Industrial Relations Commission of New South Wales CITATION: Qian v Daum Consulting and Professional Pty Limited [2005] NSWIRComm 1043 APPLICANT Zheng Qian PARTIES: RESPONDENT Daum Consulting and Professional Pty Limited FILE NUMBER(S): 880 of 2004 CORAM: Murphy C CATCHWORDS: Termination of Employment - applicant unfairly dismissed following altercation over respondent's attempt to unilaterally alter contract - new draft contract reduced wage component by 50% to $300 per week - walkout by applicant not abandonment of employment CASES CITED: Bega Valley Council v Allison, 63IR68 HEARING DATES: 09/03/2004; 02/13/2004; 02/07/2005 EXTEMPORE JUDGMENT DATE : 03/24/2005 APPLICANT Mr Qian represented himself in person LEGAL REPRESENTATIVES: RESPONDENT Mr K Rhee, consultant for respondent Mr R Ahn appeared as agent DECISION: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES MURPHY C Date of Issue: 24th March, 2005. Matter No IRC 880 of 2004 ZHENG QIAN AND DAUM CONSULTING AND PROFESSIONAL PTY LIMITED Application by Zheng Qian re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION EXTEMPORE 1 The applicant, Mr Qian, was employed with the organisation from 24 February '03 until his dismissal on what his applicant form says was 30 January '04, although the actual question and date of his alleged dismissal was something to be determined by the Commission here today. 2 This matter was the subject of conciliation on 29 March 2004, and 27 April 2004. A report back was to be scheduled for 28 May 2004 but was vacated as the respondent was overseas. On 25 June again a report back was vacated for reasons not quite apparent. 3 On 15 July a report back and directions proceeding was conducted where the matter was listed for hearing 3 September. It became necessary to list it for further hearing on 13 December, 2004, being the Commission's first available date at the time, followed by the completion of evidence and submissions on 7th February, 2005. That decision is now released with minor changes and additions, together with a postscript as to orders handed down. 4 The business of the respondent was the selling of commercial businesses. The applicant's position was a business trading and marketing consultant within the company. 5 The case was conducted with evidence from the applicant himself and the respondent's case involved evidence from the principal of the company, Mr Sang Ahn. Also giving evidence for the respondent was Ms Claudia Wong, an administrative officer. The applicant's alleged abandonment of employment most likely took place on or around 21 January, 2004. On the day before, the applicant was given a document which he described as new contract, which he contended had the effect of reducing his income by some 50 per cent, by introducing a largely commission-based component in lieu of the salary of $600 which he had enjoyed up to that time. 6 The respondent challenged that the new draft remuneration proposal was a new contract and the respondent's case centred upon the new document being merely a point of discussion for "amendment and possible implementation". Other evidence of the respondent was that "the new business plan", as he called it, involving the commission based incentive scheme, was never brought into effect with anyone else. 7 The applicant gave important evidence that the reason for his dismissal and the sharp disagreement with Mr Ahn the day after, on 21 January was the attempt by Mr Ahn to unilaterally alter his contract and that he was firstly discriminated against in respect of the other consultant Mr Kwan, who had been given the option of accepting the new scheme or could continue his old wage. No such option was given to the applicant, according to him. 8 It was that lack of options given to him, plus the important aspect of having some 50 per cent of his earnings stripped out of his normal wage, which gave rise to his statement, "You should pay me my wages or sack me". According to the respondent it was on those words that the applicant left the premises. 9 The applicant did not report for work the next day. According to the applicant, he advised the respondent upon his departure that he felt unwell and his intention was to go to the doctor. The doctor's certificate was provided and was attached to the applicant's statement covering that particular day. 10 On the 22nd at 8.22pm the applicant claimed that Ms Claudia Wong on behalf of the respondent, who was the administrative officer of the company, for want of a better description, had rung him to tell him he was terminated and there was no need for him to appear for work the next day. So, according to Mr Qian, on 23 January the applicant arrived at work to find that his belongings had been shifted from their usual place and documents were missing, which reinforced that he had been dismissed. 11 The respondent's version of that, given in evidence, was that it was necessary to tidy up the mess left by the applicant on that particular day, which gave the impression of his personal belongings being rifled. 12 The applicant gave important evidence that, at an arranged subsequent meeting 23 January with the respondent at a hotel, the respondent attempted to have him resign. Some further days later, being 27 January, according to the applicant, he was told by the respondent that if he resigned he would receive the full four weeks notice payment, as provided from his unsigned contract, which Mr Qian claimed on that basis was an entitlement already provided for in his contract. 13 I should mention that the contract was never signed by the parties and this is a point of contention. The applicant maintaining that, when there was a change of salary negotiated upon his recruitment, there was a promise to have a new contract to be rewritten which never eventuated with the words of the respondent, "We are Asians" and words to the effect - trust me. 14 There is no doubt that the applicant was not paid that or any other notice period. And indeed it took some considerable time for the applicant to receive even his statutory entitlements' of wages to date of finishing up and accumulated annual leave. The applicant apparently was paid some of those monies only at the insistence of his legal representative at the conciliation phase, Employment Help Lawyers. That happened some time in May and the respondent's evidence was that that cheque was not cashed until July. 15 So the applicant's reading of the situation following what I can at least call a walk-out on 21 January was that there was an attempt very quickly then to show that he resigned, but later, curiously, that he was summarily dismissed. Indeed it seems to some extent by the respondent's correspondence in the days following to Mr Qian that there was an attempt by the respondent to have a bet each way, so to speak. These three letters that the applicant referred to in his evidence were attached to his affidavit, exhibit 1, as reproduced as follows: Resignation of Employment "We assume from your behaviour on Wednesday 21 January that you've resigned your employment as business trading co-ordinator at Daum Consulting and Professional". It goes on to say: "If you hand in your resignation in writing effective from Wednesday 21st together with the return of all confidential documents, work you have done in the company, cheque payment will be made to you as follows: wages up to Wednesday 21 January, one week's severance and payment of unused annual leave of 6.3 days. We wish you the best in the future". 16 The Commission is mindful then that the components included in that letter included elements which the respondent had a duty to ensure were paid to the applicant without further ado. It should not have been conditional. Even if withheld because of abandonment, there was still considerable delay, as I already mentioned, in the payments. Such breaches never reflect well on a respondent in these proceedings, especially where there is a failure to ever actually acknowledge a liability. 17 Sequentially, there comes another very different letter, that is the next day, 29 January, 2004: Summary Dismissal : "Dear Michael, Daum Consulting and Professionals formally advise your summary dismissal on Wednesday 21 January '04 due to the following two reasons: (1) failure to provide faithful service; (2) incompetence. You are officially notified to return all work and confidential documents belonging to Daum Consulting and Professionals within 48 hours. In your summary dismissal a payment will be made to you as follows, upon return of all works and confidential documents: wages up to 21 January '04, one week's severance payment, payment of unused annual leave of 6.3 days. Should you fail to bring all the work and confidential documents back we will take immediate legal action against you". 18 The third of these documents is the next day again, 30 January, 2004: Termination of Employment : "Dear Michael, This is an official letter from Daum Consulting and Professionals to advise you your employment at Daum Consulting and Professionals is terminated on Friday, 30 January '04. As given, a one-week notice on the previous Friday, 23 January '04. The reasons for the termination are as follows: neglect of duty, incompetence, failure to provide faithful service. As notified to you in the fax sent on 29 January, you are to return all working confidential documents including information of three businesses for sale belonging to Daum Consulting and Professionals within forty-eight hours and collect your cheque payment for two weeks' salary, one week's severance pay. I have given you warm consideration in forms of termination of your employment from our discussion on when on Friday, 23 January '04 as one of my university colleague. But your actions of playing with me have made me really disappointed. Anyway, good luck. Ricky Ahn." 19 So, taken at its face, those contrasting termination documents from the respondent are fairly damaging, to the respondent's claim that the applicant abandoned his employment, albeit that there is reference in the first letter to the applicant's conduct on the 21st in walking out. The Commission has heard that the respondent had early legal advice from a solicitor by the name of Mr Geddes but there seems to be some confusion in the actions of the respondent, possibly arising therefrom. 20 Not entirely explained, and certainly not convincingly through the evidence of Mr Ahn, was the notion mentioned in that last letter and in evidence, that he was attempting to bring about a less painful exit of the applicant from his employment, one which would maximise his chances of re-employment. That claim has also to be seen in the light of benefit to the respondent from obtaining a formal resignation from Mr Qian. 21 I will now return to the theme as to whether the applicant abandoned his employment or whether he was dismissed at a later stage, but firstly to deal with the outline of the applicant's evidence. 22 The applicant, in his evidence-in-chief and rebuttal statement to the Commission, (supported by his oral evidence and cross-examination), gave some exacting details of conversations with the respondent; he denied that his performance was less than average and he complained there were no guidelines and advices and warnings given to him. He talked about the company cash flow and questioned the legality of the conduct of the business by Mr Ahn - claiming throughout that Mr Ahn, as the principal of the company was operating without a licence as a business agent or certificate of registration - a point stoutly resisted in these proceedings by Mr Ahn. 23 Mr Qian dealt with what he described as the threat to him to resign. He complained that the respondent did not want to give him one month notice as provided for in his contract or payment in lieu; again, that issue was resisted by Mr Ahn. The reasons produced for his dismissal in the summary dismissal letter were challenged by the applicant, he goes on then to make the point about discrimination, as he called it, suffered by him when the respondent in the person of Mr Ahn approached Mr Fred Kwan and offered that other employee the option to remain on his existing arrangement or alternatively to shift to the proposed largely commission-based arrangement also put to Mr Qian. 24 The applicant complained that the respondent had not paid his superannuation; complained that the deal finally struck, to pay him two weeks' wages in lieu of notice had been delayed four different times and made the same complaint made by the respondent, mentioned earlier, towards him - that he had been "played with" in the few days following termination. 25 He also complained that there were misleading and dishonest submissions from the respondent, particularly that related to his performance. 26 The applicant throughout the case devoted some effort going to the issue of whether or not Mr Ahn had breached relevant laws and regulations in respect of carrying on activities for the sale of business without a licence. He repeated that no written or verbal warnings were ever given to him about his performance. In addition to his superannuation not being paid, he emphasised the delay in paying his outstanding wages for some three and one-half months after his dismissal. 27 Regular late payment of wages was an issue also raised in the applicant's evidence although disputed by Mr Ahn. Some particulars were given of specific sales that he was involved in, but the Commission does not intend to deal with any detail on that. 28 He gave a chronology of events following his dismissal from the respondent and the faxes sent to Mr Ahn, and the fact that he, despite reminders to Mr Ahn, had still not received the promised cheques for some months after cessation of employment. 29 He then reverts back to the original chronology of his employment, commencing on 24 February and having left other employment to join the respondent. He completed three months probation on 24 May and this became a point of contention later in his submissions, that if he had been a poor performer the opportunity was there for the respondent to dismiss him during that stage, with impunity. 30 He goes on then with the crucial meeting of 16 January where the respondent claimed that he warned the applicant, but where the applicant, maintained in contrast that he was told by Mr Ahn that he was going to recruit a several junior business co-ordinators, who will be led by Mr Quin and another business co-ordinator, the so-named Mr Fred Kwan. He was asked to make an appropriate business plan over the following weekend, to be used as a guideline for those junior co-ordinators. He questioned the respondent at the time why Mr Kwan was not asked to do a similar business plan. On Monday the nineteenth, the applicant submitted a business plan to Mr Ahn which is attached to his statement. This was attached to his statement. 31 On the twentieth, that is the next day, Tuesday the twentieth, his evidence was that that morning he was given the new wage scheme by Mr Ahn (referred to earlier), said to be replacing his current wage payments of $600 p.w. plus commission. (with 50% reduced wages component). In the afternoon Mr Ahn gave him a modified version of that plan which had simply increased the component commission from 0.1 per cent of the morning plan to 0.5 per cent. This is referred to hereafter as the, 'Business Trading Employee Incentive Scheme' or 'Employee Incentive Scheme'. 32 The next day on 21 January there was a morning meeting. Mr Ahn clearly confirmed he was going to use the said Employee Incentive Scheme with the new $300 wage component very soon. 33 The applicant gave evidence of being "pissed off" by the discrimination shown towards him as compared with Mr Kwan (who was simply offered the option of retaining his existing scheme), again reiterating that it would have, resulted in a 50 per cent loss of his salary. According to him, the respondent at that point shouted to him: "Investment time is over. We need to get money back. If you think you can get $600 a week for your performance, you can go. I am not going to invest in you any more." 34 The applicant defended his position saying that he would had been satisfied with his own performance and turning the argument back on Mr Ahn by referring to Mr Ahn's own performance. According to the applicant's evidence, it was then that he finally said, "I feel unwell, I'd like to take a day off." He then left the office and faxed the doctor's certificate in the evening, which was attached to his application. 35 On 22 January, at 8.22 and as already mentioned, Ms Claudia Wong rang the applicant to inform him his employment was terminated. He asked for Mr Ahn to give him a call, and a formal letter of termination, instead of her verbal advice, no response was received from Mr Ahn. So the next morning, Friday 23 January, the applicant fronted to the office. It was there that he says he found his personal belongings missing and his work items also missing, which apparently confirmed for him that he had been dismissed. 36 Ms Wong informed him that Mr Ahn had taken those items. The two gentlemen then proceeded that morning to discuss the situation in the lobby of the Avillion Hotel where they met between approximately between 10.20 and 12pm. The applicant says that he was threatened by the respondent with having millions of dollars to spend on hiring the best barrister to defend the dismissal. It was an attempt to make him resign. Mr Quin rejected the proposal, he was then told he would get compensation and be given a reference if his resignation was forthcoming. He said he would be having a meeting with him the next Tuesday. 37 The applicant asked to be paid for Tuesday 22 January; there is a discussion with Mr Ahn again in the lobby of the Avillion Hotel, the next morning also and again the question of resignation was raised by the respondent, an offer of two weeks wages was made, but there was no offer to pay the unused accumulated annual leave and the applicant claimed a breach of employment law in these offers. There was a promise later in the day by telephone to conclude the matter on that basis. 38 The applicant believed he had his time wasted by the respondent. On 28 January, there was another promise by telephone from Mr Ahn to finalise matters. On 29 January, the applicant received the summary dismissal fax, as already described. On 29 January, the applicant received another termination letter which is again referred to earlier. The applicant says he returned the work items to Mr Ahn but did not receive the promised cheque but was told the superannuation would be rectified. 39 On 20 February, he briefed his then representative, Employment Help Lawyers, Mr Boghossian. The first conciliation conference was conducted before the Commission on 29 March, 2004. 40 In his evidence the applicant again attacked the performance of Mr Ahn himself as a reason for the poor performance of the sale of businesses and provided a scale of the ratio as to sales versus recruitment, which showed his performance being superior to that of the other consultant Mr Kwan, and a very poor showing from Mr Ahn's own performance, according to the applicant. Mr Quin claimed the real reasons for his dismissal were; along with the loss of money in the business; embarrassment caused by the applicant pointing out the alleged illegal business activity of the respondent operating without a licence; and the desire for the respondent not to pay commission due to the applicant at that stage; but the primary cause evident in this case for the applicant's walking out of the organisation on the twenty-first was to do with the proposed reduction of his earnings by some 50 per cent via the new "Employee Incentive Scheme" arrangement sought to be imposed by the respondent and leading to the applicant's walkout on 21st January, 2004. CONSIDERATION 41 Much of the time of this Commission was taken up by subsidiary issues, the applicant likewise raised a lot of matters which, whilst not irrelevant to the case, were certainly not central to it. There was a lot of time devoted to allegations such as the non-payment of the applicant's entitlements and the alleged illegal activity of the respondent in operating without a licence. The last issue was quite frankly, too difficult for the Commission to come to a concluded view, given the disagreement and the counter-evidence from the respondent. 42 Attached to the applicant's written statement, apart from the dismissal letters, were copies of the two incentive schemes put to him on 20th January, 2004, referred to earlier, which provided for a base salary of $300 a week which was indeed appeared as 50 per cent of his $600 wage at the time. That attachment was not separately numbered in the attachments to the written statement but under the heading, 'Business Trading Employment Incentive Scheme' as already mentioned. There are two of those consistent with the applicant's earlier submission, and show the increase in the commission structure from 0.1 per cent to 0.5 per cent as claimed. 43 According to the respondent, on 4 February there was a termination payment offered with a covering letter for the amount of $2,035, representing two weeks salary owed to the applicant up to 23 January, one weeks severance payment and 6.3 days unused annual leave. However, the respondent has asked the Commission to accept that the cheque went missing in the mail and hence payment did not occur until May and then not finally only cashed in by the applicant in July. 44 There has been a lot of material provided also by the respondent in evidence largely included in Exhibit 4. 45 The applicant's affidavit being included in Exhibit 1, followed by a rebuttal statement, Exhibit 2, and also in his application which is marked Exhibit 3. 46 To deal now with the respondent's case, the respondent gave testimony that Mr Qian's tactics were to manipulate the Commission's perception by false accusations against Mr Ahn, adding creative statements in manipulation of the time sequence of events. 47 Mr Ahn turned to the meeting held on 21 January and maintained that the main purpose in that meeting was to discuss Mr Qian's neglect of duty, incompetence and poor performance and to give him a verbal warning on his neglect of duties. Mr Qian ignored that warning. In his statement Mr Ahn claimed, "I asked him to provide an opportunity to rethink his poor performance, his neglect of duty and incompetence, and to improve his performance by submitting a utilising plan". It was later claimed by the respondent that earlier on 16 January that warning had been given, that the applicant instead had provided an inadequate unsatisfactory utilising plan (the next Monday 19th January) which is also attached to the respondent's statement as Attachment 1. The applicant's plan was contained under the headings of 'What to Recruit,' 'Where to Recruit,' 'When to Recruit,' 'Whom to Speak to,' 'How to Recruit,' 'Essentials to Good Business' and then 'Business Sale,' 'More Advertisements,' 'Updated internet,' 'Accessible Information,' 'Network with Other Agents' and Sales Force'. That draft plan was deemed unsatisfactory by the respondent and hence there were further conferences on 20th January followed by 21st January. 48 At that meeting which was on 21 January, the respondent maintained that Ms Claudia Wong had provided a special monitoring system. Mr Ahn contended that it was discussed, but what should have been discussed with the applicant was Mr Qian's poor performance. Instead, "he did not admit his poor performance, only complained about his wages". Mr Qian "blamed others" to justify his poor performance, expressed no intention to work hard or to improve his performance. 49 Mr Qian walked away during the meeting with offensive behaviour and said, "You should fire me or else you have to pay my wages," and left the meeting. "Mr Qian abandoned his opportunity as well as his position", according to the respondent's version of that meeting on 21st January, 2004. 50 Mr Ahn repeated that the applicant had said, "'You should fire me or else you give me, pay me my wages, that's what exactly what Mr Qian said before he walked away during the meeting and abandoned his position." 51 It is the main reason for the issue of the summary dismissal according to Mr Ahn. He also claimed significantly that after the issue of the summary dismissal he discussed with Mr Qian, several forms of termination again. 52 This has already been alluded to as being the discussions in the hotel lobby. The respondent also claimed that the applicant was playing games in those subsequent discussions over succeeding days. 53 The respondent claimed that the applicant received supervision on a regular basis from Ms Claudia Wong, but that Ms Wong had advised him that he was ignoring her advice as on communication skills, including following up on vendor's and a more aggressive approach in finding new vendors. Mr Qian's poor performance had shown no evidence of applying any of the advice as given by the supervisor. 54 He denied the issue of the poor cash performance of the business as a motive for the applicant's dismissal. He denied operating without a licence, maintaining that he was incorporated with another licensed agent for the conduct of business activity, which was quite legitimate. He again maintained the intention of the meeting on 21 January, was not so much to discuss the new incentives, but to get Mr Qian to seriously deal with his poor performance. Before that meeting the applicant had been given a verbal warning for neglect of duty, which was ignored and apparently that was the reference to the16 January alleged warning. 55 The respondent testified of being frustrated at what was happening and again reiterated that the applicant had abandoned his employment by the walk-out. 56 Attached to the respondent's statement is also a notice of poor performance, which is a letter allegedly composed to the applicant on 21 January, the same date as that meeting, which was to be handed to him. According to the respondent, he was unable to provide the notice to Mr Qian before the abrupt ending of the meeting and goes on to say the new incentive scheme, as commented upon earlier, was only secondary to the main purpose of the meetings proposed and had never been executed. 57 He denied the reasons for dismissal put forward by the applicant. He denied that there was a new employment agreement as such given to the applicant, but merely a new incentive scheme for discussion on his poor performance which was a performance-based system. The aim being to focus the applicant upon his duties and responsibilities. He went on to explain the delay in payment to the applicant's entitlements. 58 He claims that the applicant falsely denied his neglect of duty by lying about his lateness, his knowledge of the requirements of his position, his efforts carrying out his duty properly, denied incompetence, and manipulated false comparison of his performance with fellow employee as well as portraying an unachievable situation. He denied his unfaithful service, shifting the blame to Mr Ahn himself without evidence, and thereby manipulated a dishonest perception of Mr Ahn. 59 The applicant, according to Mr Ahn, fabricated the financial status of the company, fabricated false record of conversations, manipulated a time sequence, accused the company of carrying out illegal activities. He denied discrimination towards the applicant in comparison of Mr Kwan. He denied again that there was any breach of the licensing provisions. He believed the superannuation issue was irrelevant as the company handles its superannuation directly with the ATO. 60 He then went on to explain the delayed payments. On another area of the applicant's evidence he dealt with the so-called commission in the sale of the Scenario Café; denying those contentions of the applicant, and also denying that expenses were withheld from the applicant in his pursuit of his duties. He denied the issue of the original contract being defective and the alleged promise to come up with another contract. Much of Mr Ahn's contentions were repeated in both his statement and oral evidence. 61 Mr Ahn referred to the evidence of Ms Wong, present in the office at the time and denied shouting at the applicant and some of the statements attributed to him by the applicant at losing his temper. Again, Mr Ahn emphasised that the applicant had showed no intention to improve his performance, walked out of the office, abandoning his employment. He goes on in his statement to deal with the neglect of duty; talked about the statement of Ms Wong and Mr Kwan; though Mr Kwan of course was not called finally; referred to Mr Qian's lateness, claiming that Ms Wong had mentioned to the applicant but also that the employer had never received a phone call in respect of that alleged lateness. 62 Mr Ahn went on to particularise issues such as promotional materials not being handled well by the applicant and denied there was no specific requirements for measurable conduct and contested the sales claimed by the applicant. 63 As commented upon earlier, there were many secondary relied upon, such as withholding of entitlements as a bargaining tool, which were considered by me, but otherwise issues such as the sale of businesses and the operating without a licence issue raised by the applicant, were not able to be accurately determined by me on the available concrete evidence. 64 I have taken account of the denials of both sides, particularly those of the respondent from the allegations of the applicant towards him and again, many of these, such as rifling his desk next day of his dismissal whilst I can accept that there were documents removed, that action of the respondent proves very little and the particularity of what documents may have been removed is not something I am able to deal with. Similarly, the sale of the Scenario Café could not be dealt with; nor the question of expenses. 65 So Mr Ahn's own performance is likewise an issue I am not able to deal with accurately, given the evidence available because of the conflict between the parties and I must say the lack of concrete evidence by the applicant as to such matters. 66 There was no real and convincing evidence of any proper warnings, although he may have been chided as to his lateness by Ms Wong. Some Questions for Determination: 67 In the consideration of this matter, the Commission has had to deal with a myriad of conflicting points of evidence. So the credit of the witnesses was of course like in most cases, paramount. 68 The questions for the Commission included; firstly - did the applicant abandon his employment on the twenty-first? If so, I must say, it is not quite the end of the matter, because the next matter for consideration was - Did that abandonment amount to a resignation which could be classified as a constructive dismissal, the initiative for such so-called resignation arising from the actions of Mr Ahn i.e., perhaps being the result of the employer's action in seeking to institute a new remuneration package with a new commission structure which could have diabolical results to the applicant's take-home pay? 69 Another question was whether the respondent's case that the applicant walked out during a reasonable attempt to warn him is correct or a convenient subterfuge to hide the fact that the applicant's understandable reaction to an attempt to unilaterally alter his contract. 70 The Commission has looked at the effect of the three letters following dismissal earlier outlined, one of which is described as Resignation of Employment; another headed Summary Dismissal and the other as Termination of Employment. 71 In considering the issue of abandoned employment, again the credibility of the parties is important as to whether or not the applicant actually said that he needed to go to the doctor which he did, which would indicate a lack of intention to abandon his employment. CONCLUSIONS : 72 My findings in this matter firstly go to credit. 73 Mr Qian provided an extremely plausible record of crucial conversations, on the 21 January in particular, but also in the surrounding detail that he provided in subsequent and preceding events. He was especially convincing as to the conversation leading to his leaving the office claiming illness bought on by the stress of the negative conversation about his future remuneration 74 By comparison, Mr Ahn's account, whilst also extremely broad ranging - was somewhat less exact, as also was Ms Wong's account. A host of matters (although many fairly insignificant) raised by Mr Quinn were either ignored or not denied. Both gave evidence of the discussion which conflicted with the applicant's. They asked the Commission to believe that the conversation in respect of performance, rather than the radical new incentive scheme would be sufficient for the applicant to become abusive and finally walking out with the intention of abandoning his employment. I found this to be unlikely, which was a fundamental flaw in the respondent's case. 75 The central tenet of Mr Qian's case was that he was given no option by Mr Ahn, contrary to the same discussion held with Mr Kwan and overheard by Mr Qian, which would effectively mean the loss of a significant area of Mr Qian wage component - being reduced to some $300 in lieu of $600 in favour of a dubious commission arrangement. Mr Ahn did not directly deny the offer put to the applicant, but did so indirectly; likewise, Ms Wong, only indirectly, challenged the applicant on that point. Neither did they adequately refute the evidence provided by the applicant of the two business plan documents related to the proposed Employee Incentive Scheme attached to the applicant's statement as described earlier. 76 The key element indicating to me that the applicant's wages were to be significantly reduced, if not largely substituted for a doubtful commission, was that both Mr Ahn and Ms Wong acknowledged that he had said, "You should pay me my wages or sack me. 77 Ms Wong, in another document appeared to contradict herself, giving a slightly different version of the abovementioned words, "You should pay me my wages or dismiss me." It has led to the question as to whether she sought to alter the record in one of her documents to the advantage of the respondent. It was acknowledged by Mr Ahn and then accordingly in only one instance at least by Ms Wong that the words, "You should pay me my wages or sack me," was used 78 Accordingly, I accept that the applicant was entitled to be adversely affected by the radical reduction in his earnings as proposed by the respondent. Mr Qian's virulent reaction to that is understandable and a far more explicable reason for his walkout on 21st January, 2004, than that contended by the respondent. It's difficult to accept that he could earlier on in the relationship accept the observations of Ms Wong in the appraisals, which were attached to exhibit 4 in these proceedings and yet, according to the respondent on this occasion, to explode and become abusive and leave - absent the element of the severe reduction in salary as maintained by him. 79 All of that was clearly indicative that the applicant had become upset and left because of his wage being reduced significantly as proposed. That is a fairly important issue for the Commission, which oversights on some occasions issues such as the incorrect payment of wages, the breaches of awards, along with the general alleged unfair treatment of employees by employers. That proposed reduction could hardly be fair, even in the absence of evidence of particular award provisions which might govern the applicant's employment. 80 I have not accepted that the applicant was warned prior to the meeting on 21 January, on 16 January or on any other date prior to the meeting of 21st January, which began really on 20 January. The alleged written warning on 21 January, which was to be handed to the applicant was likely drafted after the event. It is curious that there was no reference to any earlier conversation in that letter. This was a further indication of the lack of credit from the respondent to me. Given my preference for the applicant's credibility, I have also accepted that he was treated differently to Mr Kwan, the co-worker, who was to retain his full wage. 81 In arriving at that finding, I have also found Ms Wong's evidence could not be described as independent. And this was confirmed by me in the style in which she gave her evidence which appeared to be not so much self-serving as adding a gloss to the respondent's case. Her reference to the applicant being late every day, quickly changed to nearly every day, was unconvincing, as was the reference to ten to 20 minutes late every morning in the so-called warning letter of 21 January. 82 The importance of these specific credit findings of course is that it affected my appreciation of the overall credibility of the respondent as opposed to the applicant. There was certainly no evidence of the applicant being warned about lateness by Mr Ahn in Mr Ahn's own evidence but it was suggested by Ms Wong that she had asked the respondent to warn him. The applicant of course acknowledged being late on some occasions but nowhere near the extent maintained by the respondent. His account was more believable - otherwise warnings would have been much more stringent and believable as true warnings. 83 The failure to pay the wages and the attempt by the respondent to justify why there was such a huge delay in his entitlements only again affected my appreciation of the respondent's credibility. There is no doubt in my mind that there was a deliberate withholding of statutory entitlements and that did not auger well for the respondent's conduct of this case and showed a meanness consistent with the applicant's contention that his wage component was to be reduced 50% with no option, and was generally, especially when it came to the requirements of fair termination. Nonetheless, I do not rely upon that issue to any great extent, except as another indicator of credibility, as shown by the treatment by the respondent of that issue. 84 As indicated earlier, I have accepted that Mr Kwan was not required to lose his wages component and along with the scheme to employee junior trainees, which itself offered some threat to the stability of the applicant's employment and naturally added to his angst. 85 Mr Qian was dismissed following walking out of the office, following his understandable adverse reaction to being presented with a new salary scheme, a scheme which would result in the halving of his actual guaranteed weekly wage, albeit that there was two proposals put to him in respect of Commission largely as a substitute. Even if the applicant could be held to have abandoned his employment, (which he did not), the question arose then as to whether or not that alleged effective resignation by abandonment could be said to be constructive dismissal. If I am in error in finding that there was no abandonment of employment by the applicant I find that in any event it can be rightly classified as a constructive dismissal. The alleged actions of the applicant in supposedly resigning, according to the respondent's case, can be justified in that the initiative for such resignation would have arisen from the actions of the respondent. In that finding in the alternative, I have had regard to the leading case in the area of constructive dismissal, Bega Valley Council v Allison, which requires that the initiative for a resignation should be found to have arisen from the actions of the employer. 86 Again in any event, especially given the lack of warnings, I believe there was ample opportunity for the respondent to have behaved other than the way that he did upon meeting the applicant on 23 January, especially given the attempt on 20th and 21st January to radically alter the applicant's remuneration. I have to say that there was a very brief account by both parties of those conversations and largely revolved around what the applicant might receive upon certain conditions, such as whether or not he resigned. 87 The applicant, who left another job to join the respondent, was entitled to procedural fairness in his dismissal. The conduct of the applicant even on the basis of the respondent's case, still required proper procedure to put any allegation to the applicant, for the applicant to be given an opportunity to answer those allegations, but free from the threat of a 50% reduction in his wages, which inappropriately overshadowed any such alleged discussion as to the need for better performance. 88 The 23rd January, 2005 meeting was a golden opportunity to invite the applicant back to deal with the alleged poor performance, and to deal with the situation that might have been facing the company in respect of the lack of sales and to deal with all issues in a much better fashion than what occurred. 89 The respondent's actions on the 23rd January, 2004 and over subsequent days in seeking to establish a more defensible position against any claim by the applicant where both disingenuous and clumsy. 90 The earlier appraisals of the applicant showed some improvement in performance, it also showed to the Commission that the applicant was not unused to having some appraisals of his performance, along the way, although not found at serious fault, which again led me to believe that that was not the key version for his eruption that morning and leading to the walking out by the applicant in an upset state. 91 In short, the applicant's dismissal was harsh, unjust and unreasonable. It is my intention to decide the compensation in this matter upon the release of the decision which I hope will not be too long. So at this stage the award of the Commission to the applicant is delayed until the release of this decision. POSTSCRIPT TO DECISION ORDERS 92 I have taken into account the evidence of the efforts made by Mr Qian to find alternative employment and the earnings made since dismissal, in assessing the compensation which should be payable by Daum Consulting and Professional Pty Ltd. 93 The respondent should pay to Mr Qian within 21 days of this decision an amount equivalent to 12 weeks compensation at a rate of $600 per week or $7,200. J P MURPHY Commissioner oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.