A teenage apprentice hairdresser who was dismissed due to her mother making complaints about her work conditions has won her unfair dismissal case at the Fair Work Commission. The mother had complained about a long list of issues. This included that her daughter was being forced to breathe in toxic chemicals by applying hair straightening treatments. The apprentice suffered health side effects due to this, and she had also been denied her pay.
The result of this Fair Work Commission unfair dismissal case is particularly satisfying given that the employer had been taking advantage of the young apprentice. Let’s take a look at the events of this interesting unfair dismissal case – Miss Eden McGinty v Hair & Co Pty Ltd –  FWC 1257.
Apprentice hairdresser dismissed because of mum’s complaints
In 6 June 2022, Eden McGinty began working for Hair & Co Pty Ltd in the Western Sydney as a 16-year-old. She was employed under an Apprenticeship and Traineeship Training Contract to undertake a Hairdressing Certificate III qualification on a full-time basis.
Under her apprenticeship contract, one of the terms obligated Hair & Co to ensure the health and safety requirements of Ms McGinty. Also, to ensure the payment of her wages and working conditions under the relevant employment arrangements. As Ms McGinty was a minor, her mother Mary McGinty was listed in her contract as her parent and guardian. And as such, she was bound to “uphold the responsibilities … for [Ms McGinty under the Contract] until [she] is 18 years of age.”
“I need to ensure she is paid correctly:”
The events relevant to this unfair dismissal case took place between September 2022 and February 2023. During this time, Ms McGinty’s mother sent the director of Hair & Co, Jalal El Hallak, a series of text messages. In the text messages, Mary McGinty outlined her long list of concerns regarding her daughter’s pay and working conditions. Mary accused Hair & Co of underpaying her daughter’s weekly wages and not paying overtime.
Mary McGinty also accused Hair & Co of failing to pay her daughter’s annual leave and superannuation. She also raised the fact that her daughter was not being allowed to take lunch breaks. She did not receive pay slips or tax information, and was being rostered for less than the ordinary 38 hours per week. Also, that she was not accruing annual leave and sick leave balances. And that she was not able to access apprenticeship incentives due to not being provided with pay slips.
In one of the text messages, Ms McGinty’s mother told Mr El Hallak: “I’m sorry Jay [Mr Hallak] but you need to pay her as per the apprenticeship agreement and while she is a minor, I need to ensure she is paid correctly according to the award.”
Mother makes complaints about workplace health and safety
A key event on which Ms McGinty’s unfair dismissal claim hinged took place on 2 February 2023. On this date, Ms McGinty’s mother wrote a letter to Training Services NSW. The state government department which oversees Apprenticeship and Traineeship Training Contracts in NSW.
In the letter, Mary McGinty aired concerns about her daughter’s health and safety at Hair & Co. She stated that her daughter was required to apply keratin treatments (used to straighten hair) that contain the chemical formaldehyde. She said that she was given this task as “senior staff say they do not want to breathe in the chemical.”
Mary McGinty also shared some of the shocking comments the senior staff made. This included that on one occasion, the “senior staff commented that Eden has young lungs so she can afford to breathe in the toxins”. The concerned mother wrote that she did not believe adequate work health and safety measures are being followed at Hair & Co. Key to this unfair dismissal case is that Mary informed Training Services NSW that on many occasions when “I pick Eden up from work, she is suffering from a sore throat, headaches and [is] lethargic.” The concerned mother said that Eden told her that these side effects are the result of all the keratin treatments she was made to do during the day.
Mother complains about pay and employment conditions
In the letter, Mary McGinty also highlighted her concerns about the long list of issues related to her daughter being paid incorrectly and not receiving payslips. Also, she highlighted how her daughter was often not able to take a lunch break. She also complained that her daughter was not being trained and mentored properly. And that Hair & Co had the intention to sign her daughter up with another organisation without her consent. She told Training Services NSW that she is “constantly texting her employer but most of the time, I am ignored.”
Critical to this unfair dismissal case, Mary McGinty also provided details of a meeting that she had with Mr El Hallak and METG, a not-for-profit organisation that aims to support apprentices and trainees. She said that this meeting “turned into an argument.” And that Mr El Hallak has “had enough of me interfering in his business, he will run his business his way and he will not be listening to my complaints anymore.”
“He is fed up with receiving text messages from me reminding him to pay superannuation, tax, leave loading and requesting leave balances,” wrote Mary McGinty. Also in the letter to Training Services NSW, Mary McGinty detailed how at the end of their meeting, Mr Hallak stated that he would give her daughter two weeks to resign. Mary replied by saying that her daughter would not be resigning. That she needs to complete her apprenticeship and be paid correctly. Mary then advised her daughter not to resign, and asked Mr El Hallak to provide written confirmation if he would be dismissing her.
“Leave. Return your uniforms tomorrow!”: Apprentice is dismissed by Hair & Co
Some six days after her mother sent the letter to Training Services NSW, on 8 February 2023, Eden McGinty was dismissed by Hair & Co. Her dismissal was delivered to her verbally by Mr El Hallak. In her unfair dismissal application, Ms McGinty told the FWC that at 1.42 p.m., Mr El Hallak phoned her. During this conversation, she claims that Mr El Hallak adopted a “sarcastic tone” when telling her that that Training Services NSW had spoken to him regarding the letter from her mother.
Ms McGinty claimed that Mr El Hallak said that he was” sick of hearing these complaints.” Also, that he was returning to the shop, and that when he arrives, that she was to “immediately leave the premises. That she was never to return and to have my uniforms together.” Namely, she would be dismissed.
When Mr El Hallak turned up at the shop, Ms McGinty claimed that he walked up to her and said he would drive her home. When she declined the offer, Mr El Hallak walked away, and Ms McGinty asked him “Is this it?” Mr El Hallak replied, “Yes this is it…leave!”
Return your uniforms tomorrow
Ms McGinty said that she was left in shock. While she was walking away from the salon, she claimed that Mr El Hallak shouted through the shopping centre, “EDEN! RETURN YOUR UNIFORMS TOMORROW!” To this, Ms McGinty shouted back, “You will get your uniforms after you pay me out.”
She and her mother subsequently lodged an unfair dismissal application with the Fair Work Commission. By the time Ms McGinty’s unfair dismissal took place, Hair & Co still had not paid her for her last week of work. Nor had it paid her for her accrued annual leave.
“Okay, well, I’m running a business, working here: Employer fails to respond to FWC
When the unfair dismissal claim was lodged, as per the usual process, Hair & Co was asked to provide a response. However, Mr El Hallak simply provided the Fair Work Commission with a document outlining that it had dismissed Ms McGinty. Stating it was in line with the Small Business Fair Dismissal Code.
He was given a direction to provide any other relevant evidence or witness statements, but did not do so. Mr El Hallak was chased up by the Fair Work Commission numerous times, without responding. He provided the following statement as to why he did not comply with the direction:
“Okay, well, I’m running a business, working here, and I don’t have time to file evidence, and go through my staff and stop all my staff and file evidence, over a matter that I don’t think is unfair dismissal. That’s her side of the story.” By not complying with this direction, Hair & Co was not able to submit any written evidence. The company was, however, able to submit oral evidence at the unfair dismissal hearing.
“I bought her lunch:” Employer argues his case at the Fair Work Commission
At the unfair dismissal hearing, Hair & Co told the Fair Work Commission that Ms McGinty had been fairly dismissed. In written evidence, Mr El Hallak stated that she had been dismissed in accordance with the Small Business Fair Dismissal Code. He also gave oral evidence in which he claimed that he “bought her lunch”. That he had trained her, I looked after her”. He claimed that he “always made sure she had a break. I paid her correctly. I did –multiple times.”
Mr El Hallak also alleged that Ms McGinty had been performing poorly and failed to follow instructions. He also accused the teen of inappropriate behaviour, having a conflict of interest and bullying. He claimed to have provided Ms McGinty with verbal warnings about these issues.
“Capricious and spiteful:” Fair Work Commission rules on the unfair dismissal case
The FWC, however, found that the allegations made by Mr El Hallak were “not supported, in any shape or form, by evidence.” Fault was also found with Mr El Hallak’s written evidence outlining that he had dismissed Ms McGinty in accordance with the Small Business Fair Dismissal Code. The Fair Work Commission found that there was “no evidence whatsoever” that he had complied with the Small Business Fair Dismissal Code.
Ultimately, the Fair Work Commission found that Hair & Co had no valid reason to dismiss Ms McGinty. It stated that she had been dismissed because she “made complaints or inquiries (through her Mother) as to her on-going terms and conditions of employment.” This reason was considered to be “capricious and spiteful.”
The Fair Work Commission also found that Ms McGinty was not afforded with any procedural fairness. It was therefore ruled that Ms McGinty’s dismissal had been harsh, unjust and unreasonable. The teen was not seeking reinstatement. So the Fair Work Commission ordered Hair & Co to pay her financial compensation. The exact amount of compensation was not determined during the hearing and would be determined at a later.
Teen Worker Dismissed: Conclusion
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