Hai Yan Liu v Calvary Administration Pty Ltd
[2023] FWC 1713
•14 JULY 2023
| [2023] FWC 1713 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hai Yan Liu
v
Calvary Administration Pty Ltd
(U2023/2408)
| COMMISSIONER HUNT | BRISBANE, 14 JULY 2023 |
Application for an unfair dismissal remedy – s.399A application to dismiss – non-compliance with Commission directions – s.587 application to dismiss application where it has no reasonable prospects of success – no reasonable prospects of success – application dismissed.
On 30 March 2023, Ms Hai Yan Liu made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from Calvary Administration Pty Ltd (the Respondent) and that her dismissal was harsh, unjust or unreasonable.
Ms Liu nominated 20 March 2023 as the date of her dismissal. This date is not contested by the Respondent and accordingly the application has been made within the 21-day time limit prescribed by the Act. Ms Liu has met the minimum employment period.
On 26 May 2023, I issued directions for filing of material by the parties for determination of merits of the application where Ms Liu’s material was due to be filed by 15 June 2023. The directions detailed that a telephone conference would be convened on 31 May 2023.
Ms Liu participated in the telephone conference on 31 May 2023, assisted by an interpreter.
Ms Liu did not file any material to my chambers by 15 June 2023 and did not seek an extension. On 16 June 2023, the Respondent wrote to my chambers, making an application to dismiss Ms Liu’s application based on two grounds:
·in accordance with s.399A of the Act, the Applicant has unreasonably failed to comply with a direction of the Commission relating to the application (s.399A(1)(b) of the Act); and
·in accordance with s.587 of the Act, the application has no reasonable prospects of success.
As a result of the Respondent’s application, I listed the matter for a non-compliance hearing by telephone on 22 June 2023. Prior to the listing, Ms Liu wrote to my chambers advising the following:
“Dear commissioner,
I am sorry that I missed the deadline to provide the evidence and information because Ii had flu and really sick. I hope I still can provide the evidence and information. I still have messages about the communication with the manager. Please advise whether it is still valid to provide these information.
The workers in Calvary would not be my witness and I can only have the residents in the age home who can evidence me a good staff and work hard there. And also I have the police name and number who expel me from the premises before I received any notice about suspending me working.
I would like to attend the video conference on 22 June, 2023. Please let me know is there anything I need to prepare for the conference. And please help to arrange an interpreter / translator for me on the day. I am very sorry for the late reply and very appreciated for your assistance in this matter!
Best regards,
Haiyan Liu”
Ms Liu participated in the non-compliance hearing by telephone on 22 June 2023. An interpreter was provided. Ms Liu gave evidence that she had been unwell and had been unable to take her child to school. During the hearing, Ms Liu was hysterically crying at times, repeating that she had acted the way she did during her employment because of her dissatisfaction with the cleanliness of the aged care residence.
I vacated the hearing date of 26 July 2023 and informed the parties that my decision in respect of the Respondent’s applications was reserved.
Relevant legislation
Section 399A of the Act is a specific provision in relation to unfair dismissal applications which provides for the dismissal of applications in circumstances where the applicant has not acted to prosecute their case. Section 399A states:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 1 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Section 587 of the Act provides as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The Respondent’s application is made pursuant to s.587(1)(c) of the Act.
Ms Liu’s conduct during her employment and the reasons for the termination of her employment
Ms Liu commenced employment with the Respondent in NSW on or around May 2017. In early 2023, she relocated to Queensland at her initiative. She performed work as an aged care worker.
The Respondent reported that on 13 January 2023, she had been seen taking bread from the kitchen without authorisation. On 25 January 2023, Ms Liu was reported to be videoing staff members and residents on her phone without authorisation.
The Respondent reported that on 30 January 2023, Ms Liu had cleaned the floors and failed to place wet floor signage in the dining room, resulting in an agency staff member slipping and falling when walking across the wet floor. A co-worker raised this with Ms Liu, to which she is reported to have said, “I have no time to do that”.
When challenged, the Respondent reported that Ms Liu did take the feedback well, raising her voice in retaliation. Ms Liu sent a number of offensive text messages to colleagues on 30 January 2023 and thereafter. They are reproduced later.
The Respondent reported that on 31 January 2023, upon her arrival at work, Ms Liu raised her voice towards the Clinical Care Coordinator (CCC) and Home Manager. She started to record the two women on her mobile phone, and when directed by the women with respect to her workplace behaviour, continuously said, “No! No! No!”.
Ms Liu continued to record the two women, together with residents in the aged care home. At 8:46am, the police were called, arriving at approximately 9:00am. She was asked by the police officers multiple times to leave the building. Ms Liu was attempting to return to her normal duties. She was eventually escorted from the building. Ms Liu again attempted to return to work, and again was escorted from the building by the police officers.
Later that day, Ms Liu was issued with a notification of workplace investigation letter and suspended on full pay pending the workplace investigation.
On 3 February 2023, Ms Tana Wolfenden, Human Resources Business Partner emailed Ms Liu, providing her contact details if Ms Liu required any further details relating to the suspension or investigation process in the interim. Details of the Respondent’s Employee Assistance Program were provided.
On 10 February 2023, Ms Liu was issued an invitation to respond, including with respect to the following 11 allegations:
“i. On 27 January 2023, during your rostered shift of 0800 to 1430hrs, it is alleged that you failed to adhere to the safety protocols of displaying hazardous signage in the workplace. Specifically, it is alleged that you were witnessed mopping the floor in the dining room without the use of the ‘wet floor’ sign. When requested by your work colleague to use the ‘wet floor’ sign, you refused stating “I have no time to do that” or words to that effect.
ii. On 30 January 2023, during your rostered shift of 0800 to 1430hrs, it is alleged that you used inappropriate and unprofessional communication towards a work colleague. Specifically it is alleged that when your work colleague attempted to discuss tasks in the cleaners log book with you, you screamed at your work colleague “I’ve been a cleaner for years, I know what I am doing” further stating that you were “busy” and “don’t have time to check the cleaner’s logbook” or words to that effect.
iii. On 30 January 2023, during your rostered shift of 0800 to 1430hrs, it is alleged that you used inappropriate and unprofessional communication towards Ms. Beverly Reyes, Home Manager. Specifically, when the Home Manager was attempting to discuss concerns with you in relation to the requirements of your role, you stated “You are not a good manager; you are a bad manager”. Moreover, it is alleged that you further stated “I know what I am doing” when instructed to use the ‘wet floor’ sign when mopping.
Iv. On 30 January 2023, during your rostered shift of 0800 to 1430hrs, it is alleged that you engaged in unprofessional conduct in the workplace. Specifically, it is alleged that during a conversation with Ms. Beverly Reyes, Home Manager you were witnessed abruptly walking away from the Home Manager during the discussion in an abrupt manner, resulting in you colliding with a Resident as they exited the lift, causing emotional distress to the resident, whom then required emotional support. Despite this behaviour, you didn’t check to see whether the resident was injured nor offer the resident an apology.
v. On 30 January 2023, during your rostered shift of 0800 to 1430hrs, it is alleged you engaged in unprofessional conduct in the workplace. Specifically it is alleged that you were witnessed by Ms. Beverly Reyes, Home Manager disrupting the workplace by slamming the cleaner’s room and staff room doors.
vi. On 30 January 2023, it is alleged that you engaged in misconduct of a racial and intimidating nature against Ms. Beverly Reyes, Home Manager. Specifically, it is alleged that you sent multiple text messages to your Home Manager including “You don’t know how to manage”….”I’ll let the Australian law department know”….”Australia will send such people back to their home countries”….”No nursing home will ever hire you as a manager because you don’t know how to manage”.
vii. On 31 January 2023 at 0339hrs, it is alleged that you engaged in misconduct of a derogatory and intimidating nature. Specifically, it is alleged that you sent text messages to Ms. Beverly Reyes, Home Manager including “You must make your team apologise to me”…. “You stupid manager”.
viii. On 31 January 2023, at 0805hrs, it is alleged that you engaged in unprofessional conduct and unauthorised recording of individuals in the workplace. Specifically, it is alleged that during an informal discussion with Ms. Beverly Reyes, Home Manager and Ms. Gloria Karikari-Yeboah, Clinical Care Coordinator, you pointed your finger towards both the Home Manager and the Clinical Care Coordinator stating “You are not my manager; I am not going to talk to you anymore; you are a bad manager” or words to that effect. You then proceeded to take out your mobile phone and record the Home Manager and Clinical Care Coordinator without consent. When directed to cease using your mobile phone on site you then repeatedly stated “No! No! No!”
ix. On 1 February 2023, you engaged in inappropriate and unprofessional communication. Specifically, it is alleged that you sent multiple text messages to Ms. Beverly Reyes, Home Manager of a derogatory and intimidating nature including “You’re not a good manager. You are not welcome at Calvary”.
x. On 2 February 2023, it is alleged that you engaged in misconduct of a racial and intimidating nature against Ms. Beverly Reyes, Home Manager. Specifically, it is alleged that you sent multiple text messages to your Home Manager, including “You must feel the full force of the law. You must be sent back to your home countries. Never do such dirty things in the beautiful county”…..”You must leave Australia and you must return to your country where you will never be welcome”…..”Your hearts are very bad and wicked. You must leave this beautiful country”.
xi. On 8 February 2023, you engaged in misconduct of a racial and intimidating nature against Ms. Beverly Reyes, Home Manager and Ms. Gloria Karikari-Yeboah, Clinical Care Coordinator. Specifically, it is alleged that you sent multiple emails to Ms. Tana Wolfenden, HR Business Partner including “Please tell Beverly and Glovia (Gloria) they will be expelled and the Australian people will send them back to their country”….”They’re not welcome here, evil people like them”….”They must be kicked out of Australia. Let’s have a toast!”….”Let’s celebrate seeing two bad people kicked out of this beautiful country of Australia”….”The two sinners. The hated man of Australia. Go back to their country”.”
Within the invitation to respond, Ms Liu was also issued a direction to remove all photos, videos and cease communication to Ms Reyes. This included providing Ms Reyes’ phone number to external third parties without authorisation as she had provided Ms Reyes’ details to the Multicultural Communities Council.
On 13 February 2023, Ms Liu advised she had contacted the Multicultural Communities Council whereby she was seeking legal support. An extension of time was granted to Mis Liu to 17 February 2023 to allow her further time to consider and provide her response to the allegations.
On 15 February 2023, Ms Liu sent photos to Ms Wolfenden of resident’s bedrooms and belongings, including family photos. Ms Liu proceeded to send over 100 emails, with repetitive language including:
·There were hundreds of ants on the carpet;
·There were cockroaches everywhere, including on the Residents;
·Beverly and Gloria are both gang members and wicked women;
·The rest of the cleaners were lazy;
·Emails with “???” as the body of the email;
·Referring to Calvary Robina as a “garbage station”; and
·Beverly and Gloria are sinners and should “go back to their country”.
On 16 February 2023, Ms Liu was issued a letter titled extension of deadline and assistance which outlined that she was required to provide one written document to respond to the allegations. The allegations were again provided and a clear document to assist Ms Liu was provided to her. This document was written in plain language and further provided a space for Ms Liu to respond to each allegation.
On 17 February 2023, Ms Liu contacted Ms Wolfenden again asking for a further extension to respond to the allegation as she had an appointment with her legal counsel for 22 February 2023. This request was again granted, and the response deadline was extended until 24 February 2023.
On 1 March 2023, Ms Wolfenden again requested for Ms Liu to respond to the allegations put forward in either an email or letter format. Ms Liu was provided a further opportunity to respond to the allegations by 1 March 2023.
On 2 March 2023, Ms Liu provided in excess of 10 emails in response to the invitation to respond. On 5 March 2023, Ms Liu emailed photos taken without authorisation of the Respondent’s staff members.
On 9 March 2023, Ms Wolfenden contacted Ms Liu via phone call to discuss the next steps of the investigation process. Following the discussion, a show cause letter was issued to Ms Liu, informing her that all 11 allegations were substantiated. Ms Liu was advised that the Respondent was considering terminating her employment and she was provided until 10 March 2023 to respond in writing or request to meet in person to discuss her feedback. Ms Liu was afforded the opportunity to bring a support person or union representative to the verbal meeting if she elected to do so.
On 10 March 2023, Ms Liu responded to the invitation to show cause. An outline of her response is included below:
·She has been employed with the Respondent for a period of 6 years;
·She apologised for her behaviour;
·She believed that she went above and beyond in her role whilst undertaking cleaning duties, including cleaning additional rooms than required;
·Thousands of ants were crawling on the carpet, along with cockroaches;
·She was faced with unfair questions from other employees in relation to her cleaning;
·She didn’t believe Beverly was a fair Manager and felt that the Manager treated the old people like animals;
·She ran into the old ladies work car out of the elevator and did not touch her body;
·She showed the Police Officers the pictures of dust from the Residents bedrooms; and
·She would like the decision to terminate her employment reconsidered.
On 16 March 2023, Ms Wolfenden emailed Ms Liu to notify her that a decision had been made in relation to her employment, inviting her to a meeting on 20 March 2023 to discuss the outcome. Ms Liu was provided the opportunity again to bring a support person.
On 20 March 2023, Ms Liu attended a meeting with the support of an interpreter and a representative of the Health Services Union. She was notified of the termination of her employment. A termination letter was issued to her, permitting use of the Respondent’s Employee Assistance Program for a period of three months.
Consideration
In a decision of this Commission, Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines,[1] Deputy President Gostencnik observed:
“[8] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Let me first deal with the meaning and application of the phrase, “has no reasonable prospect of success”. Without traversing in any great detail the authorities that have considered the proper application and meaning of the phrase, “no reasonable prospect of success,” it is sufficient for me for present purposes to make the following observations. A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. But these examples do not provide an exhaustive description of when a particular application has no reasonable prospect of success.
[9] Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia[2] had to say when their Honours considered the meaning of the phrase, “no reasonable prospect,” in the context of s.31A of the Federal Court of Australia Act 1976. In that case their Honours said the following:
‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.’[3]
[10] In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “has no reasonable prospect of success” as it appears in s.587 of the Act.
[11] Thirdly, I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word “has”. So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success.”
On the evidence before the Commission, Ms Liu’s merit argument in respect of her claim for unfair dismissal is, in my view, utterly hopeless. Ms Liu has explained that she is suffering from a mental illness. In my view, that is evident by Ms Liu’s conduct, particularly from 30 January 2023 when she sent incredibly offensive and racially discriminative text messages to her managers.
One of the text messages Ms Liu sent to her manager included:
“I’ve been bullied and framed by you. I come from a military family. My son is a policeman. My cousin is a judge. My first cousin is a jailer. I come from a righteous family. I will not be frightened by evil.”
In the non-compliance hearing before me where I explained to Ms Liu the s.587 application and read to her some of the text messages she had sent her colleagues whilst employed, Ms Liu became hysterical. She wanted to only speak about how unfairly she felt she was treated by managers because she was diligently trying to improve the cleanliness of the aged care residence. The text messages are factual and their authenticity is not contested.
Ms Liu has no appreciation of the gravity of the offensive text messages sent by her during her employment and the Respondent’s reasons for the termination of her employment. There does not appear to me to be any weak link in the procedural fairness the Respondent afforded to Ms Liu that would give any rise to a finding of unfair dismissal. The Respondent:
·did not rush to dismiss Ms Liu;
·it put the allegations to her in writing while she was suspended on pay;
·it afforded her a generous time to respond, together with considerable extensions of time;
·it considered her responses;
it provided to Ms Liu a show cause letter;
it invited Ms Liu to respond in writing, if she wished, which she did;
it considered her show cause response;
it invited her to a meeting where her employment was terminated and where she was represented by a union official; and
it continued to offer to her a generous period of time to access the Respondent’s Employee Assistance Program.
I am satisfied that Ms Liu’s application is manifestly untenable and so lacking in merit or substance as to be not reasonably arguable, and accordingly, has no reasonable prospects of success. I have exercised extreme caution in coming to this decision, however I am satisfied that the application is so hopeless that it would be a travesty to put Ms Liu through the rigour of a contested hearing, and entirely unfair to the Respondent to have to put its witnesses through Ms Liu’s cross-examination of their evidence.
Having satisfied myself that Ms Liu’s application has no reasonable prospects of success, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. Having so found, it is unnecessary for me to make a decision in respect of the s.399A application.
An order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
H. Liu on her own behalf.
M. Douglas and M. Angelis for the Respondent.
Hearing details:
Brisbane.
Telephone.
2023.
22 June.
[1] [2014] FWC 3408
[2] (2010) 241 CLR 181
[3] Ibid at [59] - [60]
Printed by authority of the Commonwealth Government Printer
<PR764226>
0
2
0