Tran Hoang Duyen (Alice) Dinh v Sakuraya Holdings Pty Ltd T/A Sakuraya
[2018] FWC 5024
•30 AUGUST 2018
| [2018] FWC 5024 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tran Hoang Duyen (Alice) Dinh
v
Sakuraya Holdings Pty Ltd T/A Sakuraya
(U2018/2602)
| COMMISSIONER SIMPSON | BRISBANE, 30 AUGUST 2018 |
Application for an unfair dismissal remedy.
This matter concerns an application under section 394 of the Fair Work Act2009 (the Act) by Ms Tran Hoang Duyen (Alice) Dinh who alleges that the termination of her employment with Sakuraya Holdings Pty Ltd T/A Sakuraya (Sakuraya) was unfair.
Ms Dinh commenced employment at Sakuraya on 27 September 2016 and was employed as a casual retail sales assistant until her employment ended on 20 February 2018, a period of approximately 1 year and 5 months.
Ms Dinh submitted her employment was terminated as a result of an incident on 5 January 2018 whereby she was berated by the owner of Sakuraya, Mr Andy Liu, for improperly training new staff. Ms Dinh submitted she was never given an opportunity to respond and had never been given any warnings regarding her performance prior to the incident.
Sakuraya submitted Ms Dinh was terminated for misconduct as a result of disrespectful behaviour towards the owner on 5 January that caused the shop to be shut down for a period of approximately four hours. Sakuraya further submitted Ms Dinh had abandoned her employment.
Was there a valid reason for dismissal?
Sakuraya provided Ms Dinh with a termination letter dated 20 February 2018 that read as follows:
“I am writing to you about the termination of your employment with Sakuraya Holdings Pty Ltd.
On 05/01/2018 you met with director, Andy Liu. In that meeting, you were advised about your poor performance and misconduct at work. You were issued with a formal warning letter on 08/01/2018.
You did not respond to the first warning letter. You were then issued with a second and final warning letter on 10/01 /2018 to please contact us and provide the company with solutions by a due date of 12/01/2018.
You did not make any contact or response for your warning letters until14/01/2018, which you sent us a sick leave request email for 11 /01/2018- 18/01/2018 with a doctor certificate and still no attempt to provide any solutions for your official warnings. As know [sic] further documentation were [sic] given and there were no response to work, we view this as an abandonment of employment.
We consider that your conduct is still unsatisfactory and have decided to terminate your employment for the following reasons:
• Due to your misconduct, the shop was forced to close during trading hours from 12:00pm to 16:30pm on 05/01/2018.
• You did not show respect to your boss.
• Your crying behaviour caused stress to our team and customers. As a result, a customer threw a cup at our boss.
• You damaged company's reputation and broke company's policy.
• We lost many potential employees that had come for their interviews on the day.
• You did not attempt to provide any solutions for your conduct.
Your employment will end immediately.
Company Assets
Please return all company assets as a matter of urgency. Your uniform deposit will be returned to you as soon as we receive all recipe booklets, attendance card, clean uniform and bicycle. Please return all company assets to Snow [address redacted].
Failing to return over payment of salary and company assets, we will immediately seek legal actions. We will seek that your pay the costs of any such application and any legal costs on an indemnity basis.
Regardless of the above, you will still have to abide to our agreement of disclosure that was written in your contract.
Should you have any queries, please do not hesitate to contact us. .
You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at 5 January 2018
Sakuraya submitted that Ms Dinh was terminated due to her misconduct during an incident that occurred at the workplace on 5 January 2018. Sakuraya submitted Ms Dinh engaged in misconduct on 5 January 2018 by disrespecting the boss, engaging in inappropriate behaviour that caused stress to staff members and customers, damaging the company’s reputation, causing the company to lose potential employees and forcing the shop to close and “crying behaviour.”[1]
Evidence of the Applicant
Ms Dinh submitted that none of the reasons provided by Sakuraya identifies how her conduct on 5 January amounted to misconduct, other than the reference to “crying behaviour.” Ms Dinh submitted that crying in front of staff and customers did not amount to misconduct and was an accurate response to the abusive behaviour shown to her by the shop owner Mr Andy Liu.
Ms Dinh said that on 5 January 2018 she arrived at work at approximately 11:50am and was working with Ms Trang Thi Thuy Trinh (“Christine Trinh”) and a new staff member when Mr Liu arrived.[2]
Ms Dinh said Mr Liu immediately started complaining that they had not turned on the light and two televisions near the counter areas while she was training the new staff member. Ms Dinh said Mr Liu continued to blame Ms Trinh and herself for not training new employees properly. Ms Dinh said Mr Liu said to her “you don’t care simple things for the shop” and “you fuck all new staff.”[3]
Ms Dinh said she told Mr Liu “I tried my best” and “I trained new people step-by-step as I was trained before.” However, he was still unhappy and continued blaming all faults on Ms Dinh and used offensive words.
Ms Dinh said she was already feeling upset at that time because of things outside work and that she started crying. Ms Dinh said Mr Liu then yelled at Ms Trinh while she was working in the kitchen and asked her to close the roller door. Ms Dinh said there were five to seven customers in the shop as well as customers who were waiting outside.[4]
Ms Dinh said after she started crying Mr Liu kept raising his voice and said her “you wanna fuck me up?”, “I close the shop because of you”, and “can you stop making drama?”[5] Ms Dinh said Mr Liu kept saying “Why are you fucking crying? I will fuck you up even harder.” He then said “Alice wants to be the number one Vietnamese in the shop.” and “are you the owner Alice?”[6]
Ms Dinh said at around 1:00pm another staff member named Sara came and joined their meeting. She said Mr Liu started to ask Ms Trinh for solutions for the problems of that day and solutions for training new people. Ms Dinh said he then started to point at her and say “look what you’ve done Alice”, “we’ve already closed two and a half hours”, “I lost approximately 50 customers per hour, can you calculate that?”, “you have made me lose face in front of customers” and “let me see how you fix these problems.”[7]
Ms Dinh said she felt very stressed and asked Mr Liu “can I give you the answer tomorrow?” and “can I go home now because I cannot control my emotion and stop crying?”[8] Ms Dinh said Mr Liu continued to push her and she said “I quit” and could not stop crying.[9]
Ms Christine Trinh, who was present on 5 January 2018, gave evidence for Ms Dinh. Ms Trinh said that when Mr Liu arrived he started complaining about things such as the tea tank leaking and the TV not being on.[10] Ms Trinh said Mr Liu continued to pick on her and Ms Dinh about the ability of new employees due to her and Ms Dinh’s training.[11]
Ms Trinh said Mr Liu then went and spoke to Ms Dinh. She said she could not hear what they were saying due to the distance in the kitchen, however after about 15 minutes Mr Liu yelled at Ms Trinh telling her to close the shop.[12]
Ms Trinh said when she came outside, Ms Dinh was crying and Mr Liu kept verbally abusing her saying “you wanna fuck me up Alice? Okay I will fuck you up and make you suffer for doing this to me.” Ms Trinh said Mr Liu did not give Ms Dinh an opportunity to speak and kept saying “look at what you have done Alice, let’s see how you fix this problem.”
Ms Trinh stated that while she didn’t know what Ms Dinh had done, Mr Liu’s behaviour was not acceptable. She heard him blame Ms Dinh for her tears and for embarrassing him in front of the customers, saying “if you are not happy, just get the fuck out of this shop. Don’t make it look like I am abusing you.” Ms Trinh said Mr Liu then said “Alice, why are you fucking crying? Stop making fucking drama.”
Ms Trinh said Mr Liu started to ask Ms Dinh and herself for solutions to the problem. Ms Trinh said this meeting went on for more than three hours, and everyone was exhausted. She said this continued until about 4:30pm when she was able to finish her shift.[13]
Ms Dinh said at 5:00pm after she had finished her shift, she went over to the table to where Mr Liu and his mother were sitting and apologised. She said she was sorry for her poor performance and for what happened in the morning.[14] Ms Dinh said Mr Liu was still swearing at her saying “you have made the company lose face”, “you have made me lose face” and “the shop has been closed for four and half hours because of you.” She said that he further threatened “I will make sure you won’t survive.”
Ms Dinh submitted that during this conversation, a customer approached Mr Liu and said that his behaviour had made the customers uncomfortable, to which Mr Liu pointed at Ms Dinh and said “well it’s her fault”. Ms Dinh submitted that she said to the customer “I’m sorry it is my fault”, but the customer insisted that it was Mr Liu who was making everyone uncomfortable.
Ms Dinh’s evidence was supported by the evidence of Mr Anthony Pieters, the customer who approached Mr Liu during incident of 5 January 2018. Mr Pieters confirmed that Mr Liu said words to the effect of “you won’t survive without me”, repeatedly used the “F word” and continued to swear at Ms Dinh until she cried.[15] He said the exchange had gone on for approximately 15 minutes and Mr Liu did not communicate what she had done or allow her a chance to talk until he said “I’m sick of helping you.”
Mr Pieters said after 20 minutes he walked over and said to Mr Liu that his behaviour was making customers feel uncomfortable to the point where some had decided to leave. Mr Pieters said Mr Liu said “it’s her fault” while pointing at Ms Dinh. Mr Pieters said to Ms Dinh it was not her fault. He said Mr Liu said to Ms Dinh “see what you have done”. Mr Pieters said in disgust he dropped his empty cup and left.[16]
It was put to Mr Pieters during cross examination that the information contained in his statement referred to events that occurred from 5:00pm on 5 January 2018. Mr Pieters agreed.
Ms Dinh submitted she left Sakuraya at approximately 5:35pm. She submitted that she felt stressed and exhausted, and couldn’t bear Mr Liu’s bad language.
Evidence of the Respondent
Sakuraya submitted several witness statements, none of which pertained to any direct evidence of the events that occurred on 5 January 2018.
Sakuraya submitted a “Statement of Sakuraya Holdings Pty Ltd”[17] which was adopted by Mr Andy Liu during the course of the Hearing. The only evidence given in relation to the events of 5 January was that Ms Dinh said “I will quit” during a conversation with Mr Liu, and that Ms Dinh sent an apology message to Ms A-Hsueh Lai’s mobile phone at approximately 11:40pm.
Sakuraya said that Ms Lai then requested a formal written apology due to Ms Dinh’s “current unsatisfied performance”, to be sent to [email address redacted]. It said Ms Dinh provided this written apology by email on 6 January 2018.
Sakuraya also provided statutory declarations of Mr Joseph Holly, Ms A-Hsueh Lai and Ms Mingxi Feng (Jessie).
Mr Joseph Holly said in his statutory declaration that on 5 January he arrived at the shop to deliver stock and heard Mr Liu talking to the staff. He said he saw Ms Dinh crying, and did not hear Mr Liu use obscene language towards any staff. He said the topic of conversation he witnessed was about the lack of thorough training that the new staff were receiving and that this lasted about 10 minutes. Mr Holly said in his statement he did not witness the reason for Ms Dinh’s crying.
Ms Lai’s declaration did not give any evidence in relation to any of the events that occurred on 5 January until approximately 4:30pm. She said Mr Liu told Ms Dinh that her shift was finished and she needed to leave, and that Ms Dinh kept standing there crying.
In relation to the incident on 5 January Ms Feng said in her declaration that she was working on the morning when the incident occurred, but that she didn’t know what Mr Liu and Ms Dinh were talking about during their conversation. She said she did not pay attention to the conversation and could not remember its contents. Ms Feng said Ms Dinh was crying and said “I’m finished.” She said Mr Liu asked her to clarify her meaning by this and Ms Dinh said “I quit.”
I prefer the evidence of the Applicant in relation to the events of 5 January 2018.
Ms Dinh gave a comprehensive account of the events that occurred on 5 January 2018. Ms Dinh was able to provide specific evidence on what was said during the course of her conversations with Mr Liu. I found Ms Dinh to be a credible witness.
The evidence of Ms Trinh was consistent with that of Ms Dinh. Ms Trinh was also able to give a detailed recollection of the events that occurred on 5 January.
Ms Dinh’s evidence was also consistent with that of Mr Pieters who also gave a detailed recollection of events and was an outside third party with no vested interest.
During cross examination of the evidence of Ms Dinh, Sakuraya did not raise any objections to her evidence in relation to the events of 5 January. This was also the case in relation to the evidence of Ms Trinh and Mr Pieters.
Sakuraya has not provided any sufficient evidence as to why or how Ms Dinh’s conduct on 5 January amounted to misconduct on 5 January. I do not accept that the fact Ms Dinh was crying amounted to misconduct. On the contrary I accept that her reaction was justified in the circumstances and that she was more than likely subject to a tirade of verbal abuse from Mr Liu throughout the course of the day.
I am not satisfied Ms Dinh’s conduct on 5 January 2018 amounted to a valid reason for dismissal.
Abandonment of Employment
Sakuraya submitted that a warning letter was sent to Ms Dinh on 8 January 2018, to which it did not receive a reply. A further email was sent to Ms Dinh on 10 January 2018 asking for her to make contact, but no reply or contact was made.
Sakuraya submitted that following attempted contact of 8 and 10 January, there were four days where Ms Dinh failed to make contact and hence it made the conclusion that “she disappeared without any notice and we can’t do anything.”[18]
Ms Dinh submitted that she received the email attaching the warning letter, and also received a text from Ms Snow Lai stating her shifts of 6 and 7 January had been cancelled.
Ms Dinh further submitted that an email was sent to her on 8 January 2018 stating:
“Dear Alice,
We tried to call you several time, but you did not answer.
We are still waiting for your reply regarding to the solutions of what happened last Friday.
If you still want to work with Sakuraya, please contact us and hope you will give us the solutions by this Friday (12.01.2018) or;
If you want to terminate your employment, please send us your letter of resignation. According to company’s policy. SAKURAYA LETTER OF ENGAGEMENT, you may terminate your employment at 8 weeks’ notice since you have worked with Sakuraya for more than one year.
Also, please return all company belongings on your best availability…”
Ms Dinh denies failing to make contact, stating that on 12 January 2018 following receipt of the above email, she called Ms Lai to ask what she should do, as she did not know what solutions would solve “these problems.” Ms Dinh said Ms Lai said that she would arrange for Ms Dinh to do an unpaid 4.5 hour cleaning shift, to compensate for the shop closing for 4.5 hours “because of” Ms Dinh. [19]
Ms Dinh submitted an audio recording and transcript of the telephone conversation she had with Ms Lai on 12 January 2018.
Ms Dinh submitted that Sakuraya sent further copies of the warning letters, and attempted to call her, but she was too scared and stressed to answer or reply.
On 14 January Ms Dinh provided a doctor certificate by email to Sakuraya. This certificate provided that in the doctor’s opinion, Ms Dinh “was suffering from emotional upset and needs stress leave from 11/1/18 to 18/1/18. The patient will be reviewed on 18/1/18 to be reassessed.”
Sakuraya submitted that it believed Ms Dinh attempted to use the doctor’s certificate to “cover the issue” of her failing to respond to correspondence and attempted contact of 8 and 10 January 2018.[20]
On 17 July, after the Hearing concluded, Sakuraya submitted a medical certificate attached to the following email:
“As attached is the doctor's certificate that has been granted to Mr Liu. The location and the doctor are as same as Ms Dinh's.
The reason we do this is because we believe that we have the responsibility to stop this wrongful act. As the doctor's certificate of Ms Dinh become the main evidence to receive sick leaves and claim the benefits from WorkCover, we are concerned about this act will create an undesirable yet effective method to obtain money from government agencies.
We felt like being set up. As an owner of a small business, we think we are not being protected…”
It appears as though Sakuraya was attempting to provide evidence that Ms Dinh’s medical certificate was not legitimate. Several emails from my chambers were sent to Sakuraya, on 17, 18 and again on 25 July, requesting it give consent for this medical certificate to be sent to Ms Dinh. No response was received from Sakuraya. I have decided not to give any weight to this attempt to file further evidence after the Hearing was concluded.
Ms Dinh said that in her email providing the medical certificate, she stated that she looked forward to returning to work and believed she needed some time off and that she would be better.[21]
Sakuraya sent correspondence in the form of a text message to Ms Dinh on 15 January 2018 enquiring what should be done next, and it submitted that no response was received until 22 January 2018 when Ms Dinh made an enquiry and request for “holiday pay” in advance of a holiday to be taken from 1 – 24 February 2018 “as the agreement before.” Ms Dinh advised in this email that she would be available to work from 25 February 2018.
Sakuraya submitted that this email was sent 17 days after “the incident”, and as Ms Dinh was unable to be contacted prior to this time it was believed that her aim was “to finalize her payment.” Sakuraya submitted that as Ms Dinh had disappeared “for more than half a month” her position had been handed over to other employees.
Ms Dinh again denies failing to make contact. She submitted that following receipt of the text of 15 January from Ms Lai, she spoke with Ms Lai on the phone. She advised Ms Lai that she could not return until she had a further medical assessment, to which Ms Lai asked whether Ms Dinh intended to terminate her employment and requested a letter of resignation.
Ms Dinh said on 18 January 2018 she went back to her doctor and was referred to a psychologist.
Ms Dinh said she called Sakuraya on 22 January 2018 and spoke again with Ms Lai. She reminded Ms Lai that she was going on holiday in February and had pre-approved leave from 1 - 24 February 2018.
Ms Dinh said on 23 January she saw a psychologist, and on 24 January her doctor completed a worker's compensation medical certificate which she was advised would be provided to the employer by WorkCover.
Sakuraya submitted that a calculation of Ms Dinh’s annual leave was provided to her by email on 24 January 2018. Sakuraya provided in this email that the payment would be made after 24 hours, but that she could make contact regarding any questions.
On 29 January 2018, Sakuraya sent an email to Ms Dinh advising:
“Since you did not reply us, we are looking forward to finalizing the annual leave and tax.
The last payment has been transferred to your bank account.”
Sakuraya submitted that it considered, due to Ms Dinh’s lack of communication and her request for finalising her holiday, she had resigned from Sakuraya. Further, it submitted that contact with the Fair Work Ombudsman on 13 February 2018 led it to consider Ms Dinh as having abandoned her employment with Sakuraya due to her inexplicable disappearance for more than a month.
Ms Dinh denied abandoning her employment, stating that she was lawfully absent due to her work injury and pre-approved annual leave. She submitted that she had corresponded with Sakuraya to the extent that was “reasonable in the circumstances.”
During cross examination Mr Liu put it to Ms Dinh that she did not have any annual leave left in 2018. Ms Dinh submitted it was her understanding that she applied for a holiday to Vietnam in July 2017 which had been approved, and believed as she had already worked there for more than one year, she was entitled to holiday pay.
Mr Liu disputed that the holiday was approved, and asked Ms Dinh to provide the email that showed this. Ms Dinh said that Ms Lai mentioned her holiday to Vietnam during her telephone conversation. Ms Dinh repeated that as she was a part time employee for Sakuraya for more than a year, she was entitled to holiday pay for her holiday to Vietnam.
Mr Liu asked Ms Dinh why she did not provide a medical certificate until 10 days after the incident on 5 January 2018. Ms Dinh said she first tried to apologise and provide a solution, but Sakuraya did not accept that. Ms Dinh said she tried to keep contact with Sakuraya and did not disappear. Ms Dinh said after her apology was not accepted she sent a medical certificate stating she was unfit for work until 18 January. She said she did not reply to emails during her medical leave as she was unfit to do so.
Mr Liu asked why she didn’t give the medical certificate dated 11 January to Sakuraya on 12 January after she spoke to Ms Lai and instead waited until 14 January. Ms Dinh said she did not provide the medical certificate straight away because she wanted to use the 12 January as a final opportunity to find a solution. She said when it wasn’t accepted on 12 January she then submitted the medical certificate to Sakuraya. In re-examination Ms Dinh said she didn’t provide the medical certificate at the same time because she wanted to find a solution and wanted to return to work.
I do not accept Sakuraya’s submission that Ms Dinh ceased contact with it between 5 January and 14 January. It is clear from the evidence that Ms Dinh contacted Ms Lai on 12 January by telephone in an attempt to resolve outstanding issues.
I do not accept Sakuraya’s evidence that Ms Dinh submitted her medical certificate on 14 January 2018 as a “cover.” Ms Dinh provided a legitimate medical certificate from a medical practitioner that deemed her unfit for work from 11 January to 18 January.
Further, I do not accept Sakuraya’s submission that Ms Dinh was attempting to finalise her payments when she requested “holiday pay” on 22 January 2018. Sakuraya said they assumed this was the case because she “disappeared for more than half a month” and was unable to be contacted for 17 days after the incident. I do not accept this was the case. Ms Dinh contacted Sakuraya on 12 January, and then provided a medical certificate which covered her until 18 January.
Further, Ms Dinh stated in the email sent to Sakuraya on 22 January that she would be available to work from 25 February 2018. This is a clear indication Ms Dinh was not attempting to bring her employment to an end.
I accept Ms Dinh’s evidence that she was referring to annual leave when she requested holiday pay on 22 January 2018.
WorkCover claim
Sakuraya submitted that an email was received from WorkCover on 5 February 2018, advising that Ms Dinh had made a claim due to suffering “Depression, Anxiety The Head” in relation to a work related accident described as “Verbally Abused, threatened by my boss.” Sakuraya submitted that it was not until receipt of this email that it was made aware of what was happening with Ms Dinh.
Despite receipt of this email, Sakuraya submitted that all payments had been finalised on 29 January 2018, and it considered Ms Dinh to have resigned from or abandoned her employment on 5 January 2018.
Ms Dinh submitted that as her WorkCover claim was accepted, she received weekly compensation payments for the weeks from 11 January 2018 until 28 March 2018.
Termination letter
Sakuraya provided Ms Dinh with a termination letter on 20 February 2018. Ms Dinh said she received the letter on 22 February 2018.[22]
Sakuraya submitted that following service of the termination letter on 20 February 2018, Ms Dinh did not make further contact with Sakuraya regarding her employment. Sakuraya submitted that this confirmed the fact that Ms Dinh has resigned.
An email to Ms Dinh of 27 February 2018 requested return of the company’s belongings, to which Ms Dinh also did not provide a reply. An identical email was resent on 1 March 2018, to which Ms Dinh replied:
“ Dear Sakuraya Holding Pty Ltd
I will return company belongings on Friday 02 March 2018.
Kind regards,
Alice”
Regarding the termination letter and payment of entitlements, Ms Dinh submitted that she was still overseas on leave at the time the termination email was sent and further that she was paid for her annual leave but not paid anything in lieu of notice.
During cross examination Ms Lai agreed that she contacted Fair Work to find a solution to the WorkCover claim. It was put to Ms Lai that the fact she contacted Fair Work suggested there was a problem. Ms Lai said the problem was that Ms Dinh was no longer working for Sakuraya as she had already resigned.
It was put to Ms Lai that she didn’t send the termination letter to Ms Dinh when she allegedly resigned, but rather when the WorkCover claim was received. It was put to Ms Lai that the real reason for the termination letter was because the WorkCover claim was received. Ms Lai said she sent the termination letter because Ms Dinh automatically resigned.
Ms Lai said Ms Dinh automatically resigned on 5 January and there are many people who can prove this. It was put to Ms Lai that because Sakuraya continued to contact Ms Dinh after 5 January seeking solutions, it would be their evidence that they were contacting an ex-employee for solutions. Ms Lai agreed.
I do not accept Sakuraya’s evidence that Ms Dinh resigned on 5 January 2018. Although Ms Dinh concedes she used the words “I quit” on 5 January, her subsequent actions and the subsequent actions of the employer suggest this was not treated as a genuine resignation. Ms Dinh sent an apology email and text message following the incident, and Sakuraya continued to make contact with Ms Dinh after 5 January for “solutions.” Sakuraya’s evidence that it was contacting an ex-employee for solutions is not plausible. Further, the fact Sakuraya sent Ms Dinh a termination letter on 20 February listing reasons for dismissal indicates that they were of the view that Ms Dinh was still an employee up until that time.
For the reasons outlined above I find that Ms Dinh did not abandon her employment, and this could not be classified as a valid reason for dismissal.
Small Business Employer
Sakuraya submitted in its Form F3 that it had 12 employees at the time of Ms Dinh’s dismissal. Ms Dinh did not dispute this at the Directions hearing on 27 June 2018. Whist not directly raised as an objection, I must consider whether Sakuraya complied with the Small Business Fair Dismissal Code (the Code).
I am satisfied that this case does not involve a summary dismissal so it is not necessary to consider the Code in this context.
For other forms of dismissal, the Code provides as follows:
“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.”
For reasons explained above I am satisfied Sakuraya had no valid reason for dismissal and that Sakuraya did not comply with the Small Business Fair Dismissal Code.
Section 387 provides 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.”
With regard to s.387(a) on the basis of my finding set out above I am not satisfied there was a valid reason for dismissal related to Ms Dinh’s capacity or conduct.
Was Ms Dinh notified of the reason(s) for dismissal?
Sakuraya provided the reasons for Ms Dinh’s termination in her termination letter dated 20 February 2018. Ms Dinh submitted that the reasons provided in the notice of termination were not raised as possible grounds for termination, prior to the dismissal.
The Act does not require an employer to notify an employee of the reasons for their dismissal prior to their termination. I am satisfied Ms Dinh was notified for the reasons for her dismissal even though the reasons were entirely unreasonable as determined above.
Was Ms Dinh given the opportunity to respond to the reasons?
Ms Dinh submitted she was not given an adequate opportunity to respond to the reasons for her dismissal. Sakuraya submitted numerous attempts were made to contact Ms Dinh following the incident on 5 January 2018, to provide responses. Ms Dinh conceded that she has told orally and in writing that she must “provide solutions.”
I accept Sakuraya provided Ms Dinh with an opportunity to respond, albeit it was a near impossible task for Ms Dinh to respond in a meaningful way. Sakuraya was opaque in its request for “solutions” and it was not made clear to Ms Dinh what would have been considered a satisfactory response.
Was Ms Dinh allowed a support person?
There was no evidence that Ms Dinh was denied a support person.
Was Ms Dinh warned about unsatisfactory performance before the dismissal?
On the face of the evidence it would appear to be unnecessary for me to consider this criteria as Ms Dinh was not terminated for unsatisfactory performance. To the extent that there may be any room for doubt on that matter, the evidence does not establish that Ms Dinh was warned about unsatisfactory performance.
Did the size of Sakuraya’s enterprise have an impact on the procedures followed in effecting Ms Dinh’s dismissal? Did Sakuraya have a dedicated human resource team?
Sakuraya did not provide any evidence that the size of its business and any lack of dedicated human resources personnel affected the procedures followed in effecting Ms Dinh’s termination. However I am satisfied from the totality of the evidence that the procedures followed and obvious lack of a dedicated human resources specialist had an impact on the manners in which Sakuraya dismissed Ms Dinh.
Any other matters
Ms Dinh submitted that the Commission should also have regard to the following matters in determining the harshness of her termination:
· She has suffered a great deal as a result of the dismissal, including suffering migraines and lack of sleep due to stress;
· She has been unable to secure further steady employment, which has left her in a vulnerable position due to her being a student visa holder;
· She was dismissed, effective immediately, while overseas and she did not receive the minimum period of notice; and
· She was dismissed while unfit to work due to a work injury caused by unreasonable behaviour of her employer.
Sakuraya submitted that if the Applicant is found to have been unfairly dismissed, the business would “probably lose everything --- the reputation, the trust, the customers, and other things that a small business owner like us needs to depend on”.
Harsh, Unjust or Unreasonable
I have considered each of the criteria set out in s.387 of the Act. Having considered my findings on each of the criteria in s.387 I have concluded that the dismissal was harsh, unjust and unreasonable. Given this conclusion I now turn to remedy.
Remedy
Ms Dinh submitted that there has been a serious and irrevocable breakdown in the working relationship, and therefore reinstatement would be inappropriate. Ms Dinh stated that compensation would be appropriate. Having considered the evidence I am satisfied reinstatement is inappropriate and a remedy of compensation should be ordered. Regarding calculation of the relevant amount, Ms Dinh submitted that the following should be given consideration:
· She intended and expected to continue working at Sakuraya until her graduation at the end of the 2018 academic year;
· She would have expected additional hours when her course was out of session, when the 40 hours per fortnight restriction did not apply;
· She has not been able to secure steady employment since her dismissal. She has made reasonable efforts to do so, but this has been affected and hampered by her medical condition and the need to gain employment which is compatible with her university commitments;
· She was incorrectly classified and paid as an introductory level employee under the Restaurant Industry Award 2010 during her employment with Sakuraya. She submits that instead she should have been classed as food and beverage attendant grade 3, taking into account her supervisory and training responsibilities; and
· Breaches of her 573 visa due to the actions of Sakuraya.
Remuneration that would have been received if the dismissal had not occurred
Pay level classification
The parties agreed that Ms Dinh’s employment with Sakuraya was covered by the Restaurant Industry Award 2010.
Ms Dinh submitted that the relevant classification for her employment was Food and beverage attendant grade 3. Ms Dinh gave evidence that following a manager quitting in March 2017, she was required to train and supervise junior staff, and completed shift reports.
Due to her role and duties that included assisting in the training and supervision of more junior staff, which she undertook for more than three months, Ms Dinh maintained that the correct classification for her employment under the Award is Food and beverage attendant grade 3.
Sakuraya denies that Ms Dinh’s employment could properly be classified as Food and beverage attendant grade 3, and made submissions that if Ms Dinh’s classification of her employment was deemed correct, then “everyone could be a ‘level 3’ employee in their own industry and the employers will suddenly become underpaid companies and criminals.”
Ultimately the assessment for remedy must be based on the criteria under s.392(2)(c). I cannot be satisfied on the evidence before me that the remuneration Ms Dinh would have received or would have been likely to receive had she not been dismissed, would have been at a classification level other than the one she was being paid at, which was grade 1. It is of course open for Ms Dinh to pursue an underpayment claim with the Fair Work Ombudsman.
Breach of visa conditions
Ms Dinh submitted that once she started working as supervisor, Mr Liu would require her to work extra hours suggesting a breach of her 573 visa, which is subject to a limit of 40 hours work per fortnight while the holder’s course is in session.
Ms Dinh submitted that section 235 of the Migration Act 1958 (Cth) makes it an offence for the holder of a visa to contravene any condition restricting the work that person may do in Australia. Further, Ms Dinh made reference to the Criminal Code (Cth) and its application to offences under the Migration Act.
Ms Dinh gave evidence that Mr Liu was aware she was only allowed to work 20 hours per week under her visa, and that he would pay her in cash “to hide the extra hours”. Ms Dinh made submissions that she was fearful of the consequences of refusing to work the extra hours requested of her. She submitted that there is ample evidence before the Commission to support a finding that she acted under duress, or was at least unduly influenced by Sakuraya to contravene her visa conditions. Notably, she makes reference to the unchallenged evidence that she received threats from Mr Liu on 5 January 2018 which she regarded as serious.
Outside the 40 hours per fortnight restriction, Ms Dinh submitted that during the most recent holiday periods, her average hours worked were as follows:
6/6/17 – 19/6/17
81
20/6/17 – 3/7/17
74.5
4/7/17 – 17/7/2017
92.5
24/10/2017 – 6/11/2017
58.50
Average weekly hours
38
She submitted that during the 2018 academic year, her course would have been out of session from 22 June 2018 – 23 July 2018, and then from 16 November 2018.
Applying the formula set out in Sprigg v Paul’s Licensed Festival Supermarkets,[23] I am of the view Ms Dinh would likely have continued to work at Sakuraya for the final year of her university studies to earn an income. Due to the strained relationship between Ms Dinh and Sakuraya, it is not likely the employment relationship would have continued past this time. Ms Dinh submitted she would have worked at Sakuraya until 31 December 2018. I accept this evidence. This amounts to a period of 10 months or 45 weeks.
I accept Ms Dinh’s evidence that she was working an average of 38 hours per week in the lead up to her dismissal while on semester holidays. Based on Ms Dinh’s university calendar, Ms Dinh would have worked a total of 10 weeks whilst on semester break. I will calculate 10 weeks at 38 hours per week at the rate of $18.29.
However, I am not satisfied Ms Dinh has provided sufficient evidence to demonstrate she was working more than 20 hours per week during semester. Further, I do not consider it appropriate to award compensation for an amount that is more than what Ms Dinh was legally entitled to receive under the conditions of her visa. For those reasons, I will calculate the remaining 35 weeks that Ms Dinh would have worked during semester at 20 hours per week at the rate of $18.29. I have therefore reached a calculation of $19,753.20.
Remuneration earned
Ms Dinh gave evidence that she has acquired new employment with Trang’s Restaurant. She began working with Trang’s on 16 April 2018. Ms Dinh confirmed that as a result of new employment, she has received $2057.40 total in wages. It is necessary to deduct the amount of $2057.40. It is also necessary to deduct the amount of worker’s compensation Ms Dinh received, which amounted to $4,719.42. This leaves a total of $12,976.38.
Remuneration reasonably likely to be earned
It is also necessary to deduct the amount of income reasonably likely to be earned by Ms Dinh. Ms Dinh gave evidence that from May 2018 she was earning $228.60 a week from her current employer. I am satisfied it would be reasonably likely she would have continued to earn this amount from the time of the hearing until 31 December 2018. I will therefore deduct an amount of $5,943.60. This leaves a total of $7,032.78.
Length of service and other factors
I do not consider Ms Dinh’s length of service a basis to further reduce the amount. Further, I will not attempt to assess this amount net of taxation, but simply require that this amount be paid subject to any deduction of taxation required by law.
In accordance with the decision in Ellawala v Australian Postal Corporation[24] I deduct 10% for contingencies on the basis that the nature of the relationship was strained and introduces an element of uncertainty as to what would have been the length of the employment relationship going forward. This leaves a total of $6,329.50.
Viability
Sakuraya made submissions regarding their financial viability, including that:
“it is difficult to survive in here due to the labor [sic] cost and the customer flow” and “[if] everyone is allowed to use this method to get this sum of money ($23,000 for the compensation as required in the hearing) and if this situation keeps happening, the result we might face is to shut down this business.”[25]
Sakuraya has not provided the Commission with any evidence to suggest the amount of $6,329.50 would have an impact on the viability of its enterprise. A mere submission that difficulties for the business will occur is not sufficient.[26] I am not inclined to the view this is a factor for consideration.
Mitigation efforts
I am satisfied Ms Dinh made reasonable efforts to mitigate her loss by seeking alternative employment. There will be no deduction made under s.392(2)(d).
Misconduct
Based on the findings above, Ms Dinh did not commit any misconduct requiring a deduction under s.393(3).
Compensation cap
The amount of compensation proposed is under the compensation cap. Further, I do not consider that there is any reason for compensation to be made by way of instalments.
There are no other matters that I consider relevant. I intend to issue an order that Sakuraya Holdings Pty Ltd pay to Ms Tran Hoang Duyen (Alice) Dinh the sum of $6,329.50 gross taxed according to law plus superannuation at the rate of 9.5% on the amount within 21 days.
COMMISSIONER
Appearances:
Mr T. Murray of Caxton Legal Centre for the Applicant
Mr A. Liu appearing on behalf of the Respondent
Hearing details:
2018,
Brisbane:
July 4
<PR620363>
[1] Form F3 Employer Response to Unfair Dismissal Application; Exhibit 1, Statement of Tran Hoang Duyen Dinh (“Alice Dinh”) at Attachment TD 11.
[2] Exhibit 1, Statement of Alice Dinh at paragraph 17.
[3] Exhibit 1, Statement of Alice Dinh at paragraph 18-19.
[4] Exhibit 1, Statement of Alice Dinh at paragraph at 20.
[5] Exhibit 1, Statement of Alice Dinh at paragraph at 23.
[6] Exhibit 1, Statement of Alice Dinh at paragraph at 27.
[7] Exhibit 1, Statement of Alice Dinh at paragraph at 31.
[8] Exhibit 1, Statement of Alice Dinh at paragraph at 33.
[9] Exhibit 1, Statement of Alice Dinh at paragraph at 35.
[10] Exhibit 3, Statement of Trang Thi Thuy Trinh (“Christine Trinh”) at paragraph 7.
[11] Exhibit 3, Statement of Christine Trinh at paragraph 8.
[12] Exhibit 3, Statement of Christine Trinh at paragraph 11.
[13] Exhibit 3, Statement of Christine Trinh at paragraph 25-30.
[14] Exhibit 1, Statement of Alice Dinh at paragraph at 43.
[15] Exhibit 4, Statement of Anthony Pieters at paragraphs 9, 12.
[16] Exhibit 4, Statement of Anthony Pieters at paragraph 14-15.
[17] Exhibit 5.
[18] Exhibit 5, Statement of Sakuraya Holdings Pty Ltd at paragraph 4.
[19] Exhibit 1, Statement of Alice Dinh at paragraph at 57.
[20] Exhibit 5, Statement of Sakuraya Holdings Pty Ltd at paragraph 5.
[21] Exhibit 2, Statement in Reply of Tran Hoang Duyen Dinh (“Alice Dinh”) at paragraph 14.
[22] Exhibit 1, Statement of Alice Dinh at paragraph at 66.
[23] Sprigg v Paul’s Licensed Festival Supermarkets (1998) 88 IR 21.
[24] Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at para. 31.
[25] Exhibit 5, Statement of Sakuraya Holdings Pty Ltd at paragraph 5.
[26] K. Beames v BDRP Falconer P/L, PR916075 (AIRC, Hamilton DP, 28 March 2002) at para. 49.
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