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." 17 As it turned out, Mr Friggieri conceded that Mr Huang had been owed an amount of $562.20 net overtime pay. Mr Friggieri had been convinced of this after discussion with a Transport Workers Union official and reluctantly made the payment. The earlier refusal to pay for all the overtime worked was unlawful. It was understandable that Mr Huang was upset when he was initially told that he would not receive payment for overtime beyond four hours per week. 18 Over a period of some time, Mr Huang had been claiming that he was being paid under the wrong award. I am satisfied that the appropriate award is the Transport Industry Retail (State) Award, as submitted by Mr Friggieri. During the process of negotiation between the parties after the employment had been terminated, Mr Friggieri had discovered a previous overpayment to the applicant, and deducted this amount from the payment finally made for overtime. The result was that the amount paid to Mr Huang was reduced to $76. Mr Friggieri expressed his frustration in dealing with Mr Huang throughout the entire process of employment and post-employment negotiations, particularly because of Mr Huang's insistence about certain matters in spite of evidence to the contrary. 19 I am satisfied on the evidence of the respondent's witnesses that Mr Huang used words similar to those quoted by Mr Ovchinnikov, and by Mr Govender who overheard the conversation, to the effect that he was leaving the job, demanding that he be paid his money. However, considering that he had been repeatedly refused payment that he was entitled to receive, I find that the termination was by way of a constructive dismissal. It was harsh to deny him payment to which he was entitled. It was unreasonable to expect him to work under conditions amounting to somewhat less than what was set out in the award. The particular problems faced by the respondent in regard to Mr Huang's work performance should have been dealt with by other, more appropriate, methods, rather than by a refusal to pay. 20 I note the evidence in regard to late deliveries, upsetting customers and bringing goods back undelivered. It is clear to me, on the face of the evidence, that Mr Huang deserved to be disciplined. I accept the evidence that the respondent's delivery methods and expectations were reasonable. The respondent's view was clearly stated in the correspondence from Mr Friggieri to Mr Huang on 24 June: You were not sacked, you certainly should have been... 21 During a telephone conversation between Mr Huang and Mr Friggieri after the termination of the employment relationship, Mr Huang had asked to see his time cards. Mr Friggieri demanded payment of $200 to cover his costs if he was to provide them to Mr Huang. Again, I accept this requirement to cover costs as an indication of Mr Friggieri's frustration at the continued demands made by Mr Huang and the disruption caused to the workplaces by those demands, which Mr Friggieri considered to be excessive. It is not surprising that both parties were upset, Mr Huang because he believed he was not correctly paid, and Mr Friggieri because he believed that all correct payments had been made. 22 Having studied all of the evidence before me, I have formed the view that Mr Huang's demands were excessive. He had harassed the administrative staff unfairly. He had not accepted that he was being paid under the correct award. In addition, there were problems with his work performance which he had not rectified. He was frequently late; he had told a client to help himself to goods from the truck; he had returned to the depot with undelivered goods. In evidence he offered excuses which proved to be unfounded, such as inadequate labelling of goods for delivery, or he denied behaviour such as yelling at the administrative staff. These excuses and denials proved, on the evidence, to be unfounded. Mr Huang showed no signs of improving or any willingness to accept responsibility for his performance. 23 The respondent, through Mr Ovchinnikov, attempted to deal with the major problem of time taken to do a run by limiting the amount of overtime paid each week. Having discovered that this course of action was not available, I strongly suspect that moves would have been taken leading to the termination of the applicant's employment within a short period. In other words, there is no reason to believe that Mr Huang would have performed differently if his employment had not been terminated in May, and there is every reason to believe that it would have been terminated shortly thereafter. CONCLUSION 24 I find that the termination of the applicant's employment was a constructive dismissal, that is, the applicant had no choice but to resign when the respondent refused to pay him money that was due to him under the Transport Industry Retail (State) Award. I am satisfied that the constructive dismissal was harsh and unjust. 25 It follows from this decision that the respondent's application for costs must fail. 26 In determining an order for compensation, I have considered all of the evidence before me. I have formed the view that, if the issue of payment had been resolved, the applicant could then have been dismissed on the grounds of his poor work performance. I note that Mr Huang continued to argue throughout the proceedings that the witnesses were lying about a whole range of matters, and that he was being paid under the wrong award. I do not accept that he would have settled into a pattern of satisfactory work performance just because the overtime issue was resolved. 27 The intervention by the union occurred within a week of the termination, when the respondent acknowledged he owed money and made an offer of payment to Mr Huang. A dismissal could have occurred shortly thereafter on the grounds of Mr Huang's continuing inappropriate conduct and poor performance. 28 Accordingly, I make the following orders. ORDERS 1. I order the respondent to pay to Wei Hua Huang an amount of $1260, being 2 weeks' wages at the rate of $630. 2. The amount of compensation specified in order 1 is to be paid by the respondent within 21 days of the date that these orders take effect. 3. These orders take effect from today, 19 November 2004. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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