Hayley Howard-Colla v Amjk Pty Ltd T/A Bloom Bar & Lounge

[2020] FWC 6084

[2020] FWC 6084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Howard-Colla
v
AMJK Pty Ltd T/A Bloom Bar & Lounge
(U2020/10849)

COMMISSIONER YILMAZ MELBOURNE, 12 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 10 August 2020, Ms Hayley Howard-Colla made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with AMJK Pty Ltd T/A Bloom Bar & Lounge (Bloom). Ms Howard-Colla was employed as a casual bartender, placed on the JobKeeper program and directed to perform other duties when Bloom nightclub was closed to the public due to COVID-19 restrictions. Ms Howard-Colla challenged the duties assigned to her and questioned why she was dismissed soon after receiving a written warning. Bloom submit that the termination of Ms Howard-Colla’s employment was fair given her conduct. Ms Howard-Colla is seeking a formal apology and compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

Background

[6] The uncontested factual background concerning Ms Howard-Cola’s employment in this matter is as follows:

•  She was first employed on 7 July 2018 in the role of casual bartender.

•  She submitted that she worked an average of 8-10 hours 1 per week during peak periods and Bloom tendered in evidence payslips which showed an average of 5.98 hours of work per week;2

•  Bloom is a nightclub therefore the hours of work for a bartender commenced late Friday into the following morning, the hours of operation was six hours and in the Summer they may have operated on additional nights, namely Saturday night; 3

•  Her hours of work were arranged around her university timetable; 4

•  While her hours of work varied, her engagement was accepted as regular and systematic and she had a reasonable expectation of continuing employment on a regular and systematic basis;

•  She received her first Jobkeeper payment in April 2020;

•  Following eligibility for JobKeeper, she agreed to perform alternative duties and work 15 hours per week, until she raised her objections in June 2020;

•  Her employment was terminated by Bloom on 2 August 2020;

•  Her employment was terminated for reasons relating to conduct;

•  She satisfied the minimum employment period, met the salary threshold and was covered by a modern industry Award - the Hospitality Industry (General) Award 2020 in the classification of food and beverage attendant; and

•  She filed her application within the statutory time limit.

The hearing

[7] There being contested facts involved, a hearing was scheduled for 29 October 2020.

Witnesses

[8] Ms Howard-Colla gave evidence on her own behalf and submitted a statement of evidence from Ms Rochelle Anderson, a former bartender at Bloom and friend. Bloom did not contest the statement from Ms Anderson.

[9] The following witnesses gave evidence on behalf of the Respondent:

•  Mr Aaron Cashion, venue manager.

•  Ms Shae McCormack bar/venue manager

Submissions

[10] Ms Howard-Colla submits that after being placed on Jobkeeper in April 2020, she felt uncomfortable performing certain tasks, which she says she had not had adequate training and Bloom did not provide appropriate PPE. She submits that she raised her concerns on 25 June 2020 to Mr Cashion via Facebook messenger and on 6 July 2020 an arrangement had been agreed between them, where her manager would send her a list of tasks to be performed in her allocated six hour shift each week.

[11] On 15 July 2020, Ms Howard-Colla submits she attended work and completed the tasks on her list including additional tasks. She submits she informed management on 22 July 2020 that she would not be available to perform her shift due to the death of a friend and co-worker. Ms Howard-Colla tendered in evidence a Facebook message to Mr Cashion at 11.40am that she would not be in. On the same day, Ms Howard-Colla had an appointment to meet with Ms McCormack, another venue/bar manager. Ms McCormack texted Ms Howard-Colla to remind her of the meeting and Ms Howard-Colla responded that she would not be in. The meeting was rescheduled for 29 July 2020. Later in the afternoon of 22 July 2020, Ms Howard-Colla submits she was asked to keep an eye on her emails for a letter addressed to her.

[12] On 23 July 2020 Ms Howard-Colla submits she contacted her employer to enquire about the correspondence which she says she did not receive.

[13] On 28 July 2020 Ms Howard- Colla messaged her manager about the tasks she would be required to perform on 29 July 2020 and to make arrangements to be let into the venue.

[14] On 29 July 2020 Ms Howard-Colla made her way into work with a support person to her scheduled meeting with Ms Shae McCormack. On arrival, another manager, Mr Adam Metwally, was also present. Ms Howard-Colla was handed a warning letter which was emailed to her on 22 July 2020. Ms Howard-Colla requested and was granted 24 hours to respond by email.

[15] On 29 July 2020 in the email response, Ms Howard-Colla asked why she had not received a verbal warning before the written letter, and she queried the reasons for the warning.

[16] Ms Howard-Colla submits she received advice on 1 August that her employment was terminated and that her services were “no longer required”. 5

[17] On 3 August 2020 Ms Howard-Colla acknowledged receipt of the email and questioned why her employment was terminated so quickly and as she received no response, she followed up again on 6 August 2020. Following her email, she received a response from her manager Mr Cashion where he advised he would prefer to discuss the matter, but Ms Howard-Colla did not feel comfortable discussing the situation so indicated her preference was to communicate via email only.  6

[18] Ms McCormack gave evidence that on 15 July 2020, she had made arrangements with Ms Howard-Colla to meet on 22 July 2020 to discuss Bloom’s expectations of staff. Ms McCormack stated that she offered to speak to Ms Howard-Colla because both other managers expressed frustration with her attitude and behaviour. 7 She submits the time and date was arranged around Ms Howard-Colla’s availability and therefore she arranged her working week, including interview times around the scheduled meeting.

[19] Ms McCormack gave evidence that she texted Ms Howard-Colla a reminder of the meeting 1 hour before its scheduled time. She stated that she was annoyed that Ms Howard-Colla had not advised her that she was not intending to come in to work, or to attend the meeting until after she sent her text, when she had ample time well before the day to advise her. She gave evidence that she doubted that Ms Howard-Colla would have advised her if she had not texted her the reminder. 8

[20] Ms McCormack also gave evidence that she was disappointed that the face to face meeting on 29 July 2020 did not elaborate on the reasons for the warning as Ms Howard-Colla left and advised that she would respond in writing. 9

[21] Mr Cashion gave evidence that Bloom closed its doors to the public on 19 March 2020 due to COVID-19. On 30 March 2020, Ms Howard-Colla was moved onto JobKeeper and asked to work 15 hours per week to help with cleaning of the premises during the shutdown. Mr Cashion stated that during the lockdown, the Directors renovated the premises in preparation for its opening and asked staff that were eligible for JobKeeper to contribute in its preparations. The proposal was that staff work 15 hours per week. Ms Howard-Colla was registered for JobKeeper and asked to contribute in the same manner.

[22] On 25 June 2020, Ms Howard-Colla sent a Facebook message to Mr Cashion challenging the duties and hours of work. Mr Cashion submits that the cleaning duties were part of her usual job description, yet she challenged why she was required to perform cleaning duties which she described were outside her usual job description.

[23] He further gave evidence that Ms Howard-Colla was demanding and difficult when duties were allocated to her, which made it challenging to work with her. Despite the difficulties, he persisted and reached a compromise agreement with her that she would work six hours per week, and if the hours of work were not completed that she would make up the time in the following week. This process of negotiation took two weeks and all the while Ms Howard-Colla did not work but was paid the JobKeeper sum. 10 Mr Cashion tendered in evidence the text exchanges between himself and Ms Howard-Colla.

[24] Mr Cashion also gave evidence that Ms Howard-Colla had a tendency to not turn up for shifts with inadequate notice, leave early, or come and go during her shift. He also submitted that she often refused to work her shifts and had a negative attitude towards her managers. During cross examination, Mr Cashion explained that she was difficult, and she expected that managers accommodate her demands. Mr Cashion stated that he made known his disapproval of Ms Howard-Colla’s behaviour to her on a number of occasions.

Was the termination unfair?

[25] Section 387 of the FW Act requires me to consider the following matters:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

Was there a valid reason? (s.387(a))

[26] Bloom provided an email on 1 August 2020 to Ms Howard-Colla that stated “we’re sorry to let you know your term of employment with us will end as of Sunday 2^nd of August, as your assistance is no longer required. Please consider this your last day of work.” 11

[27] Ms Howard-Colla disputes that there was a valid reason for the termination of employment as she received an undated written warning on 29 July 2020. She also disputed the reasons for the warning in writing via email from her to Mr Cashion on 27 July 2020.

[28] Bloom submit that the written warning was emailed to Ms Howard-Colla on 23 July 2020 after she failed to show for work and for the meeting scheduled with Ms McCormack on 22 July 2020. Bloom submit that the concerns over Ms Howard-Colla’s conduct had been the reason for the scheduled meeting, and which subsequently had to be rescheduled to 29 July 2020.

[29] Bloom submit that the reason for the termination of employment after the written warning was due to its frustration arising from her conduct, namely again her failure to acknowledge her behaviour, and what appeared to be no prospect of change by her.

[30] The warning letter describes Ms Howard-Colla’s conduct as disrespectful behaviour and insubordination. Mr Cashion’s evidence confirmed the concerns being her failure to follow lawful directions and her failure to commit and present for work over the period May to July 2020. The letter in my opinion was poorly drafted.

[31] As the evidence supports the contention that Ms Howard-Colla refused reasonable and lawful directions and given her poor attendance record, Bloom was entitled to terminate her employment, and as a casual employee Ms Howard-Colla was not entitled to notice.

[32] Having considered the evidence, on balance, I find that Bloom had a valid reason to terminate Ms Howard-Colla’s employment.

Notification and opportunity to respond (ss.387(b) and (c))

[33] The matters in Section 387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct.

[34] Ms Howard-Colla received a written warning on 29 July 2020 in person, but Bloom submitted that the warning was emailed to her on 23 July 2020. Interestingly, Ms Howard-Colla received all text messages, Facebook messages and other emails, but insisted that she did not receive the email of 23 July 2020.

[35] Ms Howard-Colla did have an opportunity to respond on 29 July 2020 after she failed to attend the scheduled meeting on 22 July 2020. I accept the evidence of Ms McCormack that the meeting on 29 July 2020 and previous attempts to meet with Ms Howard-Colla was intended to discuss with her their concerns but did not eventuate because of Ms Howard-Colla’s behaviour. I am satisfied that Ms Howard-Colla knew that Bloom had concerns with her conduct as she expressed her observations that the impending meeting with Ms McCormack sounded serious, 12 and the meeting scheduled for 29 July 2020, she had considered serious enough to bring along a support person without any prompting. However, while giving evidence, Ms Howard-Colla rejected that she knew the purpose of the meeting. I found her witness evidence disingenuous and conflicting.

[36] Mr Cashion attempted to discuss the reasons for the termination of employment with Ms Howard-Colla, but she refused and insisted on communicating in writing via email. In my opinion, the process was hampered by the conduct of Ms Howard-Colla by cancelling her shifts and attendance at the scheduled meeting and by avoiding conversations. The process in my opinion was further complicated by the usual manner of communication accepted by Bloom that being via Facebook messenger, text or email instead of face to face.

[37] Bloom provided a written warning with an expectation that it would prompt change in Ms Howard-Colla’s conduct, but her response suggested to them that there would be no change in her behaviour. Bloom’s decision to dismiss her employment was motivated by her email response rather than any evident conduct following the warning. Ms Howard-Colla was not entitled to notice, and in my opinion her unreliability and lack of co-operation was likely to result in a termination despite the timing of the warning letter.

Support person (s.387(d))

[38] Bloomdid not advise Ms Howard-Colla that she could have a support person at the meeting on 29 July 2020. While it is not required that Bloom offer the opportunity, it is required that Bloom do not deny the opportunity for a support person. The evidence was that Ms Howard-Colla’s support person was permitted to attend the meeting.

[39] There was no face to face meeting for the termination, instead an email was sent to her advising her of her termination of employment. Communicating via email, text or Facebook messenger was a preferred approach by both parties, even though not best in such matters. Consequently, the issue of a support person was irrelevant at the time of the termination of employment.

[40] I do not regard this consideration in Ms Howard-Colla’s favour with respect to whether the dismissal was harsh, unjust or unreasonable.

Unsatisfactory performance (s.387(e))

[41] The dismissal did not relate to unsatisfactory performance, but rather unacceptable conduct regarding her attendance and refusal to perform certain duties. Ms Howard-Colla received a warning before her termination of employment, however, the decision to terminate her employment was motivated by her response rather than her conduct following the warning. I do find this consideration in Mr Howard-Colla’s favour in terms of whether the dismissal was harsh, unjust or unreasonable. While I consider that a termination of employment was inevitable within a short time frame, procedurally, the termination after the warning, and before any further scheduled shift, in my opinion was unfair. It begs the question of the purpose of the warning and noting that it was not a show cause letter, if the decision to terminate was based on her response.

Size of the enterprise and human resource management (s.387(f) and (g))

[42] While Bloom did not identify itself as a small employer, Mr Cashion submitted it employed 25 casuals in total. It was unclear if all 25 casuals were employed at the time of Ms Howard-Colla’s termination of employment. Despite the number of casuals, Bloom had no HR support or resources to guide its decision concerning reason for the termination of employment and its process. I do consider that the size of the business and its lack of HR resources including its financial pressures impacted on the procedures followed in effecting the termination of employment.

Other matters (s.387(h))

[43] I am satisfied that Ms Howard-Colla’s employment was protected from unfair dismissal, and Bloom’s evidence of Ms Howard-Colla’s conduct in terms of co-operation/ refusal to perform duties and reliability was persuasive. Mr Cashion described her as not being a team member and her refusal to co-operate, particularly in the context of Bloom accessing JobKeeper in order to retain her position, while other staff including managers were ineligible placed additional and unwarranted stress on Mr Cashion on top of the financial debt borne by the business. Having observed Mr Cashion while giving evidence, his frustration with managing her and its impact on him to open the premises when she elected to work was evident. Her conduct towards Mr Cashion was confrontational and somewhat threatening, and this was evident in the Facebook messages exchanged between them.

[44] This matter in my opinion is indicative of the difficulties that often confront businesses without HR resources that attempt to follow a perceived fair procedure but grow weary or impatient with the process. Ms Howard-Colla’s preference was not to work, but simply receive the full JobKeeper payment, as she considered it her entitlement. Bloom on the other hand attempted to direct Ms Howard-Colla to perform reasonable alternative duties while it was eligible for JobKeeper to cover her wages, which it had a right to do. Unfortunately, its process in managing her unwillingness to work or follow lawful directions fell short of procedural fairness. The warning letter, while its objective of forcing change in her conduct failed, it immediately terminated her employment based on an assessment of her response to it instead of giving her an opportunity to address her conduct after initiating a disciplinary procedure.

[45] The deficiency in Bloom’s process is evident in the poorly drafted warning and termination letter. The concerns with Ms Howard-Colla’s conduct while contained in the warning letter, was not altogether clear due to its confusing language. The language also caused Ms Howard-Colla to address matters in her response instead of Bloom’s actual concerns, which were her attendance record and failure to follow lawful directions. Bloom’s concerns with Ms Howard-Colla’s conduct could have been explained if the parties met face to face.

[46] During the hearing, while Mr Cashion was cross examined, it became apparent that Ms Howard-Colla underestimated the effort and inconvenience on Mr Cashion by her expectation that he grant her access to the premises when she saw fit to turn up instead of at a pre-arranged start time. 13

[47] Bloom’s procedure fell short due to its own acceptance of communication via Facebook messaging, text or emails in the place of face to face meetings. While employees like Ms Howard-Colla also favoured the same form of communication, the approach failed both parties. Performance management matters are best dealt with face to face and confirmed in writing after the face to face meeting. Bloom also would have benefitted from proper advice in relation to its process and its drafting of warning and termination letters.

Conclusion regarding harsh, unjust or unreasonable

[48] Taking into account the matters referred to above, I am satisfied that the process of termination of Ms Howard-Colla’s employment by Bloom was unfair. Bloom had taken the steps of issuing a warning but did not follow through with the process, when it made its decision based on her email response and after having considered that there was no likelihood that her conduct would change.

[49] Having had the benefit of Ms Howard-Colla’s evidence balanced against Boom’s evidence, Ms Howard-Colla accepted no responsibility for her conduct, and therefore, in my opinion I think unlikely that she would satisfactorily address Bloom’s concerns about her conduct.

Remedy

[50] Ms Howard-Colla is seeking compensation and an apology.

[51] Reinstatement of Ms Howard-Colla is not practicable as the relationship is irreparable. In the circumstances, having determined that while Bloom had a valid reason for the dismissal, the procedure was deficient, therefore, I now consider the appropriateness of an order for compensation. An apology is not considered by way of remedy.

[52] In considering compensation, I am required by Section 392(2) of the FW Act to consider the following:

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

[53] No submissions were put forward by Bloom regarding the impact of any order on the viability of the enterprise, but it did provide evidence of its reliance on JobKeeper to retain staff as it ceased trading due to the COVID-19 pandemic restrictions and that debt had impacted the business.

[54] Ms Howard-Colla was a regular and systematic casual employee since July 2018 and worked an average of 5.98 hours per week. I do not accept her statements that she worked 8-10 hours per week. The evidence did not support this.

[55] Ms Howard-Colla in evidence stated that she had not sought employment nor obtained employment since her termination of employment.

[56] I make no deduction for misconduct as this consideration is not relevant, but I do make a deduction for failure to provide further mitigating evidence in relation to Ms Howard-Colla’s conduct.

[57] In consideration of the evidence, on balance, I consider that Ms Howard-Colla would have been employed for a further period of two weeks following her warning. I deduct a week due to her conduct which led to her termination of employment.

[58] I have calculated a compensation figure of $169.23 gross, based on her average weekly hours worked per week in the period July 2019 to April 2020 and paid at her ordinary hourly rate of $28.30 per hour. This figure is to be paid to Ms Howard-Colla within 7 days less applicable tax.

[59] An Order will be issued concurrently with this decision requiring the payment of this compensation less appropriate taxation within 7 days.

COMMISSIONER

Appearances:

Ms H. Howard-Colla for herself

Mr A. Cashion for the Respondent

Hearing details:

2020
Melbourne (by Microsoft Teams)
29 October

 1   Form F2, Applicant’s Statement of Evidence and Applicant’s outline of argument.

 2   Payslips of July 2019 to March 2020 attached to Respondent’s outline of argument.

 3   Witness evidence of Mr Cashion at 14:14.

 4   Witness evidence of Ms Howard-Colla and Mr Cashion.

 5   Email regarding termination of employment from Bloom to Ms Howard-Colla, 1 August 2020.

 6   Text screen shots attached to form F2.

 7   Transcript at 39:33.

 8   Transcript at 40:21 and 41:22.

 9   Transcript 44:52.

 10   Transcript at 57:34.

 11   Email regarding termination of employment from Bloom to Ms Howard-Colla, 1 August 2020.

 12   Text messages between Ms Howard-Colla and Ms McCormack, 15 July 2020.

 13   Transcript at 1:06:34.

Printed by authority of the Commonwealth Government Printer

<PR724503>