Cali Press Pty Ltd v Shih Chieh Wu

[2023] FWCFB 86

[2023] FWCFB 86

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Cali Press Pty Ltd
v

Shih Chieh Wu

(C2023/1490)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT WRIGHT SYDNEY, 8 MAY 2023

Appeal against decision in transcript and order PR751242 of Deputy President Boyce at Sydney on 28 February 2023 in matter number U2022/8340 – permission to appeal refused.

Introduction

1. This is an edited version of the decision given on transcript at the conclusion of the hearing in this matter earlier today.

1. Cali Press Pty Ltd (Cali Press) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission is required, against the decision in transcript and order[1] of Deputy President Boyce in matter U2022/8340 on 28 February 2023. The decision concerned an unfair dismissal application made by Mr Shih Chieh Wu, whose employment with Cali Press terminated on 4 August 2022. Cali Press initially denied that it had dismissed Mr Wu, but this contention was rejected by the Deputy President in an ex tempore interlocutory decision made on 21 November 2022. That ruling has not been appealed. In his final decision, the Deputy President found that the dismissal was harsh and therefore unfair. He made the following orders:

A. The Respondent is [to] pay to the Applicant the gross sum of $4,273.12 (subject to applicable taxation as required by law) by way of electronic funds transfer into the Appellant’s nominated bank account.

B. The Respondent is to pay into the Appellant’s nominated superannuation fund the sum of $448.68 (i.e. 10.5 percent of $$4,237.12).

C. Orders A. and B. above must be complied with within 14 days of the date of these orders.

1. Compliance with orders A and B was required, by order C, on or before 14 March 2023. The appeal was lodged on 21 March 2023. In its notice of appeal, Cali Press sought a stay of the Deputy President’s order. The stay application was heard and refused by the presiding member on 23 March 2023.[2]

1. The matter has been listed before us for hearing today on the issue of whether permission to appeal should be granted only. For the reasons which follow, we have decided to refuse permission to appeal.

The decision

1. In his decision, the Deputy President found that Mr Wu had been dismissed because of aggressive interactions with other employees and that, for the purpose of s 387(a) of the FW Act, this constituted a valid reason for his dismissal. However, the Deputy President also found under s 387(b) and (c) that Mr Wu had not been notified of the reasons for his dismissal or given an opportunity to respond prior to his dismissal, and that this weighed in favour of a finding of unfair dismissal. The Deputy President treated paragraphs (d), (f) and (g) of s 387 as neutral considerations. In relation to s 387(e), the Deputy President found that there was no satisfactory evidence of prior warnings for unsatisfactory performance, and that this weighed in favour of a finding that the dismissal was harsh, unjust or unreasonable. Under s 387(h), the Deputy President took into account that Mr Wu had been denied procedural fairness. He concluded that Mr Wu was dismissed harshly having considered and given due weight to each of the criteria in s 387.

1. Mr Wu did not seek reinstatement. The Deputy President found that an award of compensation was appropriate, and proceeded to assess quantum. The Deputy President considered that if he had not been unfairly dismissed, Mr Wu would have remained employed no longer than two months having regard to the degree of conflict between him and other staff in the business. He also took into account in this respect that Mr Wu had sent a text message on 26 July 2022 which said that he was quitting. The Deputy President accepted as partly correct that this was a ‘cry for help’ on the part of Mr Wu, but the evidence did not disavow an intention to resign on 26 July 2022. The Deputy President then reduced the compensation payable to account for Mr Wu’s misconduct and for contingencies from eight weeks’ pay to four weeks’ pay, and made the order for compensation on that basis.

Appeal grounds and submissions

1. Cali Press’ amended notice of appeal discloses the following grounds of appeal:

(1)Having found that Mr Wu engaged in misconduct, the Deputy President erred in holding that Cali Press was not able to dismiss Mr Wu’s employment instantly for serious misconduct.

(2)The Deputy President erred in finding that the dismissal was unfair having regard to the findings of misconduct.

(3)The Deputy President misapplied the statutory test in s 387 of the FW Act in finding the dismissal unfair due to procedural fairness deficiencies. In particular, the Commission erred in not considering a relevant factor, being the seriousness and gravity of the misconduct, and in taking into account an irrelevant consideration in relation to s 387(e) in circumstances where the reason for dismissal was conduct-related.

(4)In the alternative, in relation to the issue of compensation, the Deputy President made a significant error of fact in finding that Mr Wu’s employment would have continued for a period of two months having regard to the findings that Mr Wu had engaged in misconduct, the nature and gravity of the misconduct, the risk to the health and safety of Cali Press’ other employees due to the misconduct and Mr Wu’s own evidence regarding his intention to leave employment with Cali Press.

1. Cali Press submitted that granting permission would be in the public interest because the Deputy President’s decision manifests an injustice, the result is counter-intuitive and the legal principles he applied appeared disharmonious compared to other recent decisions. More specifically, it submitted that:

·The Deputy President took into account an irrelevant consideration under s 387(e) of the FW Act (whether Mr Wu had been warned about unsatisfactory performance before dismissal) because he had found that the valid reason for Mr Wu’s dismissal was misconduct, not unsatisfactory performance. This was a House v The King[3]-type error.

·Even though s 387 of the FW Act involves a discretionary balancing exercise, the Deputy President failed to appropriately balance the factors therein and by not considering the ‘objective seriousness and gravity of [Mr Wu’s] misconduct’, and thereby effectively failed to give it any weight. This was sufficient to warrant the decision being overturned on appeal.

·The Deputy President’s finding that Mr Wu would have continued in his employment for another two months had he not been unfairly dismissed is contrary to the evidence, particularly in relation to the nature of Mr Wu’s misconduct, Mr Wu’s lack of remorse, his intention to resign and his relatively short period of employment with Cali Press. These factors suggest that the employment would either have ended instantly due to serious misconduct, or after four weeks, being the notice period in his employment contract.

Consideration

1. The decision under appeal is one to which s 400(1) of the FW Act applies.[4] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[8] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]

1. We do not consider that the grant of permission to appeal would be in the public interest for the following reasons. First, Cali Press did not comply with the Deputy President’s orders. It did not pay the compensation amount by 14 March 2023, as the orders required. Mr Wu, as at the time of the hearing, had still not received any payment, although it appears that Cali Press has very recently attempted to transmit the required payment to him. We note that failure to comply with an order made under Pt 3-2 of the FW Act constitutes a contravention of s 405 of the FW Act. In our view, it would be contrary to the public interest to permit Cali Press to exercise the appeal facility in circumstances where it clearly has not complied with the orders it seeks to appeal.

1. Second, the grounds of appeal have insufficient prospects of success. Dealing briefly with the grounds in turn:

(1)The Deputy President did not make the finding the subject of this appeal ground, nor was he required to make any finding as to whether Mr Wu’s conduct constituted ‘serious misconduct’ or conduct of a nature justifying summary dismissal. He addressed, as he was required to by s 387(a), the question of whether there was a valid reason for dismissal, and found that such a reason existed.

(2)The Deputy President’s finding of a valid reason for dismissal under s 387(a) plainly did not exclude a finding that the dismissal was nonetheless harsh having regard to the other mandatory considerations in s 387.

(3)It was clearly open to the Deputy President to find that a denial of procedural fairness weighed in favour of a conclusion that the dismissal was harsh. We do not accept that the Deputy President failed to consider the seriousness and gravity of Mr Wu’s conduct: he made findings of fact about the nature of that conduct, found that it constituted a valid reason for dismissal, and took that finding into account in his overall assessment of whether the dismissal was harsh, unjust or unreasonable. The Deputy President was entitled to make a finding under s 387(e) because the matters raised in Cali Press’ evidentiary case to justify the dismissal involved interrelated performance and conduct matters. For example, its witness Ms Calandri gave evidence that Mr Wu had not been following procedures, which compromised food quality and the proper training of Mr Wu’s team.

(4)We do not accept that the Deputy President’s finding that Mr Wu would have remained employed for a further two months had he not been dismissed constitutes a finding of fact in the proper sense. This finding was made pursuant to s 392(2)(c), which requires the Commission to take into account the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed, in determining the amount of compensation.  Because this involves a difficult assessment of a hypothetical and counter-factual scenario with a necessarily speculative element,[10] there cannot be a single correct answer as with a finding of fact. Nothing raised by Cali Press demonstrates that the Deputy President’s conclusion on this score was not reasonably available.

1. Third, the appeal does not raise any legal or factual issue of significance or general application. In particular, the order the subject of the appeal was only for four weeks’ pay — an amount likely to be exceeded by the cost to Cali Press of litigating the appeal if permission were granted.

Conclusion

1. We order that permission to appeal is refused.

PRESIDENT

Appearances:

C Mossman, solicitor, for the appellant.
S C Wu, the respondent, in person, with T Cross.

Hearing details:

2023.

Sydney:
8 May.

[1] PR751242.

[2] [2023] FWC 708.

[3] [1936] HCA 40, 55 CLR 499.

[4] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].

[5] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[6] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].

[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].

[10] See Ellawala v Australian Postal Corporation[2000] AIRC 1151, Print S5109 at [33]; Smith v Moore Paragon Australia Ltd [2004] AIRC 57, 130 IR 446 at [32]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. t/a Ottrey Lodge[2013] FWCFB 431, 229 IR 6 at [24].

Printed by authority of the Commonwealth Government Printer

<PR761686>