By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

An apprentice hairdresser who already had several “black marks” on her record was dismissed after the employer lost a major customer. It followed a misunderstanding or miscommunication best described as “gossip” involving the customer.

The employee’s manager had complained about the employee to the customer, who passed on the comments to the employee, who then confronted the manager about them. When the customer withdrew her business because she felt uncomfortable about visiting the workplace and encountering the employee, the manager dismissed the employee for refusing to apologise to the customer.

However, the Fair Work Commission (FWC) ruled that the dismissal was unfair because the employer had not followed correct procedures.

Facts of case

The employee was an apprentice hairdresser, due to finish her apprenticeship later in the year.

She had previously received several verbal warnings from her business manager for the following issues:

  • making regular phone calls at work unrelated to work
  • frequently talking about herself to customers, some of whom were annoyed by it
  • issues relating to quality of work and not taking responsibility for mistakes
  • absenteeism not supported by medical evidence

None of the above were followed by written warnings.

On a day she was absent, the manager “expressed disappointment” about the employee to one of the salon’s major customers. On her next visit, the customer mentioned the conversation to the employee, who then confronted the manager about it. The manager claimed that there had been a misunderstanding and told the employee to apologise to the customer. The employee refused to do the latter. However, the customer then withdrew her business, stating that the employee’s presence at the salon made her feel uncomfortable.

The manager responded by initially sending the employee a warning letter, but after some exchanges between the two, replaced it with a text message dismissing her (with two weeks' notice) later that day.

The employee made a post on TikTok claiming she had left a “toxic job”, which the manager used to claim she had resigned from the job, not been dismissed. The employee claimed that she intended to stay until she finished her apprenticeship later that year.

Decision

The FWC found that the employer had a valid reason to dismiss the employee, but had done so unfairly for the following reasons:

  • The customer may have misunderstood what the manager said to her and likewise, the employee may have misunderstood what the customer conveyed to her – the nature of “gossip” is that it can be taken out of context.
  • The manager expressed the reason for dismissal in a sarcastic manner, which the FWC suggested was “spiteful”.
  • The employee was not given proper notice of dismissal, nor an opportunity to respond to it nor the opportunity to improve her performance. She was dismissed a few hours after receiving her warning.
  • The employee’s comment that she would resign at the end of her apprenticeship may have been a “heat of the moment” decision.  A “cooling off” period that included attempting to re-contact the lost customer would have been more appropriate.

The FWC has yet to determine the remedy to apply.

What this means for employers

Even when dismissing an employee is justified, the FWC can still find that if the employer did not follow proper procedures, it was therefore done unfairly. The FWC may then award compensation to the employee, and has the power to reinstate the employee – although the latter would rarely happen if there was a valid reason for dismissal.

Small businesses are required to comply with the Small Business Fair Dismissal Code.

Read the judgment

https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc255.pdf