1
Fair Work Act 2009
s.394—Unfair dismissal
Liguo Zhou
v
Central Capital Pty Ltd T/A Central Capital Group
(U2018/7031)
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 31 OCTOBER 2018
Application for an unfair dismissal remedy – jurisdictional objection that applicant was not
dismissed – applicant denied resigning – whether applicant’s employment was terminated at
the employer’s initiative – applicant not dismissed – jurisdictional objection upheld –
application dismissed.
[1] On 9 July 2018, Liguo Zhou (the applicant) applied to the Fair Work Commission (the
Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the
FW Act) in relation to the alleged termination of his employment by Central Capital Pty Ltd
T/A Central Capital Group (the respondent) on 29 June 2018.
[2] The respondent objected to the application because it submitted that the applicant was
not dismissed.
The hearing
[3] I heard this application on 8 October 2018. The applicant represented himself. With
permission, Mr T Wu, solicitor, appeared for the respondent.
[4] The applicant tendered:
his own witness statement, dated 20 September 2018;1 and
a witness statement of Xiaodong Liu, dated 20 September 2018.2
[5] The respondent tendered:
two witness statements of its director, Xiangqing (Susan) Li, dated 29 August 20183
and 27 September 2018;4
a witness statement of Brendan McCreanor, dated 27 September 2018;5 and
a witness statement of Weimin Zhou, dated 29 August 2018.6
[6] All witnesses were cross-examined.
[2018] FWC 6747 [Note: An appeal pursuant to s.604 (C2018/6514) was
lodged against this decision - refer to Full Bench decision dated 16 January
2019 [[2019] FWCFB 23] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb23.htm
[2018] FWC 6747
2
The facts
[7] The applicant commenced employment with the respondent in April 2017.
[8] The events which the applicant submits constituted the respondent’s termination of his
employment7 occurred on 29 June 2018. The parties’ respective versions of what happened at
the respondent’s office that day are quite different.
[9] The applicant stated that he met Ms Li at the respondent’s office on 29 June 2018 at
her request. He was expecting to discuss three issues that he had raised with her by email on
27 June 2018, one of which was the problems he had experienced when interacting with Mr
McCreanor. He alleges that instead of discussing all those issues, Ms Li became aggressive,
blamed him for the problems with Mr McCreanor, and then said words to the effect of:
‘If you are really unhappy about this workplace, you don’t need work [sic] for this
company anymore, you are fired, start from today. You have two weeks [sic] notice’8
[10] The applicant further alleges that later on 29 June 2018, Ms Li said to him ‘please
remember, your [sic] leaving this company because you’re fired.’9
[11] Ms Li consistently denied dismissing the applicant, on 29 June 2018 or at all.10 She
conceded that she said something like ‘[i]f you are not happy by staying here and working
with me then we’ll probably have to [go in] different directions’, or ‘we may go in different
directions’,11 but emphasised that she had no intention of terminating the applicant’s
employment. She stated that she was accordingly ‘shocked’12 when the applicant requested
that the respondent pay out his accrued leave, implying that he understood that his
employment was at an end:
‘THE SENIOR DEPUTY PRESIDENT: … Did you think that's what he was then
saying, “Well, look, I’ll leave at the end of that. I’m not going to come back to work,
just give me my leave and give me two weeks’ pay. It can be two weeks of sick leave
and my annual leave and then I won't come back”? [Ms Li:] My first reaction, I was
shocked, because I didn’t prepare to terminate him, so I was very shocked. On 11 June
I even talk about he and I, we were doing further business about immigration, for about
half an hour. Yes, I’m prepared to do more business with him, then he suddenly – say
this, I really was very shocked.
What was his reaction when you said this to him? I said - because - - -
You said, “If you’re unhappy” – I’m just looking at the words you’ve used in your
statement, obviously it’s in Chinese but, “We may need to go in different directions.”
And he said, “Pay me for two weeks sick leave and four weeks of annual leave first”,
what did you think at that point? Did you think he would then - what did you think
would happen if you paid that? I was just very shocked.
Did you agree to pay it, did you say okay? I was shocked, I didn’t know what - I was
shocked, I said, “Really?” Yes.
But did you agree to it? I remember at that time I see the time is after 10 and his work
start and I said, “Go back to work”, that's what I said.
[2018] FWC 6747
3
Okay. So you didn’t say no and you didn’t say yes? I didn’t say yes, I didn’t say
no.’13
[12] I prefer Ms Li’s version of the events of 29 June 2018 over that of the applicant’s,
because it is much more plausible in light of what happened after that day (which was largely
uncontested and in any case, was reflected in documents that were tendered at the hearing). I
will elaborate on this in my consideration below.
[13] The parties agree that one of the outcomes of the 29 June 2018 incident was that the
applicant would take two weeks’ personal leave.14 However, the applicant and Ms Li had
different understandings of the significance of that two-week period. The applicant said that
he thought those two weeks were his notice period, i.e. his last day of employment would be
12 July 2018 and his dismissal would take effect on 13 July 2018, though he would not
actually be attending work during the intervening two weeks.15 Ms Li thought at that point
that the applicant would return to work after 12 July 2018.16
[14] On 9 July 2018, the applicant filed his application for an unfair dismissal remedy.
[15] On 11 July 2018, Ms Li emailed a media company that had been dealing with the
respondent, asking that they email her directly, because the applicant was on sick leave.17
[16] On 13 July 2018, Ms Li emailed a tenant that had been communicating with the
applicant, asking her also to email her directly, because the applicant was on sick leave.18
[17] Also on 13 July 2018, Ms Li emailed the applicant to request a medical certificate for
the previous two weeks. That email also included the following:
‘Please let me know your intentions in relation to your employment.
I note that you raised some concerns about your experience at the workplace. We are
more than happy to schedule a meeting with you to discuss your concerns if you are
comfortable with that. Please let me know if and when you are available.’19
[18] I accept Ms Li’s evidence that on 17 July 2018, she asked Mr Weimin Zhou to assist
in an investigation into the applicant’s allegations against Mr McCreanor.20 Mr Weimin
Zhou’s evidence closely corroborated this. He gave evidence that he saw his role in the
planned investigation as that of mediator between the applicant and Ms Li:
‘… I asked her how she [Ms Li] was going on with Mr Zhou [the applicant], and I asked
her if she fell out with Mr Zhou. And I personally like Mr Zhou. And I am also from
Shanghai from the same place as Mr Zhou and I just want – I was trying to mediate
between them to create a harmonious environment in the company. I’m in a good
relationship with Mr Zhou.’21
[19] Ms Li emailed the applicant that day (17 July 2018), informing him of Mr Weimin
Zhou’s proposed role. The email relevantly stated:
‘We confirm that we have received your complaint in which you made allegations
concerning [Mr McCreanor].
[2018] FWC 6747
4
We confirm that the allegations you have raised will be investigated by William Zhou
[Mr Weimin Zhou’s English name].
William Zhou will be in contact with you writing shortly to discuss the matter further
and to confirm the outcome of the investigation.
We confirm that your complaint and the investigation will be conducted confidentially
(as far as is possible). You are therefore directed not to discuss this matter with other
staff members…’22
[20] The Commission served Ms Li with the applicant’s application for an unfair dismissal
remedy on 18 July 2018. I am satisfied that Ms Li was not aware of the application before she
was served.
[21] I accept Ms Li’s23 and Mr Weimin Zhou’s evidence24 that Ms Li advised Mr Weimin
Zhou that same day (18 July 2018) that the investigation would not be going ahead after all,
because she had found out that the applicant had filed this application. I further accept Ms
Li’s evidence that she interpreted the applicant’s filing of this application as him resigning
with effect from 9 July 2018,25 and had until that point (that is, until she was served with the
application on 18 July 2018) thought that his employment relationship with the respondent
was ongoing.
Consideration
[22] It is not in dispute that the applicant is a person protected from unfair dismissal. I am
satisfied that he is so protected.
[23] Section 385 of the FW Act states:
‘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.’
[24] The respondent contends that the applicant’s situation does not satisfy s.385(a) of the
FW Act.
[2018] FWC 6747
5
[25] The meaning of ‘dismissed’ is set out in s.386(1) of the FW Act:
‘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.’
[26] In this case, the applicant says the respondent dismissed him. Obviously, then, he does
not contend that he was forced to resign, so s.386(1)(b) of the FW Act is not relevant to this
application. The issue for determination is whether the applicant’s employment was
terminated at the respondent’s initiative.
[27] In City of Sydney RSL & Community Club Limited v Balgowan, a Full Bench of the
Commission considered s.386 of the FW Act and noted that:
‘Section 386(1)(a) seems plainly to be intended to capture the case law determining the
meaning of termination (of the employment relationship) at the initiative of the
employer. In Mohazab the Court considered that the expression “termination at the
initiative of the employer” was:
“… a reference to a termination that is brought about by an employer and which
is not agreed to by the employee. Consistent with the ordinary meaning of the
expression in the Convention, a termination of employment at the initiative of
the employer may be treated as a termination in which the action of the
employer is the principal contributing factor which leads to the termination of
the employment relationship. We proceed on the basis that the termination of
the employment relationship is what is comprehended by the expression
‘termination of employment’.”
Importantly, in Mohazab the Court did not decide that the termination of employment
in that case was at the initiative of the employer because there had been a constructive
dismissal. Indeed, the Court expressly observed that it was “… unnecessary to
consider whether the facts fall within or without the notion of constructive
dismissal.”‘26
[28] A Full Bench of the Australian Industrial Relations Commission has also found that
for a termination to be at the initiative of the employer, there must be:
‘… some action on the part of the employer which is either intended to bring the
employment to an end or has the probable result of bringing the employment
relationship to an end.’27
[29] For the reasons that follow, I find that the applicant was not terminated at the
employer’s initiative.
[2018] FWC 6747
6
[30] First, Ms Li’s email to the applicant on 13 July 2018 demonstrates that she still
considered him to be an employee of the respondent at that point. I note the applicant’s
submission that Ms Li only emailed him on 13 July 2018 requesting a medical certificate in
the hope that he would fail to provide one and therefore she would not have to pay him for the
two weeks’ absence that had already elapsed by that point.28 However, that is not the part of
the email on which I rely, and it is not necessary for me to decide whether that was the case.
The relevant parts of that email29 for present purposes are extracted at [17] above. It would be
illogical for Ms Li to ask the applicant to indicate his ‘intentions in relation to [his]
employment’ if she had already terminated his employment. It is also highly unlikely that Ms
Li would have invited the applicant to a meeting to discuss his ‘experience at the workplace’
if she did not expect that he would ever be returning to that workplace.
[31] Secondly, Ms Li’s email to the tenant on 13 July 2018 advising that the applicant was
on sick leave is not consistent with an understanding that the applicant’s employment ceased
with effect from 13 July 2018. Personal leave is an employee entitlement. If, as the applicant
contends,30 he was no longer the respondent’s employee from 13 July 2018 onwards, then the
respondent would not have had to provide him with personal leave from that date.
[32] Finally, Ms Li’s communication with Mr Weimin Zhou about the proposed
investigation on 17 July 2018 and her subsequent email to the applicant to inform him of Mr
Weimin Zhou’s role both strongly suggest that she believed that the applicant was still an
employee of the respondent at that time. It would not make sense, especially in a small
business like the respondent’s, that Ms Li would organise an investigation into the applicant’s
allegations if he no longer worked there, let alone arrange for someone with whom the
applicant got along well to conduct it. I also note that her email to the applicant includes a
direction not to discuss the investigation with ‘other staff members’ [my emphasis]. This
implies that she understood that the applicant was still a staff member at the time.
[33] I do not accept that Ms Li took any action that was ‘either intended to bring the
employment to an end or ha[d] the probable result of bringing the employment relationship to
an end’.31 The only allegations to this effect are found the applicant’s oral evidence and his
written witness statement, but that evidence is inconsistent with the various contemporaneous
documents I have referred to above. Those documents objectively suggest that, far from
having notified him on 29 June 2018 that his employment was to be terminated with two
weeks’ notice, Ms Li believed the applicant was still an employee of the respondent up until
she was served with his application for an unfair dismissal remedy on 18 July 2018.
Conclusion
[34] The applicant’s employment was not terminated at the respondent’s initiative, and he
does not submit that he was forced to resign. The applicant was therefore not dismissed within
the meaning of that term in s.386 of the FW Act, and so I have no jurisdiction to hear his
application for an unfair dismissal remedy.
[35] I dismiss the application.
[2018] FWC 6747
7
SENIOR DEPUTY PRESIDENT
Appearances:
L Zhou, the applicant, in person.
T Wu, solicitor, for Central Capital Pty Ltd T/A Central Capital Group.
Hearing details:
Sydney.
2018.
October 8.
Printed by authority of the Commonwealth Government Printer
PR701955
1 Exhibit 1.
2 Exhibit 2.
3 Exhibit 3.
4 Exhibit 4.
5 Exhibit 5.
6 Exhibit 6.
7 PN174-81.
8 Exhibit 1 [18].
9 Ibid [21].
10 See, e.g. PN691-2, PN716; exhibit 3 [32]; exhibit 4 [12].
11 PN835-7; see also exhibit 4 [12]: ‘… we might just go our separate ways’.
12 PN840.
13 PN840-5.
14 PN167-70; PN687-8.
15 PN170-1, PN234-51.
16 PN719-34, PN1104.
17 Exhibit 3 annexure M.
18 Ibid annexure N.
19 Ibid annexure O.
20 PN1154-5.
21 PN1365.
GON MMISSION WORK IR WORKS THE SEAL( THE
[2018] FWC 6747
8
22 Exhibit 1 annexure ‘2018-07-17’; exhibit 3 annexure P.
23 PN1154; exhibit 4 [16].
24 PN1365.
25 Exhibit 4 [15].
26 [2018] FWCFB 5 [11]-[12].
27 O’Meara v Stanley Works Pty Ltd PR973462 (‘O’Meara’) [23].
28 PN1425.
29 Exhibit 3 annexure O.
30 PN170-1, PN234-51; applicant’s outline of submissions [8].
31 O’Meara PR973462 [23].
