[1] This matter involves an application made by Ms Rebecca Johnston under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent employer is Woodpile Investments Pty Ltd trading as Hog's Breath Cafe - Mindarie.

[2] The application was the subject of a conciliation conference with a Fair Work Australia Conciliator however the matter was not settled and has been referred to myself for determination.

[3] The Respondent operates a cafe restaurant. Ms Johnston commenced employment with the Respondent on 2 August 2009 as a Waitress.

[4] The employment was on a part-time basis and Ms Johnston usually worked Saturdays and Sundays only each week.

[5] The Applicant was promoted to the position of Duty Manager on 19 December 2010.

[6] On 1 March 2011 the Respondent's Managing Director, Mr Wood, accompanied by the Restaurant Manager, Ms Richards, had a meeting with the Applicant at the Respondent's premises to discuss some issues including events that had occurred on 20 February 2011.

[7] The issues raised by Mr Wood were allegations that:

1. Contrary to company policy Ms Johnston had been eating whilst working on shift.

2. Ms Johnston had changed the roster for members of staff without authority to do so.

3. Ms Johnston sat at a customer's table for half an hour whilst other staff worked around them.

[8] Following some discussions Mr Wood advised the Applicant that her explanations were not acceptable and presented her with two written disciplinary notices.

[9] Mr Wood then told the Applicant that in light of these incidents he could no longer trust her in the position of Duty Manager and so he proposed two options being that she either accepted a demotion down to the position of Waitress with a lesser hourly rate and working a reduced number of hours or that she could resign.

[10] Ms Johnston advised Mr Wood that she would resign.

[11] Mr Wood had a pre-prepared letter of resignation which he gave to her and which Ms Johnston then signed.

[12] Section 394 of the Act provides as follows:

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

[13] The meaning of "dismissed" is prescribed in section 386 of the Act relevantly as follows:

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

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[14] It is undisputed that Ms Johnston resigned from her employment.

[15] The Respondent at the hearing of this matter conceded that whilst Ms Johnston had resigned she was forced to do so because of the conduct of Mr Wood and so it was acknowledged that for the purposes of section 394 Ms Johnston had been dismissed.

[16] I accept the facts of this matter are such that Ms Johnston was forced to resign by the Respondent's conduct and as such is able to make this application.

[17] At the hearing of this matter Ms Johnston gave evidence on her own behalf and the Applicant called evidence from her sister Ms Pamela Johnston, who was also a previous employee of the Respondent and from Mr Callaghan another previous employee of the Respondent.

[18] For the Respondent evidence was given by Mr Wood, Ms Richards and Mr McMerrin the Regional Manager for the Hog's Breath franchisor.

[19] The Applicant in her submissions says that during the meeting called by Mr Wood on Tuesday, 1 March 2011 she did, in response to his complaint about her eating on shift, admit that she had taken a bite of garlic bread from some food that Mr Callaghan had ordered and that this had occurred in the cool room out of sight of customers and she told Mr Wood that everybody eats on shift even Ms Richards, but Mr Wood ignored this explanation.

[20] Further Ms Johnston submits that in response to his complaint about changing rosters for staff members she explained that she was the only Duty Manager on duty that could make that change and she had always been given that responsibility and the staff members in question had given her the impression that the roster change had been approved, but again Mr Wood ignored her explanation.

[21] With respect to Mr Wood's complaint that she sat with customers Ms Johnston submits that she reminded Mr Wood that it was a birthday party for another staff member and that he had specifically said to Ms Johnston that she could sit down at their table when most of the other customers had gone, but he denied this was true.

[22] With respect to a complaint raised during the hearing by Mr Wood that some weeks prior to her dismissal, she had not properly responded to a complaining customer, Ms Johnston argues that the customer did not present to her with a complaint at all and so Mr Wood's criticism is unjustified.

[23] In support of her claim that what occurred was unfair Ms Johnston submitted that she was never advised prior to this discussion that the meeting with Mr Wood and Ms Richards would be a disciplinary meeting.

[24] Accordingly Ms Johnston disputes the conclusions Mr Wood reached regarding the complaints that she had eaten on the job, had changed staff rosters without authority and had sat with a customer while others work on a number of factual grounds and she also disputes the seriousness of these complaints.

[25] The Applicant argues that Mr Wood's credibility is poor as demonstrated by the fact that accusations he made in the employer's response lodged in reply to this application, that Mr McMerrin had counselled Ms Johnston because of her actions and performance, have been proven untrue by the evidence of Mr McMerrin who expressly denied having any such conversations with Ms Johnston.

[26] The Applicant argues that the disciplinary meeting had dealt with three issues that had occurred during one shift and that giving Ms Johnston written warnings for these matters and then, on the basis of this, deciding she should be demoted or resign was unreasonable.

[27] The Applicant argues that the actions of Mr Wood were unjustified and that she was denied procedural fairness and should not have been placed in a position where she was forced to resign over these matters.

[28] In reply the Respondent argues that there was a valid reason to dismiss Ms Johnston because she disobeyed the lawful and reasonable directions of the Respondent by authorising changes to the staff roster knowing it was not allowed and that she bullied another staff member into covering her shift and she had not adequately dealt with a customer complaint some weeks earlier.

[29] The Respondent says Ms Johnston was given notice of these reasons for termination in the meeting with Mr Wood and Ms Richards and was given an opportunity to explain her actions and the Applicant had admitted to changing staff rosters and eating on shift.

[30] The Respondent argues that the dismissal was related to the Applicant's conduct not her performance and so warnings were not relevant.

[31] The Respondent argues it is a small business without human resource specialists and so cannot be expected to follow best practice procedure when dismissing employees.

[32] Accordingly the Respondent argues the dismissal was not harsh, unjust or unreasonable and the application should be dismissed.

[33] With respect to those persons who gave evidence on this matter it is necessary to make a number of observations.

[34] Having considered the evidence of the Applicant Ms Johnston and her sister Pamela Johnston I have some doubts as to their credibility on some parts of their evidence. On some points their evidence was expressed in virtually identical terms to the extent that this evidence became questionable. This was particularly apparent with respect to evidence given by them about staff notices the Respondent says had been posted explaining that staff roster changes can only be authorised by Mr Wood or Ms Richards.

[35] Separately I agree as the Applicant argues that Mr Wood's credibility as a witness was cast into some doubt because of the evidence of Mr McMerrin that he had never counselled the Applicant which was directly contrary to the written response to this application originally provided by Mr Wood.

[36] With respect to Ms Richards and Mr Callaghan I found both of these witnesses to be credible and forthright.

[37] The Act details at section 387 what matters Fair Work Australia must take into account when considering whether a dismissal was harsh, unjust or unreasonable.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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); and

(b) whether the person was notified of that reason; and

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

(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; and

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

(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; and

(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; and

[38] I am satisfied on the evidence that Ms Johnston did eat whilst on shift. Ms Johnston admitted she had a bite out of Mr Callaghan's garlic bread although she sought to downplay the extent to which she had eaten on shift.

[39] I am also satisfied that while working as the Duty Manager Ms Johnston condoned eating on shift by Mr Callaghan, by being aware of him ordering food and eating it with him whilst on shift.

[40] I am also satisfied that eating on shift was contrary to the rules of the Respondent.

[41] This conduct was therefore a valid reason for the Applicant's dismissal.

[42] With respect to changing staff rosters I am satisfied that prior to 20 February 2011 Ms Richards had advised Ms Johnston that she no longer had authority to make changes to the staff roster.

[43] I am satisfied that the Respondent's rules were that only Mr Wood and Ms Richards were authorised to change the staff roster. I am also satisfied that prior to 20 February 2011 Ms Johnston was aware that this was the case.

[44] I am satisfied that Ms Johnston did at the request of staff change the roster contrary to the Respondent's directions and so without authority.

[45] I am also satisfied that Ms Johnston requested that Ms Patrice Lilly, a Waitress of the Respondent, swap shifts with Ms Johnston again without authority. Further that this shift swap was instigated by Ms Johnston for her personal benefit with the consequence that at the end of the shift on the night in question there would have been no trained Duty Manager working who could discharge the responsibilities of closing the restaurant properly.

[46] Making the changes to the roster and swapping shifts with Ms Lilly were valid reason for the Applicant's dismissal.

[47] I do not accept that the swap made by Ms Johnston with her sister was contrary to the Respondent's instructions because this change was not a shift change as such but rather a correction to the roster that had been set up in error by the Respondent. As such this action by Ms Johnston was quite appropriate.

[48] With respect to the Respondent's complaint that Ms Johnston had sat at a customer's table whilst other staff waited on the remaining customers, contrary to the specific direction of Mr Wood I find that this was not the case at all. I accept the evidence of Ms Johnston on this point and that her actions were consistent with her understanding of the discussion she had previously had with Mr Wood and so were quite proper.

[49] Finally with respect to the complaint by Mr Wood that some weeks earlier Ms Johnston had not properly responded to a disgruntled customer who had complained about the quality of the steak he had been served, I do not accept there is any evidence that the actions of Ms Johnston were deficient. I accept her evidence that when the customer approached her at the meet and greet desk he made a neutral request for a feedback form and did not act in any way that led her to believe at that time that he was unhappy with his dining experience.

[50] Mr Wood did notify Ms Johnston at the meeting on 1 March that eating on shift and making roster changes without authority were unacceptable. The Applicant was notified of the reasons for her dismissal during this meeting and had an opportunity to respond to those complaints raised by Mr Wood.

[51] The Applicant did not request that a support person be present although I note that she was unaware that those discussions were potentially relating to her dismissal.

[52] The Respondent argues that what occurred here was not unsatisfactory performance but rather particular conduct by the Applicant that did not therefore necessitate warnings being given.

[53] I do not accept that this is a correct characterisation of the situation.

[54] The Respondent's complaints against Ms Johnston were that she was not observing the Respondent's particular rules about not eating on shift and how roster changes were only to be made by Mr Wood or Ms Richards. These in my view are issues of performance.

[55] It is commonly understood that where employees fail to observe an employer's policies, procedures or rules that this is a performance deficiency. Such unsatisfactory performance will normally be addressed initially by counselling with an escalation to verbal or written warnings as appropriate, subject always to the exception that for a sufficiently serious rule breach warnings may not be necessary and dismissal may be appropriate.

[56] The situation here readily lent itself to the Respondent counselling or warning Ms Johnston about her unsatisfactory performance. Indeed Mr Wood at the final meeting on 1 March 2011 concluded the discussions with his ultimatum that Ms Johnston either be demoted or resign only after going through the process of issuing her with two separate written warnings.

[57] Those written warnings however do not amount to the Applicant having been warned about her unsatisfactory performance before the dismissal, which occurred only moments later.

[58] Implicit in the word "before" in section 387(e) is that there is a period of time between an employee being warned about the particular aspect of their performance that is unsatisfactory and a subsequent dismissal for reasons that may include that same unsatisfactory performance being repeated. That period of time provides the employee with the opportunity to understand their employment is at risk and to act to improve their performance.

[59] My conclusion is that Ms Johnston was not warned about her unsatisfactory performance before the dismissal.

[60] The Respondent employs less than 30 employees and has no dedicated HR specialist or in-house expertise.

[61] The other relevant matters in this case are that the Applicant is approximately 19 years of age and had worked for the Respondent for only around 18 months at the time of dismissal.

[62] Significantly in addition the Applicant had only been promoted to the more responsible role of Duty Manager in mid December 2010, approximately 2 months before the critical events complained of by the Respondent and further the Applicant worked only two days each week.

[63] Considering all the circumstances of this case I have found that there are valid reasons for dismissal of the Applicant to do with her eating on shift and changing staff rosters without authority.

[64] With respect to eating on shift however the evidence of the Applicant, Ms Pamela Johnston and Mr Callaghan suggests that this is not an uncommon practice when Mr Wood and Ms Richards are not on the premises. Ms Johnston said as much to Mr Wood whom it seems was unaware of the reality of what is occurring in the business in this regard.

[65] The evidence was that Ms Johnston's offence was at the lowest end of the scale. She was eating out of the view of customers and ate very little. Mr Callaghan was disciplined for the same offence but at the time was not dismissed. Whilst as Duty Manager the Applicant could be more held to account by the Respondent for this offence I think in all the circumstances the Respondent has exaggerated the seriousness of the Applicant's actions in this regard.

[66] With respect to changing shifts without authority, as the Duty Manager Ms Johnston was being approached regularly by staff who wanted to change shifts. Obviously these staff members, by approaching the Duty Managers, were not readily complying with the direction of Mr Wood and Ms Richards that only they could authorise changes to the staff rosters.

[67] Whilst Ms Johnston was wrong to make the changes when requested by these staff her failings in refusing the request needs to be seen in the context of her relatively young age and limited experience supervising other staff having only been a Duty Manager for 8 weeks and one who worked only two days each week.

[68] Ms Johnston however does not deserve such positive consideration for her actions in initiating the shift swap with Ms Lily which was self-serving and potentially left the Respondent's business to be closed at night by inexperienced staff.

[69] Whatever Ms Johnston's failings the evidence of Mr Wood himself is that he held her in high regard as a Waitress and it is therefore somewhat surprising that he did not allow her to continue in the business after the warnings he had issued and so allow her to demonstrate that she had heeded his counselling and improved her performance.

[70] In all these circumstances then I conclude that the dismissal of Ms Johnston by the Respondent was unreasonable and so I find that Ms Johnston has been unfairly dismissed by the Respondent.

[71] The matters to be taken into account in determining an amount of compensation are set out in s. 392. These are considered below.

[72] There is no evidence that would suggest that an order of compensation would affect the viability of the Respondent.

[73] The Applicant had been employed for approximately 18 months.

[74] If the Applicant had remained in employment there would have been some tension between her and some other staff and with Mr Wood and Ms Richards. Had the Applicant not been dismissed then she may instead have been demoted. In all likelihood her future in the Respondent's employment would have been limited.

[75] In the circumstances her employment would in my assessment not have continued for more than eight weeks and she would have earned remuneration for this period.

[76] There is no evidence that the Applicant has attempted to mitigate her loss. There should be some reduction in compensation because of this.

[77] The Applicant apparently earned no income for that period of the first eight weeks after her dismissal.

[78] Some of the Applicant's actions as discussed whilst not warranting dismissal however were wrong. There should be some reduction in compensation because of this.

[79] Taking all these factors into account my decision is that the amount of compensation will be four weeks pay, calculated using the rate payable as a Duty Manager for the Applicant's average rostered hours for the two month period immediately prior to the date of dismissal.

[80] An order to that effect will be issued in conjunction with this decision.

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