Gang Zhang v Meeke Engineering

[2017] FWC 4400

[2017] FWC 4400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gang Zhang
v
Meeke Engineering
(U2017/5565)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 15 SEPTEMBER 2017

Application for an unfair dismissal remedy – refusal to comply with direction to perform task – application dismissed.

[1] On 25 May 2017, Gang Zhang (the applicant) applied to the Commission for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Meeke Engineering Pty Ltd (the respondent) on 12 May 2017. Following the collapse of a settlement involving the reinstatement of the applicant, the matter was referred to me for determination.

[2] The parties were directed to file written outlines of submissions and evidence. A hearing was conducted on 23 August 2017. The applicant was represented by Mr B Falconer. The respondent’s case was presented by its Managing Director, Mr J Di Giulio.

The evidence

[3] The applicant tendered a statement on his own behalf, 1 and was cross-examined. In his statement, the applicant indicated that he was born in 1956 and commenced employment with the respondent in or around 2004.

[4] The applicant was employed as a Computer Numerical Control (CNC) machinist. In his statement, the applicant said that his role required him to bend over various machines for a long time. He claimed that this had resulted in the significant exacerbation and acceleration of an underlying degenerative disc disease. He said he underwent a CT scan on 26 September 2016, which revealed compression of his spinal nerve at L5/S1.

[5] Mr Vuong, the applicant’s supervisor, said in response to a question from the Commission that he had not spoken to the applicant about why he had taken sick leave last September. 2 The doctor’s certificate tendered by the applicant gave no reason for the need to take leave, beyond indicating that he was unfit for work from 20 to 23 September 2016. Mr Sawant (the respondent’s General Manager) said that the applicant had never spoken to him about problems he was having with his back.3

[6] The applicant said that on 12 May 2017, he was given a difficult job that would have required him to bend over a machine for 10 to 12 hours:

‘Due to the poor state of lower back, I had no option but to decline. I was called into the office where I was confronted by Mr Sawant (General Manager), Mr Deric Vuong (Foreman), Mr Raymond Chu (Workshop Manager), and Mr Ajay Limbore (Production Control Manager). When I attempted to provide Mr Sawant with an explanation, he immediately interrupted me and said ‘can you do the job, just say yes or no.’ After saying no, Mr Sawant told me there was no longer a job for me and told me to leave.’ 4

[7] Mr Vuong (the applicant’s supervisor) gave written evidence (on which he was not cross-examined) that on 12 May 2017 he went to show the applicant his next job, a job he had done in the past without any issue.

‘Mr Zhang got angry and refused to do it saying he wants more pay rise (sic) to do it.

I replied that from my knowledge you recently got a pay rise. Mr Zhang again violently replied that company is stupid not give him bigger pay rise and refused to do the job.’ 5

[8] Mr Vuong said that he then approached the Manager, Mr Limbore and Mr Sawant. Mr Limbore tried to talk to the applicant. Mr Sawant then called the applicant into the office with Mr Limbore and Mr Vuong.

[9] Attached to the witness statement of Mr Sawant 6 was an audio recording of the meeting that took place in the office. The applicant said at the hearing he had not consented to the recording. I am satisfied, based on the evidence of the respondent’s witnesses,7 that the applicant was aware that the meeting was being recorded. I have decided that the recording should be admitted into evidence.

[10] During the meeting, the applicant referred to his long period of service with the respondent. He complained about his ‘very low pay’ and suggested that he had been promised more money. It was pointed out to him that he was already the highest-paid machine operator in the business. Mr Sawant said that it was possible that other employers might pay more, but the respondent could not afford to pay the applicant more money. He noted that the applicant made mistakes and used his mobile phone while working, but that he was paid according to his qualifications and experience.

[11] Mr Sawant asked the applicant whether he wanted to do the job he had been asked to perform or not. The applicant responded that the job was ‘very special’. There was a discussion between the applicant and Mr Sawant about whether the applicant was a better worker than the other machine operators. There was then a reference to warnings the respondent had previously given the applicant about using his mobile phone while working. The applicant said he had made a lot of money for the company. He complained that he was given too many difficult jobs and wanted more money. He also said that he wanted to work as a contractor.

[12] Mr Sawant asked Mr Vuong and Mr Limbore whether the applicant had refused to do a job that morning and whether he had refused to do jobs in the past. They answered in the affirmative. Mr Sawant then asked the applicant directly whether he was going to do the job he had been given: ‘“yes” or “no”’. The applicant said the job was ‘very difficult’. Mr Sawant said if the applicant was not going to do the job he would ‘have to leave the company now’. When the applicant reiterated that the job was very difficult, it was pointed out to him that he had done the job before. The applicant reiterated that he wanted more money. He was then told he could leave – to which he replied ‘OK’.

[13] It was put to the applicant during his cross-examination that when he had the meeting in the office on 12 May 2017, not once did he mention that he did not want to do the job because of his lower back pain. In response to the question ‘It was all about money; is that correct?’, 8 he replied:

‘It’s because the company promised me that if I do these jobs for them and I will get paid as I deserve, but the company has never done that as they promised, and the company used different excuses to push me to the corner.’

[14] While I accept that the discussions between Messrs Vuong, Limbore and Sawant and the applicant commenced prior to the recording, these are captured by Mr Vuong’s unchallenged evidence.

[15] It is abundantly clear from the recording, together with the evidence of Mr Vuong, that the applicant did not refuse to perform the task he had been given because of the poor state of his lower back, but because he thought he should be paid more. I am satisfied that the applicant never raised his back problems as a reason for not completing the task. During his examination-in-chief, the applicant said he had previously been promised a pay increase. 9

[16] The applicant said he was underpaid:

‘In this company they just pushed all those difficult tasks and all those tasks that no operators are capable of doing to me and this company was not producing or manufacturing any modules and it was me who initiated this work in this area and I made some improvements on this area. Because of my performance this company won the credibility and trust on the market and I made roughly $20,000 profit for them every week but they did not pay as promised.’ 10

[17] Mr Sawant’s written evidence about the meeting on 12 May 2017 was consistent with the recording. He said that the applicant was the highest-paid CNC machinist the respondent employed, and was paid $31.50 per hour at the time of his dismissal. He had received five pay rises from 2010 to 2017. 11

[18] He said that the applicant used to make regular mistakes compared to other people, particularly because he would use his mobile phone and not concentrate. 12

[19] According to Mr Sawant the applicant was given a choice: ‘If you want to do the job or you want to resign, so he opted to leave.’ The respondent waited for three days to see if he would change his mind and come back. 13

Consideration

[20] It is at least arguable that the applicant resigned rather than that he was dismissed. I am satisfied that if the applicant had returned to work in the days after 16 May 2017 and agreed to work as directed, the respondent would have allowed him to do so. Indeed, Mr Di Giulio even said towards the end of the hearing that if the applicant was willing to return, the respondent would still give him back his job. 14

[21] However, a better interpretation of the events of 16 March 2017 is that the applicant repeatedly refused to work as directed and was then dismissed by the respondent. This is consistent with the statement by Mr Sawant that if the applicant would not do the job he would have to leave the company. The issue then is whether the dismissal was unfair, that is ‘harsh, unjust or unreasonable’.

[22] In considering whether I am satisfied that a dismissal is harsh unjust or unreasonable, I must take into account the criteria set out in s.387 of the FW Act. 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 the FWC considers relevant.

[23] I will consider each of these criteria in turn.

[24] I am satisfied that the respondent had a valid reason for the dismissal of the applicant, namely, that he repeatedly and without good cause refused to comply with a lawful and reasonable direction. I completely reject the applicant’s claim that he refused to perform the task given to him because of his bad back. It is quite clear from the evidence that he was using his refusal to do the task as a bargaining chip in order to obtain a pay increase. His actions were wilful and calculated, and inconsistent with his obligations as an employee.

[25] The consequence of the applicant’s refusal to work as directed was made very clear to him at the meeting in the office on 16 May 2017. The applicant had an opportunity to tell the respondent’s managers why he was refusing to do the job allocated to him, and did so, in no uncertain terms.

[26] The applicant never asked for a support person.

[27] The applicant was not terminated for poor performance.

[28] The manner in which the applicant was dismissed leaves something to be desired. A better approach would probably have been to send the applicant home, and then contact him either by telephone or letter to give him a chance either to reconsider his actions on 16 May 2017 or provide an explanation for them, prior to making any decision to dismiss him. However I note that the respondent is a relatively small business, with fewer than 40 employees, and appears to have no access to dedicated human resources expertise. These factors could be expected to affect the procedures followed in the dismissal (as well as the confusion about whether the applicant had indeed been dismissed).

[29] I have had regard to the applicant’s length of service, age and language difficulties. However, I also note he is a highly skilled worker, whose skills are very much in demand.

[30] Weighing all these findings together, I do not consider that the applicant was unfairly dismissed.

Conclusion

[31] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

B Falconer with D Wilkinson, solicitor, for Gang Zhang

J Di Giulio for Meeke Engineering.

Hearing details:

Sydney.

2017.

August 23.

 1   Exhibit Z1.

 2   PN819-PN820.

 3   PN620-PN621.

 4 Exhibit Z1 [23].

 5   Exhibit M2 [C13]-[C14].

 6   Exhibit M1.

 7   For example, exhibit M1 [F4]; PN643, PN835-PN842.

 8   PN292.

 9   PN156.

 10   PN157.

 11   Exhibit M1 [F7].

 12   PN703.

 13   PN724-PN726.

 14   PN1028.

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