Hajrah Gurrahman v Makan 2 Cafe

[2015] FWC 3146

[2015] FWC 3146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hajrah Gurrahman
v
Makan 2 Cafe
(U2014/14783)

COMMISSIONER WILLIAMS PERTH, 14 MAY 2015

Termination of employment.

[1] This matter concerns an application made by Ms Hajrah Gurrahman (Ms Gurrahman or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent identified on the application is Makan 2 Cafe (the respondent).

[2] The applicant was self represented at the hearing of this matter and Mr Hassan the Proprietor of the business represented the respondent. Both gave evidence in support of their respective positions.

[3] At the time of the applicant’s dismissal she was working as a Cook in the respondent’s business. The applicant had been employed since approximately 2012. At the time she was employed she was seeking sponsorship from an employer in order to obtain a skilled migration visa and the respondent agreed to sponsor her accordingly.

[4] At the time the employment ended the respondent had less than 15 employees.

[5] Between the commencement of her employment through to May 2014 when the applicant moved into the position of Cook the applicant was working as the Front Anchor in the restaurant. During that time Mr Hassan received a record number of complaints from customers about her rudeness as demonstrated by a number of complaints listed on Urbanspoon. Mr Hassan was also concerned about other behaviours of the applicant including requiring other employees to drive her home after work and allowing her daughter to attend the restaurant’s cash register which resulted in a shortage of $200 on one evening an amount which was not recovered from the applicant.

[6] During her relatively short period as a Cook she was warned about safety issues in the kitchen including not switching off a deep fryer overnight.

[7] In addition Mr Hassan’s evidence was that he had seen her wearing thongs and no head covering whilst working in the kitchen. The applicant however denies this occurred and a statutory declaration of Syafinez Samduin supports the applicant on this point. The balance of evidence is in favour of finding that this did not occur and this is my conclusion.

[8] There were four Cooks in the restaurant including Mr Hassan and the applicant.

[9] During the period between 6 and 19 October 2014 the applicant was rostered on for only two days being 17 and 18 October 2014.

[10] On Wednesday, 15 October 2014 at 1.19 p.m. Mr Hassan advised all staff including the applicant as follows:

“You don’t have to come to work for now as I’m shutting down the business indefinitely. The present staffs are not up to the work to continue the service. Hence you will need to consider finding a new employer from now as I’m dismissing the entire kitchen workforce. Please be advised.”

[11] Later the same day at 10.30 p.m. Mr Hassan sent all staff a second message as follows:

“Apparently we have one month notice in your employment. Hence I will roster you for next four weeks before reschedule the new operation hours to provide sufficient notification to our customers on the new change of operation hours.”

[12] The following day on Thursday, 16 October 2014 Mr Hassan notified the applicant by text message that the applicant should keep to the previous roster until Sunday.

[13] The applicant replied that she was coughing and didn’t think she would be able to work. The applicant and Mr Hassan swapped text messages about the shift she was rostered to work the next day. The applicant was saying she was coughing and had been prescribed antibiotics and should be okay within a couple of days. Mr Hassan replied that he didn’t have people and needed her to start work because she had been away for too long.

[14] The applicant attended for work on Friday, 17 October 2014 and worked the majority of her shift until another Cook, Adib, came in to cover the end of her shift.

[15] The applicant did not that day express any concern to Mr Hassan about her health.

[16] The following day Saturday, 18 October 2014 prior to her shift commencing the applicant advised Mr Hassan by text message that she did not think she could work that night because of her health.

[17] Mr Hassan replied with a text message telling her that he was sorry but he couldn’t get anyone to cover for her that day and to “Tough it up”.

[18] The applicant advised at lunchtime that she was feeling drowsy because of her medication and would attempt to get Adib to be the replacement for her shift.

[19] Mr Hassan then sent a text message to the applicant stating that her replacement Adib had not come and that obviously she is not coming to work and so he has no choice but to close part of the restaurant that night.

[20] The applicant did not work her shift that night.

[21] Mr Hassan followed up with a message to the applicant as follows:

“We finished here. Monday I will cancel your sponsorship. I had enough of this.. Can’t run a business having to put up with pple bullshit.

We are done for good.”

[22] The applicant replied explaining that she was feeling unwell and in reply Mr Hassan messaged:

“I don’t wish to communicate anymore.”

[23] The applicant says she understood at this point she had been dismissed.

[24] The applicant made this application on 31 October 2014.

[25] On 10 November 2014 Mr Hassan sent an email to the applicant informing her of the respondent’s decision to terminate her employment with one month’s notice and advising her of her obligation to inform the Department of Immigration of their decision to dismiss her.

[26] Considering the above I am satisfied that what occurred on Saturday, 18 October 2014 when Mr Hassan advised the applicant that they were finished, that he would cancel her sponsorship, that they were done for good and that he did not wish to communicate with her anymore was the termination of the applicant’s employment on the employer’s initiative.

[27] With respect to the criteria for considering whether the dismissal was harsh, unjust or unreasonable it seems readily apparent that the reason for dismissing the applicant was the fact that she did not attend for work on Saturday, 18 October 2014 in circumstances where no one else was available to replace her and where Mr Hassan doubted the seriousness of her ill-health and in his words expected her to “Tough it up”. Whilst Mr Hassan says it was not this alone that was the reason for dismissal but also the long-standing concerns about the applicant’s performance it is clear that if the applicant had worked on Saturday, 18 October 2014 she would not of been dismissed.

[28] Whilst the applicant’s absence obviously did cause significant disruption to the respondent’s operations employees aren’t required to attend for duty when they are unwell. In this case there was some evidence Mr Hassan was aware that the applicant had been coughing in the days prior to her dismissal and there was no basis to assume that she was malingering.

[29] Consequently this reason for the dismissal could not be said to be sound, defensible or well-founded and so there was not a valid reason for the dismissal.

[30] It could be said the applicant was notified of the reason for her dismissal by Mr Hassan’s text message but obviously she was not given an opportunity to respond to the reasons for dismissal before it took effect.

[31] There was no refusal by the respondent to allow the applicant to have a support person present because there were not any discussions relating to her dismissal.

[32] There is no evidence that the applicant had been warned that absenteeism in future could lead to her termination or that other performance concerns were likely to lead to her dismissal.

[33] The business is a small business apparently without any dedicated human resource management specialists or expertise and I accept that this has been a significant contributor to the way in which this matter has been handled both in terms of the reason for the dismissal and the lack of procedural fairness.

[34] The applicant has been employed for approximately 2.5 years.

[35] I am satisfied that the applicant’s performance when she was operating in the Front of House role was far from satisfactory and this contributed to her being moved into the kitchen as a Cook.

[36] With respect to the small business fair dismissal code the dismissal was affected without notice or warning and to that extent the respondent has not acted consistently with the requirements of the code. Even if it had not been a summary dismissal the code requires that an employee must be warned verbally or preferably in writing that they risk being dismissed if there is no improvement in their capacity or conduct. In addition the employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.

[37] I am satisfied that the dismissal was not consistent with the small business fair dismissal code.

[38] Considering all of the above then I find that the dismissal of the applicant was unjust and unreasonable and so was unfair.

[39] Turning to consider remedy it is clear that in a small business such as this it would not be appropriate to reinstate the applicant. There is no evidence to suggest that an order of compensation as an alternative would affect the viability of the employer’s enterprise.

[40] The applicant had been employed for approximately 2.5 years.

[41] In my view if the applicant had not been dismissed as she was then because Mr Hassan had been discontented with the applicant’s performance for a period of time the employment was not likely to last more than a further eight weeks.

[42] The applicant has not been able to gain other employment to replace this job during the eight weeks following her dismissal. The applicant’s efforts to mitigate her loss are limited to nine email applications for jobs advertised on Seek all made on 11 November 2014, one email application on 12 November 2014 and two email applications on 4 January 2015. There are lengthy gaps in her efforts to gain another job and consequently any award of compensation should be discounted by 50% for limited mitigation efforts.

[43] Accordingly, an order will be issued requiring the respondent to pay to the applicant an amount of four weeks’ salary less tax within 21 days of the date of the order.

COMMISSIONER

Appearances:

H Gurrahman on her own behalf.

A Hassan on behalf of the respondent.

Hearing details:

2015.

Perth:

April 20.

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