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…

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] FWC 3270
Decision Date: 22 JUNE 2020

CaseChat Overview and Summary

Compuworld Pty Ltd, the appellant, challenged the decision of Deputy President Asbury of the Fair Work Commission in Brisbane. The case involved a dispute regarding the dismissal of On Ni Liu, the respondent, and the subsequent award of compensation. The matter was initially heard in the Federal Circuit and Family Court of Australia, with the appeal now before the Federal Court of Australia.

The central legal issue was whether the dismissal of On Ni Liu was harsh, unjust, or unreasonable, warranting the award of compensation under section 384 of the Fair Work Act 2009. The appellant argued that the dismissal was justified due to misconduct, while the respondent claimed that the process leading to the dismissal was unfair. The court had to weigh the procedural fairness of the dismissal process against the severity of the penalty imposed.

In delivering the judgment, the court found that the dismissal process was flawed due to a lack of procedural fairness. The appellant failed to adequately address On Ni Liu's right to be heard before making the decision to terminate her employment. Consequently, the court determined that the dismissal was harsh, unjust, or unreasonable, and upheld the original decision to award compensation to the respondent.

The Federal Court of Australia affirmed the award of compensation to On Ni Liu, maintaining that the dismissal process was deficient and did not provide her with an opportunity to respond to the allegations against her. The appeal was dismissed, and the decision of the Fair Work Commission was upheld.

Orders