Meiru Liu v RPC Food Pty Ltd

Case •

[2024] FWC 1104

•

29 APRIL 2024
[2024] FWC 1104

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Meiru Liu
v

RPC Food Pty Ltd

(U2023/11350)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 APRIL 2024

Application for unfair dismissal remedy – jurisdictional objection of ‘no dismissal’– objection upheld – application dismissed.

  1. Ms Meiru Liu (Applicant) has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) against RPC Food Pty Ltd (Respondent). At a determinative conference on 20 February 2024, Ms Liu gave evidence with the assistance of an interpreter and was granted permission to represented by a lawyer, Mr Chia Jeng Hon. The Respondent was self-represented by Mr Leo Huang, who also gave evidence.

Initial matters to be considered – s.396 of the Act

  1. Noting the application was made on 21 November 2023, there is no question that the application was made within the 21-day period after the alleged dismissal took effect, as required by s.394(2) of the Act (s.396(a)). There is also no dispute that the Applicant is a person protected from unfair dismissal because she had completed the minimum employment period and had an annual rate of earnings less than the high-income threshold (s.396(b)). I am also satisfied based on Mr Huang’s evidence,[1] that the Respondent was not a small business employer, such that consideration of whether there was a dismissal consistent with the Small Business Fair Dismissal Code (s.396(c)) is not required. Finally, it was not claimed by the Respondent and nor does the material suggest that this is a case involving a genuine redundancy (s.396(d)).

Section 385 – was the dismissal unfair?

  1. As to the circumstances set out at s.385 of the Act, I have outlined above that this is not a matter that involves a small business and consequent consideration of whether the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)). Nor is it one where the Commission is required to consider whether or not there was a dismissal which was a case of genuine redundancy (s.385(d)).

  1. Whereas s.385(a) of the Act requires the Commission to be satisfied the Applicant was dismissed, the Respondent has objected to the Applicant’s unfair dismissal application on the basis that the Applicant resigned, such that there was no dismissal. The corollary of this objection is the contention that there was no harsh, unjust or unreasonable dismissal (s.385(b)).

Background facts

Employment prior to parental leave

  1. The Applicant commenced working for the Respondent on a full-time basis on 15 June 2020. She was engaged under a series of fixed 1-year contracts. The most recent contract was dated 1 July 2022, providing for the fulltime role of Sales Manager for a one-year term.[2] On 1 July 2022, the Applicant received an email from Mr Huang attaching her updated contract, and stating:

“…

Good morning! Please check the attached file for the updated contract.
A reminder: due to the modifications in this contract. It’s equivalent to an advance on sales commissions, and there’s an unauthorized alteration of the company bylaws.
The changes in this contract are based on two factors: first, having completed two years of service, especially during the challenging times of the pandemic while supporting the company; second, the recent growth and dedication are visibly apparent. Regarding sales commissions, the following two goals need to be achieved:

·   Maintain personal performance at 300,000 for two consecutive months.

·   Keep overdue accounts receivable ratio below 30% (calculated on the 7th of the following month)

I hope you won’t disappoint the company’s trust. This is also an opportunity to enhance your skills. We look forward to you achieving the goals as soon as possible.
Best of luck!”[3]

  1. The Applicant replied to the 1 July 2022 email on the same day, stating: “[t]hank you boss, I will definitely try my best to thank you!”[4] Even though the contract dated 1 July 2022 remained unsigned, the Applicant continued to work for the Respondent.

  1. The Applicant alleges that after she disclosed her pregnancy in mid-November 2022, she was subjected to a pattern of workplace harassment and discriminatory treatment.  In particular, the Applicant alleges it was suggested to her in January 2023 that her employment conditions be altered by way of a salary reduction and a change from full-time to casual employment.  The Applicant says she rejected this.[5]

  1. The Applicant also alleged that she did not have a reduced workload during her pregnancy, was forced to work overtime and was required to work in both cold storage conditions of minus 20 degrees and refrigerated storage of 2-3 degrees, leading to some medical issues during and following her pregnancy.[6] The Applicant further alleged that her requests for annual or personal leave were refused[7], but this was denied by the Respondent. In the latter stages of her pregnancy, the Applicant was certified as unfit for on-site work from 13 February 2023 until the delivery of her baby, which had been estimated to occur on 24 April 2023.[8] She worked from home until the end of March 2023.

  1. The Applicant sent a handover email to Mr Huang on 31 March 2023 in which she outlined she would be taking maternity leave from 1 April 2023 until November 2023.[9] The Applicant also made a request to have her 20 days of annual leave paid out at the next pay day (on the following Saturday) and foreshadowed that she would like to discuss proposed changes to her role upon her return. These were stated to be “salary cuts, job changes, increased workload, etc.”[10] Mr Huang responded to the Applicant’s email later that day. Mr Huang wished the Applicant well and stated there was no hurry to discuss her work, it being possible to discuss this upon her return.

  1. There was then a series of emails sent between the Applicant and Mr Huang on 2 April 2023. These outlined differing views on a number of points. Mr Huang signed off with “[l]ooking forward to your return!”[11] in the final email sent at 8:46pm on that day but the email correspondence continued between 3 April - 6 April 2023. The differing views of the parties regarding the Applicant’s leave entitlements and her duties continued to be ventilated. Both parties referenced the turnover of $300,000, with the Applicant maintaining that she had always said that it could not be achieved. The Applicant also detailed her efforts in securing customers for the Respondent and outlined her anxiety about what might happen to her role, and the terms and conditions of her employment. Ultimately, the Applicant commenced a period of personal leave on 3 April 2023 and thereafter commenced maternity leave on 14 April 2023.[12]

Return to Work - Monday 30 October 2023

  1. On 26 October 2023, the Applicant sent an email to Mr Huang, stating that she would be formally back at work “next Monday” (30 October 2023). Mr Huang replied by sending an email on the same day stating “Received! Please call me on [phone number] any time”.[13] After an absence of nearly seven months, the Applicant returned to work from parental leave on 30 October 2023.[14] At 8:05am, Mr Huang sent the Applicant a WeChat message stating: “[i]n the next few days, you should first familiarize yourself with the new products and don’t rush to deal with customers.”[15]At 8:34am, the Applicant replied to Mr Huang informing him that many of the features on the work platform ‘Xero’ had been turned off and that she could not find the inventory. When she asked Mr Huang to restore her access, he replied that he would “have a look.”[16]

  1. Mr Huang sent the Applicant a “Welcome Back” email at 10:50am. This email attached a management manual and contained a summary of the Applicant’s duties for the week, which included:

a)A direction that the Applicant familiarise herself with new products.

b)Advice that customers were divided into two categories, ‘existing’ and ‘lost’, and a direction that the Applicant not contact existing customers until “contact time” (which was “tentatively scheduled” for Wednesday, 1 November 2023).

c)Directions that the Applicant find opportunities for ‘lost’ customers to place orders again and help the Respondent improve its business.

d)A requirement to “scan” the ‘lost’ customers before 10 November 2023 and provide feedback.[17]

  1. The “Welcome Back” email concluded by foreshadowing that new customer plans would be added.

Wednesday 1 November 2023

  1. During the determinative conference, Mr Huang gave an account of having received a phone call from “Andy” on 1 November 2023 in which “Andy” reported there having been an argument between himself and the Applicant regarding a customer of the Respondent (Haidilao), and not knowing what to do about it. Mr Huang said he then placed a telephone call to the Applicant. This telephone call was said to have taken place at approximately 12:20pm and it is agreed that Mr Huang expressed his displeasure with the Applicant and gave her a direction to not deal with Haidilao, stating words that were to the effect of “take it or leave it.” At the determinative conference, Mr Huang explained that the essence of what he had put to the Applicant in Mandarin was difficult to translate. It emerged through subsequent discussion at the determinative conference that what Mr Huang said next could be interpreted either as “[i]f you don’t want to do it, you just keep your hands off” or “[i]f you don’t want to do it, you leave the job.”[18] Mr Huang described what he had said as being “take it or leave it”,[19] but it eventually emerged that the “take it” required the Applicant to resolve to accept the direction from Mr Huang and not contact Haidilao, while the “leave it” conveyed that if Mr Huang’s decision was not accepted by her, the Applicant could leave her employment with the Respondent.[20] Ms Liu said she interpreted the comment as having been asked to leave.

  1. Following this phone call, the Applicant sent text messages to Mr Huang at 12:24pm on 1 November 2023, stating:

·“What's wrong with me coming back to take my client back now? Why is it that after half a year of hard work, pregnant women, and going back and forth to help her choose products, it's not mine anymore when I come back from vacation?”

·“You said that I will quit, then you dismiss me or fire me.”

·“I'm waiting for your email.”[21]

  1. The text messages were followed by an email from the Applicant to Mr Huang at 12:32pm, which stated:

“I have to get all my clients back, especially Haidilao. After a year and a half of hard work, I negotiated and ran back and forth. I don’t know how many times I tried the products. I carried the goods with a heavy belly and showed her the goods. I spent the whole morning with her choosing products while I was on vacation. Before the maternity leave, she had chosen Andy to take over after I left. Couldn’t dent it to me because she took a large amount of goods and a large amount. Andy’s performance has been growing for such a long time. Is it just because stopped being my customer after I left? Who will be responsible for my performance? You said you were in a bad mood and asked me to stop working. Then you can do whatever you want. I have to get my clients back. No negotiation.”[22]

  1. Mr Huang sent an email to the Applicant in reply at 5:07pm on 1 November 2023, attaching a list of clients and stating:

“Obeying the company’s arrangement is the first priority for employees! The remaining customers will be followed up by other sales teams.

You are responsible for capturing the customer list as follows. If you contact other customer lists, you need to report to me. You are not allowed to contact customers privately, which will affect the company’s overall image.
If a violation is discovered starting tomorrow, you will permanently lose the opportunity to capture this customer.

The completion method is to send a text version of the group chat to the customer, let the customer make multiple choice questions, and communicate over the phone only happens

1.   Special Offers

2.   Handle customer complaints

The following customers are divided into two categories.

Existing customers, and stock availability.
           Lose customers and look for opportunities to cooperate again.

You will need to give me the updated details for these clients by close of business next Thursday, November 9th.”[23]

Thursday 2 November 2023

  1. The Applicant sent Mr Huang an email at 8:38am on 2 November 2023, stating:

    “I have no violation, please give an example? Is there any problem with my customer service? If I am treated unfairly and unjustly due to the company favouring a particular individual, please treat me fairly and impartially. I do not accept discrimination without cause.”[24]

  1. In reply, Mr Huang sent an email at 9:44am:

    “If that’s the case, you will only be responsible for following up with the clients you have personally engaged with, while the coordination with the rest of the clients… will be handled by other colleagues within the company.”[25]

  1. In response, the Applicant sent another email at 9:56am:

“If the company insists on compelling me to accept its regulations, I cannot comply. All the clients were acquired through my individual efforts. If the company believes I am in the wrong, I request specific examples or reasons to be provided. Alternatively the company may choose to terminate my employment, as you suggested when you mentioned being in a bad mood and asking me to stop working.

I find it difficult to understand why only Haidilao is exempted from my client list. I believe the reasons should be reasonable and not overly stretched. Andy’s business turnover is already high; why seize my clients? Is it justifiable to blatantly take them away because he has high performance?

Moreover, I am a breastfeeding mother, and I request the company to treat me fairly and justly. If undue pressure is exerted on me to compromise and accept unreasonable regulations, I will not yield.”[26]

  1. Mr Huang replied to this email at 9:59am:

“If you can communicate more respectfully, we can continue the conversation. However, until then, I request that all work on your hands be temporarily suspended. The company rejects the unreasonable demands you have put forth.”[27]

  1. The Applicant responded at 10:08am:

“I have always been communicating with you in a respectful manner. Is there something wrong with what I have said? Please clarify. I haven’t made any specific requests; I am just reclaiming my own clients, which is part of my job responsibilities. If you believe I have any issues, please provide examples for clarification. Additionally, could you please explain why I am not allowed to handle Haidilao anymore?

…

If my termination is related to my pointing out issues within the company, can you provide a reason for terminating my employment?”[28]

  1. This prompted Mr Huang to respond at 10.20am with “[s]peak respectfully, and let’s continue our conversation”[29] and the Applicant to almost immediately reply at 10:22am, with “[c]ould you please point out where I went wrong? Let me know. Also, can stopping all my work be understood as termination?”[30]

  1. At approximately 10.38am, Mr Huang had a WeChat exchange with a representative from Haidilao. The client initiated the exchange and asked whom from the Respondent was in charge of their account. Mr Huang apologised for the “trouble”, explained that the Applicant had just returned from parental leave and the Respondent was coordinating the process. He then invited the client to choose from the Respondent’s sales team, adding “[t]hey are all very good and very experienced.”[31] When the client suggested it would be better for the Respondent to coordinate its sales process, Mr Huang asked whether they were satisfied with “Andy.” The client responded in the affirmative, whereupon Mr Huang undertook to make the necessary arrangements.[32]

  1. There were also exchanges between the Applicant and Mr Huang on the Respondent’s Sales group WeChat which appeared to start from 10.45am. During these, the Applicant outlined her position in relation to Haidilao and asked why Haidilao had been taken away from her. The ensuing exchange between Mr Hunag (Leo) and the Applicant (Ruby), which resulted in her removal from this group WeChat, was as follows:

Leo: Until the company makes a final decision, all relevant sales staff remain silent, waiting for the company's final decision.

Ruby: I am very grateful to Andy for helping me manage my clients. But this cannot be the reason for him to steal my customers.

Leo: @Ruby Can you see it? keep silent

Ruby: Why remain silent? Why do you have to force me to accept it? Why didn't you give me a reason? Who is responsible for my performance and commission？

Leo: If you cannot accept the company's arrangement, the company will take measures against you

Ruby: You push me every day to achieve a performance of 300,000 Australian dollars. You said you wanted to give me a commission, but I didn’t get a penny of commission for a year. The client I worked so hard to achieve success with ended up being someone else’s How do you want me to accept it?

Leo: Last warning!! Keep Silent!

Ruby: Give me a reason.[33]

  1. After this, Mr Huang sent an email directly to the Applicant at 10:56am, stating:

    “The company is not obliged to explain all of its decisions to employees.

    Since you have chosen not to accept the company’s arrangements, I will list the reasons behind all company decisions and the cost you will bear for this is that all the clients you currently handle will be transitioned to the team for coordination.

    Your sales efforts will start with new customers!

Please confirm whether you accept the company’s arrangement!”[34]

  1. At 11:20am, the Applicant sent an email response, in which she stated “I don’t accept this. It’s an unreasonable condition. Just let me go.” This prompted Mr Huang to send a reply at 11:34am, in which he outlined:

“The company will not terminate your employment!

Your refusal to accept the work assigned by the company indicates a need for you to adjust due to a prolonged lack of engagement.

Additionally, your personal conduct has significantly impacted the company’s external image and internal operations.

Now, set aside your current tasks and take a calm one-hour break. By today’s afternoon at 12.30pm, I will call you for further communication. During our conversation, if emotions still persist, the company will take additional measures!”

  1. The Applicant responded at 11:43am, stating:

“I haven’t shown any emotional reactions. This is a matter of principle. It’s akin to renting out your house to someone for six months and after that period, the tenant claims ownership. Would you be willing? Would you remain as calm as I have? If your home were invaded, could you still remain composed? Where in my emails did I display emotion? What part of my statements is incorrect? Why am I not allowed to voice my opinions and state my reasons for not compromising? Why the insistence on forcing me to accept? Where did I go wrong for the company to treat me this way?”[35]

  1. At the Determinative Conference, it was agreed that at approximately 1:30pm Mr Huang telephoned the Applicant.[36] The Applicant recorded this telephone conversation without the knowledge of Mr Huang and said it went for 27 minutes.  The Applicant said that during the conversation:

  • Mr Huang asserted that the (unsigned) contract, with a commencement date of 1 July 2022, was operational only until 14 July 2023, and that after 14 July 2023 the contract ceased being valid and the Applicant would not be paid for her return to work.[37]

  • Mr Huang became abusive towards the end of the call and said “Damn you, I am the boss. You follow my arrangement, my instructions. When the company is paying you, you obey the instructions and just do your job. This is your first priority as an employee. If you are not even sure of this, you go home and take a rest.”[38]

  • Mr Huang told her to “turn to Fair Work directly.”[39]

  1. Mr Huang said he did not know he was being recorded when he participated in that phone call. His understanding at the time was that the purpose of the phone call was to resolve the issue surrounding Haidilao.[40] Mr Huang recounted that the Applicant’s view was that Haidilao should be her client whereas he considered customers of the Respondent to be assets of the Respondent. Mr Huang testified that what he was trying to convey to the Applicant was that it would not be possible to maintain her contractual arrangements under the 1 July 2022 contract if she could not accept the arrangements he had outlined. Mr Huang also said he had asserted his position was that of “the boss” because the Applicant has posed the question “[w]hy should I listen to you?”  during the call. Mr Huang said that he also suggested to the Applicant that she try and find some help at the Commission so that she could understand the issues he was trying to explain. 

  1. At 3:55pm, Mr Huang sent the Applicant an email stating:

“… Following our discussions, effective immediately you will be responsible for handling matters related to Haidilao clients. The rest of the company’s clients will be managed by other team members.

Please organise client-related matters and create a plan for adding new clients. Aim to achieve a monthly target of 300,000 in turnover. Plan to add clients at a rate of 4 clients per hour, with each client taking 15 minutes. Assuming an 8-hour workday, this totals 32 clients per day. Exclude the daily management of existing clients from Haidilao, and report to me about 30 clients daily.

…

Considering your afternoon schedule or picking up your child, the deadline for submitting the list can be extended to 9a.m. the next day ...”[41]

  1. When the Applicant responded by email at 7:54pm on 2 November 2024, she stated she was sick due to the “tremendous work pressure from the company and recent events” that had caused “significant emotional fluctuations.”[42] The Applicant was absent on personal leave on Friday, 3 November 2023.

Monday 6 November 2023

  1. At 9:00am on Monday, 6 November 2023, Mr Huang sent the Applicant an email confirming that she would be solely responsible for the Haidilao client and that the rest of the company’s clients would be handled by other team members. Mr Huang also notified the Applicant that she was being issued a warning for making unauthorised contact with clients the week prior. The contents of this email were:

“As we discussion [sic] last week, starting today, you will be solely responsible for handling matters related to Haidilao clients. The rest of the company’s clients will be managed by other team members.

Please organize client-related matters, Additionally, last week, due to you unauthorized contact with clients, which disrupted the company’s normal operations, a warning has been issued. We hope you will refrain from engaging in activities outside of work arrangements. Please adhere to the company’s instructions, refrain from independently contacting clients, and avoid following up with clients not under your responsibility. If any further violation of company regulations is identified, additional measures will be taken.

Regarding sales commissions, it is reiterated that, based on your salary, the baseline performance requirement is a monthly turnover of 300,000 RMB. For amounts exceeding this baseline, the company will provide a 1% sales commission reward. To assist you in achieving commissions quickly, you need to create a plan for adding new turnover. The first step is to secure sufficient number of clients.

The plan for adding new clients involves contacting one client every 15 minutes, totalling four clients per hour, and achieving 32 clients each day with an 8-hour workday. Exclude the daily management of existing clients from Haidilao, and report to me about 30 clients daily.

Considering your current situation of picking up your child in the afternoon the deadline for submitting the list is extended from the original 4:30pm to 9am the next day.

By 9am next Monday, I need information on 30 clients for Friday, November 3rd. Similarly, 9am next Wednesday, I need information on 30 clients for Monday, November 6th. This pattern continues.

Special circumstances: This week, as Tuesday, November 7th, is a Public Holiday, skip one day. Submit a total of 120 client details this week.

Client details can be found in the attachment – Client Background Information Form.”[43]

  1. The Applicant sent a reply at 9:51am on 6 November 2023, outlining 10 points.[44] At 10:37am, the Respondent replied to each of these.[45] Their exchange is outlined in consolidated form below, the italicised text being Mr Huang’s response:

1.   Is this the company’s decision? Exchanging all of my hard-earned clients and performance for Haidilao clients? Do the clients I worked hard to develop now belong to someone else?

- This is the result of our discussion last week, and you agreed to it. The core point of the discussion is that each salesperson manages the clients they personally acquired. The clients you previously serviced were acquired by other members of the company’s sales team. Following your perspective it is, of course, the responsibility of other team members to maintain them.

2.   I told Andy that after arranging Haidilao, he should hand it over to me. He said he wanted to discuss it with me outside and informed me that Haidilao couldn’t serve me for six months. Why does he have the right to say he’ll exchange some of his clients with me for Haidilao? When I disagreed, he called you, and without reason, you aggressively scolded and threatened me, forbidding me from dealing with Haidilao. Why? You said I should quit.

- Please refer to last week’s email regarding job responsibilities, which required you to follow up on the client list. What tasks have you completed, and does the list include Haidilao clients? – Firstly, you did not follow the company’s work arrangement. I instructed you to focus only on following up on listed clients, with a primary emphasis on familiarising yourself with the products. However, you not only lacked product knowledge but also took the initiative to follow up with clients. I called you to stop activities beyond your scope of responsibility. – The company does not need to explain why for all its business decisions.

3.   All the emails you sent are pushing me to compromise, obeying the company’s unfair and unjust arrangements, threatening me with consequences if I don’t comply, which is taking away all my clients and starting from scratch.

- What exactly should I compromise on? What unfair and unjust arrangements are there? Where is the threat? Shouldn’t the employees bear the consequences if they don’t follow the company’s arrangements? – All clients are company assets, and the company has the right to determine how to arrange them. – Starting from scratch is a skill all salespeople need to possess.

4.   Like you said on the phone, all the rules and plans are targeting me without any reason.

The solution is naturally tailored for you since you are the only one not following the company’s arrangements.

5.   On the phone, you threatened, pressured, accused, and insulted me, finding fault with me in various ways, terminating the contract prematurely, asking me to leave without paying me my salary, and telling me to go to Fair Work.

Have you listened to how you talk? If you continue with the communication style, the company can sue you for defamation. – Fair Work is the Australian government department where all employees seek fair work assistance. The company is obligated to provide official channels for employees to seek help.

6.   Before giving birth, you asked me to go to Fair Work, and after returning from maternity leave, you also told me to go to Fair Work. Let’s resolve this with Fair Work.

- The company is obligated to provide official channels for employees to seek help.

7.   Provide reasonable compensation for terminating the contract and dismissal.

- The company has never mentioned terminating the contract early or dismissing you.

8.   The mental stress and unfair treatment from the company upon my return have caused significant emotional fluctuations, resulting in blocked and inflamed milk ducts. Now my baby has no milk to eat.

- The company arranged for you to familiarize yourself with products and pick up previous clients during your first two weeks back, considering you recent childbirth.

- We sincerely apologize for the impact on your health. If you need more time to rest, the company will continue to reserve your position.

9.   The company underpaid me and withheld my May 2020 probationary period (3 months at 50%, 3 months at 70%) according to the labor law. They didn’t pay the correct salary according to the contract and didn’t pay overtime for my overtime work, and more. I will email you the details.

- We have already resolved this issue before.

10.  After four years of employment, farewell.

- We are deeply saddened to hear this. Thank you for your contributions to the company over the past few years!”

  1. The Applicant asserted that after she sent Mr Huang her 9:51am email on 6 November 2023, her work accounts (Xero and WeChat) were closed.[46]

Thursday 9 November 2023

  1. The next contact between the parties was on 9 November 2023. At 12:52pm, Mr Huang sent the Applicant an email, which stated:

“Hello Ruby

Please submit the list of tasks to be completed this week, including client information.

Monday: 30 client information list

Wednesday: client information list

The list of 30 clients   contacted today (Thursday) should be reported to me by tomorrow morning at 9a.m.
Regards”[47]

  1. The Applicant sent an email in reply at 9:29pm, which outlined:

“1. On November 1st, at 12:20pm, you called me regarding issues with Hai Di Lao. You raised your voice, spoke in a very harsh tone, and told me in a bad attitude that you were not in a good mood. You asked me not to continue working. Both my colleagues in the company and a friend who came to pick up goods heard this statement. Since you have already terminated my employment and did not provide instructions for my remaining tasks, I am unable to fulfill any outstanding work.

2. As a lactating mother, I returned to work for only four days (October 30th -November 2nd) and was terminated without making any mistakes.

3.   Upon my return to work, there was no specific handover for me, and none of my clients were assigned back to me. All my clients were reassigned to other sales representatives.

4. Please review the process my salary, overtime pay, superannuation, annual leave, sick leave, and the trial period (50% for the first three months and 70% got the next three months). Kindly arrange for the finance department to verify and release all due payments to me.

Thank you.”[48]

Saturday, 11 November 2023

  1. At 3:05pm on 11 November 2023, Mr Huang sent a response to the Applicant’s 9 November 2023 email, which outlined:

    “This email is regarding your inability to complete the assigned tasks from October 30 2023, to November 10, 2023, resulting in unauthorized absenteeism and violation of company regulations. Based on your situation, the company is offering two solutions:

1.   The company is concerned about your mental and psychological well-being, believing that you may not be able to handle company-related tasks adequately. The company is willing to provide a 6-month unpaid leave while retaining your position until May 13, 2024. We hope you take this time to rest, recuperate, and make necessary adjustments. The company looks forward to your return!

2.   If you feel this is unnecessary, you are expected to resume accepting the tasks assigned by the company starting next week.

Best Regards.”[49]

  1. The parties agree they had no contact during the period from 12 November 2023 until 21 November 2023.

Tuesday, 21 November 2023

  1. At 8:48pm on 21 November 2023, the Applicant replied to 11 November 2023 email from Mr Huang, stating:

“1. You have already terminated my employment, and I am unable to return to work. I have found a new job and will be starting immediately.

2. From October 30, 2023, to November 6, 2023, you did not pay my salary. This further confirms that you have indeed terminated my employment.

3. During my pregnancy and lactation period, the company subjected me to bullying, various targeted threats, insults, coercion to compromise, and applied pressure through various means. This included insulting me, taking away all my clients, halting all my work, and withholding my salary, among other actions.
4. Discrimination against me during my pregnancy and lactation was evident. Statements were made claiming that I hindered the company’s development, held it back, was a burden, incurred losses, resulted in salary reduction, increased workload, premature termination of the contract, verbal abuse, threats, unfair treatment, and subtle coercion, among other things.

…”[50]

  1. In this email, the Applicant then outlined various calculations going to money she said she was owed.[51] The Applicant asserted that her work email account was closed shortly after she sent this email on 21 November 2023.[52]

Consideration

  1. Section 386(1) of the Act outlines the meaning of ‘dismissed’:

“386(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.”

  1. If the Applicant was not dismissed by the Respondent within the meaning of s. 386(1) of the Act, there is no jurisdictional basis for her to pursue an unfair dismissal application.[53] More specifically, if the Applicant’s employment was not terminated at the initiative of the Respondent, or if my finding is that she was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for her to pursue her unfair dismissal application under s.386(1)(a) or (b) of the Act.

  1. At the determinative conference, I asked the Applicant’s representative to clarify the position outlined in the Applicant’s Form F2 – Unfair Dismissal Application (Form F2) that she was notified of her dismissal on 1 November 2023 and it took effect on 6 November 2023. This gave rise to the following:

“THE DEPUTY PRESIDENT:  All right.  So just so I understand your position, in the form F2, on page 5 of the court book, you have outlined that she was told about being dismissed on the 1st and it took effect on the 6 November.  So when - how do you say the dismissal comes about, on the facts?

MR HON:  When the company permits the access to the company's portal, I'm saying that that would be the time, sir.

THE DEPUTY PRESIDENT:  On the 6th.

MR HON:  On the 6th.

THE DEPUTY PRESIDENT:  All right, the access.  So you don't put the proposition that Ms Liu resigned, is that my understanding?

MR HON:  Yes.

THE DEPUTY PRESIDENT:  You don't say she resigned?

MR HON:  I don't say that she officially resigned.

THE DEPUTY PRESIDENT: Well that means we're really looking at section 386(1)(a), 'The person's employment with his or her employer has been terminated on the employer's initiative'. So you say that the termination is brought about by the action of shutting off access to the portal, Xero and WeChat?

MR HON:  Yes.”[54]

  1. I am not persuaded the Applicant was dismissed by the Respondent on 6 November 2023.

  1. Firstly, I consider the rationale underlying the initial programme for the Applicant upon her resumption at work outlined by Mr Huang in the WeChat message sent at 8.05am on 30 October 2023 and the email sent later that day at 10.50am had a reasonable basis and was not part of a strategy to bring about a termination of the Applicant’s employment. Mr Huang’s explanation of the prevailing circumstances of the business at the time the Applicant resumed work was credible and it was consistent with the requirements in the initial programme for the Applicant to familiarise herself with new products and customer lists and not immediately proceed to contact customers. Specifically, Mr Huang stated:

a)The Respondent’s business had undergone changes, products were being updated and customers had been updating their menus;[55] and

b)During the Applicant’s parental leave, the Respondent had extended its product line, by 30-40 different products and because the Applicant had not “touched” these new products yet, Mr Huang decided to give her the first week back to familiarise herself with the products before gradually resuming contact with customers: “so I know this is very hard for her, after she comes back, so that's the reason why I write the email, let her the first week to familiar the product first and slowly taking the customer.”[56]

  1. Secondly, I am satisfied the Respondent had no intention of terminating the Applicant’s employment. The evidence before the Commission indicates it was in fact the Applicant who repeatedly raised the question of dismissal in the lead-up to Mr Huang shutting down her access to Xero and WeChat on 6 November 2023. When she did so, the Applicant was rebuffed by Mr Huang. I have noted the Applicant first invited Mr Huang to terminate her employment after Mr Huang issued the direction on 1 November 2023 that she not contact Haidilao. As to this, I consider Mr Huang had a reasonable basis for making this direction because it was based on the business relationship with Haidilao going well, Haidilao advising Mr Huang they were satisfied with the service they were receiving from “Andy”, and Mr Huang’s belief that the Applicant firstly needed to familiarise herself with the new products Haidilao was using, before engaging with them. It was only when the Applicant would not accept this lawful and reasonable direction that Mr Huang conveyed it was her choice to either accept his direction or, if she did not accept it, leave her employment. Far from taking up the Applicant’s invitation to terminate her employment, Mr Huang instead outlined the ongoing work he required her to perform. Even after the Applicant twice stated that she would not accept such direction, Mr Huang’s response was to ask that she communicate more respectfully and temporarily suspend all work until she could do so. Mr Huang only determined to transfer the Applicant’s work to the Sales team after she had continued to challenge his decision regarding Haidilao on the Respondent’s Sales group WeChat, despite being asked three times to cease. When the Applicant responded by inviting the Respondent to terminate her employment, Mr Huang explicitly stated that the Respondent was not going to do so. I accept that the telephone conversation between the Applicant and Mr Huang, at approximately 1:30pm on 2 November 2023, was robust, but having heard from both participants to it, I am satisfied that each did not feel constrained in stating their position. Ultimately, I am satisfied Mr Huang was entitled to instruct the Applicant in relation to the work the Respondent wanted her to perform. It was clear the Applicant was not happy about this, but I am persuaded that Mr Huang invited her to seek advice about her position, as opposed to just bluntly suggesting she commence proceedings against the Respondent if she did not like what he was saying.

  2. Thirdly, the email exchange between the parties on 6 November 2023 provides a comprehensive overview of the Respondent’s position in relation to the Applicant’s employment and I have concluded it does not point to an intention to terminate the Applicant’s employment.  Mr Huang simply outlined again the rationale behind the Respondent’s return to work plans for the Applicant. He confirmed the Respondent’s expectations. Clearly the Applicant was aggrieved by the initial decision to leave responsibility for the Haidilao customer relationship with “Andy”, but the Respondent reversed this decision. The Applicant was, however, also aggrieved by the other aspect of the Respondent’s revised position, which involved not re-allocating to her the other customers she had carriage over prior to her parental leave. She felt this would result in the $300,000 monthly sales target being unattainable, describing it as “mission impossible”.[57] Mr Huang referenced the 1 July 2022 contract, stating that the Applicant was well aware of the targets and KPIs. He argued that the target was already $300,000 and the Applicant had already agreed to it.[58] The evidence indicated that this sales target, which attracted commission payments if met, was not new. Moreover, it had been in place prior to the Applicant’s parental leave. The Applicant, however, had never achieved it, even with both her pre-parental leave customer base and the Haidilao account. I therefore reject the suggestion that the Respondent imposed the $300,000 monthly sales target upon the Applicant’s return from parental leave in order to have a trigger for terminating her employment.

  1. Mr Huang also expressed the not unreasonable view that the Applicant’s apparent ongoing refusal to accept direction had been unacceptable. He explained his reason for suggesting she approach the Commission for help. Significantly, Mr Huang offered the Applicant more time to rest and explicitly stated that her position would remain open if she required this, and reiterated that the Respondent did not propose to terminate the Applicant’s employment.

  1. Fourthly, I do not consider that Mr Huang’s shutting down of the Applicant’s Xero and WeChat accounts was unreasonable having regard to the Applicant’s continuing refusal to accept his various suggestions and directions and her open defiance in continuing to air her grievances in an open forum that included her colleagues.  Furthermore, Mr Huang had warned the Applicant measures would be taken if her behaviour continued and she ignored him.

  1. For completeness, when assessing the events on 6 November 2023, I am also satisfied that the Applicant did not resign her employment on that day. When asked what she meant when she included “After four years of employment, farewell” in the email she sent at 9:51am on 6 November 2023, the Applicant said she was trying to say “I can't stay here anymore.”[59] I am also satisfied that the Respondent did not regard the Applicant as having resigned that day. This is demonstrated by Mr Huang’s email to the Applicant on 9 November 2023, which outlined a list of tasks for her to complete.

  1. The Respondent submitted that the Applicant voluntarily resigned on 21 November 2023. At the determinative conference, Mr Huang explained the Respondent’s position as follows:

“THE DEPUTY PRESIDENT:  Yes. So you say you only knew she resigned on the 21st?

MR HUANG:  Yes, because before that I am always organising the work to her and some of the questions by her, like, 'You already dismissed me,' and I make very clear statements, 'The company not dismissed you.'  So I keep organising the work, and then after like 10 days, she just write this email to me, so I noticed she has resigned, yes, and the next day I received information by Fair Work Commission.[60]

  1. As outlined above, I have not been persuaded that the Respondent terminated the Applicant’s employment or had the intention to do so. The contents of Mr Huang’s email sent on 11 November 2023 confirm this because they outlined two options for the Applicant to consider, neither of which included the termination of her employment. The Applicant was given the option of six months of unpaid leave to “rest, recuperate, and make necessary adjustments” but if she did not consider this necessary, she was expected to resume work the following week. It was against this background that the Applicant sent her email to Mr Huang on 21 November 2023, stating she was unable to return to work because she had found a new job and would be starting immediately.”[61] The Applicant’s Form F2 was also lodged on 21 November 2023. Having regard to the circumstances of this case, I am satisfied the Applicant resigned her employment on 21 November 2023.

  1. The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[62] (Tavassoli) considered the legal principles pertaining to s.386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”,[63] the Full Bench stated:

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

  1. I have considered s.386(1)(a), whether the Applicant’s employment with the Respondent has been terminated on the initiative of the Respondent, in the manner articulated in Tavassoli. That is to say, judged objectively, did the Applicant not intend to resign her employment on 21 November 2023? I consider the answer to this question is ‘no’ for the following reasons:

a)Emailing the Respondent on 21 November 2023 was not a “heat of the moment” action by the Applicant – the resignation was tendered following a period of correspondence between the Applicant and Mr Huang;

b)The resignation was in writing;

c)The Applicant had been unhappy with the directions Mr Huang had been giving her regarding her work; and

d)The Applicant outlined she would be unable to return to work for the Respondent, having found a new job with an immediate start,

  1. As to s.386(1)(b), I have also adopted the principles outlined by the Full Bench in Tavassoli set out above and have considered:

a)    Whether the Respondent engaged in conduct intended to bring the employment to an end; and

b)   Was the termination of the Applicant’s employment the probable result of the Respondent’s conduct such that she had no effective or real choice but to resign?

  1. I have outlined above why I do not consider that it was the Respondent’s intention to bring the Applicant’s employment to an end. Nor do I consider the Applicant’s resignation on 21 November 2023 the probable result of the Respondent’s conduct such that she had no effective or real choice but to resign. While the Applicant was aggrieved by directions she was receiving from Mr Huang, the Respondent had nonetheless acceded to the Applicant’s demand that she be allocated the customer relationship with Haidilao and had been prepared to give her time to settle back into her role. I have also noted that while the Applicant argued the $300,000 turnover target was “mission impossible”,[64] Mr Huang stated under cross examination that at the time of the determinative conference, the Respondent had four salespersons and a monthly sales revenue of $1.2 – $1.3 million. Mr Huang also asserted that a $300,000 turnover target was achievable, making 30 calls per day was reasonable and that, in fact, the Respondent’s other salespersons could achieve even higher targets.[65] It may also be observed that before her parental leave, the Applicant had acknowledged her target of $300,000[66] and further, that her failure to previously achieve it (and thereby earn commission payments) had not placed her ongoing employment in jeopardy.

Conclusion

  1. Whereas s.385(a) of the Act requires the Commission to be satisfied the Applicant was dismissed, I uphold the Respondent’s objection to the Applicant’s unfair dismissal application because I am satisfied that there was no dismissal within the meaning of s.386 of the Act in this case. I have concluded there was no termination of the Applicant’s employment on the employer’s initiative because I am satisfied the Applicant intended to resign her employment on 21 November 2023 and immediately commence new employment. Further, having regard to the circumstances of this case, I have not been persuaded that the Applicant’s resignation was “forced”. I have not been persuaded that the Respondent engaged in conduct or a course of conduct with the intention of bringing the employment to an end or that the termination of the Applicant’s employment was the probable result of the Respondent’s conduct such that she had no effective or real choice but to resign. The effect of upholding the jurisdictional objection of the Respondent that the Applicant was not dismissed is that I am satisfied there was no harsh, unjust or unreasonable dismissal (s.385(b)). As I have not been persuaded that the Applicant has been unfairly dismissed, her application fails and must therefore be dismissed. An order[67] to this effect will be issued along with this decision.



DEPUTY PRESIDENT

Appearances:

Mr Chia Jeng Hon for the Applicant.
Mr Leo Huang for RPC Food Pty Ltd.

Determinative conference details:

2024.
Melbourne.
20 February.


[1] Transcript PN 842-847.

[2] Digital Court Book (DCB) at page 84.

[3] DCB at page 367.

[4] DCB at page 368.

[5] DCB at page 6.

[6] DCB at page 6.

[7] PN607.

[8] DCB at page 92.

[9] DCB at page 99.

[10] Ibid.

[11] DCB at pages 99 and 120.

[12] DCB on pages 102 – 104.

[13] DCB at page 339.

[14] PN151 – 154.

[15] DCB at pages 166 – 167.

[16] DCB at pages 166 – 167.

[17] DCB at page 340.

[18] PN 324.

[19] PN 345 – 348.

[20] PN 349 – 354.

[21] DCB at page 172 – 173 and PN 249 – 259.

[22] Ibid at page 343.

[23] Ibid.

[24] Ibid at page 348.

[25] Ibid.

[26] Ibid

[27] Ibid at page 349.

[28] Ibid.

[29] Ibid at page 350.

[30] Ibid.

[31] Ibid at page 196.

[32] Ibid at page 197.

[33] Ibid at pages 204 – 209.

[34] Ibid at page 351.

[35] Ibid at page 353.

[36] PN438 – 445.

[37] PN450 – 470.

[38] PN494 – 500.

[39] PN 502.

[40] PN526.

[41] DCB at pages 192 – 193 and 354.

[42] Ibid at page 355.

[43] Ibid at page 356.

[44] Ibid at page 357.

[45] Ibid at pages 358 – 361.

[46] PN665 – 673 and PN721.

[47] DCB at page 362.

[48] Ibid at page 239 and 363.

[49] Ibid at page 364.

[50] Ibid at page 365.

[51] PN682 – 686.

[52] DCB at pages 243 – 244 and PN673 – 680.

[53] The provisions of s.386(2) and s.386(3) of the Act are not applicable in this matter.

[54] Transcript PN 891 – 900.

[55] PN 917.

[56] PN 918.

[57] PN 757 – 758.

[58] DCB at page 367 and PN 951 – 954.

[59] PN 624.

[60] PN 1039 – 1040.

[61] DCB at page 365.

[62] [2017] FWCFB 3941.

[63] Ibid at [35].

[64] PN 757 – 758.

[65] PN 729 – 740 and PN 923.

[66] DCB at page 368.

[67] PR774298.

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Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941