Tzheng Su v Virtual Direct Pty. Ltd
[2023] FWC 2660
•13 OCTOBER 2023
| [2023] FWC 2660 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tzheng Su
v
Virtual Direct Pty. Ltd.
(C2023/4433)
| COMMISSIONER CRAWFORD | SYDNEY, 13 OCTOBER 2023 |
General protections dismissal dispute – jurisdictional objection alleging no dismissal – objection dismissed
BACKGROUND
Tzheng Su (Mr Su) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Su’s allegations that he has been dismissed from his employment with Virtual Direct Pty Ltd (Virtual Direct) in contravention of Part 3-1 of the FW Act.
Mr Su commenced casual employment with Virtual Direct on 23 July 2022 and worked at Virtual Direct’s Domino’s Pizza shop at Bondi. Mr Su’s Form F8 application filed on 24 July 2023 states he was dismissed on 3 July 2023. That means Mr Su filed on the last day of the 21-day filing period, assuming the dismissal date is correct.
Virtual Direct has objected to the application on the ground that Mr Su was not dismissed. This jurisdictional objection must be resolved before the Commission’s powers under s.368 of the FW Act are exercised. [1]
I issued directions for the filing of material in relation to the jurisdictional objection on 5 September 2023 and listed the matter for hearing on 5 October 2023. The parties generally complied with the directions.
Neither party sought permission to be represented at the hearing on 5 October 2023. Mr Su represented himself at the hearing and Peichu Zhang (Director and Shareholder) represented Virtual Direct.
MATERIAL FILED
Mr Su
Mr Su relied on a statement/submission dated 3 October 2023. The statement/submission contained the following attachments:
· Evi-1: Screenshot of messages between Mr Su and Mr Zhang discussing some concerns about Mr Su’s wages.
· Evi-2: Screenshot of messages between Mr Su and Mr Zhang on 15 June 2023 discussing some concerns about Mr Su’s wages.
· Evi-3: Screenshots from a “Team Bondi” group chat where Mr Su raised concerns about his pay.
· Evi-4: Screenshot of messages between Mr Su and Mr Zhang on 23 June 2023 discussing some concerns about Mr Su’s wages.
· Evi-5: Further screenshot of messages between Mr Su and Mr Zhang on 23 June 2023 discussing some concerns about Mr Su’s wages.
· Evi-6: Screenshot of messages between Mr Su and Mr Zhang on 29 June 2023 discussing some concerns about Mr Su’s wages. The messages end with Mr Su stating “Ok I’ll be back to work next week” and Mr Zhang replying “Oh”.
· Evi-7: Screenshot of messages between Mr Su and Anubhav Dhungel (Rostering Manager) on 29 June 2023 discussing whether Mr Su would attend a shift the following day.
· Evi-8: Screenshot of messages between Mr Su and Anubhav Dhungel on 29 May 2023 discussing Mr Su’s availability for work.
· Evi-9: Screenshots from a “Team Bondi” group chat where Mr Zhang stated “Let Anubhav deal with Bondi roster...”.
· Evi-10: Screenshot of Mr Su attempting to access his Domino’s Microsoft account and a message that he is locked out.
· Evi-11: Screenshots from Domino’s online system indicating Mr Su is a past employee and that the effective date of his employment was 22 July 2022 and “Date to” (which appears to represent the end date) is 2 July 2023.
I marked Mr Su’s statement Exhibit A1.
Mr Su was cross-examined by Mr Zhang.
Mr Su also provided oral closing submissions at the end of the hearing.
Virtual Direct
Virtual Direct relied on a statement from Mr Zhang dated 19 September 2023. The statement contained the following attachments:
· TS 1: Onboarding information for Mr Su.
· TS 2: Welcome to Domino’s email to Mr Su dated 25 July 2022.
· TS 3: Screenshots of messages from the “Team Bondi” group chat dated 23 and 24 June 2023.
· TS 4: Screenshot of messages between Mr Zhang and Mr Su on 23 June 2023 and 29 June 2023 regarding Mr Su’s wages and his return to work.
· TS 5: Excerpt of roster showing Mr Su rostered to work on 29 and 30 June 2023.
· TS 6: Screenshot of messages from a “Bondi Managers” group chat which refer to Mr Su not attending shifts.
· TS 7: Screenshot of a message from Mr Su stating he is not attending work.
· TS 8: Screenshot of an excerpt from Mr Su’s payroll profile for 26 June 2023.
· TS9: Screenshot from the Tanda system showing Mr Su declined a shift and is still an employee.
· TS10: A screenshot demonstrating Mr Su is still part of the “Team Bondi” group chat.
I marked Mr Zhang’s statement Exhibit R1.
Mr Zhang was cross-examined by Mr Su.
STATUTORY PROVISIONS
Section 365(1) of the FW Act states:
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.
The dictionary in s.12 of the FW Act defines “dismissal” by calling up the definition in s.386 of the FW Act. The definition in s.386 states:
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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
CONSIDERATION
I consider it is clear that Mr Su was “dismissed” by Direct Group within the meaning of s.386(1)(a) of the FW Act effective 3 July 2023. The evidence that leads me to this conclusion is:
· Mr Zhang admitted Mr Su was rostered for shifts frequently and regularly from when he commenced employment on 23 July 2022 until 30 June 2023. Mr Zhang admitted Mr Su did not receive any shifts in the roster commencing 3 July 2023 and that Mr Su has not been rostered for any shifts since that time.
· Mr Zhang offered a variety of different explanations for why Mr Su had not been rostered. The explanations included: Mr Zhang thought Mr Su was away from work due to study commitments, Mr Su hadn’t entered any availability into the Tanda system, there are other casual employees that can be chosen for shifts by the roster manager, Mr Dhungel, and because Direct Group could not be confident Mr Su would attend rostered shifts, given he had refused to work on 29 and 30 June 2023 due to a dispute about his wages. Mr Zhang ultimately stated he did not know why Mr Su had not been rostered and that it was a matter for Mr Dhungel. I do not accept Mr Zhang’s evidence on this issue and consider he did not offer a satisfactory explanation regarding why Mr Su has not been rostered from 3 July 2023 onwards.
· Domino’s online system indicates the end date of Mr Su’s employment was 2 July 2023.[2] Although this could indicate the dismissal date was 2 July 2023 and hence Mr Su filed outside of the 21-day period, I am satisfied from the other evidence that 3 July 2023 is the correct date as that is when Mr Su became aware of the dismissal. I did not find Mr Zhang’s explanation for these dates appearing in the system to be convincing.
· Mr Su can now only access Domino’s online system to get his payslips in the “past employee” part of the site. Mr Zhang claimed he was not aware of this.
· Mr Su sent a message to Mr Zhang on 29 June 2023 stating he would be back at work next week because Mr Zhang had agreed to make a payment to him.[3]
· Mr Su sent a message to Mr Dhungel on 3 July 2023 stating: “Yo so am I fired?” and did not receive any response.
CONCLUSION
I determine that Mr Su was “dismissed” by Direct Group effective 3 July 2023 and dismiss the jurisdictional objection raised by Direct Group.
The dispute will proceed to be listed for a conference.
COMMISSIONER
Appearances:
Mr Su representing himself.
Mr Zhang representing Virtual Direct.
Hearing details:
2023
Sydney
5 October
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101 at [23].
[2] Exhibit A1, Annexure Evi-11, page 28 of the DCB.
[3] Exhibit A1, Annexure Evi-6, page 23 of the DCB.
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