CHEN v ALLIED PACKAGING CO PTY LIMITED [1997] IRCA 152

DECISION NO:152/97 TERMINATION OF EMPLOYMENT - Alleged UNLAWFUL TERMINATION - Applicant unlawful non-citizen and not entitled to work in Australia - Employment terminated by employer after contact with Department of Immigration and Ethnic Affairs - Whether employment terminated at initiative of the employer - Whether there was a valid reason for termination. Workplace Relations Act 1996, s 170DE(1). No. NI96/1867R WEI XIN CHEN v ALLIED PACKAGING CO PTY LIMITED CORAM: WILCOX CJ PLACE: SYDNEY DATE: 9 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI96/1867R NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: WEI XIN CHEN Applicant AND: ALLIED PACKAGING CO PTY LIMITED Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 9 APRIL 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for review be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI96/1867R NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: WEI XIN CHEN Applicant AND: ALLIED PACKAGING CO PTY LIMITED Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 9 APRIL 1997 EXTEMPORE REASONS FOR JUDGMENT WILCOX CJ: This is an application for review of a decision of a Judicial Registrar dismissing an application by Wei Xin Chen under s 170EA of the Industrial Relations Act 1988, now known as the Workplace Relations Act 1996. The respondent to the application is Allied Packaging Co Pty Limited. The evidence placed before me today is essentially the same evidence as before the Judicial Registrar. The only addition is some brief oral evidence from Mr Chen which does not address the critical issue. It seems that Mr Chen commenced employment with Allied Packaging in November 1993. He was employed as a guillotine operator. On 4 June 1996 he sustained an injury to his back when a wheel on a trolley he was pushing became stuck in a hole in the factory floor. Despite the injury, he continued to work; but he later took time off work to obtain medical advice. He notified his employer that he was unfit for work. He has not worked with Allied Packaging since 13 June. He attended work on 18 June to give a medical certificate to his employer. He rang his employer a day or two later and reported that the doctor had told him he would be off work for a further two weeks. On the following day Mr Ray Doherty, the managing director of Allied Packaging, telephoned the applicant and asked him to come in to work. He did so and he was given a letter terminating his employment. The reason stated in the letter was that the company was acting on advice received from the Department of Immigration and Ethnic Affairs. It appears from the evidence that, on or about 20 June, Mr Doherty contacted Mr Jim Kerr of the Compliance Section of the Department at Rockdale. He sought information about Mr Chen's entitlement to work. On 20 June Mr Kerr wrote a letter to Mr Doherty in which he referred to the applicant, correctly identifying his date of birth - that was verified in evidence this morning - and stating: "I hereby confirm that the following employee has been identified as a non-citizen who is not currently entitled to work while he is in Australia. He should not be re-employed by you unless he is able to provide evidence of his right to work in Australia." The letter said the evidence may be in the form of evidence of Australian or New Zealand citizenship, a valid visa or written permission to work provided by the Department. Mr Chen conceded this morning that he was not an Australian or New Zealand citizen in June 1996 and did not hold either a valid visa or written permission to work provided by the Department. After termination of his employment, Mr Chen approached the Department for permission to work. This was granted. He then asked Mr Doherty to re-employ him but Mr Doherty refused. I have considerable sympathy for Mr Chen's position. Although the facts have not been investigated in full, it seems, prima facie at least, that Mr Doherty contacted the Department only because Mr Chen had gone off work injured and was on workers' compensation. Mr Chen said to me this morning that Mr Doherty used his illegal status as an excuse to terminate his employment. This may be correct. Nonetheless, it seems clear that the Judicial Registrar was correct in holding that Mr Chen's continued employment was illegal, unless and until he succeeded in obtaining either a temporary visa or a work permit. Section 235(3) of the Migration Act 1958, as at June 1996, was as follows: "3. An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection." The term "unlawful non-citizen" is defined by s 14 of the Act as a "non-citizen in the migration zone who is not a lawful non-citizen." The migration zone includes mainland Australia. The term "lawful non-citizen" is defined by s 13(1) of the Act as meaning a "non-citizen in the migration zone who holds a visa that is in effect." The result of all this is that a non-citizen who is in Australia and does not hold a visa is "an unlawful non-citizen." Unfortunately for him, Mr Chen fulfilled all these conditions on 20 June 1996. Accordingly, s 235(3) applied to him and made it an offence for him to perform work in Australia, whether for reward or otherwise. Subsection (5) of s 235 provided a penalty for an offence against subs (3) in the form of a fine not exceeding $10,000. Mr Chen's employment on 20 June 1996 was unlawful because it was a breach of the Migration Act. It is also clear that, once Mr Doherty became aware of Mr Chen's status, any action by him that facilitated Mr Chen's illegal employment would itself be unlawful; Mr Doherty would become an accomplice and would himself be exposed to prosecution. Whatever Mr Doherty's motive in contacting the Department, and however harsh the result may be as far as Mr Chen is concerned, there was a valid reason for his termination on 20 June. It would have been possible for Allied Packaging to re-employ Mr Chen when he sought re-employment a few days later. By that time he had obtained a visa. It might be thought hard that the company did not do so; but I am not concerned with a claim that the company should have re-employed Mr Chen. There is no legal basis on which Mr Chen can obtain the assistance of the Court in respect of Allied Packaging's failure to offer him re-employment. I am only concerned with the question whether there was a valid reason for his termination on 20 June. I must hold there was. The Judicial Registrar was correct in coming to the conclusion that the application should be dismissed. The Judicial Registrar also expressed the view that the termination was not at the initiative of the employer, because it arose out of information given to the employer by the Department and Mr Kerr's advice that Mr Doherty should dismiss Mr Chen. While I have no doubt that this played a role, and possibly a critical role, in Mr Doherty's decision to dismiss Mr Chen, the fact that the Department gave this information and advice does not derogate from the situation that, nonetheless, the termination was at the initiative of the employer. It might have been an initiative encouraged, or even demanded, by somebody else; nonetheless, as between the parties, it was a termination at the initiative of the employer. The termination was certainly not at Mr Chen's initiative. For these reasons, the application for review must be dismissed. Despite my sympathy with Mr Chen's position, I am bound to give effect to the terms of the Act. I cannot allow my personal feelings to interfere with the order I make. Accordingly, I order that the application for review be dismissed. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Chief Justice Wilcox. Associate: Dated: 9 April 1997 APPEARANCES The Applicant appeared in person Counsel for the Respondent: J Robichand Solicitors for the Respondent: Printing Industries Association Date of hearing: 9 April 1997