Note: An appeal pursuant to s.604 (C2010/5245) was lodged against this decision - refer to Full Bench decision dated 15 March 2011 [[2011] FWAFB 1422] for result of appeal.

[2010] FWA 7358

Download Word Document



Fair Work Act 2009
s.394—Unfair dismissal

Miss Sally-Anne Fitzgerald
Dianna Smith T/A Escape Hair Design



Application for unfair dismissal remedy.

[1] This is an application by Sally-Anne Fitzgerald (the Applicant) for relief from unfair dismissal.

[2] Ms Fitzgerald was employed by Ms Dianna Smith, the owner of Escape Hair Design (the Respondent) as a hairdresser. She commenced her employment in January 2009. Her employment was terminated on 9 February 2010.

[3] The reasons for Ms Fitzgerald’s termination are set out in a letter to her from Ms Smith, dated 9 February 2010. Those reasons are (i) the unauthorised removal of property from the premises, (ii) punctuality, (iii) public display of dissatisfaction of base of employment - Facebook [sic], and (iv) rescheduling of clients. 1

[4] Ms Fitzgerald’s application was subject to conciliation where the matter did not settle. It was subsequently referred to me for arbitration.

Statutory provisions

[5] The Fair Work Act provides that:

[6] And that:

[7] Escape Hair Design is a small business. It appears that at the time of Ms Fitzgerald’s termination there were only two employees of the business in addition to Ms Smith who also worked in the business as a hairdresser.

[8] Provisions relating to the Small Business Fair Dismissal Code state:

The issues

[9] In determining if Ms Fitzgerald was unfairly dismissed it is necessary to determine if the conduct complained of did in fact occur.

(i) unauthorised removal of product from the premises

[10] Ms Fitzgerald’s evidence is that she had taken from the salon some product (a hair colour or 8GB hair dye) for her personal use. She did not get permission from Ms Smith prior to taking the product 2 although she did advise another staff member she had taken it3 and she noted the product on a list of items (the list) she needed to pay for.4

[11] There was a suggestion that Ms Fitzgerald had arranged for Ms Smith to order in the tubes of colour under false pretences in that she had either said it was for her own personal use or for use in the store. Ms Fitzgerald claims she asked Ms Smith to order the product in for her own personal use. There was then some suggestion that even if this was the case this was misleading as Ms Fitzgerald had used the colour on a friend’s hair.5

[12] It is established that Ms Fitzgerald asked that the product be ordered in,6 but Ms Smith denies she agreed that Ms Fitzgerald could take the product and use it at home. Ms Smith denies that Ms Fitzgerald put the product on the list where other products taken but yet to be paid for were noted.7

[13] Ms Fitzgerald also gave evidence that she was advised that she would need a specific type of peroxide to use with that colour, which the salon kept in stock. She took approximately 60 ml of the liquid, which she told Ms Samantha Maudsley about.8 Her evidence is that she did not know how much the peroxide would cost as she had removed the 60 ml from a 1 litre container of the product, but once she was advised how much that would cost she would also write that on the list.9 As this transpired close to Christmas and she was reminded of the need to note the peroxide whilst she was at home on Christmas Eve, she advised that she would write the peroxide down when she returned from the Christmas break. 10

[14] Ms Maudsley’s evidence is that Ms Fitzgerald told her she was taking the 8GB hair dye, 11 that she saw Ms Fitzgerald measure out and take some peroxide,12 that she could not recall agreeing to tell Ms Fitzgerald how much the peroxide cost13 but that she did call Ms Fitzgerald late in the year to remind her that she should ‘tell the boss’ what she had taken.14

[15] Ms Smith’s evidence is that she became aware that Ms Fitzgerald had taken the product in early January when she was advised by Ms Maudsley.15 Ms Smith claims that the product was taken ‘for use on a private client in direct competition to the business of Escape Hair Design resulting in profiteering at the expense and loss of income to Escape Hair Design.’16

(ii) Punctuality

[16] Ms Smith issued a formal written warning to Ms Fitzgerald with respect to her punctuality on 24 December 2009. This followed an incident on 22 December 2009 when Ms Fitzgerald was late for work. This followed on from a number of other occasions including 22 April 2009 and 17 November 2009 when Ms Smith was either late for work or had left early without the approval of Ms Smith.

[17] Whilst Ms Smith claims in her statement that Ms Fitzgerald had admitted that she was late because she had partied the night before, Ms Fitzgerald denies that she said this or that this was the reason for her late arrival at work.17 In any event Ms Fitzgerald does not deny that she was late for work on a number of occasions.18

[18] Following the issue of the warning letter Ms Fitzgerald was not subsequently late for work.19

(iii) Public display of dissatisfaction - Facebook

[19] It is Ms Fitzgerald’s evidence that on 23 December 2009 she was paid some of her holiday pay by cheque and some in cash.20 Ultimately she agreed that she was paid up until 23 December 2009 by EFT21 but maintains she was not paid her holiday pay as she would have expected (in cash).22 Ms Fitzgerald says the pay she received on 23 December was made up of her normal pay plus overtime, while Ms Smith suggested that Ms Fitzgerald had been overpaid. 23

[20] Ms Fitzgerald also expected to receive a larger Christmas bonus than the one she received.24

[21] Following on from this Ms Fitzgerald posted a comment on her Facebook page that read: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]”. 25 This posting was accessible to her Facebook ‘friends’. There is some dispute as to how long this posting remained on Ms Fitzgerald’s Facebook page. Ms Fitzgerald says she took it off her Facebook page ‘straight after, in December-January’26 following the corruption of her Facebook page and her private emails.

(iv) Re-scheduling of clients

[22] It is not contested that on 1 February 2010 a very close friend of Ms Fitzgerald’s died in tragic circumstances. Ms Fitzgerald was a witness to this. Consequently Ms Fitzgerald attended the salon on 3 February and arranged with Ms Smith to have some time off work. Ms Smith offered to allow Ms Fitzgerald to take annual leave of four weeks that was owing but Ms Fitzgerald only sought to have one week off.27 Ms Fitzgerald’s evidence is that it was agreed she would return to work on 9 February 2010 and see how she was doing.28 While Ms Smith thought she should take more time ultimately Ms Fitzgerald returned to work on 9 February 2010.29

[23] Ms Smith does agree that, on 9 February when Ms Fitzgerald returned to work, Ms Fitzgerald was not coping.30

[24] Having arrived back at work on 9 February and given that she was not coping, Ms Fitzgerald commenced re-booking her clients with appointments in the near future so they were ‘grouped’ or ‘bunched’ together. She undertook this action without the approval of Ms Smith with Ms Smith only finding out that this was what she had done when a client rang later in the day and advised Ms Smith that Ms Fitzgerald would not be working the following week.31


[25] The letter of termination32 provided to Ms Fitzgerald by Ms Smith is dated 9 February 2010. It chronicles, as reasons for termination, each of the above mentioned four issues.

[26] It is uncontested that Ms Fitzgerald arrived for work on 10 February 2010 to find that her key would not unlock the door. She rang Ms Smith who came from the back of the salon to let her in.

[27] Ms Smith’s evidence is that she wanted to talk to Ms Fitzgerald about the reason for the dismissal but that, ultimately, Ms Fitzgerald had a ‘meltdown’.33

[28] Ms Smith handed to Ms Fitzgerald a plastic envelope containing the letter of termination and her final pay.

[29] Ms Smith’s evidence is that she had changed the locks on the door at the salon on 9 February 201034 and that the letter of termination was written on 9 February 2010.35 When asked why she decided to terminate Ms Fitzgerald on 9 February Ms Smith replied that ‘It was later that afternoon, when I realised she wasn’t going to work with me at all on trying to manage the situation, that I realised I had to take that step.’36

[30] The date of the termination letter was the day Ms Fitzgerald had returned to work following the death of her friend, it was the day Ms Smith agreed Ms Fitzgerald was not coping and the day Ms Fitzgerald rearranged some of her clients’ appointments.


[31] Submissions for the Applicant are that the only matter to which I should have regard is the issue of the removal of property (the hair product) from the employer without paying. The reasons I should disregard the other matters are that, with respect to punctuality, following the written warning on 24 December Ms Fitzgerald had not been late, but in any event the warning letter did not suggest that any further infraction would lead to dismissal. With respect to the Facebook comments the Applicant contends that this was a communication amongst Ms Fitzgerald’s ‘friends’ and it did not identify the salon such that, even if others had seen the comments they could not have known which hairdresser it specifically referred to. With respect to the rescheduling of clients the Applicant relies on the evidence that Ms Fitzgerald clearly was not coping that day, she was struggling emotionally and clearly her clients needed to be re-scheduled.

[32] With respect to the removal of the product from the store the Applicant submits that this cannot be construed as theft - Ms Fitzgerald did not attempt to hide that she had taken the product and had, in fact, written on the list pinned to the wall that she had taken the product.

[33] It is argued that, except for the rescheduling of clients, the reasons for termination were known well before the actual termination and, except for the issue of a warning letter which had its desired effect of Ms Fitzgerald not being late again, drew no comment, let alone rebuke in any form from the employer.

[34] The Applicant submits that the termination of Ms Fitzgerald’s employment was harsh because of the ‘time and the circumstances in which it occurred...where Sally-Anne was known to be in a state of considerable distress...[it] had the predictable effect that it compounded the distress she was already suffering.’37

[35] The submissions of the Respondent are that the evidence shows that Ms Fitzgerald was a ‘very dishonest person’. 38 She was dishonest in that she took product from the salon that she never intended to pay for, she took time from the employer, she misrepresented the employer with her comments on Facebook and, without approval, she rescheduled clients of the salon.

[36] The Respondent argues that the four matters identified in the letter of termination were more than enough grounds to justify the dismissal, having occurred over a reasonable period of time. Further, the Respondent submits that the death of Ms Fitzgerald’s friend, whilst sad, was accommodated by Ms Smith but had nothing to do with the dismissal of Ms Fitzgerald. 39

[37] The Respondent argues that misconduct justifying dismissal has been made out. It is not relevant that Ms Smith did not act on accounts of misconduct that occurred earlier and on which she now relies.

[38] The Respondent also argues that, given the dishonesty of Ms Fitzgerald in taking product and time from the employer, I should be careful in accepting any of her evidence.

[39] With respect to remedy, should this be relevant, the Respondent submits that the reason the Applicant has not been able to work is connected with the death of her friend and this is not something the employer should be required to compensate for.


[40] Ms Fitzgerald has been terminated for reasons that go to her conduct in that she was not punctual in her attendance, she took product without authorisation from the salon, she posted disrespectful comments on her Facebook page that would reflect negatively on her employer and she rearranged appointments without approval.

[41] I find that Ms Fitzgerald had been late for work on a number of occasions. Following the receipt of the warning letter on 24 December until the date of her termination she had not been late for work or left early without authorisation. The warning letter would appear to have done what it was intended to do. Ms Fitzgerald responded to the warning in the way that was expected. There can be no complaint against her on this count. Problems with her punctuality had been resolved. The Respondent cannot, in my opinion, rely on punctuality as grounds for dismissal.

[42] With respect to the removal of the product from the salon the evidence is conflicting. Ms Fitzgerald says she asked that the product be ordered in for her own personal use. By personal use Ms Fitzgerald appears to be distinguishing between the salon and what she may do for herself or her friends at home. I do not consider Ms Fitzgerald was attempting to be deceptive in saying it was for her ‘personal’ use when in fact she intended to use it on a friend’s hair. Further, Ms Fitzgerald says she wrote the product down on the list of products she was paying off. This is not the action of a person attempting to steal from the salon. I accept Ms Fitzgerald’s evidence on this matter. When asked for the list on which Ms Fitzgerald detailed the products she had taken on an agreed basis Ms Smith could not produce it.

[43] With respect to the peroxide to be used with the hair colour Ms Fitzgerald says she took it because she was told by Ms Maudsley that she needed the peroxide used in the store for the hair colour. Ms Maudsley disputes this and says she never had such a conversation with Ms Fitzgerald, although she agrees that she rang Ms Fitzgerald late in the year to remind her to ‘tell the boss’ she had taken the colour and the peroxide.

[44] Ms Maudsley, in her statement, 40 assumed that other product Ms Fitzgerald had in her home had been taken from the store by Ms Fitzgerald. She had no evidence that this was the case but just assumed it to be so.

[45] On the matter of the peroxide I prefer the evidence of Ms Fitzgerald.

[46] I find that Ms Fitzgerald told Ms Maudsley she had taken the peroxide and asked Ms Maudsley to advise her of the cost.

[47] Ms Smith was aware of the removal of the hair colour and peroxide in early January but took no action about it nor raised it with Ms Fitzgerald.

[48] I find that Ms Fitzgerald had not paid for the hair colour or the peroxide but find she intended to do so and had written the colour on the list but had not yet put the peroxide on the list.

[49] There is no dispute that Ms Fitzgerald did place comments on her Facebook page. Ms Fitzgerald’s Facebook page was available to her Facebook ‘friends’. Ms Smith became aware of the comments on the Facebook page because someone (who she would not reveal) told her. Had she not been told she may still be none the wiser as to the comment.

[50] Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

[51] It is well accepted that behaviour outside working hours may have an impact on employment ‘to the extent that it can be said to breach an express term of [an employee’s] contract of employment’. 41

[52] A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of a Rose v Telstra consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

[53] How far I should take the Facebook posting beyond ‘out of working hours conduct’ was not subject to any detailed submissions in this matter.

[54] I do not know how many people ultimately accessed Ms Fitzgerald’s Facebook page or what they thought of what they read. I do know that Ms Fitzgerald did not name the salon where she worked and there is no suggestion that this information was readily available on her page. Whilst clearly the comments were directed at the hairdressing industry I do not consider that the comments were such that they would adversely affect the industry as a whole or Ms Smith’s salon specifically.

[55] Ms Fitzgerald gave evidence that about five to 10 of her clients are also Facebook ‘friends’ such that they would definitely have had access to the site, could have read the comments (though there is no evidence that they did) and would know the salon to which it referred. Ms Fitzgerald says these were close personal friends of hers as well as clients and had she left Ms Smith’s salon she expects they would have followed her to her new employment.

[56] Whilst the comments were silly in the context of them being made on a public forum I do not consider they were such to damage Ms Smith’s business.

[57] That said, they may well have affected Ms Smith’s trust and confidence in Ms Fitzgerald. Had Ms Smith said something about the comments when she first became aware of them in early January this may have had some weight, but she chose not to. She clearly did not think they were such to damage the employment relationship to the degree that they warranted any immediate action.

[58] On the matter of rescheduling clients without permission, this event took place on the day Ms Fitzgerald returned to work following the death of her friend. She was clearly not coping on the evidence of Ms Smith. Ms Smith’s reaction to this was not to send Ms Fitzgerald home or insist she take more time off, but to decide later in the day that she should dismiss Ms Fitzgerald, to change the locks and write a detailed four page termination of employment letter.

Harsh, unjust or unreasonable

[59] In determining if the dismissal of Ms Fitzgerald was harsh, unjust or unreasonable I must consider and determine each of the matters under s.387 of the Act.

A valid reason

[60] For a reason to be valid it must be ‘sound, defensible and well founded’ and not ‘capricious, fanciful, spiteful or prejudiced’.42

[61] In this case the Respondent believes she had a reason or reasons for the dismissal of Ms Fitzgerald. However, that is not the measure that I must apply. The reason must be a ‘valid’ one. In this case I do not consider that the reasons given are sound or defensible. The clear evidence is that, on matters of conduct being brought to the Applicant’s attention, she has altered that conduct (in this case attendance). There was no reason to assume this would not be the case had the conduct with respect to the product and Facebook been brought to her attention. The Respondent chose not to do so.

[62] Unauthorised removal of product from the employer should be viewed with utmost seriousness. Theft from an employer is not to be condoned.

[63] In this case however the Respondent did allow employees to take product (primarily shampoo and conditioner), write the amount on a list, and pay that off over time. Such removal of product is ‘authorised’. I have found that Ms Fitzgerald intended to pay for the product and wrote the hair colour on the list and intended to add the peroxide to the list. That she did add or intended to add these to the list does not make their removal ‘authorised’. She did however tell Ms Smith the product was for her personal use. Ms Fitzgerald’s removal of the product was, certainly to an extent, in accordance with practice in the salon. The value of the product taken was about $15. 43

[64] I do not consider that the removal of product in these circumstances constituted a valid reason for dismissal.

[65] I do not consider the posting on Ms Fitzgerald’s Facebook page to be detrimental to Ms Smith’s business. It certainly was a foolish outburst. It was also inaccurate. The comments appear to have remained on the Facebook page for at most a couple of weeks until the page was totally removed (as opposed to a change of ‘status’ which it appears occurred in late December). Viewing of the page was limited to Ms Fitzgerald’s ‘friends’.

[66] I do not consider that the comments on the Facebook page in these circumstances provide a valid reason for dismissal.

[67] With respect to the rescheduling of clients the Respondent’s reaction to this at the time it occurred can only be described as harsh. Ms Fitzgerald clearly was not coping. Ms Smith was at work that day. She noted that Ms Fitzgerald was not coping. She was aware of the circumstances surrounding the death of Ms Fitzgerald’s friend. Compassion may have been a better response. Instead she decided that Ms Fitzgerald would not ‘work with [her] on trying to manage the situation’ 44 so she terminated her employment.

[68] In hindsight Ms Fitzgerald should not have returned to work so soon after her friend’s death. But she did go to work, it was apparent to Ms Smith that she was not coping but there was no intervention at this stage by Ms Smith to alleviate the situation. Instead she decided to terminate her employment.

[69] I do not find the rescheduling of clients in these circumstances to be a valid reason for dismissal.

[70] I find that there was no valid reason for the termination of Ms Fitzgerald’s employment related to her conduct.

Was the person notified

[71] Ms Fitzgerald was notified of the reason for her termination when she was terminated. This does not indicate sufficient notification of reasons.

[72] Ms Smith stated that ‘all issues were discussed on 19 November 2009, but there was no improvement.’46 This statement cannot be given any weight in the context of the reasons for dismissal. Ms Smith only became aware of the removal of the product and the Facebook comments in January 2010 and the rescheduling of clients occurred the day the termination letter was written. These matters could not have been discussed in November 2009. Further, there is no record of the discussion that did occur on 19 November 2009.

[73] It is clear that the decision had been taken by Ms Smith to terminate Ms Fitzgerald’s employment prior to notifying Ms Fitzgerald of the reason. She had written the termination letter, made out her final pay and changed the lock on the day before the termination.

[74] Ms Fitzgerald was not notified of the reason for the dismissal prior to the dismissal itself.

Opportunity to respond

[75] Ms Fitzgerald was not given an opportunity to respond. This is a matter of fact. Ms Smith suggests that she wanted to ‘discuss’ the matter with Ms Fitzgerald on 10 February 2010 but this does not alter the fact that she did not give Ms Fitzgerald an opportunity to respond.

[76] Ms Fitzgerald was not accorded any procedural fairness in the way the termination was effected.

Support person

[77] There is no evidence that Ms Fitzgerald was given the opportunity to have a support person with her at the time she was notified of her termination. Ms Smith said that when she advised Ms Fitzgerald that her employment was terminated Ms Fitzgerald had a ‘meltdown’. This can hardly have been surprising to Ms Smith. Ms Fitzgerald had lost a friend in tragic circumstances that she, Ms Fitzgerald, had been a witness to; she had returned to work the day before having her employment terminated and, on Ms Smith’s evidence, was not coping. Ms Smith then decided to terminate Ms Fitzgerald’s employment without affording Ms Fitzgerald the opportunity to have a support person present. That Ms Fitzgerald had a meltdown should not have surprised Ms Smith.

The size of the undertaking and presence of HR support

[78] The salon run by Ms Smith is a small business attended by Ms Smith and one or two employees. This and the lack of HR support clearly impacted on how Ms Smith went about the termination. However, the absence of human resource professionals and the size of the business does not excuse the lack of fairness in the approach taken to the termination.

Other matters

[79] I have taken into account the timing of the decision to terminate Ms Fitzgerald’s employment. This is canvassed with the other issues above.

Small Business Fair Dismissal Code

[80] There is an additional question to be answered in relation to this matter and that is whether or not the dismissal was consistent with the Small Business Dismissal Code (the Code).

[81] I note that the Respondent made no submissions on this matter and does not argue in defence of the claim that the dismissal was consistent with the Code.

[82] It may be argued that the unauthorised removal of product was such to make it fair for the employer to dismiss the employee without notice. On this matter however the employer clearly did not see the unauthorised removal of product as justifying summary dismissal. If she had it would be reasonable to expect she would have dismissed Ms Fitzgerald in early January when she discovered the removal of the hair dye and the peroxide.

[83] On the basis of my findings above I am not satisfied that the dismissal was consistent with the Code.


[84] In all of the circumstances I find the termination of Ms Fitzgerald’s employment to be harsh, unjust and unreasonable.

[85] An Order reflecting this will be issued.


[86] The Applicant in this matter does not seek reinstatement. She does seek compensation in the order of 26 weeks’ pay (the maximum allowable) with no more than a small discount, if any, for mitigation.

[87] The Applicant argues that, in determining the amount of compensation, I should take into account the harshness of the termination on the Applicant.

[88] There is no argument that the Applicant has not worked since her employment was terminated. The evidence of Ms Fitzgerald is that, at the time of the hearing on this matter, she had not yet tried to go back to work and was in the process of getting onto a job network provider.47 The reason for not having sought work given by Ms Fitzgerald is that she had been suffering from anxiety and depression.48 It would appear that this has been occasioned by the death of her friend.49

[89] There is also evidence that Ms Fitzgerald has the capacity to treat clients privately but that she has not done so since the termination of her employment because of her stress and anxiety.50

Amount of compensation

[90] On Ms Fitzgerald’s own evidence she has not been capable of working since her termination of employment. This is related to the death of her friend. The Respondent should not, and cannot, be penalised by having to compensate Ms Fitzgerald for a period of time when it is likely she would not have been capable of working. Any compensation awarded must recognise this.

[91] I accept that the termination, in addition to the death of her friend, has had a traumatic effect on Ms Fitzgerald. In determining the amount of compensation I have had regard to the criteria in s.392 of the Act. I find, in the circumstances, that Ms Fitzgerald should be awarded compensation for her unfair dismissal of $2340.48, less tax.

[92] An Order to this effect will issue forthwith.



J. McDougall for the Applicant.

A. McDonald for the Respondent.

Hearing details:



7 July.

 1   Exhibit F2, termination of employment letter attached thereto.

 2   Transcript PN458.

 3   PN449.

4 PN476, 484, 506, 521.

5 PN579.

6 PN1014.

7 PN1017.

8 PN497-8.

9 PN527.

 10   PN527.

 11   PN1139.

 12   PN1144-5.

 13   PN1151.

 14   PN1148-9.

15 PN1021.

16 Exhibit F2, termination of employment letter attached thereto.

17 Transcript PN317, 327.

18 PN610.

19 PN1029.

20 PN389

21 PN410.

22 PN411.

 23   PN858.

24 Exhibit F2, paragraph 27.

 25   Exhibit F2, paragraph 25.

26 Transcript PN333.

27 PN629-31.

28 PN634.

29 PN1034-8.

30 PN872, 1052-4.

31 PN1044-6.

32 Exhibit F2.

33 Transcript PN1066-1073.

34 PN1055-6.

35 PN1064.

36 PN1055.

37 PN1212.

 38   PN1265.

 39   PN1314.

 40   Exhibit S4.

 41   Rose v Telstra, AIRC Print Q9292 ( 4 December 1998).

42 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 43   Transcript PN1320.

 44   PN1055.

45 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, AIRC Print S5897 (11 May 2000).

46 Exhibit S1, paragraph 24.

47 Transcript PN737.

48 PN262.

49 PN672, 674.

50 PN668-70.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR501920>