Cai v Tiy Loy & Co Ltd
[2015] FCCA 715
•27 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAI v TIY LOY & CO LTD | [2015] FCCA 715 |
| Catchwords: PROOF – Burden of proof – proof of negative proposition that action not taken for a particular reason or for reasons that include a particular reason (proscribed reason) – whether person who bears the burden of proving the negative proposition should articulate the reason or reasons for which action was taken which is inconsistent with the proscribed reason (asserted reason) – means of proving asserted reason – consequences of person who bears the burden of proving the negative proposition failing to adduce evidence which is capable of supporting a finding that the person acted for the asserted reason or for reasons that included the asserted reason as a substantial and operative factor. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 340, 340(1), 341(1), 342(1), 361(1), 535, 536, 545(2), 545(2)(b) Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss.3, 42(1), 45(1), 45(2), 46(1), 46(2) |
| Australian Energy Limited v Lennard Oil NL [1986] 2 Qd. R. 216 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 |
| Applicant: | REE BIN CAI |
| Respondent: | TIY LOY & CO LTD |
| File Number: | SYG 2817 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 7, 8, 9 and 19 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr K G Bennett |
| Solicitors for the Applicant: | Andrew Wong & Co |
| Counsel for the Respondent: | Ms J D Beck |
| Solicitors for the Respondent: | William Chan & Co Solicitors |
DECLARATIONS
The respondent contravened s.340 of the Fair Work Act 2009 (Cth) (Act) by deciding on 18 June 2012 to alter the applicant’s position from a full time employee to a part time employee, and informing the applicant of that decision on that day.
Because of the respondent’s contravention of s.340 of the Act, the applicant suffered loss, that loss being his not earning the wages he would have earned as a full time employee had he remained employed by the respondent for the period commencing 1 July 2012 and ending 21 September 2013, less the amount the applicant was paid in lieu of notice.
ORDERS
The parties have liberty to apply to the Associate of Judge Manousaridis to have the matter listed before Judge Manousaridis for the purpose of the Court:
(a)making an order fixing the amount of compensation the respondent must pay to the applicant under s.545(2)(b) of the Act for the loss referred to in declaration (2),
(b)making an order for the payment of the 17.5% loading for annual leave taken by the applicant; and
(c)listing the matter for the hearing of submissions on penalty and costs, and any other outstanding matter.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2817 of 2012
| REE BIN CAI |
Applicant
And
| TIY LOY & CO LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are brought by Mr Ree Bin Cai. He was employed full time by the respondent (Tiy Loy) from 1 August 1994 until 1 July 2012.
Mr Cai claims Tiy Loy contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by dismissing him from his employment because
Mr Cai had or had exercised a “workplace right” within the meaning of s.341 of that Act. The workplace right Mr Cai says he exercised was an entitlement to benefits under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Compensation Act) to which Mr Cai became entitled after he suffered an injury on 7 January 2012.
Mr Cai also claims his employment with Tiy Loy was covered by two awards (Awards) – the Miscellaneous Workers General Services (State) Award and the Miscellaneous Award 2010 – but Tiy Loy paid him less than Mr Cai says he was entitled to be paid under those awards. Mr Cai claims he was employed as a “caretaker”, as that term is defined in the first of the Awards. The factual premises of this claim include his sleeping five nights a week at the place where he worked and that, on those nights, he performed work for Tiy Loy including maintenance, until the time he retired to sleep.
Tiy Loy denies it dismissed Mr Cai from his employment or, if it did, that it did so because Mr Cai had, or had exercised, an entitlement to benefits under the Compensation Act. Tiy Loy says that, because of a downturn in its revenue, it had decided to change the previously full time position Mr Cai occupied into a part time position, but that Mr Cai resigned from his employment when he was not prepared to work part time. Tiy Loy also denies Mr Cai worked as a “caretaker”. Tiy Loy says that Mr Cai remained at his place of employment, and slept there, not because he undertook tasks for Tiy Loy, but because it suited Mr Cai to do so. Tiy Loy submits that Mr Cai’s staying on the premises reflected Tiy Loy’s permitting Mr Cai to use the facilities at the premises as he pleased, providing him with “a home away from home without a charge”.[1]
[1] Respondent’s Outline of Submissions, [11]
The following issues, therefore, arise. The first is whether Mr Cai’s employment was covered by the Awards and, if so, whether he was employed as a “caretaker” within the meaning of the Awards. The second issue is whether, as Mr Cai contends, Tiy Loy dismissed Mr Cai from his employment or whether, as Tiy Loy says, Mr Cai resigned. The third issue arises if Tiy Loy dismissed Mr Cai from his employment, and that is whether it did so because Mr Cai had, or had exercised, entitlements to benefits under the Compensation Act. The fourth issue arises if Mr Cai succeeds in one or both of his claims; and that is to what relief is Mr Cai entitled.
These reasons are arranged as follows. First, I set out the undisputed facts, the evidence in relation to facts asserted by Mr Cai and by Tiy Loy about which there is a dispute, and my findings on those disputed questions of fact. Second, I consider whether Mr Cai was a “caretaker” within the meaning of the Awards. Third, I consider whether Tiy Loy contravened s.340 of the FW Act.
Facts
The business of Tiy Loy
Tiy Loy was incorporated in 1947. The incorporators were members of the Yiu Ming Society. That society was formed to assist descendants of immigrants, and new immigrants, from the province of Guangdong. It appears Tiy Loy was formed to continue to provide, through an incorporated entity, the services the Yiu Ming Society had provided. The services Tiy Loy now provides, and since at least 1994 has provided, may loosely be described as home comfort facilities, including the provision of a space in which immigrants, and descendants of immigrants, from the province of Guangdong can meet and converse and play a game called mahjong.
1994 – Mr Cai commences employment with Tiy Loy
Mr Cai arrived in Australia in 1987. In about 1992 he commenced work as a cook at a restaurant in Chinatown.
In or about the first half of 1994 a person whom Mr Cai identifies as Mr Huang asked Mr Cai to work for Tiy Loy.[2] The Mr Huang whom Mr Cai identifies is Mr Yukwai Wong, who was the manager of Tiy Loy from 1 April 1991 until 19 November 2009.[3] In these reasons, I will refer to Tiy Loy’s manager from 1 April 1991 to 19 November 2009 as Mr Wong.
[2] Cai affidavit, 06.09.13, [3]
[3] Wong affidavit, 11.09.13, [1], [4]
In an affidavit made on 6 September 2013 (Mr Cai’s first affidavit), Mr Cai deposed Mr Wong said:[4]
In doing this job you are required to work six days and five nights a week. Your duties include cooking three meals a day – breakfast, lunch and dinner. There will be occasions when you have to cook a late supper. You also have to serve tea to customers as required and perform any general duties around the premises, looking after and maintaining the premises. You will be responsible for security and ensuring that the premises are locked up for the night and that if persons arrive outside of hours you are to let them in, attend to their needs and then resecure the premises. You have got to clean the premises as well, and particularly keep the mahjong tables clean.
[4] Cai affidavit, 06.09.13, [5]
After Mr Wong informed Mr Cai of the amount Mr Cai would be paid, Mr Cai asked what hours he had to work each day. According to Mr Cai, Mr Wong replied:[5]
You have to work from 8am to about 9pm except Mondays, Saturdays and Sundays when you have to work from 8am to about 12am and sometimes even longer. The finish time is not fixed and change every day. The hours are long so you can sleep at the premises. You can start whenever you are ready.
[5] Cai affidavit, 06.09.13, [5]
Mr Cai agreed, and said he could start on 1 August 1994, which he did.[6]
[6] Cai affidavit, 06.09.13, [6]
In an affidavit he made on 9 April 2014 (Mr Cai’s third affidavit), Mr Cai deposes that Mr Wong did not say the words I have set out in paragraph 10 of these reasons that I have highlighted in bold. Mr Cai says that Mr Wong said words to the effect of that sentence after Mr Cai commenced his employment with Tiy Loy.[7] Also in his third affidavit,[8] Mr Cai says that instead of saying words to the effect I have set out in paragraph 11 of these reasons, Mr Wong said:
You have to work from 8am. The finish time is not fixed and change every day. The hours are long so you can sleep at the premises. You are required to sleep at the premises 5 nights a week. You can start whenever you are ready. Pack your bags.
[7] Cai affidavit, 09.04.14, [3]
[8] Cai affidavit, 09.04.14, [4]
Mr Wong agrees he had a conversation with Mr Cai in which he offered, and Mr Cai accepted, employment with Tiy Loy. Mr Wong’s account of what he described Mr Cai would do as an employee of Tiy Loy is different from Mr Cai’s account. According to Mr Wong, he told Mr Cai the following:[9]
[9] Wong affidavit, 11.09.13, [6]
You will need to work 6 days per week, 10am to 6pm.
There are 3 breaks each day. Morning tea can be taken at any time between 10am-1pm. Lunch must be taken between 12-1pm. Afternoon tea can be taken at any time between 2pm-6pm.
Your main duty is to make tea continuously throughout the day, and ensure boiling water is always available and that the urn is full. Also to washup, and to keep the floors and bathrooms clean, including replacing toilet paper and soap.
You are not required to work public holidays and will be paid for them regardless. If you do work public holidays you will be paid at double time.
Mr Wong also recalls that he told Mr Cai that his “sole duties are cleaning and making tea”.[10] He denies mentioning to Mr Cai security duties.[11] Mr Wong also denies saying words to the effect I have set out in paragraph 13 of the reasons.[12]
[10] Wong affidavit 07.05.14, [3]
[11] Wong affidavit 07.05.14, [5]
[12] Wong affidavit 07.05.14, [6]
It was put to Mr Cai in cross-examination that he could not really remember the conversation he had with Mr Wong twenty years ago. Mr Cai accepted he could not remember everything about the conversation, but he could remember 80% to 90% of the conversation.[13]
[13] 07.05.14, T9.15
I find there was a conversation between Mr Cai and Mr Wong about those matters Mr Cai and Mr Wong both recall were discussed during the conversation. Thus, I find Mr Wong offered Mr Cai employment with Tiy Loy. I find that Mr Wong described the duties Mr Cai was expected to perform. These at the very least included washing up, keeping the floors and bathroom clean, including replacing toilet paper and soap, and making tea. I also find there was a discussion about the days on which and the hours which Mr Cai was expected to work.
I otherwise do not accept that a conversation to the effect deposed by Mr Cai or Mr Wong took place. I do not accept Mr Cai’s account, not only because the conversations took place almost twenty years before he prepared his affidavits, but also because he altered his first account. I am not satisfied that the alteration arose from any genuine recollection of the conversation itself. It seems more likely that what Mr Cai believes to have been an actual recollection is a belief that reflects the duties he has undertaken as an employee of Tiy Loy. Nor do I accept Mr Wong’s account of the conversation he had with Mr Cai. That is so, not only because the conversation took place nearly twenty years before he prepared his affidavit; but also because, as I will show later in these reasons, Mr Wong accepted that, as an employee of Tiy Loy, Mr Cai performed tasks, and worked for hours that were different from Mr Wong’s recollection of what he said about these matters when he offered Mr Cai employment.
The findings I make in paragraph 18 of these reasons do not exhaust the facts from which the terms of the contract of employment between Mr Cai and Tiy Loy may be determined. The existence of an agreement may be inferred not only from what persons said to be parties to a contract said to each other, but also from their conduct during the course of their contractual relationship. The circumstances in which conduct may give rise to a contract, or a variation to a contract, were identified by Thomas J in Australian Energy Limited v Lennard Oil NL:[14]
A contract (or variation) requires proof of a compact to which both parties assent, and of course offer and acceptance is the most familiar form of proof. Unless it affords direct evidence of the formation of a contract, conduct of the parties is relevant only when it leads to the necessary inference that somewhere, somehow, the parties must have made a particular agreement. It would be preferable to say that the admissions of parties (including admissions by a course of conduct) may be sufficiently clear to persuade a court to infer that there has been a variation of a contract even though no evidence can be produced to show when, where, by whom or in what particular words such agreement was made. The principle is not limited to variations. The formation of a contract . . . the existence of a contract and its basic terms . . . or an additional or varied term . . . may be inferred from the conduct of the parties, notwithstanding the absence of the usual evidence of formation and content . . . Of course, it is only in cases where the evidence is clear that such inferences will be drawn; but there is nothing in principle which prevents proof of a contract by admissions.
[14] [1986] 2 Qd. R. 216 at page 237
I cannot, therefore, form a view of the terms of the contract between Mr Cai and Tiy Loy until after I review the evidence of the work Mr Cai performed while employed by Tiy Loy, and Tiy Loy’s knowledge of the work Mr Cai performed. It is to that evidence I now turn.
Work performed by Mr Cai – the evidence
Mr Cai says that up to 7 January 2012 he worked between 8 am and 12 am on Mondays, Fridays, Saturdays, and Sundays, and between 8 am and 9 pm on Tuesdays and Wednesdays.[15] Mr Cai also described the work he performed during these hours.[16]
[15] Cai affidavit, 06.09.13, [8]
[16] Cai affidavit, 06.09.13, [10]
Mr Cai says he began work at 8 am when he prepared breakfast for Tiy Loy’s employees. At around 1 pm he prepared lunch for employees and, at around 4.30 pm, he commenced preparing dinner that would be served to employees and mahjong players at around 6 pm. Mr Cai also prepared supper at around midnight on busy nights. He prepared tea. When not cooking or making tea, Mr Cai undertook general cleaning duties which included cleaning mahjong tables, cleaning eating utensils, mopping the floor, taking out garbage, and cleaning the toilets. At 6 pm he electronically locked access to the premises, and after 6 pm he was responsible for allowing members to enter the premises by looking at the surveillance screen whenever a person sounded the buzzer at the entrance of the premises. Mr Cai collected money from the mahjong players and placed the money in a cash box after the game was finished. He purchased food, took delivery of goods, and undertook errands as requested. Mr Cai also claimed he carried out maintenance, including changing lightbulbs. Mr Cai slept on the premises in a room he shared with another employee. He left the premises at 9 pm on Wednesday and returned to work on Friday morning.
All three witnesses called by Tiy Loy disputed Mr Cai’s evidence to the extent he claimed he worked beyond 6 pm. One witness, Mr Su, who has been a director of Tiy Loy since 2009, deposed as follows:[17]
The Company’s operating hours are 10am to 6pm, 7 days a week. Lunch breaks were from 1-2pm for all staff. There were 2 x 20 minute breaks during the day, one during the morning and one in the afternoon. Staff could choose when to have these breaks. The Company was a very relaxed working environment.
From 6pm all work on the premises stopped and the gates were shut. Whilst the operating hours of the company had stopped people were allowed to remain on the premises in their own time to enjoy the use of the facilities free of charge. This included the use of the kitchens which Mr Cai used on a lot of occasions.
I have previously seen Mr Cai play cards with others after 6pm, this was in Mr Cai’s own time and Mr Cai was not employed during this time.
[17] Su affidavit, 10.10.13, [24], [25], [26]
A second witness, Mr Deng, who has been employed as office manager since 2010, deposed as follows:[18]
The operating hours of the Company were 10am to 6pm. The front gate of the premises was closed from 6pm onwards and no further patrons were received unless with the Company’s consent.
. . . Ultimately, Mr Cai treated the Company as his home and did as he pleased, including taking naps during the day.
Mr Cai did not mention or complain to me that he was working after 6pm. I observed that Mr Cai did enjoy staying back after work and socialising with other Company members. However, this was not a requirement of his role within the Company. It was a reflection of the generosity of the Company that permitted him to use its facilities after hours.
[18] Deng affidavit, 10.10.13, [28], [29], [30]
A third witness, Mr Wong, deposed as follows:[19]
[19] Wong affidavit, 11.09.13, [9]-[19]
Mr Cai was a member of Tiy Loy and liked to spend the night at the clubhouse. Mr Cai had his own key to the company and to the accommodation. He did usually cook and eat breakfast. However, this was not part of his duties. The company was generous to the employees and let them prepare their meals using the company food and kitchen. The breakfast and any other meals that Mr Cai cooked were free.
Maintenance was not part of Mr Cai’s duties. If a lightbulb needed changing it was brought to the attention of myself or another manager.
Security was not part of Mr Cai’s duties and he was not responsible for members or the premises before or after 6pm.
The opening hours of the premises was 10am to 6pm.
Mr Cai was required to attend work from 10am to 6pm, six days per week.
However, the working hours were not very strict and during the day Mr Cai would often take breaks of around 2-3 hours or so and it would be on his own time. He would go and have lunch with other members or relatives.
Mr Cai lived on the premises. This was not a condition of employment and was for free. Mr Cai lived on the premises on his own decision. It was available to him.
Mr Cai was not required to open the door for guests or members prior to 10am. He does not need to pour tea for guests it is just placed out.
Sometimes Mr Cai would stay in the premises area beyond 6pm. This was not a requirement of Tiy Loy & Co. This was on his own time.
Sometimes members may stay beyond 6pm at the clubhouse. I have seen Mr Cai at the clubhouse during this time and he would be talking to other members and also playing cards, or drinking tea. This was his own time and he was entitled to use the club facilities.
After about 6pm members go as they please. The door closes behind them with an automatic lock.
Mr Cai and the witnesses called by Tiy Loy were cross-examined. Mr Cai said that at 6 pm the gate at the entrance to the premises was locked, and that Mr Cai was in charge of the opening and closing of the door;[20] between 10 to 20 members attended the premises on Monday and Saturday nights, and 10 or less members attended the other nights;[21] he denied playing mahjong, but accepted that he did play cards, although seldom, and for small amounts of money;[22] he did not accept that it was not part of his duties to cook three meals a day;[23] and he did not accept it was not his duty to change light bulbs.[24]
[20] 07.05.14; T24.15-20
[21] 07.05.14; T24.30-35
[22] 07.05.14; T26.10-25
[23] 07.05.14; T27.05
[24] 07.05.14; T27.10-25
Mr Wong gave the following evidence in cross-examination. Mr Cai worked six days a week.[25] He usually cooked breakfast for members of management,[26] and also lunch.[27] In relation to the evening meal, if there were players playing mahjong and they wanted to eat, Mr Cai cooked, [28] and if there were employees present on the premises at that time they could eat with the mahjong players the food cooked by Mr Cai.[29] Mr Cai cleaned up after cooking, and he would wash up the dishes and utensils.[30] Mr Wong said that Mr Cai cleaned the tables, he mopped the floor, he disposed of garbage, cleaned the kitchen after he prepared meals, and cleaned the toilets.[31]
[25] 07.05.14; T40.30-40
[26] 07.05.14; T43.25
[27] 07.05.14; T43.45
[28] 07.05.14; T45.25-30
[29] 07.05.14; T45.40-45
[30] 07.05.14; T46.1-5
[31] 07.05.14; T46.5-30
Mr Wong also gave evidence that the premises of Tiy Loy were open to members of the community to attend at their pleasure, including after 6 pm.[32] Members who wished to enter the premises after 6 pm had to be let in.[33] To be let in, members had to press a buzzer at the front door, which alerted the employee upstairs that somebody was trying to get in.[34] The person upstairs could then see who was standing outside and who was wanting to gain entry and then let that person in,[35] and, having assessed the person is entitled to enter, the person would go downstairs and open the door and let the person in.[36] This part of Mr Wong’s cross-examination was concluded as follows:[37]
[32] 07.05.14; T49.5-10
[33] 07.05.14; T49.15
[34] 07.05.14; T49.20-25
[35] 07.05.14; T49.25-30
[36] 07.05.14; T50.20
[37] 07.05.14; T51.25-T52.1
MR BENNETT: So you had a security protocol in place. It was you locked the door and after 6 – at 6 pm, and after that time nobody was allowed in unless they were a member of the community and recognised as such.
THE INTERPRETER: Correct.
MR BENNETT: . . . Mr Cai would perform that function. If after 6 o’clock there was a ring of the buzzer, he would assess whether somebody was a member of the community and entitled to come in.
THE INTERPRETER: So after 6 o’clock the person came in to play mahjong and he would be let in.
MR BENNETT: Yes. And that person, after 6 o’clock, would have to be identified as a member of the community by Mr Cai, who would open the door.
THE INTERPRETER: That was correct.
MR BENNETT: And, likewise, if the person trying to gain access was not allowed or not a member of the community and ought not be in the premises, Mr Cai would not let them in.
THE INTERPRETER: Correct.
A little later, Mr Wong gave the following evidence:[38]
MR BENNETT: Now, Mr Cai, as we discussed earlier, would allow – identify people trying to gain access and allow them into the premises after 6 pm. That was part of his duties.
THE INTERPRETER: So this was done – the service our company provided to our member. If they wanted to play mahjong, then they could.
MR BENNETT: Yes. And Mr Cai was there to facilitate that by opening the door, letting them in and allowing them to play mahjong.
THE INTERPRETER: Yes.
[38] 07.05.14; T54.35-T55.15
MR BENNETT: Yes. And after the last mahjong players left the premises of a night, Mr Cai would do any necessary cleaning up and make sure the door was locked.
THE INTERPRETER: Correct.
MR BENNETT: And then, having done that, Mr Cai would settle down for some sleep at the premises.
THE INTERPRETER: He could. Because the company allowed. That is if he wanted to sleep there he could.
MR BENNETT: Yes.
THE INTERPRETER: And if he wanted to live [sic], he could.
Mr Wong accepted that the members of the community who attended the premises after 6 pm and played mahjong would remain on the premises for however long they desired which could be 11, 12 o’clock at night, and 1 o’clock in the morning, and that it was “Mr Cai’s duty to keep those persons served with tea”.[39] Mr Wong also appeared to accept that Mr Cai placed money he had accepted from the mahjong players the night before into a cash box that was the property of Tiy Loy. [40]
[39] 07.05.14; T53.35-40
[40] 07.05.14; T54.15-25
Work performed by Mr Cai – findings
I find Mr Cai performed the work Mr Cai in his evidence says he performed up to 7 January 2012, and for the days and hours he says he performed that work. I find Mr Cai worked 90 hours a week. First, all witnesses assumed or stated that members of Tiy Loy were present at the premises after 6 pm, even though the entrance door to the premises was locked after 6 pm every day. Second, members frequented the premises to participate in particular activities, one of which was playing mahjong. To the extent members were on the premises after 6 pm, they played mahjong. Third, Mr Wong accepted that members who played mahjong in the evening paid money which Mr Cai placed in a cash box that was the property of Tiy Loy. Fourth, Mr Wong accepted that Mr Cai was responsible for ensuring that persons who wished to visit the premises after 6 pm were members and, if he satisfied himself they were members, he would arrange to let them in. Fifth, Mr Wong accepted that Mr Cai prepared supper and tea for the mahjong players who were present at the premises after 6 pm. Sixth, Mr Wong accepted that, after the mahjong players left, Mr Cai did the necessary cleaning up, and ensured the door was locked, after which Mr Cai went to bed.
I also find that Mr Cai performed these tasks after 6 pm because he believed himself to be bound under his contract of employment to do so. More importantly, I find that an objective observer would have regarded Mr Cai performed these tasks because he conceived himself to have been under a duty to perform them. That follows from the nature and regularity of the work Mr Cai performed. While an employee may on occasion prepare a meal or tea for others, or even clean, an employee would not do these things, as Mr Cai did, day in day out, and from year to year, unless the person is coerced to do so, or unless the person otherwise considers himself or herself bound to do so.
Finally, I find that Mr Cai performed these tasks to the knowledge of those whose knowledge is to be attributed to Tiy Loy. The relevant mind of Tiy Loy, at least until 2009, included that of Mr Wong, the manager of Tiy Loy. He is the person who offered Mr Cai employment with Tiy Loy. The evidence Mr Wong gave under cross-examination indicates he was aware of the work Mr Cai performed. I infer that all other managers were aware of the work Mr Cai performed. The length of his period of service, and the days and hours I have found Mr Cai worked, would have given notoriety to the work Mr Cai performed of which no manager or employee of Tiy Loy could reasonably have been ignorant.
Before I leave this part of my reasons, I should refer to the evidence given by Mr Wong in re-examination. He said that the only food Mr Cai cooked was rice.[41] Mr Wong said that nothing else was cooked; it was just rice “[b]ecause we’re Chinese, we always eat rice”.[42] Nothing turns on whether I accept Mr Wong’s evidence or not. But I find it impossible to accept, and I do not accept, that for the 18 years Mr Cai served Tiy Loy the only food Mr Cai cooked was rice – rice for breakfast, rice for lunch, rice for supper.
[41] 07.05.14; T60.20
[42] 07.05.14; T60.25
7 January 2012 – Mr Cai suffers a workplace injury
According to Mr Cai, between 7 and 8 o’clock in the evening of 7 January 2012, while walking up the stairs after he had placed the rubbish outside, Mr Cai suffered an injury to his leg, resulting in great pain.[43] The manner in which Mr Cai injured himself is described in a document titled “Initial Notification of Injury”:[44]
At 6.30 pm on 7/1/2012 as Mr Cai was carting the company’s wheeley bin out the front door twisted the left foot, felt sharp pain unable to walk freely.
[43] Cai affidavit, 06.09.13, [13]
[44] Exh. B
Mr Cai rested at Tiy Loy’s premises during the night of 7 January 2012.[45] In the morning of 8 January 2012, Mr Cai telephoned his partner to come to Tiy Loy’s premises and accompany him to the hospital. Mr Cai also telephoned his uncle, Mr Choy, and requested he collect him from the premises and drive him to the hospital. After Mr Choy collected Mr Cai, Mr Cai telephoned Tiy Loy’s office manager, Mr Deng, and informed him he had an injury, he was in a lot of pain, and Mr Choy was taking him to hospital.[46]
[45] Cai affidavit, 22.10.13, [19]
[46] Cai affidavit, 22.10.13, [19]
Mr Deng gives a different account of the circumstances in which he was made aware Mr Cai suffered an injury. Mr Deng says that, when he arrived at work on 8 January 2012, Mr Cai informed him that he had injured his leg the day before. After Mr Cai said he could not move his leg, Mr Deng said to Mr Cai that if he did not feel well he should go and see a doctor, and if he still did not feel well Mr Cai should take some rest.[47] After the conversation, Mr Choy and Mr Cai’s partner came to the premises and took him to the doctor.[48] Nothing turns on which of Mr Cai’s or Mr Deng’s accounts I accept, and I propose to make no finding about which account I accept.
[47] Deng affidavit, 10.10.13, [6]
[48] Deng affidavit, 10.10.13, [7]
Mr Cai was treated by Dr Hang at Prince of Wales Hospital.[49] The nature of the injury Mr Cai sustained is recorded in a number of documents. First, the “Initial Notification of Injury” to which I have already referred described the injury as “twisted/swollen left ankle suspected fracture”. Second, in a response dated 16 July 2012 to a questionnaire issued by Tiy Loy’s workers compensation insurer (QBE), Dr Tan, who had by then examined Mr Cai on 23 May and 18 June 2012, described Mr Cai’s injury as a “Medial meniscal tear L knee”.[50]
[49] Exh. B
[50] Exh. 2
Mr Cai says he was away from work until 16 February 2012.[51] He did not receive any wages during his absence.[52] Even though Mr Cai continued to suffer pain, he returned to work. He did so because he had no other source of income. He returned to work after he had a conversation with Tiy Loy’s office manager, Mr Deng, in which he said that although he had not fully recovered from his injury, he needed to return to work to earn money.[53] On his return, Mr Cai says he worked fewer hours than he had worked before his injury. He worked between 8 am and 6 pm on all days except Sunday, which was his day off.[54] Mr Cai says that, because of the pain he was still experiencing, it took longer for him to perform his duties.[55]
[51] Cai affidavit, 06.09.13, [15]
[52] 08.05.14; T90.5
[53] Cai affidavit, 22.10.13, [21]
[54] Cai affidavit, 06.09.13, [17]
[55] Cai affidavit, 22.10.13, [22]
Mr Deng says that on 10 February 2012 Mr Cai telephoned him and said he was fully recovered from his injury, and was ready to return to work.[56] Mr Deng said he would inform the people covering for Mr Cai that he is returning.[57] Mr Deng further says that Mr Cai returned to work on 13 February 2012.[58]
[56] Deng affidavit, 10.10.13, [9]
[57] Deng affidavit, 10.10.13, [9]
[58] Deng affidavit, 10.10.13, [10]
I do not accept Mr Deng’s evidence that Mr Cai said he had fully recovered. I accept Mr Cai’s evidence that he had not recovered, that he returned to work because he needed the money, and that he informed Mr Deng he wished to return to work because he needed the money. I accept Mr Cai’s evidence because Mr Deng accepted Tiy Loy did not pay wages to Mr Cai during his absence;[59] and, as I have already indicated, the evidence shows Mr Cai suffered a serious injury. Further, evidence to which I will shortly refer indicates that medical advice was given that the duties Mr Cai had previously performed should be curtailed to take into account the injury he suffered. I also do not accept Mr Deng’s evidence that Mr Cai returned to work on 13 February 2012. As I show below, Mr Cai was paid workers compensation for lost work up to and including 15 February 2012.
[59] 08.05.14, T90.5
March 2012 – Tiy Loy submits workers compensation claim for Mr Cai
Mr Cai says that when he returned to work, he approached a manager of Tiy Loy, Mr Ng Kwan Ming, and asked whether Tiy Loy would “help to buy insurance for employee for us”. Mr Ming said Tiy Loy did buy insurance, and that “we will claim for you the insurance”.[60] I find that Mr Cai had this conversation, and that he had this conversation on or before 30 March 2012. I so find because on 7 May 2012 Stephen Chu signed an “Employer Injury Claim Report” in relation to the injury Mr Cai suffered. Mr Chu describes himself in the document as “Office Manager”.[61] In that document, under the printed words “When did you receive the worker’s completed claim form?”, there is written “30/03/12”. I infer that the reference to the “worker’s completed claim form” was intended to be a reference to the “Initial Notification of Injury” to which I have already referred. In the “Employer Injury Claim Report” Mr Chu was identified as the employer contact.
[60] Cai affidavit, 22.10.13, [24]
[61] Exh. 2
By letter dated 14 May 2012, QBE informed Mr Chu, on behalf of Tiy Loy, that QBE “have accepted liability for this claim for the period from 08/01/2012 to 15/02/2012”, and that Tiy Loy is “authorised to pay compensation from 08/01/2012 to 15/02/2012 at the weekly rate of $794.40”.[62] The letter further states:
Under the NSW Workplace Injury Management and Workers Compensation Act, 1998, an Injury Management Plan must be developed if the worker has sustained a “significant injury”. Injury Management Plans are focussed on providing the injured worker with appropriate medical treatment and early return to work opportunities.
A “significant injury” is defined as: “a workplace injury that is likely to result in the worker being incapacitated for a continuous period of more than 7 days; whether or not any of those days are work days, and whether or not the incapacity is total or partial, or a combination of both”. If the worker’s injury is considered to be a significant injury, QBE will develop an Injury Management Plan in collaboration with the worker, the worker’s nominated treating doctor and you. The worker is obliged to comply with this Injury Management Plan.
Ree is to nominate a treating doctor, whose role will be to coordinate medical treatment, medical certification and return to work.
[62] Exh. 3
QBE also sent a letter dated 14 May 2012 to Mr Cai. It repeated the information it had provided to Tiy Loy in its letter to that company dated 14 May 2012.[63]
[63] Cai affidavit, 06.09.13, annexure “B”
Dr Tan was nominated as Mr Cai’s treating doctor. Dr Tan examined Mr Cai on 23 May 2012 and, on that day, issued an initial “Workcover NSW Medical Certificate”.[64] In the section headed “Fitness for Work”, Dr Tan certifies that Mr Cai had “the following capabilities for 8 hrs/day 5 days/week”:
[64] Exh. A
Lifting up to 5kg Walking up to 30 mins
Sitting up to Standing up to 30 mins
. . .
Other 5 mins rest each hour
Fitness for work will be reviewed on: Wednesday, 13 June 2012
Mr Deng was cross-examined about whether he was aware of the restrictions on Mr Cai’s work described in Dr Tan’s certificate of 23 May 2012. Mr Deng said he had not seen the medical certificate;[65] he was not informed there was a restriction on Mr Cai lifting anything that weighed more than 5 kgs,[66] or a restriction on Mr Cai standing for more than 30 minutes,[67] or that he was to have a rest for five minutes every hour.[68]
[65] 08.05.14; T92.30
[66] 08.05.14; T92.45-93.1
[67] 08.05.14; T93.1-5
[68] 08.05.14; T93.15
Mr Cai claims he is informed of discussion about an injury management plan
In his first affidavit, Mr Cai deposed as follows:[69]
Prior to being advised of my termination on 18 June 2012, I had a meeting with a member of the board whose name I cannot now recall. At this meeting I was advised that there had been discussions between my employer, Tiy Loy, and QBE about an Injury Management Plan. I did not pay a great deal of attention to this advice, although I recollect that Mr Wu saying words to me to the effect of:
“We’ve been speaking to QBE about an Injury Management Plan.”
[69] Cai affidavit, 06.09.13, [21]
I responded with words to the effect:
“Okay, whatever is sorted out.”
Even though Mr Cai was not cross-examined about this part of his first affidavit, it is difficult to know what to make of it. On the one hand, Mr Cai says he does not recall the name of the board member who advised Mr Cai that Tiy Loy and QBE were discussing an injury management plan. On the other hand, Mr Cai says he recalls Mr Wu saying that Tiy Loy was speaking with QBE about an injury management plan. I do not propose to find that a conversation to the effect set out in this part of Mr Cai’s affidavit took place.
Board meeting of 18 June 2012 – the evidence
Mr Su, a director of Tiy Loy, deposes that, due to a deteriorating position in the finances of Tiy Loy, including the reduction in directors’ remuneration from $23,000 per annum to $10,000 per annum, “a decision was made to decrease the hours worked by Mr Cai”.[70] That decision was made at a meeting of Tiy Loy’s board of directors on 18 June 2012.
[70] Su affidavit, 10.10.13, [4]
Mr Su deposed that, at the board meeting, a conversation to the following effect took place:[71]
I said: “The company has no money now we need to consider cutting costs. For example Mr Cai’s job is not that important to the company. Aside from cutting his position it is impossible to cut any other staff without affecting the workings of the company.”
Another director said: “If he’s going to a part time position that is good but the most he should be given is 3 days. His attitude and performance have been the subject of complaints from the patrons.”
[71] Su affidavit, 10.10.13, [5]
Mr Su also deposed:[72]
It was decided at this meeting that since Mr Cai’s position in the company was least important relative to all other positions his time had to be cut. It was resolved that his full time position would be changed to a part time position; from 6 days to 3. The other 3 days will be filled in by another part time staff who was charging about $50 less per day. This decision had nothing to do with the fact that Mr Cai had been previously injured.
[72] Su affidavit, 10.10.13, [6]
Mr Su finally deposed that, at the close of the directors meeting, Mr Cai was called for a meeting with the directors. When Mr Cai presented himself the following conversation took place:[73]
[73] Su affidavit, 10.10.13, [7]
I said: “Manager Chan has reported to us the financial position of the company. Our company needs to cut expenses but there is no more we can cut. So we have decided to cut your position from a full time to a part time one. It is your choice which 3 days that you choose to work. Please consider this carefully and then tell Mr Deng of your decision. We will commence the new arrangements from 01 July.”
Mr Cai said: “OK. I’ll go consider it then.”
According to Mr Deng, he attended a meeting of the board of directors of Tiy Loy at which Mr Cai was present. According to Mr Deng, the following occurred:[74]
. . . Mr Cai was informed by Mr Su, that his hours were being reduced from 6 days to 3 days, due to the serious financial difficulties of the Company. Mr Su asked Mr Cai to carefully consider this and also to choose which 3 days he wished to work. Mr Cai was told to report back to me regarding which days he wanted to work.
[74] Deng affidavit, 10.10.13, [14]
According to Mr Cai, on or about 18 June 2012 Mr Qing Yue Cai said to Mr Cai that “John Ho asked you to come upstairs”. Mr Cai went upstairs and joined a meeting with two other employees, Mr Tian Jin Zhu and Mr Zhang Ai Deng. Mr Ho then said words to the effect:[75]
Our company is in a difficult financial position. We will not hire any long term position anymore. Mr Ree Bin Cai, your job will be held until 1 July 2012. After 1 July 2012, will hire 3 days part time instead.
[75] Cai affidavit, 06.09.13, [23]
Mr Cai says that he understood Mr John Ho to have said that Mr Cai’s employment was terminated effective 1 July 2012.[76]
[76] Cai affidavit, 06.09.13, [24]
Minutes of the board meeting were prepared in Chinese. There is in evidence a translation of those minutes.[77] The relevant part of the minutes is as follows:
Decided after discussion: since company has insufficient fund [sic], in order to cut costs, decided to change the Attendant position from a long term position to a short term position. Jintian Zhu will contact accountant to calculate Ree Bin Cai’s long-term service benefit. 115 per day for short term worker/work, including tax money. No subsidy for big day(s). But must provide details for taxation to the company for record. To be on shift by two people. After [recovery/resumption] need to do shift work as rostered. Handed to the two managers to handle.
[77] Exh. 4
The emboldened words “recovery/resumption” reflect that one of the Chinese characters of the minutes of meeting bears two interpretations – “recovery” or “resumption”. The translation was tendered on the basis that I would decide which of the two meanings is the most appropriate meaning, given the context in which the English words appear in the translated version of the board minutes.
Mr Su was cross-examined about the board’s decision of 18 June 2012. I regret to say that I could gain no insight from his evidence about what was decided at the board meeting, or, to the extent anything was decided, the reasons for what was decided. First, Mr Su often gave unresponsive answers to simple questions. For example, counsel for Mr Cai asked Mr Su a number of questions about whether the board decided to change Mr Cai’s full time position to a part time position.[78] Mr Su’s initial answer was “[s]o the meeting was discussing the matter”.[79] Counsel then asked Mr Su whether Mr Chu was present at the meeting and assisting in the discussions of those matters. Mr Su answered:[80]
So I was not helping the meeting, but I was involved in recording the meeting. So Mr Chu was invited to come because he was doing the financial matters and to report the financial situation.
[78] 09.05.14; T149.25
[79] 09.05.14; T149.30
[80] 09.05.14; T149.35
Counsel then asked whether it was Mr Chu who had suggested that Mr Cai’s position be reduced from a full time position to two part time positions. Mr Su answered:[81]
From the very beginning, it was never mentioned that Mr Chu – sorry - Mr Chu have the right – have the – had rights to suggest. It was not – it was never mentioned that – sorry, can I clarify with – because the - Mr Chu was just a manager and the decision was by the board of directors and Mr Chu was just to execute.
[81] 09.05.14; T149.45
A little later I asked Mr Su questions about whether the board had decided to reduce Mr Cai’s employment from full time to part time:[82]
HIS HONOUR: Did the board decide at that meeting to eliminate Mr Cai’s full-time position?
THE INTERPRETER: Was discussing.
HIS HONOUR: Okay. Was it ever decided to eliminate Mr Cai’s full-time position?
THE INTERPRETER: Because there was shortage of fund, therefore ‑ ‑ ‑
HIS HONOUR: No, no. I don’t want to understand why; I just want to know was – did the board at any time decide to eliminate Mr Cai’s full-time position?
[82] 09.05.14; T149.35-150.20
THE INTERPRETER: So can you repeat once again?
HIS HONOUR: Yes. Did the board at any time decide to eliminate Mr Cai’s full-time position?
THE INTERPRETER: It was not - never decided. It’s only on that day after we heard Mr Chu reporting about the financial crisis then the – the board of directors talk about it and discuss about it.
HIS HONOUR: Yes. And did they decide after that discussion to eliminate Mr Cai’s full-time position?
THE INTERPRETER: We discussed with him and we propose to implement on 1 July.
HIS HONOUR: So I’m not sure. Do you say that the board decided to eliminate Mr Cai’s full-time position?
THE INTERPRETER: Because, for us, we always have room for discussion and because were running out of fund – money, so then we talked to Ree Bin, “Ree Bin, we are short of money. We want to do this. Maybe you consider and let us know.”
Another example of what, in my opinion, is Mr Su not giving responsive answers relates to counsel’s putting to Mr Su that at the meeting of 18 June 2012 a decision was taken to terminate Mr Cai’s employment, effective on 1 July 2012.[83] Mr Su answered:[84]
Because the directors were not sitting in the office every day, the meeting of the board of directors was held maybe once a week or once a month. So therefore in relation to this matter, this matter was handled by the two managers, and on that day after the meeting was finished, we asked them to come. So because I ‑ ‑ ‑
[83] 09.05.14; T173.45
[84] 09.05.14; T174.1-5
Counsel again put to Mr Su that the effect of the 18 June 2012 meeting was to terminate Mr Cai’s employment effective 1 July 2012.[85] Mr Su answered:[86]
[85] 09.05.14; T174.5
[86] 09.05.14; T174.10
That matter was not the main thing. On that day, the meeting, there were a lot of things ‑ ‑ ‑
In forming my opinion that Mr Su gave unresponsive answers, I have taken into account Mr Su does not speak English, and that the giving of evidence through an interpreter gives rise to potential misunderstandings of the meaning of questions and answers. I am of the opinion that these potential difficulties did not cause what I find to be Mr Su’s unresponsiveness to questions asked of him.
A second reason I could gain no insight from Mr Su’s evidence about what was decided at the board meeting of 18 June 2012 is that the evidence he gave did not reflect the minutes of the board meeting, and was inconsistent with the contents of Tiy Loy’s letter of 2 July 2012 to Mr Cai. For example, in the passage of his evidence I have reproduced in paragraph 60 of these reasons, Mr Su seems to have said that no firm decision was made at the board meeting to eliminate Mr Cai’s full time position; Mr Su said that Mr Cai was informed that “we are short of money. We want to do this. Maybe you consider and let us know”. In other words, Mr Su, in his evidence given in cross-examination, suggested that Mr Cai was asked to consider whether he would work part time. This contrasts with the minutes of the board meeting which record: “Decided after discussion: since company has insufficient fund [sic], in order to cut costs, decided to change the Attendant position from a long term position to a short term position”.[87]
[87] Exh. 4
Another example is the evidence Mr Su gave about when Mr Jin Tian Zhu (also known as Stephen Chu[88]) was to approach the accountant to calculate Mr Cai’s long service leave. Mr Su said that Mr Jin Tian Zhu was not directed at the board meeting of 18 June 2012 to approach Tiy Loy’s accountant to calculate Mr Cai’s long service leave entitlement.[89] The minutes of the board meeting, however, record that “Jintian Zhu will contact accountant to calculate Ree Bin Cai’s long-term service benefit”.[90]
[88] 09.05.14; T155.25
[89] 09.05.14; T155.25-30
[90] Exh. 4
That Mr Su’s evidence is inconsistent with what appear to be contemporaneous documents does not necessarily mean that his evidence is of no value. However, the apparent discrepancy between what he said in evidence, and what is recorded in apparently contemporaneous documents, should be explained; but no explanation has been given.
20 June 2012 – Injury Management Plan prepared
On 20 June 2012 an injury management plan (IMP) was prepared in relation to Mr Cai’s injury.[91] The IMP described Mr Cai’s injury as “L ankle fracture”. The IMP identifies actions required by Mr Cai, the treating doctor, Tiy Loy, and QBE’s case manager. The IMP identifies Mr Stephen Chu as Tiy Loy’s representative. Under the IMP, Mr Cai was required, among other things, to “[c]omply with clinical management plan as per treating specialist and/or doctor’s recommendations to facilitate a safe and effective return to work” and to “[p]erform suitable duties as available within medical restrictions and upgrade work status accordingly”. Tiy Loy, through Mr Chu, was required to “[d]evelop and monitor return to work plan where suitable duties can be provided and upgrade accordingly as per medical certification until a safe and durable return to pre-injury duties is attained”, and to “[s]ubmit wage reimbursement schedules on a regular basis to facilitate monitoring of wage benefit for the time loss”.
[91] Exh. 2
Events after the 18 June 2012 board meeting – the evidence
According to Mr Deng, on 20 June 2012 Mr Cai approached Mr Deng and told him that he decided “not to continue at this job” because he did “not want to work part time”.[92] Mr Deng suggested that he should write a letter of resignation, but Mr Cai said that that was not necessary, as “[t]his is a minor matter and it’s not the practice here”.[93] Mr Deng said that Mr Cai should also inform Mr Chu.[94] Mr Cai denies he had a conversation to this effect with Mr Deng.[95]
[92] Deng affidavit, 10.10.13, [15]
[93] Deng affidavit, 10.10.13, [15]
[94] Deng affidavit, 10.10.13, [15]
[95] Cai affidavit, 22.10.13, [27]
Mr Deng further says that after his conversation with Mr Cai, Mr Deng telephoned Mr Su and told him that Mr Cai “has just resigned” and that “this needs to be brought up in another board meeting to discuss the resignation and let all of the board members know of the resignation”.[96] About three days later, according to Mr Deng, Mr Cai came to Mr Deng’s office and had a further conversation. Mr Cai asked when would be the last day he would be working. Mr Deng suggested, and Mr Cai agreed, that the last day would be 1 July 2012.[97] As I understand Mr Cai, he denies he had a conversation to the effect deposed by Mr Deng.[98]
[96] Deng affidavit, 10.10.13, [16]
[97] Deng affidavit, 10.10.13, [17]
[98] Cai affidavit, 22.10.13, [28]
Mr Su says that on 20 June 2012 Mr Deng had telephoned Mr Su to inform him that Mr Cai had decided to resign.[99] Mr Su also says that on 25 June 2012 another board meeting was held in which “the resignation of Mr Cai was discussed and possible replacements”.[100] The board invited Mr Cai, Mr Deng, and Mr Chu for the purpose of confirming that Mr Cai had decided to resign. Mr Cai confirmed he decided to resign. Mr Su says he then instructed Mr Chu to “follow the company laws and pay Ree Bin his long service leave and other entitlements”.[101] Mr Cai denies he participated in any such conversation.[102]
[99] Su affidavit, 10.10.13, [9]
[100] Su affidavit, 10.10.13, [10]
[101] Su affidavit, 10.10.13, [10]
[102] Cai affidavit, 22.10.13, [43]
In apparent contradiction to what he deposed in his affidavit, Mr Su, in answer to Mr Cai’s counsel putting to him that Mr Cai never said to Mr Su at any time that he had resigned, said that Mr Cai “did not say this or resigned to me directly face-to-face, but he resigned to Mr Tan, the manager and Mr Chu the manager”.[103]
[103] 09.05.14; T179.40-45
Mr Deng says that on 25 June 2012 a further board meeting was called “which I attended to discuss the resignation of Mr Cai”.[104] He says that at the meeting it was discussed “that other suitable person/s would need to be organised to replace Mr Cai when he left”.[105] Mr Deng does not say that at that meeting that he, Mr Chu, and Mr Cai were invited to answer a question from Mr Su about whether Mr Cai had agreed to resign.
[104] Deng affidavit, 10.10.13, [19]
[105] Deng affidavit, 10.10.13, [19]
According to Mr Su,[106] on 2 July 2012 he had a conversation with Mr Chu and Mr Cai in which Mr Chu said that he did not know how to calculate Mr Cai’s long service leave entitlements and that he did not know Mr Cai’s entitlements. Mr Cai said he felt “very insecure because you have not told me what my long service leave entitlements are”. Mr Su said that he would write a “letter of direction to provide to the company accountant who can organise for the correct long service leave payments to be made to Ree Bin Cai.” Mr Cai agrees he participated in a conversation to the effect Mr Su deposes.[107]
[106] Su affidavit, 10.10.13, [12]
[107] Cai affidavit, 22.10.13, [44]
In his first affidavit Mr Cai says that on 2 July 2012 he was issued with a letter from Tiy Loy which stated as follows:[108]
The board of the company after consideration, unanimously agreed on the following answer: the board of the company on the 18th June, had face to face explained the current realistic situation of the company, decided the work of the staff of the company is changed from long term service staff, to temporary short term work. Thus to terminate Ree Bin Cai long term working agreement. This change the original position into short term work hiring. The time of the noticing was on the 18th June, termination date was 1 July. We also require two parties to cooperate and follow the company law to handle the relevant matters.
[108] Cai affidavit, 06.09.13, [28], annexure “D”
In his second affidavit, however, Mr Cai says that he received the letter after 5 July 2012, being the day on which he handed to Tiy Loy a letter dated 5 July 2012 drafted by a Mr Feng, who is also known as “Dragon Lotus”.[109] The letter from Mr Feng included the following statements:[110]
After being noticed of the letter of full-time employment termination for Mr. Ree-bin Cai from the board of your company and the fact of Mr. Ree-bin had worked in your company for 18 years. We here provide the following opinions regarding to the statement you made “according to company’s regulation”.
[109] Cai affidavit, 22.10.13, [44]
[110] Cai affidavit, 06.09.13, annexure “E”
Mr Feng then makes two points. The first is that inadequate notice was given to Mr Cai under the National Employment Standards. The letter states that:
The board made the decision on 18th June, and noticing Mr. Cai about his employment termination on the same day. The official termination date is 1st July . . . .
The second point the author makes is that Mr Cai was effectively terminated because the work he undertook was to be undertaken now by two persons. That, at any rate, is what I understand to be the intended meaning of the following passage from the letter:
Secondly, the board used the reason of reducing cost as a major reason, and decided to change Mr. Cai’s work position. The company change Mr.Cai’s job from full time employee to temporary employee, however, the nature of job and the work responsibility has not changed, the workload has not decreased. As a matter of fact, from 2nd July, the company hired two new employees to carry Mr. Cai’s work and responsibility. This is disguised dismissal; it is not reasonable.
It is reasonably clear from the contents of the letter dated 5 July 2012 from Mr Feng that it responds to the letter dated 2 July 2012 from Tiy Loy, and, contrary to what Mr Cai has said in his affidavit, that Mr Cai consulted Mr Feng after he received Tiy Loy’s letter dated 2 July 2012.
What occurred at the board meeting and immediately afterwards – findings
There is no doubt, and I find, that on 18 June 2012:
a)Tiy Loy’s board of directors met;
b)the board decided to eliminate Mr Cai’s full time position from six days to three days;
c)that decision was to take effect on 1 July 2012; and
d)after that decision was made, Mr Cai was called into the meeting, and members of the board informed Mr Cai of the board’s decision.
Although nothing turns on it, I prefer Mr Cai’s evidence to that of Mr Su that the person who communicated to Mr Cai the board’s decision was Mr Ho, not Mr Su. Mr Ho was the chairman of the board, whereas Mr Su’s evidence was that he “was not helping the meeting”, but “was involved in recording the meeting”.[111] It is more likely that Mr Ho, the chairman, rather than Mr Su, the minute taker, would have communicated the board’s decision to Mr Cai. I also find, on the basis of the board minutes, that the board decided that the position Mr Cai then occupied would be undertaken by two persons on shift, and that each person would be paid $115 gross per day.
[111] 09.05.14; T149.35
The evidence suggests the directors offered, or intended to offer Mr Cai one of the two shifts. The clearest evidence that Tiy Loy intended to offer and did offer Mr Cai part time work is that given by Mr Su. He deposes that the directors agreed that Mr Cai would work for no more than three days and, when Mr Cai was called before the board, Mr Su informed him that it “is your choice which 3 days you wish to choose to work”. Mr Cai’s evidence, although less clear, is to the same effect. He deposed that the chairman of the board Mr Ho (not Mr Su) said Mr Cai’s “job will be held until 1 July 2012. After 1 July 2012, will hire 3 days part time instead”.
The two contemporaneous documents – the board minutes, and Tiy Loy’s letter dated 2 July 2012 – are less clear. The board minutes do not expressly refer to Mr Cai being employed on a part time basis. The words “[t]o be on shift by two people”, however, suggest that the work Mr Cai had been performing was now to be performed by two persons working on shifts; and the words which follow these words, namely, “[a]fter [recovery/resumption] need to do shift work as rostered” could conceivably indicate that the board contemplated Mr Cai would be one of the two persons to be rostered, but then only after “recovery” or “resumption”. The minutes do not, however, identify what it is that is to be recovered or resumed. If the intended meaning of the Chinese character which has been interpreted as meaning either “recovery” or “resumption” is interpreted to mean “resumption”, then one sense of the minutes is that Mr Cai will be on shift when he resumes work as a part time employee. It is difficult, however, to understand the meaning of the minutes if the intended meaning of the Chinese character is “recovery”. It could conceivably refer to Mr Cai’s ability to return to work after he recovers from his injury. But that is an unlikely meaning; although Mr Cai suffered an injury, Mr Cai was working. As for Tiy Loy’s letter dated 2 July 2012 to Mr Cai, the words “[w]e also require two parties to cooperate and follow the company law to handle the relevant matters” may suggest that it was contemplated that Mr Cai would be one of the two persons whom it was expected would cooperate.
I must also consider, however, what is stated in Mr Feng’s letter of 5 July 2012. The letter states that “from 2nd July, the company hired two new employees to carry Mr. Cai’s work and responsibility”. If that is correct, it is inconsistent with Tiy Loy having offered Mr Cai even part time employment; inconsistent, that is, unless there is some other evidence. And there is.
As I have set out earlier in these reasons, Mr Deng deposed that Mr Cai, after having been informed that his full time position would be eliminated, told Mr Deng that he wished to resign; and Mr Su deposed that on 25 June 2012 Mr Cai appeared before the board and confirmed he intended to resign. There are difficulties in accepting Mr Deng’s or Mr Su’s evidence on these matters. First, had Mr Cai resigned, as claimed by Mr Deng and Mr Su, it would have been reasonable to expect Mr Su, the author of the letter dated 2 July 2012, to have stated so in the letter. Second, as I also note earlier in these reasons, Mr Deng did not state in his affidavit that Mr Cai appeared before the directors to confirm that he resigned or had intended to resign. Third, in his letter dated 5 July 2012 to Tiy Loy, Mr Feng asserted that Tiy Loy had hired two new employees to carry out Mr Cai’s responsibilities, and that this constituted a “disguised dismissal”. In other words, Mr Feng asserted in terms that Mr Cai had been dismissed. Had Mr Cai resigned, as Mr Deng and Mr Su have deposed he did, it would be expected that Mr Su, after he saw the letter from Mr Feng, would have arranged for Tiy Loy to have responded that Mr Cai had resigned. Mr Su did not respond with any such assertion.
Other matters
Mr Cai claims Tiy Loy did not pay to him 17.5% loading for annual leave. Mr Cai has calculated the amount owing to be $4,912.83. I do not understand Tiy Loy disputes Mr Cai is entitled to be paid that amount. If I am incorrect in my understanding, I will grant Tiy Loy liberty to apply to relist the matter so that I may determine that question.
Finally, Mr Cai claims Tiy Loy failed to maintain records in relation to Mr Cai’s employment contrary to s.836 of the Workplace Relations Act 1996 (Cth) and s.535 and s.536 of the FW Act. Tiy Loy admits it failed to comply with these provisions. Mr Cai does not claim, however that he suffered any loss as a result of those claimed contraventions. He does claim, however, a pecuniary penalty for the contraventions.
Disposition
I have found that by deciding on 18 June 2012 to alter Mr Cai’s position from that of a full time to a part time employee, and informing Mr Cai of that decision on that day, Tiy Loy contravened s.340 of the FW Act and that, because of that contravention Mr Cai has suffered loss, that loss being the loss of wages for the period commencing 1 July 2012 and ending 21 September 2013 less the payment Mr Cai received in lieu of notice.
The only orders I propose to make, therefore, are declarations to that effect, and an order granting the parties liberty to apply to approach my Associate to set a date for the purpose of my making an order fixing the amount of compensation Tiy Loy must pay to Mr Cai under s.545(2) of the FW Act and to list the matter for the hearing of submissions on penalties and costs.
I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 27 March 2015
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