[2011] FWA 3496

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FAIR WORK AUSTRALIA

DECISION

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

Ms Lee Mayberry
v
Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend T/A Subway
(U2010/14489)

COMMISSIONER MACDONALD

SYDNEY, 14 JULY 2011

Application for unfair dismissal - wilful misconduct - substantive and procedural unfairness - compensation ordered

[1] This decision arises from an application by Ms Lee Mayberry (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her dismissal by Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend T/A Subway (the respondent).

[2] The dismissal was made over the telephone on Tuesday, 16 November 2010 by Ms Nicole Dawe, Managing Director, to the applicant, who was at home at the time.

[3] The unfair dismissal application was lodged on 25 November 2010 with Fair Work Australia (FWA).

[4] The unfair dismissal file was dealt with by an FWA Conciliation but did not settle. The hearing took place before me in Newcastle on 17 May 2011.

[5] The applicant represented herself and was assisted by her mother, Ms Elizabeth Mayberry. Both the applicant and her mother filed witness statements and were cross-examined.

[6] The respondent was represented by Ms Nicole Dawe, Managing Director. She did not file a witness statement but was the subject of cross-examination. The respondent did not file any witness statements.

BACKGROUND

[7] The applicant began working for the respondent, at age 16, whilst attending school. She began as a casual employee in January 2006. In the same month, 2006, she became a trainee for a permanent part time position. The traineeship was through the New South Wales Department of Education and Training.

[8] The applicant deposed that her traineeship came to an end in October 2006 due to issues between the respondent and the training provider. She continued working as a part time employee until her dismissal.

[9] The respondent’s business is a fast food business (Subway) and is operated by the husband/wife team of Jason and Nicole Dawe. The husband looks after the operations and the wife looks after everything behind the scenes (for example, payroll and bills to be paid). Their home has had part of it put aside as an office. There are two telephones with separate lines - one for the office and one for the home. There are separate phone numbers for the office and home but Nicole Dawe gave oral evidence that either phone’s ring can be heard all over the house.1

[10] At some point in time, the applicant ceased to have her remuneration and conditions of employment governed by an AWA (Australian Workplace Agreement). Ms Nicole Dawe gave oral evidence that the applicant’s AWA expired and then the applicant’s employment was governed by an employee collective agreement. The AWA, she said, expired on 27 January 2010. The applicant disputed this and referred to a notice addressed to “All Employees” and dated 1 October 2006. This notice was issued by Nicole Dawe, Managing Director, and advised in part, “Over the coming weeks you will be issued with new agreements which will require a majority vote for all existing employees. This will eliminated the need to issue individual agreements to new staff members. This arrangement is called Collective or Certified Agreement ...”2

The applicant contended that as the notice was addressed to “All Employees”, then this included herself. The applicant also referred to another document issued by Nicole Dawe on 2 July 2008 as evidence that the employee collective agreement applied to her and not an AWA. That document states in part: “The majority (of employees) voted to be covered by an ECA (Employee Collective Agreement) and therefore the ECA was lodged and all staff existing and new employees are now automatically covered by this agreement.”3 (underlining added)

[11] The applicant deposed to problems with her employer. She asserted that : (a) she was sick with glandular fever for several months in 2008 and was not paid sick leave for this illness despite providing medical certificates; (b) she was not paid annual leave during her entire employment; (c) she was not, to her knowledge, paid superannuation and raised this issue with Jason Dawe; and (d) she was rarely given pay slips.4

[12] The applicant’s mother, Mrs Elizabeth Mayberry, deposed she raised the issue of the non-payment of holiday pay for the prior four and one half years of employment of her daughter, with Jason Dawe on 25 August 2010, when she attended the Subway restaurant. The mother wrote to Jason and Nicole Dawe by letter of 26 August 2010, confirming the details of the previous day’s meeting.5

[13] An issue arose during 2010 when the applicant applied for annual leave for a European tour in November of that year. The applicant and her mother made enquiries about that annual leave application and holiday pay but to no avail.

[14] The applicant deposed she requested around June 2010 annual leave for a European tour and that it had been approved by the Subway store manager (Tracey Morrison) and Jason Dawe. The applicant was due to leave for Europe on Wednesday 17 November. She spoke to Jason Dawe on Friday 12 November and enquired as to payment of her holiday pay. He allegedly responded that she would need to contact Nicole Dawe. She left a message on the office (part of the house) answering machine. There was no reply from Nicole Dawe. The applicant advised Jason Dawe on the Monday, 15 November, that there had been no response from Nicole Dawe. He allegedly responded that only Nicole Dawe can deal with the matter and he had left a note for Nicole Dawe to telephone. The applicant said she rang several more times on that Monday but without getting a response.6

[15] The applicant’s mother, Mrs Elizabeth Mayberry, also made enquiries about the holiday pay. She telephoned for Nicole Dawe on Friday 12 November and left a message on the answering machine. She phoned again on Monday 15 November and left a message as to the whereabouts of her daughter’s holiday pay. She left another message for Nicole Dawe on Tuesday 16 November.7

Subsequently, the daughter telephoned her mother to say that Jason had phoned her (the daughter) and stated that the daughter and mother were to: “Stop attempting to contact us. Your holiday pay is not my problem.”8

[16] On that same day, Tuesday 16 November, Nicole Dawe telephoned the applicant and stated that she had known nothing of the applicant’s planned holiday and she had only just received the voicemails from the applicant and her mother when she (Nicole Dawe) went into the office. Nicole Dawe also advised the applicant that her services were being terminated and allegedly said that the applicant would not be receiving any holiday pay.9

[17] The reason for the dismissal concerned the applicant’s appearance in a photograph which Nicole Dawe said had been brought to her attention by an anonymous email which said, “You fire me for something and look what your employees are doing.” Attached to the email was a photograph of the applicant, partly dressed up as a cardboard car. The applicant had used certain items from the Subway shop to make up the cardboard car. There was a cardboard box with two paper cups attached to one end (being headlights). The applicant had fitted herself into the cardboard box and worn it around her waist area. Another Subway item used to mimic a car look was a plastic salad bowl which she held with both hands (above the cardboard box) and the bowl represented a steering wheel.10

[18] This photograph was taken in the Subway store, behind the counter area.

[19] This photograph was taken by a fellow (former) employee, Alex, who posted the photograph on Facebook. There was a caption on the bottom of the photo: “Lee in mine and Lees subway car. Broom broom toot toot”.

[20] Nicole Dawe gave oral evidence that the reason for dismissal was “wilful misconduct and neglect of duty. I believe that she defamed our business by causing irreparable damage to our company name and stealing company property by using material from the store and causing embarrassment to the store, wasting company time which she was paid for and just misappropriation of responsibility and duty.”11

FINAL SUBMISSIONS

For the Applicant

[21] The applicant’s mother, Mrs Mayberry, put the following in final submissions:

For the Respondent

[22] Ms Nicole Dawe put the following in final submissions:

Applicant in Reply

[23] Mrs Mayberry advised that during the luncheon adjournment (prior to final submissions), she and her daughter had accessed a computer and removed the caption appearing under the photograph (“Lee in mine and Lees subway car. Broom broom toot toot”). They could not remove the Facebook photo. That could only be done by Alex. They had already requested Alex to remove the photo once the FWA hearing was completed. They asked Alex not to remove it before the FWA proceedings took place in order to avoid any claim that they were trying to hide something from FWA. (Discussion was held on the record during the applicant’s right of reply on the removal or otherwise of the photo. Nicole Dawe made a pressing request that the applicant contact Alex in order for the photo to be taken down from the internet immediately.)

CONSIDERATION

[24] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:

[25] The unfair dismissal application was made nine (9) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.

[26] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the applicant is a person protected from unfair dismissal.

[27] Paragraph (c) of section 396 was not raised as an issue by the respondent.

[28] Paragraph (d) of section 396 has no relevance to the present proceedings.

[29] The applicant claimed she had been unfairly dismissed (substantively and procedurally) and sought compensation.

[30] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:

[31] Paragraph (a) of section 385 is satisfied by way of the dismissal of the applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the applicant said her dismissal was harsh, unjust and unreasonable.

[32] In order to determine whether the applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the facts set out in section 387. Those factors are:

(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);

[33] The first factor to be considered as to whether the applicant’s dismissal was harsh, unjust or unreasonable, is whether there was a valid reason for the summary dismissal.

Valid Reason - The March 2010 Facebook Photo

[34] The reason for summary dismissal was given over the telephone to the applicant on Tuesday 16 November 2010. The applicant was at home at the time. The applicant gave her account of the telephone conversation in her filed witness statement. Nicole Dawe did not file a witness statement but gave her account during the hearing. Both accounts are not in complete agreement. Be that as it may, there is agreement that the reason for instant dismissal pertained to using company resources to make a cardboard car. In the witness box, Nicole Dawe said that the applicant had engaged in: wilful misconduct and neglect of duty - stole company property to make the cardboard car - believed that that conduct had defamed the respondent’s business by causing irreparable damage to the company name - made the cardboard car on company time - and could have caused food poisoning to customers by cross-contamination (health issue) and this could have caused the loss of the franchise agreement.

[35] In assessing whether the foregoing reasons for summary dismissal, constitute a valid reason for that summary dismissal, it must be remembered that the respondent has the burden to prove that the facts existed to support the respondent’s decision to summarily dismiss the applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No. 3).12 The standard of proof required is for the respondent to prove that the facts existed, on the balance of probabilities: Briginshaw v Briginshaw.13

[36] As well, in assessing whether the foregoing reasons for summary dismissal, constitute a valid reason for that summary dismissal, it must be pointed out that there was no evidence presented by Nicole Dawe that there was an investigation carried out by the respondent into the incident. Ms Dawe gave oral evidence that she received an anonymous email, with the Facebook photo attached. The applicant was not asked for an explanation. The applicant was denied natural justice and in the circumstance where Ms Dawe said the applicant had engaged in theft. That allegation is a serious allegation which put a heavy burden on Ms Dawe to have the evidence to prove that serious allegation.

[37] Ms Dawe did not produce any evidence to prove her allegation of theft. She merely had a photograph of the applicant dressed up in a cardboard box (as the body of the car) with two paper cups attached at one end (as headlights) and a plastic bowl (the steering wheel held in two hands). The cardboard box was fitted around the applicant’s waist.

[38] With only a photograph, Ms Dawe said that the applicant had engaged in theft. Specifically, Ms Dawe claimed that the two paper cups were new/unused cups and this meant a waste of the respondent’s resources and hence a cost to the respondent. The applicant said she had used two disused cups from out of the rubbish bin. Ms Dawe had no evidence to contradict the applicant’s claim. The photograph does not disclose whether the cups are new or disused cups. No witness was produced by Ms Dawe to say that the cups were new cups. The Subway restaurant has video cameras but this was of no assistance to the respondent’s case against the applicant. This was so as Ms Dawe gave evidence that suggested that only one video camera was working and that video camera only shows the till.14

[39] There was also a claim of theft by way of Ms Dawe stating that the cardboard car was made on company time. The applicant denied this allegation and said she made it up in her own time (unpaid break) at the back of the store. Ms Dawe did not produce any evidence to support her allegation. As stated above, the video camera shows the till. As to the video camera and the applicant’s claim she made up the cardboard car out the back, Ms Dawe gave evidence that the video camera does not show who is out the back of the store.

[40] In summary of the serious allegation of theft, FWA finds that the respondent has not made out its claim. There is no evidence of theft of the respondent’s materials or the respondent’s time (as in paid work time). As there is no evidence that the applicant was engaged in extracurricular activity during company time, then there is no evidence to support the respondent’s claim that the applicant had engaged in a neglect of duty.

[41] Apart from the allegation of theft, Ms Dawe said that the applicant’s conduct had defamed the respondent’s business by causing irreparable damage to the company name. Presumably, this refers to the posting of the photograph on Facebook which was not posted by the applicant. (It was not claimed by Ms Dawe that there were customers present at the time of the incident in the store and that those customers had made complaints.)

[42] Despite the photo appearing on Facebook, there was no direct evidence produced to support the claim that the applicant had defamed the respondent’s business by causing irreparable damage to the company name. There was no direct evidence of damage to the company’s name, let alone irreparable damage. When questioned on this claim, Ms Dawe said: “.. we got reprimanded from our supervisors at Subway .. I’m talking about the complaint that they (presumably, a reference to the supervisors) our brand has been tarnished on Facebook and because our employees caused that brand tarnishing ... “. Ms Dawe was then asked for documentation to support her claim of tarnishing. She responded: “Well, our development agent isn’t going to put into writing that we’re not going to get any more stores ... “15

[43] The foregoing evidence from Ms Dawe does not offer proof of damage to the company’s name, let alone irreparable damage. There was no direct proof of a reprimand by supervisors (note the plural). What is odd about this particular claim by Ms Dawe is that it begs the question as to how Subway’s area management know about the Facebook photo. This oddity was not asked of Ms Dawe. Given Ms Dawe’s pressing request to have the Facebook photo removed and her claim that she and her husband would not be adverse to being offered other Subway franchises, then it is reasonable to assume that neither she, nor her husband acted against their own interest and advised their Subway area management of the Facebook photo.

[44] The final issue in Ms Dawe’s reasons for dismissal was that the applicant’s conduct could have caused food poisoning to customers by cross-contamination. The applicant said she had used discarded material from the rubbish bin and used a plastic bowl which she returned to the cupboard. But in using her bare hands to handle discarded rubbish, she had then touched a plastic bowl with those same bare hands - and hence Ms Dawe’s claims of possible health risk to the customer(s) using that plastic bowl for food afterwards.

[45] The applicant agreed under cross-examination that it was wrong of her to return the salad bowl to the cupboard.

[46] Ms Dawe also raised with the applicant the content of the AWA as to “Subway Compliance Policy”. This has the employee acknowledge by way of signature, that an employee’s actions may result in a Subway store being out of compliance for the monthly evaluation and the Franchise Agreement of the store being terminated. A number of compliance issues/factors are set out and include Food Safety/Glove usage. The policy also states, relevantly for the purposes of the claim of serious misconduct by Ms Dawe, that “if my actions are the result of the store being out of compliance my employment can be terminated without notice.”16

[47] Apart from having the applicant acknowledge that policy, it was not put to the applicant that the respondent’s business had been the subject of a monthly evaluation and an adverse report made that the store had been found to be out of compliance. Apart from the fact that no such claim was put by Ms Dawe to the applicant, there was no evidence brought by the respondent to show there had been a finding of non-compliance made against the respondent. Given that the photo/incident took place in March 2010 and the summary dismissal did not occur until November 2010, then there would have been several monthly evaluations about the store’s compliance/non-compliance about the twelve issues/factors listed in clause 38 and yet there was no adverse report concerning food safety/glove usage.

[48] This issue does not provide a basis for summary dismissal. However, the applicant’s conduct, arguably, would be ground for the respondent to formally warn the applicant.

Valid Reason - Employment History

[49] When the applicant was summarily dismissed over the telephone, the reason given by Ms Dawe pertained to the Facebook photo/cardboard car.

[50] In the witness box, Ms Dawe raised for the first time that she also relied upon the applicant’s employment history to support the summary dismissal. No witness statement(s) had been filed by the respondent to flag the issues it would be raising against the applicant.

[51] The applicant’s employment history was one of the documents filed by the respondent. It is a one page document - not headed up as employment history - but as “Contact Log”.17

[52] The Contact Log had twelve entries concerning the applicant and covered the timeframe of 2 February 2006 to 23 August 2010. The applicant was summarily dismissed on 16 November 2010. Ms Dawe relied upon certain entries for supporting the summary dismissal where such entries were recorded as “warnings” issued against the applicant.

[53] The cross-examination of the applicant showed a difficulty with the accuracy of the “warnings” issued. For example, the last recorded “warning” is the entry of 23 August 2010. It merely says: “Warning no hat.” Ms Dawe advised that where an entry has no name included, then the entry is to be taken to have been issued by Ms Dawe herself. Such is the case with this example. Ms Dawe put to the applicant in cross-examination that Ms Dawe had issued a warning to the applicant for not having her hat on. The applicant denied being issued with a warning. Her evidence was that she recalled being told by Ms Dawe: “Lee, can you please put your hat on?” This response highlights a problem with the respondent’s system of addressing workplace issues with employees. As far as the applicant is concerned, she was given a polite direction to put her hat on. Ms Dawe records the issue as a warning but the applicant’s response shows that she is unaware of that verbal warning. Ms Dawe has failed to advise the applicant, preferably in writing, that the applicant has been issued with a verbal warning. There is, of course, another issue here and that is whether the failure of any employee to wear a hat constitutes a ground for issuing a warning - as opposed to a direction, a reprimand and then a verbal warning. It all depends on the circumstances. In any event, a system whereby an employer records a warning against an employee and the employee is unaware of that negative recording, is a system that is open to a challenge on the ground of fairness.

[54] Without proof that the applicant was issued with a formal warning, on 23 August 2010, then FWA finds that no warning was issued on that occasion.

[55] The next “warning” entry (back in time) is for 4 July 2007. It says: “Verbal warning for incorrect uniform. Not wearing her hat. Jason Dawe.” Given FWA’s finding that no “warning” was given in August 2010, then the latest “warning” entry that can be relied upon by the respondent to support summary dismissal, is this entry of July 2007. It is an entry that is over three years old in time - measured against the date of summary dismissal. FWA finds that it would be unfair to rely upon this “warning” to support a history of misconduct, given the lengthy lapse of time.

[56] And there is another problem with this entry as to its reliance by the respondent to support a summary dismissal. The alleged warning was given by Jason Dawe. He did not give evidence in the proceedings. The applicant gave evidence under cross-examination that this entry and any other entry recording a warning against her name by Jason Dawe and others “were never stated to me as verbal warnings;”18 As the applicant denied she had been given any warnings and Jason Dawe did not given evidence, then the respondent has failed to prove this “warning” entry was given to the applicant. And further to that, the applicant filed a witness statement three months prior to the Newcastle hearing, in which she stated: “I had never previously received any oral or written warnings from my employers or supervisors before my termination ...”19 The applicant had put the respondent on notice as to her position about warnings. The failure of the respondent to have Jason Dawe, Tracey Morrison and Karen Gage (alleged givers of warnings) appear as witnesses in order to challenge the applicant’s claim has formed part of FWA’s deliberation on this alleged “history of misconduct” by the applicant.

[57] FWA finds that the respondent has not shown a “history of misconduct” by the applicant. Further, the respondent has failed to show that any warnings were issued to the applicant during her several years of employment. The applicant’s employment history does not support the respondent’s claim to have had the ground to prove that summary dismissal was justified.

(b) whether the person was notified of that reason

[58] The applicant was notified of the reason for summary dismissal in a telephone conversation from Ms Dawe on 16 November 2010.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[59] The applicant was not given the opportunity to respond to the decision of Ms Dawe to summarily dismiss her. The applicant was unaware that she was about to be dismissed, let alone summarily.

(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

[60] Given that the applicant was unaware of her forthcoming summarily dismissal, she was not given the opportunity to have a support person.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[61] The summary dismissal did not relate to unsatisfactory performance but conduct.

(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

[62] The respondent does not have a dedicated personnel officer/industrial relations department but is a member of the National Retail Association. Ms Dawe contacted that organisation for advice before summarily dismissing the applicant. Given that Ms Dawe took advice from an employer body before summarily dismissing the applicant, then the size of the employer’s business does not impact on the procedure followed in effecting that summary dismissal. Accordingly, the size of the employer’s business does not excuse the lack of procedural fairness by the respondent in its approach to summarily dismissing the applicant.

(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

[63] The commentary set out for (f) immediately above, applies to this factor (g) as well.

(h) any other matters that FWA considers relevant

[64] There is no other matter considered to be relevant.

CONCLUSION

[65] The applicant was summarily dismissed by the respondent in a telephone call. The reason for summary dismissal pertained to the applicant using company resources to make a cardboard car.

[66] The respondent did not file any witness statements. Ms Dawe, a director of the respondent, gave evidence in the hearing. The reason for summary dismissal was expanded to: using company resources during company time to make a cardboard car; the use of company resources/company time constituted theft and the Facebook photo depicting the applicant partly dressed in the make-up cardboard car defamed the respondent’s business by causing irreparable damage to the company name. Apart from expanding on the reason for summary dismissal pertaining to the cardboard car, Ms Dawe put forward a further reason for summary dismissal: the applicant’s “history of misconduct” as demonstrated by the Contact Log.

[67] In summarily dismissing the applicant, the respondent’s placed the burden of proof upon itself to prove, on the balance of probability, that the applicant had engaged in the conduct as claimed by the respondent.

[68] Having considered all of the evidence, FWA has concluded that the respondent has not proven that the applicant engaged in conduct warranting summary dismissal.

[69] As to the cardboard car, the respondent could not prove that the applicant made up the cardboard car in company time. The applicant said she did so in her unpaid break. The respondent said that the use of company resources was theft because the applicant used new paper cups to make the headlights for the cardboard car. The applicant said she used disused paper cups out of the rubbish bin. The respondent could not prove otherwise and so there is no theft involved. The respondent did not produce any evidence of damage, let alone irreparable damage to their Subway business arising out of the posting of the photo of the applicant, wearing the cardboard car, on Facebook. The photo was not posted by the applicant on Facebook.

[70] The applicant’s witness statement, filed three months before the hearing, implies that the applicant’s supervisor, Tracey Morrison, was present on the day of the cardboard car incident and did not issue a warning over the incident. The respondent did not call Tracey Morrison as a witness to rebut this implied evidence.

[71] As to the further reason to justify the summary dismissal, Ms Dawe claimed that the applicant had a “history of misconduct”. FWA considered and rejected that allegation. Again, the applicant put the respondent on notice in her filed witness statement, that she had never been issued with any oral or written warnings - by Morrison, Gage and Jason Dawe - and none of those persons were called by the respondent to rebut the applicant’s expressed claim.

[72] There was an issue raised by Ms Dawe in the proceedings against the applicant during cross-contamination. The applicant used disused cups out of the rubbish bin and one or two plastic bowls in making up the cardboard car. The plastic bowls were returned, unwashed, to the cupboard for future use by customers. There was no evidence of customers becoming ill through using those two bowls for food in the Subway store. However, Ms Dawe was right to be concerned about this breach of health procedures by the applicant who agreed in evidence that she had acted irresponsibly in that regard.

[73] In summary of the foregoing, FWA finds that the respondent has not proven that the applicant engaged in conduct warranting summary dismissal. That finding, in a sense is unfair upon the applicant. It is more accurate to say that the applicant did not engage in any conduct warranting dismissal, let alone summary dismissal. The one issue against the applicant is the breach of health procedures. If the respondent was to act against the applicant, then this breach (given all of the circumstances) would arguably only warrant a reprimand - as in a formal warning.

[74] Apart from the foregoing substantive reasons for summary dismissal, there is also the issue of how the applicant was summarily dismissed. Ms Dawe did not put her reasons for summary dismissal to the applicant for a response, before summarily dismissing the applicant. The applicant was denied procedural fairness. Had Ms Dawe done so, then the applicant would have been afforded an opportunity to defend herself. That defence, would have required an investigation - especially with the defence that included that the incident had taken place six months ago and, it would appear, with the knowledge and no adverse comment from the applicant’s supervisor.

[75] In conclusion, FWA finds that the summary dismissal of the applicant was substantively and procedurally unfair. The summary dismissal was harsh, unjust and unreasonable.

REMEDY

[76] Having found that the summary dismissal of the applicant was unfair (harsh, unjust and unreasonable), FWA now turns to consideration of remedy. The applicant did not seek reinstatement but compensation only. Given the circumstances of this case, the remedy of compensation is the appropriate remedy.

[77] Pursuant to section 392(1) of the Act, FWA confirms that an order for payment of compensation will be made in favour of the applicant, by the employer, in lieu of the remedy of reinstatement.

[78] Section 392(2) sets out the criteria for deciding on the quantum of compensation:

[79] There is no evidence that any order FWA makes, will have any effect on the viability of the employer’s business.

[80] The applicant had just under five years service.

[81] The amount of remuneration that the applicant would have received, or would have likely received but for her dismissal, can not be answered with certainty. The assessment of this factor requires some speculation. The applicant was summarily dismissed in November 2010. The respondent’s evidence going to the applicant’s employment history (and alleged warnings) was contested by the applicant. FWA finds that document to be unreliable for making out any claim that it shows formal warnings to have been issued to the applicant and therefore she would have been dismissed in the near future - had she not been dismissed in November 2010. FWA finds that the applicant would have had more years of on-going employment. The dismissal had a commensurate impact on the remuneration the applicant would have received if still employed based on just under five years service and the unreliability of the employment history of claimed warnings.

[82] The applicant mitigated the loss of remuneration by taking up other employment at a hotel and a bowling club in January 2011.20 FWA offers no criticism as to the applicant’s efforts to mitigate her loss.

[83] In assessing the amount of compensation to be ordered, FWA also takes into account the applicant’s conduct in breaching food safety procedures by placing one or two plastic bowls back in the cupboard after handling them with bare hands that had retrieved disused paper cups from the rubbish bin. The bowl(s) were later used by customers.

[84] The applicant was summarily dismissed for wilful misconduct. FWA has found that the respondent had not made out its case that the applicant had engaged in wilful misconduct. FWA accordingly then found that there was no valid reason for dismissal. Because of that finding, FWA does not need to consider section 392(3) for the purpose of assessing compensation.

[85] FWA was provided with material as to the applicant’s income: pay slips and a tax assessment for the period 2009-2010. Most of the payslips encompassed the tax assessment period. FWA has decided to use the tax assessment document as a reckoning for assessing an order for compensation based on an average gross weekly pay. That tax assessment figure is stated as $22,852.

[86] The respondent put forward a submission going to the basis for calculating compensation. That submission went to averaging the applicant’s salary over the several years of employment. That method of calculation is rejected. It results in a rate of pay not commensurate with the applicant’s rate around the time of her dismissal.

[87] The applicant sought compensation of $11,077.50 based on 20 weeks pay at $553.80 per week (calculated at 37.5 hour per week times $14.77 per hour).

[88] Having taken all of the above matters into account, as well as the circumstance of the case, and also having regard to the “fair go all round” concept (section 381(2)), FWA shall make an order for compensation for $8789.23 ($439.46 at 20 weeks compensation). Accordingly a separate Order [PR511480] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Applicant - unrepresented

Respondent - unrepresented

Hearing details:

NEWCASTLE

17

May

2011

1. PN 532-533

2. Ex 1, Annex B

3. Ex 1, Annex I

4. Ex 1, paras 8-12

5. Ex 2, Annex G

6. Ex 1, paras 10 & 16

7. Ex 2, paras 13-17

8. Ex 1, para 18

9. Ex 1, paras 19

10. Ex 9

11. PN743

12. (1990) 35 IR 70 at 83-84

13. (1938) 60 CLR 336 at 354-369

14. PN 781

15. PN 803-810

16. Ex 3, clause 38

17. Ex 8

18. PN 178 to PN 190

19. Ex 1, para 22

20. Ex 1, paras 24 & 25



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