Paige Buchanan v Evertwin Pty Ltd T/A Sabr Skin
[2017] FWC 4490
•30 AUGUST 2017
| [2017] FWC 4490 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paige Buchanan
v
Evertwin Pty Ltd T/A Sabr Skin
(U2017/5753)
| COMMISSIONER WILLIAMS | PERTH, 30 AUGUST 2017 |
Termination of employment.
This decision concerns an application made by Ms Paige Allanah Buchanan (Ms Buchanan or the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The Respondent is Evertwin Pty Ltd T/A Sabr Skin (the Respondent).
The matter was the subject of a conciliation conference however was not resolved and has been referred to the Commission for determination.
The Respondent has not filed an employer’s response to the application notwithstanding numerous reminders from the Commission’s staff and a number of telephone discussions with the Respondent’s owner Mr Jason van Straalen (Mr van Straalen).
A Notice of Listing was sent to the parties including to Mr van Straalen advising that the matter would be heard on Tuesday, 29 August 2017 and including directions to file outlines of arguments and statements of evidence.
The Respondent did not file any materials in compliance with the Commission’s directions notwithstanding follow-up phone calls and correspondence.
On 17 July 2017 the Applicant as required provided an outline of arguments, statements of evidence and a number of documents. These were all forwarded to the Respondent the same day.
Notwithstanding further follow-ups from Commission staff no written materials of any sort have been filed by the Respondent. Consequently on 11 August 2017 I wrote to Mr van Straalen noting that he had not filed any witness statements or submissions in this matter and advising that consequently the hearing on Tuesday, 29 August 2017 would be decided on the Applicant’s evidence and submissions alone.
The same day Mr Van Straalen replied by email as follows,
“The staff member has filed a fictitious complaint and was a casually employed and remunerated accordingly.
Also note she was not terminated and also is technically still employed as a casual worker, albeit she has not had any shift since she decided not to come back.” (sic)
At the hearing of this matter there was no attendance on behalf of the Respondent.
Witness evidence
The evidence of Ms Buchanan is that she started working for the Respondent on 19 April 2016 and was terminated on 10 May 2017.
Ms Buchanan was a casual employee.
She worked regularly five days per week and worked every week.
Her average weekly pay over her period of employment was $805.55 gross.
Ms Buchanan was the manager of the business at the time of her dismissal.
During her employment she received no written or verbal warnings of any description.
On 10 May 2017 Mr van Straalen spoke to Ms Buchanan on the phone. During the phone call he raised a number of concerns, none of which had previously been raised with Ms Buchanan. Ms Buchanan had never been warned or counselled about any of these matters previously.
Mr van Straalen also told Ms Buchanan that the business is failing and he did not have the money to continue paying all of the staff members and he was looking for reasons to cut one or two people.
Mr van Straalen concluded the phone call by telling her that he was going to have to let her go. Ms Buchanan asked to be given a little more time so that she could find other employment but Mr van Straalen refused. Her evidence was that he did not say what the reason for her dismissal was.
Following this the same evening Ms Buchanan wrote a detailed email to Mr van Straalen responding to the concerns he had raised in their phone discussions and arguing that she had been unfairly blamed for some of these issues.
She repeated her request to be given more time to find other employment, pointed out that she had never been warned about her performance nor had she been given any opportunity to improve any perceived deficiencies and asked him to reconsider his decision to terminate her employment.
Ms Buchanan did not receive a response to this email.
Ms Buchanan’s evidence was that she has never received a letter of termination and has not received any superannuation contributions into her superannuation fund REST throughout her employment notwithstanding her payslips state these superannuation contributions have been made.
Since her dismissal Ms Buchanan applied for numerous positions and as at the date of the hearing has been offered a job commencing 30 August 2017. The rate of pay for this position will be slightly less than she was receiving from the Respondent and the hours per week will be slightly less as well.
Ms Buchanan’s view is that if the Commission finds she has been unfairly dismissed Mr van Straalen would make the situation untenable. During the telephone conciliation conference he behaved in an intimidating and threatening manner, threatened to sue her and talked over her in a bullying and demeaning manner. Ms Buchanan is also concerned that if she was reinstated he would not give her the full hours she was previously working.
The evidence of Mr Declan Bourne (Mr Bourne), who is Ms Buchanan’s boyfriend, is that on the evening of 10 May 2017 he noticed Ms Buchanan was absent and went looking for her. He found her outside speaking on the phone. She then placed the phone on speaker and he could hear Mr van Straalen speaking.
During the balance of the conversation he heard Mr van Straalen say to Ms Buchanan that he was letting her go effective immediately. When she asked if she could continue working for a couple of weeks until she found new employment he refused this. The telephone conversation ended shortly thereafter.
Consideration
Both Ms Buchanan and Mr Bourne presented as open and forthright witnesses and I accept their evidence without hesitation.
I am satisfied that Ms Buchanan’s employment as a casual employee was on a regular and systematic basis and during her period of service she had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.
It is unknown whether or not the Respondent is a small business employer but even if this is the case Ms Paige has completed a minimum employment period of more than one year at the time of her dismissal.
Section 387 of the Act sets out the criteria the Commission must take into account when deciding whether or not an employee’s dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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 in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
On the evidence before the Commission I find that there was no valid reason for Ms Buchanan’s dismissal.
Ms Buchanan was not notified of the reason she was dismissed.
Mr van Straalen did not specify to Ms Buchanan why he was letting her go. Whatever Mr van Straalen’s reason for dismissing her he dismissed her before she had any opportunity to consider his unknown reason and to respond.
Whilst Ms Buchanan in her email later that evening did respond to concerns he raised in the phone call this was after he had dismissed her. Ms Buchanan was not given an opportunity to respond to any reason for dismissal related to her capacity or conduct before the decision to dismiss was made.
Ms Buchanan had not received any warnings about unsatisfactory performance before her dismissal.
Giving the benefit of the doubt to the Respondent for the purposes of sections 387 (f) and (g) of the Act and assuming the Respondent is a small business and does not have dedicated human resource management specialists or expertise this does not excuse the failure to explain to an employee the reason why they are being dismissed nor does this excuse the absence of any prior warning before dismissal.
In all the circumstances I am satisfied that the dismissal of Ms Buchanan was unjust and unreasonable. I am satisfied that Ms Buchanan has been unfairly dismissed.
I note the evidence is that Ms Buchanan has not been paid superannuation contributions. This is a matter that is not within the jurisdiction of the Commission but is a matter the Australian Tax Office deals with as explained at the link below:
Remedy
The evidence Ms Buchanan gave as to her concerns about her situation if the Commission reinstated her and Mr van Straalen’s failure to participate in these proceedings satisfy me that reinstatement would not be appropriate in this case.
I do consider an order for the payment of compensation is appropriate.
In considering an amount of compensation there is no evidence that an order of compensation would affect the viability of the Respondent.
Ms Buchanan has been employed for a relatively short period of just over one year.
Whilst Ms Buchanan had no intention of leaving the employment she is an intelligent, competent and sensible young person who in due course I think would have come to recognise there were better opportunities for her elsewhere rather than remaining with this particular employer. Consequently my assessment is that she would have only remained in employment for a further 12 weeks had she not been dismissed.
Had Ms Buchanan not been dismissed she would have been likely to receive $9,666.60 gross remuneration.
Ms Buchanan has actively sought other employment and has appropriately sought to mitigate her loss. She has not received any remuneration since her dismissal.
I determine that an appropriate amount of compensation is $9,666.60 gross from which appropriate tax will be deducted.
An order [PR595694] to that effect will now be issued requiring payment within 14 days of the date of this decision.
COMMISSIONER
Appearances:
P. Buchanan on her own behalf.
Hearing details:
2017.
Perth:
August 29.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR595693>
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