Mr Youjun Zhang v Seven Star Technology Pty Ltd
[2022] FWC 360
| [2022] FWC 360 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Youjun Zhang
v
Seven Star Technology Pty Ltd
(U2021/8863)
| COMMISSIONER RIORDAN | SYDNEY, 17 MARCH 2022 |
Application for an unfair dismissal remedy
On 5 October 2021, Mr Youjun Zhang (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).
The Applicant was engaged by Seven Star Technology Pty Ltd (the Respondent) as a machine operator and labourer from either 2 March 2020 or 20 July 2020 (the actual date is contested by the parties, but is not relevant to this consideration) until his dismissal on 15 September 2021.
The Applicant claimed that he was dismissed for requesting he be paid his unpaid superannuation entitlements. The Respondent claimed that the Applicant was dismissed for serious misconduct, being repeated personal threats against his Manager, Mr Kainan Huang.
In its Form F3 – Employer Response, the Respondent also raised a jurisdictional objection to the Application on the basis that it is a small business employer and complied with the Small Business Fair Dismissal Code in summarily dismissing the Applicant for misconduct.
The matter was listed for Hearing by Telephone on 25 January 2022. Pursuant to s.592(2) of the Act, both parties were granted leave to be represented in the proceeding. The Applicant was represented by Ms Denise Hawthorne of Morgan Clifford Legal Services. The Respondent was represented by Mr Joseph Yen of Tenacious Law.
The Applicant appeared and gave evidence on his own behalf.
The following witnesses appeared and gave evidence on behalf of the Respondent:
· Mr Kainan Huang, Director of the Respondent.
· Mr Jian Feng He, factory supervisory for the Respondent.
· Mr Xianlu Chen, machine operator and maintenance technician for the Respondent.
· Mr Xiuwei Li – team leader and machine operator for the Respondent.
Statutory Provisions
The relevant sections of the Act relating to an unfair dismissal application are:
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.
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
385 What is an unfair dismissal
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.
see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
“The Code
By legislative instrument dated 24 June 2009, Senator the Hon Mark Arbib, Acting Minister for Employment and Workplace Relations, declared the following Small Business Fair Dismissal Code:
Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
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, 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”
Applicant’s Submissions
Preliminary matters
The Applicant submitted that he was a person protected from unfair dismissal, noting the following:
· He was an employee of a national system employer;
· He was continuously employed by the Respondent from July 2020 until the date of his dismissal, and had therefore completed the minimum period of employment;
· He earned less than the threshold; and
· His employment with the Respondent was covered by a modern award, namely the Waste Management Award.
Reason for the dismissal
In the Application, the Applicant provided a summary explanation of the events of 15 September 2021 as follows:
1.At approximately 12:00noon on Wednesday 15 September 2021, while I was working, my boss, Kainan Huang ("director of the employer") told me that my hourly rate of pay will increase by $1.50 per hour, due to my good work performance. I thanked him.
2.Then I asked him about unpaid superannuation . Mr Huang told me that he had paid my superannuation for the period from April 2021 and July 2021.
3.I said words to the effect of "What about the superannuation for the period from January 2020 and March 2021 ?" He replied, words to the effect of "I cannot pay that, because that was a previous company name and that company is bankrupt."
4.He then said words to the effect of "you can finish up this week and not come back next week".
5.At approximately 5:00pm, I finished my work and I met Mr Huang in the front yard. He then said words to the effect of "you do not need to come back anymore". I asked again about my superannuation. He again said that the previous company "has gone" and he will not pay me. I then told him that superannuation is my money and he has to pay me. We had a verbal argument about this issue. There was NO physical contact.
6.Mr Huang called police. The police attend the site and the police asked me to leave.
7.I consider I was exercising my right of requesting unpaid superannuation at my workplace. There were no problems with my work performance. I was summarily dismissed for exercising my workplace rights. This was an unfair dismissal. It was harsh, unjust and unreasonable.
The Applicant submitted that during the conversation with Mr Huang at around 5:00pm on 15 September 2021, Mr Huang did not provide any reason for dismissal. The Applicant submitted that it was clear to him during that dismissal conversation, that the dismissal was due to him persisting in his request for unpaid entitlements.
In this regard, the Applicant submitted that Mr Huang, the Director of the Respondent, was also the Director of the previous employer in early 2020, being the employer that had failed to pay the Applicant his superannuation entitlements. The Applicant submitted that in these circumstances, the Director of the Respondent was personally liable for the unpaid superannuation, and it was reasonable for the Applicant to request that it be paid. The Applicant submitted that it was both unreasonable and unjust for Mr Huang to refuse to pay his entitlements.
The Applicant submitted that for a summary dismissal to be appropriately carried out, there must have been ‘serious misconduct’ such as theft, fraud, violence and serious breaches of OHS procedures which had not occurred here, only a request for unpaid entitlements. The Applicant therefore submitted that the summary dismissal of 15 September 2021 was harsh due to the summary nature in the absence of any misconduct on the part of the Applicant.
The Applicant also submitted that he was not paid for any time following the dismissal conversation of 15 September 2021.
Warnings
The Applicant submitted that he had never been counselled or warned by the Respondent, for any deficiencies in his performance or conduct. The Applicant submitted that to the contrary Mr Huang had, earlier that day (the day of his dismissal), expressed satisfaction with the Applicant's work performance and given him a wage rise.
Support person
The Applicant noted that he did not request a support person at any time.
Remedy
The Applicant seeks financial compensation of 19 weeks salary, with the condition that the settlement payment must leave Mr Zhang at liberty to claim for underpayment.
Attempts to mitigate his loss
The Applicant submitted that he had attended various work sites to ask if they needed labourers, however he noted that he does not speak any English and therefore there are limited job opportunities for him. The Applicant submitted that he had not found a new job since his dismissal by the Respondent.
Respondent’s submissions
The Respondent submitted that the Applicant was summarily dismissed for misconduct due to threatening violence against Mr Huang on 15 September 2021.
In its Form F3 – Employer Response, the Respondent outlined the exchange of 15 September 2021 as follows:
1.I informed the Applicant of the wage increase to appreciate the performance of all the team members on September 15 2021, around noon.
2.Later that afternoon, around 5 pm, the Applicant asked me about the superannuation payment situation, and I informed him that April to June 2021 period payment is paid and July to September period is organised for payment shortly.
3.The Applicant then asked about the January 20 to March 21 super payment. I advised him that the company operating during this period is under administration. He needs to contact the administrator for more information regarding the payment as I have yet to be advised by the administrator. The Applicant became irritated, raised his voice, and stated that he did not care about who he should speak to; I needed to pay him. I tried to explain the situation, but the Applicant became increasingly irritable. He demanded payment immediately and threatened that he would finish me off if I didn't pay him now. I requested him to leave immediately in hopes that he would cool off and we could discuss the matter another time calmly. He stated that "how dare of you to ask me to leave, I'll finish you off. Let's see." He then walked away into the staff tearoom while yelling and swearing.
4.I was concerned with the applicant mental state and the safety of the plant. Even though I felt threatened and hesitated to go into the production area, I went outside of my office to check on the situation. He confronted me again and threatened to kill me. Fearing my safety, I rang the police for assistance. The Applicant talked to someone on the phone at the same time and requested the person to come and help and stated that he would make a scene. My production manager Ken He assisted me with speaking to the police. We waited at the front gate for police arrival while the Applicant sat at the smoking area.
5.Around 15 minutes later, a black 4WD pulled over. A man and a woman came out of the car. They approached the Applicant. We could not see their movement in the dark, so we became increasingly anxious about what was going to happen and if they carried any weapons. Ken He rang the police again. The police arrived shortly. The officers interviewed both of us and asked the Applicant to leave immediately without return. The Applicant then went under the supervision of the officers.
6.I am seriously concerned about my safety after the incident, especially if the Applicant's is present. Although I was not intended to dismiss the Applicant on September 15, I hold my decision that the Applicant is not fit for his duty as a machine operator with his aggressive behaviour. Hence, the dismissal is inevitable.
The Respondent submitted that at the time of the Applicant’s dismissal, it had 12 employees and was therefore a small business employer. The Respondent submitted that due to the Applicant’s actions on 15 September 2021, it complied with the Small Business Fair Dismissal Code, in summarily dismissing the Applicant for making death threats against Mr Huang.
The Respondent relied on Mr Huang’s evidence and submitted that Mr Huang had asked the Applicant whether he was seriously wanting to kill Mr Huang, and the Applicant had replied ‘yes’.
The Respondent confirmed that in response to the Applicant’s threatening words and behaviour, the summary dismissal was carried out by way of Mr Huang telling the Applicant to leave the factory immediately and never return. The Respondent submitted that the summary dismissal was carried out due to the Applicant’s behaviour by raising concerns about the employer’s safety and also the Applicant’s ability to work safely as a machine operator.
The Respondent submitted that there were three employee witnesses to the events of 15 September 2021, being Mr Jiang Feng He, Mr Xiuwei Li and Mr Xianlu Chen.
The Respondent submitted that any ordinary citizen in Mr Huang’s situation would have perceived the improper behaviour of the Applicant as threatening, especially when this had occurred at close range in a face-to-face situation. The Respondent submitted that the Applicant’s behaviour, which constituted the misconduct, occurred suddenly and without any warning. Therefore, it was difficult to ascertain his “mental status” which had triggered his unacceptable behaviour.
Applicant’s work performance
The Respondent submitted that the Applicant was not dismissed for poor work performance. Mr Huang’s evidence was that the Applicant was a decent worker, and what occurred on 15 September 2021 was ‘strange and unexpected’, therefore, it was impossible for any prior warnings or notice to have been given to the Applicant.
The Respondent noted that prior to the events of 15 September 2021, there had been no work performance issues at all regarding the Applicant.
Size of the business
The Respondent submitted that it is a small business, with no human resources specialists. The Respondent also submitted that a human resources manager could not do anything about violent behaviour, being a matter that is better dealt with by the police.
Remedy
The Respondent submitted that reinstatement would not be an appropriate remedy as the Applicant’s violent behaviour and threats against Mr Huang on 15 September 2021 had reasonably caused Mr Huang to fear for his own safety and the safety of the property at the factory.
The Respondent also relied here on the evidence of Xiuwei LI, the Respondent’s Team Leader, who stated that he had previously had a conversation with the Applicant to the effect that the Applicant planned to resign from his employment with the Respondent.
As to compensation, the Respondent submitted that compensation should only be granted to an “innocent genuine worker who was in effect dismissed by an employer without a proper or a reasonable cause”, which it submitted was not the case here. The Respondent submitted that due to the Applicant’s violent conduct which lead to the summary dismissal, there should be no award of compensation.
Applicant’s Reply Submissions
The Applicant agreed that the Respondent was a small business at the time of his dismissal. However, the Applicant disputed that the Respondent complied with the Small Business Fair Dismissal Code.
The Applicant maintained that he was dismissed after making enquiries about his superannuation entitlements. The Applicant noted that he was not given any warning or a valid reason for his dismissal, nor was he given any opportunity to respond in writing.
The Applicant submitted that after pressing his enquiry as to his unpaid entitlements, he was summarily dismissed at 5pm on 15 September 2021 by being told to leave the property immediately and never return to the workplace. The Applicant restated his earlier submission that for summary dismissal to be justified there must be some serious misconduct, which had not occurred here, only requests by him for payment of his overdue superannuation entitlements.
The Applicant further submitted that he was completely unaware that Mr Huang had ‘phoenixed’ the company until 12pm on 15 September 2021 when he asked about his superannuation entitlements. The Applicant submitted that he had only previously been aware that his workplace had moved to a new location, however the staff, management, and factory equipment had not changed. The Applicant submitted that he had never received any payslips to alert him to this fact.
Consideration
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) (1995) 185 CLR 410 is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[1]
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.[2]
Section 387(a) – valid reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[3]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
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 conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”[4]
I accept the evidence of the Applicant and find that he was terminated for enquiring about his unpaid superannuation. It is not in dispute that the payment of the Superannuation Guarantee is a workplace right, in accordance with section 341 of the Act.
It would appear, prima facie, that the Respondent is guilty of taking adverse action against the Applicant. Relevantly, the Act provides:
“341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …”
…
“342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
As extracted from the table, relevantly:
Adverse action is taken by
1. An employer against an employee
If the employer
(a) Dismisses the employee…”
I have taken this into account.
I am also satisfied and find that the Applicant threatened Mr Huang after he was told not to return to work. I accept the evidence of Mr He that he heard the Applicant say to Mr Huang that he was going “to make him dead”. Whilst I sincerely doubt that the Applicant was going to kill Mr Huang, it was a threat that Mr Huang was entitled to take seriously. Mr Huang rang the Police, who attended the workplace.
I have obtained a copy of the Police Report, however, I am not at liberty to release the content of the Report. It would appear that the Police were able to convince the Applicant to leave the premises and lodge an application to recover his unpaid entitlements. There was no mention of the alleged death threat in the Report. I have taken this into account.
The Respondent claims that the reason why the Applicant was dismissed was because he threatened to kill Mr Huang. I have found earlier that any comment by the Applicant was made after he had been terminated. Based on the obiter in Newton v Toll Holdings,[5] this conduct occurred after the employment relationship had been concluded, therefore, cannot be considered to be the valid reason, or part thereof, for the Applicant’s dismissal. I have taken this into account.
I find that the Respondent did not have a valid reason to terminate the Applicant.
Section 387(b) – notified of the reason
The Applicant was summarily dismissed after asking for his unpaid superannuation entitlement. He was told ‘not to come back the next day’, after asking again for his unpaid superannuation entitlement. I have taken this into account.
Section 387(c) – opportunity to respond
The Applicant was not afforded any opportunity to respond. I have taken this into account.
Section 387(d) – refusal of a support person
As there were no formal meetings prior to the Applicant’s dismissal, there was no opportunity for the Applicant to request a support person and therefore no refusal. I have taken this into account.
Section 387(e) – warning about unsatisfactory performance
There is no dispute that the Applicant was not subject to any prior warnings, and prior to the Applicant’s dismissal, the Respondent was satisfied with his performance at work. I have taken this into account.
Section 387(f) & (g) – size of enterprise and HR staff
The Respondent submitted that it is a small business, with no human resources specialists. I find that the Employer was a small business with less than 15 employees, and therefore the Small Business Fair Dismissal Code is applicable to this situation. I have taken this into account.
Section 387(h) – any other relevant matters
The Respondent claimed that the Applicant’s visa did not allow him to work in Australia and asked the Commission to source the Applicant’s file through the Department of Home Affairs. Further, on the basis that the Applicant was working illegally that he had no rights under the Act and that the Commission should “make it right for all Australians” and dismiss the Application.
The visa status of the Applicant is not the concern of the Commission. If the Respondent believes that the Applicant was working in Australia illegally, then it could have taken steps over the previous 18 months that he was employed. Raising this issue in a hearing appears to be nothing more than a convenient argument by the Respondent. I have taken this into account.
There are any number of inconsistencies in the evidence:
a)The Applicant testified that he worked at least 6 days every week, usually 12 hours per day. Mr Chen testified that he only worked 8 hours per day, but would sometimes work overtime, up to 11.5 hours per day. Mr Chen stated that he was paid a flat rate of pay for all hours worked.
b)The Applicant claimed that his hourly rate was $21.50. His payslips show an hourly rate of $42.65.
c)Mr Huang claimed that these payslips were handed out to all employees by the Accountant every Monday. Mr Lee testified that you would have to collect your payslip from the Accountant’s office, whereas Mr Chen said that the payslips were handed out by Mr Huang.
d)The Applicant asked Mr Huang to provide his last four payslips. I required Mr Huang to provide these to the Commission within the hour after him concluding his evidence. The Respondent only provided 1 payslip during the remainder of the Hearing. A further 3 payslips were provided some hours after the Hearing concluded.
i.The payslip for the week ending 29.8.21 stated that the Applicant worked 40 hours at $42.65/hr (total $1706) plus a weekly fix of $46.75.
ii.The payslip for the week ending 5.9.21 contained the same hours and rate but a weekly fix of $51.00.
iii.The payslip for 12.9.21 had the same hours and rate as above but a weekly fix of $46.75.
iv.The payslip for 19.9.21 had zero payment for salary and wages but a weekly fix of $853.75. I note the Applicant was summarily terminated on 15.9.21.
Clause 13 of the Waste Management Award states that ordinary hours of work are 38 hours per week. It is clear that the Applicant was not receiving any overtime payment for the 2 hours that he worked every week as per his payslip. In reality though, I find that the Applicant was a witness of credit and was working far in excess of 40 hours a week. I find it highly unlikely and incredulous that any unskilled/semi-skilled employee is earning double the award rate of pay, especially where there is no evidence of intensive union activity or an Enterprise Bargaining Agreement. Such an outcome would identify Mr Huang as a very, very generous employer and belies the fact that the Applicant is owed his superannuation from 2020.
I do not regard Mr Huang as a witness of credit. I prefer the evidence of the Applicant.
The transfer of the Applicant’s employment from Seven Star Rubber Crumb Pty Ltd[6] to the Respondent, without documentation or discussion, looks very suspect. There appears to be no change in the business, its operation, its management structure or its employees. The well-known ‘duck principle’ springs to mind, ie, if it looks like a duck, walks like a duck and quacks like a duck then you can safely determine it is a duck. This transfer of business looks suspicious.
Conclusion
I have previously found that the Applicant had already been dismissed when he threatened Mr Huang. As a result, the jurisdictional objection of the Respondent is dismissed.
I am satisfied and find that the Applicant was terminated for enquiring about his unpaid superannuation. The Applicant had a right to enquire about this entitlement. Being terminated for enquiring about a workplace right makes the Applicant’s termination harsh, unjust and unreasonable.
I find that the Applicant was unfairly dismissed.
I now turn to consider the issue of Remedy.
Remedy
The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:
Section 390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
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.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
The Applicant does not seek reinstatement, which is also opposed by the Respondent.
I find that reinstatement whilst the primary remedy under the Act, is not appropriate in this circumstance.
In making an evaluation in relation to compensation, the Commission needs to take into account the provisions of section 392 of the Act. I have taken these provisions into account.
Whilst the incident, where the Applicant threatened Mr Huang, is not relevant to section 392(3) of the Act because it occurred after the employment relationship concluded, I am satisfied that it is a relevant consideration in relation to section 392(2)(g) of the Act. I have taken this into account.
I am in no doubt that the Applicant was upset at being dismissed. His dismissal was unfair and unlawful. However, no matter how unfair or unlawful the termination, no employee has the right to threaten the employer with physical violence. Such behaviour cannot be condoned or tolerated. There is no room in any Australian workplace for this kind of behaviour. I have taken this into account.
Further Matters
However, I am satisfied that the Applicant was significantly underpaid. It would appear that the Applicant was paid a flat hourly rate of pay for a 60-70 hour week. When I asked for the Respondent to provide the last few payslips of the Applicant to the Commission within the hour, the Respondent provided 1 payslip. The remainder of the payslips followed some hours after the hearing.
I have asked the Fair Work Ombudsman to look into this case as a matter of urgency. It would appear that there is a system of discrimination against migrant workers taking place on a weekly basis.
Conclusion
I have previously found that the Respondent did not have a valid reason to terminate the Applicant and that the Applicant’s termination was harsh, unfair and unreasonable.
In relation to remedy, based on the reasons above, I find that the behaviour of the Applicant, after he was terminated, to be of such gravity that no compensation should be awarded, apart from his Award entitlement to notice.
The actions of the Applicant in threatening Mr Huang cannot be condoned or rewarded.
I Order that the Respondent pay two weeks’ compensation to the Applicant.
I so Order.
COMMISSIONER
[1] (1995) 185 CLR 410, 465-7.
[2] (1998) 84 IR 1, 10.
[3] (1995) 62 IR 371.
[4] Ibid.
[5] [2021] FWCFB 3457.
[6] Transcript at PN212.
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