Kim Raatjes v J.E.T.S Solutions Pty Ltd T/A Cherubs in the Home

[2016] FWC 4817

[2016] FWC 4817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Raatjes
v
J.E.T.S Solutions Pty Ltd T/A Cherubs in the Home
(U2016/1466)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JULY 2016

Application for relief from unfair dismissal.

[1] Ms Kim Raatjes was employed by J.E.T.S. Solutions Pty Ltd trading as Cherubs in the Home from April 2006 until 9 March 2016. Ms Raatjes alleges she was unfairly dismissed. Cherubs denied the allegations.

[2] Cherubs provide cleaning and other services. Ms Raatjes was employed as a client co-ordinator. She recruited prospective cleaners and arranged matches with clients. She worked on a part time basis. Ms Jan Remzi, the owner of the business, had operated another business in 2015 and had sold that business in late 2015. During this time Ms Raatjes managed the business with little supervision.

[3] After the sale of her other business, Ms Remzi was able to devote more attention to the Cherubs business.

[4] Ms Raatjes said that during her ten years of employment she was never warned about her performance. On 4 March 2016, she had a detailed conversation with Ms Remzi about how things would work now that Ms Remzi was returning to the business. She said there was nothing in that discussion about her employment being at risk. It was Ms Raatjes’ evidence that in January 2016 Ms Remzi had given her a glowing reference in support her application to be a marriage celebrant.

[5] After Ms Remzi returned to the business, Ms Raatjes said that she thought Ms Remzi was trying to force her to resign so that she did not have to pay her wages. Ms Remzi had terminated the employment of the only remaining employee eight days after her employment was terminated.

[6] Ms Remzi gave evidence that, from February 2016 until she made the decision to terminate Ms Raatjes’s employment, she had multiple discussions with Ms Raatjes about her performance. She said she had spoken to Ms Raatjes about double handling administrative tasks and about paying for cleaners from company funds after complaints from clients. Ms Remzi said that Ms Raatjes had sent the wrong cleaners to a particular client. Ms Raatjes said that she was required to provide a cleaner at short notice and did not have any other cleaners available. She said she took the remedial action she did because the client was a friend of Ms Remzi.

[7] Ms Remzi said she discovered that Ms Raatjes had paid for corrective cleans on other occasions. She said this occurred because Ms Raatjes was engaging cleaners who should not have been engaged and she was not authorised to make these payments.

[8] She said that she discussed this with Ms Raatjes on 2 March 2016. Ms Remzi told her that she needed to run all cleaner applications past her. She told her they needed to lift their game.

[9] Ms Remzi said that Ms Raatjes was resistant to her feedback. She described her response as “defiant.”

Small Business Fair Dismissal Code

[10] Cherubs objected to Ms Raatjes’ application on the basis that it was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[11] There was no dispute that Cherubs was a small business.

The Code

[12] Cherubs did not summarily dismiss Ms Raatjes. She was dismissed because Ms Remzi, the owner of Cherubs, lost confidence and faith in her performance. Therefore the relevant part of the code provides:

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.

[13] It was Ms Raatjes’ uncontested evidence that she was never warned verbally or in writing that her employment was at risk. Ms Remzi accepted that she had never warned Ms Raatjes that her employment was at risk.

[14] Given this absence of any warning that her employment was at risk, I am satisfied that Cherubs did not comply with the Code when dismissing Ms Raatjes.

Was the termination of employment harsh, unjust or unreasonable?

[15] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[16] Ms Remzi gave evidence that she had lost trust in Ms Raatjes. It is clear that upon her return to the business Ms Remzi was not happy with the way Ms Raatjes was managing the business. It does not appear to be contested that in the previous year Ms Raatjes had little supervision. Upon her return to the business, Ms Remzi decided that Ms Raatjes took too long to complete her administrative duties and was engaging cleaners that Ms Remzi did not consider were suitable. Further she considered that Ms Raatjes was not responding to her attempts to make changes.

[17] I am not satisfied that any of these matters individually or together constituted a valid reason for the termination of Ms Raatjes’ employment. There was insufficient evidence before me to enable me to be satisfied that there was a valid reason for the termination of Ms Raatjes. It was Ms Raatjes’ evidence that she had agreed to stop double handling information. She provided a reasonable response to the other complaints raised by Ms Remzi. I am not satisfied that any under performance by Ms Raatjes provided a sound, defensible or well-founded reason for the termination of Ms Raatjes’ employment. Ms Remzi should have set clear expectations and provided Ms Raatjes sufficient time to show that she would comply with those expectations.

[18] I have considered whether, given the size of the business and the important role played by Ms Raatjes in the business, Ms Remzi’ s conclusion that she no longer had any trust in Mr Raatjes to perform her duties was a valid reason for the termination of her employment. While it was Ms Remzi’s unchallenged evidence, I am not satisfied that her conclusion was reasonable. It was not disputed that Ms Remzi had left Ms Raatjes to manage this business while she concentrated on her other interests. There was no evidence that Ms Remzi had any complaints about how Mr Raatjes performed her duties in this time. Ms Remzi returned to a hands-on role in January 2016. She records her first conversation with Ms Raatjes about performance issues on 17 February 2016. Ms Raatjes was dismissed less than one month later. Ms Remzi did not explain how Ms Raatjes’ performance had changed such as to warrant her dismissal. Nor did she produce compelling evidence to support a finding that Ms Raatjes was unwilling to comply with her directions and policies.

s387(b) whether Ms Raatjes was notified of that reason;

[19] As there was no valid reason for the dismissal, Ms Raatjes could not have been notified of the reason. However it was not contested that Ms Remzi did not discuss her reasons for dismissing Ms Raatjes with her prior to making the decision to dismiss.

s387(c) whether Ms Raatjes was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[20] As there was no discussion prior to the dismissal, Ms Raatjes was not given an opportunity to respond.

s387(d) any unreasonable refusal by the employer to allow Ms Raatjes to have a support person present to assist at any discussions relating to dismissal;

[21] As there was no discussion this criterion is not relevant.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Raatjes had been warned about that unsatisfactory performance before the dismissal;

[22] It was uncontested that Ms Raatjes was not warned about her unsatisfactory performance prior to her dismissal.

s387(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;

[23] This is a very small business. However Ms Raatjes was a long standing employee. She was entitled to be warned that Ms Remzi was unhappy with her performance and was considering terminating her employment. Even the smallest of business can afford its employees that courtesy.

s387(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;

[24] Again there was no dedicated human resources management specialists or expertise. However that does not excuse the dismissal without warning of a long standing employee.

s387(h) any other matters that the Fair Work Commission considers relevant.

[25] There were no submissions that there were any other matters I should have regard to.

Conclusion

[26] I am satisfied that the termination of Ms Raatjes’ employment was unjust and unreasonable. Ms Raatjes was a long standing employee. There was no valid reason for the termination of her employment and she was not afforded procedural fairness.

Remedy

[27] Ms Raatjes is not seeking reinstatement of her employment. She is seeking ten weeks’ pay. After the termination of her employment Ms Raatjes gained some casual employment. However she gave no evidence of what steps she took to obtain permanent employment. Ms Raatjes went on holidays from 22 June 2016 and was on holidays at the time of the hearing. This was leave she had planned whilst still in employment but it was not leave that had been approved by Ms Remzi. Ms Remzi put that this was the main reason Ms Raatjes had not sought further work.

[28] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[29] Ms Remzi said that any order would have a negative impact on the viability of the business. However she did not put forward any evidence to support this contention.

[30] I am therefore not able to conclude that any order would impact on the viability of the business.

(b) the length of the person’s service with the employer;

[31] Ms Raatjes was a long serving employee.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[32] At most Ms Raatjes would have remained in employment until she went on holidays. Ms Raatjes had not at the time of organising her holidays applied for or been granted leave.

[33] Ms Remzi gave evidence that she had not replaced Ms Raatjes and that she was undertaking all the work herself. This was not disputed. Ms Raatjes put that the real reason she was dismissed was so that Ms Remzi could avoid paying wages. If I accept that submission then it is likely that Ms Remzi would have terminated Ms Raatjes employment once she made the assessment that there was insufficient work for both her and Ms Raatjes to do. That would have been a legitimate business decision and one Ms Remzi could have made provided she complied with any obligation she may have had to consult with Ms Raatjes.

[34] In those circumstances I find that it is likely that Ms Raatjes would have remained in employment for a further four weeks.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[35] Ms Raatjes found casual work on 4 April 2016 and had been working six hours per week for 6-7 weeks prior to going on holidays. Ms Raatjes did not provide any evidence of her attempts to find permanent work. However I do not consider her lack of mitigation would cause me to reduce the amount of compensation to be paid to Ms Raatjes.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[36] In this time she had earned $127.80 per week for 6-7 weeks.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[37] Given Ms Raatjes is on holidays she will not earn anything during this time.

(g) any other matter that the Fair Work Commission considers relevant.

[38] Ms Raatjes was paid five weeks in lieu of notice.

Conclusion

[39] I therefore order J.E.T.S. Solutions Pty Ltd to pay Ms Raatjes 4 weeks wages namely $2205 taxed according to law plus $209.48 to Ms Raatjes superannuation fund within 14 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

K. Raatjes on her own behalf.

J. Remzi for the Respondent.

Hearing details:

2016.

Melbourne and Darwin, by video link:

July 18.

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