Ms Kerry Beddgood v Ronda Joyce Russell

[2019] FWC 7517

[2019] FWC 7517

FAIR WORK COMMISSION

DECISION

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

Ms Kerry Beddgood
v
Ronda Joyce Russell
(U2019/6743)

COMMISSIONER SIMPSON BRISBANE, 31 OCTOBER 2019

Application for an unfair dismissal remedy.

Application for unfair dismissal – Jurisdictional objection – Small Business employer–Application lodged out of time – whether extension of time should be granted – no exceptional circumstances existed – extension not granted – minimum employment period not met – application dismissed.

[1] This matter concerns an application under section 394 of the Fair Work Act 2009 (the Act) by Ms Kerry Beddgood who alleges that the termination of her employment with Ronda Joyce Russellwas unfair in accordance with section 385 of the Act. The application was filed on 19 June 2019.

[2] The Respondent in this matter is a sole trader under the name Russell, Ronda Joyce ABN 16176108379. The Respondent was represented by Ms Ronda Russell.

[3] The Form F3 Response was filed by Ms Russell and indicated that the Respondent raised a jurisdictional objection that the application was made out of time.

[4] A conciliation conference between the parties was held on 23 July 2019 but the matter was not resolved.

[5] A directions hearing was held on 27 August 2019 and I listed the matter for a hearing on 23 September 2019.

[6] At the hearing, Ms Beddgood was represented by Ms Michelle Liston and Mr Daniel Liston of Dam Consultancy. Ms Russell represented the Respondent.

Full time employment

[7] Ms Beddgood commenced employment with the Respondent on 9 April 2018 as a full time Senior Hair Stylist.

[8] On 4 January 2019, Ms Beddgood was provided with a warning letter via email. The letter read:

“4th January 2019

Kerry,

Just a brief letter to ask that you please pay attention to your manner and behaviour in the salon. It has been somewhat erratic and a little bit aggressive at times lately, and a couple of clients have noticed.

I love to have a relaxed and friendly atmosphere in the salon and it is very important to me that stylists always behave in a professional manner. I aim to have a workplace that is busy but has a calmness to it. This gives clients a relaxed ambience in which to enjoy our services, even though we might have dryers going and several clients in the salon at one time.

You are an important part of the team. Please understand that your behaviour impacts the salon and please work at the above. If you have any questions or you want to talk about anything, please let me know,

Thanks

Ronda”

[9] On 27 January 2019, Ms Beddgood was provided with a further warning letter, again via email:

“27th January 2019

Kerry,

Although you are an excellent hairdresser from a technical and artistic standpoint. We have a major problem with your confrontational and somewhat aggressive response to many directions from myself and other staff members. It happens in front of clients too, which won’t be tolerated.

It’s a communication issue which I have spoken to you about on more than one occasion. It worries me that you seem unwilling or unable to change (as you pointed out when you said you’ve been like that all your life).

Please pay attention to your manner and behaviour in the salon. As previously mentioned, we have a small team and I love to have a relaxed and friendly atmosphere in the salon. It is very important to me that stylists always behave in a professional manner.

Please understand that your behaviour impacts the salon and please work at the above. If you have any questions or you want to talk about anything, please let me know.

Regards,

Ronda Russell”

[10] On 4 February 2019, Ms Russell invited Ms Beddgood to a meeting at a coffee shop outside of work. It was Ms Beddgood’s evidence that at this meeting she was not told her employment was terminated and instead that she was to be employed on a part time basis.

[11] Ms Beddgood recorded the meeting and created a transcript from the audio recording. The transcript of the audio recording was provided to the Commission as evidence. The transcript was marked as page 2 of 8.

[12] The Respondent accepted that the transcript appeared to be an accurate record of the meeting but submitted it was not complete.

[13] I asked Ms Beddgood at the hearing if the transcript was a complete record of the meeting and Ms Beddgood confirmed it was not. I asked Ms Beddgood at the hearing what had happened to the other pages of the transcript and she advised she did not know.

[14] Ms Russell gave evidence that at the meeting Ms Beddgood was told she was terminated and put this to Ms Beddgood in cross examination. Ms Beddgood disagreed with this.

[15] In the partial transcript of the meeting, there is some discussion of Ms Beddgood’s behaviour at work and significant discussion of events unrelated to the termination such as Ms Russell’s personal circumstances and Ms Beddgood’s surgery and medication. However, the following words appear which were attributed to Ms Russell:

“R: I just know you’re really trying that makes it really really hard for me too… Anyway. Ahh. How can I put this? Um… so so I think, I think that the best thing to do is to have your operation and you’ll be paid for two or three weeks. So you’ll have time to actually get yourself together and then um then well work out something during that time when you are off and see what we can do… about it.”

[16] Later on 4 February 2019, after the meeting, Ms Beddgood was provided with a termination letter by email:

“4th February 2019

Kerry,

I reiterate my previous statements where I’ve said you are technically a terrific hairdresser.

We have had an ongoing major problem with your confrontational and somewhat aggressive response to many directions from myself and other staff members. It happens in front of clients too, which cannot be tolerated.

It’s a communication issue which I have spoken to you about on more than one occasion. It worries me that you seem unwilling or unable to change (as you pointed out when you said you’ve been like that all your life).

Please understand that your behaviour has been impacting the salon trading. On this basis, I am regretfully giving you two weeks’ notice of termination of your full-time employment at Navarna. This is effective immediately.

Regards

Ronda Russell”

[17] At the hearing, it was put to the Applicant that the termination letter was sent in an email dated 4 February 2019. The Applicant gave evidence that she did not see the email until a week after but accepted that the email was received on 4 February 2019.

[18] Ms Beddgood worked again on 5 February and 6 February 2019. Ms Russell gave evidence at the hearing that this was the end of Ms Beddgood’s working week.

[19] Ms Beddgood then underwent surgery on 7 February 2019. She did not work in the salon for some time.

Casual employment

[20] There is some disagreement as to when Ms Beddgood returned to work.

[21] Ms Russell gave evidence in her statement that she was approached by Ms Beddgood in late February and at this time Ms Russell agreed to take Ms Beddgood on as a casual on a three month trial, on the basis that she worked with the team and was cognisant of keeping her strong views and confrontational behaviour out of the salon.

[22] The parties were unable to provide a date for this conversation in their submissions or at the hearing. At the hearing, Ms Russell gave evidence during cross examination that Ms Beddgood approached her about ten days after leaving the salon to request her job back but stated she could not recall the specific date. Payslips provided by the Respondent show that Ms Beddgood was being paid as a casual from 22 February 2019. 1

[23] Ms Beddgood worked until the end of May 2019 at which point Ms Russell advised her by telephone that she would no longer receive shifts.

[24] Ms Beddgood’s representatives submitted on her behalf that Ms Beddgood did not receive further shifts from 29 May 2019. This was not challenged by the Respondent.

Submissions of the parties

[25] Ms Beddgood submitted that the termination on 4 February 2019 was in fact a reduction of hours and change of employment status, effectively changing her role to that of a part-time employee. 2

[26] Ms Beddgood submitted that as the termination was in fact a change of employment status, the date of the dismissal was 29 May 2019 and the application was therefore within time. Ms Beddgood further submitted that given she had been employed with the business since the 9 April 2018 and continued to be employed by the business until 29 May 2019, she would have been employed for longer than 12 months and would meet the requirements of an employee being employed by a small business for the purposes of s.382 of the Act 3.

[27] The Respondent disputed this and submitted that there were two separate contracts of employment – Ms Bedgood’s fulltime employment which commenced on 9 April 2018 and ended on 18 February 2019; and a further contact that commenced at some point in late February 2019 and ended in May of 2019.

[28] In her submissions which were adopted as Ms Russell’s statement at the hearing, Ms Russell stated:

“Kerry last worked in the salon on Wednesday 6th February and we did not have any expectation that she would not work at all during her notice period. Her termination date was to be 18th February.

We do not have a doctor’s or medical certificate which she would normally provide if she was a fulltime employee.

On 7.2.2019 (the end of the week in which Kerry had received her notice of termination) Kerry had -3.3685 hours of sick accrued, as she had taken 67.5 hours of sick leave since 9.4.2018 when she commenced.

Her annual leave accrual of 47.47 hours, as at 7.2.2019, was paid over the two-week period even though it’s not reflected on the payslips. The balance of 28.53 hours to make up the 76 hours paid to 21.2.19 was paid in good faith. Kerry did not work out the balance of her in lieu of notice. Her actual termination date was therefore 7th February.”  4

[29] The Respondent submitted that the application had no grounds and was well outside the 21 days, because there is no doubt that Ms Beddgood was terminated from full-time employment on 7 February 5.

Consideration

[30] Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

Section 394(3)(a) – Reason for delay

[31] Ms Beddgood submitted that there was no delay in lodging the application because there was no dismissal on 4 February 2019, and rather the date of dismissal was 29 May 2019, putting the application within time.

[32] I have considered the evidence of both parties and in particular the termination letter. While I accept Ms Beddgood may have been confused as to the timing of the termination, I consider the appropriate reading of the letter is that Ms Beddgood was being given her two weeks’ notice of termination with the two weeks commencing immediately.

[33] While Ms Beddgood did not work from 6 February 2019 until late February, I consider that the wording of the termination letter and the fact Ms Russell paid Ms Beddgood her notice and entitlements over some weeks gives the effect of the termination having effect from 18 February 2019 as per the termination letter. As a result the application was made 100 days out of time.

[34] Ms Beddgood gave evidence she had surgery on 7 February but did not provide a medical certificate. Ms Beddgood did not submit that her surgery impacted on her ability to file an application.

[35] Ms Beddgood submitted that the circumstances in this case had been nothing less than unclear from the onset 6. I do not accept this submission.

[36] It is undisputed evidence that a discussion was had on 4 February 2019 between Ms Russell and Ms Beddgood. While there is a factual dispute as to what was said at this meeting, I prefer Ms Russell’s evidence that she told Ms Beddgood she was being terminated from full time employment. I accept that the transcript provided in evidence is an accurate account of part of the meeting, but the fact that the transcript is of only one portion of the meeting and the fact that Ms Beddgood did not provide any reason for why an incomplete record was provided to the Commission appears self-serving.

[37] In any event, I consider that after the discussion, the sending of the termination letter made clear Ms Russell’s comments quoted above at [15]. The purpose of the letter is clear and unambiguous and it was accepted by Ms Beddgood that she received the letter by 14 February at the latest. If there was any confusion, Ms Beddgood had opportunity from this date to question Ms Russell as to whether she had been dismissed when she approached Ms Russell in late February.

[38] Having considered each of the matters raised by Ms Beddgood I am not satisfied Ms Beddgood’s reasons for delay are sufficient to weigh in favour of granting an extension under s.394(3)(a).

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[39] I do not accept that Ms Beddgood was not aware of her dismissal at any date later than when she contacted Ms Russell in late February and was offered a casual position. As discussed there is no evidence before the Commission of the specific date the conversation with Ms Russell took place.

[40] Based on payslips in evidence before the Commission 7, Ms Beddgood was employed and paid as a casual from 22 February 2019. Even from this date, the application was still made 100 days late.

[41] I am satisfied Mr Ellenden was aware of his dismissal in late February, and by no later than 22 February 2019. Accordingly Ms Beddgood application within 21 days. This does not tend to support the case for the granting of an extension under s.394(3)(b).

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[42] Ms Beddgood lodged a s.394 application for unfair dismissal remedy for unfair dismissal on 19 June 2019. There is no evidence that Ms Beddgood disputed her dismissal in any way other than the lodgement of this application.

[43] As discussed above at [38], Ms Beddgood had the opportunity to raise with Ms Russell the issue of whether she had been terminated. On the evidence, Ms Beddgood did not until she lodged her application on 19 June 2019.

[44] The consideration in s.394(3)(c) does not weigh in favour of granting an extension.

Section 394(3)(d) – Prejudice to the employer

[45] The Respondent is a small business employer with limited human resources experience and resources. From the dismissal in February 2019, some eight months have passed.

[46] I consider there would be some prejudice to the Respondent if an extension of time was granted and that this weighs against granting an extension.

Section 394(3)(e) – The merits of the application

[47] The contentions in relation to the dismissal give rise to factual disputes that I should not give detailed consideration to as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.

Section 394(3)(f) – Fairness as between the person and other persons in a similar position

[48] There are no specific submissions relevant to this criteria and I will regard this criteria as neutral.

[49] I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time is not granted.

Small Business Objection

[50] While no small business objection was raised by the Respondent, it is also necessary to consider section 23 of the Act for reasons set out below.

[51] Section 23 of the Act reads as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated."

Minimum Employment Period

[52] My finding above regarding the date of termination necessitates consideration of whether Ms Beddgood is protected from unfair dismissal.

[53] Section 382 sets out when a person is protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[54] Section 383 provides:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer--one year ending at that time.

[55] In the Respondent’s Form F3 application to the Commission, the Respondent stated that “At the date of [the Applicant]’s full-time employment dismissal, there was one full-time Employee which was [the Applicant], one part-time Employee and three casuals.”

[56] It was not challenged by the Applicant that the Respondent was a small business employer for the purposes of s.23 of the Act. The minimum employment period under s.383 is therefore one year ending at the time of dismissal.

[57] For the reasons set out above, I have found the date of dismissal to be no later than 18 February 2019. Accordingly, Ms Beddgood was employed by the Respondent for 10 months, 1 week, 2 days.

[58] I do not accept that Ms Beddgood’s employment continued after this date. Rather, I consider that the dismissal took effect on 18 February 2019. At a later date no later than 22 February 2019, a separate employment contract as a casual employee commenced. The dismissal constitutes a clear break in employment which does not allow Ms Beddgood’s employment as a casual employee to be counted towards her minimum employment period.

[59] Even if I were to grant an extension of time for the application, which I have determined not to, the Applicant is not a person protected from unfair dismissal under the Act as they have not completed a period of employment of at least 12 months.

[60] For this reason and the reasons above, the application is dismissed.

COMMISSIONER

Appearances:

M Liston and D Liston of Dam Consultancy appearing on behalf of the Applicant

Ms R Russell appearing on behalf of the Respondent

Hearing details:

2019,

Brisbane:

23 September

Printed by authority of the Commonwealth Government Printer

<PR713885>

 1   Preparation of the case for the respondent of 10 September 2019, page 6; attachment H

 2   Applicant’s Outline of Submissions of 31 July 2019, para 8

 3   Ibid 2019, page 3

 4   Preparation of the case for the respondent of 10 September 2019 page 6

 5   Ibid

 6   Applicant’s Outline of Submissions of 18 September 2019, para 5(g)

 7   Ibid, attachment H