Tha Chan v Hibiscus Chinese Takeaway and Cafe Food

[2017] FWC 3467

[2017] FWC 3467

FAIR WORK COMMISSION

DECISION

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

Tha Chan
v
Hibiscus Chinese Takeaway and Cafe Food
(U2017/2192)

COMMISSIONER WILSON MELBOURNE, 30 JUNE 2017

Application for Unfair Dismissal Remedy; whether dismissal; whether extension of time to be granted for filing of application; application of the Small Business Fair Dismissal Code; consideration of s.387.

[1] Ms Tha Chan was employed by the Hibiscus Chinese Takeaway and Café in suburban Darwin for just over ten years. Following a holiday to Cambodia in late 2016/early 2017, she returned to work and found that her employment had ended.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Three of the four elements of that section require determination by me.

[3] While it is not put forward that Ms Chan’s termination of employment was for the reason of genuine redundancy, or that she was not a person protected from unfair dismissal, the Commission is required to determine;

• Whether the application was made within the 21 day period for making such applications;



• Whether her dismissal, if there was one, was consistent with the Small Business Fair Dismissal Code.

[4] It is also necessary to determine whether Ms Chan was dismissed at the initiative of the employer or resigned.

[5] Following consideration of those matters, and depending on how they are determined, it may be necessary to determine whether Ms Chan was unfairly dismissed.

BACKGROUND

[6] Ms Chan was employed by the Hibiscus Chinese Takeaway and Cafe (Hibiscus) for a significant period of time. Her application and the Employer Response Form refer to Ms Chan as having commenced employment on 17 October 2007. However in the course of giving evidence, Ms Chan relates that having immigrated to Australia on 6 October 2006 she recalls starting employment with Hibiscus one month later. Her evidence includes that when her application referred to commencing employment on 17 October 2007 she merely transposed the employment commencement date referred to in the employment separation certificate provided to her in February 2017. 1 I accept that Ms Chan’s employment commenced in November 2006.

[7] Ms Chan gave evidence that she was a full-time employee. The duties she performed for Hibiscus included short order cooking and food preparation, cleaning the kitchen and doing the dishes, and general kitchen hand duties. Her evidence is that she generally worked five days on and two days off, working an average of 28.5 to 30 hours per week. Ms Chan’s last day of work performed for Hibiscus was on 23 December 2016.

[8] Both parties agree that on that day Ms Chan and Matthew Leong, the proprietor of Hibiscus, went together to a nearby Westpac bank branch for the purposes of withdrawing money for her holiday pay. Mr Leong puts forward in the Employer Response Form to this unfair dismissal application that;

“During the time I took her to the Westpac bank, she told me to find another worker. I asked her why? She said after she come back from holiday she is going to move to Melbourne to live with her son, because she finds it difficult to live in Darwin. The reasons are: her English is not very good hard to fill out forms and all her sons are lived in Melbourne”

[9] Ms Chan denies that when the two went to the Westpac bank branch that she told Mr Leong he should find a replacement as she was not coming back. She also denies telling Mr Leong that she was moving to Melbourne. 2

[10] In any event Ms Chan travelled to Cambodia after 23 December 2016 to visit her elderly mother and was joined by other members of her family both from Melbourne and Darwin. Ms Chan’s evidence is that when she returned from the overseas trip she returned to Hibiscus on 26 January 2017 where she was told by Coy Yong, Mr Leong’s mother, that there was no position for her;

“15. I returned to Darwin from my holiday on 25 January 2017.

16. On 26 January 2017 I attended my workplace and told 'Coy Yong' that I was back from my holidays and told her I was ready to come back to work.

17. 'Coy Yong' told me that there was not enough work for me, that the business was too quiet. She said to wait and that 'when I am busy I will call you'. I did not think I was dismissed, just that I had to wait.

18. I was upset by this as I did not have any money but over the next couple of weeks just kept returning to the business to see if they had a job as I needed to work as I had no money.

19. Approximately a week or so after 26 January 2017 I returned to the workplace a second time and 'Coy Yong' told me words to the effect 'I do not have any work for you.' I still did not think I was dismissed.” 3

[11] Mr Leong disputes that Ms Chan was told that there was no work for her either on 26 January 2017 or any other time.

[12] Ms Chan then relates steps taken by her to see if she might have further employment;

• After a further week she returned to Hibiscus and both Mr Leong and Coy Yong “said they might have a job for one week in March and asked ‘do you take the job or not, if not, I take somebody else. If you don’t want, go to Centrelink’”. 4



• Having been to Centrelink she returned to Hibiscus on or around 14 February 2017 and sought an Employment Separation Certificate. One was provided to her on 16 February 2017 which referred to the reason for separation being “[e]mployee ceasing work voluntarily” with the further details been given of “[m]oving to Melbourne”. The certificate itself is dated 16 February 2017. 5



• After reading the certificate with her sister she immediately returned to Hibiscus and asked Coy Yong to make a change to the certificate by removing the reference to moving to Melbourne and voluntarily leaving work. Ms Chan’s evidence is that Coy Yong got upset with her and her sister and started yelling and said that the certificate was correct. 6

QUESTIONS FOR DETERMINATION

[13] There are potentially five questions for determination by the Commission in this matter;

• Whether Ms Chan was dismissed at the initiative of the employer, and if so;



• Whether her application was made within the time period allowed by the Act;



• If it was not, whether there are exceptional reasons that would allow the granting of an extension of time for the making of her application;



• If so, whether any dismissal was consistent with the Small Business Fair Dismissal Code; and



• If not whether it was otherwise an unfair dismissal within the meaning of the Act.

WHETHER DISMISSED

[14] The first question to be determined is whether or not Ms Chan was dismissed, or instead whether she resigned when she proceeded on holidays on 23 December 2016.

[15] An employee is dismissed if the employee has been terminated on the employer’s initiative. 7

[16] The evidence in this regard is clearly disputed between Ms Chan and Mr Leong. Ms Chan’s evidence relies upon her undertaking a period of annual leave. There is no dispute between the parties that indeed Ms Chan was going to Cambodia for the purposes of visiting her mother and that her son from Melbourne would be going with her. There is also no dispute that she and Mr Leong went to the Westpac bank to withdraw money for her holiday pay. Mr Leong’s case puts forward that on this occasion Ms Chan indicated to him an intention to not return after the period of annual leave and that he should find another employee to work for his cafe.

[17] The evidence in this matter regarding whether or not there was a resignation is from both Ms Chan and Mr Leong. Although Ms Chan’s sister, Chea Taing, also gave evidence, that evidence does not deal with the subject of the 23 December 2016 interaction and whether in all the circumstances it was a resignation.

[18] In all the circumstances I accept that Ms Chan had no intention to resign her employment and did not do so when she left for a holiday on 23 December 2016.

[19] Ms Chan immigrated to Australia from Cambodia in October 2006. She speaks very little English and does not read or write English. 8 Her first language is Khmer, however she is ethnically Chinese and speaks Mandarin, as do Mr Leong and his mother, Coy Yong.9 While it is the case that both Ms Chan and her former employer and his mother are able to communicate in Mandarin, I also accept that Ms Chan has little knowledge of her workplace rights.

[20] I accept that having returned from a period away in late January 2017 and being faced with a somewhat ambiguous situation about the continuation of her employment, whether or not it can be said that she had already resigned, Ms Chan did her best to continue her employment with Hibiscus. After returning to Darwin on 25 January 2017 she went to Hibiscus at least twice, if not on more occasions, and asked for work. The first time, on 26 January 2017, she was told that there was not enough work and that the business was too quiet and that she should wait for a phone call. After about a week she then returned a second time and was again told that there was not any work for her.

[21] If it was the case that Ms Chan had in fact resigned prior to going on her holiday on 23 December 2016, it was open to Hibiscus, when she presented at the cafe in late January and early February, for it to welcome her back. However that was not done. Instead the proprietors said to Ms Chan they did not have any work for her and that she would have to wait for work. If nothing else, the fact that there was no preparedness to have Ms Chan back in the face of what could well have been a mutual misunderstanding about her intentions when she went on holiday reinforces the likelihood that when she proceeded on leave she did not resign. Instead the proposition of her having resigned appears as an eventuality that has been imposed on the circumstances by the Respondent after the events to which they relate.

[22] While that is the case, the evidence includes that Ms Chan was employed on permanent full-time, and not casual, basis, 10 which is not disputed by Hibiscus. As a result Ms Chan had an entitlement to be provided with further employment by Hibiscus when she presented for work on 26 January 2017. The fact that she was told that there was not enough work for her, that the business was too quiet and that she had to wait for a phone call, and that there was no endeavour to bring her back into the workplace on that day requires me to find that Ms Chan’s employment ended by Hibiscus dismissing her on 26 January 2017.

[23] In all, the evidence points to Ms Chan having been dismissed on the employer’s initiative.

EXTENSION OF TIME

[24] Ms Chan’s unfair dismissal application was made on 1 March 2017.

[25] Since Ms Chan’s application for unfair dismissal was made to the Commission on 1 March 2017, it follows that Ms Chan’s application should have been made no later than Thursday, 16 February 2017, which means that her application was actually made 13 days beyond the time limit required by s.394(2) of the Act.

[26] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act;

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.

[27] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”;

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”. 11

[28] In considering whether an extension of time should be granted to Ms Chan, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[29] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 12 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.13 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.14

[30] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

[31] The fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance. 15

[32] Because it is the case Ms Chan’s application was made out of time, I must consider whether, pursuant to s.394(3), the Commission is satisfied that there are exceptional circumstances that would cause the Commission to allow a further period for the making of Ms Chan’s application.

[33] The reason advanced by Ms Chan for the making of her application on 1 March 2017 and not earlier includes that, notwithstanding the fact that her employment ended on 26 January 2017, she was not aware of that fact until she received the Centrelink Employment Separation Certificate on 16 February 2017 and had its contents read to her by her sister. Once she became aware that she had been dismissed, she made endeavours to speak with the Darwin Multicultural Society about her predicament and then somewhat quickly afterwards made an appointment with the Darwin Community Legal Service. The appointment was booked on 21 February 2017 and she consulted with a person at the service the following week on 28 February 2017. Her application for unfair dismissal remedy to the Fair Work Commission was then made the following day on 1 March 2017.

[34] I find the reason for Ms Chan’s delay in making her application was that she did not understand she had been dismissed until 16 February 2017. I find that is an exceptional circumstance as well as being an acceptable explanation and that consideration of this criterion resolves in favour of the Applicant.

2. Whether the person first became aware of the dismissal after it had taken effect

[35] As has been articulated above this is a case where the Applicant first became aware of her dismissal after it had taken effect. I consider that this factor in all the circumstances before me resolves heavily in favour of the Applicant.

3. Any action taken by the person to dispute the dismissal

[36] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 16

[37] The action taken by Ms Chan to dispute her dismissal consists of consulting first with the Multicultural Society and then soon afterwards with the Darwin Community Legal Service who were then instructed to make an application to the Commission.

4. Prejudice to the employer (including prejudice caused by the delay)

[38] The delay in the filing of the application is 13 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[39] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

[40] As a result, this criterion is a neutral factor in my consideration.

5. The merits of the application

[41] The merits of the application to which I must have regard are whether or not the evidence I have seen to date discloses a likely unfair dismissal.

[42] The merits of Ms Chan’s application relates to the unfairness of not being aware that her employment had ended, and for reasons she is not aware of, and it being said that she in fact resigned. It is noted that in this particular case the Commission has considered the question of an extension of time for Ms Chan at the same time as it considered the merits of her application. I consider the merits of the matter resolve in favour of an extension of time being granted to Ms Chan.

6. Fairness as between the person and other persons in a similar position

[43] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 17 The question of general fairness as between all applicants would likely resolve in favour of Ms Chan, given the circumstances in which she found out about her dismissal. In relation to the question of fairness as between applications arising out of the same employer, there is no other person presently before the Commission dismissed by the same employer for the same underlying issue.18

[44] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Chan.

[45] For these reasons, I grant an extension of time pursuant to s.394 of the Act and will issue an order that the time for Ms Chan to file her unfair dismissal application be extended until 1 March 2017.

SMALL BUSINESS FAIR DISMISSAL CODE

[46] As referred to above, s.396 requires consideration of consistency with the Small Business Fair Dismissal Code (the Code) as an initial matter, before consideration is given to the merits of an application. If Ms Chan’s dismissal was consistent with the Code, then her application fails; if it was not, consideration must then be given by the Commission to the provisions of s.387. 19

[47] The Code is provided for by s.388 which is in the following terms;

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.

[48] The Code itself is in these terms;

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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.”

[49] The evidence in relation to Hibiscus’ size is inconclusive. On the one hand the Respondent puts forward that it is a small business with only six employees but on the other hand the Applicant considers that it has “closer to 20 employees with part-time and casual (cash in hand) employees who continue to work on a regular basis”. 20 No evidence was called by either party in relation to their respective contentions.

[50] I therefore consider it appropriate to proceed on the basis of the Respondent’s contention that it is a small business to which the Code applies.

[51] As will be evident from a reading of the Code, it consists of two parts and the question of whether a dismissal is consistent with the Code requires consideration of whether it meets the tests of the “summary dismissal” part, or the “other dismissal” part.

[52] A review of the evidence in this matter shows that Ms Chan’s dismissal is consistent with neither part of the Code. There is nothing before the Commission that would support a finding that she had been dismissed without notice or warning because Hibiscus believed on reasonable grounds that her conduct was sufficiently serious to justify immediate dismissal. Likewise there is nothing before the Commission to show that she was given a reason why she was at risk of being dismissed or that there was a valid reason for doing so. There is also no evidence that she was warned, that she risked being dismissed or was provided with an opportunity to rectify any work-related problems the employer perceived about her performance.

[53] As a result of the foregoing findings it is necessary to consider whether Ms Chan’s dismissal was an unfair dismissal after consideration of the criteria within s.387 of the Act.

THE CRITERIA WITHIN S.387 – WHETHER UNFAIR DISMISSAL

[54] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

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.

[55] Determination of whether Ms Chan’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[56] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 21

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 22



• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 23



• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 24



• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 25 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and



• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 26” (original references)

[57] I will deal with each of the criteria within s.387 in turn.

(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)

[58] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 27

[59] There has been no reason advanced in relation to Ms Chan’s termination of employment other than the proposition that she left to go on a holiday with the intention of not returning, which amounts to her having resigned from her employment.

[60] I accept and prefer Ms Chan’s evidence in relation to those matters where her evidence is in conflict with Mr Leong’s. I find her to be a witness of truth.

[61] Mr Leong’s evidence was not supported by any documents, including a witness statement or submission, other than the brief material filed in his Employer Response Form. The sum of his evidence was that Ms Chan told him when he drove her to the bank in December 2016 that she would not be returning. I do not accept that evidence.

[62] The proposition that Ms Chan would simply finish up her employment prior to a one-month holiday, with the expectation that she would never return to Darwin again and instead relocate to Melbourne where her sons lived, is inherently implausible in the absence of any further evidence about plans by the Applicant to relocate. Instead Ms Chan puts forward strongly that she never intended to leave Darwin for Melbourne and has made no plans to do so. There is nothing before the Commission that would corroborate the claim that is put forward by Mr Leong.

[63] No criticisms were advanced by Hibiscus of Ms Chan’s work performance and no significant evidence is put forward about there being any downturn in the business that would otherwise explain the need to terminate her services for reasons other than conduct or work performance. It is likely that, for unknown reasons, Hibiscus thought that Ms Chan had outlived her usefulness as an employee and simply though that it would allow her to go on holidays and not have her back, putting forward the ruse of her having told them she was not going to come back.

[64] It follows therefore that the termination of Ms Chan was not the subject of a valid reason on the part of Hibiscus.

(b) whether the person was notified of that reason

[65] Ms Chan was not notified of any reason for her termination of employment.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[66] It has been held that consideration of the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal arises, strictly speaking, as a matter consequential to a finding there is a valid reason for dismissal, which I have not found. 28

[67] In any event Ms Chan was not given the opportunity to respond to any reason Hibiscus held for her dismissal relating to her capacity or conduct.

(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

[68] There were no discussions relating to Ms Chan’s dismissal and so this criterion is a neutral consideration in my decision.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[69] Whether or not Ms Chan’s dismissal related to unsatisfactory performance by her, there is no evidence that she had ever been warned about her performance before the dismissal.

(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

[70] As discussed above, the evidence in relation to Hibiscus’ size is inconclusive. The Respondent puts forward that it is a small business with six employees, whereas the Applicant considers that it has “closer to 20 employees with part-time and casual (cash in hand) employees who continue to work on a regular basis”. In any event I am satisfied that the size of Hibiscus, together with Mr Leong’s lack of knowledge generally about workplace relations matters, impacted upon the procedures followed by him in effecting Ms Chan’s dismissal.

(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

[71] For the same reasons concerning the size of Hibiscus I also consider that the absence of dedicated human resource management specialists or expertise in Hibiscus’ enterprise would likely impact on the procedures it followed in effecting Ms Chan’s dismissal.

(h) any other matters that the FWC considers relevant

[72] I do not consider there to be any other relevant matters requiring consideration.

[73] As a result and in all the circumstances of this matter I consider that Ms Chan was unfairly dismissed by Hibiscus when, after returning from her holiday and presenting at the workplace ready for work on 26 January 2017, she was told that there was no work for her at that time. I consider it to be harsh and unjust that Ms Chan was never told she had lost her job or why that may have been and I consider it to be unreasonable that when she attended for work on 26 January 2017 she was told she would be contacted when the business had work for her.

[74] Having determined that Ms Chan’s dismissal was unfair, I am now required to consider the matter of a remedy to be ordered in relation to Ms Chan. Because of the overall circumstances of the matter I consider it is not appropriate for me to proceed to determine that question in this decision, but to instead invite further submissions and/or evidence from each party in relation to the matter of remedy.

[75] Accordingly the Applicant will be given a period of two weeks from the date of this decision to file and serve such further material as it wishes the Commission to take into account in relation to the question of remedy. On that basis the Applicant will be required to file and serve their material no later than 5 PM on 14 July 2017.

[76] Commensurate with that direction the Respondent will have a period of two weeks from the Applicant’s filing date to file and serve such additional material as it wishes the Commission to take into account and will therefore be required to submit any further material by no later than 5 PM on 28 July 2017.

[77] Following the filing of additional material, the Commission will convene a hearing of the matter on the question of remedy on Wednesday, 9 August 2017 at 2 PM AEST/1:30 PM ACST, after which it will proceed to determine the question.

COMMISSIONER

Appearances:

Ms T Spence, solicitor, for the Applicant.

Mr M Leong on behalf of the Respondent.

Hearing details:

2017.

Melbourne (by telephone):

31 May.

 1 Exhibit A2, Witness Statement of Than Chan, [6]–[7].

 2 Ibid [12].

 3   Ibid [15]-[19].

 4 Ibid [20].

 5   Ibid [21]–[23], Attachment TC-1.

 6   Ibid [24]–[26].

 7   Fair Work Act 2009 (Cth) s 386(1).

 8   Exhibit A1, Applicant’s Outline of Submissions, 1.

 9 Exhibit A2 [9].

 10 Ibid [1].

 11   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 13   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 14   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 15   Nulty v Blue Star Group (2011) 203 IR 1 at [14].

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 17   Wilson v Woolworths [2010] FWA 2480 at [24]‒[29].

 18   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 at [38].

 19   Ryman v Thrash Pty Ltd[2015] FWCFB 5264 at [48]

 20 Exhibit A1 [34].

 21   Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

 22   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 23   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 24   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 25   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 26   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 27   Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

 28   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679 at [41].

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