Lidong Han v State of Victoria (Department of Education)
[2023] FWCFB 145
•23 AUGUST 2023
| [2023] FWCFB 145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lidong Han
v
State of Victoria (Department of Education)
(C2023/3629)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 23 AUGUST 2023 |
Appeal against decision [2023] FWC 1374 of Deputy President Gostencnik at Melbourne on 19 June 2023 in matter number U2022/8424.
Mr Han has appealed against a decision of Deputy President Gostencnik issued on 19 June 2023.[1] The decision concerned two jurisdictional objections made by the State of Victoria (Department of Education), Mr Han’s former employer, in respect of Mr Han’s application for an unfair dismissal remedy. The objections were that Mr Han had not been dismissed, but had resigned, and that in any event that Mr Han had not served the minimum employment period of six months required for a competent unfair dismissal application under ss 382(a) and 383 of the Fair Work Act 2009 (FW Act). The Deputy President rejected the first jurisdictional objection, finding that in purporting to accept a resignation that was subject to conditions with which it did not agree, the respondent dismissed Mr Han.[2] In respect of the second jurisdictional objection, it was not in dispute that Mr Han’s employment commenced on 28 January 2022. The Deputy President found that the dismissal occurred on 17 July 2022[3] and, consequently, that Mr Han had not served the minimum employment period. On that basis, the Deputy President dismissed Mr Han’s unfair dismissal application. Mr Han contends in his appeal that his dismissal in fact took effect on or after 31 July 2022, by which time he had completed the six-month minimum employment period, and that the Deputy President erred in determining otherwise. Permission is required for Mr Han’s appeal. Under s 400(1) of the FW Act, we may only grant permission to appeal if we consider that it is in the public interest to do so.
In the decision under appeal, the Deputy President made detailed findings of fact concerning the circumstances in which Mr Han’s employment came to an end. The critical finding is that the purported acceptance of Mr Han’s resignation which constituted the dismissal occurred on 17 July 2022 (and was confirmed, over Mr Han’s protest, on 18 July 2022).[4] The acceptance of the resignation was primarily evidenced by an email which the principal of the school at which Mr Han had been employed had sent to him on 17 July 2022 as follows:
I accept your resignation as per email on Friday 15th July 2022, effective from that date. This will be processed on Monday.
The offer of two weeks[’] pay still stands.
The offer to complete the registration form still stands after you have shared evidence with an evaluator to demonstrate meeting the proficient level in all of the 7 Australian professional standards for teachers as required. The warning disciplinary action has already occurred as part of the outcome letter you received on 13th July 2022.
Please call the school on Monday to arrange a time with leadership [names deleted] to return your security key and fob, and to collect any personal items still at school.[5]
Mr Han did not perform any further work for the respondent after this time, and the school treated him as having resigned from this point, including seeking to exclude him from the workplace.[6] He was paid the ex gratia payment of two weeks’ pay referred to in the above email on 28 July 2022.[7] Mr Han was paid a further amount purportedly owing to him under the enterprise agreement applying to his employment on 25 August 2022.[8]
In his appeal, Mr Han does not challenge the primary findings of fact made by the Deputy President. However, as far we can discern from Mr Han’s grounds of appeal and his written and oral appeal submissions, he contends that the Deputy President’s conclusion that he was dismissed effective from 17 July 2022 was in error for the following reasons:
(1)He was employed pursuant to a one-year fixed term contract, which could not be terminated on notice. There were insufficient grounds for summary dismissal under the contract, since Mr Han had not engaged in serious misconduct.
(2)The respondent’s own procedures required employees to be provided with at least four weeks’ notice of dismissal.
(3)Mr Han’s ‘final pay’ was not received until 24 August 2022.
(4)The respondent’s administrative records identify a termination date of 31 July 2022.
None of these contentions raises an arguable case of appealable error. As to the first and second contentions, ‘dismissal’ for the purpose of the Commission’s unfair dismissal jurisdiction is (apart from the circumstance of a forced resignation) defined in s 386(1)(a) of the FW Act to mean that ‘the person’s employment with his or her employer has been terminated on the employer’s initiative’. It is well established that s 386(1)(a) is concerned with the termination of the employment relationship, not whether the contract of employment was validly terminated nor whether the termination of employment was lawful.[9] More generally, a dismissal that is legally ‘wrongful’ is nonetheless effective to terminate the employment relationship.[10] Accordingly, Mr Han’s contentions, taken at their highest, are not demonstrative of error in the Deputy President’s determination of the date upon which the dismissal took effect. The Deputy President’s findings of fact clearly demonstrate that the employment relationship between Mr Han and the respondent terminated on 17 July 2022. As earlier stated, Mr Han did not challenge the Deputy President’s findings of fact in this respect.
As to the third contention, the date upon which Mr Han was paid an amount which the respondent considered was payable to him under the applicable enterprise agreement has, by itself, no bearing upon the date upon which he was dismissed in the absence of any challenge to the Deputy President’s primary findings of fact. Additionally, we observe that Mr Han filed his unfair dismissal application on 16 August 2022, in which he identified the date of his dismissal as being 31 July 2022, well before the payment was made on 25 August 2022. There is no basis to consider therefore that the date of this payment has any bearing on the date of dismissal.
Mr Han’s fourth contention is founded on an email internal to the Department dated 9 September 2022 which confirmed that there were no leave entitlements which remained payable to Mr Han. The email sets out a computer entry which identifies the effective date of termination as being 31 July 2022. This was dealt with in the Deputy President’s decision at paragraph [62], where he characterised this as no more than a ‘book entry’ in the payroll system which did not constitute the correct date that the employment relationship ended. Mr Han has not advanced any submission explaining why, in the absence of any challenge to the Deputy President’s findings of fact concerning the termination of the employment relationship, this date should be accepted as the date of dismissal. We are not persuaded the fourth contention is demonstrative of any arguable case of appealable error.
Because Mr Han has not advanced any reasonably arguable contention of appealable error, and his appeal does not otherwise raise any question of law or principle which is of general importance, we do not consider that it would be in the public interest to grant permission to appeal. Section 400(1) therefore requires that permission not be granted.
We order that permission to appeal is refused.
PRESIDENT
Appearances:
L Han, the appellant, in person.
P Knowles of counsel with A Cram and R Hui for the respondent.
Hearing details:
2023.
Melbourne and Adelaide by video link:
22 August.
[1] [2023] FWC 1374.
[2] Ibid at [57]-[58].
[3] Ibid at [61].
[4] Ibid at [33]-[36], [59], [61]. Note that in [59], the references in the first line to ‘17 June 2022’ and ‘18 June 2022’ are plainly typographical errors and should read ‘17 July 2022’ and ‘18 July 2022’.
[5] Ibid at [33].
[6] Ibid at [36]-[37].
[7] Ibid at [39].
[8] Ibid at [39]-[40]. Mr Han contends in his appeal that the payment was made on 24 August 2022, but the evidence before the Deputy President indicates that it was made on 25 August 2022. Nothing turns upon which date is correct.
[9] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162, 273 IR 44 at [75], [124].
[10] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25, 72 CLR 435 at 451 per Latham CJ and 469 per Dixon J, Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410 at 427 per Brennan CJ, Dawson and Toohey JJ.
Printed by authority of the Commonwealth Government Printer
<PR765486>
0
0
0