Ka Yen Choy v Ekera Dental Pty Ltd
[2025] FWCFB 118
•19 JUNE 2025
| [2025] FWCFB 118 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ka Yen Choy
v
Ekera Dental Pty Ltd
(C2025/3117)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER PLATT | MELBOURNE, 19 JUNE 2025 |
Appeal against decision [2025] FWC 893 of Deputy President Roberts at Sydney on 31 March 2025 in matter number C2024/8465 – permission to appeal refused.
Ms Ka Yen Choy has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] of Deputy President Roberts issued on 31 March 2025. In the decision, the Deputy President dismissed Ms Choy’s 365 general protections application made against the respondent, Ekera Dental Pty Ltd. The Deputy President upheld the respondent’s jurisdictional objection, finding that Ms Choy was not dismissed but rather voluntarily resigned from her employment.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
Ms Choy was employed by the respondent as a part time dental assistant from June 2024. Relevantly, before the Deputy President, Ms Choy contended that her interaction with one of the dentists, Dr Eyles, on the morning of 20 November 2024, combined with her interactions with the practice manager, Ms Campbell, that day amounted to bullying and harassing behaviour. Ms Choy said that this behaviour upset and humiliated her such that she had no option to resign, which she did at 10:30pm that evening by email.
In the decision, the Deputy President made a series of factual findings, in summary:
(a)Dr Eyles was upset and annoyed with Ms Choy because he mistakenly thought that she had unilaterally decided that she would not work with him and he regarded this as a challenge to his authority.
(b)While Dr Eyles’ words were delivered in a very firm tone, he did not speak in such an overbearing or aggressive way as to leave Ms Choy with any alternative but to resign.
(c)While Ms Campbell was concerned to have confirmation from Ms Choy about whether she would attend for work the following day, she did not badger or pressure Ms Choy to give her resignation on 20 November 2024.
On the basis of these findings, the Deputy President was not satisfied that the respondent engaged in conduct with the intention of bringing Ms Choy’s employment to an end. Nor was termination of the employment the probable result of the respondent’s conduct such that Ms Choy had no real or effective choice but to resign. Rather, Ms Choy elected to resign after weighing her options on the evening of 20 November 2024. Having regard to these findings, the Deputy President dismissed Ms Choy’s application.
Grounds of appeal and public interest
By way of an Addendum to the Form F7 Notice of Appeal, and through her outline of submissions, Ms Choy advances three appeal grounds:
false and misleading evidence;
lack of procedural fairness; and
error of fact.
By appeal ground (1), Ms Choy contends that the respondent’s Form F8A response and annexures contain screen shots of a text message conversation between Ms Choy and Dr Ming allegedly on 19 November 2024. Ms Choy contends these messages are “doctored” as the messages were in fact sent on 20 November 2024. Ms Choy’s position is that the respondent has committed an offence under s 678 of the Act by giving sworn or affirmed evidence before the Commission that is false or misleading, and the decision made no reference to this.
By appeal ground (2), Ms Choy contends that the hearing rule was contravened. This is because the Deputy President’s mind may have been contaminated by reason of the false and misleading evidence referred to above, which influenced the Deputy President to incorrectly assume Ms Choy intended to resign one day prior to the relevant date.
By appeal ground (3), Ms Choy contends that the Deputy President misjudged her credibility because of the false or misleading evidence the subject of ground (1). Ms Choy submits that the Deputy President was aware of the allegation that the respondent’s material contained a false date, and by accepting that falsified evidence he was misled in his decision making.
Ms Choy contends that it is in the public interest to grant permission to appeal including because the false and misleading evidence means that the Commission did not exercise its functions and powers in a manner that is fair and just, nor has the Commission been open and transparent in the administration of its decision-making.
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission 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 judgment.[2] The public interest is not satisfied simply by the identification of error or a preference for a different result.[3] 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.[4]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[5] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We are not persuaded that Ms Choy’s grounds of appeal disclose any arguable appealable error. Our reasons may be briefly stated.
As paragraph [8] of the decision demonstrates, the Deputy President proceeded on the basis that the text message exchange between Ms Choy and Dr Ming occurred on 20 November 2024. This reflected Ms Choy’s position and that of the respondent. The contention that the Deputy President relied upon false and misleading evidence that this text message exchange occurred on 19 November 2024 is not arguable, having regard to the decision.
In light of the above:
(a)Ms Choy’s submission that the Deputy President “incorrectly assumed” that she intended to resign one day prior to the relevant date, or that her credibility was misjudged because the Deputy President “accepted” the false or misleading evidence, is simply not arguable; and
(b)the contention that the hearing rule was contravened on the basis of this issue therefore cannot be sustained. There is no arguable support for a finding that Ms Choy was denied procedural fairness in respect of this issue, or at all.
We otherwise note that contravention of s 678 is a criminal offence, punishable by imprisonment. It is not open to the Commission to find that s 678 has been contravened, as submitted. Applications under s 678 of the Act are to be determined by a Court of competent jurisdiction.
Conclusion and disposition
We are not satisfied, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application.
Permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] [2025] FWC 893
[2] 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]
[3] 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]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[5] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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