//
[102]
[2019] FWC 8090
General information, not legal advice.
Fair Work Commission
2019-12-02
Original judgment source is linked above.
[2019] FWC 8090 [Note: An appeal pursuant to s.604 (C2019/7780) was lodged against this decision.]
s.394 - Unfair dismissal
Royal Automobile Association of South Australia Incorporated T/A RAA
[1] On 22 May 2019, Mr Yan Jie (Richard) Zhang (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Royal Automobile Association of South Australia Incorporated T/A RAA (RAA).
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[6] The uncontested factual background to the matter is as follows:
Mr Zhang was employed by RAA from 2 November 2010 as a Security Installation and Service Technician.
Mr Zhang was dismissed on 3 May 2019.
[7] RAA contended that Mr Zhang failed to comply with a work procedure which resulted in a warning being issued. During the process of issuing that warning, Mr Zhang acted in a manner inconsistent with the RAA code of conduct. Post dismissal, the RAA found out that Mr Zhang had secretly recorded the meeting on 5 April 2019. RAA contended that Mr Zhang's conduct had fatally damaged the employment relationship.
[8] Mr Zhang contended that he did not fail to comply with the work procedure and that evidence against him had been modified. Mr Zhang contends that the account of his conduct had been exaggerated and was not such as to justify dismissal.
[9] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. I considered it appropriate to hold a hearing for the matter (s.399 of the Act).
[10] Both Mr Zhang and the RAA sought to be represented before the Commission by a lawyer.
[11] Section 596(2) of the Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[12] Mr Zhang and the RAA submitted that the matter was complex, and it would be more efficient to allow the parties to be represented by Counsel. I determined to exercise my discretion to allow Mr Zhang and RAA to be represented by a lawyer to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[13] Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant's employment with the Respondent has been terminated on the Respondent's initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[14] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[15] There was no dispute and I find that Mr Zhang's employment with the RAA was terminated at the initiative of the RAA and that Mr Zhang was dismissed within the meaning of s.385 of the Act.
[16] Under s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[17] There were no jurisdictional objections raised in respect of Mr Zhang's application.
[18] I am satisfied that, at the time he was dismissed, Mr Zhang was a person protected from unfair dismissal.
[19] Having considered each of the initial matters, I am required to consider the merits of the Applicant's application.
[20] Mr Zhang submitted an undated statement[1] and a supplementary statement[2] and gave evidence on his own behalf. Mr Zhang gave his evidence with the assistance of an interpreter, who only assisted when required by Mr Zhang to aid his comprehension of a question or give an answer.[3]
[21] Mr Zhang's relevant evidence is summarised as follows:
He is aged 53, was born in China, and migrated to Australia in 1991. English is his second language.
He was employed by RAA as a Security Technician and his role involved installing and repairing home alarm systems.
• On 14 March 2019 he had an interaction with Mr Marquez concerning working overtime. As a result, he felt stressed, anxious, worked up and depressed. Mr Zhang consulted a Doctor. Mr Zhang began taking medication[4] which had some side effects and slowed him down. Mr Zhang stopped taking the medication two weeks before the hearing.
• On 15 March 2019 Mr Zhang attended a team meeting where a new procedure to obtain spare parts was discussed. Mr Zhang said that the process when no one was available was not discussed. Mr Zhang later said that he could not really remember this meeting.[5] Mr Zhang said that Mr Carnelutti's minutes did not accurately reflect the matters discussed at the team meeting.[6] In cross-examination Mr Zhang accepted that he was told at the meeting that no stock was to be taken from the stores unless it was authorised by one of the three persons named and if they were not available in person he should contact them by phone.[7]
• On 2 April 2019 he finished his jobs early and went back to the RAA office to collect some parts. Stock collection normally occurred in the morning.[8] His workmate Mr Gubatina advised him that no one was available in the office. Mr Zhang emailed his team leader, Mr Marquez and waited for 30 minutes but did not receive a response. Mr Zhang was unable to ring his Manager. As no-one was available, Mr Zhang collected the parts and sent Mr Marquez an email to advise he had collected the parts.[9] Mr Zhang then went to Bunnings and whilst there received a phone call from Mr Marquez who told him off for taking the parts without permission. Mr Zhang advised 'you are not available, I have no choice, I need to do the job so I need the parts.' Mr Marquez said he was going to escalate the matter. Mr Zhang was stressed as a result.
• Mr Zhang accepted that he had to get permission to remove the goods, that he could not locate the relevant persons, that he took the goods anyway, despite his colleague advising him not to take the stock.[10]
• Mr Zhang advised the minutes of team meetings are recorded and stored electronically using a program called 'iconnect'. Mr Zhang reviewed the document properties of the minutes[11] on 'iconnect' and determined that the document had been modified since the meeting took place on 15 March 2019. The original minutes did not contain the paragraph titled 'Stores stock'.[12] The paragraph titled stores stock advised that '....no stock is to be taken out stores without Herman [Marquez] being there to authorise it. If Herman is not available then they are to approach Craig [Carnelutti] or Jess (Customer Support TL). No stock is to be taken without authorisation from one of the three. If the tech is unable to find anyone they are to call Herman, Craig or Jess to discuss option. Craig confirmed with all techs they understood the requirements.'
• Mr Zhang reached the conclusion that he was being attacked. He considers Mr Carnelutti fabricated the meeting minutes to get him in trouble.[13]
• A further meeting occurred on 5 April 2019 with Mr Carnelutti and Ms Jackie Wallace (HR) in a meeting room adjacent to the RAA Reception as pictured in Exhibit R17. Mr Zhang covertly recorded the audio of this meeting. There was a discussion about the team meeting minutes. I determined not to receive the document for reasons which are discussed later. I have ignored the portions of Mr Zhang's statement that refers to the recording of the meeting. Ms Wallace said she believed the document was real. Mr Zhang reiterated that he was doing the right thing in collecting the parts. Mr Zhang did not think he was being listened to and received a warning over the matter. Mr Carnelutti left the room after the warning was given and Mr Zhang continued discussions with Ms Wallace trying to explain how the document was different. Mr Zhang went to his car and retrieved printed copies of the two documents and showed Ms Wallace the changes. Ms Wallace asked Mr Zhang to make a report about the changed document. The meeting ended. Mr Zhang's report about the document was later submitted to Mr Halman. Mr Halman raised issues about Mr Zhang's behaviour. In cross-examination Mr Zhang accepted that he was sarcastic during this meeting, that he may have interrupted Ms Wallace, stating words to the effect of 'they will find the truth and someone will be punished', and that 'someone would pay', but denied behaving badly.[14] Mr Zhang stated he may have pointed his finger at Mr Carnelutti but denied making crying motions with his hands.[15] Mr Zhang accepted that he said the team meeting record was fraudulent and he wanted Mr Carnelutti punished.[16] At the hearing Mr Zhang did not accept that Mr Carnelutti made a mistake in uploading the document and that he was lying.[17]
• On 7 April 2019 Mr Zhang emailed Mr Halman and provided an explanation of his conduct in taking the spare parts on 2 April 2019. Mr Zhang contended that the allegation was unreasonable as there was no formal process or documentation which required authorisation, there were no proper control measures, he did not intentionally take stock without authorisation, a verbal warning should suffice, and that Mr Carnelutti used a 'fabricated' document to demonstrate the existence of the approval process. Mr Zhang expressed difficulties in fully expressing himself as a result of English being his second language.[18]
• Mr Wright sent an email to Mr Halman on 1 May 2019.[19] The email summarises the issues put by Mr Wright at the meeting. I have accepted the email as evidence of a communication sent but not as evidence as to the facts contained therein, this approach was accepted by Mr Zhang's representative.[20] The key issues (as to this claim) raised in the correspondence were, Mr Zhang's command of the English language, the lack of a support person at the meeting conducted on 4 April 2019, RAA's interpretation of Mr Zhang's words, volume and body language and suggestions as to the continuing conduct of the investigation.
• On 3 May 2019 Mr Zhang was dismissed. He was asked to hand over his mobile phone but refused stating he wanted to delete his personal data. Mr Zhang left the RAA premises without handing the phone over.[21] Mr Zhang drove from the RAA car park and returned about 10 minutes later and handed over the phone. Mr Zhang explained his refusal to hand over the RAA mobile telephone upon termination as he wanted to delete his personal information.[22]
• Mr Zhang contends he continues to suffer psychological injury and had not sought alternative employment post dismissal as a result.[23] Mr Zhang claimed he has been unfit for work since the dismissal.[24]
• Mr Zhang considers that Mr Carnelutti and Ms Wallace have lied to him.[25]
• Dr Ganesan provided Mr Zhang with a Certificate of Capacity.[26]
• Having had the opportunity to reflect on the making of the secret recording, Mr Zhang could not see fault in his actions.[27]
• At the hearing Mr Zhang rejected the proposition that his behaviour in secretly recording the meeting on 5 April 2019 was wrong, but accepted it was not right.[28]
• Mr Zhang said his memory had been affected by the stress.[29]
[22] The following witnesses gave evidence on behalf of the Respondent:
Mr Darryl Kennedy (Vehicle Inspection Services Coordinator)
Mr Mauricio Mayorga (Team Leader. Product Integration Engineer)
Mr Craig Carnelutti (Service Delivery Manager, Secure Services)
Ms Jackie Wallace (People and Capability Consultant)
Mr Ben Halman (Senior Manager)
Mr Herman Marquez (Team Leader, Field Services)
Mr Francis Gubatina (Security Technician)
[23] Mr Kennedy submitted a statement dated 23 July 2019[30] and gave evidence. His relevant evidence is summarised below:
He works from an office near the RAA Corporate Reception.
On 5 April 2019 he heard raised voices come from a nearby meeting room. He could not hear what was being said but determined that someone was yelling loudly in an aggressive tone.
Mr Kennedy advised that in normal circumstances he could not hear conversations from that room at his desk.
Mr Kennedy investigated the matter and observed Mr Zhang and Ms Wallace in the meeting room.
Mr Kennedy observed Mr Zhang shouting in an aggressive manner and exhibiting quite aggressive body language.
Mr Zhang stormed out of the meeting.
On 3 May 2019 Mr Kennedy again heard loud voices through his wall. He investigated the matter and saw Mr Zhang in the meeting room with Mr Halman both standing up and Mr Zhang stormed out of the meeting room.
[24] Mr Mayorga submitted a statement dated 23 July 2019[31] and gave evidence. His relevant evidence is summarised below:
Mr Mayorga was a Security Technician from September 2011 until October 2014 and Technical Support Officer from October 2014 until May 2019. On 13 May 2019 he was appointed as Team leader, Product Integration Engineer.
• Mr Mayorga whilst engaged as a Security Technician had worked with Mr Zhang on a number of occasions. He observed that Mr Zhang's communication style could be abrupt (or not nice)[32] although he put this down to Mr Zhang's language skills.
• Mr Zhang was about to be given his termination letter during the meeting and was asked to give back the RAA property. Mr Zhang said he was going to delete his information on the telephone and declined to give the phone to Mr Halman. He got up and ran out of the blue and left the room.[33] Mr Zhang got really upset and stood up whilst Mr Halman was sitting down and raised his voice - he looked a little aggressive.[34]
• Mr Zhang ran to his car and reversed it into the middle of the car park and left whilst Mr Halman was trying to give him the termination letter.[35] Mr Mayorga was about 10 metres away at this time. Mr Halman was on the pathway much closer to Mr Zhang.[36]
[25] Mr Herman Marquez submitted a statement dated 23 July 2019[37] and gave evidence. His relevant evidence is summarised below:
Mr Marquez was Team Leader, Field Services.
Mr Marquez gave evidence about some incidents involving Mr Zhang which occurred in 2016, 2017 and February 2019.
Mr Marquez advised that in late March 2019 Mr Zhang was asked to do an urgent job on his way home and refused advising that he had a Doctor's appointment. When Mr Marquez questioned Mr Zhang about this he became irate and raised his voice.
Mr Marquez detailed how team meeting minutes were sorted electronically in 'iconnect'.
On 15 March 2019 Mr Marquez attended a team meeting with others including Mr Zhang where they were advised by Mr Carnelutti that stock could not be removed from the storeroom without permission from one of three persons including himself.
On 2 April 2019 he received an email from Mr Zhang that he had removed some stock items. This concerned Mr Marquez and he investigated the matter and asked Mr Zhang why he removed stock without authorisation. Mr Zhang told him that Mr Carnelutti had said he could remove the stock and advise by email afterwards.
Mr Marquez reported the matter to Mr Carnelutti.
• In cross-examination Mr Marquez advised that when Mr Zhang gets upset he gets loud and he got upset often (once every two weeks).[38]
• Mr Marquez did not attend the 3 May 2019 meeting with Mr Zhang but saw him leave the meeting and sprint outside to the car park.[39]
[26] Mr Gubatina (Security Technician) submitted a statement dated 24 July 2019[40] and gave evidence. His relevant evidence is summarised below:
He is employed by RAA as a Security Technician.
He has worked with Mr Zhang on a few jobs.
He attended a team meeting on 15 March 2019 where Mr Carnelutti advised that if you needed to pick up stock, permission needed to be obtained from Ms Jess Rijnbeek, or Mr Herman or Mr Carnelutti. This was a new process for collecting stock.
On 2 April 2019 Mr Zhang and Mr Gubatina had finished their jobs for the day, collected some stock from an external supplier and went back to RAA. They could not find Ms Rijnbeek, or Mr Herman or Mr Carnelutti.
Mr Zhang said he was going to take the parts, Mr Gubatina said not to do this and left.
[27] Mr Carnelutti submitted a statement dated 22 July 2019[41] and a reply statement dated 5 August 2019[42] and gave evidence. His relevant evidence is summarised below:
Mr Carnelutti is employed by RAA as Service Delivery Manager, Security Services and directly supervised Mr Zhang.
On 15 March 2019 he conducted a Team Meeting where Mr Zhang and others were advised that before removing goods from the RAA storeroom they needed permission from Mr Marques, Ms Rijnbeek or himself. If they were not on the RAA premises they were to be contacted by phone.
The minutes of the meeting was uploaded to iconnect. Mr Marquez asked Mr Carnelutti to update the minutes to include the stores direction after the meeting. Mr Carnelutti tried to upload the revised document but made a mistake and saved it to his local drive instead of iconnect.
On 2 April 2019 Mr Carnelutti was advised by Mr Marquez that Mr Zhang had removed stock from the RAA storeroom without permission and simply emailed him. Mr Carnelutti raised the matter with Ms Wallace (HR) and it was determined that a disciplinary process would commence.
An allegation letter was prepared and sent to Mr Zhang on 4 April 2019.
A meeting was conducted with Mr Zhang on 4 April 2019 with Ms Wallace. Mr Zhang said the storeroom was unoccupied, and Mr Gubatina had told him it was fine to take the goods, Mr Zhang disputed the version of the meeting minutes containing the requirements, repeated that he was putting the customer first and said that he did not call Mr Carnelutti as he did not have his number, before admitting he had made a mistake.
Mr Carnelutti observed Mr Zhang's behaviour change from calm to defensive to remorseful.
At the end of the meeting he discussed the matter with Ms Wallace and agreed that a written warning would be issued. During this debriefing Mr Zhang returned somewhat animated with a copy of the iconnect minutes which were different. At this point Mr Carnelutti realised he had not uploaded the amended minutes. Mr Zhang calmed down and was advised his employment was not going to be terminated.
Mr Zhang was sent a copy of the meeting minutes and a warning letter was drafted.
• On 5 April 2019 Mr Carnelutti and Ms Wallace met with Mr Zhang in the meeting room adjacent to the RAA reception area. Mr Carnelutti explained how the discrepancy occurred in the meeting minutes, Mr Zhang did not appear satisfied by the explanation. Ms Wallace told Mr Zhang he would receive a first warning. Within a few minutes Mr Zhang became more and more aggressive[43] and antagonising, smiling and laughing and speaking very loudly. In cross-examination Mr Carnelutti described Mr Zhang's behaviour as erratic, he was replying in a sarcastic manner, and was erratic in his movements, he appeared on the 'edge of his seat'.[44] He said that the outcome was not fair or just and someone is going to pay for this. Ms Wallace stopped him and asked if he was making a threat. Mr Zhang said Mr Carnelutti had admitted to doctoring the minutes. He became very aggressive repeatedly pointing at Mr Carnelutti. Mr Zhang said he didn't know he could not take stock without authorisation. Ms Wallace signed a document produced by Mr Zhang who then proceeded to look at Mr Carnelutti and say 'you are in trouble now' and 'you don't look happy now' Mr Carnelutti felt like Mr Zhang was trying to get him to admit to some criminal activity in light of becoming aware that the meeting was being secretly recorded.
• Mr Carnelutti left the room. He felt physically and mentally threatened during the meeting and spent about 45 minutes doing nothing and then Ms Wallace spoke to him and went and discussed the matter with Mr Halman.[45] Ms Walker (the Receptionist) attended the meeting room and asked what was happening.
[28] Ms Wallace submitted a statement dated 23 July 2019[46] and a further statement dated 5 August 2019[47] and gave evidence. Her relevant evidence is summarised below:
Ms Wallace provides Human Resources and Industrial Relations support to RAA.
In early April 2019, Mr Carnelutti contacted Ms Wallace for assistance in respect of an incident where Mr Zhang had taken stock from a storeroom without authorisation contrary to a briefing during a team meeting in March 2019.
Ms Wallace in conjunction with Mr Carnelutti reviewed Mr Zhang's performance history and became concerned that a pattern was developing. A formal disciplinary process was started.
• The allegations were entered into the RAA logging system by Mr Carnelutti and reviewed by Ms Wallace who authorised the generation of an allegation letter[48] (which is an automated process). A meeting was scheduled for 10.00am on 4 April 2019. Ms Wallace understood that Mr Zhang was present at a meeting with Mr Carnelutti on 15 March 2019 where the parts access policy was explained verbally.[49]
• Ms Wallace attended the meeting on 4 April 2019 with Mr Carnelutti to take notes and assist as required. Ms Wallace contends Mr Zhang conceded he had made the wrong decision by taking the parts without authorisation.[50] Mr Zhang said he did not think he had done anything wrong as he had sent an email to Mr Marquez advising that he had taken the stock. The meeting then discussed the lack of urgency of the job (being 2 days later) and the instructions given at the team meeting on 15 March 2019 and Mr Zhang accepted that he had made a mistake. Mr Zhang appeared nervous, but the tone of the meeting was respectful and amicable. The meeting concluded and Mr Zhang was excused. About 10 minutes later, Mr Zhang came back concerned that his employment was to be terminated and produced a copy of the meeting minutes which did not refer to the new procedures discussed. Mr Carnelutti said he would look into the meeting record issue. Ms Wallace advised she had investigated the concerns in relation to the minute record, but it did not raise concern.
• The outcome meeting was scheduled for 5 April 2019. Ms Wallace conducted the meeting as Mr Carnelutti was a new Manager. Ms Wallace outlined the factors considered and advised Mr Zhang that a first warning would be issued, providing a hard copy.[51] Mr Zhang repeatedly interrupted Ms Wallace during this process. Ms Wallace contended that Mr Zhang said the meeting minutes were fake, fraudulent and that after Mr Carnelutti had left, that he was a criminal.[52] Mr Zhang was smirking and smiling at Mr Carnelutti in a very gleeful manner during the middle of the meeting and becoming increasingly combative and angry during the course of the hour in which the meeting was conducted.[53] Mr Zhang did not accept the warning in an angry and aggressive manner. As evidenced by his volume (7/10), tone and body language,[54] Mr Zhang said there was no policy or procedure in relation to the stock authorisation process and became increasingly combative and angry. He smiled and smirked at Mr Carnelutti and said 'someone will pay' in a threatening tone. Mr Zhang returned to the topic of the meeting minutes and produced a copy which were different to those provided by the RAA. Mr Zhang asked Ms Wallace to sign the minutes and after she had done so, said he loved Ms Wallace and would take the document to his lawyer talking extremely loudly and said to Mr Carnelutti 'you are worried now, don't cry' whilst rubbing his eyes. Ms Wallace contended Mr Carnelutti appeared upset by this conduct. Mr Zhang stated that the meeting minutes had been falsified. Ms Walker (the RAA Corporate Receptionist) came into the room and asked if everything was OK.
• Mr Zhang stated that 'someone will pay' which Ms Wallace took as a threat to Mr Carnelutti.[55] During the conversation, Ms Walker came to the room and asked if Ms Wallace was OK.[56] Exhibit R17 displays the meeting room the 5 April 2019 meeting was conducted. There is a CCTV camera near the room which views the shop and receptionist area but does not record any events in the meeting room.[57] Ms Wallace does not believe that the CCTV camera recorded sound.[58]
• Whilst Ms Wallace denied she called Mr Zhang a narcissist in her statement, in her evidence she conceded that she told Mr Zhang he needed to stop his narcissistic behaviour.[59]
• After the meeting Ms Wallace reflected on Mr Zhang's conduct and determined that it was inappropriate and warranted further disciplinary action. Ms Wallace understood that Mr Carnelutti was impacted by Mr Zhang's conduct. A further allegations letter was sent to Mr Zhang which identified termination as a potential outcome.[60]
• On 30 April 2019, Ms Wallace discussed with Mr Halman concerns about whether the trust had been broken and if the employer/employee relationship with Mr Zhang could continue taking into account Mr Zhang's conduct in the 2 and 5 April 2019 meetings.[61]
• Ms Wallace contends that Mr Zhang's secret recording of the meeting makes the employment relationship untenable.[62]
• Commenting on the secret recording of the 5 April 2019 meeting, Ms Wallace contended that she was not aware of it, and that the question appeared to have been more targeted as a result of the recording taking place.[63]
[29] Mr Halman submitted a statement dated 25 July 2019[64] and gave evidence. His relevant evidence is summarised below:
Mr Halman is the RAA Senior Manager, Secure Services Operations, and oversees the Monitoring Centre, Customer Services and Technicians. Mr Carnelutti is one of his direct reports.
Mr Halman was involved in some prior disciplinary matters involving Mr Zhang in February 2019 which related to alleged misuse of IT equipment.
Mr Halman determined that Mr Zhang's performance history was not relevant to the conduct alleged against Mr Zhang upon which this termination is based.
Mr Halman was aware of the disciplinary processes being conducted about Mr Zhang's alleged collection of the parts without authorisation and was supportive of the process being conducted. In the period between 3-5 April 2019, Mr Zhang called him to complain about the process being undertaken as he thought he was being treated unfairly. During this phone calls Mr Zhang would get worked up and began yelling and would become aggressive. Mr Halman would tell him to stop yelling and/or calm down. Mr Halman asserts he took a neutral stance. Mr Halman was aware of the allegation in relation to the documented meeting minutes and conducted his own investigation assisted by IT. Mr Halman asked Mr Carnelutti if he had amended the minutes.
• Mr Carnelutti came to see Mr Halman after his 5 April 2019 meeting with Mr Zhang. Mr Halman reported that Mr Carnelutti was visibly upset by his interaction with Mr Zhang.[65] Mr Halman also spoke with Ms Wallace. Mr Halman considered that Mr Carnelutti's mental health and wellbeing was placed at risk[66] by Mr Zhang and determined that contact between the two would not occur without senior management present.[67]
• Mr Halman determined after the meeting to dismiss Mr Zhang[68] and met with him on 3 May 2019 to advise the same.
• On 3 May 2019 Mr Halman met with Mr Zhang in the presence of Mr Mayorga. Mr Halman advised Mr Zhang that he would be dismissed and tried to give him a dismissal letter. The dismissal letter did not set out the basis of the termination due to a system error. Mr Halman did not take into account Mr Zhang's performance history pre-February 2019.[69]
• Mr Halman then requested Mr Zhang hand over his RAA provided equipment including his mobile phone. Mr Zhang stood up ran out of the meeting room and exited the building, got in his car, reversed very quickly such that he had to step back to avoid being hit and left.[70] Mr Zhang left his wife waiting in the reception area.[71] Mr Zhang returned 10 minutes later, let himself in with his swipe card and handed back his phone and swipe card. The RAA later collected his work supplied van.
• Post dismissal Mr Halman became aware of the secret recording made by Mr Zhang and was disappointed by Mr Zhang's conduct, describing it as a complete erosion of trust.[72]
Admissibility of covert recording of meeting of 5 April 2019
[30] On 3 April 2019 Mr Zhang received an allegations letter about the taking of the stock without permission. On 4 April 2019 a meeting was held where Mr Zhang responded to those allegations. On 5 April 2019 an outcomes meeting was held. This is the meeting that was recorded.[73]
[31] Mr Zhang used his mobile telephone to secretly record the meeting between himself, Mr Carnelutti and Ms Wallace on 5 April 2019. Mr Zhang advised that he made the recording as his English was no good, for his own protection[74] and to allow a written account of the meeting to be made which is easier for him to understand.[75] Mr Zhang used his mobile phone to make the recording turning it on before he entered the room and turning it off afterwards. Mr Zhang did not disclose he was recording the meeting.[76] A transcript of the audio recorded was sought to be tendered by Mr Zhang which was objected to by RAA.
[32] Ms Wallace gave evidence that she thought Mr Zhang's questions were influenced by the fact the meeting was recorded.
[33] The question remains as to whether I should exercise my discretion to accept the secret recording as evidence.
[34] Submissions in relation to the submission of the recording/transcript were made at various stages of the hearing.
[35] Mr Zhang submitted that I should receive the secret recording and the transcript as there was no breach of the Surveillance Devices Act 2016 (SA) and contended that the conversation was not a private conversation, because persons at the meeting were taking notes, and persons outside the room could hear the conversation.[77]
[36] RAA contends the recording was made in breach of s.6 of the Surveillance Devices Act 2016 (SA), that the recording was unlawful, and that the exception of consent and to protect the lawful interests of the person (s.4(s)(a)(ii)) did not apply.
[37] Section 6 of the Surveillance Devices Act 2016 (SA) relevantly provides:
"6 - Listening devices and optical surveillance devices - public interest exception
(1) Section 4 does not apply -
(a) to the use of a listening device to overhear, record, monitor or listen to a private conversation if the use of the device is in the public interest; or
(b) to the installation, use or maintenance of a listening device under subsection (2)(b)(iv) or (v) of that section if the use of the device is in the public interest."
[38] I determined not to receive the recording for the following reasons.
[39] The evidence established that the CCTV cameras do not point toward the room where the meeting was held but towards the public Reception area of the building and a public counter. The meeting was held behind closed doors and was of a disciplinary nature - I reject the contention that the meeting was not a private meeting. I reject the contention that the taking of handwritten notes comprises of the 'recording' of the meeting.
[40] It appears to me that Mr Zhang's actions do not fall within the exclusions under the Surveillance Devices Act 2016 (SA) although I make no finding that his conduct was inconsistent with that Act.
[41] The RAA contended that in exercising my discretion I should weigh up the considerations discussed by Deputy President Sams in Kelly Walker (No.2).[78] I agree with that submission. In determining whether to exercise my discretion to receive the recording I must weigh up those considerations and determine if the prejudicial value is outweighed by the probative value.
[42] The RAA contended that the decision Thomas v Nash[79] supported the rejection of the secret recording. This was a wills and probate case before Chief Justice Doyle. Mr Nash had made some secret recordings in case he forgot things. It was found that the recordings were made as it might prove to be advantageous. The admission of the recordings was contested. Chief Justice Doyle held that the term 'private' does not mean secret or confidential but simply 'not public.' The Chief Justice noted that 'I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage.' The facts in Nash appear somewhat analogous to the matter before me. The evidence in this matter suggests that the recordings were made in the hope that they would assist Mr Zhang.
[43] Mr Zhang sought to rely on my decision in Fowler v Playford City Soccer and Community Club[80] however that decision can be distinguished on the basis that the parties in that matter consented to the recordings being received_._
[44] Mr Zhang filed an outline of submissions on 25 July 2019 and made oral submissions at the conclusion of the hearing. RAA filed an outline of submissions on 25 July 2019 and submissions in reply on 8 August 2019 and made oral submissions at the conclusion of the hearing.
[45] Mr Zhang contended (other than as to remedy) as follows:
The onus was on the RAA to demonstrate he engaged in misconduct.
Mr Zhang has worked for RAA for over 8 years.
The evidence in relation to Mr Zhang's work history prior to March 2018 is not relevant to the dismissal.
English is a second language for Mr Zhang, which sometimes causes frustration.
Mr Zhang was not an unreliable witness.
The secret recording was a necessary recording.
Mr Zhang was taking medication for stress, post 14 March 2019.
Mr Zhang was sleep deprived.
The allegations concerning Mr Zhang's communications and conduct in the meeting dated 5 April 2019 are disputed. It was accepted that Mr Zhang said 'someone has to pay' but not as a threat. Mr Zhang said he would need to get legal advice.
The evidence concerning Mr Zhang's tone, volume and body language has been exaggerated.
The dismissal was harsh, unjust or unreasonable.
A finding of valid reason does not mean that the test under s.387 of the Act has been met. Each criterion in s.387 of the Act must be taken into account.
The facts do not demonstrate serious and wilful misconduct nor that a valid reason exists.
The dismissal lacked procedural fairness in the meeting of 3 April 2019 and Mr Zhang was not provided with an interpreter.
[46] RAA contended (other than as to remedy) as follows:
There was no dispute that Mr Zhang was dismissed and s.385(b),(c) and (d) has no application.
Mr Zhang's employment contract required him to observe the highest professional and ethical standards and to comply with RAA policies.
The RAA code of conduct required him to inter alia 'behave honestly with integrity care and diligence; treat ....co-workers.... with respect and courtesy; not behave in a physically or verbally abusive manner to any co-worker....'
Mr Zhang was counselled in relation to his behaviour in January 2018 and February 2019.
On 2 April 2019 Mr Zhang breached a clear directive issued on 15 March 2019 by removing stock without permission.
The breach was the subject of disciplinary meetings on 3, 4 and 5 April 2019. Mr Zhang conceded he made an error of judgement.
Mr Zhang's conduct at these meetings in repeatedly interrupting Mr Carnelutti and Ms Wallace, pointing aggressively at Mr Carnelutti, mocking Mr Carnelutti and raising his voice and speaking in an aggressive manner and stating 'someone will pay' breached the RAA code of conduct.
Mr Zhang was afforded procedural fairness.
Mr Zhang was paid notice.
The secret recording made by Mr Zhang completely destroyed the trust and confidence required for an ongoing employment relationship.
Mr Zhang was not a credible witness and demonstrated a desire to argue his case rather than answer questions and suggested conspiracies and lies when there was no objective or reasonable basis for doing so.
The dismissal was not harsh, unjust and/or unreasonable and the application should be dismissed.
Observations in relation to Mr Zhang's evidence
[47] I had the opportunity to observe Mr Zhang give his evidence for over 4 hours during a two day period. I have also made observations in relation to the RAA witnesses.
[48] I have taken into account that English is not Mr Zhang's first language and accept that as a result Mr Zhang may construct his sentences in a manner that could be perceived as direct or abrupt or be misconstrued. I have also taken these matters into account when reviewing Mr Zhang's oral evidence.
[49] I note that Mr Zhang had worked successfully in the RAA work environment for over 8 years interacting with employees and customers predominantly in English.
[50] Mr Zhang appeared to have difficulty during cross-examination (and re-examination) listening to questions, possibly impacted by the stress that the proceedings placed on him. In cross-examination, Mr Zhang had to be repeatedly reminded to listen to the question and directly answer it. On many occasions his answers appeared out of context, on some occasions rather than answer the question, Mr Zhang advocated his position. Mr Zhang appeared reluctant to make concessions.[81]
[51] It appears from my observations of Mr Zhang, that he is extremely 'outcomes focussed' to the point where the need to get the task done can become paramount, and subordinate to processes or procedures or impact on his co-workers. This can be seen by a review of the reasons for why he did not seek permission to obtain the parts on 2 April 2019. Mr Zhang needed the parts to get a job done and therefore must have them.
[52] Mr Zhang became very passionate about a number of issues in cross-examination, including arguing that one of the signatures on a workers compensation application attributed to him was a fake and becoming angry.[82] Mr Zhang once upset (or stressed) had a tendency to become belligerent.[83] On occasions Mr Zhang's responses in cross-examination were inconsistent and/or confusing.[84]
[53] Mr Zhang's capacity to argue that the table in the RAA meeting room was not round was nothing short of astounding, particularly in light that the shape of the table was irrelevant other than as to credit. Mr Zhang contended the table in the meeting room was not round, having been shown Exhibit R17 (which clearly shows a round table), he then contended this was not the room in which the interview took place, before reluctantly accepting that the table was round and finally returning to his position that it was a different room. During these exchanges Mr Zhang asserted that he was a detail person and never wrong. The next day Mr Zhang repeated that according to his memory it was a square table and postulated that someone changed the table in the room. These exchanges (amongst others in his cross-examination) provides insight as to how Mr Zhang may have conducted himself during the 5 April 2019 interview.[85]
[54] When cross-examined about alleged previous discussions concerning his behaviour, Mr Zhang sought information as to the alleged discussions, and when presented with the first example said it wasn't true, then accepted that he was counselled and provided his recollection. When asked about an apology given at the time, first he said that he could not remember, and that he had nothing to apologise for as he had done nothing wrong.[86] At one point Mr Zhang appeared to agree that he was tailoring his evidence to bolster his case.[87]
[55] Mr Zhang appears to have suffered a complete loss of objectivity in respect of his interactions with senior RAA employees.
[56] I have concluded that Mr Zhang is not a reliable witness and is driven by matters other than fact. I have treated his evidence, where it conflicts with evidence given by others, with caution.
[57] I prefer the evidence of Mr Carnelutti, Ms Wallace and Mr Halman over that of Mr Zhang where it differs and as to the description of how Mr Zhang interacted with them.
[58] Based on Mr Halman's evidence, the evidence of Mr Zhang's interaction prior to 15 March 2019 were not relevant to the decision to dismiss. On that basis I have not made findings in relation to those matters.
[59] I accept that Mr Zhang would have been aware of the revised instruction with respect to obtaining permission to remove parts from the RAA storeroom as a result of the verbal discussion at the team meeting. This was corroborated by Mr Zhang's colleagues who were also present.
[60] I accept that there was a discrepancy in the 'iconnect' meeting minutes. I accept Mr Carnelutti's explanation of how the written record of the meeting differed to that downloaded by Mr Zhang and that he had not fraudulently or inappropriately changed the 15 March 2019 meeting minutes as suggested by Mr Zhang. I find that Mr Zhang's reaction to the discrepancy was a gross over reaction, particularly in light of his physical presence at the team meeting and knowledge of the matters discussed.
[61] I accept that on 2 April 2019 Mr Gubatina whilst at or near the location of the parts, told Mr Zhang that he should not take the parts.
[62] I find that Mr Zhang's actions in removing the parts on 2 April 2019 was in conflict with the revised policy as communicated to Mr Zhang on 15 March 2019.
[63] I find that Mr Zhang was afforded procedural fairness in the investigation of the policy breach. Based on the evidence of Mr Zhang's ability to communicate in the workplace in the previous years without the need for an interpreter, I do not see fault in the same not being provided during the process. I note that there was no evidence of a request for such assistance.
[64] I accept that the evidence of Mr Kennedy as to the volume of the discussion in meetings that occurred in the RAA reception meeting room on 5 April and 3 May 2019 and that it was at such a level as he was concerned as to what was going on.
[65] I accept Ms Wallace's and Mr Carnelutti's evidence that the Receptionist attended at the meeting on 5 April 2019 to see if all were OK.
[66] Ms Wallace is a seasoned HR operative who was not intimidated by Mr Zhang. Her evidence was measured and objective, and I accept her as a witness of truth. I prefer her description of Mr Zhang's conduct to that given by Mr Zhang (or suggested by his Counsel).
[67] I accept that Ms Wallace ushered Mr Carnelutti out of the room on 5 April 2019 as a result of her perception about the impact that Mr Zhang was having on him.
[68] I accept Mr Carnelutti's evidence, including how he was impacted by his interaction with Mr Zhang on 5 April 2019.
[69] I accept Mr Halman's description of the conduct of Mr Zhang during the dismissal meeting on 3 May 2019.
[70] I prefer the evidence of Ms Wallace, Mr Carnelutti and Mr Halman as to the conduct of Mr Zhang on 5 April, 30 April and 3 May 2019.
[71] Mr Zhang's conduct towards Mr Carnelutti was combative, disrespectful, disproportionate and represents a significant breach of the RAA code of conduct. Mr Zhang failed to treat Mr Carnelutti, Ms Wallace and Mr Halman with dignity and respect.
[72] I also find that Mr Zhang's responses to the investigation meeting on 4 April 2019 were not initially truthful.
[73] Mr Zhang's allegations of fraud and that his accusation that his superiors were liars did not have any basis.
[74] I find that Mr Zhang's conduct in secretly recording the meeting on 5 April 2019 fatally damaged the employment relationship.
[75] Mr Zhang has not accepted responsibility for his actions or shown remorse.
[76] Whilst I accept that Mr Zhang left the meeting room quickly on 3 May 2019 and drove his vehicle out of the car park in a brisk fashion leaving his wife behind, I am not persuaded that he placed Mr Halman or Mr Marquez at significant risk, nor that he was stealing the RAA property he retained. I accept Mr Zhang's explanation that he had personal information that he wanted to remove from the RAA mobile phone - whilst Mr Zhang could have resolved his concerns more sensibly, I accept that Mr Zhang may not have been thinking rationally at this point. In any event this is post dismissal conduct.
Was the dismissal harsh, unjust or unreasonable?
[77] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[78] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[88]
[79] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?
[80] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[89] and should not to be "capricious, fanciful, spiteful or prejudiced".[90] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[91]
[81] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[92] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[93]
[82] Whilst Mr Zhang was subject to some performance management prior to the removing the parts incident, it was not relied upon to form a basis for the valid reason.[94]
[83] RAA rely upon the conduct of Mr Zhang at the meeting of 5 April 2019 (and shortly after), and the secret recording of that meeting.
[84] Whilst it was only after the dismissal of Mr Zhang that the RAA became aware of the secret recording of the meeting, it is open to RAA to rely on Mr Zhang's misconduct as a valid reason for the dismissal. As stated by the High Court, "if there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances..."[95]
[85] In Thomas v Newland Food Company Pty Ltd[96] Deputy President Sams referred to a decision of Senior Deputy President Drake in Lever v Australian Nuclear Science and Technology Organisation[97] which referred to a judgement of Justice Bryson in See v Hardman which states he saw 'no room to doubt that it is an impropriety to make a secret recording of a conversation bearing on some business interest or other important interest...' and that 'In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that in any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate'. Justice Bryson determined that such conduct was an 'extreme impropriety.' The decision of Justice Bryson is just as apt in 2019 as it was in 2002.
[86] I have found that Mr Zhang acted in the manner alleged by RAA and that was a significant breach of the RAA code of conduct. I have also found that Mr Zhang was untruthful during the investigation and that Mr Zhang's secret recording of the meeting on 5 April 2019 fatally damaged the employment relationship. Each of those findings represents a valid reason in respect of Mr Zhang's conduct.
Was the Applicant notified of the valid reason?
[87] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[98] and in explicit[99] and plain and clear terms.[100]
[88] Mr Zhang was notified of each of the reasons upon which the dismissal was based with the exception of the secret recording which was not within RAA's knowledge at the time.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[89] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[101]
[90] I find that Mr Zhang was afforded an opportunity to respond to the allegation upon which the dismissal was based (noting that RAA was not aware of the secret recording at the time).
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[91] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[92] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[102]
[93] Mr Zhang had a support person (his lawyer) present at the interview on 3 April 2019, there were no requests for a support person in respect of the other meetings.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[94] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
[95] The RAA is a large business, its size did not impact on the procedures followed to effect the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
[96] The RAA had dedicated human resource specialists.
[97] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
[98] I have taken into account Mr Zhang's language skills, his health condition, including the fact that his medication may have impacted his responses and that he was sleep deprived. In my view, these matters may explain some of his conduct but do not excuse it. Particularly in light of his conduct representing an extreme departure from the norm.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[99] I have made findings in relation to each matter specified in s.387 of the Act as are relevant.
[100] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[103]
[101] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
[102] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act. The Applicant's application is therefore dismissed. An Order[104] reflecting this decision will be issued.
[2] Exhibit A2 (excluding attachment YZ1 which was a transcription of a secret recording which was subject to a vior dire and subsequently excluded).
[26]Transcript PN2372-2388, Exhibit R13.
[82] Transcript PN2283-2291 referring to Exhibit R9.
[84] Transcript for example PN2955-2960, PN3081-3094.
[85] Transcript PN2429-2445; 2470-2481, 2490-2502.
[88] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[89] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[91] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.
[92] Edwards v Justice Giudice [1999] FCA 1836, [7].
[93] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[95] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21, per Starke J.
[98] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[99] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[101] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[102] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[103] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
Printed by authority of the Commonwealth Government Printer
Yan Jie (Richard) Zhang
Royal Automobile Association of South Australia Incorporated T/A RAA [2019] FWC 8090
(1995) 62 IR 371
(2002) 117 IR 357
(1996) 142 ALR 681
(2000) 98 IR 137