Yan Wang v MCC Mining (Western Australia) Pty Ltd

[2013] FWC 4325

[2013] FWC 4325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yan Wang
v
MCC Mining (Western Australia) Pty Ltd
(U2012/15485)

DEPUTY PRESIDENT MCCARTHY PERTH, 8 JULY 2013

Application for unfair dismissal.

Background

[1] Mr Yan Wang (the Applicant) was employed by MCC Mining (WA) Pty Ltd (the Respondent) as a warehouse coordinator on a full time basis since February 2011. The Applicant is a thirty two year old male with a number of qualifications including a Diploma/ Certificate in Interior Construction from A.C.T. College Sydney, and a Bachelor of Human Resources from University of Central Queensland. The Applicant was dismissed by the Respondent on 4 December 2012.

[2] The Respondent asserted that the Applicant engaged in conduct involving an incident of verbal abuse and harassment of a fellow employee (the phone incident). The Respondent argues that the nature of the conduct was such that it was incompatible with the continuation of his employment. They also argue that in a meeting conducted on 4 December 2012 regarding the incident (the interview), that the Applicant was uncooperative and his lack of cooperation was also a ground for termination of his employment.

[3] The Applicant asserts that the real reason for the termination of employment was that the Respondent was in the process of reducing staff numbers and the Applicant was targeted for dismissal. They asserted that the allegations of misconduct were fabricated or concocted.

[4] I granted permissions to represent to Mr Oud of Standpoint Legal for the Applicant and Mr T Caspersz of Counsel instructed by Mr D Paton of Corrs Chambers Westgarth for the Respondent.

The Evidence and Findings

[5] The Applicant and the Respondent had significantly divergent accounts of the facts relating to the phone incident. They also have different views about the notification of the reason for the termination and the opportunity given to the Applicant to respond. The Applicant also asserts that the Respondent did not provide the Applicant with the opportunity to have a support person present during the interview of 4 December 2012.

[6] The Applicant was not at work when the phone incidents that led to his dismissal happened, nor on the following day when he was interviewed. A medical certificate was produced which was issued on 29 November 2012. The certificate stated the Applicant was unfit for work from 29 November to 2 December 2012 inclusive. The Applicant gave evidence that he had the flu. He had a further medical certificate issued on 3 December 2012 stating that he had a medical appointment and was unable to work on that day.

[7] The facts in contest in relation to the phone incident are whether the Applicant did insult a fellow employee, namely Ms Xiao Xiao Guo (Stacie). If the Applicant did insult Stacie, other issues arise including whether the Applicant was aware Stacie was a fellow employee, whether the Applicant was retaliating for insulting behaviour towards him, and whether the conduct was serious enough to warrant dismissal.

[8] The Applicant asserts that he received two telephone calls from a Chinese speaking female on 3 December 2012. In his statement the Applicant evidenced that he hung up the phone upon receiving the first call as he didn’t know who was calling nor did the caller identify herself. The Applicant states he then received another call which he answered and the caller spoke to him in Chinese and in a very rude way.

[9] The Respondent asserts that Stacie rang the Applicant on 3 December 2012, announced who she was and was then subjected to a barrage of verbal abuse which was extremely offensive, especially in Chinese culture. Stacie has been employed by the Respondent for about 5 years and for about 2 years in the position of Administration Superintendent. Previously Stacie was the Travel Coordinator for the Respondent. The Respondent also asserts that the Applicant was advised of the reason for his dismissal and had an opportunity to respond.

[10] The Applicant gave evidence. Evidence was also given by Ms Xue Chen (Olivia) and Ms Guo Ping Guan (Ping) who were dining with the Applicant and in the general vicinity when the phone incidents occurred although they did not overhear any of what transpired.

[11] Evidence for the Respondent was given by (a) Stacie who was the female caller involved in the incident, (b) Mr Haixing Huang (John) a Human Resources Office who was at the interview with the Applicant on 4 December 2012, (c) Mr Li Xiangzhou Li (Li) an Information Technology Engineer who was involved in some conversation with the Applicant prior to the phone incident, (d) Mr Zhaochun Hao (Hao) Manager Administration, and (e) Mr Zhou Zige the Human Resources Manager .

[12] A starting point for an examination of the evidence is consideration of whether the Applicant did know Stacie prior to the phone incident on 3 December 2012. The phone incident occurred when the Applicant was having lunch at a tavern in Northbridge with two friends.

[13] Earlier in the day of the phone incident the Applicant was the driver of a car with two colleagues as passengers (the car incident). Stacie evidenced that at about 12 PM that day she was walking in Howard Lane and someone from a car called out her name. She thought she recognised one of the passengers as Xiao Guangdao, she later learned that the passenger was in fact another person namely an MCC site-based employee named Gan Xiao (Xiao). She also later learned that the other passenger was Deng Yongxiang (Yongxiang) and that the driver was the Applicant. Stacie says that a discussion occurred between herself and Xiao about accommodation arrangements for the passengers in the car.

[14] Stacie says that Li came out of the office and walked over to the car and handed a piece of paper to the Applicant. Stacie says that the Applicant looked at the piece of paper and in a loud voice said “That’s a backpacker hostel! Who booked this? It’s not good at all. I’ll find something else for you.” The Respondent asserted that accommodation for employees had been booked in a backpacker hostel because no hotel rooms were available in Perth at that time.

[15] Stacie says she then saw the Applicant get out his mobile phone and she asked him “is there a problem?” She says he replied “no, there are hotels that are available”. Stacie then explained to Xaio the circumstances about the accommodation bookings.

[16] Li gave evidence that at around 11:45 on 3 December 2012 he received a phone call that Xiao and two other employees were outside the front of the Perth offices of the Respondent. Li went downstairs and into the street to give them the accommodation booking details that he had printed out for the employees concerned. They had contacted him earlier from the airport. When Li got downstairs he observed that Stacie was talking to the employees in a car. Li says that after Stacie left the Applicant asked him to pass a message on to Stacie to the effect that “she was a son of a bitch”, apparently because employees had been booked into backpacker accommodation.

[17] The Respondent asserts that the Applicant did know who Stacie was at the time of the phone incident on 3 December 2012 and knew her that before that date. In cross-examination the Applicant acknowledged that he knew a Stacie by her e-mail address but he did not know her face. He also acknowledged that he knew that a Stacie Guo was an employee of the Respondent. The inference from these admissions is that the Applicant did know that there was a Stacie that was an employee of the company but he would not recognise her by sight.

[18] In cross-examination the Applicant also denied that he knew that Stacie was Xiao Xiao Guo. The Applicant later admitted he knew Stacie, and that he knew that Stacie and Xioa Xioa Guo were one and the same person. He then finally conditioned that admittance by stating he did not know her completely. Even allowing for the language difficulties the Applicant appeared to me to be unconvincing and evasive about this point. It seemed clear enough to me that he may not have personally known Stacie but he was aware prior to the phone incident that Stacie was employed by the Respondent and had involvement in accommodation bookings for employees of the Respondent. In any event whether he knew Stacie by sight or not is not all that significant as the phone incident did not involve any visual contact and the assertions of the Respondent are regarding verbal abuse during that phone incident. The relevant issue is whether the Applicant knew that the caller was an employee of the Respondent. I find that he did.

[19] Stacie returned to the head office at about 1 pm and spoke to Mr Li about the car incident. Mr Li informed Stacie in that conversation that the Applicant had requested to pass on a message to her. Li refused to tell her exactly what the message was. As a consequence Stacie says that she was concerned about him being critical of her booking the backpacker accommodation for employees and decided to call the Applicant direct to explain the circumstances. After the car incident Stacie also says that she later spoke to Li and remembered the Applicant from previous dealings she had with him.

[20] Stacie states that she obtained the Applicant’s mobile phone number and proceeded to call him. Her account of the conversation was that they both spoke in Mandarin. She asked whether it was Yan Wang to which he replied yes. She then identified herself and asked what he had to say to her as Li had informed her that he had a message to pass on to her. She states that before she could say anything else the Applicant Yang started yelling and swearing and generally abusing her. She asked what was wrong with him just before he hung up the phone.

[21] The Respondent’s asserts that the comments made by the Applicant were extremely offensive and especially so in Chinese culture as referring to another person’s family member in derogatory terms is considered to be extremely offensive.

[22] Stacie says she rang the Applicant back soon afterwards intending to complain to him about his language as she felt insulted. She says that as soon as the Applicant spoke on the phone he began yelling and swearing at her in Mandarin with words that meant “Fuck you and fuck your mother”. There were other insults in Chinese. Stacie responded by telling the Applicant to “shut your dirty mouth”. The Applicant continued swearing and Stacie repeated her request that he “shut your dirty mouth”. The Applicant then hung up.

[23] The Applicant says he received two calls from a Chinese speaking girl. In his statement he said the girl was asking him if he would like to talk with her. His statement also asserts that upon receiving a call he hung up because he didn’t know who was ringing and the caller did not tell him who she was. The second call he said he received within two seconds when he picked up the phone he said hello and the caller had a crazy voice and spoke to him in a very rude way in Chinese.

[24] In his verbal evidence the Applicant says that he answered the phone and said “Who’s this? Hello who’s this”. He says that the caller then said “what happened with you? I heard you are looking for trouble”. The applicant says he then responded by saying “who is this I have no time to joke with you”. He then hung up.

[25] The Applicant expanded in his examination in chief that on the second call after he had said it is this a caller stated “I’m Stacie”. He also expanded that she said do you have a problem?” The Applicant says he responded in the first call “you’ve got the problem”. He also says that the caller was using attacking words to him so he used attacking words back and then hung up because he didn’t want to speak to her.

[26] The Applicant also contended that when he got the second call he recognised it was the same number. He answered the phone and said” I already told you don’t call me any more I don’t want to speak to you and I don’t care who you are just piss off”. He also thinks that he might have said that he was going to report her.

[27] The evidence and account by Stacie of the phone incident was clear, consistent and unwavering. The evidence of the Applicant presented a stark contrast. His account went from hanging up as soon as he answered the phone, to questioning who was calling, to responding to alleged abuse directed at him with his own abuse, to telling Stacie to piss off to suggesting to her that he was going to report her. The Applicant also was unconvincing about his knowledge of who was calling, or at the very least that the call emanated from the Respondent’s offices and therefore was likely to be an employee of the Respondent.

[28] It is clear from the Applicant’s own evidence that he did abuse Stacie. His own version of events that his abuse was a counter to abuse directed at him by Stacie is discredited by his various versions of what actually transpired in the phone interchanges. I have again taken into account the language difficulties; however those difficulties do not explain the stark contrast and inconsistencies. Stacie’s reasons for calling were also logical. Her account of the incident was measured and convincing. I prefer her account of the incident to that of the Applicant.

[29] I therefore find that the Applicant did abuse and insult Stacie and that the conduct was unprovoked and unwarranted. Further I find that the Applicant did know that Stacie was the caller and that she was an employee of the Respondent before he embarked on the abuse.

[30] Following the phone incident the Applicant’s evidence was that he asked his friends Ping and Olivia “Who is Stacie?”. He had been out of their earshot when the phone incident occurred. Ms Ping gave evidence that she told him Stacie was a girl from the Respondent’s administration department. The Applicant’s other witness, Olivia, confirmed that Ping informed the Applicant of who Stacie was. Ping also evidenced that the Applicant said that he had had an argument with a female from the administration department earlier that day.

[31] In the afternoon of 3 December 2012 the Applicant was requested to attend a meeting with Mr Stuart McLean, the Industrial Relations Manager of the Respondent, at 1 pm on 4 December 2012. Mr McLean was not employed by the Respondent at the time of the proceedings and did not give evidence. Mr Haixing Huang (John) also attended the meeting and gave evidence. His witness statement gave the following account of the meeting;

“McLean: “Do you know why you’re here today?”

Wang: “No.”

McLean: “We received a complaint from Xiao Xiao Stacie Guo that you verbally abused and insulted her. These allegations are very serious and are against MCC policy.”

Wang: “No I didn’t. I don’t know who Stacie is.”

McLean “That’s not the information we’ve received from our investigation. We understand that you spoke to Stacie yesterday.”

Wang: “I picked up the ‘phone and somebody started being rude. It was only for a few seconds. I didn’t know who it was so I hung up.”

McLean: “We believe that it happened based on our investigation.

Wang: “That’s a lie.”

McLean: “Saying ‘Fuck you’ is offensive, but saying ‘Fuck your mother’ crosses the line. There are certain boundaries. Insulting another colleague’s mother is totally unacceptable.”

Wang: “I can show you telephone records that prove that it was her that called me.”

McLean: “Look Yan, I don’t want to argue with you about it. Our position is that your behaviour was unacceptable and you can no longer work here.”

Wang: “That’s unfair. I want to speak to my lawyer.”

McLean ‘‘That’s fine, we will talk to your lawyer.”

[32] I accept John’s account of the meeting. The Applicant contested that he had a proper opportunity to respond to the conduct alleged against him and also that he was given an opportunity to have a support person present.

[33] I find the Applicant’s explanations and complaints about the meeting to be disingenuous. Firstly, it is most improbably that he was not aware of the concerns of the Respondent on the afternoon of 3 December 2012. Both Zige and Mr McLean had spoken to him. Further as is clear from his own evidence he did not just hang up the phone when he received the first phone call the previous day as his statement claimed. It seems clear enough that he was trying to convey the impression that he neither knew nor knew anything about the person who called. He also failed to admit that he had engaged in any abuse himself either provoked or unprovoked. Furthermore it is clear from his own witness statement that by the time of the meeting he was aware that Stacie was employed by the Respondent.

[34] It is apparent to me that the Applicant was unnecessarily uncooperative and in denial about admitting anything. He gave me the impression that he thought that by denying he knew Stacie it exonerated him from giving any proper account of what had occurred or any explanation for his conduct.

Consideration

[35] I have found above that the conduct that the Respondent asserted in respect of the phone incident did occur. I also find that he was given an opportunity to respond to the allegations. I found above that Applicant was uncooperative, if not belligerent, when give that opportunity to respond to the allegations. Mr Zige evidenced that in Chinese culture insulting another person’s ancestors is highly offensive and he has never heard anyone make such an insult either on site or in head office. The Respondent explained the seriousness of the abuse in Chinese culture and I accept that it was serious.

[36] Also of importance is the nature of the Applicant’s responses at the meeting on 4 December 2012. Mr Zige gave evidence that the approach of the
Respondent in matters of this nature is to take into account the cooperation of the employee in the investigation, the willingness to accept wrongdoing and show some remorse or even apologise. I consider that the lack of cooperation by the Applicant is a factor to be taken into account in the overall assessment of whether there was a valid reason for his dismissal. It has also influenced my view as to whether dismissal was a disproportionate penalty for the conduct that occurred.

[37] I find that there was a valid reason for the dismissal.

[38] I find that the conduct the Respondent was complaining about was sufficiently explained to the Applicant. He was therefore notified of the reasons for the dismissal before a decision was taken and he was given an opportunity to respond. He did not properly nor at all avail himself of that opportunity but rather embarked on a course of denial. His account and explanation for his conduct was a refusal to acknowledge that any interchange involving any abuse by him at all occurred, whether provoked or not, yet he eventually, sought to rely upon his abuse as a reaction by him to abuse he says he was confronted with.

[39] There is also no evidence that the Applicant requested or indeed refused the presence of a support person at the meeting. His complaint appears to be that he was not offered a support person. Even if there was an obligation for the Respondent to offer the presence of a support person there was no evidence that Applicant’s conduct at the meeting would have been more cooperative or at least less aggressive. I find that the Applicant was not refused the presence of a support person. However even if the Respondent should have and didn’t offer the opportunity to have a support person present, I would have given little if any weight to such a failure in my assessment as to whether the dismissal was unfair.

[40] The Respondent employs a significant number of employees and has devoted Human Resources expertise. I find that the procedures adopted were appropriate and reasonable for an employer of that size and resources.

[41] There was no evidence that supported the repeated submissions by the Applicant that the Respondent concocted and fabricated the evidence. The submission was repeated even after compelling evidence presented by the Respondent and an obvious failure by the Applicant to deny that evidence. The allegations I find to be completely unfounded.

[42] I determine that the dismissal was not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Oud for the Applicant

Mr Casperz for the Respondent

Hearing details:

2013

Perth

June, 7 and 21.

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