Fair Work Commission|2025-06-23

Jasmine Muller v Devina Hair Pty Ltd [2025] FWC 1762 (23 June 2025)

s.394 - Unfair dismissal

[1] On 21 September 2024, Jasmine Muller (Jasmine or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy alleging that they have been unfairly dismissed from their employment with Devina Hair Pty Ltd (the Respondent). The Applicant seeks compensation for their dismissal.

[2] It is not in dispute that Jasmine filed their application within the 21-day period. Jasmine's employment was subject to the Hair and Beauty Industry Award 2020.[1] Jasmine's employment did not end because of a genuine redundancy. Jasmine had been employed for greater than 12 months at the time of her dismissal.

[3] The Respondent asserts that the Small Business Fair Dismissal Code (SBFDC)[2] applies to the termination of Jasmine's employment.[3] The Respondent submits that, at the time of the dismissal, the business employed less than 15 employees.[4] I note that Jasmine does not dispute the number of employees. I am satisfied that the SBFDC code is a relevant consideration in this matter.

[4] The matter did not resolve at conciliation and, as a result, the matter was then listed for hearing on 22 January 2025. Final closing written submissions were filed by the parties on 29 and 30 January 2025 respectively. Jasmine was self-represented at the hearing. James Lette (James), the partner of Rachel Law (Rachel), owner of Devina Hair, represented the Respondent.

[5] Jasmine gave evidence in support of her application. Georgia Brazier (Georgia), a previous employee of the Respondent, Josephine Ford, the partner of Georgia, and Hayley Davis (Hayley), a previous employee of the Respondent, all gave evidence in support of Jasmine. Rachel and James gave evidence on behalf of the Respondent.

[6] Both sides provided various character references in support of their submissions. I note that the character references were not subject to cross examination. For the purposes of this decision, primary focus will be on the witness evidence of those present when the incident leading to the dismissal occurred. For context, a summary of the incident follows:

The incident occurred on 7 September 2024, when the Respondent held a meeting with three of its staff towards the end of the workday. Video footage of the incident was provided to the Commission for consideration in this matter.

James led the meeting, explaining that Rachel was dealing with intense emotional turmoil and suffering from autistic burn out, strongly recommending the staff "look it up".

Immediately following, Hayley stood up and verbally resigned, telling Rachel "This is because... you have stolen my therapist... and that's fucked". Georgia then stood up, placing an envelope containing their resignation on the desk in front of Rachel.

The two then exited the store, as Jasmine stands and begins collecting her things to leave. Upon her exit, the door slams loudly.

After some confusion over whether Jasmine had resigned, the Respondent prepared the SBFDC checklist the following day.

On 9 September 2024, Jasmine texted the Respondent about their upcoming shift, scheduled for 10 September 2025, seeking guidance as they had been logged out of the Respondent's software but had not resigned.

Subsequently, the Respondent terminated Jasmine.

[7] The Respondent submitted substantial materials of which a not insignificant portion lacked direct relevance to the events surrounding the dismissal of Jasmine. Instead, these materials concerned the overall employment breakdown between the Respondent, Jasmine, and other staff members. For the sake of brevity, I am not going to repeat these submissions at length. Additionally, I am not persuaded that such issues were a material or substantive reason for the dismissal subject of this dispute.

[8] In its submissions, the Respondent raises multiple concerns about previous instances of misconduct or poor performance by Jasmine. The Respondent provided diary entries to support its contention that Jasmine had been verbally counselled previously in relation to the following issues:

Failure to follow reasonable and lawful directions of the Respondent;

Ignoring questions and directions from the Respondent;

Avoiding work related tasks, taking excessive unscheduled breaks, and excessive use of personal mobile phone whilst at work;

Holding inappropriate conversations on the salon floor in front of clients.

[9] The Respondent provided a copy of a draft warning, which was to be provided to Jasmine following the meeting that was held on 7 September 2024, in relation to the concerns outlined above. However, this was never provided to Jasmine, being dismissed by the Respondent on 10 September 2024 prior to the issuing of the warning.

[10] The Respondent submits that the employment of Jasmine was terminated as they had engaged in serious misconduct that warranted summary dismissal. It was the evidence of Rachel and James that, shortly after the commencement of the meeting on 7 September 2024, Hayley and Georgia resigned from their employment with the Respondent and departed the premises. Rachel and James state that Jasmine left the premises shortly after Hayley and Georgia and, when doing so, slammed the front door of the premises shut in an aggressive manner.

[11] It was the evidence of Rachel and James that Jasmine left prior to the meeting formally ending, and prior to the end of their rostered shift. As a result, Rachel and James initially believed that Jasmine had also resigned from their employment and had joined Hayley and Georgia in departing the business. The Respondent submits that it made the decision to terminate Jasmine's employment, on 9 September 2024, after receiving correspondence from Jasmine stating she intended to work her shift on 10 September 2024.

[12] It was the evidence of Rachel that, following Jasmine's action of aggressively slamming the door, they did not feel comfortable working in the same small space as Jasmine in the future.

[13] Jasmine submits that they did not engage in serious misconduct. Therefore, the Respondent cannot rely upon the SBFDC to justify the dismissal. Jasmine states that she was not aware of any plan by Hayley and Georgia to resign from their employment with the Respondent at the meeting of 7 September 2024 and that she should not be held responsible for their decisions to resign.

[14] Jasmine outlines that, upon Hayley and Georgia resigning from their employment with the Respondent, she felt anxious and scared to be left in the room alone with Rachel and James. As a result, Jasmine thought it best to depart the workplace for the day, assuming the turn in events had concluded the meeting. Jasmine states that, prior to the commencement of the meeting, they had completed their duties for the day whilst under the observation of James and Rachel. Jasmine states that, after the resignations occurred, Rachel told her to "have a nice shift" and, as a result, Jasmine took this as meaning the meeting had ended, and they should leave the premises.

[15] Jasmine asserts that the door to the salon was known to have issues closing and required additional force to shut the door correctly. Under cross examination, after viewing the footage from the day in question, Jasmine did concede that she slammed the door harder than originally thought. Jasmine suggests that the stress of the situation on the day in question could have contributed to this reaction.

[16] Jasmine states she contacted Rachel on 9 September 2024, which was the day prior to her next shift, to confirm attendance. Jasmine submits that she was subsequently dismissed by the Respondent prior on 9 September 2024 prior to their shift the following day.

[17] The Respondent relies upon the SBFDC and their assertion that Jasmine engaged in serious misconduct to justify the dismissal. Having considered the evidence of the parties before the Commission, I have formed the conclusion that Jasmine did not engage in serious misconduct warranting summary dismissal in accordance with the SBFDC.

[18] The serious misconduct relied upon by the Respondent falls into three broad allegations: first being that being Jasmine took part in a pre-planned staff walk out, second that Jasmine left with authorisation to do so, and third being that Jasmine engaged in threatening or similar conduct by slamming shut the door on their departure. I have determined that these three allegations cannot be reasonably substantiated. My reasons are as outlined below.

[19] There is no evidence to suggest that Jasmine was party to some sort of pre-planned staff walk out from the business on 7 September 2024. Georgia confirmed that they had planned to resign earlier in the week and decided to hand their notice in during the meeting. Hayley made the decision on the spot to resign after they took exception to comments made by James. There is no evidence that Jasmine was part of some wider staff walk out. Rather, two staff who were dissatisfied with the Respondent as an employer decided to resign at the same time, following a staff meeting in which they took exception to James's comments.

[20] I consider the action of Jasmine leaving the premises immediately following the assumed conclusion of the meeting on 7 September 2024 to be reasonable and understandable in the circumstances. She had just witnessed two of her colleagues resign from the business, the owner of the business, Rachel, appeared upset but had their partner James for support. It would stand to reason that Jasmine would have felt awkward to remain in the workplace following such a meeting. I also accept the evidence of Jasmine that Rachel did say to her have a nice shift which she, in the whirlwind of the moment, reasonably assumed to be an indication that the meeting had ended.

[21] Having viewed the footage, there is no denying that the door slammed loudly after Jasmine's departure from the Respondent's premises. However, to suggest that such an action was threatening or a serious threat or risk to the Respondent's health and safety is an overreach. Jasmine provided evidence that, feeling increasingly anxious and intimidated by the events that had just unfolded, she used what she deemed necessary force to close the door in an attempt to hastily exit the uncomfortable environment. Jasmine asserts the door closure was not intended to be an aggressive action, and that she was simply attempting to out of the place in her state of confusion and stress. I accept this testimony, it is reasonable to conclude that, in such a state of discomfort, while trying to remove oneself from the situation, clumsy actions could occur.

[22] In her statement and submissions, Rachel explained at length how the door being slammed had impacted her ability to work with Jasmine in the future and the impact this action had on her health and safety. I do not consider this evidence sincere; I am inclined to conclude that such testimony appears to be self-serving, in an attempt to justify the dismissal of Jasmine for serious misconduct.

[23] Jasmine's conduct on the day in question may not have been perfect, but to suggest that the one-off slamming of a door was such serious misconduct that it could be considered as a threat is a dramatization. Jasmine at no stage made any verbal threats nor posed a physical threat towards Rachel; she left the workplace following what had been a tense and emotional meeting, slamming the door upon her exit. The Respondent did not lead evidence that the door was not damaged nor required repair due to the actions of Jasmine.

[24] I have formed the view that there was no valid reason for the dismissal of Jasmine from the Respondent's employment (section 387(a) of the Act). As I have found there was no valid reason for the termination of Jasmine's employment, there could not have been notification of such reason or opportunity to respond to such (section 387(b) - (c) of the Act). There is no evidence to suggest that Jasmine was unreasonably refused a support person (section 387(d) of the Act).

[25] In relation to section 387(e) of the Act, I accept that Jasmine had been given prior verbal warnings by Rachel in relation to their performance and conduct at work, however this was not formalised. As a result, I have determined that Jasmine was not aware that her ongoing employment was at risk prior to the termination of her employment on 9 September 2024.

[26] In relation to section 387(f) - (g) of the Act, it is not contested that the Respondent is a small business employer for the purposes of the Act. In relation to this, it is noted that Rachel took over the business from the previous owners and therefore inherited many of the previous staff including Jasmine. The parties dispute the exact nature of the relationship prior to Rachel taking over ownership of the business. However, there is no doubt that the dynamic shifted after the change in ownership. Rachel had previously been the manager of the salon and then was suddenly the owner of the business. It seems that, in such circumstances, conduct which Rachel perhaps either overlooked, did not notice, or did not manage as sternly in her previous position became more concerning as they took on the responsibility of owning a small business. This is not a criticism of Rachel, it is observation that Rachel likely did not proactively performance manage Jasmine or other staff members such as Hayley or Georgia until she was beyond frustrated with their performance and conduct. A change in position from colleague to owner results in a significant shift in power dynamics and responsibilities, it is very understandable that interpersonal issues and apprehension towards disciplining previously close coworkers may arise following such a drastic change in the workplace relationship. I find that, in all probability, the lack of internal human resources management support and internal performance management procedures played some part in the dismissal of Jasmine.

[27] Neither party made submissions in relation to section 387(h) of the Act, I make the following determination. As I have outlined above, Rachel had legitimate concerns about the performance of Jasmine in the lead up to their dismissal and had concerns about the boundaries in what was a workplace relationship between employer and employee. I find that, had Rachel carried out a detail performance management process, Jasmine's employment would have likely ended in the following weeks or months had the termination not occurred when it did.

[28] I have made findings in relation to each matter specified in section 387 of the Act as relevant. Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Jasmine was harsh and unreasonable. There was no valid reason for the termination of Jasmine. The examples provided by the Respondent concerning Jasmine's conduct and performance do not individually or collectively justify the termination of Jasmine's employment and termination for such issues would be disproportionate on the evidence on hand.

[29] I am therefore satisfied that the Jasmine was unfairly dismissed within the meaning of section 385 of the Act. The parties will be contacted regarding the programming of the matter to determine remedy.

[2] Fair Work Act 2009, Declaration under s 388(1) - Small Business Fair Dismissal Code.

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Jasmine Muller v Devina Hair Pty Ltd [2025] FWC 1762

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Judgment (50 paragraphs)

Jasmine Muller v Devina Hair Pty Ltd [2025] FWC 1762 (23 June 2025)

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Legislation Cited (1)