Ngu Phan v GJK Facility Services Pty Ltd T/A GJK Facility Services

[2017] FWC 721

[2017] FWC 721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ngu Phan
v
GJK Facility Services Pty Ltd T/A GJK Facility Services
(U2016/8960)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] Mr Ngu Phan was employed by GJK Facility Services Pty Ltd from 4 July 2015 until 26 July 2016. Mr Phan alleges he was unfairly dismissed. GJK alleged that Mr Phan resigned his employment.

Mr Phan’s evidence¹

[2] In oral evidence Mr Phan said that sometime before his dismissal he had been given a letter written in English. He said that he discussed it with his co-workers and he understood that the contract that he was engaged to work on was coming to an end because GJK had lost the tender. He knew that there would be redundancies and that there may be redeployment. He said he did not ask his children to translate this letter but relied on his discussions with his co-workers. He also gave evidence that he expected that he would lose his job because other employees had received letters offering them redeployment and he had not.

[3] Mr Phan said that on or about 25 June 2016 he was told by his supervisor, Mr Nenad Nikolic, that he would be moving to a new site and that the work at that site would need to be done by one person.² Mr Phan was at that time working with another cleaner. He said, unlike other workers, he was given nothing in writing about the new position. On 27 June 2016, he attempted to call the new site supervisor to discuss the new position and on 28 June 2016 he sent him a text message.³ These calls were not returned.

[4] On 28 June 2016, he said he asked Mr Nikolic if he could visit the site to find out about the work and was told no.⁴

[5] On 1 July 2016, he arrived at work at 9am. He said he was late because he went to the doctor but he could not get in. He said he spoke to other workers about the job but cannot recall speaking to the supervisor.⁵

[6] Mr Phan received a phone call from Mr Nikolic. Mr Phan said he was told to go to a meeting at another site. At that meeting were Mr Nikolic and Mr Eduardo Reyes, a site supervisor with Mr Greg Waterman the contract manager on the phone. He was told that the work would be done by one person. He said he told Mr Nikolic that the work could not be done by one person. He said he did not understand all the managers were saying. He said that Mr Waterman told him not to go to work on Monday. He said he was asked if he would resign and that they would prepare the redundancy. He said that during the meeting Mr Waterman was yelling and he felt nervous, anxious and scared.⁶

[7] Mr Phan said he was not told at this meeting that there would be any additional assistance for him to enable him to do the work.

[8] He said he did not know what redundancy was.⁷

[9] On 4 July 2016, he attended a meeting and he was given a document. He said he was not told what it was. He said it was put in front of him with the top of the page covered by Lenny’s hand. He said he was told he had to sign it. After he signed it Lenny took it away and filled in the details by hand.⁸ He asked Lenny about his redundancy and he did not say anything.

[10] After he had returned home he was contacted again and asked to return. He was given another handwritten piece of paper. He said he was told to sign it. He said Lenny told him over the phone that he needed to write why he could not do the work on site. He said Lenny told him what to write. He said he did not know it was a resignation letter.⁹

Evidence about Mr Phan’s ability to understand English

[11] Mr Phan gave evidence that he cannot read English and that he can only understand some oral English.¹⁰ It was his evidence that his son and daughter assisted him to understand documents that are written in English.

[12] Mr Vuong Phan¹¹ gave evidence that if Mr Phan received correspondence he would ask him or his sister to translate for him. If he was shopping Mr Phan would ask him to translate product information. He said his father can speak some English but cannot understand complicated or technical terms. Mr Vuong Phan said at the beginning of July his father asked him what redundancy meant and he explained the term to him. Mr Vuong Phan said that he did not have a full understanding of the term.

[13] Mr Vuong Phan was not cross examined on his evidence.

[14] In his application for employment Mr Phan advised that his level of spoken English was intermediate and his written English was intermediate.

[15] His resume advises that he is bilingual in Vietnamese and English.

[16] Mr Phan accepted that this information was not correct. He said he had misrepresented his proficiency in written and spoken English as he needed to do so to obtain employment. He said he had sufficient English to perform his work.

[17] GJK submitted that Mr Phan’s willingness to provide false information meant his evidence before the Commission should not be preferred. The difficulty with this submission is that no alternative version of events was presented by any witness to those events.

Evidence of GJK

[18] Mr Phan was employed as a cleaner.¹² In May 2016, Mr Melville, the National HR/IR Manager, became aware of changes to GJK contractual arrangements which meant that Mr Phan was to be retrenched.¹³ However instead of retrenching Mr Phan on 24 June 2016 Mr Phan was offered a new position at another site. Mr Phan was due to commence working at the new site on 1 July 2016.¹⁴

[19] Mr Phan signed a resignation letter which was prepared for him. Mr Phan wrote on the prepared letter “I can’t do in one person + illness”. Mr Phan gave evidence that he had no illness which would have prevented him doing the work. He said that he anticipated that if he did the work he would become ill.

[20] Neither Mr Reyes, Mr Nikolic nor Mr Waterman gave evidence in the proceeding.

[21] GJK made detailed submissions in this matter however those submissions relied upon evidence that was not before the Commission.

Initial questions to be determined

1. Did Mr Phan resign his employment?

[22] I am satisfied that Mr Phan did not resign his employment on 4 July 2016. I accept his evidence that he did not understand the two documents he signed and that he only signed them so that he would be paid the money he was entitled to. He accepted that he knew his employment had ended but he only understood it was a resignation letter when advised by Centrelink.

2. Was Mr Phan’s employment terminated by the GJK

[23] Mr Phan had been offered and accepted redeployment. When he did so he knew that it was a one person job. However after accepting this position he became concerned about his ability to perform the work. He sought further information about the position but none was forthcoming. He asked to visit the site but this was request was denied. When asked why he didn’t at least try the job, he said that he did not think his health would permit it.

[24] On 1 July 2016, Mr Phan was rostered to work and did not attend work at the required starting time. Further he did not contact his employer to advise that he would be late. There was no evidence that when Mr Phan arrived at work that he was directed to perform work and that he refused. Instead he was directed to attend a meeting at another location.

[25] Whatever was said to Mr Phan at the meeting on 1 July 2016 it is clear that he did not understand that while he was expected to work by himself that there would be additional assistance if needed. Further while he understood that the issue of him resigning his position was raised at the meeting on 1 July 2016 he understood that if he would not take the job he would be made redundant. Mr Phan said that Mr Nikolic accepted that he had to pay redundancy.

[26] I am satisfied Mr Phan’s evidence that there was no further information given to him about the new role at the meeting on 4 July 2016. At that meeting he was asked to sign a document he could not read and did not understand. This was also true of the second document he signed.

[27] GJK submitted that Mr Phan had repudiated his contract of employment by refusing to perform work as directed and that the documentation merely formalised a decision already taken by Mr Phan through his refusal to undertake his assigned work.¹⁵

[28] I am satisfied that Mr Phan’s employment was terminated at the initiative of the GJK on 4 July 2016. It was terminated because Mr Phan would not perform the job he had accepted. It was Mr Phan decision not to accept the job that resulted in GJK determining that the relationship needed to end. However that does not mean that he resigned. GJK terminated his employment and it gave effect to that decision by preparing the resignation documents for Mr Phan to sign.

Was the termination of employment harsh, unjust or unreasonable?

[29] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[30] GJK terminated Mr Phan’s employment because he refused to do the job he had accepted. It was put that Mr Phan’s refusal to perform that work was reasonable as the work could not be done safely.

[31] There was no evidence on which I could conclude that the work could not be performed safely. Mr Melville gave evidence that most of the work performed by its employees was not done in pairs and he was not cross-examined about this evidence.

[32] It was submitted that Mr Phan’s fears could have been allayed if it had been explained to him that there would be additional support available if needed.

[33] It was submitted that even if Mr Phan’s conduct was not appropriate GJK should have disciplined him rather than draw up resignation papers.

[34] It was submitted by GJK that Mr Phan was a highly regarded employee and he had been offered and accepted an alternative role. If he had not done so he would have been retrenched. He would not have been entitled to redundancy pay because he had less than 1 years’ service. If he had not refused to do the work he would have remained in employment. It was said that no action was taken immediately upon his refusal and he was given the weekend to think about his decision. However he maintained his position. GJK submitted that Mr Phan’s refusal to perform the work meant that his employment ended.

[35] I accept that a refusal by an employee to perform work as directed would usually support a finding that there was a valid reason for the dismissal. However the circumstances here are not straightforward. Mr Phan sought and was provided with no information about his new position except that he would be doing the work alone. He raised concerns about whether this was possible.

[36] There is no evidence that Mr Phan was given a direction to perform work on 1 July 2016. He attended the site on 1 July 2016, albeit late and he was told to attend a meeting which he did.

[37] I am satisfied on the evidence before me that there was no attempt by GJK to address Mr Phan’s concerns about the job on 1 July 2016.

[38] He was then directed not to attend work on 4 July 2016 but directed to attend a further meeting, which he did. I am further satisfied that on 4 July 2016, GJK neither sought to address these concerns raised at the earlier meeting nor directed him to perform work. It simply moved to terminate Mr Phan’s employment, albeit by getting him to sign a resignation letter.

[39] I am therefore satisfied on the evidence before the Commission that Mr Phan did not refuse to perform work as directed and I am therefore not satisfied that at the time of the dismissal there was a valid reason for the dismissal.

s387(b) whether Mr Phan was notified of that reason;

[40] As there was no valid reason for the dismissal Mr Phan could not have been notified of the reason. In any event Mr Phan was never told that if he did not perform the work his employment would be terminated.

s387(c) whether Mr Phan was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[41] Because he was not notified of the reason for the dismissal he was not provided with an opportunity to respond.

s387(d) any unreasonable refusal by the employer to allow Mr Phan to have a support person present to assist at any discussions relating to dismissal;

[42] Mr Phan did not ask for a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Phan had been warned about that unsatisfactory performance before the dismissal;

[43] The dismissal did not relate to unsatisfactory performance.

s387(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;

[44] It was put that this is large business and no submissions were made that its size would have any impact on the procedures followed.

s387(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;

[45] GJK has a National HR/IR Manager. There was no evidence that he was consulted about what happened prior to the termination of Mr Phan’s employment.

s387(h) any other matters that the Fair Work Commission considers relevant.

[46] It was put that the dismissal was harsh because of the impact on Mr Phan. As a result of the “resignation” Mr Phan was denied Centrelink benefits from 4 July 2016 until 16 September 2016. As a result Mr Phan lost his rental subsidy.

[47] Further Mr Phan has developed health issues as a result of the dismissal and has been unable to seek alternative work. While no medical evidence was called to support Mr Phan’s evidence he was not questioned about this and I accept his evidence on this point.

Conclusion

[48] I am satisfied that the termination of Mr Phan was unjust and harsh.

[49] Mr Phan was an acknowledged good employee. I accept that GJK was attempting to find Mr Phan alternative work. If Mr Phan had not accepted that offer he would have been made redundant and he would not have received any additional payment because of his length of service. This made what happened even more surprising.

[50] GJK did not call any witnesses who were involved in the dismissal to give evidence. Mr Melville explained that this was because of a mix up in the dates and that one of the proposed witnesses no longer worked for the company. Mr Melville did not ask that the matter be adjourned to enable the remaining witness to give evidence. In those circumstances there is no evidence of why the GJK representatives at the meeting did not properly explain the new position to Mr Phan. Mr Phan’s evidence makes clear that the GJK representatives became impatient with his concerns about the job. Mr Waterman who was on the phone was yelling. In those circumstances it is not surprising that a person with Mr Phan’s level of English proficiency became nervous, anxious and scared.¹⁶ It was clear from his evidence that had he known that support was available he would have continued in his employment.

[51] I accept that Mr Phan misled his employer about his proficiency in English but this does not cause me to doubt his evidence particularly as no evidence was called to contradict his version of events.

[52] Further there was no evidence that, despite having a number of non-English speaking employees, GJK took any steps to ensure that written communications or more complex oral communications were understood by employees. It was clear that Mr Nikolic at least understood that Mr Phan had difficulty with written English as he assisted him complete a leave application form and “the notice of termination”. In addition Mr Phan was provided a pre-prepared hand written “resignation letter”. In those circumstances and given Mr Phan’s obvious concerns about the new position, greater care should have been taken to ensure he understood what was being said to him about the position and the assistance that would be available to him.

[53] The decision to characterise the dismissal as a resignation further made the dismissal harsh because it meant Mr Phan was treated by Centrelink as having voluntarily left his employment and therefore he had a longer waiting period before he could receive benefits which also impacted on his rental subsidy.

Remedy

[54] Mr Phan is not seeking reinstatement of his employment.

[55] I am satisfied that therefore that reinstatement is not appropriate and that an order for compensation is appropriate in all the circumstances.

[56] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[57] There was no evidence that any order would have any effect on the viability of the GJK’s enterprise.

(b) the length of the person’s service with the employer;

[58] Mr Phan was employed for less than one year. Despite his short period of service, I am satisfied that no adjustment down is warranted.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[59] It was submitted that but for the termination Mr Phan would have remained employed as at the hearing date and beyond. Mr Phan had already been out of work for seven months at the date of the hearing. I am satisfied that he would have remained in employment for a further year after his dismissal. Mr Phan earned $1,498.62 per fortnight plus superannuation. Had he not been dismissed he would have earned $38,964.12 plus $3,701.59 in superannuation in the 12 months after his dismissal.

[60] I accept that submission about how long he would have remained in employment. Mr Phan was an acknowledged good worker. There is no reason to believe that he would have left this position. His evidence was that he had difficulty finding work and given his age and English proficiency it is unlikely he would have voluntarily left his employment.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[61] Mr Phan gave evidence that he registered with a job network but was excused from his obligation to find work because of his health. It was his evidence that he had no health issues prior to this dismissal, but his dismissal has caused him to become unwell. This evidence was not challenged. I am satisfied therefore that Mr Phan did all he was able to do to mitigate his loss and therefore there will be no reduction in the amount of compensation to be paid.

(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;

[62] Mr Phan had no remuneration from employment or other work.

(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;

[63] I am satisfied given his circumstances that Mr Phan is unlikely to earn any income in this period.

(g) any other matter that the Fair Work Commission considers relevant.

[64] There are no other matters that I consider relevant.

[65] I will deduct an amount of 15% for the possibility that Mr Phan may have been made redundant or may have concluded that the level of extra assistance was not sufficient and that he could not do the job under the conditions required by GJK.

[66] No amount is included for any shock, distress or humiliation or any analogous hurt caused to Mr Phan for the manner of his dismissal.

[67] As I did not find that Mr Phan refused a direction to perform work no misconduct has been substantiated and hence s.392(3) is not a relevant consideration.

[68] I have also considered whether I should adjust the amount because it is either clearly excessive or clearly inadequate¹⁷ but have concluded that no further reduction is required.

Conclusion

[69] While I do not have precise figures on the amount of remuneration that was earned by Mr Phan in the 26 weeks immediately prior to his dismissal assuming his fortnightly remuneration was $1,640.99 per fortnight including superannuation the amount of compensation to be paid would exceed the compensation cap¹⁸ even allowing for the deduction of 15%. In these circumstances an order for the maximum amount of compensation is appropriate.

[70] The terms of the order should be prepared by the parties and provided to the Commission by noon on 14 February 2017. It should provide that the amount of compensation will be taxed according to law and provide that the monies be paid within 21 days of the making of the order.

[71] If the parties are unable to agree on the terms of the order to be paid then the matter will be listed for a telephone hearing at 5.00 pm on 14 February 2016 and the parties are directed to file and serve any documents which support their calculation of the amount of compensation prior to that telephone hearing.

DEPUTY PRESIDENT

Appearances:

B. Lyons for the Applicant

D. Melville for the Respondent

Hearing details:

2016.

Melbourne:

1 February.

1 Exhibit A1

2 Ibid at [6]

3 Ibid at [8]

4 Ibid at [9]

5 Ibid at [10]

6 Ibid at [16]

7 Ibid at [15]

8 Ibid at [18]

9 Ibid at [20]

10 Ibid at [3]

11 Exhibit A2

12 Exhibit R1 at [6]

13 Ibid at [8]-[9]

14 Ibid at [11]

15 Submissions of GJK at [13]

16 Exhibit A1 at [16]

17 Smith and Others v Moore Paragon Australia Ltd, PR942856 at [32]

18 See s.392(6)

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