Lin (David) Su v Zunrich Investment Pty Ltd T/A Portico Chicken

[2016] FWC 2111

[2016] FWC 2111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lin (David) Su
v
Zunrich Investment Pty Ltd T/A Portico Chicken
(U2015/15214)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 5 APRIL 2016

Application for relief from unfair dismissal – applicant resigned – applicant not dismissed – application dismissed.

[1] On 20 November 2015, Mr Lin (David) Su applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Zunrich Investment Pty Ltd T/A Portico Chicken (Portico Chicken).

[2] The matter was heard on 4 April 2016. Mr Su represented himself. Ms Kathy Zhu appeared for Portico Chicken. Ms Zhu is part-owner of Portico Chicken. The other owners are Mr Eric Ding and Mr Victor Deng. Mr Su, Ms Zhu and Mr Ding all gave evidence at the hearing. Mr Su and Mr Ding were cross-examined.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[4] Before finding whether Mr Su has been unfairly dismissed, I must first determine whether he was dismissed at all.

[5] I am satisfied of the following:

● Portico Chicken is a private company co-owned by Ms Kathy Zhu, Mr Eric Ding and Victor Deng. Each of the partners is involved in running the business and all work in the shop at various times. The company has fewer than 15 employees.

● Mr Su had been working for Portico Chicken as a grill hand for over two years when the events of Saturday 7 November 2015 occurred.

● On that day, at around 3:30 pm, Mr Su had a very heated argument with Ms Zhu after a customer cancelled an order because the shop had run out of bread. Ms Zhu was clearly angry about what occurred and blamed Mr Su. I make no findings about whether Mr Su was at fault.

● The argument became increasingly heated, and both Mr Su and Ms Zhu raised their voices. At one point Ms Zhu swore at Mr Su, told him to ‘get out’ and asked Mr Ding to make up his pay. Mr Su was understandably very upset by the way he had been spoken to.

● However, other persons present in the shop intervened to calm Ms Zhu down. Mr Ding spoke to Mr Su and also asked him to calm down, not be upset and to continue working. Mr Su remained at the shop, working, to the end of his shift at 9:00 pm. His next scheduled shift was on the following Tuesday.

● On the Monday, Mr Su sent a text message to both Mr Ding and Mr Deng indicating that he would be willing to return to work, but only on certain conditions. These included receiving an apology from Ms Zhu and what in effect would amount to one week’s paid leave while he got over the incident of 7 November 2015.

● To cut a long story short, the respondent did not agree to these conditions and Mr Su did not return to work, either on Tuesday 10 November 2015 or subsequently.

[6] Taking into account all the circumstances, I am satisfied that Mr Su resigned his employment with the respondent after they refused to agree to his conditions. While Ms Zhu’s words on the afternoon of 7 November 2015 – if taken in isolation – could be seen as constituting a dismissal, it is clear that they were said in the heat of the moment, when she was emotional, and Portico Chicken in effect soon retracted them. It was Mr Su’s decision to terminate the employment relationship. He was not dismissed.

[7] Mr Su’s application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

L Su in person.

K Zhu for Zunrich Investment Pty Ltd T/A Portico Chicken.

Hearing details:

Sydney.

2016.

April 4.

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