Ms Janine Budden v Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Cafe Pender Place

[2016] FWC 562

[2016] FWC 562 [Note: An appeal pursuant to s.604 (C2016/2721) was lodged against this decision - refer to Full Bench decision dated 20 April 2016 [[2016] FWC 2193] re the appeal.]

FAIR WORK COMMISSION

DECISION

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

Ms Janine Budden
v
Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Cafe Pender Place
(U2015/13072)

COMMISSIONER SAUNDERS NEWCASTLE, 8 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] Ms Budden was employed by Finke Enterprises Pty Ltd as trustee for M&L Carlson Family Trust trading as Fused Café Pender Place (Finke Enterprises) as a part-time cook from 6 February 2015 until she was dismissed on 21 September 2015. Ms Budden alleges that the termination of her employment was harsh, unjust or unreasonable.

Agreed matters

[2] It is not in contest and I am satisfied on the evidence that:

(a) Ms Budden is a person protected from unfair dismissal because, at the time of her dismissal, she had completed a period of employment with Finke Enterprises of at least the minimum employment period, she was covered by the Restaurant Industry Award 2010, and her earnings were less than the high income threshold (s.382 of the Fair Work Act 2009 (Cth) (the Act));

(b) Ms Budden was dismissed by Finke Enterprises (s.385(a) of the Act);

(c) For the reasons set out in my decision dated 16 December 2015 1, Finke Enterprises was not a “small business employer” as defined in section 23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable (s.385(c) of the Act);

(d) Ms Budden’s dismissal was not a case of genuine redundancy (s.385(c) of the Act); and

(e) Ms Budden’s unfair dismissal application (the Application) was made within the period required by section 394(2) of the Act.

Evidence

[3] After taking into account the wishes of the parties to the matter as to the way in which the Commission would consider the Application and inform itself in relation to the Application, I decided to conduct a conference pursuant to section 398 of the Act to determine the Application.

[4] Ms Budden gave evidence on behalf of herself at the conference. Finke Enterprises adduced evidence from Mr Michael Carlson (Director of Finke Enterprises), Ms Lauren Carlson (Director of Finke Enterprises), Ms Lauren Bowen (Manager), Ms Keisha Crowfoot (Manager), Ms Megan Parker (Waitress), Ms Tegan Doubleday (Cook and Waitress), Ms Tiffany Brumby (Host), Ms Taylor North (Cook and Waitress), and Ms Natasha Fox (Manager).

Findings of Fact

[5] Ms Budden worked for Finke Enterprises from Monday to Friday (five hours each day) in the Fused Café as a cook. She was the most experienced cook in the Fused Café.

[6] On 15 April 2015, Ms Budden signed Finke Enterprises’ Employee Code of Conduct. At the time Ms Budden signed the Code of Conduct she was informed that her employer required her to have a professional appearance at work.

[7] In early August 2015, Ms Budden spoke to Ms Carlson about the possibility of the Fused Café being involved in a breast cancer fundraiser for the month of October 2015. In particular, Ms Budden asked whether Ms Carlson would donate $0.10 from every hot beverage sold and donate some of the proceeds of pink slices to be made by Ms Budden and sold in the Fused Café. Ms Carlson agreed to these proposals put forward by Ms Budden.

[8] On 10 September 2015, Ms Budden had her hair dyed fluorescent pink in preparation for her involvement in the breast cancer fundraiser for the month of October 2015. Ms Budden did not inform Ms Carlson or anyone else on behalf of Finke Enterprises that she intended to dye her hair fluorescent pink before doing so.

[9] On 17 September 2015, Ms Budden was given a formal verbal warning by her manager, Ms Lauren Bowen. This was the first formal warning Ms Budden had received during her employment with Finke Enterprises. Ms Bowen made a file note of the verbal warning she gave to Ms Budden on 17 September 2015, albeit the file note was not provided to Ms Budden until after her employment came to an end.

[10] The verbal warning given by Ms Bowen to Ms Budden on 17 September 2015 related to two topics:

(a) the colour of Ms Budden’s hair; and

(b) other staff feeling uncomfortable and scared of Ms Budden.

[11] As to the colour of Ms Budden’s hair, Ms Bowen informed her that, although it was understood Ms Budden had dyed her hair fluorescent pink for a breast cancer fundraiser that was to occur in the month of October, the employer had formed the view that she did not have a professional appearance with fluorescent pink hair. Ms Bowen informed Ms Budden that, having regard to the fact that Ms Budden’s daughter was a hairdresser, it would be fair for Ms Budden to have until the following Monday, 21 September 2015 to change her hair colour, and if her hair colour was not changed by the start of her shift on that day then she would be sent home. Ms Budden was not happy about the direction given to her to change the colour of her hair.

[12] As to the other staff feeling uncomfortable and scared of Ms Budden, Ms Bowen’s file note describes the issue in the following way:

“The second issue was various staff had come to me feeling intimidated by Janine and ‘scared’ of her reactions if they make a mistake or need to discuss complex orders. This had led to the feeling of anxiety for them in the workplace. I advised Janine that in light of this she needs to be very careful in the way she communicates with fellow team members. I advised that it was not her responsibility to discipline or discuss issues with staff directly and any problems need to be bought [sic] to the attention of management directly, and we would organise training or to speak to staff ourselves. Janine did state ‘this is ridiculous they should just do their jobs properly and then we would have no issues’. She asked that I give her the names of people who had reported the issue to me. I stated that I was not going to do that as the issue was in regards to bullying and I did not want her to speak to the people involved (as she had done in the past). I stated that while I myself am not intimidated by her, I can understand why other staff are, and it was vital that her behaviour change.”

[13] Ms Budden denies that she conducted herself in this way. I will return to this issue later in the decision.

[14] Later on 17 September 2015, Ms Budden spoke to Ms Carlson by telephone in relation to the warning she had received earlier in the day from Ms Bowen. Ms Carlson gave evidence that during her telephone discussion with Ms Budden on 17 September 2015 Ms Budden “became hostile quite quickly, yelling, swearing, demanding I explain my decisions and reasons” for the direction not to attend work with fluorescent pink hair. Ms Budden agrees that she was upset and frustrated by the decision not to allow her to attend work with fluorescent pink hair and that she spoke loudly during her telephone discussion with Ms Carlson. In fact, Ms Budden alleges that both she and Ms Carlson were loud and became “heated” during the telephone discussion. Ms Budden said that she swears when she gets “heated”.

[15] Ms Carlson denies that she yelled at Ms Budden or became “heated” during the telephone discussion. Mr Carlson was in the background at the time that Ms Carlson spoke to Ms Budden on the telephone. Mr Carlson gave evidence that he heard part of the conversation between Ms Carlson and Ms Budden, and he heard Ms Budden yell at, and make abusive comments towards, Ms Carlson during the discussion. Mr Carlson also gave evidence that Ms Carlson remained calm during the telephone discussion.

[16] In light of the admissions made by Ms Budden and the evidence given by Mr and Ms Carlson (which I accept) in relation to the telephone discussion, I find, on the balance of probabilities, that Ms Budden yelled, swore and became “heated” during her telephone discussion with Ms Carlson on 17 September 2015, and that Ms Carlson remained calm during the discussion. Notwithstanding the fact that Ms Budden believed in her own mind that she was in the “right” because she had dyed her hair for a charitable cause, that did not entitle her, in my view, to speak to Ms Carlson, the owner of the business in which Ms Budden worked, in the way that she did on 17 September 2015. In my view, even though the issue of hair colour was not directly addressed in the Code of Conduct, the direction given to Ms Budden not to attend work with fluorescent pink hair was a reasonable and lawful direction by the employer, particularly in circumstances where patrons at the Fused Café could see Ms Budden in the kitchen and from time to time Ms Budden had cause to interact with some patrons at the Fused Café.

[17] I accept Ms Carlson’s evidence that there is a material distinction between, on the one hand, the different (non-fluorescent) colours Ms Budden had dyed her hair in the past and, on the other hand, the fluorescent pink colour she dyed her hair on 10 September 2015. In my view, the owner of a café is entitled to require staff working at the café to have a neat and professional appearance, including not having fluorescent coloured hair.

[18] There is no dispute that during the telephone discussion on 17 September 2015 Ms Carlson offered Ms Budden the options of (a) dying her hair to a lighter “ash pink” colour for the duration of the breast cancer month, (b) wearing a pink T-shirt to work, or (c) wearing a breast cancer badge at work. In my view, those options were reasonable.

[19] After Ms Budden had calmed down following her telephone discussion with Ms Carlson on 17 September 2015, she decided to change her hair colour. She clearly resented having to make that change.

[20] After the conclusion of the telephone discussion between Ms Carlson and Ms Budden on 17 September 2015, Ms Carlson sent Ms Budden an email in which she gave her a “written official warning” in relation to (a) the options Ms Carlson had provided Ms Budden to change her hair colour but remain supportive of her involvement in the breast cancer fundraiser and (b) the inappropriate way in which Ms Budden had spoken to Ms Carlson in their telephone discussion earlier that day. Towards the end of the email Ms Carlson stated:

“Should there be any more issues we consider to be inappropriate, Michael and I will meet with the managers to formally review your employment status.”

[21] On Friday, 18 September 2015, Ms Budden attended work for two hours and then took three hours off work as time in lieu of overtime she had worked in the past to have her hair dyed to a different colour. Ms Budden was told by her hairdresser that there was no such colour as “ash pink”, so she elected to change the colour of her hair to a darker (non-fluorescent) colour known as “cranberry”.

[22] On Sunday evening, 20 September 2015, a celebration was held at a restaurant for the 21^st birthday of one of the employees at the Fused Café, Ms Ashley Vickery. The birthday celebration was not a Finke Enterprises’ “work event”, but a number of employees of Finke Enterprises attended the celebration, as did Mr and Ms Carlson, because they were friends with Ms Vickery.

[23] As they were about to enter the restaurant on 20 September 2015, Ms Carlson said to Ms Budden words to the effect “your hair looks good”. Ms Budden said in reply words to the effect “I don’t want to talk about it”.

[24] There is a dispute about what Ms Budden said to other employees of Finke Enterprises at the restaurant on Sunday, 20 September 2015 in relation her change in hair colour. Ms Budden asserts that, in relation to her change in hair colour, she said to each of Ms Doubleday and Ms North that she did what she had to do to keep her job. Ms Budden also says that she asked another employee of Finke Enterprises, Ms Tamara Cormick 2, “did you hear about my dilemma?”

[25] Ms Doubleday gave evidence that she spoke to Ms Budden at the restaurant on 20 September 2015 about her hair colour. In particular, Ms Doubleday recalls Ms Budden telling her that she had changed her hair colour but she was not happy about it.

[26] Ms North gave evidence that she spoke to Ms Budden at the bar in the restaurant about the change in the colour of her hair. In particular, Ms North asserts that Ms Budden was very angry that she had to change the colour of her hair and Ms Budden said to her “would you like me to show you what it [my hair] looked like before they fucking made me change it?” Ms North also contends that Ms Budden showed her a photograph on her mobile phone of her with fluorescent pink coloured hair. 3 Ms Budden admits that she spoke to Ms North at the bar about the change in her hair colour, but denies saying to Ms North words to the effect of those asserted by Ms North and denies showing Ms North a photograph of her fluorescent pink hair. Ms Budden asserts that, in relation to the change of her hair colour, she only said to Ms North that she did what she had to do to keep her job.

[27] Ms North told Ms Carlson about what Ms Budden had said to her at the restaurant concerning her change of hair colour. Ms Carlson also gave evidence that Ms Cormick told her that Ms Budden had made a similar comment to Ms Cormick at the restaurant about her reluctant decision to change her hair colour. 4

[28] I prefer the evidence of Ms North to the evidence of Ms Budden in relation to the dispute concerning what Ms Budden said to Ms North at the restaurant on 20 September 2015 concerning her decision to change the colour of her hair. I do so for the following reasons:

(a) First, Ms North was, in my view, a credible and reliable witness. She gave evidence in a frank manner and had no difficulty recalling, when asked in a non-leading way, what Ms Budden had said to her at the restaurant;

(b) Secondly, the evidence Ms North gave about her conversation with Ms Budden at the restaurant on 20 September 2015 is consistent with what she told Ms Carlson about the conversation on 20 and/or 21 September 2015. 5 It is also consistent with what Ms Carlson says she was told by Ms Cormick about Ms Budden’s statement to Ms Cormick at the restaurant.6 I accept Ms Carlson’s evidence in that regard; and

(c) Thirdly, even though Ms Budden had changed her hair colour on Friday, 18 September 2015, she was clearly still upset on Sunday, 20 September 2015 at having to do so. Ms Budden also gave evidence that she often swears when she is upset.

[29] After Mr and Ms Carlson had attended the birthday celebration on the evening of Sunday, 20 September 2015, they had a telephone conference with Ms Bowen, who was the manager of Ms Budden at the Fused Café, about what had been said by Ms Budden at the restaurant and whether Ms Budden’s employment should be terminated. Ms Bowen did not attend the birthday celebration at the restaurant. Following the telephone conference Mr Carlson decided that he would probably terminate Ms Budden’s employment on the following day, but he wanted to speak to her and hear what she had to say before making a final decision.

[30] Ms Budden attended work as usual on Monday, 21 September 2015. On the afternoon of Monday, 21 September 2015 Ms Budden met with Mr Carlson at a table in the Fused Café. Ms Bowen was a witness to the discussion between Mr Carlson and Ms Budden. Mr Carlson outlined to Ms Budden what had occurred over the past week, including the reports they had received from staff as to what Ms Budden had said to staff at the restaurant on Sunday evening. Ms Budden asked what she was supposed to have said to staff. Mr Carlson did not respond to that question. Mr Carlson also spoke to Ms Budden about the values he holds for his businesses and the reasons he adheres to such values. Mr Carlson told Ms Budden that loyalty is important to him, and the reason loyalty is important is that “when you bad mouth Lauren and myself to a room full of staff members it has to come back to me.” Ms Budden then said to Mr Carlson “are you sacking me?” Mr Carlson replied “I’m sorry Janine”. Ms Budden then stormed off. Ms Budden returned on two or three occasions to the table at which Mr Carlson and Ms Bowen were sitting to make comments such as “you talk about professionalism. I am the most professional person in the kitchen”, “you have lost one of the best cooks you have had”, and “you can’t sack me without paying my leave and entitlements” before storming off again on each occasion. On one of these occasions Mr Carlson told Ms Budden that she would be paid her full entitlements.

[31] Mr Carlson gave evidence, which I accept, to the effect that he was willing to listen to any apology or explanation or statement Ms Budden may have made at their meeting on Monday, 21 September 2015 prior to making any decision to terminate her employment. However, because Ms Budden stormed off, on a number of occasions, and did not make any apology or comment about the substance of the matters being discussed with her, Mr Carlson made his decision to terminate her employment. In particular, Mr Carlson’s final decision to dismiss Ms Budden was made when she said to him in the discussion on Monday, 21 September 2015 “are you sacking me?” and he replied “I’m sorry Janine”. Mr Carlson subsequently paid Ms Budden her termination entitlements.

Allegations of intimidating behaviour

[32] On 17 September 2015, Ms Bowen gave Ms Budden a verbal warning about the fact that various staff had told Ms Bowen they felt intimidated by Ms Budden and scared of her reactions if they made a mistake or need to discuss complex orders with her in the workplace.

[33] Ms Budden denies that she intimidated, bullied or otherwise acted in an inappropriate way towards staff she worked with in the Fused Café. Ms Budden asserts that she is an “old school” cook, and that when the café became busy and staff were stressed she gave directions to other staff who were working in the kitchen with her without saying “please” or “thank you”, and told the other staff in a direct manner when they had made a mistake and how the mistake had to be fixed. By way of example, Ms Budden gave the following evidence about her conduct in the workplace: 7

“… I’ve admitted that I swear and I’m pointed when I make – like ask for things to be done when I work and people might take it as abrasive.”

[34] The verbal warning given by Ms Bowen to Ms Budden concerning the way in which she interacted with other staff is supported by the evidence given by Ms Bowen, Ms Doubleday, Ms North, Ms Carlson, Ms Crowfoot, Ms Parker, and Ms Brumby. In particular, these employees gave evidence to the effect that they observed, and in some cases were the recipient of, the following types of conduct by Ms Budden in the workplace:

(a) yelling at, and speaking rudely and aggressively to, staff;

(b) putting staff down when they had made a mistake by calling them names such as “idiot”;

(c) criticising and putting staff down behind their back to other employees at the workplace;

(d) slapping the back of the hand of an employee after she had made a mistake. Ms Budden believed this was a joke on her part, but the employee concerned was, in my view, genuinely and reasonably upset and intimidated by Ms Budden’s conduct; and

(e) criticising the owners of the Fused Café.

[35] On the basis of the evidence given by these witnesses, which I accept, I find, on the balance of probabilities, that Ms Budden did engage in this conduct in the workplace. I am satisfied that Ms Budden did not intend to, and does not believe that she did, act inappropriately towards, or upset, any of the staff with whom she worked at the Fused Café. However, Ms Budden’s subjective beliefs about her actions are not determinative of whether the conduct occurred. On an objective assessment of the evidence given by the employees with whom Ms Budden worked at the Fused Café, I am satisfied that (a) Ms Budden engaged in the conduct set out in the previous paragraph, (b) the conduct was inappropriate, and (c) it was likely to, and did, upset and cause nervousness and anxiety in a number of the staff with whom Ms Budden worked.

[36] By way of example as to the impact of Ms Budden’s conduct on other employees, Ms Bowen gave the following evidence, which I accept, as to the way in which a particular employee felt after they had been intimidated by Ms Budden in the workplace: 8

“…afterwards we did have issues with [employee] 9, especially, feeling overtly intimidated and quite scared to go back out the back to the point where she would say to me, ‘I can’t go out there’. She was incredibly agitated and upset by the interaction she had had …”

[37] Further, 17 September 2015 was not the first occasion on which Ms Budden had been spoken to about the way in which she interacted with other staff at the Fused Café. Ms Budden agreed in evidence that Ms Carlson spoke to her some months prior to September 2015 about the fact that a junior employee felt scared of, and intimidated by, Ms Budden. Ms Carlson directed Ms Budden to change the way in which she spoke to the junior employee. 10

[38] Shortly after the discussion between Ms Carlson and Ms Budden about the junior employee some months prior to 17 September 2015, Ms Budden spoke directly to the junior employee and asked “are you scared of me?” In my view, it was inappropriate and intimidating for an experienced and senior employee such as Ms Budden to ask such a question of a junior employee who had been observed by managers within the business to be scared of, and intimidated by, Ms Budden.

[39] Ms Budden asserts that her verbal warning with Ms Bowen on 17 September 2015 and her discussion some months earlier with Ms Carlson were the only two occasions on which she was spoken to about the way in which she interacted with other staff at the Fused Café. Ms Carlson and Ms Bowen deny that. They say that managers in the Fused Café had a number of discussions with Ms Budden about her treatment of other staff. 11

[40] I am satisfied, on the balance of probabilities, that the managers at the Fused Café did speak to Ms Budden on a number of occasions about her treatment of other staff. It would be most unlikely, in my view, for a manager who observed conduct of the type that Ms Bowen, Ms Carlson and Ms Crowfoot say they saw Ms Budden engage in at the workplace not to say anything to the staff member under their supervision who had engaged in the conduct.

[41] Ms Bowen admitted in her evidence that she had been dishonest when she sent Ms Budden text messages shortly after her dismissal. In particular, Ms Bowen told Ms Budden in text messages that:

(a) she did not know about Ms Budden’s dismissal until 30 seconds before it took place, whereas Ms Bowen was aware after the telephone conference call on the Sunday night that Ms Budden was likely to be dismissed the next day. Ms Bowen frankly admitted in cross examination that she had not been truthful in her text message to Ms Budden because she was “four months pregnant and horrifically sick. I did not want to – I didn’t feel the need – that I would need to kick you while you were down, so to speak …” 12; and

(b) she could not talk to Ms Budden after her dismissal because she was “gagged”, whereas Ms Bowen had not been directed or requested by her employer not to talk to Ms Budden. In fact, it was Ms Bowen who told staff that “no good can come from contact with Janine”. 13 Ms Bowen did these things because she “knew you [Ms Budden] were upset … I just wanted it over. I didn’t – I was violently sick. I had been hospitalised numerous times. I believed that by writing what I had written, it would just stop the matter and you would stop calling me and wanting more from me …”14

[42] Notwithstanding the fact that Ms Bowen was dishonest in her text messages to Ms Budden shortly after her dismissal, I am of the view that Ms Bowen was a credible witness in relation to her evidence about what she observed happening in the workplace, particularly concerning the way in which Ms Budden treated other staff. Ms Bowen frankly admitted that her text messages were not truthful as soon as those matters were raised with her. She had a plausible explanation for her conduct at that time. Ms Bowen’s evidence was, at all times, given in a frank manner, she made a number of concessions, and she answered the questions put to her in a direct and thoughtful way.

Was the dismissal harsh, unjust or unreasonable?

[43] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd 15 by McHugh and Gummow JJ as follows:

“… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of misconduct which the employee acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[44] The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out in section 387 of the Act. I will deal with each of these matters in turn below.

Valid reason (s.387(a))

[45] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 16 The reason for the dismissal should be “sound, defensible and well founded”17 and should not be “capricious, fanciful, spiteful or prejudiced.”18

[46] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 19 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).²⁰

[47] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.²¹ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 22

[48] Based on the findings I have made as set out in paragraphs [5] to [42] above, I am satisfied that Finke Enterprises had a valid reason to dismiss Ms Budden based on her conduct. In particular, an employer has an obligation to ensure the health and safety of its employees in the workplace. That obligation extends to ensuring that an employee such as Ms Budden does not interact inappropriately with other employees in the workplace, particularly where such conduct is likely to, or does, have a negative impact on the health, well-being and/or performance of other employees in the workplace, as Ms Budden’s conduct did. Further, it is inappropriate for an employee to make derogatory remarks to other employees about either their employer or a lawful and reasonable direction issued by the employer, as Ms Budden did to at least one employee on the evening of Sunday, 20 September 2015. Although this conduct occurred outside the workplace, Finke Enterprises is entitled to rely on such conduct because:

(a) viewed objectively, Ms Budden’s conduct was likely to cause serious damage to the relationship between her and Finke Enterprises, particularly in circumstances where the remarks were made to another employee at an event where a number of the employees from Finke Enterprises were present and the remarks related to a direction and warning which had been given to Ms Budden only three days earlier; and

(b) Ms Budden’s conduct in making the derogatory remarks damaged Finke Enterprises’ interests. 23

[49] Ms Budden asserts that the real reason for the termination of her employment was the fact that she dyed her hair fluorescent pink. I am satisfied on the evidence given by Mr and Ms Carlson that that was not an operative reason for the termination of Ms Budden’s employment. On Thursday, 17 September 2015 Ms Budden was requested to change her hair colour and she did so on the following day. Further, I am satisfied that Ms Carlson was genuine when she said to Ms Budden on the evening of Sunday, 20 September 2015 words to the effect “your hair looks good”.

[50] The event that tipped Finke Enterprises “over the edge” from issuing an oral and then a written warning on Thursday, 17 September 2015 to deciding to dismiss Ms Budden on Monday, 21 September 2015 was her derogatory remarks to at least one other employee on Sunday, 20 September 2015. Those remarks, together with the earlier inappropriate interactions between Ms Budden and staff at the Finke Café, resulted in Mr and Ms Carlson forming the view that they had no trust or confidence in, nor any loyalty from, Ms Budden.

[51] For the reasons set out above, Finke Enterprises’ reasons for Ms Budden’s dismissal were, in my view, sound, defensible and well founded, and were not be capricious, fanciful, spiteful or prejudiced.

Notification of the valid reason (s.387(b))

[52] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 24, and in explicit25 and plain and clear terms.26 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[53] The key issues that ultimately led to the decision to dismiss Ms Budden were ventilated during the discussion between Mr Carlson and Ms Budden on Monday, 21 September 2015. A more fulsome discussion of the reasons would likely have taken place had Ms Budden not “stormed off”, on a number of occasions, from the discussion.

[54] On that basis, I am satisfied that Ms Budden was notified of the reasons for the termination of her employment. In addition, given that Mr Carlson’s final decision to dismiss Ms Budden was only made when she said to him at the discussion on Monday, 21 September 2015 “are you sacking me?”, I am satisfied that Ms Budden was notified of the reasons for the termination of her employment prior to the decision to terminate her employment.

Opportunity to respond (s.387(c))

[55] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 27

[56] I am satisfied that Ms Budden had an opportunity to respond to the reasons for her dismissal during her discussion with Mr Carlson on Monday, 21 September 2015. Ms Budden did not take up much of that opportunity because she repeatedly “stormed off” and was not willing to engage in much discussion with Mr Carlson. Further, Ms Budden had an opportunity to respond to the allegations of staff feeling intimidated by her conduct during her discussions with Ms Bowen and Ms Carlson on 17 September 2015.

Unreasonable refusal by the employer to allow a support person (s.387(d))

[57] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[58] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”28

[59] Ms Budden did not request that a support person be present during her discussion with Mr Carlson on Monday, 21 September 2015. Accordingly, I am satisfied that there was no unreasonable refusal by Finke Enterprises to allow Ms Budden to have a support person present to assist at any discussions relating to her dismissal.

Warnings regarding unsatisfactory performance (s.387(e))

[60] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[61] In this case, the reasons for dismissal related to Ms Budden’s conduct, rather than her performance, so this consideration is not relevant.

Impact of the size of the employer’s enterprise on procedures followed (s.387(f))

[62] Notwithstanding my earlier finding 29 that Finke Enterprises was not a “small business employer” within the meaning of the Act, it plainly conducts a relatively small enterprise. This is likely to have had an impact on the procedures followed in connection with Ms Budden’s dismissal, such as the fact that Ms Budden was not told when she asked on 21 September 2015 what in particular it was alleged she had said to staff on the prior evening. However, I am satisfied that the failure by Mr Carlson to inform Ms Budden of the precise details of the derogatory remarks she was alleged to have made to staff on the prior evening would not have changed the outcome.

Absence of dedicated human resources management specialist/expertise on procedures followed (s.387(f))

[63] As a consequence of the small size of Finke Enterprises’ business, it did not, at the time of Ms Budden’s dismissal, engage any dedicated human resource management specialists or managers with expertise in that field. The absence of such specialists or expertise is likely, in my view, to have impacted on the procedures followed in effecting the dismissal, in the manner set out in the previous paragraph.

Other relevant matters (s.387(h))

[64] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[65] I have had regard to the following other matters in considering whether Ms Budden’s dismissal was harsh, unjust or unreasonable:

(a) Ms Budden’s age 30 and the harshness of the personal and economic consequences of the dismissal for Ms Budden, particularly in circumstances where Ms Budden requires the income from her work to meet her living expenses and, save for some casual work at a service station and one day’s work in a pharmacy, she had not, at the time of the conference on 1 and 2 February 2016, undertaken any alternative work. Shortly before the conference, Ms Budden secured work as a cook, commencing on 11 February 2016;

(b) Ms Budden asserts that her dismissal was unfair because the relevant sequence of events commenced when she dyed her hair on 10 September 2015. She asserts it was unfair and inconsistent for Finke Enterprises to not take issue when she had dyed her hair different colours earlier in her employment with Finke Enterprises, and then to direct her to change her hair colour when she dyed it fluorescent pink for a charitable cause on 10 September 2015. The first answer to this submission is that Ms Budden was not dismissed because she dyed her hair fluorescent pink. Further, I agree with Ms Carlson that it was reasonable for her to draw a distinction between an employee working in her café having fluorescent coloured hair (even for a charitable cause) and the same employee having non-fluorescent colours in their hair at different times. Similarly, I agree with Ms Carlson that it was reasonable for her to draw a distinction between an employee working in her café having fluorescent coloured hair (even for a charitable cause) and another employee wearing earrings or other jewellery which Ms Carlson considered to be consistent with her requirement that staff working in her café have a neat and professional appearance;

(c) Ms Budden was employed by Finke Enterprises for a relatively short time (approximately 7.5 months);

(d) Prior to her dismissal, Ms Budden had received warnings and had been spoken to about her interactions with other staff in the workplace; and

(e) The conduct on the part of Ms Budden in respect of which Finke Enterprises relied to make its decision to terminate her employment was both (i) established, on the balance of probabilities, on the evidence and (ii) serious. It had a significant and negative impact on the health and welfare of a number of the staff who worked at the Fused Café. The gravity of Ms Budden’s conduct was not, in my view, disproportionate to her dismissal.

Conclusion

[66] Having considered each of the matters specified in section 387 of the Act, I am satisfied the dismissal of Ms Budden was not harsh, unjust or unreasonable. Accordingly, I find Ms Budden’s dismissal was not unfair. The Application is therefore dismissed.

COMMISSIONER

Appearances:

Ms J Budden appeared on her own behalf;

Mr M Carlson appeared on behalf of Finke Enterprises.

Hearing details:

2016.

Newcastle:

February, 1 & 2.

 1   [2015] FWC 8675

 2   Although Ms Cormick prepared a statutory declaration for Finke Enterprises, she was not called as a witness by Finke Enterprises because her employment had recently come to an end. In those circumstances, Ms Cormick’s statutory declaration was not admitted into evidence and I have not placed any reliance on it in reaching my decision in this matter.

 3   Ms North had not seen Ms Budden’s hair since she dyed it fluorescent pink because Ms North usually worked in another café owned by Ms Carlson.

 4   PN1327-1333

 5   PN1335-1337

 6   PN1327-1333

 7   PN1387

 8   PN1660

 9   I have deliberately not included the name of the employee concerned, for it is not necessary.

 10   PN1241

 11   PN1235-1237; PN1670; PN1704-6

 12   PN1722

 13   PN1730

 14   PN1730

 15 (1995) 185 CLR 410 at 465

 16   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 17   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 18   Ibid

 19   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

20 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

21 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 22   Ibid

 23   Rose v Telstra (unreported, AIRC, Ross VP (as his Honour then was), 4 December 1998) Print Q9292

 24   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 25   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 26   Previsic v Australian Quarantine Inspection Services Print Q3730

 27   RMIT v Asher (2010) 194 IR 1 at 14-15

28 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

 29   [2015] FWC 8675

 30   53

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