Ferngrove Pharmaceuticals Pty Ltd v Chuan Wei Ji
[2017] FWCFB 3901
•29 AUGUST 2017
| [2017] FWCFB 3901 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Chuan Wei Ji
(C2017/3519)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2017] FWC 2999 of Deputy President Sams at Sydney on 8 June 2017 in matter number U2016/15442.
Introduction and background
[1] Ferngrove Pharmaceuticals Pty Ltd (Ferngrove) has applied for permission to appeal and appealed a decision of Deputy President Sams issued on 8 June 2017 1 (Decision). In the Decision, the Deputy President found that Mr Chuan Wei Ji had been unfairly dismissed by Ferngrove and ordered Ferngrove pay Mr Ji compensation of $14,592.00 gross, plus 9.5% superannuation, within 21 days2. Ferngrove applied for a stay of the Decision and order pending the hearing and determination of its appeal. This application was heard by Deputy President Colman on 4 July 2017 and dismissed by him in a decision issued on 5 July 2017 (Stay Decision).3
[2] Mr Ji was summarily dismissed from his employment for theft after Mr Ji’s ex-wife, Ms Chen, provided several containers of capsules to Mr Tang, the managing director of Ferngrove, and alleged that Mr Ji had stolen the capsules from the Ferngrove pharmaceutical factory. Some of the capsules were flawed and appeared to Mr Tang to be defective product that would have been discarded during the production process and not have been available commercially. As the production process occurred in a secure area, Mr Tang concluded that the product presented to him by Ms Chen must have been stolen by Mr Ji from the Ferngrove factory.
[3] Mr Tang summarily dismissed Mr Ji on 13 December 2016. Mr Ji was not provided with the details of the alleged theft, and did not learn that his ex-wife was the source of the allegations against him until the conciliation conference before the Commission three months later. 4 He was not given an opportunity to respond to the allegation of theft and was not issued with a letter of dismissal. He lodged an unfair dismissal remedy application on 22 December 2016.
[4] The unfair dismissal proceedings before the Commission were conducted as a determinative conference. Mr Ji and Ms Chen gave evidence with the assistance of a Mandarin interpreter. Mr Tang also gave evidence.
The Decision
[5] In his Decision, the Deputy President had regard to the sworn evidence of the three witnesses, Mr Ji, Mr Tang and Ms Chen. The Deputy President concluded, based on his assessment of their evidence, that there was no valid reason for the dismissal. The critical findings were as follows:
“[33] In my view, Ms Chen’s evidence was implausible and tainted with mala fide intent. I believe she was motivated by revenge and ‘payback’ for her broken marriage. She is the classic disgruntled ex-partner. Accordingly, I find her evidence to be unreliable. It follows that Mr Tang’s reliance on her as a person of truth, impugned his decision to dismiss Mr Ji.
[34] The only evidence Mr Tang had from Ms Chen was three small, unmarked plastic take away food containers containing at least 9 month old vitamin capsules (EPO products). Mr Tang did not have them analysed to confirm that they had been produced at the factory. He acknowledged that they appeared to be ‘very old’. He relied on a visual assessment that they also appeared unfinished (not sorted) and therefore could not have been sourced from a retailer or another manufacturer. However, later Mr Tang agreed that the three containers of EPO products ‘could easily got [sic] from [a] Chemist’. In my view, the fact the products in the three containers were loose, could be bought from a chemist and could well have deteriorated because they were ‘very old’, does not prove they were sourced from the respondent’s factory. In my judgement, Mr Tang made a gigantic jump to unlikely conclusions for which other explanations, had they been sought (but were not), might have explained the innocent origin of the products.
[35] Towards the end of Mr Ji’s evidence and without realising the significance, he said that he and his wife had been involved in a home enterprise of selling small numbers of vitamin products to friends in China. What his wife found may have been residual supplies kept at their joint residence after he had left. While this sounded a curious explanation, particularly given it did not surface until the last minute, Mr Ji was later able to prove from invoice receipts, dating back to October 2015, that this was correct. I accept this explanation as consistent with my finding that Mr Ji was a witness of truth, whose evidence that he had never stolen anything from the Company, is to be believed.
[36] In my view, the respondent has failed the onus of proving the applicant’s misconduct and given the mala fide intent of Ms Chen, it was not safely open for Mr Tang to conclude that the applicant was guilty of theft of the Company’s product. Accordingly, I am satisfied that there was no valid reason for Mr Ji’s dismissal.”
[6] The Deputy President went on to consider the other matters required to be taken into account under s.387 of the Fair Work Act 2009 (FW Act). His finding in relation to s.387(b) was that Mr Ji had been the subject of “a gross denial of natural justice”. The Deputy President ultimately concluded:
“[51] In summary, I am satisfied the applicant’s dismissal was ‘harsh, unjust and unreasonable’ both substantively and procedurally and therefore unfair. Mr Ji’sdismissal was unjust, because he was not guilty of the misconduct alleged against him and given no opportunity to explain or give his version of events; unreasonable, because his dismissal was decided solely on the biased ‘say so’ of his disgruntled ex-wife and was not reasonably open on the material before the employer and it was harsh, because of the personal and economic circumstances that Mr Ji found himself as a consequence of his dismissal.”
Appeal grounds and submissions
[7] The Stay Decision usefully summarised Ferngrove’s appeal grounds as follows (footnotes omitted):
“[13] Ferngrove’s grounds of appeal comprise 13 paragraphs with a common theme, namely that the decision of the Deputy President involved significant errors of fact. The alleged errors are set out in paragraphs 8 to 13 of the Notice of Appeal.
[14] In paragraph 7, Ferngrove submitted that any person with expertise in capsule production would appreciate that the capsules ‘could only have come from the factory – and not from a retail outlet – because it contained some flawed capsules that would always be removed before product was released for sale’.
[15] In paragraph 8, it was contended that the Deputy President wrongly interpreted the defects in the capsules to be the result of age; but that in fact capsules do not deteriorate with age. To the company, the defects in the product were ‘conclusive evidence’ that the product was taken from its factory.
[16] Paragraph 9 is difficult to understand. At the stay hearing, I asked Mr Scott, who appeared for the company, to clarify its meaning. He responded that this ground contends that the product in question was old, having hardened and darkened, and that this is consistent with the product having been stolen from the factory some time ago, by Mr Ji, not more recently, by Ms Chen.
[17] Paragraph 10 of the Notice of Appeal focused on the Deputy President’s finding that Ms Chen was an unreliable witness. Ferngrove submits that this finding was of no relevance to the company’s decision to dismiss Mr Ji because of the physical evidence referred to in the preceding paragraphs.
[18] In paragraph 11, it was claimed that some of Mr Tang’s evidence was misunderstood. At paragraph 34 of the decision, Mr Tang is said to have conceded that the three containers of (EPO) product could easily have been bought from a chemist; Ferngrove contends that his evidence was taken out of context, and that in fact he was saying that this type of product – not the particular specimens before the Commission – could be obtained from a chemist.
[19] In paragraph 12, Ferngrove submitted that the Deputy President was wrong to conclude that ‘loose’ product is ‘less valuable as evidence’, when in fact loose product is ‘consistent with product stolen from the production area’.
[20] In paragraph 13, Ferngrove contended that all of the elements of the evidence that the company relied on when making its decision to dismiss Mr Ji were consistent with theft, and that the Deputy President’s conclusion that the allegation of theft was unsubstantiated was ‘contrary to the overwhelming weight of evidence.’”
[8] Ferngrove’s written and oral submissions in support of its application for permission to appeal focused upon the sentence in paragraph [34] of the Decision: “However, later Mr Tang agreed that the three containers of EPO products ‘could easily got [sic] from [a] Chemist’.” It sought to argue that this evidence had been misunderstood or taken out of context, in that Mr Tang was referring to the type of product in general, not the specific sample of capsules which Ms Chen had provided to Mr Tang. It also sought to argue that Mr Tang may not have understood the question which caused him to give this answer, in circumstances where Ferngrove was not legally represented and Mr Tang had language difficulties and a lack of knowledge of the process. It also submitted that the adverse finding concerning Ms Chen’s credibility was irrelevant, because it could was conclusively clear from the flawed appearance of the capsules that they had been taken from Ferngrove’s factory production line.
[9] Ferngrove submitted that it was in the public interest to grant permission to appeal because, having regard to the fact that the parties were not represented, had limited understanding of the process and gave evidence through an interpreter, it was necessary to ensure that matters of this type were resolved fairly. Additionally, the Deputy President’s misinterpretation of Mr Tang’s evidence constituted a significant factual error.
Consideration
[10] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment7. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 8
[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 9 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.10
[14] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 11
[15] We note that in the Stay Decision the following conclusions were reached as to whether Ferngrove’s appeal was arguable with reasonable prospects of success:
“[26] In relation to the grounds of appeal in paragraphs 7, 8, 9, 10, 12 and 13, it is my view that Ferngrove has not made out an arguable case with some reasonable prospect of success. In particular, I find it difficult to see how any of the alleged errors in these paragraphs could be described as significant.
[27] This leaves me to consider the ground in paragraph 11 of the Notice of Appeal. This ground concerns an alleged misapprehension by the Commission as to the intended meaning of Mr Tang’s evidence about the availability of certain products in chemists. This is a matter of potential significance. It is possible that on this issue, the limitations of Mr Tang’s English language capacity prevented him from conveying his evidence effectively, and that something might have been missed in translation, despite the good endeavours of the interpreter.
…
[29] The significance of the alleged error here is that Ferngrove’s argument that the product in evidence came from its factory might have been stronger. However, as noted above, even if this element of Ferngrove’s argument is accepted, there is no evidence substantiating the allegation that it was Mr Ji who took the product from the factory.
[30] As to the company’s intention to lead fresh evidence on appeal, s.607(2) of the Act confers on a Full Bench a discretion to admit further evidence and take into account any other information or evidence. It will be for the appeal bench in this matter to decide whether to exercise this discretion. However, in Loftus, a Full Bench of the Commission stated that an appeal ought not be an occasion for a party to run an improved case, and that an appeal bench would not generally admit fresh evidence to the consideration of an appeal which was able to be provided at the initial hearing.
[31] Ferngrove may be able to develop its various arguments on appeal. However, in the context of the higher threshold for permission to appeal and the requirement that any alleged errors of fact be significant, I am not presently satisfied that Ferngrove has made out an arguable case, with some reasonable prospects of success as to the merit of an appeal or as to permission to appeal.” 12
[16] Notwithstanding the comment in paragraph [31] of the Stay Decision, we do not consider that there was any development of Ferngrove’s argument in its submissions before us which would cause us to reach any different conclusion concerning the arguability of the appeal than that reached by the Deputy President. There was no actual or foreshadowed application before us to adduce new evidence, let alone any identification of what that evidence would be. In relation to the evidence of Mr Tang which was said to have been misinterpreted, we note that the relevant statement was not made in Mr Tang’s oral evidence, but was part of Ferngrove’s Form F3 response to Mr Ji’s unfair dismissal remedy application. This response bore Mr Tang’s name at the signature page. As recorded in paragraph [6] of the Decision, Mr Tang adopted the contents of the response as his statement of evidence. The relevant statement was as follows (emphasis added):
“Applicant’s wife contacted me on 9 December 2016, and reported to me that the applicant stole manufactured products time to time. She and her father came to the factory on 9 December 2016; they brought 3 boxes EPO products, and a container full of Krill Oil Capsules. All those products were manufactured in our factory. For the EPO products, they may be easily got from chemist, but for capsules, it is hard for anyone outside the factory to obtain them. Few of the capsules had flaws; it looks like coming from the production line before the sorting department. This conduct of theft is totally unacceptable.”
[17] The statement was part of the response to the standard-form question in the Form F3: “What is your response to the applicant’s contentions?” We do not consider that it is arguable that Mr Tang did not understand the effect of the statement made in the Form F3, which bore his name, because of language difficulties. There is certainly no basis to consider that the manner in which the Deputy President conducted the determinative conference could have affected the content of the Form F3, which was prepared outside of court well beforehand. It is not clear to us that Mr Tang had any English language difficulty of substance at all; he gave his oral evidence in English, despite the fact that a Mandarin interpreter attended the determinative conference and assisted Mr Ji and Ms Chen to give their evidence.
[18] Nor do we consider that it is possible to read the statement as meaning anything other than that the EPO products which Ms Chen provided to Mr Tang could readily be obtained from a chemist. It is unclear whether the subsequent reference to the capsules means the EPO products or the Krill capsules, but in any event it demonstrates that Ferngrove’s case that Mr Ji must have stolen the capsules rose no higher than the level of assertion. We were not taken to anything in Mr Tang’s evidence which put the case against Mr Ji any higher than this. We do not consider it arguable that the Deputy President should have been satisfied on the basis of the evidence before him that Mr Ji had committed the serious misconduct in the form of theft alleged against him. We do not accept that the adverse finding concerning Ms Chen’s credibility was irrelevant, because it was only her evidence that linked Mr Ji to the capsules she provided to Mr Tang. By contrast, Mr Ji, whose evidence was that he had never stolen anything, was found to be a witness of truth.
[19] We are therefore not persuaded that any arguable case of appealable error has been made out. Simply disagreeing with the decision at first instance does not provide a basis for satisfying the public interest test for the grant of permission to appeal. On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s exercise of his discretion, of the kind discussed in House v King. 13 We also do not consider that an arguable case has been made out that the Deputy President's conclusion was unreasonable, manifested by any injustice or counter-intuitive. There was nothing unusual or deficient in the process conduct by the Deputy President; he conducted the matter as a determinative conference consistent with s.398 of the FW Act, made available the services of a Mandarin interpreter, and provided a degree of assistance and intervention in the conduct of the conference appropriate for unrepresented parties.
[20] We are not persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. This was a case which turned entirely on its own facts. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest. In accordance with s.400(1) of the FW Act, permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
R. Scott on behalf of Ferngrove Pharmaceuticals Pty Ltd
C. Ji on his own behalf.
Hearing details:
2017.
Sydney:
August 7.
1 [2017] FWC 2999
2 PR593639
3 [2017] FWC 3503
4 Decision at [3]
5 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 (2011) 192 FCR 78 at [43]
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
8 [2010] FWAFB 5343, 197 IR 266 at [27]
9 Wan v AIRC (2001) 116 FCR 481 at [30]
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
11 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
12 Stay Decision at [26] – [31]
13 [1936] HCA 40; 55 CLR 499
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