Ms Courtney Lee Hockley v Salon Inspired Hair & Beauty

[2016] FWC 5596

[2016] FWC 5596

FAIR WORK COMMISSION

DECISION

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

Ms Courtney Lee Hockley
v
Salon Inspired Hair & Beauty
(U2016/7277)

COMMISSIONER GREGORY MELBOURNE, 23 AUGUST 2016

Application for relief from unfair dismissal.

Introduction

[1] Ms Courtney Hockley was employed by Salon Inspired Hair & Beauty (“Salon Inspired”) on 23 February 2015 as a first year apprentice. The business is located in Strathfieldsaye in central Victoria and Ms Hockley moved from her family home to take up this opportunity. During her employment Ms Hockley also attended the Bendigo TAFE as part of her concurrent apprenticeship training. However, on 19 May this year Ms Hockley’s employment was terminated, with effect immediately, following a discussion with the proprietor of the business, Ms Cher Ney.

[2] Ms Hockley subsequently lodged this unfair dismissal application. Salon Inspired responded by raising a jurisdictional objection to the application on the basis that it is a “small business” under the definition in s.23 of the Fair Work Act 2009 (Cth) (the Act), and Ms Hockley’s termination was carried out in accordance with the Small Business Fair Dismissal Code provided for in s.388 of the Act.

[3] Prior to the hearing both parties provided brief written submissions and witness statements in accordance with the directions issued. However, neither party sought to expand on these submissions in the brief hearing that took place in Bendigo on 10 August 2016. Both parties indicated instead that they relied upon the written materials already provided. None of the statements provided by the witnesses were signed. Ms Hockley was represented in the proceedings by her mother, Ms Sonya Bruton.

[4] The submissions provided on behalf of Ms Hockley also raise a number of issues to do with claims for underpayment of wages and other entitlements, as well as issues to do with the circumstances involving her apprenticeship training, and the termination of that arrangement. The submissions provided by Salon Inspired in response also make reference to these issues.

The Issue to be Determined

[5] Section 385 of the Fair Work Act states:

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(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.” 1

[6] Section 388 also states:

“(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.” 2

[7] Section 23 of the Act also defines a “small business employer” to be an employer who employs fewer than 15 employees.

[8] The Small Business Fair Dismissal Code continues to provide that in cases other than summary dismissal the small business employer must give the employee a reason why he or she is at risk of being dismissed. It must be a valid reason, based on the employee’s conduct or capacity to do the job. The employee must also be warned verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must also provide the employee with an opportunity to respond to the warning, and provide a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might also involve the employer providing additional training and ensuring the employee is aware of the employer’s job expectations.

[9] As indicated above, Salon Inspired submits it is a “small business employer” and, as such, has complied with the Small Business Fair Dismissal Code in terminating Ms Hockley’s employment. The Commission is accordingly required to first determine whether Salon Inspired is a “small business employer” and, if so, whether it has complied with the Small Business Fair Dismissal Code in terminating Ms Hockley’s employment.

[10] If the Commission finds Salon Inspired has complied with the Small Business Fair Dismissal Code then the application must be dismissed. However, if the Commission finds it has not complied with the Code then it must proceed to determine whether the dismissal was harsh, unjust or unreasonable having regard to the matters set out in s.387 of the Act.

The Evidence and Submissions

[11] Salon Inspired submits that at the time Ms Hockley was dismissed it employed seven employees. Four of these were employed on a part time basis, with the others being full-time employees. One other employee has worked on occasions on a casual basis, but has not been offered casual work since December 2015.

[12] It also indicated that Ms Hockley was first employed in February last year as an apprentice hairdresser, and worked with the business until she was dismissed on Thursday, 19 May 2016.

[13] It submits the reason for Ms Hockley’s dismissal concerned issues to do with her attendance at work, and her attendance at the Bendigo TAFE (“the TAFE”) as part of her apprenticeship training. It referred to six different instances when she arrived late, involving 15 minutes on one occasion, but ranging up to periods of one hour. It also referred to five occasions when she apparently arrived late for her apprenticeship training at the TAFE. It submits these occasions involved periods of between one and two hours.

[14] Salon Inspired also submits that in two instances, Ms Hockley provided misleading information about her attendance at the TAFE, and on another two occasions did not provide any notification about her non-attendance. In its submission it only became aware of this situation after being contacted by a staff member at the TAFE, Ms Julie Mott, who indicated Ms Hockley had not attended on her nominated day that week. Salon Inspired submits that after being informed of this it obtained Ms Hockley’s attendance records at the TAFE, and discovered other occasions on which she had not attended on her nominated day without informing the business of this situation.

[15] Salon Inspired also submits Ms Hockley has previously been provided with a verbal warning, and then later a written warning about her late arrival at work. It submits the verbal warning was provided to her in October 2015 in the presence of another employee. The written warning was then given to her on 27 April 2016, and was signed by Ms Hockley in acknowledgement of it having been received. Salon Inspired submits it finally took the decision to terminate her employment after again being advised on 17 May 2016 by staff at the TAFE about Ms Hockley’s non-attendance on that day.

[16] It also submits Ms Hockley was provided with two weeks pay in lieu of notice at the time of her termination, which took effect immediately. It also submits it paid out her accrued annual leave entitlements, and at the time of her termination requested records of the payments she had made to the TAFE during 2016, as these fees were to be reimbursed every quarter. It submits in conclusion that when the various fees paid by Ms Hockley, and the subsequent reimbursement provided to her by the business, are taken into account Ms Hockley was actually overpaid at the time of her termination.

[17] Ms Ney also stated in her unsigned statement that prior to engaging Ms Hockley she asked about the support she would have outside of the workplace, given she was going to be living away from home for the first time. She also stated that Ms Hockley was the only staff member who arrived late for work on a consistent basis, without providing a legitimate explanation for why she was late. She also said she was angry and hurt about the fact Ms Hockley had misled her in regard to the occasions when she had not attended at the TAFE.

[18] A copy of the letter headed “Final warning letter” provided to Ms Hockley on 27 April 2016 was also attached to Ms Ney’s statement. It states:

“I am writing to you about your repeated tardiness during your employment with Salon Inspired Hair & Beauty.

Since October 2015 you have been late to work on three separate occasions (20/10/15, 29/3/16 and 23/04/16), varying from 45 minutes to one hour. No explanation was provided to me at any time for these last two dates.

After the first occasion, I issued a verbal warning, stating that it was ultimately up to yourself to arrive at work 10 minutes before your rostered time, and at the latest, on your rostered staff time.

I am hereby issuing you a formal, final warning letter. Should you be tardy in your attendance to work again, your employment may be terminated.

If you wish to respond to this final warning letter please do so by replying in writing. A hard copy of this warning letter will be provided to you to sign on your next rostered work day.” 3

[19] The copy of the letter also contained Ms Hockley’s signature, dated 28 April 2016, as confirmation that it had been received by her on that date.

[20] Ms Hockley submits in response that at the time she was employed she made it clear she would be relying on public transport to get to work and, as a consequence, was reliant on this service running on time. She submits that on the various occasions when she did arrive late for work this was due to circumstances involving public transport delays and related traffic issues.

[21] She also submits she did not intend to mislead her employer, and had not intentionally completed any time sheets incorrectly. She also indicated that on one occasion when she was not able to attend the TAFE on her nominated day she provided a medical certificate to Salon Inspired, and also sent a message to the relevant staff member at the TAFE.

[22] Ms Hockley also submits she was not the only staff member at Salon Inspired who was late for work on occasions, and believes she was singled out because of her age. She also takes issue with the submissions made by Salon Inspired about her attendance at the TAFE, and whether these issues were raised by the business with anyone at the TAFE.

[23] In addition, she also makes reference to a number of issues in her submissions about payment of wages and other entitlements allegedly due to her, as well as about the arrangements concerning her apprenticeship training. While these matters are not directly relevant to the present application it is noted Ms Hockley takes issue with a number of these matters, as well as issues to do with the materials provided to her as part of her apprenticeship training.

[24] Ms Bruton, also provided a brief signed statement indicating she spoke with Ms Ney after Ms Hockley’s termination, and was told she had been late to work on 3 occasions, and had not attended at the TAFE in accordance with what was expected of her. Ms Bruton indicated in response she was concerned about the fact Ms Ney had not made contact with her about these matters, given Ms Hockley’s age.

Consideration

[25] It is clear at the outset that the circumstances involved in this matter have been very difficult for Ms Hockley. Her employment at Salon Inspired was her first full-time job. She was also living away from home for the first time in order to be able to take on this employment, and lacked the family support that might otherwise be available. As part of her new role she also began her apprenticeship training, which involved attendance for some part of the week at the TAFE.

[26] Ms Hockley has also made reference in her submissions to what she believes are outstanding issues to do with wages and other entitlements due to her, as well as issues about her apprenticeship arrangements. However, the Commission is not in a position in these proceedings to express any concluded view about the respective merits of these claims and, in any case, they fall outside of the scope of these proceedings. They are instead issues that might be taken up with the office of the Fair Work Ombudsman, or with the relevant apprenticeship authorities, if Ms Hockley has ongoing concerns about these matters.

[27] It is also noted that Ms Hockley maintains she was not the only employee at Salon Inspired who arrived late for work on occasions. She also provided an explanation about issues associated with travelling to work by public transport, which led to her being late in some instances.

[28] She also submits that the issues about her attendance at the TAFE were not raised with her by any of the staff at the TAFE at the time, and she provided an explanation, in any case, concerning those occasions when she was not able to attend. She also seeks to make a distinction between the issues to do with her attendance at work and those concerning her attendance at the TAFE.

[29] However, it is also noted that she does not take issue in her submissions about the fact she was given an initial verbal warning about issues to do with her attendance at work, and then a further written warning concerning these issues, prior to her termination.

[30] The requirements for termination of employment in accordance with the Small Business Fair Dismissal Code have been set out at an earlier point in this decision and are not restated now. It is also noted that there does not appear to be any dispute between the parties about the fact Salon Inspired was a “small business,” under the definition contained in s.23 of the Act, at the time Ms Hockley was dismissed.

[31] Having regard to the limited submissions provided by the parties in this matter I am also satisfied that Ms Hockley was provided with at least one oral warning, and then a further subsequent written warning about her attendance and punctuality, which included reference to the fact her employment might be terminated if there was a repetition of this conduct. I am also satisfied she was provided with a reasonable period of time to demonstrate she had responded to these warnings and rectified her conduct. It is also noted that Ms Hockley does provide some explanation in her submission for her late attendance at work on occasions. She also submits she was treated differently from other employees because of her age, although no further evidence was provided in support of these submissions. However, she also acknowledges she was late for work on occasions, and does not take issue with the fact she was provided with a verbal, and then subsequently a written warning, about these issues.

[32] As indicated, the parties in this matter provided only brief submissions, and even more limited evidentiary material. However, based on my consideration of these materials I am not able to conclude Ms Hockley’s termination of employment was carried out in a way that was inconsistent with the requirements of the Small Business Fair Dismissal Code. Having come to this conclusion, and having regard to the provisions contained in s.385 of the Act, I am unable to conclude Ms Hockley has been unfairly dismissed. Her application is accordingly dismissed.

COMMISSIONER

Appearances:

S Bruton appeared on behalf of Ms Hockley.

C Ney on her own behalf for Salon Inspired Hair & Beauty.

Hearing details:

2016.

Bendigo

10 August

Final written submissions:

Applicant’s final written submissions received 28 June 2016.

Respondent’s final written submissions received 29 June 2016.

 1   Fair Work Act 2009 (Cth) at s.385.

 2   Ibid at s.388.

 3   “Final warning letter”, attachment to Witness Statement of Cher Ney, received 20 July 2016.

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