DECISION

Fair Work Act 2009
s.365—General protections

Huizhen Liang
v
EMPIRE HOSPITALITY AUSTRALIA PTY LTD
(C2021/1992)

Application to deal with general protections contraventions involving dismissal – long term casual employee - settlement reached in resolution of applicant’s previous stop bullying application – terms of settlement set out terms of applicant’s on-going employment with the respondent – objection raised by respondent that applicant has not been dismissed – respondent claims to be abiding by terms of settlement – construction of terms of settlement - hotel operated by respondent converted into hotel quarantine facility during COVID-19 pandemic – whether inability to offer applicant shifts at hotel whilst operating as a quarantine facility genuine – respondent abiding by terms of settlement - applicant not “dismissed’ by respondent – general protections application involving dismissal dismissed

Overview

[1] Empire Hospitality Australia Pty Ltd (Respondent) provides specialist housekeeping and cleaning solutions to hotels, resorts and serviced apartments. Since 2015, the Respondent has been providing such services to the Sheraton Grand Sydney Hyde Park Hotel (Sheraton Grand), in Elizabeth Street, Sydney (formerly named the Sheraton On The Park). The Respondent also provides housekeeping and cleaning services to various other hotels, including the Four Seasons Hotel Sydney (Four Seasons).

[2] The Sheraton Grand has been converted into a hotel quarantine facility, only receiving overseas travellers for mandatory 14-day COVID-19 quarantine. I understand this to have commenced in the second half of 2020. The Respondent has continued to provide housekeeping and related services at the Sheraton Grand during this time, albeit the nature and frequency of those services has changed and adapted in accordance with Commonwealth and State hotel quarantine requirements.

[3] Ms Huizhen Liang (Applicant), also travelling by the name “Virginia”, has been employed by the Respondent since 28 September 2015 in the position of casual Housekeeper, 1 working regular shifts, essentially full-time hours, Monday to Friday each week, solely at the Sheraton Grand. Between 2005 and 2015 the Applicant worked as a Housekeeper directly for Sheraton Hotels, at the Sheraton Grand. In other words, the Applicant has been working at the Sheraton Grand for around 15 years.

[4] On 23 November 2021, the Applicant filed a stop bullying application against the Respondent and her manager (Bullying Application) with the Fair Work Commission (Commission). 2

[5] Conciliation conferences conducted before the Commission (constituted by Deputy President Cross) were able to resolve the Bullying Application pursuant to a written settlement agreement reached on 16 December 2020 (Settlement Agreement). The Bullying Application was subject to a further conciliation conference, again before Deputy President Cross, on 24 December 2020. Ultimately, the Commission’s file in the Bullying Application was closed (on the basis of the Settlement Agreement that had been reached). Neither party was represented during the conciliation conferences before Deputy President Cross.

[6] On 9 April 2021, the Applicant filed an application for general protections involving dismissal (GP Application) with the Commission. In her GP Application, the Applicant asserts that she was dismissed by the Respondent on 29 March 2021 because she exercised a workplace right under s.340 of the Fair Work Act 2009 (Act).

[7] In response to the GP Application, the Respondent says that the Applicant has not been dismissed, and that it has been abiding by the terms of the Settlement Agreement. 3

[8] The GP Application was allocated to my Chambers on 7 June 2021, and directions were issued for the filing and serving of evidence and submissions. Shortly after the commencement of the hearing on 26 July 2021, it became apparent that neither party had put before the Commission material sufficient for me to resolve the dispute as to dismissal. The matter was adjourned, further directions were issued, and the proceedings were relisted for a further hearing on 6 August 2021. At both hearings, the Applicant appeared for herself, and Mr Kevin Lucas, National Operations Manager, appeared for the Respondent.

Settlement Agreement resolves Bullying Application

[9] The Applicant alleged in her Bullying Application that she was being bullied because she was not being offered shifts at the Sheraton Grand, and was only being offered shifts at the Four Seasons. Essentially, the Applicant was asserting that she was entitled to be provided with shifts at the Sheraton Grand, because that is the hotel that she had worked at for around 15 years. According to the Applicant, the Respondent had available shifts for her to perform at the Sheraton Grand, but was only allocating her shifts at the Four Seasons. Further, the Applicant alleged that only offering the Applicant shifts at the Four Seasons was, amongst other things, bullying conduct by the Respondent.

[10] The position of the Applicant, as summarised in the foregoing paragraph, appears to have germinated from the following email from Mr Rashidul Hasan (of the Respondent) to the Applicant on 29 October 2020:

“Dear Virginia,

We wish to advise you that we have arranged for you to relocate from Sheraton Grand Sydney to Four Seasons Hotel Sydney.

Your position as a Casual Housekeeping Attendant, duties and pay will remain the same. We would like to reiterate that you are an employee of Empire Hospitality Australia Pty Ltd, not Sheraton Grand Sydney.

Please confirm your attendance at the Four Seasons Hotel Sydney staff entry (111 Harrington St, Sydney) on 02/11/20 at 8.00AM at your earliest convenience.

Thank you.

Kind Regards,
Rashidul Hasan”

[11] To which the Applicant replied (on 29 October 2020):

“Dear Mr

Thanks for email.

As I spoke to you via phone. I do not like to work in other hotel and I can not work in the strange hotel during the covid pandemic.

Regards
Virginia L”

[12] In response to the Bullying Application, the Respondent submitted that it was not in a position to offer the Applicant shifts at the Sheraton Grand, as it had previously, because the Sheraton Grand was being used as a quarantine hotel, and had very different housekeeping arrangements (i.e. due to the quarantine and related health requirements that needed to be fulfilled at the Sheraton Grand to enable it to operate as a quarantine hotel). 4

[13] The terms of the Settlement Agreement agreed to between the parties to resolve (in full) the Bullying Application read:

“The conditions of the Settlement are as follows: -

1. The Applicant is content to be treated as a causal employee.

2. The Applicant will advise the Respondent of her available dates for working to work at the Sheraton Grand Hotel, and the employer can advise of which of those day they can provide work.

3. The Applicant understand that there is no guarantee of being provide with any days of work.

16 December 2020”

[14] During the hearing before me, both parties agreed that the foregoing terms represent the Settlement Agreement reached between them on 16 December 2020.

The conciliation of the Bullying Application before Deputy President Cross

[15] Whilst the conciliation of the Bullying Application before Deputy President Cross was conducted confidentially, it was recorded. Given the various claims and counter claims between the parties as to what occurred at the conciliation conferences before Deputy President Cross, both parties gave consent for me to obtain a copy of the transcript of the conciliations and review same. I highlight the following extracts from the transcript:

“PN51 THE DEPUTY PRESIDENT: When you are certified fit to return to work, wouldn't the next step be that you - I mean, is it the case that you are not - you are presenting certificates that say you are not fit to work, but does that mean you're not fit to discuss things regarding your work?

PN52 MS LIANG: No, I do, I do, I do, but it's like the company, the management just use the power to force me - force me to work in other hotel and that's why I made a formal complaint. I'm not always - - -

PN53 THE DEPUTY PRESIDENT: Let's forget - what I'm trying to do is not focus upon what might have happened but focus on a way forward to your returning to work. Isn't that a preferable focus?

PN54 MS LIANG: Yes, if I can go back return to work in the Sheraton Grand, I think I'm able to work next month, early next month.

…

PN67 THE DEPUTY PRESIDENT: Ms Liang, you have heard what the respondent has just said there in relation to hopefully your health returning and then sitting down with you to speak with you and also they have been quite clear that your return to work will initially not be at the Sheraton. But, upon the basis of a discussion as to how you would be reintegrated into the workforce, that's a positive step, I would have thought. Do you see that as a way towards resolving your concerns?

PN68 MS LIANG: Yes, because at my age, 55, I'm not sure I can work in the new hotel in middle of pandemic. Still more travellers coming back. That's why I'm not confident and comfortable working in the new place.

…

PN88 MS LIANG: Mr Lucas, I haven't met you before, but I'm sure we will have a meeting later. Why - I just want to ask why the company want me to work in other hotels rather than I stay where I was. You still need the staff in the old place and you just hiring the new staff and training the new staff and fit my position. Why don't you just let me stay there? I'm old enough. That's why I think at the end that's what you want, you want me to resign. I can't see the future in other hotel.

…

PN145 THE DEPUTY PRESIDENT: Ms Liang, I keep putting a proposal to you that I see that might resolve the matter or at least provide you with an ability to return to work, hopefully on an agreed basis, and you are not engaging with my proposal. What is your proposal to resolve your matter?

PN146 MS LIANG: I just stay with the hotel where I work because that place I know really well and I'm really confident and comfortable, whatever, I know the transport. Even sometimes, I need to work night-time, I can take the car if I can.

PN147 THE DEPUTY PRESIDENT: Well, that's an order I can't make.

PN148 MS LIANG: Then if I - - -

PN149 THE DEPUTY PRESIDENT: It's an order I can't make. I can't require them to employ you at a certain place. Mr Lucas said that if you were insistent about remaining at the Sheraton Grand, they would give you whatever work you would be able to be given by them there. Is that the proposal that you see is a resolution to the matter?

PN150 MS LIANG: Yes, yes, yes, I don't care how many times they give me to work.

PN151 THE DEPUTY PRESIDENT: Okay. So, your proposal is only work at the Sheraton Grand?

PN152 MS LIANG: Yes.

PN153 THE DEPUTY PRESIDENT: And take whatever day is given?

PN154 MS LIANG: Yes. Yes, I don't care about hours that day.

PN155 THE DEPUTY PRESIDENT: Okay, you don't care about hours, but not weekends?

PN156 MS LIANG: No. There might be if they really need the staff. Even before sometimes I worked public holidays too.

PN157 THE DEPUTY PRESIDENT: Okay, but no weekends unless they really need you, unless they really need staff?

PN158 MS LIANG: Yes, yes, at least discussion, negotiation.

PN159 THE DEPUTY PRESIDENT: Really need staff and you agree?

PN160 MS LIANG: Yes.

PN161 THE DEPUTY PRESIDENT: I will go through that. Point one, you only work at the Sheraton Grand; two, you agree to take whatever days you are given?

PN162 MS LIANG: Yes.

PN163 THE DEPUTY PRESIDENT: That includes that you don't care about the hours you are given, but you will not work weekends unless they really need staff and you agree?

PN164 MS LIANG: Yes.

PN165 THE DEPUTY PRESIDENT: Okay. So, can I put that to the company as a resolution of your application?

PN166 MS LIANG: Okay, yes, that's fine, I'm happy to do that too.

…

PN250 THE DEPUTY PRESIDENT: Ms Liang, it seems the way that this might be able to work, and I think this is consistent with what you have put about not caring about the hours that you get.

PN251 MS LIANG: Yes.

PN252 THE DEPUTY PRESIDENT: The respondent has characterised it as this, that, firstly, point one, that you seem to be content to be treated as a casual employee and, two, the process that they could introduce is that you advise them of what dates you are available to work and a preference for the Sheraton Grand, and then they will advise you of which dates they can provide work.

PN253 MS LIANG: Yes.

PN254 THE DEPUTY PRESIDENT: Do you understand?

PN255 MS LIANG: Yes.

PN256 THE DEPUTY PRESIDENT: Now, you understand, particularly in the COVID-19 times, this means that just because you say you can work five days a week, you might not get any days in a week, or you might get one or two or whatever? Do you understand that?

PN257 MS LIANG: Yes, it doesn't matter.

PN258 THE DEPUTY PRESIDENT: Sorry?

PN259 MS LIANG: It doesn't matter. Just keep the job at the Sheraton Grand, but it doesn't matter later on they give me one or two day or none work, it doesn't matter, as long as I have the job (indistinct).

PN260 THE DEPUTY PRESIDENT: You will be a casual employee who expresses a preference to only work at the Sheraton Grand.

PN261 MS LIANG: Yes.

…

PN269 THE DEPUTY PRESIDENT: Okay, Mr Lucas, the reason you are on the line and the other respondents are on the line with the applicant is the applicant has accepted your proposal. The way to enact a proposal is for you to - firstly, we need to just agree in joint session as to the terms of that proposal and then, secondly, you will need to send an email to Ms Liang just specifying the terms of this agreement.

PN270 Now, the terms, as I understand it, are as follows: (1) the applicant is content to be treated as a casual employee; (2) the applicant will advise the respondent of her available dates for work and a preference for work at the Sheraton Grand Hotel, and the employer shall advise of which of those dates they can provide work; (3) the applicant understands there is no guarantee of being provided with any days of work.

PN271 Ms Liang, are they the three terms upon which you have indicated you are prepared to resolve your dispute?

PN272 MS LIANG: Yes.

PN273 THE DEPUTY PRESIDENT: Mr Lucas, are they the three terms upon which the respondent has agreed to resolve this dispute?

PN274 MR LUCAS: Yes, it is.” 5

Was the Applicant “dismissed”?

[16] The evidence and submissions of the parties in these proceedings identify that in January 2021 the Applicant contacted the Respondent (pursuant to the Settlement Agreement) to advise that she was able to resume work at the Sheraton Grand following a period of certified illness. I understand that her availability was for Monday to Friday shifts.

[17] Mr Lucas, on behalf of the Respondent, replied to the Applicant, noting her ability (fitness) to work, her stated availability for work, and confirming that the Respondent would contact her if there were any available shifts on the days that the Applicant had advised that she was available for work at the Sheraton Grand. 6

[18] The Applicant’s evidence is that she was offered no shifts between the period of 4 January 2021, and 9 April 2021, so she filed her GP Application on the basis that she considered herself to have been dismissed by the Respondent. In her submissions, the Applicant relevantly states that the Respondent was:

“determined to kick me out off (sic) the company after the previous dispute. The management teams have taken adverse action to (sic) against my workplace right. I have been dismissed from the database. There is no doubt I have been dismissal (sic)”. 7

[19] The Applicant was in receipt of JobKeeper payments up until 29 March 2021.

[20] Prior to filing her GP Application, the Applicant availed herself of a one-hour free legal consultation, as part of the Commission’s Workplace Advice Service.

[21] The Respondent maintains that it is bound by the Settlement Agreement and has been abiding by its terms. In relation to being unable to provide the Applicant with casual shifts, Mr Lucas (on behalf of the Respondent) gave evidence that the requirements for housekeeping and cleaning services at the Sheraton Grand are vastly different to those that were in place prior to it becoming a quarantine hotel. In this regard:

(a) Travellers returning from overseas into hotel quarantine, arrive in large groups, and are allocated to a single floor of the hotel.

(b) Each guest must remain in their room for the 14-day quarantine period. Rooms are not accessed by hotel staff during this 14-day period (for any reason).

(c) At the end of the 14-day quarantine period, previously occupied hotel rooms (and the whole single floor of the hotel) are bio-cleaned and sanitised, and left vacant for 24 hours (so as to kill off any COVID-19). The same hotel rooms are then stripped and given a deep clean, and prepared for the next travellers, however, after the deep clean the rooms are again left vacant for a further 14-days.

(d) New groups of travellers returning from overseas are allocated to other floors of the hotel (during the 14-day vacancy (idol) period), and the above process is repeated.

(e) The Respondent has only been engaging their permanent full time and part-time vaccinated employees for hotel quarantine housekeeping at the Sheraton Grand (whilst ensuring that such employees do not work at other workplaces). This assists to ensure any exposures are not transferred from the Sheraton Grand to other workplaces, enables monitoring of employee health (via regular testing of the same employees), and helps stringent health and safety procedures to be followed (by those employees trained and experienced in same).

[22] During the Hearing before me on 6 August 2021, it was clear to me that the Applicant understood the terms of the Settlement Agreement; being that she agreed with the Respondent that she would only work at the Sheraton Grand, on a casual basis, if the Respondent had shifts available to be offered to her. However, the Applicant continued to maintain that she had been “dismissed” because she had not been offered any shifts post the Settlement Agreement:

“PN236 THE DEPUTY PRESIDENT: …What I am asking is in the settlement you agreed, or you put the position that you only wish to work at the Sheraton Grand, and that's the basis upon which the settlement was agreed.

PN237 MS LIANG: Yes.

PN238 THE DEPUTY PRESIDENT: So how do you now say - you now make a complaint you weren't offered shifts in another hotel, but the settlement is that you were only wanting to work at the Sheraton Grand?

PN239 MS LIANG: On the settlement it was decided (indistinct) I had the health problem, and so I proceed the dispute application, and on the settlement it indicates by Mr President Cross that I will working at the Sheraton Grand Hotel, and from January to April the hotel was extremely busy and they only - they now want permanent staff working under the Sheraton Grand Sydney. So I had plenty opportunity to working over there. However, because the management have decide to pull me out from the hotel and they would rather follow other employees from other hotels and work in the Sheraton Grand rather than keep me in a shift, and the Sheraton Grand Sydney it has 564 rooms. That's plenty work if the company want me to work, but they didn't. And during December and January to April they didn't arrange any other shift for me, and no discussion at all, and I am out of the company employees database.”

[23] The Respondent submitted that there were no shifts that had become available to be offered to the Applicant due to the status and use of the Sheraton Grand as a quarantine hotel. Nonetheless, the Respondent asserted that it had not dismissed the Applicant, and that should shifts become available, in accordance with the terms of the Settlement Agreement, such shifts would be offered to the Applicant. Going to the transcript:

“PN241 MR LUCAS: Thank you, Deputy President. So just going back to the vaccination program I'm just feeling a bit frustrated to be honest because we've often said to Ms Liang if she has any questions she can call me any time. The vaccination program falls into categories. Category 1A are those people who are currently working in a quarantine hotel, as well as others (audio malfunction). For the vaccination program for New South Wales Health when it comes to hotels that was offered to people who are currently working and are trained in the quarantine system and have been assessed (indistinct). There's a whole lot of things that go on in the background, and then they're offered.”

“PN259 MS LIANG: If I saw (indistinct) information from the company am I still employed by your company? I don't think so. That's a really simple question.

PN260 MR LUCAS: Okay. Virginia, I'll just answer this for the last time and I'll answer it (indistinct) as far as we're about to go with this. Okay. You are still employed by Empire Hospitality. You have not terminated your employment and we have not terminated. To do so you would have had all of your other entitlements paid to you. You are still on our system. I don't believe we're even having that conversation. I'm more than happy for you to do, and I'll ask Rodel if he may, to send you the link to applying for the disaster payment.”

[24] In my view, on the evidence and the submissions before me, I find that the Respondent:

(a) has been abiding by the terms of the Settlement Agreement;

(b) has not had available shifts to offer the Applicant since the Settlement Agreement was reached, given the status of the Sheraton Grand as a quarantine hotel; and

(c) was not able to offer the Applicant shifts at the Sheraton Grand as she was not vaccinated (as required by relevant health orders for persons who work at hotel quarantine sites).

[25] Instead of accepting the reasons as to why the Respondent has not offered her any shifts, the Applicant (before me) appeared to submit that the status of the Sheraton Grand as a quarantine hotel is to be overlooked when determining whether the Respondent has been complying with the Settlement Agreement. She also submitted that other parts of the Sheraton Grand were being used by normal (non-quarantine) guests, and that she should have been offered shifts to service such guests. I reject both of these submissions. There is no evidence that the Sheraton Grand has been used, since at least October 2020 to date, as other than a quarantine hotel. Further, to overlook the status of the Sheraton Grand as a quarantine hotel in determining whether the Respondent has had any available shifts to offer the Applicant would be to fall into error.

Conclusion

[26] The Commission does not have jurisdiction to entertain a general protections application where an applicant employee is unable to establish that there was a “dismissal” at the initiative of the employer, or that he/she was ‘forced’ to resign, within the meaning of s.386(1) of the Act. 8

[27] The onus is upon the Applicant to prove that she has been dismissed at the initiative of the Respondent. 9 This especially so where the Respondent in this matter comes before this Commission (through Mr Lucas) and insists that the Applicant has not been dismissed. On the evidence before me, I find that the Applicant has failed to meet the onus that she carries to prove that she has been terminated by the Respondent and has therefore failed to prove that she has been “dismissed” within the meaning of s.386(1) of the Act.

[28] Pursuant to the Settlement Agreement, agreed to by the Applicant, she is a ‘casual’ employee who has “no guarantee of being provided with any days of work”, and the Respondent is only required to offer and provide work to the Applicant if it has such work. Whether the Respondent is able to offer and provide such work to the Applicant comes down to all of the circumstances, and in this case, such circumstances include the status of the Sheraton Grand as a quarantine hotel (and all of the restrictions and requirements that apply at the Sheraton Grand to which the Respondent, in providing its services, must comply with).

[29] At the end of the day, the Applicant’s case at its highest is that she is entitled to be given shifts at the Sheraton Grand because she has worked there for 15 years and should not be required to work anywhere else (at the direction of the Respondent or otherwise) because she feels uncomfortable working, or just does not want to work, at any other hotel. She asserts that I simply take the fact that she has not been offered any shifts post the making of the Settlement Agreement as evidence to support a conclusion that she has been dismissed. In doing so, the Applicant, wrongly, seeks to ignore or cast aside the impact of COVID-19 on the Respondent’s business, and the situation that the Respondent is confronted with in servicing a quarantine hotel.

[30] I have found that the Applicant has not been “dismissed” by the Respondent within the meaning of s.386 of the Act. Pursuant to this finding, the Commission does not have jurisdiction to deal with the Applicant's GP Application. An Order dismissing the GP Application will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms Huizhen Liang (Applicant), for herself.

Mr Kevin Lucas, National Operations Manager, for the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR734283>

 1   Classification: Casual Guest Service Employee Grade 2 under the Hospitality Industry (General) Award 2020. I note that it has always been the Applicant’s preference to be and remain engaged as a casual employee.

 2   Under Part 6-4B of the Fair Work Act 2009.

 3   The Applicant asserts that she has been “dismissed” under s.386(1)(a) of the Act. There is no suggestion in these proceedings that the Applicant has ‘resigned’ (or been forced to do so), such that s.386(1)(b) requires consideration. In terms of case law, reliance in this decision as to the meaning of the term “terminated on the employer’s initiative” is based upon Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, and O’Meara v Stanley Works Pty Ltd (2006) AIRC 496, at [19]-[23].

 4   As compared to when the Sheraton Grand, before the COVID-19 pandemic, was open to the public at large.

 5   Transcript of Conciliation conference before Deputy President Cross on 16 December 2020.

 6   Final Submissions of Applicant filed 4 August 2021; Emails Supporting Employer Response filed 2 August 2021.

 7   Final Submissions of Applicant filed 4 August 2021. See also Transcript, 26 July 2021.

 8   Coles Supply Chain v Milford (2020) 300 IR 146, at [65]-[67]; Yi Zhang v Medlab Clinical Ltd [2021] FWCFB 2453, at [1].

 9   Australian Hearing v Peary (2009) 185 IR 359, at [30].