Commission upholds unfair dismissal application and orders payment of notice to apprentice hairdresser
The Commission has ordered payment of 2 weeks’ notice to an apprentice hairdresser after finding that her employment was ended at the initiative of the employer.
The applicant was an apprentice hairdresser at a salon owned by the respondent. The applicant asked the respondent for a pay rise, to which the respondent walked away and later had asked to have a discussion with applicant in the back of the shop. After this discussion, the working relationship ended following a text message exchange. In the exchange the respondent refused the applicant’s request for payment of two weeks’ notice but said they could transfer the applicant’s apprenticeship.
The applicant made an unfair dismissal application to the Commission.
The applicant contended she was unfairly dismissed and sought two weeks wages and three days’ pay for lost wages when attending the Commission. The respondent did not attend the hearing.
The Commission noted it must decide whether there was a dismissal, if so whether it was harsh, oppressive or unfair, should compensation be awarded and if so, how much.
The Commission found that the intended outcome of the text message exchange was termination of employment or dismissal even though the respondent did not expressly say this to the applicant. The Commission noted that this was apparent from her reference to the working relationship being in the past tense, her statement that that day’s events had gone too far, her reference to her ‘decision’ and to calculating and depositing money that was due to the applicant. The Commission noted that the respondent said nothing to suggest employment was still on foot. The Commission found that there was a dismissal.
The Commission found that because the dismissal was effected without giving any notice, or payment in lieu of notice, it was a summary dismissal. The Commission found that the summary dismissal was not justified because there was no serious misconduct by the applicant. The Commission found there was no evidence of wilful or deliberate behaviour by the applicant that was inconsistent with employment continuing. The Commission noted it was reasonable for the applicant to raise the topic of her rate of pay with the respondent. The Commission found that the dismissal was unfair.
The Commission considered authorities on the assessment of compensation for unfair dismissal and noted that it was unable on the evidence to calculate the applicant’s loss precisely. The Commission found that two weeks’ pay would likely be sufficient to compensate the applicant to the full extent of her actual loss. The Commission noted reinstatement was not sought or appropriate as the applicant had secured alternative employment.
The Commission upheld the application and issued orders to the effect of amending the respondent’s name, declaring the dismissal to be harsh, oppressive and unfair, and for the respondent to pay $1,366.48 to the applicant, being 76 hours at the rate of $17.98 per hour.
The decision can be read here.