| FWC 4929|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Botanical Cuisine Pty Ltd
DEPUTY PRESIDENT COLMAN
Unfair dismissal application – no valid reason – dismissal unfair – compensation ordered
 This decision concerns an application made by Ms Mandy Jackson under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Ms Jackson was employed by Botanical Cuisine Pty Ltd (company) on a full-time basis as an office coordinator from September 2018 until her dismissal on 20 April 2020. Ms Jackson’s employment was terminated by text message on the grounds of various alleged shortcomings in her performance. She contends that her dismissal was unfair because there was no valid reason for her dismissal and she was not afforded an opportunity to respond to the allegations against her. She seeks compensation.
 The company did not file an F3 employer response and failed to comply with the Commission’s directions to lodge submissions and evidentiary material in response to the application. On 24 August 2020, my associate sent an email to Mr Omid Jaffari, the company’s director, reminding him that the company had not complied with directions. On 25 August 2020, my chambers received correspondence from Mr Jaffari, stating that he had been unable to give any time to the matter, ‘nor would he like to discuss it’.
 On 8 September 2020, my associate sent an email to the parties stating that Ms Jackson’s application was listed for hearing on 9 September 2020, that the parties were required to attend, and that if a party did not attend the hearing the application may be determined in the party’s absence (see s 600). The company failed to attend the hearing on 9 September 2020. I proceeded to hear the application. Ms Jackson appeared and gave evidence.
 Section 396 of the Act requires that I decide four matters before considering the merits of the application. I am satisfied of the following matters. First, Ms Jackson’s application was made within the 21-day period required by s 394(2). Secondly, Ms Jackson was a person protected from unfair dismissal, as she earned less than the high income threshold and has completed the minimum employment period (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, I do not consider that the company complied with the Small Business Fair Dismissal Code (Small Business Code). I return to this last-mentioned matter below.
 The company produces and supplies organic vegan food products. Ms Jackson coordinated the company’s head office in Collingwood. In her evidence, Ms Jackson referred to a number of workplace and personal conflicts with Mr Jaffari during her employment with the company. Ms Jackson also said that she was not comfortable with certain business activities of the company. In early March 2020, she saw an email message that Mr Jaffari had sent to another company, stating that he believed his business would go into liquidation. Ms Jackson asked Mr Jaffari about this. He replied that it was not really the case that his business faced liquidation. Ms Jackson said that she was very upset by this incident. She said that it was the ‘last straw’, and that she did not believe she would be able to continue working at the company for very long.
 Ms Jackson said that her stress and anxiety then ‘went through the roof’. On 6 April 2020, she called in sick and later submitted a medical certificate covering her absence for the following two weeks. Later that day, Mr Jaffari sent a series of text messages to Ms Jackson, a transcript of which was prepared by Ms Jackson’s representative and provided to the Commission. The messages relevantly state:
“hi Mandy, unfortunately botanical cuisine has no choice but to let you go.
there are many aspects to this...
overall as a general manager of botanical cuisine, you had obligations and responsibilities to adhere to... not only in one area but many areas of your job you have come short and ended up costing the company a lot of money to fix the areas that you have come short in.
your attitude in regards to your short comings have been nothing but arrogance and aloof...
to be honest by law I can ask you not to come in and just fire you as I have less then 4 staff members.
but - I am giving you two weeks notice... during these two weeks I expect you to perform your duties as a general manager with your current wages...
I expect nothing less then professionalisms with other staff members.
I really do wish that I didn’t have to come to this but you have left me no choice.”
 In his texts, Mr Jaffari goes on to refer to other concerns about Ms Jackson’s performance, including that some $60,000 of material had been ‘lagging behind’ and that profit margins had had the appearance of being healthy when in fact they were not, which affected the company’s BAS and resulted in higher taxation.
 Ms Jackson said that she did not understand these or any of the other performance allegations in Mr Jaffari’s texts. She said that she did not know what responsibilities she had not met, or how she had cost the company money, nor did she know in what areas she had ‘come up short’. Ms Jackson said that Mr Jaffari had never raised with her any concerns about her performance. I accept Ms Jackson’s evidence. It was clear and convincing. The company did not participate in the proceedings, despite being required to attend. It did not make any submissions or submit any evidence. Ms Jackson’s case is uncontradicted.
 I note Ms Jackson’s evidence that the company employed four employees at the time of her dismissal. The company was a small business employer at the relevant time (s 23). However, Ms Jackson’s dismissal was not consistent with the Small Business Code. She was not summarily dismissed, so the first stream of the Code is inapplicable. And she received no warning about the alleged poor performance, which is a necessary element of compliance with the second stream of the Code.
 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters in s 387(a) to (h).
 The Act requires the Commission to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). A valid reason is one that is a good or sufficient reason to end a person’s employment, and also a substantiated reason. The text messages sent by Mr Jaffari to Ms Jackson on 6 April contained a disjointed series of generalised allegations. Those allegations are unsubstantiated. There was no valid reason for Ms Jackson’s dismissal.
 Because there was no valid reason for the dismissal, it follows that Ms Jackson was not notified of any such reason (s 387(b)). Nor was she afforded an opportunity to respond to any reason for dismissal related to her capacity or conduct (s 387(c)). There were no discussions relating to the dismissal (s 387(d)), and no refusal by the company to allow a support person to assist Ms Jackson. The dismissal related to alleged unsatisfactory performance but no warning was given about this prior to the dismissal (s 387(e)).
 The Commission must consider the degree to which the size of the business, and the absence of human resources specialists, would impact on procedures followed in effecting dismissal (ss 387(f) and (g)). The company is small and had no human resources specialists. I consider that this had an adverse effect on the procedures that were followed, if one can speak of ‘procedures’ at all in this case.
 Taking into account all of the circumstances, I consider that Ms Jackson’s dismissal was harsh, unjust and also unreasonable. In light of my other conclusions, it follows that Ms Jackson was unfairly dismissed (see s 385).
 The Commission may order a remedy of reinstatement or compensation. I am satisfied both that reinstatement is inappropriate, and that an order for compensation is appropriate in all the circumstances (s 390).
 Ms Jackson sought six weeks’ compensation, comprising two weeks’ pay for her unpaid sick leave, and four weeks’ pay for the period she was unemployed. Her application cited 6 April 2020 as her dismissal date, but she agreed at the hearing that her employment in fact ended on 20 April 2020, and that she was absent on sick leave from 6 April 2020, but not paid. As she was unemployed for 4 weeks, and there is no evidence as to her new employment being at a lower rate of pay than her employment with the company, the measure of her compensable loss is this four week period, subject to the considerations in s 392 of the Act.
 The Commission must take into account the remuneration the person would have likely received if the dismissal had not occurred, and hence, how long the person was likely to have remained employed (s 392(2)(c)). Ms Jackson said that she was not happy and may only have worked for the company for another few weeks. She would likely have wished to find a new job first, which may have taken a little longer. I consider that Ms Jackson would likely have remained employed for four weeks. This too sets the compensatory parameters at the four week mark. I also note that Ms Jackson had 18 months’ service with the company; that after her dismissal she was looking for work and therefore mitigated her loss; and that she did not earn any income in this period (see s 392(2)(b), (d) and (e)).
 I consider that it is appropriate to award compensation of four weeks’ pay, which, based on the weekly annual salary shown in a pay slip submitted by Ms Jackson, amounts to $8,600, plus 9.5% superannuation ($817), giving a total of $9,417, less taxation as required by law. There is no basis for compensation to reflect a period when Ms Jackson was still employed. The failure of the company to pay her two weeks’ sick leave is not loss caused by the dismissal. Ms Jackson may have a claim for underpayment of wages in respect of this period. But such a claim must be pursued in a court. I have considered the impact of the order on the viability of the enterprise (s 392(2)(a)). The company is still trading and there is no evidence that a compensation order would affect the company’s viability.
 I will order compensation in the above amount to be paid by the company to Ms Jackson within 28 days of the date of this decision. An order giving effect to this decision is issued separately in PR722766.
L. Close for Ms Jackson
No appearance for the company
Melbourne (by telephone)
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