Ms Belinda Kirk v Punch Love Pty Ltd

[2019] FWC 6289

[2019] FWC 6289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Belinda Kirk
v
Punch Love Pty Ltd
(U2019/4213)

DEPUTY PRESIDENT BULL SYDNEY, 10 SEPTEMBER 2019

Application for an unfair dismissal remedy. Casual contract, Small Business Fair Dismissal Code considered.

[1] Ms Belinda Kirk (the applicant/Ms Kirk) was employed as a casual fitness instructor with Punch Love Pty Ltd (the respondent) from 12 March 2016 until her termination of employment on 4 April 2019. Ms Kirk claims she was unfairly dismissed without notice.

[2] The claim of unfair dismissal was opposed by the respondent on the basis that it is a small business employer employing less than 15 employees and that it had dismissed the applicant in compliance with the Small Business Fair Dismissal Code.

[3] Ms Kirk represented herself and the respondent was granted leave to be legally represented pursuant to s.596(2)(a) and (b) of the Fair Work Act 2009 (the Act) on the basis that the respondent is a small business employer without specialist human resources staff which was raising a jurisdictional objection to the application.

Identity of the employer

[4] Ms Kirk filed her application naming Punch Love as the employer. The response filed by the respondent indicates that the correct name of the employer is Punch Love Pty Ltd. I note that the applicant’s Casual Employment Contract names Punch Love Pty Ltd as the employer. Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer is correctly identified.

Small Business Employer and Small Business Fair Dismissal Code

[5] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an Order under Division 4 of the Act granting a remedy for unfair dismissal.

[6] Section 385 of the Act provides as follows:

S.385. A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or 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.

(My underline)

[7] Section 396 of the Act requires that before considering the merits of an application for an unfair dismissal remedy, the Commission must decide a number of threshold issues.

“S.396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

(My underline)

[8] Thus in accordance with s.396(c) of the Act extracted above, before considering the merits of the application in this matter under s.387 of the Act, the Commission must first decide whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) found at s.388(2)(a) of the Act. If the dismissal is consistent with theCode, then it cannot be held to be unfair.

[9] No issue was taken by the applicant that the respondent met the definition of a Small Business employer. The respondent submitted that it was a small business employer as per the definition under s.23(1) of the Act, in that it employed less than 15 employees at the time of Ms Kirk’s dismissal. Further, no issue was taken by the respondent that Ms Kirk was employed as a casual employee on a regular and systematic basis with a reasonable expectation of continuing employment by the respondent on a regular and systematic basis, had met the minimum employment period as per ss. 382, 383 and 384(2)(a) of the Act, and was thus entitled to make a claim of unfair dismissal.

Small Business Fair Dismissal Code

[10] The Small Business Fair Dismissal Codedeclared under sub-s.388(1) of the Act is in the following terms:

“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 the Fair Work Commission, 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.”

Submissions and Evidence of Punch Love

[11] Punch Love is a ‘women only’ fitness provider operating out of two locations in New South Wales, Windsor and Annangrove; and, as the name suggests conducts boxing fitness classes.

[12] It was submitted by the respondent that Ms Kirk was dismissed from her role as a casual fitness instructor due to a number of ongoing written and verbal complaints from members that she made them feel uncomfortable and unwelcome and that she was unfriendly and not fun to be trained by. Although Ms Kirk had previously been counselled about these issues member complaints were being still received.

[13] Ms Kirk directly reported to the directors of Punch Love Pty Ltd, Ms Nicola Fox and Ms Karina Groth. Both directors gave evidence in support of their decision to dismiss Ms Kirk.

Evidence of Ms Fox

[14] Ms Fox provided two witness statements 1 and was subject to cross examination by Ms Kirk.

[15] Ms Fox stated that Ms Kirk was hired as a casual fitness instructor in February/March 2016 and signed a formal written employment contract in May 2018. Ms Fox stated that throughout her employment the applicant failed to perform to the required standard. Ms Fox submitted that in each instance a clear verbal warning was provided and Ms Kirk was advised that she needed to improve her performance or her employment would be terminated. 2 Where appropriate Ms Kirk was offered training and opportunities to improve her skills.

[16] Ms Fox submitted that at Ms Kirk’s performance appraisal on 19 March 2018 she was advised that her performance had been unsatisfactory and, in particular, that member feedback was that her classes were generally not enjoyable. Ms Kirk was offered a group boxing refresher course, and additional professional support together with a $100 incentive to attend gym classes at other venues to report back on her observations at a team meeting.

[17] Where concerns were expressed with the applicant’s performance a written record was made by fellow director Ms Groth which Ms Fox attached to her 9 July 2019 witness statement. There were 8 recorded notes, the first was made on 26 September 2017 and the last on 21 March 2019. In the 2 to 3 week period before the applicant’s dismissal Ms Fox stated that there was a spike in complaints from members about her work performance which revolved around not being inclusive in her classes and tending to have favourites while ignoring others and/or being aggressive to them. While most complaints were informal or verbal, three of the complaints were provided in writing. Ms Fox stated that these were not new concerns but replicated what Ms Kirk had been counselled about in September and December 2017. Ms Fox stated that at the December 2017 counselling meeting Ms Kirk asked the directors to be given a second chance. 3

[18] Ms Fox refuted the allegation of Ms Kirk that her performance review held in March 2018 was ‘extremely positive’ stating that it was generally critical of her performance. A copy of the written outcomes of the performance review was attached to Ms Fox’s statement of 9 July 2019. Ms Fox stated that a copy of the written outcome of the performance review was not provided to Ms Kirk by the respondent as she did not request a copy. The outcome of the 21 March 2019 meeting is stated as: “Belinda was asked to improve on all aspects and offered support if needed to be shown how to do it as expected”. 4

[19] Ms Fox referred to the written complaint of one member who stated that one of the reasons she was no longer attending classes was due to the manner in which Ms Kirk was running her classes. 5

[20] Ms Fox submitted that she asked Ms Groth to contact Ms Kirk to arrange a meeting with Ms Kirk on 4 April 2019 to discuss the complaints. At the meeting on 4 April 2019 the directors advised Ms Kirk that they had received a number of complaints where Ms Kirk responded: “You’re letting me go aren’t you”. Ms Kirk was taken through both the verbal and written complaints and how they were not new issues as they had been raised before. Ms Kirk expressed to the directors that the previous concerns had not been raised with her in a sufficient manner. Ms Kirk was then advised of the previous warnings and attempts made to improve her performance. Ms Kirk did not dispute the complaints and accepted that she may not have paid much attention to the less fit women when they were shown a particular technique and did not grasp it immediately.

[21] Ms Fox’s evidence in response to a statement made by Ms Kirk was that one of the complainants had not been given Ms Kirk’s role as a trainer since Ms Kirk’s dismissal, as this person commenced in July 2019 (Ms Kirk was dismissed in April) and does not work the shifts that Ms Kirk worked.

[22] Upon hearing the applicant’s response and determining that the number of complaints was overwhelming it was decided by the directors that Ms Kirk’s casual employment contract would be terminated and, as a casual, no notice was required or provided.

Evidence of Ms Groth

[23] In addition to being cross examined at the hearing Ms Groth’s evidence was contained in two witness statements. 6 Ms Groth’s evidence was that as a director and co-founder of Punch Love she was principally responsible for staffing matters. On each occasion the applicant was counselled regarding her performance Ms Groth made written notes. Ms Groth confirmed that at the 8 December 2017 counselling meeting, which was held at her private residence, Ms Kirk was advised that the respondent was inclined to drop her classes down or cease providing her any classes at all. In response Ms Kirk promised to improve.7 Ms Groth stated that the applicant was always provided with an opportunity to provide her explanation to any complaints received.

[24] Ms Groth stated that the complaints received leading up to Ms Kirk’s dismissal which were in writing were from credible members and the substance of the complaints were put to Ms Kirk on 4 April 2019. The decision to dismiss Ms Kirk was not pre-determined but followed her response to the member complaints raised at the 4 April 2019 meeting. The actual written complaints were not shown to Ms Kirk in order to protect the privacy of the respondent’s members and as the exact wording of the complaints would be unnecessarily hurtful to Ms Kirk. Despite this the substance of the complaints was discussed with Ms Kirk and she was given an opportunity to respond.

[25] In response to Mr Kirk’s submission that many of the meetings referred to were not disciplinary meetings Ms Groth disputed this stating that it was always made clear that Ms Kirk’s performance was not at the level required and for that reason Ms Groth kept notes of the meetings. In particular, following a discussion with Ms Kirk on 19 January 2018, Ms Groth attended the Annangrove studio the following day and spoke to Ms Kirk making it clear that recent incidences involving lying to management and social media breaches were not acceptable.

[26] The respondent submitted that all the requirements of the Code were complied with. Ms Kirk was only dismissed following an extensive period of consultation and counselling regarding the respondent’s expectations with the provision of support to Ms Kirk. The respondent submitted that it could not have been expected to have done any more than it did; it acted fairly and with transparency.

Submissions and evidence of Ms Kirk

[27] Ms Kirk submits that her dismissal as a casual fitness instructor was unfair on the basis that she had not previously received any negative feedback or performance counselling. She submitted that she received no written warnings and only one verbal warning regarding not wearing the correct coloured tights at fitness classes. At the termination meeting she was not offered a witness/support person or an opportunity to correct her alleged under performance. While Ms Kirk’s employment contract stated she was a casual Ms Kirk stated that she worked consistent regular hours and days.

[28] Ms Kirk submitted that her dismissal was not consistent with the Code. Ms Kirk was of the belief that the respondent had determined to dismiss her prior to the 4 April 2019 meeting as the payroll was delayed by one day. At the meeting, which took no longer than 20 minutes, Ms Kirk was not given a letter of termination outlining the reason for her dismissal nor provided with specific examples of the alleged customer complaints, despite asking for them.

[29] Ms Kirk stated that the only performance review that she had received was extremely positive although she was not given a copy of the review. Ms Kirk, in responding to the employer’s list of occasions when she was counselled, stated that she was never put on notice that she was receiving verbal warnings or that her employment may be terminated. 8 Ms Kirk alleged that one of the written complaints that the employer had regard to was made by a person who replaced her in her role.

[30] In cross examination, Ms Kirk stated she understood that early on in her employment she would be dismissed if she didn’t improve however she did improve and was given additional shifts. Ms Kirk also accepted that she was provided with $100 to visit other venues and was offered refresher courses.

[31] Ms Kirk believes that she was unfairly dismissed on the basis of unsubstantiated member complaints which were fabricated and false, or that had been solicited; and that she was not given the opportunity to defend herself. 9

Conclusion

[32] In this matter the applicant was not summarily dismissed in the sense that any notice normally required was not provided. Nor was the applicant dismissed without notice on the basis that her conduct justified summary dismissal. The employment contract states that the applicant is employed on a casual basis from time to time and that any notice of termination applies at the end of the employee’s current engagement. 10 The summary dismissal aspect of the Code is not relevant to Ms Kirk’s dismissal.

[33] Ms Kirk was dismissed based on her capacity to perform the role of fitness instructor to the satisfaction of her employer. I am satisfied that the verbal and written complaints received by the respondent from members provided a valid reason for her dismissal. I do not accept that the written complaints were either fabricated, false or solicited; there is simply no evidence to support this contention by the applicant. The written complaints were tendered into evidence in addition to the contemporaneous notes of the counselling meetings.

[34] I further accept that Ms Kirk had been warned verbally that she was at risk of being dismissed; that is, losing all her shifts if there was no improvement in her performance. This occurred at the December 2017 meeting when she was told as such by Ms Groth. 11 Ms Fox states, which I accept, that following each verbal warning given Ms Kirk was told she needed to improve or face dismissal.12 Further, Ms Kirk was provided with an opportunity to improve during her employment period and offered a means to improve through additional training. In the respondent’s view the demeanour of the applicant in conducting her fitness classes was not at the level required which resulted in complaints from members, and this was a reoccurring theme. The written record of meetings taken by Ms Groth demonstrates the respondent’s concerns with Ms Kirk’s performance.

[35] While Ms Kirk submits she was not offered a witness or support person at the dismissal meeting on 4 April 2019, the respondent states that had Ms Kirk asked it would not have been refused. 13 In any event no breach of the Code is evident concerning this aspect of Ms Kirk’s claim. Ms Kirk was provided with a written notice of her dismissal.14

[36] The Code provides small business employers with a less stringent requirement in respect to the procedure upon which to initiate an employee’s dismissal than may otherwise apply. If the decision to dismiss is consistent with the Code it is a complete defence to a claim of unfair dismissal.

[37] On the basis of the above conclusions I find that the dismissal of Ms Kirk was consistent with the Small Business Fair Dismissal Code; the application for an unfair dismissal remedy must therefore be dismissed.

[38] The respondent in defending the unfair dismissal claim also relied upon information regarding Ms Kirk’s conduct it states came to light following her dismissal where it alleged Ms Kirk had been extracting secret profits from the business. This allegation was refuted by Ms Kirk. However, for the reasons provided above I have not found it necessary to take into consideration this additional argument of the respondent.

DEPUTY PRESIDENT

Appearances:

Ms B Kirk, on her own behalf

Mr J Zak, Solicitor on behalf of the respondent

Hearing details:

2019

August 13

Printed by authority of the Commonwealth Government Printer

<PR712169>

 1   Exhibit R1 9 July 2019, Exhibit R2 6 August 2019

 2   Witness statement of 9 July at [7]

 3   Witness statement of 6 August at [8]

 4   Witness statement of 9 July Attachment H

 5   Witness statement of 9 July Attachment L

 6   Exhibits R3 and R4

 7   Witness statement of 9 July 2019 at [7], Exhibit R3

 8   Witness Statement (undated) Exhibit A1 at [17] to [25]

 9   Witness statement A1 at [26] and [31]

 10   Recital B and clause 27 Termination of employment

 11   Exhibit R3 at[7]

 12   Witness statement of 9 July at [7] Exhibit R1

 13   Ibid at [21]

 14   Annexure A to Reply Statement of Ms Groth 6 August Exhibit R4