Ms Rong Zhang v Enjoy Going Pty Ltd

[2017] FWC 3876

[2017] FWC 3876

FAIR WORK COMMISSION

DECISION

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

Ms Rong Zhang
v
Enjoy Going Pty Ltd
(U2016/14950)

DEPUTY PRESIDENT BINET PERTH, 24 JULY 2017

Application for an unfair dismissal remedy – minimum employment period – applicant not protected from unfair dismissal.

[1] On 15 December 2016, Ms Rong Zhang (Ms Rong Zhang) filed an application with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging she was unfairly dismissed by Enjoy Going (Australia) Pty Ltd (Enjoy Going).

[2] On 27 December 2016, Mr Da Zheng (Mr Zheng), Managing Director of Enjoy Going, emailed the FWC asserting that Ms Rong Zhang’s employment had not been terminated. According to Mr Zheng, she had been directed to relocate back to China because of a decision by Enjoy Going’s parent company, Hunan Wanda Enjoygoing International Travel Service Co Ltd (Enjoy Going International), to close the Western Australian operations. Mr Zheng sought clarification as to whether, in light of this information, Enjoy Going was required to file a response to Ms Zhang’s application.

[3] By letter dated 18 January 2017, and again by email dated 23 January 2017, the FWC confirmed that Enjoy Going was required to file a Form F3 Employer response to application for unfair dismissal (Form F3). On 23 January 2017, Mr Zheng confirmed that he understood that Enjoy Going was required to lodge the Form F3.

[4] Mr Zheng and Ms Rong Zhang participated in a telephone conciliation with a staff conciliator on 23 January 2017, but the issues between the parties were not resolved. The parties were advised that the matter would be allocated to a Commission Member for determination. On 3 February 2017, Enjoy Going was advised in writing by the FWC that it must file a Form F3 within 7 days. Enjoy Going failed to do so.

[5] Subsequently, on 17 January 2017, Ms Yi Zhang (Ms Yi Zhang) filed an application pursuant to section 394 of theFW Act also alleging she was unfairly dismissed by Enjoy Going.

[6] On 15 February 2017, Ms Rong Zhang and Ms Yi Zhang (Applicants) requested to have both unfair dismissal applications joined as related applications (Applications) and heard together.

[7] Despite attempts on 17 February 2017 and 22 February 2017 by my Chambers to contact Enjoy Going by telephone and email to request a response to the Applications, no response was received from Enjoy Going in relation to the Applications.

[8] The Applications were subsequently listed for a conciliation conference on 23 February 2017 (Conference). Both Applicants attended the Conference. Enjoy Going did not appear at the Conference and could not be contacted by telephone, despite several attempts.

[9] On 21 March 2017, the Applications were listed for hearing on 18 April 2017 for the determination of the merits of the Applications. Accompanying the Notice of Listing were directions (Directions) providing that the Applicants file and serve materials in support of their Applications, by close of business, Thursday 30 March 2017. These documents were received by Chambers on 29 March 2017.

[10] The Directions required Enjoy Going to file in the FWC and serve on the Applicants, by close of business, Thursday 6 April 2017:

● an outline of submissions in response to the Applications;
● signed and dated witness statements for any witness to be called;
● copies of any authorities upon which it relies; and
● a copy of any document upon which it relies.

[11] The Directions were served to the following addresses for Enjoy Going:

By Email

● [email protected] (Email address provided in the Form F2 – Unfair Dismissal Application)

● [email protected] (Alternate Email address provided in the Form F2 – Unfair Dismissal Application and the email address from which Mr Zheng communicated with the FWC)

By Post

● 161B Leake Street, Belmont WA 6104 (Business address provided in the Form F2 – Unfair Dismissal Application)

● 25 Floor, Heiwado Business Building, 88 Huang Xing Road, Chang Sha, Hu Nan, China (Member’s address for Enjoy Going International, as per ASIC listing)

● 29 Tully Road, East Perth WA 6004 (Officeholder’s address, as per ASIC listing)

● Level 1, 100 Havelock Street, West Perth, WA, 6005 (Registered office and principal place of business address, as per ASIC listing)

[12] Enjoy Going did not file any materials in accordance with the dates specified in the Directions. On 11 April 2017, they were reminded that their materials were overdue.

[13] On 13 April 2017, the Applicants confirmed that they did not wish to make any oral submissions and were happy for the matter to be determined on the papers. As a conference had been held on 23 February 2017, and Enjoy Going had not filed any materials contesting the facts in dispute, the hearing date was vacated and the Applications decided on the papers.

[14] In order to determine Ms Rong Zhang’s application, I have had regard to the following materials filed by Ms Rong Zhang in accordance with the Directions:

● Outline of Submissions

● Notice of Appointment and Dismissal from Enjoy Going International

● Executive Services Agreement

● Leave Application Form

● Witness Statement of Yi Zhang

● Witness Statement of Xin Li

● Witness Statement of Zhaohui Liu

[15] In her Form F2 Unfair Dismissal Application (Form F2), Ms Rong Zhang stated that she began working for her employer on 19 March 2014.

[16] However, in her Outline of Submissions, Ms Rong Zhang states that she signed an employment contract with Enjoy Going on 1 July 2016, appointing her Managing Director.

[17] Ms Rong Zhang filed a copy of this contract. Described as an Executive Service Agreement, Clause 2 of the Agreement states that:

“The Employer agrees to treat your employment as having commenced on the Employment Commencement Date for the purposes of accrued entitlements and notice of termination, recognising your previous service with the Employer as an executive for the purposes of your continuous service.”

[18] The Employment Commencement Date is defined in the definition clause as the date specified in Item 2 of Schedule 1.

[19] The date specified in Item 2 of Schedule 1 is 1 July 2016.

[20] Clause 2 appears to imply that Ms Rong Zhang commenced working at some time after 1 July 2016 and her employment start date was backdated for the purposes of calculating her leave accruals.

[21] There is no evidence before me to satisfy me that she, in fact, started employment on 19 March 2014 as asserted in her Form F2, that her service was continuous from that date until her dismissal, or whether the service prior to 1 July 2016 (if any) was with Enjoy Going, Enjoy Going International or some other entity.

[22] According to the Notice of Appointment and Dismissal on 28 November 2016, Ms Rong Zhang was removed from her position as sole Director of Enjoy Going and replaced with Mr Zheng. Ms Rong Zhang was instructed to carry out a handover to Mr Zheng.

[23] According to the witness statement of Mr Zhaohui Liu, in late November 2016, due to an organisational restructure of Enjoy Going’s holding company, Enjoy Going’s Western Australian operations were abruptly shut down and Ms Rong Zhang’s contact was terminated.

[24] According to her Form F2, Ms Rong Zhang was advised of her dismissal on 1 December 2016, and her dismissal took effect on 5 December 2016.

[25] Ms Rong Zhang lodged the Application on 15 December 2016.

[26] An order for reinstatement or compensation may only be issued if the Applicant was protected from unfair dismissal at the time of the dismissal.

[27] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“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.”

[28] Section 383 defines the minimum employment period as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[29] It is not clear from the materials before me whether or not Enjoy Going is a small business for the purposes of section 383 of the FW Act. At the very least, the minimum employment period of employment which Ms Rong Zhang must have completed is six months, ending at the time she was given notice of dismissal.

[30] Ms Rong Zhang submitted that she signed the Employment Agreement on 1 July 2016, and that she was given notice of her dismissal on 1 December 2016. There is insufficient evidence before me to satisfy me that Ms Zhang has completed a period of employment with Enjoy Going of at least the minimum period required for her to be protected from unfair dismissal.

[31] As I am not satisfied that Ms Rong Zhang was protected from unfair dismissal, I must dismiss the Application.

[32] An order to this effect (PR594793) will be issued with this decision.

DEPUTY PRESIDENT

<Price code C, PR594792>