Mariella Rejon v Jonker Family Trust T/A Streakers Hair Design

[2015] FWC 4887

[2015] FWC 4887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mariella Rejon
v
Jonker Family Trust T/A Streakers Hair Design
(U2014/14286)

DEPUTY PRESIDENT ASBURY BRISBANE, 5 AUGUST 2015

Application for relief from unfair dismissal.

BACKGROUND

[1] Ms Mariella Rejon applies under s.394 of the Fair Work Act2009 (the Act) for an unfair dismissal remedy with respect to her alleged dismissal by Jonker Family Trust T/A Streakers Hair Design (Streakers Hair). Ms Rejon was employed by Streakers Hair as a full time hairdresser from 1 July 2005 until her employment ended on 27 November 2014.

[2] Ms Rejon asserts that she was dismissed during a discussion with Mrs Anieta Poll Jonker on the morning of 26 November 2014. She further asserts that the dismissal was unfair on the basis that there was no warning, discussion or correspondence in relation to her work performance and conduct. Ms Rejon also alleges that the owners of Streakers Hair are falsely claiming that she resigned her employment in order to avoid paying her accrued long service leave.

[3] Streakers Hair objects to the application and asserts that Ms Rejon was not dismissed but verbally resigned her employment on the morning of 26 November 2014. Streakers Hair also asserts that Ms Rejon’s long service leave entitlements had no bearing on the cessation of her employment and that Ms Rejon left her employment with the Company to take up employment with another salon because she did not wish to relocate to new premises at Salacia Waters to which Streakers Hair proposed to move its salon.

[4] The application was made on 17 December 2014, within the time required in s. 394(2) of the Act. It is not in dispute that Ms Rejon is a person protected from unfair dismissal as defined in s.382 of the Act. The dismissal is not a case of genuine redundancy. It is also not in dispute that Streakers Hair is a small business. In the event that the jurisdictional objection does not succeed, it will be necessary to decide whether Ms Rejon’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code) and if not, to consider whether the dismissal was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act.

CONDUCT OF THE CASE

[5] The application was listed for arbitration/conference/hearing in relation to both the jurisdictional objection and the substantive application and Directions were issued by the Fair Work Commission, Unfair Dismissals Team in relation to the filing and service of outlines of submissions and witness statements. The Directions required:

• Ms Rejon to file an outline of submissions and witness statements in relation to her unfair dismissal application by 16 March 2015;



• Streakers Hair to file submissions and witness statements in relation to its jurisdictional objection by 7 April 2015;



• Streakers Hair to file an outline of submissions and witness statements in opposition to Ms Rejon’s unfair dismissal application by 30 March 2015; and



• Ms Rejon to file an outline of submissions and witness statements in response to the jurisdictional objection by 21 April 2015.

[6] The Directions stated that any extension of time should be sought in advance of the specified time and also made it clear that any documents and correspondence sent to the Commission by either party should also be forwarded to the other party. Further, after the file was allocated to me, my Associate corresponded with the parties informing them that if a statement was provided by a witness, the witness would generally need to be available to attend the hearing, give evidence and be cross-examined.

[7] Streakers Hair was represented by a member of the Poll Jonker Family Trust, Mr Eddie Poll Jonker. Ms Rejon was represented by her brother in law, Mr Paul Brandalise, who is the Chief Operating Officer of a law firm. The conduct of both representatives left much to be desired as evidenced by a large number of “tit for tat” emails to the Commission wherein each made a series of complaints about the other. Regrettably, the focus on such emails appears to have resulted in a failure by the parties to focus their attention on matters that were relevant to their respective cases.

[8] Mr Brandalise made a complaint that Mr Poll Jonker was harassing Ms Rejon’s new employer and further complained that Mr Poll Jonker insisted on including the name of the law firm Mr Brandalise works for when completing documentation for the Commission, despite the fact that the firm had not been instructed in the matter and that Mr Brandalise was acting for Ms Rejon in a private capacity.

[9] The reality was that Mr Poll Jonker did nothing more than make perfectly reasonable requests of Ms Rejon’s new employer in an attempt to confirm the date upon which she was interviewed and/or accepted employment – a matter that was central to the jurisdictional objection taken by Streakers Hair. It is also the case that emails sent by Mr Brandalise – including the one complaining about Mr Poll Jonker’s reference to the firm he works for – contain his title and the name of the firm.

[10] Ms Rejon (represented by Mr Brandalise) failed, on three occasions, to comply with Directions of the Commission in relation to filing material. Mr Poll Jonker made two applications under s. 399A seeking that Ms Rejon’s application be dismissed and sent a considerable amount of correspondence to the Commission complaining about its conduct of the matter and about Ms Rejon and Mr Brandalise. The first of Mr Poll Jonker’s applications under s. 399A was dealt with by Deputy President Gooley, who refused to dismiss the substantive application and extended the time for Ms Rejon to file an outline of submissions and witness statements in relation to her application for an unfair dismissal remedy, from noon on 16 March to noon on 25 March 2015. Amended Directions were issued to that effect.

[11] Ms Rejon, did not comply with the amended Directions and filed material in the form of a submission at 5.23 pm on 25 March 2015. That material was served on Streakers Hair at 4.32 pm on that date. This further non-compliance prompted Mr Poll Jonker to file a second application under s. 399A of the Act, seeking to have Ms Rejon’s unfair dismissal application dismissed. By that point the file had been allocated to me and I held a hearing on 8 April during which I reiterated that compliance with Directions was required and that any extension needed to be sought before the date or time required for compliance. Mr Brandalise sought a further extension asserting that the reason for non-compliance was the hospitalisation of Ms Rejon’s father making it difficult for him to obtain instructions.

[12] Mr Poll Jonker objected strenuously to the further extension and sought to revisit the matter of the previous extension granted by Deputy President Gooley. Following receipt of evidence in the form of a medical certificate in relation to the hospitalisation of Ms Rejon’s father, I further extended (by a period of five hours and 23 minutes) the time for filing of material in support of Ms Rejon’s application. I did so on the basis that I accepted the reason for non-compliance provided by Mr Brandalise on behalf of Ms Rejon; the delay was not excessive and there was no evidence of any prejudice to Streakers Hair other than that occasioned in the normal course of pursuing its jurisdictional objection and defending Ms Rejon’s application.

[13] Not only was the material filed on behalf of Ms Rejon on 25 March 2015 late, it was also not in accordance with the Amended Directions. The material did not include a witness statement and was responsive to the jurisdictional objection rather than dealing with the basis upon which Ms Rejon claimed to have been unfairly dismissed. It was only after Streakers Hair filed its submission and witness statements that a witness statement made by Ms Rejon was filed on 26 April, which canvassed matters that should have been included in the material filed by her on 25 March 2015. Furthermore the witness statement was filed five days outside the 21 April date, again without any explanation or extension being sought.

[14] Mr Poll Jonker on behalf of Streakers Hair filed an outline of submissions, witness statements made by Mrs Anieta Poll Jonker and Ms Sandy Poll Jonker and a number of statutory declarations made by various persons including an apprentice employed by Streakers Hair, a customer and an accountant, Mr Yayati Sudame. The statements made by the apprentice and the customer were hearsay and irrelevant.

[15] Mr Sudame’s statutory declaration stated that he was contacted by Ms Sandy Poll Jonker via email on 25 November 2014, informing him of Ms Rejon’s intention not to continue her employment. I issued a notice to Mr Sudame, at the request of Ms Rejon’s representative, requiring production of that email. The email was produced by Mr Poll Jonker, notwithstanding that the notice to produce was not addressed to Mr Poll Jonker. Mr Poll Jonker objected to the substance of the email from Ms Sandy Poll Jonker to Mr Sudame being put into evidence notwithstanding that the statement of Mr Sudame filed on behalf of Streakers Hair referred to the email. Mr Poll Jonker also filed correspondence sent by him to Ms Rejon’s new employer stating that if a response was not received to his request for information about when Ms Rejon commenced employment, he would request that the Commission subpoena the person as a witness.

[16] At the commencement of the hearing on 15 May 2015, Mr Poll Jonker complained about not receiving Ms Rejon’s statement in relation to the substantive application within the required time and that Streakers Hair should have received Ms Rejon’s material in advance of filing its material. Mr Poll Jonker was given the option of seeking to have the hearing date vacated to enable him to consider Ms Rejon’s statement, or to have a brief adjournment to consider the statement and to proceed with the hearing. Mr Poll Jonker took the second option and after a short adjournment, the hearing proceeded.

[17] At the hearing, Ms Rejon gave evidence on her own behalf. Ms Rejon’s new employer was not called to give evidence by either Mr Brandalise or Mr Poll Jonker. Mrs Anieta Poll Jonker gave evidence on behalf of Streakers Hair. Each of the representatives complained of failure to call witnesses by the other. Mr Brandalise stated at the mention on 8 April 2015 that he would call Ms Rejon’s new employer to give evidence and then did not do so. Mr Poll Jonker was expecting that this witness would be called and did not pursue his endeavours to have an attendance notice issued. Mr Brandalise was expecting that Mr Poll Jonker would call Mr Sudame and Ms Sandy Poll Jonker, given that witness statements made by both of those persons were filed.

[18] Mr Poll Jonker explained the failure to call witnesses for whom he had provided statements by virtue of the fact that Sandy Poll Jonker was required to run the business on the day of the hearing and Mr Sudame required a fee to attend, which Streakers Hair could not afford to pay. Mr Brandalise urged me to draw an inference about the failure on the part of Streakers Hair to call witnesses. To further complicate matters, two versions of Mrs Poll Jonker’s statement were required to be tendered because the version provided to Ms Rejon was different from the one filed with the Commission in at least one respect. In my view the difference between the statements was not material.

[19] I decline to draw adverse inferences in relation to the failure of parties who are essentially unrepresented, to call relevant witnesses. I also note that Mr Brandalise who urged that I draw an adverse inference in relation to the failure of Streakers Hair to call a witness, also failed to call an apparently relevant witness in circumstances where he said that he intended to do so.

[20] Both Ms Rejon and Mrs Poll Jonker were unconvincing witnesses, and Ms Rejon in particular was argumentative and non-responsive to the questions she was being asked in cross-examination, even making allowances for the fact that some questions were irrelevant. Doing the best I can with the material before me, I summarise below the evidence and submissions relevant to the matters in dispute.

EVIDENCE AND SUBMISSIONS

[21] Mrs Poll Jonker’s evidence in support of the assertion that Ms Rejon resigned was that on Tuesday, 25 November 2014, Ms Rejon approached the shop exit door at the end of her shift and told Mrs Poll Jonker that she had a job interview the next day, and then left the shop without further conversation. That evening, there was a family meeting between Mr and Mrs Poll Jonker and Ms Sandy Poll Jonker, to discuss Ms Rejon’s actions and the possible outcome of her intention to seek other employment.

[22] According to Mrs Poll Jonker it was decided at the family meeting that should Ms Rejon resign, her resignation would be accepted with immediate effect, as this was believed to be the best way to protect the business interests. Mrs Poll Jonker also said that on advice from the accountant for Streakers Hair, it was decided to pay Ms Rejon her entitlements for the wages that would have fallen due during her notice period.

[23] It is not in dispute that at 7.41 pm on Tuesday, 25 November an email was sent by Ms Sandy Poll Jonker to the Accountant for Streakers Hair, Mr Sudame, in the following terms:

“Hi Yayati

Mariela has informed me that dose (sic) not want to make the move with me to my new salon plus she is going for a job interview at another salon.

So regardless of the outcome of the interview I would (sic) she go now than cause me more stress.

Please can you work out her pay that I would have to give her.

It is her day off (Wednesday) and I would really like the information on hand so that I can say to her she can go on Thursday and I can inform her of what she is owed.

Do you know if I have the right to say to her she must go straight away or must I let her work out a period of time? Needless to say I am very upset with her attitude and she has been disruptive and is showing extremely (sic) disloyalty to me as her employer.

I appreciate you seed in helping me with as I really need to information by Thursday morning so to be prepared (sic).” 1

[24] As previously noted, the email was produced by Mr Poll Jonker in response to a notice to produce directed to Mr Sudame. Mrs Poll Jonker was shown the email during cross-examination and agreed that Ms Sandy Poll Jonker sent it. Mrs Poll Jonker said that she was not aware of the email at the time that the email was sent, and only saw it when it was required to be produced for this hearing.

[25] Wednesday, 26 November 2014 was Ms Rejon’s day off. According to Mrs Poll Jonker’s evidence, Ms Rejon arrived at the salon on that date and announced to Mrs Poll Jonker that she had been for a job interview and accepted new employment. Ms Rejon then tendered her resignation and advised that she would work until the end of December and then take up her new employment. Mrs Poll Jonker responded by advising Ms Rejon that her resignation was accepted with immediate effect and that she would be paid in lieu of notice.

[26] Twenty minutes after leaving, Ms Rejon telephoned the shop and asked Mrs Poll Jonker whether she had been fired. Mrs Poll Jonker replied stating: “No Mariella, you walked into the shop and told us you had been for a job interview, you accepted an employment offer and that you resign your employment with Streakers.” Mrs Poll Jonker further stated that she told Ms Rejon that her resignation was accepted with immediate effect and asked her: “What don’t you understand about that?” At 8.30 am on Thursday, 27 November, Ms Rejon arrived at the salon to collect her personal belongings and then left.

[27] Streakers Hair tendered an email sent to Ms Rejon on 27 November 2014 at 10:23am, in the following terms:

“Dear Mariela,

I note you have tendered your resignation on 26 November 2014, effective immediately.

Rather than providing me with a period of notice, we have mutually agreed that I will pay out your legal notice period, together with your other entitlements. I have instructed my accountant to calculate your entitlements and will provide you with details of these once he has done so.

This amount will be paid directly into your bank account number we have on record

I ask that you acknowledge receipt of those funds once they have been received.

I would like to remind you of the many years of employment and camaraderie you enjoyed with Streakers. We hold no ill feelings re your decision to part company – we understand that with the uncertainties of our pending business moves and associated risks that you are well with-in your rights to seek alternative employment. We sincerely hope that our separation can be achieved in a harmonious way and that we may retain our friendship.

Should you disagree with the above – please indicate such and spell out your views re events and a position you hold. We will then consider your reply. A failure to reply will be acknowledged that you accept our understanding of today’s discussion and that you are in agreement.

I wish you well in your future endeavours.

Kind regards

Sandy”

[28] In cross-examination, Mrs Anieta Poll Jonker said that Ms Rejon did not telephone the salon before arriving on Wednesday, 26 November and telephoned once – 20 minutes after she left. Mrs Poll Jonker also said that all participants in the family meeting on the evening of 25 November had a different position and that there was no view that Ms Rejon would be dismissed and disagreed with the proposition that the email sent to Mr Sudame that evening by Ms Sandy Poll Jonker made it clear that the decision to dismiss Ms Rejon had been made at that meeting.

[29] Mrs Anieta Poll Jonker also rejected the proposition that there had been no discussion with Ms Rejon about the salon relocation and said that she had taken Ms Rejon to the new location and told her that she must be a part of it and that her input would be appreciated. Further, Mrs Anieta Poll Jonker said that Ms Rejon had said in passing that she hoped that clients of Streakers Hair would come to the new salon, but had never asked for a meeting to sit down and discuss her concerns about the relocation.

[30] Mrs Anieta Poll Jonker agreed that Ms Rejon had a client base that was local to the area where Streakers Hair was located and that Ms Rejon had concerns that those clients would not move with her to a new location. Mrs Anieta Poll Jonker disputed that she had attempted to change the basis of Ms Rejon’s employment to casual or that she wanted to terminate Ms Rejon’s services. Mrs Anieta Poll Jonker agreed that Ms Rejon had not been replaced but said that it is very hard to find a good hair dresser who is as reliable, hardworking and honest as Ms Rejon was. Mrs Anieta Poll Jonker rejected the proposition that the reason for Ms Rejon’s dismissal was to avoid the obligation to pay her long service leave.

[31] Mrs Anieta Poll Jonker said that the salon moved to Salacia Waters at the end of March 2015. A beautician working at the old location was told in June 2014 that the new salon would not offer beauty services and left voluntarily. Mrs Anieta Poll Jonker also found alternative work for a school based apprentice employed by Streakers Hair because her services were no longer required and her “heart was not in” hairdressing.

[32] Streakers Hair submits that there was no logical reason for Ms Rejon to be dismissed. Ms Rejon was “in good standing” as an employee and her weekly takings were cash positive. There were appointments booked for Ms Rejon into the future, and the business was entering a busy period. The new salon was said to be the same or almost the same size as the old one and to have six work stations for hairdressers. It is currently very busy and is turning away clientele because Ms Sandy Poll Jonker is fully booked.

[33] Ms Rejon’s evidence was that she became increasingly concerned from around November 2014 when Ms Sandy Poll Jonker stated that the lease of the premises at which the salon was then located was due to end and the business would be moving to new and cheaper premises. Ms Rejon’s concerns were heightened by the fact that a beautician and a senior hair dresser had left employment and were not replaced. Ms Rejon was later told that a new location for the salon had been found and it would move to Salacia Waters, about 20 minutes away from its then location. Ms Rejon went to look at the new salon location. She states that the new location was isolated and the salon space was a lot smaller. Ms Rejon further states that the area appeared to be mainly residential and there were lots of empty shops. Ms Rejon was also concerned that her clients would not follow her to Salacia Waters and that she would lose access to walk by trade that was available in the old location. When she expressed her concern to Mr Poll Jonker, Ms Rejon was told that he was concerned too, and the move was a big gamble.

[34] Ms Rejon said that she made a number of unsuccessful attempts to discuss her concerns with Mrs Anieta Poll Jonker and Ms Sandy Poll Jonker. On Wednesday, 26 November, Ms Rejon’s day off, she went shopping with her mother in the shopping centre where Streakers Hair was formerly located. When Ms Rejon drove into the car park, she saw Ms Sandy Poll Jonker sitting in the salon beside her computer and thought it would be a good opportunity to discussion her concerns with Ms Sandy Poll Jonker. Ms Rejon telephoned Ms Sandy Poll Jonker from her mobile telephone and saw Ms Sandy Poll Jonker pick up the salon phone and look at the caller number before handing the phone to Mrs Anieta Poll Jonker.

[35] Mrs Anieta Poll Jonker answered the phone and Ms Rejon said that she was just parking the car and asked whether she could come in for a quick chat. When Ms Rejon entered the salon Ms Sandy Poll Jonker went to the back of the salon. Ms Rejon had a discussion with Mrs Anieta Poll Jonker. According to Ms Rejon, she told Mrs Poll Jonker that she was concerned about the move to Salacia Waters and her job security, and that clients would not follow her to the new location.

[36] Ms Rejon states Mrs Anieta Poll Jonker responded by stating that the move to Salacia Waters was a chance that the business was going to take but that they had Ms Rejon’s interests at heart. Further, Ms Rejon states that Mrs Anieta Poll Jonker told her that they were going to make her a casual employee so that Ms Rejon could spend more time with her son. Ms Rejon said that she was shocked at being told this as she had been a full time employee for nine years and five months and could not afford to move to casual employment due to her commitments as a single mother and sole carer for her elderly parents. Ms Rejon said that she has a mortgage, medical expenses and school fees to pay and the most important thing for her is job security.

[37] Ms Rejon said that she responded by saying that she did not want to be casual, could not afford to take less money and that Mrs Anieta Poll Jonker was not listening to her concerns that her client base would not follow her to Salacia Waters. Ms Rejon also said that she asked Mrs Anieta Poll Jonker how she could make her wage in the new location and reiterated her concerns about the move. Mrs Poll Jonker responded by saying that: “Maybe it is best that you leave now. Get your things and leave.” Ms Rejon said that she was shocked and asked whether Mrs Anieta Poll Jonker wanted her to work through until Christmas and was told that Ms Sandy Poll Jonker would not be able to work with her now.

[38] Ms Rejon left the salon, returned to her car and telephoned the salon. Mrs Anieta Poll Jonker answered the phone and Ms Rejon said: “I can’t believe you have just sacked me”. Mrs Poll Jonker responded saying: “No Mariela, we are not firing you. You resigned. It was mutual”. Ms Rejon said that she was angry and upset and responded by saying: “No way, you just told me it’s best I leave. How dare you lie to me.” Ms Rejon then hung up the phone.

[39] Ms Rejon said that she was extremely upset and after she calmed down, started telephoning salons looking for other employment. The first salon Ms Rejon telephoned was a salon in the centre in which Streakers Hair was then located. Ms Rejon told the owner of that salon that she had been sacked that morning and that she was looking for employment. The owner of the salon told Ms Rejon that she could start tomorrow – Thursday, 27 November. Ms Rejon said that she responded to this offer by saying that she was still in shock about her dismissal and the salon owner then stated that Ms Rejon could commence employment on Friday, 28 November.

[40] Ms Rejon went to Streakers Hair on Thursday, 27 November and collected her belongings. Why Ms Rejon did not take her belongings with her on Wednesday 26 November as she alleges that Mrs Anieta Poll Jonker told her to do on that date was not explained. Ms Rejon commenced employment at Illusion Hair and Beauty on Friday, 28 November 2014. She continues to be employed at that salon as a causal employee earning between $365 and $585 per week, which is less than the amount of $722 per week, which she earned as a full time employee of Streakers Hair. Ms Rejon states that she has suffered financial hardship because of her reduced earnings and has lost her long service leave entitlements which she asserts were due in June 2015.

[41] Ms Rejon disputes that on Tuesday, 25 November she told Mrs Anieta Poll Jonker that she was going for a job interview and that she resigned her employment on 26 November 2014. Ms Rejon also states that she did not attend a job interview or contact her new employer until after she was dismissed by Streakers Hair. Ms Rejon seeks compensation equal to the difference between her previous full time earnings and her casual earnings for a period of 26 weeks plus payment of her accrued long service leave entitlements.

[42] Under cross-examination, Ms Rejon was asked why Mrs Anieta Poll Jonker would have wanted to dismiss her, and maintained that the reason for the dismissal was to avoid paying her long service leave entitlements. Ms Rejon also said that she had this belief because when she had been employed by Streakers Hair for seven years, and was going on leave, Ms Sandy Poll Jonker had a discussion with her during which Ms Sandy Poll Jonker stated that Ms Rejon was not entitled to long service leave, but that Ms Sandy Poll Jonker felt sorry for her and was going to “put little bits in her bank every week”.

[43] This caused Ms Rejon to contact a telephone inquiry service to clarify her entitlement to long service leave. Ms Rejon said that she decided to take no action about the incorrect statement made by Ms Sandy Poll Jonker but was suspicious and lost trust in her employer at that point. In response to a question about why Mrs Anieta Poll Jonker would have wanted to change the basis of Ms Rejon’s employment to casual, Ms Rejon said that if she was a casual employee it would be easier to dismiss her if the new salon was not successful.

[44] Ms Rejon agreed that the departure of other employees of Streakers Hair had not affected her job or work conditions but she maintained that the reduction in staff caused her to worry about her job security in the long term. In response to questions about what she was doing at the shopping centre where Streakers Hair was located on her day off (26 November 2014) Ms Rejon said that she was buying a Christmas present for her son at a store that is not located in the centre at which she usually shops. Further, Ms Rejon maintained that she could see into the salon from where she had parked her car and that she did ring both before and after going in and speaking to Mrs Anieta Poll Jonker.

[45] The proposition was put to Ms Rejon that when Mrs Anieta Poll Jonker told her that she had resigned, Ms Rejon could have said that this was not her intention or gone back into the shop and said that she had not resigned. Ms Rejon responded by stating that she was angry and that she had lost trust in her employer. Ms Rejon rejected the proposition that she did not return to Streakers Hair and clarify her position because she already had other employment. Ms Rejon also rejected the proposition that she had pre-arranged a job interview on 26 November or attended an interview on that date prior to resigning her employment. Ms Rejon denied that she had been assisted to seek employment at Illusions Hair and Beauty by a friend who had worked there for some time.

[46] The proposition was also put to Ms Rejon that the new employment met her needs because it was in the same shopping centre and allowed her to access her client base, and that she had not wanted to relocate to Salacia Waters. Ms Rejon rejected that proposition and said that she does not have full time employment. Ms Rejon also said that she did not receive the email of 27 November confirming her resignation and she did not always check her emails.

[47] It was submitted on behalf of Ms Rejon that management of Streakers Hair had not complied with the obligation to discuss the relocation - which was a significant workplace change – with Ms Rejon. Ms Rejon expressed concerns about her future job security, and it was decided by Streakers Hair to rid themselves of the unnecessary cost of employing Ms Rejon. It was also submitted that but for her dismissal, Ms Rejon would have remained in employment with Streakers Hair and relocated to Salacia Waters. Further, it was submitted that the reason for the insistence by Mrs Anieta Poll Jonker that Ms Rejon had resigned her employment, was that a resignation would mean that Ms Rejon was not entitled to payment of her accrued long service leave entitlements on termination of her employment and this was a deliberate ploy.

LEGISLATION

[48] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed;
(b) the dismissal was harsh, unjust and unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

[49] Section 386(1) of the Act provides that a person has been dismissed if the person’s employment has been terminated at the employer’s initiative or the person has resigned but was forced to do so because of conduct or a course of conduct engaged in by the employer.

[50] The Small Business Fair Dismissal Code is provided for in s.388 of the Act:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[51] The terms of the Small Business Fair Dismissal Code were declared by legislative instrument with effect from 1 July 2009. Those terms are as follows:

“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, than 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 either 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 may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia. Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.”

[52] The Code provides for two kinds of dismissal - summary dismissal on the grounds of serious misconduct, and other dismissal on the basis of conduct or capacity to do the job. If an employer cannot establish that the requirements of the Code have been met, the dismissal is not consistent with the Code and the Commission is then required to consider whether it was harsh, unjust and unreasonable on the basis of the criteria in s.387 of the Act. Those criteria are:

“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.”

[53] By virtue of s. 43(4) of the Industrial Relations Act 1999 (Qld) Ms Rejon was entitled to be paid her accrued long service leave entitlements on termination of employment if she had completed at least seven years continuous service and her employment was terminated before she completed ten years continuous service, if Ms Rejon:

● resigned because of illness or a domestic or other pressing necessity; or
● was dismissed for reasons other than her conduct, capacity or performance, or
● was unfairly dismissed.

CONCLUSIONS

[54] As previously noted, I did not find either Ms Rejon or Mrs Poll Jonker to be impressive witnesses. There was significant conflict in their evidence about the events of 25 – 27 November 2014. However, it is not necessary to resolve much of that conflict because even if I accept Ms Anieta Poll Jonker’s evidence, I am not satisfied on the balance of probabilities, that Ms Rejon resigned her employment.

[55] It is clear from the email that Ms Sandy Poll Jonker sent to her accountant on 25 November 2014, that she had formed the view that Ms Rejon did not want to relocate to the new salon at Salacia Waters and was attending a job interview on 26 November. However, it is also clear from the evidence that the source of Ms Sandy Poll Jonker’s information was Mrs Anieta Poll Jonker. There is no evidence that Ms Rejon made any statement to Ms Sandy Poll Jonker about her intentions in relation to relocating or seeking other employment. On 25 and 26 November, when the disputed discussions between Mrs Anieta Poll Jonker and Ms Rejon occurred, Ms Sandy Poll Jonker was not present and Mrs Anieta Poll Jonker recounted her version of the discussions to Ms Sandy Poll Jonker.

[56] The email also makes it clear that Ms Rejon had not resigned her employment at that point and that regardless of whether or not Ms Rejon resigns her employment, Ms Sandy Poll Jonker has determined to dismiss Ms Rejon. It is more probable than not that this is exactly what occurred.

[57] If I accept Mrs Anieta Poll Jonker’s version of the discussion with Ms Rejon on 26 November 2014, Mrs Anieta Poll Jonker insisted that Ms Rejon had resigned, in the face of a statement from Ms Rejon that she had done no such thing. Mrs Poll Jonker did so in circumstances where on her own evidence, Ms Rejon:

• is a good, hardworking hair dresser who would be attractive to any employer seeking to poach her;



• had bookings into the future, the loss of which would cause cost to an already struggling business; and



• would be difficult to replace.

[58] In my view Ms Anieta Poll Jonker’s evidence is improbable. The email sent by Ms Sandy Poll Jonker to Mr Sudame on the evening of 25 November makes it clear that Ms Rejon had given some cause for the Poll Jonkers to believe that she did not want to move to Salacia Waters and that she may pursue other employment. Even if Ms Rejon made a statement that she intended to resign at some future time and gave an indicative date for her proposed resignation, such a statement did not constitute a resignation which was capable of acceptance. Ms Rejon said that she was upset during the discussion with Mrs Poll Jonker and having observed Ms Rejon and Mrs Anieta Poll Jonker giving evidence, there is every likelihood that the discussion was heated and there were misunderstandings on both sides.

[59] I find it improbable that Ms Rejon would resign her full time employment to take up casual employment and disentitle herself to long service leave. Ms Rejon had made inquiries about her long service leave entitlements and I have no doubt that she understood those entitlements. I also do not accept that the owners of Streakers Hair set out to engineer a situation where Ms Rejon lost her long service leave entitlements. However, I am satisfied that the Poll Jonker family, having formed the view that Ms Rejon did not want to relocate to Salacia Waters and that she intended to resign at some future point, decided to beat her to the punch and to terminate Ms Rejon’s employment immediately. I therefore find that Ms Rejon was dismissed.

[60] As a result of that finding, it is necessary to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. It was not. Ms Rejon had not engaged in misconduct and there was no issue with her conduct, capacity or work performance. There was no valid reason to dismiss Ms Rejon. If Ms Rejon expressed concerns about relocating to another salon or stated that she was applying for other employment and intended to cease her employment at a future time rather than relocate, that conduct is not a valid reason for dismissal. There was no other conduct that could form a valid reason for dismissal and no evidence that Ms Rejon was anything other than a good and competent employee. I find that the dismissal was not consistent with the Small Business Fair Dismissal Code.

[61] When the dismissal is weighed against the criteria in s. 387, there was no valid reason for the dismissal. The criteria in relation to notification of the reason for dismissal, warnings, opportunity to respond and the ability to have a support person present are not relevant given that the dismissal was not on the basis of Ms Rejon’s conduct, capacity or work performance.

[62] I have no doubt that the size of the employer and its lack of access to dedicated human resource management specialists had an impact on the way that the matter was dealt with. I am also of the view that there are other relevant matters that should be taken into account in deciding whether the dismissal was unfair.

[63] While I accept that there was no deliberate intention on the part of the owners of Streakers Hair to engineer a situation whereby Ms Rejon lost her entitlements to accrued long service leave, the factual situation is that if Ms Rejon was dismissed because the salon was relocating and she did not wish to relocate, Ms Rejon would have been entitled to be paid her accrued long service leave entitlements on the basis that she was not dismissed on the ground of her conduct and she did not resign. In my view the loss of accrued long service leave by an employee with nine years and five months service is a matter that can be taken into account in relation to the question of whether the employee was unfairly dismissed. A finding that Ms Rejon was unfairly dismissed will entitle her to long service leave.

[64] On balance I am satisfied, and find, that Ms Rejon was dismissed and that her dismissal was unfair. There was no issue with Ms Rejon’s conduct, capacity or work performance and Ms Rejon was not dismissed for any reason related to such matters. Although Ms Rejon did not wish to relocate to new premises, the relocation occurred in late March 2015, some three months after Ms Rejon was dismissed. There was no apparent effort on the part of the owners of Streakers Hair to discuss Ms Rejon’s concerns about the move with her or to endeavour to resolve those concerns.

[65] Ms Rejon was a good employee with an unblemished record and had worked for Streakers Hair for nine and a half years. Ms Rejon had legitimate concerns about the relocation and it was entirely reasonable that Ms Rejon raised those concerns with the owners of Streakers Hair. The owners of Streakers Hair took advantage of those concerns in deciding to dismiss Ms Rejon and to assert that she had resigned.

REMEDY

[66] Having decided that Ms Rejon was unfairly dismissed it is necessary to determine whether she should have a remedy for the unfair dismissal. In relation to remedy, s. 390 of the Act provides as follows:

“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.”

[67] For reasons set out below, s. 391 of the Act in relation to remedy is not relevant. In relation to compensation s. 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

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

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

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

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

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

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[68] Pursuant to ss. 390(1)(a) and (b) of the Act, I am satisfied that Ms Rejon was a person protected from unfair dismissal and that she has been unfairly dismissed. Ms Rejon has made an application for an unfair dismissal remedy under s. 394 of the Act and in my view should have a remedy for her unfair dismissal. Ms Rejon does not seek reinstatement. Given her assertions about the lack of trust she now has for her former employer, reinstatement is not an appropriate remedy and I have no doubt that the relationship cannot be re-established. Accordingly, I am satisfied and find that reinstatement is not appropriate. Streakers Hair has relocated to an area where Ms Rejon did not wish to work and she has found alternative - albeit casual - employment.

[69] I also consider that an Order for compensation is appropriate. In relation to the consideration in s. 392(2)(a) the evidence is that the salon is doing well and that it is turning away customers due to Ms Sandy Poll Jonker being fully booked. There is no evidence of financial incapacity on the part of Streakers Hair or that the Order for compensation that I intend to make will have any impact on its viability.

[70] It is not in dispute that Ms Rejon had 9 years and 5 months service with Streakers Hair. I do not accept that Ms Rejon would have relocated to Salacia Waters or that she would have remained in employment past the time of the relocation. The submission that Ms Rejon would have moved and would have remained in employment for an indefinite period is entirely at odds with her evidence. It is also at odds with her assertions of loss of trust in the owners of Streakers Hair. I have concluded, for the purposes of s. 392(2)(c), that Ms Rejon would have remained in employment for a period of no more than 3 months and would have ceased employment at or before the time that the business relocated.

[71] Had Ms Rejon remained in employment until Streakers Hair relocated, she would have earned an amount of $12,274. Ms Rejon was paid five weeks wages in lieu of notice, an amount of $3,610, which should be deducted from the award of compensation. Ms Rejon commenced new employment on 28 November 2014 and earns between $365 and $585 per week, or an average of $400 per week. That amount should also be taken into account and I make a deduction of $6,800 for those earnings.

[72] I determine that compensation in the amount of $1,864, less taxation at the appropriate rate, should be paid to Ms Rejon within 14 days of the date of this Decision as compensation for her unfair dismissal. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Exhibit 4.

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