Eng Hua Liuk v Dainty Age One Pty Ltd T/A Dainty Sichuan Food

[2020] FWC 6784

[2020] FWC 6784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eng Hua Liuk
v
Dainty Age One Pty Ltd T/A Dainty Sichuan Food
(U2020/14827)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 15 November 2020, Mr Eng Hua Liuk made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Liuk’s unfair dismissal application is Dainty Age One Pty Ltd T/A Dainty Sichuan Food.

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Liuk recorded that he was notified of his dismissal and it took effect on 12 July 2020. This indicated that the unfair dismissal application was not made within 21 days of his dismissal taking effect. As s.394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or “within such further period as the Commission allows” under s.394(3), this file was allocated to me for the purposes a determining whether an extension of time for the making of Mr Liuk’s application should be granted.

[3] The parties filed material in response to Directions I made on 19 November 2020. In the case of the Respondent, a Form F3 – Employer response to unfair dismissal application was filed, asserting that Mr Liuk was not dismissed.

[4] I conducted a determinative conference on 14 December 2020 at which Mr Liuk appeared, together with a director of the Respondent, Ms Ting Li. The parties were assisted by an interpreter.

[5] The parties appear to have almost exclusively communicated during the relevant period that concerns this application via a social media platform known as WeChat. Mr Liuk produced extensive WeChat exchanges between himself and Ms Li in Mandarin. He also provided an English translation of these exchanges. 1 The translation was provided by his 14-year old daughter. There was no dispute as to the content of the translation provided.

[6] Mr Liuk’s account of the factual background was as follows:

a) Having experienced a decrease in his working hours and income due to COVID-19, he needed to apply to his landlord for rent relief and he required correspondence stating he was without work temporarily.

b) He requested a letter from the Respondent and in mid-August 2020 received, by post, a letter from the Respondent dated 4 August 2020 (the August letter), which stated:

“4 August 2020

TO WHOM IT MAY CONCERN

RE: Eng Hua Liuk

We are writing to you in relation to the above.

We advise and confirm with you that:

1. Mr Eng Hua Liuk has been employed by us (Dainty Age One Pty Ltd T/AS Dainty Sichuan Food – Melbourne) as a full-time chef;

2. His employment has been commenced from 01/07/2018 and terminated on 12/07/2020;

Should you have any queries or concerns in relation to the above, please do not hesitate to contact Ting Li of this office.” 2

c) Having little if any English language skills, Mr Liuk says he did not know precisely what was outlined in the August letter.

d) He maintained regular contact with Ms Li regarding opportunities for ongoing work.

e) They corresponded via WeChat.

f) By early November 2020, he had not worked for a number of months.

g) WeChat correspondence from Ms Li on 5 November 2020 prompted him to ask his daughter to translate the August letter.

h) When this occurred on 6 November 2020, he says he discovered that he had been dismissed on 12 July 2020.

i) His next WeChat correspondence to Ms Li after this was sent on 13 November 2020.

j) Messages sent to him by Ms Li on 14 November 2020 prompted him to make his application for unfair dismissal.

[7] I have noted the WeChat correspondence on 5 November 2020 between Mr Liuk and Ms Li 3 had followed a number of enquiries from Mr Liuk regarding the availability of work:

•  On 5 November 2020at 8:09pm, Mr Liuk/“Hua” wrote, “Boss, the restaurant is back to normal after a week, do you have scheduled my work time?” 4

•  Ms Li/“Tina” replied as follows:

•  At 8:20pm: “Now, the restaurant’s income only can cover staff’s wages, the increase in the number of people will certainly affect the restaurant balance. I have asked several restaurants, because your salary used to be based on the head chef's salary, so the restaurants I've asked now don't want to accept you. Now that everyone is calculating, I don't think there's a place for you to do it at the moment.”

•  At 8:25pm, she went on to say: “You are actually not suitable to be head chef to manage the kitchen. In Dainty can do may only cook, so, the previous salary should not be able to continue. I suggest you go outside and see if you can find the right job for you. Because the cook’s salary should be a lot different from your current salary.”

•  Mr Liuk/“Hua” responded at 9:09pm, saying, “Boss, my salary over the past few years is 1500 Australian Dollars a week, if I go back to do cook, how much will you reduce my salary?”

•  Ms Li/“Tina” replied, at 9:19pm on 5 November 2020:

“I now consider that there are only two places to go, one is Clayton shop and one is the city noodle shop for you, and now it's not just about money. Because business is recovering slowly, yesterday was bad, today is not good, it's only weekend two days are ok, later more and more people leave Melbourne and business will be harder. So now head chefs don't want many people to come in their shops, and as soon as add more staff in, other people lost their hours.

And now one staff has to do at least 1.5 – 2 people’s workloads. They prefer cheap laborers, so they can have more people to cover the workloads, the office now five them weekly accounting as long as the labour exceeds, we will immediately reduce the shift. If you have to come back, I also want to ask the Clayton shop and city noodle shop to see if they are willing to have you. Before your salary, is based on head chef's salary. But your performance, the people who work under you are not happy, either you stay, or they go. They told me and I have reminded you many times before, also gave you the opportunity, if the head chef do less workload than another people, people who work under you would not follow you.”

•  At 10:50pm, Mr Liuk/“Hua” responded:

“Boss, the way you say it is unfair to me. You let me wait four months, not even offer me a day shift. Now the restriction is lifted and has returned to normal, you find so many excuses, ask me to reduce wages, and asked me to go somewhere to find a job, as a chef work for you more than 6 years, the excuses that you said which is really very unfair.”

•  At 10:54pm, Ms Li/“Tina” replied:

“You've been the head chef. You know that if I'm looking for new employee always ask the head chef and seek for head chef’s opinions. If the head chef refused, what can I do?”

•  At 10:55pm Ms Li/“Tina” continued:

“Dainty has so many employees older than you, why others have jobs, you do not, you do not look for your own problems, you question me?”

•  At 10:58pm, Ms Li/“Tina” began sending a number of screen shots purportedly asking various chefs in her business if they can take on “Hua”. All the replies were negative, with various reasons offered.

•  At 11:10pm, Ms Li/“Tina” asked “Can you stir-fry? If I can, I’ll ask the others to fry” and “Wages can only start at 1300, cooked and then increased”.

•  At 11:12pm, Ms Li/“Tina” continued, “If the food preparation workers are 1200 to start”.

•  More screenshots of chefs refusing the offer of taking on Mr Liuk/“Hua” are posted and then at 11:56pm, “Tina” stated:

“Now if you have a job outside you do it first, a late look at the Chadstone noodle shop side may be short of people, now business is not even half of the previous, wait until the government asked 40 people to look at it”

(my emphasis)

[8] I have also noted that on 13 November 2020 at 11:56, Mr Liuk/“Hua” wrote:

“Another week, I really can’t wait any longer

You sent me so many pictures that you just want to tell me that my employment is not your responsibility

After all this, this has made me sad after working for you for 7 years.

But, I need to let you know, I'm your full-time employee, I work with you, Dainty is your company, don't find reasons to excuse your behaviour.

Please follow the FairWork regulations, not just to follow what you say.

I spent two hours today calling fair work and consulting about my job and my right as an employee.

You have dragged this on for four months, did not arrange for me to work even a day, this is your wrong, because your business continues to run, Although now the restrictions has been over three weeks, you still did not arrange for me to work, but also found a lot of excuses, but also told me to go outside to find a job, in the law of fairness, I did not work for four months, is equivalent to driving me out, and asking me to get a job from elsewhere. I think you are firing me.

Now, please follow the rules of regulations, I have worked in Dainty for seven years, please pay me back the annual leave that you have owed me throughout all these seven, deduct the annual leave I have taken, and the rest, please settle it to me

In the law of fairness, this is what you have to give, I think you should know more about these labor laws than I do, so please seriously face this problem” 5 (my emphasis)

Was Mr Liuk dismissed and if so, what was the date of Dismissal?

[9] The term “dismissed” for the purposes of the unfair dismissal jurisdiction is defined in s.386(1) of the Act:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[10] Having regard to the facts in this case, I am not persuaded Mr Liuk’s employment was terminated on 12 July 2020 as per the August letter. Both Mr Liuk and Ms Li gave evidence regarding the proposed purpose of the August letter at the determinative conference which suggests the letter was not intended to be a termination letter. Their evidence at the determinative conference was consistent with the following WeChat correspondence:

•  On 30 July 2020 at 7:33pm, Mr Liuk wrote:

“Boss, I'm sorry to bother you, I am asking your favour

By mid-July this year, our family is applying for permanent residency in Australia. Therefore, I need a letter that states how many years that I have been working in the company and an accurate tax return date, for example, from when to start, to the most recent date.

One more thing, I had been informed that there is no position for me due to covid now which is more than two weeks now. I need a letter from you to state that I was a temporary no-working hour, I want to apply for government subsidies, hoping that it would come through, can you the accountant write the letter? This is urgent, thank you”

•  Ms Li replied to this at 7:35pm, stating “Do you have Jessica’s WeChat? Contact her. Let me know if there is any problem.” 6

[11] I am satisfied that notwithstanding the stark language used, it was not Ms Li’s intention to terminate Mr Liuk’s employment on 12 July 2020. Further confirmation can be garnered from the fact that the August letter was written in English (notwithstanding Mr Liuk’s limited English language skills) and it was not addressed to Mr Liuk.

[12] I am of the view that Mr Liuk’s employment was instead terminated at the initiative of the Respondent on 5 November 2020 when Ms Li communicated the following to Mr Liuk in WeChat correspondence that followed a period of approximately four months during which he had been offered next to no work:

a) “the restaurants I've asked now don't want to accept you”;

b) “I don't think there's a place for you to do it at the moment”;

c) “You are actually not suitable to be head chef to manage the kitchen”;

d) “I suggest you go outside and see if you can find the right job for you”;

e) “I also want to ask the Clayton shop and city noodle shop to see if they are willing to have you”;

f) “why others have jobs, you do not, you do not look for your own problems, you question me?”; and

g) “Now if you have a job outside you do it first”.

[13] I also consider that by 13 November 2020, Mr Liuk had come to the realisation that his employment had been terminated by the Respondent. Mr Liuk’s WeChat message to Ms Li that day suggests this and was met with a barrage of replies from Ms Li on 14 November 2020, none of which restored the relationship. Mr Liuk then filed his unfair dismissal application at 9.13pm on 15 November 2020.

Conclusion

[14] As I have determined that Mr Liu was terminated at the initiative of the Respondent on 5 November 2020, his application for unfair dismissal remedy made on 15 November 2020 was made within 21 days after the dismissal took effect and no extension of time for the making of the application is necessary.

[15] It now falls to me to determine whether Mr Liuk’s dismissal was unfair. I will shortly issue the parties with Directions relating to the further conduct of the matter.

DEPUTY PRESIDENT

Appearances:

E.H. Liuk on his own behalf.
T Li for Dainty Age One Pty Ltd T/A Dainty Sichuan Food.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
December 14.

Printed by authority of the Commonwealth Government Printer

<PR725487>

 1   Exhibit 4, DCB pages 44-70.

 2   Exhibit A3.

 3   Exhibit 4, DCB at pages 50-61.

 4   Exhibit 4, DCB at pages 21 and 50.

 5   Exhibit 4, DCB at pages 63 and 64.

 6   Exhibit 4, DCB at pages 45 and 46.