DECISION

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

Mr Shenglong Li
v
Australia Visa Link Pty Ltd
(U2015/13008)

Application for relief from unfair dismissal – small business code.

[1] Mr Li was dismissed from his employment with Australia Visa Link Pty Ltd on 31 August 2015. On 6 November 2015 I dismissed a number of jurisdictional objections raised by the employer, Australia Visa Link Pty Ltd. 1 This decision concerns the merits of the case and in particular whether or not the dismissal was consistent with the small business code. In that decision I found that Australia Visa Link Pty Ltd is a small business. At the time of the dismissal it employed three people, including Mr Li.

[2] Australia Visa Link claim that the dismissal was in accordance with the Small Business Fair Dismissal Code. Although it is alleged by Mr Li that the correct payment in lieu of notice was not made, Australia Visa Link do not suggest that it was a summary dismissal for serious misconduct. They argue that the dismissal was for poor performance and that the dismissal followed warnings with adequate opportunity to improve.

[3] The relevant requirements of the Code are as follows:

“In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[4] Mr Li agrees that he received a warning letter on 26 August 2015 which was five days prior to the termination.

[5] In the warning letter of 26 August 2015 Ms Zhan outlines the performance issues as follows:

“I had several meetings with Sean Li in mid of July, on 20/08, 25/08 respectively, and clearly addressed the following problems;

Incomplete case notes recording;
Unclear job list not able to detailing indicate the processing status of his jobs on a daily basis;
Low accuracy of preparing the forms and related documents of applications; most of the mistakes caused due to careless and poor English writing skill.
Not governed by logic.
Low progress.”

[6] The letter makes clear the expectation of the job includes English at least at IELTS level 6, logical thinking and high accuracy. The letter says that poor English skills mean that jobs cannot be completed efficiently, that low accuracy threatens the business success and that “without clear logical thinking ability and steady work attitude, I am not confident he could make progress in the future.”

[7] The letter concludes as follows:

“I personally had a lots of meeting with Sean in the past months, I had tried my best to provide training and support to improve his work. However, I felt disappoint and helpless, since I don’t think the situation will get improved and corrected the above addressed problems in a short period.

In conclusion, from my point of view I think Sean is not suitable of his work position due to the above listed main problems and no marked progress has been made until present.

Therefore, I require Sean to follow my work plan that designed for him. I request him to continue practice the basic and simple work which I will assign to him, and complete the jobs on a timely and efficiency manner, with minimum mistakes.”

[8] Although it is not explicit I think this is notice that termination of employment is likely if performance does not improve. It is not some general exhortation to improvement. The requirement in the code that: “the employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement” is met. The employer says that this must be read in conjunction with the earlier verbal warnings referred to in the letter.

[9] Mr Li was given a reason why he was dismissed. However, he says that Ms Zhan, his supervisor, told him he was dismissed due to poor performance whilst Mr Ye, the company director, told him he was dismissed as the company no longer required a marketing officer.

[10] There are three main issues in contention:

● Firstly, Mr Li denies that the performance concerns were a valid reason as many of the performance issues raised were not matters he was required to do in his job.
● Secondly, M Li argues that he was not given an opportunity to rectify the alleged problem. Mr Li says that the warning on 26 August was the only warning whilst the employer says that there were earlier warnings and Mr Li was on notice that his employment was in jeopardy.
● Thirdly, Mr Li argues that he was given inconsistent reasons for the dismissal.

[11] Evidence was provided by Mr Li, Mr Ye and Ms Zhan.

[12] I accept the evidence of Mr Ye and Ms Zhan that because they felt that Mr Li’s English skills were insufficient for him to effectively carry out the marketing role they provided him with other work or access to other work including student counselling work and other paperwork. They gave evidence that the paperwork was allocated to Mr Li to assist him to improve his English skills but that this did not occur as was evidenced by numerous shortcomings in the paperwork. They provided what they said were samples of this work.

[13] Mr Li accepted that he had been allocated paperwork including student applications and that he was responsible for some errors in the paperwork. He challenged the authenticity of some documents. Mr Li also accepted that he had been provided access to counselling work some of which he did in his working hours with Australia Visa Link.

[14] I am satisfied that if Mr Ye told Mr Li that there was no longer a requirement for a marketing officer this was a reference to Mr Ye’s view that Mr Li was unable to satisfactorily perform the role because of inadequate English skills. Mr Li says that much of the work as a marketing officer was performed in Chinese as the work was directed at the Chinese market. I accept that this was the case but I also accept the evidence of Mr Ye that he required a capacity to understand, utilise and communicate relevant materials in English as part of the job.

[15] I am therefore satisfied that Mr Li was informed that the reason for dismissal was poor performance. Central to that poor performance was inadequate English skills to perform all the requirements of the work Ms Zhan and Mr Ye wished to allocate to him. The nature of the performance issues were set out in the warning letter of 26 August 2015.

[16] Under the small business code it is not necessary for the Fair Work Commission (the Commission) to determine if there was a valid reason based upon the Commission’s assessment of the evidence of what happened. In the circumstances of this case I am satisfied that Mr Ye and Ms Zhan believed that Mr Li’s performance was inadequate for the reasons set out in the letter of 26 August 2015. Central to this was poor English skills and related to it was a low level of accuracy in paperwork. Based upon the evidence of Mr Li, Mr Ye and Ms Zhan I am satisfied that there was a basis for the employer’s assessment.

[17] The letter of 26 August 2015 specifically says that: “I require Sean to follow my work plan that designed for him. I request him to continue practice the basic and simple work which I will assign to him, and complete the jobs on a timely and efficiency manner, with minimum mistakes.”

[18] I cannot see how the five day period from 26 August 2015 to 31 August 2015 was a reasonable opportunity to improve or follow a work plan. Nothing new was raised with Mr Li that happened between 26 August 2015 and 31 August 2015 which would warrant dismissal. The dismissal could not be in accordance with the code unless there were earlier warnings where the performance issues were raised and where Mr Li was advised that he would be terminated if he did not improve. If there were such earlier warnings then it is possible that the requirements of the code were met.

[19] Mr Li says that the meetings of mid July and on 20 and 25 August were “only ad hoc discussions about my workload, rather than performance, with Ms Zhan”.

[20] No warning documents from prior to 26 August 2015 were provided and Mr Li denied that there was any earlier warning.

[21] Mr Li denies that any work plan was drawn up let alone implemented.

[22] Mr Li says that the employer sponsored him to be engaged on a 457 visa to perform the marketing role. That application was made in late 2014 and was approved in early 2015. Mr Li says that Australia Visa Link must have considered his English skills adequate otherwise they could not have sponsored him for the job. Mr Ye says that they applied to sponsor him in the job and they expected that any deficiency in English skills would be made up because Mr Li had committed to work to improve his skills. Mr Ye and Ms Zhan say that they did provide Mr Li with adequate opportunity to improve his English skills.

[23] Ms Zhan and Mr Ye provided evidence that they had provided Mr Li with a number of warnings. They gave evidence of a warning on 26 June 2015 where Ms Zhan in the presence of Mr Ye told Mr Li that his employment was at risk if he did not improve his performance. Mr Ye says that Mr Li was upset and that he took him for a drink afterwards. He says that he remembers this because it was the only occasion they went for a drink together when others were not present. Mr Li accepted that he did go for a drink with Mr Ye on this occasion but he denies that a warning was given on that date.

[24] They also provide evidence that Mr Li was not working solely as a marketing officer for the company but also was engaged by them to do student counselling. They allege that the poor performance included failure to properly complete paperwork due to poor concentration and poor English skills and also poor punctuality in that he arrived late for work on numerous occasions. Ms Zhan says that she raised these issues with Mr Li.

[25] Ms Zhan accepted that she had not raised the allegation of poor punctuality with Mr Li during 2015. She raised it with him in 2014 and they agreed that he would contact her using We Chat to advise if he was going to be late in the future. Evidence was produced of a number of occasions during 2015 when Mr Li was in contact with Ms Zhan about being late, and the reasons for being late, on We Chat. The number of occasions when Mr Li was late in 2015 was disputed. Mr Li says that there were six occasions and Ms Zhan says there were 10 occasions demonstrated by the We Chat record. It is not necessary to decide this matter as I am satisfied that there was no warning in 2015, it formed no part of the warning letter of 26 August 2015 and it was not a matter raised at the time of the dismissal.

[26] I accept the evidence of Ms Zhan and Mr Ye that Mr Li’s duties were wider than marketing and did include student counselling and paperwork. Mr Li accepted that he was expected to do this wider work during his working hours. I accept the evidence of Mr Ye that he allocated these additional duties to Mr Li and reduced the amount of time spent on marketing duties. Mr Li accepted these additional duties as part of his work. I am therefore not satisfied that the matters raised in the letter of 26 August 2015 were irrelevant to Mr Li’s employment. The reason for dismissal must be considered against the work allocated and accepted by Mr Li within the paid working hours and it need not be confined to the position requirements provided as part of the 457 visa sponsorship application. If what Mr Ye did was a breach of Section 457 visa sponsorship requirements then that is a matter for the regulators of the visa system.

[27] Mr Li gave uncontested evidence that he was paid less than the amount required and specified in the 457 visa sponsorship application. He says that in the period to 30 June 2015 he was paid $750 per week and that in the period after that he was paid $500 per week. Again the issue of any breach of the award or the Section 457 visa sponsorship requirements is a matter for the Fair Work Ombudsman and/or the regulators of the visa system.

[28] I am satisfied that there were some significant shortcomings in the way in which Australia Visa Link carried out its responsibilities as an employer and some significant shortcomings in the way in which Mr Li carried out his responsibilities as an employee. This affected the quality of their evidence.

[29] Although there may be elements of overstatement in the evidence of Mr Ye and Ms Zhan they were able to produce evidence of errors in paperwork and of late arrival for work. Mr Li reluctantly accepted that there were at least six late arrivals in 2015 and that there were errors in paperwork for which he had been responsible. They were also able to produce evidence which showed that marketing was only a proportion, and a decreasing proportion of the work allocated to Mr Li during 2015. Mr Li again reluctantly accepted that this was the case. This has led me to reject Mr Li’s absolute denial of any warning prior to 26 August 2015. On balance I prefer the evidence of Ms Zhan and Mr Ye about the events on 26 June 2015 to Mr Li’s total denial. Mr Li did not contradict Mr Ye’s evidence that their drink together on that night was the only time when they had a drink together alone. This adds credibility to Mr Ye’s contention that he clearly remembers the warning that was given on that day. I am satisfied that concerns regarding Mr Li’s performance were raised with him on that day and he was told that his employment was at risk.

[30] I also accept the evidence of Mr Ye and Ms Zhan that the discussions about performance concerns happened at meetings where other matters were discussed and where Mr Li had an opportunity to respond. Mr Li says that Ms Zhan told her he had no right to choose what work I should do. He says that he explained to her about his responsibility as a marketing officer. This illustrates that Mr Li did have some opportunity to respond to the allegation of poor performance.
[31] I have found that Ms Zhan told Mr Li that he was at risk of being dismissed at meetings on 26 June 2015 and 26 August 2015. On the second occasion the details of the concerns and the risk to employment were put in writing. The performance concerns were a valid reason based upon Mr Li’s performance and his capacity to do the job due to poor English skills.

[32] Mr Li had the opportunity to respond to the warning and was given the opportunity to improve during the period from June to August 2015. Mr Li was given paperwork which would assist in improving his English skills. Mr Li said that he would enroll in English classes and the employer allowed time for this to occur before deciding to dismiss Mr Li.

[33] I am satisfied that this was a reasonable chance to rectify the problem. The employer took account of Mr Li’s response which was that he would enroll in English classes and attend them on a Friday. I am also satisfied that Mr Li was advised of the employer’s job expectations.

[34] Thus the following requirements of the Code are satisfied:

“In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.”

[35] Mr Li did not request a support person at the meetings.

[36] The following requirement of the Code is satisfied:

“In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.”

[37] The evidence of the warning letter of 26 August 2015 when combined with the witness testimony and documents provided by Mr Ye and Ms Zhan are sufficient to satisfy me that the Code has been complied with.

[38] The following requirement of the Code is satisfied:

“A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[39] I am therefore satisfied that the dismissal was in accordance with the Code. The application is therefore dismissed.

COMMISSIONER

Appearances:

Mr S Li represented himself.

Mr T Ye and Ms C Zhan appeared for the Respondent.

Hearing details:

2015

Melbourne

December 3

 1   [2015] FWC 7658.

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<Price code C, PR574870>