Mrs Shanshan Jiang v Aus World Enterprise Pty Ltd T/A Aus World Travel
[2012] FWA 4613
•11 JULY 2012
[2012] FWA 4613 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Shanshan Jiang
v
Aus World Enterprise Pty Ltd T/A Aus World Travel
(U2012/247)
COMMISSIONER CLOGHAN | PERTH, 11 JULY 2012 |
Unfair dismissal.
[1] On 10 February 2012, Mrs Shanshan Jiang (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from her employment with Aus World Enterprise Pty Ltd T/A Aus World Travel (“the Employer”) on 5 February 2012.
[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] The Employer declined to participate in conciliation and the application was referred to me for arbitration on 22 March 2012.
[4] On 26 March 2012, I issued procedural directions for an arbitral hearing on 28 May 2012.
[5] At the hearing on 28 May 2012, Mrs Jiang represented herself and gave evidence on her own behalf. Mr Lee represented the Employer and gave evidence on its behalf. No other witnesses gave evidence. Mrs Jiang requested and was assisted by, an interpreter, Mr Chen.
[6] As part of the procedural directions, both parties provided documentation to the Tribunal which was relied upon and incorporated into the arbitral proceedings. Having received the documentation, heard oral evidence and submissions, I reserved my decision. This is my decision and reasons for decision.
RELEVANT BACKGROUND AND FACTUAL MATTERS
[7] On 24 May 2010, Mrs Jiang was employed by the Employer as a Travel Consultant.
[8] Mrs Jiang has an Advanced Diploma in Business Administration from Hua-La Salle University International Design College and an Advanced Diploma in Travel and Tourism from the Auckland University of Technology.
[9] Mrs Jiang has worked in the travel and tourism industry since 2009 and her resume provided to the Employer included the following:
“Fluent in English and Chinese with the ability to build relationships with a wide range of customers, team members and management.
Service Excellence: Frequently thanks (sic) by customers for my excellent attention to their needs and my passionate service to them”. 1
[10] On 7 October 2011, Mrs Jiang had a conversation with Mr Lee and indicated her intention to resign, “because [in the evidence of the Applicant] I had been under so much stress from unpleasant and difficult customers” 2.
[11] On 14 October 2011, following a telephone conversation with a client, the client requested Mrs Jiang’s name in order to make a complaint.
[12] On 16 October 2011, Mrs Jiang received an email from Mr Lee in which he advised that he had received a complaint from the client referred to in paragraph [11]. Mr Lee sought from Mrs Jiang her explanation of events. Mr Lee concludes his email with the question, “Do you think I should send an apology on your behalf?”
[13] Mrs Jiang responds on the following day (17 October 2011) and explains that she “did nothing wrong” and concludes, “I’m here dealing lot of people like [the customer] I am sorry that I can’t swallowed my anger and carried it on. plz accept my resignation and let me home when our office become relatively quiet” 3.
[14] On 19 October 2011, Mrs Jiang accepted an offer from Mr Lee to transfer to the quieter Willetton Branch. Mrs Jiang commenced at the Willetton Branch on 25 October 2011.
[15] On 2 February 2012, Mrs Jiang dealt with a client who she describes as “particularly difficult and demanding” 4. The conversation was in Mandarin. It is not necessary to go into the details of the conversation but to say that it concluded on the basis that the client stated that she wished to make a complaint to the Manager and Mrs Jiang retorted with words to the effect of go ahead and make a complaint - I’m not afraid, I did nothing wrong.
[16] Subsequent to Mrs Jiang’s conversation with the client, the client made a complaint to Mr Lee. Mr Lee telephoned Mrs Jiang on 2 February 2012 regarding the complaint.
[17] During the telephone conversation on 2 February 2012 Mr Lee became aware that on the previous Monday, 31 January 2012, the Applicant had not attended work due to a medical illness. Mr Lee suggested that Mrs Jiang take some time off work.
[18] At some time on 3 February 2012, Mrs Jiang took time off work.
[19] On 4 February 2012, the Applicant received two telephone calls from Mr Lee.
[20] On 5 February 2012, Mr Lee emailed Mrs Jiang terminating her employment immediately due to the recent complaint which had been discussed in the telephone calls on 4 February 2012. Mrs Jiang was provided with two (2) weeks’ pay in lieu of notice.
[21] Mrs Jiang emailed Mr Lee on 7 February 2012 and she apologised for her late reply. In the email, Mrs Jiang states in response to Mr Lee’s “question” whether she accepts the termination and responds, “I would not take it at this stage” and requests a meeting with him 5.
[22] Subsequently, on 7 February 2012, Mr Lee provided the Applicant with an email, the relevant parts which are:
“You still do not understand and get the point why the company makes this decision to terminate you, because you have failed to provide good customer service and quarrelling in the office and told customer ‘go ahead to complain and I am not afraid of you!’ and this is not the first time being rude to our customers.
Until now, you still send me this letter for not accepting this incident, and I am very sad to hear that you still feel there is nothing wrong and never feel the guilt and make any apology to anyone involved.
There are a lot of problem and issues not just your customer service skills but your personal attitude and behaviour.
Everyone should responsible to what they have said & done.
We have given you a few chances to improve even relocate you from Northbridge store to Willetton store hoping you would improve since last October, unfortunately it didn’t happen and I should have accepted your resignation rather at that point in time.” 6
[23] Mrs Jiang responded to Mr Lee’s email of 7 February 2012 and advised that she is confused regarding his earlier email and seeks to talk to him. Mr Lee subsequently telephoned Mrs Jiang.
[24] Mrs Jiang made her application to FWA on 10 February 2012.
[25] There is no dispute between the parties that the Employer is a small business and the Small Business Fair Dismissal Code applies to the application. Further, neither party argued that the dismissal was a genuine redundancy.
[26] RELEVANT STATUTORY FRAMEWORK
● 381 Object of this Part [Unfair Dismissal]
(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.”
● 385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
● 396 Initial matters to be considered before merits
FWA 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 emphasis)
● 388 The small business fair dismissal code (“the 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.”
[27] The Small Business Code provides as follows:
“Summary Dismissal
...
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 Fair Work Australia, 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.”
[28] The relevant provisions of the Code require that I consider the following:
- Did the Employer give the Applicant a reason for dismissal?
- Was the reason a valid reason having regard to the Applicant’s conduct or capacity?
- Was the Applicant warned that she risked being dismissed if there is no improvement? and
- Did the Employer provide the Applicant with an opportunity to respond to the warning and give her a reasonable chance to rectify the problem(s), having regard to the Applicant’s response?
[29] In considering the matters in paragraph [28], it is also necessary that I have regard to the procedural matters in the Code.
APPLICANT’S CASE
[30] The Applicant denies that she conducted herself inappropriately with a client on 14 October 2011. Further, that the Employer “took no disciplinary action in response to the complaint” 7.
[31] The Applicant submits:
● The client who made the complaint on 2 February 2012 was “rude and offensive” 8.
● There was no valid reason for the dismissal which was connected to Mrs Jiang’s capacity or conduct.
● The Employer did not warn the Applicant that the quality of her customer service skills placed her employment at risk.
● The Employer did not give Mrs Jiang any reason to think that her employment was at risk.
● Mrs Jiang has not received any warnings concerning her performance.
● Mrs Jiang was not alerted to any performance inadequacies.
● Mrs Jiang was not given any training to manage aggression or hostility from clients. Further, the Employer failed to remediate any weaknesses it believed she had, or clearly articulate its expectation of Mrs Jiang with regards to client service.
● Finally, Mrs Jiang states that Mr Lee had attacked her personal integrity and that she was not given the opportunity to discuss her dismissal with him on or about 7 February 2012.
EMPLOYER’S CASE
[32] The Employer submits that it conducted an interview with the Applicant after each customer complaint.
[33] Following a complaint and the Applicant offering her resignation, the Employer relocated Mrs Jiang to another office, “to give her another chance” 9.
[34] After relocating to another office, the Employer received another complaint concerning the Applicant’s “unfriendly and unhelpful services” 10.
[35] Following this complaint, the Employer telephoned Mrs Jiang and advised her it was considering terminating her employment.
[36] After a meeting of the Employer’s Directors, a decision was made to terminate Mrs Jiang’s employment with immediate effect and with two weeks’ pay in lieu of notice.
[37] The Employer gave evidence, which was confirmed by Mrs Jiang in her written witness statement and oral evidence, that she requested that the dismissal be changed to her resigning from her employment.
[38] Following further exchanges between the parties, the Employer expanded upon its reasons to dismiss Mrs Jiang in email correspondence dated 7 February 2012 and which is reproduced in paragraph [22].
[39] The Employment Separation Certificate which had been required by the Applicant on 6 February 2012 states that Mrs Jiang was dismissed for “unsatisfactory work performance” and “misconduct as an employee” 11.
[40] The Employer submits that in relation to the Small Business Fair Dismissal Code:
● there as a valid reason to dismiss Mrs Jiang as her conduct was not consistent with that expected of her as an employee;
● the Employer raised with the Applicant her conduct immediately after each complaint was received;
● the Applicant’s conduct damaged the Employer’s image and relationship with its clients;
● the Applicant was given an opportunity to respond about her conduct and attitude;
● it became apparent to the Employer that when the Applicant was unable to respond to a customer’s queries, she became annoyed at questions of the client; and
● the Employer formed the view that the Applicant was unable to meet representations she had made in her resume when applying for the position.
CONSIDERATION
Small Business Fair Dismissal Code
[41] Section 396 of the FW Act requires a determination whether the dismissal of Mrs Jiang was consistent with the Code before considering the merits of the application.
[42] In my view, it would be inappropriate to apply a “tick the box” approach to compliance with the Code.
[43] Some aspects of the Code lend themselves to a “checklist” approach such as number of employees, and whether the employee has been in employment for 12 months or more. However, whether an employee has been dismissed for a valid reason requires an assessment of the facts and evidence; it is not a concept that lends itself to a “yes” or “no” tick.
[44] The Parliament requires the Tribunal to determine, in the first instance, whether the dismissal of Mrs Jiang was consistent with the Code. In doing so, Parliament recognises that small businesses are genuinely different in nature both organisationally and operationally to larger employers. Such businesses are less affected by formal human resources and face, informally, the need to get the job done on a day to day basis. Parliament has acknowledged this different set of circumstances and modified the concept of fairness for small business in the Code.
[45] The Code should be construed so as to reflect what is ordinarily reasonable in a small business taking into account all the circumstances of the dismissal. What is ordinarily reasonable accords with the objects of Part 3-2 of the FW Act which is to balance the needs of business and employees, and ensure that a “fair go all round” is accorded to all concerned parties.
Did the Employer give the Applicant a reason for dismissal?
[46] On 5 February 2012, Mr Lee advised Mrs Jiang:
“This is our official termination letter effective immediately due to the recent complaints as discussed on 04 Feb 2012...and we will provide wage for next two weeks being for the two weeks notice.
Please kindly let us know if this is correct and accepted...”
[47] On 7 February 2012, Mrs Jiang responds:
“Sorry for the late reply. You’ve asked me whether I accept the termination. I’ve thinking about it and I’d like to say I would not take it at this stage...”
[48] On 7 February 2012, Mr Lee responds to Mrs Jiang’s email immediately above, in part, as follows:
“You still do not understand and get the point why the company makes this decision to terminate you, because you have failed to provide good customer service and quarrelling in the office and told customer ‘go ahead to complain and I am not afraid of you!’ and this is not the first time being rude to our customers.
There are lot of problem and issues not just your customer service skills but your personal attitude and behaviour.
We have given you a few chances to improve even relocate you from Northbridge store to Willetton store hoping you would improve since last October, unfortunately it didn’t happen and I should have accepted your resignation rather at that point in time.
Unfortunately, our management has made this decision with basis and if you do not accept this termination you may seek for further assistance from Work Fair Australia.”
[49] The Applicant in her originating application to Fair Work Australia on 10 February 2012 stated that the reasons for her dismissal provided by the Employer was:
“because of a recent complain (sic) manager says I have failed to provide good customer service.”
[50] I am satisfied that, in accordance with the Code, the Employer provided a reason to Mrs Jiang, and she clearly understood, why her employment had been terminated.
Was the reason a valid reason having regard to the Applicant’s conduct or capacity?
[51] Mrs Jiang did not suggest, and there was no evidence to the contrary, that her dismissal was for anything other than the complaints by clients and that she allegedly provided “unfriendly and unhelpful service” 12. It was not submitted by the Employer that this conduct and performance occurred with all clients but sufficient for the Employer to decide or agree to relocate Mrs Jiang from Northbridge to Willetton in October 2011. While it was disputed who initiated the transfer to another office, it is clear that it was in response to the Applicant’s recent conduct and performance. In addition, Mr Lee gave evidence that the Applicant’s inability to work under pressure with highly demanding customers created conflict in the office13. Two dimensions which cannot be overlooked immediately prior to the first complaint: firstly, the Applicant expressed a desire to resign, because of the stress of the job; she felt like a “candle which was about to exhaust”14. Shortly after proposing to resign, the Employer received its first complaint regarding Mrs Jiang’s conduct. When asked to respond to the complaint, Mrs Jiang stated in an email, “...I am sorry that I can’t swallow my anger and carried it on. plz accept my resignation.”15
[52] The second dimension relates to the fact that Mrs Jiang provided in her resume that she was “able to work in high pressure and demanding environments and deliver high quality results according to deadlines and management expectations”. Further, in relation to service excellence, Mrs Jiang contends that she was frequently thanked for her excellent attention to clients’ needs and “my passionate service to them” 16. For the Employer, there increasingly became a disconnect between Mrs Jiang’s stated capacity in her resume and her performance at the workplace.
[53] The email correspondence between the parties in evidence is that in October 2011 when the customer complained of Mrs Jiang being “rude” and “unhelpful” and her potential to “ruin the whole company’s reputation”, Mr Lee suggested that he send an apology on behalf of the Applicant. Given the opportunity to respond to the complaint, Mrs Jiang stated that she did nothing wrong and it was unnecessary to send an apology.
[54] Following the second complaint in February 2012, Mr Lee spoke to two other consultants before telephoning the Applicant regarding the incident. Evidence regarding this telephone conversation is minimal as the issue of the Applicant’s medical condition was discussed. Nevertheless, in the hearing, the following exchange took place between myself and Mrs Jiang:
“But you've just said to me that you've just said to a customer, "Go ahead. I'm not afraid if you make a complaint"?---Yes, because something happened before in between customer and me.
“Would you agree with me that that's not good customer service?---I don't agree.
“So you think it's fine for an employee to say that to a customer?---In normal case we shouldn't say that but I saw a lot of public area that says if you yelling out the employees or if you treat them very badly we – we can ask you to leave. So because she treated me very, very badly that's why I said it's kind of threaten that's why I said, "I'm not afraid of your complaint. I did nothing wrong".” 17
[55] In my view, “valid” should be given its ordinary meaning, that is: “sound”, “defensible” or “well grounded”. The Employer, notwithstanding the relocation of Mrs Jiang to a quieter office, had now become the subject of a second customer complaint in a relatively short period of time. Further, in the most recent complaint, Mrs Jiang invited the customer to make a complaint because she felt she had done nothing wrong. It is non controversial to state in a personal service industry, especially the travel sector, that the relationship between client and travel consultant is crucial to the business’ reputation and repeat customers.
[56] Any realistic discussion of work personal relationships must recognise that there are easy and difficult customers. Difficult customers are a fact of life.
[57] The Applicant, in applying for the position, portrayed herself as competent and able to work in “high pressure and demand environment and deliver quality results to deadlines and management expectations”.
[58] Clearly, customer complaints can have a considerable adverse impact on a business, especially a small business. Mr Lee was faced with the situation of balancing the potential accumulation of further complaints, and possible harm to the Employer’s business, and dismissing Mrs Jiang. Mr Lee came to the conclusion that Mrs Jiang had to leave the business and I am satisfied that his reasons were sound, reasonable, considered and well grounded.
Was the Applicant warned that she risked being dismissed if there was no improvement?
[59] Mr Lee gave evidence that although he did not, “actually use any strong words or letting you [Mrs Jiang know] there would be a risk of terminations, but I was hoping that you were able to improve” 18. Mrs Jiang pressed this weakness in her case - and I agree it is a weakness for the Employer. However, I consider it appropriate to give weight to the evidence of how Mr Lee manages the business and his express desire to avoid conflict in a small business. Further, the fact that the Applicant attempted to resign following the first complaint and sought, when dismissed in February 2012, for it to be converted to resignation demonstrates that she was aware that client complaints of a serious kind were incompatible with the continuation of the employment relationship despite the fact that Mr Lee did not use “strong words”.
[60] While a larger employer, with dedicated Human Resources personnel may have approached Mrs Jiang’s performance and conduct in a more structured way, this is a business of 12 employees including Mr Lee as Manager. It is clear from the evidence that Mrs Jiang is uncomfortable when dealing with difficult and aggressive people. From the evidence, the Applicant recognised this discomfort and on two occasions attempted to resign; in doing so, I infer that she reached the conclusion that there was a mismatch between her personality and the demands of her role. I am also satisfied that when complaints were received, the Employer raised them with Mrs Jiang and, while more explicit warnings and assistance in managing difficult clients, may have been of benefit, I agree with Mr Lee, in his closing submissions, that Mrs Jiang has to be responsible for what she did and not blame it on others; those sentiments apply irrespective of whether dedicated human resource specialists are able to assist in the procedures.
Did the Employer provide the Applicant with an opportunity to respond to the warning and give her a reasonable chance to rectify the problem(s) having regard to the Applicant’s response
[61] Mr Lee gave evidence that he conducted an interview with Mrs Jiang after each customer complaint; this assertion was not contradicted by the Applicant.
[62] While Mrs Jiang takes issue with various human resources aspects of her employment which led to her dismissal, she did not complain that she was denied the opportunity to respond to customer complaints concerning her performance.
[63] After the customer complaint in October 2011, Mrs Jiang relocated to the Willetton office. This was an opportunity to rectify and improve her performance when dealing with difficult customers in a quieter environment. Notwithstanding the relocation, a further complaint was received in a relatively short timeframe after the relocation.
[64] It is uncontested that the Applicant did not have a support person present during the discussions on 2 and 4 February 2012. However, this issue was first raised by Mrs Jiang in her submission to the Tribunal. No evidence was presented to the Tribunal that the Applicant sought, or was denied, a support person. In any event, the provisions of the Code relating to this issue are permissive not mandatory.
[65] Finally, I consider it relevant to address Mrs Jiang’s comments that the dismissal was unfair because the Employer persuaded her to remain in employment after she attempted to resign. I draw from those circumstances a different view to the Applicant’s conclusion. For the Tribunal, the Employer was willing to work with Mrs Jiang to realise her potential, however, despite this, Mrs Jiang reached a threshold point in her ongoing employment when she made it clear to a customer that she did not care whether the client made a complaint about her conduct. This behaviour was wilful and deliberate and inconsistent with Mrs Jiang’s contract of employment.
CONCLUSION
[66] In conclusion, for the reasons set out above, I am satisfied that the Applicant’s dismissal was consistent with the Code. Accordingly, pursuant to s.396 of the FW Act, I am required to dismiss the application and issue an Order to this effect.
COMMISSIONER
Appearances:
Mrs Jiang, the Applicant.
Mr Lee, for the Respondent.
Hearing details:
2012:
Perth,
28 May.
1 Exhibit R1
2 Exhibit A4 paragraph 2
3 Exhibit A3
4 Exhibit A4 paragraph 8
5 Exhibit A3
6 Exhibit A3
7 Exhibit A1
8 Exhibit A1
9 Exhibit R1
10 Exhibit R1
11 Exhibit R3
12 Exhibit R1
13 PN 299
14 Exhibit A4
15 Exhibit A3
16 Exhibit R3
17 PN 163-165
18 PN 139
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