Meiru Liu v RPC Food Pty Ltd

[2024] FWCFB 309

[2024] FWCFB 309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Meiru Liu
v

RPC Food Pty Ltd

(C2024/3177)

DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT O’KEEFFE
COMMISSIONER LEE MELBOURNE, 12 JULY 2024

Appeal against decision [2024] FWC 1104 of Deputy President Clancy at Melbourne on 29 April 2024 in matter number U2023/11350 – permission to appeal refused.

1. Ms Meiru Liu 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] and order[2] of Deputy President Clancy issued on 29 April 2024.

1. The decision, made in the context of a s 394 application for an unfair dismissal remedy by Ms Liu, concerns whether Ms Liu was dismissed by the respondent, RPC Food Pty Ltd. The Deputy President determined that Ms Liu had not been dismissed within the meaning of s 386 of the Act, but rather had voluntarily resigned her employment on 21 November 2023. The Deputy President was satisfied that Ms Liu’s resignation was not “forced” by the respondent’s conduct and dismissed Ms Liu’s application.

1. The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

Decision under appeal

1. Ms Liu commenced employment with the respondent as a Sales Manager on 15 June 2020 on a full-time basis, pursuant to a series of fixed term contracts. Before the Deputy President, Ms Liu contended that after she disclosed her pregnancy in mid-November 2022, she was subjected to a pattern of workplace harassment and discriminatory treatment.

1. Ms Liu commenced parental leave on 14 April 2023 and returned to work on 30 October 2023. The Deputy President set out in detail the various email exchanges that passed between Ms Liu and the respondent, represented by Mr Leo Huang, regarding Ms Liu’s return to work. This included a requirement that Ms Liu familiarise herself with the respondent’s new products and customer lists, and directions with respect to engaging with customers.

1. Ms Liu was legally represented in the proceedings at first instance and contended that she had been dismissed by the respondent on 6 November 2023. The Deputy President considered and rejected this contention for four reasons:

(a)the respondent’s initial programme for Ms Liu upon her resumption at work was reasonable and not part of a strategy for the termination of Ms Liu’s employment;

(b)the Deputy President was satisfied that the respondent had no intention of terminating Ms Liu’s employment and rather, it was Ms Liu who first invited Mr Huang to terminate her employment (and Mr Huang declined to do so). Thereafter, Ms Liu refused to accept Mr Huang’s directions;

(c)the email exchange between the parties on 6 November 2023 did not point to an intention by Mr Huang to terminate Ms Liu’s employment and the suggestion that a monthly sales target was imposed upon Ms Liu’s return to work from parental leave as a trigger to terminate Ms Liu’s employment was rejected; and

(d)Ms Liu’s continued refusal to accept Mr Huang’s directions and her open defiance in continuing to air her grievances in an open forum that included her colleagues provided a not unreasonable basis for Mr Huang to limit Ms Liu’s access to Xero and WeChat, which she had been warned about.

1. Further, the Deputy President was not satisfied that Ms Liu resigned her employment on 6 November 2023.

1. The Deputy President proceeded to consider the respondent’s contention that Ms Liu voluntarily resigned her employment on 21 November 2023. The Deputy President was satisfied that this contention was established on the evidence, having regard to Ms Liu’s email to Mr Huang of that date and her advice to Mr Huang that she had found a new job and would be starting immediately. Not being satisfied that Ms Liu was dismissed from her employment pursuant to s 386 of the Act, the Deputy President dismissed Ms Liu’s application for an unfair dismissal remedy.

Grounds of appeal

1. The Form F7 Notice of Appeal contains 28 paragraphs in response to the question, “What are the grounds for your appeal?” With the exception of ground (1), which we have extracted at [11] below, Ms Liu’s appeal grounds may be summarised as setting out matters such as the following:

(a)Ms Liu’s concerns about her employment contract with the respondent;

(b)Ms Liu’s contention that she was discriminated, targeted or bullied by the respondent including because of her pregnancy; and

(c)A summary of the emails that had passed between Ms Liu and Mr Huang following Ms Liu’s return from parental leave.

1. Ms Liu concludes, “Please review my case again, thank you!” Similar contentions are raised in Ms Liu’s written submissions in support of her appeal, including Ms Liu’s concerns about the submissions made by the respondent at first instance, including as to its revenue, and Ms Liu’s view that she was no longer able to stay in the respondent’s employment.

1. Ground (1), referred to above, specifically addresses the first instance proceedings before the Deputy President and contends as follows:

1. The entire court process on February 20 did not give me much opportunity to speak. Every time the employer finished speaking, he directly skipped the part of my narration. They didn’t ask me if I had any other opinions that differed from what my employer said. After the interpreter left at 3:00 pm, I didn’t understand the subsequent dialogue, and no one explained it to me. I listened blindly.

1. Ms Liu submits that it is in the public interest to grant permission to appeal because “the result is unfair to me.”

Principles – permission to appeal

1. There is no right to appeal and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act and therefore
   s 400 of the Act applies. By s 400(1), 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.”[3]

1. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] 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.[6]

1. 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.

1. 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.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

Consideration

1. Having considered the transcript and audio of the first instance proceedings, Ms Liu’s contention that she was not given “much opportunity” to speak is not borne out. Ms Liu gave oral evidence during the determinative conference, and answered many questions that the Deputy President and her legal representative posed of her. In addition, Ms Liu filed detailed written submissions, a statement of evidence and documents in advance of the proceeding, in accordance with the Deputy President’s directions. As earlier noted, Ms Liu sought to be legally represented in the proceedings, and that request was granted by the Deputy President having regard to the considerations in s 596(2) of the Act. In those circumstances, the fact that the Deputy President invited Ms Liu’s legal representative to make submissions on her behalf was both appropriate and orthodox. No arguable appealable error arises from Ms Liu’s contention that her opportunity to address the Commission was in any way confined. Ms Liu’s stated dissatisfaction with her legal representative also does not give rise to any arguable appealable error.

1. We accept that the interpreter departed the first instance proceeding approximately 20 minutes prior to the conclusion of the determinative conference. The transcript demonstrates that the parties’ evidentiary case had concluded by this time, and final oral submissions were being delivered by Ms Liu’s legal representative and Mr Huang. The Deputy President made the interpreter’s departure known to Ms Liu and noted that if there were any matters with which she required assistance, Ms Liu’s legal representative should be in a position to assist her. Ms Liu did not raise any concerns, either with the Deputy President or with her legal representative, about this approach. The transcript demonstrates that thereafter, Ms Liu’s legal representative engaged with her in Mandarin on at least one occasion, and no concerns were raised as to Ms Liu’s comprehension of the proceedings.[8] Further, there is at least one occasion during the proceeding where Ms Liu responded in English to a question put to her by the Deputy President, without the support of the interpreter.[9] In the circumstances described, we do not consider that Ms Liu has established an arguable case of a denial of procedural fairness, or of any other appealable error in respect of this matter, for the purposes of permission to appeal.

1. In oral submissions before us, Ms Liu said that the Deputy President should have made different factual findings and reached a different conclusion in relation to the question of whether her resignation on 21 November 2023 was “forced.” We note, however, that this is not the case Ms Liu ran at first instance. The Deputy President clarified with Ms Liu’s legal representative the case being advanced by Ms Liu, and this exchange was extracted from the transcript and set out verbatim at paragraph [44] of the decision. Ms Liu’s legal representative made it clear that Ms Liu’s argument was that she was terminated from her employment at the respondent’s initiative, with such termination taking effect on 6 November 2023.[10]

1. Having regard to this exchange, the Deputy President considered – and rejected – Ms Liu’s case that she was dismissed by the respondent with effect on 6 November 2023. Nevertheless, the Deputy President thereafter proceeded to consider whether Ms Liu voluntarily resigned on 21 November 2023 or whether that resignation was forced. Ms Liu’s broad contention before us that the Deputy President erred in reaching a state of satisfaction that she intended to resign her employment on 21 November 2023 does not speak to error in the decision. Ms Liu simply now argues for a different result in respect of a case that she did not advance at first instance.

Order and disposition

1. For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.

1. Permission to appeal is refused.

DEPUTY PRESIDENT

Appearances:

Ms M Liu, on her own behalf
Mr K Huang, for the respondent

Hearing details:

2024.
Melbourne (by video link):
July 10.

[1] [2024] FWC 1104

[2] PR774298

[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[4] 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]

[5] 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]

[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]

[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[8] Transcript PN971

[9] See for example, Transcript at PN797

[10] Decision at [44]; Transcript at PN891-900

Printed by authority of the Commonwealth Government Printer

<PR776979>