[2012] FWA 9517 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jaimee Williams
v
The Chuang Family Trust T/A Top Image Hair Design
(U2012/8259)
COMMISSIONER CLOGHAN |
PERTH, 12 NOVEMBER 2012 |
Unfair dismissal.
[1] This is an application by Ms Jaimee Williams seeking a remedy for alleged unfair dismissal from her employment.
PROCEDURAL BACKGROUND
[2] On 22 May 2012, Ms Jaimee Williams (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from her employment by the Chuang Family Trust T/A Top Image Hair Design (“the Employer” or “Top Image”).
[3] Ms Williams was dismissed by Mr Andrew Chuang of Top Image with immediate effect on 10 May 2012.
[4] Ms Williams commenced a three (3) year hairdressing apprenticeship on 2 August 2010.
[5] Ms Williams’ application is pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[6] The application was set down for conciliation on 14 June 2012. However, the Employer advised that it did not wish to participate in the conference as it wanted to get legal advice.
[7] The matter was referred to me for arbitration on 9 July 2012.
[8] On 11 July 2012, I issued procedural directions for a hearing into the application on 13 September 2012.
[9] The Employer did not respond nor provide the material required in accordance with the procedural directions. Top Image did not contact or advise the Tribunal why it was unable to provide the material required.
[10] Neither Mr Chuang nor a representative from the Employer attended the hearing on 13 September 2012 nor did he make any contact with the Tribunal to advise why he was unable to be present.
[11] At the hearing on 13 September 2012, I was reluctant to proceed with Ms Williams’ evidence in the absence of a representative from the Employer. Despite this hesitation, the Tribunal has a responsibility to carry out its functions promptly and economically; for these reasons I heard Ms Williams’ evidence.
[12] I forwarded to Mr Chuang a transcript of Ms Williams’ evidence and all documentary material received into proceedings. This material was attached to an Advice to Parties which advised both parties that the application would be adjourned to 30 October 2012. I also issued an order requiring Mr Chuang to attend Fair Work Australia on 30 October 2012 to give evidence and remain in attendance until excused.
[13] Mr Chuang did not attend or advise the Tribunal why he could not be present on 30 October 2012. Ms Williams attended and continued to be represented by her father, Mr Paul Williams.
[14] RELEVANT STATUTORY FRAMEWORK
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
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.
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy. (my emphasis)
(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.”
[15] The Code provides as follows:
“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
...
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.”
RELEVANT BACKGROUND
[16] Ms Williams commenced a three (3) year hairdressing apprenticeship with Top Image on 2 August 2010. Ms Williams’ probationary period expired on 2 November 2010 and she expected to complete her apprenticeship on 1 August 2013.
[17] Ms Williams was initially employed at the Joondalup salon of Top Image. The salon employed between three (3) and eight (8) employees. At the time of her dismissal, Ms Williams gave evidence that there were three (3) employees at the Joondalup salon. The Employer has three (3) other salons and Ms Williams estimated that there were two (2) employees in each of the salons when she was dismissed 1.
[18] At the time of her dismissal, Ms Williams was located at the Northbridge salon.
[19] Ms Williams gave evidence that on 10 May 2012, at approximately 7:00 am, she attempted to contact her Employer to advise that she was sick and unable to attend work. Being unable to contact Mr Chuang, she contacted her salon manager who was Mr Chuang’s girlfriend. Ms Williams’ Manager responded, with an SMS message, “it’s not really my problem you have to tell him”. Ms Williams then attempted to contact Mr Chuang on numerous occasions but was unable to speak to him.
[20] Subsequently, Ms Williams sent the following text message to Mr Chuang at 7:30 am on 10 May 2012:
“Hi Andrew, tried calling. It’s Jaimee. I won’t be at work today, the doctor gave me antibiotics on Wednesday but I’ve had a reaction to them and was up all last night throwing up. I’m going to the doctor today to get all of it sorted. Will call you when I hear from them.” 2
[21] At 1:40 pm, Mr Chuang responded:
“As you know my business is down and sorry to see you sick, but the new owner is not so happy. I’m not sure they’re going to like it.” 3
[22] Ms Williams telephoned Mr Chuang but he would not take her call 4.
[23] Subsequently, Ms Williams received a telephone call from the Manager, Northbridge salon, who advised her that Mr Chuang said “he doesn’t want you working for him any more” and “you’re not needed back working here from now on”. 5
[24] Prior to receiving Mr Chuang’s text message, on the previous day Ms Williams, due to sickness on that day, was in discussion with her Manager at the Northbridge salon. Ms Williams gave evidence that her Manager claimed that she was “sick too often” 6. Ms Williams gave evidence that she had been sick on four occasions since commencing her apprenticeship.
[25] On 11 May 2012, Ms Williams was advised by Mr Chuang that he could not afford her 7.
[26] On 14 May 2012, Ms Williams met with Mr Chuang and received $500 net as her entitlements for the previous week’s work.
CONSIDERATION
Was Ms Williams dismissed and was the dismissal consistent with the Small Business Fair Dismissal Code?
[27] Paragraph 396(c) of the FW Act requires the Tribunal to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code before considering the merits of the application.
[28] In the case of 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.”
[29] For a summary dismissal to be fair and lawful, the Tribunal needs to have evidence of the employer’s belief, and for that belief to be based on reasonable grounds, that the employee’s conduct is sufficiently serious to justify immediate dismissal. Despite the opportunity to attend a conciliation conference, two hearings and respond to procedural directions, the Employer elected not to provide any evidence or submissions on Ms Williams’ dismissal. In the absence of any evidence or submission from the Employer and considering the evidence of Ms Williams, I am satisfied that she was dismissed summarily on 10 May 2012 and the dismissal was not consistent with the Small Business Fair Dismissal Code.
[30] Having been satisfied in accordance with s.385 of the FW Act that Ms Williams was dismissed and the dismissal was not consistent with the Code, two further factors remain to be considered. Firstly, whether the dismissal was a case of genuine redundancy, and secondly, whether the dismissal was harsh, unjust or unreasonable.
[31] From the evidence, I am satisfied that the reason given to Ms Williams for her summary dismissal on 10 May 2012, related to her being on sick leave on 9 and 10 May 2012. I have no evidence to demonstrate that Ms Williams’ dismissal was a genuine redundancy.
[32] I now turn to whether Ms Williams’ dismissal was harsh, unjust or unreasonable. The criteria which must be taken into account in determining whether the dismissal was harsh, unjust or unreasonable provided for in s.387 of the FW Act and is set out as follows.
Was Ms Williams’ dismissal harsh, unjust or unreasonable?
[33] As the Employer led no evidence, I am required to consider the evidence of Ms Williams.
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)
[34] Ms Williams was entitled to personal leave and attempted to advise the Employer that she was unable to attend work. Ms Williams’ evidence was that the reason for her dismissal was either because she was “sick too often” or the Employer could no longer “afford her”, or, in time, a combination of both.
[35] Ms Williams was entitled to access personal leave as a term of her employment. In the absence of evidence from the Employer, I am not satisfied that the reason or reasons for Ms Williams’ dismissal was valid.
Whether the person was notified of that reason
[36] Ms Williams was not informed of the reason relating to personal leave until the time of her dismissal. The Applicant was given the “financial” reason after her dismissal.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[37] Ms Williams was not given the opportunity to respond to the taking of personal leave as the reason for her dismissal. With respect to the “financial” reason, such a reason does not relate to her capacity and/or conduct.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[38] The nature of Ms Williams’ dismissal did not provide her with an opportunity for a support person to be requested or allowed.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[39] I have no evidence to demonstrate that the dismissal related to Ms Williams’ unsatisfactory performance.
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
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
[40] While Parliament and the FW Act acknowledge that small businesses are genuinely different in nature both organisationally and operationally, the procedures followed in effecting Ms Williams’ dismissal, on the evidence, were devoid of any fairness.
Any other matters that FWA considers relevant
[41] I have not taken any other matters into consideration relating to Ms Williams’ dismissal.
CONCLUSION
[42] For the reasons outlined above, I find that Ms Williams’ dismissal was harsh, unjust and unreasonable. Having reached this finding, it is necessary to consider a remedy for Ms Williams’ unfair dismissal.
REMEDIES
[43] Section 390 of the FW Act provides as follows:
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[44] Ms Williams is not seeking an order for reinstatement as she has obtained alternative employment. Accordingly, I am satisfied that compensation is appropriate in all the circumstances.
[45] Section 392 of the FW Act provides for compensation as follows.
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
[46] In respect of each of the factors above which I must take into account, I find as follows:
[47] On 6 November 2012, I belatedly received a communication from the Employer which apologised for “all the trouble that cost”.
[48] While the Employer sets out his alleged loss from the Joondalup salon, I have a copy of the liquidator’s report which includes claims by Ms Williams for $3,170.62 in holiday pay and “retrenchment monies” of $1,079.36. In the circumstances I find that an order will not affect the Employer’s enterprise.
[49] Ms Williams commenced a three (3) year apprenticeship in hairdressing on 2 August 2010 and could have expected to complete that apprenticeship on 1 August 2013.
[50] The Australian Concise Oxford Dictionary defines remuneration as “reward”, “pay for service rendered” or “recompense”. At the time of her dismissal, Ms Williams had accrued five (5) weeks annual leave and leave loading, for service rendered. Ms Williams would have received that remuneration in the future when taking her annual leave had she not been dismissed.
[51] Paragraph 392(2)(c) of the FW Act, requires the Tribunal to consider, in all the circumstances of the application, what pay Ms Williams “would have received” or “would have likely to receive” - had it not been for the dismissal. The plain fact is that Ms Williams would have received payment for the service she had given to enable her to take, and be paid for, annual leave in the future. Further, the likelihood of Ms Williams taking and receiving payment for annual leave is supported, and reinforced, by the fact that, if not for her dismissal, she was indentured as a hairdressing apprenticeship for a period of three (3) years to finish on 1 August 2013.
[52] Ms Williams, if not for the dismissal, could have expected to remain in employment until 1 August 2013 and, at some time during that period, taken and receive payment for five (5) weeks annual leave and leave loading; this amount would have been, at least, $3,170.62.
[53] Ms Williams was fortunate to obtain alternative employment and the continuation of her apprenticeship on 22 May 2012 or six (6) days (excluding the weekend) after being dismissed.
[54] Ms Williams gave evidence that she did not receive remuneration between being dismissed on 10 May 2012 and recommencing employment on 22 May 2012.
[55] This criterion is not applicable in this application.
[56] I have not considered or taken into account any other matter.
CONCLUSION AS TO REMEDY
[57] Ms Williams’ weekly wage is $539.68.
[58] Notwithstanding Ms Williams’ apprenticeship “contract”, I find that should Ms Williams have been afforded procedural fairness, she would have received two (2) weeks notice of termination of employment or payment in lieu. However, any such amount needs to be set off against the fact that she recommenced employment six working days after her dismissal from the Employer. Accordingly, I find that there was a shortfall of six (6) days. Ms Williams would have received a further six days pay or a gross amount of $647.62. Further, the Employer would have had to pay the 9% superannuation guarantee levy on this amount, making a total of $705.91.
[59] In conclusion, I am satisfied that an order should be made for Ms Williams that she should receive from her former Employer as follows:
[60] Accordingly, an Order will issue to reflect the above amounts conjointly with this decision and reasons for decision.
COMMISSIONER
Appearances:
P Williams for the Applicant.
No appearance or representation by or on behalf of the Respondent.
Hearing details:
2012:
Perth,
13 September; and
30 October.
1 PN 26-30
2 PN 39
3 PN 42
4 PN 43
5 PN 48
6 PN 46
7 PN 60
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