Ka Yen Choy v Ekera Dental Pty Ltd - [2025] FWCFB 118

[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
COMMISSIONER THORNTON

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ka Yen Choy v Ekera Dental Pty Ltd

Details

AGLC: Ka Yen Choy v Ekera Dental Pty Ltd [2025] FWCFB 118
Case: [2025] FWCFB 118
Decision Date: 19 JUNE 2025

CaseChat Overview and Summary

In the Fair Work Commission, Ms. Ka Yen Choy lodged an appeal against a decision made by Deputy President Roberts on 31 March 2025, dismissing her general protections application against Ekera Dental Pty Ltd. The Deputy President found that Ms. Choy voluntarily resigned from her position as a part-time dental assistant, rejecting her claim that she was bullied and harassed into resigning. Ms. Choy appeals the dismissal on three grounds: alleged false and misleading evidence, lack of procedural fairness, and errors of fact. The appeal hinges on whether these grounds demonstrate an arguable case of appealable error warranting permission to appeal under s 604 of the Fair Work Act 2009.

The Commission assessed the appeal grounds to determine if they raised an arguable case of appealable error. Ms. Choy argued that the respondent provided false and misleading evidence by presenting a text message exchange that occurred on 20 November 2024 as having happened on 19 November 2024. However, the Commission noted that the Deputy President based his decision on the correct date, making the alleged error non-arguable. Consequently, the claims of procedural unfairness and misjudged credibility stemming from this issue also lack arguable support. The Commission concluded that no arguable case of appealable error existed, as the Deputy President's findings were not influenced by the alleged false evidence.

The Commission determined that the appeal did not attract the public interest necessary for permission to appeal. The grounds of appeal did not present a genuine issue of law or principle of wider application, nor did they manifest any injustice or counterintuitive result. The Commission emphasized that permission to appeal should rarely be granted unless an arguable case of appealable error is demonstrated, which was not the case here. Therefore, the appeal was dismissed, and permission to appeal was refused.

Orders