Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal - casual given no further shifts - dismissal unfair - six months compensation

• [1] Olga Olefir has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Olefir was employed as a casual retail assistant by Brazil Catering Pty Ltd (company), which runs the Feast Delicatessen in Hampton in southeast Melbourne. Ms Olefir contends that she was dismissed, and that the dismissal was unfair because it occurred for no good reason and without a fair process. The company denies that it terminated Ms Olefir's employment and says that if there was a dismissal it was not unfair.

• [2] Ms Olefir's evidence was that on 25 February 2024 she experienced a panic attack at work after having earlier spoken to her mother who lives in the war zone in the Ukraine. She called her partner Armen Gregorian and asked him to pick her up. Her manager, Jim Totos, saw her talking on the phone and confronted her. She asked him to allow her to finish the call. Mr Totos then yelled at her to leave. She left in tears and waited on the street for Armen to arrive. Ms Olefir said that on 1 March 2024 she received a text from Mr Totos stating that there were 'no shifts available this weekend' and that 'Abhi' would be in touch with her 'for any further future shifts'. On 2 March 2024, Ms Olefir replied to Mr Totos, asking whether she was still employed by the company, but she received no response. Ms Olefir contended that she had been dismissed by the company and that the dismissal was unfair because she was dismissed without reason or warning. She refuted the evidence of company witnesses to the effect that she was often talking on her mobile phone during working hours, and said that she had never been the subject of a customer complaint or any warning from the company, whether about talking on the phone or any other matter.

• [3] Mr Totos said in his witness statement that on 25 February 2024 he saw Ms Olefir talking on her mobile phone as customers were entering the store. He asked her to finish the call. Ms Olefir motioned to him to be quiet. He told her to end the call and to serve customers. When the call was over, Ms Olefir told Mr Totos that she was sick and that her partner would collect her. Mr Totos said that if she was sick she should not have come to work, given she was serving food to customers. Ms Olefir then left the store. Mr Totos said that on 1 March 2024 he sent Ms Olefir a text stating: 'Hi Olga, I hope you're feeling better, please note that there are no shifts available this weekend. Abhi will be in touch with you for any further shifts. Thanks.' Ahbi was the person who prepared the rosters. Later that day, Mr Totos received a text from Mr Gregorian, asking him to call. Mr Totos replied that he would call the next day as he was getting on a flight. Mr Gregorian replied that the next day was not good enough as he and Ms Olefir were getting legal advice about taking action against him and the company because of his bullying behaviour towards Ms Olefir. Mr Totos said in his statement that he was shocked by the suggestion that he had bullied Ms Olefir and concluded that she had resigned or abandoned her employment. He said that, due to the allegation of bullying, he decided not to communicate further with Ms Olefir or Mr Gregorian. He said that he later notified his bookkeeper, Deborah Couturier, of Ms Olefir's resignation and of her allegations against him, and that he also notified other staff members, including Abhi.

• [4] Ms Couturier filed a statement in which she said that she normally worked from the office at the deli and could see from the closed circuit recording of the store that Ms Olefir would often talk on her mobile phone during working hours. Zlata Hanzekovic, a part-time retail assistant, gave evidence that she worked with Ms Olefir on Saturdays and that she never saw her being bullied by Mr Totos or anyone else. She said that she often noticed Ms Olefir speaking on her mobile phone and not attending to customers, and often urged her to attend to customers. She said that on 24 February 2024, a customer complained to her about Ms Olefir being rude. Ms Hanzekovic said that she often found that Ms Olefir was rude and that she kept customers waiting.

• [5] The company contended that it had not dismissed Ms Olefir and that instead she had resigned or abandoned her employment. It said that Ms Olefir had been a casual employee and that she was simply told that there were no shifts available for her at the time. She was not told that she was dismissed. Ms Olefir had not taken any further steps to inquire about available shifts, such as calling Mr Totos. The company said that it was Ms Olefir who had ended her employment and that this was evident from her own actions and those of her partner in threatening legal action.

• [6] Section 386 of the Act provides that a person has been 'dismissed' if the person's employment with his or her employer has been 'terminated on the employer's initiative' (s 386(1)(a)), or the person has resigned but was forced to do so because of the conduct of the employer (s 386(1)(b)). A person is terminated on the employer's initiative if the conduct of the employer is the principal contributing factor which results in the termination of the employment (see Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75]).

• [7] In this case, it is very clear that Ms Olefir's employment was terminated on the company's initiative. I accept Mr Totos's evidence about what he said to Ms Olefir on 25 February 2024. He did not dismiss her on that day. However, on 1 March 2024, Mr Totos sent Ms Olefir a message stating that there were no available shifts for her. Ms Olefir was a casual who usually worked on Saturdays and Sundays. From her evidence and summary of time worked, I find that for over a year Ms Olefir had been employed as a casual on a regular and systematic basis (albeit with variable hours, as is common for casuals) and I draw the obvious inference that she had an expectation of continuing employment on this basis, which was a reasonable expectation. As a casual employee, each engagement stood alone. In the absence of being allocated a shift, she had no work. Given that she had regularly been working weekend shifts, Mr Totos's advice that she had no shifts for the coming weekend gave her grounds to fear the worst. She asked Mr Totos whether she was still employed, but received no response. The only available inference from Mr Totos's failure to reply to this message was that her employment had been terminated. And indeed Ahbi never contacted her about any further work.

• [8] It is completely untenable for the company to suggest that Ms Olefir resigned or abandoned her employment in these circumstances. Contrary to the company's submission, the fact that Ms Olefir had accused Mr Totos of bullying her and had threatened legal action against him did not mean that she was resigning or abandoning her employment. There is simply no logical basis for this contention. The company asserted that Ms Olefir had repudiated her contract. This is wrong. There was no conduct on her part that came anywhere near repudiating her contract of employment. Further, there was no onus on Ms Olefir to take any further steps to clarify her employment status. She had been told that she had no shifts and her query as to whether she was still employed was ignored. There was no reason for her to call Mr Totos. The fact that she had applied for other jobs around this time does not suggest that she had resigned. It was consistent with Ms Olefir drawing the obvious conclusion that she had been dismissed. It is abundantly clear that Ms Olefir was dismissed on the company's initiative. It decided not to give her any more shifts. This was what brought the employment relationship to an end.

• [9] The company did not submit that the Small Business Fair Dismissal Code applied however I note that it had only five employees at the time of the dismissal and, assuming that it had no associated entities, it was a small business. But it is clear that the Code was not complied with. There was no misconduct as contemplated by the first limb, nor were any of the requirements of the second limb met. The Commission must therefore decide whether the dismissal was harsh, unjust or unreasonable, having regard to the considerations in s 387.

• [10] First, there was no valid reason for dismissal (s 387(a)). It has not been established that Ms Olefir did anything wrong. I find that Ms Olefir did speak on the phone during working hours but that this was not inappropriate. She was never warned or counselled about this by the company, which suggests that it had no concerns about her conduct. I accept that Ms Hanzekovic believed that Ms Olefir was rude to customers but that does not mean that this was in fact the case. The details of these incidents are not before the Commission. Ms Olefir strongly denied that she was rude. In my view, the differences in these witnesses' evidence reflects a difference of perspective; I am unable to conclude that Ms Olefir was rude without specific details of what allegedly occurred. I accept Ms Hanzekovic's evidence that a customer complained to her about Ms Olefir, but it is not known specifically what Ms Olefir is said to have done, and in any event the content of the customer's statement would be hearsay.

• [11] But even if the company were right to say that Ms Olefir spoke on the phone too often and was discourteous to customers, and that these were valid reasons for dismissal, this would be outweighed by the lack of any fairness in the process of effecting the dismissal. Ms Olefir was never told by management that she was doing anything wrong. Ms Hanzekovic said that she spoke to Ms Olefir about her interactions with customers, but she was just another employee, with no authority to speak for the employer.

• [12] Ms Olefir was not notified of any valid reason or given an opportunity to respond to any reasons for dismissal (ss 387(b) and (c)). There was no unreasonable refusal to allow a support person to participate in discussions (s 387(d)). Ms Olefir was not warned about poor performance related to the dismissal (s 387(e)). The small size of the employer's enterprise and the absence of human resources management specialists likely contributed to the procedures followed in effecting the dismissal, which were basically non-existent (ss 387(f) and (g)). This carries some weight. There are no other circumstances that I consider relevant. Taking these matters into account, I conclude that the dismissal was harsh, and unjust, and unreasonable. It was patently unfair.

• [13] As to remedy, the applicant does not seek reinstatement and I am satisfied that this would be inappropriate. In my view, compensation is clearly appropriate. Section 392 requires the Commission to consider certain matters. There is no indication that any compensation order would affect the viability of the employer's enterprise (s 392(2)(a)). The applicant had been employed for over one year (s 392(2)(b)). The remuneration she would have received, or would likely have received, had she not been dismissed (s 392(2)(c)) is in my view an amount equal to one year's remuneration: I consider that, had she not been dismissed, she would have continued to work for at least this period. She needed the extra money in addition to her weekday job in order to help her mother in the Ukraine. Ms Olefir has made reasonable efforts to mitigate her loss (s 392(2)(d)). The amount earned by Ms Olefir since her dismissal (s 392(e)) is $192.50. There is no evidence of any likely remuneration to be earned between the date of the order and the payment date (s 392(2)(f)). There was no misconduct in this case (see s 392(3)). The compensation cap must be applied (s 392(5)), which in this case is the remuneration received by the applicant in the 26 weeks preceding her dismissal.

• [14] Based on the payslips submitted by the applicant, the above considerations produce an amount of $10,485.39, less taxation as required by law. From the gross figure must be deducted the $192.50 in earnings, which gives an amount of $10,292.89. Also to be paid is 11% superannuation in respect of this amount, which is a figure of $1132.22. I will order these amounts to be paid within 28 days. An order is issued separately in PR776134.

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