Miss Tat Na Cheung v Prime Enterprise Holdings Pty Ltd T/A Sushi Master

[2015] FWC 6568

[2015] FWC 6568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Tat Na Cheung
v
Prime Enterprise Holdings Pty Ltd T/A Sushi Master
(U2015/5547)

COMMISSIONER ROE PERTH, 23 SEPTEMBER 2015

Termination of employment – alleged unfair dismissal.

[1] Ms Cheung was employed part time for 14 months by Prime Enterprise Holdings Pty Ltd T/A Sushi Master. Sushi Master acknowledges that Ms Cheung was a valued employee whose performance was generally good. Ms Cheung’s manager, Roy Hwang, was concerned about her late arrival at work on some occasions. On 4 May 2015 Ms Cheung says that she was dismissed from her employment by Mr Hwang and told to leave.

[2] Ms Cheung was late for work on five occasions. On 5 December 2014 she was late for work due to illness. On 27 December 2014 and on 24 January 2015 she was late due to delays caused by failures of Perth’s new rail service. On 21 March 2015 she was late. Her manager says that she was 15 minutes late. Ms Cheung gave evidence that she was 5 minutes late. Ms Cheung’s manager was not available for cross examination and I found Ms Cheung to be a convincing witness and I accept her evidence.

[3] On 21 March 2015 Mr Hwang verbally warned the employees including Ms Cheung that if they were late for work again that their shifts would be reduced.

[4] I am satisfied that it would be a breach of the Restaurant Industry Award 2010 to unilaterally reduce the working hours and days of a permanent part time employee like Ms Cheung. Ms Cheung was paid at or below the relevant Award rate for a part time employee under the Award. She did not receive a casual loading.

[5] There was no incident of alleged lateness between 21 March 2015 and 27 April 2015. On 27 April 2015 Ms Cheung gave evidence, which I accept, that she was 3 minutes late to work. She says that she had to drop her partner’s daughter at school on the way to work and the traffic was terrible.

[6] On 4 May 2015 Ms Cheung arrived at work on time and started doing her usual duties rolling sushi. She checked her roster in the afternoon and noticed that she had been removed from her usual roster on Friday. She asked Mr Hwang why the roster was changed and was told that her hours had been reduced as punishment for being late on 27 April 2015. Ms Cheung objected to this and Mr Hwang started shouting at her and told her that she was fired and that she could go now. Mr Hwang in his statement says that Ms Cheung was unhappy with her hours being reduced and that she did not listen to his warning and was rude. He said that: “I felt I had no other option but to give her two weeks notice” and told her “if she wasn’t happy that she could leave any time.” I accept Ms Cheung’s version of the events as Mr Hwang was not available for cross examination. However, even if I accepted Mr Hwang’s version I am satisfied that he dismissed Ms Cheung from her employment.

[7] Ms Cheung rang Ms Baorong who is a director of the company after the dismissal. Ms Cheung says that Ms Baorong said that she would talk to Mr Hwang and that she may be able to get her work in another store in a few weeks’ time. Ms Cheung says that she thanked Ms Baorong for this and said that she was keen to work and available immediately and would await her call. Ms Cheung says that she did not receive a call from Ms Baorong until 18 May 2015. She says that Ms Baorong rang on 18 May 2015 to ask for her to return the shop key. Ms Cheung says that she agreed to return the key and asked when she would get her holiday pay. Ms Cheung says that Ms Baorung told her when the holiday pay would be paid and did not raise the issue of work at other shops. Ms Cheung says that Ms Baorung said “not yet, not yet”, “there is a lot going on” in response to her query.

[8] Ms Baorong provided a statutory declaration but was not available for cross examination. I therefore accept Ms Cheung’s version of the events. Ms Baorong’s version of events is in many relevant respects consistent with that of Ms Cheung. Ms Baorong does not suggest that she told Ms Cheung that she was not dismissed or that there was work immediately available in another store. Ms Baorong does say that she expected Ms Cheung to call about the work in other stores not the other way round. Ms Baorong says that she rang Ms Cheung on 12 May 2015 about the shop key but the call was not answered. She says that she rang again on 18 May 2015 about the shop key. She does not suggest that she raised the issue of work in another store in the conversation on 18 May 2015. She did send a text message about work in other stores on 16 June 2015 but this was after the unfair dismissal application had been made.

[9] Having observed Ms Cheung in the witness box and having read the statements of Ms Baorong and Mr Hwang I accept the submission of Mr Washbourne, General Manager of the Respondent, that there may have been language difficulties which affected the communication between these three people.

[10] Mr Washbourne submitted that Ms Cheung was late for work, she had been verbally warned about being late for work and was given an opportunity to work at another store which she did not take up.

[11] I accept that Ms Cheung and the other employees were verbally warned about being late for work however the employees were not told that further late attendance could result in termination of employment. They were told that further late attendance would result in reduction in shifts which is not an action available to an employer in respect to full and part time employees.

[12] In any case I am not satisfied that the action of Ms Cheung in arriving three minutes late for work on a single occasion following a verbal warning is a valid reason for termination of an employee whose performance was otherwise regarded as positive and valued. Ms Cheung had satisfactory explanations for her late arrival on all but one of the occasions prior to the verbal warning. Ms Cheung’s explanation for arriving three minutes late on 27 April 2015 shows that there was a particular reason partly beyond her control for the late attendance and that the late attendance was not wilful or negligent. If there were further instances of late attendance then this could have led to a valid reason for termination.

[13] I am satisfied that Ms Cheung was summarily dismissed on 4 May 2015. That dismissal was not reversed by Ms Baorong in the conversation with Ms Cheung on the same day. Ms Baorong did not offer immediate work at another store. That offer was not made until 16 June 2015 long after the unfair dismissal application was made. That offer should be regarded as part of attempts to negotiate a resolution to the unfair dismissal application. By that stage Ms Cheung was seeking compensation for her alleged unfair dismissal. She was not seeking reinstatement at that stage and made this clear in her application.

[14] I am not satisfied that there was a valid reason for termination related to Ms Cheung’s capacity or conduct.

[15] The reason Mr Hwang gave for Ms Cheung’s dismissal was not her late attendance but rather her refusal to accept, in good grace, the reduction in her working hours as a punishment for her late attendance. This was also not a valid reason for termination given that the action taken was a breach of the Award.

[16] Ms Cheung was notified of the reason but was not given a reasonable opportunity to respond prior to the decision having been taken. Ms Cheung had been removed from her normal roster prior to any discussion or opportunity to respond. I accept that Ms Cheung was upset and that she may have contributed to the failure of proper discussion on 4 May 2015, however, Mr Hwang decided to terminate the employment prior to giving Ms Cheung a proper opportunity to respond.

[17] Ms Cheung was not refused a support person however she was not provided with any opportunity to have a support person.

[18] Ms Cheung was warned about late attendance. However, that warning did not suggest that termination of employment was a possible consequence. The relationship between the late attendance and the dismissal is only indirect. As discussed earlier the reason given for the dismissal was Ms Cheung’s failure to accept the punishment of reduced shifts in good grace.

[19] The employer is not a small business. They operate more than a dozen restaurants. The employer does not appear to have human resource management specialists. This was a factor in the procedures followed in effecting the dismissal.

[20] Mr Washbourne pointed to two other matters which he said should be considered. The first related to the telephone conciliation of this matter in June 2015. The scheduled conciliation was delayed for a week at the request of Mr Washbourne. Ms Cheung told the conciliator that she could not attend the rescheduled conciliation due to her attendance at training for a new job. I accept that this did cause some inconvenience to Mr Washbourne and to the Fair Work Commission but I consider it to be a valid reason in the circumstances. The second was that she arrived twenty minutes late for the proceedings at the Fair Work Commission on 21 September 2015. The notice of listing for the proceedings on 21 September 2015 referred to conciliation at 9am and a hearing at 10am. Ms Cheung says that she was confused as to whether the matter was starting at 9am or 10am. No general conclusions about the reliability of Ms Cheung can be drawn from these two matters.
[21] I have made findings in respect to all of the matters specified in Section 387 of the Fair Work Act 2009. The effect that the lack of human resource management had on the fairness of the procedures adopted and the verbal warning for late attendance do not outweigh the factors which stand in favour of a finding that the dismissal was unfair namely the lack of a valid reason and the lack of a reasonable opportunity to respond.

[22] The actions of the employer in dismissing Ms Cheung were disproportionate. The termination of Ms Cheung’s employment was harsh, unjust and unreasonable. I determine that the dismissal was unfair.

Remedy

[23] Ms Cheung does not seek reinstatement. I am satisfied that reinstatement would not be appropriate. However, I do consider that an order for compensation would be appropriate.

[24] I have considered each of the requirements in Section 392 of the Act. There was no suggestion that any order I might make would affect the viability of the enterprise.

[25] The length of service of 14 months is, in the context of the industry, neither short nor long. This is a neutral factor.

[26] I accept the evidence of Ms Cheung that, as a recent migrant, she was desperate to keep her job and that she worked diligently to ensure that she kept her job. The employer conceded that she was a good worker and a valued employee. There were some issues with her timekeeping. I therefore determine that she would have remained in employment for a further six months had the termination not occurred.

[27] I am satisfied by the evidence of Ms Cheung that she made adequate efforts to mitigate her loss. She circulated her resume to other sushi restaurants and she undertook further training. She was able to obtain new employment from early August 2015.

[28] I am satisfied by the evidence of Ms Cheung that she earned nothing from employment in the period from 4 May 2015 until early August 2015. Since that time she has been employed in the aged care industry. She has been earning a little less than the amount she was earning from Sushi Master in each week.

[29] I am satisfied that Ms Cheung did engage in some misconduct in her late attendance at work. However, this misconduct was not major.

[30] There are no uncertainties in the factors applying between 4 May 2015 and the date when compensation will be payable. There are some uncertainties about the period from the date of compensation to the end of the six month period employment would have continued if the termination had not occurred.

[31] The expected earnings from Sushi Master if the dismissal did not occur including superannuation for six months from 4 May 2015 totals $15,658.50 ($550 x 26 x 1.095 = $15,658.5). The six month period can be divided into three parts. Firstly, the period of 13 weeks from 4 May 2015 until early August when Ms Cheung earned nothing from employment. Secondly, the period of 9 weeks from early August until 6 October 2015 when the compensation will be payable. Thirdly, the remaining period of 4 weeks. I therefore calculate the compensation as follows:

a. Earnings which Ms Cheung would have received in the first period: $550 x 13 x 1.095 = $7829.25.

b. Earnings from employment in the new job approximately balance the earnings expected from Sushi Master in the second period so no compensation is due in this period.

c. Earnings which Ms Cheung would have received from Sushi Master during the period from 6 October 2015 until the end of the 6 month period: $550 x 4 x 1.095 = $2409. Less contingencies for uncertainties about this future period of 20%: $1,927.20.

d. a + c = $9756.45.

e. Discount of 20% for misconduct.

f. Resulting compensation is $7805.16.

[32] I determine and order that an amount of compensation of $7805.16 is to be paid by 6 October 2015. The amount shall be paid with appropriate taxation deducted. The Order is published separately.

COMMISSIONER

Appearances:

Ms T Cheung represented herself.

Mr J Washbourne appeared for the Respondent.

Hearing details:

2015

Perth

September 21

Printed by authority of the Commonwealth Government Printer

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