[2010] FWA 3674

Download Word Document



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

Ms Kim Lee Jarvis
Crystal Pictures Pty Ltd


PERTH, 25 MAY 2010

Unfair dismissal remedy.

[1] This is an application by Ms Kim Lee Jarvis (“the Applicant”) alleging that she was unfairly dismissed from her employment at Crystal Pictures Pty Ltd (“the Employer”) on Friday 22 January 2010.

[2] Ms Jarvis has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”). For reasons which will become apparent, Ms Jarvis is not seeking the remedy of reinstatement for the alleged unfair dismissal, but compensation in lieu of reinstatement.

[3] The application was unable to be settled in conciliation and was subsequently referred to me for arbitration. Following a conference on 24 March 2010, arbitration took place on 30 April 2010.

[4] The Applicant gave evidence along with Ms Tamrar Hansen. For the Employer, Mr Fahim Mostamandi, Mr Farid Mostamandi and Ms Karina Darie gave evidence.

[5] Mr Fahim Mostamandi, who is a part owner and Director of Crystal Pictures Pty Ltd, was assisted at the bar table by his brother, Mr Fatah Mostamandi. Both Mr Fahim and Fatah Mostamandi cross examined and re-examined witnesses.

[6] Having heard submissions, evidence and received a number of exhibits, I reserved my decision on Ms Jarvis’ application. In reaching this decision, I have considered all the material provided to the Tribunal.


[7] Ms Jarvis commenced employment with Crystal Pictures Pty Ltd on 18 June 2009. Initially, Ms Jarvis was employed on a casual basis at the Employer’s Ocean Keys store. At the end of July 2009, Mr Fahim Mostamandi offered Ms Jarvis the position of Manager, Ocean Keys store. On 3 August 2009, Ms Jarvis became the Manager, Ocean Keys store on the understanding that she was required to work each Tuesday at the Employer’s office/warehouse.

[8] The incident which led to Ms Jarvis’ alleged unfair termination of employment is described by the Applicant as follows:

[9] The incident occurred on Tuesday, 19 January 2010 at the Employer’s office/warehouse. Subsequent to the incident, the Applicant prepared and provided to Mr Fahim Mostamandi the following letter, on Friday, 22 January 2010:

[10] Mr Fahim Mostamandi sighted the letter from Ms Jarvis on Friday 22 January 2010 and, according to the Applicant, after reading the letter:


What happened on Tuesday 19 January 2010?

[11] Ms Jarvis states that Tuesday 19 January 2010 was the first Tuesday after the Christmas/New Year period that she was required to attend work at the office/warehouse of the Employer 4.

[12] Ms Jarvis arrived at approximately 9:00am with her son and began working. Mr Fahim Mostamandi arrived sometime between 9:00am and 9:15am and initially chatted to Ms Jarvis’ son, who was picked up by a friend of Ms Jarvis at 9:15am.

[13] After Ms Jarvis’ son was picked up, both she and Mr Fahim Mostamandi were alone until he left the office/warehouse sometime before approximately 9:30am prior to Mr Abdul Farid Mostamandi’s arrival. Mr Farid Mostamandi is Mr Fahim Mostamandi’s brother and Company Accountant.

[14] Notwithstanding cross examination by Mr Fahim Mostamandi, Ms Jarvis did not depart from the substance of the incident as described in her evidence in paragraph [8].

[15] On the same day, Tuesday 19 January 2010, Ms Jarvis telephoned Ms Darie, her immediate supervisor and the Employer’s Regional Manager concerning the incident. Ms Jarvis made a time to meet with Ms Darie at the Ocean Keys store on the afternoon of the incident. In the words of Ms Darie:

[16] Further, also in the words of Ms Darie, the Applicant’s behaviour was described as:

[17] Finally, following her termination of employment at approximately 2:30pm on Friday 22 January 2010, Ms Jarvis made a statement to Clarkson Police Station about the incident at 5:40pm. In a declaratory statement, Ms Jarvis repeats the essential elements of paragraph [8].

[18] Ms Jarvis’ assertion that she was sexually harassed is also contained in the application to Fair Work Australia on 2 February 2010.

[19] Mr Fahim Mostamandi was unable to disturb Ms Jarvis’ evidence, and his evidence, or those of the Employer’s witnesses, was either to say that the allegations were totally untrue or to assert:

[20] In response to the Employer and his witnesses’ assertions, Ms Jarvis agreed that she had not met store targets set by the Employer, however, this was consistent with other stores. Ms Jarvis disagreed with comments regarding her work performance and provided the Tribunal with files notes by Mr David Rabey of PVS Workfind, who recorded on 7 September, 2009 that Mr Fahim Mostamandi made the following comment:

And finally, Ms Jarvis admitted an error in the police statement when she said that Mr Fahim Mostamandi arrived just after 10:00am. However, for my purposes, nothing turns on that error.

What happened between the incident on 19 January 2010 and prior to the meeting which led to Ms Jarvis’ termination of employment on 22 January 2010?

[21] Firstly, and importantly, Ms Jarvis brought the incident on 19 January 2010 to the attention of her immediate supervisor and Regional Manager, Ms Darie, on the same afternoon. The facts of this discussion are set out in paragraphs [15] and [16].

[22] Mr Farid Mostamandi gave an account, in his words, of Ms Jarvis’ behaviour on 19 January 2010 after Mr Fahim Mostamandi left the premises. I did not find Mr Farid Mostamandi untruthful and he gave his version how he saw Ms Jarvis that day.

[23] In contrast, I found the evidence of Ms Darie, in part, truthful, however, in large part, evasive, unconvincing and approaching the matter as if it were an exercise in sophistry.

[24] According to Ms Darie, her witness statement was “definitely” 11 true and to the best of her knowledge and belief what happened. In her words, “I basically said it all in the statement, pretty much.”12

[25] However, Ms Darie failed to mention in her witness statement that Ms Jarvis met with her on the day of the incident with Mr Fahim Mostamandi at the office/warehouse. Further, she failed to mention that Ms Jarvis explained what had happened and sought her advice on how to handle the incident. Finally, she failed to mention that Ms Jarvis telephoned her up to four occasions, prior to her dismissal on 22 January 2010. For Ms Darie, these matters were, “unnecessary” 13 or “irrelevant”14 to her witness statement.

[26] Where Ms Darie claims that Ms Jarvis stated that she intended to present a letter to Mr Fahim Mostamandi’s wife, Ms Shaima Mostamandi, I prefer the evidence of Ms Jarvis.

[27] The matter of missing monies from the Ocean Keys store was raised. I prefer the evidence of Ms Jarvis which was supported by Ms Darie, in as much as the conversation took place a month before the Applicant’s employment ceased, but Ms Darie only thought it appropriate to mention to Mr Fahim Mostamandi, “just before Kim’s termination”. 15

What happened on Friday, 22 January 2010?

[28] In the words of the Applicant, what happened on 22 January 2010 is as follows:


[29] Present for the entire meeting in addition to Mr Fahim Mostamandi and the Applicant were Ms Tamrar Melanie Hansen, an employee of the Ocean Keys store and Ms Karina Darie.

[30] Following cross examination, again Ms Jarvis’ evidence was not disturbed by the Employer regarding what happened on 22 January 2010. While there was a difference of opinion as to who or who was not invited to go for coffee and discuss the matter, and whether Ms Hansen attended, or did not attend to customers, Mr Fahim Mostamandi essentially put to the Applicant that the content of the letter at paragraph [9] was untrue, and nothing had happened. Ms Jarvis strongly disagreed with this proposition.

[31] When asked by the Tribunal as to her recollection of events on Friday, 22 January 2010, Ms Hansen gave the following evidence:

[32] In the words of Ms Hansen, she was “two metres” 19 from Ms Jarvis and Mr Fahim Mostamandi, that it was, “hard not to listen”20, the bang on the computer was sufficiently loud enough to “make me jump”21, and finally, her evidence that Mr Fahim Mostamandi did not ask Ms Darie to go with him (and Ms Jarvis) for a discussion on the letter provided by the Applicant.

[33] I found the evidence of Ms Hansen trustworthy. It was given conscientiously and with integrity.

[34] Ms Darie’s witness statement states that Ms Hansen was required to attend to customers at the counter and “left” 22 implying that she was not present for the discussion between Ms Jarvis and Mr Fahim Mostamandi. When it was put to her that Ms Hansen was present for the discussion, Ms Darie replied, “I’m not quite sure. That’s Tamrar’s statement, obviously.”23

[35] Ms Darie’s witness statement also says that Mr Fahim Mostamandi stated, “…if she [Ms Jarvis] didn’t want to speak to him about her claims…he had no choice but to terminate her employment according to the instant dismissal regulations in the Crystal Pictures Terms and Conditions book” 24. When asked by Ms Jarvis, “did he actually say anything about the terms and conditions, and the misconduct and all that sort of thing?”25, Ms Darie avoided answering the question.

[36] When asked by Ms Jarvis what she had said during the meeting with Mr Fahim Mostamandi, Ms Darie answered remarkably but truthfully, “Honestly, I don’t think I can.” 26 Ms Darie continued to say that Mr Fahim Mostamandi was “pretty calm”27 and “asked you to put your key on the bench and to leave and not come back”28. I am unable to accept Ms Darie’s version of what happened as being accurate or truthful.


[37] This application, stripped to its essentials, is a dispute regarding the facts of what happened on 19 January 2010 between Ms Jarvis and Mr Fahim Mostamandi. It is this dispute on the facts, that led to the Applicant’s termination of employment on 22 January 2010.

[38] If the situation was such that it was one party’s unshakeable evidence against the other, I would be reluctant to find for the Applicant, as Ms Jarvis has to satisfy the Tribunal, on the balance of probabilities, that she was unfairly terminated from her employment.

[39] However, the factual playing field is not level and Ms Jarvis has provided:

[40] Mr Fahim Mostamandi’s evidence is that Ms Jarvis is not telling the truth and nothing inappropriate happened.

[41] Having considered the totality of the evidence and assessed the credibility of the witnesses, I am satisfied that something did happen on 19 January 2010 which led to the Applicant providing Mr Fahim Mostamandi with the letter reproduced at paragraph [9].

[42] From the evidence, I am also satisfied that Mr Fahim Mostamandi received and read Ms Jarvis’ letter. Further, that he initially sought to discuss the matter outside the Ocean Keys store. When Ms Jarvis refused to discuss it with him alone, and outside the store, a robust discussion took place which included Mr Fahim Mostamandi banging his hand on computer equipment. Evidently, voices were raised and the general discussion revolved around Mr Fahim Mostamandi saying that Ms Jarvis was not telling the truth and he did not do anything wrong, and Ms Jarvis saying she was telling the truth and he did do something wrong. At the conclusion of the meeting, I am satisfied that Mr Fahim Mostamandi did say words to the effect of “give me your keys, get out, you’re fired”.


[43] For Ms Jarvis to be protected from unfair dismissal, it is necessary for her to have completed a minimum of 6 months’ employment at the time she was dismissed and that at least one of the criterion apply in s.382(b) of the Act. I am satisfied, from the evidence that, at least, s382(b)(iii) applies to Ms Jarvis. Ms Jarvis commenced on 18 June 2009 as a casual employee working at least 17 hours per week (Wednesday 10:30am to 2:30pm; Thursday 4:00pm to 9:00pm and Saturday 8:30am to 5:30pm). In addition, she was called in to work regular additional hours at another store. This casual employment totals 6 weeks and one Saturday (1 August 2009). As a consequence, I am satisfied that this period of casual employment was systematic and regular and, together with the period of full-time employment of 5 months and 3 weeks, exceeds the minimum period of employment of 6 months required under s.383(a) of the Act.

[44] Crystal Pictures Pty Ltd is a national system employer with 15 or more employees 29. Consequently, Ms Jarvis is protected from unfair dismissal pursuant to s.382 of the Act.

[45] I now turn to the key provisions of the Act as they relate to this application.


Was there a valid reason for Ms Jarvis’ dismissal related to her capacity or conduct?

[46] From the evidence presented to me, Ms Jarvis found Mr Fahim Mostamandi’s conduct inappropriate on Tuesday 19 January 2010. On the same day, Ms Jarvis prepared a letter asking for that behaviour not to occur again. Ms Jarvis gave evidence that she did not encourage Mr Fahim Mostamandi’s behaviour 30, his actions were unwelcomed31 and, on a number of occasions asked him to cease his actions32.

[47] It must be said that, prior to this occasion, Mr Fahim Mostamandi had conducted himself without incident with Ms Jarvis.

[48] Between the incident on Tuesday, 19 January and Friday 22 January 2010, there was nothing to suggest that Ms Jarvis wanted anything but a commitment from Mr Fahim Mostamandi not to repeat his actions and for her to continue her employment. Unfortunately, the matter was not “sorted” 33 but escalated to her employment being terminated.

[49] Having considered all these matters, I have to conclude that there was not a valid reason to terminate Ms Jarvis’ employment.

Procedural fairness and process generally

[50] While Ms Jarvis is correct to say that she was not notified of the reasons for the termination of her employment, from the evidence put to me, it is obvious that they related to the allegations made concerning Mr Fahim Mostamandi and her unwillingness to recant those allegations.

[51] I do not accept the submission by Mr Fahim Mostamandi that Ms Jarvis’ employment was terminated for the allegations she made and “she did the wrong thing in the past” 34. In my view, this proposition was only formulated after Ms Jarvis’ cessation of employment, and they were certainly not mentioned to her on Friday 22 January 2010.

[52] In a factual sense, Ms Jarvis’ employment ceased after a robust discussion and the opportunity to respond was neither invited nor expected in the circumstances. In this respect procedural fairness was denied to the Applicant.

[53] Ms Jarvis neither sought nor was refused a support person.

[54] While no mention was made of performance at the meeting on Friday 22 January 2010, Mr Fahim Mostamandi and other witnesses for the Employer gave various opinions of Ms Jarvis’ performance. The only documentation concerning performance are the file notes of PVS Workfind which are positive towards the Applicant, and evidence that she was promoted from a casual employee to the Ocean Keys store Manager after a short period of employment.

[55] Mr Fahim Mostamandi produced a hand-written letter from the Applicant to him regarding an apology for her being “stressed” over the Christmas period because of a staffing situation which, she says, was contributed to by the Employer. However, having heard submissions, received evidence and exhibits, I am satisfied that workplace performance was not the issue which led to Ms Jarvis’ termination of employment.

[56] The Employer’s size did not impact on the behaviour of the main persons involved in the dispute which led to Ms Jarvis’ termination of employment.

[57] Although neither party referred to human resource management expertise, Ms Jarvis sought advice from FWA on the matter and, consistent with good dispute resolution practice, discussed the incident with her immediate supervisor, Ms Darie.

Other matters considered relevant.

[58] Other matters relevant to this application which I have taken into account are set out in this Decision.

[59] One matter from the initial hearing that troubled me, was the evidence of Mr Fahim Mostamandi 35 and Ms Darie,36 that on the night before the incident on 19 January 2010 both witnesses had alleged that Ms Jarvis had told them that she had a “big fight” with her estranged husband, and she had to call the police to remove him from the family home. Ms Jarvis denied that she said this or that it had occurred.

[60] I reconvened the hearing and advised both Mr Fahim Mostamandi and Ms Darie that I had contacted the police who had advised me, in writing, that they had searched their communication system and could find no evidence to suggest that Ms Jarvis called for police assistance on 18 January 2010. On being given the opportunity to respond to my finding, Mr Fahim Mostamandi rephrased his evidence given at the hearing and Ms Darie maintained the evidence she gave at the hearing.

Remedy for unfair dismissal.

[61] Section 390 states:

[62] I am satisfied that the Applicant was protected from unfair dismissal at the time of being unfairly dismissed. The Applicant, Ms Jarvis, is not seeking the remedy of reinstatement as provided for in s.390(1) of the Act and, in view of the circumstances leading to Ms Jarvis’ termination of employment as set out in this Decision, I am satisfied, pursuant to s.390(3)(a) of the Act, that reinstatement is not appropriate.

[63] Ms Jarvis has made an application under s.394 of the Act, consequently, as reinstatement is not a suitable remedy, I am satisfied that an order for compensation is appropriate as provided in s.390(3)(b) of the Act.


[64] The relevant parts of s.392 of the Act that are applicable to this application are as follows:

[65] Ms Jarvis’ uncontested evidence was that she was employed 39 hours per week at $18 per hour. Since the date of her termination of employment, Ms Jarvis gave evidence that after a short period she started to look for work immediately. Ms Jarvis provided the names of 24 employers whom she had applied for a position. Ms Jarvis commenced casual administrative employment on 15 April 2010. In the first week of her employment Ms Jarvis was employed at $15.30 per hour and received a nett payment of $206 37. While not receiving her wages for the following week, Ms Jarvis was expecting to earn a further, “just over 200 a week”38

[66] From the date of her termination of employment on 22 January 2010, Ms Jarvis gave evidence that she received a Centrelink pension.

[67] The Applicant advised me that she had received all of her entitlements save 5-hours on Thursday, 21 January 2010 when she had sick leave. The response from the Employer to Ms Jarvis is that the 5 hours “is not supported by a valid GP certificate. Hence unless you present valid documentation, the claim cannot be accepted” 39.

What compensation should Ms Jarvis receive?

[68] In determining an amount for the purpose of making an order for compensation, I must take into account the criteria set out in s.392(2) of the Act. In general terms, the Applicant has been employed by the Employer for a relatively short period of time. Ms Jarvis had been employed full-time from 3 August 2009 to 22 January 2010. Prior to 3 August 2009, Ms Jarvis was employed on a casual basis from 17 June 2009 to 1 August 2009 with a minimum of 17-hours per week and further additional hours on a regular basis. No submission was received either from Mr Fahim Mostamandi as part-owner of the business or Mr Farid Mostamandi, Company Accountant, concerning the impact of an order on the viability of the business.

[69] With respect to s.392(c) of the Act, I have formed the view from the evidence presented, that Ms Jarvis would have continued in her employment if it was not for the incident on 19 January 2010. Further, in her letter to Mr Fahim Mostamandi regarding the incident, Ms Jarvis indicated her desire to continue in employment subject to addressing the incident. Mr Fahim Mostamandi gave evidence to the effect that Ms Jarvis was not a good manager and knew that she was to be dismissed, and hence, had fabricated the incident 40. Having heard all the witnesses and the benefit of their demeanour, I am unable to conclude that Ms Jarvis would not have remained in continuous employment.

[70] Having reached the view that Ms Jarvis would have continued in employment, it is necessary to determine a primary amount of compensation. The primary amount will be:

[71] Consequently, the primary compensable amount to the date of hearing would be approximately $9,422 (income tax payable on $406 nett, would reduce this amount).

[72] Ms Jarvis sought one week’s pay in lieu of notice and I have set that claim aside when examining the total lapsed time between termination and hearing date. I have also not addressed the 5 hours sick leave claimed by Ms Jarvis due to a lack of evidence as to whether she is or not entitled to the leave without a medical certificate.

[73] The Act provides that the compensable amount be calculated to the date of an order. Consequently, there would, ordinarily be a further 2 weeks or $1,404.00 less what Ms Jarvis would received from her current employment. Notwithstanding this calculation by the Tribunal, Ms Jarvis provided documentation seeking compensation of $8,000. In view of the fact that the amount is approximately what I would have arrived at using my discretion, I propose to adopt what Ms Jarvis is seeking.

[74] I should note for the benefit of both parties that Ms Jarvis advised that during between her termination of employment and 15 April 2010, she received Centrelink payments. Ms Jarvis did not disclose the amount received. For my purposes under s.392(e) of the Act, I do not consider Centrelink payments as “…remuneration earned by [Ms Jarvis] from employment or work during the period between the dismissal and the making of the order for compensation”. Further, I do not consider it “relevant” for the purposes of s.392(g) of the Act, as it would be inappropriate for Australian taxpayers to effectively subsidise compensation (foregone wages) payable to an employee, where the employer has instantly dismissed that employee unfairly.

[75] Having said that, if the Centrelink payments received by Ms Jarvis have to be repaid or there is discretion for repayment, that is a matter between Ms Jarvis and the relevant Commonwealth officers.


[76] In accordance with my reasons and findings above, I am satisfied that Ms Jarvis was unfairly dismissed by Crystal Pictures Pty Ltd. I am also satisfied that reinstatement is inappropriate and an Order in the terms set out in this Decision will be issued.



Ms Kim Lee Jarvis, the Applicant

Mr Fahim Mostamandi, the Respondent (assisted by his brother, Mr Fatah Mostamandi)

Hearing details:



30 April

20 May

 1   PN 70

 2   Exhibit A2

 3   Exhibit A1

 4   Exhibit A1

 5   PN 601

 6   PN 559

 7   PN 560

 8   PN 602

 9   PN 603

 10   Exhibit A2

 11   PN 551

 12   PN 554

 13   PN 573

 14   PN 576

 15   Exhibit R3

 16   PN 85

 17   PN 88

 18   PN 250

 19   PN 263

 20   PN 265

 21   PN 272

 22   Exhibit R3

 23   PN 586

 24   Exhibit R3

 25   PN 587

 26   PN 588

 27   PN 590

 28   PN 589

 29   Exhibit A2

 30   PN 72

 31   PN 73

 32   PN 74

 33   PN 618

 34   PN 620

 35   PN 173

 36   PN 609

 37   PN 81

 38   PN 83

 39   Exhibit A2

 40   PN 300 and PN 317

Printed by authority of the Commonwealth Government Printer

<Price code C, PR996942>