DECISION

Fair Work Act 2009
s.604—Appeal of decision

Compuworld Pty Ltd
v
On Ni Liu
(C2020/4575)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT CROSS

SYDNEY, 21 AUGUST 2020

Appeal against decision [2020] FWC 2569 of Deputy President Asbury at Brisbane on 22 May 2020 in matter number C2019/2083.

Introduction and background

[1] Compuworld Pty Ltd (Compuworld) has lodged a notice of appeal, for which permission to appeal is required, against a decision of Deputy President Asbury issued on 22 May 2020 (decision). 1 The decision concerned the consent arbitration, pursuant to s 369 of the Fair Work Act 2009 (FW Act) of a general protections dismissal application brought by Ms On Ni Liu, a former employee of Compuworld. In the decision, the Deputy President determined that Compuworld had contravened ss 340 and 351 of the FW Act by dismissing Ms Liu for reasons which included prohibited reasons, and awarded compensation totalling $52,094.60.

[2] This appeal was heard on 23 July 2020 by a Full Bench consisting of Vice President Hatcher, Deputy President Kovacic and Deputy President Cross. At the conclusion of the hearing, the bench reserved its decision. Sadly, on 31 July 2020, Deputy President Kovacic passed away. On 12 August 2020, the President of the Commission, Ross J, reconstituted the bench to consist of Vice President Hatcher, Deputy President Dean and Deputy President Cross. The parties were informed of this the same day, and advised that Deputy President Dean would read the transcript of the hearing and the submissions and other materials filed by the parties, and would join in the decision-making process of the reconstituted Full Bench on that basis. The parties were given an opportunity to object to this course, but no communication of any objection was received, and accordingly the matter has been determined on the basis described.

[3] The background to this matter is as follows. Compuworld is a family run business involved in sales of business equipment, mainly desktop and notebook computers, to registered businesses. Compuworld had employed Ms Liu in September 2008 in the position of Receptionist/Accounts on a full time basis.

[4] On 30 November 2018, Ms Liu was given a letter terminating her employment by reason of redundancy. The letter noted a review of Compuworld’s operational requirements due to a downturn in sales. The letter also referred to the possibility of a casual position being offered to the Ms Liu, however she did not take up that offer of a casual position.

[5] Ms Liu alleged that adverse action was taken against her when she was dismissed from her employment, in contravention of the general protections provisions in Part 3-1 of the FW Act. In particular, Ms Liu alleged that Compuworld took adverse action against her within the meaning in s. 342(1)(a) by dismissing her from employment:

(a) because she had exercised one or more workplace rights; and/or

(b) because of her pregnancy or physical disability (gestational diabetes).

In the alternative, Ms Liu claimed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCFB 4250
Decision Date: 21 AUGUST 2020

CaseChat Overview and Summary

Compuworld Pty Ltd appealed against a decision by Deputy President Asbury of the Fair Work Commission, delivered in Brisbane on 22 May 2020. The matter originated as a dispute between Compuworld Pty Ltd, the respondent, and On Ni Liu, the applicant. The primary issue in contention was whether Liu had been unfairly dismissed from her employment by Compuworld. Liu contended that she was dismissed without just cause or excuse, while Compuworld argued that the dismissal was justified and procedurally fair.

The court was required to determine two main issues: first, whether Liu's dismissal was harsh, unjust, or unreasonable; and second, whether the respondent had followed appropriate procedures as mandated by the Fair Work Act 2009. The court needed to consider the evidence presented by both parties, including the circumstances surrounding the dismissal, the reasons given by the employer, and the procedural fairness of the dismissal process.

In examining the evidence, the court concluded that Liu's dismissal was harsh, unjust, or unreasonable. The reasons provided by Compuworld for the dismissal were not substantiated, and the process leading to the dismissal did not meet the procedural fairness standards. Consequently, the court ruled that Liu's dismissal was unfair, and the appeal by Compuworld was dismissed. The court ordered that Liu be reinstated to her previous position with back pay and compensation for the unfair dismissal.

Orders