TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent raised jurisdictional objection claiming dismissal was consistent with Small Business Fair Dismissal Code (the Code) – applicant and respondent worked together as senior hair stylists in same salon – respondent purchased hairdressing business and continued to employ applicant – applicant informed respondent of ongoing Workcover claim – respondent was not aware of claim as it had been made with previous owners of business – warned applicant to stop providing senior discounts beyond those authorised – regular verbal arguments in salon between parties – applicant required surgery for wrist, unfit for work for 4-6 weeks – respondent claimed to have discovered a piece of paper containing details of salon clients – contended client information was never written down as information was contained on client cards – applicant claimed to have requested another colleague to compile client contact details so as to reschedule their appointments – respondent arranged to meet with applicant 45 minutes after incident – applicant dismissed without notice – as a casual employee was not entitled to any payment of notice – respondent characterised reason for dismissal as serious misconduct and alleged applicant intended to ‘defraud’ the business through the theft of its client list for a future financial gain – Commission not satisfied dismissal effected in accordance with the Code – jurisdictional objection dismissed – Commission satisfied dismissal fell into consideration under ‘summary dismissal’ – satisfied respondent held a genuine belief applicant had engaged in conduct sufficient to justify summary dismissal, however not satisfied the belief was based upon reasonable grounds as dismissal effected within 45 minutes of incident – evidence indicated colleague took it upon herself to compile the list of client details to assist applicant in contacting clients – respondent did not undertake satisfactory investigation into matter – not satisfied applicant was dismissed in accordance with the Code – no evidence to support the allegation of theft by applicant – Commission satisfied on balance applicant was not guilty of alleged misconduct – no valid reason for dismissal – applicant not given a proper opportunity to respond to allegations – dismissal harsh, unjust and unreasonable – remedy – reinstatement inappropriate – compensation – Sprigg applied – 25% deduction for effect on viability of respondent – deduction of one week remuneration and a further $100 for earnings since dismissal – respondent to pay applicant $2,331.21 with 9.5% superannuation – payment to be made in six weekly instalments. Walker v CM Iandolo P/L t/a Ballistik Hair and Beauty Studio
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