A Fair Work Australia full bench has upheld an unfair dismissal finding against a salon that sacked a hairdresser who sledged it on Facebook, but has allowed its appeal on compensation in one of two payout decisions this week favouring employers.
Senior Deputy Presidents Jennifer Acton and Rob Cartwright and Commissioner Wayne Blair rejected an appeal bid by Escape Hair Design against Commissioner Michelle Bissett's finding in September last year that its dismissal of a hairdresser, for reasons including "public display of dissatisfaction of base of employment – Facebook", was unfair, holding it hadn’t established an error that would warrant a review (see Related Article).
The employee, after receiving a smaller than expected Christmas bonus and part-payment by cheque rather than cash of her holiday pay had posted on her Facebook page: "Xmas 'bonus' along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!"
The full bench held that Commissioner Bissett was correct in finding that the hairdresser in her Facebook posting hadn't named the salon where she worked and that there was no evidence that the five to 10 clients who were friends with the worker on Facebook had read the comments.
Commissioner Bissett’s conclusions, the full bench said, were "unremarkable, and were open to her".
The full bench also found no error in Commissioner Bissett's finding that the sacking was inconsistent with the small business dismissal code; or that the employee’s removal of stock and rescheduling of clients didn't warrant her sacking.
However, it allowed the salon's appeal on compensation, finding Commissioner Bissett had failed to give adequate reasons for her $2340 order.
The bench said the $2340 “bears no discernible relationship to any particular period of pay or any other variable canvassed in the decision” and had a “random appearance”.
It remitted the remedy matter back to Commissioner Bissett to deal with.
Dianna Smith T/A Escape Hair Design v Sally-Anne Fitzgerald [2011]FWAFB 1422 (15 March 2011)
In the other full bench decision, Senior Deputy President Jennifer Acton, Deputy President Reg Hamilton and Commissioner Anna Lee Cribb reduced a compensation payout to a sacked employee from $17,437 to $13,844.
Tabro Meat Pty Ltd appealed against another remedy decision by Commissioner Bissett – but not her unfair dismissal finding – arguing that the compensation order was “manifestly excessive” and lacking in adequate reasons.
The full bench in allowing the appeal said that while s601(2) of the Fair Work Act provided that the tribunal "may give written reasons for any decisions that it makes", it didn’t relieve it of the duty to give adequate reasons in determining an unfair dismissal remedy. In this case, Commissioner Bissett’s failure to give adequate reasons for making an order of $17,437 was an error justifying an appeal.
The full bench went on to award the employee $13,844 after taking into account how long he was likely to have continued with the company, his employment since his sacking, and deducting 10% for misconduct.
Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080 (16 March 2011)