Mingjie Zhou v Laurent Bakery Pty Ltd
[2021] FWC 1340
•11 MARCH 2021
| [2021] FWC 1340 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mingjie Zhou
v
Laurent Bakery Pty Ltd
(U2020/13302)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 11 MARCH 2021 |
Application for an unfair dismissal remedy.
[1] On 7 October 2020, Ms Mingjie Zhou made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Laurent Bakery Pty Ltd (Laurent). Ms Zhou seeks compensation.
Hearing and Witnesses
[2] Ms Zhou’s application was the subject of a hearing before me on 14 January 2021. Pursuant to section 596 of the Act, Mr Ian Hone of Hone Legal and Conveyancing appeared on behalf of Ms Zhou. Mr Wayne Jewell, Financial Controller, appeared for Laurent.
[3] In accordance with directions issued by the Commission, Ms Zhou filed her outline of submissions, witness statement and supporting material on 3 and 14 December 2020. Laurent filed its outline of submissions with three attachments on 7 January 2021. On 8 January 2021 my chambers wrote to Laurent to confirm that the material filed was the entirety of the material/evidence upon which Laurent intended to rely. Laurent confirmed that it was. On 13 January 2021, my chambers again wrote to Laurent noting that there was no evidence before the Commission to support the factual assertions set out in Laurent's outline of submissions. In this correspondence, my associate advised that in the circumstances, whilst far from satisfactory, I would allow Mr Jewell, Mr Alex Wigan and/or Mr Boris Pak to give oral witness evidence at the hearing. In response, on 13 January 2021, Laurent filed two witness statements for Mr Jewell and Mr Pak. At hearing, after hearing from the parties, I determined not to accept the witness statements into evidence and instead allowed only oral evidence. Accordingly, the following witnesses gave oral evidence on behalf of Laurent:
• Wayne Jewell – Financial Controller
• Boris Pak – Customer Service Manager.
[4] Ms Zhou gave evidence on her own behalf.
Initial matters
[5] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
• the application was made within the period required in subsection 394(2);
• Laurent is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
• Ms Zhou was an employee who had completed a period of employment with Laurent of at least the minimum employment period;
• at the time of dismissal, Ms Zhou was a person protected from unfair dismissal; and
• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
[6] I have concluded that Ms Zhou’s dismissal was unfair. These are my reasons for that conclusion.
Background
[7] Ms Zhou was employed by Laurent in the position of full-time Vendor Replenishment Planner from 24 January 2020.
[8] Upon commencement, Ms Zhou’s employment was subject to a six-month probationary period, 1 ending on 24 July 2020.
[9] Ms Zhou’s employment was terminated by letter dated 22 September 2020. The termination letter provides that Ms Zhou’s employment is terminated “based on performance which we have had discussions with you.” 2
Factual setting and findings
Performance generally
[10] Laurent submits that over the course of Ms Zhou’s employment she “showed…she was incapable of performing her role” 3 and provides 36 examples of errors (Errors) made by Ms Zhou between 22 April and 17 September 2020 which it says demonstrates this. These examples include dispatch plan errors, incorrect reporting, an order shortage, incorrect order details and incorrect data entry.4
[11] Ms Zhou’s evidence was that there were “some discussions about [her] mistakes” during her probationary period 5 and that after that time she still made “some mistakes.”6 Her evidence was that there were discussions with her about the quality of her performance generally.7 At hearing, Ms Zhou said that out of the 36 errors identified by Laurent, she did not agree with example 28 (Stock Loss Error) as she did not consider that she caused the stock loss.8 Example 28 was that on 2 September 2020 Ms Zhou incorrectly entered data in an order and failed to perform a check on this, which resulted in lost stock worth $1686.9 Ms Zhou did however concede that she incorrectly entered data on this occasion.10 Accordingly, I find that Ms Zhou did make the Stock Loss Error. Had Ms Zhou not incorrectly entered the data, the stock loss would not have occurred. I therefore find that Ms Zhou made the Errors.
[12] Ms Zhou says that up until 23 April 2020, she cannot recall any performance errors or issues raised by Laurent. 11 She says that on 22 to 24 April 2020, Laurent raised with her that she had an incorrect plan structure, which was subsequently clarified and corrected.12 However, at hearing she also said that there was a discussion at the end of March regarding her performance.13 Mr Pak’s evidence was also that there was a verbal discussion about certain work performance issues, such as communication and accuracy, with Ms Zhou at the end of March. 14
[13] Mr Pak was Ms Zhou’s direct supervisor and oversaw her work. 15 His evidence was that Ms Zhou made numerous errors such as incorrect dates, using incorrect percentages for reports, incorrect transport bookings, incorrect information to clients, incorrect planning and general incorrect communication with internal team members16. Mr Pak’s evidence was that each time an error made by Ms Zhou was identified, a verbal or written explanation was provided to Ms Zhou.17 His evidence was all errors were usually raised with Ms Zhou either by him or by a co-worker as soon as they were identified.18 I accept that evidence.
Requests
[14] On 5 August 2020 Ms Zhou requested a temporary reduction in her working days from five days per week to three days per week in order to care for her two year old child, due to closures of childcare centres in response to the COVID-19 pandemic. 19 Her evidence was that this was agreed to by Laurent from 5 August 2020.20 Also on this date, Ms Zhou says that she requested that her working station be relocated to be one and one half metres away from her colleagues in order to comply with the government’s social distancing requirements in response to the COVID-19 pandemic.21 Her evidence was that this request was accommodated after 2 days.22
Meeting on 24 August 2020
[15] It is uncontested that on 24 August 2020, Ms Zhou attended a meeting with Mr Wigan, Mr Pak and Mr Jewell to discuss her performance (24 August Meeting). 23 Ms Zhou’s evidence was that at this meeting she was told that she was making a number of errors24 and there was a discussion with her about the mistakes she was making.25 She agreed that it was identified to her at the meeting that there were recurring issues about her ability to perform her job.26 She also agreed that she was told in the meeting that her overall performance was not at an acceptable standard.27 Her evidence was that Mr Pak wanted her to return to working 5 days per week.28 Mr Jewell’s evidence was that this meeting was a counselling meeting where Ms Zhou’s errors were discussed.29 Mr Pak’s evidence was that at this meeting he went over all of Ms Zhou’s performance issues30 and “touched on” examples 1 to approximately 18 or 19 of the Errors.31 He, Mr Jewell and Mr Wigan told Ms Zhou that her performance issues were serious.32 He said that he took a “stack” of emails to show to Ms Zhou and demonstrate the errors she was making.33 Mr Pak’s evidence was that Ms Zhou said that she did not complete a task correctly because she wasn’t doing that task often, to which Mr Pak said that working 3 days a week was not doing to assist her to improve.34 Ms Zhou recommenced working 5 days per week35 from the following week.36
[16] A record of discussion for this meeting was completed and signed by Ms Zhou, Mr Pak and Mr Jewell the following day 37 (Record of Discussion). The Record of Discussion states that the purpose of the discussion was to highlight a number of performance issues including “not responding to emails in appropriate timing (sic), recurring issues regarding ability to complete role accurately, DIFOT reporting errors and not correct, transport booking errors and diligence and care to accuracy”. It includes the following statement, “General comment – Overall performance is not at an acceptable standard and improvement is required to achieve necessary outcomes for the team. These standards and improvements were discussed with you on Monday 24 August 2020. Current customer service team are reviewing work which is causing down time for team.” The Record of Discussion also states that the purpose of the discussion was also “Due to performance and understanding issues the proposal that work attendance increase from 3 days to 5 days per week”.38. The Record of Discussion also states that Ms Zhou was advised that “she would enter a six (6) month probation period, effective from 25th August 2020”. The “extension” of Ms Zhou’s probationary period was instigated by Mr Jewell.39 The nature of the discussion is recorded as a “Final written warning”. Ms Zhou’s evidence is that on 25 August 2020, Mr Pak and Mr Jewell asked her to sign the Record of Discussion. Ms Zhou says she was reluctant to sign it as she did not have a support person, had not received independent legal advice, and did not know what to do.40 However, her evidence was that the Record of Discussion accurately reflects the matters that were raised with her on 24 August 2020.41
[17] I accept Mr Pak’s evidence as to the meeting on 24 August 2020. Firstly, Mr Pak gave clear and direct evidence. I considered him a witness of truth and his evidence to be reliable. Secondly, his evidence was considerably more detailed and comprehensive than that of either Ms Zhou or Mr Jewell. Thirdly, it is generally consistent with and supported by the evidence of both Mr Jewell and Ms Zhou. Fourthly, it is also generally consistent with the Record of Discussion which Ms Zhou concedes reflects the matters discussed on 24 August 2020. Accordingly, I find that at the meeting on 24 August 2020 examples 1 to approximately 19 of the Errors were raised with Ms Zhou, she was told that her performance issues were serious, that her performance generally was not to an acceptable standard and that improvement was required. I also find that at the meeting a further period of probation was determined to apply to Ms Zhou employment and she agreed to increase her working days back up to 5 days per week.
24 August 2020 – 22 September 2020
[18] Ms Zhou’s evidence was that following the meeting on 24 August 2020 she continued to make errors in her work, 42 however, she considered that her performance improved.43 Those errors were identified either by her or by other persons bringing the errors to her attention.44 Her evidence was that others brought errors to her attention two or three times a week45 and that those errors were discussed with her at that time.46 Mr Jewell’s evidence was also that Ms Zhou continued to make errors following the meeting on 24 August 2020.47 Mr Pak’s evidence was that between 24 August 2020 and 22 September 2020 Ms Zhou’s performance issues continued48 and she continued to make the same type of errors.49 His evidence was that these errors were discussed with Ms Zhou by him and other team members50 and are reflected in the remainder of the Errors.51 In particular, the Stock Loss Error occurred in this period.52 Accordingly, I find that in the period 24 August 2020 -22 September 2020 Ms Zhou continued to make errors on a regular basis, approximately twice or three times per week, including the Stock Loss Error and that those errors were discussed with her at the time they arose.
22 September 2020
[19] Ms Zhou’s evidence is that on 22 September 2020 she attended a meeting with Mr Pak and Mr Jewell, at which her employment was terminated (Termination Meeting). Her evidence is that there was only one meeting that day which occurred in the afternoon. 53 Ms Zhou’s evidence is that she was not presented with all of the allegations either during “the investigation” or at the Termination Meeting.54 At hearing, Ms Zhou says that Mr Pak began the Termination Meeting by stating that a decision had been made about her. She said that Mr Jewell then interrupted and asked Ms Zhou whether she required a support person.55 Ms Zhou’s evidence was that she said she needed her husband to be with her and that her husband was unavailable that day, but was available the following day. Ms Zhou’s evidence is that following this, Mr Pak continued on with the Termination Meeting and advised her that they were going to terminate her employment, effective the following day, 23 September 2020.56 She says that Mr Pak also told her that it did not matter who she was going to bring in for the meeting, the decision was made.57 Ms Zhou says that she was then shown a letter terminating her employment, effective 22 September 2020, which was signed by Mr Pak.58 Ms Zhou says this letter was pre-prepared.59 Ms Zhou’s evidence was that the Termination Meeting then concluded and she was advised that her employment contract was “finished” and she did not need to come back to work the following day.60
[20] Ms Zhou’s evidence was also that at the Termination Meeting she advised Mr Pak and Mr Jewell that she could return at 3 pm the next day with her husband. She says that on 23 September 2020 she did so, and was told by Mr Pak that “We told you yesterday the decision is made so you just have to return the keys and your discount card and sign the documents.” She says that she then signed the “documents” and returned the company keys and discount card. 61 She was never advised that her employment might be terminated prior to 22 September 2020.62
[21] Mr Jewell’s evidence at hearing was that a meeting was arranged in the morning with Ms Zhou but it did not proceed at that time. 63 Mr Jewell’s evidence is that there was no discussion in the morning as to Ms Zhou’s performance64 and that the meeting was deferred until the afternoon.65 He said that his recollection was that the meeting had to be deferred “due to commercial business reasons”.66 His evidence was that the Termination Meeting occurred at around 4 pm that afternoon.67 His evidence was first that he brought Ms Zhou into the meeting and made reference to further errors made by Ms Zhou. Mr Pak then identified that there had been further errors since 24 August 202068 and “spoke to” those errors,69 specifically the Stock Loss Error.70 However, Mr Jewell’s evidence then was that at the start of the meeting he asked Ms Zhou if she would like a support person to be present.71 He said Ms Zhou said she would like a support person present and requested that her husband be present.72 Mr Pak then talked about the Errors and, specifically, the Stock Loss Error.73 He says that the Termination Meeting was then deferred to the following day.74 He said that his recollection was that the meeting did not go for very long.75 He could not remember if a termination letter had been shown to Ms Zhou at the Termination Meeting,76 or whether she was told that her employment was terminated.77 However, his evidence was that the termination letter had been prepared before the Termination Meeting and that it reflected a termination date of 22 September 2020.78
[22] Mr Pak’s evidence was that there were two meetings held with Ms Zhou on 22 September 2020 79, one in the morning at about 9.30 or 10.00 am80 and one later that day in the afternoon.81 Mr Pak’s evidence was that the meeting in the morning was held in the retail store which was closed due to COVID-19 restrictions.82 His evidence was that at this meeting he didn’t go into detail, rather he raised a “few points” with Ms Zhou,83 including the Stock Loss Error.84 He said that he told Ms Zhou her performance issues had continued in the four weeks since the meeting on 24 August 2020 and he sought an explanation from Ms Zhou for her continued poor performance.85 His evidence was that Ms Zhou did not provide an explanation.86 As such, Mr Pak said that he needed to discuss the matter and they would reconvene.87 As to the further meeting in the afternoon, Mr Pak’s evidence was that this meeting was extremely brief as Mr Jewell asked Ms Zhou if she would like a support person and upon her confirmation that she did, the meeting was adjourned until the following day.88 His further evidence was that he made the decision to terminate Ms Zhou’s employment before the meeting in the afternoon on 22September 2020 because she had been unable to provide an explanation for her continued poor performance at the meeting in the morning.89 His evidence was also that he could not remember if the termination letter was shown to Ms Zhou at the meeting, although he said it was possible,90 and that he did not believe that Ms Zhou was told her employment was ended.91
[23] In relation to the events of 22 September 2020, I prefer, generally, the evidence of Mr Pak. On this issue Mr Pak gave forthright, credible and consistent evidence. For the most part he had a clear, detailed and considerably more comprehensive recollection of events than that of either Mr Jewell or Ms Zhou. Accordingly, I find that two meetings occurred on 22 September 2020 as asserted by Mr Pak and that the content of those meetings was, generally, as he asserted. I therefore also find that the decision to terminate Ms Zhou’s employment was made prior to the meeting occurring. However, I accept Ms Zhou’s evidence that she was shown the termination letter at the meeting in the afternoon of 22 September 2020 and also that she was told in that meeting that her employment was terminated or was to be terminated. Both Mr Jewell and Mr Pak’s evidence on these matters was equivocal, their recollection poor on these issues and neither gave evidence that they did not occur. Further, Mr Jewell’s evidence on this matter was inconsistent and somewhat contradictory. I consider it to be unreliable. Additionally, Ms Zhou’s evidence is consistent with the termination letter being prepared prior to the meeting and Mr Pak’s evidence that he signed the termination letter in the afternoon meeting. 92
23 September 2020
[24] It is uncontested that a further meeting was held on 23 September 2020, attended by Ms Zhou, her husband, Mr Pak and Mr Jewell. It is also uncontested that at this meeting Ms Zhou was told that her employment was terminated and she returned all Laurent property at that time.
Was the dismissal harsh, unjust or unreasonable?
[25] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[26] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 93
[27] I set out my consideration of each below.
Was there a valid reason for Ms Zhou’s dismissal? – Section 387(a)
[28] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s conduct or performance are well established. A valid reason is one that is “sound, defensible or well founded” 94 and should not be “capricious, fanciful, spiteful or prejudiced.”95 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.96 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
[29] Ms Zhou submits that there was no valid reason for her dismissal “as she was never confronted” with her performance issues. Further, she submits that the errors were relatively minor and at most justified a reprimand, not dismissal. 97 Further, Ms Zhou submits that the requests, amongst others, “triggered difference or annoyance” of Laurent.98 Ms Zhou’s evidence is that she believed this contributed to her dismissal.99
[30] Laurent relies upon the Errors and submits that Ms Zhou could not perform her role. 100
[31] I first address Ms Zhou’s submissions that she was not confronted with her performance issues, which I understand to mean that she was not notified of the reasons for her dismissal, and that the performance errors did not justify dismissal. In my view, neither of these matters go to whether there was a valid reason for Ms Zhou’s dismissal. The first goes to matters relevant to the considerations under section 387(b) and (c), whilst the second is relevant to considerations under 387(h). I address these matters later in this decision.
[32] The termination letter provided to Ms Zhou provides that her employment is terminated based on her performance. Ms Zhou’s own evidence is that she made the Errors, although she disputes that she made the Stock Loss Error. Further, her own evidence is also that she continued to make two to three errors a week following the meeting on 24 August 2020, notwithstanding her view that she considered her performance was improving. Additionally, I have found that Ms Zhou did make the Stock Loss Error occasioning a loss of $1686.00 of stock. Whilst I accept that the Errors, other than the Stock Loss Error, may have individually been relatively minor, and in isolation would not likely constitute a valid reason for dismissal, when considered collectively I am satisfied that they constitute a valid reason for dismissal. Further, the Stock Loss Error is a significant and serious error. I am satisfied that Ms Zhou made the Errors and that there was a valid reason for Ms Zhou’s dismissal based on her performance.
[33] As to Ms Zhou’s submissions that her requests of 5 August 2020 contributed to her dismissal or were reasons for it, I reject that submission. That contention is not supported by the evidence. Firstly, Ms Zhou’s own evidence is that those requests were actioned and agreed to within a short period of time. Secondly, Mr Pak’s unchallenged evidence was that he dismissed Ms Zhou because of her continued performance issues and her inability to provide any acceptable explanation for that. Further, it was not at any stage put to Mr Pak, or indeed Mr Jewell, that these matters were reasons for Ms Zhou’s dismissal.
Was Ms Zhou notified of the valid reason? - Section 387(b)
[34] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, 101 and in explicit102 and plain and clear terms.103 In Crozier v Palazzo Corporation Pty Ltd(t/as Noble Park Storage and Transport)104a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 105
[35] The matters of which Ms Zhou is required to be notified are those matters which I have found to be a valid reason. I have found that the decision to terminate Ms Zhou’s employment was made on 22 September 2020, following the 9.30 am meeting but prior to the further meeting which occurred that afternoon. Mr Pak’s evidence, which I have accepted, was that at the 9.30 am meeting whilst he told Ms Zhou that her performance issues had continued in the four weeks since the 24 August meeting, he didn’t go into detail as to the performance issues and only discussed “a few points” with Ms Zhou, most notably the Stock Loss Error. Accordingly, there is no evidence that Ms Zhou was notified of any reason for her dismissal other than the Stock Loss Error. I therefore find that other than in relation to the Stock Loss Error, Ms Zhou was not notified of the reasons for her dismissal in explicit and plain and clear terms. I consider this gives rise to unfairness.
Was Ms Zhou given an opportunity to respond to any valid reason related to their capacity or conduct? - Section 387(c)
[36] Section 387(c) requires the Commission must take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 106
[37] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 107 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.108
[38] In Wadey v YMCA Canberra 109 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[39] Ms Zhou was not notified of the reasons for her dismissal at the 9.30 am meeting on 22 September 2020, other than the Stock Loss Error, following which the decision to dismiss her was made. I accept that at that meeting Ms Zhou was informed that her performance had continued to be unsatisfactory and an explanation for that was sought from her. However, little detail of those performance concerns was put to Ms Zhou, other than in relation to the Stock Loss Error. In those circumstances I do not consider Ms Zhou was provided with a full opportunity to respond to the reasons for her dismissal. I consider this gives rise to unfairness.
Did Laurent unreasonably refuse to allow Ms Zhou to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
[40] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
[41] It is uncontested that at the further meeting on 22 September 2020, Mr Jewell asked Ms Zhou if she would like a support person present and upon her confirmation, the meeting was adjourned. It is also uncontested that Ms Zhou’s husband attended the meeting on 23 September 2020. At no stage prior to Mr Jewell asking Ms Zhou if she would like a support person did Ms Zhou request a support person. Accordingly, there was no refusal to allow a support person to assist at discussions relating to dismissal.
Was Ms Zhou warned about unsatisfactory performance before the dismissal - Section 387(e)
[42] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
[43] It is uncontested that at the meeting on 24 August 2020, Ms Zhou was told that her performance was unsatisfactory. I have also accepted Mr Pak’s evidence that Ms Zhou was told at that meeting that her performance issues were serious. It is also uncontested that the Record of Discussion provides that Ms Zhou’s overall performance was not to an acceptable standard and required improvement. Further, the Record of Discussion is identified as a “Final written warning”. Accordingly, I am satisfied that Ms Zhou was warned that her performance was unsatisfactory prior to her dismissal.
[44] I have considered whether the implementation of a purported further probationary period in the meeting of 24 August 2020 affects whether Ms Zhou was warned as to her unsatisfactory performance. I accept that this purported further probationary period led Ms Zhou to believe that she was being given “a second chance” to improve her performance 110 and in one sense may have “muddied the waters”. However, whilst the purported further probationary period was unhelpful, and also of no effect, I do not consider Ms Zhou could have been under any illusion that Laurent considered her performance to be inadequate and to require improvement. This had been made plain in the meeting and is set out in the Record of Discussion. Further, such an acknowledgement is implicit in her understanding that the further probationary period was to give her a further opportunity to improve her performance.
Size of the Enterprise and Dedicated Human Resources – Section 387(f) and (g)
[45] Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources personnel would have been likely to impact upon the procedures followed in effecting dismissal.
[46] At the time of Ms Zhou’s dismissal, Laurent employed 250 employees. 111 Accordingly, it is an employer of moderate size. However, it does not have any dedicated human resource personnel.112 Further, it was apparent at hearing that neither Mr Jewell nor Mr Pak had any particular expertise or familiarity with employment matters. I consider this would likely have impacted on the procedures followed in effecting Ms Zhou’s dismissal and I have taken this into account.
Other Relevant Matters – Section 387(h)
[47] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[48] Ms Zhou submits that the real reason or part reason for her dismissal was not her performance but rather “a capricious and whimsical decision to get rid of her.” She further submits that “any allegation of voluntary will is unacceptable considering the applicant's non-English speaking background, lack of independent legal advice and lack of support person.” (Second Submission).
[49] I reject the submission that the reason or a part reason for Ms Zhou’s dismissal was anything other than her performance. There is simply no evidence before the Commission to support that contention.
[50] What is contended by the Second Submission is not entirely clear. I accept that English is Ms Zhou’s second language, however, for the following reasons I reject any suggestion that this in any way negatively impacted Ms Zhou’s performance or affected her understanding that her performance was inadequate. Firstly, Ms Zhou led no evidence that her poor performance was a result of, or related to, any language difficulties. Secondly, her own evidence is that she knew she was making errors. Thirdly, Mr Pak’s uncontested evidence was that based on Ms Zhou’s resume and prior industry experience performance, her role should have been “relatively straightforward”. 113 Fourthly, Ms Zhou was, for the large part, able to participate in the hearing without the assistance of an interpreter and to follow and respond to questioning. Her English language skills at hearing appeared adequate.
[51] As to the absence of independent legal advice, there is no suggestion that Ms Zhou was not free to obtain any advice she considered necessary at any time.
[52] I have previously addressed whether Ms Zhou was unreasonably refused a support person and I refer to and repeat those comments here. For completeness, I note that it is clear from the plain language of section 387(d) of the Act that this consideration is directed to an employer’s refusal to allow a support person to be present at discussions relating to the dismissal.114 It is not concerned with discussions that are not related to dismissal. The discussions on 24 August 2020 and on the morning of 22 September 2020 were not related to dismissal. Accordingly, whether or not an appropriate support person was present at those discussions is not relevant and the absence of a support person in those circumstances does not gives rise to any unfairness.
[53] I have had regard to the fact that at no time was Ms Zhou told that her employment was at risk if her performance did not improve. 115 Whilst I accept that Ms Zhou was told that her performance issues were serious, I consider Ms Zhou ought have been expressly told that her employment may be terminated if her performance did not improve. I consider this to be of particular relevance due to the purported imposition of the further probationary period.
[54] Finally, the proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). For the reasons set out above, I consider that there was a valid reason for Ms Zhou’s dismissal and I find that Ms Zhou’s dismissal was proportionate to her unsatisfactory performance, most particularly in light of its ongoing and sustained nature.
Conclusion
[55] I have made findings in relation to each matter specified in section 387 as relevant.
[56] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 116
[57] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, whilst I have concluded that Laurent had a valid reason to dismiss Ms Zhou, I consider that Ms Zhou was not notified of the reasons for her dismissal, other than the Stock Loss Error, nor was she provided with a full opportunity to respond to the reasons for her dismissal before the decision to dismiss her was made. Further, Ms Zhou was at no time put on notice that her employment was at risk if her performance did not improve. On balance, I am satisfied that these failures render Ms Zhou’s dismissal unjust.
[58] I am therefore satisfied that Ms Zhou’s termination was unfair within the meaning of the Act.
Remedy
[59] The statutory framework within which the question of remedy must be determined is clear. Section 390 of the Act provides that the Commission may order a person’s reinstatement or the payment of compensation, subject to the jurisdictional conditions in s 390(1) being met. However, the Commission must not order the payment of compensation to a person unless it is satisfied that reinstatement is inappropriate and the Commission considers payment of compensation is appropriate in all the circumstances (s 390(3)). Ms Zhou does not seek reinstatement 117 and I am satisfied that it would be inappropriate to order her reinstated. I also consider that this is a case in which an order for compensation in lieu of reinstatement is appropriate.
[60] Neither party filed any material in relation to compensation. Accordingly, directions will be issued to enable the question of compensation to be determined.
DEPUTY PRESIDENT
Appearances:
I Hone for the Applicant
W Jewell for the Respondent
Hearing details:
2021.
Melbourne (by video):
January 14
Printed by authority of the Commonwealth Government Printer
<PR727712>
1 Applicant’s Outline of Submissions at [3]; Form F2, Attachment 2 at Clause 3
2 Form F2, Attachment 1; Respondent’s Outline of Submissions, Attachment 1
3 Respondent’s Outline of Submissions at p.1
4 Respondent’s Outline of Submissions at p.2-3
5 Transcript PN 74
6 Transcript PN 75
7 Transcript PN 83
8 Transcript PN 238-239
9 Respondent’s Outline of Submissions at p.3
10 Transcript PN 240, PN 242
11 Applicant’s Outline of Submissions at [4]
12 Applicant’s Outline of Submissions at [5]
13 Transcript PN 86
14 Transcript PN 544
15 Transcript PN 542-543
16 Transcript PN 459
17 Transcript PN 460
18 Transcript PN 601-602
19 Witness Statement of Mingjie Zhou at [5], Transcript PN 111-116
20 Transcript PN 119
21 Witness Statement of Mingjie Zhou at [6]
22 Transcript PN 121-122
23 Witness Statement of Mingjie Zhou at [7(i)], Transcript PN 124
24 Transcript PN 208
25 Transcript PN 199
26 Transcript PN 206
27 Transcript PN 210
28 Transcript PN 153
29 Transcript PN 288
30 Transcript PN 561
31 Transcript PN 559
32 Transcript PN 562
33 Transcript PN 554
34 Transcript PN 562
35 Transcript PN 158
36 Transcript PN 157
37 Transcript PN 134, PN 139, PN 361
38 Form F2, Attachment 3
39 Transcript PN 377
40 Witness Statement of Mingjie Zhou at [7(ii)]
41 Transcript PN 201
42 Transcript PN 160, PN 212
43 Transcript PN 160, PN 217
44 Transcript PN 213-215, PN 220
45 Transcript PN 221
46 Transcript PN 224-226
47 Transcript PN 288
48 Transcript PN 575
49 Transcript PN 462
50 Transcript PN 462
51 Transcript PN 462, PN 480
52 Transcript PN 480, PN 575
53 Transcript PN 250
54 Witness Statement of Mingjie Zhou at [13]
55 Transcript PN 253-254
56 Transcript PN 254
57 Transcript PN 255
58 Transcript PN 256
59 Applicant’s Outline of Submissions at [16]; Witness Statement of Mingjie Zhou at [9]
60 Transcript PN 258
61 Transcript PN 268
62 Transcript PN 269
63 Transcript PN 289, PN 389-393
64 Transcript PN 399
65 Transcript PN 396, PN 400
66 Transcript PN 395
67 Transcript PN 401
68 Transcript PN 406-409
69 Transcript PN 407
70 Transcript PN 408
71 Transcript PN 410-412
72 Transcript PN 413
73 Transcript PN 414-415
74 Transcript PN 415
75 Transcript PN 416
76 Transcript PN 417, PN 424
77 Transcript PN 443
78 Transcript PN 419, PN 423-424, PN 443
79 Transcript PN 567
80 Transcript PN 480
81 Transcript PN 485
82 Transcript PN 570
83 Transcript PN 573
84 Transcript PN 480
85 Transcript PN 575
86 Transcript PN 575
87 Transcript PN 575
88 Transcript PN 580
89 Transcript PN 593-594
90 Transcript PN 595
91 Transcript PN 599
92 Transcript PN 590
93 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]
94 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
95 Ibid.
96 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
97 Applicant’s Outline of Submissions at [19]
98 Applicant’s Outline of Submissions at [11]
99 Witness Statement of Mingjie Zhou at [6], Applicant’s Outline of Submissions at [20]
100 Respondent’s Outline of Submissions at p.1
101 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
102 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
103 Ibid
104 (2000) 98 IR 137
105 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
106 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]
107 RMIT v Asher (2010) 194 IR 1, 14-15
108 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
109 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544
110 Transcript PN 150-151
111 Form F3, question 1.7
112 Respondent’s Outline of Submissions at p.5
113 Transcript PN 479
114 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542]
115 Transcript PN 607, PN 609
116 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
117 Applicant’s Outline of Submissions at [28]
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