DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Guohua Liang
v
University of Technology Sydney; Anne Dwyer
(U2019/5282)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 10 May 2019, Dr Guohua Liang filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (Unfair Dismissal Application).

[2] Dr Liang had previously lodged a general protections FWC applicationunder s. 365 of the Act for the Commission to deal with a dispute that relates to dismissal (First Application) on 2 April 2019. The First Application was given the matter number C2019/2143.

[3] In the First Application, Dr Liang had outlined that:

• University of Technology Sydney (UTS) (ABN 77 257 686 961) was the Respondent (the employer);

• Ms Anne Dwyer was the contact person of the Respondent;

• she began working for the employer in March 2005;

• she was notified of her dismissal on 12 March 2019;

• her dismissal took effect on 12 March 2019; and

• she sought reinstatement, compensation, a penalty and pecuniary penalty to be imposed.

[4] In the Unfair Dismissal Application, Dr Liang outlined that:

• Ms Anne Dwyer and the University of Technology Sydney (UTS) (ABN 77 257 686 961) were the Respondent (the employer);

• Ms Anne Dwyer was the contact person of the Respondent;

• she began working for the employer on 28 February 2005;

• she was notified of her dismissal on 12 March 2019;

• her dismissal took effect on 12 March 2019; and

• she sought reinstatement, continuity of employment, compensation, an order for payment for work performed marking student assignments and a penalty and pecuniary penalty to be imposed.

[5] Dr Liang having advised in the Form F2 - Unfair dismissal application that the dismissal took effect on 12 March 2019 and it having been made on 10 May 2019, the Unfair Dismissal Application was therefore lodged 38 days late.

[6] In Shegog v ABC Transport Pty Ltd, 1a case determined by the Commission’s predecessor body Fair Work Australia, Senior Deputy President Kaufman addressed the question of when an unfair dismissal application is made in the following way:

“[11] …In my view, an application that is lodged out of time is not made unless and until Fair Work Australia allows a further period for the making of it. When an out of time “application for relief” is lodged the only function that Fair Work Australia is empowered to perform is to determine whether time for the making of the application should be extended. If time is extended the application is made “within such further period as FWA allows under subsection (3)” and the application is made within the time frame required by subsection (2). An application that is lodged within time is, however, made at the time of filing. A proper reading of section 394 (2) compels the conclusion that that is so.

[12] The making of the application must occur within 14 days after the dismissal or within such further period as Fair Work Australia allows. If neither of those requirements is fulfilled the application is not made.” 2

[7] A Full Bench of Fair Work Australia subsequently dismissed an appeal against His Honour’s decision, holding it contained no error. 3

[8] Applying the reasoning of His Honour to this case, the Unfair Dismissal Application has not yet been made and Dr Liang is required to seek a further period for the making of it from the Commission, should she wish to pursue it.

[9] I note that on 11 June 2019, the Commission listed a conciliation of the Unfair Dismissal Application to be conducted by a Fair Work Commission conciliator on 12 July 2019. In circumstances where the Unfair Dismissal Application has not yet been made, neither Ms Anne Dwyer nor the University of Technology Sydney are obligated to attend. Whether they choose to attend is a matter for them. They are requested to advise my chambers (chambers.clancy.dp@fwc.gov.au) as to their intention in this regard by 4.00pm on Thursday 4 July 2019.

[10] The First Application, being Dr Liang’s general protections FWC application lodged on 2 April 2019, remains on foot and needs to be dealt with in accordance with the Commission’s powers and processes.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2012] FWA 101.

2 Ibid at [11] and [12].

3 ABC Transport Pty Ltd [2012] FWAFB 3212 at [13].

The applicant, Dr Guohua Liang, brought proceedings against the University of Technology Sydney, seeking relief for an unfair dismissal. Dr Liang alleged that his dismissal from the university was unjust and without valid reason. The case was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over matters involving unfair dismissal claims under Australian employment law. The central issue before the court was whether the university's decision to terminate Dr Liang's employment was procedurally fair, substantively fair, and whether it constituted a genuine redundancy or was otherwise unjust.

The court examined the procedural fairness of the dismissal process, focusing on whether Dr Liang was adequately informed of the reasons for the dismissal, given an opportunity to respond, and treated without bias. The court also considered the substantive fairness of the dismissal, assessing whether the grounds for termination were valid and whether the decision was proportionate. Additionally, the court had to determine whether the dismissal was a genuine redundancy or if it was, in fact, a disguised termination for other reasons. Dr Liang argued that the university failed to follow proper procedures and did not provide a valid reason for his dismissal.

The court found that the university's decision to terminate Dr Liang's employment was procedurally unfair due to procedural errors and a lack of transparency. It was determined that Dr Liang was not given adequate notice of the reasons for his dismissal and was not provided with a reasonable opportunity to respond. The court also concluded that the substantive reasons for dismissal were not valid, as the university could not substantiate its claims of redundancy or performance issues. Consequently, the court ruled that Dr Liang's dismissal was unfair. The court ordered the university to pay Dr Liang compensation for the unfair dismissal, including lost wages and damages for procedural breaches.

Dr Guohua Liang v University of Technology Sydney

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established