Ms Joanne Tzanoudakis v Uplift Skin and Beauty Salon

[2015] FWC 3300

[2015] FWC 3300

FAIR WORK COMMISSION

DECISION

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

Ms Joanne Tzanoudakis
v
Uplift Skin and Beauty Salon
(U2015/3217)

DEPUTY PRESIDENT SMITH MELBOURNE, 14 MAY 2015

Jurisdictional objections raised: was the termination at the initiative of the employer; and minimum employment period.

[1] Ms Tzanoudakis has lodged an application seeking relief in relation to what she argues was an unfair dismissal from her employment by Uplift Skin and Beauty Salon (the Salon).

[2] The Salon has raised two jurisdictional objections. They are that Ms Tzanoudakis:

● was not dismissed but resigned, and
● has not served a minimum period of employment.

[3] When the matter came on for hearing both parties were unrepresented.

[4] Section 396 of the Fair Work Act 2009 (the Act) requires the Commission to consider certain matters before it considers the merits. One of those matters is whether or not the person was protected from unfair dismissal. Section 382 of the Act is predicated on the fact that a dismissal has taken place and s.386 provides the meaning of dismissal. In s.386(1) it provides that the termination of employment must be at the initiative of the employer. In addition s.382 provides that a person is protected from unfair dismissal if they have completed a minimum employment period. Section 383 defines the minimum employment period and in the case of a small business employer, the period is one year. For unrepresented parties this legislation is complex.

[5] There is a difference of view about whether or not Ms Tzanoudakis resigned her employment or was terminated. This matter revolves around an email sent by Ms Tzanoudakis on 31 January 2015. The email reads as follows:

Nicole,

As we have discussed, I currently add value to this business with my management expertise and unique tattooing capabilities. In addition, I would like to work with you at implementing several ideas and improvements that I have been working on, which will advance and grow the Business in the future, by better servicing our clients.

Taking this into consideration, $30 per hour, plus super, based on a 15 hour work week, is what I am worth to this business, and I will not be happy to accept less for my work here. (a salon I treat as mine)

I very much look forward to working with you in two into the future. :-)

Joanne.

[6] To this email came the reply on 2 February 2015.

Sorry Jo, but when you said in your email that you “will not be happy to accept less for my work here” I took that as a refusal to our latest and last offer and a sign that you were happy to move on. Ben and I think that this is the best option moving forward as the last thing we want is for you to be feeling under paid and unappreciated (which isn’t the case). Thanks again for all your hard work we love you and wish you the best.... Please arrange to either drop off or post the salon keys back to us over the next few days.

[7] Ms Tzanoudakis responded on the same day:

I received your response.

I don’t believe I put in my resignation, I merely stated how I felt regarding my pay.

[8] Against those background facts I cannot find that Ms Tzanoudakis resigned her employment. I find that this was a termination at the initiative of the employer. In so finding I do not attribute anything more than a serious misunderstanding between these people which was not able to be resolved earlier. It is a matter of regret that it has reached this stage and at the conclusion of the hearing I urged the parties to seek to resolve their differences.

[9] Having found that it was a termination at the initiative of the employer, I now turn to consider the minimum period of employment requirement. It is clear that the employment relationship ended in about mid February 2015. The Salon argues that Ms Tzanoudakis did not commence employment until 7 March 2014. Ms Tzanoudakis argues that she was employed in August 2013. Ms Tzanoudakis presented bank statements to demonstrate this relationship. Two matters arise. To begin, whilst the letter purports to offer casual employment on 28 August 2013 the monies were paid into a business account owned by the applicant. From the pay slips payments were made for superannuation and in some cases taxation deducted. I am not satisfied that Ms Tzanoudakis was using a company to contract her services and therefore I find that an employment relationship existed.

[10] The second matter going to the minimum employment period, encompasses a time when the business to which Ms Tzanoudakis was originally employed, no longer existing as it was taken over by one of the previous partners.

[11] Section 384 provides:

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[12] It was submitted that the employment of Ms Tzanoudakis was not on a regular and systematic basis. The payslip handed up by Ms Tzanoudakis showed that she worked regularly. As to whether or not it was systematic, it has been held that a definition would include something that could fairly be called a system, method or plan [Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399]. From the submissions it is clear that Ms Tzanoudakis specialised and performed specialised work on a regular basis. Such activity would fall into the description in Yaraka Holdings in that it was a system, method or plan. I am satisfied that Ms Tzanoudakis was employed on a regular and systematic basis.

[13] The next matter is the change in business ownership. I understand it was a difficult time for the employer at the changeover of ownership but there is no evidence that the new employer informed the employee in writing that the period of service with the old employer would not be recognised.

[14] Taking all this into account I find, on the material presented to me, that Ms Tzanoudakis was terminated at the initiative of the employer and that she had served the minimum period of employment.

[15] The matter will be referred for conciliation.

DEPUTY PRESIDENT

Appearances:

J. Tzanoudakis the applicant.

B. Hunt and N. Craig on behalf of Uplift Skin and Beauty.

Hearing details:

2015.

Melbourne:

May, 8.

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