UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00761

DELIVERED : MONDAY, 17 October 2022

FILE NO. : U 85 OF 2022

Applicant

AND

Tamana Sharif as Trustee for KHEIRKHAH FAMILY TRUST

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal – Termination of employment – Apprentice – Was there a dismissal? – Did the applicant’s conduct justify dismissal? – Dismissal found to be harsh, oppressive and unfair – Compensation for loss of wages

Legislation : Industrial Relations Act 1979 (WA) 

Result : Application upheld

Representation:

Applicant : Ms S Fermo on her own behalf

Respondent : No appearance

Case(s) referred to in reasons:

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8

Li v Haydar Family Restaurants T/A McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303

Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

Ex Tempore

1         The applicant, Ms Shanley Fermo started her hairdressing apprenticeship at Natural Elements for Hair, a salon owned by the respondent, Ms Tamana Sharif as trustee for Kheirkhah Family Trust. Natural Elements for Hair is a small business, with only two or three employees working in addition to Ms Sharif at any one time. Ms Fermo’s and Ms Sharif’s working relationship lasted only 18 months. Ms Fermo worked her last shift on 28 June 2022. On that day, she and Ms Sharif said things to each other that neither liked hearing. A text message exchange following that discussion documented the end of the working relationship.

2         Ms Fermo is seeking compensation for what she says was an unfair dismissal. She is an ‘employee’ as defined who has standing to bring this claim: Industrial Relations Act 1979 (WA) (IR Act), s 7 and s 29(1)(c). Her claim was filed in time.

3         I must decide:

(a) whether there was a dismissal, that is, termination of Ms Fermo’s employment at Ms Sharif’s initiative;

(b) if there was a dismissal, was it harsh, oppressive or unfair. This depends on whether Ms Sharif had a valid reason for the dismissal related to Ms Fermo’s conduct; and,

(c) if the dismissal was harsh, oppressive or unfair, should compensation be awarded. If so, how much?

Was Ms Fermo dismissed?

4         The first issue is whether there has been a dismissal for the purpose of s 29(1)(c) of the IR Act, that is, was there some action on the part of Ms Sharif which led to or effected the termination of Ms Fermo’s employment: Li v Haydar Family Restaurants T/A McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303 at [60].

5         There will not be a dismissal if Ms Fermo resigned or ended the employment by her own will.

6         Ms Sharif did not attend the hearing of this matter, so Ms Fermo’s evidence was the only evidence before the Commission, and it was uncontested.

7         Ms Fermo started working for Ms Sharif in early 2021.

8         On 28 June 2022, Ms Fermo was at the front of the salon when she asked Ms Sharif for a pay rise. She said that Ms Sharif walked off, but later pulled her into the back of the shop to talk to her. Ms Sharif told her ‘If I’m not doing enough for you, you should leave’ or something to that effect. Ms Fermo responded that her concern was not about whether Ms Sharif was doing enough, but rather was about her own work being valued.

9         This conversation happened at around 2.00 pm. Ms Sharif did not speak to Ms Fermo for the rest of the day. Ms Fermo finished work at her usual time of 5.00 pm.

10      That evening, Ms Fermo received a text message from Ms Sharif. It said (in part):

I really enjoyed working with you, but it’s okay things happens in the salon and we both been part of it…

…

The conversation we went through today it’s gone too far at this point it’s not only about the money the things you said to me I found it very disrespectful…

…

…[I]f someone comes and tells me things like that being the owner of the salon it’s very difficult for me to take it.

I don’t want to waste your time and my time at this point.

…

I’m not sure if my decision is correct or not, but at this point I want you to spend more time looking for a job for you and best of luck with everything. I don’t want to be an option[.] [I]f you can’t find a pay rise somewhere then I’m still there for you.

Even if you find a job and give me a notice I don’t need any notice from you.

I did my best for you, if it’s not enough its totally ok my love.

…

I will calculate all your money deposited to your account.

Please accept my apology ☹

11      Ms Fermo responded to this text message requesting payment of two weeks’ notice, confirming that she would ‘from now 28th of June to the 12th of July…be leaving the salon with or without a new job’.

12      Ms Sharif refused to pay or give notice, but said ‘the best [she] could do’ was transfer Ms Fermo’s apprenticeship.

13      Ms Sharif did not use words, either in person, or in any writing, expressly saying that she was terminating the employment or dismissing Ms Fermo. But it is clear from her text message of 28 June 2022 that she intended that be the outcome. She wanted the employment to end and she decided to end it. This is apparent from:

(a) her reference to the working relationship in the past tense (‘I really enjoyed working with you’);

(b) her statement that the events of the day meant ‘it’s gone too far’;

(c) her reference to her ‘decision’; and,

(d) her reference to calculating and depositing money due to Ms Fermo.

14      Further, when Ms Fermo asked for notice or pay in lieu of notice, Ms Sharif said nothing to suggest that the employment was still on foot, such that payment was not necessary. Rather, she simply sought to justify non‑payment of notice on the basis that she was the business owner, and did not want to pay notice in circumstances where Ms Fermo had acted in a disrespectful way towards her.

15      A reader of the text message exchange would reasonably conclude that it was bringing the employment relationship to an end.

16      Accordingly, I find that the text message exchange of 28 June 2022 effected the termination of the employment, and that the termination was at Ms Sharif’s initiative. There was a dismissal.

Did Ms Fermo’s conduct justify dismissal?

17      There is a clue in Ms Sharif’s text messages that the reason she had decided to end the employment was because Ms Fermo had challenged her, either on money, or on her management of the business, or both. She found those challenges disrespectful.

18      Ms Fermo’s evidence about the relevant conversation was that it concerned only her request for a pay increase.

19      The test for determining whether a dismissal is unfair or not is well settled. The question is whether the employer acted harshly, unfairly or oppressively in dismissing the employee: The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.

20      Because the dismissal was done without giving any notice, or payment in lieu of notice, it was a summary dismissal. Summary dismissal will be justified only where an employee has committed an act of serious misconduct. Serious misconduct means wilful or deliberate behaviour by an employee which is inconsistent with the employment continuing. It includes things like theft, fraud, assault, and disobeying lawful and reasonable orders.

21      The employer has the onus of showing that there was serious misconduct justifying dismissal. Whether there is misconduct, and the degree that will justify disciplinary action, are questions of fact: Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 citing Clouston & Co v Corry (1906) AC 122.

22      There is no suggestion that when she raised the matters she was complaining about, Ms Fermo used offensive or abusive language. It seems that Ms Sharif’s perception that the communications were disrespectful arose merely because Ms Fermo raised her issues, concerns or request, not because of the way she communicated or the language of the communication.

23      It is legitimate and reasonable for Ms Fermo to have raised the topic of her rate of pay with Ms Sharif. Even if she had also raised or commented on Ms Sharif’s demeanour, that too is a matter which it was legitimate for her to raise, being a matter which impacted on her work and employment.

24      I am not making any comment or finding about whether Ms Fermo’s concerns were reasonably held or not, or whether Ms Sharif ought to have made any concessions in relation to them. I only mean that if they were matters that were on Ms Fermo’s mind and affecting her enjoyment of her work, it was okay for her to talk to Ms Sharif about them. It was not misconduct for her to tell Ms Sharif these things, or even to argue about these things.

25      Ms Fermo’s conduct was not misconduct, and it did not justify dismissal from her employment. Accordingly, the dismissal was unfair.

Should Ms Sharif compensate Ms Fermo, and if so, by how much?

26      Ms Fermo seeks two weeks’ wages as compensation for unfair dismissal. She also seeks three days’ pay for her lost wages when attending at the Commission. She does not seek reinstatement. That is, in part, because since the dismissal, she has secured alternative employment. This fact means that reinstatement would be inappropriate.

27      The principles in relation to the assessment of compensation for unfair dismissal claims are well settled: Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8.

28      The award should compensate the unfairly dismissed employee, as far as possible, for the ‘…loss or injury caused by the dismissal’: IR Act, s 23A(6). An employee should be awarded a sum that they would have earned had the employment continued. An unfairly dismissed employee is to be compensated to the fullest extent of their loss but the calculation of loss must not be arbitrary: Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107.

29      Ms Fermo was earning $17.98 per hour in her employment with Ms Sharif. She found a new full‑time job paying at a higher hourly rate within a week of finishing with Ms Sharif. She was unclear about when she actually commenced the new job.

30      I am unable on the evidence to calculate Ms Fermo’s loss precisely, but two weeks’ pay is likely sufficient to compensate her to the full extent of her actual loss. The award will be $1366.48 gross being 76 hours at the rate of $17.98 per hour.

31      The orders will be:

(a) the name of the respondent will be amended to Tamana Sharif as trustee for the Kheirkhah Family Trust;

(b) declaring the respondent’s dismissal of the applicant to be harsh, oppressive and unfair; and,

(c) for the respondent to pay the applicant compensation in the sum of $1,366.48 within 21 days of the date of the orders issuing.