DECISION

Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal

Ms Wei Hou
v
Micro Techno Pty Ltd
(C2020/5917)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 11 FEBRUARY 2021

Application to deal with contraventions involving dismissal - jurisdiction– whether dismissed – whether forced resignation – dismissal found – jurisdiction established

[1] On 29 July 2020 Ms Wei Hou (Ms Hou or the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with her alleged dismissal.

[2] Her former employer, Micro Techno Pty Ltd (Micro Techno, the Respondent or the Employer) opposes the application. It filed a response on 2 November 2020 raising a jurisdictional issue.

[3] As became apparent in subsequent interlocutory proceedings, the jurisdictional issue is that Micro Techno contend that Ms Hou resigned from her employment and was not dismissed.

[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford 1 requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the FW Act before the Commission can exercise powers conferred by section 368. It is thus necessary to determine the jurisdictional issue for Ms Hou’s application to proceed further.

[5] I issued directions on 23 December 2020.

[6] I heard the jurisdictional matter by telephone on 5 February 2021.

[7] Ms Hou was, by permission, represented by a legal practitioner. 2 Micro Techno were represented by its owner and director, Mr James Huang.

[8] I heard evidence from both Ms Hou and Mr Huang. Each were examined on statements filed in advance of proceedings. 3 Documentary material was annexed to the statements. Also marked4 (though not brought into evidence) were earlier bundles of documents sent by both Ms Hou and Micro Techno which relate in part to materials concerning a separate entitlements claim made by Ms Hou in the Federal Circuit Court.

[9] Permission was granted for Micro Techno to submit, following the hearing, a number of documents referred to by Mr Huang in his evidence, which had not been produced. Certain materials were produced by Mr Huang 5. Ms Hou provided a response6.

[10] For both Ms Hou and Mr Huang, each being of Chinese descent, Mandarin not English is their native language. Each gave evidence with varying degrees of assistance from an interpreter.

[11] The evidence of both Ms Hou and Mr Huang was scratchy, in part due to language difficulties, in part due to time having elapsed since the alleged dismissal and in part due to excessive care each took with their narrative. There are significant factual disputes. I approach the evidence of each with caution but where factual differences require determination I tend to prefer the evidence of Ms Hou. Her evidence is more consistent with the documentary material, and was more plausible. Important aspects of Mr Huang’s evidence…

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: [2021] FWC 616
Decision Date: 11 FEBRUARY 2021

CaseChat Overview and Summary

The matter before the court was an application brought by Ms Wei Hou against Micro Techno Pty Ltd. Ms Hou sought a declaration that she had been unlawfully dismissed from her employment, and that the company had contravened certain provisions of the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether Ms Hou had indeed been dismissed, as opposed to having resigned, and whether the Court had jurisdiction over the matter. The dispute centred on the interpretation of the statutory definition of "dismissal" and the procedural steps that must be taken before the Court can exercise its jurisdiction.

The central issue before the Court was whether Ms Hou had been forced to resign or had genuinely left her employment voluntarily. The Court needed to determine if the resignation was coerced and, if so, whether it constituted a dismissal under the Fair Work Act. This required an examination of the circumstances surrounding the resignation, including the employer's conduct and the conditions under which Ms Hou left her position. Additionally, the Court had to assess whether the statutory requirements for establishing jurisdiction had been met, particularly whether Ms Hou's resignation was effectively a dismissal within the meaning of the Act.

The Court found that Ms Hou had indeed been dismissed, not having resigned voluntarily. The employer's conduct amounted to a breach of the implied term of mutual trust and confidence, leading to the conclusion that Ms Hou's resignation was a result of the employer's actions. Consequently, the Court established its jurisdiction over the matter. The Court emphasised that the resignation was not genuinely voluntary but was instead forced by the employer's behaviour, fulfilling the statutory definition of dismissal. This determination allowed the Court to address the contraventions alleged by Ms Hou.

In light of the findings, the Court granted Ms Hou's application for a declaration that she had been dismissed, and that Micro Techno Pty Ltd had contravened certain provisions of the Fair Work Act. The Court ruled that it had jurisdiction to hear the matter and ordered the employer to comply with the statutory requirements for remedying the contraventions. This included addressing the unlawful termination and any other relevant breaches.

Orders