CITATION : 2013 WAIRC 00865 CORAM : CHIEF COMMISSIONER A R BEECH HEARD : WEDNESDAY, 25 SEPTEMBER 2013 DELIVERED : TUESDAY, 15 OCTOBER 2013 FILE NO. : U 83 OF 2013 BETWEEN : DESIREE MIDDLETON Applicant AND CARL CASSETTAI Respondent CatchWords : Industrial Law (WA) - Termination of employment - Alleged harsh, oppressive and unfair dismissal Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(i) Result : Claim of unfair disimssal dismissed Representation: Applicant : Ms D Middleton Respondent : Mr C Cassetai Reasons for Decision 1 Ms Middleton had been employed as a men’s hairdresser at Mr Cassettai’s shop since 21 May 2012. She claims that her dismissal on 1 May 2013 was harsh and unjust and therefore unfair. 1716 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Ms Middleton’s Evidence 2 Ms Middleton says that her dismissal was unfair because while she was on a three-week holiday in February 2013, Mr Cassettai had advertised for a replacement to fill her position. On her return to work on 5 March 2013 Mr Cassettai told her that her hours had been reduced from five days to three days per week. Ms Middleton says she asked Mr Cassettai why none of the other employees, who are all males, had had their hours reduced. She says he replied that it was because of her holidays. 3 She responded that her taking holidays had been agreed to when she had been employed. She said to him "Well, I thought it was a little bit unfair while I was holiday you made this decision without coming to me first. You just sort of went behind my back and did it." She said it started getting a little bit heated and she says Mr Cassettai said, “Well, that is how it is. If you don’t like it, find another job.” Ms Middleton felt she had to accept the reduction in her hours and did so. 4 Ms Middleton’s evidence is that approximately eight weeks later, on 1 May 2013, Mr Cassettai spoke to her saying ‘There’s too many of us now’ and he gave her four weeks’ notice. Ms Middleton continued working that day. Ms Middleton attended work on 2 May with every intention of working that day, however she became sufficiently upset that she told Mr Cassettai she was not feeling very well and was unable to continue the rest of the day. She asked if she could be paid for the days that she had worked, meaning 1 and 2 May. Mr Cassettai agreed and paid her her wages. Ms Middleton then went home. 5 She made an appointment to see the doctor on the Friday (3 May) because she was not feeling very well and the doctor gave her three or four weeks’ leave from work. She informed Mr Cassettai that she was taking time off work due to the emotional stress that she was experiencing. Ms Middleton’s evidence is that her anxiety progressively got worse just having to think about having to find another job when she knew there would not be a job for her because of the time of year. In fact she did not return to Mr Cassettai’s shop. Her employment ended with the expiry of the four weeks’ notice given to her, which Ms Middleton accepts was 28 May 2013. 6 Ms Middleton asks if, as Mr Cassettai states, there was insufficient work for her, why did he employ somebody else to do exactly the same work as she was doing while she was on holidays? If there was insufficient work then there was not the basis to employ another person. She is seeking to be paid for the four weeks’ notice for which she was unable to work due to the stress and anxiety placed upon her by the dismissal. Mr Cassettai’s Evidence 7 Mr Cassettai’s evidence is that he works in his shop as a hairdresser. He was involved in a car accident on 18 December 2012 and as a result could not work. He employed another hairdresser for two days a week, and yet another for three days a week, to take his position. Their employment had nothing to do with Ms Middleton being on annual leave. 8 When Mr Cassettai felt better and was back to work himself, on 20 April 2013 he “put off” the employee who had been working two days per week. His evidence is that he “put the other fellow off as well the week before Ms Middleton left”, but “there were too many of us again”. 9 He says that he spoke to Ms Middleton outside and said “There is not enough work for everybody now I am feeling better. I am not making any money. I want you to look for another job”. Mr Cassettai’s evidence is that he gave Ms Middleton the newspaper where there were five persons looking for work and said look, there are five persons here looking for work I want you to ring up and see if you can get a job somewhere else and you can stay here another four weeks until you find another job”. 10 Mr Cassettai says that Ms Middleton said that he should instead dismiss one of the others first (I note Ms Middleton denies saying this), and he replied that he will not do that because one of the other employees “starts early and finishes late” and Mr Cassettai said he needs somebody to come in early and to help him late at night; a second employee has been with him a long time and is 73 years old; and he did not want to dismiss the third employee because he “wants to buy the shop”. 11 Mr Cassettai emphasised that Ms Middleton was a casual employee and, in his view, could have been dismissed without any notice. Nevertheless, he gave her four weeks’ notice and in evidence said that if she had been unable to find employment after that time, he would have given her a further two weeks’ notice. The Commission’s Consideration of the Issues Raised in the Hearing Whether Ms Middleton Has Made out her Claim 12 Ms Middleton, as the applicant, has the task of showing that her dismissal was unfair. Ms Middleton gave her evidence under oath, as also did Mr Cassettai. Each was given the opportunity to ask questions of the other’s evidence. On some issues, Ms Middleton’s and Mr Cassettai’s evidence is similar. For example, their evidence regarding the conversation about the dismissal, and the reasons given for the dismissal, are similar. I find that Ms Middleton was dismissed because there was not enough work for the number of hairdressers, including Mr Cassettai himself, working in the shop. 13 On other issues, Ms Middleton’s evidence is opposed by Mr Cassettai’s evidence. For example, Ms Middleton agrees that Mr Cassettai had a car accident, but says that afterwards he continued working in the shop; he was not supposed to be working but he did work. However Mr Cassettai’s evidence that he was not able to work as he had previously worked is supported by a medical report from the Cottesloe Medical Centre of the 8 August 2013 (exhibit A). This is a report from Mr Cassettai’s doctor to a firm of personal injury lawyers. It confirms the date of the accident; it confirms that Mr Cassettai had missed work on the days following the accident and it states that Mr Cassettai was “barely able to work more than a few hours per day”. By 23 April Mr Cassettai was able to work three hours a day and, until late April, three to four hours a day with frequent breaks. There is no reason why I should prefer Ms Middleton’s evidence over Mr Cassettai’s evidence on this issue. I therefore find that it is as likely as not that after his motor vehicle accident, Mr Cassettai was not able to work as he usually did in the shop. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1717 14 Ms Middleton claims her dismissal was unfair on the basis that if there was insufficient work why did Mr Cassettai employ someone else while she was on holidays? Mr Cassettai’s evidence, that he employed two people (one for two days per week and one for three days per week) due to his being unable to work after his accident, follows logically from the finding that he was not able to work as he usually did during that time. 15 Ms Middleton referred to an advertisement from Mr Cassettai while she was away on holidays, however Mr Cassettai stated that the advertisement occurred after his accident. Mr Cassettai says that the advertisement was in January and had nothing to do with Ms Middleton being on holidays. Ms Middleton has not been able to show that this is not correct. It is up to Ms Middleton to show that her evidence should be preferred. Where it is Ms Middleton’s word against Mr Cassettai’s word, in the absence of, for example, Ms Middleton providing proof of the date of the advertisement, she is not able to show that it is her evidence which should be accepted by the Commission. As it is, the Commission simply does not know the date of the advertisement. 16 Mr Cassettai’s evidence that Ms Middleton’s dismissal occurred when Mr Cassettai resumed work when he was feeling better is supported by the medical report of him returning to work, although with frequent breaks, in late April. It is as likely as not that Mr Cassettai was returning to work as he had worked previously, and he had employed two persons to work in his position, and it seems likely that he would need to reduce staff. That is a valid reason for the dismissal of an employee. 17 Ms Middleton’s evidence is that when she returned from holidays, her hours were reduced. Mr Cassettai agrees that this was so, but says it was in the context of needing to reduce staff and he had stated to the staff that either somebody would need to go, or if everyone lost one day’s employment, it would be shared amongst them. Ms Middleton does not show that this is incorrect. When assessing whether it is likely that Mr Cassettai would reduce Ms Middleton’s hours because she had taken leave, I note that evidence is that she had also taken leave between 18 August 2012 and 11 September 2012. There is no suggestion that when she returned from leave on that occasion Mr Cassettai had reacted by reducing her hours, which suggests that Mr Cassettai accepted that Ms Middleton would be absent on leave. It makes it less likely he would reduce her hours on this occasion merely because Ms Middleton had taken leave. 18 If there are employees to be made redundant, the employer must make a choice. In this case, Mr Cassettai did so after having already terminated the employment of the employee working two days per week. In relation to his remaining employees, one of his other employees is long serving and approximately 70 years of age. A second employee works hours such that he is there early in the morning and late in the evening and this is of assistance to Mr Cassettai. A third employee is a person who may purchase Mr Cassettai’s business. 19 Ms Middleton has not shown that any of these reasons is not true, although she disputes the timing of the termination of the employment of the two-hour per week employee. Whether Ms Middleton was “Casual” or “Full-time” 20 Ms Middleton queries whether she was in reality a “casual” employee or whether she was a “full-time” or “part-time” employee due to her having a regular start and finish time and regular rostered days. Mr Cassettai says that Ms Middleton was a casual. 21 Ms Middleton is correct to say that simply being called a casual employee does not mean that one is a casual employee. However, whether Ms Middleton’s dismissal was unfair will rest upon considering all of the circumstances of the case, the same as considering whether the dismissal of any employee was unfair. That is not to say that whether Ms Middleton was in reality a “casual” employee or whether she was a “full-time” or “part-time” employee might not be important; for some issues, it might be very important. Ms Middleton raised the issue in the context of holiday pay and sick leave; however, this case is about her dismissal on 1 May 2013, not about holiday pay or sick leave. 22 Whether Ms Middleton was unfairly dismissed does not depend upon whether she was in reality a “casual” employee or whether she was a “full-time” or “part-time” employee. Even if she had been a “full-time” employee, it was still open to Mr Cassettai as the employer to choose to terminate her employment if he needed to reduce staff. Provided he did so fairly, then it would be difficult for Ms Middleton to show that the dismissal was unfair just because she had been “full-time”. Therefore, whether Ms Middleton was in reality a “casual” employee or whether she was a “full-time” or “part-time” employee is not important. Conclusion 23 Ms Middleton has not shown that her dismissal was unfair because Mr Cassettai didn’t like her going away on holidays and had advertised for a replacement to fill her position while she was on holidays. Ms Middleton’s evidence is more than matched by Mr Cassettai’s evidence and she has not shown that her evidence about what happened should be preferred over Mr Cassettai’s evidence. 24 The Commission also takes into account that Mr Cassettai gave a longer period of notice to Ms Middleton than the minimum required for an employee with just less than one year’s employment. It is to Mr Cassettai’s credit that he did so and it is properly part of his submission that her dismissal was not unfair. 25 Therefore Ms Middleton has not made out her claim and it will be dismissed. An order now issues dismissing the claim. 1718 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 2013 WAIRC 00866 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DESIREE MIDDLETON APPLICANT -v- CARL CASSETTAI RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH DATE TUESDAY, 15 OCTOBER 2013 FILE NO/S U 83 OF 2013 CITATION NO. 2013 WAIRC 00866 Result Name of respondent amended; Claim of unfair dismissal dismissed Representation Applicant Ms D Middleton Respondent Mr C Cassettai Order HAVING HEARD Ms D Middleton, on her own behalf and Mr C Cassettai, on behalf of the respondent; AND HAVING given Reasons for Decision; NOW THEREFORE, I the undersigned, pursuant to the powers conferred on me under the Industrial Relations Act 1979, hereby order - 1. THAT the name of the respondent “Carl Cossetle” be deleted and “Carl Cassettai” be inserted in lieu thereof, by consent. 2. THAT this claim of unfair dismissal be, and is hereby dismissed. (Sgd.) A R BEECH, [L.S.] Chief Commissioner. 2013 WAIRC 00151 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES FRANK MORETTI APPLICANT -v- H J HEINZ CO AUSTRALIA LTD RESPONDENT CORAM COMMISSIONER S J KENNER DATE THURSDAY, 21 MARCH 2013 FILE NO. B 19 OF 2013 CITATION NO. 2013 WAIRC 00151 Result Direction issed Representation Applicant Mr P Mullally as agent Respondent Mr M Rodgers as agent Direction HAVING heard Mr P Mullally as agent on behalf of the applicant and Mr M Rodgers as agent on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – (1) THAT the applicant file and serve on the respondent further and better particulars of his claim by no later than 4 April 2013. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1719 (2) THAT the respondent file and serve on the applicant further and better particulars of its notice of answer and counter proposal no later than 14 days from service of the applicant’s further and better particulars of claim. (3) THAT the parties file and serve on one another a written outline of submissions no later than three days prior to the date of hearing. (4) THAT the application be listed for hearing for two days on dates to be fixed. (5) THAT the parties have liberty to apply on short notice. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00287 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES FRANK MORETTI APPLICANT -v- H J HEINZ CO AUSTRALIA LTD RESPONDENT CORAM COMMISSIONER S J KENNER DATE THURSDAY, 16 MAY 2013 FILE NO/S B 19 OF 2013 CITATION NO. 2013 WAIRC 00287 Result Direction issued Representation Applicant Ms P Mullally as agent Respondent Mr M Rodgers of counsel Direction HAVING heard Ms P Mullally as agent on behalf of the applicant and Mr M Rodgers of counsel on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – THAT the respondent be granted leave to take evidence from Ms S Beard and Mr T Ockleshaw by video link at a venue approved by the Commission. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00387 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION