Li Jiang v Australian San Xing Trading Pty Ltd
[2012] FWA 4965
•5 JULY 2012
[2012] FWA 4965 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Li Jiang
v
Australian San Xing Trading Pty Ltd
(U2012/4849)
COMMISSIONER ROBERTS | SYDNEY, 5 JULY 2012 |
Termination of employment - jurisdiction (was termination at initiative of employer) - arbitration.
[1] This decision concerns an application by Mr Jiang lodged on 9 February 2102, pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by the Australian San Xing Trading Pty Ltd (the Company). The application was dealt with by a Fair Work Australia conciliator on 1 March 2012 but the conciliation was unsuccessful.
[2] A jurisdictional objection was raised by the Company arguing that the termination of the Applicant’s employment was not at the initiative of the employer in that Mr Jiang abandoned his employment. The jurisdictional objection and arbitration came before me for hearing in Sydney on 8 June 2012. The Applicant represented himself and the Company was represented by Mr James Gu, the Executive Assistant to the Director, Mr Jingqing Gu, referred to in this decision as Mr Gu (Junior) and Mr Gu (Senior), respectively. The parties were assisted by a Mandarin interpreter, Ms Bing.
[3] The Applicant and his wife gave sworn evidence and both Mr Gu (Junior) and Mr Gu (Senior) gave sworn evidence for the Company.
[4] During the proceedings I explained to the parties that both the jurisdictional objection and the substantive arbitration would be heard together. My decision would then deal with the jurisdictional objection as a threshold matter and only proceed to determine the substantive application should the jurisdictional objection be dismissed.
Background
[5] Mr Jiang claims that he was employed by the Company from on or about 1 December 2010 until 8 February 2012. The Company claims that the date of commencement of employment was 7 February 2011. For the purposes of this decision, the date of commencement does not need to be determined by me. The nature of the ending of the employment relationship is disputed between the parties. The Company maintains that Mr Jiang abandoned his employment and Mr Jiang maintains that his employment was terminated at the initiative of the Company.
[6] In brief, the Company is involved in the manufacture, assembling and installation of kitchen cupboards.
[7] The Company employs fewer than 15 employees and is therefore subject to the Small Business Fair Dismissal Code.
Evidence
Mr Jiang
[8] Mr Jiang gave sworn evidence with the assistance of the interpreter and submitted a witness statement. 1
[9] In his witness statement, Mr Jiang made a number of claims relating to non-payment of superannuation, overtime, sick leave and annual leave. Those claims are not relevant to my consideration in this matter. In relation to the alleged termination of his employment, Mr Jiang set out the following alleged conversations between himself and Mr Gu (Senior) on 8 February 2012:
“Mr Gu said: ‘Are you still want to go tafe?’
I said: ‘yes, I want to study.
Mr Gu said: ‘u can not go tafe,’
I said: ‘why? Im just going on the night time and only 3 days and even it is after normal work time.’
Mr Gu said: ‘I need as a person work on overtime and must be standby all the time.
I said: ‘I can do overtime any day but not those three days. And I ask you before, you agreed with me and now you just change your mind, it is not fair to me.’
I said: ‘you have to pay me two weeks finding jobs pay and also this weeks I work three day pays and reference for my works.’
Mr Gu said: ‘we never give any two weeks finding job payment, and any reference sorry. Your three days pays will pay you later.’
I said: ‘when?’
Mr Gu said: ‘just go home, and wait.’”
[10] In cross-examination, Mr Jiang was asked if he received any written notice of termination or any payment in lieu of notice. 2 He replied: “When I was told to leave that company, I actually asked them for a reference letter but they said their company has never provided any document like this. I was asked to leave immediately.”3
Mrs Jiang
[11] Mrs Jiang gave brief sworn evidence with the assistance of the interpreter. That evidence was to the effect that when her husband returned home on 8 February 2012, he was angry and told her that he had been dismissed because he wanted to study at TAFE.
[12] Mrs Jiang was not cross-examined.
Mr Gu (Junior)
[13] Mr Gu (Junior) gave sworn evidence and submitted a witness statement. 4 In his witness statement, Mr Gu said that he is partly responsible for many of the administration matters within the Company, including the hiring of personnel. He went on to say: “I did not issue any written notice or offer any payment to Li Jiang to terminate his employment on or prior to the application date. Jingqing Gu did not inform of me of any intention to terminate Li Jiang’s employment on or prior to the application date.”
[14] In his supporting oral evidence, Mr Gu said that apart from the Applicant’s recollection of a conversation with Mr Gu (Senior), the Applicant has failed to produce any evidence of his termination of employment. 5
[15] In cross-examination, Mr Gu said that “we’re finding it difficult to comprehend what Mr Jiang’s motive is, having simply departed and without notice from us, and just to consider himself terminated from us.” 6
Mr Gu (Senior)
[16] Mr Gu (Senior) gave sworn evidence with the assistance of the interpreter and submitted a witness statement. 7 In his statement, Mr Gu said that Mr Jiang worked for him both in the San Xing business and also privately for work performed on Mr Gu’s home renovations. In addition to working for the Company, Mr Jiang ran his own importing business and stored materials at the Company’s warehouse.
[17] During Mr Jiang’s employment with the Company, he was asked on several occasions to attend Occupational Health & Safety induction training at the Company’s expense to obtain a ‘White Card’, but did not do so.
[18] “On 8 February 2012, Li Jiang asked during lunchtime to borrow the company Ute and leave early for the day, to which I agreed. He then used the Ute to remove his stored materials then returned the Ute and left immediately after. On 9 February 2012, I noticed Li Jiang did not show up for work, so I tried to contact him. I made several calls throughout the day and later in the evening, but none of the calls were answered. I continued to try and contact Li Jiang, and I was genuinely concerned for his wellbeing for the next few days.”
[19] Mr Gu went on to say that he received a telephone call from Fair Work Australia on 17 February 2012 informing him that Mr Jiang had submitted an unfair dismissal application. Prior to that phone call, he did not have any knowledge of Mr Jiang’s TAFE commitments: “Nevertheless I would almost certainly to have encouraged him to pursue such training.” Mr Gu said that he had no recollection of any conversation with Mr Jiang on 8 February 2012 in relation to terminating his employment.
[20] In cross-examination, Mr Gu:
- Agreed that Mr Jiang told him that he wished to commence a TAFE course, but he considered that was nothing to do with the Company. 8
Said that, in relation to OH&S training, Mr Jiang would have had to register for the course, complete the course and then be reimbursed for his courses costs of approximately $100. 9
Said that Mr Jiang was asked at least three times to take the OH&S course, agreed orally to do so but did not take any subsequent action. 10
Submissions
[21] Both Mr Jiang and the Company filed written submissions. 11 Those submissions were supported by brief oral submissions at the hearing.
[22] In his written submissions, Mr Jiang said that in June 2011 he enrolled in a TAFE course for building and construction work on a part-time night course basis. On 8 February 2012 Mr Gu (senior) told him not to continue with his TAFE course as it interfered with overnight work for the Company. He was then dismissed.
[23] In its written submissions, the Company said that Mr Jiang was employed from December 2010 as a contractor performing work at Mr Gu (Senior)’s home and that this work was not related to the Company. On 7 February 2011, Mr Jiang was hired to work for the Company itself and was allowed to work flexible hours to allow Mr Jiang to operate his own import business as well. Mr Jiang continued occasionally to perform private work for Mr Gu (Senior).
[24] The Company’s submissions went on to say that on 8 February 2012 Mr Jiang used a company vehicle to remove materials and personal belongings from the Company’s warehouse and on and after 8 February 2012, Mr Jiang refused to respond to phone calls from the Company.
[25] The Company argues that it would be unlikely for it to have chosen to terminate Mr Jiang’s employment some two days after the minimum employment period of one year. The Company claims that the ending of the employment relationship was entirely at the initiative of Mr Jiang.
Conclusions and Findings
[26] The Act provides at s.386(1) that a person has been dismissed if the person’s employment has been terminated at the initiative of the employer.
[27] In the case before me, there is no documentary evidence to rely upon and I must therefore decide for myself, on the balance of probabilities, what occurred, if anything, between Mr Jiang and Mr Gu (Senior) on 8 February 2012. In so doing, I have determined that the evidence of Mr Gu (Senior) is to be broadly preferred to that of Mr Jiang.
[28] I cannot be sure that no conversation at all occurred between Mr Gu (Senior) and Mr Jiang on 8 February 2012 but I am satisfied that Mr Gu (Senior) did not take any action which could be construed as ending the employment relationship with Mr Jiang. I specifically accept Mr Gu (Senior)’s evidence that Mr Jiang used the company ute to remove his materials and personal belongings from the Company’s warehouse and that Mr Jiang did not respond to phone calls and messages from Mr Gu (Senior) on and after that date. The rationale for Mr Jiang’s actions is not apparent to me. But all in all, I am not satisfied that there was a termination of employment at the initiative of the Company. Accordingly, there is no jurisdictional basis for the Tribunal to further consider Mr Jiang’s substantive application for relief.
[29] The jurisdictional objection is upheld and therefore the substantive application for relief must be dismissed.
[30] The dismissal of Mr Jiang’s application for relief does not affect his rights in relation to seeking to recover alleged underpayments due to him. Mr Jiang is free to pursue that issue through the Fair Work Ombudsman.
[31] An order reflecting this decision is in PR525008.
COMMISSIONER
Appearances:
L Jiang, the Applicant.
James Gu, Australian San Xing Trading Pty Ltd.
Hearing details:
2012.
Sydney:
8 June.
1 Exhibit Jiang 2.
2 Transcript PN59.
3 Transcript PN60.
4 Exhibit San Xing 1.
5 Transcript PN99.
6 Transcript PN113.
7 Exhibit San Xing 2.
8 Transcript PN165.
9 Transcript PN187.
10 Transcript PN189.
11 Exhibits Jiang 1 and San Xing 3 respectively.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR525007>
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