Qing Wu v Maxfill Australia Logistics Pty. Ltd

[2024] FWC 3585

[2024] FWC 3585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Qing Wu
v

Maxfill Australia Logistics Pty. Ltd.

(C2024/8166)

COMMISSIONER MATHESON SYDNEY, 24 DECEMBER 2024

Application to deal with contraventions involving dismissal

1. On 15 November 2024, Mr Qing Wu (Applicant) filed a general protections application involving dismissal (Application) alleging that he was dismissed by Maxfill Australia Logistics Pty. Ltd. (Respondent) in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (Act).

1. On 19 November 2024, the Respondent filed a response to the Application, raising a jurisdictional objection on the grounds that the Applicant was not dismissed. In particular, the Applicant’s position is that he was dismissed on 25 October 2024 and the Respondent’s position is that the Applicant resigned voluntarily. This decision deals with that objection.

1. The matter was scheduled for a case management hearing on 20 December 2024 and during that hearing the parties expressed a desire for the jurisdictional objection to be resolved efficiently and expeditiously and a timeframe for the filing of submissions and evidence was agreed between the parties prior to a hearing on 24 December 2024.

1. Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a)a person has been dismissed; and

(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

1. The Applicant’s employment commenced on 21 October 2024 and came to an end four days later on 25 October 2024.

1. The Respondent submitted, relying on the evidence of Mr Shuang Wu, that:

·   it only had seven employees and wanted to retain the Applicant;

·   between 21 October 2024 and 25 October 2024 the Applicant was looking for new jobs using the Respondent’s computer. In support of this it provided a copy of what it says is the Applicant’s search history across that period which appears to show that the ‘Seek.com.au’ website was accessed on numerous occasions;

·   on the morning of Friday 25 October 2024 Mr Huiming Wu of the Respondent asked the Applicant if he was willing to learn and take his role seriously however the Applicant:

o  responded “No”;

o  indicated he wanted to apply for a job in the automotive industry and was not interested in continuing in the freight forwarding industry;

o  advised Mr Huiming Wu that he had applied for two other jobs online during the prior four days;

·   the Respondent has taken the Applicant’s response to mean that he resigned.

1. The Applicant’s evidence was that he wanted to learn new knowledge about the freight forwarding industry and followed the Respondent’s training plan. The Applicant said Mr Huiming Wu asked him to have a conversation in his office on 25 October 2024. By way of summary, the Applicant’s evidence was that during the conversation:

• Mr Huiming Wu told him that there were two kinds of people that he would not hire being “people who had just came to Australia from China and new graduates from university”;

  • as he had just arrived in Australia in July he felt discriminated against because of his origin and previous experience;
  • Mr Huiming Wu asked the Applicant to find another job and to hand over his tasks to another employee;
  • he did not say anything about resigning;
  • he checked with Mr Huiming Wu whether he should leave the company directly after handing over his tasks and Mr Huiming Wu confirmed that he should;
  • Mr Huiming Wu stated that the reason for termination was the Applicant’s previous work experience and origins rather than his ability and capacity for the job.

1. During the hearing the Applicant acknowledged he was browsing on seek. It seems likely that Applicant was looking for another job a very short time after he started his employment with the Respondent, the Respondent learned of this and perceived that he was lacking in motivation and this brought on a conversation between the Applicant and Mr Huiming Wu on 25 October 2024. It is likely that the Respondent found the Applicant’s actions in applying for other jobs and the response he gave to Mr Huiming Wu about this to be unsatisfactory. However, the evidence before me does not establish that the Applicant’s conduct and response constituted resignation.

1. Mr Huiming Wu did not give evidence to the Commission and Mr Shuang Wu, who represented the Respondent, was not present during the conversation that was had between the Applicant and Mr Huiming Wu on 25 October 2024.  As noted above the Applicant’s evidence was that during the conversation on 25 October 2024 Mr Huiming Wu asked him to find another job and to hand over his tasks to another employee. The Applicant said he asked whether he should leave the company after handing over his tasks and Mr Huiming Wu confirmed that he should. I accept the Applicant’s evidence in this regard.

1. Having regard to the above, I find that it was that the actions of the Respondent, through Mr Huiming Wu, that brought the employment relationship to an end and that the Applicant was dismissed at the Respondent’s initiative.

1. I find that the Applicant was dismissed and the jurisdictional objection is dismissed.

COMMISSIONER

Appearances:

Mr Q Wu on his own behalf.
Mr S Wu on behalf of the Respondent.

Hearing details:

2024.
Telephone.
24 December.

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