Mrs Dongmei (Monica) Liu v Dr Ray Sunda Trading as Ashfield Dental Clinic
[2010] FWA 9280
•10 DECEMBER 2010
Note: An appeal pursuant to s.604 (C2010/6024) was lodged against this decision.
[2010] FWA 9280 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Dongmei (Monica) Liu
v
Dr Ray Sunda Trading as Ashfield Dental Clinic
(U2010/10437)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 10 DECEMBER 2010 |
Termination of employment
[1] I heard this application on 5 and 7 October 2010 in Sydney. Both parties represented themselves. Ms Liu had the support of an interpreter.
[2] The preliminary issue for determination in this application was whether Ms Liu’s employment was terminated at the initiative of Dr Sunda or whether she abandoned her employment. For the purpose of considering this issue, I am required by the Fair Work Act 2009 (the Act) to consider the following provisions:
“Section 385
What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed...”
and,
“Section 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...”
[3] If I find that Mrs Liu’s employment was terminated on the initiative of Dr Sunda I am required to apply the following provision of the Act:
Section 387
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[4] For the purpose of considering remedy, if appropriate, the following provisions apply:
Section 390
“(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Section 391
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 FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA 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 FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA 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), FWA 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.
Section 392
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), FWA 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 FWA considers relevant.”
[5] When giving her evidence Ms Liu decided to make a statement 1, relying on a document which she had prepared in advance. There was material in Ms Liu’s statement that went to her terms and conditions of employment. I do not intend to deal with those issues in this decision, except to say that many of Ms Liu’s terms and conditions of employment as set out in her contract of employment, particularly those relating to notice and sick leave, were oppressive. In relation to notice I drew this issue to Dr Sunda’s attention in the course of the hearing.
[6] There were a number of other issues raised in the course of the hearing which I also considered were peripheral to the alleged termination of Ms Liu’s employment. This included the attendance by Ms Liu at Royal Prince Alfred Hospital upon the instructions of her supervisor Siema, following a car accident involving a fellow employee, Roya. There was some suggestion that Dr Sunda was critical of Ms Liu for some perceived disloyalty arising from her conduct at the hospital. However, Dr Sunda did not say that he terminated Ms Liu’s employment for this conduct, and his issue with her conduct was never clarified.
[7] Ms Liu identified the matter relied on by Dr Sunda for the termination of her employment, as Dr Sunda’s requirement that she collect a cheque from an ex employee of Dr Sunda who was a dentist. Ms Liu’s evidence was that Dr Sunda required her to obtain a cheque from this person in exchange for his own cheque which she had to provide to the ex employee. Ms Liu’s evidence was that she was told she could not return to work until this cheque had been collected.
[8] After reading the transcript and Ms Liu’s statement I decided that it was counter productive to summarise Ms Liu’s evidence. I have therefore set out below an extract from her statement. She also gave oral evidence in support of her statement.
“16. When Dr Sunda arrived (at about 8:00am) he said to me "Go to the backyard, I have to talk you".(sic)I went with Dr Sunda to the backyard. Dr Sunda said words to the effect of:
‘You do not respect me because you did not introduce me to the Police in RPA hospital. This is like if you and your husband meet your friend and you do not introduce your husband to your friend. Because of this, I can sack you hundreds of times, but now we make a deal. If you take a cheque from me to Dr Li and bring a cheque from Dr Li for me, I will not sack you.’
He repeated "You do not respect me" and also said words to the effect of "You are not royal to me, you do not pick things up immediately when they are dropped".
17. Dr Sunda spoke in a raised voice and appeared angry. I was very worried about being dismissed as I needed my job in order to support my family. I also thought that dropping off a cheque to Dr Li and picking one up from her would be easy and so I replied "Ok, I will do it".
18. I thought that if Dr Sunda and Siema had had trouble contacting Dr Li it might be because they called from the Clinic phone and Dr Li was screening their calls to avoid them, so I called her from my home phone. I attempted to contact Dr Li on numerous occasions between Tuesday, 18 May 2010 and Friday, 21 May 2010 however, I was unable to get in contact with her.
19. During this time Dr Sunda questioned me on a number of occasions in relation to the cheque. For instance, during a lunch break on either Thursday or Friday of that week we had the following conversation:
Dr Sunda Did you make the call to Dr Li yet?
Me Yes, but there's no answer.
Dr Sunda Try again.
Each time Dr Sunda appeared to be annoyed that I had not spoken to Dr Li yet. At some point during those few days Dr Sunda said to me "I’ll give you the cheque on Tuesday to give to Dr Li."
20. I felt that I had no choice but to contact Dr Li outside of my normal working hours as otherwise I may not get in contact with her prior to Tuesday, 25 May 2010. I wanted to make sure that all arrangements regarding the cheque were carried out in time so that I would not lose my job as Dr Sunda had threatened to sack me on Tuesday, 18 May 2010.
21. Over the weekend and the Monday (which I do not work on) Imade arrangements to drop off the cheque. Attached and marked Attachment D is a record of phone calls made from my home phone, with those made to Siema highlighted on page 3 and those made to Dr Li highlighted on page 4.
22. On Saturday, 22 May 2010, I managed to reach Dr Li. I said "call me back as I'm calling your mobile". When she called back we had a conversation to the following effect:
Me I will be sacked by Dr Ray if you do not give me the cheque to give to Dr Ray on Tuesday morning.
Dr Li You can come to my house on that morning and give me the cheque. When I can walk around, I will deposit the cheque. Once the cheque is cleared I will give another one to Dr Ray.
Me I must give another one to Dr Ray or I will be sacked.
Dr Li You can tell Dr Ray he can come to my house to talk, if he likes.
23. I believed that it would be best if Dr Sunda spoke directly to Dr Li about the cheque. Dr Li and I agreed to meet on Tuesday. We had a conversation to the following effect:
Me I will catch the train to your house on Tuesday
Dr Li My house is not near the train station. I will get someone to pick you up. Is there somewhere near me that you are familiar with?
Me Iknow Ikea at the Rhodes Shopping Centre.
Dr Li Ok, but not at Ikea. Downstairs there is a Gloria Jeans coffee shop. Wait there.
Me Ok. I will call Siema and Siema will call Dr Ray and tell him about our
arrangement. Then he can call Siema and Siema will call me. I will call you again to make final arrangements.
24. At 10:48am on Sunday, 23 May 2010 I called Siema to explain the arrangement I had with Dr Li. She said words to the effect of, "I will call Dr Ray. Call me back tomorrow morning."
25. At 11:19am I called Dr Li and said "Siema is calling Dr Ray. I will call you back tomorrow."
26. On Monday, 24 May 2010 I called Siema at 10:05am. She said to me words to the effect of "I'm going shopping, call me back in an hour". At 11:23 I called her back, she said words to the effect of:
"I will not call Dr Ray today as I don't want to ruin my weekend. I will tell him tomorrow. You can tell him that you called me in the evening, at 7:00pm, not that you called me in the morning."
Icalled Siema back at 10:11pm that night as Icould not remember what time Iwas supposed to tell Dr Sunda that I had called her.
27. I contacted Dr Li and said to her, "Supervisor Siema does not want to talk to Dr Ray as it will ruin her weekend. Tomorrow I will come to your house but I do not know when, in the morning or lunch time".
The dismissal
28. On Tuesday, 25 May 2010 Iattended work at Ashfield Dental Clinic. At about 8:10am Siema said to me "Dr Ray called you to his room". Both Siema and 1 went into Dr Sunda's office.
29. 1 spoke to Dr Sunda with Siema present and we had a conversation to the following effect:
Dr Sunda You don't respect me, you are not royal to me, you don't pick
things up immediately. Do you have Dr Li's address?
Me No, we have arranged a place and someone will pick me up from
Gloria Jeans.
Dr Sunda If she did not give you her home address, how can you deliver the
cheque to her?
Me She said she will send someone to pick me up at the coffee shop.
Dr Sunda: If she did not give you her home address, how can you deliver the
cheque to her?
Me If you don't believe me, you or Siema can go with me. Dr Li welcomed you to her house to talk.
Dr Sunda then looked at Siema and said:
Dr Sunda She said that? .... I cannot go to her house.
Me Why?
Dr Sunda I hate her.
Me You can ask Siema to go with me.
Dr Sunda looked at Siema and continued,
Dr Sunda She also hate her.
Me So I can go by myself?
Dr Sunda You don't need to go. You go home and deal with it. Go home and
don't come back until you get the cheque from Dr Li.
Me It has nothing to do with me. Why do you want me to do this?
Dr Sunda Go home and don't come back until you have the cheque.
Following this conversation Siema said to me "I will call you after work".
30. I left Ashfield Dental Clinic and went home. I was very upset and cried on my way home.
31. When I got home I cried to my husband as well. At about 9:30am I called Dr Li. We had a conversation to the following effect:
Me I have been sacked by Dr Sunda because of the cheque. He is being unreasonable. I know nothing about the cheque and it has nothing to do with me.
Dr Li I'm sorry, but even though Dr Ray sacked you I can't give you the cheque. I have to wait until the cheque he is giving me is cleared. I'm sorry this has happened to you.
32. That night I waited until 10:10pm for Siema to call me but she did not. At 10:20 I called Siema at home and spoke to her. We had a conversation to the following effect:
Me Do I have a chance to come back to work?
Siema Dr Ray says you can't come back to work until you get the cheque from Dr Li
Me Does that mean I'm sacked? The cheque has nothing to do with me.
Siema He didn't say you were sacked, just that you can't come back to work until you get the cheque.
Me How can he do this to me?
33. 1 was not paid for the period Tuesday, 25 May 2010 to Friday, 28 May 2010 (inclusive) despite the fact that these were my normal working days and I was ready and willing to attend work as a Dental Assistant if allowed.
34. Between Sunday, 30 May 2010 and Wednesday, 24 June 2010 I was in China on annual leave. This leave had been previously approved by Ashfield Dental Clinic. I received a pay cheque for the leave period in the mail. The whole time I was in China I was worried about being sacked, it ruined my holiday.
35. On Tuesday, 29 June 2010 (which would have been my first day back after my annual leave) Idressed and prepared for work. I called Siema on her mobile at 7:40am (it only takes me a few minutes to get to Ashfield Dental Clinic) and asked "Can I come in to work today?" She replied. "Call me back this evening after I have talked to Dr Ray."
36. 1 called Siema that evening at 8:53pm and again at 9:09pm.. We had a conversation to the following effect:
Me When can I come back to work?
Siema Dr Sunda says if you can't bring the cheque back you can't come back to work.
Me Does that mean I'm sacked?
Siema He did not say he's sacked you, just you can't come back to work without the cheque.
37. I do not recall the rest of the conversation as Iwas very upset. However, Ido remember that during the conversation Siema also said words to the effect of:
"He doesn't want you to come back. He is very angry. Things are terrible. He reduced my pay from $- to $-."
38. I do not remember the exact details of Siema's pay but Iremember it was a cut of $10 an hour.
39. Despite that Siema had said to me that Iwas not sacked I felt as though Ihad been sacked as I really had no way of returning to work as Dr Li would not give me a cheque. I did not understand why I was being treated this way as the cheque had nothing to do with me and banking was not one of my duties. The only reason I could think of as to why Dr Sunda would insist upon me dealing with the cheque is because both 1 and Dr Li are Chinese.
40. Idid not hear from Dr Sunda again in relation to my employment. I hoped that he would contact me to apologise. I have not even received my Payment Summary despite the fact that it should have been provided to me before 14 July 2010.
Response to Dr Sunda's letter of 23 July 2010
41. Dr Sunda did not present me with a list of ten issues regarding my performance on Tuesday, 25 May 2010.
42. He did mention three issues — that I don't respect him, that I am not "royal" to him and that Ido not pick things up immediately in surgery. Ido not know why he said that I do not respect him or that I am not 'royal' to him.
43. The only reason Ido not pick up things that are dropped when we are in surgery is because the set up of the room means they fall between Dr Sunda's legs and Ido not feel comfortable crouching down and reaching between his legs to items
between his feet. Dr Li and Dr Tamara always wait until the end of surgery before getting me to pick things that they have dropped.
44. In relation to having expressed an intention to resign previously, I believe the incident Dr Sunda is referring to occurred in February 2010. Following an argument between Siema and I, Isaid to Dr Sunda words to the effect of, "I want to go, I am sure I will not have any good time here". I did not refer to any "shortcomings" of my own. Dr Sunda encouraged me to stay at Ashfield Dental Clinic and I did until my dismissal.” 2
[9] Ms Liu gave the following oral evidence concerning conversations with Siema on her return from annual leave. Ms Liu tended to use “his” and “her” interchangeably. Where the transcript indicates “The Interpreter” it is a reference to Ms Liu.
“THE INTERPRETER: I thought Dr Ray ruined my holiday. On Tuesday, 29 June, at about 7.40 am, I made a phone call to Siema on her mobile and I asked, "Can I go back to work today?" He or she said, "Call me back during the night. I'm going to talk to Dr Ray about this in a while, so call me back at night." Around 9 o'clock in the evening, I called Siema again and I asked Siema, "Can I come back to work?" Siema said, "Dr Ray said if you cannot pick up a cheque from Dr Lee, then you cannot come back to work." I said, "Isn't this the same as to having sacked me?" Siema said, "The doctor didn't say you are sacked. Rather, without the cheque you cannot come back to work."
Later he said, "Dr Ray is very much upset with you and very much dissatisfied with you, so he does not wish that you will come back to work. Worse still, he downgraded my salary by a margin of $10." 3
(my emphasis)
[10] After Ms Liu had completed her evidence I asked Dr Sunda if he wished to cross-examine her. He asked me to explain the process. The following exchange took place:
“DR SUNDA: Okay. So I should comply with that then.
THE SENIOR DEPUTY PRESIDENT: Well, you should do as you see fit. If you do not put to her that the matters she has put are not correct, then I would have no reason not to accept them.
DR SUNDA: Okay.
THE SENIOR DEPUTY PRESIDENT: Whether you decide to do that or not is a matter for you, and there are matters here about which you will have to give evidence yourself or persons in your employ will have to give evidence, if you wish to contradict what Ms Liu has said; so do you wish to cross-examine her or ask her questions about these matters or put matters to her?
DR SUNDA: Your Honour, I wasn't aware that I had to cross-examine the applicant. I thought that we were both to state our case and your good self was going to make an assessment of the two versions.
THE SENIOR DEPUTY PRESIDENT: I do, but she has given her evidence.
DR SUNDA: Yes.
THE SENIOR DEPUTY PRESIDENT: And as to some things there is no contradictory evidence except what you've put, and about some things you cannot put any evidence. She has given evidence about conversations with your employee Siema which you do not contradict.
DR SUNDA: So if there's something that she's stated that I disagree with, I should - -
THE SENIOR DEPUTY PRESIDENT: Then you should put to her that it's wrong or - either an error or a lie or an inaccuracy of some kind.
DR SUNDA: Yes.
THE SENIOR DEPUTY PRESIDENT: If that's what you think. When you give evidence, she will get to do the same, but if there is evidence here about conversations with persons other than you, well, I have to have some reason not to accept that evidence. Have you sought any legal advice about this matter?
DR SUNDA: No, your Honour. I just responded to the application.
THE SENIOR DEPUTY PRESIDENT: All right. Well, this is a hearing and the way that hearings are conducted is that there is contrary positions put and I do form a view about what is or is not the position; but she has given evidence under oath and if you want to put to her that the matters she has given evidence under oath are inaccurate, then you'll have to cross-examine. It seems to me that you're not in a position to do that immediately, having not prepared, and this matter, in any event, won't finish today, so since another matter that I have listed is settled, I was intending to list this matter on Thursday. That will give you a chance to consider the matter.
There are matters of evidence given by Ms Liu concerning conversations with other persons that you can't give evidence about yourself since you weren't a participant in them.
DR SUNDA: Yes.
THE SENIOR DEPUTY PRESIDENT: You'll have to consider calling that evidence. Would you interpret what I've just said, for the applicant. You did not attend a conciliation initially?
DR SUNDA: No, I didn't not, your Honour.
THE SENIOR DEPUTY PRESIDENT: Is there some reason for that?
DR SUNDA: The conciliation was for a claim for unfair dismissal and I maintain that I did not believe there was a case for an unfair dismissal. The conciliation was - and I put in writing the week before to the department stating that, and I believe that if the aim of the conciliation was primarily for reinstatement for a pre-existing position, I already indicated that and that was the reason - - -“ 4
(my emphasis)
[11] Following this discussion, and after having taken into account Dr Sunda’s lack of preparation, and his uncertainty as to whether he intended to give any evidence himself, put matters in dispute to Ms Liu or call any evidence to contradict her statement, I decided to adjourn the matter from 5 October 2010 to 7 October 2010 to give him an opportunity to consider his position.
[12] On 7 October 2010 Dr Sunda attended and provided a submission. 5 He also asked Ms Liu some questions. At commencement of the cross-examination of Ms Liu I confirmed with Dr Sunda that the document that I had, and its attachment which was Ms Liu’s statement, was the same as the statement which had been provided to him.6
[13] Dr Sunda asked Ms Liu about the statement contained in her application that she had not received any previous complaints about her work performance. He also asked Ms Liu whether she had failed to pick up objects off the floor which had been dropped during dental treatments and he reminded her about an occasion in March 2010, when she had had too much sterilising to do.
[14] Dr Sunda submitted that he had given Ms Liu ten points of concern. 7 Ms Liu denied this and continued to affirm that it was her failure to collect Dr Sunda’s cheque which was the reason for the termination of her employment.
“DR SUNDA: I then told you to go home, advised you to go home and start your holiday early and to have a think about those points.
THE INTERPRETER: Actually you told me to go home and have the whole cheque thing sorted out, otherwise I should not come back.
DR SUNDA: So did I say to you then that, "You're sacked," or, "You're terminated," or, "You're dismissed," or, "You don't have a position here unless you get that cheque for me"?
THE INTERPRETER: You didn't say that you were going to dismiss me, but you say the words with the effect that, "If you don't bring the cheque back, then you should not come back." 8
[15] When Dr Sunda cross-examined Ms Liu about why she did not come back to work on 29 June 2010, she again affirmed her understanding of his position.
“DR SUNDA: So why didn't you come back to work on 29 June?
THE INTERPRETER: Because as you know that on 18 May you made a deal with me that if I don't get the cheque from Dr Lee then I should not come back to work. Actually you didn't say, "You should not come back to work," you actually said on 18 May that you are going to sack me if I don't get the cheque back from Dr Lee. Then on 25 May you said the same thing to me again - actually on 25 May you said to me that, "Yeah, you just go to get the cheque back from Dr Lee, otherwise you should not come back to work." This is what you said on 25 May. So you left me with the impression that whether I'm able to get the cheque back from Dr Lee is really related to whether I'm still able to work here. So that's on 29 June when I came back to Australia, because I didn't have the cheque back from Dr Lee, so I didn't know that - was I still able to come back to work.” 9
[16] Ms Liu’s evidence was that everyone had to go through Siema to communicate with Dr Sunda. 10
“DR SUNDA: So you weren't sure that, you know, you had a job or you didn't have a job? You didn't want to check again? You didn't want to come in personally? You didn't want to ring and talk to me?
THE INTERPRETER: Because as I said on both 18 May and 25 May you actually mentioned to me that if I don't get the cheque back from Dr Lee, then I should not come back work. I've checked with Simea(sic) and Simea(sic) said the same thing. The third occasion when I came back from China on 29 June I called Simea(sic) in the morning to check if I'm still able to work here, and I actually gave a call to Simea(sic) at the same night of the same day to see whether I'm able to come to work. Simea(sic) told me that, "If you don't have the cheque, then you are not able to come back." So actually I made three calls to you on both 25 May and on the morning and the night of 29 June and Simea(sic) told me that, "If you do not have the cheque from Dr Lee, then you can't come back to work." So I think it's pretty clear.” 11
[17] I attempted to assist Dr Sunda by directing his attention to the issues relied upon by Ms Liu. I informed him that I would not stop him asking questions about the matters he was concentrating on, but I told him that I did not think that they went to any issue that was in dispute. Ms Liu’s case was that he gave her a task to collect a cheque and that that task could not be performed and as a result her employment was terminated. I told him that
“......you should put to her that it's wrong or - either an error or a lie or an inaccuracy of some kind.” 12
[18] Despite my encouragement Dr Sunda did not call any witnesses to respond to the allegations made by Ms Liu. He did not call Siema, his office manager. He made a statement of his own 13 and then tendered a submission.14 Dr Sunda’s evidence was very short and failed to deal with the question of whether Ms Liu was told by him and Siema that if she did not get a cheque from dentist Dr Lee that she could not return to work.
[19] Following the conclusion of his evidence I asked Dr Sunda why, if he did not hear from Ms Liu, he did not call her or get someone else to call her. I asked him, if she was not there, and he was unaware that she had contacted his surgery, where he thought she was. He responded that he was expecting her to respond to him after they had had their discussion about her various failings as an employee. Despite this discussion he was expecting her to come back to work on the Tuesday following her annual leave. I asked him if he thought it was appropriate to either call her or have someone else call her. He said that he did not think it was appropriate.
[20] I asked Dr Sunda why, if he was expecting Ms Liu back to work on the Tuesday and, in the meantime he had received a communication from Centrelink, he had not contacted her. He replied that he thought she would have had the courtesy to come and talk to him rather than send a Centrelink document. I asked him whether he had completed and returned the separation certificate, communicated with Centrelink or contacted Ms Liu. He said he had done none of those things.
“DR SUNDA: No, up until that, your Honour, it has been a one-way communication where myself and the supervisor and all other staff have just been talking to her, and not much of a response, you know, in performance or anything else.
THE SENIOR DEPUTY PRESIDENT: Yes, I know but you've got a long-term employee who doesn't come back to work on a day she's expected. You make no steps to find out where she is?
DR SUNDA: No.” 15
[21] Dr Sunda did not deny that the telephone calls Ms Liu said she made to Siema in the morning and afternoon of 29 June took place, although he said that he was not aware of them on that day.
[22] Dr Sunda’s final position was that he did not terminate Ms Liu’s employment and that her job is still available.
[23] I have drawn an adverse inference regarding Dr Sunda’s credibility from his failure to call Siema or any other person in his practice who could corroborate his evidence and support his submission. Regarding the rule in Jones v Dunkel I have set out below a relevant extract from a Full Bench decision of the Australian Industrial Relations Commission:
‘---
[33] The rule in Jones v. Dunkel is a rule of commonsense and fairness in relation to the fact finding process. The rule was considered at length by a full bench of the Commission in Tamayo v Alsco Linen Service Pty Ltd and we respectfully endorse that analysis. The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party’s ‘camp’. However, the rule also extends to an unexplained failure to tender documents within the party’s control. A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case or positively favourable to the opposing party’s case. A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party’s evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.’” 16
[24] Dr Sunda’s failure to call Siema to give evidence in response to the allegations of Ms Liu was particularly telling. This is particularly so since I had made it clear to him that it might be beneficial for him to call witnesses if he wished to contradict the evidence put forward by Ms Liu in this regard.
[25] A failure to call such evidence does not necessarily lead to an adverse inference, but in this case I also found Dr Sunda’s own evidence implausible and I did draw an adverse inference. I accepted Ms Liu’s evidence.
[26] After having considered all of the evidence I find that:
- Dr Sunda allocated a task to Ms Liu which was the recovery of monies from an ex employee of his who was a dentist. There was to be an exchange of cheques. Ms Liu was allocated the task of taking a cheque from Dr Sunda to this dentist and recovering a cheque from that dentist.
- Dr Sunda required Ms Liu to complete that task and recover the cheque, and she was not allowed to return to work unless she had completed that task.
- Ms Liu was unable to complete that task. She delivered Dr Sunda’s cheque but could not persuade the ex employee to give her a cheque.
- On her return from annual leave Ms Liu enquired whether she could return to work even if she had not completed the task allocated to her. Ms Liu communicated directly with Siema, the senior administrative person in Dr Sunda’s practice. Siema told her that Dr Sunda’s instructions were that she could not return unless she had completed her task.
- Siema was a person to whom it was appropriate for Ms Liu to address her enquiry. She was entitled to rely on Siema’s response that she was not allowed to come back to work without completing the task.
[27] I have determined that Ms Liu’s employment was terminated at the initiative of Dr Sunda. She did not abandon her employment.
[28] In relation to s387(a) I have concluded that there was no valid reason for the termination of Ms Liu’s employment.
[29] Dr Sunda’s requirement of Ms Liu that she recover a cheque from another dentist who owed Dr Sunda money was entirely inappropriate. His conduct in refusing to allow her to return to work was entirely inappropriate. His conduct in instructing his office staff to respond to Ms Liu and advise her that she could return to work was entirely inappropriate.
[30] Dr Sunda’s failure to provide Ms Liu with a separation certificate, his failure to make enquiries of Centrelink as to what had happened or to call her regarding the circumstances surrounding her failure to return to work was entirely inappropriate. It was also consistent with him knowing why she had not returned to work.
[31] I am not satisfied that there was any other reason for Dr Sunda to terminate Ms Liu’s employment relating to her conduct or performance, which might be a valid reason for the termination of her employment.
[32] In determining whether a particular termination is harsh, unjust or unreasonable consideration can be given as to whether the penalty of termination is excessive or inappropriate. See Byrne v. Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
“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 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.”
And
“Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable”. 17
[33] The termination of Ms Liu’s employment was harsh because it arose from her failure to perform a task which was inherently unreasonable. It was unreasonable because the task itself was unreasonable. It was unjust because of both of those issues and also because her failure to perform the task did not arise from any failure to make a proper attempt. The decision to terminate her employment was also harsh, unjust or unreasonable because of the lack of any fair procedure applied by Dr Sunda to manage the events leading to Ms Liu’s cessation of employment.
[34] In relation to s387(b) and (c) Ms Liu was advised of the reason for her dismissal in that she was told by Siema of Dr Sunda’s response and the consequences of her failure to collect the cheque. All notifications and opportunities to respond provided to Ms Liu were inadequate. I have had regard to this.
[35] Section 387(d) is not relevant.
[36] In relation to s387(e) Dr Sunda denies that there was any termination of employment. It would therefore be inconsistent for him to rely on unsatisfactory performance for the termination of her employment, although he did make reference in his evidence to some areas of dissatisfaction. Despite this, he does not say he dismissed Ms Liu for these dissatisfactions. I have had regard to this issue.
[37] In relation to s387(f) and (g) it is clear that Dr Sunda’s enterprise is a small one. There is not likely to be any procedures to be followed in effecting a dismissal in his enterprise. There is not likely to be any dedicated human resources management specialists or expertise in his enterprise. I have had regard to this.
[38] In relation to s387(h) I have also had regard to the fact that Ms Liu was refused access to her employment, that she was paid no termination monies and that Dr Sunda failed to communicate with her in a reasonable manner. I do not accept that Dr Sunda was unaware of the circumstances affecting Ms Liu.
[39] I have also had regard to the circumstances surrounding Ms Liu’s employment and the manner in which her employment has been managed in relation to her entitlements. These are not entitlements that can be dealt with before this Tribunal but they say something about the manner in which Dr Sunda’s practice is conducted and that something is consistent with Dr Sunda’s behaviour as testified to by Ms Liu.
[40] Having determined that the termination of Ms Liu’s employment was harsh, unjust or unreasonable I now have to consider what remedy should apply to Ms Liu.
[41] I have considered the relationship between these parties and have concluded that reinstatement would not be appropriate because of the nature of Dr Sunda’s conduct towards Ms Liu. I have concluded that payment of compensation is appropriate in all the circumstances of this case.
[42] I have considered the criteria for deciding the amount of compensation set out in s392(2).
[43] There is no material before me that persuades me that any order I make would have any effect on the viability of Dr Sunda’s dental practice.
[44] I have had regard to Ms Liu’s period of employment. This is a neutral factor.
[45] I have had regard to the remuneration that Ms Liu would have received if she had not been dismissed.
[46] I have had regard to Ms Liu’s attempts to mitigate the loss suffered by her. 18 Ms Liu has not located other work. Despite her evidence regarding her efforts in this regard I consider the mitigation of her loss to be inadequate.
[47] I have had regard to the failure of Ms Liu to earn any remuneration since the termination of her employment.
[48] I have had regard to the manner in which this application has been defended by Dr Sunda. Dr Sunda is an educated person. He did not attend the conciliation for reasons which do not appear to be sensible and, although I am satisfied that he understood the explanations I provided, he consistently failed to respond to the matter at the core of Ms Liu’s application. This was his alleged instruction to Ms Liu to collect a cheque on his behalf and his instruction to her not to return to work until she had achieved that result.
[49] Ms Liu was entitled to be paid notice on termination of her employment. She may also have had other accrued entitlements. These can be recovered in another jurisdiction. I have not included any amount in relation to these entitlements in the order which will issue consequent upon this decision.
[50] I have decided that it is appropriate to order four months compensation to Ms Liu and I do so. I would have ordered the maximum compensation of six months be paid to Ms Liu, except for my conviction that Ms Liu did not do all that was reasonable to mitigate her loss. For this reason I reduced the compensation I would otherwise have ordered payable by two months. An order will be issued concurrent with this decision.
SENIOR DEPUTY PRESIDENT
1 Exhibit Liu 1
2 Exhibit Liu 1 paras 16 - 44
3 Transcript PN 59 - PN 60
4 Transcript PN 69 - PN 94
5 Exhibit Sunda 3
6 Transcript PN 33 - PN 34 - 7 October 2010
7 Exhibit Sunda 1
8 Transcript PN 158 - PN 161
9 Transcript PN 170 - PN 171
10 Transcript PN 174
11 Transcript PN 185 - PN 186
12 Transcript PN 83
13 Transcript PN 226
14 Exhibit Sunda 3
15 Transcript PN 280 - PN 282
16 Xiu Zhen Huang & Rheem Australia Pty Ltd [PR954993] 9/2/05
17 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
18 Exhibit Liu 1 para 45
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504579>
0