Pau Soon Lin v Max Bean Pty Ltd

[2021] FWC 6268

[2021] FWC 6268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Pau Soon Lin
v
Max Bean Pty Ltd
(C2021/6728)

COMMISSIONER PLATT ADELAIDE, 4 NOVEMBER 2021

Application to deal with contraventions involving dismissal – whether the applicant was dismissed – applicant dismissed

[1] On 3 October 2021, Mr Pau Soon Lin (Justin) lodged a Form F8 general protections application against Max Bean Pty Ltd (‘Max Bean’ or the Respondent).

[2] On 10 October 2021 Max Bean filed a Form F8A response in which it raised a jurisdictional objection that Mr Lin had not been dismissed.

[3] The matter was allocated to my Chambers on 19 October 2021 for the determination of the jurisdictional objection.

[4] On 22 October 2021, Directions were issued for the filing of material and the matter was listed for a Jurisdictional Hearing, by telephone, on 4 November 2021. The services of an interpreter were requested by the Applicant and arranged by the Commission. The parties filed their material, much of which related to the merits rather than the jurisdictional question. The relevant material was compiled into a Digital Court Book and distributed to the parties.

[5] Mr Lin represented himself and gave evidence on his own behalf. Ms Kim Wang represented Max Bean and also gave evidence. The evidence included reference to numerous text messages which were originally sent in the Chinese language. These messages had been translated into English by both parties.

[6] Max Bean is involved in soybeans manufacturing. Mr Lin’s duties are integral to this process as at the end of each day he soaks the soybeans in the water to provide material for the following days production. The soybeans must be used the following day or they will be wasted.

[7] Ms Kim Wang was Mr Lin’s Manager. 1 Ms Chin Mun (John) worked with Mr Lin

[8] The documentary evidence as to the jurisdictional objection is not in dispute.

[9] Mr Lin gave evidence that he was employed by Max Bean on a casual basis from July 2020.

[10] From the information provided, 2 Mr Lin was engaged for 5 days per week during the three-month period ending on 30 September 2021 (with the exception of one day of annual leave on 20 August 2021, and the noted ‘Covid Test’ on 30 September 2021).

[11] On the morning of 30 September 2021, Ms Pei Sim (Mr Lin’s wife) advised Ms Wang by text message that Mr Lin was not able to attend for work. Ms Wang advised that she found this communication objectionable as the employment relationship was with Mr Lin.

[12] The following text message exchange (as translated) transpired between Mr Lin and the Respondent. The translation provided by the Applicant is as follows:

“Thursday 08:14

Kim: If you do not come to work today, then you do not need to come anymore Justin. I have had enough of you fooling me around like this.

Thursday 20:40

Pau: Thanks for your message. I am advised by my done today, and have not received the result yet. Therefore I will be following the guideline to stay home tomorrow.

Kim: Be a human, Justin, good luck.

Kim: I have packed up your stuff. After you recover, please remember to pick them up. Have a good rest.

Kim: Next time you find a job and need to take leave, do not let your wife apply leave for you. It is really not cool.

Kim: good wishes.

Kim: Do not promise to your boss when you cannot make it. You waste your own time and other’s as well. It is really bad. Everyone is not easy.”

[13] The Respondent’s translation in respect of the relevant communications

reads as follows:

“Thu, 30 Sep 08:14

[Ms Wang]: If you don’t come to work today, you don’t need to come again in the future, Justin. I had enough of your playing me around.

Thu 30 Sep 20:40

[Mr Lin]: Thanks for your message. I am advised by My doctor that I need to take a COVID test which I have done it today and have not receive the result yet. Therefore I will be filling the guideline staying at home tomorrow.

[Ms Wang]: Be a person Justin. Good luck. I will pack your stuff. Remember to come and pick it up after you recover. Rest well. When you ask for a leave at a new job, don’t get your wife to do it. It’s really bad. Best regards Never promise to your boss things you can’t do, otherwise you sabotage yourself and others. It’s really bad. It’s no easy for anyone. One has to have the basic sense of responsibility. Falling ill is not an issue, but things can’t be done like this.”

[14] Mr Lin was not further engaged by the Respondent after 30 September 2021.

[15] Mr Lin contends that he was dismissed as a result of the text message exchange detailed above.

[16] Max Bean contends it did not dismiss Mr Lin. Ms Wang accepts she was angry at Mr Lin’s non-attendance at work, but states that that no formal letter of dismissal was provided nor was any notice period given and thus Mr Lin could not have been dismissed.

[17] Ms Wang suggests that the text message of 08:14 was only a warning and should have been understood as a request for Mr Lin to give her a call or text back and explain what happened. Ms Wang contends that the reference to Mr Lin’s stuff being packed up related to a requirement for employees’ personal belongings not to remain on site.

Consideration

[18] The material evidence on the question of whether a dismissal occurred is largely not in dispute. Mr Lin appears to have been engaged on a regular and systematic basis which ceased on 30 September 2021.

[19] Whilst there are certain requirements for a dismissal under Act, a failure to meet those requirements by not communicating the dismissal in a formal manner or failing to provide notice will not mean that there is no dismissal (although this may be in breach of the parties’ obligations). 3

[20] In my view the text message exchange objectively viewed constitutes dismissal by the Respondent. I am not persuaded that it represented a warning, or a call for further information.

[21] I find that the Applicant was dismissed by the Respondent on 30 September 2021.

[22] At the conclusion of the Hearing, the matter proceeded to Conference to allow the parties to attempt to conciliate the matter. The parties were not able to resolve the matter at Conference, and as such I am satisfied that all reasonable attempts to resolve the dispute have been or will be unsuccessful. As such a Certificate will issued under s.368(3)(a) of the Act.

COMMISSIONER

Appearances:

Mr P S Lin, the Applicant

Ms K Wang for the Respondent

Hearing details:

2021.
Adelaide:
November 4.

Printed by authority of the Commonwealth Government Printer

<PR735486>

 1   Page 129 of the Courtbook

 2   See page 82-84 of the Courtbook

 3   Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 at [33].