Sora Bae v The Trustee for Hanna Family Trust T/A Christopher Hanna Hair

[2015] FWC 4628

[2015] FWC 4628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sora Bae
v
The Trustee for Hanna Family Trust T/A Christopher Hanna Hair
(U2015/3423)

COMMISSIONER ROBERTS SYDNEY, 13 JULY 2015

Application for relief from unfair dismissal.

[1] This decision concerns an application lodged on 25 February 2015 by Ms Bae pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of her employment by The Trustee for Hanna Family Trust T/A Christopher Hanna Hair (Hanna or the Company).

[2] The Company initially raised a jurisdictional objection arguing that it had followed the Small Business Fair Dismissal Code (the Code) and therefore an unfair dismissal had not occurred. The matter was set down for jurisdiction and arbitration hearing in Sydney on 22 and 23 June 2015. Ms Bae appeared at the hearing set down for 22 June but the Company did not. The Company was then informed via my associate that the hearing would commence on 23 June and would proceed in the Company’s absence if the Company chose not to appear. The Company attended the hearing on 23 June and the matter proceeded.

[3] Prior directions were issued for the filing of written submissions, witness statements and any supporting documents. Neither party complied with directions although some documents and various emails were received. I have taken that material into consideration.

[4] At the hearing Ms Bae represented herself assisted by a Korean interpreter, Ms Dervenis. The Company was represented by Mr S Hanna. The Applicant and Mr Hanna gave sworn evidence.

Legislative framework

[5] Sections 385 and 388 of the Act provide:

“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[6] It is not contentious that Hanna is a small business and therefore is subject to the Code. The Code provides:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

Jurisdictional objection

[7] During proceedings, it became apparent that no discussions had occurred between Ms Bae and Mr Hanna prior to the ending of the employment relationship and that Mr Hanna relied on Ms Bae’s alleged action in walking out of the hairdressing salon after a verbal dispute with Mr Hanna as constituting a termination of employment at her initiative and that this satisfied the Code.

[8] It is clear to me that Mr Hanna misunderstands the terms of the Code and that it was not followed in effecting the termination of Ms Bae’s employment. Accordingly, the jurisdictional objection is dismissed and the rest of this decision will deal with the merits of Ms Bae’s application for relief.

Background

[9] The Company, of which Mr Hanna is Principal, operates a hairdressing salon in Surry Hills, NSW. Ms Bae was employed as a hairdresser at the salon from May 2011 until on or about 10 February 2015. Her last day of work was 7 February 2015.

[10] Ms Bae claims that the termination of her employment was harsh, unjust and unreasonable and seeks financial compensation, she does not seek reinstatement.

Evidence

Ms Bae

[11] Ms Bae gave sworn evidence. She said that on the morning of 7 February 2015 she did not feel well and asked Mr Hanna to vacate the afternoon schedule. However Mr Hanna told her that being a Saturday it was very busy in the salon and he could not find a replacement. A dispute occurred during the afternoon with Mr Hanna over work priorities and he had accused her of intentionally slowing down.

[12] Ms Bae went on to say that she usually finishes work at 5.30 pm on Saturdays and had told Mr Hanna that she had a personal engagement which meant that she could not stay at work after 6 pm. This led to her re-scheduling a customer who required lengthy treatment until the next Tuesday. At around 4.30 pm Mr Hanna told her to leave the salon and after twice asking him if he was sure that he wished her to leave, she left work around 4.30 pm. She was dismissed by text message on 10 February. “I asked why I was not given any termination notice letter and he said that he does not have to give me the letter since I walked out of that job voluntarily.” 1

[13] “I am not trying to say that I did an excellent job all the time and Stephen didn't but I also have shortcomings, but while working together for many years we had sometimes disagreements and sometimes conflicts of personalities.  However, it is regretful for him to end this way.  I worked there full-time so even if he does not like some of the things I did, he should have given me a proper termination notice and let me go.  And also I feel sorry that he didn't even pay me for the work I had already done.” 2

[14] Ms Bae said that she commenced a new job some one month after her dismissal by Mr Hanna. Ms Bae was not cross-examined.

Mr Hanna

[15] Mr Hanna gave sworn evidence. He said that on previous occasions he had counselled Ms Bae about her attitude and behaviour and on one occasion had given her two weeks’ notice of the termination of her employment. However, after Ms Bae had promised to change her attitude and behaviour, he gave her another chance. “Her attitude towards clients, she needed to be more professional, she needed to look after her clients and build up a clientele, which she didn't have.  She was just very rude to the clients and I said to her she needed to be a team player as well and help the other staff out.  She said she was going to change and obviously that didn't happen.” 3

[16] Mr Hanna went on to say that on 7 February 2015 Ms Bae had been reluctant to follow his direction as to how to deal with a client on two occasions. He was also upset that Ms Bae told a new client that she would need to come back on another day because Ms Bae did not have time to do her hair.

[17] “I was very upset with Sora, I took her aside again and told her it was unprofessional what she had been doing.  So I basically said to Sora she can either go downstairs, finish her client, do as she was told as she was working in the salon and if that's the case, she didn't want to be in the salon anymore, she didn't want to work here, she could either - like it was up to her.  The choice was hers, she could either leave or she could do what she was told, and she decided to leave.” 4

[18] Mr Hanna said that he then sent a text message to Ms Bae on 10 February in the following terms:

“Sora after your behavior on sat I don’t want you to work for me any more I will send you your pay during the week.” 5

[19] Mr Hanna’s evidence continued with a number of allegations against Ms Bae over her work behaviour and attitude.

[20] In cross-examination, Mr Hanna said that Ms Bae was generally a good hairdresser but there were problems with her work ethic and work behaviour and the manner in which she treated her clients. Mr Hanna said: “It’s either you want to do the work and work or you don’t and it just got to the stage where she had been doing this for such a long time, refusing to do as she was told and the build-up and that was just enough.” 6

Conclusions and Findings

[21] The facts in this case have been somewhat difficult to ascertain from the sworn evidence of the parties. When this is added to the absence of any real submissions, either in writing or oral, I am left to make what I can of the available material and evidence.

[22] From the totality of evidence in the proceedings and the content of a number of text messages which have been supplied to the Commission, I have concluded that the relatively long period of Ms Bae’s employment was marked by regular differences of opinion between her and Mr Hanna as to how she should perform her work. It is clear to me that Ms Bae was not an easy employee and often thought that her own way of doing things was superior to the express wishes of Mr Hanna. However, depsite these problems the working relationship somehow struggled along for almost four years until the events of 7 February 2015.

[23] I am satisfied that Ms Bae’s behaviour on 7 February continued a pattern of conduct and provided Mr Hanna with a valid reason to terminate her employment but I do not believe that her action in leaving the salon at around 4.30 pm that day constituted abandonment of employment. Ms Bae fully intended to attend work for her next roster shift on 10 February. On 10 February Mr Hanna dismissed her via text message. His action in doing so was not in accordance with the Code and I now need to determine whether the dismissal was harsh, unjust or unreasonable and then consider any resulting award of compensation. In this regard, I do not intend to further traverse the evidence of the parties but I have paid regard to all the relevant material in making my determination.

[24] The question of valid reason is dealt with above. The allegations made against Ms Bae relating to her performance or behaviour as an employee are largely crediable in my view. In relation to the remaining criteria set out in s.387 of the Act, I find that Ms Bae did not have any opportunity to respond to the reasons given by Mr Hanna for her dismissal and that there were no discussions relating to the dismissal beyond an exchange of text messages. The size of the Company would have impacted to a significant degree upon the procedures followed by Mr Hanna in effecting the dismissal. It is clear the Company does not have access to dedicated human resource management specialists or expertise.

[25] I have also taken into account a number of other factors including Ms Bae’s relatively lengthy employment history with the Company, her age, the fact that she gained another job in her field of expertise shortly after the dismissal, together with the personal effects of the termination of employment on her. In doing so, I have given considerable weight to Ms Bae’s behaviour on 7 February 2015 in resisting Mr Hanna’s attempts to direct her work priorities.

[26] All in all, and on the balance of probabilities, I find that the termination of Ms Bae’s employment was harsh in the manner in which it was effected.

[27] Section 390 of the Act sets out the criteria concerning the ordering of any remedy for unfair dismissal and I have paid regard to each of those criteria.

[28] It is not controversial that the first remedy to be considered by the Commission after making a finding that a dismissal was unfair is the possibility of reinstatement. Ms Bae does not seek reinstatement and in all the circumstances of this case, reinstatement would in any event be both impractical and undesirable. The employment relationship between Mr Hanna and Ms Bae can never be restored.

[29] Where reinstatement is not ordered, the Commission may order the payment of monetary compensation. Section 392(2) of the Act sets out the criteria for deciding a suitable level of compensation and I have paid regard to each of those criteria.

[30] There is nothing before me to indicate that any order I make will have any effect on the viability of the Company and I have also taken into account the length of Ms Bae’s service and the remuneration she would have been likely to receive if she had not been dismissed. It is clear to me that the employment relationship between the Company and Ms Bae would have ended about the same time anyway due to her behaviour issues. In short, if Mr Hanna had dismissed Ms Bae with two weeks’ paid notice, then I would have found no reason to disturb that decision. Mr Hanna’s error was in effecting the termination without payment of notice.

[31] All in all, I find that the termination of Ms Bae’s employment was for a valid reason but was harsh in the manner in which it was carried out. An order will be issued that the Company pay her a total of $1,700 (less appropriate tax according to law) within 14 days of the date of this decision. That figure represents two weeks’ wages at $850 per week. This figure does not include any obligation on the employer in relation to compulsory superannuation contributions or any other statutory entitlement(s). In that regard, I note that Ms Bae apparently has a complaint before the Fair Work Ombudsman and nothing in this decision affects that complaint.

[32] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[33] An order reflecting this decision is in PR569206.

COMMISSIONER

Appearances:

S Bae, the Applicant.

S Hanna, for the Respondent.

Hearing details:

2015.

Sydney:

June 23.

 1   Transcript PN33.

 2   Transcript PN54.

 3   Transcript PN86.

 4   Ibid.

 5   See attachment to Applicant’s form F2.

 6   Transcript PN167.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR569205>