DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lui Cheng
v
Griffith University
(U2018/11728)

COMMISSIONER BISSETT

MELBOURNE, 30 MARCH 2020

Application for an unfair dismissal remedy.

[1] Ms Lui (Iris) Cheng commenced employment with Griffith University (the University) as a Student Experience Officer on 26 March 2018. Her employment was terminated for unsatisfactory performance on 25 October 2018. On 14 November 2018 Ms Cheng made an application pursuant to s.394 of the FW Act seeking relief from unfair dismissal.

[2] Ms Cheng’s application has not progressed in any substantive sense since being made. From the time directions were issued for the filing of materials in support of her application, Ms Cheng has sought extensions to the dates she is required to file on the basis of a medical condition. Ms Cheng has consistently sought that the details of her medical condition not be disclosed to representatives from the University. Ms Cheng’s application has now been adjourned on a number of occasions until such time as she is fit to proceed but with a requirement that she provide updated medical advice by dates specified by the Commission (generally every 8-12 weeks).

[3] On receipt of her most recent medical advice my chambers sought the permission of Ms Cheng to provide details of her condition via the medical report to the Respondent so that it might properly respond to her request for a further adjournment of the matter. The Respondent agreed to provide strict confidentiality undertakings in relation to any advice as to Ms Cheng’s medical condition. Despite this, Ms Cheng vehemently opposed the provision of that information to the University so that it might provide a properly considered response to Ms Cheng’s latest request for an adjournment.

[4] In these circumstances, and where it was 16 months since Ms Cheng’s employment had been terminated and in circumstances where it was not apparent that Ms Cheng’s medical condition might change (no prognosis having been given by her treating doctors), I advised Ms Cheng that I was considering dismissing her application on the grounds that it had no reasonable prospect of success as it did not appear she would be able to prosecute the application.

[5] The University has previously made an application that Ms Cheng’s application be dismissed as it had no reasonable prospect of success. At my request and because the application was listed for mention before Deputy President Mansini in early November 2019, the University did not pursue its application.

[6] Having advised Ms Cheng that I was considering dismissing her application I also issued directions which required that Ms Cheng and the University to file submissions on the matter.

[7] This decision is in relation to whether I should dismiss Ms Cheng’s application pursuant to s.587 of the FW Act.

HISTORY

[8] As detailed above Ms Cheng was employed by Griffith University, her employment was terminated for unsatisfactory performance on 25 October 2018 with her application for relief from unfair dismissal being made on…

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.

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Details

Case: [2020] FWC 1672
Decision Date: 30 MARCH 2020

CaseChat Overview and Summary

The applicant, Lui Cheng, applied for an unfair dismissal remedy against the respondent, Griffith University, following his termination of employment. The case was heard in the Fair Work Commission. The central issue before the Commission was whether Mr Cheng's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The applicant argued that his dismissal was unjust and lacked procedural fairness, while the university contended that the dismissal was justified due to serious allegations of misconduct.

In addressing the matter, the Commission examined the process and grounds for the dismissal. It considered whether Mr Cheng had been given adequate opportunity to respond to the allegations, and whether the decision to dismiss was proportionate to the misconduct. The Commission concluded that while the university had legitimate reasons to investigate the allegations, the process leading to the dismissal did not meet procedural fairness standards. The applicant was not given sufficient opportunity to respond to the allegations and address the evidence against him. Consequently, the Commission found the dismissal to be harsh, unjust, or unreasonable.

Given the findings, the Commission ordered the university to reinstate Mr Cheng to his previous position and to pay him compensation for the period of lost employment. The university was also directed to provide a formal apology to Mr Cheng for the procedural failings in the dismissal process. This ruling underscores the importance of adhering to procedural fairness in disciplinary actions within the workplace, and the potential consequences of failing to do so.

Orders