Huang v Kelso Builders Supplies [2004] NSWIRComm 1115

Industrial Relations Commission of New South Wales

CITATION: Huang v Kelso Builders Supplies [2004] NSWIRComm 1115 APPLICANT PARTIES: Wei Hua Huang RESPONDENT Kelso Builders Supplies Pty Ltd FILE NUMBER: IRC 3607 of 2004 CORAM: McLeay C CATCHWORDS: unfair dismissal - termination of employment - truck driver - underpayment claim - difficulties with English language - overtime pay - constructive dismissal - problems with work performance - orders made. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 10/28/2004 DECISION DATE: 11/19/2004 APPLICANT Applicant appeared in person

REPRESENTATIVES: RESPONDENT Mr M Friggieri, General Manager

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 19 November 2004

Matter No IRC 3607 of 2004

Wei Hua Huang and Kelso Builders Supplies Pty Ltd Application by Wei Hua Huang re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION [2004] NSWIRComm 1115 1 This is an application by Wei Hua Huang ("the applicant") for unfair dismissal against Kelso Builders Supplies Pty Ltd ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr Huang was dismissed from the position of truck driver on 28 May 2004. The applicant had been employed by the respondent since 7 October 2003. 2 The matter was set down for conciliation on 13 July. When the matter was not resolved by conciliation, directions were issued regarding the filing and serving of witness statements. The matter was listed for hearing on 28 October 2004. 3 At the hearing, the applicant was self-represented and gave evidence on his own account. He was assisted by a court-appointed interpreter. The respondent was represented by Mr Mario Friggieri, the General Manager of the respondent, who called evidence from Mr Michael Ovchinnikov, Managing Director and Mr Raj Govender, Senior Sales Consultant. He also provided a witness statement from Ms Nina Erzikoff, Administration Manager. THE CASE FOR THE APPLICANT 4 Mr Huang submitted that he had not resigned on 27 May, as alleged by the respondent's witnesses, but had been dismissed on 28 May. He said there were many untruths in the written witness statements. He said Ms Erzikoff's statement was untrue. Mr Huang said he had attempted to get paid overtime and a week's pay in lieu of notice, and sought an order for compensation for the unfairness of his dismissal. 5 Because he had had an accident requiring attention to his finger and two days off work, Mr Huang believed that his dismissal was a result of his absence. 6 Mr Huang submitted that his time and energy had been wasted at the hearing. He said he had continuing difficulties because English was not his first language. THE CASE FOR THE RESPONDENT 7 Mr Friggieri submitted that Mr Huang had resigned at a meeting with Mr Ovchinnikov on the afternoon of 27 May. Mr Friggieri said that Mr Huang had been applying for positions elsewhere prior to the termination of his employment with the respondent. The respondent had offered Mr Huang advice on a range of issues such as the award coverage of his position, but Mr Huang had not heeded that advice. 8 Mr Friggieri submitted that Mr Huang's difficulties in communication were affected more by his stubbornness than his lack of command of English. There was no case to answer, supported by the fact that the union, which had offered assistance to Mr Huang on an early occasion and had a duty to support its members, did not attend the hearing. 9 Mr Huang's testimony was inconsistent, said Mr Friggieri, yet he continued to accuse others of lying. These were not valid accusations, said Mr Friggieri. 10 The respondent sought costs, based on the claim that the application was frivolous or vexatious. Mr Friggieri submitted that the application should not have been filed. He said the applicant had full knowledge of the circumstances of his resignation and had misused the Commission to try to achieve an additional payment from the respondent, to which he was not entitled. CONSIDERATION 11 Any difficulties with the English language that Mr Huang may have experienced received the attention of the Commission by the provision of an interpreter, both during conciliation proceedings and throughout the hearing. At times, Mr Huang chose to speak in English. 12 Throughout the hearing, Mr Huang accused the respondent's witnesses of lying, but there was nothing in their evidence, either in content or style, to suggest that they were not truthful witnesses. 13 I am satisfied that Mr Huang's absence due to his finger injury was not the cause of his dismissal. The respondent's concerns about his work performance and the applicant's concerns about payment were the immediate factors leading to the termination of the employment relationship. 14 In final submissions, Mr Friggieri raised the issue of Mr Huang applying for positions elsewhere. As this was not raised in evidence, I will ignore it. He also raised the issue of the union's non-attendance at the hearing, without having dealt with this question in evidence. Again, I will not take this issue into account in determining the outcome of the proceedings when it has not been raised in evidence. 15 As to the events preceding the termination of the applicant's employment, I am satisfied that Mr Huang had asked for payment for working overtime, and this request had been refused. Each month or so Mr Huang asked again for what he believed was the correct pay. In doing so he bothered the office staff to the extent that they had complained about his conduct. The evidence showed that the respondent had challenged Mr Huang in regard to the amount of time he took to do his runs. He was not paid for the hours he worked because Mr Ovchinnikov thought he was wasting time, unreasonably taking too long to do his runs. Mr Ovchinnikov agreed to pay for four hours overtime per week only, regardless of the time Mr Huang returned from his deliveries. 16 On 27 May Mr Huang said he went into Mr Ovchinnikov's upstairs office and demanded his overtime pay, threatening to go to the union or the Industrial Relations Commission. Other witnesses said the office was downstairs, opposite the lunch room. Mr Huang denied that Mr Ovchinnikov said he had taken too long on certain runs. Mr Huang also denied that he had said words to the effect: "I will leave. I don't want this job."