[2018] FWC 2642
FAIR WORK COMMISSION

DECISION


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

Ms Jaymi-Lee Morris
v
Alphaeus Hair Salon
(U2018/51)

COMMISSIONER RIORDAN

SYDNEY, 18 MAY 2018

Application for an unfair dismissal remedy.

[1] Ms Jaymi-Lee Morris (the Applicant) was employed by Alphaeus Hair Salon (the Respondent) between 2 May 2016 and 6 December 2017. The Respondent is owned by Mr Chris Tizzoni.

[2] The Respondent has failed to submit a Form F3 Employer Response at any stage during the Fair Work Commission (FWC) process.

[3] The Respondent failed to participate in the conference convened by a Fair Work Commission Conciliator on 5 February 2018.

[4] The Respondent did appear at the telephone Directions Conference on 16 February 2018 convened by the Commission, as presently constituted, and participated in a without prejudice conciliation.

[5] The Respondent failed to submit any submissions or witness statements in accordance with the Directions issued by the Commission on 19 February 2018.

[6] The Respondent failed to attend the hearing on 16 April 2018. The hearing proceeded in the Respondent’s absence.

[7] Following the hearing, my Associate sent the following correspondence to the Respondent:

“Dear Mr Tizzoni,

I refer to the Notice of Listing and Directions that were issued on 19 February 2018 to notify that the above mentioned matter was set down for Arbitration Hearing before Commissioner Riordan on 16 April 2018 at 9.30am.

I confirm that you failed to comply with the Directions issued and further failed to attend the listed Hearing.

The arbitration hearing proceeded on 16 April 2018 with the Applicant in attendance.

Please be advised that you have seven days to provide a satisfactory explanation as to why you failed to participate in the hearing. If you fail to provide any explanation the Commissioner will determine the matter based on the evidence currently before him.”

[8] The Respondent did not reply to this correspondence.

Background

[9] The Applicant was employed by the Respondent as a hairdresser in its Nowra Salon.

[10] The Applicant and Mr Tizzoni appeared to have a good working relationship. The pair would regularly converse outside of normal business hours via facebook.

[11] The Respondent promised the Applicant that she would be the manager of a new salon that he was planning to open in Bombaderry.

[12] On 6 December 2017, the following text message exchange between the parties occurred on facebook messenger: (note I have abbreviated the inappropriate language that was used by both parties.)

(my emphasis)

Relevant Legislation

[13] The relevant provisions of the Fair Work Act, 2009 (the Act), in relation to this matter are:

(a) to establish a framework for dealing with unfair dismissal that balances:

(b) to establish procedures for dealing with unfair dismissal that:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

Consideration

[14] On the basis that the Respondent has failed to participate in these proceedings, the evidence of the Applicant stands unchallenged.

[15] In determining whether the Applicant’s termination was harsh, unjust or unreasonable, I am obligated to take into account the issues identified in section 387 of the Act.

Section 387(a) valid reason

[16] In Selvachandran v Peterson Plastics Pty Ltd 2 it was held:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”

[17] There is no evidence of a valid reason in this circumstance. From the text messages that were submitted, the Respondent appears to have terminated the Applicant as a result of some type of “conspiracy theory” in relation to the Applicant’s alleged discussions with current and former colleagues. There is no evidence of any inappropriate behaviour on behalf of the Applicant. I have taken this into account.

[18] The Applicant was happy in her job and very keen to manage the new salon at Bombaderry. The type of behaviour displayed by the Applicant does not fit within the parameters of an employee trying to undermine their employer. I have taken this into account.

[19] Based on the evidence before the Commission, I find that the Respondent did not have a valid reason to terminate the Applicant.

Section 387(b) Notified of reason

[20] I have taken into account that the “conversation” between the Applicant and the Respondent took place over a social media platform late at night. I am unaware of the sobriety or capacity of either individual during this recourse. I find that the Respondent did not provide the Applicant with a reason for her termination.

Section 387(c) Opportunity to Respond

[21] The Applicant was not provided with an opportunity to respond to her termination. As previously stated, this discourse occurred over a social media platform and appears to have escalated from a simple enquiry to an unfortunate conclusion. I have taken this into account.

Section 387(d) Refusal by employer to have a support person

[22] The conversation was not a disciplinary meeting but what appears to be a regular chat on facebook which spiralled out of control. I have taken this into account.

Section 387(e) unsatisfactory performance

[23] The Applicant’s termination was not due to her unsatisfactory performance.

Section 387(f) Size of the Employer and its effect on the procedures that were followed

[24] I have taken into account that the Respondent is likely not to have in place set disciplinary procedures.

Section 387(g) Lack of Human Resource Management

[25] I have taken into account that the Respondent does not appear to have any dedicated human resources personnel in its employment.

Section 387(h) any other matter

[26] I have taken into account that the Applicant sent the message saying “I quit”. I note that this exchange occurred after the Respondent told the Applicant “Good luck in your new job if you can find one. Which you won’t given my presence.”

Determination

[27] Having found that the Respondent did not have a valid reason to terminate the Applicant and having taken into account all of the other provisions of s387, I find that the Applicant’s dismissal was harsh and unfair.

Remedy

[28] I now turn to consider the issue of the appropriate remedy for the Applicant.

[29] The relevant sections of the Act in relation to an appropriate remedy for a successful unfair dismissal application are:

“Section 390

When the FWC may order remedy for unfair dismissal

Remedy--reinstatement etc.

Reinstatement

(1A) If:

Criteria for deciding amounts

[30] I have taken into account that the Applicant is not seeking reinstatement but compensation for her unfair dismissal.

[31] I have taken into account that the Applicant has mitigated her loss by gaining new employment as a hairdresser, commencing in this new role on 4 January 2018.

[32] I have taken into account that the Applicant was unfairly summarily dismissed and was not paid any of her statutory entitlements.

[33] I have taken into account and considered all of the provisions of section 392 of the Act.

Determination

[34] I find that the Applicant’s employment would have continued with the Respondent for the immediate future. The Applicant was keen to take on the increased responsibility of managing the new salon and the Respondent appears to have committed to her to take up this new role. I have decided that the Applicant is entitled to be paid for the time that she was unemployed, ie a total of 4 weeks’ pay. The Applicant is also entitled to be paid her statutory superannuation entitlement of 9.5% for the 4 week period.

[35] I order that the Respondent pay to the Applicant, 4 weeks’ pay plus her statutory superannuation entitlement.

COMMISSIONER

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 1   F2 unfair dismissal application – facebook exchange

 2   (1995) 62 IR 371