Jussara Argemiro De Souza v Man Cave Barbershop Leasing Pty Ltd
[2023] FWC 2755
•20 OCTOBER 2023
| [2023] FWC 2755 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jussara Argemiro De Souza
v
Man Cave Barbershop Leasing Pty Ltd
(U2023/4309)
| COMMISSIONER SIMPSON | BRISBANE, 20 OCTOBER 2023 |
Application for an unfair dismissal remedy – Jurisdictional Objection upheld – Application dismissed.
On 18 May 2023, Ms Jussara de Souza (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with the Respondent as Man Cave Barbershop ABN 9862950194 and the owner being Mr Abbas Maqbool, Man Cave Barbershop Leasing Pty Ltd. The Applicant was engaged as a barbershop manager of the barber salon business at the Westfield Coomera shopping centre. The evidence was that Ms de Souza was employed on a casual basis earning $37.40 per hour and working 20 hours per week.
The matter was allocated to my chambers on 28 June 2023. Mr Maqbool had not been able to be contacted by Commission staff to participate in conciliation as he was overseas, and no Form F3 Response had been filed at this stage. Ms de Souza referred Commission staff to Mr Ahmed Mandalawi and provided contact details. A notice of listing was sent from my chambers that included the contact details for both Mr Maqbool and Mr Ahmed Mandalawi. I listed the matter for an initial directions hearing by telephone on 10 July 2023.
On 4 July 2023 email correspondence was received in chambers from Youssef Abouelnasr from Hansons Lawyers advising that he was acting for Man Cave Barbershop Coomera Trading Pty Ltd, the sole director of which is Ahmed Mandalawi. The correspondence advised that Mr Mandalawi had been incorrectly served as the employer of Ms de Souza, as at the time of her termination her employer was Man Cave Barbershop Leasing Pty Ltd, and Man Cave Barbershop Coomera Trading Pty Ltd had only recently purchased the business. It was claimed in the correspondence from the law firm that Man Cave Barbershop Trading Pty Ltd advocated for Ms de Souza and asked that Ms de Souza not be terminated at the time, as it was during this time that the business was being purchased.
The correspondence advised that Mr Maqbool was the director of Man Cave Barbershop Leasing who sold the business to Mr Ahmed Mandalawi on 26 June 2023, which was over six weeks after the termination. Mr Maqbool subsequently advised that Mr Mandalawi had purchased 50% of the business and he was going to change the trading company to his company when the lease was assigned. Hansons Lawyers responded to this email advising that Man Cave Coomera Trading Pty Ltd did not own any part of the business up until 26 June 2023. It was advised Man Cave Coomera Trading Pty Ltd was established purely for the purchase of the business. Hansons Lawyers set out that Mr Ahmed Mandalawi was in the business at the time of dismissal under License for the company prior to the purchase completing as is normal with a purchase of business but the employer was Man Cave Barbershop Leasing Pty Ltd, and made it clear that Man Cave Barbershop Coomera Trading Pty Ltd was not allowed to stop Man Cave Barbershop Leasing Pty Ltd from dismissing Ms de Souza.
At the directions hearing on 10 July 2023, I determined to exercise power to amend the application such that Man Cave Barbershop Leasing Pty Ltd was the Respondent to the application. The matter was listed for a hearing of jurisdictional issues and the merits of the application by video using Microsoft Teams on 17 August 2023. A Portuguese interpreter attended the proceeding on 17 August at the request of Ms de Souza. As Ms de Souza does speak English, she advised that she was content to proceed on the basis that she would request assistance from the interpreter if needed.
At the commencement of the hearing, the parties agreed for the matter to be conducted as a determinative conference. Ms de Souza appeared on her own behalf and Mr Raza (Abbas) Maqbool, the Respondent’s owner during the Applicant’s employment, and Mr David Siciliani, a former employee, appeared for the Respondent.
Ms de Souza filed written material and evidence on 25 July in the form of two photographs and a statement. Ms de Souza said the photos showed her with the security staff and being removed from the workplace. The statement was prepared by the lawyers acting for Mr Mandalawi and it confirmed that the Respondent in this matter was the employer of the Applicant at the time of the termination. The Applicant filed further material on 31 July 2023 in the form of a statement at pages 9 to 11 of the digital court book. The Applicant adopted this statement as her sworn evidence. The Applicant also filed copies of text messages.
The Respondent filed submissions on 24 July 2023 and sought to rely on the witness statements of Mr Maqbool and Mr Siciliani. Mr Maqbool and Mr Siciliani both adopted their statements as their sworn evidence. Mr Maqbool filed a further statement on 7 August 2023 which he also adopted as sworn evidence.
The Applicant was summarily dismissed from her employment on the Respondent’s initiative on 10 May 2023. The Application was filed on 18 May 2023, within 21 days of the dismissal. The Applicant commenced employment with the Respondent’s business in July 2019 and completed a period of employment of at least the minimum employment period.
The Respondent did not file a Form F3 response to the Applicant’s application, however stated in its submissions that it was a small business employer and that its dismissal of the Applicant was consistent with the Small Business Fair Dismissal Code (the Code). Accordingly, this created a jurisdictional issue as to whether the dismissal was consistent with the Code.
LEGISLATION
Section 385 of the Act states that a person has been unfairly dismissed if:
(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.
Section 388 of the Act states:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
The Small Business Fair Dismissal Code states:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business 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. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
In this matter, I am first required to determine if Ms de Souza’s dismissal was in accordance with the Code. If I determine that Ms de Souza’s dismissal was not in accordance with the Code, it is necessary for me then to determine if the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which states:
“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 the 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.”
Does the Small Business Fair Dismissal Code apply?
Ms de Souza said in her statement that she worked in other stores owned by Mr Maqbool before the Coomera store. Mr Maqbool said he did not own those other businesses. Mr Maqbool was the owner and director of the Respondent at the time of the Applicant’s dismissal. He stated that that the Respondent employed approximately 8 or 9 employees at the relevant time. Ms de Souza contended that the Respondent had 12 employees. In his witness statement, Mr Maqbool identified another business under his control, Dastaan Products. At the hearing, Mr Maqbool said that he was the sole employee of Dastaan Products, and that there were no other entities that either he or the Respondent controlled. Without further evidence in relation to the issue, I accept that there were no other employees of associated or related entities, with the result that the Respondent employed fewer than 15 employees and was therefore a small business employer at the time of the Applicant’s dismissal.
Accordingly, the Code applies in relation to Ms de Souza’s dismissal.
SUBMISSIONS AND EVIDENCE
Background
The Applicant stated that she was dismissed without notice by the Respondent on 10 May 2023, and that there was no reason for her dismissal. She seeks compensation for lost earnings.
The Respondent submitted that there were three reasons for its summary dismissal of the Applicant, two of which constituted serious misconduct. The Respondent therefore submitted that the dismissal was in accordance with the Code. It was submitted that the Applicant had engaged in serious misconduct by stealing funds from the Respondent and by falsifying business records which led her to earning commissions and bonuses to which she was not entitled. The Respondent also stated that Ms de Souza’s dismissal was the result of her unprofessional behaviour in the workplace.
Mr Maqbool said that late last year he started a move to the United Arab Emirates (UAE) by relocating there from Australia at the beginning of this year, to set up a new business venture in the UAE which includes scouting for a barbering salon, meeting potential investors and looking into distributor supply networks. He said consequently he was forced to withdraw from the day to day running of the Coomera barbershop store operations and decided to bring in a business partner Mr Mandalawi who purchased 100% of the business in June 2023 (after the dismissal of Ms de Souza).
It is clear from the evidence that Mr Maqbool remained the owner of the Respondent, however entered a commercial understanding with Mr Mandalawi where Mr Mandalawi would purchase the business from him in June 2023. Mr Maqbool remained the owner of the business at the time of the dismissal.
Mr Maqbool said that he checked in with his bookkeeper mainly with phone calls and What’s App messages to monitor the performance of the business and communicated with other members of staff occasionally. Mr Siciliani confirmed in his evidence that he communicated with Mr Maqbool about the business from time to time when Mr Maqbool was away.
Removal of money from till
Mr Maqbool said that over the six months prior to May 2023, problems with Ms de Souza’s performance began to escalate.
Ms de Souza stated that in the months leading to her dismissal she had observed other employees stealing money from the till, and that to protect the money and Mr Maqbool’s business, she removed money from the till and placed it in her work area where it could not be accessed by others. She submitted that she was doing this in compliance with the directions of the person known as Mr Mandalawi, who she said Mr Maqbool had brought into the business and who was the intended future owner of the business. Ms de Souza stated that in the beginning of November 2022, Mr Maqbool had introduced Mr Mandalawi as the “new owner” of the Respondent’s business and that Mr Mandalawi had allowed her to remove money from the till. Ms de Souza claimed that Mr Mandalawi said to her not to listen to Mr Maqbool as Mr Mandalawi was in the barbershop all the time. Ms de Souza said that given her belief that Mr Mandalawi was the owner of the business, Ms de Souza stated that she elected to follow his instructions and not Mr Maqbool’s instructions. Ms de Souza said that after she introduced the system of keeping the cash herself, the money was balancing at the end of the day for the next three or four weeks.
The Applicant stated that she received a text message on 26 November 2022 from Mr Maqbool, asking her to stop removing money from the till. Ms de Souza stated that she then informed Mr Mandalawi of this text message, who then told her to take any necessary action to stop money from being stolen.
The Respondent submitted that a number of its staff, including Mr Siciliani, had observed the Applicant removing money from the till and storing it at her workstation, in contravention of management rules. Mr Maqbool stated that this started occurring in November 2022, at which time he stated that he issued Ms de Souza with a verbal warning. Mr Maqbool also submitted a text message sent by him to Ms de Souza on 26 November 2022, which stated:
“Hi Sarah please don’t take the cash to your station I want the cash to be in the till every day”.
It was Mr Maqbool’s evidence that by the warning and the text message he had instructed Ms de Souza twice not to continue what she had been doing. Mr Maqbool stated that the Applicant disregarded his warning and continued to remove cash from the till. Mr Maqbool said in oral evidence that in any professional business no staff member can take the cash (out of the till), and this continued even after that staff member had been told not to do it. Mr Maqbool said there was also the issue of staff complaining that they could not get change and had to go to Ms de Souza to obtain cash and this was unprofessional if every time someone needed cash they had to go and see Ms de Souza and ask for it. Mr Maqbool said if Ms de Souza was allowed to do this, others could do it, and he was completely against it.
He submitted that he formed this view (about the continued conduct of Ms de Souza) based on reports from other staff members who had informed him of Ms de Souza’s actions. Mr Maqbool also gave evidence of an occasion in which he entered the Respondent’s business and observed a customer attempting to pay in cash, but there was no cash in the till at this time. He stated that he then saw Ms de Souza provide an envelope of cash that she had in her possession.
Mr Maqbool rejected Ms de Souza's explanation that her actions were to protect him and the Respondent. He stated that had she been truly trying to protect the business, Ms de Souza would have informed him when she claimed she witnessed other employees stealing money, and would not have continued to defy his instructions regarding the removal of money from the till. Mr Maqbool said that he had a conversation with Mr Mandalawi and explained to him that there were cameras on the till, and if people did take money from the till they could be identified, but not if someone is taking out the cash all the time.
Mr Maqbool stated that he had informed Mr Mandalawi that money was not to be removed from the till. Mr Maqbool denied that Mr Mandalawi or anyone else would have approved the taking of money from the till by Ms de Souza. He further denied that in November 2022, Ms de Souza was removing money at the direction of Mr Mandalawi, as he argued that Mr Mandalawi had not commenced with the Respondent until 30 November 2022, after Mr Maqbool had issued a text message warning to the Applicant about not doing this.
Mr Siciliani gave similar evidence, stating that in his 4 years working in the business he was not aware of any accepted practice of employees removing money from the till and placing it in their workstation. Mr Siciliani said that he began working at the Coomera store shortly after it opened some five years ago and had developed a good working relationship with Mr Maqbool. Mr Siciliani said he left to pursue other opportunities as a hairdresser after a period of time and returned in November 2022 and around this time he met Ms de Souza. Mr Siciliani said over this time he became aware of what he called professional misconduct on Ms de Souza’s part, as he observed what he believed was Ms de Souza taking advantage of Mr Maqbool’s absence from the store when he was travelling overseas, by taking money out of the till and keeping it in a drawer at her workstation. Mr Siciliani said he also observed Ms de Souza keeping all the cash on the premises, to the extent that barbering staff, including himself, were unable to access cash to provide change to customers. Mr Siciliani said he pulled up Ms de Souza about this and challenged why she was doing it.
Ms de Souza said in response that she used to speak to Mr Maqbool about everything happening in the barbershop, however after she had been instructed by Mr Maqbool not to take the money out of the till she spoke to Mr Mandalawi about what Mr Maqbool had said to her, and she said Mr Mandalawi told her to “do what she had to do” because in the end of the day Mr Mandalawi had to report all of the money for Mr Maqbool, and Mr Mandalawi was the boss and he give Ms de Souza permission.
Ms de Souza agreed that she had said in her witness statement that she had seen a receptionist stealing money. I asked Ms de Souza whether she had spoken to Mr Maqbool about that, and she said no, because she had been told to talk to Mr Mandalawi about everything to do with the shop. Mr Maqbool said in his evidence that he never knew about any of this, and that Ms de Souza had been warned and sent an email by him on 22 November not to engage in this practice and Mr Mandalawi did not become involved in the business until 30 November 2022, and started in the shop on that day which was eight days after the issuing of the written direction, which had followed an oral ‘warning’. Mr Maqbool said it is not possible for Ms de Souza to have dealt with his direction made on 22 November by referring it to Mr Mandalawi as he had not even started in the business at that time. Ms de Souza gave evidence that she believed Mr Mandalawi was the owner of the business from the beginning of November 2022.
Mr Mandalawi did not give evidence in the proceedings. It is unfortunate that Ms de Souza did not call Mr Mandalawi as a witness as it appeared to be the case from correspondence sent to chambers that Ms de Souza and Mr Mandalawi remain on good terms. Given that it is apparent that Mr Maqbool as the owner of the business had sent two clear instructions to Ms de Souza to stop the practice she had been engaging in of removing all cash from the till, and keeping it at her work station, and these separate directions had been given prior to Mr Mandalawi commencing in the business, I am satisfied this undermines Ms de Souza’s claim that she only continued the practice despite being directed to do so because Mr Mandalawi had approved it. It is also odd that Ms de Souza claimed that she had seen other staff steal, and that was the reason she engaged in the practice of removing money from the till, however it appears not in dispute that she never informed Mr Maqbool about this alleged thief, or which members of staff were alleged to be stealing. This also tends to provide a basis for why Mr Maqbool would be suspicious of Ms de Souza’s explanation, particularly when it is logical that these alleged cases of Ms de Souza claiming to witness staff stealing must have occurred prior to Mr Mandalawi commencing in the business, and therefore there would be no basis for Ms de Souza not telling Mr Maqbool as the owner of the business about these alleged incidents and who was involved.
I am satisfied that Mr Maqbool had a reasonable basis to conclude that Ms de Souza had made a conscious decision not to follow his lawful and reasonable direction as her employer to stop removing money from the till.
Recording of work for Commission payments
Mr Maqbool stated that the Respondent had a scheme whereby employees would receive a bonus if they met certain daily targets with respect to the completion of work. Mr Maqbool said this included sale of products. Employees were required to self-report the work they had completed so that their progress towards their targets could be measured. Mr Maqbool argued that Ms de Souza would claim certain work performed by other employees as her own. Mr Maqbool said because Ms de Souza was taking the cash from the till to her own station it would mess up the whole system. Mr Maqbool said Ms de Souza would not put her haircuts into the system, and instead would wait until the end of the day and then put all the haircuts in her name which were ‘over’, and further she would sometimes put her own haircuts into her partners name, who was another hairdresser working in the store, to support him. This evidence was corroborated to some extent by Mr Siciliani, who stated that on multiple occasions he observed Ms de Souza record services that he had completed as her own. Mr Maqbool said he had complaints from Mr Siciliani and from a Ms Tyson about this.
Mr Siciliani said that Ms de Souza would reallocate, in the on-premises business records, customer services such as haircuts which had been executed by other staff members to herself, to boost her standing in the business as measured by her ability to meet key performance indicator targets on which commission is received. Mr Siciliani said that when he questioned Ms de Souza on several occasions about this, Ms de Souza was dismissive of his concerns and was very rude in response. Mr Siciliani said as a result his working relationship with Ms de Souza deteriorated, and he said it became clear to him that Ms de Souza did not want to work along side him. Mr Siciliani said he communicated his concerns about Ms de Souza’s behaviour to Mr Maqbool.
Ms de Souza stated that the Respondent’s bonus scheme was causing fights and arguments between staff members about who was going to win and make more money. She stated that she informed Mr Maqbool of this in 2022 and suggested that the bonus scheme should be abolished. She submitted that she also said the same to Mr Mandalawi when he commenced with the Respondent. Ms de Souza said she told Mr Maqbool she was not going to put her numbers in because all the barbers will just chase her, and they must do their job and not chase her. Ms de Souza argued that she had consistently been the best performing and most efficient barber throughout her time with the Respondent, so there was no incentive for her to claim more work than she had performed.
I asked Ms de Souza directly whether she had claimed commission for work that had been done by others. Ms de Souza agreed that she had done that “a couple of times” and that she had told Mr Maqbool as she used to work more hours. Ms de Souza said she had taken a customer from her own name and put it in Christian’s (her partners) name. Ms de Souza said she had not taken haircuts from anyone else’s name and put them in her own. Mr Siciliani refuted that and said that is why they would fight. He maintained Ms de Souza was trying to claim commission for haircuts he had done by putting them under her own name. Mr Siciliani claimed the whole shop what tell her not to do it. Mr Siciliani said Ms de Souza would take the EFTPOS machine so other barbers could not charge their customers and Ms de Souza would then charge them.
Mr Maqbool claimed that if a customer was leaving the shop Ms de Souza would interrupt to have control over the service and she would not let the other staff member charge the customer and she would charge the customer, and Mr Maqbool said he had seen this multiple times himself.
I am satisfied on the basis of the evidence that Mr Maqbool had a reasonable basis to concluded that Ms de Souza had made a conscious decision to not follow his lawful and reasonable direction to record work in the manner under the scheme where commission or bonus payments were contingent on the number of haircuts undertaken, and hair dressing products sold.
Other Alleged Behaviour of the Applicant
Putting Mr Maqbool down in front of the staff
Mr Maqbool provided evidence that he was informed by other staff that during staff meetings, Ms de Souza also would make denigrating comments about him in front of all the staff. Mr Maqbool claimed that employees had been telling him that Ms de Souza was describing him as “money hungry” and saying that he was “leaving the country”. Mr Maqbool said other staff including ‘Harriett’ and ‘Christina’ had reported to him that Ms de Souza had been saying negative things about him. Mr Maqbool said Ms de Souza’s conduct was demotivating for the staff.
Mr Siciliani gave evidence that there were regularly meetings in the barbershop and there was also ‘talk’ outside the barbershop. Mr Siciliani said the main topic at the meetings was that Mr Maqbool was leaving the country, and was money hungry and how he was ‘this’ and ‘that’. Mr Siciliani said there also lots of talk about Mr Maqbool getting a divorce and running out of money. Mr Siciliani said he had told Mr Maqbool that Ms de Souza had said not to put his products up in the shop and was that he was phasing out of the business, and they didn’t really need to talk to Mr Maqbool anymore.
Ms de Souza denied speaking negatively about Mr Maqbool towards other employees. She conceded that she had described Mr Maqbool as “money hungry” and that this was the reason she took action to prevent cash from being stolen. Ms de Souza said she always said things to Mr Maqbool’s face.
I am inclined on the basis of the evidence that is likely that Ms de Souza had been critical of Mr Maqbool to other staff whilst he was the owner of the business.
Interfering with stocking the shelves with the owners’ products
Mr Maqbool said that Ms de Souza would also, without authority, interfere with other staff members when they would attempt to stock the shelves of the shop with products from Dastaan Products, which were his products, and intended to be sold by the business in accordance with Mr Maqbool’s instructions. Mr Maqbool said he called one of the staff in the store named Christian, to do a video call to show him the shelves in the store so he could see them because sales had declined. Mr Maqbool sad that Ms de Souza was telling the staff member not to speak to Mr Maqbool. Mr Maqbool said that Ms de Souza was not allowing staff to speak to him so that he could make decisions about his own business. This claim was supported by Mr Siciliani, who stated that Ms de Souza would encourage staff members to disregard Mr Maqbool. Mr Maqbool also argued that Ms de Souza would try to prevent external parties from speaking to him.
Mr Maqbool said on 9 May Dastaan products were sent to the shop and the shelves were empty, and Ms de Souza would not let any staff members put Mr Maqbool’s products on the shelves, or even open the boxes. Mr Maqbool said he was losing sales and Ms de Souza’s conduct was vindictive. Mr Maqbool said when he called the shop on 9 May a staff member told him that Ms de Souza was not letting staff put the products on the shelves.
In response to the allegations regarding her interference with shelf stocking, Ms de Souza stated that Mr Maqbool and Mr Mandalawi had been fighting, and that two weeks prior to her alleged interference, Mr Mandalawi had instructed her that he would not be buying or using any products from Dastaan Products. Ms de Souza submitted that she said to Mr Mandalawi ‘but we need it’ and Ms de Souza said Mr Mandalawi responded for her not to worry about it, and he was going to buy from someone else. Ms de Souza claimed that Mr Mandalawi told her not to open the boxes and to tell all the barbers not to put the products on the shelf. Ms de Souza said she was the Manager, and she was simply following the instructions of Mr Mandalawi.
Mr Maqbool said in response to the claim of Ms de Souza that Mr Mandalawi told her not to stock Mr Maqbool’s products and her claim that he would not be buying them, that in fact Mr Mandalawi is buying products from him now, and is currently waiting on another shipment of products from Mr Maqbool.
It is difficult on the evidence to be certain about whether the reason Ms de Souza was preventing Mr Maqbool’s products from being displayed in the shop was because this is what Mr Mandalawi had told her to do. Mr Mandalawi would become the owner of the business in just over six weeks’ time. However, it is clear on the evidence that Mr Maqbool remained the owner of the business as of 9 May 2023, and it is clear Ms de Souza was actively preventing the owner of the business from being able to stock his own products in his own business.
Attempt to dismiss Mr Siciliani
Mr Siciliani said on one occasion at a staff meeting Ms de Souza said to him during the meeting, “David, why are you even here”. Ms de Souza said in response that Mr Mandalawi said to her that she needed to tell Mr Siciliani to go home. Mr Siciliani said he received a text message from Mr Mandalawi on 9 May saying words to the effect of ‘everything was finished thankyou for your work and not to come in.’ Mr Siciliani said he had called Mr Maqbool and spoke to him about it, and he told Mr Maqbool that he thought it was unfair and he would be “going through fair work”. Mr Siciliani said Mr Maqbool then told him to wait and it would be sorted out.
Mr Siciliani also provided evidence concerning the events the next day on 10 May 2023, which was the date of Ms de Souza’s dismissal. Mr Siciliani said Ms de Souza attempted to dismiss him as he arrived at the workplace without warning or cause. Following this, he stated that he called Mr Maqbool, who instructed him to wait at the store and stock the shelves of the store. Mr Siciliani stated that he relayed this instruction to Ms de Souza, who threatened to call security if he did not leave. Mr Siciliani’s evidence was that a short time later, Mr Maqbool arrived at the store, accompanied by security, who escorted Ms de Souza from the premises.
Mr Siciliani’s account of these events is corroborated by Mr Maqbool, who stated that he received a phone call from Mr Siciliani informing him of Ms de Souza’s attempt to dismiss Mr Siciliani. Mr Maqbool stated that he told Mr Siciliani that Ms de Souza had no authority to dismiss employees. Mr Maqbool said that by this point, Mr Maqbool had formed a view that Ms de Souza had engaged in serious misconduct. He therefore took steps to summarily dismiss Ms de Souza on that basis that day.
In relation to the attempted dismissal of Mr Siciliani, Ms de Souza’s evidence was that on 24 April 2023, she had a meeting with Mr Mandalawi, during which she stated that she informed Mr Mandalawi of numerous complaints about Mr Siciliani made by customers. Ms de Souza submitted that the following day, Mr Mandalawi told her that he was dismissing Mr Siciliani with two weeks’ notice, and that she was to repeat this message to Mr Siciliani. In that respect, Ms de Souza contended that in seeking to have Mr Siciliani removed from the premises on 10 May 2023, she was giving effect to Mr Mandalawi’s decision to dismiss Mr Siciliani. Ms de Souza claimed that Mr Mandalawi had dismissed Mr Siciliani before she had asked him to leave the shop. Ms de Souza said Mr Siciliani had displayed behavioural issues for months beforehand. As stated previously, Mr Mandalawi was not called as a witness by Ms de Souza.
Ms de Souza said Mr Siciliani caused a lot of problems in the barbershop and there were complaints from customers about him, and she spoke to him about this. Ms de Souza said ultimately, she told Mr Siciliani to go. Ms de Souza said before she had taken any decision, she would tell Mr Maqbool or Mr Mandalawi. Ms de Souza said that Mr Mandalawi had told her not to worry about it and, and he would talk to Mr Siciliani and he would have to go. Ms de Souza claimed that Mr Mandalawi had three separate conversations with Mr Siciliani where he told Mr Siciliani he had to go three times, and he did not want him in the barbershop anymore and thanks so much for everything.
Contrary to the evidence of Ms de Souza, Mr Maqbool said that he had spoken to Mr Mandalawi and told him not to dismiss Mr Siciliani and referred to text messages to support this. Mr Maqbool said in his evidence that Ms de Souza had always spoken to him, and she had not spoken to him at all about this and this is why this happened. Mr Maqbool said he believed Ms de Souza thought he was overseas. Mr Maqbool said at no stage had Ms de Souza spoken to him about any concerns with Mr Siciliani’s behaviour.
Mr Maqbool said that Ms de Souza had also said to him that “it’s either David or me”, and Mr Maqbool proceeded to dismiss Ms de Souza.
It seems apparent from this evidence that despite Mr Maqbool still being the owner of the business, and according to the email correspondence from Mr Mandalawi’s lawyers to my chambers that Mr Mandalawi did not have any ownership of the business before late June 2023, that if Ms de Souza is to be believed, she was acting on the instructions of Mr Mandalawi when Mr Maqbool was the owner of the business, and was entitled at that time to be the final decision maker in relation to issues such as the employment of Mr Siciliani.
I am inclined to the view that Ms de Souza knew as of 10 May that Mr Maqbool was still the owner of the business but was aware that Mr Mandalawi was soon to become the owner, and had decided to follow Mr Mandalawi’s directions rather than Mr Maqbool’s directions given Mr Maqbool was spending a lot of time overseas. On the evidence Mr Maqbool had not been provided by either Ms de Souza or Mr Mandalawi any proper basis to dismiss Mr Siciliani that day. This also leads to the conclusion that Mr Maqbool had a proper basis to form the reasonable belief that Ms de Souza was knowingly refusing to follow his lawful and reasonable direction not to dismiss Mr Siciliani.
CONCLUSION
I am not satisfied on the evidence that Ms de Souza stole any money from the Respondent. Further Ms de Souza said in conclusion that every decision she made, she talked to Mr Mandalawi about and he gave her authority to do it, and Mr Maqbool was overseas.
However I have concluded in relation to each of the issues concerning the removal of money from the till, claiming services for the purposes of receiving bonus or commission payments under her or her partners name that others performed, refusing to stock the owners products on store shelves, and attempting to dismiss Mr Siciliani, that Mr Maqbool believed that Ms de Souza’s conduct in relation to each of these issues constituted a refusal to follow his lawful and reasonable directions, and on that basis was serious and also justified immediate dismissal. I am also satisfied that the Respondent has established on the evidence a proper basis for it to be reasonable for the Respondent to hold this belief concerning each of these issues as it is well established that an employee refusing to carry out a lawful and reasonable instruction that is consistent with their contract of employment is serious misconduct.
On the basis of that conclusion, I am satisfied that the Respondent has complied with the Small Business Fair Dismissal Code and therefore the Commission has no jurisdiction to determine the matter. For that reason the application must be dismissed. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Ms Jussara Argemiro de Souza on her own behalf.
Mr Raza (Abbas) Maqbool and Mr David Siciliani for the Respondent.
Hearing details:
2023
By Microsoft Teams Video
17 August
Printed by authority of the Commonwealth Government Printer
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