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[100]
[2018] FWC 2648
General information, not legal advice.
Fair Work Commission
2018-05-21
Original judgment source is linked above.
s 394 - Application for unfair dismissal remedy
Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser
Application for an unfair dismissal remedy - dismissal of beauty therapist - small business - whether employer complied with Small Business Unfair Dismissal Code - allegations of verbal and physical abuse and disregard for Manager's authority - bullying of another employee - suspension and investigation of complaints - meeting with applicant and support person - employer's past concerns for applicant's personal circumstances - no remorse or recognition of the seriousness of the conduct - employer's concern for welfare of other employees - further intimidating conduct - applicant's evidence not accepted - Code complied with - no unfair dismissal - application dismissed.
[1] Ms Anita Cachia was employed as a beauty therapist at a Salon known as Emerse Skin & Laser Clinic in Mona Vale, New South Wales, owned by Mr and Mrs Scott and Isabel McLennan. Ms Cachia commenced employment on 14 June 2016. She was employed under the Hair and Beauty Industry Award 2010 [MA000005] at a rate of $32.00 an hour. Her duties included waxing, facials, skin treatments, pedicures, manicures, laundry, cleaning the Salon, administrative work and selling products.
[2] In a telephone call on 3 November 2017, Ms Cachia was summarily dismissed by the Salon's Co-owner, Mr Scott McLennan, due to allegations of serious misconduct. Her dismissal was confirmed in a letter of 7 November 2017, in which it was said:
As per your meeting with Isabel McLennan on Thursday 2 November 2017, we are requested reasons as to why we should not terminate your employment due to the unacceptable behaviour you directed towards other employees.
As discussed on Friday we have conducted further investigations into this matter, but I was convinced on the balance of probabilities that you behaved unacceptably without reasonable excuse and that behaviour constituted gross misconduct.
[3] On 24 November 2017, Ms Cachia (hereinafter the 'applicant') filed an application, pursuant to s 394 of the Fair Work Act 2009 (the 'Act'), in which she seeks orders from the Fair Work Commission (the 'Commission') of compensation for her alleged unfair dismissal by Emerse Skin & Laser Clinic (hereinafter the 'respondent' or the 'Salon'). The application was filed by her then legal representative, Marc de Carne, Solicitor, Crawford de Carne Lawyers. On 21 December 2017, Mr de Carne filed a Notice of Ceasing to Act for the applicant.
[4] In its F3, Employer Response to the Application, Mr McLennan did not indicate an objection to the application on the grounds the respondent is a small business. However, it is uncontested that the Salon employs four employees. Accordingly, the applicant's unfair dismissal application falls for determination as to whether the respondent has complied with the Small Business Unfair Dismissal Code (the 'Code'). I will refer to these provisions throughout this decision. Of course, if the Code has been complied with there is no jurisdiction for the Commission to deal with, and determine the merits of the applicant's unfair dismissal claim.
[5] The following persons gave statements and/or oral evidence in the proceeding:
Ms Jesse Lynch, Clinic Manager;
Ms Sushma Dahal (Susan), employee;
Mrs Isabel McLennan, Co-owner;
Mr Scott McLennan, Co-owner;
The applicant; and
Ms Heather Cachia, applicant's mother.
[6] Ms Lynch is 22 years old and had been employed for eight months in the role of Clinic Manager at the Salon. Ms Lynch said that when she commenced employment, the applicant was friendly and cordial. However, her attitude changed following an incident on 22 July 2017 concerning a new employee, Ms Rogers, who was employed as a Beauty Therapist. The other Co-owner, Mrs McLennan, had offered a $500 bonus to any employee who introduced a successful candidate for the role. The applicant had introduced a person who was unsuccessful. Ms Lynch had introduced Ms Rogers and received the $500 incentive bonus. The applicant questioned her about Ms Rogers' age and experience and was continuously 'rolling her eyes' to suggest Ms Rogers was not good enough for the role. Ms Lynch believed the applicant was upset that her friend did not get the job and she did not get the bonus.
[7] Later that day, the applicant asked Ms Lynch to perform a laser treatment on one of her clients. The applicant was uncomfortable in performing the treatment because the client had a higher risk of burning, due to her particular skin type. Given the extra care needed for this treatment, it took Ms Lynch about 15 minutes to complete. When she finished and left the room, the applicant was waiting for her and said:
'What took so long, I am now running late. It was just the fucking sides of the face'.
While Ms Lynch tried to explain, the applicant ignored her and walked off. Ms Lynch remembered this incident very well, as it was the first time the applicant had spoken to her in such an abusive manner.
[8] Ms Lynch said that later that day, another employee had advised her that a client had complained about the applicant's attitude at the front desk and had made her feel unwelcome. Given the events earlier in the day, Ms Lynch thought it wise not to raise the matter.
[9] Ms Lynch claimed that from that day on the applicant continued to treat her poorly. She was condescending and acted superior to her. She felt she could never approach her. She cited two such examples where the applicant assumed the role of Manager, when she had no authority to do so. Ms Lynch believed the applicant resented her as the Manager as she was employed after her, and she had not been offered the Manager role. Ms Lynch said the applicant was constantly in and out of bad moods, which made the workplace uncomfortable and tense.
[10] Ms Lynch described the worst incident on 26 October 2017, which left her stunned and made her question her own role. Another employee (Lexy - Mrs McLennan's daughter) had phoned and the applicant took the call. When Ms Lynch asked to speak to her, the applicant ignored her. Ms Lynch stood by the door waiting to speak to her. The applicant got up from her chair and aggressively pushed her out the door and slammed the sliding door in her face. The push was so hard she almost lost her balance. After she composed herself, she opened the door and told her never to do that again. When she twice asked what Lexy had said, the applicant ignored her and walked away. She later noted that Lexy was off the roster for the day. Ms Lynch immediately complained to Mrs McLennan about the applicant's physical abuse and her repeated disregard for her authority.
[11] Ms Lynch also gave evidence of witnessing the applicant treating a Nepalese employee (Susan) in a condescending manner and ordering her to undertake unnecessary tasks. Ms Lynch did not believe there was any issue with Susan's English language skills and her clients enjoyed their treatments from her. On 28 October 2017, Susan approached her very distressed and crying. She described various things she had been subjected to by the applicant, including constantly walking in on her treatments to check on her, 'barking' orders at her and directing her to clean the entire Salon and then complaining it was not done properly. As all the therapists share the cleaning and reception duties, there was no basis for the applicant to boss Susan around and force her to clean up after her. Ms Lynch raised the matter with Mrs McLennan and asked for her help. As she had been the direct recipient of the applicant's verbal and physical abuse, Ms Lynch was not comfortable in approaching her.
[12] In cross examination, Ms Lynch agreed that she and the applicant had previously driven to work together. However, this ceased shortly after the 22 July 2017 incident. The applicant questioned Ms Lynch about the pushing and door slamming incident. She confirmed that she had opened the sliding door and closed it behind her.
[13] As to the risky laser treatment, Ms Lynch said that as she was more experienced doing this treatment and as the applicant's previous client had been burnt with the laser, the applicant had asked her to perform the treatment. It was a very busy day. She agreed she was running late, which made the applicant late with her segment of the client's treatment. Ms Lynch confirmed what the applicant had said to her and agreed there were no clients around. While acknowledging she had been running late and catching up, this client was not her appointment. Despite this, Ms Lynch acknowledged the applicant had a good relationship with clients.
[14] Ms Lynch agreed that on the same day she alleged the applicant pushed her, she had offered to help carry her groceries to her car in the afternoon. She had also agreed that the applicant could stay back that day. Ms Lynch acknowledged that she was not aware Mrs McLennan had asked the applicant to speak to Susan about cleaning and not doing the facials.
[15] In re-examination, Ms Lynch explained her concern for Lexy when she had phoned and the applicant had answered. Earlier that day, Lexy had spoken to her and appeared 'very frazzled'. Lexy told her she did not think she could return to work. When Lexy's later call was taken by the applicant, Ms Lynch was worried about her wellbeing. As the Manager, she should be told when an employee cannot come to work. The applicant simply ignored her, then pushed her firmly on the chest out of the treatment room and slammed the sliding door in her face. She had felt very hurt and was shocked. She spoke immediately to Mrs McLennan.
[16] Ms Lynch explained that she is very young and looks young. Clients sometimes question her age; so working is hard enough, without someone belittling her in front of clients, or making her feel unworthy of what she has achieved.
[17] Ms Dahal had been employed at the Salon for four months. She had been very excited and enthusiastic to join Emerse and loved the feel of the workplace and its friendly supportive team. She said that everything was going smoothly, but for the conduct of the applicant. From the very first, she behaved as if she was the boss and saying how experienced she was. She never missed an opportunity to make her do something, or impose unnecessary or irrelevant jobs on her. She made her wash her lunch containers and clean her room. She told her to mop the floors, then walked through the area leaving footprints. She then 'commanded' her to rub the footprints off using her hands. Ms Dahal claimed that facing the applicant made her feel depressed, both at work and away from work. She was 'relaxed and fearless' when the applicant was not on shift.
[18] Ms Dahal said that on 26 October 2017, when the Salon was not very busy, she mopped and wiped dry the whole Salon. During that day, the applicant made her clean her room three times, and then made her clean her footprints off the mopped floor.
[19] Two days later, the applicant told her that she was dissatisfied with her work and that she required her to clean her room. The applicant rudely told her that if she intended to perform personal beauty procedures on herself, it was mandatory for her to obtain permission from her - Ms Lynch's approval would not suffice. Ms Dahal said she was so miserable, she burst into tears. The applicant was very humiliating, ridiculous and disgusting and she felt bullied by her. She could not keep it to herself and spoke to Ms Lynch about it.
[20] In cross examination, Ms Dahal acknowledged that although she had only worked with the applicant for two weeks, she had been insulted and humiliated by her from the beginning. She reaffirmed the incidents she recorded in her statement and insisted she was directed by the applicant to clean the floor three times on 26 October 2017. She told her to use her hands. She 'treated her like a dog'.
[21] Ms Dahal related an incident on 28 October 2017 in which she had asked Ms Lynch to teach her how to do contouring on her own face. Later, the applicant told her she must get her approval for such work. Ms Dahal told her Ms Lynch had approved the work. The applicant insisted she was to be asked as well. Ms Dahal challenged this instruction, as they were both at the same level and she did not need to ask the applicant for her approval. (The applicant conceded Ms Dahal had cried in front of her during this incident).
[22] In re-examination, Ms Dahal claimed the applicant directed her every time she finished her lunch to wash her containers. She felt bullied by her. The applicant did not ask anyone else to do this, or to repeatedly clean the floors. No one else treated her this way. Everyone else were really nice and polite.
[23] As co-owner of the Salon, Mrs McLennan set out the background to the business, its operating hours, staff numbers (four permanent part-time), the duties of the Manager, (Ms Lynch), the respondent's policies and procedures and the means of communicating and training employees on the Salon's policies and procedures. Mrs McLennan outlined the background to the employment of the applicant (noting that she lived on the Central Coast with her Mum) and the appointment of Ms Lynch as Manager in May 2017.
[24] It was Mrs McLennan's evidence that from the start, the applicant was hostile towards Ms Lynch. She ignored her and did not like taking her instructions. Mrs McLennan sat down with them both to try and discuss ways for them to get along. Ms Lynch was open to accommodate their differences, but the applicant was very stubborn. In one incident, she took offence when asked to fold the towels. The applicant had called her on many occasions to complain about having to do this task.
[25] Mrs McLennan later met with Ms Lynch and Lexy. They both said they felt they were 'walking on eggshells' around the applicant and never knew what mood she was going to be in. They both told her that the applicant would not clean up after herself, and others had to do it.
[26] When Mrs McLennan suggested that the applicant might need a break, she agreed to take two weeks off. During this time, Mrs McLennan spoke to her by phone and invited suggestions from her. Despite complaining about issues, Mrs McLennan found it frustrating that she would never suggest solutions. It was decided that there would be a cleaning checklist and every employee would have their own treatment room, for which they would be responsible. Prior to the applicant's return, the Salon was completely cleaned and painted. Despite this, the applicant continued to complain about towels not being put away and cleanliness generally in the Salon.
[27] The applicant also complained about not having enough hours. When she said she had been offered another job, with more hours, Mrs McLennan agreed to increase her hours. About this time, the Salon employed Susan. The applicant was not able to get along with her. She complained that Susan did not know how to clean floors, could not speak English and could not answer the phone or take messages. Mrs McLennan explained to her that she needed to be more respectful and understanding. She felt the applicant's comments about Susan were 'quite racist'. On the other hand, Ms Lynch had told her that Susan was a very good worker and a great person. Nevertheless, Ms Lynch undertook to give her further training.
[28] On 28 October 2017, after being informed by Ms Lynch that Susan had broken down crying and said she felt bullied by the applicant, Mrs McLennan went to the Salon. Ms Lynch told her about the matters Susan had raised and then spoke of her own experience of being pushed through a doorway and having a door closed on her. Mrs McLennan asked Ms Lynch to prepare a statement, in her own words, as to the issues she had with the applicant. Mrs McLennan then spoke to Susan. She confirmed what Ms Lynch had told her. Susan said the applicant treated her 'like a dog' and like she was 'nothing'. She was in tears. She had not wanted to cause any trouble, so she had not told anyone until she could not hold it back anymore. She said that the applicant would repeatedly harass her to do demeaning work; other times ignore her and sometimes acted aggressively towards her. Mrs McLennan asked her to also prepare a statement.
[29] After speaking with her husband, they decided to investigate the allegations further. Mrs McLennan phoned the applicant and told her that complaints had been made by Ms Lynch and Ms Dahal, regarding her behaviour towards them. She suspended her on pay while the matters were investigated. After this call, Mrs McLennan noticed that the applicant had logged into the computer system, shortly after their conversation. As this was unusual, she decided to block any client from booking online with the applicant. Mrs McLennan received Ms Lynch and Ms Dahal's statements on 30 October 2017. She rang the applicant and they agreed to meet at a café on 2 November 2017. The applicant brought her mother as a support person. In discussing the allegations, the applicant denied directing Ms Dahal to wash her lunch containers. As to cleaning the floors, the applicant said she was just showing her how to clean and wax the floors.
[30] Mrs McLennan said the applicant's mother was visibly upset and repeatedly said it was a forgone conclusion her daughter would be sacked. Mrs McLennan told her to stop interrupting. When told that she had upset Ms Dahal, the applicant turned the discussion around to her own medical issues and her sick leave. Mrs McLennan said this was never an issue. Throughout her employment, she had personally showed her care and compassion. She had lent her a car for six weeks, when her car was damaged and paid her extra hours, when she did not work, if she was short of money.
[31] Mrs McLennan then raised the incident in which the applicant pushed Ms Lynch and slammed the door on her. The applicant was taken aback when she told her Ms Lynch was hurt and physically dazed. However, the applicant showed no remorse. She agreed the incident had occurred, and said 'yes, but it was not bad'. The applicant did not try to explain, or give any indication she would not repeat this conduct. When Mrs McLennan asked about how she got on with Ms Lynch, the applicant claimed she was submissive to her, never spoke over her and did whatever she said. Mrs McLennan knew this to be untrue. During the meeting, whenever the applicant spoke about Ms Lynch, she impersonated her in a child's voice. Mrs McLennan found this 'condescending'. At one point, the applicant had added, 'I don't need to be told by a 20 year old how to fold towels, how rude is that'.
[32] Mrs McLennan agreed the applicant denied all of the allegations; rather she claimed she was the one being bullied by Ms Lynch. She gave the towel folding incident as the only example. In addition, she alleged the other staff never cleaned up after themselves.
[33] During the meeting, the applicant's mother made numerous interruptions. Mrs McLennan asked her to not make comments. At the end of the meeting, her mother said 'it's a forgone conclusion and you have already made up your mind'. She then walked off. Mrs McLennan told the applicant she would need to discuss the matter with her husband. Mrs McLennan went home and looked up the Fair Work Website and the Code and went through the Code's Checklist.
[34] Mrs McLennan and her husband decided that Ms Lynch and Ms Dahal had not made up their allegations and the applicant's instant dismissal was warranted, due to gross misconduct. By remaining in the business, the applicant was a threat to the health and safety of the other employees in the Salon.
[35] Mrs McLennan understood her husband called the applicant on 3 November 2017 and advised her of her dismissal. He told her she would be paid outstanding entitlements and for the previous weeks' work. Further, if she signed a Deed of Release, another two weeks pay would be paid. The payments were made on 7 November 2017. A few days later, the Salon received a workers' compensation claim from the applicant.
[36] On 24 January 2018, Mrs McLennan was made aware the applicant had contacted another employee, (Bianca), and asked her to make a statement, which Bianca said was untrue. Mrs McLennan and Lexy subsequently received abusive and intimidating text messages from the applicant. When Lexy asked her to stop contacting her, she threatened to sue her. As Lexy was 21 years old, she was extremely distressed by these threats and reported the text messages to the Police.
[37] Mrs McLennan believed the respondent followed the correct procedure in dismissing the applicant. She was in breach of her contract of employment; posed a threat to the other employees; had physically assaulted her Manager and showed no remorse.
[38] In cross examination, Mrs McLennan confirmed her daughter Lexy would complain to her about not knowing what mood the applicant would be in at work. Mrs McLennan understood her mood swings may have related to a medical condition. She and the applicant had spoken about it freely; Mrs McLennan actually recommended a doctor to her.
[39] Mrs McLennan said the respondent's policies and procedures were located in a file in the Staff Room. The applicant had not helped to put any of these policies together. The staff would also have weekly staff meetings. After one meeting, the applicant had said she had been offered another job and would take it, unless she got more hours.
[40] Mrs McLennan explained the circumstances of her loaning the car to the applicant. The applicant's car had been torched in a domestic violence incident. As she had previously been charged with drink driving, the applicant was upset she might lose her license and not be able to get to work. (At the time Mrs McLennan wrote a lengthy letter to get her off the drink driving charge). All of the team were upset with the domestic violence the applicant was experiencing, including her receiving a black eye and having her car torched. Mrs McLennan had loaned her a car and assisted her to get finance for a new car. The applicant's claim she had 'forced' the car on her, was 'unbelievable'.
[41] Mr McLennan provided three statements. The first dealt with his involvement in a week long investigation of the allegations made by Ms Lynch and Ms Dahal. Attached to his statement were the statements his wife had asked them to prepare after she had spoken to them on 28 October 2017. As much of Mr McLennan's first statement relates to factual matters consistent with his wife's version of events, and these facts are largely not disputed by the applicant, I shall not repeat that evidence here.
[42] Mr McLennan believed the allegations were serious and had been corroborated by Lexy. Prior to the meeting with the applicant (which he could not attend), he was made aware of a text message from the applicant which read:
'I'm being unfairly victimised and I'm very distressed over this. Because I'm being stood down from work I need to be payed (sic) my full wage. I believe a mediator needs to be involved to resolve this issue and to avoid any possible legal action.'
Mr McLennan was concerned at this message, because at that point there had been no discussion with the applicant, or any decision taken, yet she was mentioning legal action.
[43] After the meeting, Mr McLennan was informed by his wife that the applicant had completely denied all of Ms Dahal's allegations, and while accepting there was an incident with Ms Lynch, claimed it was not serious. She had shown no remorse. He believed the applicant's conduct stemmed from the fact she would not accept Ms Lynch as the Manager. After considering the allegations, the applicant's responses and the impact on the other staff and the workplace, he decided the applicant's conduct was sufficiently serious to justify her immediate dismissal.
[44] On 3 November 2017, Mr McLennan rang the applicant and told her of his decision and the reasons for it. He told her that she had rights to pursue, but if she agreed to the dismissal, he would provide a further two weeks' pay. Mr McLennan explained that he was not concerned about the dismissal being unlawful, but he wanted to avoid the time and cost of defending a possible unfair dismissal claim. He sent the applicant a draft Deed of Release. She suggested a few minor changes, which he accepted. There was then an email exchange, which I quote below:
I still don't fully understand again. I thought I was to be payed anyway. Being quiet (sic) distressed and heavily medicated when you spoke to me Friday as you knew.
It's all to (sic) much pressure. Im so confused feeling harassed with phone calls also telling me to reply same day to your emails or the offer is off. I don't even know what offer?
Making my stress anxiety worse I need time to get advice gain some clarity to properly understand everything.
Doctor advices (sic) me to stay calm. Anxiety is just so bad with everything that's happened. I need you to give me time. Please stop pressuring me with ultimatums I can't handle the harassment. Im highly medicated and as I've said its to (sic) much stress to reply straight away I need to seek proper advice to understand.
I have not harassed you, but am merely trying to get this sorted out with you. On Friday when we spoke, I asked you whether you were OK and did you want me to call you back, you responded by saying you were fine. As I explained to you then, I terminated your employment because, after investigating the matter I was convinced on the balance of probabilities that you had behaved unacceptably towards the other staff and that behaviour constituted gross misconduct.
As per you (sic) agreement, Emerse can summarily terminate your employment with immediate effect when your behaviour constitutes gross misconduct. That's what I did Friday.
Based on that, Emerse's only obligation us to pay you for the hours you did not work whilst suspended (38 hours to last Friday) and any outstanding annual leave. As a gesture of goodwill, I was prepared to pay you a further two weeks subject to the signing of a Deed of Release which I sent to you on Friday. On that day, by email, you said you would sign that subject to changing the hours, I agreed to that however you have not signed the document. That is fine and your prerogative however I need to finalise your payments based on your termination as of Friday.
Again I am not harassing you, however I have an obligation to finalise this matter including all outstanding payment to you. I have attached a letter detailing your termination and the final payments made to you.
[45] Although no Deed of Release was signed, all outstanding entitlements were paid to the applicant on 7 November 2017.
[46] Attached to Mr McLennan's second statement are a series of text messages from the applicant to Mrs McLennan and her daughter, Lexy. I will not recount all of them. One however, dated 25 January 2018, will be sufficient to demonstrate their content and tone. It reads:
This is Anita. My cell is not with me. I am taking this to a court of law and after the first stages I want to take other matters to court. You no longer scare me. You have bullied me for so long Isabel. BUT I received very good legal advice and I know my rights, not the ones you make up for me!!!!! You will not bully me any more!!!! I am exposing everything EVERYTHING!!!! I witnessed in YOUR business!!!! And NO, I am NOT settling out of the court. The public are not safe in your unhygienic practice!!!! Let's leave this for a court of law!!! Anita!!!!
Mr McLennan also attached a letter from his solicitors, (Unsworth Lawyers), to the applicant which insisted she desist from sending these threatening messages, or further action would be taken by the respondent.
[47] Mr McLennan's third statement dealt with the applicant's workers' compensation claim in which it was stated she had been 'psychologically damaged by this experience'. On 30 November 2017, the insurer, (Alliance), received a Certificate of Capacity from her treating Doctor which diagnosed an anxiety disorder worsening as a result of an injury she received on 11 August 2015. As this was well prior to her commencement of employment at the Salon, her claim was rejected on 1 February 2018.
[48] In cross examination, Mr McLennan explained that although he could not recall saying to the applicant in the phone call of 3 November 2017, 'the Salon can't take another hit', if he did say these words, he had meant that he could not afford to lose two other employees (Ms Lynch and Ms Dahal), because of the treatment she had subjected them both to. He had a responsibility to the business, and provided she was treated fairly, he had a right to terminate her employment for serious misconduct.
[49] Mr McLennan confirmed that he offered the applicant a further two weeks' pay to resolve all her claims against the Salon. The applicant had initially agreed to do so and then changed her mind. He had simply wanted to finalise all her outstanding entitlements in a Deed of Release, which he did anyway, without the signed deed. (The applicant confirmed there were no outstanding entitlements).
[50] Mr McLennan agreed that Ms Lynch's and Ms Dahal's statements, requested by his wife, were not provided to the applicant prior to her dismissal. However, his wife had discussed the allegations with the applicant and the incidents they related to, and she had responded in the meeting on 2 November 2017.
[51] The applicant described her extensive involvement, training and experience in the beauty treatment industry since 1992. Over her career she has trained over 20 staff. She described herself as a highly regarded employee and a respected member of the beauty therapy community.
[52] The applicant claimed she was surprised when she joined the respondent that there were no policy and procedures for the daily running of the Salon. She had mentioned this to Mrs McLennan on several occasions, until Ms Lynch commenced as Salon Manager. She attached to her statement a lengthy series of emails, to and from Mrs McLennan, to demonstrate they had a friendly relationship and Mrs McLennan had confided in her on business and family issues.
[53] The applicant said she welcomed new staff and looked forward to them being part of the team. She had been requested to conduct some training for new staff members. She claimed that on several occasions, she received complaints from clients about other staff regarding treatments and the way staff spoke to them. As she valued her own reputation and that of the Salon, she advised Mrs McLennan of this feedback. However, Mrs McLennan 'laughed it off' as 'they (the staff) are young'.
[54] The applicant claimed her relationship with Ms Lynch was close and they drove to work together. They got on well and had fun at work. Ms Lynch would even ask her for work advice. She believed it 'bothered' Ms Lynch that clients responded differently to her.
[55] The applicant stated that during her time at the Salon there were no inspections by the Department of Health. She had always insisted on the importance of hygiene in the industry. She queried Mrs McLennan's clinic experience and training, as she was not a therapist. The applicant noted Mrs McLennan complimented her on how clean the Salon was after she cleaned it. Mrs McLennan had also requested she write a cleaning procedure for the Salon. The applicant claimed she had trained staff on waxing, facials and cleaning. She had shown Ms Dahal how to clean the Salon properly.
[56] The applicant gave her version of the incident with Ms Lynch on 26 October 2017 as follows:
I answered a call in the salon it was a bad line to someone crying on the other end, the caller was identified as Isabel's daughter Lexy, I closed the sliding door, so I could hear her. Jess waited until the call was finished and asked, "what's was (sic) going on?" all I knew was that Lexy was having the day off. Jess got annoyed at my response and said words to the effect of "they just hang up on me" and stormed off, I assume she was referring to Lexy.
[57] The applicant was critical of Ms Dahal as to her cleaning and giving herself facials. Mostly it was she and Bianca who had worked on cleaning the Salon. The applicant claimed Mrs McLennan instructed her to tell Ms Dahal not to do treatments on herself during business hours. Lexy and Bianca had witnessed this conversation. She had carried out Mrs McLennan's instructions. However, she now accepted, in hindsight, it was Ms Lynch's role as Salon Manager, to deal with issues concerning Ms Dahal.
[58] The applicant claimed Ms Lynch had become aggressive towards her in a conversation, on 28 October 2017. The applicant further claimed that Mrs McLennan had told her that Ms Lynch had said she (the applicant) was going to leave. These 'constant whispers' about her leaving were nonsense. She believed Mrs McLennan was supportive of her as someone who always told the truth.
[59] It was the applicant's evidence that Mrs McLennan had insisted she use her spare car, so she could get to work. She felt obligated to come to work, as other staff were on leave, even though she had been injured and she should have been on sick leave. The applicant denied the bullying and racist allegations as false. The respondent did not follow proper dismissal procedures. She claimed to have been psychologically damaged by the experience. She had become withdrawn and emotional and had lost being part of a work family. She believed that going through this process would help to rebuild her life.
[60] The applicant was not required for cross examination. However, Mrs McLennan denied much of her evidence in a reply statement. In that statement, Mrs McLennan responded as follows:
The Department of Health is not the regulatory authority of beauty salons; they are regulated by local government. In her case; Kuringai Council.
She had not requested the applicant draft a cleaning procedure. She had asked for the applicant's contribution to the roster and she did not respond. The applicant had never written anything.
She had not told the applicant she could have whatever roster she wanted. The applicant was off work at the time.
She had offered the spare car as a courtesy to her, as she was stressed at not having a car for personal use, particularly as she had been previously charged with DUI and had faced losing her licence.
She had been approached by a victims of crime support person after the applicant's car had been torched. The applicant was very stressed as to how she was going to get to work and to get around.
The car was not a spare car. It belonged to her daughter and although it was an inconvenience, she had felt sorry for the applicant. She lent it to her with a full tank. She also gave her a $100 gift voucher, as the applicant told her she had lost her gym gear in the car fire.
The applicant had a payout from her insurance after some weeks and had made no attempt to return the car in the four weeks she had it.
[61] Ms Cachia said she was surprised the meeting with her daughter and Mrs McLennan took place in a public coffee lounge and not in private. She felt 'something was not quite right' by the way Mrs McLennan was talking and not allowing her daughter to put her side of the story. They were not shown the statements from Ms Lynch and Ms Dahal which Mrs McLennan told them she had taken from them. Ms Cachia said her daughter was quite distressed. When she tried to remind her daughter of a few points, Mrs McLennan aggressively told her not to speak.
[62] Ms Cachia believed that it was Ms Lynch who was bullying her daughter by spreading malicious rumours about her. Her daughter had raised this with Mrs McLennan who just 'swept it under the carpet'. Ms Cachia believed her daughter was a valued employee who displayed high standards of work ethics and respect for fellow employees. She had never been accused of bullying or racism.
[63] Ms Cachia claimed that Mrs McLennan had mentioned to her, on several occasions, that Anita was her best therapist, highest earner and all the clients and staff loved her. However, these accusations have detrimentally affected her mental health and self-esteem.
[64] Ms Cachia concluded by stating:
Anita throughout all her school and working years has never ever had a problem with other girsl and as far as bullying or racism is concerned is out of the question. Having attended an all-girls private catholic school and working in an industry where the majority is women, this problem would have definitely come up before this. She is one of the most compassionate and honest girls you would ever meet. All I can say is let's hope the truth will over ride these false and damaging accusations.
[65] In cross examination, Ms Cachia agreed that at the time, she had not raised the inappropriateness of the cafe venue for the meeting on 2 November 2017. However, she still believed a more private place should have been arranged. Ms Cachia did not believe her daughter received a 'fair go' and the process was wrong. The girls should have discussed any issues amongst themselves. Ms Cachia agreed she was not present at any of the incidents leading to the allegations against her daughter.
[66] Mr McLennan submitted that two witnesses had corroborated the evidence as to how badly the applicant had treated them. The applicant simply denied the allegations or claimed they were not very serious. Mr McLennan said he went further than the Code required as to a reasonable belief of the applicant's behaviour. He had conducted an investigation and gathered evidence. While not providing the applicant with the witness statements, his wife had discussed the contents with her and sought her response.
[67] The applicant submitted that when she was first told of the allegations against her she was informed it was two bullying complaints. During the meeting on 2 November 2017, it became bullying and racism. Then it became gross misconduct. She had never seen any evidence of such conduct. It was all unfair and could have been easily handled by talking to everyone involved.
[68] The applicant denied ever pushing anyone at any time, and she had no reason to. She claimed she did her share of cleaning up and mopping, but she was often busy and they all worked as a team. The applicant denied treating 'anyone like a dog' or that she was 'racist'. She had gone to a multicultural school and had friends from everywhere. The applicant was not seeking reinstatement, although she had not secured alternative employment. She claimed this experience had 'wrecked' her birthday, Christmas and New Year and she had put off an operation because she was dedicated to her job.
[69] In reply, Mr McLennan put that to suggest it was easy to get rid of her because she was old and experienced was 'absolute nonsense'. He conceded she was a good and valued employee. However, her conduct was such that whether she was a good employee or not, was not the point. The respondent had a duty of care to all its employees.
[70] An unfair dismissal is defined at s 385 of the Act. That section is to be read in conjunction with s 396. The sections read:
What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[71] Plainly, this case falls for determination as to an objection of the respondent to the applicant's unfair dismissal application, on the basis it had complied with the Code when it dismissed her on 3 November 2017. The terms of the Code are:
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
[72] The seminal case - indeed the first Full Bench Decision which considered the Code - was Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 ('Pinawin'). After setting out a number of passages from two earlier single Member decisions concerning the application of the Code, the Full Bench of Fair Work Australia ('FWA', as the Commission was then styled), said at paras [29]-[31]:
[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
[31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo's conduct was sufficiently serious to justify immediate dismissal.' (my emphasis)
[73] Continuing, the Full Bench said at [38]:
'[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo's conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well. They directly observed his behaviour. They believed that he had made lifestyle choices that involved drug-taking and this directly related to his capacity to perform his work. His work involved close personal dealings with clients. At the time they made their decision, Mr Domingo was hospitalised. They were conscientious in considering the grounds for summary dismissal in regulatory material available on the internet. In these unusual circumstances we are of the view that the employer, when considering Mr Domingo's recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged in conduct that justified immediate dismissal on reasonable grounds. Our conclusion should not be seen as one that would necessarily be reached in all cases of out of hours misconduct or drug-taking.' (my emphasis)
[74] Pinawin continues to be cited with approval in decisions of the Commission involving the Code. Pinawin is authority for the proposition that when the Code applies to a small business, as defined, the Commission is not required to find that serious misconduct occurred, or that allegations of serious misconduct against the dismissed employee had been proven. Under the Code, the tests are only that:
the employer held a reasonable belief that the employee's conduct was sufficiently serious to justify immediate dismissal; and
that belief was based on reasonable grounds, after a reasonable investigation.
Self-evidently, both of these tests do not require findings of unfairness, in a statutory sense, within the meaning of s 387 of the Act, unless the Code had not been complied with.
[75] The Full Bench of the Commission had further occasion to consider the Code and the conclusions in Pinawin. In Ryman v Thrash Pty Ltd [2015] FWCFB 5264 ('Ryman'), the Full Bench, after expressing a view that the summary dismissal section of the Code is 'very poorly drafted' (with which I respectfully agree), because it uses discordant expressions such as 'without notice or warning', 'immediate dismissal' and 'summary dismissal' synonymously, went on to say at paras [37]-[41]:
[37] Notwithstanding that the Code, and its accompanying checklist, were apparently designed to be read as "stand alone" documents by small business employers, we prefer the view that the reference to "serious misconduct" is to be read as bearing the meaning in reg.1.07. The types of conduct expressly referred to in the Code as constituting serious misconduct are all encompassed by the reg.1.07 definition, so no direct inconsistency is apparent. The fact that the checklist invites inclusion of "some other form of serious misconduct" suggests that the identified types of conduct were not meant to be exhaustive, and it is otherwise difficult to conclude that they were meant to be exhaustive given that they do not include other types of behaviour which may well constitute misconduct justifying summary dismissal, such as sexual harassment, bullying or significant non-compliance with a lawful and reasonable direction. And, as earlier discussed, the lack of any recognised meaning at law of the expression "serious misconduct" means that the definition in reg.1.07 is necessary to give the expression a clear content.
[38] We therefore consider that the "Summary dismissal" section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.
[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
"[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held."
[40] Whether the employer had "reasonable grounds" for the relevant belief is of course to be determined objectively.
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the "Summary dismissal" section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the "Summary dismissal" section of the Code. All other types of dismissals by small business employers are to be considered under the "Other dismissal" section of the Code.
(2) In assessing whether the "Summary dismissal" section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal, and second whether the employer's belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.' (my emphasis, endnotes omitted)
See also: Hart v Forex 1 Pty Ltd ATF Trading Rental Trust [2018] FWC 942.
[76] It is clear that the applicant was dismissed for alleged serious misconduct. Serious misconduct is defined in the Act's Regulations. Regulation 1.07 sets out the definition as follows:
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.
It may be safely accepted that Mr McLennan dismissed the applicant on the basis of ss 2(a) and (b) of the Regulation.
[77] Both Ms Lynch and Ms Dahal were confident and credible witnesses. Their oral evidence was consistent with the statements they provided to Mrs McLennan at the time and the statements they provided for this case. They gave evidence about different incidents involving the applicant's conduct and behaviour, as it had affected them personally. It is clear that they had not collaborated as to the evidence they were prepared to give about serious and very unpleasant experiences. Despite Ms Dahal's accent she spoke confidently, deliberately and was easily understood. Neither of them sought to exaggerate or embellish their evidence. It was clear, precise and addressed the relevant issues which the Commission is required to determine in this case. In short, their evidence had a 'ring of truth' about it.
[78] On the other hand, although I did not have the benefit of observing the applicant in the witness box, her statement evidence hardly mentioned, let alone addressed, the allegations of Ms Lynch or Ms Dahal. Apart from just denying Ms Dahal's allegations (although accepting Ms Dahal burst into tears in front of her), and suggesting the pushing incident with Ms Lynch was not serious, the applicant was almost entirely focussed on demonstrating how experienced and valued she was, how highly regarded she was by the clients and how she was always a team player. She had went over and above her duties to assist the efficient and safe running of the Salon. This focus of course, was entirely symptomatic of what I believe was the underpinning trope of this case. The applicant was disappointed at not being appointed the Manager and resented being supervised by a much younger person, who she regarded as inferior, less skilled and less experienced than she was.
[79] That said, I have no doubt the applicant is an experienced and competent beauty therapist. The respondent conceded as much when Mr and Mrs McLennan described her as a good and valued employee. It made no sense why the respondent would seek to get rid of such a valued employee, unless it had serious concerns as to her conduct and behaviour which outweighed any of her good work qualities. As I noted in Naksone v Salvation Army [2017] FWC 2182]:
[156] This was not a case involving the performance of the applicant. Indeed, Mr Lopes said 'Mauricio was one of probably the best persons that I've ever seen dealing with customers in my whole life.' However, there is no doubt that the applicant received a warning for aggressive and bullying behaviour in May 2016. This is particularly relevant in the context of the applicant's ultimate dismissal.
[157] In my experience, there is always a temptation for a dismissed employee to conflate good work performance to explain or exculpate unacceptable conduct. Just because the applicant had good references and commendations from customers, does not mean that his aggressive behaviour and poor interactions with fellow employees and his supervisor, can just be ignored or dismissed because he was a good performer. In short, performance is not analogous to behaviour/conduct. Put another way, an employee can be a first rate, excellent performer, but have such poor interrelationship skills or contempt for authority, which makes their ongoing employment problematic, if not ultimately, untenable. So it was here.
[80] Not content with her unrealistic assessment of her own capacity and conduct, the applicant made irrelevant and implausible allegations about the safety standards at the Salon. She turned the allegations against her around to make the same allegations against Ms Lynch and Ms Dahal. There was no corroborating evidence of any inappropriate behaviour by Ms Lynch. I reject the applicant's claims to the contrary. She even got wrong the correct regulatory authority of beauty salons, confirming this was no more than an ill-considered afterthought to discredit the respondent and to deflect attention away from her own conduct. Moreover, it was most disconcerting that the applicant attempted to characterise Mrs McLennan's concern and sympathy for her personal and domestic difficulties as 'selfish', by claiming she forced the car on her. Indeed, it was not disputed that Mrs McLennan:
provided her with a lengthy letter in support for her to use when she was charged with a drink driving offence;
increased her hours at her request after a veiled threat she would leave the Salon if her hours were not increased;
gave her a $100 voucher to pay for her gym outfit destroyed in the car fire; and
gave her advice and support during the times she was experiencing personal and medical issues.
These were hardly the actions of a heartless or ruthless employer intent on forcing her out of the business. In addition, to lodge a workers' compensation claim for an injury she received before even commencing employment at the Salon, was illustrative of the contempt the applicant had for someone who she had earlier said was a friend.
[81] Regrettably, I find the applicant to be a witness of little credit. Her evidence was self-serving and/or implausible and designed to deflect from her own unacceptable behaviour. Much of her evidence was irrelevant or designed to discredit the Salon, its owners and Ms Lynch and Ms Dahal. Overall, her evidence was overwhelmed by hubris, rather than objective reality. I conclude that where her evidence conflicts with the respondent's witnesses, it is the latter which I prefer.
[82] As to the applicant's mother's evidence, I must say it was entirely predictable, but unhelpful. As I said in CKS Accountants Pty Limited t/a CKC Accountants v Emma Marshall [2018] FWC 813 at [62]:
[62] Thirdly, in my opinion, the acceptance by the Commission as to the reliability of supportive (and untested) evidence of close relatives of a litigant, should be treated with some caution; see my decision in Uckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123, 25 July 2000 at [329]-[333]. This is so because such evidence will invariably be crafted through the prism of the natural and understandable human tendency to protect a close family member and to believe everything they say, particularly where it may involve the alleged poor conduct or bad behaviour of a former employer of the relative.
[83] Moreover, the applicant's reliance on client and personal references merely demonstrates she was a capable employee, which is not disputed. None of these persons witnessed the incidents for which she was dismissed. This evidence does not assist in determining whether the incidents occurred or their objective seriousness.
[84] Having said that, I now turn to whether the Code was complied with.
[85] I agree with Mr McLennan that the respondent went further than the Code requires for a summary dismissal for serious misconduct. Not only did Mr McLennan have a reasonable belief the applicant was guilty of misconduct, the respondent sought statements from the persons directly involved, conducted an investigation, had a meeting with the applicant and her support person, considered her responses and arrived at a decision, on the balance of probabilities: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, as to her conduct.
[86] I am satisfied that the respondent's characterisation of the applicant's conduct as serious misconduct was correct. Specifically, I find that:
on 26 October 2017, the applicant forcefully pushed Ms Lynch in the chest, causing her to lose her balance and then slammed a sliding door shut in her face;
the applicant humiliated and belittled Ms Dahal by directing her to perform menial and unnecessary tasks, causing her distress and embarrassment;
the applicant was dismissive of, and undermined Ms Lynch's authority as the Salon's Manager; and
the applicant demonstrated no remorse or contrition for her conduct.
[87] On any objective view, these matters constituted serious misconduct. The applicant posed a threat to the health and safety of other employees, which left the respondent with no other choice, but to terminate her employment. I find the respondent's compliance with the Code was robust and thorough. The applicant was not denied procedural fairness. She was well aware of the allegations against her and had an opportunity to respond, with a support person present. To suggest the incident with Ms Lynch was not serious, was disingenuous and to deny all of Ms Dahal's allegations, flies in the face of all of the cumulative evidence to the contrary, which I accept.
[88] If there be one criticism of the process it is this. Mr McLennan informed the applicant of her dismissal by phone. I do not consider that informing an employee of their dismissal by phone, text or email, to be an appropriate means of conveying a decision which has such serious ramifications for an employee. As there had already been one meeting with Mrs McLennan, I can see no reason why a further meeting could not have been organised for the purpose of explaining the respondent's decision and discussing the termination arrangements. That said, I accept the respondent has no human resource or industrial relations expertise or experience and had relied on the Commission's Website information and the terms of the Code to effect the applicant's dismissal. I note that there is no stated requirement in the Code (or the Code's checklist) that the employer must convey the dismissal decision, in person. However, I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person. For example, it may be necessary where the employer believes a dismissed employee might be a threat to the safety of his/her employees or because the employee expressly did not want a 'face to face' meeting to hear the outcome of any disciplinary process. I agree with Commissioner Cambridge when he said in Knutson v Chesson Pty Ltd t/a Pay Per Click [2018] FWC 2080 at [47]:
[47] The employer provided notification of dismissal by email communication sent at 8:53pm on 6 November 2017. Notification of dismissal should not be made by email communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.
[89] Section 381(2) of the Act sets out the overarching objective in the Commission's unfair dismissal jurisdiction to ensure 'a fair go all round'. The section reads as follows:
Object of this Part
- (1) The object of this Part is:
- (a) to establish a framework for dealing with unfair dismissal that balances:
- (i) the needs of business (including small business); and
- (ii) the needs of employees; and
- (b) to establish procedures for dealing with unfair dismissal that
- (i) are quick, flexible and informal; and
- (ii) address the needs of employers and employees; and
- (c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
I am satisfied the decision I make in this case accords with the principle of a 'fair go all round'.
[90] For the aforementioned reasons, the Commission is satisfied that the respondent held a reasonable belief, based on reasonable grounds, that the applicant's conduct was sufficiently serious to justify immediate dismissal. In addition, the respondent conducted an investigation and provided the applicant with an opportunity to respond to the allegations against her. In summary, the Code was complied with. Accordingly, pursuant to s 385(c) of the Act, the applicant's dismissal on 3 November 2017, was not unfair. Her application for an unfair dismissal remedy must be dismissed. An order to that effect will be published contemporaneously with this decision.
Printed by authority of the Commonwealth Government Printer
Ms Anita Cachia
Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648
(1938) 60 CLR 336