Louise Lane v Mrs Gs Pies Pty Ltd
[2023] FWC 2992
•15 NOVEMBER 2023
| [2023] FWC 2992 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Louise Lane
v
Mrs Gs Pies Pty Ltd
(U2023/7006)
| COMMISSIONER SIMPSON | BRISBANE, 15 NOVEMBER 2023 |
Application for an unfair dismissal remedy
On 31 July 2023, Ms Louise Lane (Ms Lane /the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Mrs Gs Pies Pty Ltd (the Respondent).
The Form F3 submitted by the Respondent raised a jurisdictional objection that the Applicant was not dismissed.
The matter was listed for Hearing by Microsoft Teams on 27 October 2023 for both jurisdiction and merits. Ms Lane appeared on her own behalf and Mr Tobias Banks appeared on behalf of the Respondent. The parties agreed that the matter should proceed as a determinative conference and I determined it was appropriate to proceed that way.
In addition to the Form F2 application, Ms Lane filed a submission dated 4 October 2023, and two separate witness statements both dated 4 October 2023. The first statement of 58 paragraphs[1] and the second statement of 20 paragraphs[2] were admitted as evidence. The Applicant also relied on the evidence of Mr Will Johnston who provided a statement of six paragraphs[3], and a statement of Ms Sarah Green of three paragraphs.[4]
In addition to the Form F3 Response the Respondent filed submissions dated 24 September 2023, and a witness statement of Mr Banks of 20 paragraphs also dated 24 September 2023 was admitted into evidence.[5]
BACKGROUND
On Tuesday 21 June 2022 the Applicant first started working at Mrs Gs Gourmet Pies. After returning from holidays in January 2023 the Applicant was informed that Mr Banks was coming to look at buying the business.
On 10 March 2023 the Applicant and Mr Banks had a sit-down meeting at urban grounds at 9am where they discussed staff and that she wanted to keep to the standards of staff the customers had known. On 17 March 2023 at 9:30am they had another meeting where they finalised staff to interview and give trials to.
On 23 March 2023 Mr Banks took over the business.
On 21 July 2023, a staff meeting was held by Mr Banks where on the evidence filed a factual dispute arises as to whether what Mr Banks said amounted to the dismissal of the Applicant.
Shortly after the staff meeting, Mr Banks left the business to get a coffee. During this time, the Applicant took the Respondent’s recipe book and left the business premises. The Applicant left two messages with the Respondent.
At 9:11am Friday 21 July 2023 the Applicant sent a text message to the Respondent as follows:
“Tobais what is my award and rate of pay? How many hours will I be doing? I can not afford to go casual and I think it was really unfair of you to do that in front of everyone. You knew from the beginning I needed a permanent position”
At 10:16am Friday 21 July 2023 the Applicant sent a text message to the Respondent as follows:
“Just so you know I have taken MY cook book as you were very unfair in what you did. As you know it was my property and not yours and I will have it with me for my shifts only from here on in.”
When Mr Banks returned, he noted that the recipe book was no longer at the business premises. Given this, the Respondent was of the understanding that the Applicant no longer wished to act in accordance with the terms of her employment contract, and therefore had repudiated the contract or otherwise resigned.
At about 11:14 am 21 July 2023, the Respondent received an email from the Applicant stating:
“I’m guessing I will be getting my holiday pay next week as I’m no longer a permanent employee.”
The Respondent was of the understanding that the Applicant was requesting all of her annual leave entitlements to be paid out, and that she no longer viewed herself as an employee of the Respondent’s business, thereby intimating her resignation.
On the same day 21 July 2023, the Respondent was notified by the Food Health and Safety Department that the Applicant had informed the Department that she was no longer the Food Safety Officer for the Respondent’s business.
Further, at about 9:29pm on 21 July 2023, the Respondent was notified by ‘Robyn’, the market stall owner of Toowoomba Farmers Market that the Applicant had been in contact with ‘Robyn’ to advise that she had parted ways with the Respondent at the Respondent’s business.
JURISDICTIONAL ISSUES
Was there a termination at the initiative of the Respondent
The Respondent submitted that at no time was the Applicant terminated on the initiative of the Respondent.
The Respondent submitted they never advised the Applicant that she is or would be dismissed.
The Respondent is of the understanding that the Applicant had either resigned from or abandoned her employment as at 21 July 2023, as a direct consequence of the following actions:
The Applicant’s unauthorised conduct in removing the Respondent’s recipe book from the Respondent’s business premises and keeping the recipe book in her possession;
The Applicant’s telephone call on 21 July 2023 to the Food Health and Safety Department in Toowoomba, in which she advised that she wished to remove herself as the listed Food Safety Officer for the Respondent’s business;
In an email of 11:14 am 21 July 2023, the Applicant requested her annual leave to be paid out and advised that “I’m no longer a permanent employee”;
The Applicant advised a stakeholder of the Respondent, ‘Robyn’, the market stall owners of Toowoomba Farmers Market that she had parted ways with Mrs Gs Pies.
Meeting on 21 July 2023
Mr Bank’s written evidence was that at approximately 7:30 am or 8:00 am, on 21 July 2023, he held a staff meeting where he announced:
· He would be taking back control of the business;
· He will not hire any more permanent employees;
· He will be in charge now, including in the ordering of goods and the management and recruitment of all staff.
Mr Banks also said in his written evidence that he also requested the return of keys from all staff members for security purposes. He said he handed back the keys to those employees who were rostered on to work the next day. Mr Banks said the Applicant was not rostered on to work the next day. Mr Banks contended that he did not advise any employees that their employment would be terminated, and there was certainly no intention to do so. Mr Banks stated he then left the premises to get a coffee.
The Applicant said that at 8am on 21 July 2023 they started the staff meeting and during that meeting Mr Banks announced that he no longer had any permanent staff or titled staff like manager. The Applicant submitted that Mr Banks then informed everyone that he would let them all know privately what their new award was as he was paying under the wrong award, and they would receive their hours on Sunday afternoon. The Applicant stated that they were told the roster that was already done for next week was no longer valid and he would be sending a new roster for the next week. He then asked all staff for their keys. The Applicant stated that two other staff had keys handed back to them after the meeting and before he left. The Applicant submitted that since the meeting she had not heard anything from Mr Banks even after she sent him two messages.
Mr Banks submitted that at no point did he advise the Applicant, or any of its employees, that their employment would be terminated, and significantly, the statements made in the announcement were certainly not intended to convey a termination of the Applicant's employment in front of other staff members present. Mr Banks submitted that there was no specific reference made to the Applicant's name or the Applicant's employment status in the statements made by Mr Banks during the announcement, and as such, there was no dismissal at the initiative of the Respondent.
The Respondent put in its written submissions that its conduct, or course of conduct, did not force the Applicant to resign. It was submitted that during the announcement, Mr Banks merely intimated to the Respondent's employees that it would not be employing any further permanent employees and that he would be taking control of the business from that point onward. As such, there was no intention by the Respondent that the Applicant would no longer have a working role going forward.
The Respondent contended in written submissions that the announcement cannot be construed as a termination, or otherwise as an act that has forced the Applicant to resign.
However, Mr Banks’ oral evidence departed from the version in the written material. Mr Banks explained that he had a discussion with his accountants, and they had said to him they were sick of the Applicant emailing them about private issues, and telling him that his company was going down a deep hole and he had to take control of his business. Mr Banks said he thought that at the meeting on 21 July that the Applicant misunderstood that she was being sacked because he said he no longer wanted managers or full-time staff. Mr Banks said he was not going to fire anyone.
Mr Banks accepted in his oral evidence that he was no longer going to have any full-time employees, and he agreed that the Applicant was a permanent full-time employee at the time, however it was later clarified that the Applicant was in fact a permanent part time employee working 32 hours per week. Mr Banks confirmed in his oral evidence that he agreed when he took over the business that the Applicant’s employment would be permanent on a rate of $35 per hour and he was happy with that at the time.
Mr Banks agreed in his oral evidence that at the time of the meeting on 21 July it was his intention to retain the Applicant as an employee but not as a permanent employee, and instead as a casual employee because he had to cut costs. Mr Banks said it was his intention that he would take back the functions of the ordering, the hiring, and the hours for everybody. Mr Banks agreed these functions had been being performed by the Applicant. Mr Banks said the Applicant’s role in the future was to be to come in and cook and that would be it, as a casual employee.
Mr Johnston and Ms Green gave evidence consistent with the Applicant’s recollection of the meeting on 21 July.
It is clear from the evidence that Mr Banks communicated to the meeting that from that point of the meeting moving forward there would no longer be any permanent employees employed by the business. It is also clear that the Applicant was the only permanent employee at the time, and the statement could only have been directed at her, as it would only impact on her. Mr Banks also confirmed in his evidence that it was his intention that from the point of the meeting the Applicant was to be engaged as a casual employee as all other staff were, and that he would be from that point taking over functions that the Applicant had previously performed including ordering, rostering and hiring of staff.
Applicant’s text to Mr Banks immediately after meeting on 21 July
At 9:11am on Friday 21 July 2023 the Applicant sent the following message to Mr Banks:
“Tobais what is my award and rate of pay? How many hours will I be doing? I can not afford to go casual and I think it was really unfair of you to do that in front of everyone. You knew from the beginning I needed a permanent position”
Recipe Book
Just over an hour later at 10:16am on Friday 21 July 2023 the Applicant sent the following message to Mr Banks:
“Just so you know I have taken MY cook book as you were very unfair in what you did. As you know it was my property and not yours and I will have it with me for my shifts only from here on in.”
Mr Banks stated when he returned from getting a coffee, he discovered the recipe book was missing.
The Applicant submitted that Mr Banks or Mrs Gs never owned the recipe book. The Applicant stated that Mr Banks never followed up from his purchase of the business to collect recipes/cookbooks from the previous owner. He only ever contacted the previous owner to get one recipe after a customer asked for a particular pie that the Applicant hadn't googled/written a recipe for, that being the seafood pie recipe.
Mr Banks submitted he never provided authorisation for the Applicant to remove the recipe book from the Premises. Mr Banks submitted that the Applicant is aware or ought to have been aware that the recipe book is the property of the Respondent, due to the fact that the recipe book belonged to the previous owners of the Respondent's business and that upon the sale of the business to the Respondent, the ownership of the recipe book would have transferred to the Respondent.
Mr Banks stated that he was of the view that her very conduct in taking the Recipe Book meant that she wanted to cause the business financial harm and that she no longer wanted to be bound by the terms of her employment contract.
Mr Banks posed the question in his oral evidence, how could he sell the business without any recipes? Mr Banks said once the Applicant took the recipe book, he was done with her.
I put to Mr Banks that the Applicant maintained it was her recipe book. Mr Banks responded with the question, why would he buy a business without recipes? Mr Banks repeated that he cannot sell his business without recipes. Mr Banks said that he asked the previous owner of the business ‘Sara Hancock’ at the time he was purchasing the business, whether the recipes would come with the business and Sara Hancock said yes.
The Applicant said that Mr Banks knows that is untrue and that the Applicant claimed she had said to Mr Banks she needed to contact Sara to obtain copies of all of the recipes. The Applicant said that the recipes in the book were recipes she had put together and googled, and tried and tested in previous jobs, and they were not recipes that she had received from Sara Hancock the previous owner. The Applicant said she tried to make the book so that others could follow the recipes that she had put together for them.
The Applicant said there was no book when the previous owner operated the business. The Applicant said she put the recipe book together herself. The Applicant said in her own time she had typed up recipes from previous jobs and bought a folder from Officeworks and put it together. The Applicant said the only recipe in the book from Ms Hancock was a beef brisket recipe.
Mr Banks evidence appeared to be that there was no written agreement concerning a recipe book being part of the purchase of the business. The Applicant raised that if Mr Banks thought she had ‘stolen’ the cookbook why did he never contact her about it seeking it back. The Applicant said the reason is because Mr Banks knows it is not his cookbook and she was merely trying to make the business function. Mr Banks claimed he made a police statement online but did not hear anything back from the police.
Mr Johnston gave evidence in his statement concerning a conversation he claimed he had involving both Mr Banks and the Applicant on 6 July 2023 where Mr Banks, according to Mr Johnston, agreed that the recipe book belonged to the Applicant, and that Mr Banks had said the previous owner Ms Hancock did not give him a recipe book. Mr Banks rejected Mr Johnston’s version and said as Mr Johnston quit his job by sending a text message, he has no credibility. Mr Johnston said his statement is an approximated version of the conversation and he continued to maintain that the physical copy of the recipes was made and owned by the Applicant.
Ms Green also gave evidence that Mr Banks knew the Applicant owned the cookbook because there were many discussions about the cookbook at work when she was on shift and on one occasion Mr Banks, the Applicant and Ms Green were talking about how lucky Mr Banks was that the Applicant did up the cookbook as Ms Hancock (the previous owner) never actually gave him any recipes. Ms Green stood by her evidence in her oral evidence. Mr Banks said he did not recall this conversation or situation.
Request for Annual Leave to be paid out
Mr Banks stated that at approximately 11:14 am on the same day of 21 July 2023, he received an email from the Applicant stating:
"I'm guessing I will be getting my holiday pay next week as I'm no longer a permanent employee."
Mr Banks stated that he understood this to be a request from the Applicant for her annual leave to be paid out and he did so accordingly. Mr Banks stated that he also took this to mean that the Applicant no longer viewed herself as an employee and had therefore resigned. Mr Banks stated that he believed that the Applicant’s actions were clear and unambiguous insofar that she wished to leave the employment of Mrs Gs.
The Applicant submitted she asked for her annual leave as he legally needed to pay that out if she was no longer a permanent employee. The Applicant stated this did not mean she had resigned. The Applicant submitted that the lack of communication from Mr Banks from her text message at 9:11am some 2 hours prior showed he had no intention of contacting her. The Applicant stated that she had also received a message from one of the staff to say that he had messaged them at 10:02am 21 July 2023.
The Respondent was of the understanding that the Applicant was requesting all of her annual leave entitlements to be paid out, and that she no longer viewed herself as an employee of the Respondent's business, thereby intimating her resignation. The Respondent made this payment on 24 July 2023 as per the Applicant's request.
Food Health and Safety Department Call
The Applicant stated that on 21 July 2023, as she was the responsible person according to the Council as the Food Safety Supervisor, she removed her name as the Supervisor as from what she was aware she was now a casual employee if employed at all. The Applicant submitted that she let the Council know that she was not taking responsibility for any staff misconduct or lack of knowledge.
Mr Banks submitted that at about 8:51 am on 21 July 2023, he received notification that the Applicant had advised the Food Health and Safety Department that she was no longer the Food Safety Officer for Mrs Gs Pies. The Respondent submitted that this was taken without recommendation or requirement by him. The Respondent understood this to be an act by the Applicant to resign from her employment.
Message to stakeholder of Toowoomba Farmers Market.
The Applicant submitted that she did email The Toowoomba Farmers Market owner as she was concerned for her Safety at the Market on Saturday. The Applicant submitted that her fiancé was also concerned for her safety and stayed at the market with her that day.
The Respondent submitted that at about 9:29 pm on 21 July 2023, the Respondent was notified by ‘Robyn’, the market stall owner of Toowoomba Farmers Market that the Applicant had been in contact with ‘Robyn’ to advise that she had parted ways with the Respondent at the Respondent's business. The Respondent understood this as a definitive intention by the Applicant to resign from her employment.
Consideration of Jurisdictional Issue
I am satisfied on the basis of the evidence that the combination of the announcements by Mr Banks at the staff meeting on the morning of 21 July 2023 that there would no longer be any permanent staff, and that he was taking over a range of functions that the Applicant to that point had performed, and his requirement that the keys to the premises, including the Applicant’s keys, be returned to Mr Banks, amounted to a termination of the Applicant’s employment relationship with the Respondent. The fact that Mr Banks had intended to continue to offer the Applicant future casual employment, does not alter the fact that he had ended the permanent employment relationship between the Applicant and the Respondent.
The fact that Mr Banks chose not to respond to the messages sent to him by the Applicant, which in effect asserted that he had ended the permanent employment relationship, further supports the conclusion above. Even if it were to be the case that the termination at the initiative of the Respondent had not yet occurred through the actions of Mr Banks at the staff meeting on the morning of 21 July, I am satisfied that at the very latest the employment relationship was ended by the subject actions of Mr Banks in not responding to the Applicant’s requests for clarification. It is notable that Mr Banks said in his evidence that when he became aware that the Applicant had taken the Recipe Book that he was done with her.
Small Business Code
Whilst there was no dispute that the Respondent was a small business employer, Mr Banks accepted prior to any witness evidence that he maintained that the Applicant resigned and he did not maintain that there were any conduct or performance issues that he considered a basis for terminating the Applicant’s employment. Mr Banks framed the Applicant’s communications to the Toowoomba Farmers Market, the Food Health and Safety Department, and himself, including regarding the Recipe Book as confirmation that she had resigned, rather than a basis for him to terminate the Applicant, even though I have found the Applicant was terminated at the Respondent’s initiative.
It is also apparent that the dismissal was summary. It is clear that the Respondent has not satisfied the requirements of the Small Business Fair Dismissal Code. Even though Mr Banks did not claim to hold a reasonable belief at the relevant time that the Applicant had engaged in serious misconduct, even if he had claimed that the summary dismissal was on the basis of either the taking of the recipe book, of the communications with Toowoomba Farmers Market and the Food Health and Safety Department, none of those things would have grounded a reasonable basis for Mr Banks to believe that the Applicant had engaged in serious misconduct. The evidence tends to support the conclusion that the Recipe Book did not belong to the business, and the other steps taken by the Applicant were not unreasonable given what Mr Banks had explained would be the arrangements moving forward from the staff meeting.
Genuine Redundancy
The Respondent has not argued an alternative position that this is a case of genuine redundancy, however given the manner in which the evidence has been provided it is appropriate to consider the terms of section 389. It is arguable that the effect of the decision communicated by Mr Banks at the staff meeting could satisfy section 389(1)(a) as the evidence supports a conclusion that Mr Banks had made a decision that he no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the business. Mr Banks decided as a non-employee owner of the business he would absorb some of the functions that the Applicant performed, and what remained of the Applicant’s role would be performed on a casual basis. This is what he told the staff meeting.
The Respondent’s business is covered by the General Retail Industry Award as was acknowledged in the Form F3 Response to the application. I am satisfied given the nature of the duties that the Applicant performed that she was covered by that Award. It is apparent given the evidence that the Respondent did not meet the consultation obligations in that Award prior to implementing the decision announced at the staff meeting on 21 July.
On that basis the termination did not amount to a genuine redundancy.
Given the nature of the way the decision was announced, the failure to consult prevented any meaningful ability to mitigate the effects of the decision on the Applicant, and to explore what other options may have been available prior to the termination of her employment.
MERITS
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
The onus rests with the Respondent in cases such as this to establish that it had a valid reason for dismissal. The Applicant was not terminated for a reason connected to her conduct or performance. On that basis section 387(a) is a neutral consideration.
(b) Whether the person was notified of the reason
The Applicant first became aware of the decision that her permanent employment would be ending at the staff meeting on the morning of 21 July 2023. In any event, the reason does not appear to be connected to the Applicant’s conduct or performance so again this is a neutral consideration.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
For the reasons already explained this is also a neutral consideration.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
There was no opportunity for the Applicant to request a support person to assist in any discussions as the decision was simply announced without notice.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
The termination was not related to the Applicant’s performance. This is a neutral consideration.
(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
The employer is a small business and this is likely to have impacted on the procedures followed in effecting the dismissal.
(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
The Respondent did not have a dedicated human resource management specialist or expertise in the enterprise and this is likely to have impacted on the procedures followed.
(h) Any other matters that the FWC considers relevant
The Applicant’s employment in the period of the time that Mr Banks owned the business was fairly brief, being from 23 March 2023 to 21 July 2023, however the Applicant’s previous service in the business counts as employment for the purposes of the minimum employment period and amounts to a period of 13 months. The Applicant had no notice that she would be dismissed from her permanent part time position of 32 hours a week. The Applicant has suffered financially from the loss of this income.
It is also apparent that the business was in financial difficulty and Mr Banks as the owner of the business had taken a decision following a discussion with his accountants to take a hands on approach and take over certain roles from the Applicant, and to terminate her permanent role in an attempt to save costs. As the owner of the business Mr Banks is entitled to make organisational changes that he deems are necessary, however he has failed to meet his obligations to consult the Applicant about his decision as required by the General Retail Award, and he has denied the Applicant the opportunity to raise any proposals for him to consider about how to mitigate the effects of his decision on the Applicant before making the decision.
CONCLUSION ON HARSH, UNJUST OR UNREASONABLE
Having weighed each of the matters in section 387 to the extent that they are relevant, I am satisfied that the dismissal was harsh, unjust or unreasonable.
REMEDY
The Applicant has made clear she does not seek reinstatement and that reinstatement would not be appropriate as Mr Banks had completely broken their relationship by not responding to messages and treating her the way he has since the meeting on 21 July. In all of the circumstances of this case, I am satisfied reinstatement would not be an appropriate remedy.
Section 390(3)(b) of the Act provides that the Commission may only issue an order for compensation if it is appropriate in all the circumstances. Compensation as a remedy is designed to compensate an unfairly dismissed employee, in lieu of reinstatement, for losses reasonably attributable to the unfair dismissal, within the bounds of the statutory cap on compensation that is to be applied.[6]
I must determine whether an order for compensation is appropriate.
Section 392(2)(c) - remuneration that the Applicant would have received, or would have
been likely to receive
The Applicant was earning $35 dollars per hour for 32 hours per week on a permanent basis prior to her termination. This amounts to a sum of $1120 per week. The Applicant said she intended to remain as an employee for as long as she could had she not been dismissed. The Applicant said she was seeking a remedy of eleven (11) weeks pay. Therefore, the sum the Applicant seeks is $12,320.00.
It is apparent from the evidence that the financial position of the Respondent was that it had considerable debt and needed to make changes. Given that Mr Banks had decided to take over some of the roles performed by the Applicant it is also likely that had Mr Banks consulted with the Applicant as required, there would have still been considerable stressors in their relationship because the Applicant was clear that she needed permanent employment and Mr Banks only intended to offer future casual employment.
I am inclined to the view that the working relationship between Mr Banks and the Applicant was unlikely to last much more than another four weeks even if some accommodation had been reached between them. Four weeks’ pay amounts to a sum of $4,480.
Section 392(2)(e) - any remuneration during period between the dismissal and the making of the order for compensation and section 392(2)(f) - income reasonably likely to be so earned during the period between the making of the order for compensation and the actual
The Applicant’s evidence was that during her employment she did have a separate business of her own, but she had been unable to obtain any employment to replace the income she had lost from being no longer employed by the Respondent. I do not intend to make any deductions to the amount of any order on the basis of a stream of income that existed whilst the Applicant was employed by the Respondent, and that she would have continued to earn had she not been dismissed.
Section 392(2)(d) – Applicant’s efforts to mitigate the loss suffered because of the dismissal
The Applicant said she had applied for many jobs however had not been successful at the time of the determinative conference in obtaining other employment.
Section 392(2)(a) - effect of the order on the viability of the Respondent’s enterprise
The Respondent filed as part of its case a letter from its Accountants Fitzpatrick Accounting that included the following:
“22nd September 2023
To whom it may concern
According to the financial records provided by our client, as of today’s date, the company has creditors of approximately $44,757.00 with available cash assets totally approximately $6,600.00.
It is our opinion that at this time, the company does not have the financial capacity to pay any compensation being sought by Ms Louise Lane.
Yours Faithfully
Fitzpatrick Accounting
….”
Mr Banks in his oral evidence said the business is still trading with three staff and he pays the wages weekly. Mr Banks confirmed the Respondent was not in administration. The Applicant said in her closing submissions she was prepared to be paid compensation on a weekly basis, in other words, in instalments rather than as a lump sum.
Mr Banks said in closing that there is no money in the business, and he has had to drag the company out of a huge debt to try and keep the business going. Mr Banks said he was not taking a salary or wage out of the business. Mr Banks said he is a disability support worker, and income from that work is what keeps a roof over his head. Mr Banks said he is currently working from 7am to 11.30am in the business, and then from 12 midday with his disability clients and does not get home until 8pm at night and has had to ask his parents for financial assistance, and other businesses have not paid invoices to the Respondent.
Mr Banks said he has had to cut the staff just to make $400 a day from the business.
The Applicant said that the money she spent in the business was to keep the business afloat, and you cannot make pies from fresh air.
I am cognisant that the business was and is struggling financially and has limited capacity to service its debt and meet other expenses. It is apparent Mr Banks is working part of the day in the business and part of the day in another job, and is receiving financial assistance from family members. It is appropriate in the circumstances to reduce the amount of compensation to recognise the reality of the situation.
I intend to reduce the amount of compensation to be ordered by a further two weeks to $2,240.
Section 392(2)(b) - length of the Applicant’s service with the Respondent
The Applicant only worked for the Respondent during the period in which Mr Banks owned the business from 23 March 2023 to 21 July 2023 however was employed for 13 months in the business as her service with the previous owner counts for the purposes of the minimum employment period.
Section 392(2)(g) - any other matter that the FWC considers relevant
It is apparent to me as Mr Banks accepted at the determinative conference that he is not experienced in running a business, and the manner in which he implemented the decision to restructure the running of the business was poorly handled and may have resulted in a better outcome for the Applicant had he consulted as required. However, it is also apparent that the business Mr Banks had purchased was experiencing significant financial difficulties and it was inevitable that changes would have to be made if the business was to survive.
CONCLUSION ON REMEDY
Having weighed each of the considerations under section 392 I intend to issue an order that the Respondent, Mrs Gs Pies Pty Ltd, pay to the Applicant, Ms Louise Lane, the sum of $2,240 gross taxed according to law, plus 11% superannuation on that amount paid into Ms Lane’s nominated superannuation fund. The payment is to be made in two equal instalments. The first payment of $1,120 gross plus 11% superannuation on that amount is to be made no later than 14 days from the date of this decision. The second payment of $1,120 gross plus 11% superannuation is to be made no later than 21 days from the date of this decision. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Ms Louise Lane on her own behalf.
Mr Tobias Banks for the Respondent.
Hearing details:
2023
By Microsoft Teams Video
27 October 2023.
[1] Exhibit 1.
[2] Exhibit 2.
[3] Statement of Will Johnston.
[4] Statement of Sarah Green.
[5] Exhibit 3.
[6] Deborah Kable v Bozelle, Michael Keith T/A Matilda Greenbank[2015] FWCFB 3512 at [17].
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