Meganne West v Scott Inthong Pty Ltd T/A Base @ Broadbeach

[2021] FWC 3858

[2021] FWC 3858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Meganne West
v
Scott Inthong Pty Ltd T/A Base @ Broadbeach

(U2021/1792)

COMMISSIONER SIMPSON BRISBANE, 2 JULY 2021

Application for unfair dismissal – Applicant met minimum employment period – Dismissal unfair – Compensation awarded.

[1] On 4 March 2021, Ms Meganne West made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by her employer, Scott Inthong Pty Ltd T/A Base @ Broadbeach (The Respondent).

BACKGROUND

[2] In the Form F3 – Employer Response to unfair dismissal application, the Respondent objected to the application on the basis Ms West did not meet the minimum employment period and therefore is not eligible to make an unfair dismissal application. The Respondent also raised an objections that Ms West was not dismissed and that it complied with the Small Business Fair Dismissal Code.

[3] The matter was listed for a conciliation on 29 March 2021 however did not proceed as Ms West was unable to be contacted.

[4] The matter was allocated to me on 28 April 2021 to determine the minimum employment period jurisdictional objection. I listed the matter for directions on 10 May 2021 which proceeded in Ms West’s absence as she was again unable to be contacted. The matter was listed for hearing of the jurisdictional objections by telephone on Wednesday 26 May 2021.

[5] At the start of the hearing, I raised with the parties that the Respondent had requested that all matters relating to the application, including its merits be dealt with at the same time. It was noted that some of the material already filed by both parties pertained to the substantive matter, and I advised that I was open to the idea of dealing with everything subject to the views of both sides. Ultimately both parties agreed to this course of action. The parties also agreed for the matter to proceed as a determinative conference.

[6] During the proceedings it became apparent that it was necessary for me to hear the evidence of Ms Tian Inthong who was not available on 26 May. The matter was listed for a second day on 27 May 2021 to allow Ms Inthong to give evidence.

Minimum Employment Period

[7] Section 382 of the Act outlines the requirements for a person to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

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

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[8] Section 383 of the Fair Work Act 2009 provides as follows:

“Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:

(i)  the time when the person is given notice of the dismissal;

(ii)  immediately before the dismissal; or

(b)  if the employer is a small business employer--one year ending at that time.”

[9] Ms West said she commenced employment in March 2020 and was notified of her dismissal and it took effect on 28 February 2021.

[10] The Respondent submitted Ms West’s employment commenced on 9 March 2020 and was made redundant on 23 March 2020. The Respondent submitted Ms West was reemployed on 7 June 2020 until her employment ended on 28 February 2021.

[11] The Respondent submitted that it is a small business and employed less than 15 employees at the time of Ms West’s dismissal. The Respondent submitted therefore that Ms West did not satisfy the minimum employment period to be covered from unfair dismissal under the Act.

[12] To determine whether Ms West has met the minimum employment period, it is necessary to determine whether the Respondent was a small business employer under the Act.

[13] Section 23 of the Fair Work Act provides as follows:

“Meaning of small business employer

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

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

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

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

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

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

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

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

[14] On 27 April 2021, Ms West provided an email to the Commission in the form of submissions, where she stated that the Respondent had 16 staff including ‘Tian our boss and Mint.’ Ms West further submitted:

“If Tian is claiming that she did not have this many staff it is because she paid her under the books in cash. Not to mention the numerous other casual on call staff she would pay in cash such as Lisa. So from my understanding there was over the minimum amount to make the business big.”

[15] On 29 April, Mr John Scott from the Respondent sent an email to chambers in response which stated that over the Christmas holiday period, the Respondent did employ more than 14 employees, and other times employees ranged from 12 to 14. The Respondent submitted the average number of employees was 14.

[16] The Respondent further submitted:

“…ALL employees appear on our wage records… …Mint was an overseas student who has returned to Thailand and was paid on the weekly wages when she worked. The other employee named by Meganne was Lisa, who still works for us.  If required she will provide a statutory declaration that she has never been paid in cash. ALL of our employees are "on the books" and NOBODY is not recorded and paid in cash.”

[17] On 12 May 2021, the Respondent sent a further email to chambers submitting as follows:

“On the week ended 28th February we had 15 casual employees. This was due to a regular 4 day a week casual requesting a week off. We needed to have two casuals to replace her 4 days off. Although these casuals were employed at other times they were not considered regulars that worked every week. During this week we had:

5 Casuals that worked 1 day each

2 Casuals that worked 2 days each

2 Casuals that worked 3 days each

2 Casuals that worked 4 days each

4 Casuals that worked 5 days each

This was an exceptional week as for 19 of the previous 26 weeks our staff was 14 or less. The average number of casuals for the 26 weeks was 14.”

[18] On 13 May 2021 Ms West wrote to chambers indicating she could provide proof of rosters and ‘a letter from one of the casual workers that was paid in cash for her work if need be.’

[19] Ms West was given an opportunity to file any further material by Friday 21 May 2021. Ms West provided an email in the form of submissions and attached a copy of some rosters from July 2020 through to February 2021, which she submitted demonstrated there has always been a minimum of 15 people at work.

[20] During the proceedings I took the parties through each employee listed on the rosters provided to obtain evidence as to the status of each person’s employment. It appeared that it was ultimately not disputed that 14 of these employees were regular and systematic casuals.

[21] However, there was some contention as to the status of employment of one employee on the roster “Mint”. Mr Scott said Mint was an overseas student who worked when she was available. Mr Scott said Mint was only allowed to work 20 hours per week in accordance with her visa requirements.

[22] Mr Scott said at times Mint would be included on the roster, however she would let the Employer know she could not work that week due to accepting a roster at her second job. Mr Scott said Mint was irregular.

[23] Mr Scott said Mint commenced working with the Respondent over the Christmas period and worked about 1-2 times a month. He said in the weeks she did she would work 3-4 days, however half the time she was put on the roster Mint would advise she couldn’t work.

[24] Ms West disputed that Mint was an irregular employee. Ms West said that according to the rosters she provided to the Commission, there was only one occasion where Mint was not rostered to work at least two days per week. It was Ms West’s evidence that Mint worked all the time.

[25] Ms West said she could not comment on Mr Scott’s evidence that Mint would often call in to say she could not work, but that she would see Mint “regularly” in the workplace. I asked Ms West to clarify what she meant by “regularly” and Ms West said approximately two times every week, sometimes more.

[26] Ms West disputed that Mint only worked 1-2 times a month.

[27] For the Respondent to satisfy the Commission that it was a small business at the time of Ms West’s dismissal, it appeared to turn on whether Mint was a regular and systematic employee. It is worth noting that Mr Scott ultimately conceded that the Respondent had 15 employees.

[28] Mr Scott accepted that since Mint’s employment in December 2020 until the Applicant’s dismissal, Mint was working every month during that period. Having weighed the dispute in the evidence on the frequency of Mint’s engagements, I am inclined to prefer the view that Mint was a regular and systematic employee, bringing the total number of the Respondent’s employees to 15 at the time of Ms West’s dismissal.

[29] The Respondent is not a small business for the purpose of the Act, and it is therefore clear that Ms West satisfied the minimum employment period.

Applicant Not Dismissed

[30] The Respondent raised a further jurisdictional objection that Ms West was not dismissed. It submitted that Ms West abandoned her employment on 27 February 2021 and relied on a series of text messages including one from the Applicant that read as follows:

6:17 pm, 27 Feb.

Hi Tian, i've just received a Snapchat from Ava
threatening me and I don't want to work with her
at all. She has threatened multiple girls at work to
fight them and has verbally abused us. I'm sorry
to do this to you Tian I'm not coming into work as
long as she is there because I don't want to deal
with her anymore all of us girls have gone above
and beyond for her and I'm not going to put up
with her actions anymore. And as my employer
our WHS should be considered”

[Original text kept]

[31] Mr Scott also provided similar text messages from two other employees.

[32] Mr Scott said it was not a dismissal because Ms West refused to work. Mr Scott said upon receiving the text message the Respondent took it to mean that Ms West would not attend work, and in fact she did not attend work on Sunday when she was on the roster. Mr Scott said the Respondent took the view that there was an altercation between Ms West and another staff member in their personal lives, and said that the Respondent has no control over their personal lives and the staff were told not to bring personal matters to work.

[33] Mr Scott said three employees, including Ms West, requested that the Respondent fire a fourth employee. Mr Scott said ultimately the Respondent did not think this was appropriate as there was no reason, but because all four employees were involved in the feud, all four employees involved in the feud were removed from future rosters.

[34] Mr Scott provided a text message sent to the Applicant from the Respondent dated 28 February 2021 that read as follows:

“Dear Ava,Amy,Megane,Shanea.

This is to inform you that your services are no longer required.
You will not be given any shifts on future rosters.
Thank you for your service in the past.

Regards,
Tian&John
Base@Broadbeach”

[Original text kept]

[35] Mr Scott said he and his wife Ms Tian Inthong were the decision makers in relation to Ms West’s employment.

[36] Ms West submitted she sent the text message 27 February 2021 as she felt threatened following the conduct of a fellow employee by the name of “Ava”. Ms West submitted that Ava had engaged in behaviour both inside and outside the workplace that resulted in Ms West fearing for her safety if she returned to work while Ava was there. Details of Ava’s alleged behaviour is detailed in later parts of this decision.

[37] Ms West provided screenshots of Snapchat conversations between herself and other employees of the Respondent including Ava.

[38] The screenshots show that Ava sent a message that read “literally fuck up cunt run your mouth and see where it gets you”. Ms West submitted that this was referring to telling Ms Inthong and Mr Scott about her being under the influence of alcohol/ drugs and if we were to that there would be a consequence.

[39] On the evidence I am not satisfied that the text message sent by Ms West on 27 February 2021 followed by her not turning up for her shift the following Sunday resulted in Ms West abandoning her employment. The text message does not say she was refusing to work, rather it said that she wouldn’t work with Ava on the basis she felt unsafe.

[40] Based on the Snapchat conversation, and for reasons explained further in this decision, I accept Ms West felt threatened by Ava and it was therefore reasonable for her to send her employer the text message on 27 February 2021.

[41] It is clear the text message sent from the Respondent on 28 February 2021 was a step taken by the Respondent to bring Ms West’s employment to an end. I am satisfied the termination of Ms West’s employment was at the initiative of the employer.

[42] Both jurisdictional objections are dismissed, and I must therefore deal with the merits of the application.

HARSH UNJUST OR UNREASONABLE

[43] Section 387 of the Fair Work Act provides as follows:

“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.”

Valid Reason

[44] The Respondent submitted that four of its employees, who were previously social friends, became involved in a feud on social media. It submitted that when it became aware of the feud, the employees were told the Respondent had no control of their private lives and in order to maintain the safe work environment they were not to bring their personal problems to the workplace. The Respondent submitted the employees were informed that all employees would be protected.

[45] The Respondent submitted that on 27 of February 2021 it received messages from three of the “protagonists” (which included Ms West) that they would not attend work whilst the fourth person was employed as they considered an unsafe work environment existed. The Respondent submitted that the three employees (including Ms West) were the ones creating the unsafe work environment.

[46] The Respondent submitted it had no option but to exclude all of them from future rosters. It submitted that it did not need to dismiss staff, all it needed to do is to exclude them from future rosters.

[47] The Respondent submitted that creating an unsafe workplace is such a serious matter that to remedy the situation it had no option but to exclude Ms West and the other employees from future rosters.

[48] Ms West gave written evidence that one of the Respondent’s employees “Ava” regularly attended the workplace under a state of drug influence, and that when she and other employees approached her superiors, the Respondent neglected to ensure their safety and that of the customers.

[49] Ms West said that Ava was regularly not coming to work, and herself and other team members would often have to cover for her. Ms West said there would be multiple times that Ava would show up hours late or not show up to her shift at all. This created the “social” conflict Mr Scott was referring to.

[50] Ms West said she and two other employees would approach Ava many times to try to get her to come to work and perform her duties as their bosses would not take it into their own hands.

[51] Ms West said Ms Inthong told her she needed to be there for Ava and that Ms West should help her with anything she needs in the workplace and outside the workplace as she was unstable.

[52] Ms West said she and other employees had tried to help Ava but said that with the constant drug abuse she was very unstable, unpredictable and constantly threatened them if they tried to say anything.

[53] Ms West said she told Ms Inthong that she feared for her safety, and Ms Inthong would say not to worry as the other staff members could protect Ms West because they know how to “fight”.

[54] Ms West said when Ava attended work, she would be very aggressive towards staff and customers and as a result would not fulfil her work duties and her work colleagues and herself would have to cover those duties.

[55] Ms West said that she and the other team members became angry with the lack of management within the business as it was unfair that there were no consequences for Ava. Ms West said when she and other staff members would approach Ms Inthong, she would say to “not worry about it” and that she “doesn’t want to hear it” and would tell them that they were the ones that should be working hard to help Ava.

Oral Evidence

[56] Ms West said in her oral evidence that she told management multiple times about Ava’s behaviour and said Ava would constantly turn up to work under the influence. She said although Ava worked in a different section, she would often arrive late or not at all and therefore Ms West and other employees would need to cover that section as well.

[57] Ms West said there were two times she could remember talking to Ms Inthong about her concerns. She said the first time was about two weeks before her dismissal where she told Ms Inthong she feared for her safety due to Ava’s drug use, but Ms Inthong just laughed about it and said she didn’t care and didn’t want to hear about it. She said the other time was about a month before her dismissal where she raised it with Ms Inthong, to which Ms Inthong replied, “oh dear, don’t worry Amy could protect you”.

[58] Mr Scott disputed this evidence and said Ms West never told management that Ava was under the influence of drugs. Mr Scott said there were never any complaints about Ava’s work ethic from staff or customers. Mr Scott said Ava worked in a separate room, and only worked 10% of the time in the same area as Ms West. He disputed Ms West would need to pick up Ava’s work.

[59] It was put to Ms Inthong that a month prior to Ms West’s dismissal in late January, in the “cold section”, Ms West told Ms Inthong that she felt unsafe working with Ava because the night before Ava had said on her social media that she had been doing drugs and had threatened Ms West, and that Ms Inthong responded with words to the effect “oh don’t worry Amy will protect you.”

[60] Ms Inthong disputed this conversation took place but said she was suspicious that there was something going on between a group of employees. She said sometimes the employees would be crying and she tried to get information from them, but the employees would not tell her what was going on.

[61] Ms West asked Ms Inthong why she didn’t act on anything if she was suspicious. Ms Inthong said employees would ask Ms Inthong why Ava did not show up for work. Ms Inthong said as Ava would call her beforehand and that was the rule, so she would accept it and it was not her job to find out the reason why.

[62] Ms Inthong said employees were always on their phone, especially when Ava did not show up to work. Ms Inthong said she told the employees not to be on the phone during work hours and would ask them what was happening, but nobody would give her an answer.

[63] Ms Inthong’s evidence did not seem to specifically address the question put to her by Ms West.

[64] Ms West put it to Ms Inthong that two weeks prior to her dismissal, Ms West, Amy and Shanae had a conversation with Ms Inthong out in the cold section. Ms West put to Ms Inthong she and the other employees told Ms Inthong they were uncomfortable coming to work because Ava had been drinking and taking drugs on her Snapchat story, and that Ava was making threats to her, to which Ms Inthong replied saying not to worry about it.

[65] Ms Inthong said she didn’t know what happened. She said she knew something happened on Snapchat, but that when she asked for information nobody would tell her what was going on. Ms Inthong said she never ignored the employees.

[66] Ms Inthong said the thing she can remember occurring between her and Ms West is that she saw Ms West cry, and that Ms Inthong asked her what happened, and Ms West replied “nothing”. Ms Inthong said she asked her again in the afternoon what happened and Ms West said that customers were talking about a frog. Ms Inthong said she could not remember exactly when this conversation took place but it was roughly 3 or 4 weeks before Ms West and the other employees sent her the text messages on 27 February.

[67] Ms Inthong was asked directly whether Ms West ever mentioned to her that Ava was on drugs and Ms Inthong said she didn’t. Ms West said she used the words being “under the influence” and partying on her Snapchat stories.

[68] When asked to describe Ava’s behaviour towards her, Ms West said that Ava would be aggressive and angry and would often go to hit her as a joke as well as making threats that she was going to kill her friends, that she was going to bash her, that she had to watch her back and that she was going to make her life a living hell.

[69] Ms West said there were other employees, “Dani” and “Amy” who also had these issues with Ava. Neither Dani nor Amy were called as witnesses.

[70] Ms West submitted she does not like to be threatened and that her employer should ensure her safety at her workplace when she brings issues to their attention on multiple occasions. Ms West said it should be dealt with appropriately, rather than her being fired and told that she was no longer needed to come in to work.

Conclusion – Valid Reason

[71] I am satisfied on the basis of the evidence that Ms West felt threatened by Ava at work. Ms West’s written evidence on this point was consistent with her oral evidence as well as the Snapchat messages provided to the Commission.

[72] I also prefer Ms West’s evidence that she did at some point inform her employer that she felt threatened at work. Ms West’s written and oral evidence were also consistent on this point and Ms West was able to provide specific recollections of conversations that took place between herself and Ms Inthong.

[73] Ms Inthong accepted in her evidence that there were issues between the staff but that they were issues outside of work. The words Ms Inthong used when giving her evidence about the conversations that took place with Ms West were “as I remember” or, “I can’t remember”. When questions were put to her regarding the conversations, her answers were not overly direct, and her evidence appeared less certain than that of Ms West.

[74] It is plausible that with everything going on for Ms Inthong, Ms Inthong could perhaps not remember all parts to the conversations and Ms West’s recollections of the conversations were clearer. On the basis of the evidence, I find that it is more probable that the issues regarding Ava’s conduct were raised with the employer.

[75] It appears on the evidence that after receiving the text message from Ms West on 27 February, the Respondent incorrectly formed a view that Ms West had abandoned her employment and advised her she was no longer required. This is not a valid reason for dismissal. I will now turn to the remaining criteria of s.387.

Notified of the reason for dismissal

[76] On the evidence I am satisfied Ms West was not notified of the reason for her dismissal. The text message sent to her on 28 February simply stated Ms West’s services were no longer required and that she would not be given shifts on future rosters.

[77] There is no other evidence to suggest Ms West was notified of the reason for her dismissal.

Opportunity to respond

[78] I am also satisfied on the evidence that as Ms West was not aware of the reason for her dismissal, she was not given any opportunity to respond to the reason for dismissal.

Unreasonable refusal of support person

[79] There were no discussions between Ms West and the Respondent relating to dismissal.

Warned about unsatisfactory performance

[80] Ms West was not dismissed for performance and so this is a neutral consideration.

Size of employer’s enterprise/absence of dedicated human resources impacting procedures followed

[81] Although the Respondent is not classed as a small business for the purpose of the Act, I am satisfied its small size in having only 15 employees would impact the procedures followed in effecting Ms West’s dismissal. I am also satisfied the absence of dedicated human resources management or specialists would have impacted procedures followed.

Any other matters

[82] There are no other matters that I have determined are relevant to the determination of this matter.

Conclusion on whether Harsh, Unjust or Unreasonable

[83] Having weighed each of the considerations under s.387, I am satisfied that given there was not a valid reason and other procedural flaws as set out above, the dismissal was harsh, unjust or unreasonable.

REMEDY

[84] Ms West did not seek reinstatement and instead sought compensation. I am satisfied that reinstatement would be inappropriate in this case. Accordingly, 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

[85] It is clear from the evidence that Ms West was becoming increasingly concerned about the situation with Ava, and on her own evidence stated she was starting to fear for her own safety. Ms West also gave evidence that she was becoming increasingly frustrated with management.

[86] Taking these factors into account, I am not confident that Ms West would have remained in employment for any longer than another six weeks.

[87] Mr Scott said Ms West was earning approximately $598 gross per week during the university holidays but that she would earn less during term time as she would only work two days a week.

[88] Ms West said she would have worked more than two days a week throughout March, April and May if she remained in employment with the Respondent as she would not be attending university for the first semester. Ms West said she would have worked 4-5 days a week and accepted her weekly wage was $598.

[89] Based on the evidence I accept the average weekly wage Ms West would have likely received had she not been terminated was $598 gross. $598 x 6 weeks = $3,588.

Section 392(2)(d) – Applicant’s efforts to mitigate the loss suffered because of the dismissal

[90] Ms West gave evidence that she was unable to obtain other employment on the Gold Coast and so therefore moved to Victoria to be closer to family and to look for work.

[91] Ms West said she was in Melbourne for approximately one month from early April but was unable to find any employment during this time.

[92] Ms West said she then obtained employment on Hamilton Island from 26 April.

[93] Mr Scott disputed that it was necessary for Ms West to move locations in order to find other employment. He submitted that there were a number of nearby cafes who were looking for experienced baristas, and that Ms West was good at her job and could have found other employment.

[94] I accept Ms West made reasonable attempts to gain further employment before moving to Melbourne following her dismissal evidenced by the fact she obtained a position at Priceline Pharmacy not long after her termination.

[95] I do not intend to make any reduction to the amount of compensation on the basis of a failure to mitigate.

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 compensation

[96] Ms West said she worked at Priceline Pharmacy for three weeks starting from 14 March 2021 working two to three days a week. She said she was earning $24.51 an hour and $259 per week. It is therefore necessary to deduct this income. $259 x 3 = $777 bringing the amount to $2,811.

[97] Ms West said she started working on Hamilton Island on 26 April and is still currently employed there as at the time of the Hearing. Ms West said she is working 38 hours per week and agreed that from 26 April she has been earning more money than she was earning when working for the Respondent.

[98] Ms West’s employment on Hamilton Island commenced approximately eight weeks after her termination. I have already determined that Ms West was unlikely to have remained in employment with the Respondent had she not been terminated by this time, and so on that basis I make no further deduction to the amount of compensation on the basis of income earned from her new employment at Hamilton Island.

[99] Ms West said she did not earn any other remuneration.

Section 392(2)(a) - effect of the order on the viability of the Respondent’s enterprise

[100] Mr Scott confirmed the business was still operating and did not put forward any evidence to suggest an order of compensation would have an effect on the viability of the business.

Section 392(2)(b) - length of the Applicant’s service with the Respondent

[101] Ms West had only been working for the Respondent since March 2020, meaning she had been employed for less than 12 months. The reasonably short duration of employment tends if anything to add further support to my earlier conclusion that in all of the circumstances the employment relationship was not likely to be long lived.

Section 392(2)(g) - any other matter that the FWC considers relevant

[102] There are no other matters that are relevant for assessing compensation.

CONCLUSION ON COMPENSATION

[103] An amount of $2,811 does not exceed the compensation cap. I have decided to issue an order that Scott Inthong Pty Ltd T/A Base @ Broadbeach pay to Ms Megan West an amount of $2,811 gross taxed according to law and 9.5% superannuation compensation based on that amount, within 21 days of the date of this decision. An order will be issued separately and concurrently with this decision to that effect.

COMMISSIONER

Appearances:

Ms M. West appearing on her own behalf.
Mr J. Scott appearing for the respondent.

Hearing details:

2021,
Brisbane:
May 26 and 27

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