Kelly Simpson v Mohammed Shahid Akram T/A Mad About Price - [2013] FWC 5110

[2013] FWC 5110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelly Simpson
v
Mohammed Shahid Akram T/A Mad About Price
(U2012/17111)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 JULY 2013

Application for Relief of Unfair Dismissal - harsh, unjust and unreasonable - reinstatement - compensation.

Introduction

[1] Ms Kelly Simpson (Applicant) worked as a part-time sales assistant for Mr Shahid Akram (Respondent) in one of his five stores trading as “Mad About Price 1. On 7 December 2012, following several short message service (SMS) exchanges between the Applicant and the Respondent, and a subsequent meeting, the Applicant’s employment was terminated by the Respondent2.

[2] The Respondent took issue with the accusatory tone of the various text messages sent by the Applicant to the Respondent on 7 December 2012, and this, coupled with an earlier on warning given to the Applicant about her conduct, forms the foundation for the reason that the Respondent dismissed the Applicant 3. The Applicant alleges that her dismissal was harsh, unjust and unreasonable and has applied to the Fair Work Commission (Commission) for a remedy under s.394 of the Fair Work Act 2009 (Act). This decision concerns that application.

Factual context

[3] The Respondent is an individual who owns and operates retail stores at Carnegie, Belgrave, Narre Warren South, Drouin and Pakenham, each of which trade as “Mad About Price”. The Applicant was employed in the Pakenham store and commenced that employment on 24 March 2011 4. The Applicant was employed to work between the hours of 9.00 am and 2.00 pm Monday to Friday5.

Incident of 28 December 2011

[4] It is common ground that on 28 December 2011 the Applicant was involved in a verbal exchange with another employee, Ms Sarah Ablett 6, which resulted in Ms Ablett immediately leaving her employment and making a complaint about the Applicant’s behaviour to the Respondent7. After receiving the complaint, the Respondent telephoned the Pakenham store to speak with the Applicant8. As a consequence of the incident the Applicant was issued with a verbal warning on 29 December 2011, which was accepted by the Applicant9. The Respondent says that he confirmed the warning by letter dated 4 January 201210. The Applicant says that she did not receive the letter and disputes its authenticity. I deal with this issue later in this decision.

[5] The parties are also at odds over whether the employment of the Applicant ended on 28 December 2011, the circumstances in which it might have ended and the legal consequence of the exchanges between the Applicant and the Respondent on 28 and 29 December 2011.

[6] The Respondent maintains that as a consequence of the incident, he sent an SMS to the Applicant on 28 December 2011 to the effect that he “no longer required you for the job because of the way you dealt with the matter” 11. The Respondent did not produce a copy of the SMS and he makes no mention of the SMS in written material that he filed in these proceedings12. The Respondent also gave evidence that he received a call from the Applicant at approximately 4.45 pm on 28 December 2011 during which the Applicant was crying and asked the Respondent to give the Applicant her job back13. The Applicant gave evidence that she did not receive such an SMS14. She said that she had been quite upset after the incident with the other employee and that during her discussion with the Respondent on 28 December 2011 she said to the Respondent “well, I’ll just quit”15. The Applicant agreed that she telephoned the Respondent in the afternoon of the 28 December 2011 and that she had asked for her job back, not because the Respondent had dismissed her but because she had earlier “quit my job”16.

[7] The Respondent submitted that on either version of events, there was a termination of employment on 28 December 2011 and a new employment relationship began on 29 December 2011. Consequently, the Respondent submitted, that the Applicant was not protected from unfair dismissal because the Respondent was a small business employer and the Applicant had not completed at least the minimum employment period of one year at the time of her dismissal.

[8] It is unnecessary to resolve the competing versions of events in order to resolve the legal question of whether employment ended on 28 December 2011. If it ended the period of continuous service would be broken resulting in the Applicant not being protected from unfair dismissal at the time of her dismissal on 7 December 2012. On either version of events the purported termination or resignation was a repudiation. This is because neither party gave notice of the termination or resignation to the other, and neither party had grounds to summarily bring the contract to an end. Therefore the notice of termination or resignation was invalid and ineffectual to end the contract. Although the employment relationship may have ended, the contract of employment continued as repudiation does not bring the contract to an end 17.

[9] It is common ground that, on the same day, the Applicant telephoned the Respondent to ask for her job back. If the Applicant resigned by the giving of invalid notice earlier in the day, she was entitled to withdraw the notice any time before the Respondent accepted the repudiation. There is no evidence the Respondent accepted the repudiation. For example, there is no evidence of any confirmation to the Applicant from the Respondent of the resignation or any evidence of payments made by the Respondent of accrued entitlements and wages earned that would be expected to be paid on termination. Indeed by his conduct, in agreeing to meet the Respondent on the following day and thereafter agreeing to continue the employment relationship, the Respondent is acting in a manner inconsistent with someone who has accepted the earlier repudiation by the Applicant.

[10] On the Respondent’s version of events, he purported to terminate the Applicant’s employment on 28 December 2011 by giving invalid notice. There is no evidence that the Applicant accepted the Respondent’s repudiation and by her telephone call to the Respondent on the same day as the repudiation in which she asked to be given her job back, the Applicant behaved in a manner that is inconsistent with someone who has accepted the repudiation.

[11] Therefore by the time the Applicant and the Respondent met on 29 December 2011, the contract of employment remained on foot. During that meeting the Applicant and the Respondent agreed to continue the relationship and agreed that the Applicant would be given a warning for her conduct on 28 December 2011. The employment relationship did not begin anew rather it resumed and continued under the same contract of employment. Therefore the service of the Applicant was continuous. I am therefore satisfied that the Applicant had, at time that her employment was terminated on 7 December 2012 completed the minimum employment period.

[12] Even if I am wrong in this conclusion, I would find based on the evidence of the Applicant about her state of mind 18, which I accept, that the notice of resignation given by the Applicant on 28 December 2011 was given in a state of emotional distress and in the heat of the moment. A reasonable person in the position of the Respondent would not precipitously conclude that the Applicant intended to resign when she had uttered her words of resignation in temper or under great pressure from the Respondent or other circumstances19. In such circumstances the Applicant was entitled to retract her intemperate resignation once the pressure is relieved, provided this was done within a reasonable period. This is precisely what the Applicant did and she telephoned the Respondent later in the afternoon of 28 December 2011 to “ask for her job back”. At the very least, at the meeting between the Applicant and the Respondent on 29 December 2012, the Respondent agreed to allow the Applicant to rescind her resignation and continue in employment. The fact that the employment was continuous is evident by the Respondent not paying out accrued entitlements to the Applicant. This is something he would be required to do if the employment ended on 28 December 2011 and new employment commenced on 29 December 2011. It would be even more curious that the new employment would have begun with a warning that related to conduct attaching to the old employment. It follows, in my view, the employment relationship and the contract of employment continued notwithstanding the events of 28 December 2011.

Advice about pregnancy

[13] In about July 2012 the Applicant advised the Respondent that she had recently discovered that she was pregnant and that she planned to continue to work until the end of January or early February 2013 and thereafter commence a period of 12 months maternity leave 20. The Respondent seemed to have some difficulty in accepting that the Applicant was not under any obligation in July or August 2012 to advise him of her pregnancy. Indeed the Respondent said that during a conversation with the Applicant on 30 July 2012 he had asked the Applicant whether she was all right following a period of sick leave on 25 and 26 July 2012. When the Applicant told the Respondent that it was “just stomach pain or just gastro”, he regarded this response as a lie because she was pregnant “at the time and didn’t say”21. Ultimately the Applicant did not allege that the Respondent dismissed her because she was pregnant or had applied for maternity leave, and wisely the Respondent did not rely on the Applicant’s failure to advise him of her pregnancy in or about July or August 2012 as a reason for dismissal or as a basis for any warning about performance or conduct22. In or about October 2012, the Applicant and the Respondent seem to have agreed that the Applicant would commence her maternity leave at the end of January 201323.

Warning about family members attending and disrupting store operations and customer complaints

[14] In the written material relied upon by the Respondent during the proceedings, the Respondent alleged that “ex-family members” of the Applicant came into the store causing “fights and arguments” 24. The Respondent also alleged in his written material that the Applicant’s mother was staying at the store with the Applicant for the entire duration of the Applicant’s shift, and that customers had telephoned and complained to the Respondent that the Applicant had been rude to them25. The Respondent asserted that the Applicant received warnings about these matters. The Applicant denied the allegations and disputed that she had received warnings from the Respondent about these matters.

[15] The Respondent’s oral evidence did not bear out the allegations that he had made in his written material. The Respondent’s oral evidence about these matters is recorded in transcript 26 and reproduced below:

“THE DEPUTY PRESIDENT: Mr Akram, you have prepared a document which sets out your version of events. I’m now going to give you an opportunity from your perspective to tell me what happened and why Ms Simpson’s employment ended?---So do I have to start from the beginning or - - -

Start from the beginning. This is your story?--- . . . We had the issue with Ms Simpson, the ex and the family. They were all coming in and issues comes up, and just again I said that, “Look, it’s a workplace there. I can’t just, you know, have these sort of things up at the work and - - -“

Mr Akram, I just want to be clear. It’s not very helpful to me in trying to work out what actually happened if you say that, “Her ex and her family kept coming in.” You need to tell me who came in on what days and what disruption was caused?---All I can say is couple of their side of the people are - I don’t know. I haven’t seen them personally. This is what Simpson said to me, and I went in the shop and her mother was there and they said to me, “These people are coming in. They are causing a problem and they’re going to ring you and they’re going to say you that they’re the customers and Ms Simpson is treating them bad so just sack her from the job,” so this is all I know, and I said to Ms Simpson - and I said, “Look, I can’t have these kind of thing. The people coming in the stores and yelling or abusing or causing fights or whatever. I just can’t have these kind of thing at the workplace.”

I understand that but do you know whether on any occasion anybody came to the store?---I didn’t see myself personally.

Have you been told of anybody actually coming to the store and abusing anybody?---Well, part of - Ms Simpson said herself.

Well, what you just told me is that Ms Simpson said that they were going to ring you and tell you that Ms Simpson was abusive?---That’s exactly right.

But to your knowledge, has anybody come to the store that’s related to Ms Simpson, other than her mother, that has been disruptive?---I haven’t seen anybody myself personally, no.

Has Ms Simpson actually told you that someone came to the store and was abusive?---Yes.

When did she tell you this?---That’s - we’re talking in March to April, May time; couple of month. I haven’t got the exact date.

I just want to be clear about what you’re saying. As I understand what you said just a moment ago, you said that Ms Simpson told you that somebody would ring you, either her ex or someone related to her ex, and pretend that they were a customer?---Exactly.

And that they would allege that she was abusive towards them?---Exactly.

Yes, but that’s not the same as somebody coming into the store and abusing customers or somebody else, is it?---No, no, no. It’s just it was direct to Ms Simpson and then she knew them very well because the family she knew before; and same thing the mother said to me too.

I understand that you say that Ms Simpson’s mother and Ms Simpson expressed to you concern that somebody related to her ex might do this. I understand that’s the point you’re making. What I’m trying to understand is what was the problem created for your business if nothing actually happened?---Well, they - nobody else came and said to me - there’s no customer or anybody did witness a thing, but all I’m just saying from my side what - we had a conversation with Ms Simpson and the mother and they are the ones that told me this is what has been going on and she needs to go to see a solicitor and they got to go to the court and sort it out so these people won’t come back in the workplace.

Okay, but they didn’t come to the workplace, did they?---No, they did.

No, and did you say you gave her a warning for this?---I said to her that, “Look, Ms Simpson, I don’t like these things happening at workplace and if you could please - - -“What happened? Nothing happened?---No, because this is what Ms Simpson said. They come up and - because she was the one who was saying these people come up and they’re aggressive and they are threatening her for the things and all that so she needs to go to the court. I don’t know her personal side; never asked her. You know, what really happen her personal life is none of my business anyway.

So what was the warning for?---The warning was that - all I just said to her, that, “I don’t like these happen at workplace. If you got your personal issue, you can take these personal issue outside of the shop, not in the shop.”

Let’s assume for a moment that these former acquaintances of Ms Simpson came to the shop. Let’s assume that, and let’s assume that they were disruptive. What was Ms Simpson supposed to do about it?---Just to say to them, “Just leave the workplace and don’t come back in here.” That’s what probably she did. I’m not denying that and that - - -

So why did you give her a warning, as you describe it?---The warning I just gave her for only this reason, not for anything else. Just that I don’t like these things happening at workplace, and the people rang me after that. There was a couple of phone calls. They all - just said to Ms Simpson, “Look, there might be a customer, there might not be customer.” According to her, she said the phone call - “They rang you. It’s not the customer. It’s my ex’s family.”

So you’re now saying you did receive some phone calls?---Phone call. I did, yes. As I said before, there was a couple of phone calls.

From whom?---From somebody ringing, the customer. That’s all I know and - - -Somebody saying they were a customer?---They were customer there.

Did they leave a name?---No. I haven’t got a name.

What did they say happened?---They said, “We went in the shop to buy something and Kelly wasn’t helpful and in fact she was just very rude and just treating us bad, so we don’t like this kind of behaviour from any shop assistant,” and I said, “Look, I can check over and see what it is,” and I went back and ask Ms Simpson to - - -

Just hang on a sec. So how many customers rang you?---Twice I got the phone call.

And they said the same thing?---Same thing, yes.

Exactly the same thing?---Exactly. I mean, I didn’t notice too much of that because Ms Simpson explain that that’s her ex-family. I just left it at that because she said before that the ex-family came up and they had these kind of issue up at the workplace, and all I can go what they - somebody call me, that’s what they said, and I said to them, “I can go back and check with Kelly,” and that’s all. I just said to Ms Simpson after that - - -

Did they leave a phone so you could report back?---No. It is a private number call.

Both?---Yes.

And so you gave her a warning because of complaints received from customers. Is that what you’re saying?---Well, that’s what I said. I said all I - - -

Can you just listen to my question? Did you give her a warning because you received complaints from customers and you satisfied yourself that she was guilty of the conduct that the customers have complained about?---Well, I gave - that probably be right, but the warning was because I got the call.

No, not probably right. What did you give her a warning for?---For the customer, the ringing me for the complaint for the behaviour.

So you were satisfied that Ms Simpson engaged in the behaviour?---I can’t explain. There is not hundred per cent sure because as I said, Ms Simpson said that’s the ex-family, they ring in, so it is - I can’t really hundred per cent say it’s the ex-family or is the customers.

So you weren’t sure but you gave her a warning anyway?---I just gave her a warning in this sense: that I don’t want to hear these things from the customers.

Can I just ask you this? When you use the term “warning”, did you mean it in the sense of it being a warning to improve her behaviour or did you simply say, “Look, if this is happening, your personal life intervening, I’d prefer it not to happen”? Is it that sort of a warning or - - -?---Well, what I said to Ms Simpson, I said, “If it’s a personal issue and these people are your ex’s family, that’s your personal matter, and if that’s the case, then I got no problem, but if these ones are real customers and they’re the customers, then there’s a problem,” and that’s where the warning is.”

[16] In my view the discrepancies between the Respondent’s written material and his oral evidence, and the inconsistencies in his oral evidence, show that the Respondent has a tendency to exaggerate, rendering his evidence unreliable 27. Conversely the Applicant gave clear and direct evidence which did not appear to be affected by exaggeration, and made appropriate concessions, about the fact that she had received a warning about her conduct on 29 December 2011. The Applicant struck me as an honest and reliable witness. Where in this decision it has been necessary to make findings based solely on the competing versions of an event given by the Applicant and the Respondent, I have therefore preferred the Applicant’s version of that event.

[17] However, it is unnecessary to accept the Applicant’s version of events in relation to the alleged warnings given to the Applicant about “ex-family members” disrupting store activities and customer complaints. As seems abundantly clear from the Respondent’s evidence reproduced above, the Respondent is unable to offer any evidence that any ex-family member attended the store and was disruptive. Any warning given in reliance of this issue is therefore unfounded and cannot be relied upon to support the subsequent termination of the Applicant’s employment. As to the Respondent’s evidence about customer complaints, he was unable to identify the name of any particular customer who had complained and ultimately conceded that he could not be “sure because as I said, Ms Simpson said that’s the ex-family, they ring in, so it is – I can’t really hundred percent say it’s the ex-family or is the customers” 28. The Respondent’s evidence about customer complaints must also be viewed against his later evidence that customers “say she is good”29. It follows, based on the Respondent’s own evidence, any warning that he may have been given to the Applicant about customer complaints, was in the circumstances discussed above, unreasonable and cannot be relied upon by the Respondent to support the subsequent termination of the Applicant’s employment.

Allegations of rudeness towards the Respondent’s brother Naveed Akram

[18] The Respondent alleged that the Applicant had exhibited rude behaviour towards his brother 30 Mr Naveed Akram. Mr Akram also worked for the Respondent and from time to time delivered goods to the Pakenham store. The Respondent gave evidence about four incidents that occurred in the last quarter of 201131. The Applicant denies that she was rude toward Mr Akram. There is no evidence that the Respondent spoke to the Applicant about these matters and the Respondent does not allege that he counselled the Applicant or that she was warned about her behaviour towards Mr Akram. In any event the allegations made by Mr Akram pre-date the warning that both the Applicant and Respondent agree was given to the Applicant on 29 December 2011. It seems to me that even if the incidents as alleged occurred, they were not regarded by Mr Akram as serious enough to be raised with the Respondent or for the Respondent to counsel the Applicant about her behaviour. In the circumstances, I do not find Mr Akram’s evidence about these incidents to be particularly relevant to the issues that I must determine.

Circumstances leading to the Applicant’s dismissal

[19] On 7 December 2012, the Applicant was expecting her weekly wages to be deposited into her bank account that morning consistent with the practice during her employment. On the morning of 7 December 2012, the Applicant attended her local post office in order to arrange for payment of rent but was unable to do so as her pay had yet to be credited to her bank account 32. The Applicant sent an SMS to the Respondent querying the absence of pay in her bank account and an exchange of SMS’s followed33. The text of the SMS exchange is set out below:

“9:20 AM – Applicant – “My pay isn’t in. I’m standing in the post office trying to pay my rent and I can’t because you haven’t paid me. I’ve rung the bank and it’s not there is it pending. I need my pay today so can you meet me at the shop and pay me please as this is not good enough”.

9:22 AM – Respondent – “What’s not good enough… your pay should going today I’ve to check what’s going on”.

9:26 AM – Applicant – “It’s not good enough that my pay is not in and I have to be embarrassed because I can’t pay my rent. I’m in the post office with not enough money in my account as you haven’t paid me and I need the money today. If it’s not in my bank account now it won’t be in today so I need to collect it from the shop today. This happened a little while ago and I didn’t get paid until the following Tuesday but I can’t pay my rent next Tuesday, it has to be today”.

9:28 AM – Respondent – “Next time you need to speak proper or I’m not going to listen any shit from anybody. I will check and fix up… week’s not finished yet”.

9:38 AM – Applicant – “Shahid I am speaking proper to you. I am not giving you shit. I’m just asking for what I’m entitled to. How would you like it if you went to pay a bill and couldn’t as you weren’t paid correctly. I have every right to expect my paid today as it is payday. So if you can’t put it in my bank, I will pick it up from you today. You don’t work for no pay and neither do I and you can’t crack the shits at me for asking for my pay”.

9:41 AM – Respondent – “You are speaking like a real mad person. It’s just start of day. I said to you I will check. You done this bad behaviour before. I’m at Drouin and coming back to Packy. I will check and pay you today and if you gunna react like this I can’t have a job for you…”.

9:50 AM – Applicant – “I beg your pardon, are you threatening my job because I’m asking for what I’m legally entitled to”.

9:53 AM – Respondent – “Think whatever you think. I just checked the acc. Your pay gone from my side. Also you need to get some manners to speak”.

9:59 AM – Applicant – “Read the first message I sent. I said can I please meet you at work and get my pay. You’re the one that has taken my messages the wrong way and you’re the one that got nasty first. Now you’re threatening that you don’t have a job for me. I’m at the bank and they have checked my account and any payments pending and my pay is nowhere to be seen. Not saying it in a rude and nasty way but I am checking what’s going on with the banks”.

10.00 AM – Respondent – “Come at the shop at 11.00. I meet you there. Thanks”.”

[20] The Respondent produced a National Australia Bank Internet Banking transaction history which showed that on 7 December 2012 an amount of $315.54 was withdrawn from the Respondent’s account 34. It is not disputed that this amount represents wages that were due and payable to the Applicant on that day. The transaction history produced by the Respondent does not show the time at which that amount was withdrawn from his account nor does it show when that amount was credited to the bank account of the Applicant. The Applicant produced a statement from the Commonwealth Bank which showed that the amount of $315.54 deposited by direct credit the Respondent’s account was not credited until 10.31 pm on 7 December 201235.

[21] The Respondent gave evidence that he has arranged the payment of wages system so that wages due to employees are deducted from the Respondent’s bank account on the Thursday night before payday and deposited into the employees’ bank accounts on Friday morning 36. The document produced by the Respondent setting out the transaction history of his National Australia Bank account from which wages to the Respondent were paid bears this out. That document shows that debits from his bank account for the payment of wages to the Applicant occurred on mainly on Thursdays37. However that was not the case in relation to 7 December 2012. The Applicant was accustomed to having her wages deposited in the Thursday night or first thing on a Friday morning38.

[22] It therefore seems clear that the Applicant’s wages were not in her account at any time during business hours on 7 December 2012 and she was unable, as she indicated in her SMS to the Respondent, to pay her rent. It is understandable and not unreasonable in the circumstances, for the Applicant to have felt embarrassed and frustrated by the Respondent’s failure to ensure that her wages into her bank account during normal business hours so that she could attend to important payments that were due to be made by her on that day.

[23] The Respondent was upset by his perception of the tone of the Applicant’s SMS. He gave evidence that he regarded the Applicant’s SMS as saying that he caused the Applicant embarrassment and that the Applicant’s SMS was rude 39.

[24] I do not regard the SMS sent by the Applicant to the Respondent as particularly rude. Certainly the tone is reflective of a person who is anxious to resolve the wages issue that she raised and to pay her rent. Indeed when the Applicant realised that the Respondent may be misconstruing her SMS, she sought to clarify misunderstanding through her SMS to the Respondent sent at 9.59 am. Moreover it is clear from the SMS exchange that it is the Respondent who engages in inappropriate language and tone as is evident:

by his SMS of 9.28 am in which he says “you need to speak proper or I’m not going to listen to any shit”;

by his SMS of 9.41 am which he says “you are speaking like a real mad person” and “if you gunna react like this I can’t have a job for you”; and

by his SMS of 9.53 am in which he says “think whatever you think” and “also you need to get some manners to speak”.

[25] I do not accept that the Respondent was entitled to send the messages that he did to the Applicant in response to her understandably anxious and frustrated query about the whereabouts of wages. Furthermore it is unacceptable for the Respondent to make threats about the Applicant’s employment. This kind of conduct would also likely amount to a contravention of the ‘General Protections’ provisions in Chapter 3, Part 3-1 of the Act. There was nothing in the words or tone of the applicant’s SMS’s which would justify such a grossly disproportionate and unfair response.

Meeting of 7 December 2012

[26] It is common ground that the Applicant accompanied by her father, John Simpson, attended the Pakenham store at approximately 11.00 am to meet with the Respondent. During cross-examination the Respondent conceded that he had all but made up his mind to dismiss the Applicant prior to the Applicant attending the Pakenham store to discuss the wages issue 40. The Respondent also gave evidence that during the meeting at the store on 7 December 2012 the Applicant demanded to be paid in cash immediately, she wouldn’t leave the store until she is paid41 and that “she was talking, she just didn’t want to listen what I’m saying”42. The Respondent also alleged in his written material, that during that meeting the Applicant was “very rude and yelling” and “just talking, talking and screaming”43, however he did not put any of these allegations to the Applicant during his cross examination of her44.

[27] Mr Simpson gave evidence that he attended the Pakenham store with his daughter on 7 December 2012 at approximately 11.00 am 45. He said that upon arrival the Respondent asked his daughter to go through to the rear of the store to his office which she did and Mr Simpson followed them through to the office46. Mr Simpson said that during the meeting:

His daughter asked the Respondent what had happened to her pay and that the Respondent had said that she would get her pay later that day and that he had no obligation to pay her in the morning as he had until 4.00 pm to pay her 47;

The Respondent accused his daughter of being rude and swearing at the Respondent during the SMSs and his daughter reminded Respondent that it was he who had used bad language during the communications 48;

His daughter remained calm and did not yell or scream or insult the Respondent 49;

The Respondent told his daughter that her services were no longer required and to return the shop key. The Respondent then pulled out his wallet and paid Kelly her wages in cash 50; and

Mr Simpson told the Respondent that he would have to pay his daughter in lieu of notice and supply her with a separation certificate. The Respondent said that he would tend to the final pay in due course and supply a certificate by email 51.

[28] The Applicant’s evidence about the meeting at the Pakenham store on 7 December 2012 was largely consistent with that of Mr Simpson 52. As I indicated earlier, the Respondent did not challenge the Applicant’s version of the meeting during his cross-examination of her. Nor did the Respondent challenge Mr Simpson’s version of the meeting during the Respondent’s cross-examination of Mr Simpson. Taking into account the relationship between Mr Simpson and the Respondent, I nevertheless accept their evidence about the conduct and content of the meeting between the Applicant and the Respondent on 7 December 2012. To the extent that there is a conflict in the evidence between the Applicant and the Respondent about the meeting on 7 December 2012, for the reasons given earlier at paragraph [16] about the reliability of the Respondent’s evidence, I accept the Applicant’s evidence.

Reason for dismissal and letter of termination dated 7 December 2012

[29] The Applicant gave evidence that she was not given a reason for her dismissal and that at the meeting of 7 December 2012, she had asked the Respondent to “write down that he was dismissing me for no reason” and that the Respondent said he would be emailing something toher, but that did not occur 53. The Respondent’s evidence of his reason for dismissing the Applicant is set out in the following extract from transcript54:

“THE DEPUTY PRESIDENT: I want to be absolutely clear, Mr Akram. You say that the reason you dismissed Kelly, Ms Simpson, was because on 7 December she was rude and used bad language?---That’s right.

And she did that in the text message to you?---Well, it’s kind of, but it just goes back to those couple of warnings previously which - - -

No, hang on. She used bad language to you in the text message?---I could see from my side because I thought that I paid her, money has gone in, and I just look at from my side and I think that she is blaming me for something which is I haven’t done.

So you now say that it’s because she blamed you for not paying her?---That’s exactly right.

Not because she used bad language?---No, no. It’s carry on the whole lot from the previously two that she blame me for not paying and just this pay issue is there. She is acting towards the pay like I haven’t paid her, or I’m just paying her a week later or three days or - well, you know, each time it goes to Tuesday, Wednesday payment.”

[30] It is clear in this extract from transcript that although the Respondent initially maintained that he had dismissed the Applicant because she had used rude and bad language in the SMS to him earlier in the day, ultimately the Respondent said that the reason for his decision to dismiss the Applicant was because she had blamed the Respondent for not paying her. I note that this is not the reason given in the purported letter of termination dated 7 December 2012 55 in which the Respondent says that “your employment was terminated due to many warnings of unacceptable behaviour”, and about which I say more below. Before doing so it is appropriate to observe that any suggestion that the Applicant used “rude and bad language” in the SMSs which she sent to the Respondent querying the status of her pay is unfounded. True it is that the SMSs show that the Applicant was anxious and upset, but in the circumstances, this is understandable. Furthermore, on any reasonable reading of the SMSs, the Applicant was not “blaming” the Respondent. The Applicant was entitled to raise concerns with the Respondent about the fact that wages due to her were not deposited into her account at a time when, based on previous practice, her wages would have been deposited. If the Respondent took offence to the forthright manner in which the Applicant communicated her concerns to him, this did not, in my view, give him a licence to respond to her SMS in the manner that he did, nor to later dismiss the Applicant. A person is entitled to raise legitimate concerns about pay with their employer without being subjected to threats of dismissal for doing so56.

[31] The Applicant also gave evidence that the first time she had seen a letter of termination dated 7 December 2012 57, was when the Respondent produced it at a conciliation conference about her unfair dismissal remedy application58. The Applicant also alleged that she did not receive the warning letter dated 4 January 2012 concerning the incident 28 January 201259. The Respondent gave evidence that the letter of 4 January 2012 sent to the Applicant by post while the letter of 7 December 2012 sent to the Applicant by email60.

[32] During the hearing of this application on 6 May 2013, the Respondent was asked, and undertook to produce the computer on which copies of the letters were stored in order to determine the date on which each was first created 61. At a subsequent hearing on 11 June 2013, the Respondent did not produce the computer he had earlier undertaken to produce and explained that he could not produce the computer as he had disposed of the computer and acquired a new computer in or about August 201262. The Respondent was then asked to produce a receipt for the purchase of the new computer which he also undertook to provide to the Commission63. On 17 June 2013 the Respondent produced an invoice from ASN Computers dated 16 August 2012 which recorded the purchase of two computers. The first was a “desktop IBM computer with a 17 inch LCD monitor, keyboard and mouse” and the second, was a “Pentium 4 HP/Compaq Laptop” for the total sum inclusive of GST of $297.0064. The invoice carried an ABN of 7307967742365.

[33] Searches conducted by me on 17 June 2013, of the ASIC business and company registers and on the Australian government ABN lookups website show that ABN 73 079 677 423 is associated with a business trading name of ASN Computers. The searches also disclosed that the business trading name does not operate and is not registered and that the ABN associated with the trading name has not been registered for GST since at least 16 May 2012. I therefore relisted the matter on 5 July 2013 for further hearing. At that hearing, I put the above matters to the Respondent and I also raised with him my concern that the price said to have been paid for two computers seemed substantially less than that which one might expect to pay for such computers in the market. The Respondent explained that the computers were purchased second-hand from a Mr Ahmed Afroz who operated a stall at the Caribbean Market. I asked the Respondent to request Mr Afroz to call me so that I might discuss this issue and that of the invoice purporting to charge GST on the computer purchases in circumstances where ASN Computers is not registered for GST. The Respondent undertook to do so 66. I have not, as at the date of this decision, received a telephone call from Mr Afroz.

[34] In the circumstances, I do not accept that the Respondent purchased a new computer or the explanation that the Respondent’s inability to show when the letters at issue were first created on the Respondent’s computer was because of the purchase. Ultimately I am only concerned about the question whether the Applicant received a copy of the termination letter from the Respondent dated 7 December 2012. As should be obvious, 7 December 2012 postdates the date on which the Respondent says that he purchased the new computer, which according to the invoice was produced by him on 16 August 2012. It follows that the letter of termination would have been created on the new computer. The Respondent did not produce any computer, even though he undertook to do so. There is no reasonable explanation for his failure to do so. Consequently I draw an inference that the production of the computer on which the termination letter was said to have been produced, would not have assisted the Respondent 67. I therefore accept the Applicant’s evidence that she did not receive the letter of termination dated 7 December 2012 and that she was given a copy of that letter for the first time on 29 January 201368.

Protection from Unfair Dismissal

[35] A remedial order may only be made in relation to the Applicant’s dismissal if, at the date of her dismissal, the Applicant was protected from unfair dismissal under the Act.

[36] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(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.

Note: High income threshold indexed to $123,300 from 1 July 2012.”

[37] For the reasons set out in at [4] - [12] above I am satisfied that the Applicant had at the time of her dismissal completed the minimum period of employment. I am also satisfied, that at the time of her dismissal, the General Retail Industry Award 2010 covered the Applicant. Consequently, on 7 December 2012 when the Applicant was dismissed, she was protected from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[38] The Applicant’s dismissal will have been unfair if on the evidence, I am satisfied that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

“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

(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.”

Was the Applicant dismissed?

[39] A person has been dismissed if, relevantly:

the person’s employment with his or her employer has been terminated on the employer’s initiative; or

the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. 69

[40] It was common ground that the Applicant was dismissed at the initiative of the Respondent and I am so satisfied. Consequently the Applicant was dismissed within the meaning of s.386 of the Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[41] A person will not have been unfairly dismissed if an employer effects the dismissal in a manner consistent with the Small Business Fair Dismissal Code (the Code). It is useful to set out s.388(2) of the Act:

“388 The 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.”

[42] The meaning of “small business employer” is set out in s.23 of the Act:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[43] The Respondent gave evidence that at the time of the Applicant’s dismissal, he employed 11 employees, including the Applicant. 70 The Respondent also produced a PAYG payment summary statement for the financial year ending 30 June 2012 and superannuation payment summaries for the period 1 November 2012 to 30 December 201271 which was consistent with his evidence and showed that he employed less than 15 employees. Initially the Applicant sought to include the Respondent and his wife in the count of employees but ultimately accepted that they were not employees of the business and accepted that the documents produced by the Respondent established that he employed less than 15 employees at the relevant time72. I am therefore satisfied that the Respondent was a “small business employer” within the meaning of s.23 of the Act at the time he dismissed the Applicant and the Small Business Fair Dismissal Code applies.

[44] The Small Business Fair Dismissal Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009 and provides as follows:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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.”

[45] In John Pinawin T/A RoseVi.Hair.Face.Body v Domingo 73, a Full Bench of Fair Work Australia considered the summary dismissal aspect of the Code. The Full Bench set out a two part test to determine compliance with the Code:

“[29]... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.” 74

[46] The Applicant was dismissed without notice. However, she was not dismissed summarily for misconduct. Even if that were not the case, and the Respondent held the belief that the Applicant’s conduct was sufficiently serious justify dismissal, for the reasons given earlier in at [19] – [30] I am satisfied that the Respondent did not have any basis to believe on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. Consequently that aspect of the Small Business Fair Dismissal Code is not relevant and I do not consider it further.

[47] This is therefore a case to which the “Other Dismissal” provisions of the Small Business Fair Dismissal Code apply. The Respondent submitted that he complied with the Small Business Fair Dismissal. He said he had warned the Applicant about her rudeness and conduct on three occasions 75. The Applicant accepts that she received a warning on 29 December 2011 in relation to the incident with Ms Ablett on 28 December 2011, but disputed that she had received any other warnings as alleged by the Respondent. For the reasons given earlier in this decision at [16], I do not accept the evidence of the Respondent and prefer the evidence given by the Applicant on the question of warnings. I also found earlier at [13]-[17] that warnings said by the Respondent to have been given, were not reasonable. Furthermore, although this point was not argued by the Respondent, for the avoidance of any doubt, I do not accept that the Respondent’s threat of dismissal contained in the SMS exchange could or should be construed as a warning, in the relevant sense. It was a threat issued by the respondent because he felt affronted by the applicant’s SMS.

[48] I have earlier concluded that the Respondent did not give the Applicant a reason for her dismissal. It follows that the Respondent did not give the Applicant any reason why she was at risk of being dismissed.

[49] Furthermore, even if the Applicant had been warned about the conduct ultimately relied upon by the Respondent as the reason for the dismissal of the Applicant I am not satisfied that the reason is a valid reason in the sense that it is not one that is sound, defensible and well founded. I am therefore satisfied that is dismissing the Applicant, the Respondent did not comply with the Small Business Fair Dismissal Code.

[50] The Respondent does not maintain that the dismissal of the Applicant was for reasons of redundancy. Consequently I now give consideration to the matters set out in s.387 of the Act.

Harsh, unjust or unreasonable

[51] The matters I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“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.”

[52] I am obliged to consider each of these matters in reaching my conclusion and I do so below 76.

[53] The ambit of the conduct that may fall within the description ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 77 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[54] The substance of the Applicant’s argument that her dismissal was harsh, unjust or unreasonable is as follows:

She was dismissed without a valid reason and no reason was given by the Respondent for the dismissal either before or at the time of her dismissal;

As no valid reason exists and was not given, she was not given an opportunity to respond to the reason for his dismissal;

She had received a prior warning about unacceptable conduct but it bears no relevance to the reason for dismissal by the Respondent; and

Even if there was a valid reason, the Respondent’s decision to dismiss her was disproportionate to the gravity of the conduct said to have been engaged in by the Applicant.

[55] The Respondent submits that his dismissal of the Applicant was not harsh, unjust or unreasonable because he:

had a valid reason related to the Applicant’s conduct. In particular, the Respondent argues that the Applicant:

o was rude to the Respondent, customers, other employees including the Respondent’s brother;

o blamed the Respondent for something had not done, namely fail to pay the Applicant on 7 December 2012.

had previously warned the Applicant on three occasions that her conduct was unsatisfactory and that a failure to improve might lead to his dismissal.

[56] I have already made findings about the evidentiary foundations upon which these submissions are put earlier in this decision. To the extent that it is necessary I deal with the competing submissions in my consideration of each of the criteria in s.387 of the Act below.

Valid reason - s.387(a)

[57] There must have been a valid reason for the dismissal of the Applicant related to her capacity of conduct, although it need not be the reason given to the Applicant at the time of the dismissal 78. The reason should be “sound, defensible and well founded”79 and should not be “capricious, fanciful, spiteful or prejudiced”80. Where, as in the present case, the Respondent relies in part on the conduct of the Applicant to justify its decision to terminate her employment, I must be satisfied that the conduct as alleged by the Respondent occurred81, and mere suspicion of conduct does not amount to a valid reason82.

[58] For the reasons given at [18] – [28], I satisfied that there was not a valid reason for the dismissal of the Applicant. All that the Applicant did on 7 December 2012 was to query, or perhaps complain about the fact that wages due to her had not been deposited into her bank account as had been the consistent practice previously. In my view the Respondent grossly overreacted both in his responses to the Applicant by SMS and the dismissing the Applicant on 7 December 2012. In my view the Respondent’s reason was capricious and spiteful.

Notification of the valid reason - s.387(b)

[59] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made 83, in explicit terms84 and in plain and clear terms85. In Crozier v Palazzo Corporation Pty Ltd86 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 87

[60] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s.387(c), involves consideration of whether procedural fairness was afforded the Applicant before her dismissal was effected.

[61] Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place? In this case, the answer is also straightforward. For the reasons given at [26] – [34] of this decision I am satisfied that the Applicant was not notified of any reason for her dismissal.

Opportunity to respond - s.387(c)

[62] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. The consideration of whether and to what extent that opportunity was given is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality 88.

[63] As I have concluded that the Applicant was not given a reason for her dismissal either before or at the time that the termination of employment took effect, it follows that the Applicant was not given the opportunity to respond to any of the reasons now identified by the Respondent relating to her conduct.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[64] If an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present.

[65] It is clear from the plain language of s.387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. There is no obligation to offer the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request 89. It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present. This is not such a case.

[66] The issue is moot in this case since, although the Applicant did not ask for a support person to be present, Mr Simpson, the Applicant’s father, was present as a support person during discussions relating to the Applicant’s dismissal on 7 December 2012.

Warnings regarding unsatisfactory performance - s.387(e)

[67] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct 90. There is no evidence the Applicant was warned by the Respondent about any unsatisfactory performance, indeed the Respondent acknowledged that the Applicant was a good worker and that customers “say she is good”91. Furthermore, the Respondent does not rely upon poor performance as a reason for dismissal. Consequently this consideration is given no weight in this application.

[68] However it is acknowledged by the Applicant that she did receive a warning in relation to her conduct on 28 December 2011. I have already concluded that I am not satisfied that any other warnings have been given to the Applicant. To the extent that the incident on 28 December 2011 reflects upon the Applicant’s performance and the subsequent warning given relates to that performance, I am not satisfied that I should give that warning any weight given the circumstances of the dismissal and the reasons given during the hearing by the Respondent for the dismissal. Furthermore, as I have indicated earlier, I do not accept that the Respondent’s threat of dismissal contained in the SMS exchange on 7 December 2012 could or should be construed as a warning, in the relevant sense.

Impact of the size of the Respondent on procedures followed - s.387(f)

[69] The size of the Respondent’s enterprise may impact on the procedures followed by the Respondent in effecting the dismissal. As I earlier noted, the Respondent was, at the time of the Applicant’s dismissal, a small business employer within the meaning of s.23 of the Act. I have also concluded that the Respondent did not comply with the Code in effecting the dismissal of the Applicant’s employment. The Code might be said to place less stringent procedural requirements on an employer to effect a dismissal.

[70] The fact the Respondent conducted a small business and appeared relatively inexperienced in human resources and employment matters no doubt had an impact on the procedure followed by the Respondent in effecting the Applicant’s dismissal. However, any procedure that is followed, even one affected by the size of a business and inexperience, must not be devoid of any fairness. In this case, the manner in which the dismissal was effected, absent as it was of any warning, because employee made legitimate enquiries about her wages and without an articulated reason, leads me squarely to the view that while the size of the Respondent’s business and the Respondent’s inexperience might excuse some procedural flaws, it does not excuse a complete absence of fairness and his capricious and spiteful reason for effecting the dismissal.

[71] I therefore find the size of the Respondent’s business and his relative inexperience does not excuse the procedures followed by the Respondent in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[72] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may also impact on the procedures followed by the Respondent in effecting the dismissal.

[73] The Respondent is a small business without a dedicated human resources management specialist or a person with such expertise. In my view, if the Respondent had access to such resources or expertise, there is little doubt that the procedure he would have been advised to adopt would have been different and fairer. More likely than not he would have received advice that he did not have a proper basis dismissed the Applicant.

[74] I therefore find the absence of any such management or expertise affect the procedures followed by the Respondent in effecting the dismissal, and contributed to the unfair treatment experienced by the Applicant.

Other relevant matters - s.387(h)

[75] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. In determining whether the dismissal of the Applicant was harsh, unjust or unreasonable, I have taken them into account the fact that Respondent made a threat of dismissal which was communicated by SMS after the Applicant has queried the non-payment of wages, in circumstances where the Applicant had not been paid at a time when she would usually have been paid and was anxious to make payment of rent.

Conclusion

[76] Having considered each of the matters in s.387, I have concluded that there was not a valid reason for the Applicant’s dismissal, the treatment of the Applicant by the Respondent in effecting the dismissal was also manifestly unfair and the reason given by the Respondent during these proceedings, for the dismissal, was in my view capricious and spiteful. Taking into consideration the all of the evidence and submissions and the matters discussed above, I am satisfied the dismissal of the Applicant was harsh, unjust and unreasonable.

Remedy

[77] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[78] I have already dealt with the issues at s.390(1)(a)–(b) earlier above. I am satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I now consider whether to order a remedy, and if so, whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

Reinstatement

[79] The Applicant does not seek an order for reinstatement. Regardless of the remedy sought by the Applicant, s.390 of the Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[80] Although the Respondent was initially undecided about whether he opposed an order for reinstatement in the event of a finding that the dismissal was harsh unjust or unreasonable 92, the Respondent’s ultimate position was that he opposed such a course93.

[81] The Respondent’s reason for opposing an order for reinstatement is twofold. First, the Respondent says that he has employed a new person to fill the position previously occupied by the Applicant. An order for reinstatement would require the Respondent to terminate the employment of an employee. Second, the Respondent says that “things have gone bad between Kelly on myself because she has accused me of a lot of things which I have not done specially pay issues. Also Kelly lied about a lot of things and denied a lot of things too. I cannot give her job back as its (sic) going to be a big problem in the future. I cant (sic) trust her at all” 94. I take this to be a submission that the relationship of trust and confidence has broken down.

[82] The applicant also submits that the “trust and confidence that existed in the employment relationship is destroyed 95.

[83] Despite these submissions, I am not satisfied that the relationship of trust and confidence is destroyed so as to render an order for reinstatement inappropriate. Having observed the parties during the proceedings and taking into account the fact that the parties have previously been able to reconcile after difficult and emotional altercations, I am firmly of the view that although the relationship of trust and confidence is no doubt damaged, it is not destroyed and can be restored so that a satisfactory employment relationship can be re-established. Furthermore there is no suggestion or evidence of any dishonesty on the part of the Applicant which might otherwise completely destroy the relationship of trust and confidence. The fact that the Respondent says that the Applicant “lied about a lot of things” does not change my view. Ultimately the only specific “lie” to which the Respondent could point was about the Applicant’s pregnancy. For the reasons given at [13], I do not accept that the incident shows that the Applicant was dishonest.

[84] It is natural that there is and will be some ill feeling between the Applicant and Respondent. This is not surprising given there is a contested dismissal. But this is not evidence that the relationship of trust and confidence is destroyed. In any event, the status of a relationship of trust and confidence is not the sole criterion or even a necessary one to determine whether or not an order for reinstatement is appropriate. All of the circumstances must be taken into account 96.

[85] The additional circumstances which I have taken into account are that the Applicant would, but for the dismissal, currently be on parental leave. An order for reinstatement would preserve her right to return to work after parental leave and to avail herself of a right to request flexible work arrangements upon her return. Furthermore, an order for reinstatement will permit the Applicant to have access to the paid parental leave scheme of the Commonwealth. In addition, the Respondent accepts that the Applicant was a good worker and good with customers. Both parties now should understand that they may have each misunderstood the other on occasions during the course of the Applicant’s employment which led to some tension from time to time. Such problems are not unique to this workplace and are commonplace. Sensible parties work through such issues.

[86] Although the Respondent has employed another person to fill the Applicant’s position, this fact on its own is an insufficient basis to conclude that an order for reinstatement is not appropriate 97. Firstly, the unavailability of a position in the circumstances is of the Respondent’s own making as he would have been aware of the Applicant’s unfair dismissal remedy application at the time that he employed the new employee. Secondly, this factor is not outweighed by the considerations that I have discussed above in the current circumstances. Thirdly, the effective date on which the Applicant would resume employment with the Respondent would be in February 2014. Much can happen between now and then, and the Respondent has ample time to make adjustments that might be necessary to accommodate the Applicant’s resumption of work.

[87] In all of the circumstances, I am satisfied that reinstatement is appropriate and consequently I will order the reinstatement of the Applicant into the position that she occupied prior to her dismissal by the Respondent. The effect of this order will be to restore employment as it existed immediately before the dismissal 98.

Continuity of employment

[88] As I indicated earlier, the Applicant would, but for the dismissal, currently be on parental leave. As the Applicant and the Respondent had agreed that the Applicant would commence parental leave in February 2013, I consider that it is appropriate to order the Applicant’s period of employment be continuous notwithstanding the dismissal so that the period between 7 December 2012 and the date of this order be counted as not breaking the period of service of the Applicant with the Respondent. In all other respects, the period commencing on 1 February 2013 and ending on the date of this order be treated for service purposes as a period of parental leave by the Applicant.

Order to restore lost pay

[89] The question of whether to make an order for lost remuneration, between the date of dismissal and the date of any order for reinstatement is a discretionary one. The Applicant submitted that in the event that an order for reinstatement were made it would be appropriate to order the payment of lost remuneration to 28 February 2013 in the amount of $3090.29 together with further payment of $10,917 representing 18 weeks payment the Applicant would otherwise have received as the beneficiary of the Commonwealth’s Paid Parental Leave scheme.

[90] In all the circumstances, I consider that it is appropriate to make an order for the restoration of lost pay. I do not however propose to make the order sought by the Applicant. The Applicant was dismissed with immediate effect on 7 December 2012. It is common ground that she later received two weeks pay in lieu of notice. Taking into account that two week period the Applicant would have continued working prior to commencing her maternity leave for a further 5.8 weeks. The Applicant earned $315.54 per week in her part-time employment. Consequently the loss of pay during that period was $1830.13. An order requiring restoration of the loss pay will also be made in the amount of $1830.13.

[91] As to payment for any period of parental leave, the Applicant will, as a consequence of the orders that I make, be able to apply for paid parental leave under the Paid Parental Leave Act 2010. In brief, the Applicant will need to take the following steps:

The Applicant will need to apply to the Family Assistance Office (FAO) for parental leave pay;

The FAO will determine whether the Applicant is eligible parental leave pay;

Assuming eligibility, the FAO will make an initial eligibility determination or a payability to determination;

If, as here, the Applicant has worked for the same employer for at least 12 months, the FAO will make an employer determination.

[92] The Applicant will start receiving parental leave pay, on her nominated parental leave start date or some later date having regard to her dismissal and the remedy provided for by this decision. I therefore do not make any order restoring lost pay as a consequence of the paid parental leave scheme.

[93] An order giving effect to this decision is issued separately.

DEPUTY PRESIDENT

Appearances:

A. Jewell for the Applicant.

S. Akram on his own behalf.

Hearing details:

2013.

Melbourne:

May 6.

June 11.

July 5.

1 Exhibit A1 at [4]

2 Exhibit A1 at [14] – [26]

3 Transcript PN 751 – PN 796; Exhibit R2; Exhibit A2

4 Exhibit A1 [4]

5 Exhibit A1 [4]

6 Transcript PN 717

7 Transcript PN 128 – PN 130; Respondent’s submission at pp 1 – 2

8 Respondent’s submission at pp 1 – 2

9 Transcript PN 142 – PN 149

10 Exhibit R1

11 Transcript PN 133 – PN 134; Respondent's submissions at pp 1 – 2; Transcript PN 717

12 See Respondent’s submissions where the issue of the incident of 28 December 2011 and the discussion between the Applicant and the Respondent on 29 December 2011 is dealt with at pp 1 and 2

13 Transcript PN 717

14 Transcript PN 134

15 Transcript PN 151

16 Transcript PN 151

17 Turner v Australasian Coal and Shale Employees’ Federation (1984) 6 FCR 177; Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 450 – 453, 461 – 463, 465 – 467; Visscher v Giudice (2009) 239 CLR 361; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Purcell v Tullett Prebon (Australia) Pty Ltd [2010] NSWCA 150

18 Transcript PN 151

19 See Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 166 – 167

20 Exhibit A1 at [7] – [9]; Transcript PN 86 – PN 87

21 Respondent's submissions at [5] – [6]; Transcript PN 753 – PN 761

22 Transcript PN 268; PN 753 – PN 761

23 Exhibit A1 at [8] – [11]; Transcript PN 270

24 Exhibit R4 at p.3.4

25 Exhibit R4 at p.3 .4

26 Transcript PN 715 – PN 750

27 There were a number of occasions during his evidence in which the Respondent seemed to exaggerate or embellish his evidence: See for example PN 784 – PN 785and PN 923 – PN 949; also compare the Respondent’s written employer response regarding the content of the SMS exchange and his evidence at Transcript PN 1150 – PN 1154

28 Transcript PN 748

29 Transcript PN 1978 – PN 1979

30 Transcript PN 751

31 Exhibit R5

32 Exhibit A1 [14] – [15]

33 See Exhibit A2

34 Exhibit R3; See also Transcript PN 762 – PN 772

35 Exhibit A4

36 Transcript PN 1020

37 Exhibit A3; See also Transcript PN 1038 – PN 1045

38 Transcript PN 1042 – PN 1045

39 Transcript PN 1094 – PN 1109

40 Transcript PN 1286 – PN 1297

41 Transcript PN 1291, PN 1299 – PN 1300

42 Transcript PN 1298

43 Exhibit R4 at p 4.6 and 4.7

44 The extent of the Respondent’s cross-examination of Applicant about the meeting between them on 7 December 2012 is to be found at transcript PN 616

45 Exhibit A3 at [5]

46 Exhibit A3 at [6]

47 Exhibit A3 at [7]

48 Exhibit A3 at [8]

49 Exhibit A3 at [9]

50 Exhibit A3 at [10]

51 Exhibit A3 at [11

52 Exhibit A1 at [21] – [25]

53 Exhibit A1 at [26]

54 Transcript PN 1354 – PN 1358

55 Exhibit R2

56 See further Chapter 3, Part 3-1 of the Act.

57 Exhibit R2

58 Exhibit A1 at [27]

59 See Exhibit R1; see also Exhibit A1 at [27]

60 Transcript PN 1654 – PN1662

61 Transcript PN 1416 – PN 1419

62 Transcript PN 1636 – PN 1680

63 Transcript PN 1682 – PN 1701

64 See email from the Respondent dated 17 June 2013 and attached invoice

65 See invoice of ASN Computers produced by the Respondent

66 Transcript PN 2032 – PN 2099

67 See Jones v Dunkel (1959) 101 CLR 298

68 Exhibit A1 at [27]

69 Section 386(1)

70 Transcript PN 42 – PN 45

71 See PAYG summary payment statement for year ending 30 June 2012 and contribution payment advice from Retail Employees Superannuation Pty Ltd (REST) under cover of a letter dated 14 June 2013 from the Respondent

72 Transcript PN 2070 – PN 2076

73 (2012) 219 IR 128

74 (2012) 219 IR 128 at [29]

75 The Respondent’s written material, 10 January 2013, page 2 at [3]

76 Sayer v Melsteel[2011] FWAFB 7498

77 [1995] HCA 24; (1995) 185 CLR 410 at 465

78 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378

79 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

80 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

81 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)

82 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1

83 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

84 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

85 Previsic v Australian Quarantine Inspection Services Print Q3730

86 (2000) 98 IR 137

87 (2000) 98 IR 137 at 151

88 RMIT v Asher (2010) 194 IR 1 at 14-15

89 See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]

90 Annetta v Ansett Australia (2000) 98 IR 233 at 237

91 Transcript PN 1978 – PN 1979

92 Transcript PN 1976 – PN 1987

93 Correspondence from Respondent 14 June 2013

94 Correspondence from Respondent 14 June 2013

95 Applicant’s submissions regarding remedy, 17 June 2013 [1(c)]

96 See Tenix Defence Pty Ltd v Galea, PR928494, 11 March 2003

97 See Smith v Moore Paragon Australia Ltd (2004) 130 IR 446

98 See Blackadder v Ramsay Butchering Services Pty Ltd (2005) 221 CLR 539

Printed by authority of the Commonwealth Government Printer