Huang v The Trustee for Swiss Farms Trust Mount Sommerset Pty Ltd and Red Valley Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v THE TRUSTEE FOR SWISS FARMS TRUST MOUNT SOMMERSET PTY LTD & RED VALLEY PTY LTD

[2017] FCCA 532

Catchwords:

INDUSTRIAL LAW – Termination of employment – unfair dismissal – breach of contract – no breach found – no dismissal established – application dismissed – Applicant pay respondent’s costs.

Legislation:

Fair Work Act 2009 (Cth), s.386

Applicant:

CHENG WEI HUANG

Respondent:

THE TRUSTEE FOR SWISS FARMS TRUST MOUNT SOMMERSET PTY LTD & RED VALLEY PTY LTD

File Number:

BRG 431 of 2016

Judgment of:

Judge Vasta

Hearing date:

7 February 2017

Date of Last Submission:

7 February 2017

Delivered at:

Brisbane

Delivered on:

7 February 2017

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the Respondent:

NB Lawyers

ORDERS

The Application filed 12 May 2016, as amended on 27 May 2016 be dismissed.
The Applicant pay the Respondent’s costs of and incidental to the proceedings in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 431 of 2016

CHENG WEI HUANG

Applicant

And

THE TRUSTEE FOR SWISS FARMS TRUST MOUNT SOMMERSET PTY LTD & RED VALLEY PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 12 May 2016 the Applicant brought an application in this court. The exact nature of that claim was somewhat difficult to ascertain. The matter first went before Jarrett J who then, after struggling to find out the nature of the claim, sent it to my docket as he believed it could well be a small claims matter.
Upon the matter coming to me I saw that it was more properly a general protections application. I ordered that the Applicant file a statement of claim which he did on 1 July 2016. In that statement of claim, he contended that he began working for the Respondent, whom I will call Swiss Farms, on 5 January 2016 and signed employment agreements.
He claimed that his set rate of pay was $20 per hour. He claims then that, between 7 January 2016 and 16 February 2016, the Respondent was in breach of the terms of the contract because they paid him on a piecework basis.
The Applicant said that on 20 January he sent an email to the Respondent asking to look into his pay and, on 25 January, he sent an email to Ms Murray (who is the HR person involved with Swiss Farms) and asked her to confirm the basis upon which his hourly rate was being calculated.
On 2 February, he attended the reception office of Swiss Farms and spoke to Debbie Murray about the query that he had. The Applicant recorded that conversation, and I do have that as well as a transcript of that recording. Unbeknownst to the Respondent, some four days earlier, on 29 January 2016, the Applicant had lodged an online inquiry with the Fair Work Ombudsman about his entitlements and what was happening at Swiss Farms.
On 15 February, the Fair Work Ombudsman contacted the Applicant in relation to his online inquiry and he provided further information to the Fair Work Ombudsman including permission to contact the Respondent. The next day the Applicant claims that he was spoken to by Mr Andre Franz who was the head of the area in which the Applicant was working and Mr Franz invited him to come to a meeting.
The Applicant contends that Mr Franz told him that he knew that a complaint had been made by the Applicant to the Fair Work Ombudsman. The Applicant claims, later that day, at that meeting, the Applicant was dismissed from his employment.
The Applicant claims that the reason for that was because he had made inquiries as to his pay which is a workplace right.
Alternatively, or in addition to, the Applicant claims that he was dismissed because he had made a complaint to the Fair Work Ombudsman which was also a workplace right.
If he was actually dismissed, and that dismissal was because, or substantially because, of these two prohibited reasons, then there is a breach of the Fair Work Act 2009 (Cth) (“the FW Act”) and certain consequences flow.
The Applicant seeks lost wages equal to $760.00 per week from that date, 23 February until whatever date I deem appropriate, $5,000.00 for non-economic loss for hurt and humiliation, and it would seem, also, some unpaid wages, as well as, I infer, declarations that the company has breached the Fair Work Act.
Section 386 of the FW Act gives a meaning of the word “dismissed”:
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
…”
The question is whether or not the Applicant had actually been dismissed. That is the first question that I have to look at. Therefore the facts upon which the Applicant based his statement of claim do have to be looked at.
After hearing evidence from the Applicant, from Ms Inderbitzin, from Ms Murray, from Mr Franz and Mr Schuler, I am of the view that what occurred was as follows.
The Applicant started employment on 5 January 2016 after he was put in the kerosene team. The kerosene team is a team that has a flat rate of pay because, in effect, they are going around ensuring that pests and other threats to the plants are eradicated.
The Applicant, I find, spoke to Mr Franz after a day and said that he did not want to stay with the kerosene team; that he wanted “man’s work”; and that he wanted to join the banana humping team. Mr Franz agreed that the Applicant could do so and that he then did two weeks training in that team.
At the start, the Applicant had said that he wanted to do half banana humping and half kerosene but Mr Franz said it is either one or the other and the Applicant chose to do the banana humping.
Mr Franz said that he told the Applicant that there was a different pay scheme and for him to talk to the team leader. Whether this was done or not is unclear. What is clear is that there was a different method of payment for persons in the banana humping team as opposed to the kerosene team.
Whilst the kerosene team was paid a flat rate of $20.00 per hour (and that was what the term of employment the Applicant had signed), once he moved to the banana humping team the pay was done according to a piecework arrangement or agreement.
That piecework agreement is a complicated calculation by which one looks at the team of people and how many bananas can be packed by the team at a particular time. If the team works well together a lot of bananas are packed and that means that the rate of pay ends up being greater, but if there are less bananas or the team is not working as well, then there will be a lesser number of bananas packed in a certain time and that would mean that there would be a lesser amount paid.
The Applicant, I find, found that his payslip showed that, because of the piecework arrangement that had been going on in January, his rate of pay was down to $19.40 instead of the $20.
He then queried this with the employer. He spoke to Ms Murray, as I have said, on 2 February 2016. As I also alluded to, he did tape that conversation.
In that transcript, one can see the following exchange where the Applicant says:
“Could you help me calculate how much is my wage?”
Ms Murray says:
“Yeah, you’re in the humping team so the humpers, you’re all on piecework.”
The Applicant said:
“Piecework?”
Ms Murrays said:
“Yes. So that means you’re not paid per hour. It’s not the hours you do. It’s how much work that you do. Okay. So however many you pick in the bananas take them to the shed and however many cartons or boxes that they can pack is how much you get paid. So it’s not per hour.”
The Applicant said:
“Why is it not anyone tell me before? Before I – why is no-one tell me about this?”
Ms Murray said:
“Did you sign the piecework agreement?”
The Applicant said:
“No.”
She said:
“Well, that’s what it says in the piecework agreement.”
She then went through the piecework agreement showing that, whilst it can fluctuate, a number of people will get more than they would make on a flat rate. In fact, she showed him that whilst the wage was $19.40 in the last pay cycle, it was going to be $22.30 this pay cycle.
She did go through the way in which it was calculated and it does show that she was obviously referring to a blank piecework agreement when discussing this matter but there was obviously nothing that was made up for the Applicant to sign at that time.
The question of why it is that he had not been told about the piecework agreement was because Ms Murray was on holidays at the time that the Applicant switched over to the banana humping group rather than the kerosene group. Ms Murray had ensured that everything was fine for him to start in the kerosene group but did not know that he had changed to the banana humping group and by the time she got back and he had been there for a number of weeks did not realise that he had not signed an agreement.
She gave evidence before me that she knew that she had to fix up that agreement for him but her pressures of work meant that within the two weeks in which the rest of the events of this case are concerned, she had not gotten to a position where she could have given him the agreement to sign.
Now, notwithstanding that the Applicant was told that that was how the payments were arrived at, it was obvious that he was not happy, however, he still continued to work in the banana humping section. I accept Mr Franz’ evidence that, on 16 February, he noticed the Applicant at the lunchbreak. He noticed how the Applicant was looking and that the team leaders had told Mr Franz that the Applicant was unhappy. He spoke to the Applicant and asked how he was.
The Applicant replied, “Unhappy.” Mr Franz said, “Are you all right?”, and he replied, “No.” Mr Franz asked the Applicant why he was not happy and the Applicant replied:
“I do not understand how I am paid and I am looking for a new job. As soon as I get a new job I am leaving.”
Mr Franz told the Applicant that he would arrange for a meeting to explain everything. He asked the Applicant whether, if the company explained everything to him, he would be happy, and the Applicant replied, “Not really. Nothing will change.”
Mr Franz advised Mr Marcus Schuler, the general manager, and Ms Murray, the human resource officer, about the conversation he had had with the Applicant. They organised to have a meeting with the Applicant to discuss his unhappiness.
Mr Franz gave evidence that, during that meeting, Ms Murray asked the Applicant to explain why he was unhappy working for the company and that the Applicant advised he was unhappy because he did not understand his pay. Ms Murray explained, again, how his pay was calculated and despite the explanations that were being given to the Applicant he continually said, “I’m unhappy.”
Mr Schuler asked:
“Do you think we didn’t do our job correct and we are not correct to the people, any of the employees?”
The Applicant replied:
“Yes, and whatever you would do won’t change my mind.”
Ms Murray and Mr Schuler gave similar evidence to that. I noted that the Applicant now talks about that meeting asking whether he should have been given an interpreter and I do note that Mr Schuler and Mr Franz both have English as a second language, having heard them, albeit over the phone, and the Applicant who was appearing before me. I am of the view that their grasp of the English language, the three of them, was as good as each other. Ms Murray is a speaker of English as a first language.
The Applicant’s evidence as to that particular exchange was this; that on 16 February 2016 during his lunchbreak he was approached by Mr Franz. They discussed his employment and long term plan. The Applicant then asked Mr Franz whether the Respondent had been contacted by the Fair Work Ombudsman and Mr Franz informed the Applicant that he was aware that the company had been contacted by the Fair Work Ombudsman regarding the complaint. “At lunchtime on 16 February”, the Applicant says, “was the first time he let Mr Franz aware of his unhappiness towards all the workplace issues of the company” , though it seems the only one he was really concerned about was the pay scale
He said that he did go to this meeting. He said at the meeting he was asked by (one of) Ms Murray, Mr Franz or Mr Schuler why it is that he wanted to make a complaint to the Fair Work Ombudsman. He claims he told them that he was not ready to have this meeting with them and he said that he was unhappy in the workplace because all of the employees receive bad treatment from the company and the calculation of wages was unclear.
He said that he was asked by Mr Schuler whether he thought that he was being cheated by the company and he replied that he was. He was then informed by Mr Schuler that that day, 16 February, was to be his last day of employment and he said that he, “asked Mr Schuler whether he was firing me”. He claims that Ms Murray then replied that he was being dismissed and that he would receive a full week payment and that was the conclusion of the meeting.
Ms Murray and Mr Schuler and Mr Franz all said that they were given the impression by the Applicant that he had every intention of leaving the employ of Swiss Farms because of the continual repeating that he was unhappy and that anything that the company did would not change his mind.
Ms Murray and Mr Franz and Mr Schuler all say that what was said to the Applicant was that the low banana prices and reduced demand for fruit meant that employees’ hours were going to be required to be reduced. Therefore it would be best that the Applicant then finished work on that day and he would be paid one week in lieu of notice.
They all report that the Applicant repeatedly said, “So fired”, and no-one responded because the meeting was at an end.
The question then is, was this a dismissal as s.386 of the FW Act deems it to be. What is clear is that the Applicant did not like the pay conditions, that he was complaining about those conditions, and that he had given the impression to the other persons in that meeting that he had every intention of leaving the farm because he was so unhappy.
The Applicant says that this is not so. The question is whether the three persons, especially Mr Schuler, who made the final decision, as it were, that this would be best for the Applicant to finish that day, were genuine in thinking that that is what the Applicant had conveyed.
I am of the view that such impression given to the three other participants in the meeting was an impression that was justifiably made.
That is also backed up by other material. The Applicant says that this could not have been the impression that the trio were left with. He now says to me that he did not want to resign; that he still wanted to work there.
He made the unusual claim that he was somehow collecting evidence and that is why he wanted to stay there; that he liked the people. The Applicant pointed to the fact that he had recorded a number of these conversations and why would he want to quit if he was recording those conversations; that it was impossible for him to have ever said that he did not want to stay.
He said the fact that Mr Schuler remembers saying, “You think that we aren’t doing the right thing by the whole staff”, shows that what they were concerned about was his complaining about the plight of everyone else rather than just himself.
He also points to a conversation that he had with Mr Franz after this meeting when Mr Franz offered him a lift home. The recording shows that he said to Mr Franz, “I am really unhappy, really”, and Mr Franz says:
“Yeah, so why you want to stay here? I can’t do anything. Why should I help somebody that is unhappy and if I’m unhappy I don’t want to stay. I would say better I go. Maybe you go. “
The Applicant said, “Maybe if you give me more information I keep staying here”, and there is some indistinguishable conversation and then Mr Franz says:
“Yeah, but then you should say I want information. I want to know how, where’s the contact. I want to know how many pallets we need packing. I want to know how many hours I get paid in a day. I want to know about why I..”
and then it’s also indistinguishable.
The Applicant then says:
“To help others. Look, look, because I and the Johnson he go to the humping team. No-one tell him how it works, how it is calculated. No-one. They always ask me because I already notice this.”
Mr Franz says, “Okay. I will talk to them”, and the Applicant says, “Yeah, I think the money for humping team is really no good”, and Mr Franz says, “But how is it not good money? Last week was $22”, and then there’s a discussion about that pay and then about whether the Applicant has to return his shoes.
Again, whilst the Applicant points to the fact that Mr Franz says:
“Yeah. So why you want to stay here? If you’re unhappy it would be better that you go”
that would be a pointer to the fact that it was obvious that he didn’t want to go so this could not be regarded as a mutual decision but rather a dismissal.
However, I then look at the email that the Applicant sent to Mr Franz at 11.03 pm later that day, 16 February, where he writes:
“Hi Andre, how are you? I hope you understand everyone have their different purpose for life or type of work they need. It is true if you tell me about what kind of position, wage and working hours when I apply for the job in Swiss Farm I will not decide to come to this farm. Because I am not the person like other workers in this farm that you told me they need money I feel I am cheated. Please find the right person and tell him the right information. I don’t trust you at all and don’t know who to ask about everything after I come to this farm, and actually I asked other long term workers, do we have anything to check how many pallets packed in the shed.
The answers are no or I don’t know, so I think you should try to let workers know about the way how to check it. Just like you said you will let Codi and Johnson know how is the wage of humping come from. But, thank you very much for talking with me on the way to my home and letting me keep my boots. When I say it is unfair what I mean is about my boots not about be fired. Thank you very much.”
To my mind this is symptomatic of what it is that gave the Respondents the impression that they gained from the meeting. That is, the line that says:
“It is true if you tell me about what kind of position, wage and working hours when I apply for the job in Swiss Farm I will not decide to come to this farm.”
That combined with other information that had since been given by a Neville Williams (who was the manager of Collins Banana Farm) which was to this effect, that:
“I, Neville Williams, farm manager at Collins Banana Farm, Lakeland, would like to confirm that Cheng Wei David Huang came to our farm on a pushbike looking for a job. He told me that he was living at the local caravan park in Lakeland and that he was unhappy at his current workplace and was looking for a different job. This took place in January 2016.”

Now, each one of those pieces of information in, and of itself, does not confirm anything but when one has a look at all of the circumstances, it seems to me that the impression given to the three other people by the Applicant was an impression that was properly made.
If anything, it could well have been a misunderstanding because of the language barriers when only one person in the room is a native English speaker and three others are speaking in languages that are not their native tongues.
Whilst, if one looks at it from Mr Huang’s point of view, this decision for him to leave employment was employer initiated, I have to look at what was in the mind of the employer and in the mind of the employer was definitely something different than what would be seen from the point of view of the Applicant.
From the employer’s point of view, this Applicant wished to leave employment and they simply were going to part company. Now, having made that decision, that would normally be the end of the matter, however I can see that there may be different ways of looking at the matter.
Therefore I should then consider whether, if I had made a different decision (that is that the Applicant had been dismissed), was the dismissal for a prohibited reason. The Applicant contends that it was because he had queried his wages with the company.
The problem with that contention is that, whilst there was obviously a discussion about wages and that the wages were brought up, there is no doubt that what he was told was that this was the way that the wages are calculated.
It does not seem that the Respondents at all were looking at that as a negative. They were explaining to someone who wanted to know about the way the wages were calculated, exactly how they were calculated. It does not seem to me to be logical that they were acting out of spite, just simply because they had to explain what is their wages policy.
So I accept their explanation that there was no dismissal because of that reason.
The Applicant says, as an alternative, that he was dismissed because he had made the complaint to the Fair Work Ombudsman. But as I had said in the course of the hearing, the evidence is actually very clear.
The first time that the Respondent knew that the Fair Work Ombudsman was even interested in this matter, was when they received a letter on 23 February, some one week after this meeting. That letter was dated 22 February 2016.
As the only person who was informed by the Fair Work Ombudsman was Ms Inderbitzen and she didn’t receive the letter until the 23^rd and then made inquiries as to what was going on with the Applicant, I accept that the complaint to the Fair Work Ombudsman could never have been part of the decision-making process. Therefore I find that those parts of the Applicant’s testimony that talk about Mr Franz or others talking about the Fair Work Ombudsman just simply did not occur.
They could not have occurred, as the Applicant has said, because such knowledge was not within their purview. So therefore I find that even if the Applicant were dismissed, I am satisfied that the Respondent has demonstrated to me that the reason for the dismissal was not a prohibited one.
Therefore I dismiss the application.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 24 March 2017

[2017] FCCA 532

7 February 2017

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