Michaela Chalmers v Sabr Medi Spa Pty Ltd

[2013] FWC 7433

[2013] FWC 7433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michaela Chalmers
v
SABR MEDI SPA PTY LTD
(U2013/7867)

COMMISSIONER WILLIAMS PERTH, 27 SEPTEMBER 2013

Termination of employment.

[1] This matter involves an application made by Ms Michaela Chalmers (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is SABR MEDI SPA PTY LTD (the respondent).

Introduction

[2] The parties were notified by email that the matter was listed for a conciliation conference before a Fair Work Commission conciliator to be held on Monday, 22 April 2013.

[3] Prior to the date of that conciliation conference staff of the Fair Work Commission became aware that the email address for the respondent was incorrect. Consequently information regarding the conciliation conference was sent to the respondent to the corrected email address on 17 April 2013.

[4] The respondent has not provided any answer or response to the application in any form.

[5] The respondent did not participate in the conciliation conference on 22 April 2013. The same day the conciliator from the Fair Work Commission spoke to the respondent’s contact Mr Jason Van Straalen (Mr Van Straalen) on the phone about this and subsequently sent an email to Mr Van Straalen requesting he advise why he was not able to participate in the conciliation conference.

[6] No response was received from Mr Van Straalen nor from anybody else on behalf of the respondent.

[7] Consequently the application was referred to myself for determination.

[8] On 3 May 2013 a notice of listing was sent to the parties advising the matter was listed for hearing on Tuesday, 24 September 2013.

[9] That notice of listing and the attached directions were both emailed and posted to the respondent.

[10] Subsequently in compliance with the directions the applicant has provided materials in support of her application. These were forwarded to the respondent via email by my associate and the respondent was reminded that the directions required the respondent to file and serve its materials by Friday, 6 September 2013.

[11] There was no response from the respondent and consequently a follow-up email regarding this was sent on 9 September 2013 which reminded the respondent that the directions issued in this matter advised that if a party fails to comply with the directions the hearing may proceed and be decided on the basis of the materials that have been filed; which in this case is the applicant’s materials alone.

[12] At the hearing of this matter on 24 September 2013 the applicant attended however there was no appearance by any person on behalf of the respondent.

[13] Given the background to this matter I am satisfied that the respondent has properly been provided with a reasonable opportunity to participate in the hearing and has been given a fair go all round and so I will determine this unfair dismissal application based on the materials and evidence provided by the applicant.

Background

[14] The respondent provides a range of beauty therapy treatments to customers including IPL (intense pulse light) hair removal, IPL skin rejuvenation, facials, massages and spray tanning amongst others.

[15] The applicant worked as a beauty therapist for the respondent from February 2012 until she was notified of her dismissal by text message on 15 March 2013.

The applicant’s evidence

[16] The applicant gave evidence that relevantly is as follows.

[17] On Friday, 15 March 2013 at 9.40 a.m. she received a text message from her manager Carissa telling her not to come to work and that her hours were being cut down.

[18] The applicant has provided in her evidence screenshots of the relevant text messages that followed.

[19] In response to Carissa the applicant suggested that someone else should be having that day off. The applicant received the following reply:

“Well I hav Lauren finishin at 2 and i have jason down my throat that he is payin u enuf to hav a day off per week im only doing what im told n if i dnt do what im told I lose my job so im sorry.” (sic)

[20] The applicant replied by text message to Carissa questioning why she was not to work when she has been there the longest and does the important treatments and she asked Carissa to at least give her a days notice next time not 50 minutes. The applicant’s text message concluded:

“Thanks, see you Saturday”

[21] Carissa’s text in response to that was:

“Well for starters u guys r on 25 and im only goin on by wat Jason is askin of me otherwise I lose my job” (sic)

[22] Later that day at 6.07 p.m. the applicant received the following text message from Carissa:

“Michaela, unfortunately there is no work available at the moment. We will no longer need your assistance. I have spoken to jason in conjunction with this circumstance and there is no change of mind.” (sic)

[23] In reply the applicant said that her mother would be in to discuss things with Carissa the next day.

[24] The applicant’s evidence is that in reply Carissa sent her a text message as follows:

“This is pathetic you burn someone and now the consequence is that you are without a job.”

[25] The applicant’s evidence dealt with what she understands to be the issues raised by the respondent and which she assumes to be the reasons for her dismissal.

[26] Regarding the respondent’s statement that there was no work available the applicant’s evidence and argument was that of the seven staff members who worked at the premises the applicant had the most qualifications and most experience. The applicant says she was often required to work as the manager. She argues there was plenty of work for her to do and that after her dismissal when she was given her separation certificate by the respondent she noticed the respondent had hired two new staff members.

[27] Regarding the issue Carissa raised about her pay rate the applicant submits that she was being paid the correct wage having earlier been underpaid and as soon as she was being paid at the correct wage her hours were cut.

[28] Regarding the statement by Carissa that she had burnt someone the applicant gave detailed evidence to the effect that the IPL machine provided by the respondent was faulty and had not been properly maintained and in some circumstances did result in clients being burnt. Her evidence was that the problems with the IPL machine had been raised repeatedly with the respondent and Mr Van Straalen was aware of the problem.

[29] The applicant’s evidence was that there was no discussion or meeting prior to her being dismissed and the only notification of her dismissal and assumedly the reasons for the respondent dismissing her were the text messages she received from Carissa.

[30] The applicant’s evidence was that she had never been warned for unsatisfactory performance prior to her dismissal.

[31] The applicant’s evidence was that to the best of her knowledge the employer at the most engaged 11 employees at two locations at the time of her dismissal.

[32] The applicant says the respondent did not have any dedicated human resources management staff.

[33] The applicant also gave evidence as to the earnings before tax she had received in the period leading up to her dismissal. She had been for three of those weeks been paid respectively $705.65, $573.64 and $628.45.

[34] The applicant has been actively seeking employment since her dismissal and has earned $1 500 gross when she was working for a three week period but is currently not employed.

[35] The applicant also provided a statement from Ms Mary Zammit (Ms Zammit). Ms Zammit did not attend the hearing because she is now living in Queensland.

[36] The witness statement of Ms Zammit confirms the evidence of the applicant regarding the deficiencies with the IPL machine. Her evidence also confirmed that it was not apparent to her that there was no work available around the time the applicant was dismissed and in fact in her view on occasions the business was understaffed.

[37] The applicant’s evidence was that Ms Zammit was employed by the respondent at the time the applicant was dismissed but Ms Zammit was dismissed shortly thereafter.

[38] The applicant’s evidence has not been challenged by the respondent given its non-attendance in these proceedings and the applicant’s evidence is consistent with this statement made by Ms Zammit and consequently there is no reason not to accept the applicant’s evidence in full, without reservation.

Consideration

[39] The criteria that the Commission must apply when considering whether the dismissal of the applicant was unfair are detailed in section 387 of the Act which is set out below.

“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.”

[40] In terms of whether there was a valid reason for the applicant’s dismissal related to her capacity or conduct the only matter raised by the respondent in the text message exchange with the applicant that might be said to involve her capacity or conduct was that she had “burnt someone”.

[41] However this is somewhat speculative given that this issue was raised by Carissa after she had advised the applicant that there was no work available at which point she had already effectively dismissed the applicant. Consequently it is not clear whether the statement that the applicant had “burnt someone” was the reason the respondent had dismissed the applicant.

[42] Assuming for the moment the real reason the respondent had dismissed the applicant was this issue, the applicant’s evidence however demonstrates that in all likelihood any injuries a client may have suffered occurred not because of any fault of the applicant but because the respondent’s equipment provided for her to do her job, specifically the IPL machine, had not been correctly maintained by the respondent. In these circumstances burning a client who was undergoing an IPL treatment would not be a valid reason for the applicant’s dismissal.

[43] The respondent’s statement that there was no work available for the applicant is not a reason for the dismissal related to her capacity or conduct. In any event again the evidence before the Commission is that there was work available for the applicant. This reason in either case is not a valid reason for the applicant’s dismissal.

[44] Certainly the rate of pay the respondent was paying the applicant is not a valid reason for the dismissal given it is not a reason related to her capacity or conduct.

[45] Consequently I am satisfied that there was not a valid reason for the applicant’s dismissal.

[46] The applicant was notified that she was dismissed apparently because there was no work for her.

[47] The applicant was not given an opportunity to respond to any reason related to her capacity or conduct in fact she was not given an opportunity to respond to the employer’s decision to terminate her before this was advised to her.

[48] There was no unreasonable refusal by the employer to allow the applicant to have a support person present given there were no discussions relating to the dismissal.

[49] The dismissal did not relate to unsatisfactory performance by the applicant unless the real reason for the dismissal was that the applicant had burnt a client. If that was the case then the evidence is that the applicant had not, prior to dismissal, been warned about any unsatisfactory performance.

[50] The applicant is a small employer and does not have human resource management specialist expertise.

[51] The applicant’s period of employment was a little over 12 months.

[52] Given the above I am satisfied that the dismissal of the applicant was unjust and unreasonable.

The Small Business Fair Dismissal Code

[53] In this case the evidence satisfies me that the employer is a small business and so the Commission must consider whether the dismissal was consistent with the Small Business Fair Dismissal Code which is set out below.

“Small Business Fair Dismissal Code

Commencement

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

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[54] There is no evidence in this case that the applicant’s conduct would in any way justify immediate dismissal.

[55] As I have found earlier there was no valid reason to dismiss the applicant related to her conduct or capacity to do the job and no warnings were given to the applicant prior to her dismissal.

[56] My conclusion then is that the dismissal of the applicant was not consistent with the Small Business Fair Dismissal Code.

[57] In the circumstances then I am satisfied that the applicant has been unfairly dismissed.

Remedy

[58] The Commission has the power to reinstate an unfairly dismissed employee and/or order the employer to pay compensation to the unfairly dismissed employee.

[59] The circumstances here are that the respondent has not at any time since this application was made put its position on the application before the Commission for consideration.

[60] The Commission consequently has no information before it as to the respondent’s attitude to the applicant being reinstated to the position she held immediately before her dismissal. For the reinstatement of an applicant to be a viable remedy a respondent employer needs to either have expressed a willingness to accept the employee back into its business, however reluctantly, or at least by its behaviour throughout proceedings have demonstrated its acknowledgement of the role of the Commission and that it appreciates reinstatement is a potential outcome of the unfair dismissal proceedings. None of these circumstances exist in this case and in my view for the Commission to reinstate an applicant in these circumstances would be foolhardy and inappropriate.

[61] Consequently in my view I do consider an order for the payment of compensation to be appropriate in all the circumstances here.

[62] Considering then the requirements of section 392 of the Act, there is no evidence before the Commission to suggest that the making of an order for compensation would have any effect on the viability of the respondent’s enterprise.

[63] The applicant had been employed for little over 12 months.

[64] Had the applicant not being dismissed it seems likely that for any number of reasons to do with the respondent’s attitude toward the applicant, including the rate she was to be paid, that her employment would have lasted no longer than a further eight weeks.

[65] Considering the amounts the applicant had earned in the period leading up to her dismissal I find that the applicant would have earned $635.91 gross per week.

[66] Consequently I calculate the remuneration that the applicant would have received if she had not been dismissed as $5 872.28 gross.

[67] I am satisfied that the applicant has made appropriate efforts to mitigate her loss.

[68] The applicant has earned $1 500 gross since she was dismissed.

[69] On the evidence before the Commission the applicant was not involved in any misconduct that contributed to the employer’s decision to dismiss her.

[70] Therefore my decision is that the respondent shall be ordered to pay the applicant compensation in the amount of $4 372.28 gross, from which tax according to law will be deducted. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

M Chalmers on her own behalf.

No appearance for the respondent.

Hearing details:

2013.

Perth:

September 24.

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