DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Lau
v
Nelson (Australia) J A Pty Ltd
(U2016/3028)

Application for unfair dismissal remedy – misconduct - Small Business Fair Dismissal Code - whether small business – whether employees of overseas company included

[1] Mr Daniel Lau was employed for nearly 14 months as a jewellery sales executive by Nelson (Australia) J A Pty Ltd (Nelson JA) until 4 June 2016 when he was dismissed. Nelson JA is a company that imports jewellery and sells it to retailers in Australia. Mr Lau says that he was unfairly dismissed. He has lodged an application for an unfair dismissal remedy with the Fair Work Commission. Nelson JA says that it is a small business that complied with the Small Business Fair Dismissal Code.

[2] At the hearing of the application Mr Lau represented himself and gave evidence. With the permission of the Commission Mr Clarence Leung of Clarence Lawyers represented Nelson JA. Mr Jacob Cheng - Director/Operations Manager, Ms Frances Lee - Secretary and Ms Nancy Ding - Receptionist of Nelson JA, gave evidence. Mr Cheng, Ms Lee and Ms Ding gave their evidence through a Cantonese speaking interpreter.

[3] There are two key questions that arise at the outset. The first being “is Nelson JA a small business employer?” and if so, “did Nelson JA comply with the Small Business Fair Dismissal Code?”

[4] If the answer to both questions is yes then Mr Lau’s application must be dismissed. 1

[5] If the answer to the first question is no, then the Small Business Fair Dismissal Code does not apply and I must consider Mr Lau’s application by reference to s.387 of the Fair Work Act (2009) Cth (the Act).

[6] If the answer to the first question is yes, but the answer to the second question is no, then I also must consider Mr Lau’s application by reference to s.387 of the Act.

[7] For the reasons I outline below I have decided that Nelson JA is not a small business employer. Accordingly I have applied s.387 of the Act and considered whether Mr Lau was unfairly dismissed. I have decided that Nelson JA had a valid reason for dismissing Mr Lau but that the dismissal was unjust because of the way it was done. I have decided that it is not appropriate to reinstate Mr Lau in his job but it is appropriate to award Mr Lau compensation. I have decided to award him the amount of $2,902.50 before tax, plus superannuation at 9.5%.

Is Nelson JA a small business?

[8] An employer is a small business employer under the Act if it employed less than 15 employees at the time Mr Lau was dismissed. 2. At this time Nelson JA employed Mr Cheng, Ms Lee, Ms Ding and Mr Lau – four employees.

[9] Mr Lau contends that the matter does not rest here.

[10] He says that Nelson JA is a company owned by the same person, Mr Nelson Chi Kai Ho, as a company called Nelson Jewellery Arts Co. Ltd that is incorporated in Hong Kong.

It is uncontroversial that this company exists and employs sufficient employees that, if counted along with the employees of Nelson JA, would exceed the threshold for the definition of a small business employer. 3 and 4

[11] Mr Lau contends that the application of s.50AAA of the Corporations Act 2001 (Corporations Act) means that Nelson JA is an associated entity of Nelson Jewellery Arts Co. Ltd and I must count the employees of Nelson Jewellery Arts Co. Ltd in coming to a conclusion about whether Nelson JA is a small business employer.

[12] Mr Lau is correct to refer the Commission to s.50AAA of the Corporations Act because s.23 of the Act requires the Commission to count the employees of an associated entity of the employer and because associated entity has the meaning in s.50AAA of the Corporations Act. One entity (the associate) is an associated entity of another entity (the principal) if at least one of a number of conditions apply. 5 These conditions are:

● The entities are related bodies corporate.

A related body corporate is defined in s.50 of the Corporations Act as follows

50 Related bodies corporate

Where a body corporate is:

(a) a holding company of another body corporate; or

(b) a subsidiary of another body corporate; or

(c) a subsidiary of a holding company of another body corporate;

the first-mentioned body and the other body are related to each other.

● The principal controls the associate.

Control is defined in the Corporations Act as follows:

50AA Control

(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(2) In determining whether the first entity has this capacity:

(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

(b) any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(4) If the first entity:

(a) has the capacity to influence decisions about the second entity’s financial and operating policies; and

(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;

the first entity is taken not to control the second entity.

● The associate has a qualifying investment in the principal and significant influence over the principal and the interest is material to the associate.

● The associate controls the principal and the operations or affairs of the principal are material to the associate.

● The associate has a qualifying investment in the principal and significant influence over the principal and the interest is material to the associate. An entity has a qualifying investment in another entity where the first entity has an asset that is an investment in the second entity or the first entity has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

● The principal has a qualifying investment in the associate and significant influence over the associate and the interest is material to the principal.

● A third entity controls both the principal and the associate and the operations, resources or affairs of the principal and the associate are both material to the third entity.

[13] The evidence is that the same person is the sole shareholder of two separate companies. 6 A sole shareholder has control.

[14] The evidence discloses that:

● Nelson Jewellery Arts Co. Ltd cites its “Australia Office” at the same address as Nelson JA. 7

● The website of Nelson JA cites “headquarters” as a Hong Kong address. 8

● Emails in evidence referred to Hong Kong as “head office”. 9

● Nelson Jewellery Arts Co. Ltd directed the sales, supply and financial recording policy and practice of Nelson JA. 10

[15] It appears to me that at least one of the conditions of the Corporations Act for Nelson JA and Nelson Jewellery Arts Co. Ltd to be associated entities is met. That condition is that the principal controls the associate.

[16] Nelson Jewellery Arts Co. Ltd is incorporated in Hong Kong. The question arises as to whether the overseas location of incorporation of Nelson Jewellery Arts Co. Ltd makes any difference to my conclusion.

[17] This question has been considered by single Members of the Commission but does not appear to have been determined by a Full Bench of the Commission or the Federal Court. Single Members have concluded that the offshore incorporation of the associated entity is not a constraint on finding that the employees of the associated entity are to be counted for the purpose of deciding whether an employer is a small business employer. 11 A Full Bench of the Commission granted permission to appeal in relation to one of these instances but the substantive appeal did not proceed. I adopt the reasoning of these Members and conclude that there is nothing in the Act or the Corporations Act that means that I should not take into account the employees of the associated overseas based entity for the purposes of s.23 of the Act.

[18] I find that Nelson JA is not a small business employer. Accordingly I must apply s.387 of the Act and consider whether Mr Lau was unfairly dismissed.

Initial matters

[19] Before I am able to consider whether Mr Lau was unfairly dismissed there are some initial matters that I must address arising from sections 396 and 385 of the Act.

[20] I have considered subsections 396(a) to (d) and I conclude that they present no impediment to me considering the merits of Mr Lau’s case.

[21] I am satisfied that Mr Lau made his application within the period required in subsection 394(2)(a) of the Act, that is, within 21 days dismissal after the dismissal took effect.

[22] I am satisfied that Mr Lau is a person who was protected from unfair dismissal under section 382 of the Act. Mr Lau has completed a period of employment with Nelson JA of at least the minimum employment period. Mr Lau’s annual rate of earnings at the time of his dismissal of approximately was less than the high income threshold.

[23] I have already found that the Small Business Fair Dismissal Code does not apply.

[24] There is no suggestion that Mr Lau’s dismissal was a case of genuine redundancy.

[25] In relation to s.385 of the Act it is common ground between the parties that Mr Lau’s employment was terminated at the initiative of Nelson JA. That is, in the terms of subsection 386(1) of the Act, he was dismissed. The Small Business Fair Dismissal Code does not apply. Mr Lau’s dismissal was not a case of genuine redundancy. That being the case it remains for me to consider whether Nelson JA dismissal of Mr Lau was harsh and/or unjust and/or unreasonable.

Background facts

[26] Nelson JA is a company that imports jewellery and sells it to retailers in Australia. Mr Jacob Cheng is the leader of the business in Australia and he employed Mr Lau from 13 April 2015 as a sales executive. The other employees in the Australian business were Ms Lee, who managed the financial records and was the Secretary and Mrs Ding who was the Receptionist. It was Mr Lau’s role to contact retailers and market and sell the company’s jewellery. It was Mr Cheng who dismissed Mr Lau on 3 June 2016 effective 4 June 2016. He paid Mr Lau four weeks’ pay in lieu of notice along with wages and entitlements. Mr Lau claims he was underpaid but this is not a claim that can be addressed in this application. Mr Cheng was Mr Lau’s direct manager and the pair travelled together regularly over the period of Mr Lau’s employment to visit retailers and jewellery trade shows.

Substantive fairness

[27] It is agreed between the parties that when Mr Cheng dismissed Mr Lau he did not give Mr Lau a reason. Mr Lau says that he asked for a reason and was told by Mr Cheng, “I do not have to give you a reason”. 12 Mr Cheng says Mr Lau did not ask for a reason.13 For the purposes of my decision it is not necessary to decide between the two accounts. It is sufficient to find that no reason was given to Mr Lau and I so find.

[28] Mr Cheng gave evidence about the reason he dismissed Mr Lau as follows:

“It’s a very hard decision for me on that day. Two concerns for me: one is my personal safety because he kept using the mobile while he’s driving, and then for me I am so worried for my safety. Another thing happened is the second time he walked away without any notice to me and caring (sic) the jewellery so that’s another concern for the property of the company.” 14

[29] Mr Lau believes that the real reason he was dismissed was that he complained about not being paid overtime. He gave the following evidence as to his belief:

“Now I believe I was unfairly dismissed based on the following:

(a) during a meeting about the general running of the business in the Sydney office I took the opportunity to raise the issue of not being paid overtime whilst on interstate business trips and was required to work on Saturday, Sunday for last year’s jewellery fair without being paid. Now the issue was simply dismissed by Mr Cheng during the meeting; and

(b) because no remedy to my concerns were provided I again raised the issue in the week prior to my sudden dismissal, whilst Mr Cheng and I were in Brisbane and I was discriminated immediately for raising this issue by being dismissed on our return to Sydney.” 15

[30] I have considered the evidence in relation to the reason for dismissal in the context of all the evidence given in the case and I am satisfied that the reasons Mr Cheng dismissed Mr Lau were twofold: firstly, because Mr Lau had defied his direction to refrain from speaking on a mobile phone while driving a car; secondly, because Mr Lau had breached the company policy that Mr Lau and Mr Cheng remain together at the airport whilst carrying jewellery unless agreed otherwise. That is, the reasons related to Mr Lau’s conduct not his complaint about his wages.

[31] When conduct is the reason for dismissal the Commission’s first task is always to make a finding, on the balance of probabilities, about whether the conduct actually happened.

[32] Mr Lau denies the conduct in relation to mobile phone use. He admits that he left Mr Cheng while carrying jewellery at the airport. He denies that he separated from Mr Cheng without Mr Cheng’s agreement.

[33] I will consider the evidence in relation to the two kinds of alleged misconduct separately.

Use of the mobile phone

[34] Mr Cheng says he and Mr Lau undertook 38 business trips together. 16 Mr Lau counts 26 business trips based on the number of rental car invoices provided by Nelson JA upon application by Mr Lau for an Order for Production of Documents. Mr Cheng provided a list of dates and locations for each business trip.17 Nothing turns on whether the number was 26 or 38. I prefer Mr Cheng’s evidence of the number of business trips and I accept that the list provided with dates and locations identified those trips.

[35] It is agreed that it was the practice of the pair to rent a car at the airport of their destination and use it to drive between retail customers while they were there.

[36] The key factual conflicts between the parties in relation to these business trips and the use of the mobile phone whilst driving were firstly, whether Mr Lau used the mobile phone whilst driving without using a hands-free device and secondly, whether Mr Cheng told him not to.

[37] Mr Lau and Mr Cheng disagreed on the number of times Mr Lau drove the car whilst on business trips with Mr Lau claiming he was the driver on fewer occasions than Mr Cheng asserts.

[38] Mr Lau took the Commission to the rental car invoices and contended that he only drove on the occasions that his name was on the rental car receipt. He says this amounted to 8 occasions. I can only identify 6 rental car receipts with his name identified. Nothing turns on this discrepancy.

[39] I consider that it is more probable than not that Mr Lau was the driver on more than 8 occasions, however, it is not relevant to the key factual conflicts because the number of occasions of misconduct is not the issue.

[40] Mr Cheng sought to establish the number of times Mr Lau used the mobile phone by way of mobile phone records for the business mobile phone used by Mr Lau. The phone records do demonstrate that many phone calls were made from a company phone that was assigned to Mr Lau. The dates of the calls coincided with the dates Mr Cheng provided for the business trips.

[41] Mr Lau did not contest the use of the mobile phone. Mr Lau agreed that he spoke on the phone from the car during business trips. He says he did so while using a hands free phone cradle and that Mr Cheng never told him not to. 18.

[42] The phone records are of assistance in making a finding on the first factual conflict because of the records that coincide with the occasions on which Mr Lau says he was driving. Mr Lau says that he did not initiate calls. By examining the dates upon which Mr Lau agrees that he was driving the car, and comparing the phone records against these dates, I can see when calls were initiated contrary to Mr Lau’s contention and I can infer that he was doing so whilst driving.

[43] The dates Mr Lau says he was driving the car were:

● First occasion 9-12 June 2015 - 2 calls
● Second occasion 15-18 June 2015 - 5 calls
● Third occasion 14-16 July 2015 - 2 calls
● Fourth occasion 24-27 August 2015 - 9 calls
● Fifth occasion 19-23 October 2015 - 21 calls
● Sixth and last occasion 9-12 November 2015 - 15 calls

[44] Mr Cheng says that Mr Lau never used a cradle or hands-free device. 19

[45] Ms Ding gave evidence that Mr Cheng complained to her at the beginning of 2016 that Mr Lau used his mobile phone whilst driving. 20

[46] Ms Lee gave evidence that Mr Cheng complained to her on at least ten occasions about Mr Lau making and receiving calls without activating the speaker function on the phone with one hand on the steering wheel. 21

[47] Mr Cheng says that at Mr Lau’s three month probation discussion he raised his concern about Mr Lau using the mobile phone whilst driving with Mr Lau. 22

[48] Mr Cheng gave evidence that he said to Mr Lau:

“I feel worried about you using a mobile phone whilst driving. I ask you to stop doing that.” Daniel said, ‘I acknowledge your request. I will not do that again.’” 23

[49] I have considered Mr Cheng’s evidence, corroborated by Ms Lee and Ms Ding, and balanced it against that of Mr Lau. I consider that it is more probable than not that Mr Lau did use the mobile phone whilst driving as described by Mr Cheng. I accept Mr Cheng’s evidence that he warned Mr Lau about this practice on more than one occasion, including at his three month probation.

Separating at the airport whilst carrying jewellery

[50] It is agreed between the parties that during the 38 business trips both Mr Cheng and Mr Lau were each carrying jewellery in a back pack. Mr Lau gave evidence that the value of the contents of each backpack would likely be between $50,000 and $100,000. 24 Mr Cheng gave evidence that the contents of Mr Lau’s backpack on the relevant occasions was more than $100,000.25 Either way it is clear that the contents of the backpacks were very high value.

[51] Mr Cheng said that when Mr Lau commenced employment he told him that he should “never disappear during our business trip without first notifying me, even if you are making a brief bathroom trip”. 26 Under cross examination Mr Leung and Mr Lau had the following exchange:27

Mr Leung “But you have been told not to separate from him without your supervisor, the boss, consent? Correct?”

Mr Lau “Yes. I concede to that.”

Mr Leung “Thank you. Indeed, you agreed that at the beginning of appointment, you have been remind not to go off on any account, even to toilet, ‘Without first letting me know’. This is what Mr Cheng spoke to you. Is that correct?

Mr Lau “No. There was never mentioned anything about the toilet.”

[52] The company policy in relation to carrying jewellery in public places was not contained in a policy document. 28

[53] I conclude from this evidence that the policy was that they not separate without the agreement of Mr Cheng.

[54] The relevant factual conflict between the parties relates to the occasions of 1 April 2016 and 3 June 2016.

[55] Mr Cheng gave evidence to the effect that on 1 April in Brisbane and 3 June in Melbourne Mr Lau separated from him without his agreement.  29

[56] Ms Lee gave evidence that on or about 5 April 2016 Mr Cheng told her about an occasion where Mr Lau separated from Mr Cheng in Melbourne airport “without telling me in the words”. 30 She also gave evidence about a telephone call on 3 June 2016 during which Mr Cheng complained to her about Mr Lau separating from him at the airport.31

[57] Ms Ding gave evidence that Mr Cheng told her in about April 2016 that Mr Lau “went off without letting him know”. 32

[58] Mr Lau conceded that he did not inform Mr Cheng every time he went to the bathroom saying:

“because I can see that Mr Cheng can clearly see me, so I just walk to the bathroom in some of the situations”.

[59] He said that apart from these situations he informed Mr Cheng.

[60] He gave evidence that it was:

“quite a frequent occurrence that once we head inside an airport terminal, we go our separate ways because sometimes the flights are delayed and you need to wait for one to two hours and it’s not all the time whereby, like, I’m seeing Mr Cheng at the office already and you don’t really want to see each other for every day and every minute of the day” 33

[61] I have considered Mr Cheng’s evidence, corroborated by Ms Lee and Ms Ding, and balanced it against that of Mr Lau. I prefer the evidence of Mr Cheng over Mr Lau and I find that Mr Lau did leave Mr Cheng at the airport on 1 April 2016 and 3 June 2016 without agreement and in breach of the policy.

Was there a valid reason for the dismissal of Lau relating to his capacity or conduct?

[62] A valid reason will be one that is sound, defensible and well founded in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. 34

[63] In order to properly consider whether the reasons were well founded I have considered what occurred. I have weighed the conduct that I found to occur in light of these criteria and I find the reason Mr Lau was dismissed was sound, defensible and well founded.

[64] Mr Lau defied Mr Cheng on a number of occasions. This defiance put Mr Lau’s and Mr Cheng’s safety at risk and in the case of the conduct at the airport, put the economic security of Nelson JA at risk as well.

Conclusion about substantive fairness

[65] In the context of the nature of the business - wholesaler of expensive jewellery - Mr Lau’s conduct at the airport and his laissez-faire attitude towards that conduct, maintained during the hearing of the case, persuade me that Nelson JA had a valid reason to dismiss Mr Lau. His defiance of Mr Cheng in relation to the use of his mobile phone whilst driving contributed to this finding.

Procedural fairness

Was Lau notified of this reason?

[66] It is agreed between the parties that when Mr Cheng dismissed Mr Lau he did not give Mr Lau a reason. Mr Cheng may have been under the impression that he did not need to do so because the Small Business Fair Dismissal Code applied to the dismissal. I have found that it did not and because no reason was given to Mr Lau he was denied the opportunity of disputing his dismissal with Mr Cheng. This is a denial of procedural fairness. Mr Lau was denied the opportunity of a fair hearing by Mr Cheng because he did not know why Mr Cheng decided to dismiss him.

Was Lau given the opportunity to respond to this reason?

[67] Mr Lau that his says dismissal came as a complete surprise. Plainly Mr Lau was not given an opportunity to respond to the reason for dismissal because he was not given the reason.

Did Nelson JA unreasonably refuse to allow Lau to have a support person present to assist at any discussion relating to his dismissal?

[68] Mr Lau was effectively denied the opportunity to have a support person present to assist at any discussion relating to his dismissal because he had no warning that the conversation on the afternoon of 3 June was to be about a disciplinary matter that might lead to dismissal. Mr Cheng’s decision was made immediately after he returned from the airport having experienced the second occasion on which Mr Lau had left him without his agreement.

Was Lau warned about unsatisfactory performance before the dismissal?

[69] The reasons for the dismissal related to Mr Lau’s conduct not his performance so this factor is not relevant.

Did the size of Nelson JA impact upon the procedures followed in effecting Lau’s dismissal?

[70] Nelson JA employed 4 employees at the time of the dismissal. There were no written policies and induction took the form of the first business trip. There was no evidence that the Hong Kong based company took any responsibility for guiding its tiny Australian associate in good employment practice. This undoubtedly affected the way Mr Cheng went about dismissing Mr Lau. The Hong Kong based company was assertive in its direction to the Australian associate in relation to sales and financial management and it is unfortunate that its efforts did not extend to the important area of people management.

Did the absence of human resource management specialists or expertise impact on the procedures followed in effecting Lau’s dismissal?

[71] Nelson JA had no human resource management specialists or expertise and in the same way that the size of the business affected the approach to dismissal, this affected the way Mr Cheng went about dismissing Mr Lau. There was no evidence about the human resource capability of the Hong Kong based company. I infer from the poor approach taken to Mr Lau’s dismissal that they were either without human resource management expertise or did not offer this expertise to the Australian associate.

Conclusion about procedural fairness.

Mr Lau was denied procedural fairness in the way he was dismissed. This rendered the dismissal unjust and therefore unfair.

Are there any other matters relevant to my consideration of whether Lau was unfairly dismissed?

Mr Lau worked for Nelson JA for 14 months. He is a young man with the majority of his working life before him. I found him to be a confident man with a commanding presence. His English written and oral communications skills were evident and compared favourably to those of Mr Cheng and his other colleagues at Nelson JA. There are no other relevant circumstances advanced by Mr Lau that weigh in favour of a finding of unfair dismissal.

[72] Mr Cheng expressed concern about Mr Lau’s demeanour 35 on occasions and observing them in close proximity I formed the view that Mr Cheng was somewhat afraid of Mr Lau. Their relative strengths in communication and Mr Lau’s confident style may go some way towards explaining why their relationship broke down.

Conclusion

[73] I have found that Nelson JA had a valid reason for dismissing Mr Lau. I have found that the lack of procedural fairness in the dismissal process rendered the dismissal unjust and therefore unfair. I have not found any other relevant circumstances contributing to this conclusion. Overall I find that the dismissal was unfair.

Remedy

Whilst reinstatement is the primary remedy under the Act 36 I note Mr Lau does not seek reinstatement. I find that reinstatement would not be appropriate because the relationship between Mr Lau and Mr Cheng is irreparably damaged.37 I consider that it is appropriate in all the circumstances of the case for me to make an award of compensation to Mr Lau in lieu of reinstatement.38

[74] I will now calculate the amount of compensation to be paid to Mr Lau based on the criteria contained in the s.392 of the Act and the contemporary application of the Spriggs formula. 39

Effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[75] Nelson JA is a small workplace associated with a large overseas based business. There was no evidence that an order for compensation of the amount proposed would affect the viability of the business and I so find.

Length of service: s.392(2)(b)

[76] Mr Lau was employed by ARV for 14 months. I have calculated an amount of compensation to be paid to Mr Lau based on the criteria contained in the Act and the contemporary application of the Spriggs formula. I consider that Mr Lau’s length of service should not affect the amount of compensation to be ordered.

Remuneration that would have been received: s.392(2)(c)

[77] Mr Lau submitted that his gross weekly wage at the time of his dismissal was $1,339 per fortnight plus superannuation at 9.5%. This figure is consistent with Nelson JA’s submissions that he was paid $2,900 per month.

[78] I find that Mr Lau would have been likely to have continued in his employment with Nelson JA for no more than 3 months. His relationship with Mr Cheng was deteriorating and since I have found that there was a valid reason for dismissal I consider that Mr Cheng would have acted upon that reason within that period.

[79] The amount the Applicant would have received over three months was $8,703.50.

Mitigating efforts: s.392(2)(d)

[80] Mr Lau gave evidence that he applied for 11-12 jobs in the occupation of IT which is his qualification. 40 I consider that he has taken reasonable steps to mitigate his loss but has unfortunately been unsuccessful in finding a new job.

Remuneration earned: s.392(2)(e)

[81] Mr Lau gave evidence that he had not secured a new job at the time of the hearing of this matter over three months from the date of dismissal. 41

Income likely to be earned: s.392(2)(f)

[82] No income was earned by Mr Lau over the three months 4 June to 4 September 2016.

Other matters: s.392(2)(g)

[83] Nelson JA paid Mr Lau a month’s pay in lieu of notice and I will deduct an amount of $2,900 from the amount above in recognition of this. I make no further changes to the amount of compensation for contingencies.

Misconduct: s.392(3)

[84] I have found that the conduct that resulted in Mr Lau’s dismissal occurred and was a valid reason for dismissal. I reduce the amount of compensation awarded to Mr Lau by one third on account of his misconduct.

Shock, Distress: s.392(4)

[85] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[86] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by Mr Lau, or to which he was entitled, for any period of employment with Nelson JA during the 26 weeks immediately before the dismissal, or half of the high income threshold.

[87] The amount the Mr Lau would have earned, or to which the he was entitled, for the 26 week period immediately prior to the dismissal was $ 17,407.00 plus 9.5% superannuation contribution.

[88] The amount of compensation I will order does not exceed the compensation cap.

Compensation to be ordered

[89] In calculating compensation I have deducted from the remuneration Mr Lau would have received over three months the amount of $2,900.00, the amount paid to him in lieu of notice and $2,901.00 because of his misconduct.

[90] I order that Nelson JA pay Mr Lau $2,902.50 before tax, plus superannuation at 9.5%, in compensation. An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr Daniel Lau, the Applicant, appeared for himself

Mr Clarence Leung, solicitor, of Clarence Lawyers, appeared for the Respondent

Hearing details:

2016

Sydney

7 September

 1   ss. 385 and 388 Fair Work Act (2009) Cth

 2   s.23 Fair Work Act (2009) Cth

 3   Exhibit Le8 Supplementary Witness Statement of Frances Lee

 4   PN 1660

 5   s.50AAA Corporations Act (2000) Cth

 6   Exhibit Le 8 Supplementary Witness Statement of Frances Lee

 7   Exhibit L1

 8   Exhibit L1

 9   Daniel Lau Outline of Written Submission (Supplementary Jurisdictional Objection); Transcript PN 232

 10   ibid; Transcript PN 253 - 254

 11   Garner v Redmako [2015] FWC 8589; Baccara-Geva (Australia) Pty Ltd T/A Baccara v Edi Idelman [2015] FWC 296; Pretorius v Gardens of Italy Pty Ltd [2016] FWC 2503

 12   PN 96

 13   PN 1349

 14   PN 1005

 15   PN 97

 16   PN 895

 17   Statement of Mr Jacob Cheng 25 August 2016 and Attachment 2 List of business trips

 18   PN 290 - 292

 19   PN 1303

 20   Exhibit Le 9 Statement of Ms Nancy Ding PN 1714

 21   Exhibit Le 6 Statement of Ms Francis Lee; PN 1531

 22   PN805

 23   PN805

 24   PN 401

 25   Exhibit Le 5 Statement of Mr Jacob Cheng 25 August 2016

 26   PN 839

 27   PN 667 - 673

 28   PN1214

 29   PN 850 – 885

 30   PN 1439

 31   PN 1459

 32   PN 1727

 33   PN 377

 34   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 35   PN 863, 1351

 36   s. 390(3) Fair Work Act (2009) Cth

 37   See paragraph 70 above

 38   s.392 (1) Fair Work Act (2009) Cth

 39   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431; McCulloch v Calvery Health Care Adelaide [2015] FWCFB 873

 40   PN 1791-3

 41   PN 1787

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