DECISION

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

Ms Yi Qun (Vanessa) Jin
v
Krio Krush Basic Foods Py Ltd T/A Krio Krush Basic Foods Pty Ltd
(U2018/6878)

Application for an unfair dismissal remedy – no valid reason – dismissal harsh and unreasonable – reinstatement inappropriate - compensation ordered.

[1] The applicant, Ms Yi Qun (Vanessa) Jin had made an application for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by the respondent, Krio Krush Basic Foods Pty Ltd, on 26 June 2018.

[2] The application was heard today, 9 November 2018. The applicant appeared for herself and Mr Lee Alsten, Managing Director, appeared for the respondent. Both gave sworn evidence.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[4] The applicant is a food technologist who had been employed by the respondent for nine years. The applicant was the only food technologist employed by the respondent. She has a master’s degree and 20 years’ experience.

[5] The reason for the applicant’s dismissal was her alleged refusal to create some flavours to apply to chips. The applicant concedes that the flavours she had been asked to make had been made before and the recipes were on hand. However her understanding was that when similar products had been produced previously the flavours did not attach well on chips.

[6] The applicant says, and I accept, that she went to speak to Anthony Alsten (Lee Alsten’s father, who had written the order for the flavouring) and told him the respondent did not have the correct materials to make the chip flavours; in particular that the respondent’s products were not fine enough to make the flavour to attach on chips. Anthony Alsten told her that she was being negative.

[7] The applicant gave evidence that it was her professional opinion as a food technologist that the recipes could not produce suitable seasonings or flavourings to apply to chips and that it was her duty to inform management of this fact.

[8] The respondent submitted that it was possible for the applicant to create the requested recipes as she had made similar flavouring and seasoning products before which had been sold to the respondent’s clients.

[9] Half an hour after her initial discussion with Anthony Alsten the applicant was called into a meeting with Lee and Anthony Alsten. Based on the witness evidence presented to me at the hearing I accept that after asking what happened Lee Alsten told the applicant she was dismissed. I do not accept Mr Alsten’s assertion that she was warned that failing to produce the requested flavours would lead to her dismissal.

[10] I am not satisfied that the respondent had a valid reason for the applicant’s dismissal. The applicant had reasonable grounds for querying the instruction she had been given. This should have led to a sensible discussion. Instead the respondent dismissed the applicant on the spot.

[11] I accept, based on the applicant’s evidence, that she was not notified of the reason for her dismissal prior to being dismissed, and she was not given an opportunity to respond to that reason.

[12] There is no evidence to suggest the applicant asked for or was denied the opportunity to bring a support person when she met with the respondent.

[13] There is no evidence to indicate that the applicant had received a prior warning in relation to her performance as a food technologist.

[14] The respondent is a relatively small business (though not technically a small business employer as defined in the Act) and does not appear to have access to professional human resources advice.

[15] The applicant gave evidence that the dismissal has adversely affected her health.

[16] Having regard to all the circumstances I am satisfied that the applicant was unfairly dismissed by the respondent in that her termination was harsh and unreasonable.

[17] In considering the issue of remedy I do not think reinstatement would be appropriate in the circumstances. While the applicant was a relatively long standing employee I am satisfied that her relationship with the respondent had deteriorated and she would probably not have stayed with them for more than a few more months. I also note that she was paid five weeks in lieu of notice.

[18] I consider that the respondent should pay the applicant an amount of compensation equivalent to three months’ pay. This amounts to $20,500. A separate order will be issued to this effect.

SENIOR DEPUTY PRESIDENT

Appearances:

The applicant for herself.

Mr L Alsten on behalf of the respondent.

Hearing details:

Sydney:

2018.

November 9.

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