| [2017] FWC 5460 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emma Vidovich
v
Zambrero - Victoria Park
(U2017/5406)
COMMISSIONER WILLIAMS |
PERTH, 24 OCTOBER 2017 |
Termination of employment.
[1] This matter involves an application made by Ms Emma Vidovich (Ms E. Vidovich or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Zambrero - Victoria Park (Zambrero or the Respondent).
[2] The application was not the subject of a conference with a Fair Work Commission (Commission) conciliator as the Respondent did not agree to participate.
[3] On 9 June 2017 a notice of listing was issued by the Commission advising of the hearing date and requirements to file hearing materials. The Applicant’s hearing materials were due to be filed by Monday, 3 July 2017 and the Respondent was required to file its hearing materials by 24 July 2017.
[4] On 2 July 2017 the Applicant filed an outline of arguments, two witness statements and a list of documents in support of her application. On 21 July 2017 the Respondent filed a form F3-Employer’s Response to Unfair Dismissal Application (form F3).
[5] On 26 July 2017 the Commission issued a notice of listing advising a conciliation conference would be held on Friday, 11 August 2017 to see if agreement could be reached by the parties as an alternative to proceeding to the hearing.
[6] On 9 August 2017 the Respondent requested an adjournment of the conciliation conference on the basis Mr Merweis Weisi (Mr Weisi), Owner and Manager of the Respondent, was overseas for family reasons. The Commission was provided with an electronic airline ticket receipt in support of this request.
[7] The Commission advised the parties the conciliation conference would be cancelled and directed the Respondent to advise by Thursday, 24 August 2017 of Mr Weisi’s expected return date.
[8] The Commission did not receive a response from the Respondent and consequently on Friday, 25 August 2017 my chambers sent a follow up email to the Respondent again requesting it advise when Mr Weisi was expected to return to Perth.
[9] Again no response was received from the Respondent and on 30 August 2017 I wrote to the parties advising the matter would be listed for hearing on Tuesday, 17 October 2017 and that if the Respondent did not attend the hearing the matter would be determined in its absence. The letter also noted the Respondent had not filed any witness statements or submissions notwithstanding previous directions to do so and that if it wished to file witness statements or submissions it needed to do so by Friday, 29 September 2017.
[10] The Respondent did not in any way respond to the Commission’s letter however Mr Weisi did attend the hearing on Tuesday, 17 October 2017.
[11] Evidence was given by the Applicant, Ms E. Vidovich and the Applicant’s mother Mrs Lisa Vidovich (Mrs L. Vidovich).
[12] The evidence of Ms E. Vidovich was that she was employed by Zambrero as a fast food server and cashier in February 2015.
[13] She worked part-time usually on Tuesdays, Thursdays and Saturdays. Her hourly rate was $17.50 and on Sundays she was paid $21.88 per hour.
[14] On Sunday, 23 April 2017 she received the roster for the following week. The roster showed she was to work Tuesday 25 April, Thursday 27 April and Saturday 29 April. Consequently she sent a text message to Mr Weisi asking if Zambrero’s was going to be open on Tuesday 25 April because it was Anzac Day and if so will she be getting penalty rates. 1
[15] Mr Weisi replied as follows,
“Hi Emma,
As you know I keeper the shop opened on public holidays just for my stuff to not lose there wages, otherwise, the business is very slow on those days, we don’t even make the expenses. If you guys don’t want to work I’m more than happy to keep it closed.
Thanks” (sic)
[16] Mr Weisi later explained by text message that he was talking to head office as to whether they could operate only Monday to Friday and asked Ms E. Vidovich to confirm if she would work the following day, Anzac Day, or whether he should put someone else on. She replied that she would work on Anzac Day. Mr Weisi replied as follows,
“OK it means everything is cool.”
[17] Ms E. Vidovich replied,
“I would appreciate if I could get paid some sort of penalty rate, for instance a Saturday rate, because I understand that it may be an extra expense to you but it is a public holiday and I am working part-time which includes these extra penalties but I need the work, so either way I’ll be there tomorrow at 4”
[18] The next day Mr Weisi replied,
“Hi Emma, as I have mentioned before our business is only going to pay normal rate for all the public holidays and soon it will be applied to weekends as well. Anyone willing to work for us a shift will be given to them, if it does not suit any employees they just have to let me know and I can easily replace him/her with someone else. C u at 4 pm.”
[19] Ms Vidovich worked her rostered shift on Anzac Day Tuesday, 25 April 2017.
[20] Subsequently when Ms E. Vidovich received her payslip it showed that she had indeed been paid only ordinary rates for her work on Anzac Day, Tuesday, 25 April 2017. 2
[21] The same day her payslip was sent she received a group email from Mr Weisi which was sent to all employees at Zambrero. Ms E. Vidovich’s evidence was that in the email some of the points seem to be particularly directed at her. Ms E. Vidovich was a bit upset about this and spoke to her mother and they decided that Ms E. Vidovich should go and speak to Mr Weisi about this.
[22] Ms E. Vidovich was rostered to work that afternoon at 4.00 p.m. so she went a bit earlier to speak to Mr Weisi and was accompanied by her mother.
[23] When Ms E. Vidovich met Mr Weisi she asked him why he was particularly mentioning her in the group email. He said it was because she had not worn her cap the week before and he said she looked like a homeless person and he blamed her for burning some pork from a previous shift.
[24] Ms E. Vidovich’s mother asked why she was not being paid penalty rates for working on Anzac Day. Mrs L. Vidovich’s evidence was that Mr Weisi response was that it was his choice and that he did not have to pay penalty rates for Anzac Day. He said he had a contract and that he did not have to pay.
[25] Whilst they were talking to Mr Weisi he said to Ms E. Vidovich “You’re fired, you can leave now”.
[26] Ms E. Vidovich did not understand why she had been dismissed.
[27] Ms E. Vidovich’s evidence was that she had not previously received any verbal or written disciplinary warnings.
[28] Ms E. Vidovich’s evidence was that if this had not occurred she would probably have remained working at Zambrero.
[29] Immediately after this occurred Ms E. Vidovich went on a pre-planned holiday to Europe for seven weeks.
[30] On her return from her holiday Ms E. Vidovich applied for approximately 20 jobs and commenced a new job on 5 September 2017. Her new job is casual and has similar hours and pay to her position at Zambrero.
[31] I accept the evidence of Ms E. Vidovich and Mrs L. Vidovich in full. They were not challenged on their evidence in cross-examination and both presented as forthright and open witnesses.
[32] Mr Weisi’s oral witness evidence was that he had sent photos and emails to Ms E. Vidovich a number of times but she did not comply with work regulations in the shop. Also in the presence of Mrs L. Vidovich, Ms E. Vidovich raised her voice at him and this was one of the reasons she was dismissed.
[33] Two days after the hearing of this matter Mr Weisi forwarded to my chambers by email a copy of the form F3 which had previously been filed in response to the application and was on the Commission’s file at the time of hearing. Relevantly it states that the reasons for the dismissal were,
“1-Repeatedly Not Complying with the Work Rules and Regulation.
2-Putting Our Business and Customers Health at Risk.
3-Rising Her Voice at the Employer and Not Accepting Her Fault.” (sic)
[34] Mr Weisi also sent copies of two emails which had not been previously provided to the Commission by either party.
[35] These emails appear to have been sent to all Zambrero staff, one on 10 February 2016 and the other on 2 May 2017 from “Vic Park management” and Mr Weisi respectively.
[36] The February 2016 email says the management wish to bring a few points to the staffs’ attention in regard to customer service, cleaning and uniforms which are then explained in detail. There is no reference to Ms E. Vidovich in this email.
[37] The May 2017 email begins,
“Hi everyone,
Unfortunately I have a number of issues with almost everyone working with us and it saddens me to put it in this way that I am left with no choice but to say that if it gets repeated you will lose your shift. I need everyone to put their 100% into their work, we all know that business is slow and everyone gets enough time for all the work around the shop. So act responsible when it comes to prep, cleaning customer service etc.”
[38] The email continues with five numbered paragraphs dealing with particular concerns. Two of those expressly mention Ms E. Vidovich as follows,
“1. Uniform is a must at all time if you don’t have full uniform please don’t turn up to work because I will send you back. I noticed Emma your uniform was incomplete all week last week. Also coming to work on time is important if your shift starts at 12:00 you need to be ready to work at 12 PM”
and
“3. All our meats need to be warmed up and mixed properly when it slows service time you all need to make sure that meats and beans don’t get to dry again I have shown everyone how to mix them cover also beans need to have just enough water so the bottom of the container is not all burned. Again it was Emma’s shift and I expect a lot more from my senior employees and trust that the seniors will be good role models to new employees.” (sic)
[39] Mr Weisi concludes the email which was apparently sent to all staff as follows,
“I respect and value all my workers try to keep them happy and always look after them, but I must say because I have been in food business for many years it is quite easy for me to replace them and train someone new as well and by law our business are fully protected to do so, therefore I would advise everyone to put more effort into your work.”
[40] Whilst these two emails were not put to Ms E. Vidovich by Mr Weisi during the hearing I infer from her evidence that the email dated 2 May 2017 is the email she received on that date which she was upset about because it was sent to all employees but had specifically mentioned her.
[41] In the circumstances I will have regard for these emails in making my decision but as will be seen below the Applicant has not been prejudiced by these having been provided to the Commission only after the hearing had concluded.
[42] Finally Mr Weisi also provided, after the hearing, five photographs but without any explanation as to what these demonstrate and/or their relevance to this matter. Consequently these photographs have not played any part of my considerations in this matter.
[43] Section 387 of the Act prescribes the matters the Commission must take into account when considering whether or not it is satisfied that a dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
[44] The discussion between Ms E. Vidovich, Mrs L. Vidovich and Mr Weisi on 2 May 2017 occurred at the instigation of Ms E. Vidovich. Mr Weisi had not sought to meet with her at any point to discuss any concerns he had about her work.
[45] The two concerns Ms E. Vidovich raised with Mr Weisi were both quite reasonable.
[46] It was not appropriate for Mr Weisi to send an email to all staff about concerns he had generally with them and in that email to use two examples in which he named Ms E. Vidovich. It was unsurprising that Ms E. Vidovich was upset about being singled out in this particular way by Mr Weisi.
[47] Ms E. Vidovich was also entitled to query the pay rate she received for working Anzac Day and indeed has a workplace right protected by the Act to make enquiries in relation to her employment. 3 I make no finding as to whether the pay rate she received for this day was correct or not. There is no evidence before me as to the terms of the employment and as to whether there was any applicable enterprise agreement.
[48] Mr Weisi’s oral evidence as to the reason he dismissed Ms E. Vidovich is very limited.
[49] I note that in the form F3 Mr Weisi says that the reasons for the dismissal were, repeatedly not complying with the work rules and regulation, putting the business and customers health at risk and raising her voice at the employer and not accepting her fault.
[50] The fact that Mr Weisi had been seeking confirmation from Ms E. Vidovich that she would work on 2 May 2017 and the sequence of events that day suggest Mr Weisi had not prior to the time of their discussion intended to dismiss Ms E. Vidovich for the first two of the reasons mentioned in the form F3.
[51] Mr Weisi in his evidence, which was unchallenged, says that during the discussion Ms E. Vidovich raised her voice. It can be inferred in my view in the circumstances here that it was this that caused Mr Weisi to tell Ms E. Vidovich,
“You’re fired, you can leave now.”
[52] In some circumstances an employee raising their voice during a discussion with their employer may amount to a valid reason for dismissal but there is nothing in Mr Weisi’s evidence that suggests Ms E. Vidovich’s particular behaviour was so serious as to warrant her dismissal.
[53] Whilst Mr Weisi, as is the case for all employers, had a legal entitlement to dismiss Ms E. Vidovich the Act allows the Commission to review an employer’s decision to dismiss to decide whether it was harsh, unjust or unreasonable. The provisions of section 387 set out those matters that the Commission must consider in this regard.
[54] The first consideration is whether there was a valid reason for the dismissal. The Commission must consider whether the reasons for the dismissal were sound, defensible or well founded. The case law establishes that reasons which are capricious, fanciful, spiteful or prejudiced will not be valid reasons for dismissal.
[55] In the circumstances here I am not satisfied that there were valid reasons to dismiss Ms E. Vidovich. The concerns Mr Weisi had about her performance and non-compliance with regulations were limited and apparently were similar to complaints he had with other staff. In Ms E. Vidovich’s case Mr Weisi’s complaints were not so serious as to amount to a well-founded reason for her dismissal. Similarly his complaint that she raised her voice in discussions with him in circumstances where she was reasonably raising concerns about his actions, which she was entitled to do, was not a defensible reason for her dismissal.
[56] Mr Weisi did not notify Ms E. Vidovich of the reasons he dismissed her either before he acted on those reasons or afterward.
[57] Ms E. Vidovich was not given an opportunity to respond to the reasons for her dismissal before the decision to dismiss her was made.
[58] There was no refusal to have a support person.
[59] Ms E. Vidovich was not warned about unsatisfactory performance other than in the most general sense of concerns being brought to her attention in group employee emails. At no time was she advised that her employment was at risk if her performance did not improve.
[60] The employer is small and appears to have no human resource management specialists or expertise which may explain why the decision to dismiss Ms E. Vidovich was procedurally unsound.
[61] Ms E. Vidovich had been employed for two years and three months at the time of her dismissal.
[62] As explained above in this case there was no valid reason for Ms E. Vidovich to be dismissed and consequently I find her dismissal was harsh, unjust and unreasonable.
[63] Even if I am wrong and there was a valid reason for Ms E. Vidovich’s dismissal the failure to notify her of the reason she was about to be dismissed for, the failure to give her an opportunity to respond before the decision was made and the absence of prior warnings alerting her that her employment was at risk means the dismissal was so procedurally flawed it was unjust and unreasonable.
[64] Consequently I am satisfied that the dismissal was harsh, unjust and unreasonable. Ms E. Vidovich has been unfairly dismissed.
[65] Ms E. Vidovich has properly sought to mitigate her loss and has now found replacement employment and consequently she does not seek reinstatement. In the circumstances I am satisfied that it is not appropriate to reinstate her to her previous position with the employer.
[66] In the circumstances I am satisfied that it is appropriate that an order for compensation be made.
[67] There is no evidence before the Commission as to the viability of the employer’s enterprise.
[68] Ms E. Vidovich was employed for two years and three months.
[69] Clearly Mr Weisi has some concerns about Ms E. Vidovich’s past performance and Ms E. Vidovich also had reasons to be dissatisfied with her employer. Considering this my assessment is that if Ms E. Vidovich has not been dismissed because of the concerns Mr Weisi had about her performance and/or the complaint Ms E. Vidovich had about how she was being paid, her employment would have continued not longer than a further 14 weeks.
[70] Ms E. Vidovich was overseas for seven weeks shortly after her dismissal consequently her remuneration if she had not been dismissed would have amounted to the equivalent of seven weeks’ pay.
[71] The Applicant’s outline of arguments indicates that her average weekly pay had been $312 per week therefore her remuneration had she not been dismissed would have been a total of $2,184.
[72] Ms E. Vidovich’s evidence was that she has been actively applying for other employment and has now gained a replacement job. I am satisfied that she has properly sought to mitigate her loss.
[73] Ms E. Vidovich has not earned any monies from a replacement position during the 14 weeks after she has been dismissed.
[74] Consequently I will issue an order [PR597002] that Zambrero pay to Ms E. Vidovich compensation in the amount of $2,184 gross from which normal tax will be deducted to be paid within 21 days of the date of this decision and order.
COMMISSIONER
Appearances:
L. Vidovich on behalf of the Applicant.
M. Weisi on behalf of the Respondent.
Hearing details:
2017.
Perth:
October 17.
1 Exhibit A2, page 2.
2 Ibid., Payslip dated 2 May 2017, page 5.
3 See section 341(1)(c)(ii).
Printed by authority of the Commonwealth Government Printer
<Price code C, PR597001>