Mr Chun Sheng Li v Ventura Bus Lines T/A Ventura

[2017] FWC 4087

[2017] FWC 4087

FAIR WORK COMMISSION

DECISION

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

Mr Chun Sheng Li
v
Ventura Bus Lines T/A Ventura
(U2017/2775)

DEPUTY PRESIDENT ANDERSON MELBOURNE, 4 AUGUST 2017

Application for an unfair dismissal remedy – jurisdictional issue raised – whether applicant resigned or was dismissed – dismissal rescinded by employer – not forced resignation – post-resignation conduct did not alter character of resignation – application dismissed

Background

[1] Mr Chun Sheng (Mark) Li made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by the Ventura Group (Ventura) on 1 March 2017.

[2] Mr Li worked for a division of Ventura, the Ivanhoe Bus Company Pty Ltd (Ivanhoe), as a full time bus driver from 1 June 2008 until his termination. Ivanhoe operates a public bus service in and around the north eastern suburbs of Melbourne. Mr Li’s employment was governed by the Ivanhoe Bus Company Pty Ltd Enterprise Agreement 2014.

[3] Mr Li’s application was lodged within the statutorily required 21 days after his dismissal took effect.

[4] Mr Li seeks a finding that his (alleged) dismissal was an unfair dismissal within the meaning of the FW Act, and an order for reinstatement accompanied by ancillary orders for the payment of back pay and recognition of continuing employment. He also seeks orders for payment of certain days of wages he claims to be owed.

[5] Ventura raised a jurisdictional issue. It contends that Mr Li was not dismissed but resigned from his employment, and accordingly could not have been unfairly dismissed within the meaning of the FW Act. In the alternative, it contends that the dismissal was not harsh, unjust or unreasonable. It opposes any remedy, and in particular an order for reinstatement.

[6] Conciliation by the Commission on 19 April 2017 did not resolve the matter.

[7] A hearing of the jurisdictional issue and the merits and remedy was jointly conducted on 19 and 30 June 2017.

[8] Mr Li was self-represented. Though he speaks English to a limited degree, it is not his primary language. His case was partially conducted through a mandarin interpreter.

[9] Ventura sought to be legally represented. This was opposed by Mr Li. After hearing submissions, I granted permission under section 596 of the FW Act for Ventura to be represented. In doing so, I had regard to the factors set out in section 596(2) and in particular the complexity of the matter given that a jurisdictional issue had been raised by Ventura. I also considered that legal representation would likely assist the efficient conduct of the hearing given that Mr Li’s evidence would need to be taken through an interpreter. I took account of the fact that the alternate Ventura representative would have been Ventura’s principal witness Mr Abou-Issa who himself was not familiar with proceedings of this type.

[10] I also had regard to the issue of fairness between the parties. In granting permission, I indicated to counsel for Ventura that I would withdraw permission should I consider there to be any emerging unfairness to Mr Li as proceedings progressed. I also indicated that I would provide an appropriate level of intervention and guidance to Mr Li to ensure his case was placed on an even footing before the Commission and that Ventura’s evidence was properly tested.

[11] No request was made by Mr Li for permission to be withdrawn nor did circumstances arise which warranted that course. I provided Mr Li a level of intervention and guidance which was consistent with my duties as an impartial decision-maker according to law.

[12] The hearing occupied almost two days. Aside from statements and oral evidence from witnesses, written documents and oral submissions on the jurisdictional matter and the merits (as well as remedy) were presented. At the hearing’s conclusion, I reserved my decision.

[13] Three issues arise for decision: was Mr Li dismissed within the meaning of the FW Act; if so, was the dismissal unfair within the meaning of the FW Act (that is, was it “harsh, unjust or unreasonable” having regard to the factors in s.387)?; and, if so, what is the appropriate remedy?

[14] It was common ground between the parties that Mr Li was a person protected from unfair dismissal under the FW Act (s.382). The (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (s.385(c)) nor was the termination a case of genuine redundancy (s.385(d)). On the evidence, I am satisfied that this is so.

The requirement to have been dismissed

[15] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (s.385(a)).

[16] Section 386 of the FW Act provides that:

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

[17] The provisions of section 386(2) and (3) do not apply in this matter. The jurisdictional issue falls to be determined by answering the following question arising from the application of s.386(1)(b): in resigning from his employment on 3 March (by letter dated 2 March said to be effective from 1 March) was Mr Li “forced to do so” because of the conduct, or a course of conduct, engaged in by Ventura?

The witnesses

[18] Two witnesses were called, Mr Li and, for Ventura, the Ivanhoe Depot Manager Mr Ghassan (Gus) Abou-Issa. Documents relating to Mr Li’s work history were brought into evidence, as was CCTV of various driving incidents.

[19] In final submissions, Mr Li produced electronic telephone records of calls made, calls received, text messages made and text messages received which had not previously been introduced into evidence. I granted permission for Mr Li to give further evidence on this new material, and be cross examined on it. I also granted permission for Ventura to recall Mr Abou-Issa to give evidence on matters arising from this further material.

[20] Both witnesses gave their oral evidence in an open and honest manner. I made allowance for the fact that Mr Li was self-represented, with some of his evidence being more in the nature of submission than statements of fact. Some factual differences emerged. Some of these were the product of confusion over dates, while others were differences in the recollection of relevant events. Not a great deal ultimately turns on these differences. However, where there are differences in evidence between that of Mr Li and Mr Abou-Issa, I prefer Mr Abou-Issa’s evidence. He generally had a more confident recall of disputed facts.

Was Mr Li Dismissed?

[21] Ventura accepts that it terminated Mr Li’s employment on misconduct and performance grounds by oral communication on 1 March and confirmed this in writing to Mr Li by letter dated 2 March. However, it contends that it rescinded the termination on 3 March when it agreed to accept Mr Li’s written resignation in lieu of dismissal. It says the agreement to rescind the dismissal and accept a resignation was the product of a triangular dialogue on the afternoon of 1 March and on 2 March between the Company, Mr Li’s union the Transport Workers Union (TWU) and Mr Li.

[22] Mr Li accepts that he signed a letter of resignation on 3 March that was dated 2 March. It read:

“I am writing to formally notify you that I am resigning from my position as a bus driver at Ivanhoe Depot Ventura Group, effective the 1 of March 2017.

Regards,

Mark Li”

[23] Mr Li contends that he resigned only because his dismissal would have otherwise stood, and because his resignation was negotiated and recommended by the TWU on the basis that a resignation would make it more likely that he would secure alternate employment as a driver with other bus companies. He believed that when he resigned the Company had also promised to give him a “good reference” and actively support his search for alternate employment.

[24] His evidence was that he now believes that he was “tricked” into resigning by both the Company and the TWU. 1 He holds this belief because he considers that the Company did not subsequently give him a good reference nor actively recommend him to alternate bus companies. He believes that weeks later, Ventura advised an alternate bus company not to hire him when his application for new employment was at an advanced stage.

[25] There is no doubt that the conduct of Ventura on 1 March when it told Mr Li that it had decided to dismiss him without notice was a termination “on the employer’s initiative” and thereby a “dismissal” within the meaning of section 386(1)(a) of the FW Act. The question which arises is whether the dismissal was rescinded by the subsequent act of resignation by Mr Li on 3 March and whether that act was “forced” upon him “because of the conduct or a course of conduct” by Ventura within the meaning of section 386(1)(b) of the Act.

[26] This question is to be settled by a consideration of the evidence and the application of facts, objectively determined, to the law. A full bench of this Commission, considering an earlier (but comparable) provision in the Workplace Relations Act 1996 said as follows:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that the line be closely drawn and rigorously observed…

…In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.” 2

[27] Based on largely uncontested evidence before me, I make the following findings relevant to the jurisdictional question:

1. Mr Li was told by Mr Abou-Issa at a meeting on 1 March that he was summarily dismissed with immediate effect. The dismissal was confirmed by Mr Abou-Issa in writing by letter dated 2 March. The letter was sent to Mr Li at his home address that morning;

2. On the afternoon of 2 March, Mr Abou-Issa agreed, following representations made to him by Mr Malik and Mr Lama both of the TWU, that Mr Li’s dismissal would be substituted with a resignation;

3. The agreement reached between Mr Abou-Issa and Mr Malik gave effect to an arrangement made either earlier that day or the preceding afternoon between their respective superiors, Mr Reid (Ventura’s General Manager Operations) and Mr Lama;

4. Mr Li’s letter of termination dated 2 March was signed by Mr Abou-Issa and sent to Mr Li before Mr Abou-Issa confirmed the agreement with the TWU for Mr Li to be allowed to resign;

5. After he was orally dismissed, Mr Li had a number of conversations with Mr Malik and then Mr Lama of the TWU in which Mr Li was initially hesitant but eventually agreed that the TWU would approach Ventura on his behalf and seek an agreement for his dismissal to be rescinded and substituted by a resignation.³ It is more likely than not that this was initially the TWU’s suggestion to Mr Li;

6. Mr Lama and Mr Reid reached this agreement which was communicated by Mr Malik to Mr Abou-Issa on 2 March. Mr Abou-Issa telephoned Mr Reid and had the existence of the agreement confirmed.⁴ Mr Abou-Issa then telephoned Mr Li at about 1.31pm on 2 March to discuss the arrangement. In that discussion Mr Li was informed that Ventura would agree to substitute the dismissal with a resignation and give Mr Li a reference. Mr Li agreed to this course. An arrangement was made for Mr Li to come into the Ventura depot the following day and written letter of resignation which Mr Abou-Issa would prepare.

7. At 2.02pm on 2 March Mr Malik telephoned Mr Li and confirmed with Mr Li that the TWU had secured agreement with Ventura and recommended he sign a written letter of resignation the next day.

8. On the morning of 3 March Mr Li attended the depot and in a brief meeting with Mr Abou-Issa, was presented with a letter of resignation dated 2 March which had been prepared by Ventura but based on a handwritten draft provided by the TWU.5 Mr Abou-Issa explained to Mr Li that the resignation replaced the dismissal.6 Mr Li signed the letter of resignation. He also returned his uniform.

Consideration

[28] Mr Li’s resignation was made on the express understanding of both Mr Li and Ventura that if he did not resign then his dismissal, which had been given effect to, would stand. Ventura and Mr Li, as well as the TWU, understood that if Mr Li resigned then the resignation would substitute for a dismissal and that this would be noted on the company records. Although Mr Li was clearly dismissed on 1 March, I find that the act of dismissal by Ventura was rescinded on 3 March when Mr Li signed the letter of resignation.

[29] I do not find that Mr Li’s resignation was forced upon him “by conduct or a course of conduct” engaged in by his employer within the meaning of section 386(1)(b) of the FW Act. I find that it was the TWU’s initiative, with Mr Li’s consent, to approach Ventura in the first instance to seek to have Mr Li’s dismissal converted to a resignation. The employer did not initiate that course. Until it was approached by the TWU on Mr Li’s behalf, Ventura was satisfied with the decision it had made to dismiss him, and the grounds on which it had made that decision.

[30] I also find that when Mr Li signed the letter of resignation on 3 March he knew what he was doing. Although his dismissal would have stood had he not resigned, he was not given an ultimatum to resign nor placed in a position that denied him the opportunity to determine whether, in the circumstances in which he found himself, resignation was in his best interest. He had taken advice on that course from his union, and knew the conditions attached to it. In the 48 hours after his dismissal but prior to Mr Li signing his letter of resignation, he was in discussions with the TWU and Ventura about that course. He had time to consider his position and take advice on it. He sought and obtained the advice of the TWU, which, after initial hesitation, he followed. He discussed it at home with his wife. 7 It was neither a spur of the moment nor a heat of the moment decision. He agreed to resign on the basis that the combination of a resignation and a reference gave him the best possible chance to secure alternate employment. He exercised an “effective and real choice”.8

[31] I further find that Ventura drafted the letter of resignation on 2 March in the terms suggested by the TWU and asked Mr Li to come to the depot and sign it only after Mr Abou-Issa satisfied himself of two key facts, namely (1) that an agreement had been reached between his superior Mr Reid and the TWU for Mr Li to resign in substitution for the dismissal; and (2) that Mr Li had agreed to do so (which was communicated by Mr Li to Mr Abou-Issa by telephone on 2 March). These are not findings that support a conclusion that Ventura’s conduct forced Mr Li’s resignation.

Was the resignation tainted by post-resignation conduct?

[32] One further matter arises from Mr Li’s case. Mr Li contends that Ventura failed to provide the “good reference” it had promised, and that this failure prevented him securing alternate employment as a driver. He claims that Ventura’s alleged post-resignation failure to honour an element of the agreement that induced his resignation is evidence that he was tricked into resigning, and that his resignation was therefore not voluntary or fairly sought.

[33] Thus, it needs to be determined whether Ventura, on any of the relevant days, agreed to give Mr Li a reference for future employment, and if so, the form of such reference. This was a contested matter.

[34] Mr Li said that during their telephone conversation on 2 March Mr Abou-Issa promised to provide a “good reference” and recommend Mr Li to other bus companies. 9 Mr Abou-Issa said that he only promised Mr Li a “reference”.10 Mr Abou-Issa accepted that the promise formed part of the agreement that led to Mr Li’s resignation (the other elements being that Mr Li resign in writing, and that Ventura amend its records to rescind the termination and record a resignation on the company file).

[35] In giving evidence on this matter, Mr Abou-Issa said that his understanding of a reference, based on prior company practice, was simply an oral acknowledgement to a prospective employer confirming an employee’s service. 11 He did not contemplate providing anything in writing nor did he contemplate providing any information about Mr Li’s suitability beyond making first contact on Mr Li’s behalf with alternate employers.

[36] Mr Li had a different view about the reference. His evidence was that he was promised a “good reference” by Mr Abou-Issa, not just a reference. He said that he expected that Ventura would actively recommend him to a prospective employer and speak positively about his capability.

[37] I find that Mr Abou-Issa did promise to provide Mr Li a “reference” and make an effort to help Mr Li find alternative employment with a different bus company. I also accept Mr Li’s evidence that he expected a written reference and asked Mr Abou-Issa for it instantly after having signed the letter of resignation. 12 Although I accept that Mr Li was operating on the belief that he would be provided a “good reference”, I prefer the evidence of Mr Abou-Issa that he simply promised a “reference” rather than a “good reference”. The surrounding circumstances support that finding. Just days prior, Mr Abou-Issa had formed a sufficiently negative view of Mr Li’s performance so as to dismiss him. It is unlikely he would have promised to speak particularly favourably about Mr Li’s competence as a driver when he no longer held a favourable view.

[38] I accept Mr Abou-Issa’s evidence that he did initiate contact with two alternate employers, Transdev and Dysons. 13 He asked both companies to consider Mr Li for future employment, but did no more. He did not go beyond providing what is more akin to an oral statement confirming service, rather than a reference or recommendation.

[39] Dysons did not pursue Mr Li but Transdev did. Mr Li applied for a driver position with Transdev on or around 15 March. He successfully progressed through phone screening, an interview and then medical. On 17 May, Mr Scott of Transdev asked Mr Li to provide “a second reference (Manager/Supervisor) from either Crown or Ventura (Ivanhoe Buses) as well as Gus that you provided on your CV”. 14 “Gus” was the shorthand version of Mr Abou-Issa’s first name. Mr Li subsequently received a phone call from Transdev advising him that they had been unable to obtain a suitable reference from Ventura. On 21 May, Mr Li wrote to Transdev confirming his readiness to work and indicating “I am unsure why Ventura are unwilling to provide a personal reference”.15 On 24 May, Mr Li was formally advised by Transdev (Mr Scott) that “we have been unable to obtain a reference from this organisation. As a result we will be unable to progress your application to hiring…”16 and, later that day, “after careful consideration, we regret to inform you that your application has not been progressed to the next stage of our recruitment process.”17

[40] Mr Abou-Issa accepted that he spoke to Transdev about Mr Li in May 2017 and, after consulting Mr Reid, only communicated details of his service. 18 He denied having recommended against Mr Li’s employment or indicated anything negative about their relationship.19 Mr Scott of Transdev was not called to give evidence. On the material before me, I am unable to find that Mr Abou-Issa spoke negatively about Mr Li to Transdev.

[41] However, I find, on Mr Abou-Issa’s evidence, that he provided only a statement of service about Mr Li to prospective employers including Transdev. A statement of service is not the same as a reference. A promise of a reference, made in the context of an arrangement to substitute a dismissal with a resignation, is a promise to communicate some qualitative opinion about an employee’s character or work record that may support the decision of a prospective employer to hire that employee. That is the ordinary meaning of the word ‘reference’. If Ventura’s custom and practice was to consider a reference as simply being a neutral statement of service and no more, then it was incumbent on the Company to make that clear to Mr Li. Mr Abou-Issa did not do that. In failing to do so and provide more than a neutral statement of service, I find that Mr Abou-Issa did not fully meet the commitment he gave Mr Li, on behalf of Ventura, when the agreement was made that led to Mr Li’s resignation. I also find that Transdev’s decision not to employ Mr Li was, in part, based on its failure to secure an acceptable reference from Ventura concerning Mr Li.

[42] Mr Li’s failure to secure work with Transdev and his discontent with Ventura and the TWU over the issue of the reference may explain why he lodged his unfair dismissal application. However, does it constitute grounds to conclude that his resignation was involuntary or otherwise to be regarded as a dismissal?

[43] I do not consider that the post-resignation conduct of Ventura altered the character of Mr Li’s resignation, even if it was capable at law of doing so. Although Mr Abou-Issa failed to adequately honour the agreement to provide a reference or explain to Mr Li the more restricted meaning of that term in the context of Ventura’s custom and practice, he did not act in bad faith. He made initial contact with prospective employers, the first in Mr Li’s presence and with his approval on 2 March. 20 He communicated service details when asked to do so. Mr Li offered his resignation as a part of an agreement that the TWU negotiated on his behalf and with his consent. That agreement was neither tainted by illegality or bad faith on the part of the employer, nor “tricky” as Mr Li claimed. It was simply inadequately implemented in one respect, weeks later. That is not a basis to find that the resignation was not voluntary at the time it was given.

[44] There is one further post-resignation issue that emerged from the evidence. Mr Li said that he contacted the Office of the Fair Work Ombudsman on about 14 March and had been told by an officer that their inquiries on his behalf had raised a suggestion that he had been dismissed for dishonesty. As it turns out, that suggestion (if it had been made) is false. It is also third-hand hearsay and wholly unreliable. Mr Li is understandably aggrieved by that suggestion. 21 There is no allegation, let alone evidence in these proceedings to suggest that any issue of dishonesty arose concerning Mr Li at any time during his employment by Ventura. In its closing submission, Ventura made it clear that it makes no such allegation.22 Mr Li should not be burdened in his future endeavours by any suggestion of that nature. I make it clear that I found Mr Li to be a forthright and, within the bounds of his recollection, an honest witness in these proceedings. The evidence indicates that he was also an honest employee.

Conclusion

[45] There are no special circumstances that would enable me to conclude that Mr Li’s resignation on 3 March (by letter dated 2 March and which took effect from 1 March) was, at law, a dismissal. The resignation resulted in the dismissal of 1 March being rescinded. Post-resignation conduct by Ventura did not displace the resignation or constitute a special circumstance that altered its character.

[46] As the dismissal was rescinded and replaced by a resignation, no dismissal exists on which Mr Li can found an application for relief under section 394 of the FW Act. As the Commission’s jurisdiction is not lawfully invoked, I am not required to consider whether Ventura’s conduct was harsh, unjust or unreasonable, even though I have taken evidence on that question. Nor do I need to consider questions of remedy.

[47] The Commission does not have jurisdiction to deal with Mr Li’s claim for payment of wages allegedly owed for certain days of work.

[48] I dismiss the application. An order to that effect accompanies this decision.

DEPUTY PRESIDENT

Appearances:

Mr C. S. Li on his own behalf (with interpretation).

Mr C. Broadbent, with permission, and Mr G. Abou-Issa, for the Respondent.

Hearing details:

2017.

Melbourne.

June 19 and 30.

 1   PN 227-284

 2   ABB Engineering Construction Pty Ltd v Doumit Print N6999 at page 12, 9 December 1996. See also O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23] and Pawel v Advanced Precast Pty Ltd [2000] Print S5904 applying the Full Court of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200

3 PN 181; PN 186

4 PN 1221

5 PN 1561

6 PN 1886-1894

 7   PN 242

 8   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100

 9   Mr Li Witness Statement 14 May 2017; PN 174

 10   PN 1769-1780

 11   PN 1758; PN 1771

 12   PN 257. PN 267

 13   PN 1225; see also Mr Li’s evidence PN 660 and PN 668

 14   Exhibit A2 Email Scott to Li 17 May 2017 11.11am

 15   Exhibit A2 Email Li to Scott 21 May 2017 8.36pm

 16   Exhibit A2 Email Scott to Li 24 May 2017 1.40pm

 17   Exhibit A2 Email Scott to Li 24 May 2017 5.47pm

 18   PN 1227-1235; PN 1752-1773

 19   PN 1761-1764

 20   PN 274; PN 286-287

 21   PN 2591-2608

 22   PN 2601

Printed by authority of the Commonwealth Government Printer

<Price code C, PR595111>