Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - small business fair dismissal code - Respondent did not participate in proceedings - application determined ex parte - dismissal unfair - compensation awarded.

• [1] On 10 March 2025, Mr Jian Zhang (Mr Zhang / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with WLMM Food Pty Ltd (the Respondent).

• [2] It appears from the case file the Commission had initial difficulties obtaining a response to the application from the Respondent. However, on 1 April 2025 the Respondent sent an email to the Commission providing a contact for Mr Guan and a mobile phone number. According to Commission records the following day, a staff member of the Commission spoke by telephone to Mr Yunpeng Guan who confirmed he was the owner of the Respondent, and Mr Guan provided an email address for the service of documents.

• [3] On 3 April 2025, the Respondent filed a Form F3 and raised a jurisdictional objection that it had complied with the Small Business Fair Dismissal Code. It appears a conciliation conference proceeded on 4 April 2025, and the matter did not settle.

• [4] The matter was allocated to me, and a notice of listing was sent to the parties for a directions hearing by telephone on 23 April 2025. The Respondent did not respond to attempts to contact it before or at the time of the directions hearing. An email was sent on 23 April 2025 to the Respondent seeking an explanation for the non-attendance. No response was received.

• [5] The matter was listed for hearing on 10 July 2025. Directions were issued for the filing of submissions and the Applicant filed further material. The Respondent failed to file any material in accordance with the directions. On 14 May 2025, a telephone call was made to the Respondent. The file note states as follows:

"Call to R to follow up submissions - spoke to R for 8 minutes. Explained he had missed the directions listing, and directions had now been issued for submissions. I confirmed the email on file is correct (is his wife's email address) and he seemed to indicate he had received the directions/hearing NOL for 11 July hearing. I confirmed I would reforward it to him, and asked him to respond by reply email confirming he received the document, and then to submit submissions as soon as possible. The R indicated he thought the matter was finished, as he had been told this by someone over the phone from Sydney (? language difficulties). I confirmed with him a second and third time what the next steps would be and that I'd resend the directions and would wait for submissions from him"

• [6] A further file note of 19 May 2025 records an email received from the Respondent confirming that the directions had been received.

• [7] A further email was sent from the Commission to the parties on 4 July 2025, following up on material not filed. A text message was also sent to the Respondent. The Applicant responded that he did not file any reply material as the Respondent had not filed any material for him to reply to. The Respondent did not respond at all.

• [8] On 7 July 2025 an email was sent to the parties confirming that the Hearing would proceed on 10 July 2025, even if the Respondent chose not to engage with the process. On the same date, a Digital Court Book prepared by the Commission was sent to the parties. An email was also sent to the parties confirming an interpreter had been booked for the Hearing.

• [9] The Applicant appeared on his own behalf at the hearing. The Respondent did not attend the hearing. I concluded to proceed to hear the matter in the absence of the Respondent as it was sufficiently clear to me that the Respondent was aware of the proceedings and decided not to participate.

• [10] The Applicant provided a witness statement dated 7 May 2025, and the Respondent did not submit any material.

• [11] The Applicant submitted that he commenced employment on 14 January 2019 and worked continuously at Benowa Highland Court Chinese Restaurant until 22 February 2025, a total period of six years. During this time, the business underwent company name and ABN changes, including a sale to the Respondent in February 2023. However, his work duties, location, and hours remained unchanged. The Applicant submitted payslips and bank statements to support this.

• [12] In its Form F3, the Respondent submitted that the Applicant had started work with the business on 11 June 2024.

• [13] In its Form F3, the Respondent submitted that the Applicant was notified of his dismissal on 8 February 2025, and it took effect on 22 February 2025.

• [14] On 11 February 2025, the Applicant said he received a letter from the Australian Taxation Office (ATO) stating there was a discrepancy between his reported wages and what his employer had declared. He said after receiving the ATO letter, he reviewed his own records and identified that he had been underpaid between July 2023 and July 2024. His evidence was his standard hours were 15 hours per week, and the minimum wage at the time was $23.23 per hour, which means he should have received $348.45 per week

• [15] On the same day, the Applicant said he raised concerns about being underpaid below the minimum wage verbally with the Respondent.

• [16] On 22 February 2025, the Applicant said after he finished work, the Respondent verbally told him not to come back to work. He said he was dismissed on the spot, without any prior warning or written notice.

• [17] The Applicant said the Respondent initially claimed it was due to "economic reasons", and later mentioned "misconduct" verbally, but no evidence or documentation was ever provided.

• [18] The Applicant submitted that the timing of the dismissal could indicate a possible retaliatory motive. He said this dismissal was abrupt and without due process.

• [19] On 24 February 2025, the Applicant said he went to the workplace to ask for The Notice of Termination and three weeks' payments for failure to give him three weeks' notice time in advance and a Separation Certificate. He said he found that the Respondent had already hired another person to replace him. His evidence was the Respondent refused to provide a termination letter or a Separation Certificate and refused to pay three weeks' payments of notice and his remaining leave entitlements.

• [20] The Respondent submitted a Form F3 and raised a jurisdictional objection that it was a small business, and the dismissal was in line with the Small Business Fair Dismissal Code. As the Respondent did not participate in the proceedings there is no evidence to support the jurisdictional objection raised and on the evidence before me, I am not satisfied that the Respondent complied with the Small Business Fair Dismissal Code.

• [21] As the jurisdictional objection has not been made out, it is necessary to proceed to determine whether the dismissal was unfair. Section 387 of the Act sets out the considerations when considering if a dismissal was harsh, unjust or unreasonable:

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."

• [22] In its Form F3, the Respondent stated the reason for the dismissal was that the Applicant verbally abused other employees during work hours, went on strike while on duty which disrupted business operations, and stole ingredients from the restaurant, which violated company policies and trust. The Respondent submitted that any disciplinary actions or termination were justified based on these behaviours.

• [23] The Applicant submitted that he was dismissed without any written notice, written warning, or formal meeting. The Respondent provided the reason as "economic issues" then later "misconduct" without further information.

• [24] The Applicant adopted his evidence at the Hearing, and it is the only evidence before me. I accept that evidence and on that basis accept that on 22 February 2025, after finishing work, the Applicant was told not to come back to work, and was dismissed on the spot, without any prior warning or written notice. Based on the evidence, the Respondent did not have a valid reason for termination.

• [25] The Respondent did not file any submissions and based on the Applicant's evidence the Applicant was not given the reasons prior to being dismissed.

• [26] The Respondent did not file any submissions and based on the Applicant's evidence the Applicant was not given an opportunity to respond to any reasons for the dismissal.

• [27] No meeting took place, nor was a support person asked for. Therefore, there was no refusal of a support person and this is a neutral matter.

Size of enterprise and availability of human resource specialists

• [28] The Respondent in it's Form F3 noted that it had only 3 employees.

• [29] The only evidence before me is that of the Applicant's, and that evidence is that the Applicant was dismissed without warning and not long after having raised a concern that he had been underpaid. This leads to a clear inference that his dismissal was related to his having raised the issue of alleged underpayment.

• [30] I have weighed each of the matters I am required to consider under s.387 of the Act. I am satisfied that the Respondent did not have a valid reason and the dismissal was also procedurally unfair. I have concluded that the dismissal was harsh, unjust and unreasonable and therefore unfair.

• [31] The Applicant has not sought an order for reinstatement, nor would it be practical or appropriate for such an order to be made in all of the circumstances, and on that basis I do not intend to make such an order. The alternative remedy is an order for the payment of 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.

(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.

(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.

(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.

(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:

(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."

• [33] It is said by the Applicant, and in the Respondent's Form F3, that the Applicant's weekly earnings were $361.50 based on an hourly rate of $24.10 multiplied by 15 which is the number of hours a week the Applicant said he had always worked. The dismissal occurred on 22 February 2025. It is now 11 July 2025 which is 20 weeks since the termination of employment.

• [34] The Applicant's evidence was that but for the dismissal he saw no reason why he would not have continued in employment with the Respondent for an extended period. The evidence is he had been working at the Benowa Highland Court Restaurant including for previous owners, continuously for 6 years. The Applicant gave evidence that he understood that the Respondent was in the process of seeking to sell the business and he understandably expressed uncertainty as to whether any new owner would wish to employ him.

• [35] Applying the formula in Sprigg v Paul's Licensed Festival Supermarket,[1] I have estimated that the remuneration that the Applicant would have received had he not been dismissed, would have been at least a further 22 weeks' wages, which equates to $7,953.

• [36] The Applicant gave evidence he has earned no other income since his termination of employment. I make no further deductions on account of income earned for that reason, and I also make no further deductions on account of contingencies. The amount of $7,953 does not exceed the legislative cap.

• [37] As the Respondent did not bring any evidence concerning the effect of an order for the payment of $7,953 in compensation to the Applicant, on the viability of the business, I make no deduction on that account.

• [38] The Applicant gave evidence that he has been seeking other employment. I am satisfied he has been seeking to mitigate his loss and make no further deduction on that account.

• [39] I have determined to issue an order that the Respondent pay to the Applicant $7,953 gross taxed according to law and 11.5% superannuation contributions on that amount into the Applicant's nominated superannuation fund, within 14 days of the date of this decision. An order to this effect will be issued separately and concurrently with this decision.

It is noted that the Applicant asserts he has not been paid by the Respondent his minimum statutory entitlements. I explained to the Applicant during the hearing that this is not a matter the Commission can deal with in these proceedings, and if he believes he has not been paid his minimum statutory entitlements, he can pursue that issue in a different jurisdiction.

[1] [1998] AIRC 989; (1998) 88 IR 21.

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