Xiaoyu Ji v H&T Melbourne One Pty Ltd

[2021] FWC 6520

[2021] FWC 6520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Xiaoyu Ji
v
H&T Melbourne One Pty Ltd
(U2021/8990)

DEPUTY PRESIDENT COLMAN MELBOURNE, 9 DECEMBER 2021

Application for an unfair dismissal remedy – misconduct – duty of fidelity – applicant assisted another business – disclosure of confidential information – application dismissed

[1] Ms Xiaoyu (Katherine) Ji has brought an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act) against H&T Melbourne One Pty Ltd (H&T), a property management business in which she was employed as a senior manager. On 22 September 2021 the company summarily dismissed Ms Ji for misconduct, after concluding that she had breached her contract of employment by assisting another property management company, Productivable Pty Ltd (Productivable), and by lying to the company during its investigation of her conduct. Ms Ji denies that she engaged in misconduct. In particular, she contends that Productivable was known to H&T and had been established by her husband for the purpose of receiving payment from H&T of her bonuses, and for making referrals to H&T.

[2] H&T objected to the application on a jurisdictional ground, namely that Ms Ji was not a person protected from unfair dismissal, because her annual rate of earnings exceeded the high income threshold, she was not covered by an award, and an enterprise agreement did not apply to her. H&T contended that in any event, Ms Ji’s dismissal was not unfair, because her misconduct was both serious and substantiated, and it was fair in all the circumstances for her employment to be terminated.

[3] I heard the company’s jurisdictional objection together with the merits of Ms Ji’s application on 26 November 2021. Ms Ji appeared and gave evidence for herself, as did her husband, Mr Chia Ming (Jerry) Liang. H&T was represented by counsel, pursuant to permission granted under s 596. Mr Yun (Kobe) Zhang, H&T’s general manager, gave evidence for the company.

[4] Section 396 of the Act requires that I decide four matters before considering the merits of Ms Ji’s application. I am satisfied of the following. First, Ms Ji’s application was made within the 21-day period required by s 394(2). Secondly, the dismissal was not a case of genuine redundancy. Thirdly, H&T employs around thirty people and is therefore not a small business for the purposes of the Act, and no question of compliance with the Small Business Fair Dismissal Code arises. Fourthly, as I explain below, I consider that although Ms Ji’s remuneration exceeded the high income threshold, she was covered by an award, and was therefore a person protected from unfair dismissal.

Jurisdictional objection

[5] Section 382 of the Act provides that a person is protected from unfair dismissal if he or she has completed the minimum employment period (there is no dispute about that matter in this case) and one or more of the following apply:

“(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[6] Neither the second nor the third of these provisions are engaged. No enterprise agreement applied to Ms Ji in relation to her employment. And at the time of her dismissal, Ms Ji’s annual remuneration, excluding compulsory employer superannuation contributions, was $163,636.36, which exceeded the high income threshold of $158,500. The question is whether Ms Ji was covered by an award, and specifically, the Real Estate Industry Award 2020 (Award).

[7] H&T is clearly an employer in the ‘real estate industry’ (see clause 4.2 of the Award) and is therefore covered by the Award. It is necessary then to consider whether Ms Ji’s role fell within the Award’s classification structure. H&T contended that Ms Ji’s role was a senior one which sat above the highest classification, which is ‘real estate employee level 4 (in-charge-level)’. According to the evidence of Mr Zhang, Ms Ji’s duties included training her team of property sales representatives, assisting the team to settle property transactions, providing day-to-day management of her team, and representing clients in the preparation and execution of property settlements, as well as general management.

[8] In my view, Ms Ji was not covered by the level 4 classification. She does not meet several of the requirements of this classification. In particular, there is no evidence that Ms Ji holds appropriate qualifications under real estate law, or that she was appointed by the company to be responsible for ensuring that the business complied with its statutory obligations under real estate law (see clause A.4 of Schedule A of the Award).

[9] However, I consider that Ms Ji’s role fell within the level 3 classification. A principal requirement of this classification is that the employee be responsible for supervision of employees, the allocation of duties, coordinating work-flow, checking progress and resolving problems (clause A.3.1 of Schedule A). The indicative job titles for level 3 include property sales manager and property management supervisor (clause A.3.2). The indicative tasks include providing leadership and supervision, managing personal work priorities, and training employees at lower levels. In my view, Ms Ji’s duties, as described by Mr Zhang, are consistent with the level 3 classification indicia contained in clause A.3. The Award covered Ms Ji in her employment with H&T.

[10] The consequence of this conclusion is that, even though Ms Ji clearly earned more than the high income threshold, she was a person protected from unfair dismissal. I will now proceed to consider the merits of Ms Ji’s unfair dismissal application.

Background and evidence

[11] Mr Zhang gave evidence that on 21 September 2021, his receptionist, Ms Jennith Zhang, told him that she had received a telephone call from a person called ‘Herris’ who had asked to speak to a Mr Liang concerning a property at 488 Swanston Street in Carlton, Victoria, and that, when told that there was no Mr Liang working at H&T, Herris had asked to speak with Ms Ji. Ms Zhang had then sent a message to Ms Ji, stating that a client named Herris had called for her. Ms Ji replied to Ms Zhang that she did not know who Herris was.

[12] Mr Zhang ascertained that neither Herris (whose full name is Mr Bing Xia) nor the Swanston Street property were listed on any of H&T’s records. He deduced that ‘Mr Liang’ was Ms Ji’s husband, Jerry Liang, whom he knew. Mr Zhang then sent Ms Ji a message via WeChat, in which he asked Ms Ji why Mr Liang was managing the Swanston Street apartment. Ms Ji replied that she did not know who this client was. Mr Zhang then called Herris and asked him to forward the screenshots of his WeChat discussions with Ms Ji, which Herris did. These showed that there were exchanges between Ms Ji and Herris from July to November 2019, in which Ms Ji made arrangements for Herris to attend H&T’s premises to discuss the rental of an apartment, and that an exclusive leasing and management authority was transacted between Herris and Productivable. They also showed a message from Herris to Ms Ji on 30 August 2021 concerning the termination of the lease for the Swanston Street property.

[13] On 22 September 2021, Mr Zhang undertook an ASIC search of Productivable and discovered that it had been deregistered on 9 September 2021, but that Ms Ji had been a director of the company. Later that morning, Mr Zhang spoke to Ms Ji on the telephone and asked her about her relationship with Herris and Productivable. Ms Ji replied that she did not know who Herris was, and said that Productivable was her husband’s company, and that if Mr Zhang wanted to discuss Productivable, he should speak to Mr Liang. Mr Zhang concluded that Ms Ji had been dishonest with him about her relationship with Herris and Productivable. He told Ms Ji that she would be dismissed. Later that day, a termination letter was sent to Ms Ji stating that the company was terminating her employment effective that day for serious misconduct.

[14] Mr Zhang’s evidence was that later on 22 September 2021, his IT advisor told him that he had discovered a significant number of emails that Ms Ji had sent from her work email address to her personal email address, as well as to Mr Liang and other persons, attaching various company documents. The documents had been deleted by Ms Ji but were recovered by the IT department.

[15] Mr Zhang said that the messages in question dated from between November 2018 and September 2021 and included the following:

•  On 24 November 2018, Ms Ji sent to Mr Liang an executed residential tenancy agreement for a property at Dodson Drive, Point Cook. It appeared to be an H&T template document, which identified Productivable as the agent for the property.

•  On 12 February 2019 Ms Ji sent to Mr Liang credit lists for herself and her teammates that had been prepared by H&T’s payroll, indicating amounts due to be paid to employees by H&T.

•  On 24 July 2019, Ms Ji sent an email to Mr Liang attaching an exclusive leasing and management authority form, using an H&T template, for a client identified as the Trustee for LCR Property Holdings Trust, which Mr Zhang said is not a known client of H&T. The document identifies Productivable as the agent for this authority.

•  In October 2019, Ms Ji sent a series of correspondence to Ms Jane Wang, who is not a client of H&T, in connection with the execution of an exclusive leasing and management authority for a property in Snowsill Circuit, Point Cook. The emails identify Ms Ji as an employee of H&T, however the leasing authority document records Productivable, not H&T, as the agent.

•  On 25 November 2020, Ms Ji forwarded a copy of an executed exclusive leasing and managing authority to Mr Liang, made in the name of a client whose handwritten name is not decipherable, but which identifies Productivable as the agent. Mr Zhang said that he believed that the document had been given to a prospective client of H&T.

•  On 15 August 2021, Ms Ji forwarded to Mr Liang a referral agreement made between H&T and Mr Xin Liu, without H&T’s authority.

•  Also on 15 August 2021, Ms Ji forwarded to Mr Liang a rental appraisal document that had been prepared by H&T for one of its clients, without H&T’s authority.

•  On 8 September 2021, Ms Ji forwarded to Mr Liang a PowerPoint presentation prepared by Mr Zhang. H&T had not authorised its disclosure outside of the organisation.

[16] Copies of this correspondence were attached to Mr Zhang’s witness statement. Mr Zhang said that he considered these documents to be further evidence of Ms Ji working for the interests of Productivable rather than H&T, and diverting work to Productivable that could otherwise have been business for H&T. He said that he had not authorised the correspondence.

[17] Ms Ji gave evidence that on 21 September 2021 she noticed that her work email had been cut off, and that the next day she called Mr Zhang to ask him about this. Mr Zhang asked her who ‘Herris’ was. Ms Ji’s evidence was that she did not recall who he was at that point, but later remembered that he was a person whom she had met in 2019, and to whom she had intended to sell properties. She said that Herris had shown no interest in purchasing properties however, and she subsequently deleted him from her WeChat account.

[18] Ms Ji said that Productivable was not a competitor of H&T, but an entity that had been established at the instruction of H&T for the purpose of receiving payment of her commissions, and for the payment of fees for referrals of business from Productivable to H&T. In the latter connection, H&T and Productivable had entered into a referral agreement, a copy of which was produced in evidence. Ms Ji said that Productivable helped H&T to sell many properties and that there had been at least five invoices sent from Productivable to H&T claiming referral fees.Ms Ji said that the various correspondence and documents to which Mr Zhang referred were simply instances of her assisting her husband Mr Liang, who in turn was helping H&T. Ms Ji also said that Mr Zhang had authorised her to use third party rental providers for all her clients and that this was a common practice.

[19] Mr Liang gave evidence that he had created Productivable in November 2018 as a vehicle for him to provide referrals to the company and also to cash out Ms Ji’s accumulated incentives, bonuses and commissions. Mr Liang produced an authority and direction form signed by Ms Ji, directing H&T to pay an amount of $50,000 to Productivable. Mr Liang also said that he was able to refer a lot of business to H&T and that Mr Zhang knew him well. Mr Liang said that Productivable was never meant to be a competitor of H&T. He said that Ms Ji was not involved in his work at Productivable, and that he had merely asked Ms Ji to forward documents to him.

[20] Mr Zhang denied that he had instructed Ms Ji or Mr Liang to establish Productivable. He said that it was Ms Ji who had asked H&T to pay her commissions to Productivable, and that H&T had agreed. He said that H&T had a referral agreement with Productivable and made several referral fee payments to it, but he denied that Productivable was responsible for a large amount of revenue. Mr Zhang denied that he had authorised staff to use third party agents for rentals. He said that rental work was a big part of H&T’s business, and that what he had authorised was simply that existing clients be allowed to use other agents if this was their express wish – staff were not allowed to propose to clients that they use the services of other companies.

Summary of the contentions

[21] Ms Ji contended that she did not commit misconduct. She said that she had not placed the interests of Productivable ahead of those of H&T, and that the activities of her husband’s company were essentially those of a contractor to H&T and were complementary to H&T’s business rather than in competition with it. She said that Productivable was in the nature of a contractor to H&T and that its activities were known to Mr Zhang. Ms Ji submitted that she was honest with Mr Zhang about her dealings with Herris and simply forgot who he was when Mr Zhang asked her about him. Ms Ji contended that there was no valid reason for her dismissal because she did nothing wrong. She submitted that she was not afforded an opportunity to respond to the reasons for her dismissal but was instead summarily dismissed without a proper investigation, which would at least have required a discussion with Mr Liang about his business activities. Ms Ji submitted that she had been a good employee and that her summary dismissal by H&T in all the circumstances was harsh, unjust and unreasonable.

[22] H&T contended that Ms Ji had been caught acting in the interests of her husband’s company, and that this constituted a breach of her implied duty of good faith and her express contractual obligation to act in the company’s best interests. It said that it was clear that Productivable was competing with H&T, at least to some extent. The company submitted that it had valid reasons for Ms Ji’s dismissal, because she had breached her contract of employment by not acting exclusively in her employer’s best interests, and by divulging confidential information, and also because Ms Ji was not truthful with Mr Zhang about her dealings with Herris and Productivable. It submitted that Ms Ji’s conduct was sufficiently serious to constitute serious misconduct and warrant summary dismissal. The company conceded that the process leading to Ms Ji’s dismissal was a quick one but submitted that a more extensive procedure would not have made any difference, because the fact of the relevant misconduct had been established at the time of dismissal and was further confirmed by the subsequent discovery by the IT department of the further messages and documents that Ms Ji had sent to Mr Liang and others, which she had then sought to hide by deleting them. H&T submitted that in all the circumstances Ms Ji’s dismissal was not unfair.

Factual findings

[23] In cases relating to alleged misconduct, the Commission must make a finding on the evidence as to whether the conduct occurred. The standard of proof is the balance of probabilities. However, as the High Court said in Briginshaw v Briginshaw (1938) 60 CLR 336, the nature of the relevant issue affects ‘the process by which reasonable satisfaction is attained’ (per Dixon J at p 363). In my view, the allegations against Ms Ji are serious matters that attract the Briginshaw standard, and I adopt it in making findings as to whether the conduct in question occurred.

[24] I make the following findings. First, I do not accept Ms Ji’s evidence that when Mr Zhang asked her on 21 September 2021 whether she knew ‘Herris’, she had forgotten who he was. The WeChat screen shots provided to Mr Zhang by Herris show that Ms Ji knew who Herris was. She had met him personally and conducted business with him. Further, Mr Zhang’s message to Ms Ji on 21 September identified the property in connection with which Herris had called and asked why the property was being managed by her husband. If Ms Ji had had any doubt about who Herris was, I consider that these details would have reminded her. I find that Ms Ji did know who Herris was and falsely told Mr Zhang that she did not know him.

[25] Secondly, I find that Ms Ji assisted Productivable in connection with its business as agent for the property at 488 Swanston Street, Carlton, and that her activity was not authorised by or known to Mr Zhang or H&T.

[26] Thirdly, as to the documents that were identified by the IT department of H&T, and which were referred to in the evidence of Mr Zhang (see [15] above), I find that the document sent by Ms Ji to Mr Liang on 24 November 2018 related to a property owned by Ms Ji (this was her evidence, and I accept it). This matter may be put to one side. I find (and it is not disputed) that Ms Ji sent the other messages that are referred to at [15] above. I will return to the legal significance of this further below. I further find that Ms Ji deleted these messages but that the IT department retrieved them.

[27] Fourthly, I accept the evidence of Ms Ji and Mr Liang that their reason for creating Productivable was for the purpose of Ms Ji receiving payments of bonuses and commissions from H&T. It is clear that Mr Zhang was aware of the existence of Productivable, and that Ms Ji had directed a payment of $50,000 to that company on her behalf. In this regard, Mr Zhang said that at the time he understood that the company had been incorporated by Mr Liang, but that Ms Ji was not involved in it. He further stated that it was not uncommon for employees to request payment of bonuses to incorporated entities and that Ms Ji’s request did not seem unusual to him. I accept Mr Zhang’s evidence about these matters.

[28] Fifthly, I find that a further purpose of Ms Ji and Mr Liang in establishing Productivable was for the company to provide referrals to H&T, and that Productivable did in fact make referrals to H&T and was paid fees for these referrals.

[29] Sixthly, I accept Mr Zhang’s evidence that he authorised Ms Ji to use third party agents for rentals only in cases where this was the client’s wish, and that employees were not authorised to suggest to clients that they use third party agents. There is no good reason why H&T would endorse the referral of work to competitors. It does not make sense to me that H&T would allow its employees to engage other businesses to do work that H&T could otherwise do itself. On the other hand, it does make sense that, if a client wants to use another agency for a particular rental matter, this would of course be permitted. H&T could hardly prevent it.

[30] Ms Ji referred to a WeChat exchange between herself and Mr Zhang in which she told Mr Zhang that a third party rental agency would pick up the keys for a particular property, but this may simply have been a case of a client wanting to use a third party agent. In another exchange between Mr Zhang and a person called ‘Mia’ concerning the workings of the referral fee arrangements, Mr Zhang said to Mia that it was her business whether to bring rental clients to the company or not, and that if she did not wish to do so, ‘she could give them to someone else’. Ms Ji appears to have translated the exchange from Chinese into English herself. An alternative translation of the passages obtained by my chambers suggests that the passage is not straight forward and could mean simply that Mr Zhang did not mind whether Mia made referrals to H&T or not. But in any event, even if I had accepted that Mr Zhang had authorised staff to refer potential clients to other agencies, I consider that there is a significant difference between referring a rental opportunity to a competitor and performing work for and providing documents to a competitor. That is what Ms Ji did in her dealings with Herris in connection with Productivable’s contract for the Swanston Street property, and by sending to Mr Liang the documents belonging to H&T.

[31] Seventhly, I find that Productivable was competing with H&T, at least to some extent, because it was acting as a property agent for clients, which is also part of the business of H&T. The extent of Productivable’s business activities revealed by the documents produced in these proceedings would appear to be rather modest. And the company was wound up in September 2021. But that is beside the point. Its activities had gone beyond being a mere vehicle for the payment of Ms Ji’s bonuses and the referral of work to H&T. I accept Mr Zhang’s evidence that he was not aware that Productivable’s activities extended beyond these matters.

[32] Finally, Ms Ji contends that she did not believe that she was doing anything wrong in her dealings with Herris or with Productivable, however I do not accept this. Had this been the case, there would have been no reason for Ms Ji to tell Mr Zhang that she did not know Herris, when clearly she did know him, or to delete the messages referred to at [15] that she had sent from her work email address to Mr Liang and others.

Consideration

[33] In order for a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387(a) to (h).

[34] Section 387(a) of the Act requires consideration of whether there was a ‘valid reason’ for the dismissal. A valid reason is one that is a good or sufficient reason for dismissal, and also one that is valid in the sense of being one that is based on facts that the Commission considers to be substantiated. The company relied on three valid reasons: that Ms Ji had breached her contract of employment by diverting business from H&T to her husband’s business, that she had disclosed confidential information, and that she had not told the truth to Mr Zhang when he asked her about her relationship with Herris.

[35] In light of my earlier factual findings, I consider that each of the valid reasons has been proved to the requisite civil standard of proof, applying the considerations in Briginshaw.

[36] Ms Ji attached to her F2 application a contract of employment dated 14 December 2017. It is not signed by Ms Ji. However, in her written submissions Ms Ji stated that she did in fact sign it but was ‘forced’ to do so. As I understand this contention, Ms Ji says that the compulsion was connected to the fact that Mr Zhang had told her that the contract was in the same terms as a previous contract, when in fact this was not the case, because a provision relating to commissions had been removed. The contract contains a clause 5.1(a), which states that Ms Ji must not, either directly or indirectly, ‘be engaged, concerned or interested in any business that competes, or could compete, with the Employer’s business without the prior written consent of the Employer’. I understand Ms Ji to contend that she was not bound by the contract dated 14 December 2017. But even if that contract were vitiated because of a misrepresentation or for some other reason, I consider that the contract of employment that would be implied in its place would contain the provisions of the written contract which had been uncontroversial between the parties, including clause 5.1, as well as clause 13, which concerns confidential information, to which I will return in a moment. I would note that in my opinion, clause 5.1(a) does no more than reflect the duty of fidelity that is implied by law into the contract of employment in any event. An employee is required to act in their employer’s best interests. H&T is a real estate company that sells and leases property to clients. Ms Ji’s duty of fidelity required her to assist her employer to carry out its business, and not to assist businesses that competed with H&T.

[37] H&T agreed to the referral contract with Productivable. It agreed to pay Ms Ji’s commission or bonus to Productivable. But it did not agree to Ms Ji assisting Productivable with any other business. Productivable had its own clients and was managing its own properties. In particular, Herris was a client, and 488 Swanston Street was a property, that could have been custom and business for H&T. Instead, it was custom and business for Productivable. Ms Ji met Herris at H&T’s premises and conducted a transaction that resulted in Productivable managing this property for that client. This breached her duty of fidelity to H&T. Even if one accepts that employees were allowed to refer potential clients to other agencies, they were not allowed to do these other things.

[38] Further, the correspondence discovered by the IT provider (see [15] above) establishes that Ms Ji breached her duty of fidelity on three other occasions. The messages Ms Ji sent to Mr Liang on 24 July 2019, her messages to Ms Wang in October 2019, and her messages to Mr Liang on 25 November 2020, all concerned business that might otherwise have been transacted with H&T as the agent, rather than Productivable, and demonstrate that Ms Ji actively assisted Productivable with its business, in a manner that went beyond the mere referral of work. At the very least, Ms Ji was engaged, concerned or interested in the business of Productivable, a business that was competing with H&T, in respect of which there had been no prior written consent. The extent to which Productivable competed with H&T is not established and is not important. It may have been commercial activity of a relatively minor scale. But it was the same kind of activity as that engaged in by H&T. I would add that the authorities are very clear that an employer may rely upon matters discovered after the termination of employment in defending an unfair dismissal claim.

[39] There was a second respect in which Ms Ji breached her contract of employment, namely by disclosing confidential information. Clause 13.1 of Ms Ji’s contract required that she use confidential information ‘for the sole purpose of performing (her) duties’ and that she keep such information confidential. Clause 13.2 stated that Ms Ji must not ‘use confidential information for (her) own advantage or to the advantage of any other person, firm or company without the prior written consent of the Employer’, nor could she ‘disclose any Confidential Information to any other person, firm or company without the prior written consent of the employer’. In my view, the messages sent by Ms Ji to Mr Liang on 12 February 2019, 15 August 2021 and 8 September 2021 contained confidential information of the company within the meaning of clauses 1.1(e) of Ms Ji’s contract of employment, which includes:

“… all information, except to the extent that it is generally available to the public (other than due to a breach of this Agreement), of which you become aware or generate in the course of, or in connection with, employment with the Employer, of a commercial, operational, technical or financial type relating to:

(1) the Employer or a related entity …

(2) any customer or client of the Employer…”

[40] By the correspondence referred to above, Ms Ji disclosed to Mr Liang company documents and information of a commercial nature. Ms Ji had clearly become aware of the information in connection with her employment with H&T. And disclosure of the information was not authorised. These documents did not relate to referrals by Productivable to H&T, or to bonus payments to Ms Ji. Ms Ji’s actions in forwarding these documents to Mr Liang breached her duty of good faith to the company and clauses 13.1 and 13.2 of her contract.

[41] Ms Ji’s breaches of her contractual obligations constituted serious misconduct and gave the company valid reasons to dismiss her (s 387(a)). She assisted Productivable with its business. She disclosed confidential information of the company to another entity that competed with H&T. Further, it appears that in several instances Ms Ji represented to clients that they were dealing with H&T through her, whereas in fact the contracts that the client entered into were with Productivable. This carried the potential of damage being occasioned to H&T’s brand and business, because the work of another entity – one, it would appear, with substantially fewer resources than H&T – was being attributed to H&T.

[42] I consider that the company had another valid reason to dismiss Ms Ji. She misled Mr Zhang about her relationship with Herris, and with Productivable. In particular, she told Mr Zhang that she did not know who Herris was, when plainly she did.

[43] Sections 387(b) and (c) of the Act require the Commission to take into account whether an employee has been notified of the reasons for dismissal and afforded an opportunity to respond to any reasons related to capacity or conduct. Ms Ji was informed of the reasons for dismissal in the termination letter that H&T sent to her on 22 September 2021. It is true that Ms Ji was afforded only a very limited if any real opportunity to respond to the reasons for dismissal, but the misconduct in this case has been substantiated, and I do not consider that affording Ms Ji a better opportunity to respond to the allegations would have made any practical difference to the outcome of the company’s investigation. The absence of an opportunity to respond would not render the dismissal unfair in the present circumstances.

[44] The Commission is required to consider whether there was any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal (s 387(d)). There was no such refusal. There is no evidence of any request by Ms Ji for a support person to attend discussions. The consideration in s 387(e) is not relevant because the dismissal concerned conduct rather than performance. The factors in ss 387(f) and (g) are of little moment in the context of this matter. There are no other matters that I consider to be relevant (387(h)).

[45] In my view, taking into account all the circumstances, including the matters that the Commission is required by s 387 to consider, Ms Ji’s dismissal was not harsh unjust or unreasonable. It was therefore not unfair (s 385).

[46] Finally, I note that Ms Ji asked the Commission to order payment of her accrued annual leave and overtime, as well as certain unpaid commissions, bonuses and incentive payments. The Commission is not a court and has no power to make such orders. If Ms Ji contends that she is owed money by the company, she may bring proceedings in an eligible court.

[47] Ms Ji’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

X. Ji for herself
S. Schreier-Joffe for the respondent

Hearing details:

2021
Melbourne
26 November

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