Ms Wei Hou v Micro Techno Pty Ltd
[2021] FWC 616
•11 FEBRUARY 2021
| [2021] FWC 616 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal
Ms Wei Hou
v
Micro Techno Pty Ltd
(C2020/5917)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 11 FEBRUARY 2021 |
Application to deal with contraventions involving dismissal - jurisdiction– whether dismissed – whether forced resignation – dismissal found – jurisdiction established
[1] On 29 July 2020 Ms Wei Hou (Ms Hou or the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with her alleged dismissal.
[2] Her former employer, Micro Techno Pty Ltd (Micro Techno, the Respondent or the Employer) opposes the application. It filed a response on 2 November 2020 raising a jurisdictional issue.
[3] As became apparent in subsequent interlocutory proceedings, the jurisdictional issue is that Micro Techno contend that Ms Hou resigned from her employment and was not dismissed.
[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford 1 requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the FW Act before the Commission can exercise powers conferred by section 368. It is thus necessary to determine the jurisdictional issue for Ms Hou’s application to proceed further.
[5] I issued directions on 23 December 2020.
[6] I heard the jurisdictional matter by telephone on 5 February 2021.
[7] Ms Hou was, by permission, represented by a legal practitioner. 2 Micro Techno were represented by its owner and director, Mr James Huang.
[8] I heard evidence from both Ms Hou and Mr Huang. Each were examined on statements filed in advance of proceedings. 3 Documentary material was annexed to the statements. Also marked4 (though not brought into evidence) were earlier bundles of documents sent by both Ms Hou and Micro Techno which relate in part to materials concerning a separate entitlements claim made by Ms Hou in the Federal Circuit Court.
[9] Permission was granted for Micro Techno to submit, following the hearing, a number of documents referred to by Mr Huang in his evidence, which had not been produced. Certain materials were produced by Mr Huang 5. Ms Hou provided a response6.
[10] For both Ms Hou and Mr Huang, each being of Chinese descent, Mandarin not English is their native language. Each gave evidence with varying degrees of assistance from an interpreter.
[11] The evidence of both Ms Hou and Mr Huang was scratchy, in part due to language difficulties, in part due to time having elapsed since the alleged dismissal and in part due to excessive care each took with their narrative. There are significant factual disputes. I approach the evidence of each with caution but where factual differences require determination I tend to prefer the evidence of Ms Hou. Her evidence is more consistent with the documentary material, and was more plausible. Important aspects of Mr Huang’s evidence left implausible gaps, unanswered questions and were at times unconvincing.
Facts
[12] I make the following findings.
[13] Micro Techno is a small repair and service business for mobile hardware (laptops, phones, tablets and i-pads) operated from small kiosks in four shopping centres in Brisbane, including Logan Central and Apsley. Mr Huang is an owner and director.
[14] Ms Hou was employed as a casual employee in the kiosks at Logan Central and Apsley. Her duties were to undertake retail work including making sales, taking customer orders, merchandising the kiosk, completing customer payments and undertaking some repair work.
[15] Ms Hou commenced in January 2019 until her employment ceased in July 2020.
[16] In mid-2020 a significant dispute arose between Ms Hou and Micro Techno concerning the wages and entitlements paid to Ms Hou. Ms Hou alleged that for significant periods she was underpaid, not paid superannuation, was paid in cash and was not provided pay slips or payroll summaries. Mr Huang denies these allegations. They are currently the subject of investigation by the Fair Work Ombudsman and proceedings commenced by Ms Hou in the Federal Circuit Court.
[17] In June 2020 Ms Hou sought advice from the Fair Work Ombudsman concerning her entitlements.
[18] Ms Hou worked regular hours, including on weekends except that she was rostered fewer shifts (and no weekend shifts) in her final weeks of employment.
[19] In order to receive her rostered hours she, like other employees, participated in an internal WeChat (Logan) group established by the Employer. This had been the arrangement since Ms Hou’s employment commenced. Mr Huang would post in WeChat the shifts required to be worked in the following week or period.
[20] Ms Hou worked in the kiosk at Logan Central up to and including 19 July 2020.
[21] Whilst working on 16 July 2020, Ms Hou was spoken to by Mr Huang about a customer complaint. Mr Huang considered Ms Hou to have been at fault in dealing with the customer and her son whereas Ms Hou considered she had made no error. Ms Hou felt that Mr Huang had spoken to her in a bullying manner (a claim denied).
[22] On 18 July 2020 Ms Hou was rostered to work three days in the following week (20 to 27 July 2020) but did not do so.
[23] Having already consulted the Fair Work Ombudsman and still feeling bullied, on 20 July 2020 Ms Hou sent Mr Huang via WeChat a sick certificate for absence between 20 July 2020 and 24 July 2020.
[24] On 21 July 2020, whilst still absent from work, Ms Hou sent Mr Huang a letter via WeChat. The letter read: 7
“Dear James Huang
I am writing to you because I am concerned that I have not received my correct employment entitlements. I made a complaint to Fair Work Ombudsman. Fair Work Ombudsman on my behalf asked you to respond this matter in 48 hours last Tuesday 14 July 2020. You have not discussed this underpayment matter with me yet and these issues have not been fixed. This underpayment matter under Fair Work Ombudsman inspector investigating.
I was employed by you since January 2019
On a Casual basis.
As Retail Employee
My job is covered by the General Retail Industry Award 2010 [MA 000004]. Under the Award, I believe my duties come under the "Retail Employee Level 3" classification. The Award pay rate for a retail employee level 3hourly pay rate is $27.83. I am currently receiving only $18 hourly pay rate. As this pay rate applied from January 2019, I have calculated that I am owed about $66,000 in back-pay.
You can find a copy of the Award and information about pay and other employee entitlements on the Fair Work Ombudsman's website at or by calling the Fair Work info line on 13 13 94.
I ask that you please increase my pay rate.
I am seeking to have all money owed to me paid within 7 days.
I checked my Sun super account you have not pay any superannuation fund to my account yet.
I am happy to discuss this further with you or you can respond by email at [email protected] before Thursday 23 July 2020.
Wei Hou
21 July 2020”
[25] No response was sent by Mr Huang by 23 July 2020 as requested, or otherwise. However, the following day (22 July 2020) the following exchange occurred on WeChat between Ms Hou and Mr Huang: 8
| please stop bulling me. you are always bulling me. i had enough. |
| I say your stomach is full of bad water. Is this wrong? You change a name when you change a work. Don’t you think you are a bad guy? Who knows what your name is, when you started to work, how many hours you have worked, how much you get paid for each hour? These cannot be faked by your bullshit. Okay. I have nothing to talk with you. You will be required to compensate the loss caused by you for the store at the same time.” |
[26] There is a factual dispute as to what then happened. Ms Hou says that she was thereafter, on that day (22 July 2020), removed from the WeChat group and thus unable to read or obtain any future shifts and unable thereafter to communicate with other staff. Mr Huang denies that he then or has ever removed Ms Hou from the business WeChat group. I deal with this further in the body of this decision.
[27] Ms Hou was, after 22 July 2020, unable to contact Mr Huang via the WeChat group. She did not work on 25 or 26 July 2020 despite no longer being sick, as she was not rostered and was waiting for contact from Mr Huang about her employment status following the 22 July text exchange.
[28] On 27 July 2020 Ms Hou decided to send Mr Huang a further letter. It read:
“Dear James Huang
I was employed by you since January 2019
On a Casual basis as a Retail Employee
I had no choice but to resign because
I complained to you and Fair Work Ombudsman that I have not received my correct employment entitlements. You have not properly responded to this complaint via email or WeChat. You created and used WeChat group "Logan" and "Aspley" as a shop managing tool to manage those shop daily operation. I was requested to join and use the WeChat for working task and discuss workplace issues when I began working in your company in 2019.
My wages are often paid seven to ten days late. The week 29 from 13 July to 19 July 2020 wage has not been paid.
I have not received any pay slips for the 2019-2020 financial year and also part of the 2018-2019 financial year.
I have also experienced bullying from you.
I have also not received any superannuation since I started work in January 2019.
Poor working condition when I was work.
My resignation is effective as of 27 July 2020.
Wei Hou
27 July 2020”
[29] Mr Huang did not respond to the letter of 27 July 2020.
[30] Ms Hou was not again rostered, nor did she work for Micro Techno.
[31] There is a dispute whether Ms Hou was paid up to and including her last shift worked (19 July 2020). Ms Hou claims she was not and remains unpaid for this period. This is denied by the Employer.
[32] On 29 July 2020 Ms Hou commenced these proceedings in the Commission alleging that she had been dismissed for having exercised a workplace right in breach of general protections under the FW Act against coercion, undue influence, discrimination and temporary absence from work.
[33] On 11 August 2020 Ms Hou commenced proceedings in the Federal Circuit Court against Micro Techno Pty Ltd seeking recovery of wages and other entitlements.
Submissions
Micro Techno
[34] Micro Techno submit that Ms Hou resigned from her employment on 27 July 2020. There being a resignation, she was not dismissed. As no dismissal occurred, the application under section 365 of the FW Act is not within jurisdiction and should be dismissed.
[35] Micro Techno submit that Ms Hou did not work between 20 and 24 July 2020 because she was sick, and was not offered any rosters after 27 July 2020 because she resigned on that day.
Ms Hou
[36] Ms Hou submits that she was dismissed from her employment by Micro Techno, and accordingly her application is within jurisdiction and must proceed to a conference under section 368 and, if unresolved, the Commission must issue a certificate to that effect enabling further proceedings in the Court.
[37] Ms Hou advances this submission in the alternative:
• that she was dismissed on 22 July 2020 when removed from the business WeChat group and thereafter unable to receive any rosters and was not offered any further shifts. This was a “termination on the employer’s initiative” within the meaning of section 386(1)(a) of the FW Act. Her letter of resignation of 27 July 2020 had no effect because she was dismissed five days earlier; or
• if she resigned from her employment on 27 July 2020 and had not been dismissed earlier, she was forced to resign “because of conduct or a course of conduct engaged in by her employer” within the meaning of section 386(1)(b) of the FW Act, thus meaning that she was “dismissed” for the purposes of the FW Act.
Consideration
[38] Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[39] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact. 9 “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[40] Having raised the jurisdictional issue, Micro Techno bear the onus of establishing that Ms Hou was not dismissed. However, in circumstances where an employee resigns but claims their resignation was, at law, a dismissal an evidentiary burden exists on the employee to establish that the termination fell within one or both of the limbs in section 386(1): termination at the initiative of the employer or resignation forced by the employer’s conduct. 10
Was Ms Hou’s employment terminated on the employer’s initiative?
[41] It is well established that an employment relationship ends when an employee becomes aware of the employer’s decision to end it. 11
[42] It is readily apparent from the evidence that Ms Hou did not work in the business after 19 July 2020 and was not offered shifts beyond those offered on 18 July 2020.
[43] On 18 July 2020 she had been rostered for work for three days in the following week (it would appear, according to the material submitted late by Mr Huang, on Tuesday 21, Thursday 23 and Friday 24 July 12), but was sick and unable to work between 20 and 24 July.
[44] Being a regularly employed casual employee offered shifts of a weekly basis via WeChat (Logan), if Mr Huang did in fact remove Ms Hou from the business WeChat on 22 July 2020 (as alleged) this would, in the circumstances, objectively constitute termination at the employer’s initiative given that no mechanism other than WeChat existed by which work was provided to Ms Hou..
[45] The evidence before me on this issue is contested. Ms Hou formed a belief that she had been removed as her efforts to access the chat site in the period after 22 July 2020 were unsuccessful. That evidence, whilst plausible, is uncorroborated.
[46] There is no reliable documentary evidence that Ms Hou was or was not removed by Micro Techno from the business WeChat group on 22 July 2020. An extract provided by Mr Huang in his late materials which is said to be “screenshots showing applicant still in wechat group” 13 is undated and provides no clarity. Mr Huang’s oral evidence that it is not possible to exclude a person once admitted into the site was unconvincing. Moreover, after the bitter WeChat text exchange of 22 July 2020 in which Mr Huang expressed disdain for Ms Hou, it is entirely plausible that he acted then and there to close down her access – and thereby her employment.
[47] I conclude, on the basis of the evidence of Ms Hou, that it is more likely than not that this is what occurred on or about 22 July 2020. Ms Hou was excluded from the social media site operated, created or used by the Employer to thereafter advise staff of future work and rosters.
[48] If Ms Hou was excluded from WeChat (Logan) on or about 22 July 2020 it was an act of the employer, given that the site was a business site and Mr Huang was its business owner.
[49] Having regard to the fact that:
• Ms Hou was excluded from the WeChat site by Mr Huang on or about 22 July 2020;
• the WeChat site was the mechanism by which Ms Hou was provided work and advised of future casual shifts;
• Ms Hou was absent on certified sickness for already notified shifts on 21, 23 and 24 July (for which she had been notified on 18 July); and
• despite having been regularly employed in the preceding eighteen months, no new offer of shifts occurred after 22 July 2020,
I conclude that Mr Huang’s conduct in removing Ms Hou from the WeChat (Logan) group on or about 22 July 2020 was a dismissal at the employer’s initiative within the meaning of section 386(1)(a) of the FW Act.
[50] Accordingly, Ms Hou was “dismissed” within the meaning of 386(1)(a) of the FW Act.
Was Ms Hou forced to resign?
[51] If the circumstances did not constitute a dismissal under section 386(1)(a), this matter is able to be determined, with an even greater degree of certainty, under section 386(1)(b).
[52] The evidence overwhelmingly supports a conclusion that Ms Hou’s letter of resignation of 27 July 2020 was, objectively considered, forced by the conduct of Micro Techno. I reach this conclusion for the following reasons:
[53] Ms Hou had written a letter of 21 July 2020 to Mr Huang concerning her earlier complaint to the Fair Work Ombudsman about her alleged underpayment and expressing concern that her complaint had not been responded to and that no communication had been made by Mr Huang with either the Ombudsman or herself about the matter.
[54] Rather than respond to the issues raised as requested, and after reading Ms Hou’s text that she considered herself being bullied and had “had enough”, on 22 July 2020 Mr Huang sent a tirade of three messages to Ms Hou alleging that she was a “bad guy”, was engaging in “bullshit” and warning her that she would be required to pay the business for losses and that he had “nothing to talk to you”.
[55] Mr Huang’s evidence 14 as to why he sent these texts rather than address the wages complaint and communicate with Ms Hou after the expiry of her absence for sickness was that he “had a lot of things on his mind” including COVID-19. These are unconvincing explanations and do not detract from the consequences of having sent the texts. I find that Mr Huang did not communicate with Ms Hou between 24 and 27 July 2020 because, as far as he was concerned, if Ms Hou had had “enough” he too had had enough of her as his employee.
[56] Objectively considered, these texts logically and consequentially resulted in Ms Hou no longer considering herself a welcome and accepted member of Mr Huang’s staff. The business owner was berating her in abusive terms the day following receipt of a letter she wrote complaining about his lack of response to her or the authorities about her earlier wage and entitlements complaint.
[57] Not having heard further from Mr Huang about her employment status in the following four days (and in particular hearing nothing on each of the two days following the expiry of her sick certificate) it is entirely unsurprising that Ms Hou then wrote a letter resigning and giving reasons. Six reasons were given:
• non-responsiveness to her wages complaint;
• alleged late payment of wages;
• alleged non provision of pay slips;
• alleged bullying;
• alleged non-payment of superannuation; and
• alleged poor working conditions.
[58] The reasons were exclusively matters relating to her employer’s alleged conduct.
[59] Leaving aside whether the alleged non-payment of wages and alleged bullying are merited allegations (which I have not dealt with), the employer’s non-responsiveness to the wages complaint, coupled with the abusive texts by the employer on 22 July 2020 form an objective basis to conclude that Ms Hou was forced to resign by the conduct of her employer, Micro Techno.
[60] The requisite causal connection between that conduct and the resignation exists. Ms Hou did not choose to leave her employment in a desire to no longer work in the business or having secured work elsewhere. She resigned because of the indifference shown by her employer to her wages complaint and the abuse she then received from the owner in the shadow of having made that complaint. This made the continuation of her employment intolerable. She was concerned to be paid her entitlements and intended to proceed with her claims, whether employed or not.
[61] I do not accept Micro Techno’s submission that Ms Hou resigned because she did not want to work in circumstances where her conduct or performance at work had been questioned by the employer. I accept that Mr Huang raised a concern with Ms Hou about a customer complaint on 16 July 2020, and that this concern may have been raised with him via centre management. However, Mr Huang’s late materials 15 show that centre management raised concerns with him concerning one of his staff on four occasions months earlier (18 May 2020, 12 February 2020, 24 October 2019 and 11 October 2019). It is not clear from those emails whether the relevant employee was Ms Hou, or some other person. Even were it Ms Hou, the evidence establishes that Ms Hou was retained as an employee despite those complaints. There is no reason to believe that Ms Hou resigned her job on the basis of a subsequent customer complaint (substantiated or otherwise). Moreover, two days after their disagreement (16 July) over the most recent customer incident, on 18 July 2020 Mr Huang rostered Ms Hou for further work. Given that, it cannot be objectively said that Ms Hou resigned of her own free will due to customer complaints or legitimate questioning of her work performance.
[62] I am well satisfied that, on an objective consideration of the events of the final week of Ms Hou’s employment, termination of employment “was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign”. 16
[63] Were it the case that Ms Hou had not already been dismissed, I conclude that Ms Hou was forced to resign on 27 July 2020 within the meaning of section 386(1)(b) of the FW Act.
Conclusion
[64] As Ms Hou was dismissed within the meaning of section 386(1)(a) on or about 22 July 2020 and, in the alternative, forced to resign on 27 July 2020 within the meaning of section 386(1)(b) of the FW Act, she was dismissed as a jurisdictional fact.
[65] There being a dismissal, Ms Hou’s application under section 365 of the FW Act is within jurisdiction.
[66] That being so, and as Ms Hou’s application was made within 21 days of the dismissal taking effect, the Commission is required to further deal with the matter.
[67] I will deal with the dispute by conducting a conference of the parties under section 368(2) of the FW Act.
[68] I issue a direction that the conference be held by telephone at 2.15pm (ACST) 16 February 2020. A Notice of Listing accompanies this decision.
DEPUTY PRESIDENT
Appearances:
D Poole, with permission, for Ms Hou
J Huang, on behalf of Micro Techno Pty Ltd
Hearing details:
2021
Adelaide (by telephone)
5 February
Final written materials:
Micro Techno Pty Ltd - 7 February 2021
Wei Hou – 10 February 2021
Printed by authority of the Commonwealth Government Printer
<PR726742>
1 [2020] FCAFC 152
2 Email Chambers - Anderson DP 4 February 2021
3 A1 Statement of Wei Hou 8 January 2021; A2 Statement in Reply of Wei Hou 22 January 2021; A3 Statement of James Huang (undated)
4 MFI1 and MFI2
5 Email 7 February 2021 enclosing four emails, one group settings screenshot and one chat log of unspecified date (collectively marked R2)
6 Applicant’s Response to Produced Documents 10 February 2021
7 A1 Annexure 5
8 A2 Annexure 3
9 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]
10 Australian Hearing v Peary (2009) 185 IR 359 at [30]
11 Mihajlovic v Lifeline Macarthur [2013] FWC 9804; Ayub v NSW Trains [2016] FWCFB 5500
12 R2 18 July 2020 17.31 “Week 30 Coco”
13 Email 7 February 2021 accompanying R2
14 Audio transcript 5.2.2021 11.40am
15 R2 Emails Miles Martin to James Huang
16 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [59]; see also ABB Engineering Construction Pty Ltd v Doumit cited in O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23]
0