Adrianna Permus v Guzman Y Gomez Franchising Pty Ltd [2025] FWC 1144

1 Fair Work Act 2009 s.394—Unfair dismissal Adrianna Permus v Guzman Y Gomez Franchising Pty Ltd (U2024/13471) DEPUTY PRESIDENT SLEVIN SYDNEY, 1 MAY 2025 Application for unfair dismissal remedy. Respondent filed no evidence or submissions on question of unfairness or remedy. Dismissal unfair. Compensation in lieu of reinstatement awarded. Application for an unfair dismissal remedy Introduction [1] Ms Adrianna Permus has applied pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms Permus was employed by Guzman Y Gomez Franchising Pty Ltd (GYG). She worked as a crew member at GYG’s fast food restaurant in Carousel in Perth, Western Australia. She worked on a regular and systematic basis from 6 February 2023 until her last shift on 20 July 2024. The application was filed on 11 November 2024. GYG raised that the application had been filed later than the time provided for in s. 394(2)(a). In a decision published on 7 February 2025, I found that the effective date of the dismissal was 10 October 2024 and allowed Ms Permus additional time to make her application1. [2] In response to directions that the parties file and serve evidence and submissions on the merits of Ms Permus’s application for an unfair dismissal remedy, Ms Permus filed material including 11 witness statements. Those statements included a statement on her own behalf and 10 statements from others she worked with at GYG. Ms Permus also filed an outline of submissions. GYG provided no witness statements. It refiled the brief submission that was filed in the extension of time application and a copy of its response to an application made by Ms Permus alleging contraventions of Part 3-1 of the Act. The matter had been listed for hearing but as there appeared to be no contest on the facts it was called on for case management. Ms Permus represented herself, assisted by her father, and GYG was represented by Ms Soin, GYG’s Senior Employee Relations Lawyer assisted by Ms Cooper who works in human resources for GYG. At the case management hearing the parties agreed that the matter could be determined on the material filed. Background [3] The background to the matter can be briefly stated. Given GYG led no evidence and chose to not cross examine any of the applicant’s witnesses, it is uncontested. [2025] FWC 1144 DECISION -- 1 of 7 -- [2025] FWC 1144 2 [4] Ms Permus commenced working for GYG as a casual employee on 6 February 2023. She worked regular shifts up until July 2024, when the number of shifts she was offered dropped. She made attempts to obtain further shifts but was unsuccessful. On 23 July 2024 she made a complaint to GYG about being discriminated against in the allocation of work. The complaint was dealt with by Ms Cooper. It was regarded as a complaint under GYG’s Anti- Discrimination Harassment and Bullying Policy. Ms Cooper works in GYG’s head office and is not involved in day to day rostering issues. The rostering of shifts is done at the individual restaurants by local managers. [5] Once the complaint was made, Ms Cooper began an investigation. In her complaint Ms Permus raised a concern that the number of shifts she was being allocated was dropping. Ms Cooper stated in her initial response that the number of shifts worked was determined by local managers and that GYG did not guarantee shifts to casual employees, and rostered hours may vary from week to week. [6] After the complaint was lodged Ms Permus continued to seek shifts from GYG’s local managers. The local managers responded that there were no shifts available. Ms Permus raised the matter again with Ms Cooper in August 2024 and was reassured that she remained employed. Ms Permus continued to request work but was not given shifts. [7] On 8 September 2024 Ms Permus lodged an application in this Commission seeking the Commission deal with a general protections dispute not involving dismissal. In the application she alleged that her hours had been reduced to zero and that GYG was discriminating against her on the basis of race. GYG lodged a response to the application on 24 September 2024. The response denied the allegation of racial discrimination and stated that Ms Permus did not meet performance standards and there had been a breakdown in the working relationship. A conference was held in the Commission on 10 October 2024 to deal with the discrimination claim. The dispute was not resolved. No material was provided by GYG to substantiate the assertion that Ms Permus did not meet performance standards or there had been a breakdown in the working relationship. Ms Permus was not provided with any further shifts. At no stage did GYG notify Ms Permus that she was no longer employed. On 11 November 2024, the current application was filed. [8] Ms Permus provided statements from 10 of her workmates who all said she was a good worker. The evidence establishes, and I find that Ms Permus was a hard worker who was trusted to train others and was always willing to accommodate the needs of the business by making herself available to do extra shifts and take on additional duties. The material filed by Ms Permus also indicates that there were shifts available for her to work after 20 July 2024. No explanation was provided by GYG about why Ms Permus was not given shifts. Consideration [9] Section 390 of the Act provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed. -- 2 of 7 -- [2025] FWC 1144 3 [10] Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not contested, and I am satisfied, that the Ms Permus is protected from unfair dismissal for the purposes of s.382. [11] Section 385 relevantly provides that a person has been unfairly dismissed if the Commission is satisfied of four matters; the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy. There is no question that Ms Permus was dismissed. GYG is not a small business and so the Small Business Fair Dismissal Code does not apply. It was not suggested that the dismissal was a case of genuine redundancy. [12] The issue for determination is whether the dismissal was harsh, unjust, or unreasonable. [13] Section 387 of the Act sets out the matters that are to be considered in determining whether the Commission is satisfied that the dismissal was harsh, unjust, or unreasonable. [14] Section 387(a) requires a consideration of whether there was a valid reason for dismissal relating to capacity or conduct. Local managers stopped giving Ms Permus shifts in July 2024. Ms Permus asked for shifts but was her requests went unanswered. She was assured she was still employed but was given no shifts. She then complained that she was being discriminated against and GYG’s head office conducted an investigation. Ms Permus continued to seek shifts from local managers and complained to Ms Cooper who worked for GYG’s head office that she was still not being given shifts. She was assured by Ms Cooper that she remained employed but was still not given shifts. She commenced proceedings in the Commission over the lack of work. She was told during the conference in those proceedings that she was no longer employed, and the reason was performance related. Ms Permus challenges the suggestion that her performance justified dismissal. The evidence shows that she was a good worker who had never been warned about her performance. [15] In these proceedings GYG chose to provide no evidence to justify the dismissal. [16] On the evidence provided by Ms Permus I find that Ms Permus was a hard working employee. She was considered a good worker by her colleagues. Her workmates at GYG describe her as hardworking, reliable, efficient, and positive. She was praised for her strong work ethic, ability to multitask, and willingness to help others. She was also recognised for her dedication, often covering shifts for others, and being a valuable team member. During her employment she received compliments from managers and was involved in training new crew members and helping with store openings. [17] I find there was no valid reason for the dismissal. [18] Section 387(b) and (c) deal with whether the employee was notified of the valid reason and given an opportunity to respond to the reason. As I have concluded that there was no valid reason, I also conclude that the Ms Permus was neither notified, nor given an opportunity to respond to, a valid reason for dismissal. -- 3 of 7 -- [2025] FWC 1144 4 [19] Section 387(d) is directed to whether the employer unreasonably refused to allow the employee to have a support person present to assist at discussions relating to the dismissal. In this case, there were no discussions at all about the dismissal and so no opportunity for Ms Permus to have a support person present. [20] Section 387(e) requires consideration of whether the employee was warned about unsatisfactory performance before the dismissal. GYG referred to there being unsatisfactory performance, I have found there was none, and that there was also no warning given to Ms Permus about her performance. [21] Section 387(f) and (g) are about to what degree the size of the employer’s enterprise was likely to impact on the procedures followed in effecting the dismissal and to what degree any absence of dedicated human resource management specialists or expertise likely impacted the procedures followed in effecting the dismissal. GYG is a large employer. In its response to the application it indicated that it employs over 10,000 workers in the fast food industry. Many of those workers are young workers. Most are engaged as casual employees. GYG has dedicated human resource management specialists. Those specialists were involved in Ms Permus’ dismissal. The participation of those specialists did have an impact on the procedures that were followed. The impact was an adverse one. [22] Ms Cooper dealt with Ms Permus’ situation. It appears from emails sent by Ms Cooper after the discrimination complaint was made in July 2024 GYG took the view that as a casual employee Ms Permus could be provided with no work. The documents filed in the Commission, both in the discrimination matter and these proceedings, also took this approach. GYG led Ms Permus to believe that she was employed by GYG even though it was no longer providing her with work. In her submissions in these proceedings Ms Permus referred to being on a ‘zero hours contract’. A reference to being employed but being given no work. The effect of GYG’s approach was to cause confusion on Ms Permus’s part as to her rights. Her discrimination claim, which was lodged in September 2024, was brought as a dispute over contraventions of Part 3- 1 of the Act not involving dismissal. The reason for this was she had been told repeatedly that she was still an employee. As I found in the earlier decision extending time for Ms Permus to bring this application2, GYG did not make it clear that it had no intention of providing Ms Permus with work until the conference in the discrimination matter on 10 October 2024. The unfairness that arose from the procedures followed is that GYG’s delay in dealing with the discrimination claim and its failure to provide Ms Permus with shifts while that claim was being processed left Ms Permus in limbo. She was told she was employed but she was not provided with work, and she did not receive wages. The detriment identified in the discrimination claim was that Ms Permus was not receiving shifts. If Ms Permus was employed, she should have received shifts. GYG provided no evidence justifying the decision to not provide her with work either before the complaint was made or after. [23] The approach that GYG’s took undermined Ms Permus’ right to make a workplace complaint which is a relevant factor in this case. I find that it contributed to the unfairness of the dismissal. [24] The Commission may also take into account other relevant factors under s. 387(h). A factor that is not taken into account above but was raised in Ms Permus’ submissions is the treatment of her as a young worker. GYG is a large employer. It employs young people, and -- 4 of 7 -- [2025] FWC 1144 5 the predominant mode of employment is casual employment. In her statement Ms Permus raised the following concerns about the way she was treated: I was unfairly dismissed. The employer action was harsh, unjustified and unreasonable. I deserve compensation from Guzman Y Gomez Franchising Pty Ltd for a damage they did to my health and my financial situation by action they have taken against me. This is lack of professionalism from management in dealing with employment disputes and completely failure of Duty of Care for an employee. I want to mention again that most of employees are under 18 years old. Many 14, 15 years old kids not experienced, first work experience. Everyone deserves good and safe work environment. - First bad experience can affect all future life with lack of confidence, feeling worthless. I was so depressed and feel worthless, I was crushed. From the happy young girl that wanted grow and constantly improved self I was changed to self-isolated person struggling to find motivation to leave bedroom. This has happened only because management took unfair action against me. [25] In this passage Ms Permus raises three legitimate and important concerns. First, that GYG management has not acted professionally in dealing with the employment dispute she raised. Second, GYG should be mindful of the nature of their workforce, being young people whose job with the company is most likely their first experience in the workforce. Third, a failure to take into account the first two matters may lead, as it has with Ms Permus, to significant harm to their employees. I find that GYG has failed in these three areas and the consequences are that Ms Permus has been treated harshly. [26] Having regard to matters referred to above, I find that GYG’s dismissal of Ms Permus was harsh, unjust, and unreasonable and that the dismissal was unfair. Remedy [27] Ms Permus sought compensation rather than reinstatement. [28] The Commission can only order the payment of compensation where it is satisfied that reinstatement is inappropriate, and it considers that an order for compensation in lieu of reinstatement is appropriate in all the circumstances. I consider that it is inappropriate to order reinstatement. Ms Permus was treated poorly by GYG and understandably does not to wish to work for the company. It is appropriate to respect her wishes. [29] I am satisfied that it is appropriate in the circumstances to make an order for compensation in lieu of reinstatement. In doing so, I am required by s.392 to take account of all the circumstances of the case, including the matters listed in subsections (2)(a) to (g) of that section. I have taken those matters into account. I note, GYG is a large business, and its viability will not be affected by any order made. Ms Permus has not worked since she was dismissed. [30] The well-established approach to the assessment of the quantum of compensation under s.392 of the Act is to apply the “Sprigg formula”. That formula is derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival -- 5 of 7 -- [2025] FWC 1144 6 Supermarket (1998) 88 IR 21 which concerned compensation in similar provisions in earlier legislation. The application of that formula, in the context of the current legislation, was explained by the Full Bench of this Commission in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206. The first step is to consider s. 392(2)(c) and determine what Ms Permus would have received, or would have been likely to receive, if she had not been dismissed. This requires an assessment of how long she would have remained at GYG and the remuneration she would have earned. The next step is to make the various adjustments in accordance with s.392 for matters that include the impact on the business, monies earned since dismissal, any reduction on account of the employee’s misconduct and the application of the cap of no more than earnings in the six months prior to the dismissal. A reduction for contingencies has also been commonly applied to take into account likely changes in circumstances that may impact ongoing employment. This approach is subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case. [31] In this case some speculation is required. Ms Permus was a casual employee. The number of shifts she worked varied. She was not offered and did not work shifts at all from 20 July 2024 until it was finally made clear that she was dismissed on 10 October 2024. The reason she was not offered shifts has been dealt with above. I consider that had GYG resolved the discrimination complaint Ms Permus would have continued to earn at least the amounts similar to that earned from March 2024 to July 2024. I also consider that she would have continued to work at least a further 12 months. Based on the payslips provided, and taking an average of her weekly earnings from those documents, she would have earned at least $34,000.00 during that period. [32] The next step is to make the various adjustments in accordance with s.392 for matters that include the impact on the business, monies earned since dismissal, any reduction on account of the employee’s misconduct and a reduction for contingencies has also been commonly applied to take into account likely changes in circumstances that may impact ongoing employment. I do not see the need to make any adjustments to the amount of earnings lost. There is no adverse impact on the business. Ms Permus has not earned anything since the dismissal. There was no misconduct. No evidence or submissions were made in relation to contingencies. [33] These findings are somewhat academic as I am constrained in the amount of compensation I can order by s. 392(5) which relevantly provides that the compensation ordered cannot exceed the total amount of remuneration received by a person or to which the person was entitled for any period of employment with the employer during the 26 weeks immediately before the dismissal. This limits the compensation in this case to Ms Permus’s earnings from 10 April 2024 to 10 October 2024. [34] I was provided with Ms Permus’ payslips for that period which show that she earned $10,252.35. This figure is less than the figure I would otherwise have ordered, taking into account the matters in s. 392(2). I will however make an order for compensation in this amount. [35] I note that the manner in which the cap operates in this case is inequitable to Ms Permus. GYG has effectively gained a benefit from its poor treatment of Ms Permus by taking advantage -- 6 of 7 -- [2025] FWC 1144 7 of her casual status and refusing to provide her shifts for the last 10 weeks of her employment. I suspect it is a result that was not an intended consequence of the legislation. Conclusion [36] I find that Ms Permus was unfairly dismissed. She was a hard worker who was treated poorly by GYG. GYG has led no evidence and made no submissions justifying or explaining its treatment of Ms Permus. [37] Ms Permus does not seek reinstatement, and I do not think it is appropriate to order that she return to work with GYG. I have ordered compensation in lieu of reinstatement. The amount is the maximum amount available under the legislation. I consider that to be appropriate in the circumstances. DEPUTY PRESIDENT Representation: Ms A Permus, for the Applicant. Ms M Soin, for the Respondent. <PR786388> 1 Permus v Guzman Y Gomez Pty Ltd [2025] FWC 358 2 [2025] FWC 358 -- 7 of 7 --