S Rocca v Dimasalt Pty Ltd T/A Cuts Only

[2014] FWC 580

[2014] FWC 580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

S Rocca
v
Dimasalt Pty Ltd T/A Cuts Only
(U2013/10186)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 30 JANUARY 2014

Application for relief from unfair dismissal - application dismissed.

[1] On 3 June 2013 Ms S Rocca (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the alleged termination of her employment by Dimasalt Pty Ltd T/A Cuts Only (the Respondent) on 26 May 2013. The application was made within the period required in s.394(2) of the Act.

Background

[2] The Applicant worked as a hairdresser for the Respondent in its Preston salon. She commenced her employment at the start of January 2012. The employment ended on 26 May 2013.

[3] During the course of her employment there were issues between the Applicant and the salon Manager Mrs A Stallbaum, described by the Applicant as bullying. The Respondent’s Human Resources Manager, Ms M Kiepas described it as disagreements between two employees of the type which often occur in a workplace. The tension between the two involved in part handwritten alterations to the printed payslip (based on rosters) made by Mrs Stallbaum to reflect absences (for example due to illness), with a commensurate reduction in the pay provided. The Respondent’s Director, Mr P Salter, explained that this was part of the process employed by the Respondent whereby such amendments to payslips (and pay were made) on the basis that the payment was restored in a subsequent pay, following the provision of evidence supporting the absence and a confirmation that sufficient accrued entitlements existed; for example, a medical certificate in relation to sick leave. Two payslips tendered by the Applicant 1 reflected this process with a December 2012 payslip altered to reduce the hours to an absence due to the death of a family member of the Applicant and a handwritten augmentation of the payment in a later (early February) payslip.

[4] The payslip provided to the Applicant on 25 May 2013, contained a handwritten reduction in hours and pay in respect of an absence due to illness. The Applicant spoke to Ms Kiepas about the payslip on 25 May 2013 who was unable to give an explanation for the handwritten changes. The Applicant also made unsuccessful attempts to speak to the Directors about the handwritten changes.

[5] However, the Applicant’s mother took the issue up, on the evidence, through an abusive telephone call to Mrs Stallbaum on 26 May 2013. Mrs Stallbaum ultimately terminated the telephone call. Shortly after, the Applicant’s mother attended at the private residence of Mrs Stallbaum and continued the abuse, causing the Stallbaums to ring the police.

[6] It is against that background that the employment of the Applicant ended later on the morning of 26 May 2013. The Applicant was rostered to work on that day. Her evidence is that she attended at the salon, packed her equipment, with the intention, on her evidence, of leaving work for that day with a view to returning, when things had calmed down, to talk through the issues with Mrs Stallbaum and the Directors (Mr Sultan and Mr G Dimaris). The Respondent’s evidence was that the Applicant resigned from her employment on 26 May 2013.

The Issue for Determination

[7] In considering an application under s.394 of the Act, the Fair Work Commission (the Commission) is required to apply the statutory provisions of Part3–2—Unfair Dismissals of the Act.

[8] The Respondent accepts that the Applicant is a person protected from unfair dismissal (s.382 of the Act). 2

[9] The issue which arises for determination in this matter is whether the termination of the employment is an unfair dismissal. Section 385 of the Act provides that:

“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.”

[10] In this case the Respondent accepts that no case of genuine redundancy arises in the circumstances of this matter and does not contend that the dismissal was not subject to and consistent with the Small Business Fair Dismissal Code. 3

[11] The Applicant contends that she was dismissed in that her employment was terminated on the employer’s initiative and that the termination was harsh, unjust or unreasonable and that no reason exists for or was given for the termination. The Respondent contends that the Applicant resigned from her employment (and was not forced to do so because of conduct or a course of conduct, engaged in by the Respondent) and that the question of whether the dismissal was harsh, unjust or unreasonable does not arise.

[12] If it is found that the Applicant was dismissed, in determining whether the termination was harsh, unjust or unreasonable, it is necessary to have regard to the criteria set out in s.387 of the Act.

[13] If it is found that the Applicant was dismissed and that the termination was harsh, unjust and unreasonable, it would follow that the Applicant was unfairly dismissed in which case it will be necessary to consider and apply the provisions of Division 4—Remedies for unfair dismissal.

Was the Applicant dismissed by the Respondent?

[14] Evidence was given by the Applicant in relation to the conversation between herself and Mrs Stallbaum and by telephone, between herself and Mr Salter and a conversation with another employee, Ms M Santi, on the 26 May 2013. Mrs Stallbaum and Mr Salter also gave evidence in relation to the conversations in which they participated. Mr Dimaris gave evidence as to what he was told about those conversations but was not a party to any of the conversations. Evidence was also given by Ms Kiepas but she was not a party to any of the conversations concerning the cessation of the Applicant’s employment.

[15] The Applicant also provided a statutory declaration of a customer, Ms V Giannapoulous, as to her observations of the Applicant’s demeanour and what the Applicant said to her on the morning of 26 May 2013 but was not called to give evidence. The Respondent also provided statutory declarations of Ms Santi and Mr A Stallbaum (Mrs Stallbaum’s husband). The statutory declaration of Ms Santi sheds no light, directly or indirectly on the conversations between the Applicant and Mrs Stallbaum and Mr Salter. The statutory declaration of Mr Stallbaum gives a first-hand account of the conversation between the Applicant and his wife, in terms consistent with his wife’s account. Neither Ms Santi nor Mr Stallbaum were called to give evidence. I attribute very little weight to the statutory declarations in circumstances where the deponents were not available to give evidence and be cross-examined in relation to their evidence. In this regard, I note that, Mr Stallbaum accepted, that none of the deponents had direct knowledge of the conversations between the Applicant and Mrs Stallbaum and Mr Salter.

[16] The evidence of the Applicant is that she attended work on 26 May 2013 in order to apologise to Mrs Stallbaum for her mother’s behaviour on that day, and then packed her tools and left the workplace for the day in order to allow things to “settle for a little bit”, with a view to returning on another day to work out the issues which had arisen with Mrs Stallbaum and the Directors. 4 She then waited outside for Mrs Stallbaum to arrive.5 Upon the arrival of Mrs Stallbaum, the Applicant apologised to her for her mother’s behaviour that morning.6 The Applicant’s evidence is that she told Mrs Stallbaum that she “was going to go home for the day” and return when Mrs Stallbaum was ready so that she and Mrs Stallbaum could go through the issues.7

[17] The Applicant’s evidence is that Mr Salter attempted to ring her mobile telephone but she did not answer, but he then rang the salon and spoke to Mrs Stallbaum who put the Applicant onto the telephone. 8 Her evidence is that Mr Salter indicated that what happened in the morning was not appropriate. The Applicant raised the issue concerning the alteration to her payslip. Mr Salter responded that the events that day should not have happened and told the Applicant to get her things and leave.9 The Applicant’s evidence is that she also told Ms Santi of her intention to pack up, go home and return at a later date to resolve the issues.10 The Applicant made no further attempt to contact the Respondent,11 other than through asking her father to ring Mr Salter to discuss payment of outstanding entitlements.12

[18] Mrs Stallbaum’s evidence is that as she arrived at work on 26 May 2013, the Applicant was waiting for her outside the salon, apologised for her mother’s behaviour that day 13 and verbally advised that she was giving in her notice/resigning.14

[19] Mr Salter’s evidence is that due to the severity of the matter and the safety of Mrs Stallbaum, he called the salon at the time the Applicant was to attend to start work, intending to discuss with the Applicant the events that had occurred. However, she informed him she was leaving and no longer wished to work for the Respondent or discuss the matter further. 15

[20] Mr Salter gave evidence that he did not blame the Applicant. 16 He submitted that he had intended to tell the Applicant to go home for the day, with a view to resolving the issues at a later date.17

[21] Mr Salter also gave evidence that later in the week the Applicant’s father called him in relation to her entitlements and seemed apologetic for what had occurred. After the telephone call he and Mr Dimaris decided to, in good faith, to pay the Applicant her entitlements ($1419.32), even though she had resigned without giving notice.

[22] I find that the Applicant did resign from her employment. It is one of those situations where the conversation was not clear and misinterpretation was possible but on the evidence, and on the balance of probabilities, I prefer the account of the Respondent’s witnesses. I accept Mr Salter’s evidence that he made the call to the Applicant with the intent of separating the Applicant from Mrs Stallbaum on 26 May 2013, out of concern for Mrs Stallbaum’s safety, with a view to discussing the incident involving the Applicant’s mother with the Applicant but did not need to do so when the Applicant advised him that she was resigning. His evidence is consistent with that of Mrs Stallbaum as to the Applicant resigning. The Applicant’s account of her intention of leaving for the day and returning to sort out the issues at a later date is difficult to reconcile due to her failure to put that proposition to Mr Salter during their conversation on her evidence, once Mr Salter terminated her employment by telling her to pack up and go home or otherwise contest the termination of her employment during that conversation, or subsequently, through her father. Although no clear conclusion emerges from the evidence, I find that it is more probable that the Applicant resigned from her employment.

[23] There is no evidence supporting a finding that the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by her employer.

[24] Accordingly, I am not satisfied that the Applicant was dismissed from her employment within the meaning of ss.385(a) and 386 of the Act. I am not satisfied that the Applicant has been unfairly dismissed.

[25] In those circumstances, the Applicant’s application for relief in respect of the termination of her employment with the Respondent is dismissed.

Harsh, unjust or unreasonable

[26] Given my finding above that the Applicant has not been unfairly dismissed, it is unnecessary to determine whether, if the Applicant’s employment had been terminated by the Respondent, the termination was harsh, unjust or unreasonable having regard to the criteria set out in s.387 of the Act and address the question of remedy. Nonetheless, I will address those issues.

[27] The Respondent does not hold the Applicant responsible for her mother’s behaviour on 26 May 2013. 18 Mr Salter’s intention on 26 May 2103 was to request the Applicant to “leave the premises for the day” and later resolve the issue between her and Mrs Stallbaum.19 Mr Dimaris’ statutory declaration20 describes the Applicant as a valued employee. There was no valid reason for the termination of the Applicant’s employment and no process whatever in effecting the termination. On the evidence, having regard to the matters in s.387 of the Act, if the Applicant’s employment had been terminated by the employer, dismissal was harsh, unjust or unreasonable and the Applicant was unfairly dismissed.

[28] However, the application of the provisions of Division 4—Remedies for unfair dismissal – would not support any remedy. Reinstatement is not sought, nor is it appropriate in circumstances of an unresolved tension between the Applicant and Mrs Stallbaum and in circumstances whereby the Applicant has obtained alternative employment with higher remuneration than that she was paid by the Respondent.

[29] Whilst I am satisfied that reinstatement is inappropriate (s.390(3)(a) of the Act), I do not consider an order for payment of compensation is appropriate in all the circumstances of the case (s.390(3)(b)), having regard to the criteria for deciding amounts of compensation in s.392(2) of the Act and, in particular, the absence of any economic loss suffered by the Applicant.

[30] In this case, it was not suggested that the order for compensation would affect the viability of the Respondent’s enterprise; the Applicant was employed for around 17 months, a period of time which would support some level of compensation subject to the other matters in s.392(2) of the Act and the Applicant took reasonable steps to mitigate her loss. Had the Applicant remained in her employment she would have continued to receive remuneration of $300-400 per week (up to $600 in exceptional weeks) 21 working 30-36½ hours per week22 from her employment with the Respondent (s.392(2)(c) of the Act). On the evidence that the Respondent did not hold the Applicant responsible for her mother’s behaviour and she was a valuable employee, it is reasonable to find that her employment would have continued for at least six months. However, the Applicant obtained alternate employment in her field two weeks after the termination of her employment with the Respondent,23 earning $900 per week24 and working 48-49 hours per week.25 The amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation (s.392(2)(e) of the Act) significantly exceeds the remuneration she would have earned had she continued in her employment with the Respondent over that period, even having regard to the greater hours worked. It follows that the Applicant has not suffered any economic loss, consequent upon the termination of her employment.

[31] Whilst the Applicant sought compensation in respect of depression and anxiety experienced and medication required during the two weeks she was out of employment, 26 s.392(4) of the Act expressly excludes an amount of compensation in respect of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the Applicant’s dismissal.

[32] In those circumstances, I am not satisfied that an order for payment of compensation is appropriate in all the circumstances of the case. Accordingly, even if I had found that the employment of the Applicant was terminated on the Respondent’s initiative and that the termination was harsh, unjust or unreasonable and, as a result, the Applicant was unfairly dismissed, I would not have made an order for either reinstatement or compensation in the circumstances of this case.

Conclusion

[33] I am not satisfied that the Applicant was dismissed from her employment within the meaning of ss.385(a) and 386 of the Act. I am not satisfied that the Applicant has been unfairly dismissed. In those circumstances, the Applicant’s application for relief in respect of the termination of her employment with the Respondent is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S Rocca on her own behalf.

P Salter and G Dimaris for Dimasalt Pty Ltd T/A Cuts Only.

Hearing details:

2014.

Melbourne:

January 22.

<Price code C, PR547098>

 1   Exhibit R1.

 2   Transcript, at para 9.

 3   Transcript, at paras 11-12.

 4   Transcript, at paras 118-119.

 5   Transcript, at para. 118.

 6   Transcript, at para 118.

 7   Transcript, at paras 118-119.

 8   Transcript, at para 120.

 9   Transcript, at para 120.

 10   Transcript, at para 127.

 11   Transcript, at para 128.

 12   Transcript, at para 131.

 13   Transcript, at para 456.

 14   Exhibit JC2 and Transcript, at para 456.

 15   Exhibit JC1.

 16   Transcript, at para 423 and repeated in submissions in Transcript, at paras 668-675.

 17   Transcript, at para 675.

 18   Transcript, at para 675.

 19   Transcript, at para 675.

 20   Exhibit JC3.

 21   Transcript, at paras 141-142.

 22   Transcript, at para 105.

 23   Transcript, at paras 133-134.

 24   Transcript, at para 139.

 25   Transcript, at para 143.

 26   Transcript, at para 710.

Printed by authority of the Commonwealth Government Printer