not provide any documentation including a Small Business Code check list.

[17] I determine that the Applicant was unfairly dismissed.

[18] The Applicant did not seek reinstatement and I am satisfied that reinstatement is inappropriate. I consider that an order for payment of compensation is appropriate in all the circumstances of the case.

[19] The Applicant was in receipt of about $260 per week and has recently obtained other employment. She did seek other employment from the time of her dismissal. I have considered the loss remuneration to be about $4000. I have decided to discount that amount by 25% to allow for contingencies inclusive of any payment in lieu of notice. Therefore I have determined that the compensation to be ordered to be paid to the Applicant to be $3000. The Respondent should pay that amount less any amount required by law to be deducted for tax to the applicant within 14 days of the date of the order issuing.

DEPUTY PRESIDENT

Appearances:

Mr Bargmann for the Applicant

Hearing details:

2013

Perth:

January 30

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