Peng Zheng v Citic Pacific Mining Management Pty Ltd
[2025] FWC 1471
•28 MAY 2025
| [2025] FWC 1471 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Peng Zheng
v
Citic Pacific Mining Management Pty Ltd
(U2024/12281)
| COMMISSIONER LIM | PERTH, 28 MAY 2025 |
Application for an unfair dismissal remedy – whether incident before work sufficiently connected to work – valid reason – dismissal not unfair – application dismissed.
What is this decision about?
On Monday 16 September 2024, Mr Peng Zheng had a verbal and physical altercation with a member of the public (Witness AB)[1] on his way to work. Mr Zheng was employed by Citic Pacific Mining Management Pty Ltd at the time. The altercation occurred in the elevator of 45 St Georges Terrace, Perth, where CPMM’s offices are located. The altercation was witnessed by another CPMM employee, Mr Ho Kit Chong. Witness AB and Mr Chong both reported the incident to CPMM, who investigated the incident and then terminated Mr Zheng’s employment on Tuesday 24 September 2024. Mr Zheng has applied to the Commission on the basis that his dismissal was unfair.
The parties disagree on what occurred on Monday 16 September 2024; how the CPMM investigation was conducted; and the significance these events in terms of whether there was a valid reason for dismissal and whether the dismissal was done in a procedurally fair matter.
I heard Mr Zheng’s application on Wednesday 5 March 2025. I granted permission to Mr Jay Mohan Singh to represent Mr Zheng and Mr Nick Ellery of Counsel to represent CPMM.
Having considered the relevant evidence and submissions of the parties, I find that that there was a valid reason for Mr Zheng’s dismissal and that his dismissal was not unfair. His application must be dismissed.
My detailed reasons follow.
Matters not in contest
The parties agree – and I am satisfied – that Mr Zheng had completed the minimum employment period; was covered by an enterprise agreement; made his application within time; CPMM is not a small business employer; and the dismissal was not a case of genuine redundancy. Mr Zheng was protected from unfair dismissal at the time he was dismissed.
Mr Zheng moved to Australia in 2011. On Tuesday 2 January 2024, Mr Zheng commenced employment with CPMM as an Operator Maintainer Technician, based at CPMM’s site in Cape Preston.
On or about Saturday 9 March 2024, Mr Zheng injured his knee at work. Mr Zheng had knee reconstruction surgery. On Monday 19 August 2024, Mr Zheng returned to work on light duties. On Tuesday 27 August 2024, Mr Zheng started working out of CPMM’s Perth office located at 45 St Georges Terrace.
Prior to the incident that led to his dismissal, Mr Zheng did not have any disciplinary or performance issues.
Observations on the evidence
Mr Zheng
Mr Zheng was the only witness for his case. In assessing Mr Zheng’s evidence, I have taken into account that English is not his native language, and his evidence was almost entirely given through a Commission-appointed interpreter.
Mr Zheng is a Chinese national who does not speak English natively. There was some contention between the parties as to the level of Mr Zheng’s English competency and how well he could understand documents such as CPMM’s Code of Conduct and the investigation process. I accept that Mr Zheng is not highly fluent in English. However, it was clear from observing Mr Zheng that he had a functional grasp of English. During cross-examination, Mr Zheng answered questions without the assistance of the interpreter. I also note that Mr Zheng has lived in Australia for fourteen years and is able to conduct himself at work without a translator.
I did not find Mr Zheng to be a credible witness. Mr Zheng repeatedly refused to answer direct questions from Counsel for CPMM and was also evasive when I asked him questions. Mr Zheng downplayed his actions on Monday 16 September 2024, to the point where his evidence was plainly at odds with the CCTV footage of the incident. His oral evidence was also at odds with his own contemporaneous material, which I explore later in this Decision. Mr Zheng’s refusal to make concessions affected his credibility.
Where Mr Zheng’s evidence has conflicted with other witnesses, I have generally preferred the evidence of the other witnesses.
Mr Chong
CPMM called Mr Chong, Witness AB and Mr Nicholas Lord to give evidence.
Mr Chong is an employee of CPMM and witnessed the elevator altercation on Monday 16 September 2024. Mr Chong has no history with Mr Zheng or with Witness AB. There were some inconsistencies in Mr Chong’s evidence with regard to where Witness AB was standing in the elevator on Monday 16 September 2024 that was ultimately incorrect, as well as some other inconsistencies of timing. I find that these are minor and immaterial. Mr Chong watched the CCTV footage from Monday 16 September 2024 for the first time at the hearing. Prior to that, his written evidence and his evidence in the stand were from his recollection of an event that took place several months prior. It is entirely expected that there would be some inconsistencies in such circumstances.
I found Mr Chong to be extremely honest, earnest, and credible.
Witness AB
Witness AB works for a different employer in the same building as Mr Zheng. Prior to the incident on Monday 16 September 2024, they had never met. Like Mr Chong, there were some minor inconsistencies in Witness AB’s evidence compared to the CCTV footage. However, like Mr Chong, she had not seen the CCTV footage prior to the day of the hearing. Again, I did not find that those inconsistencies diminished the honesty or credibility of Witness AB’s evidence. Mr Singh for Mr Zheng sought to discredit Witness AB’s evidence on the basis she could not correctly recall details such as the colour of Mr Zheng’s CPMM lanyard. I did not find this to be persuasive or relevant. I found Witness AB to be an honest witness.
Mr Lord
Mr Lord is the CPMM Acting Manager for Industrial Relations. Mr Lord’s evidence remained unchanged during his cross-examination, and I found him to be consistent and credible.
What were the events leading up to Mr Zheng’s dismissal?
4.1 What happened on Monday 16 September 2024?
On Monday 16 September 2024 at approximately 8:00am, Mr Zheng, Mr Chong and Witness AB were all present in the lobby of 45 St Georges Terrace to catch the elevator to their respective floors. None of them had met prior to this.
The three entered the lift. Mr Zheng entered the lift first, standing in the centre and towards the front of the elevator, close to the doors. Witness AB entered next, squeezing past Mr Zheng and standing on the right side of the elevator. Mr Chong entered last, going to the back-left corner of the lift. Mr Zheng was going to Level 6, Witness AB to Level 2 and Mr Chong to Level 7.
Mr Zheng’s written account is as follows:[2]
(a) Witness AB questioned him why he was standing where he was in the elevator, asking him to move to give her more space. She was angry and hostile.
(b) He told her politely that there was plenty of space in the elevator to pass, and that when the lift reached her level, he would gladly step aside to give her more room. Mr Zheng thought this the end of the conversation and then stood silently waiting for his floor.
(c) As the lift approached Level 2, Witness AB moved behind Mr Zheng. When she passed Mr Zheng on his left side, she ‘physically assaulted’ him by using her shoulder or elbow. Because of this, Mr Zheng lost his balance, causing his weight to shift onto his uninjured knee.
(d) In his surprise, Mr Zheng reached out in Witness AB’s direction with his left arm. This was a natural reaction in self-defence.
(e) Mr Zheng’s hand lightly brushed Witness AB’s shoulder. Witness AB turned around ‘in a manner that made [Mr Zheng] believe that she wanted to attack…again’.
(f) Mr Zheng told Witness AB to leave him alone and swore at her.
(g) Witness AB asked Mr Zheng where he worked. He told her that he worked for CPMM.
During his cross-examination, Mr Zheng’s evidence was that he did not push Witness AB and that he only lightly touched her clothes with his fingers.[3] Mr Zheng also denied that when he swore at Witness AB, he used an angry or aggressive tone; however, he also said that he yelled at her due to her attacking him.[4]
Mr Chong’s written account is:[5]
(a)Mr Zheng entered the lift first, standing in the middle of the front of the lift. This made it difficult for people to get in and out of the lift.
(b)Mr Chong stood on the right-hand side of the lift, behind Mr Zheng and Witness AB.
(c)When the lift stopped at a level, Witness AB said to Mr Zheng words to the effect of, ‘you’re blocking my way’. Mr Zheng did not move or say anything. As Mr Zheng did not move or say anything, Witness AB had to squeeze past Mr Zheng to exit the lift.
(d)In squeezing past Mr Zheng, Witness AB made contact with Mr Zheng. Mr Chong’s view is that the contact seemed normal as her intention was to exit the lift.
(e)Mr Chong witnessed Mr Zheng push Witness AB hard in the back and heard Mr Zheng say, ‘Fuck off. Don’t touch me’.
(f)Witness AB looked to Mr Chong and asked if he would be her witness. Mr Chong nodded. After Witness AB left the elevator, nothing was said between Mr Zheng and Mr Chong.
Witness AB’s written account is:[6]
(a)She needed to get off at Level 2. Because of this, she knew that she would have to exit the lift first; however, Mr Zheng was blocking the doorway. Witness AB asked Mr Zheng, ‘do you mind moving? I need to get out’. Mr Zheng did not respond and did not move.
(b)Witness AB had to squeeze past Mr Zheng as the lift was small and he was standing directly in front of the doorway. Witness AB did not recall making physical contact with Mr Zheng as she exited the lift but give the confined space it is possible that she brushed against him.
(c)As she stepped out of the lift, she felt a sudden push on her back and heard a man loudly say, ‘fuck off!’.
(d)When Witness AB turned around, she saw Mr Zheng and assumed he was the one to push her. She turned to Mr Chong and said, ‘you saw that, didn’t you?’. Mr Chong nodded.
The CCTV footage
The CCTV footage from the elevator was tendered into evidence. The footage does not have sound and is low-resolution, but it is clear enough to see that Mr Zheng pushed Witness AB in the back with force.
The CCTV footage is 32 seconds long. It starts with Mr Zheng entering first, pressing the button for his floor then positioning himself in front of the elevator doors. At the four second mark, Witness AB can be seen having to angle herself to squeeze in due to how Mr Zheng had positioned himself. Seven seconds in, Mr Zheng shifts sideways towards Witness AB, leaving her with very little room against the elevator wall.
At nine seconds in, Witness AB’s head turns to Mr Zheng, and she gestures to the elevator doors. Mr Zheng turns to look at her. It is not clear whether he says anything. At the 17 second mark, Mr Zheng looks away from Witness AB. He does not move from his position in front of the elevator doors.
Witness AB moves behind Mr Zheng to exit on his left side. At the 20 second mark, she can be seen brushing against Mr Zheng as she exits. Mr Zheng takes a small step to the right, before stepping forward. At 21 seconds, Mr Zheng raises his arm and pushes Witness AB in the back. Witness AB can be seen stumbling forward. Mr Zheng makes an aggressive gesture with his left arm, before pressing a button in the elevator and then making another gesture with his right arm. The video ends with the elevator doors closing.
Elevator inspection
On Tuesday 4 March 2025, I exercised my powers under s 590 and inspected the elevator at 45 St Georges Terrace with legal representatives of both parties present. The elevator car was 1.66 metres wide and 1.53 metres deep. The elevator opening was one metre wide.
Mr Zheng’s assertion that there was plenty of room in the elevator[7] for Witness AB to move past him to the elevator doors cannot be sustained. Having stood in the elevator where the incident occurred, I find that the CCTV footage accurately portrays the size of the elevator.
My findings regarding Monday 16 September 2024
Though Mr Zheng’s representative made much of peripheral inconsistencies in Mr Chong’s and Witness AB’s evidence, I find that when it comes to the relevant details of what occurred on Monday 16 September 2024, the evidence of Mr Chong, Witness AB and the CCTV footage align. I find the following regarding the Monday 16 September 2024 incident:
(a)Due to where Mr Zheng was standing in the elevator, he was blocking Witness AB’s direct exit path out of the elevator, which was on Mr Zheng’s right-hand side.
(b)Witness AB did ask Mr Zheng to move. I do not find that Witness AB did so in an aggressive or offensive manner. I also do not accept Mr Zheng’s peculiar submission that asking someone to move is in and of itself rude.[8]
(c)Mr Zheng did not move from his position. On balance, I find that though he looked at Witness AB, he did not respond to her request.
(d)Witness AB moved around Mr Zheng to exit on his left side, where there was more room. I find that when Witness AB moved past Mr Zheng, she did make contact with Mr Zheng, but do not find that this was deliberate or unreasonable. Due to the size of the elevator and Mr Zheng’s proximity to the door, Mr Zheng not moving from his position meant that contact was unavoidable.
(e)Mr Zheng reacted to Witness AB brushing past him by pushing her in the back. This is clear from the CCTV footage. Witness AB stumbled forward from the force he used. Mr Zheng’s protestations that his fingers merely brushed Witness AB’s clothes and that she did not stumble[9] simply cannot be sustained.
(f)Mr Zheng swore at Witness AB and shouted at her to ‘fuck off’. I am not persuaded by Mr Zheng’s argument that this was not angry or aggressive.
I find that Mr Zheng deliberately pushed Witness AB, with some force. He then swore aggressively at her. Though I accept that Mr Zheng may have been concerned given his injured knee, Witness AB’s light contact as she exited the lift did not justify Mr Zheng’s aggressive and intentional response.
4.2 Investigation
When Mr Chong arrived at his desk on Monday 16 September 2024, he reported the incident to his manager. Mr Chong’s evidence is that he told his manager he did not know who the CPMM employee was, but that he thought the CPMM employee’s actions were wrong. He also wanted to tell his manager immediately so he could remember the details of what occurred.
Later that day, Mr Chong and his manager walked around Level 6 of the building to see if he could recognise the CPMM employee involved in the incident. Mr Chong saw Mr Zheng and pointed him out to his manager.
On Tuesday 17 September 2024, Mr Chong met the Manager for Health and Injury Management for CPMM. After this meeting, Mr Chong sent an email to this CPMM Manager summarising what had occurred. This email stated:[10]
On 16 September 2024, at 8:14am, I arrived at 45 St Georges Terrace, Perth, WA 6000. Upon entering the building, I observed a lady pressing the button for the lift. When the doors opened, a man, who was standing closer to the lift, entered before the lady, just as I was approaching the entrance. I quickly moved to enter as well, but the man, wearing a CITIC access card around his neck, positioned himself in the middle of the lift entrance without making any attempt to give me space. I had to adjust slightly to enter and ended up standing on the right-hand side, behind them. We all faced the entrance, and although the man had entered first, he remained in the centre, while the lady stood on the left-hand side.
When the lift arrived at level 2, the lady appeared visibly upset because the man did not make any effort to step aside to let her exit. She said something along the lines of “you’re blocking my way”. The man remained silent, and the lady tried to squeeze past him. Suddenly, the man pushed her out of the lift, saying “fuck off”. The lady, clearly shocked, turned to me (I was still standing behind the man) and said, “you’re my witness right?”. I nodded in agreement, and the lift doors closed. The man exited at level 6. Later, during a meeting at 11:00am in the Roebourne meeting room, I was able to identify his seat, and I believe his name is ‘Peng Zheng’.
On Tuesday 17 September 2024, Witness AB went to CPMM’s offices on Level 7 to report the elevator incident. Witness AB’s evidence is that she had recognised Mr Zheng wearing a CPMM lanyard. Witness AB ended up speaking with Mr Lord.[11]
Witness AB and Mr Lord gave congruous evidence. Witness AB told Mr Lord that she had been assaulted in the building elevator by a CPMM employee who had also sworn at her. Witness AB did not know the name of the CPMM employee but noted there were CCTV cameras in the elevators and that there was a witness to the incident. Witness AB told Mr Lord that she wanted to report the incident, but did not want any further involvement in the matter, such as giving a written statement.[12]
Mr Lord approached building management to obtain the CCTV footage of the incident. He also made inquiries to find out who the CPMM employee could be. The CPMM Manager referred to in [35] contacted Mr Lord and forwarded Mr Chong’s email.
On Wednesday 18 September 2024 at approximately 9:00am, Mr Lord met with Mr Chong and asked if there was anything he wanted to add to what he outlined in his email. Mr Chong briefly recounted what he said in his email.[13]
That same day at approximately 10:00am, Mr Lord received the CCTV footage of the incident from building management.
On Thursday 19 September 2024, Mr Lord approached Mr Zheng to ask him about the elevator incident. They went to a meeting room on Level 8 of the building. Mr Zheng’s account is that he briefly recounted what had occurred and Mr Lord insisted that he had to provide his account via email, but did not mention that CPMM was considering terminating his employment.[14]
Mr Lord’s account is that he told Mr Zheng that an incident had been brought to his attention and CPMM required a written response from him. Mr Zheng told Mr Lord that he had pushed someone and showed Mr Lord a pushing action and said he did it as the woman in the lift had pushed him first. Mr Lord told Mr Zheng to stop his explanation and that he needed a written response. Mr Lord also told Mr Zheng that they would view the CCTV footage together and Mr Zheng would have the opportunity to provide any further information.
Mr Lord’s evidence is that he told Mr Zheng that there would be an investigation, and a disciplinary outcome was possible, but that CPMM would not proceed down that path until he had the opportunity to review the footage and give his version of events. Mr Zheng denies Mr Lord’s version of events.
I found Mr Lord to be a more reliable witness. I accept Mr Lord’s evidence of this encounter.
Later, on Thursday 19 September 2024, Mr Lord emailed Mr Zheng. This email sought Mr Zheng’s written response to the incident on Monday 16 September 2024, and asked Mr Zheng to meet with Mr Lord the next day. Mr Zheng was also told that he was entitled to bring a support person for the meeting.
That same day, Mr Zheng emailed Mr Lord the following account:[15]
Dear Nick Lord
My name is Peng Zheng. I work for Cape Preston power plant. In March I had a knee injury at work. After a painful surgery now I am recovering. I think that’s the reason why I am assigned light duty work in Perth HQ. But still no good mobility. Obviously limp a bit.
This Monday morning, I went to work as usual. Shortly after 8am I arrived [at] 45 St George’s Terrace. Three people only used the big lift together. Suddenly one person asked me, the recovering worker, to give my space to her for no reason. I realised that person is a weird or bad guy but I still tell him/her if necessary when she left I would let her pass. But the lift was really spacious. She walked to the other side which is open directly to the door. Nobody blocked her way. When she left the cage, she pushed me unnecessarily. Then I knew that person was rude violent maybe even weird pervert. I knew she’d come back and do more assault or other harassment. I need to protect myself. I didn’t know we were protected by surveillance. So naturally I pushed her away and told her f*ck off. That moment she dare not do anything.
Now she is back with more verbal attack and lies.
That is definitely not personal. I don’t know that person from Adam. I cannot work out why should it happen. Hope there is no dark power behind her against CITIC.
Regards,
Peng Zheng.
As referenced in [12] of this Decision, this email is at odds with Mr Zheng’s oral evidence that his fingertips merely brushed Witness AB’s clothing.
On Friday 20 September 2024, Mr Zheng met with Mr Lord and a payroll superintendent for CPMM. They viewed the CCTV footage of the incident.
Mr Zheng’s account is that after watching the video, he told Mr Lord that the video confirmed his version of events. Mr Lord ‘gestured’ that he supported Mr Zheng and he agreed that video aligned with Mr Zheng’s account.
Mr Lord’s evidence is that he asked Mr Zheng for his response. Mr Zheng said he had been provoked and that there had been plenty of room for Witness AB to walk around him.
Mr Lord asked Mr Zheng some questions. Mr Lord took notes. Mr Lord submitted a copy of the meeting notes, which record the following responses from Mr Zheng:[16]
NL: Can you explain to me why you have pushed her and sworn at her?
PZ: I believe that there was enough space for her to get past when she got out of the lift she unnecessarily pushed me on the way, so I pushed her and told her to fuck off, she pushed me first.
NL: Can you explain to me that given she asked you to move aside and you saw that she was getting off on a floor below you, why didn’t you move out of the way?
PZ: If you look at the video there is enough space she should have gone around me, there was plenty of space in the elevator.
Mr Lord denies he told Mr Zheng that the footage aligned with his version of events or that he supported him.[17] Mr Lord told Mr Zheng that there would be a disciplinary outcome based on the evaluation of the material, which could be up to and including termination.[18]
After meeting with Mr Zheng, Mr Lord considered the CCTV footage and the material from Mr Zheng and Mr Chong. Mr Lord decided that Mr Zheng had breached the CPMM Code of Conduct; specifically, ‘values’ and section 4 (Representing CITIC Pacific Mining), which provides behaviours such as abusive language, disorderly conduct, harassment or any other antisocial interaction will not be tolerated.[19] Mr Lord recommended to CPMM leadership that Mr Zheng be dismissed, which was accepted.
On Tuesday 24 September 2024, Mr Lord called Mr Zheng and informed him of CPMM’s decision to end his employment. Mr Lord then sent Mr Zheng a termination letter from CPMM. The letter states that CPMM’s decision to terminate Mr Zheng’s employment was on the basis of his ‘physically aggressive and threatening behaviour directed an external employee within the CPM Perth Office on 16 September 2024’.[20] It further explains, ‘Physically aggressive and threatening behaviour directed towards another employee, contractor, visitor or any other individual present at our site or office is a significant breach of the company’s code of conduct and behavioural expectations’.[21]
As of the date of the hearing, Mr Zheng continues to receive workers’ compensation payments for his injured knee.
Was the dismissal ‘harsh, unjust or unreasonable’?
I now turn to consider whether Mr Zheng’s dismissal was ‘harsh, unjust or unreasonable’ per s 385(b) of the Act.
Section 387 of the Act requires me to take into account eight matters in assessing whether Mr Zheng’s dismissal was unfair. I set out my consideration below.
5.1 Section 387(a) – was there a valid reason for the dismissal related to Mr Zheng’s capacity or conduct?
A valid reason is one that is ‘sound, defensible or well-founded’[22] and should not be ‘capricious, fanciful, spiteful or prejudiced’.[23]
Where the reason for dismissal relates to conduct, the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal actually occurred is to be determined based on the evidence,[24] and it is to be assessed on the balance of probabilities[25] taking into account the gravity of the allegations.[26]
Mr Zheng submits that he brushed Witness AB’s shoulder in an act of self-defence. He says that there is no evidence he intended to harm Witness AB and was acting in a preventative measure.[27] I refer to my findings at [31]–[32] in rejecting this submission.
Out of hours conduct
Mr Zheng submits that there was no valid reason for his dismissal as he did not breach CPMM’s Code of Conduct or ‘behavioural expectations’. Mr Zheng says that as the incident on Monday 16 September 2024 occurred outside of work hours and outside the workplace, CPMM’s Code of Conduct is not engaged. Mr Zheng also submits that CPMM never informed him of its ‘behavioural expectations’, and they have never been particularised.[28]
CPMM makes the following submissions on the issue of whether Mr Zheng’s conduct occurred outside of work hours and outside the workplace:
(a)The lifts at 45 St Georges Terrace are part of the workplace. This is because the lifts are the only way for CPMM’s employees to get to work at CPMM’s Perth Office. Mr Zheng was in the lift as he was attending for work.
(b)Even if the lift was not part of CPMM’s workplace, Mr Zheng’s conduct has a sufficient connection with his employment.
Both parties made references to the Full Bench decision in Sydney Trains v Andrew Bobrenitsky.[29] In [116] to [139] of the decision in Bobrenitsky, the Full Bench traversed the history of relevant precedents on out of hours conduct in relation to the unfair dismissal jurisdiction. The Full Bench then set out the principles in relation to out of hours conduct as a valid reason for dismissal as follows:
(a)In certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. These circumstances are limited. The conduct must be such that, viewed objectively, it is likely to cause serious damage to the employment relationship; the conduct damages the employer’s interests; or the conduct is of such gravity or importance as to indicate a rejection or repudiation of the employment contract.[30]
(b)To constitute a valid reason for dismissal, the out of hours conduct must touch the duties or the abilities of the employee in relation to the duties. This requires consideration of the entire factual matrix and questions such as: what was the nature of the out of hours conduct; where did it occur; the circumstances in which it occurred; the nature of employment; the roles and duties of the employee; the principal purpose of the employee’s employment; the nature of the employer’s business; express and implied terms of the employment contract; the effect of the conduct on the employer’s business; and the effect of the conduct on other employees.[31]
The Full Bench also noted that there may be a connection between out of hours conduct and employment in the following circumstances:
(a)Where the out of hours conduct occurs in a facility or accommodation provided by the employer (or a third party in an arrangement with the employer) However, more may be required to establish relevant connection than the geographical location where the conduct occurs.[32]
(c)Where the conduct is directly inconsistent with the employer’s role, duties or obligations.[33]
(d)Where the employee is convicted of a crime outside of work and that person is employed in a role where they must perform the same duties in the same context in which the crime was committed.[34]
(e)Where the out of work conduct materially damages the employer’s interests in respect of its relationships with its clients and staff.[35]
(f)Where the out of hours conduct affects other employees or the efficient operation of the business.[36]
As the Full Bench observed:[37]
The line that can be traced through the cases is that all the circumstances of the employment must be examined and that the express or implied terms of a contract of employment are relevant, but not determinative, to the connection between out of hours conduct and employment, where the conduct is relied on as a reason for dismissal. Absent a connection with employment of the requisite kind, out of hours conduct will not constitute a valid reason for dismissal.
In this matter, I have considered Mr Zheng’s employment. This is inclusive of his role, his work location and his duties. What is of significance in this case is the conduct – being the unjustified behaviour towards Witness AB – and the time and location where it took place.
As per the authorities in this area, pushing and swearing at another person does not automatically give rise to a valid reason for dismissal. However, in this matter, I do find that Mr Zheng’s actions give rise to a valid reason for dismissal for the following reasons:
(a)Location: The incident took place in the elevator of the building that CPMM’s Perth office is located in. It is the only way for CPMM employees to access the floors that CPMM uses. I find that the elevator is either part of the CPMM workplace or is sufficiently linked to the workplace due to its extremely close geographical and practical connection.
(b)Timing: This is not a case where the incident took place on a Saturday night, well outside of the employee’s usual hours of work. The incident took place approximately 15 minutes before Mr Zheng was due to commence work, at a time where many other office-based employees (including other CPMM employees) were attending work.
(c)Connection with CPMM: The incident was witnessed by Mr Chong, another CPMM employee. Mr Zheng was also easily identifiable as a CPMM employee as he was wearing a CPMM lanyard at the time.
(d)The nature of the incident: Mr Zheng forcefully pushed a stranger in the back and swore at her because she brushed past him when he was standing directly in front of the elevator door, after not moving at her request. It was a disproportionate and aggressive reaction that would not be acceptable if it took place inside the CPMM office space.
(e)The CPMM Code of Conduct: Clause 4 of the CPMM Code of Conduct states that (among other things) abusive language or any other anti-social interaction will not be tolerated under any circumstance.[38] There was some contention between the parties regarding the application of the Code of Conduct and to what extent Mr Zheng understood it. To be frank, I think that is largely immaterial as a reasonable person does not need a formal piece of paper to say absent extenuating circumstances, you should not intentionally shove and swear at people in places or circumstances connected to your work.
With the circumstances of Mr Zheng’s employment and the incident taken together, I find that Mr Zheng’s actions did damage CPMM’s interests. It is unsurprising that CPMM did not want an employee deliberately pushing other people in the building lifts while wearing a CPMM lanyard and in front of other CPMM employees.
Proportionality
I am not persuaded by Mr Zheng’s submission that dismissal was a disproportionate response to his conduct.[39] Mr Zheng effectively assaulted a stranger because he was aggrieved that she had brushed past him. This was a serious matter.
The investigation
Mr Zheng submits that the investigation process was flawed for the following reasons:
(a)The investigation was conducted over the course of days and over a long weekend, which shows that CPMM took a fast-tracked approach in reaching the decision to terminate Mr Zheng.[40]
(b)CPMM failed to provide Mr Zheng with Witness AB’s statement regarding the Monday 16 September 2024 incident, or any other documents or information which were relevant to its decision to dismiss Mr Zheng.
I do not find anything unusual in an investigation being conducted over a few days where there are a low number of witnesses (in this case, Mr Zheng and Mr Chong) to a short incident that was also captured by CCTV.
Regarding Mr Zheng’s point regarding Witness AB’s statement, there was no statement from Witness AB, and she did not participate in the investigation beyond informing CPMM of the incident.
Insofar as Mr Zheng raises issues with the investigation process into what occurred on Monday 16 September 2024, I find that they carry no weight. When Mr Lord wrote to Mr Zheng on Thursday 19 September 2024, he put Mr Zheng on notice of the allegation that he had pushed and sworn at someone as they attempted to exit the lift.[41] Mr Zheng was given the opportunity to give his version of events before and after viewing the CCTV footage, in writing and orally.
To the extent Mr Zheng makes any submissions regarding his English competency affecting his understanding of the process, I do not accept such an argument. From Mr Zheng’s email reply to Mr Lord on Thursday 19 September 2024, he understood what Mr Lord was asking him. If Mr Zheng did not understand Mr Lord during the investigation process, he did not lead any evidence to that effect. I find that Mr Zheng was given a fair opportunity to respond to the allegation.
For the reasons outlined above, I find that there was a valid reason for Mr Zheng’s dismissal.
5.2 Section 387(b) and (c) – notification of valid reason and opportunity to respond
An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss.[42] Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.[43]
It is clear on the evidence that after CPMM reached a view on what occurred on Monday 16 September 2024 and that it gave rise to a reason for termination, it did not give Mr Zheng the opportunity to respond to that reason. As per Mr Lord’s evidence, he met with Mr Zheng on Friday 20 September 2024 to view the CCTV footage and ask him questions. Mr Lord considered the material and reached the view that Mr Zheng had breached the CPMM Code of Conduct and then informed Mr Zheng of his dismissal on Tuesday 24 September 2024.
I find that Mr Zheng was not notified of the reason for his dismissal prior to the decision to dismiss and was not given the opportunity to respond.
5.3 Section 387(d) – any unreasonable refusal to allow a support person
Mr Zheng submits that he was not told he could have a support person for his discussion with Mr Lord on Thursday 19 September 2024 and he was not given sufficient notice that he could have a support person for his meeting with Mr Lord on Friday 20 September 2024.
CPMM submits that Mr Zheng’s position is misconceived – the question is whether CPMM unreasonably refused Mr Zheng’s request for a support person.
I agree with CPMM. Based on the evidence, Mr Zheng made no request for a support person. Mr Zheng was told he could bring a support person to the meeting on Friday 20 September 2024, which he did not take up. I find that this is a neutral consideration.
5.4 Section 387(e) – warnings concerning performance
Mr Zheng was not terminated for poor performance. This is therefore a neutral consideration.
5.5 Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed
CPMM is a large enterprise with approximately 1,300 employees and dedicated HR specialists. I find this is a neutral consideration.
5.6 Section 387(h) – any other matters the Commission considers relevant
Mr Zheng raises the following matters which he says should be considered relevant:
Difficulty in finding new employment
CPMM did not consider the following factors when deciding to dismiss him:
(a)Mr Zheng’s injury at the time of his dismissal. Mr Zheng says that his injury means he cannot find alternative employment until he is fully recovered.
(b)Mr Zheng is 55 years old. This would make it difficult for him to find alternative employment in the same occupation.
(c)Mr Zheng has worked in power plants for over twenty years. This means his career experience is specific and niche. It would be difficult for him to find a similar role in Western Australia, especially one that pays the same as his role with CPMM.
It is not unusual that a dismissal will adversely affect the dismissed employee. I do not find Mr Zheng’s submissions in this regard persuasive. I also note that Mr Zheng is still receiving workers’ compensation payments, which ameliorates Mr Zheng’s hardship until he can find a new job.
CPMM’s bias against men
Mr Zheng effectively says that because his version of events was so credible, CPMM choosing to side with Witness AB shows that CPMM is biased against men.[44] This submission rises no further than conspiracy or speculation. As I have outlined, Mr Zheng’s version of events was not credible. Mr Zheng’s contention that CPMM is biased against men was also unsupported by any material other than Mr Zheng’s grievance that CPMM did not find in his favour.
Witness AB’s credibility
Mr Zheng says that Witness AB is motivated by revenge and/or spite; and that Witness AB did not report the incident to the police because ‘she knew that she was not of clean hands’.[45] There was no evidence led at all to support these contentions. It is also not factually correct, as Witness AB did report the incident to the police.[46]
Dismissal was disproportionate
Mr Zheng submits that his swearing at Witness AB was justified in the circumstances and did not warrant summary dismissal.[47] Mr Zheng’s swearing cannot be separated from his deliberate push of Witness AB. I refer to my earlier findings regarding the proportionality of Mr Zheng’s dismissal.
Termination by phone
Mr Zheng says CPMM’s decision to dismiss him over the phone was harsh and unreasonable and that he should have been afforded the basic dignity of an in-person meeting.[48] Mr Lord’s evidence is that chose to inform Mr Zheng of his dismissal over the phone as he did not want to make Mr Zheng attend the office for a brief discussion.[49] When taken together with the procedural deficiencies in Mr Zheng’s dismissal, I agree that this is a relevant factor.
Real reason for termination
Mr Zheng contends that the real reason why he was dismissed was because he was a financial burden to CPMM.[50] Putting to one side that the test is whether there was a valid reason for dismissal, not what was the real reason for termination, Mr Zheng’s contention was not borne out in Mr Lord’s evidence. Mr Lord gave evidence that to his knowledge CPMM had not hired anyone to fill in Mr Zheng’s role while he was on light duties,[51] and that CPMM had overflow staffing, meaning that Mr Zheng’s role could be covered.[52]
5.7 Is the Commission satisfied that Mr Zheng’s dismissal was harsh, unjust or unreasonable?
I have made findings in relation to each matter in s 387 as relevant to this case. I have found all factors except for s 387(a), (b) and (c) to be neutral in this matter.
The procedural deficiencies in Mr Zheng’s dismissal are serious. However, in considering all the relevant facts in this matter, I find that the valid reason outweighs how Mr Zheng was dismissed. In reaching this conclusion, I have placed weight on Mr Zheng’s conduct; the impact it had on CPMM’s interests; and Mr Zheng’s complete lack of remorse for his actions. Even on the day of the hearing, Mr Zheng was still insisting that he was a victim of Witness AB and that there had been nothing wrong in how he had acted.
Mr Zheng’s dismissal was not unfair. His application is dismissed.
COMMISSIONER
Appearances:
J Singh for the Applicant.
N Ellery of Counsel for the Respondent.
Hearing details:
2025.
Perth:
5 and 6 March.
[1] PR784543.
[2] Witness Statement of Peng Zheng, Digital Court Book (DCB) 132–3 [32]–[44].
[3] Transcript of Proceedings, Peng Zheng v Citic Pacific Mining Management Pty Ltd (Fair Work Commission, U2024/12281, Lim C, 5 March 2025) (Day 1 Transcript) PN296, PN316.
[4] Ibid PN330–PN331.
[5] Witness Statement of Ho Kit Chong, DCB (n 2) 281 [10]–[18].
[6] Witness Statement of Witness AB, DCB (n 2) 286 [8]–[20].
[7] Witness Statement of Peng Zheng, DCB (n 2) 132 [37]–[38].
[8] Transcript of Proceedings, Peng Zheng v Citic Pacific Mining Management Pty Ltd (Fair Work Commission, U2024/12281, Lim C, 6 March 2025 (Day 2 Transcript) PN2984–PN2995.
[9] Day 1 Transcript (n 3) PN565–PN568.
[10] Witness Statement of Ho Kit Chong, Annexure KC-1, DCB (n 2) 284.
[11] Witness Statement of Witness AB, DCB (n 2) 287 [23]–[25].
[12] Witness Statement of Nicholas Lord, DCB (n 2) 250 [19]–[20].
[13] Ibid 251 [27]–[28].
[14] Witness Statement of Peng Zheng, DCB 134 [56].
[15] Witness Statement of Nicholas Lord, Annexure NL-6, DCB (n 2) 273.
[16] Ibid Annexure NL-7, DCB (n 2) 275.
[17] Witness Statement of Nicholas Lord, DCB (n 2) 253 [45].
[18] Ibid [46].
[19] Ibid [49]–[50].
[20] Witness Statement of Peng Zheng, Annexure 7 – Termination of Employment Letter, DCB (n 2) 199.
[21] Ibid.
[22] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), 62 IR 371 [373].
[23] Ibid.
[24] King v Freshmore (Vic) Pty Ltd Print S4213, (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) [24].
[25] Edwards v Justice Giudice [1999] FCA 1836, (23 December 1999) [6]–[7], [(1999) 94 FCR 561].
[26] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336].
[27] Applicant, ‘Applicant’s Outline of Submissions’, Submission in Peng Zheng v Citic Pacific Mining Management Pty Ltd, [2025] FWC 1471, 5 February 2025 (Applicant’s Outline of Submissions), DCB (n 2) 78 [60]–[61].
[28] Ibid 82 [78]–[79].
[29] [2022] FWCFB 32.
[30] Sydney Trains v Andrew Bobrenitsky [140], citing Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998) and Newton v Toll Transport Pty Ltd[2021] FWCFB 3457.
[31] Ibid [142].
[32] Ibid [143].
[33] Ibid [145].
[34] Ibid [146].
[35] Ibid [148].
[36] Ibid [149].
[37] Ibid [150].
[38] Applicant’s Outline of Submissions (n 27), DCB (n 2) 110.
[39] Applicant’s Outline of Submissions (n 27); DCB (n 2) 86 [94].
[40] Ibid 83 [81], 84 [84].
[41] Witness Statement of Nicholas Lord, Annexure NL-6, DCB (n 2) 273.
[42] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [70]–[73], [(2000) 98 IR 137].
[43] Ibid [75].
[44] Applicant’s Outline of Submissions (n 27); DCB (n 2) 95 [144]–[151], 96 [152].
[45] Ibid 97 [156]–[158].
[46] Day 1 Transcript (n 3) PN2013–PN2022.
[47] Applicant’s Outline of Submissions (n 27); DCB (n 2) 100 [173].
[48] Ibid 101 [176]–[178], citing Knutson v Chesson Pty Ltd [2018] FWC 2080 [47] quoted in Anita Cachia v Scobel Pty Ltd ATF the S & I Trust [2018] FWC 2648 [88].
[49] Witness Statement of Nicholas Lord, DCB (n 2) 254 [54].
[50] Ibid 102 [179]–[180].
[51] Day 2 Transcript (n 8) PN2328.
[52] Ibid PN2410.
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