Shulin Guo v Metwest Steel Pty Ltd

[2016] FWC 5808

[2016] FWC 5808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shulin Guo
v
Metwest Steel Pty Ltd
(U2016/1000)

COMMISSIONER WILLIAMS PERTH, 18 AUGUST 2016

Termination of employment.

[1] This decision concerns an application made by Mr Shulin Guo (Mr Guo or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is MetWest Steel Pty Ltd (MetWest or the respondent).

Factual findings

[2] Having considered the evidence of the witnesses I make the following findings.

[3] Mr Guo was first employed by the respondent in March 2012. He was employed as a Welder.

[4] Mr Guo had on occasions worked on building sites during the period he was employed with MetWest. He had not objected to this at the time.

[5] The letter of offer, which Mr Guo tendered as part of his evidence, is dated 5 March 2012 and says he has been offered a position as a Welder. The letter does not mention where the welding work will be carried out, there is no reference to a workshop or to construction sites. The letter of offer includes a provision as follows:

“Prior warnings: the company management is required to give employees three (3) warnings before termination of employment. This gives time for issues to be discussed and hopefully resolved.”

[6] The base salary was $88,410 per annum for 38 hours a week with hours beyond the rostered hours paid at time and half when worked Monday to Saturday and double time on Sundays.

[7] Mr Guo’s evidence includes a document accepting the offer on 30 March 2012.

[8] Mr Huang Weidong (Mr Weidong) is the Workshop/Site Foreman for MetWest. Mr Weidong has been employed in this role since 2010.

[9] Following discussions with Mr Guo in late January 2016 Mr Guo was granted a period of leave to return to China.

[10] It was Mr Guo’s understanding that he would take three weeks leave in total in order to travel with his wife and child back to China.

[11] It was Mr Weidong’s understanding that Mr Guo wished to be absent from work for approximately three months however there was no definitive period of leave agreed. Mr Weidong’s understanding was that Mr Guo was returning to China in order to attend an English training course which would assist in him potentially extending his Visa to work in Australia.

[12] On 3 February 2016 Mr Guo flew back to China.

[13] On Saturday, 20 February 2016 Mr Guo flew back to Perth.

[14] The next day Sunday, 21 February 2016 Mr Guo contacted Mr Weidong by telephone.

[15] From Mr Weidong’s perspective Mr Guo had returned much earlier than anticipated and arrangements had been made in his absence to ensure work in the workshop would be undertaken by others. Consequently Mr Weidong did not have any work for Mr Guo at that time in the workshop. He told Mr Guo they did not need him to work right then and he should wait for Mr Weidong’s call. The next day Monday, 22 February 2016 Mr Weidong sent him a SMS message proposing that he arrange for Mr Guo to work at one of the construction sites. 1

[16] Both Mr Guo and Mr Weidong provided the Commission copies of their text messages exchanged from this point onwards. As was explained to the parties at the hearing the Commission has had an independent Chinese interpreter translate these messages into English and I accept the translation is an accurate record of the text messages swapped between the two men.

[17] On 24 February 2016 Mr Weidong sent Mr Guo a message saying that he had spoken with the boss and had arranged for him to work at a building site.

[18] I accept Mr Guo’s evidence that later he spoke to Mr Weidong on the phone and he was asked to work on the construction site. His evidence was that he refused to work on the construction site saying it was illegal for him to work on the construction site. He insisted on rejecting work on the construction site.

[19] I note that Mr Guo’s explanation that it was illegal for him to work on the construction site was not at any time mentioned in any of the text messages between the men. I note that by his own admission Mr Guo had previously worked for MetWest on construction sites and had not objected to doing so. I note that there is nothing in the letter of offer that says where Mr Guo will work or that otherwise prevents him from being directed to work on a construction site. There is similarly nothing in the material provided by Mr Guo regarding his Visa that prevents him working on a construction site as a Welder. I find there was no legitimate basis for Mr Guo to refuse to work on the construction site.

[20] The evidence is that later that evening on 24 February 2016 Mr Weidong sent Mr Guo a text message asking whether he was going to work or not. He received no response.

[21] Again on 25 February 2016 Mr Weidong sent him a message asking,

“Where are you? Are you a going to work or not?”

No reply was received.

[22] On 26 February 2016 after discussions between Mr Weidong and MetWest’s Director Mr Yan the respondent was of the opinion that Mr Guo had abandoned his employment. As a consequence a letter of the same date headed “Employment termination” was sent to Mr Guo. It stated that they were informing Mr Guo that his position had been terminated. The letter referred to him not having attended for work on 23 February 2016 as required. This date appears to be an error and should have been 24 February 2016.

[23] On 29 February Mr Weidong sent a message to Mr Guo saying he had checked the accounts and the lawyer had said the previous week cannot be treated as paid leave because Mr Guo had not turned up at work when requested and has resigned. The message said that all annual leave remaining will be paid to him.

[24] Mr Guo replied that it is not him but Mr Weidong who will not let him go to work.

[25] Mr Weidong replied,

“You are the one who asked to go back to China for English training.”

[26] Mr Weidong goes on then to ask why Mr Guo did not inform him he was returning and should have allowed him some time to make arrangements for him to return to work. He continues,

“You come back whenever you want! The company is not a market! I haven’t stopped you from coming back to work. In fact, I’ve sent messages to ask you to get back to work. Have you replied? The reason for sending you on site to work with Guoliang Lin is you don’t get along with others in the workshop. I tried everything to get you back to work you didn’t turn up and said to me on the phone that you treated as the company sacked you. I’ve never said they won’t allow you to come back to work but suggested that it is not suitable for you to work on the workshop. Remember I’ve sent you numerous text messages request you go to work.”

[27] The messages went backwards and forwards between the two men.

[28] Relevantly Mr Guo says,

“I can come back tomorrow if you let me go back to work in the workshop.”

[29] Mr Weidong replied,

“The company didn’t do anything wrong by you. You expect the company to sack you so you get more compensation. It is wrong. I’ve sent you SMS request you to go to work and they are all recorded. You said you were not going to go there to work! The company is going to treat it as resigning. I’ve tried to get more benefit for you but couldn’t satisfy you. I did my best already.”

[30] To this Mr Guo replied,

“Resigning? You can’t make the decision, neither can I.”

[31] On 1 March 2016 Mr Weidong sent a message to Mr Guo as follows,

“The company will report you if you still won’t return to work. Going back to work ASAP is better for you in your situation.”

[32] Mr Guo replied,

“Okay, back to the factory? I am available any time.”

[33] Mr Weidong replied,

“Please don’t be picky. The company send you to the site due to the need there, just a show yourself at Ah Liangs…I said all what I should have and it’s your decision as whether you go back to work at the end of the day. If you keep going like this, I’m sure at the end you can only get the least benefit.”

[34] Mr Guo replied,

“I can be there any time at the workshop to work, just give me a yell.”

Consideration

[35] It is apparent from the evidence that at the time Mr Guo left Australia to return to China there was a misunderstanding between him and Mr Weidong as to the period of time he was to be absent for.

[36] How this confusion came about is not clear however both Mr Guo and Mr Weidong speak Chinese so this was not a consequence of any language barrier.

[37] On Mr Guo’s return to Australia he immediately contacted Mr Weidong who was at that point surprised he was back in Perth and wanting to return to work. A few days later Mr Weidong told Mr Guo to attend for work on a construction site. The evidence is that Mr Guo had previously on occasions worked on construction sites and had not then objected to this. Mr Guo refused to come to work on the construction site suggesting in some way it was illegal for him to do this. As I have found there was no legitimate basis for refusing to work on the construction site. It is not apparent from the text messages between them that this was an issue which Mr Guo was raising with Mr Weidong as to why he would not resume work on the construction site. Repeatedly Mr Guo simply said he was available to work in the factory and was willing to do so but would not work on the construction site and offered no explanation for this refusal.

[38] The employer took the view that Mr Guo should be dismissed because he was refusing to attend for work.

[39] After the dismissal Mr Weidong again offered Mr Guo the option of returning to work on the construction site but Mr Guo refused to do so repeating that he was however willing to return to the workshop.

The legislation

[40] Section 387 of the Act which is set out below prescribes the matters the Commission must consider when deciding whether or not in this case Mr Guo’s dismissal was harsh unjust or unreasonable.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason

[41] On Wednesday, 24 February 2016 Mr Guo was directed to attend for work on a construction site. That was a lawful and reasonable direction. That direction was included in an original SMS message, repeated in a phone conversation with Mr Weidong and followed up with a second SMS message that evening enquiring as to whether or not he was going to work. Mr Guo indicated he refused to work on the construction site.

[42] On Thursday, 25 February 2016 Mr Guo was again asked by SMS message whether or not he was going to come to work. Mr Guo did not reply that day and did not attend for work at the construction site.

[43] Mr Guo’s repeated refusal to attend for work as directed was a valid reason for his dismissal.

Notification of the reason for dismissal

[44] Mr Guo was not notified of the reason for which he was dismissed in advance of the decision to dismiss him, however the reason for his dismissal was provided in the respondent’s letter of termination.

Opportunity to respond

[45] It was not made clear to Mr Guo before he was dismissed that he would be dismissed if he did not attend for work on the construction site. Consequently Mr Guo did not have an opportunity to respond to the reason for which he was dismissed.

Unreasonable refusal to allow a support person

[46] There were no discussions relating to the dismissal so this matter is not relevant.

Warnings regarding unsatisfactory performance

[47] There is no criticism of Mr Guo’s performance so this matter is not relevant.

Size of the employer’s enterprise and dedicated human resource specialists

[48] The employer is a medium to small business and does not appear to have any human resource management specialists or expertise within the enterprise.

[49] The size of the business and the absence of human resource management specialists or expertise has clearly been a factor which has led to the procedures being followed in effecting Mr Guo’s dismissal being deficient.

Other matters

[50] Mr Guo had been employed at MetWest for just short of four years at the time of his dismissal.

[51] MetWest’s letter of offer which Mr Guo had accepted included a provision about warnings as follows:

“Prior warnings: the company management is required to give employees three (3) warnings before termination of employment. This gives time for issues to be discussed and hopefully resolved.”

[52] It is apparent that three warnings were not provided to Mr Guo before he was dismissed.

[53] Perhaps surprisingly even after having dismissed Mr Guo MetWest was willing to allow him to return to work and continue his employment. This is evident from the text messages sent by Mr Weidong on 29 February 2016 where Mr Weidong attempts to reason with Mr Guo about the situation and importantly again on 1 March 2016 where Mr Weidong tells Mr Guo that going back to work as soon as possible will be better for him. When Mr Guo again replied he will go back to the workshop at any time, Mr Weidong again tells him to not be picky and that MetWest is sending him to the construction site due to the need for him there and he should just attend there. Mr Weidong ends by saying to Mr Guo that at the end of the day it is his decision as to whether he returns to work.

Conclusion

[54] In all the circumstances I accept that the dismissal of Mr Guo was unjust, notwithstanding there was a valid reason for his dismissal, because of the failure to give warnings as required by the letter of offer and to follow a fair procedure whilst acknowledging the latter failure was a consequence of the modest size of the enterprise and the absence of human resource management specialists and expertise.

Remedy

[55] I note Mr Guo in his submissions does not seek reinstatement. Regardless it was apparent at the hearing of this matter that there is considerable animosity between Mr Guo and Mr Weidong as a consequence of the events surrounding the dismissal. Given this fact and that this is a relatively small business in the circumstances I am satisfied that reinstatement is inappropriate in this instance.

[56] I am satisfied that an order for compensation is notionally appropriate in the circumstances.

[57] I turn now to consider the matters prescribed in section 392 (2) of the Act which the Commission must take into account in determining an amount for the purposes of an order for the payment of compensation

[58] Mr Guo was employed for a little less than four years.

[59] There is no evidence as to what efforts Mr Guo has made to mitigate the loss he suffered by seeking out other employment since the time he was dismissed.

[60] There is no evidence as to what remuneration if any Mr Guo has earned from employment or other work since he was dismissed.

[61] If Mr Guo had been not dismissed as he was but instead MetWest had followed a fair process including giving him three warnings, whether verbal or written, it is my conclusion that because the work available for him was on a construction site and he had repeatedly over a period of seven days refused to work on site these circumstances would have ultimately led MetWest to dismiss him in any event. There is no reason to conclude Mr Guo would have changed his position and accepted the work on the construction site. At no time during the hearing did Mr Guo indicate that if he had been warned he would be dismissed if he did not work on the construction site that he would have changed his mind and worked on the construction site as he had been directed to.

[62] It is my assessment that if a fair process as explained above had been followed this would have resulted in the dismissal occurring one week later than it actually did. Mr Guo would not have attended for work during that week because he refused to work on the construction site and so he would not have been entitled to be paid. In summary, in all likelihood if Mr Guo had not been dismissed when he was he would not have received any additional remuneration.

[63] For completeness even if Mr Guo had been likely to receive any additional remuneration I would have reduced the amount of compensation to be ordered by 50% because his misconduct in refusing to attend for work as directed directly contributed to MetWest’s decision to dismiss him.

[64] Considering all of the circumstances of this case then there is no compensation that should be ordered. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

S. Guo on his own behalf.

R. Gilliam on behalf of the respondent.

Hearing details:

2016.

Perth:

May 30.

 1   Exhibit A1, Outline of evidence of Mr Guo.

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