Ms Brianne Hussey v AAA Aussie Emergency Glass Pty Ltd T/A Aussie Emergency Glass

[2014] FWC 5374

[2014] FWC 5374

FAIR WORK COMMISSION

DECISION

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

Ms Brianne Hussey
v
AAA Aussie Emergency Glass Pty Ltd T/A Aussie Emergency Glass
(U2014/5275)

VICE PRESIDENT WATSON MELBOURNE, 11 AUGUST 2014

Application for relief from unfair dismissal - application dismissed - small business code - Fair Work Act 2009 - s.394. Application for relief from unfair dismissal.

[1] This decision is an amended version of a decision given in transcript on 5 August 2014 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Ms Brianne Hussey against AAA Aussie Emergency Glass Pty Ltd T/A Aussie Emergency Glass. The application was made on 5 March 2014. Ms Hussey was dismissed from her employment on 20 February 2014.

[2] The application alleges that the termination of employment was harsh, unjust or unreasonable. That is essentially the question I need to determine in this application based on the evidence that is before me.

[3] The employer has been given an opportunity to file material and appear in the matter today but has failed to do so. On the Commission’s file are a record of a number of attempts to contact the employer and to leave messages as to the obligations to file material and also the hearing details in this matter and the employer has not responded to any of those messages, has not filed any material and has not appeared in the matter today. I am therefore in a position that I can only act on the material that has been placed before me by the applicant, Ms Hussey.

[4] Given that the business is a small business I am required to have regard to the Small Business Fair Dismissal Code regarding a termination of employment. In the case of a small business a termination is not unfair if it is consistent with the Small Business Fair Dismissal Code. That code deals with terminations on account of conduct in summary dismissal and also other cases of dismissal. For other dismissals the code says that the small business employer must give the employee a reason as to 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.

[5] 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.

[6] Given the evidence before me in this matter I find that those requirements of the Fair Dismissal Code have not been satisfied in circumstances where the termination came out of the blue, without any previous warning and without an opportunity to respond to the warning or rectify any perceived problem in performance. I am not satisfied that there are any grounds for summary dismissal or any reasonable basis for believing that misconduct has occurred. I therefore find that the termination of employment is not consistent with the Small Business Fair Dismissal Code.

[7] I turn to consider whether the termination was harsh unjust or unreasonable. The criteria for considering whether the termination was harsh, unjust or unreasonable are set out in s.387 of the Act and those factors are intended clearly by the legislature to guide the decision as to whether the termination was harsh, unjust or unreasonable. I propose to consider each of those matters based on the evidence that is before me today.

[8] The first factor is whether there was a valid reason for the dismissal relating to the person’s capacity or conduct, including its effect on the safety and welfare of other employees. The evidence before me establishes that there was no history of unsatisfactory performance, no evidence of any misconduct and no evidence of lack of capacity of Ms Hussey to perform her work. She was employed in essentially the same position from December 2012 until the termination of her employment on 20 February 2014. She gave evidence that she had never been warned or counselled in relation to her employment and the termination occurred without warning and for reasons which do not appear to have any logical or sustainable basis. I am therefore of the view that there was no valid reason for the dismissal and I make that finding.

[9] The second factor is whether Ms Hussey was notified of that reason. It appears that at the time of her termination the communication was that Ms Hussey was unsuitable for the company. To that extent there has been communication as to the employer’s reason but it has not been established why Ms Hussey is unsuitable when she had performed work for approximately 15 months without any warning or counselling as to any difficulties or problems in her employment.

[10] The next factor is whether Ms Hussey was given an opportunity to respond to any reason relating to her capacity or conduct. It is clear from the evidence before me that the termination occurred essentially without notice and the termination was effected by way of a week’s pay in lieu of notice. When the employer spoke to her by phone on 20 February and advised her that her employment was terminated it was the communication of the decision rather than a discussion and an opportunity to respond to reasons of capacity or conduct. I therefore find that Ms Hussey was not given an opportunity to respond to any reason relating to her capacity or conduct.

[11] The next factor is any unreasonable refusal by the employer to allow the person, to have a support person present to assist at any discussions relating to the dismissal. The only discussions relating to the dismissal were the communication of the decision of the employer and there were otherwise no discussions where Ms Hussey may have been assisted by a support person. So the circumstances did not give rise to this factor having any significant role in the termination of employment.

[12] The next factor is if the dismissal related to unsatisfactory performance by the person, whether the person, Ms Hussey, had been warned about that unsatisfactory performance before the dismissal. On the evidence before me I find that Ms Hussey was not warned about any unsatisfactory performance, notwithstanding that it was indicated to her at the time of her termination that she was unsuitable for the role. As I have said, it appears that that communication came out of the blue and it was not preceded by any previous counselling or warning.

[13] The next factor is the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. It is clear that this is a small business and that this factor may have had an impact on the procedures that were applied – and I take that factor into account. The next factor is 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 to effect the dismissal. I also take that factor into account given the small nature of the business involved here.

[14] It appears to me that when somebody has a lengthy period of employment of at least six months or so that the employee has an expectation that employment will continue unless the performance in that position is unsatisfactory in some way and that in order to address any shortcomings in performance it is fair and reasonable for the employer to follow a procedure of providing warnings and counselling to improve the performance to the requisite standard or, in the case of performance that does not sufficiently improve, termination after an adequate opportunity to improve. That clearly has not occurred in this case and I consider that the termination that did occur was harsh, unjust and unreasonable.

[15] I turn to consider the questions of remedies arising from the unfair dismissal that I have found occurred in the case of Ms Hussey. I am required to have regard to reinstatement as the primary remedy but reinstatement is not sought in this case and I find that it is not appropriate to order reinstatement in these circumstances. In terms of compensation I am required to have regard to the requirements of s.392 of the Act. Those criteria include matters relating to the business and the effect of the order on the viability of the enterprise, the length of the person’s service, the remuneration that would have been received and amounts of remuneration earned from employment or other work during the period between the dismissal and the making of the order for compensation. I have regard to those factors and the other factors in s.392 of the Act.

[16] There was a period of approximately five weeks between the termination of employment on 20 February and the commencement by Ms Hussey in temporary work on 24 March of this year through an employment agency. I note that that work is full-time but it is not of a permanent nature and it does not have the same level of job security as was available to Ms Hussey in her previous employment. I note that Ms Hussey was paid one week’s pay from the date of the termination, 20 February 2014. I also note that the level of income from the temporary work is similar to the weekly income from the previous employment with Aussie Emergency Glass.

[17] In all of the circumstances I have decided to make an order for compensation to Ms Hussey from Aussie Emergency Glass of eight weeks pay, payable at the gross rate of $1000 per week. From that amount there will be a need to make appropriate taxation deductions. An order to that effect is issued in conjunction with this decision (PR553873).

VICE PRESIDENT

Appearances:

Ms B Hussey respondent

Hearing details:

2014

Melbourne

4 August

Printed by authority of the Commonwealth Government Printer

<Price code C, PR554030>