[2012] FWA 2905 |
|
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Ms Vyvyanne Martin
v
Donut King Chirnside Park trading as Hersing Pty Ltd
(U2011/12235)
DEPUTY PRESIDENT SMITH |
MELBOURNE, 19 APRIL 2012 |
Harsh, unjust and unreasonable; reinstatement inappropriate; compensation awarded.
INTRODUCTION
[1] Ms V Martin alleges that her employment with Donut King Chirnside Park trading as Hersing Pty Ltd (Hersing) was terminated harshly, unjustly and unreasonably. Hersing raised a jurisdictional objection 1 and this matter was determined by Roe C on 16 December 2011.2 The issue before Roe C was whether or not there was a transmission of business so as to provide the relevant service to Ms Martin as Hersing had only recently taken over the business. Commissioner Roe found that jurisdiction existed to hear the application.
[2] When the matter came on for hearing it was adjourned into conference. In accordance with ss.398 and 399 of the Fair Work Act 2009 (the Act) I discussed with the parties the most appropriate way to deal with the matter. The conference canvassed all the matters and possible areas of agreement but regrettably a solution was not possible and it was considered that a hearing would be the most effective and efficient way to resolve the matter.
[3] The applicant appeared in person and Ms Sabrina Wu represented Hersing.
THE CIRCUMSTANCES LEADING TO THE TERMINATION
[4] Ms Martin argued that she was never given a warning in relation to poor performance or that her performance was raised with her. In these circumstances she argues that she was dismissed primarily because of her age. Ms Martin argues that Hersing took over the business and employed younger people to avoid paying her the appropriate minimum wage. Ms Martin also alleges that she was discriminated against on the basis of race.
[5] Hersing denies that it discriminated against Ms Martin on the basis of her age and submits that it engaged other employees who are older that Ms Martin. Hersing submits that Ms Martin would not make herself available for required shifts and that she was not prepared to meet the operational requirements of the business. Hersing also submits that Ms Martin was not respectful and behaved inappropriately. In this connection, Hersing submits that her work performance was poor. Hersing also states that it did not discriminate against Ms Martin on the basis of race.
[6] Hersing submits that Ms Martin was a casual employee who would not accommodate the operational requirements of the business. Further, it is submitted that Hersing did not plan to dismiss Ms Martin but her conduct on the day of termination was such that it was necessary to end the employment relationship.
THE EVIDENCE AND SUBMISSIONS
[7] Given each party was self represented it is convenient to deal with the evidence and submissions together as they tended to flow into each other.
[8] Ms Martin’s evidence was that on numerous occasions Ms Wu would say that it was cheaper to bring in a family member or a 15 or 16 year old rather than offer her shifts. Ms Martin stated that she sought to balance her attendance at university with the needs of the business but that she was being overlooked for shifts and in particular on weekends and school holidays when she was available. It was the evidence of Ms Martin that family members were used and that persons were employed to fill roster positions for which she was available.
[9] It was the evidence of Ms Martin that Ms Wu had said to her in her second week of Hersing taking over the business that she wanted to get rid of her. In addition, it was the evidence of Ms Martin that she was also dismissed because she raised her concerns about not being taxed properly; not receiving pay slips, and not receiving any superannuation.
[10] A further matter was raised by Ms Martin that when Hersing took over the business it asked all employees to disclose details of any relevant medical condition. In this connection Ms Martin disclosed that she had an allergy to certain chemicals. Notwithstanding this, Ms Martin states that she was repeatedly directed to perform duties which would bring her into contact with those chemicals and this produced serious adverse reactions.
[11] Ms Martin stated:
“During that time that I was working with the Sabrina, I felt that the way she treated me was close to or was bullying. Due to the way she treated me with loss of shifts, treating me differently, restricting me to only doing one task, talking about me to family and Niko in Chinese (which by the tone were clearly not a nice conversation about me) and constantly telling me I cost too much, I experienced many physical and psychological signs of bullying such as: loss of sleep & waking up more tired than when I went to bed, muscle aches, headaches, back pain, stress breakdowns, poor concentration, strain or personal life (end of long relationship with boyfriend), increased irritability, withdrawal, digestive problems, recurring skin irritations/disorders and increased stress.” 3
[12] Ms Martin submitted that on a least two different occasions she was asked why she was so white. Ms Martin took this as discrimination on the grounds of race. Ms Martin also expressed concern about taxation and superannuation matters but said that those matters had been taken up with the Australian Taxation Office.
[13] Ms Wu gave evidence and stated that when she took over the business she advised Ms Martin that there were two full time employees and that, as a casual, she may lose some hours. Ms Wu stated that when she had Ms Martin on weekend shift her performance did not really deserve those hours 4 so it was decided not to put her on those hours. It was also the evidence of Ms Wu that every time she produced the rosters, Ms Martin would argue with her.
[14] Ms Wu confirmed that when the hours we reduced Ms Martin would complain that she was being discriminated against on the basis of age and race. On one occasion the views expressed by Mr Martin were so loud that customers and the people in the next shop could hear. Ms Wu stated that Ms Martin was constantly rude to her.
[15] As to the type of cleaning material used which aggravated Ms Martins medical condition, it was the evidence of Ms Wu that she needed to make sure the premises were clean and that the previous approach did not produce the correct results. In response to the allegations that Ms Wu was not rostering Ms Martin on weekends because of the higher wage she was entitled to, Ms Wu stated that she did roster Ms Martin for the first couple of weeks and then decided that her attitude was such that she would not use her for the weekend work. In her evidence, Ms Wu said that whilst she was unhappy with the performance of Ms Martin nevertheless she told her she was doing a good job to begin with, but then asked her why was she lazy. 5
[16] In short, Ms Wu did not see Ms Martin as a cooperative employee.
THE ACT AND CONCLUSION
[17] I turn firstly to consider if Ms Martin was a person protected from unfair dismissal. Given the finding of Roe C, the existence of a modern award 6 together with the level of remuneration I find that Ms Martin is protected from unfair dismissal.
[18] This is a small business 7 and as a consequence the dismissal must be consistent with the Small Business Fair Dismissal Code. This dismissal would be characterised as an “other Dismissal”. In this connection there is a requirement that if an employee’s capacity or conduct may give rise to their dismissal then the employee must be warned, preferably in writing of the risk of being dismissed if there is no improvement.
[19] It is clear from the evidence that this did not occur
[20] In considering applications pursuant to s.394 attention must be given to s.387 which provides:
“387 Criteria for considering harshness etc.
“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
(h) any other matters that FWA considers relevant.”
[21] It is to each of those factors that I now turn.
[22] From the evidence of Ms Wu it is clear that she considered the dismissal to be related to capacity and/or conduct. If this was the case then there was no warning about that behaviour and indeed the reverse is true. Whilst Ms Wu is a small business owner and she wanted to avoid conflict, it is nonetheless important that employees are advised if their capacity or conduct might give rise to the termination of their employment.
[23] From Ms Martin’s point of view it was because Ms Wu was just seeking to avoid paying the higher rate for a person working during weekend hours. However, Ms Wu stated that she kept Ms Martin on during the weekend until her behaviour was such that she reached the conclusion that she didn’t deserve those hours. It is also relevant to observe that the employer has the responsibility to manage the business in the most efficient and cost effective means and the lawful use of junior rates 8 does not give rise to discrimination. There was no other allegation which went to the issue of age.
[24] On the application of the Small Business Fair Dismissal Code there was not a valid reason for the termination of employment on Hersing’s own case because it had not warned her of any conduct which it found unacceptable. I find there was no valid reason for the termination of employment of Ms Martin.
[25] It follows that the Hersing did not adopt any processes in compliance with s.378(a), (b), (c), (d) and (e).
[26] I now turn to s.378(f) and (g). This is a very small business and it is apparent that the owners are not experienced in business management. Given there are only 6 employees it is also evident that there is no dedicated human resource function. However whilst process can be important, what is significant is the obligation to be fair in dealings with employees. This is not a complex concept.
[27] I am not persuaded that Hersing was fair in its treatment of Ms Martin. It also appears to be the case that Ms Martin may not have conducted herself in a respectful manner towards her employer. This can be different from simply standing up for oneself in a difficult power imbalance in a small business.
[28] Finally I turn to any other matter that FWA considers relevant.
[29] Whilst the relationship between Ms Martin and Hersing may not have been ideal, it is still the case that the employer has the ability to impact upon an employee in a detrimental way by terminating their employment. This removes income from an employee (even for a university student) and creates a blemish on their employment history. This can too be significant. I have given consideration to the allegations of discrimination on the basis of age and race. On the material before me I am unable to firmly conclude that there has been discrimination on the basis of age. In relation to a comment that Ms Martin looked so white there is no evidence as to action was taken against her because of her race. Ms Martin found the comments both inappropriate and insensitive and that may well be the case but that was a far as her submission went.
[30] Against this background I find that the termination of Ms Martin’s employment was harsh, unjust and unreasonable.
[31] I now turn to remedy and in this connection ss.390, 391 and 392 are to be followed.
[32] To begin it is clear that reinstatement is inappropriate. Therefore I turn to whether or not compensation should be awarded.
[33] Hersing has put no submission on the effect of any order on its viability and therefore that is not a relevant consideration. As to s.392(2)(b), I note that Ms Martin is not a long serving employee with the current owner of the business but had some 5 years service with the business. This is a factor which weighs in favour of Ms Martin.
[34] Ms Martin has sought to mitigate her loss by seeking, and obtaining, further employment as a casual employee during the tennis. This is a factor which needs to be taken into account as the rate of pay for this position was higher than that she would have earned at Hersing [see s.392(2)(c)]. Ms Martin seeks 10 weeks compensation as she submitted that it was two and one half months until she found paid work. Her evidence appeared to exclude the employment period at the Australian Open as this was not considered a “normal job.” 9
[35] There was no detail advanced by Ms Martin as to her earnings over the two week period of the Australian Open but her income for that period could have been significant compared to what she was earning with Hersing. [see s.392(2)(e)]
[36] There has been no evidence from Ms Martin that the amount she is currently earning in her new position is more or less than she received from Hersing. [see s.392(2)(f)] Finally, there are no other relevant matters.
[37] In assessing the compensation to be awarded I have decided to discount the 10 weeks by:
[38] In awarding compensation consideration needs to be given to what might have been her regular hours if the employer not behaved unfairly. Her hours ranged from 27 per week to finally 4.5 per week but more around the 14 hours per week. The rate that Ms Martin was receiving was, on her evidence, $20 per hour. I have decided to award an amount of $1,120 gross. This, of course, is subject to the necessary taxation.
[39] The order is attached.
DEPUTY PRESIDENT
Appearances:
V. Martin the applicant.
S. Wu on behalf of Donut King Chirnside Park trading as Hersing Pty Ltd.
Hearing details:
2012.
Melbourne:
March, 6.
1 Minimum period of employment
3 Written submissions para 12
4 Transcript PN80
5 Transcript PN
6 General Retail Industry Award 2010 [MA000004]
7 Seven employees
8 See s.25 of the Age Discrimination Act 2004 (Cth)
9 Transcript PN109
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