Ms Yi Zhang v Enjoy Going Pty Ltd

[2017] FWC 3776

[2017] FWC 3776

FAIR WORK COMMISSION

DECISION

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

Ms Yi Zhang
v
Enjoy Going Pty Ltd
(U2017/506)

DEPUTY PRESIDENT BINET PERTH, 25 JULY 2017

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

[1] On 17 January 2017, Ms Yi Zhang (Ms Yi Zhang) filed an application (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] By letters dated 18 January 2017 and 7 February 2017, and by emails of 8 February 2017 and 9 February 2017, Enjoy Going were advised that they were required to file a Form F3 Employer response to unfair dismissal application (Form F3). Enjoy Going failed to do so.

[3] The Application was listed for conciliation with a staff conciliator on 10 February 2017 but Enjoy Going failed to participate.

[4] On 15 February 2017, Ms Yi Zhang requested that the Application be joined as a related application and be heard together with the application of Ms Rong Zhang, who had earlier filed an application on 15 December 2016 alleging she had also been unfairly dismissed by Enjoy Going.

[5] 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 Application, no response was received from Enjoy Going.

[6] The Application and Ms Rong Zhang’s application were subsequently listed for a conciliation conference on 23 February 2017 (Conference). Both Ms Yi Zhang and Ms Rong Zhang attended the Conference. Enjoy Going did not appear at the Conference and could not be contacted by telephone, despite several attempts.

[7] On 21 March 2017, both the Application and Ms Rong Zhang’s application 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 Ms Yi Zhang and Ms Rong Zhang file materials in support of their applications in the FWC and serve on Enjoy Going, by close of business, Thursday 30 March 2017. These documents were received by Chambers on 29 March 2017.

[8] The Directions required Enjoy Going to file in the FWC and serve on Ms Yi Zhang and Ms Rong Zhang, 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.

[9] 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 director, Mr Da Zheng (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)

[10] 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.

[11] On 13 April 2017, Ms Yi Zhang and Ms Rong Zhang 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 Application decided on the papers.

[12] In order to determine the Application, I had regard to the following materials filed by Ms Yi Zhang in accordance with the Directions:

● Outline of Submissions


● Witness Statement of Yi Zhang


● Services Agreement – Office Manager


● Email from Mr Zheng to Stakeholders dated 9 December 2016

● Emails between office landlords and Ms Yi Zhang on 16 December 2016 and 12 January 2017

● Emails between Ms Yi Zhang and Mr Zheng between 2 January 2017 and 19 January 2017

● Accommodation Agreements for Enjoy Going Tour Series dated 22 November 2016 and 5 December 2016

● Emails between Crown Perth and Ms Yi Zhang in relation to tour booking cancellations, between 27 October 2016 and 15 December 2016

● Witness Statement of Rong Zhang

● Witness Statement of Xin Li

[13] Ms Yi Zhang says that she commenced employment with Enjoy Going on 1 July 2016 as an office manager.

[14] By way of email from a client of Enjoy Going, Ms Yi Zhang says that she became aware that Enjoy Going would cease operations in Western Australia on 6 December 2016.

[15] On 2 January 2017, Ms Yi Zhang contacted Mr Zheng by email, noting that she had been informed by a client that Enjoy Going had ceased trading in Western Australia and asking him to confirm her employment status in light of the non-payment of her December wages.

[16] Mr Zheng responded that he was unaware of her appointment and asked that she forward her employment contract for him to investigate. Ms Yi Zhang did so.

[17] Mr Zheng emailed Ms Yi Zhang on 19 January 2017, instructing her to provide various business information to him and advising her that:

“As for your subsequent placement, we will liaise with all departments and will notify you accordingly. Before that, please coordinate with my requested work, such as providing the group files.”

[18] On 19 January 2017, Ms Yi Zhang responded that she was happy to coordinate the work as an employee, but asked when the company would pay her December salary. Ms Yi Zhang says that Mr Zheng never replied.

[19] Ms Yi Zhang says that she has not yet received any notice of dismissal but that she has not been paid since that date.

[20] Ms Yi Zhang lodged the Application on 17 January 2017.

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

[22] 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.”

[23] 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.”

[24] 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 Yi Zhang must have completed is six months ending immediately before her dismissal.

[25] Ms Yi Zhang submitted that she signed the Employment Agreement on 1 July 2016, that Enjoy Going ceased trading in Western Australia on 6 December 2017, and she has not been paid since.

[26] It is not clear from the correspondence she has filed if, or when, she was dismissed. If she has not been dismissed, then she cannot make a claim of unfair dismissal. If she has been dismissed, it appears that her dismissal occurred sometime in December, either on or before the date on which Enjoy Going ceased trading, or when her December salary fell due for payment and was not paid. All of these dates are less than six months from the date she commenced employment.

[27] 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.

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

[29] An order to this effect (PR594799) will be issued with this decision.

DEPUTY PRESIDENT

<Price code C, PR594647>