Vicki Sawtell v Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport

[2016] FWC 2786

[2016] FWC 2786 [Note: An appeal pursuant to s.604 (C2016/3651) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicki Sawtell
v
Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport
(U2016/4070)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 4 MAY 2016

Application for relief from unfair dismissal - dismissal inconsistent with the Small Business Fair Dismissal Code - not notified of reason for dismissal - opportunity to respond or improve performance - reinstatement not appropriate - compensation ordered.

[1] On 22 January 2016, Ms Vicki Sawtell applied under s.394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy against her former employer, Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport (Bakers Delight / the employer).

[2] The matter was heard today, 4 May 2016. Ms Sawtell represented herself. Ms Pang appeared for Bakers Delight. She is its owner. Both Ms Sawtell and Ms Pang gave evidence at the hearing and were cross-examined.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

Whether dismissal consistent with Small Business Fair Dismissal Code: s.385(c)

[4] On the basis of the evidence before me, I am satisfied that Ms Sawtell was protected from unfair dismissal, as she was a regular and systematic casual with a reasonable expectation of continuing employment. I am also satisfied that Bakers Delight was a small business employer at the time the dismissal took place.

[5] A dismissal is not unfair if a small business employer has complied with the Small Business Fair Dismissal Code (the Code). However, in this case, the Code was not complied with. In particular, it is quite clear on the evidence that Ms Sawtell was not given a warning, either verbally or in writing, that she was at risk of being dismissed. Nor was she given an opportunity to rectify any concerns that Ms Pang had with her performance or conduct.

[6] As the employer did not comply with the Small Business Fair Dismissal Code, I am required to consider whether Ms Sawtell’s dismissal was harsh, unjust or unreasonable. 1

Valid reason: s.387(a)

[7] I am still unclear as to why Ms Pang dismissed Ms Sawtell. During the hearing, she suggested that the sales figures for the shop were down and sought to attribute this to Ms Sawtell. However, she provided no evidence to substantiate this claim. She also claimed that Ms Sawtell interacted with the customers inappropriately and used her phone during working hours. I have no evidence as to the truth of the first claim. Ms Sawtell freely admitted using her phone while in the shop, but I am not persuaded that in the circumstances this amounted to a valid reason for the dismissal.

[8] A number of other reasons were given by Ms Pang, but none of them – even if there were any truth to them – were sufficiently serious in the circumstances to constitute a valid reason for dismissal.

[9] It is clear that the relationship between Ms Sawtell and Ms Pang had broken down, largely, it seems, as a result of concerns expressed about the shop by its new area manager.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[10] I do not believe that Ms Sawtell was notified of the reasons for her dismissal – such as they were – and most certainly she was not given an opportunity to respond to those concerns.

Warnings about unsatisfactory performance: s.387(e)

[11] She was not given a warning about unsatisfactory performance before she was dismissed.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[12] It is clear that the small size of Bakers Delight and the lack of access to human resources expertise affected the way in which the dismissal was carried out.

[13] Having regard to all these factors, I am satisfied that the dismissal was harsh, unjust and unreasonable.

Remedy: ss.390-2

[14] I turn now to the issue of remedy. Reinstatement is not sought and would be inappropriate. It would however be appropriate to make an order for compensation.

[15] In determining an appropriate amount, I have had regard to:

• the fact that a large order for compensation could negatively affect the viability of a small business such as Bakers Delight;



• Ms Sawtell’s service of around 4 and a half years;



• the remuneration of around $600 a week that Ms Sawtell earned while she was employed at Bakers Delight;



• the relatively limited efforts Ms Sawtell has made to mitigate her loss by finding another job; and



• the income she has earned since she was dismissed.

[16] I have determined that the employer should pay compensation of $6000.00 gross plus superannuation to Ms Sawtell. An order to this effect will issue concurrently with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

V Sawtell in person.

P Pang for Pang Enterprises T/A Bakers Delight.

Hearing details:

Sydney.

2016.

May 4.

 1   Fair Work Act 2009 (Cth) s.385(b).

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