Compuworld Pty Ltd v On Ni Liu

[2020] FWC 3270

[2020] FWC 3270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

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

VICE PRESIDENT HATCHER SYDNEY, 22 JUNE 2020

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

[1] Compuworld Pty Ltd (Compuworld) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Asbury issued on 22 May 2020. 1 The decision concerned an application by Mrs Liu under s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute concerning her dismissal from her employment with Compuworld. Mrs Liu contended that she was dismissed for reasons which included that she sought to exercise her workplace rights to take sick leave and maternity leave, in contravention of s 340 of the FW Act, and/or that she was pregnant and suffered from the disability of gestational diabetes, in breach of s 351 of the FW Act.

[2] The parties consented to the Commission arbitrating the dispute pursuant to s 369 of the FW Act, and the decision was made in exercise of the arbitral powers conferred by that section. In the decision, the Deputy President determined that Compuworld had not discharged its onus under s 361 of establishing that the reasons for the termination of the Applicant’s full-time employment did not include reasons which contravene the provisions in Pt 3-1 of the FW Act. The Deputy President proceeded to award compensation to Mrs Liu as follows:

•  $5,768.00 as compensation for past economic loss between 7 January 2019 and 4 March 2019;

•  $13,330.80 as compensation for loss of entitlement to the Commonwealth Government paid maternity leave scheme;

•  $15,934.10 for future economic loss;

•  $15,000 for non-economic loss; and

•  $2,061.70 in superannuation contributions on amounts for past and future economic loss to be paid into the Applicant’s nominated superannuation fund.

[3] Compuworld’s notice of appeal sets out the following grounds of appeal:

1. The basis of $15,000 for non-economic loss is unjust. The applicant seeks non-economic loss of $20,000 and was awarded 75%. This is despite acknowledgement in the judgement [215] “there were other more significant factors at play” that has caused the emotional distress. We do not believe the compensation is just given:

•  There were significant timeline differences between when the applicant sought medical treatment to the date of event in question.

•  Failure to take into consideration that the treating physician has advised other non-concerning events were the more significant factor of the emotional distress.

•  A significant 75% awarded when it is most probable that the events are not linked.

2. Full responsibility for the loss of income from Commonwealth Government paid maternity leave scheme:

•  Failure to take into consideration several offers made with written evidence that allows the applicant to qualify for the paid maternity scheme. These offers include allowing applicant to take the period of arbitration as full time annual leave or in any form of work she deemed suitable. This would have allowed her to qualify in full the maternity pay.

•  Not recognizing that the applicant requested full time re-instatement during the consultation process on 19th February 2019 which we agreed. The applicant later refused and therefore forfeiting the opportunity of qualifying for the maternity scheme by only just 10 days.

•  Incorrect amount of actual financial loss. The decision did not take into consideration the amount of government assistant received when calculating the actual financial loss. Instead of paid maternity the applicant would have received other payments such as $560 newborn upfront payment +$1679.86 newborn supplement which are tax free. Additional family tax and unemployment benefits as a result of not receiving the paid maternity leave.

3. Compensation for past & future loss of income. We strongly deny the applicant’s claim of discrimination. From the applicant’s own words, she has never witnessed prior any form of discrimination in her 10 years of employment. It is unjust to make assumptions of discrimination given there is no historical records of such events. There was also acknowledgment of significant decline in business activities in the judgement. This is by far the more probable cause of the event. The applicant was not the only employee that was adversely affected because of business downturn. There were 2 other full-time employee made redundant just 1-2 months prior whom were not pregnant or have any form of disability. The business downturn is our only reason for her change of employment.

4. We believe the original hearing was strongly favoured towards the applicant with lawyer representation vs our own representation. As we were unable to get legal representation at the time of hearing due to business struggles. We are seeking the opportunity to appeal so we can have proper legal representation to state our case.

[4] The notice of appeal contended that permission to appeal should be granted because, in summary, it was important to allow small businesses to make business decisions to ensure their survival, to ensure that businesses can make decisions purely on the merits of the business’ requirements without fear of reprisal which could lead to discrimination against other employees, and to ensure that a precedent is set in the public interest where a just percentage is awarded for non-economic loss.

[5] Compuworld seeks a stay of the decision of the Deputy President pending the hearing and determination of the appeal pursuant to s 606 of the FW Act. This decision is concerned with that stay application.

[6] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 2 Paragraph [5] of that decision states: 

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[7] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 3

[8] In this matter, having regard to the fact that the Compuworld is not legally represented, I am very narrowly persuaded that ground 3 of the appeal is arguable and might have some prospects of success. It is not appropriate at this stage to say much more than that the evidence of Compuworld that it terminated two other employees in addition to Mrs Liu at or about the relevant time for non-prohibited business reasons might arguably have been sufficient to discharge its onus under s 361, and that this might conceivably ground the grant of permission to appeal. This is, of course, not to be taken as any expression of view that this ground of appeal should ultimately be upheld.

[9] I consider that the balance of convenience weighs in favour of the grant of a stay, having regard that the hearing of the appeal has been listed on 23 July 2020, meaning that Mrs Liu will only be deprived of the fruits of her victory for a relatively short period of time should the appeal be unsuccessful. However, I am concerned that at the hearing of the stay application, Compuworld prevaricated on the question of whether it would be in a position to pay the amounts awarded by the Deputy President to Ms Liu if its appeal does not succeed. I do not consider that it should receive the benefit of an unconditional stay in circumstances where there is some doubt attached as to whether it will comply with the decision if its appeal fails. I therefore consider it appropriate to attach a condition to the stay pursuant to s 606(1) that Compuworld pay the total of the amounts awarded by the Deputy President into an interest bearing account operated by Ms Liu’s current legal representative, Corney and Lind Lawyers (or such other legal representative as may be nominated by Ms Liu) within seven days of the date of this decision.

[10] The conditional stay order will be issued in conjunction with this decision.

VICE PRESIDENT

Appearances:

Mr M Chen on behalf of Compuworld Pty Ltd.
Ms F Keyes on behalf of Ms Liu.

Hearing details:

2020.
Sydney (via telephone):
22 June.

Printed by authority of the Commonwealth Government Printer

<PR740402>

 1   [2020] FWC 2569

 2 [2000] AIRC 785, Print S2639

 3   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]