In conjunction with the publication of these reasons, I issue an order 86 in these terms.
| [2020] FWC 5210 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Xun Hu
v
Rong Wei Pty Ltd ATF The Bian Family Trust T/A Shanghai Garden Chinese Restaurant
(U2019/12079)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 30 SEPTEMBER 2020 |
Application for unfair dismissal remedy – cook – 457 visa holder – small business – performance – allegations and counter allegations of dishonesty, visa fraud and workplace exploitation – whether written warnings fabricated – Small Business Fair Dismissal Code – performance deficiencies insufficient to constitute valid reason – procedural unfairness – serious misconduct – misrepresentation – secret recordings – dismissal harsh, unjust or unreasonable – remedy – discount for misconduct – compensation ordered
[1] On 31 October 2019 Xun Hu (Mr Hu or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy following his dismissal by Rong Wei Pty Ltd as trustee for the Bian Family Trust trading as Shanghai Garden Chinese Restaurant 1 (Shanghai Garden, the Respondent or the employer). He claims to have been unfairly dismissed on 18 October 2019.
[2] At the date of dismissal Mr Hu was employed by Shanghai Garden as a cook 2 at its restaurant in suburban Adelaide, South Australia.
[3] Mr Hu claims his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation. He does not seek reinstatement.
[4] Shanghai Garden is a small business (as defined). It opposes the application. It says it terminated Mr Hu’s employment (with two weeks’ notice, paid in lieu) on performance grounds and on the ground that he had misled the employer about having passed an English language test and being able to speak and read fluent English. It contends that the dismissal was consistent with the Small Business Fair Dismissal Code and, in any event, was not harsh, unjust or unreasonable.
[5] The aforementioned suggests a relatively orthodox unfair dismissal case. The reality is otherwise. The context in which both cases were presented raise serious and substantial allegations and counter allegations of dishonesty, immigration fraud and workplace exploitation.
[6] The Commission’s role is limited to determining the unfair dismissal application. Given the manner in which both cases were framed, the evidence necessarily covered a wide expanse, including these broader immigration and exploitation allegations. Only to the extent necessary does this decision deal with those issues, serious as they are. It is for authorities with investigative and enforcement powers to pursue those issues within relevant legislative and compliance frameworks. This decision may be of some interest to those authorities, but it determines the unfair dismissal case and no more.
[7] Conciliation on 26 November 2019 did not resolve the matter.
[8] The application was referred to Commissioner Hampton who conducted pre-hearing interlocutory proceedings. Shortly prior to hearing, the matter was re-allocated to me for determination.
[9] Directions concerning case management were issued. 3 These included orders for third party discovery from three third parties:4
• the Commonwealth Department of Home Affairs (Immigration and Border Protection) (concerning Mr Hu’s section 457 visa application and the employer’s section 457 visa sponsorship application), on Mr Hu’s application;
• the William Angliss Institute concerning Mr Hu’s skills assessment for his 457 visa, on the Respondent’s application; and
• IDP Education concerning Mr Hu’s English language assessment for his 457 visa, on the Respondent’s application.
[10] A substantial volume of documents were produced by the third parties pursuant to these production orders; many of which were brought into evidence at the hearing.
[11] The Commission granted permission under section 596 of the FW Act for both Mr Hu and Shanghai Garden to be represented in light of complexity, efficiency and fairness. 5 Both parties were represented by counsel from the South Australian bar.
[12] Interlocutory issues arose concerning the attendance of witnesses. On Mr Hu’s application, a fellow employee Ms Hanjiao Kong was ordered to give evidence. On the employer’s application, the following institutional witnesses were ordered to give evidence: Mr Jim Irwin (Manager, Strategic Project Development, William Angliss Institute) and Mr Blake Taylor (Head, Business Assurance, IDP Education Ltd).
[13] I heard the matter (merits and remedy) in-person (consistent with COVID-19 protocols) in Adelaide on 21, 22, 30, 31 July and 10, 12 and 28 August 2020.
[14] Evidence from what I describe as ‘the restaurant witnesses’ (Mr Hu, the two owners: Mr Bian and Ms Ma, Ms Yu and Ms Kong) was given through a Mandarin interpreter. 6
[15] I received written and oral evidence, documents and submissions from both Mr Hu and Shanghai Garden.
[16] I heard evidence from seven persons:
Restaurant Witnesses
• Mr Xun Hu (applicant);
• Mr Yihong Bian (co-owner);
• Ms Ying Jun Ma (co-owner);
• Ms Hanjiao Kong (restaurant manager); and
• Ms Yang Yu (restauranteur and friend of owners).
Institutional Witnesses
• Mr James Irwin (Manager, Strategic Projects, William Angliss Institute); and
• Mr Blake Taylor (Head, Business Assurance, IDP Education Limited).
[17] There are substantial and material disputes in evidence, particularly between the evidence of Mr Hu and the other restaurant witnesses, but also (to a lesser extent) between the other restaurant witnesses.
[18] Resolving disputed facts is necessary to determine this matter. Issues of credit are central.
[19] Given the serious allegations of dishonesty, fraud and exploitation all restaurant witnesses were advised of the privilege against self-incrimination. The Commission directed this occur in express and accessible terms: 7
“You have a right to object to answering a question on the ground that the answer to the question may incriminate you. You will not be required to answer the question if the Commission believes on reasonable grounds that your answer may tend to prove that you have committed a criminal offence. Should you wish to rely upon this privilege against self-incrimination in refusing to answer a question, you will need to let the Commission know at the time.
You should also be aware that if you do not answer a question on the ground that the answer may incriminate you, the Commission will not draw a negative inference against you in these proceedings because you have not answered the question. That is, the Commission will not assume that the evidence would have harmed your case. However, the Commission needs to determine the issues in this application based upon the evidence before it. That means that the Commission will determine those issues without the evidence you would otherwise have provided in answer to the question.”
[20] Counsel for both parties confirmed that each restaurant witness had been advised of the privilege against self-incrimination. 8 On multiple occasions during the hearing I repeated the warning.
[21] The state of the evidence from the restaurant witnesses is quite unsatisfactory.
[22] I do not consider the evidence of any of the five restaurant witnesses (including Mr Hu) to be fully accurate or reliable.
[23] Recognising that (in the abstract) a witness can be creditworthy despite evidence being rejected on reliability grounds (for example, a faded memory or error in observation), regrettably this is not such a case. Whilst relevant events occurred between one and four years ago, my concern with the evidence of the restaurant witnesses (some to a greater or lesser degree) is truthfulness. Amidst the accurate and the plausible was evidence that contained untruths and half-truths designed to bolster one case or damage the other; some of which was pre-determined and rehearsed (for example, in written witness statements) whilst some was given on-the-run in the witness box.
[24] These concerns are not limited to the oral evidence. Some of the documentary evidence before me raises serious questions of authenticity and accuracy. I have found certain documents to have been fraudulent (for example, Mr Hu’s English language certification), others to have been reconstructions after the decision to dismiss (for example, the written warnings) and others (for example, the time and wage records) an inaccurate record of days and hours worked. I have found that an imposter almost certainly sat Mr Hu’s English language test.
[25] Such an unsatisfactory state of affairs makes the task of fact-finding fraught.
[26] I have noted that it is not the Commission’s task to determine whether Mr Hu or Shanghai Garden (or its owners) committed any offence under Australian immigration law, employment law or other statutory offences. The findings I make are civil findings to the required standard of proof. That standard is the balance of probabilities.
[27] Some of the factual findings I have made (or have been asked to make) relate to the serious conduct allegations. To the extent necessary, on those matters I apply the civil burden to “a proper level of satisfaction” 9 that the conduct did in fact occur. This is commonly referred to as the Briginshaw standard.10 This requires more than mere satisfaction that it is more likely than not that conduct occurred. Whilst remaining the civil standard, it requires a proper degree of satisfaction that the conduct did in fact occur.
[28] I turn to general observations concerning each of the restaurant witnesses. All, as I have noted, gave evidence through an interpreter (though Ms Yu has a good command of English and Ms Kong replied to some questions in English). I take into account the difficulty of giving and taking evidence via an interpreter. I make allowances for instances of confusion or potential confusion over translation. I also recognise the distinctive manner in which persons of different cultural background or personality may express themselves. I take into account the general unfamiliarity of witnesses with the environment of a witness box and court room.
Mr Hu
[29] Mr Hu gave evidence in a controlled manner but I nonetheless approach his evidence with some degree of caution. His evidence of events whilst employed in the restaurant was, in many respects, plausible. When he denied that he was fabricating allegations against the employer, his denials were measured but consistent.
[30] However, his evidence underplayed instances of concern with his performance. Nor have I accepted his denial that he did not admit to the employer in about April 2019 (whilst employed) that an imposter sat his pre-employment English language test. Further, his evidence concerning his visa application was wavering and unimpressive, and without drawing any adverse inference from having exercised his right against self-incrimination, is not reliable particularly his claimed lack of knowledge about the English language test. I have not accepted his evidence about his last working day. Having not accepted his denial that he made an admission of fraud to the employer in April 2019, I also have reason to doubt his evidence that he was not paid at all between June and September 2019 though I have not needed to make a finding to this effect.
Mr Bian
[31] I treat Mr Bian’s evidence with caution. Though given respectfully and not wholly unreliable, it was characterised by inconsistency and some evasiveness. He was attentive to questions but verbose, combative and gave the distinct impression of reconstructing events to suit his case. Some of the reconstruction gave the impression of being rehearsed, on other occasions it developed its own life in the witness box. Some denials were simply not plausible.
Ms Ma
[32] Ms Ma was an unimpressive witness. I treat her evidence with a high degree of caution. It was characterised by self-serving inconsistency, exaggeration and evasiveness. She was combative and defiant to the point of becoming shrill and animated. She was unwilling to make concessions, and gave the impression of calculating her evidence according to what would serve the best interests of her case.
Ms Yu
[33] Ms Yu’s evidence was given with composure but carried a flavour of overstatement. That, together with her personal friendship with the owners, leads me to conclude that some aspects (but not all) of her evidence was conditioned to suit the employer’s case rather than being a fully independent narrative of events. I approach it with that cautionary note.
Ms Kong
[34] Ms Kong was a witness of a somewhat different character. At relevant times, she herself worked in the restaurant on a 457 visa (as had Mr Hu). It was Mr Hu who applied for an order that she give evidence, but as it turned out it was the employer who called Ms Kong as part of its case. Whilst she gave evidence in a more natural and less rehearsed manner, I am unable to accept her narrative in its entirety. Her evidence was at times imprecise and suggested some difficulty with exact recall. Further, she was the restaurant manager at the time of giving evidence. Aside from vagueness in parts of her narrative, her continuing dependency on the employer for work (and potential on-going working rights in the country) requires a degree of caution. For reasons that follow, I do not accept her evidence that she saw and filed written warnings prior to Mr Hu’s dismissal.
Mr Taylor
[35] Mr Taylor’s evidence was reliable. Though it was hearsay (he did not deal directly with Mr Hu, the owners or the migration agent), his evidence concerned English language testing protocols applied by his organisation and its documentary records relevant to Mr Hu (or more correctly the person his organisation believed to have been Mr Hu).
Mr Irwin
[36] Mr Irwin’s evidence was similarly clear and reliable. He had direct interaction with the skills assessment conducted prior to the grant of visa to Mr Hu and his employment in Australia. His evidence concerned testing protocols applied by his organisation, and those he conducted (including the documentary material he prepared) relevant to Mr Hu.
[37] Where there is a conflict between the evidence of Mr Hu or the restaurant witnesses and the evidence of both Mr Taylor and Mr Irwin, I prefer the evidence of Mr Taylor and Mr Irwin.
[38] Where there is a relevant conflict between the evidence of Mr Hu and the evidence of the other restaurant witnesses (and in particular the evidence of Mr Bian and Ms Ma) I make specific findings on an issue-by-issue basis.
[39] Much of the evidence before me strayed from factual matters into hearsay, opinion, assertion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence or surrounding circumstances, is uncontested or inherently believable.
[40] There are very few uncontested facts.
[41] Matters of significance that ultimately determine this application are all contested. In the body of these reasons, I make specific findings on those matters.
[42] I make the following findings.
[43] Mr Bian and Ms Ma are husband and wife who, with others, own and operate the Shanghai Garden Chinese Restaurant in suburban Adelaide, South Australia. They emigrated to Australia in 2006 and have operated the restaurant since 2007.
[44] The restaurant is a small business, employing approximately eight persons at the time of dismissal.
[45] Mr Bian and Ms Ma operate the business jointly and each are hands-on owners. Broadly speaking, Mr Bian managed the kitchen, the menu, suppliers and public health officials. Ms Ma managed the front of house (including waiting staff), interaction with customers and administration (including employment matters). However, in a small business operated by a husband and wife team, these distinctions were practical and not rigid. All major decisions were discussed and agreed between the two owners.
[46] Mr Bian had no qualifications or experience as a cook prior to operating the restaurant. He taught himself on the job. At various times when a cook was not employed (or when an employed cook was not rostered), Mr Bian was the cook (or an additional cook or kitchen hand).
[47] Mr Bian and Ms Ma speak the Mandarin language fluently. They have only limited command of spoken English and less so of the written word.
[48] Some years ago, Ms Ma and Mr Bian befriended a fellow restauranteur in Adelaide, Ms Yu. Ms Yu provided regular guidance, mentorship and operational assistance to the owners in managing the Shanghai Garden restaurant.
[49] In 2016 Mr Bian decided that he wanted to spend less time working in the kitchen. He and Ms Ma decided that they would employ a full time cook. 11
Recruitment
[50] Ms Ma and Mr Bian became aware of the 457 visa programme in which an employer could sponsor a worker from overseas in an occupation that the Australian authorities declared was in demand but subject to local skill shortages. Chefs and cooks were occupations open to 457 visa applicants.
[51] Ms Ma and Mr Bian decided to explore the potential for recruiting an overseas cook from China on a 457 visa (at an earlier time they had sought another employee from China, who came to be Ms Kong, under the 457 visa program).
[52] Whether Ms Ma and Mr Bian required the prospective cook to have fluent command of spoken and written English is in dispute.
[53] An Adelaide-based Migration Agent (AOJIA Migration) with experience in recruiting 457 applicants from China was engaged to recruit a cook from China. 12 It is in dispute whether the agent was engaged by the employer, or by Mr Hu.
[54] There is a related dispute over payment for Mr Hu’s visa and visa applications (including the employer’s sponsorship application). In particular, it is disputed whether in 2016 Mr Hu was required by (and paid) the employer $70,000 for his 457 visa. Similarly there is a dispute whether in or around September 2018 (three months after starting) the employer suggested to Mr Hu that his 457 visa be upgraded to a permanent sponsorship visa (subclass 187) and whether it then demanded Mr Hu pay it $10,000 (which Mr Hu says he paid in cash in the restaurant kitchen on 22 January 2019) as a down payment, and whether the employer then in or around mid-2019 asked Mr Hu for a further $35,000 to progress the application (which Mr Hu says he refused to pay). I deal with these issues later in this decision.
[55] A pre-condition to a local employer securing an overseas 457 visa employee is prior labour market testing that evidences a local skill shortage. This is commonly done by advertising locally. The Migration Agent advertised the role on-line (accessible locally and overseas). Shanghai Garden brought into evidence an invoice for a job advertisement (via Career-One) dated 22 November 2016 for an advertisement for a “cook”. 13 No copy of the advertisement was brought into evidence by either Mr Hu or the employer.
[56] Mr Hu lived in Chang Sha City, Hunan Province, China and was a Chinese citizen. He graduated from technical school in the early 1990s with qualifications as a cook and had worked for approximately 15 years in a variety of restaurants and hotels in his home city. At the relevant time he was 45 years of age, married with children.
[57] Mr Hu, interested in exploring opportunities in Australia, saw the advertisement and expressed interest to the Agent. He sent the Agent a resume (written in Chinese characters). There is a dispute as to whether Mr Hu represented in this resume that he could speak English.
[58] Mr Hu did not, at that time, speak or read English to a minimum level of proficiency.
[59] The Agent passed Mr Hu’s resume on to Ms Ma and Mr Bian. They liked what they saw. They instructed the Agent to prepare paperwork to engage Mr Hu as an employee on a 457 visa. In its 457 visa sponsorship application, the employer said: 14
“We posted an advertisement on CAREER ONE, it can last for one month, and we found only one applicant is suitable for this position and after the interview, we think Hu Xun is the right person we want.”
[60] The employer had not, in fact interviewed Mr Hu. All dealings were via the Agent.
[61] An employment contract 15 was prepared by the Agent for signature by Shanghai Garden and Mr Hu.
[62] Mr Bian and Ms Ma went to see the Agent and, in the Agent’s and Mr Bian’s presence, Ms Ma signed the contract on 13 December 2016. Mr Hu says that he did not see or sign the contract at that time; he says a handwritten signature above his name on the contract was placed by the Agent.
[63] Peculiarly, the copy of the Employment Contract tendered by both Mr Hu and the employer in these proceedings has on the signature page a handwritten date “13/12/2016” alongside the employer’s signature. 16 However, the same Employment Contract produced to the Commission by the Department of Home Affairs has a different handwritten date “20/12/2016” alongside the identical signature.17 This is just one of the perplexing aspects of the documentary evidence before me. As the Department’s copy was not formally brought into evidence and as the parties were not cross examined on this apparent inconsistency, and as no substantive issue bears on the apparent difference, I do not deal with this issue further in this decision.
[64] On instructions from Ms Ma and Mr Bian, the Agent then proceeded to prepare the necessary paperwork to have Mr Hu admitted into Australia on a 457 visa.
The English language test
[65] The Australian 457 visa programme is administered by the Department of Home Affairs (formerly the Department of Immigration and Border Protection). Under the programme an applicant employee is required, amongst other conditions, to have been independently assessed as holding the relevant skills to match the in-demand skilled occupation and to have a minimum level of English proficiency.
[66] The Agent liaised with Mr Hu. Arrangements were made for an English language test (via an Australian provider, IDP Education) and for a skills assessment (via an Australian provider, William Angliss).
[67] IDP Education arranged for Mr Hu to sit the in-person English language test. It was held in the Philippines (not China) on 3 June 2017. IDP Education believed Mr Hu would travel to the Philippines for that purpose.
[68] Mr Hu did not travel to the Philippines for the English language test. Unknown to IDP Education, a look-alike imposter sat the test in the name of Mr Hu. The imposter passed the test with a band score of 6.0 (out of 10). On 15 June 2017, IDP Education issued certification that the applicant (Mr Hu) passed the English language test (IELTS Certificate). The certification was sent by IDP Education by post to Mr Hu’s residential address in China. Upon receiving it, Mr Hu forwarded the correspondence (back to Australia) to the Agent.
[69] Whether Mr Hu knew of the English language test requirement, knew of the imposer having sat the test in his name or knew of the imposter passing the test is in dispute.
The skills assessment
[70] AOJIA Migration also arranged for Mr Hu to sit an in-person skills assessment. William Angliss were contracted to undertake the assessment. Mr Irwin was given the task. He travelled to a base in southern China for the purpose (he had multiple visa candidate interviews scheduled across a week). Mr Irwin made arrangements for Mr Hu to travel some hundreds of kilometres from his home city to the test location. The test was an in-person interview of at least ninety minutes held on 28 March 2017. The interview ran over time. It was conducted by question and answer (not as a practical in a commercial kitchen). Before commencing the test, Mr Irwin satisfied himself as to Mr Hu’s identity and authenticity.
[71] Mr Irwin conducted a two-hour interview in English and without an interpreter present (I prefer Mr Irwin’s evidence to Mr Hu’s evidence).
[72] Whether it was Mr Hu who sat the skills assessment is considered further in this decision.
[73] Mr Irwin was satisfied that Mr Hu held the relevant skills. On 11 April 2017 William Angliss issued certification that the visa applicant (Mr Hu) held the relevant skills.
457 visa sponsorship
[74] The Migration Agent proceeded to prepare the 457 visa application and the employer’s sponsorship application.
[75] A 457 visa application was lodged by the Agent on Mr Hu’s behalf.
[76] A 457 employer sponsorship application was lodged by the Agent on behalf of Shanghai Garden.
[77] The sponsorship application was sponsorship for the position of “Cook”. 18
[78] On 4 April 2018 the Department approved Mr Hu’s 457 visa application as sponsored by his employer, Shanghai Gardens.
[79] On 3 May 2018 Mr Hu was advised by the Agent that his sponsorship application had been approved. He then made arrangements to travel to Australia with his family.
Employment at Shanghai Garden
[80] Mr Hu arrived in Australia (Adelaide) on 1 June 2018. On 3 June 2018 he attended the restaurant to commence work.
[81] His first day of work was the first time Mr Hu had spoken to or corresponded with Mr Bian and Ms Ma, and vice versa. Until then, and over the previous twenty months, all communication had been conducted through the intermediary, the Migration Agent.
[82] Mr Bian and Ms Ma spoke to Mr Hu in the Mandarin language. At no time throughout his employment did they speak to Mr Hu in English nor did Mr Hu speak to them in English.
[83] Other kitchen and waiting staff were fluent in Mandarin (some waiting staff also spoke English). Mr Hu did not speak to other staff in English nor did other staff speak to Mr Hu in English.
[84] Immediately prior to Mr Hu being employed as a cook, Mr Bian had been doing the primary work of a cook, although another employee (Mandarin speaking Jason) was also able to work in the kitchen.
[85] Upon commencing, Mr Hu was shown the restaurant menu by Mr Bian. Mr Bian explained the dishes and Mr Hu indicated an ability to cook the dishes.
[86] Mr Hu was employed on a full time basis under the terms of the employment contract he had entered into with the employer in November 2016 (nineteen months earlier).
[87] Mr Hu’s contracted base wage under the terms of his contract and under the terms of his 457 visa was “guaranteed annual earnings” of $59,130 (being $54,000 per year plus 9.5% superannuation). 19 This equated to wages of $1,038.46 gross ($845 net) per week for 38 ordinary hours.
[88] Mr Hu worked Monday to Friday and although Friday evening and Saturday was meant to be his day off, from time to time he was required to work on Saturday (during the day) when Mr Bian considered that Mr Hu had been behind in food preparation.
[89] Mr Bian would typically work in the kitchen alongside Mr Hu.
[90] For the first ten months, 20 Mr Hu worked on a full time basis preparing and cooking dishes in the restaurant kitchen without incident of any consequence. In this small business he interacted daily with the owners and other staff. He did not deal with customers. His interactions were almost exclusively in the Mandarin language.
Disputed facts April 2019 to October 2019
[91] There are significant factual disputes concerning the events from April 2019 until dismissal on 18 October 2019.
[92] I make findings on these disputed matters, where necessary to do so, in the body of this decision.
[93] Mr Hu contends:
• throughout his period of employment (from 3 June 2018) until May 2019 Mr Hu was paid weekly by EFT into his nominated bank account but was required by the employer to travel each week to a local bank facility (ATM) and withdraw $540 in cash (increased to $640 in May 2019) and return that cash to his employer. He did so on the employer’s instruction;
• in late May 2019 Mr Hu became fed up with this state of affairs. On 26 May 2019 he confidentially contacted the Fair Work Ombudsman (FWO) about his employment rights, and the immigration authorities (Border Force). He met with Border Force on about 6 June 2019 21 and also met with and engaged in email dialogue with the FWO22;
• after refusing to pay the employer $35,000 it had allegedly demanded to progress a permanent sponsorship visa, for a thirteen week period between 23 June 2019 to 2 September 2019 the employer ceased paying Mr Hu a wage. For this period of three months he received no wage but attended work;
• in September 2019 the employer resumed paying Mr Hu by EFT (into a separate account he had opened). The employer continued to require reimbursement of wages. However, to avoid detection the employer required Mr Hu to pay the reimbursement via an intermediary family friend of Ms Ma who lived in China. Ms Ma gave Mr Hu details of a Chinese bank account for this purpose and sent Mr Hu WeChat screenshots of bank transfer details;
• in around late September 2019 the employer became aware that it was Mr Hu who had lodged a complaint with the FWO which was being investigated;
• his last day of working a shift in the restaurant was 27 September 2019;
• on or about 27 September 2019 Mr Hu was without notice taken aside by Mr Bian and instructed to immediately go on annual leave until further advised about the future of his employment. He left the restaurant at the end of that shift. He did not work at all in the restaurant during the month of October 2019;
• on or about 18 October 2019 Mr Hu received a letter of termination;
• the employer’s time and wage records relating to his employment are false;
• he was not provided payslips whilst employed;
• the employer’s written warnings relating to his employment are fabricated; and
• there was no counselling or warnings (written or oral) about unsatisfactory performance during his period of employment.
[94] Shanghai Garden deny each of Mr Hu’s allegations. It contends:
• in 2016 it sought a chef for its restaurant who could speak and read English. It advertised locally and in China. It had interest in a 457 visa sponsorship and secured approval from Australian immigration authorities to be a 457 visa sponsor (of nominated roles);
• it did not engage a Migration Agent but was sent a resume by a Migration Agent in the name of Mr Hu. It was paid no monies by Mr Hu for the visa or any future visa;
• it agreed to engage Mr Hu and via the Agent, it signed an employment contract and applied to sponsor Mr Hu;
• from the time Mr Hu commenced working in June 2018 it was clear he could not speak English;
• at the time Mr Hu commenced working in June 2018 Mr Hu told the owners that he could prepare all of the dishes on the menu;
• shortly after he commenced, the owners and front of house staff began receiving regular complaints from customers about the dishes. The complaints were on-line and oral;
• Mr Bian regularly spoke to Mr Hu about these complaints;
• when questioned in April 2019 by Ms Kong and then Mr Bian and Mrs Ma about his inability to speak English to a health inspector, Mr Hu admitted that someone else had sat his English language test;
• Mr Hu was paid in full by EFT until June 2019. There was no cash payment returned to the employer or sought by the employer;
• Mr Hu was paid in full but by cash for three months June 2019 to September 2019 at his request because he had advised the employer that his bank account had been closed by his wife due to a marital breakdown;
• the employer resumed paying Mr Hu by EFT in September 2019 when Mr Hu had advised new bank account details;
• aside from regular counselling about his performance, Mr Hu was given three written warnings. Each was given in handwritten Chinese script by Mr Bian in person at the end of a shift. They were:
◦ 6 May 2019 concerning raw dumplings being served;
◦ 26 September 2019 concerning scallops being served with the roe removed; and
◦ 3 October 2019 concerning leaving heated oil on a stove and creating a fire risk.
• Mr Hu’s last day of working a shift in the restaurant was 3 October 2019 (not 27 September);
• after the third incident and written warning Mr Hu was instructed to take leave from 4 October 2019 after which the employer would decide whether to dismiss him;
• Mr Bian was admitted to hospital on 4 October 2019 with chest pains induced by the stress caused by Mr Hu; and
• the owners then decided to dismiss Mr Hu. They meet a firm of solicitors on 14 October 2019 (which I will refer to as Firm A) and a different firm on 18 October 2019 (which I will refer to as Firm B) 23. They gave instructions to Firm A for a dismissal letter to be prepared but say they forgot to bring along the written warnings. A draft letter of dismissal was prepared with alternate paragraphs in both the Chinese language and in English. The owners then went to Firm B some days later (with Ms Yu) where they gave Firm B the letter, say they produced the written warnings and Mr Bian signed the letter and it was posted to Mr Hu. It provided for two weeks in lieu of notice. The dismissal was for continued poor performance.
[95] The letter of dismissal read: 24
“18 October 2019
Dear Mr Xun Hu
Notice of Termination of Employment
1. The Trustee for the Bian Family Trust hereby advises you that we have decided to terminate your employment as a chef with The Bian Family Trust trading as Shanghai Garden Chinese Restaurant.
2. Under our business sponsorship in the position of a full time qualified cook, you were granted a 457 visa. It was expected you perform the duties of a cook with competent skill and diligence.
3. However, since you commenced your employment with us, there have been many serious issues regarding your performance.
4. On numerous occasions you were provided with verbal warnings that you must improve your performance to the standard expected of a qualified cook. You were further advised that if your performance did not improve your employment would be terminated.
5. You were given numerous opportunities to remedy your performance and the employer to provided extra training to help you improve your skills.
6. Despite these efforts from the employer your performance has continued to be unsatisfactory and we have decided to terminate your employment due to continued poor performance and inability to remedy your performance.
7. We also have reason to suspect you have fabricated your qualifications that were a critical consideration in our decision to hire you. On several occasions you disclosed to myself and other staff members that your English test results were fabricated and that you paid another person to take the test on your behalf.
8. Furthermore, in practice you have been unable to demonstrate English ability to the standard required. In practice you have been unable to demonstrate the skills to the standard required as a cook.
9. Your notice period is two (2) week. You will be terminated immediately in lieu of notice. In lieu of receiving that notice you will receive the wage for a week of your normal working hours.
10. You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay. You will find the final payslip and bank transferred, slip attached to this letter.
11. As the business sponsor of your 457 visa, the Bian Family Trust is obliged to inform the Department of Home Affairs of your termination.
Yours faithfully,
Yihong Bian”
[96] No preliminary issue arises in determining this matter other than the employer’s reliance on the Small Business Fair Dismissal Code (the Code). Mr Hu was protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.
[97] If a dismissal is consistent with the Code in the sense of the employer having complied with the Code, it will not be an unfair dismissal. 25 In that instance, the merits of the dismissal are not further inquired into. In other words, compliance with the Code obviates the need for the Commission to determine whether the dismissal was “harsh, unjust or unreasonable” having regard to factors in section 387 of the FW Act.
[98] If, however, the Commission finds that the small business employer has not complied with the Code, then the Commission is obliged to undertake the broader analysis required by section 387.
[99] I take account all the evidence and submissions before me. Given the volume of material and the breadth of issues raised, I specifically deal with evidence that is most material to arriving at a decision. Some evidence is not referenced, not because I have not considered it, but because I do not need to make specific reference to it. Similarly, I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.
[100] Shanghai Garden was a small business employer (as defined) immediately prior to Mr Hu’s dismissal. 26
[101] The Small Business Code provides:
“Small Business Fair Dismissal Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
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.
Procedural Matters
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
[102] Mr Hu was not dismissed summarily. He was dismissed on notice (paid in lieu). Nor was he dismissed for serious misconduct. He was dismissed for “continued poor performance”. It follows that, for the purposes of the Code, his dismissal cannot be assessed under the ‘Summary Dismissal’ part of the Code. It stands to be assessed under the headings ‘Other Dismissal’ and ‘Procedural Matters’.
[103] I do not consider it open to assess a dismissal under the ‘Summary Dismissal’ part of the Code (and apply its more subjective test) where an employer subsequent to dismissal acquires knowledge that, had it been known at the time of dismissal, would have led the employer to summarily dismissing the employee. Whilst post-dismissal discovery of misconduct that existed at the time of dismissal is relevant to assessing valid reason, retrospectively imputing a subjective belief and hypothetical course of action on the part of the small business employer would be to strain the Code beyond its reasonable application. Whilst this means that some serious misconduct that may have justified summary dismissal (had it been known) cannot be assessed against the ‘Summary Dismissal’ part of the Code, this is a consequence of the language of the Code itself and its reference to a subjective belief held by the employer at the time of dismissal (“when the employer believes”). It is for policy makers, not the Commission, to determine whether the language of the Code requires remediation to cater for such circumstances.
[104] Under the ‘Other Dismissal’ section of the Code, the giving of a prior reason, the giving of a prior warning, the giving of a chance to respond, the giving of a chance to rectify and the giving of a valid reason are all expressed as mandatory. The employer “must” do each of these things. Read as a whole, the plain language of the “Other Dismissal” section of the Code appears to require a prior warning that dismissal for conduct or capacity is a possibility, for an opportunity to respond to the warning, for an opportunity to rectify the problem and for a valid reason for dismissal based on that conduct or capacity.
[105] I now turn to consider whether Shanghai Gardens complied with relevant elements of the Code.
Valid reason
[106] The Code relevantly provides:
“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.”
[107] Determining compliance with this requirement involves an objective assessment of conduct and capacity, akin to a “valid reason” assessment in section 387(a). Unlike the ‘Summary Dismissal’ part of the Code, the language of the ‘Other Dismissal’ part makes no reference to the more subjective test of an employer simply holding a reasonable belief that serious misconduct occurred.
[108] For a reason to be a “valid reason” it should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” Assessment of a valid reason should be applied in a “common sense way” having regard to the “practical sphere of the relationship” to ensure that the employer and employee are each treated fairly. It should “not impose a severe barrier” to the right of an employer to dismiss an employee. 27 Nonetheless, a dismissal on notice for performance even in a small business needs to be objectively verifiable.
Performance
[109] Shanghai Garden’s letter of termination variously claimed “there have been many serious issues regarding your performance”, “your performance has continued to be unsatisfactory and we have decided to terminate your employment due to continued poor performance and inability to remedy your performance”.
[110] Considered as a whole, the evidence does not support this contention.
[111] In considering this question, it ultimately matters not whether Mr Hu was employed as a “cook” as he claims or as a “chef” as the employer claims. Whilst in the hospitality trade a chef may be regarded as a superior skill classification, even if Mr Hu was understood by the employer to be a chef and not a cook (as a result of the translation of the phrase used in his resume “full time cook”, which the interpreter in these proceedings translated as a ‘good or high quality cook’), in the practical sphere of a small Chinese restaurant in the Adelaide suburbs, Mr Hu was required to perform the work of cooking dishes to an acceptable standard for consumption by customers from a pre-determined menu set by the owners.
[112] This is the standard (that of a qualified cook) against which his work performance requires objective assessment.
[113] Should it be material, the evidence overwhelmingly points to Mr Hu having been employed as a qualified cook. It is this description that is used in his employment contract (“a full time cook”). 28 It is this description that is used by the employer in the dismissal letter: “it was expected you perform the duties of a cook with competent skill and diligence” and “the standard expected of a qualified cook”.29 It is this position that was described by the employer in its staff flow-chart when applying for the 457 visa sponsorship (“Vacant (full time) Cook”)30 and in the 457 visa approval (“Occupation COOK ANZSCO Code 351411 – Cook”).31 It is this ANZSCO Code description against which Mr Irwin assessed Mr Hu’s skills.32
[114] Shanghai Gardens submit that shortly after he commenced, the owners and front of house staff began receiving regular complaints from customers about the dishes. The complaints were on-line and oral. The evidence of Mr Bian was that problems with Mr Hu’s cooking arose “almost daily”. Ms Ma said the complaints were “several times a week” and “always”. 33 Ms Yu said they were “often” and “at least weekly”.34
[115] This evidence is not wholly reliable due to exaggeration. Firstly, a paucity of evidence was submitted about on-line complaints. Secondly, given that Mr Hu was not the only employee cooking meals in the restaurant, the evidence does not establish that any specific on-line complaint concerned a meal he had prepared. Thirdly, the evidence of such regular and daily complaints is so exaggerated that it is implausible. Mr Hu worked for sixteen months in the restaurant. His work was cooking and preparing food (and related kitchen duties). Over this time he worked hundreds of shifts and prepared many hundreds of dishes. If there were daily complaints (as the employer alleges) they would have amounted to the hundreds. No business owner, let alone a small business owner, would have stood for that. If the evidence of Mr Bian (that from day one he couldn’t cook at all) 35 or the evidence of Ms Ma or Ms Yu (of daily or regular complaints for the entire period of his employment) was true, Mr Hu would not have lasted more than a few months.
[116] Ms Kong’s evidence was somewhat more measured on this issue. She said that complaints about the dishes arose “at least monthly” 36 and that, although the number of complaints increased after Mr Hu commenced working in the restaurant, not all complaints related to his dishes or were made at times when he was working.37
[117] I find that there were occasional specific complaints about dishes prepared by Mr Hu and that Mr Bian more frequently told Mr Hu to speed up his cooking to get dishes out to customers more quickly. Mr Hu acknowledged that he had been informally spoken to about the speed of his cooking. 38
[118] I find that it was probable that on at least two occasions the quality of a specific dish was drawn to Mr Hu’s attention by the waiting staff: once in around May 2019 when a customer complained about dumplings being undercooked, and once (probably in September 2019) when a customer complained about scallops being served with the roe removed. I am also satisfied that there were other occasions when waiting staff or Ms Ma told Mr Hu, in general terms, to “be careful” or “pay attention” following customer feedback about an overcooked or undercooked dish. 39 These were not warnings but feedback in the course of a shift on a matter of concern.
[119] For reasons that follow, I do not find that on either occasion was there any formal warning, let alone a written warning.
[120] I find that the undercooked dumpling dish was a performance failure.
[121] However, I do not find that serving the scallops with the roe removed was a performance failure. The evidence is that whilst the owners considered that the dish ordered needed to be served with the roe intact, some Chinese scallop dishes are served with the roe removed. Mr Bian’s evidence was that Mr Hu told him that in China “we remove the roe”. 40 The evidence also establishes that there are various scallop dishes on at least the take-away menu in this restaurant, some which the owners believed the roe should be taken off. I accept that after the customer complaint, the owners made it known to Mr Hu that the dine-in dish in question was expected (by them) to be served with the roe intact. I do not accept that Mr Hu had been informed of this prior, or that the dish was not presented as a qualified cook may present it. If Mr Hu had subsequently presented this dish with the roe removed, after being informed of what the owners expected, it would have been a performance failure. However, that is not my finding. I find that at the time of preparing the scallop dish on the day in question the dish was not presented in a substandard way or a way in which Mr Hu knew would not be acceptable to the owners or to customers.
[122] Even were I to have found that the dish was prepared in a substandard way or knowingly contrary to the owners wishes, I find that the owners expressed their displeasure but I do not find that there was any formal warning, let alone a written warning over the incident.
[123] A third incident of alleged performance failure is relied on by the employer: unattended heated oil presenting a fire risk. Mr Bian’s evidence was that this incident occurred on 3 October 2019. He says that he noticed the oil heating in the kitchen and starting to smoke. He found Mr Hu out the back holding his mobile phone, near a separate room where food preparation occurs. He says he became angry with Mr Hu about the neglect and gave him a written warning and sent him on annual leave until told whether he keeps his job.
[124] One of the many perplexing aspects of this matter is the completely disparate evidence as to whether Mr Hu was even at work on 3 October 2019. The employer says he was. Mr Hu says that his last working shift was 27 September 2019. Obviously, if Mr Hu was not at work on 3 October 2019 the alleged incident could not have occurred that day (though may have occurred on a different day).
[125] Mr Bian’s evidence was that the incident occurred and that he recalls it on 3 October 2019 because the next day (4 October) he was taken to hospital with chest pain (which he attributed to the stress caused by Mr Hu).
[126] Mr Hu denies any such incident. He says that he was directed onto annual leave the week prior, after the scallops incident. In support of his version, Mr Hu not only claims that the 3 October 2019 written warning was fabricated but that the employer’s time and wage record shows him on “holidays” in the week of 30 September 2019.
[127] The documentary evidence said to corroborate both versions is suspect.
[128] For reasons that follow, I have found that the 3 October 2019 written warning (as are all written warnings in this matter) a reconstruction after the decision to dismiss was made. It was not written by Mr Bian on 3 October (or the following day) let alone given to Mr Hu at any relevant time before his dismissal. The written warning of 3 October 2019 is of no assistance in determining whether the third alleged incident occurred.
[129] Whilst ordinarily reliance could be placed on written time and wage records to determine if an employee was at work on a given day, the employer’s records are said by both sides in these proceedings to be inaccurate. They do show diagonal lines written across the week of 30 September 2019 with the word ‘Holidays” (in Chinese script). The evidence is the diagonal lines were placed by Ms Ma after 3 October 2019 and days after Ms Yu had written a week of shift times in advance. 41 As the records are inaccurate, it is not safe to rely on them to decide whether Mr Hu was at work on 3 October 2019.
[130] Given the credit issues associated with both Mr Hu’s evidence and with Mr Bian and Ms Ma’s evidence their oral evidence alone cannot safely support a finding either way. Mr Bian’s evidence of the alleged neglect was embellished in cross examination by an allegation that Mr Hu was not just out the back but holding his phone, something not mentioned in his primary evidence. I do not have medical evidence before me to conclude whether Mr Bian fell ill the next day because of Mr Hu’s conduct and the smoking oil incident or, alternatively, other stressors such as worries about Mr Hu’s allegations against the business.
[131] Ms Kong’s evidence does not assist on this issue. She left for a month of annual leave the day after working on 27 September 2019.
[132] It is ultimately based on Ms Yu’s evidence that I conclude, on the balance of probabilities, that Mr Hu did work four shifts (Monday to Thursday) between 28 September 2019 and 3 October 2019 (inclusive). Her evidence was that she saw Mr Hu working in this period.
[133] I therefore reject Mr Hu’s evidence that the incident could not have occurred because he was not at work on 3 October 2019.
[134] Did the incident occur? On the balance of probabilities, and despite my misgivings about many aspects of Mr Bian’s evidence, I find that an incident did occur (and in all probability on 3 October 2019) when Mr Bian noticed heated oil unattended in the kitchen and starting to smoke and found Mr Hu near the food preparation room and not in the kitchen. I find that Mr Bian did become angry with Mr Hu, and did direct him to take leave, and that this turned out to be Mr Hu’s last shift in the restaurant. I do not however find that a written warning was given nor do I accept Mr Bian’s evidence that Mr Hu told him not to worry about a fire risk because the restaurant had insurance. Whilst the incident had the potential to be serious, there is no reliable evidence of the length of time Mr Hu was outside the kitchen. Without that evidence, the seriousness of his neglect cannot be established. It was neglect by Mr Hu that warranted expression of displeasure but I cannot safely conclude that it was at a level of seriousness that justified dismissal (collectively or individually) let alone being summarily directed to go on leave to await dismissal.
[135] As a result I find that amidst the many hundreds of dishes Mr Hu prepared over sixteen months, one dish of dumplings was undercooked, one dish of scallops served with the roe removed was not presented as the owners or the particular customer had expected, other occasional instances of customer feedback about an alleged undercooked or overcooked dish were communicated in general terms, there was one instance of momentarily leaving oil heating in the kitchen and more frequently Mr Hu was told to speed up his work. These were performance failures.
[136] I find that Mr Hu’s performance was occasionally deficient, and an accumulation of deficiencies was putting his employment at risk. However, he was not in an overall context failing to do his job in a sub-standard way. The standard an employer can reasonably expect of an employee is that of competence. Whilst the standard is not one of perfection it is more than someone simply trying their best. 42 It is not to the point that Mr Hu may have been imperfect in the sense of making some errors or being sometimes too slow for the liking of the owners or customers. The work of a cook in a restaurant and the pressure of kitchen service and customer orders will necessarily give rise to some frustrations with speed or imperfections in a dish. A handful of errors in the ordinary course of a cook’s work scattered across months of otherwise competent service is not a sound or defensible ground for dismissal.
[137] I am not satisfied that as at 18 October 2019 the instances of underperformance were of such gravity and frequency, when viewed in the context of Mr Hu’s overall work output, that there was a valid reason for dismissal.
[138] A second ground on which Shanghai Garden contend that Mr Hu was dismissed for a valid reason concerns his proficiency with the English language and alleged representations he made to the employer about his English language proficiency.
[139] Whilst this is not expressed by the employer in the letter of termination as a reason for dismissal, a dismissal can be for a valid reason if the facts establishing the reason existed at the time of the dismissal and where those facts, unknown to the employer, could not have been reasonably known. 43
[140] Relevantly, the employer made reference in passing to this issue in its letter of dismissal: 44
“We also have reason to suspect you have fabricated your qualifications that were a critical consideration in our decision to hire you. On several occasions you disclosed to myself and other staff members that your English test results were fabricated and that you paid another person to take the test on your behalf.
Furthermore, in practice you have been unable to demonstrate English ability to the standard required. In practice you have been unable to demonstrate the skills to the standard required as a cook.”
[141] Two issues arise for consideration:
• was Mr Hu’s lack of proficiency with the English language a valid reason for dismissal? and
• did Mr Hu misrepresent his English language proficiency to the employer and if so, was this a valid reason for dismissal?
[142] The answer to the first question is no. The evidence overwhelmingly points to a conclusion that it was neither a condition of employment nor an active requirement to perform the work of a cook that Mr Hu speak or read the English language to a level of proficiency. The evidence is that the owners, not themselves fluent in English, spoke to Mr Hu in Mandarin and preferred that form of communication with their staff. They employed Mandarin-speaking staff, with front of house staff being able to speak both Mandarin and English. Other kitchen staff and front of house staff overwhelmingly spoke to Mr Hu in Mandarin. Customer orders were recorded in both English and Chinese script. It mattered not to the preparation of a dish nor its timeliness that Mr Hu could not speak or read English with proficiency.
[143] I accept the employer’s evidence that it preferred its cook to be able to speak English in order to liaise with local health regulators should the need arise. A preference is not however a requirement. Whilst liaising with inspectors was generally done by Mr Bian or Ms Ma, there was at least one occasion where only Mr Hu and Ms Kong were present at the workplace and an unsolicited visit from a local inspector occurred. I accept Ms Kong’s evidence that Mr Hu struggled to make himself understood. These instances were however so occasional that it cannot be reasonably said that a proficiency to speak English was a job requirement of the cook in this restaurant.
[144] I reject the evidence of Mr Bian and Ms Ma that they included this requirement in their (unproduced) job advertisement or told this to Mr Hu when they first met him. That evidence was greatly exaggerated and self-serving. Both Mr Bian and Ms Ma realised when first meeting Mr Hu in June 2018 that his English was very limited. They did nothing about that because, at that time, it was not required by the employer. Ms Ma’s evidence that it was required but she did nothing about it because she was “very busy” 45 was particularly unimpressive.
[145] Moreover, the Job Description for the position of cook that the employer included with its 457 visa sponsorship application identified four skill requirements (ability to create new dishes; ability to cook traditional Chinese food; certificates or qualifications relating to a cook; and more than five years working experience in the position). 46 None referred to English language proficiency.
[146] The second, and more material issue which arises is whether Mr Hu misrepresented his English language proficiency to the employer and if so, whether this was a valid reason for dismissal.
[147] The misrepresentation is said to have taken two forms.
[148] Firstly, in Mr Hu’s resume. I do not accept that the resume was a misrepresentation of English proficiency. Under the heading ‘Special Skills’ in the Chinese script (not in the hard copy English translation), the resume refers to “Chinese and English”. The relevant extract was interpreted in these proceedings as follows: 47
“Special Skills
Language ability:
Chinese and English
Skill level of computer: Familiar with Windows 2000, Windows XP etc. system…”
[149] This representation, whilst capable of being misleading, did not materially mislead. It did not state a level of English proficiency. The employer did not inquire whether the “English” reference was the limited English Mr Hu possessed whilst a resident of China, or something more.
[150] Secondly, in the English-language test conducted as a pre-condition for approval as a 457 visa applicant.
[151] By an on-line application, IDP Education was engaged by Mr Hu (or by an agent acting on his behalf) to sit an in-person English language test. It was held in the Philippines (not China) in June 2017. IDP Education believed Mr Hu would travel to the Philippines for that purpose. This in itself did not raise a red-flag to IDP Education. Although not common, Mr Taylor’s evidence was that in his experience from time to time an overseas candidate would travel to a nearby country to sit a test.
[152] Mr Hu did not travel to the Philippines for the English language test.
[153] The evidence clearly establishes that unknown to IDP Education, an imposter sat the test in the name of Mr Hu. The imposter, in a broad sense a look-alike, passed the test with a band score of 6.0 (out of 10). On 15 June 2017, IDP Education issued certification that the applicant for the visa passed the English language test (IELTS Certificate).
[154] Mr Hu says that he did not know of an English language requirement and that it was the Migration Agent, not he, who organised the fraudulent test. I do not accept Mr Hu’s evidence that he did not know of the requirement for an English language test prior to arriving in Australia. It is implausible that a visa applicant seeking working rights in Australia and employer sponsorship and liaising with a Migration Agent would not be aware or made aware of this mandatory requirement over the eighteen months that his application was being made and processed. Mr Hu’s evidence is also at odds with the evidence of Mr Irwin whose notes of his meeting (on 28 March 2017) with Mr Hu record that Mr Hu answered “yes” to the question ‘Have you done any English language training?’ with the following detail: 48
“English classes in china in 2016
IELTS testing process started”
[155] Though Mr Hu expressed some lack of recall, his evidence that he did not say this directly to Mr Irwin or through an interpreter because the interpreter (who he says was present, but who I find was not) may have invented this answer and lied to Mr Irwin is fanciful. 49
[156] Based on the evidence of Mr Taylor, the IELTS process did not conclude until 3 June 2017. It is entirely plausible that the administrative process which resulted in the interview (with the imposter) in the Philippines had started by March 2017.
[157] A further difficulty for Mr Hu is Mr Taylor’s evidence, which I accept, that the IELTS documentation after test-time was sent by IDP Education by post to Mr Hu’s residential address in China. Its liaison was therefore not solely with the Agent (if at all).
[158] Mr Hu says he forwarded the correspondence (back to Australia) to the Agent without reading it (it was written in English), as the Agent had required of him. This may be so, but I find it implausible that Mr Hu did not open the correspondence. His evidence on this was hesitant, poorly delivered (even through an interpreter) and uncomfortably given. Had he opened the correspondence (and I find on the balance of probabilities that he did so) he would have seen a passport-style photo of a person who was not himself on the IELTS Test Report Form (certificate) issued under his name.
[159] I find that, at least from that time, Mr Hu was aware that someone else had sat an English language test related to his 457 visa application that was other than he, even if he had not orchestrated or approved that course of conduct. From thereon, he was indifferent to that fact, and the fact that Australian authorities were operating on the basis that he had a 6/10 English proficiency when in fact he had very poor English proficiency. His objective was to get the visa, having paid a very large amount of money (either to the Agent or to the employer) for the visa services to secure working rights in Australia. He was also indifferent to the consequences of the fraud for his prospective employer (with whom he had not liaised).
[160] An associated issue is whether the IELTS certificate subsequently submitted in support of the visa application was doctored by digitally superimposing a photograph of Mr Hu in lieu of the person who sat the test. The evidence before me raises a serious question in this regard as the photograph taken by IDP Education at test-time 50 does not match the photograph on the IELTS certificate used to support Mr Hu’s visa application.51 However, as this was not a matter of forensic consideration before me, I do not conclude to the required level of satisfaction that the certificate was digitally altered or that Mr Hu was a party to such further misconduct.
[161] It is on the basis of the oral and documentary evidence of Mr Taylor, and the unconvincing denial by Mr Hu, that I am satisfied that in fact an imposter sat the English language test for Mr Hu and that Mr Hu, upon learning that the imposter had done so and passed the test, failed to take any steps to correct the record with the Australian authorities who processed his visa application or declare the fraud to his prospective employer.
[162] I do not make this finding on the basis of the evidence of Mr Bian, Ms Ma, Ms Kong and Ms Yu that Mr Hu admitted in April 2019 that an imposter had sat his English language test. I accept the evidence of Ms Kong that Mr Hu told her, in an unguarded private moment, that this is what occurred. At that time, Mr Hu regarded Ms Kong as a fellow traveller; both were on a 457 visa and both (in his opinion) were being taken advantage of by the employer. That he told her, did not make it so. However, once Ms Kong advised Ms Yu of the admission and Ms Yu advised Ms Ma and Mr Bian, the employer had reason to believe that Mr Hu’s English language test had been sat by someone else. Mr Bian and Ms Ma then spoke to Mr Hu; Mr Hu admitted the fraud in his name. The owners told him that it was serious but did nothing more about it.
[163] There is no evidence before me that Shanghai Garden were a party to or knew of this fraud. Whilst it is a reasonable inference from the evidence that they knew a person they were sponsoring was required to pass an English language test to secure working rights in Australia, it was reasonable for the employer to act upon advice received from the Migration Agent that the prospective employee had met relevant requirements.
[164] However, this does not equate to Shanghai Garden having required Mr Hu to meet a particular level of English proficiency to work in the restaurant. As noted, the evidence strongly points otherwise. Also relevant is the fact that Shanghai Garden signed the employment contract with Mr Hu in November 2016. The fraudulent English language test was not sat until 2017; the certificate issued is dated 15 June 2017, a full seven months after the employer contracted to engage Mr Hu. The certificate (with Mr Hu’s photograph on it) was not sent to the employer by the Agent until February 2018, 52 a full fourteen months after the owners had signed its employment contract with Mr Hu. It cannot be said that the employer was reliant on the results of that test in making its decision to employ, other than its general reliance on compliance with immigration requirements. Mr Hu’s assessed level of English proficiency was not relevant to the employer’s decision to have engaged him as its employee.
[165] Was Mr Hu’s conduct in not disclosing to the employer (or immigration authorities who were transacting his and the employer’s 457 visa sponsorship application) a valid reason for dismissal?
[166] Clause 4.2 of the Employment Contract between Mr Hu and Shanghai Garden provided that Mr Hu would: 53
“Deal with the Employer in good faith in all aspects of the employment relationship.”
[167] Irrespective of whether Mr Hu had seen this employment contract before he arrived in Australia, he saw it when he started working in June 2018. This clause is an expression of the common law duty of fidelity owed by an employee to their employer. That duty is based on the premise that trust and confidence needs to exist as a necessary ingredient to an effective employment relationship.
[168] As noted, Shanghai Garden clearly had concerns about this issue at the time it decided to dismiss Mr Hu and recorded them in the dismissal letter.
[169] Yet, in the six months from April 2019 the employer informally expressed its concern to Mr Hu but did no more. It continued to employ him, continued to roster him and continued to expose its customers to his cooking. It took no disciplinary action on that ground.
[170] Over that six month period the employer continued to speak to Mr Hu in the Mandarin language, an occasional incident of an unacceptably prepared dish arose, Mr Hu complained of alleged workplace exploitation to the FWO and Border Force and the employer, in October 2019, formed a belief that it needed to dismiss Mr Hu on alleged performance grounds. Ms Ma’s evidence revealed a deep annoyance that Mr Hu had, in fact, complained to the FWO and that he had done so “without my knowledge”. 54
[171] The inference I draw from these facts is that it was only in October 2019 when the employer decided it needed to dismiss Mr Hu that the issue of the admitted fraud against its visa sponsorship became an issue relevant to the employment relationship (but even then only mentioned, in passing, in the dismissal letter).
[172] There is a long line of cases which clearly, and for good reason, point to employee fraud being a valid reason for dismissal; indeed, summary dismissal. 55
[173] However, it is equally the case that a valid reason must be assessed in the relevant contextual circumstances. 56
[174] The relevant issue here is whether, in the context of this employment relationship, the conduct struck directly at the duty of fidelity so as to constitute a valid reason for dismissal.
[175] Mr Hu’s knowledge that a fraud had been committed in his name as a mechanism to secure working rights in Australia was, generally speaking, undeserving of a right to continue to be employed. It may yet have that repercussion as to future working rights. However, aside from telling him that it was a serious matter, the employer’s lack of interest in following up the admitted fraud once his admission came to their attention, and its willingness to continue to employ Mr Hu for a further six months and then only dismiss him on alleged performance grounds place this matter in a special and rare category – a category where it cannot be reasonably said that an admitted fraud in the name of an employee in and of itself compromised the duty of good faith and the mutuality inherent in that duty.
[176] Knowledge of the admitted fraud, serious as it was, was not considered by the employer as so fundamental to the relationship of trust and confidence that the employment relationship could not bear it. It chose to keep employing Mr Hu for a further six months in the full knowledge of the admission.
[177] Further, when the employer came to dismiss Mr Hu it did so on notice, not summarily. Even then, it clearly did not consider the admission of English language fraud to be serious misconduct. I take into account that at that time the employer simply had an admission, not documentary proof. That proof did not emerge until documents produced in these proceedings from third parties came to light. Nonetheless, the employer did not, at any time prior to dismissal, follow up with relevant third parties (such as the visa approving authorities or IDP Education who conducted his test).
[178] I do not accept Mr Bian’s evidence that he contacted a lawyer about the issue in April or May 2019 because he thought it serious. That evidence was inconsistent with other evidence he gave (that he did not see a lawyer about Mr Hu until September or October 2019; that he did not take the admission particularly seriously 57; and that he did not know where to go to lodge a complaint58).
[179] In these unique circumstances, the conduct by Mr Hu in knowing that a fraud had been committed in his name in order to secure working rights in Australia but not disclosing that fact to his employer until nine months into his employment, whilst repugnant, was not a valid reason for dismissal.
Secret recording
[180] A third issue was advanced at the hearing as constituting a valid reason for dismissal: that, during the course of his employment, Mr Hu had without the knowledge or consent of the owners made secret recordings of discussions with the owners.
[181] Shanghai Garden submit that secretly recording conversations with an employer is serious misconduct in that it destroys trust and confidence necessary to maintain an employment relationship. It also submits that the recording was unlawful (contrary to section 4 of the Surveillance Devices Act 2016 (SA)).
[182] The Commission is not seized with jurisdiction to determine lawfulness of conduct. It is sufficient to consider whether the alleged conduct constituted a valid reason for dismissal.
[183] Mr Hu did not deny that he had recorded more than one conversation. He asserted that he had done so on “several” occasions once he had reported his allegations of exploitative workplace conduct to the compliance authorities and for the purpose of gathering evidence to protect his interests against alleged exploitation. 59
[184] Relevantly, the secret recording(s) became known to the employer only following dismissal (and it would appear as a consequence of the workplace investigation by the compliance authorities).
[185] Mr Hu’s counsel drew attention to one of the secret recordings during interlocutory proceedings shortly prior to the hearing. 60 This notwithstanding, neither Mr Hu nor the employer sought to rely on it; it was not produced to the Commission nor tendered in evidence.
[186] As noted, it is well established that conduct known to an employer only after dismissal can nonetheless constitute a valid reason for dismissal provided the conduct occurred during the course of employment and the employer could not reasonably have known of the conduct in that period. The secret recording meets this criterion.
[187] There is also well established authority to support the general proposition that one party to an employment relationship secretly recording the other is engaging in conduct at odds with the duty of fidelity and good faith, and that grounds exist for summarily ending the relationship. 61 That notwithstanding, the schema of the FW Act requires a valid reason to be assessed in context so as to ensure a ‘fair go all round’. In cases of secret recordings, the authorities do not slavishly apply a general rule without regard to circumstance. Circumstance and context matters. The general rule is said to apply “unless there is justification”.62 One such justification may be that the recording was a reasonable course available to protect one’s lawful interests – not dissimilar to the statutory defence in section 4(2)(a)(ii)63 of the Surveillance Devices Act 2016 (SA).
[188] The difficulty in this matter is not the general principle that secret recordings (unless made to protect one’s lawful interest) are an act of misconduct but the limited evidence about context and circumstance in which the recording was made. Context and circumstance are relevant to assessing whether Mr Hu’s conduct constitutes a valid reason for dismissal.
[189] The evidence in this matter does not reveal how many recordings were made or, apart from one with Ms Ma and possibly another with Mr Bian, who else was recorded. Based on Mr Hu’s evidence, there is a high degree of probability that the recordings were made to protect Mr Hu’s interests once he had reported the employer to the FWO and Border Force on 26 May 2019. They may have been amateurish pieces of detective work but Mr Hu was, at the time of making the recordings, concerned at what he believed to be continuing wage exploitation. It is unclear whether the recording was made with the knowledge of the FWO or other authorities, or for the specific purposes of their investigation(s). Nonetheless, Mr Hu was seeking to gather evidence of his workplace circumstances in support of his belief that he was being treated unlawfully.
[190] In these circumstances, I do not conclude that the secret recordings were serious misconduct constituting a valid reason for dismissal.
Conclusion on valid reason
[191] I have found that whilst performance failures existed and warranted a disciplinary response by the employer, their frequency and gravity as at 18 October 2019 in the context of Mr Hu’s overall work output were not sufficient to individually or collectively constitute a valid reason for dismissal.
[192] I have also found that in the unusual circumstances of this matter where the employer failed for some six months to summarily dismiss (or report) an admission of serious misconduct (an immigration fraud), that the misconduct was not a valid reason for dismissal.
[193] I have also found that Mr Hu was acting to protect his lawful interests in making secret recordings and that in those circumstances making the recordings without the employer’s consent was not a valid reason for dismissal.
[194] It follows that no valid reason for dismissal existed.
[195] Mr Hu contended that whilst he was useful to the business and not causing trouble his employment was secure, but that once he had complained to the FWO and Border Force about alleged workplace exploitation he was sacked on trumped up performance charges and the alleged fraud (which he says he was the victim of, not a party to) was weaponised against him in the sense of it being referenced in his termination letter. He submits this was the true reason for dismissal and seeks a finding to that effect.
[196] This is an unfair dismissal matter under the Part 3-2 of the FW Act not a general protections matter under Part 3-1 in which a former employee asserts adverse action for asserting a workplace right.
[197] It is not necessary to make finding on Mr Hu’s contention that an ulterior reason for dismissal existed, having found that none of the reasons advanced were valid reasons for dismissal. Whilst there is some evidence to support an inference in this regard, there are also gaps in evidence (for example, there is no reliable evidence as to when precisely the employer first knew of the FWO investigation).
[198] I leave open the question as to whether the employer was acting in retaliation to Mr Hu for having asserted a workplace right and seeking investigation by the authorities of alleged workplace exploitation.
[199] The requirement of the Code that there be a valid reason for dismissal was not complied with.
Warning
[200] The Code relevantly provides:
“The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.”
[201] Another perplexing aspect of this matter is the existence of handwritten warnings in Chinese script 64 yet completely divergent evidence about the authenticity of those warnings.
[202] Mr Hu’s evidence was unequivocal. He had never seen these warnings prior to their disclosure in these proceedings and was not given any written warning whilst employed, neither in the terms of the three warnings in exhibit A6, nor in any other terms.
[203] Set against this denial is the following:
• Mr Bian’s evidence that he personally wrote each of the warnings on the day of each incident (6 May 2019, 26 September 2019 and 3 October 2019), and that he gave the original of each written warning to Mr Hu at the close of business on each of these days, and that he photocopied a copy of each warning for the business records;
• Ms Ma’s evidence that she “knew of” the warnings;
• Ms Yu’s evidence that she “saw” the warnings; and
• Ms Kong’s evidence that she filed the first two warnings in Mr Hu’s personnel file when she saw them sitting in a cabinet.
[204] For the following reasons, I prefer the evidence of Mr Hu concerning the written warnings, and reject the evidence on that topic of Mr Bian, Ms Ma, Ms Yu and Ms Kong. I find that each of the three written warnings are reconstructions made after the decision to dismiss.
[205] The primary reason for this finding is that the letter of dismissal makes reference only to verbal warnings, not written warnings:
“on numerous occasions you were provided with verbal warnings that you must improve your performance” (my emphasis).
[206] It is implausible that the employer, having made a decision to dismiss Mr Hu and then its owners having travelled to their solicitor’s office (Firm A) for the purpose of instructing on the dismissal (by having a letter of dismissal prepared) would only make reference to verbal warnings and entirely omit reference to written warnings, if they had existed. If a copy of the warnings had existed and been placed in Mr Hu’s personnel file in the restaurant (as Mr Bian and Ms Kong claimed), then the written warnings would have been at all times within the care and control of the employer.
[207] There are secondary reasons which support this finding (though I consider the primary reason alone to be of sufficient weight to make the finding):
• in the context of a small business with an informal human resource system and poor record keeping (as evidenced by the absence of payslips and makeshift time and wage records), the warnings have a flavour of unreality about them. They are all written in the same style and each expressly refers to a future consequence should there be a repeat performance. It is implausible that Mr Bian, self-declared to have been unfamiliar with the niceties of staff recruiting, employment regulation or termination would have been able to craft a warning in such terms on the run in the course of a day’s work and have the content reflect compliance with the Code;
• Mr Bian’s evidence about Mr Hu’s reaction to the written warnings was inconsistent. He said there was no push back or question by Mr Hu when warned but then agreed that Mr Hu spoke in his defence concerning the second warning. 65 He said that if Mr Hu had admitted to wrongdoing concerning the first warning he would not have given him a written warning66 but also said that he did not ask Mr Hu to sign the warnings because he (Mr Bian) always believed that Mr Hu would have an attitude of denial towards them.67 In circumstances where Mr Hu considered his employment important (indeed the basis for his working rights to be in Australia) it is unlikely (particularly once he had taken the step of exercising a workplace right to report his employer to the FWO and Border Force) that Mr Hu would meekly accept written warnings threatening to his job security without comment. Mr Bian’s evidence68 that in relation to the third warning Mr Hu told the owner not to worry about the fire risk “because the business had insurance” was unconvincing and implausible;
• Mr Bian’s evidence about when he gave the warnings to Mr Hu was imprecise. In relation to the first warning his evidence varied between the evening of 6 May 2020 and the following day. 69 In relation to the third warning he initially said that he gave it at the close of business on 3 October 201970 and that this was witnessed at his request by other employees. Later in evidence71 he said that in a telephone call the next day Mr Hu was told that the written warning had not yet been prepared but when it was written-up it would be sent to him;
• Ms Ma’s evidence of ‘knowing about’ the warnings but only once given to Mr Hu by her husband is general hearsay and self-serving. Being the co-owner in daily and direct communication with her husband about all restaurant matters it is implausible that Ms Ma would not have been aware in advance of the intended formal written warning, if they had been contemporaneously created, as claimed;
• Ms Ma’s further evidence that she forgot to remember to mention or give copies of the written warnings to her solicitors (Firm A) when first instructing on the dismissal and her further explanation that she did not do so because lawyers “charge fees and I did not want to talk too long” was very unconvincing; 72
• Ms Yu said in evidence that at no time during Mr Hu’s employment did Mr Bian or Ms Ma inform her that they had given a written warning to Mr Hu. 73 I accept this evidence. It was plausible. That being so, it is implausible that if the written warnings had in fact been given to Mr Hu that the owners would not have informed Ms Yu. Ms Yu was a close confidant,74 and was helping the owners with operational issues, including staffing (it was Ms Yu who was asked to belatedly write-up time and wage records); and
• Ms Kong’s evidence of when (not whether) she saw and filed the first two warnings is not reliable. She makes no reference at all to the warnings and her role in finding and filing them in her witness statement despite thirty-one paragraphs devoted to her interactions with Mr Hu and the owners. Her oral evidence was that on 27 September 2019 she left Australia for a trip to be married in China and returned on 20 October 2019. She said she saw a copy of the first two warnings sitting in a cabinet before her trip and filed them because her “boss” asked her to file important papers when she was not busy for “fear they could go missing”. Her evidence was that she saw the third warning on her return and filed it. Ms Kong’s evidence that she saw and filed the first two written warnings before her trip to China (not on her return) is unconvincing. Her recall as to the specifics of doing so wavered and was inexact. That her recall was not precise is not a criticism; the events (seeing and filing the warnings) occurred nearly a year ago. Given that Mr Bian said that he gave the second warning to Mr Hu at close of business on 26 September 2019, it is implausible that on her very last working day before a month holiday the restaurant manager had time to do casual filing of the written warnings. It is much more probable that Ms Kong saw copies of the three warnings in the cabinet upon her return (and after Mr Hu had been dismissed) and filed them then, and only then.
[208] I conclude that written warnings were not given to Mr Hu. I further find on the balance of probabilities that the three written warnings in exhibit A6 did not exist at the time the employer decided to dismiss (that is, prior to seeing Firm A). They are reconstructions of workplace events after the decision to dismiss was made that may or may not have occurred but for which no written warnings were given, contemporaneous or otherwise.
[209] Given this finding, I do not need to decide when the written warnings were created. It is possible they were created in the period between meetings with the different firms of solicitors (14 to 18 October 2019). It is clear they were not produced to Firm A – Ms Ma conceded as much (by her unimpressive explanations: that she forgot to take them and that lawyers charge too much for their time). Ms Yu’s evidence that she saw the written warnings at Firm B when the dismissal letter was signed 75 fits this narrative but is not proof they were ever given to Mr Hu. That Ms Yu may have seen a copy of the written warnings on 18 October 2019 is not evidence that they existed whilst Mr Hu was working in the restaurant, much less on the days of the alleged incidents they concern. That Ms Yu was not told about them by the owners whilst Mr Hu was working in the restaurant is much more telling about whether they existed at that time; not whether she saw them weeks or months later in a solicitor’s office.
[210] The Code does not compel written warnings. Written warnings are expressed as ‘preferable’. What is mandated is warnings. Having not found that Mr Hu was given written warnings, was Mr Hu given verbal warnings?
[211] I accept that Mr Bian, Ms Ma and Ms Kong occasionally spoke to Mr Hu in the course of a day’s shift about performance shortcomings (such as not being quick enough to get a dish to table or a customer complaining about undercooked or overcooked food, or informing him of generic on-line complaints). I also accept that Ms Yu witnessed some of these discussions.
[212] However, even taking into account the practical sphere of employment relationships in a small business, a warning within the meaning of the Code requires more than a general communication of concern. The circumstances require some basis on which it ought to have been reasonably apparent to Mr Hu (objectively considered) that the concern or concerns, taken in isolation or in the context of previous conduct, had a seriousness that placed his job security in question. I am not satisfied that the general discussions had that character.
[213] I do not find that Mr Hu was warned verbally or in writing that he risked being dismissed if there is no improvement in performance.
[214] This requirement of the Code was not complied with.
Opportunity to respond
[215] The Code relevantly provides:
“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.”
[216] Not having been warned, I conclude that Shanghai Garden did not provide Mr Hu an opportunity to respond. However, to the extent that I have found that Mr Hu was spoken to in the ordinary course of a shift about a shortcoming with a dish or his speed of food preparation, he was given opportunity by the employer to not repeat the error and to be attentive to timeliness in food preparation. Being a small business, and having qualifications as a cook, there was no need for Mr Hu to be provided formal training to meet the employer’s job expectations.
[217] The employer persevered with Mr Hu and provided time for any perceived shortcomings to be rectified.
[218] In spirit, but not in its express terms, this requirement of the Code was complied with.
Support person
[219] The Code relevantly provides:
“the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.”
[220] The Code does not mandate a support person be present in disciplinary meetings about performance but enables an employee to be assisted. Though the employer did not deny Mr Hu a support person, it did not conduct any formal disciplinary meetings with him.
[221] Though not breached, this provision of the Code does not arise.
Evidence of compliance with Code
[222] The Code relevantly provides:
“A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal…”
[223] The employer has endeavoured to provide evidence of compliance with the Code by producing the three written warnings. I have found that each of these warnings did not exist at the time of dismissal and are reconstructions made after the decision to dismiss.
[224] The remaining evidence of alleged unsatisfactory performance and verbal warning was given orally. I have made findings on those matters. I have found that the evidence of the employer, to the limited extent I accept it, falls short of establishing performance deficiencies constituting a valid reason for dismissal or verbal discussion that could be characterised as a warning.
[225] This requirement of the Code is not made out.
Conclusion on Code compliance
[226] Shanghai Garden has not established compliance with mandatory provisions of the Small Business Fair Dismissal Code.
[227] In those circumstances, it has not “complied with” the Code within the meaning of section 388 of the FW Act. As the dismissal was not consistent with the Code, the dismissal is capable of being an unfair dismissal if “harsh, unjust or unreasonable”.
[228] I now consider whether Mr Hu’s dismissal was “harsh, unjust or unreasonable” taking into account the considerations in section 387 of the FW Act.
[229] Section 387 of the FW 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.”
Valid Reason (section 387(a))
[230] Having considered the issues of alleged unsatisfactory performance, English-language inadequacy and the secret recording I have found that for the purposes of the ‘Other Dismissal’ section of the Small Business Code, there was no valid reason for dismissal.
[231] No different or other considerations arise with respect to section 387(a).
[232] The conclusion that there was no valid reason for dismissal weighs in favour of a finding of unfair dismissal.
Notification of the reason for dismissal (section 387(b))
[233] Mr Hu was notified of the reason for dismissal by letter dated 18 October 2019.
[234] The stated reason was alleged continued poor performance.
[235] This conclusion weighs marginally, but only marginally, against a finding of unfair dismissal.
Opportunity to respond (section 387(c))
[236] I have found that Mr Hu was given an opportunity to rectify general areas of performance shortcomings that had been raised by the employer from time to time during the course of his employment.
[237] To the extent that the English language test fraud was a consideration in the employer’s decision, Mr Hu was spoken to in April 2019 by Mr Bian and Ms Ma about his admitted knowledge of the fraud, and had an opportunity to respond to that issue.
[238] Having not accepted the employer’s evidence about the warnings, I conclude that Mr Hu was not made aware that he was to be dismissed or given an opportunity to respond to the totality of the allegations in the dismissal letter in advance of the decision to dismiss.
[239] Overall, this factor weighs marginally in favour of a finding of unfair dismissal.
Opportunity for support person (section 387(d))
[240] I have found that Mr Hu was not unreasonably refused a support person.
[241] This is a neutral consideration.
Warnings concerning performance (section 387(e))
[242] I have found that Mr Hu was not given warnings (verbally or in writing) nor given an opportunity to respond prior to the decision to dismiss.
[243] To the extent that the English language test fraud was a consideration in the employer’s decision, no employee requires a warning against fraud. Nor does an employee require a warning that they have acted in breach of their employment obligations by not disclosing a known fraud to their employer.
[244] The absence of warnings concerning alleged unsatisfactory performance, which was the stated reason for dismissal, weigh somewhat in favour of a finding of unfair dismissal.
Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))
[245] Shanghai Garden is a small business as defined by the FW Act.
[246] For aforesaid reasons, it has not been able to make out compliance with the Small Business Fair Dismissal Code.
[247] Nonetheless, as a private small business it has significant limitations in capacity to readily navigate employment and workplace issues. Its co-owner Ms Ma is aided by a friend Ms Yu.
[248] These limitations are compounded by the cultural background of the co-owners and their English language limitations.
[249] However, they operate an established business and as such have had more than a decade to learn and experience the highs and lows of being an employer in the Australian context. Its small size and capacity constraints do not adequately or fully explain the employer’s failure to provide a sound and defensible reason for dismissal or provide a minimum level of procedural fairness to Mr Hu.
[250] This consideration weighs only slightly against a finding of unfair dismissal.
Other matters (section 387(h))
[251] Mr Hu and Shanghai Garden respectively raise other matters. These are:
That Mr Hu misrepresented his skills (raised by the employer)
[252] To the extent necessary, I have found that it is not material whether Mr Hu held himself out as a chef or as a cook.
[253] The evidence of Mr Irwin was that he was satisfied on the written material and a lengthy in-person interview with Mr Hu that Mr Hu held the skills and qualifications submitted in support of his visa application.
[254] I accept this evidence and make a finding to that effect.
That Mr Hu may have fraudulently sat the skills assessment (raised by the employer)
[255] A further perplexing element of this matter is Mr Irwin’s evidence that his in-person interview conducted with Mr Hu in China on 28 March 2017 was not conducted with an interpreter present and was conducted solely in English.
[256] On the face of it, my finding that Mr Hu, at that time, had only limited command of English does not sit comfortably with a finding that he spent the best part of two hours in conversation with Mr Irwin. It raises some doubt as to whether it was Mr Hu who attended his skills assessment.
[257] However, for the following reasons I do not make a finding to that effect:
• Mr Irwin conducted a deliberative and formal identity authentication at the start of the meeting. He did so by sighting originals of passports and ID cards, comparing them to the person he was interviewing, and then completing an Applicant Identity Integrity Report. 76 That report had Mr Irwin declare that “the identity of the Applicant is confirmed”. The report is accompanied by an identity photograph matching the person on Mr Hu’s passport; and
• Mr Irwin recorded in his handwritten notes of the interview that the person he was interviewing was “struggling with English but very keen to practice and improve it”. 77
[258] I do not conclude to the requisite standard of proof that Mr Hu fraudulently passed the skills assessment as a pre-condition to his grant of a visa.
That Mr Hu was required to pay for his visas, contrary to Australian law (raised by Mr Hu)
[259] Mr Hu’s oral evidence was that he was required by the employer to pay $70,000 for his 457 visa, and then required to pay a further $10,000 as a down payment for a permanent visa, and then subsequently refused a demand to pay $35,000 to progress the permanent visa application.
[260] Mr Hu’s evidence was not clear as to whether the $70,000 paid for the 457 visa was paid directly to the employer or to the Migration Agent. That both Mr Hu and the employer say that there was no communication between Mr Hu and the employer prior to him arriving in Australia, and given that Mr Hu says the $70,000 was paid before he arrived in Australia, it is not safe to make a finding that the monies were either demanded by the employer or paid to the employer or paid to the Agent at the employer’s insistence.
[261] There is however evidence beyond Mr Hu’s assertion that the $10,000 down payment for the permanent visa was demanded by the employer and that on 22 January 2019 he paid this sum in cash to the employer. Mr Hu produced a copy of a handwritten record said to have been contemporaneously written by his fourteen year old daughter which records the serial numbers of fifty-eight $100 bills and eighty-four $50 dollar bills said to constitute the cash payment that Mr Hu says he then counted out on the restaurant kitchen table in the presence of the owners. 78
[262] Mr Hu ‘s daughter did not give evidence about what she wrote, and why.
[263] This issue is part of the tapestry that formed Mr Hu’s case but not a matter of considered or detailed evidence before me.
[264] An associated issue of evidentiary contest is the assertion by the employer that it was Mr Hu, not the employer, who engaged the Migration Agent. The employer says that in those circumstances it was Mr Hu, not the employer, who paid the Migration Agent.
[265] The state of the evidence on this issue is also unsatisfactory. There is some evidence that the Agent and the employer were in communication when making the employer’s 457 visa sponsorship application. It is implausible that the employer would attend the offices of the Agent to sign an employment contract prepared by the Agent for Mr Hu without having sought any services from the Agent in that regard. It is also implausible that the employer would have secured a foreign worker as an employee in their business on a 457 visa program without contracting for the provision of professional services to secure an employee and have the service provider screen applicants for Australian immigration requirements.
[266] There is some evidence from Mr Hu, 79 which I accept, that the Agent used Mr Hu’s personal credit card detail to pay the employer’s visa sponsorship application fee ($333.23) and also the application fee for Mr Hu’s 457 visa application ($1,098.58).
[267] Notwithstanding my reservations about accepting the employer’s evidence that it did not engage the Agent, it does not follow that Mr Hu paid the Agent a fee that ought to have been paid by the employer.
[268] Given the seriousness of these allegations (that unlawful demands were made by a sponsoring employer to fund the visa of an overseas employee) the standard of proof required to make a finding to this effect is the Briginshaw standard. Whilst there is some direct evidence and some hearsay evidence to support such a finding, it is not to the requisite standard. Gaps in evidence do not permit the direct finding sought by Mr Hu or a finding by inference. The matter before me did not focus sufficiently on this question to enable these dots to be joined, to the requisite degree of satisfaction.
[269] That being so, it is not open to conclude that the dismissal was harsh on this ground.
That Mr Hu was subject to unlawful wage exploitation (raised by Mr Hu)
[270] Amongst the most serious of the allegations advanced by Mr Hu is the allegation that, as a vulnerable foreign worker on a 457 visa, he was the victim of systematic and prolonged wage exploitation at the hand of the employer.
[271] The allegations could not be more serious from a workplace compliance perspective.
[272] Mr Hu’s assertion is that from day one of commencing employment, the employer laid down the ground rules: whilst the official contract approved by the immigration authorities as part of the 457 visa sponsorship required payment of a wage of $54,000 per annum ($845 nett per week) in actual fact Mr Hu was (after being paid this amount by EFT) required each week to remit (in cash) $540 of his earnings back to the employer (raised to $640 in May 2019).
[273] Mr Hu further alleges that for a period of three months (June to September 2019) he was not paid at all; and that when EFT payment of wages resumed (in September 2019) that to avoid detection of the amount remitted, he was required to pay the remitted amount via a China-based intermediary friend of the employer.
[274] Mr Hu alleges that, as a vulnerable worker at risk of being sent back to China if not working in the business as per his visa conditions, he complied with these demands until such time as the employer increased the quantum of its demand and only then did he complain to the authorities – with the result that the employer paid him no wages for a period and subsequently put in place an arrangement to avoid detection.
[275] The allegations are flatly denied by the employer.
[276] Aside from Mr Hu’s oral evidence and my general view of the lack of credit in much of the evidence of the owners, the employer’s denial does not make the allegations true. There is some corroborative evidence to support these allegations.
• Mr Hu’s time and wage records are inaccurate;
• the employer did not provide payslips (claiming it did not do so to reduce business costs and employees could get that detail from the employer’s accountant if they wished) 80;
• Mr Hu produced into evidence some of his bank statements which show some evidence of a regular withdrawal of $540 (and then $640) in cash on a weekly basis (but not every week);
• those bank statements show no EFT wage payment for a three month period;
• Mr Hu produced the bank account details of an account in China that was handwritten by Ms Ma on the reverse of a restaurant invoice; and
• the level of restaurant turnover, at least for certain periods, gives rise to reasonable questions about whether employing Mr Hu on an annual wage of $54,000 was ever financially viable or a payment the employer intended to make in full.
[277] In and of themselves the bank statements are not evidence that monies were demanded by the employer nor that cash withdrawn was paid to the employer; however, they provide grounds for an inference to be drawn and some corroboration of Mr Hu’s oral evidence should I find it creditworthy on these issues. I reject entirely the employer’s evidence that payments made by Mr Hu to the employer directly or through the intermediary were in payment of a loan and separate from its obligation to pay wages. There is no evidence before me that corroborates the existence of a loan by Shanghai Garden or its owners to Mr Hu.
[278] However, the difficulty I have in finding Mr Hu creditworthy to the requisite standard on these issues is twofold: firstly, that I have found him not to be creditworthy on his evidence that he (and not an imposter) sat his English language test; and secondly, that aspects (but not all) of his evidence on the wage exploitation issue is implausible. Whilst it is plausible that the employer made a demand (and he adhered to the demand) to remit $540 (and then $640) in cash each week for the first eleven months of his employment, his assertion that he was paid no wage for the next three months does not ring true.
[279] On the issue of Mr Hu allegedly not being paid at all for a thirteen week period, the employer’s evidence that it was Mr Hu who requested cash payments and then sought EFT payments into a different account in September 2019 is somewhat supported by the fact that Mr Hu had wages paid into a Commonwealth Bank account until June 2019 then but a different account (Bank SA, which had been opened in August 2018) when EFT payments resumed in September 2019. It was Mr Hu, not the employer, who had control over bank accounts in his name. Further, Ms Yu’s evidence was that she witnessed the cash payments being made and counted out in her presence. Whilst I need not make a finding on this issue, Ms Yu’s evidence that she considered the restaurant paying an employee in cash to be unusual and told this to Ms Ma is plausible. Further, though logic and sense is not necessarily a reliable basis for drawing inferences where exploitative conduct is alleged, it makes little sense that an employer at risk of a workplace investigation for demanding part remission of wages would respond by refusing to pay wages entirely or that an employee not getting paid and who has already reported the employer to the workplace authorities would keep turning up to work for no pay for a prolonged period.
[280] Whilst it is plausible that Mr Hu was the victim of wage exploitation (either by forced cash paybacks or a period of non-payment, or both), given the seriousness of the allegations, the standard of proof required and the fact that the evidence in these proceedings focussed primarily on the dismissal and not the wage exploitation issue, I do not make a formal finding on these questions. These are matters for the relevant workplace and immigration authorities and ultimately, if proceedings are brought, the courts.
[281] Being unable to make a finding to this effect, it is not open to conclude that the dismissal was harsh on this ground.
Conclusion on harsh, unjust or unreasonable
[282] Although I have found that Mr Hu engaged in conduct repugnant to the employment relationship in advance of commencing work at Shanghai Garden (by failing to tell the employer that an imposter sat his English language test), and although a limited number of concerns with his cooking were occasionally drawn to his attention as part of routine conversation over a sixteen month period, for the aforementioned reasons there was no valid reason for dismissal.
[283] Nor does the evidence enable me to conclude, in the context of this matter, that post dismissal information coming to the employer’s attention (the secret recording(s) and proof of English language fraud) was a valid reason for dismissal.
[284] I have also found that the written warnings produced in these proceedings were reconstructions made after the decision to dismiss and that Mr Hu was not given any warning (written or oral) about his work performance or the risk any shortcomings presented to his continuing employment.
[285] I have also found that whilst the employer (upon learning of the admission of English language fraud) told Mr Hu that fraud was a serious issue, the employer did not at that time consider it material to the employment relationship. It continued to employ him for another six months.
[286] Considering whether a dismissal is harsh, unjust or unreasonable involves a weighing exercise. 81 It is multifactorial.82 The absence of a valid reason is not determinative but is a significant factor weighing in favour of a finding of unfairness.83 The absence of warnings not only preclude a finding of compliance with the Small Business Fair Dismissal Code but also point to procedural unfairness. I have not found other grounds of alleged harshness to have been made out.
[287] I take into account the small and relatively informal nature of the employer’s restaurant business and its lack of specialist human resource capacity. These limitations preclude some aspects of procedural formality but do not explain nor set aside the overall need for fairness, particularly having regard to a valid reason. Shanghai Garden is not a five star restaurant and Mr Hu’s performance could not reasonably have been expected to have been more than that of a competent cook.
[288] Whilst ordinarily fraud, let alone admitted fraud, would weigh powerfully against a finding of unfair dismissal, the employer’s failure to act on its knowledge of the admission for six months and even then dismiss on notice and base their dismissal largely on performance factors and refer only in passing to the fraud significantly reduces the weight to be afforded the fraud in the unique circumstances of this matter and the context of this employment relationship.
[289] Overall, and although neither party comes out of this matter with credit intact and notwithstanding Mr Hu’s performance being found wanting in some respects, I conclude that his dismissal did not comply with the Small Business Fair Dismissal Code and was objectively harsh, unjust or unreasonable.
[290] I now turn to the question of remedy.
[291] Remedies available to the Commission under section 390 of the FW Act are reinstatement (in the same or other position) or (but only if reinstatement is inappropriate) compensation (within statutory limits).
[292] Whether to order a remedy is a discretionary matter.
[293] Despite my misgivings about conduct and credit, I consider it appropriate to order a remedy but only on the terms outlined below.
[294] I conclude that reinstatement is inappropriate.
[295] Mr Hu is not seeking reinstatement. He acknowledges that his relationship with Shanghai Gardens is fundamentally ruined. This too was the employer’s submission, albeit for different reasons.
[296] There is no basis upon which Mr Hu and the owners of Shanghai Garden could restore an effective employment relationship. Knowing now what each believes they know about the other, there is no scope for the necessary element of trust and confidence to be restored. Aside from a wholly toxic relationship between Mr Hu and the owners, it is apparent from the evidence of Ms Kong that she, as a former 457 visa employee and now restaurant manager, views her interactions with Mr Hu with suspicion and circumspect.
[297] I turn to the issue of compensation. Section 392 of the FW Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high-income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[298] I now consider each of the criteria in section 392 of the FW Act.
Viability: section 392(2)(a)
[299] This is a small business operating a small suburban restaurant. There is evidence before me to suggest that turnover in the business is patchy and, in any event, not high. A substantial order of monetary compensation is likely to materially impact cash flow. However, I have no evidence that a compensation order would, in and of itself, affect business viability. In the quantum of the order I will make, I do not conclude that it would have a material adverse effect on business viability.
Length of service: section (section 392(2)(b))
[300] Although the employer agreed to employ Mr Hu as far back as December 2016, he only worked in the business for sixteen months from June 2018 until dismissed.
Remuneration that would have been received: section 392(2)(c)
[301] Mr Hu commenced employment sight unseen. He neither knew the business nor had liaised with the owners before travelling to Australia and turning up to work at an address he had been given.
[302] His employment contract was expressed to be “fixed for four years” from the date of approval of his 457 visa. That date was 4 April 2018, as approved by the Australian authorities.
[303] In these circumstances, barring unforeseen events such as failure of the business or a dismissal on proper grounds, his employment as a cook would have continued at Shanghai Garden until April 2022. That is a period of two and a half further years.
[304] He received two weeks in lieu of notice.
[305] However, it is readily apparent from the evidence that in the final months of his employment Mr Hu had lost the confidence of the employer and other key staff. Whilst some of that loss of confidence was not reasonably based, some was (the performance deficiencies and his admission of the English language fraud).
[306] Had the employer applied a proper and objective approach to the performance deficiencies, a pre-dismissal process of oral or written warning would have been warranted. In a small business such as Shanghai Garden that process would not have required an excessive period of time or a high level of formality. Nonetheless, it would have needed to have been objective and detached from Mr Hu’s right to have authorities investigate his serious allegations of exploitation.
[307] I consider that in light of the employer’s progressive loss of confidence in his work as a cook and that customer complaints and concerns by front of house employees were not abating, Mr Hu was not likely to have (for these objective reasons) remained in employment for more than two months (eight weeks). In this period a reasonable disciplinary process with a further opportunity to remedy the evident performance defects would have been sufficient to ground a fair dismissal and one compliant with the Small Business Fair Dismissal Code.
[308] For the purposes of section 392(2)(b) I will estimate the remuneration that would have been received to have been eight weeks.
Mitigating efforts: section 392(2)(d)
[309] Mr Hu has not held continuing working rights in Australia since his dismissal. His 457 visa was specific to the employer sponsorship by the Shanghai Garden restaurant. He has not secured an alternative working visa, temporary or permanent. He currently remains in Australia on a temporary bridging visa. 84 In these circumstances Mr Hu has been unable to mitigate his losses. I make no deduction from the compensation order on this account.
Remuneration earned: section 392(2)(e)
[310] Mr Hu has not earned income since his dismissal.
Income likely to be earned: section 392(2)(f)
[311] The amount of income likely to be earned by Mr Hu involves a considerable degree of speculation; both as to whether firstly, he remains in Australia with working rights and secondly, whether he secures employment based upon a relevant visa conferring working rights.
[312] If Mr Hu does not hold lawful visa status (temporary or permanent) then he will have no working rights and accordingly not be likely to earn any income.
[313] If Mr Hu is permitted by immigration authorities to continue working and does secure employment it is likely to be relatively low skilled work unless he secures employment in his trade qualification as a cook.
Other matters: section 392(2)(g)
[314] I take into account that the business of Shanghai Garden is a small business of relatively low turnover operating in a competitive hospitality industry (and now a market impacted by the economic uncertainty generated by COVID-19).
[315] I also take into account the fact that Mr Bian has health concerns that led him to want to take a lesser role in the operation of the business and that the owners themselves have a right to decide whether their business continues to operate.
[316] I also take into account the uncertainty concerning Mr Hu’s visa status and his working rights in Australia.
[317] I also take into account the contingency that Mr Hu, as a citizen of China, may elect at any given point in time to leave Australia and permanently return to China.
[318] However, as the period of the compensation I will order does not extend beyond the hearing date of this matter, it is not appropriate to discount the compensation order on account of these prospective contingencies.
Misconduct: section 392(3)
[319] Mr Hu’s failure to disclose knowledge of dishonesty committed in his name against the employer’s visa sponsorship was misconduct at the serious end of the scale.
[320] This conduct was capable of forming a valid reason for summary dismissal had the employer taken that view when first informed of this conduct by way of admission in April 2019.
[321] Now, post dismissal, the evidence that has been produced by IDP Education proves that misconduct.
[322] It is not open to Mr Hu to explain, mitigate or set-off the seriousness of this misconduct by reference to his equally serious allegations of exploitative conduct levelled against the employer (including the employer’s admission that its time and wage records are not accurate). Seriousness of employee misconduct is neither enhanced nor diminished by subsequent alleged acts by an employer even if Mr Hu believed that the employer weaponised his admission of misconduct by engaging in retaliatory behaviour.
[323] At the very least, the misconduct led the employer to wrongly believe that the cook they were employing had English language capability. Whilst I have found that this was not of material importance to the employer at the time it engaged Mr Hu nor throughout his employment, it was nonetheless misleading.
[324] That misconduct could have grounded a reasonable belief on the part of this small business employer that Mr Hu had engaged in serious misconduct. In such circumstances summary dismissal would have been compliant with the Code.
[325] I make provision for these matters and reduce the compensation order by four weeks on account of Mr Hu failing to tell the employer that an imposter had sat his English language test.
[326] I make no discount on account of the secret recording(s) as I have not found sufficient evidence to conclude that the recording or recordings were misconduct.
Shock, Distress: section 392(4)
[327] Compensation allowable by the FW Act does not include a component for hurt feelings. The compensation order will make no provision for such matters.
Compensation cap: section 392(5)
[328] The amount of compensation I will order does not exceed the six-month compensation cap.
Conclusion on compensation
[329] An order by way of remedy is an integral part of determining an unfair dismissal application. As with the decision on merit (unfairness) it needs to reflect the statutory principle of a ‘fair go all round’.
[330] A decision to order a remedy is discretionary. The quantum of any compensation order must take into account the circumstances set out in section 392(2) and apply those considerations as a whole and consistent with the fair go all round principle.
[331] Whilst an orderly process of quantification is to be conducted in accordance with established authority, 85 the quantum (if any) ordered ultimately needs to be a sum that reflects the overall exercise of discretionary considerations.
[332] In this matter, the sum ordered must not only take into account the relevant section 392 considerations but also be just having regard to the overall findings including the many unique features which arise. These include Mr Hu’s contributory misconduct and that the employer had grounds to dismiss summarily in April 2019 for serious misconduct had it chosen to do so.
[333] I have considered whether a nil compensation order is appropriate in this matter. Whilst there is some ground for doing so having regard to my findings of credit and my finding of the admitted fraud, the discounts I apply to quantum appropriately and adequately reflect these discretionary considerations. Having regard to section 392 factors and overall discretionary considerations I conclude that Mr Hu should be compensated for eight weeks of prospective employment less deductions for contributory misconduct (four weeks) and monies received in lieu of notice (two weeks).
[334] The compensation order is accordingly two week’s pay (plus superannuation on that amount).
[335] I consider this sum to be consistent with the application of section 392 considerations and just having regard to discretionary considerations.
[336] I conclude that Mr Xun Hu, a person protected from unfair dismissal, was dismissed by Rong Wei Pty Ltd as trustee for the Bian Family Trust trading as Shanghai Garden Chinese Restaurant on 18 October 2019 and that his dismissal was not compliant with the Small Business Fair Dismissal Code.
[337] I conclude that Mr Hu’s dismissal was harsh, unjust or unreasonable.
[338] I conclude that reinstatement is inappropriate.
[339] I conclude that an order of compensation is appropriate.
[340] I conclude that the amount of compensation payable by Shanghai Garden under sections 390 and 392 of the FW Act be $2,076.92 (to be taxed as required by law) plus an amount of $197.31 to be paid into the superannuation fund applicable to Mr Hu’s employment. I will order these sums be paid within fourteen (14) days of the date of this order.
[341]
In conjunction with the publication of these reasons, I issue an order 86 in these terms.
DEPUTY PRESIDENT
Appearances:
Ms M Pangallo, of counsel, for the Applicant
Mr D Fabbro, of counsel, for the Respondent
Hearing details:
2020,
Adelaide,
21, 22, 30, 31 July, and 10, 12, 28 August.
Printed by authority of the Commonwealth Government Printer
<PR723166>
1 On 17 July 2020, by consent, I granted Mr Hu permission to amend his application to amend the named Respondent to reflect the corporate description of his former employer
2 Whether Mr Hu was employed as a “cook” or a “chef” was at issue in the proceedings
3 Directions Hampton C 21 January 2020; Further Directions Hampton C 10 March 2020
4 Decision Hampton C [2020] FWC 1308 23 March 2020
5 Decision of Hampton C delivered orally at Directions hearing on 21 January 2020 as confirmed in directions of same date
6 Proceedings scheduled for 23 July 2020 were aborted when, immediately prior to hearing, it became apparent that the contracted interpreter for the day had a conflict of interest based on past familiarity with the respondent business
7 Directions Hampton C 21 January 2020
8 At the commencement of proceedings 21 July 2020
9 Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16]
10 Briginshaw v Briginshaw (1938) 60 CLR 336
11 Whether the employer sought a cook or a chef is in dispute
A11 and R4 YB-1
A14 page 4
A1 SXH-3; and R4 YB-3
A1 SXH-3; R4 YB-3
Signed document ‘Employment Contract’ under the letterhead of The Trustee for the Bian Family Trust as produced by Department of Home Affairs
Occupation code: 351411
Department of Home Affairs Notice of Decision 4 April 2018
Until April 2020 when asked about his English language test (allegedly leading to an admission of fraud) and May 2019 (when allegedly issued the first of three written warning notices). Both the alleged admission and alleged warning notices are disputed evidence
• 21
Audio 22 July 2020 12.42; A1 attachment 1 to SXH-9
A1 SXH-7
• 23
Audio 10 August 2020 16.14 – 16.20
A1 SXH-10
Sections 385(c) and 388(2)(b) FW Act
Section 388(2)(a) and section 23 FW Act
Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
A1 SXH-3
A1 SXH-10
A13
A14
R3 page 1
Audio 10 August 2020 10.21 and 10.23
Audio 12 August 2020 12.45
Audio 31 July 2020 11.35
Audio 12 August 2020 15.44
Audio 12 August 2020 15.43
Audio 21 July 2020 12.55 – 12.58; 22 July 2020 12.01
Audio 12 August 2020 10.24 and 12.48
Audio 31 July 2020 15.35
Audio Ms Yu 12 August 2020 14.42; Ms Ma 12 August 2020 11.16
Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 at 62 [(2000) 98 IR 137]
43
Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 per Starke J
A1 SXH-10 page 2
Audio 10 August 2020 14.28
A3
Audio 31 July 2020 10.43
R3 Applicant Identity Integrity Report page 2
Audio 21 July 2020 15.08
R1 Candidate Test History Session 03/06/2017
R2
A15
A9
Audio 12 August 2020 10.49
Green v Toll Holdings Ltd [2016] FWC 2790; Pereira v Toll Energy Logistics Pty Ltd [2014] FWC 3398; Tham v Hertz Australia Pty Ltd [2018] FWC 3967; Lewis v SGA (1994) Pty Ltd [2019] FWC 8552
B, C and D v Australian Postal Corporation [2013] FWCFB 6191
Audio 30 July 2020 11.58
Audio 30 July 2020 16.39
Audio 22 July 2020 11.28
17 July 2020
Schwenke v Silcar Pty Ltd [2013] FWCFB 9842 at [33]; Gadzikwa v Department of Human Services [2018] FWC 4878 at [83]; Zhang v Royal Automobile Association of South Australia Incorporated [2019] FWC 8090 at [85]; Lever v Australian Nuclear Science and technology Organisation [2009] AIRC 784
Gadzikwa v Department of Human Services [2018] FWC 4878 at [83]; see also McAuley v Northern Territory Government [2018] FWCFB 2639 at [47] – [50]
“the use of the device is reasonably necessary for the protection of the lawful interests of that person”
R4 YB-4; A6
• 65
Audio 31 July 2020 15.35
Audio 31 July 2020 15.36
Audio 31 July 2020 14.50
Audio 30 July 2020 11.20
• 69
Audio 30 July 2020 12.05
Audio 30 July 2020 11.10
Audio 30 July 2020 11.26
• 72
Audio 10 August 2020 14.18
• 73
Audio 12 August 12.59
Described by Ms Kong as a “real friend” of the owners: audio 28 August 2020 11.08
Audio 12 August 2020 12.58
• 76
Contained within exhibit R3
• 77
‘Summary of Evidence’ contained in R3
A1 SXH-12
A1 SXH-2; SXH-14; SXH-15
• 80
Audio 30 July 2020 12.18
B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [58] – [59]
Jones v Brite Services [2013] FWC 4280 at [24]
Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 7498 at 20
Audio 22 July 2020 12.19
Ellawala v Australian Postal Corporation [2000] AIRC 1151, Print S5109; Sprigg v Paul’s Licensed Festival Supermarket [1998] AIRC 989, Print R0235
PR 723168