Xueyang Shan v Beijing Capital Airlines Co Limited T/A Beijing Capital Airlines

[2019] FWC 7979

[2019] FWC 7979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Xueyang Shan
v
Beijing Capital Airlines Co Limited T/A Beijing Capital Airlines
(U2019/570)

COMMISSIONER CAMBRIDGE SYDNEY, 10 DECEMBER 2019

Unfair dismissal - Re-Hearing - valid reason for dismissal - refusal to comply with reasonable and lawful directions - manifest dishonesty - inconsequential procedural deficiencies identified - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by Xueyang Shan (the applicant). The respondent employer has been identified to be Beijing Capital Airlines Co Limited T/A Beijing Capital Airlines (ABN: 35 610 481 975) (the employer or BCA).

[2] The application was filed on 20 January 2019, and it indicated that the date of the applicant’s dismissal was 18 January 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.

[3] On 12 March 2019, Johns C of the Fair Work Commission (the Commission) issued a Decision, [2019] FWC 1602, which involved a determination that; the applicant was protected from unfair dismissal; the applicant was dismissed; the dismissal of the applicant was harsh, unjust and unreasonable, and accordingly; the applicant’s dismissal was unfair.

[4] On 7 June 2019, a Full Bench of the Commission issued a Decision, [2019] FWCFB 3867, in matter C2019/2133. The Full Bench Decision was made in respect to an Appeal taken by the employer against the Decision of Johns C, in which, inter alia, the dismissal of the applicant was found to have been unfair.

[5] In broad terms, the Full Bench Decision upheld the employer’s Appeal and determined to remit the matter to another Member of the Commission for Re-Hearing. Relevantly, at paragraph [19] the Full Bench made the following Orders:

“[19] We order as follows:

•  Permission to appeal is granted;

•  the appeal is upheld;

•  the Commissioner’s Decision quashed [sic]; and

•  Mr Shan’s application (U2019/570) is remitted to Commissioner Cambridge for rehearing.”

The Re-Hearing Process

[6] In accordance with the Orders of the Full Bench, the matter was subsequently listed for Mention and Directions proceedings on 20 June 2019. At the proceedings held on 20 June, the Commission firstly provided permission, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. The Commission also issued Directions which established a timetable for the filing and service of all evidentiary and other materials prior to the scheduled Re-Hearing that was fixed for 4 and 5 September 2019.

[7] On 28 August 2019, solicitors acting on behalf of the employer advised the Commission that the matter had settled in principle, and that it was anticipated that settlement agreement terms would be executed within a period of about a week. Consequently, on the basis of this advice, the Commission vacated the Re-Hearing dates of 4 and 5 September 2019. Subsequently, the Commission was advised that agreed terms of settlement of the matter had not been executed as had been anticipated, and the matter was again programmed for Re-Hearing fixed for 30 and 31 October 2019.

[8] In respect to the Re-Hearing it is relevant to note paragraph [17] of the Full Bench Decision which stated:

“[17] We are satisfied that the Respondent’s refusal to comply with the relocation direction was a wilful refusal to comply with a lawful and reasonable direction of his employer and in the circumstances constituted a valid reason for his dismissal. The Commissioner’s failure to make such a finding constituted an appealable error. This error fundamentally undermines the Commissioner’s conclusion as to the unfairness of the Respondent’s dismissal.”

[9] At the Re-Hearing, the applicant was represented by Mr A Cao, solicitor, from Brightstone Legal. Mr Cao called the applicant as the only witness to provide evidence in support of the unfair dismissal claim. The evidence provided by the applicant as a witness was taken via remote video link to China. The employer was represented by Mr D Mahendra, barrister, instructed by Ms C Lang, solicitor from Minter Ellison. Mr Mahendra called two witnesses to provide evidence in opposition to the unfair dismissal claim, one of whom gave evidence via remote video link to China. The oral evidence of all witnesses was taken with the assistance of Chinese Mandarin language interpreters. The evidence was concluded during the Re-Hearing held on 30 and 31 October. However, further Re-Hearing on 8 November 2019, was required for the submissions of the Parties to be completed.

Factual Background

[10] The applicant commenced employment with BCA on 1 July 2016, under the terms of an employment contract that was established under the Labour Law of the People’s Republic of China (the Chinese employment contract). The Chinese employment contract was for a fixed term of three years and specified the applicant’s place of employment to be in Melbourne, Australia. The applicant was engaged in a position described as International Customer Service Officer and he initially worked at the Melbourne Tullamarine airport.

[11] In March 2017, the employment of the applicant was the subject of a further contract (the Australian employment contract). The Australian employment contract was apparently established in order to allow for the applicant’s ongoing deployment to Australia so as to satisfy Australian Visa requirements. The Australian employment contract referred to the Chinese employment contract, and it specifically sought to vary the terms of the Chinese employment contract such that the terms of the Australian employment contract were said to have been adopted and applicable for the duration of the applicant’s employment in Australia. Further, the Australian employment contract specified an expected term of deployment for one year and 10 months commencing on 20 March 2017, and thus the expected term of the Australian employment contract was until 20 January 2019.

[12] On or about 23 September 2017, the applicant was transferred and promoted to the position of Sales Manager working from the employer’s Sydney office located at 1 York Street, Sydney. The alteration to the applicant’s employment involving his transfer to Sydney was the subject of a documented alteration to the Australian employment contract 1. At the time of his dismissal in January 2019, the employment of the applicant appeared to have been governed by both an apparent extension of the Chinese employment contract, and the terms of the Australian employment contract as varied on and from 23 September 2017.

[13] The employer operates an airline transport business and it is based in Beijing, China. The employer operates both passenger and freight transport air services domestically within China and internationally. The employer has more than 1000 employees and numerous branch offices within and outside of China, and it is a subsidiary of the Hainan Airlines group. As at September 2019, the employer had a fleet including 83 Airbus aircraft.

[14] The work performance and conduct of the applicant was without formally recorded complaint or warning prior to an event that occurred on 9 April 2018, when the applicant accessed a Customs Restricted Area at the Sydney airport with the use of his Aviation Security Industry Card (ASIC card). The security breach incident of 9 April 2018 operated as the catalyst for the dismissal of the applicant, and it was an incident that involved important contextual details.

[15] In early 2018, the applicant returned to China for an extended period which resulted in the revocation of his Australian (bridging) Visa. Consequently, when the applicant returned to Australia in around February/March 2018, he did so on a tourist Visa which did not permit him to perform paid work for the employer. Until such time as the applicant’s subclass 457 Visa was approved, he was not entitled to be engaged in paid employment with the employer, and therefore he was not entitled to use his ASIC card.

[16] In early April 2018 the applicant undertook a brief trip to China. He returned to Australia on a BCA flight that landed in Sydney on Thursday, 5 April 2018. The applicant’s return flight to Australia transferred through the Chinese city of Qingdao. BCA ground staff at the Qingdao airport informed the applicant that there was a problem with a luggage item of the applicant’s not arriving into Qingdao airport as was anticipated, and that this luggage would not be able to be loaded on the flight with the applicant but instead would be delivered on the next BCA flight arriving into Sydney on Monday, 9 April 2018.

[17] On Friday, 6 April 2018 and Sunday, 8 April 2018, the applicant made inquiries with both his immediate superior, Ms Jie Sun, and BCA ground staff at Sydney airport, Mr Yan Zhang, about the procedure for collecting what he described as “a passenger’s luggage [that] was not carried here on Thursday’s flight and will be carried here on next Monday’s flight…” 2. Ms Sun directed the applicant’s inquiries to Mr Zhang who appeared to advise the applicant that the passenger would need to provide identification in order to be matched with the particular luggage that was to be collected.

[18] Early on the morning of Monday, 9 April 2018, the applicant attended the Sydney airport and he used his ASIC card to gain access to the baggage collection area which is a Customs Restricted Area whereupon he collected his (delayed) luggage. Later that morning, commencing from 8:55 am, the applicant sent email communications to his superiors including Ms Sun, making claim for overtime because, as he explained, earlier that morning he had gone to the airport to assist picking up a passenger’s late arrival luggage. The applicant made a claim for 2.5 hours overtime, and he asked for the overtime to be converted into a corresponding period of time off. At 11:23 am, Ms Sun sent an email in response to the applicant’s claim for overtime in which she rejected the claim as the working of the overtime had not been authorised in advance.

[19] The applicant contested Ms Sun’s rejection of his claim for overtime, and on 11 April 2018, as a result of Ms Sun making further inquiries about the luggage collection incident on 9 April, the applicant sent a statement to the Finance Manager in which he set out details of his conduct in respect to the luggage collection incident. On or about 16 April, Ms Sun realised that the applicant had picked up his own luggage and not that of a passenger, and that in doing so he had entered into the Customs Restricted Area using his ASIC card. Ms Sun was concerned about the applicant’s conduct in respect to the 9 April luggage collection incident and she reported the matter to the employer’s headquarters in Beijing.

[20] Ms Sun was instructed by her superiors at headquarters to conduct further investigation into the 9 April luggage collection incident. Ms Sun went to the Sydney airport and she spoke with security staff who advised her that the luggage collection incident involving the applicant on 9 April was already under investigation by the airport security staff. On 1 May 2018, the Security Operations Coordinator at Sydney airport formally reported 3 the 9 April 2018 luggage collection incident involving the applicant to the Australian Border Force (ABF).

[21] On 3 May 2018, the applicant was required to attend a recorded interview with Mr Liwei Zhang, the employer’s International Marketing Office Manager. Ms Sun was also in attendance at the interview and she questioned the applicant about details of the 9 April luggage collection incident. During this interview the applicant confirmed that the luggage that he collected on 9 April was not that of a passenger but his own, and when asked why he had previously indicated that it was “a friend’s luggage” he stated that his luggage did include two books that belonged to his friend.

[22] On 1 August 2018, the applicant received an email from the ABF asking him to attend an interview regarding the 9 April luggage collection incident. On 9 August 2018, the applicant together with Ms Sun, attended a recorded interview 4 with the ABF Officers who were investigating the 9 April luggage collection incident.

[23] On 24 August 2018, the ABF issued the applicant with an Infringement Notice in respect to his unauthorised entry into a Customs Restricted Area on 9 April 2018. The ABF issued an infringement payment advice of $420.00 which the applicant paid later that day, 24 August. On 1 September 2018, the ABF advised Ms Sun that the applicant had been issued with an Infringement Notice in respect to the 9 April luggage collection incident, fined $420.00, which had been paid by the applicant, and that the matter was closed.

[24] On 2 November 2018, the applicant sent an email to the employer’s Beijing based Human Resources Manager, Mr Peijun Liang, in which he raised certain allegations against Ms Sun in respect of the 9 April luggage collection incident. In this email, the applicant asserted inter alia, that Ms Sun had instructed him to untruthfully describe the incident as involving the collection of a passenger’s luggage rather than his personal luggage. Ms Sun was asked to respond to the allegations that had been made by the applicant, and she replied by making reference to the applicant’s emails of 9 April 2018, in which he made claim for overtime which was refused by Ms Sun.

[25] On 23 November 2018, Mr Peijun Liang sent an email to the applicant which referred to the 9 April luggage collection incident, and that as a result of the ongoing concerns that the employer had arising from that incident, the applicant was required to make arrangements to return to headquarters (Beijing) within five business days. On 26 November 2018, the applicant responded to Mr Peijun Liang in an email which inter alia, referred to allegations about the conduct of Ms Sun and by inference, refused to comply with the instruction to return to Beijing.

[26] On 26 November 2018, Mr Peijun Liang sent a second email to the applicant reiterating the directive for the applicant to return to Beijing to enable face-to-face discussions to deal with the issues that arose from the 9 April luggage collection incident. On 30 November 2018, the applicant again responded to Mr Peijun Liang in an email which indicated that the applicant considered that he “must stay in Australia” 5 and thereby he refused to comply with the instruction to return to Beijing.

[27] On 3 December 2018, Mr Peijun Liang sent a third email to the applicant reiterating the directive for the applicant to return to Beijing and indicating that any refusal to obey this instruction may lead to the termination of the applicant’s employment contract. In addition to the email communication, Mr Peijun Liang had a telephone conversation with the applicant during which the applicant reaffirmed his refusal to comply with the instruction to return to Beijing.

[28] On or about 20 December 2018, the employer’s Human Resource management personnel commenced a process that involved the confirmation of the termination of the employment relationship in accordance with the Chinese employment contract. On 28 December 2018, the employer provided the applicant with a notice terminating the Chinese employment contract.

[29] On 4 January 2019 the applicant received a notice advising that his Australian employment contract had been terminated on the basis that the applicant had engaged in serious misconduct that caused imminent and serious risk to the reputation of the employer’s business, and further, that the applicant had disobeyed a lawful and reasonable direction given by the employer. Following the notice of the termination of the Australian employment contract provided on 4 January 2019, the last day of the applicant’s employment was 14 January 2019.

[30] Following the applicant’s dismissal, he has unsuccessfully sought alternative employment in positions that were suitable for the conditions of his subclass 457 Visa. The applicant returned to China in April 2019, and he commenced proceedings against the employer with respect to the termination of his Chinese employment contract. The Commission was told that these proceedings resulted in the applicant obtaining orders that the employer pay him an amount that approximated with $31,425.00 AUD. However, the employer was apparently successful with an initial appeal against this determination, but, more recently, the Commission was informed that the applicant had successfully appealed that determination. In these proceedings, the applicant has not sought reinstatement, but alternatively, monetary compensation as remedy for his alleged unfair dismissal.

The Case for the Applicant

[31] Mr Cao, who appeared on behalf of the applicant, made verbal submissions in elaboration of two outline of submission documents that had been respectively filed on 2 August and 25 October 2019. Mr Cao submitted that the dismissal of the applicant was harsh, unjust and/or unreasonable.

[32] The submissions made by Mr Cao firstly focused upon the assertion that the employer “bears the ‘onus’ of proving that there was a valid reason” for the dismissal of the applicant. The submissions made by Mr Cao referred to the purported reasons for dismissal to have been the luggage collection incident, and the applicant’s failure to return to Beijing in accordance with the employer’s directive.

[33] The submissions made by Mr Cao acknowledged that the applicant should not have entered the Customs Restricted Area without proper authorisation. However, according to the submissions made by Mr Cao, the luggage collection incident had been investigated by the ABF, an infringement notice with penalty of $420 had been issued and paid by the applicant, and the matter had been closed. Further, Mr Cao submitted that the approach taken by the ABF indicated that the incident could be properly regarded as a low-level breach of security procedures. In addition, it was submitted that the manner in which the employer had treated the incident demonstrated that it did not regard the incident as serious misconduct.

[34] In further submissions, Mr Cao referred to what he said were important aspects of the applicant declining to return to Beijing as directed by the employer. In this regard, it was submitted that the terms of the Australian employment contract limited any relocation or alternative positions to be only in Australia. In addition, Mr Cao submitted that there was not a proper basis for the employer to direct the applicant to return to Beijing, and that the direction to return was not a reasonable or lawful direction. Mr Cao submitted that notwithstanding the Full Bench’s findings in respect to the directive to return to Beijing, the Commission in dealing with the Re-Hearing of the matter, was not bound by the finding of the Full Bench.

[35] Further, Mr Cao made submissions which addressed various other aspects of the terms of s. 387 of the Act. Mr Cao submitted that the applicant had been notified of the reasons for the termination of his employment. However, it was submitted that the applicant had not been given a proper opportunity to respond to those reasons, and in so doing, there was no opportunity for the applicant to have a support person present to assist in any discussions relating to his dismissal. Further, it was submitted by Mr Cao that the employer was a large enterprise with global operations and human resources specialists, and therefore it could be expected to have adopted proper procedures to deal with the termination of the employment of the applicant.

[36] Mr Cao also made submissions under the heading of “Dishonesty”. In these submissions it was asserted that while dishonesty may amount to misconduct, dishonesty by the employee of itself, did not necessarily make the dismissal of the employee fair in circumstances involving a single, foolish, dishonest act.

[37] In this instance, according to the submissions made by Mr Cao, the applicant initially stated to Ms Sun that his purpose for entering the Customs Restricted Area on 9 April 2018, and utilising his ASIC card incorrectly, was to obtain a customer’s luggage. Mr Cao submitted that the applicant acknowledged that when he first mentioned the incident to Ms Sun, he was not forthcoming, but this was the only time he was so. Mr Cao submitted that the applicant was not honest during the beginning of the internal investigations but that was because he had lost trust and confidence in Ms Sun, so he had to adapt accordingly. Mr Cao said that the applicant had “lied out of necessity during the internal investigation.” 6 Consequently, according to the submissions made by Mr Cao, the dishonesty in this case should attract less weight in the Commission’s consideration.

[38] Mr Cao also made further submissions which traversed aspects of detail of the alleged misconduct of the applicant. Mr Cao submitted that the ASIC card misuse had been dealt with by the ABF, it did not represent serious misconduct and there was evidence of similar conduct by other employees which was not dealt with as serious misconduct, and which was not considered to provide the operational risk that was said to have arisen in respect to the applicant.

[39] Mr Cao also submitted that the conduct of the applicant in respect to his refusal to go back to China because of the employer’s alleged operational needs, was justified because the employer did not follow the usual procedures to approve the applicant’s travel to China. Mr Cao said that the Commission should be satisfied that the applicant’s motives in this matter had been entirely justifiable or pure because he had lost trust and confidence, and it was reasonable for the applicant, or any person, not to give up his lawful work right under this jurisdiction by returning to China.

[40] The submissions made by Mr Cao also asserted that the applicant had not been provided procedural fairness. Mr Cao said that the applicant had not been given a fair opportunity to speak during the ABF interview, further it was asserted that Ms Sun had specifically targeted the applicant, and that as she had conducted the internal investigation it was biased, and the more senior managers did not give the applicant a proper opportunity to respond to information provided to them by Ms Sun.

[41] Mr Cao also submitted that the applicant had been the subject of discrimination on the basis that he was a homosexual man. It was submitted that the applicant had faced countless incidents of discrimination or harassment during his employment and that many of these incidents were connected to or perpetrated by Ms Sun in her capacity as the applicant’s superior. Mr Cao also asserted that Ms Sun had pretended to be a homosexual man on a dating app in order to obtain evidence of the applicant’s sexual orientation, and that she frequently threatened to publicise the information if the applicant did not comply with her directions. Mr Cao submitted that the applicant had suffered immeasurable emotional stress during the time that he was harassed during his employment.

[42] In further submissions, Mr Cao said that the applicant worked for the employer for three years, and he had moved States and changed positions, and that a dismissal without procedural fairness was, in the circumstances, too harsh. Mr Cao also stated that if the Commission found that the dishonesty during the internal investigation constituted a valid reason for the applicant’s dismissal that reason was not provided as notification for his dismissal.

[43] In conclusion, Mr Cao submitted that the applicant had been unfairly dismissed. Mr Cao submitted that the applicant did not seek reinstatement to his position due to his loss of faith and confidence in the employer. Mr Cao further submitted that the applicant would have likely received a three-year extension of his deployment to Australia. Therefore, according to the submissions made by Mr Cao, the applicant would have been likely to have continued in employment for at least a further three years. Mr Cao submitted that the applicant was entitled to six months remuneration as compensation for his unfair dismissal.

The Case for the Employer

[44] Mr Mahendra who appeared for the employer, made verbal submissions in elaboration of an outline of submissions document that was filed on 11 October 2019. Mr Mahendra commenced his submissions by stating that the facts in this case were relatively straightforward. Significantly, Mr Mahendra submitted that the circumstances surrounding the applicant’s conduct on 9 April 2018 were abundantly clear, particularly in so much as the applicant had attended the airport under the guise of being on duty, he then used his ASIC card in direct contravention of the direction he was given, and this sparked an investigation by the ABF.

[45] Mr Mahendra made submissions which referred to what he described as the clearly dishonest email involving the applicant’s claim for 2.5 hour overtime whereby, he falsely asserted that he had been assisting the pickup of a passenger’s late arrival luggage when he was collecting his own luggage. Mr Mahendra submitted that once Ms Sun had realised that the luggage that the applicant had picked up was actually his own and not that of a passenger as he had falsely asserted, she reported the matter to the employer’s headquarters in China.

[46] Mr Mahendra also submitted that upon further investigation that was initiated by the report made by Ms Sun, the employer was appropriately concerned about the applicant’s conduct and it accordingly directed him to return to China. Mr Mahendra submitted that this directive was clearly lawful and reasonable in the circumstances. Consequently, according to the submissions made by Mr Mahendra, the applicant’s repeated refusal to comply with the reasonable and lawful direction of the employer established valid reason for his dismissal.

[47] Mr Mahendra made submissions which rejected any suggestion that the employer’s directive for the applicant to return to China was in any way contrary to the terms of his employment contracts. Mr Mahendra submitted that the return to Beijing headquarters was a directive that from the employer’s perspective, was consistent with its operational needs. Further, Mr Mahendra submitted that the applicant had been given ample opportunity to comply with the direction and that on three clear occasions he had refused to do so. Further, Mr Mahendra submitted that it had been made abundantly clear to the applicant what would likely be the consequences if he did not comply with the direction to return to Beijing headquarters.

[48] Mr Mahendra further submitted that in so far as any harshness was concerned, it was clear that dismissal was the only avenue available to the employer in circumstances where the applicant was simply refusing to follow a clear direction. Mr Mahendra also stated that the applicant had compounded his misconduct by continuing to tell untruths during the course of his evidence given in these proceedings, including the assertion that Ms Sun had told him to say that he was collecting a passenger’s luggage. Consequently, according to the submissions made by Mr Mahendra, the applicant’s conduct during the course of the proceedings before the Commission was “disentitling conduct” in so far as the question of harshness may have been identified.

[49] In summary, Mr Mahendra submitted that in all the circumstances the dismissal of the applicant was fair, and the application for unfair dismissal remedy should be dismissed. Mr Mahendra further stated that even if he was wrong on the issue of the fairness of the dismissal, any compensation would be limited to the period of time between 14 January, the last day of paid employment, and 20 January 2019, the expiry date of the operation of the Australian employment contract.

Consideration

[50] The applicant was a person protected from unfair dismissal and his claim for unfair dismissal remedy was jurisdictionally established. Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements can be identified in s. 385 which is in the following terms:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[51] In this instance there was no dispute that the applicant had been dismissed, the employer was not a small business, and that the dismissal was not a case of genuine redundancy. Consequently, only the provisions of subsection (b) of s. 385 of the Act, going to whether the dismissal was harsh, unjust or unreasonable, have required consideration.

Harsh, Unjust or Unreasonable

[52] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

The Refusal to Return to China

[53] The evidence provided in the Re-Hearing of this matter has established that the applicant was dismissed as a direct result of his refusal to comply with the employer’s repeated directives for him to return to Beijing headquarters. It is important to recognise that the applicant was not dismissed because of his actual conduct whereby he entered the Customs Restricted Area on 9 April 2018, without proper authorisation and utilising his ASIC card incorrectly. Clearly the employer had continued the applicant’s employment for some time after the 9 April luggage collection incident with the knowledge of the essential elements of the applicant’s actual conduct in respect to that incident.

[54] The employer, at both the local and Beijing headquarters levels, had legitimate, understandable, ongoing concerns about the impact that the applicant’s conduct in respect of the 9 April luggage collection incident may have on its Australian business operation. Ms Sun had direct personal knowledge of the applicant’s dishonesty associated with the 9 April luggage collection incident, and she agitated for her superiors in Beijing to take further action against the applicant accordingly.

[55] The employer’s investigation into the entirety of the applicant’s conduct associated with the 9 April luggage collection incident had not been finalised, when, in early November 2018, the applicant sent an email 7 to the employer’s Human Resource Manager in Beijing, Mr Peijun Liang, in which he raised serious allegations against Ms Sun. This communication reflected a serious deterioration in the working relationship between the applicant and his immediate superior, Ms Sun. These difficulties, when considered in the context of any ongoing impacts of the 9 April luggage collection incident, had the potential to significantly impact upon the employer’s Australian operations. Mr Peijun Liang assessed the deteriorating circumstances within the Sydney office, and he identified serious concerns that represented potential risks to the employer’s reputation and business interests. Mr Peijun Liang decided that the applicant should be directed to return to Beijing headquarters. In such circumstances, it was understandable and logical for the employer to require the applicant to return to Beijing headquarters.

[56] The Re-Hearing of this matter has also involved examination of the terms of both the applicant’s Chinese employment contract and the Australian employment contract. Clause 8 of the Chinese employment contract clearly contemplates a directive such as that issued by Mr Peijun Liang for the applicant to return to Beijing headquarters. Similarly, clause 1 of the Australian employment contract allowed the employer to require the applicant to relocate to another location in accordance with the employer’s operational needs. Further, upon any reasonable and objective contemplation, the applicant’s employment circumstances involved a deployment to Australia from China, and these arrangements would logically provide for the prospect that the employer would retain a broad capacity to bring that deployment to an end.

[57] The applicant provided evidence that he accepted that the employer was entitled to direct him to return to China but that his refusal to comply with the directives given by Mr Peijun Liang was because of a lack of specificity about the position he was redirected into, and the travel arrangements that were to apply. During the Re-Hearing the applicant relevantly stated; “… if he had given me any clear direction I would have, you know, gone back to headquarters.” 8

[58] There is significant difficulty in accepting the applicant’s evidence that his refusal to comply with the directions to return to China was because of some lack of specificity or clarity about aspects of the position he was to occupy and/or the travel arrangements. The applicant provided two reasonably expansive email responses to the email directives issued by Mr Peijun Liang on 23 and 26 November 2018 respectively. The applicant’s email responses 9 make no mention whatsoever of any request or requirement for clarification or specification regarding the position that he was to occupy upon return to Beijing, or the particular travel arrangements that were to apply. Indeed, the applicant’s email response of 30 November 2018, included the blunt statement “I must stay in Australia…”10.

[59] The evidence provided during the Re-Hearing has unfortunately confirmed that the applicant’s asserted reason for his refusal to comply with the directives to return to China had no basis in fact, but instead, was a more recent invention that was advanced as a result of particular findings that were made in the Decision issued following the initial Hearing of his unfair dismissal claim. Upon careful, thorough, and objective examination of all of the evidence, it was clear that the applicant refused to comply with the directives to return to China not because of any inadequacy with those directives, but because he sought to avoid further scrutiny of his conduct associated with the 9 April luggage collection incident which would likely reveal his blatant and repeated dishonesty.

Dishonesty

[60] The dishonesty of the applicant was most notable for its brazenness. Within what could have only been a matter of minutes after he had collected his own luggage from the airport, at 8:55 am on 9 April 2018, the applicant commenced a claim for overtime “Due to assisting passenger with luggage pick up” 11. At 11:13 am the applicant elaborated upon his falsehood when, in an email to Ms Sun, he stated; “I went to the airport to assist to pick up passenger’s late arrival luggage in the morning on 9 April, the passenger indicated the satisfaction of the service and decided not to take the compensation for the late arrival. I have therefore incurred 2.5 hours overtime. In accordance with the company’s policy, I am planning to take 2.5 hours off on 10 April, is this acceptable?”12

[61] Ms Sun rejected the applicant’s claim for overtime, and her suspicions about the applicant’s activities had developed on the preceding Friday when the following text message exchange with the applicant occurred:

“Xueyang Shan:

A passenger’s luggage was not carried here on Thursday’s flight, and will be carried here on next Monday’s flight, the passenger asked the luggage to be sent to his home, Yan Zhang needs to guarantee the flight, how do we deal with this?

Jie Sun:

Isn’t that passenger you?

Xueyang Shan:

No, it’s not me.

Xueyang Shan:

My luggage has all arrived, this is other people’s.

Jie Sun:

You can ask Yan Zhang for this

Jie Sun:

He can deal with this” 13

[62] The applicant was not content with Ms Sun’s rejection of his claim for overtime, and he pursued the claim with the finance manager, Yin Ye. Following further inquiries, Ms Sun realised that the applicant had picked up his own luggage, and he had been blatantly untruthful in what he had told her. Ms Sun reported the matter to her superiors at headquarters in Beijing, and the applicant subsequently admitted that the luggage that he had collected on 9 April was his own.

[63] During the recorded interview on 3 May 2018, the falsehood perpetrated by the applicant was further compounded when he responded to Ms Sun as follows:

“Sun: Now the headquarters did want to know who the luggage belongs to. Because at first you told us that it was your friend’s luggage. Then you said it was yours.

Shan: it is mine mine mine.

Sun: Then why at first you said it was your friend’s luggage?

Shan: There are some or two books belonging to my friend. But most of the luggage is mine.” 14

[64] After the applicant’s duplicity had been disclosed, the applicant sought to defend his dishonesty by alleging that Ms Sun had forced him to lie about the luggage being the property of a passenger so that he would be considered to be on duty, and therefore authorised to use his ASIC card to enter the Customs Restricted Area. There was no plausible reason why Ms Sun would have wanted to have falsely created the circumstances that showed the applicant to be on duty, and such a proposition is completely contrary to the evidence of the text message and other communications between the applicant and Ms Sun.

Homophobic Persecution

[65] In an attempt to support the proposition that Ms Sun had forced him to lie about the ownership of the luggage, the applicant introduced evidence whereby he claimed that Ms Sun was blackmailing him after she had discovered that he was a homosexual man. In his evidence before the Commission the applicant sought to portray Ms Sun’s pursuit of him in respect of the 9 April luggage collection incident as a form of homophobic persecution.

[66] The applicant provided what he said was an example of Ms Sun’s persecution based on his sexuality when he stated that; “… Ms Sun called me names based on my sexuality and located my dance video from an un-work-related platform and used the video to make fun of me.” 15 Ms Sun produced the text message exchange with the applicant when she sent him the link to the applicant’s dancing video, and the English translation of which was in the following terms:

“Jie Sun:

[Link to the dancing video titled “Actor Luca being coquettish - as a man being so feminine, how can women survive?]

Mr Shan:

This is an advertisement I took, thank you.

Ms Sun:

Yes, I don’t have this indeed.

Mr Shan:

I made money on this, and I took a lot of other advertisements.

Ms Sun:

You are capable, you are the most capable person.

Mr Shan:

No, elder sister you are most capable.

Since Mr Hu came, you treat me so well.

Ms Sun:

Don’t try to get in good with me.

Mr Shan:

I dare not to do this.

Maintain a mental balance and only talk about the matter in question is the

most valuable professional quality. I’m finishing work now and hope you” 16

[67] Even allowing for some “loss in translation,” the text message exchange between the applicant and Ms Sun regarding the applicant’s dancing video is friendly and mutually complementary. In particular, Ms Sun complemented the applicant on his dancing prowess, and the applicant suggested that Ms Sun treats him well. This exchange is hardly reflective of some homophobic persecution; indeed, it presents as the antithesis of any such deplorable discrimination.

[68] Once again, when all of the evidence was carefully, thoroughly and objectively examined, the applicant’s assertion that he was the victim of homophobic persecution by Ms Sun represents nothing more than another example of his blatant dishonesty.

[69] In summary, the evidence has established that the employer had valid reason to dismiss the applicant when the applicant refused the repeated, lawful and reasonable directives to return to China. In addition, the blatant and repeated dishonesty of the applicant has provided further valid reason for his dismissal.

S. 387 (b) - Notification of Reason for Dismissal

[70] The employer notified the applicant of his dismissal and the reason for that dismissal in the termination of employment letter dated 4 January 2019. This notification represented advice of the termination of the applicant’s Australian employment contract. The applicant had earlier been advised on 28 December 2018, of the termination of his Chinese employment contract.

[71] The notification provided in the 4 January 2019 termination of the Australian employment contract letter did not properly explain that the applicant’s conduct in refusing to comply with the directives to return to China was conduct that the employer considered to be; serious misconduct in satisfaction of clause 16 (a) of the Australian employment contract; and, conduct that caused imminent and serious risk to the reputation of the employer’s business in satisfaction of clause 16 (d) of the Australian employment contract; and, action that disobeyed a lawful and reasonable direction of the employer in satisfaction of clause 16 (c) of the Australian employment contract.

[72] Consequently, the notification provided to the applicant in the letter of 4 January 2019 was deficient in that it did not properly identify the conduct of the applicant in refusing to comply with the directives to return to China, as being conduct in breach of the various provisions of the Australian employment contract. Notwithstanding this deficiency, the evidence clearly established that the applicant was aware that his refusal to comply with the directives to return to China was the conduct for which he was dismissed. Therefore, the identified deficiencies in the notification to the applicant should be assessed and evaluated against other relevant factors particularly having regard for the valid reason for the dismissal of the applicant.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[73] The employer provided the applicant with a number of opportunities to respond to the reason for his dismissal involving his refusal to comply with the repeated directives to return to China. The applicant provided two reasonably expansive email responses to the directives that were issued by the employer on 23 and 26 November 2018. The applicant’s responses conveyed his repeated refusal to comply with the directive to return to China.

[74] Further, there was a telephone conversation between the applicant and Mr Peijun Liang in early December 2018 during which the applicant reiterated his refusal to comply with the directive to return to China. At this time, if not earlier, the applicant would have been under no illusion that his refusal to comply with a directive to return to China was likely to result in the termination of his employment.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[75] There was no evidence that the employer provided an opportunity for the applicant to have a support person present during the telephone discussion with Mr Peijun Liang in early December 2018. This was an important discussion relating to the potential for the dismissal of the applicant, and despite the difficulties with distance, the employer should have advised the applicant that he could have had a support person present during the telephone discussion. In addition, there was no clear advice to the applicant about any preparedness of the employer to provide opportunity for him to have a support person present during earlier discussions such as the recorded interview with Ms Sun and Mr Liwei Zhang that was conducted on 3 May 2018.

[76] Consequently, the absence of clear advice about the opportunity to have a support person present during discussions that related ultimately to the dismissal of the applicant, does provide evidence of some procedural deficiencies. However, these procedural deficiencies need to be assessed and evaluated against other relevant factors particularly having regard for the valid reason for the dismissal of the applicant.

S. 387 (e) - Warning about Unsatisfactory Performance

[77] The dismissal of the applicant was not for unsatisfactory performance. Consequently, this factor is not relevant in this instance.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[78] The employer is a large international business employer and it applied a number of protracted and rigorous processes that involved its investigation and contemplation of the applicant’s conduct in respect to firstly, the 9 April luggage collection incident and secondly, the subsequent and more important repeated refusal to comply with the directives to return to China.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[79] The employer had dedicated human resource management specialists. The employer has a structured and detailed process by which it investigates and determines any disciplinary measures that are taken against employees. These processes appear to represent requirements relevant to the operation of the Labour Law of the People’s Republic of China and the employer invoked these processes prior to the termination of the applicant’s Chinese employment contract. However, to some extent, the procedures that were adopted by the employer in respect to the termination of the applicant’s Australian employment contract were adversely impacted as a result of the human resource management specialists being located in Beijing.

S. 387 (h) - Other Relevant Matters

[80] The applicant was employed under specific arrangements involving a subclass 457 Visa and these arrangements significantly restricted his capacity to find alternative work in Australia in his specialised field. There was evidence that the employer exercised significant caution before it implemented the dismissal of the applicant, and in this respect, it appeared that it had regard for the particular circumstances of the applicant’s employment in Australia.

Conclusion

[81] The Re-Hearing of this unfair dismissal claim has involved a careful, thorough and objective examination of all of the evidence. Although some of the evidentiary material has suffered as a result of the translation from the Chinese Mandarin language to the English language, the evidence has provided sound basis for all relevant findings to be made and thereby enable the determination of the claim for unfair dismissal remedy.

[82] The applicant was a person protected from unfair dismissal, and consideration has involved the examination of the criteria found in s. 387 of the Act so as to provide any satisfaction that the dismissal of the applicant was harsh, unjust or unreasonable.

[83] The evidence has established that there was valid reason for the dismissal of the applicant. There was valid reason for the dismissal of the applicant in respect to his repeated refusal to comply with the employer’s reasonable and lawful directions for him to return to China. In addition, there was valid reason for the dismissal of the applicant as a result of his manifest and repeated dishonesty.

[84] Further, having considered the other criteria in s. 387 of the Act, some procedural deficiencies can be identified. The process that the employer adopted when dealing with the dismissal of the applicant included certain deficiencies some of which were caused by difficulties associated with the distance between the employer’s Beijing headquarters and the applicant’s workplace in Australia. These procedural deficiencies have been assessed and evaluated against all other relevant criteria. The procedural deficiencies associated with the dismissal of the applicant were not of sufficient consequence to mitigate the serious nature of the valid reasons for dismissal of the applicant.

[85] Consequently, upon careful analysis and consideration of all of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was not harsh, nor was it unreasonable, or unjust. Therefore, the applicant’s claim for unfair dismissal remedy must be dismissed.

[86] Accordingly, separate Orders [PR714537] providing for the dismissal of the application for unfair dismissal remedy will be issued.

COMMISSIONER

Appearances:

Mr A Cao, solicitor from Brightstone Legalappeared for the applicant.

Mr D Mahendra, Counsel with Ms C Lang of Minter Ellison Lawyersfor the Respondent.

Hearing details:

2019.

Sydney:

October, 30 & 31.

Printed by authority of the Commonwealth Government Printer

<PR714534>

 1   Exhibit 8 – Attachment ‘JS-5’.

 2   Exhibit 8 – Attachment ‘JS-7(E)’.

 3   Exhibit 6.

 4   Exhibit 4 – Electronic video record of ABF interview of 9 August 2018.

 5   Exhibit 5 – Attachment ‘PL-5(E)’.

 6   Transcript @ PN915.

 7   Exhibit 8 – Attachment ‘JS-14(E)’.

 8   Transcript @ PN558.

 9   Exhibit 5 – Attachments ‘PL-3(E) and ‘PL-5(E)’.

 10   Exhibit 5 – Attachment ‘PL-5(E)’.

 11   Exhibit 8 – Attachment ‘JS-10(E)’.

 12   Ibid.

 13   Exhibit 8 – Attachment ‘JS-7(E)’.

 14   Exhibit 8 – Attachment ‘JS-12’.

 15   Exhibit 2 – paragraph 29.

 16   Exhibit 8 – Attachment ‘JS-17’.