Zhi Guo Hu v Glass Tech Australia Pty Ltd

[2020] FWC 2324

[2020] FWC 2324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zhi Guo Hu
v
Glass Tech Australia Pty Ltd
(U2019/11677)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 MAY 2020

Application for relief from unfair dismissal – jurisdictional objection – Applicant not dismissed – jurisdiction objection upheld – application dismissed.

[1] Mr Zhi Guo Hu (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 18 October 2019 alleging that he had been unfairly dismissed by Glass Tech Australia Pty Ltd (the Respondent) on 16 October 2019.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection, claiming that Mr Hu had not been dismissed. In short, the Respondent stated that it had a discussion with Mr Hu on 16 October 2019 in which he agreed to go back to work but that Mr Hu left work later that day without prior notice and did not return. Mr Hu maintains that he was dismissed on 16 October 2019. The Respondent also stated in its Form F3 that at the time Mr Hu ceased work it had 14 employees. However, at the hearing the Respondent advised the Commission that it did not press the issue of it being a small business employer.

[3] The Respondent’s jurisdictional objection was heard on 4 March 2019. At the hearing Mr Hu appeared on his own behalf, while Mr Nigel Gabbedy appeared with permission for the Respondent.

[4] Mr Hu gave evidence on his own behalf, with supporting witness statements provided by Messrs Pinghua Zhai and Zhihang Jiang, both of whom are former employees of the Respondent. Messrs Zhai and Jiang were not required for cross-examination.

[5] Evidence for the Respondent was given by:

•  Ms Lily Chen, the Respondent’s Office Manager; and

•  Mr Alex Tang, the Respondent’s Factory Manager.

[6] For the reasons outlined below, I have found that Mr Hu was not dismissed by the Respondent. Accordingly, Mr Hu is not eligible to make an unfair dismissal application in respect of the cessation of his employment with the Respondent. His application is therefore dismissed.

Background

[7] Mr Hu commenced employment with the Respondent in March 2016. Mr Hu was employed as a Glazier and was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award)  1.

[8] Mr Hu contends that the Respondent did not pay him overtime or a loading for working night shift, adding that on 15 October 2019 he was dismissed by Mr Tang when he asked for his night shift pay.

[9] It is not disputed that Mr Hu met with Ms Chen on the afternoon of 16 October 2019 and later commenced his night shift. Exactly what was said in Mr Hu’s discussion with Ms Chen is disputed. Mr Hu further contends that after starting work he was dismissed by Mr Tang. Again, what was said between Mr Hu and Mr Tang is disputed.

[10] As previously noted, Mr Hu filed his unfair dismissal application on 18 October 2019.

[11] The Commission wrote to the Respondent on 21 October 2019 advising it of the application and that the matter was listed for a conciliation conference before one of the Commission’s conciliators on 19 November 2019. After receiving that correspondence Ms Chen contacted Mr Hu and arranged a meeting for the following day (22 October 2019). However, Mr Hu did not attend the meeting.

[12] On 24 October 2019 the Respondent wrote to Mr Hu in the following terms:

“Dear Zhiguo

I write to you to confirm that your employment with Glass Tech Australia has not been terminated and the incident of 16 Nov [sic] 2019 did not result in your dismissal.

We would like you to come back to work on your next scheduled shift on 25 Oct 2019.

Any questions regarding your rate of pay will be discussed internally so that we can resolve this concern.” 2

[13] Mr Hu responded to Ms Chen’s letter later that day as follows:

“Dear Lily,

Based on the fact that you have not paid overtime wages, contract wages and night shift wages for a long time, and on the night of October 15, 2019, when I asked the manager for overtime pay, he informed you to quit. Attached is the screenshot of the conversation.

In the afternoon of the second day, October 16,2019, I talked with Lily in the office and still did not pay overtime, night shift and contract salary. For the sake of the company, it was busy with business now, but I still promised to come back to work, but I asked the manager to apologize.

After I returned to the workshop, did not wait for the manager's apology, but accused me of late, he did not know that I talk in the office, and asked me to do the night shift, I refused, if you don't pay overtime I am not on the night shift, and he said you go home, I repeat, you said, he said, is what I said. I had to return home.

After waiting at home for one day, the company didn't pay any attention to me and didn't pay me two weeks' salary. I had to appeal to the Fair Work Commission for unfair dismissal on October 18, 2019.

As I have not been paid my salary so far, I have applied to the Fair Work Ombudsman for my salary.

I received the conciliation notice from Fair Work Commission on October 21, 2019 and will conduct conciliation on November 19, 2019.

Based on the current situation, we should wait for the result of conciliation. If I go back to work now, it will be very dangerous for my personal safety and working condition. In addition, you refuse to pay the contract pay and overtime pay, why I am go back? I am afraid of retaliation from the employer and the manager.

For the above reasons, I am unable to return to work at the time stated in your company's notice. Please wait for the final result of Fair Work Commission and Fair Work Ombudsman.” 3 (Emphasis as per original)

[14] The screenshot of the conversation referred to in Mr Hu’s response of 24 October 2019 was attached to his submissions and included the following:

“MR TANG: Brother Hu, what happened, off work?

MR HU: I didn’t have dinner at 5:00, having dinner and will get back soon

MR TANG: No way, at 5:00 the tempering furnace stopped for half an hour what did you do

Don’t let such thing happen in future

Night shift dinner time is 5 30

…

White haze is still quite obvious

9:54 pm

MR HU: I have been working normally

…

After 6:00 pm night shift should have 20% more night pay than morning shift, does the company pay it or not

9:59 pm

MR TANG: The questions you asked are really funny, continue working if you think you can, tell the boss if you can’t” 4

[15] Conciliation failed to resolve the matter.

The Applicant’s case

[16] In his submissions Mr Hu contended among other things that:

•  the Respondent did not pay him his contract wages and overtime;

•  on 15 October 2019 Mr Tang dismissed him when he asked to be paid a night shift loading;

•  he met with Ms Chen on 16 October 2019 to discuss his unhappiness with Mr Tang, adding that he promised to go back to work and that Mr Tang should apologise to him;

•  when he went to work Mr Tang not only did not apologise to him but had said to him that he was late for work, adding that he became angry with Mr Tang:

•  Mr Tang then fired him when he said “[y]ou stop working, get out”, stating that he received no warning and no notice;

•  he was not contacted by the Respondent until after it had received correspondence from the Commission regarding his unfair dismissal application;

•  he agreed to meet with Ms Chen on 22 October 2019 but could not attend as he feared for his safety because a colleague had told him that Mr Bin Chen, a Director of the Respondent, had said he would have hit him had he been present at the incident with Mr Tang on 16 October 2019;

•  while Ms Chen’s letter of 24 October 2019 wanted him to return to work, he could not go back to work as he was afraid of retaliation by Messrs Chen and Tang; and

•  Ms Chen offered him a return to work at the conciliation conference on 19 November and the mention and/or directions hearing on 10 December 2019 but he could not return as he was concerned for his safety as Mr Chen had bullied him many times and because his basic rights could not be guaranteed.

[17] Mr Hu in his submissions described the statements of Ms Chen and Mr Tang as not truthful. Mr Hu also contended in his submissions that Mr Chen had had his laptop hacked and stolen his private information to threaten him and his family, adding that he had reported that matter to the police.

[18] In his viva voce evidence Mr Hu attested that:

•  he was dismissed on 16 October 2019 when Mr Tang said to him “stop your work, get out”;

•  he did not speak to Ms Chen after this because there was no point in doing so as Mr Tang had been given “very high authority” by the Respondent;

•  he waited for the Respondent to contact him and when it did not, he filed his unfair dismissal application on 18 October 2019, later adding that if he had not been dismissed the Respondent would have contacted him;

•  he did say words to the effect of “depends on my mood” on 16 October 2019 when Mr Tang spoke to him about being late and the need to be careful about hazing;

•  he believed that he did not receive the respect he deserved or the payments he was entitled to;

•  he could not return to work as he was worried about possible revenge for having lodged his unfair dismissal application and because his basic rights were not observed;

•  he thought he had been dismissed because he was asked to leave the workplace and because the Respondent did not subsequently contact him, allow him to work or give him any warning or notice;

•  he made a mistake in his response to Ms Chen of 24 October 2019 when he said he refused to work the nightshift on 16 October 2019 as he had only discussed the night shift with Ms Chen and not Mr Tang, also stating that the third paragraph of his letter referred to what happened on 15 October 2019;

•  he did not want to meet with the Respondent on 22 October 2019 so he told it that he could not meet with it as he was in Melbourne even though he was in Canberra; and

•  Ms Chen would not have contacted him on 21 October 2019 had he not filed his unfair dismissal application, positing that it only did so to avoid the legal risks attached to his application.

[19] Mr Hu in his evidence also disagreed with the propositions that all that occurred on 16 October 2019 was that he got upset and went home and that he was making up the story of fearing for his safety to cover up why he had not returned to work after 16 October 2019.

[20] Mr Zhai deposed in his witness statement 5 that he had worked for the Respondent for three months but left as the Respondent “never pays overtime and contract salary.” Mr Zhai further deposed that the Respondent only paid those employees with working visas less than their contracts and that Mr Chen often chided employees, especially those on working visas.

[21] Mr Jiang deposed in his witness statement 6 that he had worked for the Respondent for five years and that he was not paid overtime, despite working overtime almost every day. Mr Jiang further stated that he had applied for unfair dismissal.
[22] While I note Messrs Zhai’s and Jiang’s evidence, it does nothing to assist the Commission in determining whether Mr Hu was dismissed by the Respondent.

The Respondent’s case

[23] The Respondent in its written submissions contended that there had been no dismissal but that Mr Hu had abandoned his employment. Beyond that, the Respondent submitted that:

•  Mr Hu had been paid in accordance with the contract he signed;

•  the WeChat history submitted by Mr Hu did not support his contention that he was dismissed by Mr Tang on 15 October 2019;

•  on 16 October Mr Hu met with Ms Chen who asked him to return to work which he did;

•  Mr Hu was not dismissed by Mr Tang on 16 October 2019, rather Mr Hu was told by Mr Tang that he needed to improve his work quality and attitude after which he chose to leave the workplace;

•  Mr Tang did not have the authority to dismiss employees;

•  after 16 October 2019 the Respondent approached Mr Hu to return to work but he consistently refused to do so; and

•  were the Commission to find that Mr Hu had been dismissed, then any loss or damage should be limited to no more than a week as the Respondent contacted Mr Hu on 24 October 2019 and asked him to return to work.

[24] Ms Chen’s evidence was that she met with Mr Hu on 16 October 2019, adding that she raised with Mr Hu concerns regarding the quality of his work and his attitude which had been raised with her by Mr Tang. Ms Chen deposed that Mr Hu wanted to talk to her about his pay and had said words to the effect “I am not being paid the right amount. I should be receiving allowances” to which she replied “[w]e can increase your pay but we need to see qualified work from you. We can meet in two months-time to review how your work has been going and we can talk about your pay again then.” Beyond that, Ms Chen deposed inter alia that:

•  she was unaware of any concerns Mr Hu had in respect of his pay and conditions until October 2019;

•  she was aware that Mr Hu returned to work at about 4:00pm on 16 October 2019 and that after a conversation with Mr Tang he left work and went home at about 4:30pm, adding that she only became aware of this on 17 October 2019;

•  after receiving the previously mentioned correspondence from the Commission on 21 October 2019 she rang Mr Hu and arranged a meeting for 10:00am the following day (22 October 2019);

•  Mr Hu did not attend that meeting;

•  she wrote to Mr Hu on 24 October 2019 asking him to come back to work (see paragraph [13] above); and

•  she offered Mr Hu his job back during the conciliation conference on 19 November 2019 but he refused. 7

[25] Key aspects of Ms Chen’s oral evidence were that Mr Tang was not authorised to dismiss an employee or to increase an employee’s rate of pay and that she set up the meeting with Mr Hu on 16 October 2019 to discuss his performance. Ms Chen also disputed Mr Hu’s version of their conversation on 16 October 2019 and, in respect of that aspect of her statement where she deposed that she was unaware of any concerns Mr Hu had in respect of his pay and conditions until October 2019, agreed that Mr Hu had asked for a pay increase in September 2019.

[26] In his witness statement 8 Mr Tang deposed that he did not dismiss Mr Hu on 15 October 2019 as Mr Hu contended as he did not have the authority to do so. Mr Tang further deposed that on 16 October 2019 Mr Hu arrived at work at about 4:00pm with their conversation going as follows:

“MR TANG: Make sure you come to work on time.

MR HU: Well that depends on my mood.

MR TANG: You need to pay more attention when you are operating the machine to ensure that the quality of the glass is good. The quality of some of the glass you have made is quite poor.

MR HU: Well that depends on my mood.

MR TANG: If you don’t want to work here, you should go to the office and see the boss.” 9

[27] Mr Tang said that after he made the last comment Mr Hu left and did not return to the workplace.

[28] In his oral evidence Mr Tang reiterated that he did not have the power to dismiss employees, adding that Ms Chen had the authority to do so. Mr Tang also denied that on 16 October 2019 he told Mr Hu to go home, maintaining that his conversation with Mr Hu was as set out in his witness statement. However, Mr Tang did confirm that he had said to Mr Hu on 16 October 2019 that the Respondent would increase his wage to $24 per hour.

The statutory framework

[29] Section 386 of the Act deals with the meaning of dismissed while s.394 sets out who may apply for an unfair dismissal remedy. The sections provide as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) …

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

Consideration of the issues

[30] The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) 10. The Full Court stated in its decision that:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because `he felt he had no other option'. His Honour described those circumstances as:

‘. . . a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” 11 (Underlining added)

[31] In this case, Mr Hu contends that he was dismissed by Mr Tang on 16 October 2019 when Mr Tang said words to the effect “[y]ou stop working, get out”. However, Mr Tang disputes that he said this to Mr Hu and in his witness statement set out his version of the conversation with Mr Hu on 16 October 2019 (see paragraph [26] above). On this issue, I prefer Mr Tang’s evidence for two reasons. First, in his oral evidence Mr Hu agreed that he did say words to the effect of “depends on my mood” on 16 October 2019 when Mr Tang spoke to him about being late and the need to be careful about glass hazing. This is consistent with Mr Tang’s version of events. Second, in his oral evidence Mr Hu attested that aspects of his response of 24 October 2019 to Ms Chen were incorrect as he was confused about the dates. Specifically, Mr Hu attested that the third paragraph of his response referred to the event of 15 October 2019 as opposed to 16 October 2019. However, the reference in that paragraph to “[a]fter I returned to the workshop, did not wait for the manager's apology, but accused me of late, he did not know that I talk in the office” is consistent with both Mr Hu’s and Mr Tang’s regarding their conversation on 16 October 2019. As a result, I have reservations about the reliability of Mr Hu’s evidence.

[32] More broadly, drawing on the language in Mohazab, there is nothing before the Commission that points to any act on by the Respondent which resulted directly or consequentially in the termination of Mr Hu’s employment. To the contrary, the material before the Commission points to Mr Hu having voluntarily ceased working for the Respondent. In particular, I refer to Mr Hu’s response of 24 October 2019 to Ms Chen in which he stated he refused to do the night shift and to Ms Chen’s correspondence of 24 October 2019 in which she both confirmed that he had not been dismissed and asked him to return to work on 25 October 2019. Further Mr Hu’s evidence that he could not return to work because he feared for his safety suggests that he ceased working for the Respondent of his own accord as opposed to having been terminated.

[33] While I accept that Mr Hu believes that he was underpaid because he was not paid overtime or a loading for working night shift, I note that his employment contract provides as follows in respect of remuneration:

“10.2 Your pay takes into account any hours that you are required to work outside of your standard hours of employment. You will not be paid any additional penalty rates, overtime rates, allowances or loadings, unless expressly agreed with the Employer in advance.

10.3 Where your pay exceeds your legislative entitlements, any above-component not otherwise allocated may be offset against any other applicable entitlements.” 12

[34] By way of background, the Schedule to Mr Hu’s employment contract specified his pay as “$54,500 per annum exclusive of superannuation” 13 while his pay slip for the period 2 to 15 October 2019 cites his hourly rate of pay as $29.58 per hour.14 This is not to say that Mr Hu was not in fact underpaid relative to the Award. There is insufficient material before the Commission to enable it to form a considered view on that issue. However, if Mr Hu was underpaid this of itself does not equate to him being dismissed at the Respondent’s initiative.

[35] Finally, I do not accept Mr Hu’s contention that the Respondent’s failure to contact him after 16 October 2019 and before he filed his unfair dismissal application on 18 October 2019 confirmed that he had been dismissed by Mr Tang on 16 October 2019. My main reasons for not accepting that contention is the absence of any compelling probative evidence to support Mr Hu’s contention and Ms Chen’s and Mr Tang’s clear and consistent evidence that Mr Tang did not have the authority to dismiss employees.

[36] The above analysis does not support a finding that Mr Hu was dismissed by the Respondent but rather that he left work because he was upset with Mr Tang and believed that he was being underpaid.

Conclusion

[37] For all the above reasons, I am not satisfied that Mr Hu was dismissed by the Respondent. To the contrary, I find that Mr Hu voluntarily ceased working for the Respondent and refused the Respondent’s genuine request of 24 October 2019 that he return to work. As Mr Hu was not dismissed as per s.386 of the Act, he is not able to make an application under s.394 for an unfair dismissal remedy, i.e. his application is incompetent. Mr Hu’s application will therefore be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

Z. Hu on his own behalf.
N. Gabbedy for the Respondent.

Hearing details:

2020.
Canberra:
March 4.

Printed by authority of the Commonwealth Government Printer

<PR718790>

 1   MA000010

 2   Exhibit 3 at Annexure A

 3   Applicant Outline of Submissions at Evidence 6

 4   Ibid at Evidence 1

 5   Exhibit 1

 6   Exhibit 2

 7   Exhibit 3

 8   Exhibit 4

 9   Ibid at paragraphs 6-8

 10 (1995) 62 IR 200

 11   Ibid at 205-206

 12   Applicant Outline of Submissions at Evidence 3

 13   Ibid

 14   Ibid at Evidence 4