Ning Hai Zhou v Weir Minerals Australia Ltd

[2014] FWC 1531

[2014] FWC 1531

FAIR WORK COMMISSION

DECISION

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

Ning Hai Zhou
v
Weir Minerals Australia Ltd
(U2013/1483)

VICE PRESIDENT HATCHER SYDNEY, 6 MARCH 2014

Application for relief from unfair dismissal.

Introduction

[1] The applicant in this matter, Mr Ning Hai Zhou, claims an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with Weir Minerals Australia Ltd (Weir). Section 396 of the Act requires that four specified matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of those matters:

(1) It was not in dispute, and I find, that Mr Zhou’s application was made within the 21-day period required in s.394(2)(a).

(2) It was not in dispute, and I find, that Mr Zhou was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by Weir.

(3) It was not in dispute that Weir was not a “small business employer” within the meaning of that expression in s.23, and accordingly the issue of consistency with the Small Business Fair Dismissal Code does not arise.

(4) It was not in dispute, and I find, that the dismissal was not a case of “genuine redundancy” as that expression is defined in s.389.

Facts

[2] For the most part, the relevant facts of this matter which are set out below were either not in contest at the outset or, once the evidence had been received, did not remain in contest. Where any factual matter of relevance and significance was in contest, I record my finding about it.

[3] Weir is a designer and manufacturer of slurry equipment for the mining, flue gas desulphurisation and oil sands industries. It operates a manufacturing establishment in Artarmon in Sydney. The shop floor at this establishment involves the use of heavy equipment, including machines for the machining of raw castings, forklifts and an overhead crane. From a workplace health and safety point of view, it is a high risk work environment. Weir has safety systems and protocols in place to eliminate or control risks to health and safety. I am satisfied from the evidence that Weir places a very high priority on safety, that it trains its employees extensively on safety issues, and that it takes any breach of its safety systems and protocols extremely seriously.

[4] Mr Zhou was employed by Weir on 10 May 2004 as a machine operator. Apart from some specific safety incidents which I will describe shortly, the evidence did not disclose that any particular difficulty had ever arisen in the course of his employment. One of Weir’s witnesses, Mr Brendon Wright, who at the time of Mr Zhou’s dismissal was the Manager of the Machine Shop, said in his evidence that there had been complaints about Mr Zhou made to him by supervisors and other shop floor employees, but no attempt was made by Weir to identify these complaints let alone substantiate them. Mr Zhou himself gave evidence that he was diligent in the performance of his duties. I will proceed on the basis that, apart from the specific safety incidents, Mr Zhou was a satisfactory employee. That is how he was characterised by his supervisor, Mr Robert Whyte.

[5] In the course of 2012, Weir introduced a new set of generally-applicable safety rules, entitled “Top 12 Safety Rules for the Artarmon Site”. Rules 6, 7, 8, 9 and 10 provided as follows:

“6. No use of mobile phones while operating plant, equipment, driving or walking.

7. Never lift items weighing more than 20 kgs without assistance.

8. Follow the correct SOPs and only perform tasks or use equipment that you are trained and assessed to be competent in.

9. Never remove machine guards or bypass safety controls unless the machine is being repaired or maintained and is “tagged out”.

10. Report all safety incidents including accidents, near misses, and first aid treatment.”

[6] Mr Zhou’s evidence was that rule 6 concerning the use of mobile phones represented a change of the position which had previously applied. He said that, previously, employees had been permitted to use mobile phones, or to read newspapers, while a machine was running and no particular action was required. It was apparent from his evidence that he regarded this change as being harsh in nature and unwarranted.

[7] Weir conducted training sessions for employees in relation to the new rules. Mr Zhou attended such training sessions on 18 and 19 June 2012. Weir also placed a large notice containing the new rules on the wall of the machine shop.

[8] On 26 June 2012 (that is, about a week after the training sessions) Mr Zhou was spoken to by Mr Whyte after having been observed using his mobile phone whilst on the shop floor operating a machine. This did not deter Mr Zhou, because a few days later on 29 June 2012 he was again spoken to by Mr Whyte and another supervisor about using his mobile phone whilst operating a machine. This latter incident led to Mr Zhou being issued with a written warning (with the subtitle “First Written Warning”). The warning (omitting formal parts) read as follows:

“Your actions have caused Weir Minerals Australia Ltd to issue you with a written warning. In the event of any future occurrences, the Company will take further action that may result in the termination of your employment.

On Friday 29 June 2012 you were spoken to by Stephen Ashworth and Robert Whyte regarding using your mobile whilst on the floor operating a machine.

This was not the first time you have been spoken with in regards to the usage of your mobile phone during your shift. Robert Whyte spoke with you on the Wednesday [sic] 26 June 2012 whilst you were operating a machine.

The excessive use of your mobile phone whilst operating a machine is a safety hazard not only for yourself but your fellow team members as well.

In light of these previous occasions and the incident which took place on the 29 June 2012 we are issuing you with a formal First Written Warning.

Future use of your mobile phone whilst operating a machine will result in further performance management.”

[9] In January 2013, Weir installed an item of equipment called a “zero gravity lifter” (lifter) in its machine shop at a location close to the machine usually operated by Mr Zhou. The lifter is a manual handheld crane which can be used to lift heavy parts or other items onto a machine on the shop floor. It is operated by use of a black handle to pick up, move and position the load. The black handle is located on a red box immediately above the hook upon which items are attached to be carried by the lifter. This means that when a person is operating the lifter, they must stand immediately adjacent to the item being carried. The lifter is designed to carry items weighing from 10 to 120 kilograms.

[10] On 30 January 2013, before the lifter had been put into operation, Weir carried out a “Job Safety and Environmental Analysis” (JSEA) in respect of it. A JSEA is essentially a risk analysis. The JSEA was conducted by Mr Whyte and Weir’s Technical Manager, Ken McGuire. It also involved Mr Zhou and another employee, they being the two employees who would have to use the lifter once it passed the risk assessment. Mr Zhou’s evidence was that he did not know what a JSEA was or that he was participating in one on 30 January 2013; he said that he thought he was being trained in the use of the lifter. During the JSEA, Mr Zhou and the other employee operated the lifter under the guidance of Mr Whyte and Mr McGuire.

[11] A number of problems were identified with the lifter, three of which were assessed as being of high risk. One of the high risk problems was when the lifter was used to lift an item, the item on the lifter dropped rather than staying level. The risk identified was that if the lifter was used in practice to lift a heavy part or item, it could drop onto the operator’s foot and cause injury. This problem was diagnosed as being caused by insufficient air pressure in the lifter, which would need to be remedied by the addition of a booster.

[12] After the completion of the JSEA, Mr Whyte placed a large and highly visible tag on the lifter which directed that it not be operated. The tag was a standard one used in the workplace for safety purposes. On one side it said “DANGER” in white writing on a red background, and underneath that it said “DO NOT OPERATE”. The “DANGER” warning was repeated on the reverse side, and underneath that it said “DO NOT REMOVE THIS TAG” and “Necessary Disciplinary Action Will Be Taken If These Orders Are Disregarded”.

[13] The evidence adduced by Weir demonstrated to my satisfaction that the lifter was not actually remedied by the installation of the booster until 22 June 2013, and that the “Danger - Do Not Operate” tag remained on the lifter at all times until it was fixed on that date. There was no dispute that Mr Zhou knew at all relevant times that the tag was attached to the lifter, and that he understood that as a result he was not permitted to use the lifter.

[14] On 18 April 2013, it was necessary for Mr Zhou in the performance of his duties to move a “chuck” onto his machine. A chuck is a machine part used to hold raw castings in place on a machine. The chuck in question was a “three-jawed” chuck, weighing from 50 to 60 kilograms. The manual lifting limit (rule 7) prevented Mr Zhou from physically lifting the chuck onto his machine. The overhead crane in the shop floor, which had previously been used to lift chucks, was in use on another task, and Mr Zhou estimated that it would not become available for about 30 minutes. He decided to use the lifter for the task, notwithstanding the “Danger - Do Not Operate” tag attached to it.

[15] Mr Zhou said that he understood that the tag had been attached because the lifter previously did not have enough air pressure to lift over 30 kilograms in weight. It is not clear from where Mr Zhou derived the 30 kilogram figure. He said that after he decided to use the lifter, he first conducted a “test run” to see if the air pressure problem had been rectified. It was not in dispute that he was neither trained nor authorised to “test” the lifter. This “test run” identified to his satisfaction that the pressure problem had been fixed such as to permit the lifter to lift at least 70 kilograms. It was not entirely clear to me from Mr Zhou’s evidence how it was that he was able to logically satisfy himself on this score. However, he did disclose during his evidence that 18 April 2013 was not the first time he had operated the lifter; he said that previous to that date he frequently had to move the arm of the lifter because it “swung” in a manner which brought it too close to his work station and near his head. He said he had never reported this to anyone, but simply dealt with it himself. It appears that Mr Zhou’s previous operation of the lifter in this way contributed to his satisfaction on 18 April 2013 that the air pressure problem in the lifter had at some stage been rectified. Of course, as earlier stated, the problem was not in fact rectified until 22 June 2013.

[16] Having conducted his “test run”, Mr Zhou formed the view that the lifter was safe to use, and proceeded to use it to move the chuck into place on his machine. At this point he was observed by Mr Wright, who immediately approached him about what was occurring. On Mr Zhou’s evidence, the following conversation ensued:

Wright: What are you doing?

Zhou: Just lifting the chuck into place.

Wright: Did you see the sign?

Zhou: Yes, but the overhead crane was in use and it was just one lift.

Wright: We need to talk this is serious.

[17] Mr Zhou was then called into a meeting with Mr Wright, Mr Whyte, and Mr Daniel Newman (Weir’s Senior Human Resources Advisor). He was advised that he could bring a support person with him, but this offer was declined. Mr Zhou’s own evidence was that he recalled the following being said at the meeting:

Management: You should not have been operating the lifter, this is a serious safety issue.

Zhou: I have tested the lifter, I did not see any danger, I have not injured anyone or myself, why would I intentionally try and injure myself.

Management: There was a sign saying do not operate.

Zhou: Yes, but I have tested and realised they have fixed the pressure. The overhead crane was in use and it was just one lift. I was trying to do my job and make sure my production was not delayed.

Management: What you did was very unsafe, and could have been dangerous.

Zhou: If you are not supposed to use the lifter, and if it was so unsafe why didn’t you cut off the power in the first place to ensure no one could use it.

`

Management: We will convene another meeting to discuss this issue.

[18] Mr Wright, Mr Whyte and Mr Newman all gave, not surprisingly, somewhat different accounts of the meeting, but there are no differences of real substance. After the meeting ended, they confirmed that the lifter had not in fact been fixed. Mr Zhou was suspended later in the day and given what may be characterised as a “show cause” letter stating the following:

“Please be advised that your employment with Weir Minerals Australia Ltd is now at the stage of possible termination. I confirm that the reasons are:

On or about 5:00 pm Thursday 18th of April you were witnessed by Brendon Wright using the Zero Gravity Lifter installed for the Small Centre Lathe Area. As you made Brendon aware the unit was tagged out with a Danger Tag which said “Do Not Operate”. You said the reason you were operating the lifter was because the overhead crane was being used and you needed to lift a chuck into place.

A meeting has been scheduled for Friday 19 April 2013 at 2.00pm at Human Resources to discuss the implications of this.

You are welcome to bring a support person to this meeting.

Please note that if you do not attend this meeting, or provide in writing reasonable justification as to why your employment should not be terminated, your employment with Weir Minerals Australia will cease.

If you have any questions please do not hesitate to contact myself on ...”

[19] The meeting contemplated by the “show cause” letter occurred the following day, with Mr Wright, Mr Whyte, Mr Newman and Mr Bruce MewJork, Weir’s compliance manager, representing Weir. Mr Zhou had a support person present with him. Mr Zhou gave evidence that when asked what he had to say about the incident, he said: “I made a mistake, I am sorry, it was the first issue like this, please give me another chance, it won’t happen again”. Again, unsurprisingly, Mr Wright, Mr Whyte and Mr Newman gave somewhat different accounts of what occurred, but there is no difference of substance. During a break in the meeting, Mr Wright, Mr Newman and Mr MewJork jointly decided to terminate Mr Zhou’s employment. Mr Zhou was then informed of this, and provided with a termination letter which stated the following:

“Please be advised that your employment with Weir Minerals Australia Ltd is to conclude today, Friday 19 April 2013. I confirm that the reasons are:

On Thursday 18th of April you were witnessed by Brendon Wright using the Zero Gravity Lifter installed for the Small Centre Lathe Area. You made Brendon aware the unit was tagged out with a Danger Tag which said “Do Not Operate”. You said the reason you were operating the Lifter was because the overhead crane was being used and you needed to lift a chuck into place.

This is a significant breach of safety and is not only unlawful, but against WMA policies and procedures.

You will be paid your notice of employment plus any outstanding accrued annual leave. Your termination payment will be paid into your nominated bank account.

If you have any questions about your entitlements please feel free to contact me at the Weir Minerals Australia office in Sydney.”

[20] Weir’s “Discipline Policy” at the time of Mr Zhou’s dismissal included the following:

“Levels of Disciplinary Action

The levels in Disciplinary Action in dealing with Performance Management are:

1) Pre-Warning Counselling

2) First Written Warning

3) Second Written Warning

4) Third Written Warning

5) Termination

Steps outlined above can be skipped in circumstances where there has been serious performance management and misconduct issues.”

[21] Mr Zhou gave evidence that in the 2012/2013 period, Weir made a number of employees redundant at its Artarmon establishment. This was supported by the evidence of a former Weir employee, Yin Jie Sheng, who said he was made redundant in 2012 along with five other persons in the Pump Assembly area. However, it was not in issue that there had been no redundancies in the machine shop area. Instead, overtime had been reduced and three shifts per day reduced to two.

[22] Since his dismissal, Mr Zhou has worked in a number of casual and part time positions, and has also received Centrelink benefits for short periods. The evidence demonstrates that he has been active in seeking and obtaining alternative employment since his dismissal. He produced bank records and pay slips which were put into evidence and which demonstrate his post-dismissal earnings. It is clear that, despite his efforts at mitigation of loss, Mr Zhou had not been able to find alternative employment equivalent in terms of income and job security to his employment at Weir. It is also clear from Mr Zhou’s evidence that the fact that he has had to tell potential employers that he was dismissed by Weir has damaged his employability.

Submissions

[23] Mr Zhou submitted that there was no valid reason for his dismissal, and that his dismissal was harsh and unreasonable, for the following reasons:

● He had apologised to Weir for what occurred on 18 April 2013.
● He had been employed for nine years, and had a good record of service.
● While he should not have operated the lifter in breach of the “Danger - Do Not Operate” tag, what he had done was not actually unsafe because the lifter had sufficient air pressure to be able to be operated safely, and because nobody was injured or could have been injured as a result of his use of the lifter.
● He had never been told that the lifter had not been fixed.
● He was not told that he would be dismissed if he operated the lifter.
● His dismissal occurred in breach of Weir’s Discipline Policy; the proper action under that policy should have been for Weir to issue him with a second written warning.
● The real reason for his dismissal was for Weir to avoid having to make him redundant and pay him redundancy pay under its redundancy policy.

[24] Mr Zhou submitted in the alternative that even if his use of the lifter in contravention of the instruction on the tag constituted a valid reason for misconduct, his dismissal should nonetheless be found to be unfair for the above reasons. He cited three decisions, namely Robert Anthony Richards v Regional Express Holdings Ltd t/a REX Airlines 1, Bostik (Australia) Pty Ltd v Gorgevski (No 1)2and Woolworths Limited v Brown3, in support of this submission. He did not seek the remedy of reinstatement because he considered he would be unable to work with his former supervisor, Mr Whyte. He asked that the Commission award him compensation of an amount equal to six months’ pay, and in addition “retrospective resignation”, a statement of service, “statutory notice” and accrued long service leave benefits.

[25] Weir submitted that it had a valid reason to dismiss Mr Zhou in that his conduct on 18 April 2013 amounted to “a serious safety breach”. It contended that a failure to follow a critical safety process can create a valid reason for termination, citing Sirijovski v Bluescope Steel Limited 4and Northey v Bradken Resources Pty Limited5. Mr Zhou’s conduct, Weir submitted, involved a breach of his obligation under Work, Health and Safety law and occurred in circumstances where Mr Zhou was working in a high risk environment which made compliance with safety obligations essential, he had previously been warned for a safety incident, and he was well aware that the action for which he was terminated was an unsafe act. For these reasons, Weir submitted that there was no basis upon which to find Mr Zhou’s dismissal was harsh, unjust or unreasonable. In the alternative, it was submitted that if the dismissal was found to be unfair, any compensation awarded should be small having regard among other things to the fact that Mr Zhou’s misconduct contributed to Weir’s decision to dismiss him.

Consideration

[26] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in turn below.

Paragraph 387(a)

[27] I find that there was a valid reason for Mr Zhou’s dismissal. It is clear that the machine shop at Weir’s manufacturing establishment at Artarmon was a high risk working environment, and that consequently Weir placed a high priority on workplace safety. Having regard to this, as well as to Weir’s statutory workplace health and safety obligations, Weir was entitled to impose reasonable safety rules and directions upon its employees and to expect that they would be obeyed by those employees.

[28] The lifter had been risk assessed through Weir’s JSEA process before it was put into operation. That risk assessment had identified, among other things, that there was a high risk that, because of a lack of air pressure, the lifter could drop down with its load. The potential consequence was that the load could fall onto the foot of the employee operating the lifter and cause serious injury. Mr Zhou was aware of this, having participated in the risk assessment exercise. He was also aware at all relevant times of the “Danger - Do Not Operate” tag which had been placed on the lifter as a result of the JSEA. He knew, as a result, that he was not permitted to use the lifter and that necessary disciplinary action would be taken against him if he did.

[29] Mr Zhou made a deliberate decision to use the lifter in defiance of the instruction on the tag. As a result, he used the lifter to lift a chuck that weighed from 50 to 60 kilograms. The air pressure problem with the lifter had not been fixed, meaning that on the basis of the JSEA there was a high risk that the lifter could drop down and cause the chuck to fall onto Mr Zhou’s foot. If this had happened, the result would probably have been a serious injury. This was self-evidently a serious matter, and the fact that no injury actually occurred does not diminish this. Mr Zhou’s wilful disobedience of an important safety direction provided a sound, defensible and well-founded reason for his dismissal.

Paragraphs 387(b) and (c)

[30] Mr Zhou was notified of the reason for his dismissal (which related to his conduct) at the meetings which occurred on 18 and 19 April 2013 and in the “show cause” letter of 18 April 2013. He was given an opportunity to respond to that reason at the meetings on 18 and 19 April 2013.

Paragraph 387(d)

[31] Mr Zhou was permitted by Weir to have a support person with him at the meetings on 18 and 19 April 2013, and Mr Zhou availed himself of that opportunity at the second of those meetings.

Paragraph 387(e)

[32] I do not regard Mr Zhou’s dismissal as relating to the unsatisfactory performance of his work; it was based on his conduct. For that reason, paragraph 387(e) is not relevant. In any event, Mr Zhou had previously been warned about conduct in breach of Weir’s safety requirements.

Paragraphs 387(f) and (g)

[33] Weir is a substantial business with dedicated human resource management specialists and expertise. The procedures it followed in respect of Mr Zhou’s dismissal reflected this.

Paragraph 387(h)

[34] There were five matters raised in Mr Zhou’s submissions in support of his contention that his dismissal was unfair which I reject as being without merit. Firstly, I reject Mr Zhou’s submission that his use of the lifter on 18 April 2013 was not unsafe simply because nothing went wrong and he was not injured. For the reasons I have earlier stated, he put himself at risk of serious injury.

[35] Secondly, I reject as a mitigating factor that Mr Zhou had not been told that the lifter had not been fixed. He did not need to be told, because the maintenance of the “Danger - Do Not Operate” tag on the lifter made the position perfectly clear. There was simply no objective basis for Mr Zhou to form the conclusion that the lifter had been fixed. If he was in any doubt about this, he could simply have asked someone.

[36] Thirdly, I also reject as a mitigating factor that Mr Zhou was not told he would be dismissed if he breached the direction on the “Danger - Do Not Operate” tag. The warning of disciplinary action on the tag itself put Mr Zhou on notice that serious consequences would follow if he disobeyed the direction on the tag.

[37] Fourthly, Mr Zhou’s dismissal did not contravene Weir’s Discipline Policy. That policy made it clear that Weir was entitled to skip the steps involving warnings in the case of serious misconduct. I consider that Mr Zhou’s conduct on 18 April 2013 constituted serious misconduct.

[38] Fifthly, I reject Mr Zhou’s contention that the real reason for his dismissal was that Weir wished to avoid having to make him redundant and pay him redundancy pay. Mr Wright specifically denied this in his evidence, and I see no reason to disbelieve him, particularly as there were no redundancies in the machine shop in the 2012-2013 period, unlike other areas of Weir’s operations.

[39] Mr Zhou relies on his length of service, his satisfactory employment record and his apology for his conduct as constituting reasons as to why his dismissal was harsh, unjust and unreasonable. I accept that those matters are relevant to the question of harshness, in that they tend to demonstrate that dismissal was “disproportionate to the gravity of the misconduct in respect of which the employer acted”. 6 I would add to this that the employment and income consequences of Mr Zhou’s dismissal are also relevant in that they tend to indicate that the dismissal “may be harsh in its consequences for the personal and economic situation of the employee”.7

[40] It is clear that a dismissal may be found to be harsh, notwithstanding a breach of an important safety rule or direction, by reason of the length and quality of an employee’s service and the consequences for the employee of dismissal. The majority Full Bench decision in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth 8is the example par excellence of this. In that case, the majority (Lawler VP and Roberts C) said in relation to the facts of that case:

“[38]We regard the unqualified dismissal of an exemplary employee with 28 years of service, an impeccable disciplinary record and an otherwise impeccable safety record for a policy breach the sort that occurred in this case - particularly when the policy itself contemplates that breaches will not necessarily lead to disciplinary action let alone dismissal and having regard to the personal consequences for the employee and his family - as manifestly harsh. We accept that the misconduct reasonably called for a disciplinary sanction and that a period - even an extended period - of suspension without pay may still have been within the acceptable range. But in all the circumstances, unqualified dismissal was, in our view, manifestly harsh. On the rehearing we find that Mr Lawrence was unfairly dismissed within the meaning of s.385.”

[41] If Mr Zhou’s length of employment, his satisfactory performance record, and the detriment caused to his employment prospects and income by his dismissal were the only relevant matters, I would be inclined to conclude that his dismissal was harsh. But there are other matters which tend to demonstrate that the dismissal was not harsh, unjust or unreasonable, and which distinguish the facts of this case from those in Lawrence.

[42] Mr Zhou did not have an impeccable safety record. As earlier stated, he had earlier received a written warning for breach of rule 6 of Weir’s Top 12 Safety Rules. Mr Zhou had been trained in those rules, but about a week after that training had breached the rule concerning the use of mobile phones while operating machines, and having been verbally warned about this breached it again a few days later. It was quite apparent from Mr Zhou’s evidence and submissions that he regarded the rule as harsh and unjustified. His conduct, and his explanation of it during the hearing, exhibited a failure to understand or accept the safety rationale for the rule.

[43] Similarly, although Mr Zhou apologised for not complying with the “Danger - Do Not Operate” tag, statements made by Mr Zhou about his conduct in this respect at the meetings on 18 and 19 April 2013 and at the hearing indicated that he did not accept the safety rationale for him not being permitted to use the lifter on 18 April 2013 and did not recognise the import of the written warning which had been given to him in 2012. It was apparent both at the time of his dismissal and during the hearing that Mr Zhou was convinced that he had not done anything that was actually unsafe and that he was entitled to conclude from having personally “tested” the lifter that it had been fixed and was safe to use. He showed no comprehension that his conduct on 18 April 2013 was in substance a repetition of the wilful disobedience of safety rules for which he had been warned in 2012. In summary, by the time of his dismissal Mr Zhou had demonstrated that he was either unable or unwilling to understand and accept the need for absolute compliance with critical safety rules. Mr Zhou’s statement in his closing submissions to the effect that “If I see something I can solve myself, I do it myself” exemplified his attitude in this respect. Regrettably, I consider that this is a significant matter which militates against any conclusion that Mr Zhou’s dismissal was harsh, unjust or unreasonable. I also note that Weir paid Mr Zhou four weeks’ pay in lieu of notice upon his dismissal, in circumstances where I consider it was entitled to dismiss him without notice. This also tends against any conclusion that the dismissal was in all the circumstances harsh.

Conclusion

[44] Having taken into account all the matters identified above, I conclude that Mr Zhou’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.

VICE PRESIDENT

Appearances:

N. Zhou on his own behalf

M. Mead with F. Rodriguez of Ai Group for Weir Minerals Australia Ltd

Hearing details:

2014.

Sydney:

3 March.

 1   [2010] FWA 4230

 2 (1992) 36 FCR 20

 3   PR963023

 4   PR977959

 5   [2013] FWC 6423.

 6   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 7   Ibid

 8   [2010] FWAFB 10089

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