Samih Rahimi v Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries

[2021] FWC 3619

[2021] FWC 3619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samih Rahimi
v
Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries

(U2020/14274)

COMMISSIONER WILLIAMS PERTH, 29 JUNE 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Samih Rahimi (Ms Rahimi or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 30 October 2020. The respondent is Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries (Corica or the Respondent).

[2] At the hearing of his matter Ms Rahimi gave evidence on her own behalf and called Ms Maria Zand (Ms Zand). For the Respondent evidence was given by Mr David Bovell (Mr Bovell) the Managing Director of the Respondent and Mr Juan Perez (Mr Perez) the Principal of Quest Legal Pty Ltd.

Factual findings

[3] The Respondent operates a bakery with an attached retail shop.

[4] The bakery makes apple strudels, pastries and continental custom-made cakes.

[5] The Applicant was first employed by the Respondent in 2012. At the time of her dismissal, she was employed as a Pastry Cook Assistant.

[6] Her roster dictated that she starts at 5:00am and finish at 10:00am Monday to Friday.

[7] Mr Bovell’s evidence was that he has responsibility for the management and operations of the business. He has dealt with the Applicant by giving her instructions throughout her employment and does so in English without any issues since 2012.

[8] Early in 2020 the Applicant was diagnosed with carpal tunnel syndrome and was unable to perform her regular duties. Mr Bovell says he arranged for her to perform other duties instead.

[9] In April 2020 the Respondent became aware the Applicant was failing to complete tasks assigned to her, failing to complete training, being rude to other staff, bringing a dismissive and unhelpful attitude to the workplace, taking too long to complete simple tasks and parking in the back dock area of the shop despite instructions not to do so.

[10] Mr Bovell discussed these issues with the Applicant and issued her with a written warning on 22 April 2020.

[11] During August 2020, Mr Bovell became aware the Applicant was baking excess produce causing significant wastage, also in other ways causing excess wastage, failing to complete customer orders and was responsible for leaving broken glass in the lunchroom.

[12] He discussed these issues with the Applicant and issued her a second warning letter on 24 August 2020.

[13] During September 2020 Mr Bovell became aware that the Applicant was arriving to work early, clocking out early and failing to complete rostered shifts.

[14] Mr Bovell’s evidence was he discussed these issues with the Applicant and issued her another written warning on 17 September 2020. The Applicant’s evidence was that this was a final written warning.

[15] The Applicant’s evidence was that her representative, Mr James Higgins (Mr Higgins) a Member Rights Officer of the United Workers Union (the Union), never came to any meetings with her regarding these warnings. However, he did on her behalf write a letter to Mr Bovell disputing these warnings on 23 September 2020. 1

[16] During October 2020 the Respondent viewed CCTV footage to confirm staff were complying with their rostered start and finish times.

[17] This issue did not relate to the Applicant however the CCTV footage showed that on 17 September 2020 from 9:41am the Applicant was in the cake decorating room with another employee, Marco. Marco is in charge of decorating all cakes. The CCTV footage was provided to the Commission.

[18] The CCTV shows the Applicant and Marco walk into the room together. Already on the table in the decorating room are three similarly sized rectangular pieces of sponge cake.

[19] The video shows the Applicant talking to Marco as he works on one of the pieces of sponge cake.

[20] Marco proceeds to trace out, on the top of one piece of sponge cake, the outline of a large capital letter R.

[21] After discussion with the Applicant, he trims one edge.

[22] The Applicant brings out her mobile phone and shows something to Marco at 9:44:41am.

[23] Marco then moves to another rectangular piece of the sponge cake which he slices twice horizontally.

[24] While still being directed and assisted at times by the Applicant, Marco resumes work on the first piece of sponge cake and proceeds to cut out the capital R shape. 2

[25] Marco then slices the R shaped cake twice horizontally. The Applicant and Marco then place the R shaped cake onto a cardboard base. 3

[26] The Applicant places the R shaped cake into a Corica branded plastic carry bag and Marco resumes work on one of the other rectangular pieces of sponge cake.

[27] The Applicant puts the bag and the R shaped cake up on top of some other cardboard boxes out of the way and then leaves the decorating room. 4

[28] In summary, the Applicant and Marco both spend more than seven minutes in the decorating room cutting a large sponge cake into a letter R.

[29] The video recording provided to the Commission then jumps to the same day at 10:03:52am and shows Marco icing a cake at the table in the cake decorating room and another unidentified employee standing to the side of the table looking on. The Applicant walks into the room with a handbag and jacket over her shoulder. She picks up the bagged cake she had placed up on the cardboard boxes by the door, turns around and exits the decorating room carrying the cake in the plastic bag.

[30] During her entry and exit from the decorating room Marco does not look up from his icing task. The other employee present is facing the Applicant and sees her enter and leave with the bagged cake. The impression created is that Marco and the unidentified employee saw nothing unusual in the Applicant’s actions.

[31] Another camera then shows at 10:04:39am the Applicant with her handbag and jacket walking through a different area where two different employees are working. Halfway through this work area she stops, turns and retraces her steps back the way she has come and then immediately returns, now carrying the Corica plastic bag in her hand. She continues her walk down this work area to an external door which is open. The Applicant stands for another 45 seconds in the doorway before she moves away and can no longer be seen. 5 Throughout the time the Applicant is walking through this work area she is within view of the two other employees however they pay no attention to her.

[32] Whilst nothing turns on this, the size of the rectangular sponge cake the Applicant took home was approximately 30cm by 45cm.

[33] The Applicant at no time throughout the video behaves furtively. Marco, whilst cutting the cake at her direction, appears relaxed, unconcerned and unhurried as does the Applicant.

[34] Throughout the video in no way does the Applicant act to hide or disguise what she is doing. When leaving the decorating room and then walking through the other work area and exiting the premises it is always visible that she is carrying the large Corica branded plastic bag.

[35] It is apparent from the video that there were three equally sized rectangular pieces of sponge cake on the cake decorating table when the Applicant and Marco are present before one of these is cut into the R shape.

[36] The Applicant’s evidence is that it is common practice for the chef to bake a large 50cm by 50cm sponge cake. This cake is cut into three sections. The centre piece has the most even depth and so is preferred for decoration.

[37] The Applicant’s evidence is the excess cake, the two pieces one on each end, are usually thrown out. It is wastage. 6

[38] Mr Bovell’s evidence to the contrary is that there is rarely excess stock and all stock is used or repurposed as required by the business. In some circumstances, where produce is faulty or is unable to be sold, he will permit staff to take the stock, but this must be approved by him which is known to all staff. 7

[39] In addition, his evidence was that Graham the Bakery Manager could give approval to staff to take produce. 8

[40] The Applicant says Marco is “in charge of cakes” 9 and Mr Bovell also says Marco runs the cake decorating room.10

[41] Mr Bovell’s evidence is that, commonly, the sponge cake is sliced horizontally into three layers which are filled, decorated and sold as a torta. 11

[42] His evidence was that both of the two end pieces of the large sponge cake could be made into a one section torta.

[43] His evidence was that sponge cake in the cool room has a shelf life of four days. Sponge cake older than this is used as crumb material for the edge of other cakes and so there is very little wastage.

[44] I note the conflict in the evidence on the issue of whether the two end pieces of the large sponge cake are wastage, after it has been cut into three.

[45] The Applicant’s evidence that they are wastage is inconsistent with her evidence that before asking him to cut one end into the shape of an R she asked Marco if he needed it. 12

[46] Having considered this conflict in the evidence I prefer the evidence of Mr Bovell that it is not the usual practice to throw out the two end pieces of the large sponge cake as wastage and so use only the middle section.

[47] Consequently, I find that the piece of sponge cake that Marco cut into a R shape for the Applicant and which she took with her when she left work on 17 September 2020 was not wastage.

[48] Mr Bovell’s evidence was that having seen the CCTV recording, between 1 and 4 October 2020 he inquired of Marco and of the Applicant’s Foremanwhether they had approved the Applicant taking produce without paying, whether she had requested to purchase the produce using the staff discount system, if the produce taken by the Applicant was spoiled or unsellable, or if there was any other reason why the Applicant was permitted to take the produce without paying. 13

[49] He says his enquiries revealed no one had permitted the Applicant to take the produce without paying, the Applicant had not purchased the produce using the staff discount, the produce was new produce and was not spoiled or unable to be sold and there was no other reason why she was permitted to take to produce without paying.

[50] Consequently, Mr Bovell sought legal advice and formed the view that the Applicant had stolen the sponge cake.

[51] I note that there appears to be a conflict in the evidence as to whether, on 17 September 2020, the Applicant asked Marco whether she could have one of the pieces of the large rectangular sponge cake that had been cut into three. The Applicant says she did ask him and he said she could. 14 The Applicant was unshaken on this point in cross examination. Contrary to this the evidence of Mr Bovell was that he had enquired of Marco whether he had approved the Applicant taking the produce without paying and if there was any other reason why the Applicant was permitted to take the produce without paying and he had advised he had not permitted her to take the produce and there was no reason why she would be permitted to take it without paying.

[52] When Mr Bovell was asked by the Commission whether he had any concerns about the fact Marco was allowing the Applicant to take the piece of sponge cake his evidence was that Marco probably assumed the Applicant had permission to take it and had agreed a price. 15

[53] Separately, his evidence was that Marco had no authority to give the Applicant permission to take the piece of sponge cake without paying for it. 16

[54] Unfortunately, Marco was not called as a witness either by the Applicant or by the Respondent.

[55] Having considered the matter, I prefer the direct evidence of the Applicant on this point and find that on 17 September 2020 in the cake decorating room the Applicant did ask Marco if she could have a piece of the large sponge cake and he did say “yes”.

[56] On 8 October 2020 at 4:00pm the Applicant saw an email from Mr Bovell directing her to attend a disciplinary meeting at 9:00am the next day.

[57] That email, sent at 12:31pm, invited the Applicant to a meeting and says she may bring a support person. It does not mention the reason for the meeting.

[58] English is the Applicant’s second language. In the past the Applicant has been assisted by a friend of hers, Ms Zand, who has assisted by translating documents and on one occasion attended a meeting with her at the Respondent’s business. The Applicant had asked her to attend that meeting because she could not express herself and she was fearful of Mr Bovell.

[59] Ms Zand would commonly draft email responses for the Applicant when communicating with the Respondent, which the Applicant would then send from her email.

[60] Having seen the email from Mr Bovell on 8 October 2020 the Applicant forwarded this to Ms Zand.

[61] On the Applicant’s behalf Ms Zand emailed Mr Higgins at the Union explaining Mr Bovell’s email to the Applicant was arranging a meeting for the next day at 9:00am. 17

[62] Together Ms Zand and the Applicant prepared and emailed a reply to Mr Bovell on 8 October 2020 at 6:23pm. This response refers to the meeting to be held the next day. It says that the Applicant called the Union as they are going to support her in the next day’s meeting, but the Union was closed. The email said the Applicant assumes they will not therefore be able to accompany her in the meeting the next day and would kindly appreciate it if Mr Bovell could please reschedule the meeting. 18

[63] The Applicant refers to her Union representative having, the previous Monday, called the Respondent to arrange a meeting with Mr Bovell about unrelated matters but that he hadn’t been able to get through. Her email reply to Mr Bovell says that she really wants him to be in the meeting on 9 October 2020.

[64] At 9:04am the next day, Friday, 9 October 2020, Mr Higgins responded to Ms Zand’s email stating that the notice for the meeting is too short and that he would be happy to attend a rescheduled meeting.

[65] Earlier however, the Applicant had started work at 5:00am as usual on 9 October 2020.

[66] Mr Bovell’s evidence about the Applicant’s email requesting the meeting be rescheduled was that it was to do with her representative not being able to make it. He says he did not reschedule because he was all geared up to proceed. 19

[67] The Applicant’s evidence is that around 8:30am Mr Bovell came up to her and asked her to come into his office for the meeting. She says she refused to attend and told him that she had sent an email asking to reschedule and that she wanted a support person.

[68] He responded “okay” and walked away and she returned to her work. 20

[69] Approximately an hour later Mr Bovell came back to her and said to come into the office. He did not mention a meeting this time. The Applicant says she followed him into his office.

[70] Already sitting in the office was Mr Perez whom the Applicant did not know.

[71] The Applicant says that she told them that she could not understand anything and would need a support person. She says Mr Bovell said do not worry because “this man is legal” referring to Mr Perez.

[72] Her evidence was that she replied,

“I can’t understand. My English not very well, but I can’t understand exactly you - what said to me, because my speaking not very well…” 21

[73] She says Mr Perez replied with words to the effect of “I speak to you very basic”. 22

[74] She says that Mr Perez then handed her a letter in an envelope and told her that today was her last day.

[75] When she asked why he responded, “Did you take a sponge cake on 17 September?” she responded “yes”. 23

[76] Her evidence was she did not understand what was going on because everyone takes cakes home.

[77] The Applicant’s evidence in chief was,

“I do not remember if I explained to Juan that I asked permission. I saw Marco make a large rectangle sponge cake, so I asked if I he needed it and he said no. I asked if I could have it and he said yes. I then asked if he could cut it in the shape of the letter “R” and he responded yes…

I do not recall if I explained all this in the meeting, but I do recall confirming I asked Marco.” (sic)

[78] Mr Perez then explained to her that she was lucky because her boss was going to pay out her long service leave, holiday pay and five weeks’ pay. She responded by thanking him and started crying. Under cross examination the Applicant denied Mr Perez had explained the situation to her and asked her numerous questions. 24

[79] She returned to her workstation, finished work and then went home.

[80] Her evidence was that she has applied for many jobs including on Seek but without a reference she is struggling.

[81] Separately, the Applicant’s evidence is that she has told the Respondent on many occasions that she struggles to speak and understand English. Her friend Ms Zand has attended a disciplinary meeting with herself and Mr Bovell to help with translation, this was earlier in 2020.

[82] She says she did not steal the sponge cake and if she wanted to steal a sponge cake, she would not have asked Marco for permission. She says she asked Marco to take it and he agreed.

[83] She says she has only used the staff discount two or three times when she was buying something from the front shop that was packaged and ready-made. She has never used any staff discount for something from the kitchen, she has always asked permission and taken it usually because it is excess, or waste. Her evidence was it was her understanding that no one pays for items from the kitchen.

[84] With respect to the meeting on 9 October 2020 with the Applicant the evidence in chief of both Mr Bovell and Mr Perez is that as she entered Mr Bovell’s office she asked who Mr Perez was and Mr Bovell told her that he was the lawyer for the Respondent.

[85] They both say that Mr Bovell asked the Applicant whether a support person was attending. She replied no. They both say she told them that she wished to proceed with the meeting notwithstanding that her support person was not present. 25

[86] Mr Perez says that he asked her why her support person was not attending and she replied that her Union representative had advised he was not available. Mr Perez asked her why another Union representative had not been sent in his place and she responded that she did not know.

[87] Mr Bovell’s and Mr Perez’s evidence were that Mr Perez informed the Applicant the meeting was to discuss a serious issue being that the Respondent suspected she had taken goods without paying. He told her she would be given an opportunity to explain her actions and that if she could not provide an explanation then her employment may be terminated.

[88] He says the Applicant advised that she understood this.

[89] Mr Perez then told her the allegations were that at 9:41am on 17 September 2020 she prepared, with the assistance of another staff member, a large sponge cake and placed this on a display board and at 9:49am placed the goods aside in the break room and at 10:04am clocked off her shift and exited with the goods without paying.

[90] Mr Perez says he told her they had spoken to other staff and reviewed their records to confirm she had not been granted permission from management to take the goods nor had she purchased them.

[91] He asked her if she wanted to inspect the CCTV footage. She declined to view this.

[92] Mr Perez says he asked her if she understood all of this and she said yes.

[93] He says he asked her if she had paid for the cake and she said she did not.

[94] He asked her whether she sought permission from management to take the cake without paying and she said that she did not.

[95] He says he asked whether she was aware of the employee discount scheme and she said she was aware.

[96] Mr Bovell’s evidence confirms the above five interactions between Mr Perez and the Applicant.

[97] Mr Perez says he asked her why she did not use the employee discount scheme to purchase the produce. He says she did not provide an answer though did say words to the effect of “I take excess produce all the time”.

[98] Mr Bovell then told Mr Perez he would like to proceed with the termination and Mr Perez handed an envelope containing the letter of termination to the Applicant. He says he explained the contents of the letter to the Applicant telling her that, based on her answers, she had not provided a reason why she was allowed to take the produce without paying. He stated that her taking of the produce without paying was theft. Because of this, the Respondent had chosen to terminate her employment with immediate effect.

[99] He then explained that because the Respondent was terminating her due to theft it is not required to provide notice of termination however, the Respondent had agreed to pay her five weeks in lieu of notice to help give her additional time to find another job.

[100] He asked the Applicant to open the letter and confirm that she understood what was happening. She did not open the letter but he explained the contents of it and confirmed she understood the effect of the letter.

[101] Mr Perez says the Applicant started crying and had a short discussion with Mr Bovell which he does not recall.

[102] His evidence was that, whilst the Applicant had an accent, she was active and engaged and appeared to understand what he was saying at all times during the meeting. He regularly asked the Applicant if she required clarification on any points made by himself or Mr Bovell. He says he regularly asked her if she understood what he was saying and she replied that she did.

The legislation

[103] Section 387 of the Act sets out matters the Commission must have regard for when determining whether a dismissal was harsh, unjust or unreasonable. This section is set out below.

“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.”

Consideration

Valid reason

[104] I accept Mr Bovell’s evidence that the Applicant did not have permission from a person with authority to allow her to take the cake without paying.

[105] The Applicant was entirely open about her view that staff taking some produce without paying was common practice. For example, Mr Perez in his evidence in chief states that during the meeting on 9 October 2020 she said words to the effect of “I take excess produce all the time”. 26 This was said in circumstances where the Applicant had no prior warning of what the meeting was about.

[106] I have accepted the Applicant’s evidence that she asked Marco whether he needed this part of the sponge cake and he said he did not and she then asked him if she could have it and he said she could.

[107] The video evidence shows Marco willingly spent seven minutes with the Applicant following her instructions as to what shape this cake should be cut into and then did this for her. Neither Marco nor any of the other staff members appear to show any interest in the fact that at the end of her shift the Applicant took the cake in the large Corica branded plastic bag with her.

[108] Nothing in her actions that day indicates the Applicant knew she was doing something the Respondent might punish her for.

[109] This suggests that sometimes taking produce without paying was occurring in the workplace.

[110] I accept the Applicant’s evidence that what she did that day, taking produce from the kitchen without paying, was not unusual in the workplace. 27 I accept the Applicant genuinely believed Marco was authorised to give her permission to take the sponge cake without paying.

[111] Whilst Mr Bovell’s evidence was Marco had no authority to give produce away 28, he says he enquired to find out whether she asked someone for permission to take the cake, but she had not.29 His evidence was that “…if someone had given her permission to take the sponge, we wouldn’t have proceeded with the case”.30

[112] The Applicant’s actions were based on her honestly held but mistaken belief that Marco had the authority to permit her to take the cake without paying.

[113] In these particular circumstances, the Applicant’s actions were not a valid reason for her dismissal.

Notified of the reason

[114] I accept the evidence of Mr Perez and Mr Bovell that, at the meeting with the Applicant on 9 October 2020, she was informed that the Respondent suspected she had taken goods from the premises without paying and that, if she could not provide an explanation, her employment may be terminated.

Opportunity to Respond

[115] I accept the Applicant, at the meeting on 9 October 2020, had an opportunity to respond to the reasons for which the Respondent was considering dismissing her before they made the final decision to dismiss her.

Unreasonable refusal of support person

[116] There was no unreasonable refusal of a support person at discussions relating to the Applicant’s dismissal, however there was an unreasonable refusal to reschedule the meeting to a later date.

Unsatisfactory performance warnings

[117] The dismissal did not concern unsatisfactory performance, so this issue is not relevant.

Size of the business

[118] The Respondent at the time of the Applicant’s dismissal says it had 19 employees. However, the Respondent sought legal advice as to how to handle the issue and engaged a lawyer who attended the meeting with the Applicant on 9 October 2020. Consequently, this is not a case where the relatively small size of the enterprise explains and/or in any way excuses any deficiencies in the procedures followed in effecting the dismissal.

Absence of human resource management expertise

[119] The Respondent does not have dedicated human resource management specialists or expertise in the enterprise. However, again, because the Respondent engaged a lawyer to advise them and assist, the absence of human resource management specialists or expertise does not, in this case, explain and/or in any way excuse any deficiencies in the procedures followed in effecting the dismissal.

Other matters

[120] The Applicant had been employed by the Respondent since 2012.

[121] The Applicant had received a number of disciplinary warnings however none of those were in any way related to the taking of produce without paying, which was the reason for dismissal. The dismissal was based solely on what the Respondent viewed as serious misconduct, taking the produce without paying.

[122] The Applicant’s first language is Farsi and English is her second language.

[123] The evidence is that in her past dealings with her employer regarding disciplinary matters she has, on one occasion in a meeting, been accompanied by a friend as a support person and translator. In another subsequent and recent matter the union had been corresponding with the Respondent on the Applicant’s behalf.

[124] Whilst I accept the Applicant’s English capacity is satisfactory for day-to-day communications about her work, having viewed her as a witness, I am of the view that she would have been disadvantaged in having a discussion of the nature that occurred on 9 October 2021 without an English-speaking support person.

[125] Given this background, and the serious nature of the allegation made by the Respondent, and that in reply to Mr Bovell’s email on 8 October 2020, the Applicant had explained she had attempted to get the Union to attend and support her at the scheduled meeting and requested the meeting be rescheduled, it was unreasonable and prejudicial to the Applicant for the 9 October 2020 meeting to proceed in the absence of her having a support person.

[126] This is not a case where the Applicant was simply denied the right to have a support person, given I accept it was Mr Bovell and Mr Perez’s understanding that she was willing to proceed with the meeting without her support person, it nevertheless was unfair and prejudicial for the disciplinary meeting to not be rescheduled to allow her to have a support person present.

[127] A proper informed discussion with the Applicant and her support person would have ensured the Respondent understood the Applicant’s explanation as to why she had done what she did; that she had asked Marco’s permission to take the cake

[128] The Respondent would then have had the opportunity to investigate her explanation fully. Overall a more informed decision could have been made by the Respondent but unfortunately this is not what occurred. There was no urgency. Standing the Applicant down for a few days would have allowed this to all have been done fairly.

[129] In this case, the dismissal of the Applicant was unreasonable. There was no valid reason for the dismissal and the procedure followed was prejudicial to the Applicant.

[130] The dismissal of the Applicant was unfair.

Remedy

[131] The Applicant in this case does not seek reinstatement but rather an order for compensation. 31

[132] It is also clear to me that the relationship between the Applicant and Mr Bovell has been deteriorating for some time.

[133] In all the circumstances, I am satisfied that reinstatement of the Applicant is inappropriate.

[134] I do consider an order for the payment of compensation is appropriate.

[135] Section 392 of the Act, set out below, explains how the Commission is required to determine compensation in lieu of reinstatement.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[136] I will now apply the provisions of section 392 of the Act as follows.

[137] Whilst I am conscious that the Respondent’s enterprise is relatively small there is no evidence that an order of compensation would impact on the viability of the enterprise.

[138] The Applicant was employed since 2012.

[139] The Applicant’s annual income at the time of her termination was $42,484. This equates to $824 per week.

[140] It is apparent that recently the Applicant had received a number of disciplinary warnings for a range of issues. It seems overall there had been some decline in the Applicant’s commitment to her work and the Respondent had been frequently taking her to task for a range of reasons.

[141] Considering all the circumstances, my view is that the Applicant’s employment would not have continued for more than 20 weeks from the time of her dismissal, had she not been dismissed when she was. Consequently, the remuneration she would have received if she had not been dismissed is $16,480.

[142] I accept the Applicant has been making appropriate efforts to mitigate her loss.

[143] The Applicant has not earned any remuneration from employment since her dismissal.

[144] At the time of the dismissal, the Applicant was paid five weeks’ wages in lieu of notice, notwithstanding the dismissal was summary for serious misconduct. This amount will be deducted from the amount of compensation ordered.

[145] I note the Applicant does not appear to have insight into the fact that her actions that the Respondent criticised went beyond simply taking a piece of sponge cake after she had asked Marco if she could. She also spent some time with Marco whilst he cut the cake at her directions. This was time both she and Marco were paid for by the Respondent. But during this time neither of them were doing work for the Respondent. This itself was misconduct which contributed to the Respondent’s decision to dismiss the Applicant.

[146] An appropriate reduction in the amount that would otherwise be ordered is a deduction of four weeks’ wages.

[147] Total deductions are nine weeks’ wages which equals $7,416.

[148] The final amount of compensation to be ordered is $16,480 – $7,416 = $9,064 gross.

[149] An order [PR730985] to that effect will be issued in conjunction with this decision.

Appearances:

M Girgis of the United Workers Union for the Applicant.
G Stubbs of Counsel for the Respondent.

Hearing details:

2020.
Perth:
June 14.

Printed by authority of the Commonwealth Government Printer

<PR730984>

 1   Exhibit A1, Attachment SR1.

 2   Exhibit R3 at 9:46:55am.

 3   Ibid., at 9:49:05am.

 4   Ibid., at 9:49:37am.

 5   Ibid., at 10:04:56am.

 6   Exhibit A2 at paragraph 6.

 7   Exhibit R2 at paragraph 7.

 8   Transcript at PN573.

 9   Transcript at PN171, PN181, PN403 and PN550.

 10   Ibid., at PN550.

 11   Ibid., at PN540 and PN541.

 12   Exhibit A1 at paragraph 32.

 13   Exhibit R2 at amended paragraph 20.

 14   Exhibit A1 at paragraph 32.

 15   Transcript at PN644.

 16   Ibid., at PN554.

 17   Exhibit A3, Attachment MZ1.

 18   Transcript at PN268.

 19   Ibid., at PN629 and PN633.

 20   Ibid., at PN290.

 21   Ibid., at PN300.

 22   Ibid.

 23   Ibid.

 24   Ibid., at PN313 to PN314 and PN320 to PN341.

 25   Exhibit R3 at paragraph 28 and Exhibit R4 at paragraph 13.

 26   Exhibit R4 at paragraph 23.

 27   Exhibit A2 at paragraph 7.

 28   Transcript at PN554 and PN589.

 29   Ibid., at PN638.

 30   Ibid., at PN619.

 31   Applicant’s Outline of Submissions at paragraphs 59 to 60.