GTS Travel Management t/a Green Travel Service v Ms Bernice Zhang

[2018] FWC 571

[2018] FWC 571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

GTS Travel Management t/a Green Travel Service
v
Ms Bernice Zhang
(C2018/284)

DEPUTY PRESIDENT SAMS SYDNEY, 29 JANUARY 2018

Appeal against decision [2017] FWC 7061 and Order PR599148 of Commissioner Johns at Sydney on 29 December 2018 in matter number U2017/10130 – application for remedy for unfair dismissal – dismissal inconsistent with Small Business Fair Dismissal Code – dismissal ‘harsh, unjust or unreasonable – compensation ordered – application for a stay order – no reasonable prospects of success – unnecessary to consider balance of convenience – stay order refused.

[1] This decision confirms my ex tempore decision in a stay application listed for hearing last Thursday 25 January 2018.

[2] On 17 January 2018, GTS Travel Management t/a Green Travel Service (the ‘appellant’) lodged an appeal, for which permission to appeal is required from the Full Bench of the Fair Work Commission (the ‘Commission’) under ss 400 and 604 of the Fair Work Act 2009 (the ‘Act’), against a decision and order of Commissioner Johns of 29 December 2017 in Zhang v GTS Travel Management t/a Green Travel Service [2017] FWC 7061. The Commissioner ordered the appellant to pay compensation to Ms Bernice Zhang (the ‘respondent’) of $19,831.73 following his findings that the dismissal of the respondent was inconsistent with the Small Business Fair Dismissal Code (the ‘Code’), pursuant to s 385(c) of the Act and was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act.

[3] In the appellant’s notice of appeal it seeks a stay of the whole of the Commissioner’s decision (the ‘Decision’) and order pending the hearing and determination of the appeal. The appeal has been listed for hearing on 8 February 2018. I note the appeal and the stay application was lodged just two days before the order was required to be complied with.

Statutory provisions and principles

[4] Section 604 of the Act reads:

‘604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.’

[5] The right to appeal a decision of the Commission, made under Part 3-2 of the Act, is discretely set out at s 400 as follows:

‘400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.’

[6] While ss 604 and 400 of the Act are to be read together, it is obvious that there are different considerations the Full Bench must have regard to when determining appeals in its unfair dismissal jurisdiction. These are, firstly, the different emphasis on the public interest test and secondly, that if an appeal concerns a question of fact, the appellant must establish a ‘significant’ error/s of fact.

[7] The particular provisions dealing with stay applications are set out at s 606 as follows:

‘606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(a) the Full Bench; or

(b) the President; or

(c) a Vice President; or

(d) a Deputy President.

(3) This section does not apply in relation to a decision to make a protected action ballot order.’

[8] The principles to be applied by the Commission in considering an application for a stay order are now well settled. These principles are set out in the decision of Ross VP (as he then was) in P Edghill v Kellow Falkiner Motors Pty Ltd (Print S2639), which was adopted by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Kellow-Falkiner Motors Pty Ltd v Edghill (Print S4216). His Honour said at paras [5] and [6]:

‘[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.’

[9] In respect of the first limb of the test for the grant of a stay – that there is an arguable case with some reasonable prospects of success – it is necessary to emphasise that the test applies to the requirement for permission to appeal as well as the substantive merits of the appeal. Section 400(1) of the Act requires that the Commission must not grant permission to appeal, unless it is satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.  The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 a Full Bench of Fair Work Australia (as the Commission was then styled) identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue 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...”

[10] In assessing whether the purpose of a stay application in an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits of the matter in a preliminary way, 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 consider the case materials; although I have now received and considered the appellant’s submissions in the appeal.

GROUNDS OF APPEAL

[11] In its grounds of appeal the appellant firstly said:

‘We don’t agree that the termination of the Applicant’s employment lacked a valid reason and was harsh and unjust, thus the order that GTS Travel Management pay Bernice Zhang $19,831.73 as a remedy was issued inappropriate (sic).’

[12] The appellant then set out what appeared to be the same case it had advanced before the Commissioner as to valid reasons for dismissal, verbal warnings given to the respondent and the appellant’s financial circumstances. It then said:

[T]he investor is now feeling heartbroken that the company has to continuously to be suffered from further financial losses from this unfair judgement made by Commissioner John[s].

…

Now the investor is feeling so disappointed with this substantial order of remedy, which would dim his passion and enthusiasm for keep running business in Australia.

…

We sincerely seek Fair Work Commission to reduce the consideration to be paid to applicant accordingly for the best interest of the current employees of the Company as well as the foreign investor’s interest.

THE HEARING

[13] At the hearing of the stay application, Mr P Sheng, Finance Manager represented the appellant and Ms B Zhang appeared for herself. Despite my invitation to Mr Sheng to identify the errors it claims in the Decision of the Commissioner, Mr Sheng submitted that the Commissioner was wrong to not accept the appellant’s evidence as to:

(a) A valid reason for the respondent’s dismissal;

(b) The verbal warnings given to the respondent; and

(c) The appellant’s compliance with the Code.

However, it seems to me that the real grievance the appellant has with the Commissioner’s Decision is that it believes the compensation ordered was excessive, given its financial circumstances.

[14] I have now had the opportunity to read the appellant’s submissions filed today for the appeal. Regrettably, they generally do no more than set out the case the appellant advanced before Commissioner Johns and the appellant’s dissatisfaction with the outcome, without identifying what it claims are errors of fact in the Decision; let alone significant errors.

Ms Zhang’s response

[15] The respondent set out her submissions, opposing the grant of a stay as:

(a) The appellant has merely ‘copied and pasted’ the statements it submitted at the earlier hearing and which were thoroughly addressed by the Commissioner; and

(b) The appellant simply said it ‘felt’ that the original decision contained appealable errors, without identifying any errors.

[16] Ms Zhang said that the appellant is simply upset by the result and hopes for a better one on appeal. It is abusing the appeal process in order to find excuses for delaying the payment of compensation. Ms Zhang stressed she had been unable to find work since her dismissal, due to her advanced pregnancy and she was suffering severe financial difficulties.

[17] Ms Zhang rejected the appellant’s claims of financial problems and said the Company is owned by a Singaporean company, SingXpress Ltd, which is itself owned by a Hong Kong listed Company, Xpress Group Ltd, which has a market value of more than $400 million.

CONSIDERATION

[18] Given the appellant firstly, has not provided any examples of appealable errors in the Decision; let alone significant errors in its grounds of appeal, and secondly submitted that its evidence had not been taken into consideration by the Commissioner, which he plainly did and rejected; see: paras [25]-[32], [38]-55], [74]-[84] of the Decision, I am not satisfied, on the basis of the material before me, and the submissions of Mr Sheng that the appellant has demonstrated it has an arguable case, with some reasonable prospects of success in respect to permission to appeal.

[19] This conclusion would be sufficient to reject the stay application, as it would not be necessary for me to deal with the balance of convenience issue.

[20] However, the appellant’s claim of experiencing significant financial stress, which was partly accepted by the Commissioner when he noted the ‘company is solvent and that they plan to continue trade’; see: para [83] of the Decision, and that the compensation order ‘disappointed’ the Company’s investor and ‘dimmed his passion and enthusiasm for keep (sic) running business in Australia’, does not, without more, establish the balance of convenience as favouring the appellant. I also have taken into account that the appeal and stay application was lodged 19 days after the Decision. Further, the appeal is listed for hearing before the Full Bench very shortly (next week). There was no suggestion that should the appellant be successful that Ms Zhang would not repay any monies paid to her; indeed, she gave an express assurance to that effect during the stay application hearing. These factors tell against the balance of convenience favouring the appellant.

[21] In any event, given that I am not satisfied that the first leg of the two factors to be considered by the Commission in this matter, has been met, the stay application is refused and dismissed. I order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr P Sheng, Finance Manager for the appellant.

Ms B Zhang, for herself.

Hearing details:

2018

Sydney:

January 25.

Printed by authority of the Commonwealth Government Printer

<Price Code C PR599882>