Shaowei Lin v Chand & Li International Pty Ltd

[2021] FWC 1514

[2021] FWC 1514

FAIR WORK COMMISSION

DECISION

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

Shaowei Lin
v
Chand & Li International Pty Ltd
(U2020/10183)

COMMISSIONER CAMBRIDGE SYDNEY, 25 MARCH 2021

Unfair dismissal - s. 386 - employment not terminated on initiative of employer - application dismissed.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Shaowei Lin (the applicant). The respondent employer has been identified to be Chan & Li International Pty Ltd (the employer).

[2] The application was filed on 25 July 2020, and the employer filed a response (Form F3) on 3 August 2020. The application indicated that the date that the applicant was alleged to have been unfairly dismissed was 8 July 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer’s Form F3 raised a jurisdictional objection to the application on the basis that the applicant was allegedly not dismissed from his employment. Notwithstanding the jurisdictional objection that was raised by the employer, conciliation was arranged for 18 August 2020. Unfortunately that conciliation was unsuccessful.

[4] At a Pre-Hearing Conference held on 7 September 2020, further conciliation of the claim was attempted, again without success. At this Pre-Hearing Conference, the Fair Work Commission (the Commission) granted permission pursuant to s. 596 of the Act, for either Party to be represented by lawyers or paid agents.

[5] Subsequently, the matter has proceeded to an arbitration Hearing conducted at Sydney on 14 January 2021. The arbitration Hearing dealt with the substantive issues raised in the unfair dismissal claim, and logically first required determination of the jurisdictional objection raised by the employer, which involved the question of whether the applicant was a dismissed employee.

[6] At the Hearing, the applicant represented himself in circumstances as he explained, “Because my lawyer is not free today, so I represent him today.” 1 The applicant was provided with the assistance of a language interpreter. The applicant gave evidence as the only witness who was called to provide evidence in support of the unfair dismissal claim. The employer was represented by Mr Gregory Christodoulou, a solicitor from the firm Fair Work Centre. Mr Christodoulou introducedevidence from two witnesses who were called on behalf of the employer.

Factual Background

[7] The applicant commenced employment with the employer in November 2014, and in September 2018 he resigned. However, the applicant was re-engaged about a month later in October 2018. Consequently, the applicant had a period of continuous service of over 5 ½ years. The applicant worked on a full-time basis, engaged on Mondays to Fridays. The applicant was engaged to work as a food processing worker including work as a Bakery cook, and his employment was governed by the terms of the Food, Beverage and Tobacco Manufacturing Award 2020 [MA 000073] (the Award).

[8] The applicant worked at the employer’s food processing plant located in the Sydney suburb of Liverpool. The employer conducts a food processing and delivery business, and although it was stated in the Form F3 to have 14 employees, the employer’s website indicated that it had “60 experienced staff to cater to all your needs.”

[9] The applicant’s employment was without recorded complaint prior to 2020. In early 2020 the applicant was provided with a salary increase which accompanied a requirement for him to perform certain supervisory and organisational functions in the bakery section of the employer’s business operation.

[10] Later in the first half of 2020, the employer’s owner and business operator, Ms Lily Tran, became concerned about what she believed to be a deterioration in the applicant’s attitude to his employment. Ms Tran had received customer complaints about delays with food deliveries, and on the afternoon on 7 July 2020, Ms Tran decided to speak with the applicant and another employee about concerns that she had with delays and inefficiencies in the kitchen and bakery operations.

[11] At about 3 pm on 7 July 2020, Ms Tran approached the applicant together with another employee, Mr Jiaxi Xie (aka Gary). Mr Xie was a Pastry Chef and he also had supervisory and organisational responsibilities for the kitchen section of the employer’s business operation. Ms Tran informed the applicant and Mr Xie that she wanted the two men to cooperate and coordinate operations so that if necessary, workers in the kitchen would assist those in the bakery operations.

[12] At this point in the discussion, there was some conflicting evidence about precisely what was said by the applicant and by Ms Tran. The difficulties with the conflicting evidence have not been assisted in circumstances where the conversation was conducted in the Mandarin language, and the evidence has been presented as an English translation. Notwithstanding the difficulties with this conflicting evidence, it was clear that the applicant objected to the proposition that was made by Ms Tran whereby Mr Xie would have a role in the organisational arrangements including the work of the applicant.

[13] The applicant was affronted by the suggestion that Mr Xie would be able to interfere in his area of work operation. The applicant refused the directive of Ms Tran, and he asserted that as Ms Tran did not trust him, she could choose to employ another person in his position. Ms Tran told the applicant that he was not vital to the business operation, and that if he was not happy in his job, he no longer needed to come to work the next day. Following this disagreeable exchange, Ms Tran walked away from the applicant, and the applicant continued to perform his duties until his scheduled finish time at approximately 5 pm.

[14] On the next day, 8 July 2020, the applicant did not attend for work and he made no contact with the employer regarding his absence from work. Over the following 10 days, the applicant did not attend work or make any attempt to contact the employer regarding his absence. Ms Tran said that she unsuccessfully attempted to make telephone contact with the applicant after he had been absent from work for about 10 days.

[15] It appeared that on about Monday, 20 July 2020, Ms Tran instructed the employer’s payroll officer to make payment to the applicant of an amount equivalent to 2 weeks wages plus his accrued annual leave entitlements. Following the receipt of his termination payments, on 25 July 2020, the applicant filed his claim for unfair dismissal remedy.

[16] Following the termination of employment with the employer, the applicant looked for other employment, and he was successful in securing alternative employment about 4 months after he had received his termination payments from the employer.

The Applicant’s Case

[17] The applicant provided written submissions dated 5 October 2020, and during the Hearing on 14 January 2021, he provided a brief elaboration upon his documentary material.

[18] The written submissions made by the applicant stated that he rejected the employer’s assertion that he had voluntarily resigned from his employment when he had failed to attend for duty on and from 8 July 2020. The applicant submitted that he had never informed the employer verbally or in writing that he resigned from his job or that he had an intention to resign from his job.

[19] The written submissions made by the applicant also referred to the employer’s policy and procedure manual in which it was asserted, that employees were required to notify the employer of their resignation in writing. Further, it was submitted that the applicant never provided his written resignation, and he had not returned to work, and in the presence of other employees, the employer had “indefinitely dismissed” the applicant verbally on 7 July 2020.

[20] Consequently, according to the written submissions made by the applicant, he had been dismissed during the discussion that occurred with Ms Tran on the afternoon of 7 July 2020. Further, it was asserted that the dismissal of the applicant involved verbal abuse and harassment in the presence of other workers, and this caused workplace bullying and discrimination of the applicant in the workplace.

[21] The applicant further submitted that his dismissal was unfair because he had never been provided with opportunities to discuss or improve his job arrangements or resolve any issues with the employer prior to his dismissal. It was also asserted that the dismissal of the applicant was unfair because he had not been provided with reasonable prior notice in writing, and the dismissal had not been given on the basis of any solid evidence. In addition, the written submissions made by the applicant asserted that his dismissal had been given in an improper manner in the presence of other workers, and this caused serious workplace bullying, abuse and discrimination to the applicant.

[22] The applicant’s written submissions concluded by mentioning that the applicant had more than 5 years of permanent employment which had unfairly been brought to an end. The applicant sought remedy for his alleged unfair dismissal of payment of monetary compensation equivalent to 8 weeks’ pay.

[23] The applicant supplemented his written submissions by making the following remarks in response to the employer’s submissions made during the Hearing:

“… because she told me I don’t need to come in the next day, that in fact has the same meaning as, “You’re fired.” She never called me afterwards. I was the one who sent her a text message first regarding my tax return statement. Even when I send her that text message she did not ask me to go back to work, so all this is just her trying to keep lying to the Commission.” 2

The Employer’s Case

[24] Mr Christodoulou appeared for the employer at the Hearing, and he made verbal submissions opposing the unfair dismissal claim on the basis that the applicant had not been dismissed from his employment. Mr Christodoulou, also referred to written submissions that had been filed on behalf of the employer on 3 December 2020.

[25] The submissions made by Mr Christodoulou referred to s. 386 of the Act and recognised that the applicant would have been dismissed if the actions of the employer directly and consequentially resulted in the termination of employment and, had the employer not taken this action, the applicant would have remained employed. It was submitted that the evidence must establish that the action taken by the employer either intended to bring the relationship to an end or had that probable result.

[26] Mr Christodoulou submitted that the words spoken by Ms Tran to the applicant on 7 July 2020, could in no way constitute action that either intended to bring the employment relationship to an end, or had that probable result. In support of this submission, Mr Christodoulou referred to evidence that confirmed that at no stage during the conversation did Ms Tran use any words such as “you’re fired” or “dismissed” but instead she had simply indicated to the applicant that he was free not to come to work the next day if he was upset with her instructions.

[27] Mr Christodoulou also made submissions in respect to whether the applicant had been forced to resign from his employment. In this regard, it was submitted that the actions of the applicant involving the words that he had used on 7 July 2020, and his subsequent absence to attend for work on the days following amounted to his voluntary resignation.

[28] Consequently, according to the submissions made by Mr Christodoulou, the Commission lacked jurisdiction to deal with the applicant’s unfair dismissal claim because the applicant had not been dismissed. Mr Christodoulou submitted that the words that were exchanged between Ms Tran and the applicant on 7 July 2020, did not involve any action on the part of the employer that intended to bring the employment to an end or would have had that probable result. Mr Christodoulou submitted that support for this proposition was also provided by evidence that Ms Tran would have been happy to have the applicant return to his work on any of the days following 7 July 2020, but it was the applicant who chose not to attend for work.

[29] Mr Christodoulou also made submissions which rejected the prospect that it was necessary for the applicant to provide a written resignation. It was submitted that the resignation of an employee can be based solely on the employee’s conduct in the absence of any written or verbal advice confirming resignation.

[30] In conclusion, Mr Christodoulou submitted that the employer had not dismissed the applicant. Mr Christodoulou stated that the applicant had not been forced to resign and that his dismissal did not involve a termination at the initiative of the employer. Mr Christodoulou stated that the applicant merely decided to stay home and wait for the employer to come crawling back to him. However this did not happen. Mr Christodoulou submitted that the applicant’s unfair dismissal claim was without jurisdiction because the applicant had not been dismissed. Mr Christodoulou submitted that the applicant’s unfair dismissal application should be dismissed.

Consideration

[31] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[32] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of both fact and law. Further, section 386 of the Act prescribes a meaning of “dismissed”. Relevantly, sub-section 386 (1) of the Act is in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[33] In this instance the applicant did not provide any written resignation but instead he treated the discussion that he had with Ms Tran on the afternoon of 7 July 2020, and the subsequent absence of any contact from the employer on the days following, as his dismissal. In effect, the applicant was treating the actions of the employer as representing his dismissal without there being any clear overt action taken by the employer to dismiss the applicant other than the discussion with Ms Tran on 7 July 2020.

[34] There are circumstances where an employee may be entitled to treat the actions of the employer as the termination of the employment at the employer’s initiative without the employer taking overt action to dismiss the employee. Such circumstances may be comprehended by the concept of constructive dismissal as explained by the learned authors of the often quoted source book, Macken’s Law of Employment.  3 The following passage from that text is instructive:

“Alternatively, the employee may, in certain circumstances, treat herself or himself as discharged from further performance of the contract, and leave the employment without giving the requisite notice. This course will be justified where the conduct of the employer amounts to a repudiation of the contract, that is, the employer’s breach or proposed breach is sufficiently serious to allow the employee to regard herself or himself as discharged from further performance of the contract. The term “constructive dismissal” is often used to describe this situation.”

[35] Consequently, although it was not clearly articulated by the applicant, the circumstances in this instance involved an alleged constructive dismissal where the applicant has treated the conduct of the employer as the termination of his employment on the employer’s initiative, but without any overt act of, or advice of dismissal, until he received his termination payments on or about 20 July 2020. In such circumstances, the conduct of the employer must be carefully examined so as to establish whether it was sufficiently serious so as to be an egregious breach of the contract of employment which represented a repudiation of the contract of employment. If the evidence established that the employer’s conduct was such an egregious breach, proper basis would exist so as to permit the applicant to regard himself as discharged from further performance of the contract. In such circumstances, the applicant would have been constructively dismissed.

[36] There is a significant amount of case law authority on the question of constructive dismissal. One case which is often referred to is that of Mohazab v Dick Smith Electronics (No2) 4(Mohazab), which succinctly summarised the concept of constructive dismissal as follows:

“However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 5

[37] In Mohazab, the Full Bench of the Court also referred to another authority in the case of Allison v Bega Valley Council  6 (Allison). The following extracts from the decision in the Allison case is particularly helpful for application in the present circumstances:

“Although the term “constructive dismissal” is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?”

and

“In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee...”

[38] In the present case, the relevant actions of the employer involved the words spoken by Ms Tran during the exchange that she had with the applicant on the afternoon of 7 July 2020. It is conceivable that the applicant may have interpreted the words spoken by Ms Tran to have represented his dismissal from employment. There was certainly some disagreement during the conversation, and it was clear that the applicant rejected the directive that was given by Ms Tran which required him to coordinate his work activities with Mr Xie.

[39] However, the applicant did not immediately treat the words spoken by Ms Tran to represent his dismissal as he continued to work until his scheduled finish time of about 5 pm. The applicant then chose not to attend for work on the next day, 8 July 2020, and the days following. At this point in time, something of a stand-off occurred whereby the applicant did not attend for work, but instead he awaited contact from Ms Tran to request that he return to work. In respect to the stand-off circumstances the applicant provided the following evidence during his cross examination:

“You didn’t come to work because you chose not to come back to work the next day or the day after or the day after that. Is that correct? --- Because she told me, “You don’t need to come in the next day”, and then she never called me to come back to work.” 7

[40] This evidence and other testimony provided by the applicant, has confirmed that he was waiting for Ms Tran to contact him and request that he return to work. If the words spoken by Ms Tran on 7 July 2020, truly represented his dismissal from employment, there is no logical reason why he would be awaiting a call from Ms Tran requesting that he return to work.

[41] Consequently, the applicant understood that the words spoken by Ms Tran on the afternoon of 7 July 2020, did not involve his dismissal. The words spoken by Ms Tran simply challenged that if the applicant was not happy with the directive that required him to cooperate and coordinate his work with Mr Xie, he was free to not come to work on the following day.

[42] The applicant could not treat the words spoken by Ms Tran on 7 July 2020, to represent his dismissal from employment. In these circumstances, the applicant was obliged to attempt to continue the employment and ordinarily this would involve attending the workplace and presenting for work, or alternatively advising the employer of his absence. If the applicant was truly treating the words spoken by Ms Tran on 7 July 2020, to represent his dismissal from employment, his subsequent absence from the workplace should have logically been accompanied by some advice to the employer that he was treating the words of Ms Tran as his dismissal.

[43] The actions of the applicant in failing to attend for work on the days following 7 July 2020, represented actions which challenged Ms Tran’s directive, and involved an exercise in brinkmanship whereby he sought to have the employer request his return to work. The applicant engaged in a risky game of brinkmanship and unfortunately for him the employer refused to concede to his position. The employer was under no obligation to request that the applicant return to work.

[44] The absence of the applicant caused disruption to the employer’s business, and the employer would have preferred that the applicant continue in employment. However, after about 10 days absence, Ms Tran unsuccessfully attempted to contact the applicant and it was then understandable and reasonable that the employer treated the actions of the applicant on and from 7 July 2020, as his clear intention to no longer continue the employment. The actions of the applicant constituted his resignation from the employment, and therefore, the employer made payments to the applicant in respect of the termination of his employment.

Conclusion

[45] The determination of this matter has involved a contest about whether or not the applicant was a person dismissed from employment. Upon application of the relevant tests and an analysis of the evidence involving the circumstances of the termination of employment, it has been established that the actions of the applicant and not the employer, brought the employment to an end. Upon proper objective contemplation, the termination of the applicant’s employment was not caused by conduct, or a course of conduct, on the part of the employer.

[46] Unfortunately for the applicant, his conduct on and after 7 July 2020, represented actions that on any reasonable and objective consideration, permitted the employer to conclude that the applicant no longer wished to continue the employment relationship. The applicant was obliged to make contact with the employer rather than absent himself from work without any advice to the employer. The applicant could not properly treat the words spoken by Ms Tran on 7 July 2020, as dismissal from his employment. The conduct of the employer will be the true initiator of the termination of employment only if it can be objectively and properly established to have been incompatible with the continuation of the employment.

[47] As a matter of fundamental fairness, the applicant was obliged to test the circumstances after the exchange that occurred with Ms Tran on 7 July 2020. The fact that the applicant was awaiting contact from Ms Tran clearly contradicts the suggestion that he had been dismissed during the conversation on 7 July 2020. Somewhat unusually, the true position in this matter was alluded to in the Form F2 application which included the following statement from the applicant: “I dismissed my employer for my unreasonable attitudes and practices in which I strongly oppose.” 8

[48] Consequently, a careful analysis of the circumstances in this instance has established that it was not the actions of the employer that operated as the real and effective initiator of the termination of the contract of employment. The applicant was not a person dismissed from employment in accordance with the meaning of dismissed contained in s. 386 of the Act. The jurisdictional objection as advanced by the employer must be upheld.

[49] The application for unfair dismissal remedy is dismissed as it is without jurisdictional foundation. An appropriate Order shall be issued accordingly.

COMMISSIONER

Appearances:

Mr S Lin appeared unrepresented.

Mr G Christodoulou, solicitor from Fair WorkCentreappeared for the employer.

Hearing details:

2021.
Sydney:
January, 14.

Printed by authority of the Commonwealth Government Printer

<PR727941>

 1   Transcript @ PN6.

 2   Transcript @ PN408.

 3   Macken’s Law of Employment , [Sappideen et al,] Seventh edition, Lawbook Co. @ [9.20] page 346.

 4 Mohazab v Dick Smith Electronics Pty Ltd (No.2), (1995) Industrial Relations Court of Australia, 62IR 200.

 5   Ibid @ page 207.

 6 Allison v Bega Valley Council, (1995) Full Commission of the Industrial Relations Commission of NSW, 63IR 68.

 7   Transcript @ PN247.

 8   Form F2 application @ paragraph 3.2.