Wei Jhang v Pharmamed Group Pty Ltd
[2023] FWC 1393
•14 JUNE 2023
| [2023] FWC 1393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Wei Jhang
v
Pharmamed Group Pty Ltd
(U2023/2835)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 14 JUNE 2023 |
Application for an unfair dismissal remedy
This decision concerns an application by Wei Jhang for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Jhang commenced working as a casual pharmacy assistant with Pharmamed Group Pty Ltd (company) in January 2022, and became a permanent part-time employee in September 2022. He was summarily dismissed on 27 March 2023, after the company discovered that Mr Jhang had, without its knowledge, entered into an employment-based traineeship with the Pharmacy Guild of Australia (Guild), purporting that the company was a party to the arrangement.
I conducted a determinative conference on 13 June 2023. Mr Jhang represented himself with the assistance of his partner, Miranda Wu (also known as Miranda Fay), who was employed by the company as a pharmacist. The company was represented by the Guild.
Section 396 of the Act requires the Commission to decide certain matters before considering the merits of an unfair dismissal application. In relation to these matters, I note the following. First, the application was lodged within the 21-day period prescribed by s 394(2). Secondly, I am satisfied that Mr Jhang was a person ‘protected from unfair dismissal’. Thirdly, this is not a case of genuine redundancy. Fourthly, as discussed below, I have concluded that the dismissal was consistent with the Small Business Fair Dismissal Code (Code), and that for this reason the application must be dismissed.
The evidence
The company runs a pharmacy business called Preston Discount Pharmacy. It is co-owned by Danny Hanna and Deena Hanna. Mr Jhang gave evidence that in July 2022, Ms Hanna suggested that he take a pharmacy assistant’s course run by the Guild, and he agreed. On 26 August 2022, Ms Hanna signed the supervisor’s report confirming that he had achieved certain competencies. He completed the course on 16 September 2022. Shortly afterwards, Mr Jhang became a permanent part-time employee. Mr Jhang said that in November 2022, Ms Hanna sent him a new contract to sign, and that he proposed certain amendments to reflect the terms of the Pharmacy Industry Award 2020 (Award), as well as superannuation requirements, but Ms Hanna said that this was a standard contract and that she would not change it. Mr Jhang then sent Ms Hanna a text with the penalty rates that he thought should be included in the contract, but he did not receive a response.
Mr Jhang said that sometime later Ms Hanna suggested that he take a pharmacy dispensary course, and that she would pay for this. Mr Jhang thought this was a good idea, but when he sent Ms Hanna the invoice for $1150, she said that he would have to pay for the course himself. Mr Jhang enrolled in the course on 21 December 2022 and paid for it. He did not tell Ms Hanna that he had done so.
Ms Wu said that in early December 2022, she contacted the Guild and asked if she could be Mr Jhang’s pharmacy supervisor if he were to enrol in the dispensary course. She explained to the Guild that she was a pharmacist but that she worked at different times to Mr Jhang. The Guild advised her that this was fine and that the name of the supervisor could be changed later. Ms Wu said that her employment with the company ended on 9 February 2023. She asked another pharmacist, Michelle Yan, to be Mr Jhang’s supervisor, who replied that if she was needed to help out with Mr Jhang’s course she would do her best.
Mr Jhang said that during his employment the company failed to pay him properly. He said that the company made unreasonable deductions from his wages and that his shifts were not paid in full. He said that he was not given breaks, that sick leave was treated as annual leave, and that he was not paid annual leave loading as required by the Award. He said that he raised his concerns about these matters with Ms Hanna at various times, including through Ms Wu. On 6 March 2023, he told Ms Hanna that, according to the Fair Work Ombudsman, he was entitled to annual leave loading. He gave Ms Hanna a printout from the website, but she said that she did not understand and handed it back.
Mr Jhang said that on 6 March 2023, a representative of the Guild called him at the pharmacy to conduct a verbal assessment in relation to his dispensary course. Mr Jhang could not answer the first question and handed the telephone to Ms Hanna. Ms Wu said that, according to Ms Yan, Ms Hanna told the representative that she could be Mr Jhang’s supervisor, but the representative said that Mr Jhang’s English was not good enough to complete the course and advised that he withdraw and ask for a refund. This however required a supervisor to sign a refund form. Ms Wu asked Ms Yan if she would do this, and she agreed.
On 8 March 2023, Mr Jhang and Ms Wu went overseas. On 21 March 2023, while still on leave, Mr Jhang sent Ms Hanna a screenshot of the annual leave loading page from the Ombudsman’s website.
Mr Jhang said that when he returned from annual leave on 27 March 2023, Ms Hanna dismissed him for breaching the company’s privacy by enrolling himself in a course with the Guild. Mr Jhang said that he did not consider this to be a valid reason to terminate his employment, because he did not in fact breach anyone’s privacy, nor had he disclosed confidential information or committed misconduct, as alleged in the dismissal letter. Mr Jhang said that he believed that he was dismissed because he had raised concerns with Ms Hanna about his entitlement to annual leave loading. He had not been warned about any poor performance or conduct. He said that he had been a good worker, that he was treated badly during his employment, and that his dismissal was unfair.
Ms Hanna gave evidence that she had encouraged and supported Mr Jhang’s enrolment in the pharmacy assistant course. This was a basic course that the company required its pharmacy assistants to undertake. The cost was around $100 and was paid by the company. Ms Hanna said that she later suggested to Mr Jhang that he undertake a dispensary course but denied offering to pay for it, as it was a lot of money. She said that when Mr Jhang asked her in December 2022 to pay for the course, she told him that he would have to pay for it. She heard nothing more from Mr Jhang about the matter and thought that he had decided not to proceed with the course.
Ms Hanna said that she did not know that Mr Jhang had enrolled in the dispensary course until 6 March 2023 when a representative of the Guild called the pharmacy to conduct an oral test on Mr Jhang in connection with a dispensary course. Ms Hanna did not know that Mr Jhang was undertaking the course. Ms Hanna denied that she told the Guild representative on 6 March 2023 that she would be Mr Jhang’s supervisor; rather, she said that she would help Mr Jhang obtain a refund by signing the refund form. Ms Hanna said that if Mr Jhang had told her that he wanted to proceed with the dispensary course she would have agreed to this. But neither Mr Jhang nor Ms Wu had said anything about it. Ms Hanna also said that Mr Jhang and Ms Wu had used the company’s Guild membership to obtain a substantial discount on the normal price of the course, again without her knowledge.
Mr Hanna said that the dispensary course that Mr Jhang enrolled in was a traineeship with the Guild to which the employer must be party. He said that neither he nor Ms Hanna knew of the arrangement and that the company only learnt of the traineeship by chance, as described by Ms Hanna. Mr Hanna produced a ‘workplace-based training plan’ for Mr Jhang that he had obtained from the Guild. The document states that it is a plan that is developed jointly by the relevant training authority (in this case, the Guild), the employer and the trainee. It identifies the relevant qualification as the pharmacy dispensary course, the trainee as Mr Jhang, the employer as Preston Discount Pharmacy, and the contact person for the employer as Miranda Fay (Ms Wu). The document is dated 22 December 2022 and has been signed by Mr Jhang and, for and on behalf of the employer, by Ms Wu. However, Ms Wu was not authorised to act on behalf of the company.
Mr Hanna said that Mr Jhang had signed up for a course that represented that his employer was party to a traineeship when the company had no knowledge of this, and no supervision arrangements were in fact in place. He said that the company also learnt that Mr Jhang and Ms Wu had approached another pharmacist, Michelle Yan, and asked her to be his supervisor, without asking the company’s permission.
Mr Hanna and Ms Hanna said that they decided to dismiss Mr Jhang because they believed that he had committed misconduct by enrolling in a workplace-based traineeship without telling the company. Mr Jhang and Ms Wu had represented to the Guild that the company was aware of and would be supporting the training, but this was not the case. This created a risk to the reputation of the pharmacy. Mr Hanna said that Mr Jhang’s conduct had made him question what else Mr Jhang might be prepared to do behind the company’s back. He said that the termination letter given to Mr Jhang had also referred to his breach of confidentiality, and that this was a reference to Mr Jhang’s use, with Ms Wu, of the company’s Guild membership number to obtain a discount for the dispensary course, and their use of company information to contact other employees, such as Ms Yan.
Ms Hanna said that when she told Mr Jhang of the company’s decision to terminate his employment, he said that he agreed with the decision, that he would do the same thing in her position, and apologised. Mr Jhang said that he could not remember saying these things.
Consideration
I make the following factual findings. First, I find that Ms Hanna and Mr Hanna did not know that Mr Jhang was undertaking the dispensary course. Although Ms Hanna had suggested to Mr Jhang that he do the course, I find that she believed that Mr Jhang had decided not to pursue the course after she told him that the company would not pay for it. I find that Ms Hanna had not previously offered to pay for the course, and that this was a misunderstanding on Mr Jhang’s part.
Secondly, I find that the dispensary course that Mr Jhang enrolled in was a traineeship with the Guild to which the employer was supposed to be a party, but was not in fact a party. I further find that Mr Jhang and Ms Wu gave the Guild the false impression that the employer was a party to, and supported, the arrangement. This was the conduct for which Mr Jhang was dismissed, not the fact that he had raised concerns about underpayments. I further find that Ms Wu had no authority to sign the ‘workplace-based training plan’ document on behalf of the company and should not have done so. She was employed by the company as a pharmacist. She was not a representative of the company. For the same reason, Mr Jhang should not have signed the document either.
Thirdly, I accept Ms Wu’s evidence that she contacted the Guild about the dispensary course and was told that the name of the supervisor could be changed later. But I do not accept that the Guild suggested that Mr Jhang could be left without anyone supervising his traineeship, which is what in fact occurred. Mr Jhang and Ms Wu suggested that Mr Jhang was indeed supervised because there was always a pharmacist present when he was working. But that was not supervision of a traineeship. It was general supervision of an employee’s work. A supervisor of a person undertaking a traineeship must at the very least know that the person is a trainee and understand the requirements of the course. Although Ms Yan had previously indicated that she was happy to help with Mr Jhang’s course, there is no evidence that she actually did anything to supervise Mr Jhang. And in any event, the company had not approved this. I reject the contention of Mr Jhang that his previous experience in the pharmacy over the course of 2022 somehow counted as supervised work for the purposes of the traineeship. From the commencement of the traineeship in late December 2022 until Mr Jhang’s withdrawal from it in early March 2023, Mr Jhang was not supervised.
Fourthly, I find that Ms Hanna did not tell the representative from the Guild on 6 March 2023 that she would take over as Mr Jhang’s supervisor for the traineeship. I accept Ms Hanna’s evidence that she said that she would help Mr Jhang to withdraw from the course and obtain a refund.
Fifthly, I accept Ms Hanna’s evidence that when she told Mr Jhang of his dismissal, he said that he agreed with her decision and would do the same thing in her position. Her evidence was clear, detailed and convincing. I prefer her evidence to that of Mr Jhang, who simply said that he could not remember saying these things.
Sixthly, I find that the company is a small business. I accept the evidence of Mr Hanna that at the time of Mr Jhang’s dismissal it employed 7 employees, including regular casuals, and that the company has no associated entities. This brings the company within the definition of a ‘small business employer’ in s 23 of the Act. The Code therefore applied to the company. A dismissal cannot be unfair if it was consistent with the Code (see ss 385 and 388 of the Act).
The company contends that the dismissal was consistent with the first limb of the Code, which states that it is fair for an employer to dismiss an employee without notice or warning when the employer ‘believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.’ I find that Mr and Ms Hanna did believe, on reasonable grounds, that Mr Jhang’s conduct was serious enough to warrant immediate dismissal. The Hannas considered that Mr Jhang had not been honest with the company and had misled the Guild; together with Ms Wu, he had purported to put in place a traineeship with the Guild to which the company was supposed to be a party, and which was supposed to be supervised when neither was in fact the case. Mr Jhang’s conduct had created a reputational risk. The company considered that it could no longer trust him. It was reasonable for the company to believe that these grounds were sufficiently serious to justify immediate dismissal.
This was a serious matter. It involved a misrepresentation of the employer’s involvement in a training arrangement. Workplace-based traineeships require the active participation of the employer in order to be successful. Proper supervision is an essential requirement. Without it, trainees will not be properly trained. In a sector such as the pharmacy trade, that could create a risk to the public. Here, there was no supervision. That occurred because Mr Jhang and Ms Wu did not ensure that they obtained the company’s approval of and involvement in the training arrangements. They underestimated the seriousness of these things and approached them as formalities, rather than matters of substance and importance.
Mr Jhang contended that the company had supported his earlier course, and it was reasonable to assume that it would also support his next one. But this misses the point that the employer must specifically agree to the traineeship, and also actively support it, including through supervision. Mr Jhang also suggested that it was reasonable for him to assume that the Guild would check whether the employer had agreed to the traineeship, because the Guild had vetted his credentials as a student for the first course and applied these credentials to the second. But there is nothing to suggest that the Guild represents to anyone that it will check that an employer has agreed to a traineeship. In my view one would reasonably expect that the employer and employee would agree on the proposed arrangements directly, and that when a person signs a training document for and on behalf of the employer, they are properly authorised to do so. The simple fact is that Mr Jhang should have told the company that he was proceeding with the course and asked it to agree to the traineeship. The company could then have ensured that he received proper supervision.
Mr Jhang contended that his conduct did not fall within any of the instances of misconduct referred to in the Code, but these are only examples, not a complete list. He also contended that the decision to dismiss him was harsh. I do not believe it was. However, the question in the first instance is whether the company believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal. In my view it did.
Finally, I note that Mr Jhang believes that in various respects he has been underpaid. The company denies this. However, as I explained during the proceeding, the Commission is a tribunal and has no power to determine claims for underpayment of award and statutory entitlements, or allegations that an employer has contravened other workplace laws. If Mr Jhang wishes to take legal action in relation to these matters, he must make an appropriate application in an eligible court. The company may wish to re-examine these matters. In the event that it identifies any underpayments these should be rectified immediately.
Conclusion
I am satisfied that the dismissal was consistent with the Code. Pursuant to s 385 of the Act, the dismissal therefore cannot have been unfair. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
W. Jhang and M. Wu for the applicant
S. Harris for the respondent
Hearing details:
2023
Melbourne
13 June
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