Jason “Jun Jie” Ong v Bao Engineering and Construction Pty Ltd

[2021] FWC 5924

[2021] FWC 5924

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason “Jun Jie” Ong
v
Bao Engineering and Construction Pty Ltd
(U2021/6620)

COMMISSIONER O’NEILL MELBOURNE, 15 SEPTEMBER 2021

Application for an unfair dismissal remedy

[1] These are edited reasons of the decision delivered ex tempore and recorded in transcript on 15 September 2021.

[2] Mr Ong was employed by Bao Engineering and Construction Pty Ltd. He was employed from 30 November 2015 until his employment was terminated.

[3] On 27 July 2021, Mr Ong lodged an application for an unfair dismissal remedy with the Commission. The Respondent has raised two jurisdictional objections to Mr Ong’s application: that the application was not lodged within the 21-day statutory time limit, and that the dismissal was consistent with the Small Business Fair Dismissal Code.

[4] Mr Ong says he was notified of his dismissal on 6 July 2021, and it took effect the same day. The Respondent says that the dismissal took place on 5 July 2021.

[5] If the dismissal occurred on 6 July, then the application was lodged within the 21-day time limit. If it was 5 July, then the application was lodged 1 day after the expiry of the 21-day period allowed for unfair dismissal remedy applications to be made. 1

[6] The Respondent’s objection that the application was lodged late was dealt with at a hearing on 15 September 2021, and these are the reasons for deciding that the application was made within the time limit.

Date of dismissal

[7] There is a conflict between the evidence of Mr Hu and Mr Ong as to whether the dismissal took place on the 5^th or the 6^th of July.

[8] Mr Ong’s evidence was that the dismissal took place on 6 July. He says that on 5 July 2021, his employer, Mr Hu, called him and confronted him with rumours that he was telling co-workers that the company was about to go bankrupt. Mr Ong did not say anything in response as he could see that Mr Hu was agitated. The next day, Mr Hu called Mr Ong into the boardroom early in the morning and started reprimanding him for not managing his shift well and for not providing enough guidance to co-workers on his shift. He repeated that Mr Ong had been spreading rumours about the company being on the verge of bankruptcy. Mr Hu told Mr Ong that he “can go home and not come again”. Mr Ong did not say anything at this meeting. On 8 July 2021, Mr Ong again went to the office as he wanted to continue working for the company. He told Mr Hu that he would even continue working for free and that Mr Hu could dictate the terms of his employment. Mr Hu told him to go home and to stop coming in.

[9] Mr Hu’s evidence is that around 3:30pm on 5 July, after telling Mr Ong that he regularly breached company rules and was not doing his job properly, that his employment was terminated immediately and that “your position is finished”. Mr Hu asked him to hand over factory and car keys, which he did. During this meeting, there was a lengthy discussion about the complaints the company had with Mr Ong’s performance, but also around the implications for Mr Ong and his family arising from the dismissal. As a sponsoring employer, Mr Hu felt great empathy if Mr Ong and his family had to leave Australia. He encouraged him to find another job, which should not be difficult, and offered to assist him, for example, by transferring the sponsorship to another employer.

[10] Mr Hu says that the meeting on 5July took around 1.5-2 hours, whereas Mr Ong says that it was no more than 30 minutes.

[11] I prefer the evidence of Mr Ong as to what occurred on 5, 6 and 8 July.

•  Mr Ong’s evidence was more consistent and more detailed as to what occurred compared to Mr Hu.

•  Mr Hu conceded in his evidence that his statutory declaration was not entirely accurate. The statutory declaration attested that on 5 July 2021 he asked Mr Ong to hand over all factory and car keys of the company, and that Mr Ong did so immediately. This would have been strongly indicative that the dismissal occurred on the 5July. However, in the hearing Mr Hu agreed that Mr Ong was correct in that he was asked to return the keys on 6 July 2021. This is not to suggest that Mr Hu was untruthful in his evidence. However, he acknowledged he was upset on 5 July 2021 and this may have affected his memory.

•  There was no other evidence corroborating either Mr Ong’s or Mr Hu’s version.

[12] I find that Mr Hu told Mr Ong that he was dismissed on 6 July 2021, when he was called into the boardroom and in that discussion, Mr Hu told Mr Ong that he “can go home and not come again”. I find that in doing so, Mr Hu terminated Mr Ong’s employment.

[13] Having found that the dismissal took place on 6 July 2021, Mr Ong’s application was made within the 21-day time limit. The Respondent’s jurisdictional objection that the application was made out of time is dismissed.

COMMISSIONER

Appearances:

J Ong, Applicant.
J Hu for the Respondent.

Hearing details:

2021
Melbourne (by video)
September 15.

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 1   Fair Work Act 2009 (Cth), s 394(2).