DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hui Liu
v
Express Interiors Pty Ltd
(U2019/2985)

Application for an unfair dismissal remedy - safety breaches.

[1] On 18 March 2019 Mr Hui Liu (the Applicant) applied under s.394 of the Fair Work Act 2019 (‘the Act’) for an unfair dismissal remedy. His employment with Express Interiors Pty Ltd (the company) was terminated by letter on 12 March 2019. The company submitted that he received all his entitlements, and this was not contradicted. This may not have been therefore a summary dismissal, even though his last day of employment was 12 March 2019, as well as his termination date. Even if it was a summary dismissal, my conclusion would have been the same given that Mr Liu committed serious breaches of safety procedures on a building site.

[2] It was agreed that the various jurisdictional requirements were met, and that Mr Liu was a person protected from unfair dismissal, and other matters. Mr Liu required the assistance of a Mandarin interpreter, but his written submissions were professionally written and relevant.

[3] I have taken account of all evidence and submissions put. The matter proceeded by way of determinative conference on 4 July 2019.

The Act

[4] Section 387 of the Act provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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.”

The Evidence and Submissions

Valid reason – s.387(a)

[5] The company submitted that Mr Liu ‘jeopardized others’ safety by not following company’s project procedure’, 1 namely that he was working inside a building under construction at a high level and opened a window on three occasions. The company directed him to keep all windows closed, and instead he opened the window, and propped it up, and a piece of metal fell 67 stories down. The company said that they held three toolbox meetings, which Mr Liu attended, and signed for, and instructed all workers not to open windows without the permission of the employer. Instead of following these instructions, Mr Liu continued to open windows while he was engaged in his light duties, which included sweeping the floor. Mr Yan Gin Kan translated all toolbox meeting instructions into Mandarin, so Mr Liu understood his instructions.2 These were serious safety breaches which the employer could not tolerate. The company also submitted that Mr Liu pretended to require light duties, when his doctor cleared him for full work.

[6] Mr Liu denied some of these allegations, but not all, admitting in part that he attended the toolbox meetings and signed for his attendance. He admitted that he opened a window on 8 March 2019, and that there had been some accidents of falling objects by other workers on the construction site, but there was no possibility of something dropping because there was a fly screen or safety screen. 3 However, he argued that it was safe to open a window if there was a fly screen, and that he had been treated badly by the company, who acted like the ‘Communist Party’.4 He said that while he knew that ‘… the company had certain regulations such as no opening the windows of the tall buildings, many workers actually did open the windows’, that in the past he was only told not to open the window next time after he did, and the company reaction was disproportionate.5

[7] Mr Liu admitted to serious safety breaches in his own version of events, namely opening a window, and that the employer had prohibited this. On his own evidence he acted wrongly. Safety issues on a building site are a serious matter, and if objects fell out of windows they could injure or worse other workers. In this case a metal object fell out of the window, which could have injured a worker or worse, and Mr Liu accepted that objects had fallen out of windows. If an employer ignored such events, they would be criticised for not protecting workers. They acted to ensure that workers were protected by telling workers at toolbox meetings, and translating this into Mandarin, that they could not leave windows open. I cannot ignore this, and in my view, this is a most serious matter. In any event I prefer the evidence of the employer witnesses, given the limitations of the Applicant’s evidence. It seems unlikely, for example, that the employer allowed windows to be opened if there was a fly screen as claimed by the Applicant, a claim which appears inconsistent with his written submission quoted above. The Applicant was unclear as to exactly what was and was not said at the toolbox meetings. He also appeared to deny that one of the signatures of attendance at a toolbox meeting was his, when it appeared to be his. There were other problems with his evidence. His accusations of general poor treatment by the employer were not justified on the material before me.

[8] I am satisfied that there was a valid reason for termination of employment, on Mr Liu’s own evidence.

Notified of that reason and opportunity to respond – ss.387(b)(c)

[9] Mr Liu was notified of that reason at three toolbox meetings. He was also given an opportunity to respond at those meetings and received a warning letter on 6 March 2019. The opportunity to respond at toolbox meetings or elsewhere was probably limited, although he did know that he was acting wrongly on his own evidence and only claimed the employer reaction was ‘disproportionate’. 6 I accept that he should have been formally interviewed and asked to respond, and that more informal procedures were adopted, which were less than ideal. I have taken this into account.

Support person – s.387(d)

[10] Mr Liu complained that he was simply dismissed without a meeting. 7 This is correct. I refer to my comments above. The employer was correct to say that a Mandarin translator was present at the toolbox meetings. He was not however a support person for Mr Liu.

Unsatisfactory performance – s.387(e)

[11] Mr Liu was terminated for ‘unsatisfactory performance’, but in reality, it appears to be misconduct, namely breach of a lawful and reasonable employer direction to comply with stated safety procedures.

Size of business, Human Resource professionals – s.387(f)(g)

[12] The employer submitted that it was a medium business, without formal Human Resource (HR) professionals. In the often cited words of Madwick J in Kucks v. CSR,⁸ those who conducted the toolbox meetings and made decisions about Mr Liu were ‘of a practical bent of mind’, rather than legal or HR practitioners skilled in interpreting technical legislation, and there were no HR professionals. Some account of this has to be taken.

Other matters – s.387(h)

[13] The Applicant submitted that he was injured, and had a work-related injury, suffered great stress after the dismissal, and has not worked since the dismissal, and is not likely to find a job. 9 I have taken account of these matters and given weight to them.

Harsh unjust or unreasonable

[14] Mr Liu was on his own evidence aware of an employer direction that windows not be opened, and yet defied that employer direction on at least one or probably two or three occasions, 10 and on the employer evidence three occasions and was defiant in his attitude to this reasonable employer direction. He claimed in his written submission that he knew the employer’s policy that windows are not to be opened, yet also claimed in evidence before me that they could be opened if there was a fly screen. This shows a refusal to accept a most important employer policy and direction. This was a most serious matter, given the possibility of serious injury to other workers. The employer took serious steps to clearly communicate the policy to him and others, using Mandarin interpreters and toolbox meetings. I do not accept his explanations. Even if others did this on occasion, all had to comply with clearly stated safety directions. If the Commission were to excuse such breaches this would be condoning a serious threat of injury or worse to employees on building sites, which are dangerous places for workers. I have taken account of all the matters set out above and all submissions and evidence, including the procedural fairness failings, and the lack of HR professionals.

Conclusion

[15] I have taken into account all submissions and evidence and find that the termination of Mr Liu was not harsh, unjust or unreasonable. An order dismissing the application is contained in PR710062.

DEPUTY PRESIDENT

Appearances:

H. Liu on his own behalf.

G. Edwards, Y. Kan, and L. Recchia for the company.

Hearing details:

2019

Melbourne

July 4

Printed by authority of the Commonwealth Government Printer

<PR710060>

 1   Exhibit E2.

 2   Exhibits E2 and E3; Witness Statement of Yan Gin Kan and oral evidence given by Mr Kan, Mr Edwards, and Mr Recchia.

 3   Exhibit L3 at [10].

 4   Oral evidence given by Mr Liu.

 5   Exhibit L3 at [20].

 6   Ibid at [22].

 7   Ibid at [33].

8 (1996) 66 IR 182.

 9   Exhibit L3 at [34].

 10   Exhibit E1; Exhibit E3; Witness statement of Mr.Kan; Witness statement of Mr.Liu Hui at [21].