Guohun Zhu v University of Southern Queensland
[2024] FWCFB 459
•13 DECEMBER 2024
| [2024] FWCFB 459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Guohun Zhu
v
University of Southern Queensland
(C2024/7856)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 13 DECEMBER 2024 |
Appeal against ex tempore decision and order PR780292 of Commissioner Johns at Melbourne on 16 October 2024 in matter number C2024/5482 – extension of time refused.
Guohun Zhu has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (“Act”) against a decision of Commissioner Johns delivered ex tempore on 13 September 2024. In the decision, the Commissioner declined to grant Mr Zhu an extension of time to file an application for a general protections remedy under s 365 of the Act against the University of Southern Queensland. Mr Zhu requires permission to appeal.
Rule 128(1) of the Fair Work Commission Rules 2024 (“Rules”) requires that a person seeking to institute an appeal under s 604 of the Act must do so by lodging a notice of appeal. Rules 128(2)(a) and (c) provide that the notice of appeal must be lodged within 21 days after the date of the decision being appealed against or within such further time as the Commission allows.
As the Commissioner handed down the decision on 13 September 2024, Mr Zhu was required to file his notice of appeal by 4 October 2024. But it was filed on 5 November 2024, 32 days late. As a consequence, Mr Zhu requires an extension of time to appeal.
The matter was listed before the Full Bench to determine whether to grant Mr Zhu an extension of time and, if so, permission to appeal. The parties consented under s 607(1)(b) of the Act to the application being determined without holding a hearing. We were satisfied, having regard to s 607(1)(a), that the questions of extension of time and permission to appeal could be adequately determined without the need for oral submissions.
Mr Zhu relies on written submissions. The University elected not to file any material in respect of the appeal.
For the reasons that follow, we decline to allow Mr Zhu further time to lodge the appeal.
Procedural history
Mr Zhu was dismissed by the University on 11 December 2023. On 7 April 2024 he filed an application for an unfair dismissal remedy under Part 3-2 of the Act. That application was dismissed.
On 7 August 2024 Mr Zhu filed an application for a general protections remedy against the University under s 365 of the Act. As the application was filed more than 21 days after the dismissal took effect, Mr Zhu required the Commission to allow him an extension of time under s 366(1)(b) of the Act.
The Commissioner conducted a hearing of Mr Zhu’s application for an extension of time on 13 September 2024. Having heard from the parties, the Commissioner delivered an ex tempore decision. He found that there was no basis for the Commission to allow an extension of time. He dismissed Mr Zhu’s application for a general protections remedy. The Commissioner stated that an order giving effect to the decision would be issued that afternoon.
As it transpired, the Commissioner issued the order on 16 October 2024.[1]
On 1 November 2024 Mr Zhu requested written reasons for the Commissioner’s decision.
On 5 November 2024 Mr Zhu filed the notice of appeal in these proceedings.
The Commissioner published his written reasons for decision on 11 November 2024.[2] In large part, they reproduced that part of the transcript of the proceedings on 13 September 2024 recording the Commissioner’s decision, amended to correct any typographical, grammatical or other minor errors and to protect Mr Zhu’s privacy.[3]
Decision under appeal
At the outset of his decision, the Commissioner recorded the parties’ agreement that the University dismissed Mr Zhu on 11 December 2023. He observed that the application had been filed almost eight months later.
The Commissioner proceeded to consider whether to allow a further period for Mr Zhu’s application to be made under s 366(2) of the Act. He observed that the subsection empowers the Commission to allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the criteria in the subsection.
The Commissioner’s considered each of those criteria in turn. The Commissioner summarised Mr Zhu’s reasons for the delay (s 366(2)(a)). These included Mr Zhu’s medical condition, the poor service that he claimed to have received from legal practitioners, and the fact of English being his second language.
The Commissioner observed that there was no evidence before him from a doctor or other mental health professional that attested that it was not possible for Mr Zhu to have filed a general protections claim earlier than 7 August 2024. The Commissioner noted that the fact that Mr Zhu was able to file an unfair dismissal application on 7 April 2024 suggested that he could have filed a general protections application at the same time.
The Commissioner found that the reason for the delay was Mr Zhu’s unfamiliarity with the difference between an unfair dismissal application and a general protections application. The Commissioner stated that “in and of itself” that was not a reasonable explanation for the delay.
The Commissioner was not satisfied that the reasons for the delay were satisfactory. He found that this weighed against there being exceptional circumstances.
The Commissioner accepted that Mr Zhu had taken various steps to challenge his dismissal (s 366(2)(b)). He found that this weighed in favour of granting an extension of time.
The Commissioner found that there was no prejudice caused to the University by the delay (s 366(2)(c)). He found this to be a neutral consideration.
The Commissioner considered the merits of the application (s 366(2)(d)). He stated that it was not possible for him to make an assessment of the merits of the application, in so far as “the applicant has an apparent case to which the respondent has an apparent defence”. He found this to be a neutral consideration.
On the question of fairness between Mr Zhu and other persons in a like position (s 366(2)(e)), the Commissioner found that Mr Zhu had not been able to demonstrate that the matter was sufficiently different to like matters in extension of time hearings which have come before the Commission to warrant it being treated differently. The Commissioner stated that it would be unfair to other applicants who have had their matters dismissed by the Commission to treat Mr Zhu in a different manner. He found that this weighed against there being exceptional circumstances.
Having regard to his findings in relation to the relevant criteria, the Commissioner concluded that he was not satisfied as to the existence of exceptional circumstances, and so could not exercise his discretion to extend time to apply. He dismissed Mr Zhu’s application.
Grounds of Appeal
In his notice of appeal, Mr Zhu set out the grounds of appeal in these terms (reproduced verbatim):
“1. There was a false sexual harassment statement from the Respondent’s Form8A in their ANNEXURE D | OUTCOME SOUGHT section.
2. I could not properly address the Commissioner’s question because of English being my second language.
3. Commissioner regarding my certificate of mental illness, I have obtained a letter from my GP to support this.”
In his written submissions, Mr Zhu elaborated on the grounds of appeal. He conceded that the Commissioner took each of the criteria in s 366(2) into account but contended that he erred in applying the law to the facts of the case.
As to the Commissioner’s finding in relation to the reason for the delay, Mr Zhu conceded that there was no medical evidence before the Commissioner in support of Mr Zhu’s claim that his health condition contributed to his delay in filing. However, he submitted that his oral evidence in the proceedings before the Commissioner, while “not articulated clearly”,[4] explained his attempts to self-manage his mental illness. Mr Zhu contended that this was “not uncommon in Chinese culture because mental illness is viewed as something to be ashamed of”,[5] and that he was otherwise concerned at the potential detrimental impact of a formal clinical diagnosis on his career prospects.
Mr Zhu also challenged the following statement in the decision:
“I therefore also find that the reason for the delay was the applicant’s unfamiliarity with the difference between an unfair dismissal application and a general protections application, however that in and of itself is not a reasonable explanation for the delay.”
Mr Zhu contended that this was not a correct statement of the law. He submitted that “the test for establishing ‘exceptional circumstances’ is not that every criterion is and of itself an exceptional circumstance, but rather the view on the whole of the evidence”.[6]
Mr Zhu asserted that the Commissioner erred in finding that the lack prejudice to the University was neutral. He argued that the lack of prejudice should have weighed in favour of the grant of an extension of time.
Mr Zhu asserted that the Commissioner erred in finding the merits of the matter to be a neutral consideration. He contended that this was “wrong in law”.[7] He relied on the Commissioner’s statement that Mr Zhu “has an apparent case”. He argued that due to the operation of s 361 of the Act, which provides that once adverse action is established the onus shifts to the respondent to prove that such action did not occur because of a proscribed reason, this criterion should have been decided in his favour.
Finally, Mr Zhu took issue with the Commissioner’s finding that Mr Zhu had not been able to demonstrate to his satisfaction that this matter was sufficiently different to like matters in extension of time hearings which have come before the Commission to warrant it being treated differently. He submitted that such a difference was to be found in two respects. First, the case involves fraudulent evidence used in a complaint of sexual harassment, which brought an end to Mr Zhu’s academic career. Second, it involves an egregious breach of his rights to procedural fairness and any person suffering such conduct should rightly expect to be able to preserve their right of review before the Commission.
Extension of time
Time limits such as those in rule 128(2) of the Rules are not simply extended as a matter of course. There are important administrative and industrial reasons for setting a time limit for the bringing of an appeal. An extension should only be granted where there are good reasons for doing so.[8] In his submissions, Mr Zhu accepted that there are “very sound policy reasons why the Commission applies a strict approach to the exercise of its discretion to grant an extension of time beyond the statutory 21-day appeal period”.[9]
The factors that may be relevant when deciding whether an extension of time to appeal should be granted include:[10]
(a) whether there is a satisfactory reason for the delay;
(b) the length of the delay;
(c) the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
(d) any prejudice to the respondent if time were extended.
In broad terms, the question for the Commission is whether, taking these matters into account and in all the circumstances, the interests of justice favour Mr Zhu being granted an extension of time within which to lodge the notice of appeal.[11]
Reason for delay
In his notice of appeal Mr Zhu gave the following reasons for which an extension of time to appeal should be granted (reproduced verbatim):
“• On 13 September 2024, when I heard that the Commissioner was not satisfied with the evidence about my mental health, I was too upset to focus on the subsequent statement.
• I mistakenly thought a written copy of the hearing would be sent to my email and I thought October 16, 2024 would be the decision date.
• The false sexual harassment statement in Respondent’s Form 8A only occurred once and I did not become aware of it until after October 16, 2024.”
Mr Zhu’s written submissions did not deal in any great detail with the question of extension of time to appeal. In large part, Mr Zhu’s submissions conflated his submissions as to why he should have been (and should be) granted an extension of time to file his general protections application with his submission that the Commission ought to grant him an extension of time to lodge his appeal. It was not immediately clear what reason or reasons were offered for the delay in lodging the appeal, as opposed to the delay in making the general protections application.
Adopting a beneficial reading of Mr Zhu’s notice of appeal and submissions, we understand that the reasons he gives for the delay in lodging the appeal are:
(a)his mental health. Mr Zhu sought to rely on a letter from Dr Nadun Rubasinghe of the Highgate Hill Doctors Family Medical Practice to Ms Toni Phillips dated 25 September 2024 (“Medical Referral”). We presume that Ms Phillips is a mental health clinician, as the document thanks her for seeing Mr Zhu “for Depression, anxiety and stress under MCHP [sic]”;
(b)the fact of English being his second language;
(c)perhaps consequently, mistakes by Mr Zhu that the decision would be provided to him following the hearing, and that the date on which the Commissioner made the order was the date of the decision; and
(d)he only became aware of a false statement in the University’s response to his general protections application after 16 October 2024.
We take Mr Zhu’s submissions as a request that the Commission admit the Medical Referral as further evidence under s 607(2) of the Act. Mr Zhu did not address the principles governing the discretion to admit and consider further evidence on appeal.[12] As it is, however, we do not need to determine whether to admit the Medical Referral into evidence. Even were we to do so, it does not attest to Mr Zhu’s inability to lodge the appeal within time. On the information available to us, we are not persuaded that Mr Zhu’s mental health provides a satisfactory reason for the delay.
We are similarly not persuaded that the delay can be explained by Mr Zhu becoming belatedly aware of the contents of the University’s response to his general protections application. It is clear from the transcript of proceedings before the Commissioner that Mr Zhu was aware that the digital court book included the response. Mr Zhu had ample opportunity to consider its contents.
However, we accept that Mr Zhu may have been confused as to when time to lodge his appeal began to run. It is understandable that he was waiting to receive “the decision” from the Commission – the Commissioner had stated at the conclusion of the hearing that an order giving effect to his decision would issue. Mr Zhu would not necessarily have known the difference between the decision and the order.
We consider it to be relevant that the Commissioner’s order was not issued for more than a month after the hearing. We do not say this with criticism; we do not know the cause of the delay. It is significant, though, that Mr Zhu requested written reasons for the decision and lodged his notice of appeal within 20 days of receiving the order.
We are satisfied for these reasons that Mr Zhu has provided an acceptable explanation for the delay.
Length of delay
The delay was 32 days. In the context of the 21-day period in rule 128(2)(a), that is a significant delay.
Nature of the Grounds of Appeal
There is no right to appeal. Section 604(1) of the Act provides that an appeal may only be made with the permission of the Commission. Under s 400(1) of the Act,[13] the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one”.[14]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[15] The public interest is not satisfied simply by the identification of error or a preference for a different result.[16] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[17]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, an error by the Member at first instance is not necessarily a sufficient basis for the grant of permission to appeal.
Mr Zhu’s challenge to the Commissioner’s findings as to the reasons for the delay is in two parts. The first relates to the lack of medical evidence before the Commissioner. There are two points to make in this respect.
First, Mr Zhu concedes that there was no such medical evidence. Yet he submits that his oral evidence before the Commissioner ought to have been taken, or be taken, as reflecting Chinese cultural norms. Mr Zhu’s submissions do not directly assert error by the Commissioner in that regard. Regardless, there was no error.
Second, Mr Zhu relies on the Medical Referral. Again, even were we to admit that document into evidence it would not assist Mr Zhu. It post-dates the decision. Moreover, it does not attest to the fact that Mr Zhu’s mental health contributed to the delay between his dismissal and the filing of the general protections application.
The second part of the challenge to the Commissioner’s findings as to the reasons for the delay is reflected at [28]-[29] above. Mr Zhu’s submissions mischaracterise the Commissioner’s finding. The Commissioner found only that Mr Zhu’s unfamiliarity with the difference between an unfair dismissal application and a general protections application was not of itself a reasonable explanation for the delay. He did not, as Mr Zhu’s submissions suggest, find that this was not of itself an exceptional circumstance.
Mr Zhu’s challenge to the Commissioner’s finding that the lack of prejudice to the University was neutral also lacks substance. It is well established that the absence of prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement.[18]
Mr Zhu’s submissions in respect of the Commissioner’s finding that the merits of the matter were a neutral consideration are flawed in two respects. First, they do not reflect the whole of the Commissioner’s reasoning. They refer only to the Commissioner’s statement that Mr Zhu “has an apparent case” to support the proposition that the “reverse onus” in s 361 should have seen this criterion decided in Mr Zhu’s failure. The submissions ignore that the Commissioner also stated that the University “has an apparent defence”.
Second, the submissions do not reflect the task the Commissioner was undertaking. He was not required to undertake a detailed consideration of the substantive case.[19]
Finally, Mr Zhu’s challenge to the Commissioner’s finding regarding fairness as between Mr Zhu and other persons in a similar position does not demonstrate an arguable appealable error. Indeed, Mr Zhu’s submissions do not positively assert error. Rather, they do no more than express disagreement with the outcome and express a preference for a different result.
For these reasons, we are not satisfied that the grounds on which Mr Zhu relies raise an arguable case of appealable error. This weighs against allowing further time to file the notice of appeal.
Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. It does not raise any genuine issue of law, principle or wider application.
Mr Zhu asserted that his dismissal has resulted in him being unable to financially support his family in China. He further asserted that he has been “threatened and harassed on social media (Wechat [sic]) and SMS, including threats telling him to stop pursuing the matter”, which prevent him returning to China. There is no evidence to support those assertions.
As the appeal does not attract the public interest, permission to appeal must be refused.[20] This weighs against the grant of an extension of time to lodge the appeal.
Prejudice to the University
There is no suggestion that the University would be prejudiced were we to allow the appeal to be filed out of time. On the material before us and having regard to the cases referenced at [52] above, we do not consider this factor of significance in this case.
Conclusion
Although the delay in Mr Zhu lodging his notice of appeal is significant, we have found that he has provided an acceptable explanation for it. However, it is likely that the appeal grounds would not be upheld if time were extended and that permission to appeal would be refused. Consequently, we conclude that the interests of justice do not favour Mr Zhu being granted an extension of time.
Order and disposition
We refuse Mr Zhu an extension of time to file the appeal. Mr Zhu’s application for permission to appeal is dismissed.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] PR780292
[2] Guohun Zhu v University of Southern Queensland[2024] FWC 3103
[3] Guohun Zhu v University of Southern Queensland[2024] FWC 3103 at [3], footnote 2
[4] Submissions on Behalf of the Appellant, 24 November 2024, par 27
[5] ibid
[6] Submissions on Behalf of the Appellant, 24 November 2024, par 30
[7] Submissions on Behalf of the Appellant, 24 November 2024, par 33
[8] Jaafar Zadeh v AWX Pty Ltd t/a AWX Group[2015] FWCFB 8227at [6]; Stork v ABN Group Vic Pty Ltd[2023] FWCFB 68 at [5]
[9] Submissions on Behalf of the Appellant, 24 November 2024, par 40
[10] Jobs Australia v Eland[2014] FWCFB 4822 at [3]. See also Jaafar Zadeh v AWX Pty Ltd t/a AWX Group[2015] FWCFB 8227at [6] and Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8] and the authorities cited therein.
[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; Wilson v CPB Contractors Pty Ltd[2017] FWCFB 5387at [7]
[12] As set out in Akins v National Australia Bank [1994] 34 NSWLR 155, 160
[13] Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act
[14] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[15] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[16] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[17] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[18] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Gail Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[19] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]
[20] Section 400(1) of the Act
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