Dennis Ping Xu v Pump Seal Supplies Pty Ltd
[2011] FWA 6563
•27 SEPTEMBER 2011
[2011] FWA 6563 |
|
DECISION |
Fair Work Act 2009
s 394 - Unfair dismissal
Dennis Ping Xu
v
Pump Seal Supplies Pty Ltd
(U2011/7211)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 SEPTEMBER 2011 |
Termination of employment - allegations of poor performance and conflict with other employees - unrepresented parties - state of evidence unsatisfactory - ‘fair go all round’ - valid reason for dismissal - dismissal not harsh, unreasonable or unjust.
[1] This is an application, filed by Mr Dennis Ping Xu (‘the applicant’), in which he seeks an order from Fair Work Australia (‘FWA’) for an unfair dismissal remedy, pursuant to the relevant provisions of Part 3-2 of the Fair Work Act 2009 (‘the Act’). The applicant was dismissed from his employment as a machinist on 13 April 2011 by Mr Hao Jiang, a Director of Pump Seal Supplies Pty Ltd (‘the respondent’).
[2] The application was not settled during a conciliation conference on 24 May 2011 and was subsequently allocated to me for arbitration. At this juncture, I record that both parties were unrepresented and the applicant required a Mandarin interpreter during the proceedings. Unsurprisingly, the witness statements were brief and reflective of a limited level of English comprehension. The conduct of the proceedings was made very difficult by both parties lack of any understanding of the processes or procedures involved in presenting a case before FWA. Nevertheless, doing the best I can from the written materials and the proceedings, I am satisfied that both parties were given an adequate opportunity to present their respective cases as best they could. Needless to say, the Tribunal found it necessary to dispense with procedural technicalities in order to get to the heart of the matter.
[3] From the documentation filed in the proceedings, I apprehend that there is no issue that the applicant was a person protected from unfair dismissal (s 382 of the Act) in that:
(a) he was covered by a modern award;
(b) he had met the minimum employment period of more than 12 months (2 years, 8 months); and
(c) his dismissal was not a case of genuine redundancy. (s 385(d)).
[4] The respondent is a small business employer having 3-4 employees and while Mr Jiang did not raise any jurisdictional objection to the application on these grounds, it is plain that he sought to rely on the Small Business Fair Dismissal Code (‘the Code’) in his pleadings. On the other hand, the applicant insists that the Code had not been followed (s 385(c)) and his dismissal was unfair (‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act).
[5] The letter terminating the applicant’s employment was expressed in the following terms:
This is to inform you that your employment with Pump Seal Supplies Pty Ltd has been terminated.
In the past of [sic] two years, you have been required to improve the quality of your work. Despite several verbal conflicts, you were allowed to proceed with your employment in this company. Furthermore, the company has attempted several times to further enhance your skills as well as improving your quality of work. However, sadly, we have found your work quality does not adhere to the standard maintained by the company.
We have also found that there is a decline in your cooperation with other colleagues.
This leaves the company no other choice than dismissing you from your employment, although we will provide all your holiday pay and superannuation as required.
You can be assured that the company will not divulge the details of your termination to company [sic] seeking references. We wish you all the best for the future.
It seems plain enough that the reasons for the applicant’s dismissal on notice, were poor performance and a failure to cooperate with other employees.
Applicant’s case
[6] The applicant described the respondent’s grounds for his dismissal as complete nonsense. He gave examples of Mr Jiang ’scolding’ him for not polishing a product to standard. He said he always made the products according to the respondent’s drawing tolerances and the ‘scoldings’ by Mr Jiang were unreasonable.
[7] The applicant claimed that his lack of cooperation was more a case of Mr Jiang not liking him and discriminating against him by requiring him to park his car in the street and not in the respondent’s car park. The applicant said that he had always been helpful and cooperative. In a further statement, the applicant claimed that he had always abided by Mr Jiang’s instructions when setting the tools. However, when he had questioned the quality of some materials, Mr Jiang had ‘got angry’ with him. There was also some reference to a physical threat involving another employee on 1 June 2010, (however, I could not understand what the exact nature of this incident was). The applicant also claimed that he had never been paid overtime for working an extra 2 hours each week and also sometimes on Saturdays.
[8] In a rather disjointed and informal cross examination of the applicant, Mr Jiang sought to establish that the applicant would always argue when questioned about his work or would make excuses for his frequent mistakes. The applicant said that when he would offer to make a new product, for a faulty one, Mr Jiang refused. He said he always followed procedures. In questions from the Bench, the applicant denied that he had received four verbal warnings about his performance. He agreed that he had worked out his two weeks’ notice of dismissal. Since his dismissal, the applicant claimed to have been looking for work and he now seeks an award of 26 weeks pay in compensation for his alleged unfair dismissal.
Respondent’s case
[9] In a written submission/statement, Mr Jiangsaid that over the last 12 months he and another employee had had many arguments with the applicant. He had made various unsubstantiated allegations against another colleague, including that he had threatened to kill him. Mr Jiang said that the applicant’s allegations were baseless and he had warned him he would be dismissed if he raised similar allegations in the future.
[10] Mr Jiang put that the applicant made costly errors over the last 12 months which he constantly denied or gave unreasonable excuses for. These errors had damaged his products and threatened a loss of customers. Mr Jiang provided three examples to the Tribunal of these incidents involving errors by the applicant which ultimately resulted in an argument about his mistakes. Mr Jiang also cited an example of the applicant damaging his company’s reputation by using the ‘F-word’ in a conversation with a customer resulting in him not coming back.
[11] As to the applicant’s overtime claim, Mr Jiang said that the applicant had always willingly agreed to work extra hours for the normal hourly rate and, in any event, it was not compulsory for him to do so. Mr Jiang acknowledged that the applicant had worked a total of 60 hours overtime, but the applicant had agreed to do so.
[12] Mr Jiang said that as a small business he had patiently tried to communicate with the applicant of the need for him to improve his skills, communication and performance. However, he believed that this was impossible and on 10 December 2010, after four earlier verbal warnings, he had no choice but to terminate the applicant’s employment. In questions from the Bench, Mr Jiangsaid he had warned the applicant that a continuation of his behaviour and poor performance would result in his dismissal.
[13] Mr Alex Qi Zang Li had worked as a colleague of the applicant and said he had had arguments with him and had witnessed the arguments he had with Mr Jiang. Mr Li was the person the applicant accused of wanting to kill him. Mr Li said this was a baseless allegation.
[14] I note that the applicant declined to ask Mr Jiang or Mr Li any questions.
[15] In oral submissions, Mr Jiang said that initially the applicant had worked well but after a year he became more difficult, always arguing and it was not a good working situation for a small business with only 3-4 employees. Mr Jiang said he had given the applicant at least eight months notice that he needed to improve.
[16] In reply, the applicant said that Mr Jiang had only identified two small performance incidents which he had now used as an excuse to dismiss him. He said he had always worked according to Mr Jiang’s requirements.
CONSIDERATION
[17] There is no doubt that the respondent is a small business employer. Equally, there is no doubt that the respondent did not expressly rely on the Small Business Fair Dismissal Code as there was no evidence that Mr Jiang had completed the Code’s Checklist. Furthermore, he made no reference to it during the proceedings. That said, it is not mandatory for an employer to complete the Checklist. It merely serves as a tool which may be used in the event of a future unfair dismissal claim in which the employer relies on compliance with the Code to oppose the claim. Nevertheless, the respondent appears to have inferentially relied on the Code and, in particular, whether he had given warnings to the applicant about his poor performance. Even so, Question 8 of the Code requires more than just giving warnings as will be seen from the following extract:
Did you clearly warn the employee (either verbally or in writing) that the employee was not doing the job properly and would have to improve his or her conduct or performance, or otherwise be dismissed?
Did you provide the employee with a reasonable amount of time to improve his or her performance or conduct?
Did you offer to provide the employee with any training or opportunity to develop his or her skills?
Did the employee subsequently improve his or her performance or conduct?
Before you dismissed the employee, did you tell the employee the reason for the dismissal and give him or her an opportunity to respond?
Did you keep any records of warning(s) made to the employee or of discussions on how his or her conduct or performance could be improved?
[18] Even if the respondent did not expressly comply with all of the Code’s requirements, or at all, this may not result in a finding of unfair dismissal. This is so because FWA must be satisfied that all of criteria in s 385 of the Act of when a person is unfairly dismissed must be met. These are:
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy. (emphasis on the conjunction ‘and’).
[19] Therefore, whatever reliance is placed by the applicant upon the respondent’s alleged failure to comply with the Code, the statutory basis for determining this matter ultimately hinges on those matters in s 387 of the Act which FWA is required to take into account. These are:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[20] The meaning of ‘harsh, unreasonable or unjust’ in this context is well expressed in the frequently quoted passage in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, where McHugh and Gummow JJ said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.
[21] Due to the unsatisfactory state of the evidence, I am left with an evidentiary dilemma to resolve in order to make a finding as to whether the applicant’s dismissal may have been in breach of the Code. Of course, even if there were breaches of the Code, and I accept that the nature and size of the respondent’s business made it highly likely that there were, it does not inevitably lead to a conclusion that the applicant’s dismissal was unfair. The dilemma arises in this way: Mr Jiang insists he gave the applicant 3 or 4 verbal warnings about his poor performance and that if it continued he would be dismissed, but there is no corroborating warning letter or diary notation of him doing so. Given the respondent’s lack of employee relations expertise that would seem hardly surprising. However, the applicant chose not to question Mr Jiang about these warnings, but he did deny that he was given 4 verbal warnings. Thus, after questioning by me, I am left with Mr Jiang’s uncontested statement and the applicant’s sworn evidence to the contrary. It would seem that the only other evidence corroborating Mr Jiang’s version of at least a number of performance related incidents was that of Mr Li. He too was not required for questioning, so ordinarily his evidence must be accepted.
[22] While one might ordinarily be wary of an existing employee corroborating the evidence of his employer against a former employee, I consider that in the overall circumstances of this case, and given the applicant’s acknowledgement that he did have disagreements with Mr Jiang, the most likely conclusion that I can reach, on the balance of probabilities, is that Mr Jiang did give the applicant some warnings about his performance. Whether that included a specific warning that a failure to improve might result in dismissal, is somewhat more problematic. However, I think the implications for the applicant would have been clear to him having already received a number of warnings. In addition, it seems somewhat curious that the respondent permitted the applicant to work out his two week notice period in light of Mr Jiang’s view as to the imperative to dismiss him.
[23] In my view, this is one of those not infrequent, and difficult cases involving unrepresented litigants and unsatisfactory evidence, where the principle of a ‘fair go all round’ is particularly apposite. See s 381(2) of the Act. It seems plain enough to me that the employment relationship was simply not working out and was unlikely to have improved.
[24] Turning then to the other matters in s 387 of the Act, I am satisfied that there was a valid reason for the applicant’s dismissal, namely; his poor performance and that he was notified, on a number of occasions, that his performance fell below what the respondent had expected (s 387(b)). From his own evidence, it is apparent that the applicant had challenged the respondent’s view of his performance and his argumentative excuses were in part a contributory factor in the decision to dismiss him (s 387(c)). Subsection (d) is not relevant as there were no formal discussions with the applicant about his dismissal. While I have some doubts that the applicant was expressly warned that a failure to improve his performance would result in his dismissal, for the reasons I have earlier expressed, I do not consider this to be fatal to the respondent’s defence in this case.
[25] I have also had regard for the respondent’s very rudimentary human resource management expertise, the apparent absence of any professional advice about the matter and the very small size of his enterprise (s 387(f) and (g)). I also consider two other matters are relevant to this application. Firstly, given the context of, and lead up to the applicant’s dismissal, I think it highly unlikely that he would have lasted for much longer in the job. Secondly, I note the applicant had only completed a relatively short length of service with the respondent.
[26] In summary then, I am unable to come to a conclusion that the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. Accordingly, the application must be dismissed. However, I would add the following comment.
[27] While the applicant claimed certain underpayments for overtime, these proceedings are not the appropriate forum for prosecuting such a claim. Any inquiries in this respect should be directed to the Office of the Fair Work Ombudsman. However, I note that Mr Jiang acknowledged that the applicant had worked 60 hours of overtime at ordinary rates. I recommend that, at the very least, Mr Jiang should make a payment to the applicant equivalent to this amount of overtime.
DEPUTY PRESIDENT
Appearances:
Applicant - Unrepresented
Respondent - Mr H Jiang.
Hearing details:
2011
SYDNEY
29 August
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