Tianjun Qiu v Agri West Pty Ltd

[2017] FWC 7024

[2017] FWC 7024

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tianjun Qiu
v
Agri West Pty Ltd
(U2017/9115)

COMMISSIONER MCKENNA SYDNEY, 22 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] At the conclusion of proceedings in relation to this application, I announced the application was dismissed and that same day issued an order [PR598593] in such respects. My reasons now follow.

[2] On 22 August 2017, Tianjun Qiu (also known as “Eddie Yau”) (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he sought an unfair dismissal remedy concerning the termination of his employment by Agri West Pty Ltd (“the respondent”). The respondent initially raised an objection to the application on minimum employment-related grounds, but that objection ultimately was not pressed (see my earlier decision of 10 October 2017 in Tianjun Qiu v Agri West Pty Ltd[2017] FWC 5242).

[3] Directions were subsequently issued concerning the substantive matters and, although the applicant did not adhere to those directions in a timely or otherwise complete way, proceeding ensued on 11 December 2017.

[4] The applicant contended in relation to the substantive merits of the application that his termination of employment by the respondent was a harsh, unjust or unreasonable dismissal. The respondent, on the other hand, contended that the business had not being doing well financially, and that it was in those circumstances and under instruction from the (China-based) owner of the business that the termination of the applicant’s employment came about.

[5] Section 396 of the Act identifies certain initial matters are to be considered before any merits consideration. As to those matters, the application was made within time; the applicant was a person protected from unfair dismissal; the Small Business Fair Dismissal Code (“Code”) applied due to the small size of local operations; and the question of whether the dismissal was a case of genuine redundancy was in dispute.

[6] The parties were self-represented. The applicant was assisted by a Cantonese-speaking interpreter and the respondent’s representative, Ms J Zhang (who has held roles as a director and employee of the business), was assisted by a Mandarin-speaking interpreter. I am indebted to the assistance of the two interpreters in the proceedings. The parties’ evidence and submissions did not address the Code and nor was “genuine redundancy” addressed – or, more accurately, it was not addressed within the statute-conditioned meaning of s.389 of the Act. Given the dearth of material as to issues relating to the Code, I proceed on the basis that it did not relevantly arise in the circumstances of the termination of employment in this case (for example, no issues related to conduct or performance were relied upon in the respondent’s case; and considerations as to, for example, s.389 of the Act did not seem appositely to arise in the case respectively advanced by the parties).

[7] As to the criteria for considering harshness etc in s.387 of the Act, the dismissal did not turn on the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees) and so the considerations specified in ss.387(a), (b), (c) do not arise; and nor did prior warnings about unsatisfactory performance within the meaning of s.387(e) arise because the termination of employment did not turn on any performance-related issues. As to the size of the respondent’s enterprise, Ms Zhang’s evidence was that, at the time of the termination of the applicant’s employment, there were just two employees apart from, for example, her own role as a employee/director in the operations of the business; this small size is likely to have the impact that it did on the procedures that were adopted and, moreover, the respondent did not have any dedicated human resource management specialists or expertise (s.387(f)-(g)). There was no evidence of any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions related to the dismissal (s.387(d)).

[8] As to any other matters the Commission considers relevant, within the meaning of s.387(h) of the Act, the respondent advanced a solid case (including accountant-prepared documents) concerning the poor financial situation in which the business found itself, albeit the applicant submitted he could not understand why the financial circumstances were in that state given he considered he had undertaken his sales-related duties satisfactorily.

[9] The applicant and another employee were the only two salespeople employed by the respondent, and each had his employment terminated on or about the same date against the background of circumstances where the respondent had, due to financial exigencies, proposed a restructuring of their remuneration - and where such proposal was unacceptable to each of those two employees. The other employee was subsequently re-employed under a new contract having a limited-term basis of about four months with a view to assisting the respondent in finalising what little work then remained, such as clearing remaining stock. Ms Zhang explained that the balance of remaining work was offered to the other employee rather than to the applicant due to, in effect, compassionate reasons associated with that other employee’s family circumstances; but, as things transpired, that other employee resigned his employment with the respondent after about a month into that term contract to take-up alternative employment. Following that other employee’s resignation, the respondent apparently offered to re-employ the applicant on a similarly short-term basis, but the applicant declined that offer of re-employment.

[10] Despite the applicant’s contentions about what is indicated in communications such as “WeChat”, I do not accept the applicant’s characterisation that his termination of employment was brought about by some form of premeditation that he should be dismissed (and then replaced) and that the ensuing termination of employment was a harsh, unjust or unreasonable dismissal. In summary, in the time since the employment of the applicant and the other employee was terminated around the same time due to what Ms Zhang described as the “hopeless situation” where the business could not afford to continue the employment of its only two employees under their then-contracts, the other employee was re-employed for a period spanning approximately one month as the respondent’s sole employee. Apart from that instance of re-employment of the other employee over a period spanning approximately one month and some part-time work Ms Zhang undertakes, the respondent has not employed anyone and indeed had, and continues to have, no one in its employment in the time following those developments. The respondent has either ceased operations or is in the process of having them cease, consequent upon a decision made by a China-based owner/director of the respondent. Following the decision of the owner of the business, matters were out of Ms Zhang’s hands. Ms Zhang expressed her upset about the failed or failing business - “a very sad thing”, as she put it - and the resulting terminations of employment while trying to repay debts and the like.

[11] As I had not been satisfied that that applicant had established a case that he had been unfairly dismissed, the application was dismissed.

COMMISSIONER

Appearances:

T Qiu in person.

J Zhang from the respondent.

Hearing details:

2017.

Sydney:

December 11.

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<Price code A, PR599100>