Mr Xing Li v Steelco Group Pty Ltd

[2015] FWC 6590

[2015] FWC 6590

FAIR WORK COMMISSION

DECISION

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

Mr Xing Li
v
Steelco Group Pty Ltd
(U2014/14499)

DEPUTY PRESIDENT BULL SYDNEY, 9 OCTOBER 2015

Application for relief from unfair dismissal, abandonment of employment, modern award provisions considered, no abandonment, dismissal found, application upheld, no demonstrated financial loss.

[1] In this matter, the applicant Mr Xing Li has filed an application under s.394 of the Fair Work Act2009 (the FW Act) alleging that he was unfairly dismissed by his previous employer Steelco Group Pty Ltd (the respondent/Steelco) a metal fabrication company.

[2] Mr Li’s termination arose from circumstances surrounding his return from a period of annual leave which he spent in China. Mr Li arrived in Australia approximately 10 years ago as a skilled migrant. Mr Li does not seek to be reinstated but to be paid 6 months wages in compensation. The applicant at the time of his alleged unfair dismissal was earning $60,000 per annum. 1

Representation

[3] Mr Li represented himself and was assisted by his wife Mrs Liu who remained outside the hearing room when Mr Li gave his evidence. Mr Li required the assistance of an interpreter to present his case and give evidence as did other witnesses of a Chinese background. Mrs Liu was able to give her evidence without the aid of an interpreter and on occasions during the proceedings made submissions on behalf of her husband.

[4] The respondent sought leave to be represented by Mr Furlan of counsel and leave was granted on the basis that the matter would be dealt with more efficiently taking into account a jurisdictional issue raised by the respondent and the fact that the respondent is a small business employer. 2 The applicant did not oppose Mr Furlan’s application to represent the respondent in the proceedings.

Submissions and Evidence of Mr Li

[5] Mr Li worked for Steelco for five years as a senior installer in a permanent full-time role. Mr Li’s hours of work were 06:30–17:00 Monday to Saturday. He states he was sometimes required to work additional hours.

[6] Mr Li advised that he had been offered another job with an employer known asMega Stone Aluminium Pty Ltd (Mega Stone) in December 2013, a company for whom he had worked previously approximately six years ago. During this job offer no salary or start date was discussed.

[7] Mr Li stopped working for Steelco at the beginning of 2014, as the company had no work at the time. He did not obtain another job and could not recall whether he looked for other work at the time. During the period during which Mr Li was unemployed, he redecorated his house. Mr Li was paid for two of the three months that he was not at work.

Bonuses

[8] Mr Li gave evidence that following the reopening of Steelco in early 2014, Mr and Mrs Lau; the directors of Steelco, spoke to him and said that if he remained working for Steelco for 12 months he would receive a bonus of $40,000. Mr Li’s evidence during the hearing was that he did not respond to this offer and had never heard of such a large amount being paid and doubted that Mr and Mrs Lau could afford to pay the $40,000. Mr Li discussed the $40,000 bonus with his wife. A few days later, Mr Li received a cheque for $10,000 from Mrs Lau which he assumed was related to his good performance.

[9] It was Mr Li’s belief that his dismissal was the result of his employer not being able to afford to pay him the bonus that was promised. 3

Annual Leave September 2014

[10] At the end of March 2014, Mr Li asked for three weeks annual leave to be taken in September 2014 for the purposes of returning to China. The reason for travelling to China related to his parents in law assisting Mr Li and his wife by minding their new-born daughter when Mrs Liu returned to work. The leave was approved by the respondent’s directors prior to Mr Li purchasing an airline ticket to China in April 2014.

[11] Mr Li acknowledged that Mr Lau had previously discussed with him whether he intended to leave Steelco. Prior to taking his annual leave, Mr Lau enquired whether Mr Li was intending on returning to work after his holidays and he replied that he was.

[12] On 5 September 2014 (Mr Li’s last day before commencing leave), Mr Li returned his work keys to Mrs Lau. He did this on the basis that he had previously been asked to return his work keys and that he did not think Mrs Lau trusted him. Mr Li was due to return to work on Monday, 29 September 2014.

[13] Mr Li’s evidence was that he did not receive his holiday pay in the form of a cheque prior to commencing his leave. He felt this was most unusual and phoned the respondent’s director Mrs Lau on the night of 5 September 2014, from the airport. Mrs Lau told him his salary would be paid on his return from leave. Mrs Lau did not state anything else. Mr Li asserted that his wages would normally be placed on a table for him to collect prior to commencing leave. Mr Li’s evidence was that employees are normally paid every fortnight on a Monday except when they proceed on annual leave they are paid on the last day of work prior to commencing leave. Mr Li stated that this occurred on the last occasion on which he took annual leave.

[14] Mr Li stated that he spoke to Chen Pei Wu; a fellow work colleague by telephone while on leave in China. During this conversation he mentioned that he had not received his annual leave wages and that he stated to Mr Wu “I am not going to do it anymore”. Mr Li said this was said as a joke and was often said in the workplace.

Return from China

[15] Mr Li arrived back in Sydney on Sunday, 28 September 2014 4 while his wife remained in China. He stated that his luggage had been lost by the airline and he spent a few hours at the airport dealing with this issue. It was understood that his luggage would be delivered to his home the next day. He did not attend work the next morning at 06:30am as he had become sick the previous evening. Mr Li said that he was suffering from a headache when he got off the plane at the airport and he felt worse that evening, with a fever and a sore throat. His wife, who he telephoned in China told him not to go to work the next day. On the following day, he slept the whole day.

[16] That evening Monday 29 September 2014, Mr Li attempted to contact the directors Alice and Peter Lau by telephone, at 8:05pm and 8:30pm respectively. Neither director answered his calls. The following morning, Tuesday, 30 September 2014, at 6:50am Mr Li again called Alice Lau who said she was in a meeting and would call him back. He states she terminated the telephone call in haste for the first time in five years. Mr Li states he never received a return phone call.

[17] Mr Li did not attend work on Tuesday 30 September 2014. Mr Li stated that during the five years of working for Steelco, the Lau’s had never previously not answered or returned his phone calls. He stated he would often have phone calls with the Lau’s at night after business hours and that Mrs Lau would call him at night mainly to ask that he pick her up for work the next morning, as she did not drive.

Abandonment letter

[18] Later that day on Tuesday 30 September 2014, Mr Li received a note in his mail box to collect a letter from the post office; he did not pay much attention to it but went to the post office the following day, Wednesday 1 November 2014. The letter was from Steelco and was dated Monday 29 September 2014.

[19] The letter was signed by Alice Lau as a director for Steelco and was dated 29 September 2014. The letter was addressed to Mr Li’s home address and stated as follows 5:

“Dear Mr. Li.

Your leave of absence with the Company has ended, however you did not come into work today, nor provide any notice to the company for your absence. We have presumed that you do not intend to continue to work with our Company.

We would like to remind you of the terms of our oral contract with you on the 21 March 2014. We agreed that an additional year–end bonus of $40,000 will be provided to you on the condition that you sign on and continue to work with our company for one full year. You have breached this agreement by not coming into work, as such you are not entitled to the bonus (amount not in pro rata).

Furthermore, please be advised as to the following:

a. Your balance salary is ready to pick up on or after 1 October 2014 during the periods of 7.00am to 11 00am.
b. On 27 March 2014, given the birth of your daughter we advanced $10,000 of the additional year- end bonus in good faith and that you will continue to work with our company for the full year. Since you have breached the agreement, please return the given bonus one week from now in bank cheque or cash. The company will take legal action in the event that there is a failure to return this amount in the form of a bank cheque or cash within the time period.
c. As you were told on 21 March 2014, the reason the Company saw the need to issue this bonus was because the Company is committed to several major contracts. The purpose of the bonus was to ensure the completion of those projects on time, so that the Company will not incur any liquidation damages. Due to your breach of your oral contract, the Company will reserve the right to claim any damages against you in the event it incurs any liquidation damages in future.

Yours Truly

Alice Lau

Director” (signed)

[20] Mr Li stated that as his English language comprehension was poor he needed the use of a dictionary to understand the contents of the letter. On reading and understanding the contents of the letter he then attempted to contact both directors at 5:02pm and 5:03pm and both directors did not answer his calls. Mr Li’s evidence was that the failure to answer his calls was unusual and caused him concern. Mr Li said he did not feel comfortable leaving a message when he phoned the directors as he was unfamiliar with this technology and had never previously used a message service.

[21] Mr Li states that he took the letter as advice of his termination and that the termination was harsh, unjust and unreasonable and that they had refused to pay his annual leave in advance on purpose and had refused to speak to him on his return from leave. Mr Li felt he could never return to work for Steelco.

[22] Mr Li produced his telephone records 6 which showed that he telephoned the respondent’s directors on a number of occasions on Monday, Tuesday and Wednesday that week and his calls were either not answered or returned:

• Alice Lau 8:05pm Monday 29 September 2014
• Peter Lau 8:30pm Monday 29 September 2014
• Alice Lau 6:50am Tuesday 30 September 2014
• Alice Lau 5:02pm Wednesday 1 October 2014
• Peter Lau 5:03pm Wednesday 1 October 2014

[23] Mr Li stated he believed that Mr and Mrs Lau would not answer or return his calls as they wished to terminate him. He stated that he did not think that the Lau’s would be able to pay him the $40,000 bonus but he did not think they would dismiss him.

[24] Mr Li attended the Steelcowork premises on Thursday 2 October 2014, and informed Mrs Lau that he was there for his salary. Mr Lau stated he was not entitled to any pay as he had not provided the required four weeks’ notice.

Subsequent earnings

[25] Mr Li advised that he is now employed by Mega Stone and has been since 6 October 2014 on a casual basis.

[26] Mr Li was cross examined on his earnings since the end of his employment with the respondent and provided payslips relating to his earnings with Mega Stone. Mr Li’s evidence in respect to his earnings was far from satisfactory and it appeared that the payslips tendered during the proceedings were not an accurate record of his earnings 7. He stated he had only been paid twice since being employed by Mega Stone as his pay was accumulated for 6 to 8 weeks before being paid as a lump sum8.

[27] An apparently simple exercise of ascertaining Mr Li’s ordinary hours of work proved to be difficult albeit with the assistance of an interpreter. For example, Mr Li indicated that he had worked some overtime, however the payslips do not demonstrate that overtime is worked as the payslips indicate the same rate is paid each week. Mr Li could not state with any confidence how much overtime he worked with Mega Stone. 9

[28] On 16 October 2014, he received legal documents filed in the Local Court by Steelco claiming from him an amount of $10,000.

[29] On 6 November 2014, Mr Jack Ke, the owner of Mega Stone transferred a company to Mr Li; the company name was subsequently changed to Daxing Constructions Pty Ltd. Mr Li stated he never spoke to Mr Ke about starting his own business, and has not traded under Daxing Constructions Pty Ltd since it was transferred to him. The bank statements for Daxing Constructions Pty Ltd 10 indicated that there was no business transacted since the change of name. Mr Li stated the company was transferred to himself as Mr Ke’s niece did not want it and that it was possible he may operate under it in the future. Mr Li is the sole director and shareholder ofDaxing Constructions Pty Ltd.

[30] Mr Li stated that he had never previously been asked for a medical certificate when absent due to an illness. He stated he would not forgo a promised $40,000 bonus by leaving Steelco. 11

Evidence of Mrs Liu

[31] The applicant’s wife, Mrs Mi Liu provided a witness statement 12 and gave oral evidence in support of her husband Xing Li. Mrs Liu was conversant with the English language. Mrs Liu referred to her husband staying at home for around one month in early 2014 because Steelco had closed temporarily. Mr Li told her that Mrs Lau had requested that he return the company’s keys. In March 2014, Mr Li was asked to return to work as Steelco had reopened. A few days later her husband told her that the directors had asked him to stay and work with them until March 2015 and promised to pay him $40,000 as a bonus. Mr Li told his wife that he did not reply on the basis that Steelcohad recently been closed and he doubted whether they would be able to pay this amount.

[32] In March 2014, their daughter was born and as Mrs Liu needed to return to full-time work she asked her husband to request annual leave in September 2014 to take their child to China for her mother to look after. As the flight to China was 15 hours, Mrs Liu required her husband to assist her on the flight, and believed it would be a good opportunity for her husband to meet her family again.

[33] On Friday, 5 September 2014, Mr Li’s last working day before annual leave, he returned home and said to Mrs Liu it was strange that he did not receive his salary cheque. Mrs Liu said that he needed to check this before they left for China that evening. When her husband rang Mrs Lau that evening at the airport, he told her that Mrs Lau said he would get his wages when he returned to work.

[34] On Sunday 28 September 2014, when Mr Li returned to Sydney Mrs Liu did not accompany her husband as she was to stay in China for another three weeks. He telephoned her that afternoon and told her that the airline had lost a piece of his luggage. Mrs Liu could tell that her husband did not sound well, and he told her he was getting a headache. She subsequently advised him to stay home the following day.

[35] On 29 September 2014, Mr Li telephoned her and said he did not go to work that day as he had a fever and a sore throat, however when he tried to call Mr and Mrs Lau that evening to let them know he would return to work the following day, they did not answer his telephone calls.

[36] Around lunchtime the next day, Mrs Liu telephoned her husband and he sounded very upset. He told her that he had contacted Mrs Lau to tell her that he would be returning to work that morning and she did not let him finish. Rather, Mrs Lau stated she was very busy and would call him back. Mr Li still did not receive any calls after this, which had never happened in the last five years of his employment with Steelco.

[37] The next day 1 October 2014, Mr Li telephoned her sounding agitated and said that he had been dismissed by Steelco in a letter he received from them that morning.

Evidence of Mr Chen Pei Wu

[38] Mr Chen Pei Wu is an employee of the respondent and is a qualified welder and works as an installer for Steelco. Similar to Mr Li, Mr Wu required the assistance of an interpreter. Mr Wu has worked for the respondent for a period of three years during which time he met the applicant and developed a friendship.

[39] Mr Wu did not prepare a witness statement as required by the directions given in this matter, and was ordered by the Commission at the request of the respondent 13, to attend the proceedings. He advised in his evidence that he had not been asked to prepare a witness statement. Although ordered to attend, Mr Wu said he had no concerns about his job security with Steelco and that he was still a friend of Mr Li even though they were no longer working together.

[40] Mr Wu stated that between December 2013 and February 2014 Steelco closed down and he was paid one month’s leave. Between March 2014 and September 2014 there was very little work, however Steelco became busier in mid-October 2014.

[41] Mr Wu recalled receiving a telephone call from Mr Li while Mr Li was on leave on a weekend in mid-September 2014. Mr Li asked Mr Wu about work and the ‘TNT’ job. Mr Wu said to Mr Li that the TNT job was on hold until his return. Mr Wu stated that Mr Li told him that ‘the boss’ had not paid his wages for his holiday and that he did not want to come back to work 14. Mr Wu said he knew nothing about Mr Li’s wages.

[42] Following this telephone conversation, Mr Wu advised ‘the lady boss’ (Mrs Lau) what the applicant had said about not being paid his holiday wages and not wanting to come back to work. On being shown Mrs Lau’s witness statement, he disagreed that he used the phrase ‘was not coming back to work’, as opposed to ‘did not want to come back to work’. Mr Wu maintained this position throughout his evidence and when it was to put directly to him. He disagreed that he had said Mr Li would ‘not’ be coming back to work. Mr Wu, when asked when he had last spoken to Mr Li stated that Mr Li had telephoned him at work and told him that Mrs Lau was not answering his phone calls.

[43] Mr Wu stated that in preparation for this matter he had been asked to sign a written statement prepared by Mr Lau. He was told the statement was related to Mr Li and the Fair Work Commission. The statement was written in English and was read to him by Mr Lau in Cantonese so he could understand what he was being asked to sign. Mr Wu said he asked to take the statement away with him so he could show it to others before he signed it. However, he was not permitted to take the statement with him and was told it was confidential. Upon his request to take the statement with him and his refusal to sign it, Mr Lau, in Mr Wu’s words ‘was in a mood’ and tore up the statement in his presence.

[44] During the hearing Mr Wu was shown a ‘draft statement’ with his name on it by the respondent’s representative Mr Furlan, which he identified as appearing like the statement he was asked to sign by Mr Lau, which was torn up. The statement included an alleged comment that Mr Li had said to Mr Wu on the mobile phone from China that he was ‘not going back to work for Steelco anymore’. Mr Wu’s evidence, while it was at times contradictory which to a degree, can be attributed to the difficulties with the use of an interpreter, confirmed that Mr Li had not said to him he was ‘not coming back to work’ but rather, that ‘he did not want to come back to work’.

Evidence of Mr Liangfeng Li

[45] Mr Liangfeng Li worked for Steelco from January 2009 to February 2014. He was employed as a senior installer and required an interpreter to present his evidence. 15 Mr Liangfeng Li stated that at the end of December 2013, Steelco was closed because of financial problems and all employees were told to stop work on ‘Steve Nolan’ construction sites. In January 2014 he commenced four weeks annual leave and upon his completion of the leave he remained at home as Steelco was closed. Mr Liangfeng Li advised that in March 2014 Mr Lau called him and asked about him returning to work. He declined to return to work as he was not confident of Steelco’s future work prospects. He stated that during his employment with Steelco he received his annual leave wages in advance of taking the leave.

Evidence of Mr Dongjiang Zhang

[46] Mr Dongjiang Zhang gave evidence including a witness statement 16 and required the assistance of an interpreter as his English comprehension was negligible. Mr Zhang had been employed as a casual junior installer and no longer worked for Steelco. During Mr Zhang’s employment, Mr Li was his team leader. Mr Zhang stated he worked between December 2010 and July 2013 and had requested a permanent role, but this was not agreed to by Mr Lau. Mr Zhang states that in July 2013, he asked for one week’s leave to prepare for an English-language test as part of his Australian citizenship application, as he had failed the test on 8 previous occasions. The leave was not granted and Mrs Lau told him if he needed to take a week off he need not return to work.

[47] During cross-examination, Mr Zhang agreed that he had been given time off previously to sit the English-language test but denied asking for a further 10 days off. As a casual employee, Mr Zhang did not receive any paid annual or sick leave.

Submissions of the Respondent

[48] The respondent submitted in its Form F3 Employer Response to Unfair Dismissal Application that it was a small business employer with 5 employees 17 and that it complied with the Small Business Fair Dismissal Code (the Code). At the same time the respondent states that there was no dismissal and that the employee Mr Li abandoned his position with Steelco and that the Commission had no jurisdiction to deal with the unfair dismissal application.

[49] It was put that Mr Li did not attend work on Monday 29 September 2014, contrary to his undertaking prior to commencing annual leave. Due to rumours and what Steelco employee Chen Pei Wu had told Mrs Lau, Steelco believed that the applicant had no intention of returning to work. On this basis, the directors of Steelco drafted and sent a letter to Mr Li on Monday 29 September, stating that they had considered him to have abandoned his employment with the Steelco.

[50] When Mr Li telephoned on Tuesday, 30 September 2014, in lieu of attending work, Mrs Lau did not return his call as she was extremely busy. The following day, Wednesday 1 October 2014, Mr Li did not attend work again, nor did he call in sick or provide reasons for his absence. Steelco relies upon the abandonment of employment clause in the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) which they state applies to Mr Li’s employment with the respondent.

[51] Steelco submits that it reached a reasonable conclusion that Mr Li was not returning to work based on what its employee Mr Chen Pei Wu had told them, together with the applicant not arriving at work at 6:30am on Monday, 29 September 2014.

Witness evidence for the respondent

Mrs Alice Lau

[52] Mrs Lau, a director of Steelcoand wife of fellow director Mr Peter Lau gave evidence via a witness statement and in the witness box. Mrs Lau stated she worked as Steelco’s administrator and was responsible for the payroll, and issuing cheques. 18 Payroll was completed every fortnight. If employees wished to be paid in advance of commencing leave, all they needed to do was to make a request.19 Mrs Lau stated that when employees went on annual leave they normally kept their work keys with them except, when Steelco shut down in early 2014 and did not know when it was to reopen. It was closed between 7 February 2014 and 17 March 2014.

[53] Mrs Lau’s evidence was that on 21 March 2014, there was a meeting between her husband, Mr Li and herself. 20 It was discussed with Mr Li that in return for staying until March 2015, he would receive a $40,000 bonus. This bonus was not offered to anybody else and it was to ensure that Steelco projects undertaken would finish smoothly. Mrs Lau stated that Mr Li shook hands on the arrangement. The $10,000 payment was not referred to in Mrs Lau’s written statement but her evidence was that the payment was made due to Mr Li’s family situation. Mrs Lau’s evidence was that she wrote “another $10,000” as the Lau’s had heard that Mr Li had a new born baby girl. 21

[54] Mrs Lau recalled a conversation with Mr Li on 14 July 2014 at 6:45am where Mr Lau and herself called Mr Li into the office for a meeting. The meeting was to discuss rumours they had heard that Mr Li was going to work for another company called Mega Stone as a subcontractor. During this meeting it was put to Mr Li that he was leaving to work for Mega Stone and Mr Li confirmed his intention to stay with Steelco. 22

[55] Mrs Lau recalled that on 5 September 2014, at around 6:35am Mr Li left his keys in Steelco’s entrance and she questioned why he was returning the keys when he was only going on a three-week vacation. Mr Li did not answer but gave ‘a cold laugh’. Suspecting that Mr Li was not going to return to work for Steelco following his annual leave, Mr Lau and herself called Mr Li in for another meeting and asked whether he intended to return after his leave to which he replied he did. Mrs Lau recalled receiving a telephone call from Mr Li at the airport on the eve of his departure to China where he requested his annual leave pay and Mrs Lau said his pay could be collected when he returned to work.

[56] While Mr Li was on annual leave, employee Mr Chen Pei Wu on 22 September 2014, told Mrs Lau that Mr Li had telephoned him from China on 20 September 2014 and stated he would not be coming back to work for Steelco. Mrs Lau thanked him for this information and then told her husband what had occurred.

[57] On Tuesday, 30 September 2014, at approximately 7:00am Mrs Lau received a telephone call from Mr Li on his mobile asking how Steelco was doing. Mrs Lau replied that she was in the middle of a tool box meeting and asked him to call her back later. Mr Li did not call her back that day or the next. As she was very busy at the time and trying to make sure that there were no delays on projects due to Mr Li’s absence, she did not have time to call him back.

[58] On Thursday 2 October 2014 at approximately 7:00am, Mr Li arrived at work and stated he was there to pick up his wages. He did not ask for his job back and Mrs Lau told him to wait in the lobby while she returned to the office to pick up some documentation. Mrs Lau states that Mr Li was aggressive and used foul language. Her husband Mr Lau arrived and asked Mr Li to calm down. Mrs Lau states that Mr Lau then asked Mr Li why he did not report for work three days ago or call to explain his absence. Mr Li is alleged to have said that the airline lost his luggage and he needed to wait at home on Monday 29 September 2014. Mr Li did not provide any further response. When Mr Li requested his wages, Mr Lau explained that by not showing up to work for three days without providing a doctor’s certificate or valid reason, Steelco considered that he had abandoned his job. And that under the Award the employer can withhold four weeks of pay where notice is not provided. Mr Li was then escorted off the premises by Mr Lau.

[59] In respect to Mr Li’s allegations that Mr and Mrs Lau did not answer his telephone calls on Monday and Tuesday, Mrs Lau stated that as they needed to get up early for work each day at 4:30am, they would have been in bed at around 8:00pm when Mr Li phoned. Further 8:00pm is outside business hours and calls should not be made then. As Mr Li did not leave a message, his telephone calls were not returned. Mrs Lau explained that she answered the phone after 8:00pm on Friday 5 September 2014 when Mr Li called about his holiday pay because it was a Friday evening and she was still up as there was no work the following day. Mrs Lau stated she did not recall Mr Li phoning her on Wednesday at 5:02pm 23 although the respondent’s submissions at point (15) appear to acknowledge this phone call occurring.

[60] The reason Mr Chen Pei Wu was not allowed to take his statement home was because Steelco did not want the statement to be “spread around”.

Evidence of Mr Peter Lau

[61] Mr Peter Lau described himself as the principal, owner and co-director with his wife Alice Lau of Steelco. Mr Lau prepared a number of statements 24 and gave evidence. Steelco closed between mid-February 2014 and mid-March 2014. Mr Lau stated that in May 2014,25 Mr Li had requested three weeks leave to be taken in September 2014, so he could take his daughter back to China to stay with relatives. Mr Lau said that the company had a lot of big projects coming up and the deadlines would be around that time. However, he granted this leave as a special reward for Mr Li’s five-year service and also in light of his personal circumstances.

[62] On 14 July 2014, together with Mrs Lau he called Mr Li into their office for a meeting to discuss rumours regarding Mr Li leaving to work for a company called Mega Stone. Mr Lau reminded Mr Li of the oral agreement for him to work a full year to receive the $40,000 bonus and Mr Li responded that he was intending to work the full 12 month period.

[63] On 5 September 2014, the last working day before Mr Li was to commence his annual leave, Mrs Lau told Mr Lau that Mr Li had just handed back the company’s keys at the company entrance which Mrs Lau thought was very strange. As a result Mr and Mrs Lau called Mr Li into the office and again he stated that he was not leaving and would return to work following his annual leave.

[64] On 22 September 2014, Mrs Lau told him that Chen Pei Wu had advised her that Mr Li had telephoned from China to state he would not be returning to work after his holiday.

[65] Mr Lau stated that he always did his business during business hours and tried not to ring employees after work, and he did not answer calls after normal business hours. 26 He said that he did not receive any phone calls from Mr Li on his return from China but did know that he had rung his wife in the evening.27

[66] On Thursday 2 October 2014, Mr Lau heard shouting from his wife’s office and went to have a look and he saw Mr Li acting in a very aggressive manner and shouting at his wife. He told Mr Li to calm down so they could talk about the situation. He told Mr Li there was an understanding he would report back to work on Monday, 29 September 2014, and questioned why Mr Li did not go into work, and why he did not tell anyone or explain his absence from work. Mr Li said that he needed to wait at home on Monday, 29 September 2014, because the airline had lost his luggage. He asked Mr Li why he did not call Steelco to advise him of the situation. He also made comments to Mr Li regarding making arrangements with the airline for his luggage to be dropped off at work. Mr Li did not reply.

[67] Mr Li then went on to demand his wages. In response, Mr Lau explained that by not showing up to work for three days without providing a doctor’s certificate or valid reason, Steelco considered that he had abandoned his job and under the Award could withhold four weeks’ pay. Mr Li then became aggressive and waved his finger in his face, he was then escorted off the premises.

[68] Mr Lau stated that he would have liked Mr Li to have continued to work for Steelcoand that he needed to cancel one particular job due to Mr Li no longer working for Steelco.

[69] Mr Lau stated that the letter to Mr Li dated 29 September 2014 was not a termination letter if read carefully. 28

[70] Mr Lau’s evidence was that he requested Chen Pei Wu to make a statement in respect to him telling his wife that Mr Li was not returning to work following his annual leave. His evidence was that once Mr Wu refused to sign the statement, he tore it up because it was a confidential document that he did not want passed around. 29

[71] Neither Mr Lau’s witness statements nor his oral evidence addressed the circumstances surrounding the payment of $10,000 to Mr Li by Steelco in March 2014.

Relevant Legislation

[72] Section 394(1) of the FW Act provides that a person who has been dismissed may apply to the Fair Work Commission for an Order under Division 4 of the FW Act granting a remedy for unfair dismissal.

[73] Section 385 of the FW Act provides as follows:

“S.385. A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

(My underline)

Abandonment of employment

[74] In this application, the Commission must first determine whether the applicant was dismissed, as this is not conceded by the respondent. The respondent submits that the applicant abandoned his employment consistent with the Award and was not terminated at the initiative of the respondent. On this basis, the Commission need not have regard to the common law concept of ‘abandonment’ but consider the Award term.

[75] The Award states that an employee may be deemed to have abandoned their employment in certain circumstances:

“21 Abandonment of employment

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 0—“21 Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.”

[76] I do not consider in the circumstances of this case that an abandonment of employment consistent with the award provisions occurred for a number of reasons.

[77] Pursuant to cl.21.1 of the Award, the applicant needs to be absent without consent for a continuous period exceeding three working days. While there is no doubt the applicant was absent for three working days being 29, 30 September and 1 October 2014, the applicant did attend work on day four being 2 October 2014. Although the applicant states he was ready to work, the respondent states that he did not request to work. He was never requested to commence work by the respondent on day four.

[78] Secondly, the applicant did attempt to notify the employer on a number of occasions on 29 and 30 September and 1 October 2014, via telephone to which the respondent for its own reasons declined to respond. A simple phone call by the respondent’s directors would have resolved on the spot the question of whether Mr Li was returning to work. One would have expected this to occur if, as the respondent states; Mr Li’s services were required.

[79] The actions of the Steelco directors in immediately preparing and forwarding the 29 September 2014 correspondence and not answering or returning Mr Li’s telephone calls are indications that the respondent either wanted the employment relationship to end or considered it at an end.

[80] Having regard for Mr Li’s obvious lack of employment law knowledge and need to interpret the 29 September 2014 letter through the aid of a dictionary, Mr Li could only have taken the correspondence to have constituted notification of his termination of employment. As such, Mr Li’s employment was terminated before the abandonment provision of the Award could be considered to have fully operated.

[81] While not determinative, the respondent’s submissions of 6 February 2015, at point 17 make reference to the 29 September 2014 correspondence as “explicitly stating the reason for his dismissal”.

Was the employee dismissed?

[82] An employee, who claims to be a person protected from unfair dismissal, must have been dismissed. The meaning of ‘dismissed’ is defined at s.386 of the FW Act as follows:

“386 MEANING OF DISMISSED
(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.”

[83] Sub-sections 386(2) and (3) are not relevant to this matter.

[84] It is clear that Steelco determined on Monday 29th of September 2014 that the applicant was not returning to work and then proceeded to formalise this in correspondence to the applicant. The correspondence states amongst other things that Steelco;

“… .presumed that you do not intend to continue to work with our company”

and goes on to state

“Your balance salary is ready to pick up on or after 1 October 2014” and finally “Since you have breached the agreement (to stay for 12 months) …”

[85] Mr Li, on reading and attempting to comprehend this letter in my view, reasonably concluded that he had been terminated. He advised his wife who remained in China by telephone of his termination.

[86] At no stage did Steelco ever invite the applicant to return to work, question the applicant whether he was returning to work or offer the applicant further work. For all intents and purposes the employer had concluded that Mr Li was not returning to work and advised him that they considered his employment had come to an end. Also, they made no attempt to verify Mr Wu’s allegations that Mr Li had advised him he would not be returning to work for Steelco. This is demonstrated in Mr Lau’s response when asked why Steelco never contacted Mr Li to ascertain his whereabouts; and Mr Lau responded that this was not done because they did not believe Mr Li was returning to work. 30

[87] Merely holding an erroneous view as to Mr Li’s intentions will not of itself terminate the contract. 31 It is the correspondence advising Mr Li that he had breached his agreement, threatening legal action and advising the applicant that he could pick up the balance of his salary that effected the termination of Mr Li’s employment at the initiative of the employer.

[88] Even if I found that the 29 September 2014 correspondence was not equivalent to a termination letter, it would be open to the Commission to find that the applicant had been constructively dismissed. Understandably, Mr Li did not submit that he had been constructively dismissed as he had difficulty understanding the difference between an employee and a contractor, let alone an abstract concept such as constructive dismissal.

[89] Whether the employer’s intention is a relevant consideration in a constructive dismissal context was addressed by a Full Bench in Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 t/a Commonwealth FinancialPlanning [2011] FWAFB 4038 as follows:

“ [13] It is adequate for us to indicate that we accept that when considering whether an employer has repudiated the contract the test is not the employer’s actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.”

[90] It is clear that on receipt of the correspondence, Mr Li believed he had been terminated, which I find was a reasonable conclusion in his circumstances.

[91] For the reasons provided above, I find that Mr Li was dismissed, as such the Commission has jurisdiction to entertain the application.

[92] Having found a dismissal has occurred, the Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy:

S.396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

(My underline)

[93] Thus in accordance with s.396(c), before considering the merits of the application in this matter, the Commission must decide whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). If the dismissal is consistent with theCode, then it cannot be held to be unfair.

[94] The Code is contained at s.388(2) of the FW Act in the following terms:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[95] This application and the reasons associated with the ending of Mr Li’s employment do not neatly fit with the procedures to be adopted by an employer pursuant to the Code. Based on Steelco adopting the position that the applicant was not terminated, he was not provided with any notice of his termination. Steelco did not provide the applicant with any opportunity to respond to its belief that he had abandoned his position, nor was Steelco’s position a reasonable one to arrive at, without making at least some minimal enquiries with Mr Li including not the least, responding to his telephone calls.

[96] On the basis outlined above, the termination was not consistent with the Code. As such I need to have regard to s.387 of the FW Act.

[97] Section 387 of the FW Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

(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.

[98] I will now consider each of these factors in turn.

(a) Whether there was a valid reason related to capacity or conduct for the dismissal

[99] There must be a valid reason for the dismissal of the applicant which is related to the applicant’s capacity or conduct.

[100] The term “valid reason” was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 32, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, Northrop J comments remain apposite:

“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc.; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’

In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferredand imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”

[101] The conclusion to be drawn from the above decision is that a “valid reason”, means the reason for the dismissal must be sound, defensible or well founded and should not be “capricious, fanciful, spiteful or prejudiced.” This approach has been and continues to be adopted by the Commission.

[102] Where, as in the present case, Steelco relies upon conduct of Mr Li to justify its actions, the Commission must be satisfied that the conduct, as alleged by Steelco has actually occurred. 33 A mere suspicion of conduct does not amount to a valid reason.34

[103] Steelco submits that it was a reasonable conclusion to form in holding that Mr Li was not returning to work. The difficulty with this submission is that Steelco relies on what it states were rumours and what an employee Mr Chen Pei Wu told Mrs Lau, together with the fact that Mr Li did not arrive at work on Monday, 29 September 2014. Steelco submits Mr Li had or was intending to commence work with another company Mega Stone and attempted to demonstrate this through various means. To do this, Steelco made various attacks on Mr Li all of which failed to demonstrate any obvious wrongdoing by Mr Li.

[104] Steelco attempted to demonstrate that Mr Li was engaged in some form by Mega Stone. The respondent requested the Commission order Mr Jack Ke; the director of Mega Stone to attend the hearing. Mr Ke attended the first day of the hearing and waited outside the hearing room all day without being called as a witness. The respondent later advised that Mr Ke was not required as a witness. 35 Mr Ke’s evidence would have been of assistance to the Commission in determining whether he had engaged Mr Li as an employee or subcontractor prior to commencing annual leave; however this evidence was not adduced as he was not called to give evidence.

[105] Steelco further attempted to demonstrate that Mr Li was carrying on a business that had been established or at least arranged for that purpose prior to his commencing annual leave. Bank statements were ordered to be produced at the Commission for this purpose at Steelco’s request. The produced documentation in response to the Order did not demonstrate that Mr Li had been carrying on any business activities.

[106] It was suggested by Steelco that a document purported to be signed by Mr Li did not actually bear his signature. It was put to Mr Li by the respondent’s solicitor that his Tax File Number Declaration 36 document was not signed by himself. The basis for this assertion was that a signature on an Australian Securities and Investment Commission document – Notification of Resolution37 containing Mr Li’s signature looked completely different than the tax document. Mr Li vehemently disagreed that both signatures were not his. Mr Li explained that one signature was a Chinese version and the other was not. The Commission requested that Mr Li sign on a blank page both signatures38 which Mr Li did without hesitation in the witness box. Both versions of Mr Li’s signature, despite doubts expressed by the respondent bore a striking resemblance to those contained in exhibits R21 and R23.39

[107] Steelco relied heavily on what they stated Mr Chen Pei Wu had advised Mrs Lau while Mr Li was on annual leave. I do not find it unusual that an employee may indicate to a fellow employee that they do not wish to return to work from annual leave. This in itself cannot be a valid reason for termination.

[108] It is peculiar for Mr Lau not to allow Mr Wu to have a copy of his own statement and to state that he tore up the statement he prepared for Mr Wu because Mr Wu wished to take it home before signing it. Arguing it was a confidential document that he did not want circulated does not have much merit when the same statement is to be and was tendered in this Commission as a public exhibit.

[109] Even if I accept that Mr Wu told Mrs Lau that Mr Li had stated he was not returning to work from annual leave, this would not justify termination without the employer making some reasonable inquiries to confirm that this indeed was the case.

[110] No inquiries were made and Mr Lau’s reasons for not returning Mr Li’s telephone call made at 5:03pm on Wednesday 1 October 2014 are simply not plausible. Mr Lau’s evidence was that he does not answer phone calls after 5:00pm, although the evidence from Mr Li is that he often worked past 5:00pm. 40 Mr Lau stated he did not return Mr Li’s phone call the next day because he was too busy, which is hardly the action of an employer wanting an employee to be at work to avoid the need to cancel major contracts.

[111] Steelco acted precipitously in concluding that Mr Li had abandoned his employment. The sending of the abandonment of employment correspondence was tantamount to a termination letter and was accepted and understood by Mr Li to be so. Mr Li’s attempt to contact the directors before and after receipt of this correspondence were thwarted by both directors and I accept Mr Li’s submission that the failure to return his phone calls was a deliberate position taken by the Steelco directors.

(b) Whether the person was notified of that reason

[112] Mr Li received correspondence stating that the Steelco had presumed that he no longer wished to work for them.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct

[113] No opportunity to respond to Steelco’s presumption was provided. The actions of Steelco prevented the applicant from attempting to provide any response.

(d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal

[114] This was not a relevant factor.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[115] This was not a relevant factor.

(f) and (g) The size of the enterprise and human resource management capacity

[116] Steelco is a small business employer without dedicated human resource management specialists or expertise. This may have impacted on the process followed in ending Mr Li’s employment relationship with Steelco, but was not proffered in their defence.

(h) Any other relevant matters

[117] I have considered all of the evidence and submissions provided in this matter which due to the English language difficulties of a number of witnesses proved to be both time-consuming and at times difficult to reconcile. I do not accept, as submitted by Steelco that Mr Li’s credit as a witness should be questioned to the extent that Steelco’s evidence should be preferred over Mr Li’s with respect to any controversy, unless it was corroborated.

[118] Steelco raises an issue in respect to Mr Li having discussed his evidence with his wife as witnessed by the director’s son, Mr Robert Sung Ya Lau. Mr Robert Lau deposed 41 that he caught the train home one evening after leaving the Commission and overheard Mr Li and his wife discussing Mr Li’s evidence in Mandarin. I have no reason to doubt that this occurred and have had regard for this fact. However, I did not get the impression that Mr Li’s evidence or that of Mrs Liu’s was contrived to the extent that they corroborated together to mislead the Commission.

[119] I also accept Steelco’s submission that Mr Li’s oral skills in the English language were not as inadequate so as to require an interpreter to answer and translate each and every word of the proceedings. However, it is not uncommon for parties preferring their first language to be spoken when having to answer questions in a witness box under oath or affirmation.

[120] For the above reasons, I conclude that Mr Li was unfairly terminated from employment on the date of receipt of the letter of 29 September 2014 sent from Steelco.

Remedy

[121] Section 392 of the FW Act set out the factors the Commission must have regard for in considering whether a compensation order should issue:

“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

[122] The primary remedy in cases of unfair dismissal is to reinstate an employee. Mr Li has requested compensation of six months wages. The Commission is prohibited from awarding compensation unless it is satisfied that reinstatement of the applicant is inappropriate. Mr Li has obtained alternate employment and does not seek to be reinstated. In any event, his reinstatement is opposed by Steelco and I accept that the working relationship between the parties cannot be re-established.

[123] Section 392(2) of the FW Act requires the Commission to have regard to the “amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation”.

[124] Mr Li has mitigated his loss by finding alternative employment and indeed did so within a remarkably short period. Following receipt of the 29 September 2014, correspondence from Steelco on Wednesday October 1 2014, Mr Li commenced work at Mega Stone the following Monday, 6 October 2014. While Mr Li has stated that his income is now less than what he was earning at Steelco he was unable to demonstrate with any specificity or particularity, exactly what the terms of his remuneration were with Mega Stone.

[125] In the cross examination of Mr Li the following exchange occurred:

“PN2435 … You’ve earned more than this payroll advice indicates but you can’t tell us how much more because you haven’t got any documents and you just can’t remember how much overtime you worked other than in a vague way or how often you worked. Is that right? (through interpreter) That’s true.” 42

[126] Mr Li could not recall how many times he had worked more than five days in a week at Mega Stone. 43

[127] It is clear as discussed above that the payslips tendered by Mr Li were not an accurate reflection of income earned and as such the Commission is not able to determine whether Mr Li has suffered any financial detriment since the cessation of his employment contract with Steelco. 44

[128] Mr Li states that he was entitled to notice and payment for annual leave, these are contractual or statutory entitlements that can be recovered in the appropriate jurisdiction.

[129] In respect of the $40,000 bonus for remaining with Steelco for a period of 12 months ending in March 2015, Mr Li did not directly make a claim in respect of this amount. During Mr Li’s evidence he stated that he never believed that the amount would be paid 45. The respondent’s evidence was that the parties had shaken hands on the arrangement.

[130] I am unable to conclude that any contract was created between the parties as Mr Li on his own evidence which was corroborated by his wife 46 never expressly or impliedly accepted the proposed arrangement. Mr Li stated in evidence:

“PN969 …. We don’t have any contract about the $40,000 bonus. If they refuse to pay 40,000 to me I can’t stop him”

[131] Later Mr Li stated that when the bonus was discussed he never responded or agreed to the proposal. 47

[132] Having found that Mr Li did not ‘abandon’ his employment and that the correspondence sent to him was in effect, notice of termination or at least amounted to a constructive dismissal and while covered by the Small Business Unfair Dismissal Code, Steelco did not comply with the Code. Having found that there was not a valid reason for the dismissal and having considered all the other criteria under s.387, I find that Mr Li was unfairly terminated.

[133] The applicant’s claim that he was unfairly dismissed is upheld. However, for the reasons given above no order for compensation is appropriate in these circumstances as there was no demonstration of any actual compensable loss of remuneration.

DEPUTY PRESIDENT

Appearances:

Mr Xing Li on his own behalf with Mrs Liu

Mr Nicholas Furlan of Counsel for the respondent

Hearing details:

2015

Sydney

18 February

16, 26 and 27 March

23 April

29 and 30 June

 1   1.5 of the respondent’s Employer Response to Unfair Dismissal Application (F3)

 2 Section 596(2)(a) FW Act

 3   PN415

 4   See Exhibit A4 (airline tickets)

 5   Exhibit A8

 6   Exhibit A6

 7   Exhibit R4

 8   PN2248

 9   PN2368, PN2390

 10   Exhibit R6

 11   PN3424

 12   A12

 13   Form F51 Order requiring a Person to attend the Fair Work Commission issued on 3 March 2015

 14   See transcript PN1360 to 1363

 15   Mr Liangfeng Li’s tendered written statement, Exhibit A9

 16   Exhibit A10

 17   PN5536 Steelco had 9 employees at the time of Mr Li’s departure

 18   PN4315

 19   I note that Mrs. Lau did not tell Mr. Li in the telephone conversation they had on the evening of 5 September 2014 that he had not received his annual leave pay in advance because he did not ask for pay in advance, but that he would be paid as per normal on his return.

 20   PN4720

 21   PN4730

 22   PN4720

 23   PN5045-46

 24   Exhibits R15 and R16

 25   Mr Li stated he asked for leave in March and purchased the airline tickets in April

 26   PN5683

 27   PN5684

 28   PN5699, PN5776

 29   Exhibit R16

 30   PN5128

 31   See Dainford Ltd v Eric Kenneth Smith & Anor (1985) 155 CLR 342 at 365-6

 32 (1995) 62 IR 371 at 373

 33   Michael King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)

 34   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1

 35   PN5941

 36   Exhibit R23

 37   Exhibit R21

 38   Exhibit A13

 39   PN5975 –PN6031

 40   PN5830

 41   Exhibit R8

 42  PN2435

 43  PN2425

  44  PN2416

 45  PN3400

  46  See Witness Statement of Mrs Liu, Exhibit A12 at (2), and Transcript PN4730

 47  PN3400

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<Price code C, PR572240>