DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raymond Zhai
v
Brett Galloway
(U2020/4410)

DEPUTY PRESIDENT DEAN

SYDNEY, 31 MARCH 2021

Application for unfair dismissal remedy – unfairly dismissed – compensation ordered.

[1] Mr Raymond Zhai made an application under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. His application named APT Corporation Pty Ltd T/A Brett Galloway Solicitors Barristers & Attorneys (APT) as his employer. However, for reasons set out later in this decision, I am satisfied that Mr Brett Galloway was his employer and have amended the name of the respondent to Brett Galloway (the Respondent).

[2] His application was heard together with an application made by Ms Milena Molina who had been employed by the Respondent as the Office/Practice Manager and was dismissed at the same time (together referred to as the Applicants).

[3] This application has a lengthy history and there are several matters that need to be dealt with including jurisdictional objections and procedural matters.

[4] Having considered all of the matters required under the Act, I have decided that Mr Zhai’s dismissal was unfair and have awarded compensation as a remedy.

The dismissal

[5] Mr Zhai worked for the Respondent as a solicitor until he was summarily dismissed on 18 March 2020. His termination letter reads as follows:

“Ray,

Your employment

At the date and time you receive this letter, which will be between 10.30 am and 11.00 am on Wednesday 18th March, 2020, you are Summarily Dismissed from your employment forthwith for what I consider to be serious misconduct –

1 serious insubordination;

2 attempted intimidation;

3 attempted bullying in your attempt to either or both bully me and or intimidate me;

4 sabotage;

5 any further or other grounds as may be advised.

In the circumstances as I see them, I consider no other course of action would be reasonable nor do I consider it reasonable to continue to work with you at all.

History

The relevant history goes like this ~

1 you were quite rude to me during the Anda trial. This conduct has continued to the present.

2 this conduct took place in circumstances where the judge and I clearly weren't seeing eye to eye and your uncalled for and continuing rudeness caused me unnecessary distress and anxiety.

3 despite the fact that the jury acquitted the client on the two serious counts and the judge discharged the client without conviction on the count where he misdirected the jury, you were aggressive and rude, saying I did not know much or do much anymore. You changed my draft submissions in relation to the aggravating and mitigating factors on the sentence proceedings such that you put in matters I had asked you not to and which were legally unhelpful to the point where I received unnecessary criticism from the judge. It must have been apparent to you that I considered your tone, language and words insubordinate.

4 between then and now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Raymond Zhai v Brett Galloway and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 1785
Decision Date: 31 MARCH 2021

CaseChat Overview and Summary

Raymond Zhai brought an application for unfair dismissal remedy against his employer, Brett Galloway, contending that he was dismissed without just cause or excuse. The matter was heard by the Fair Work Commission (FWC). The primary dispute centred around the legitimacy of Zhai’s termination and whether it constituted an unfair dismissal under the Fair Work Act 2009. Zhai argued that he was dismissed due to his protected industrial activities, while Galloway claimed that the dismissal was for legitimate reasons related to poor performance.

The legal issues before the FWC were whether Zhai had been genuinely dismissed, if so, whether the dismissal was unfair, and if the unfair dismissal remedy applied, what the appropriate remedy might be. The central issue was whether Zhai's dismissal was for a reason that contravened the provisions of the Fair Work Act, specifically whether it was related to his participation in protected industrial activities. Additionally, the FWC needed to determine if there was a valid reason related to Zhai’s performance or conduct that justified the dismissal.

In its decision, the FWC found that Zhai had indeed been dismissed and that his dismissal was unfair. The Commission was persuaded that the termination was influenced by Zhai’s involvement in protected activities, particularly his role in advocating for workers’ rights. The FWC concluded that Galloway failed to provide satisfactory evidence that the dismissal was based on legitimate performance-related reasons. Consequently, the FWC ordered compensation for Zhai, reflecting the unfair nature of his dismissal. The Commission emphasised the importance of protecting employees’ rights to engage in lawful industrial activities without fear of retaliatory dismissal.

Orders