Nan Wang v Hobsons Bay City Council

[2014] FWC 2653

[2014] FWC 2653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nan Wang
v
Hobsons Bay City Council
(U2013/15838)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 21 MAY 2014

Medical certificates - repeated adjournment applications - repeated absence of applicant from proceedings - alleged unreasonable conduct by applicant - natural justice - alleged abuse by applicant of medical certificates - alleged bias - adjournment until applicant provides medical certificate of fitness to proceed

[1] The applicant in this matter, Mr Nan Wang, has not attended four out of five days set down for hearing of this matter because of alleged medical incapacity (10 April, 11 April, 2 May, 8 May 2014). He attended the first day of hearing (9 April) and on the second day did not appear but attended the Registry counter where he filed documents that he had drafted. He was asked to appear before the Commission, and eventually did so for a short period, then left claiming to be unwell. Mr.Wang has applied for an adjournment of every hearing day, sometimes repeatedly. He was given full notice of hearing dates.

[2] On 8 May I issued a statement. I said that I was considering adjourning this matter until such time as Mr Wang provides me with a satisfactory medical certificate stating that he is fit and well enough to attend and participate in hearings regarding his application. This was the course of action taken by the Commission in Hall v. Brisbane Metropolitan Touch Association Inc 1. I invited submissions to be put on the issue, and said that I would make a decision on the basis of the submissions put.

[3] Mr.Wang is self represented, and regard must be had to that 2, although he has experience in tribunal and court proceedings3. The employer alleges that Mr.Wang behaved inappropriately in various respects during the proceedings, and said that I should determine the matter on the basis of proceedings to date. The question that arises from these submissions is whether or not the allegedly unreasonable conduct relieved the Commission of the obligation to provide natural justice. Mr.Wang also made another procedural application.

Submissions

[4] Mr.Wang provided a submission which requested a rehearing of the case, which said that he had requested transfer to a court, which said that the FWC had refused issuing some orders sought by Mr.Wang without reasons, that said that there was confusion about exhibit evidence, that Hobsons Bay refused to produce documents, that dealt with ‘the truth of an incident on 07 August 2013’, and a range of other matters. The document was forwarded to a number of persons within the Commission, although not as with past submissions to members of the Australian and Victorian Parliaments 4. Mr.Wang has made many procedural applications, often repeatedly, and these have been responded to5.

[5] Hobsons Bay submitted that Mr.Wang’s application should be determined by me on the basis of the submissions, evidence and hearing held to date, and should not be adjourned as proposed. It submitted that the real reason for Mr.Wang’s failure to attend proceedings was his unhappiness and dissatisfaction with myself as presiding member. It submitted that the course of proceedings shows that the applicant asks for an adjournment and when this is refused will ‘cynically and belatedly claim a medical reason for his non-attendance.’

[6] It submitted that the applicant has treated the Commission’s processes and protocols with contempt, and that ‘his actions have been an abuse of such processes and protocols.’ It submitted that Hobsons Bay has ‘been put to additional and unnecessary time and expense in having to attend hearings’, and that the applicant had been given more than sufficient natural justice. It submitted that if the matter was adjourned there might never be a conclusion or determination in this matter as such medical certificate may never end up being provided.

[7] In reply submissions, the applicant submitted that I should ‘give up or hand over the case U2013/15838 to a trusted member of FWC’ based on previous submissions. In reply the respondent submitted that the applicant did not address the issue raised in the statement, but instead re-stated his objection to my hearing the matter. It submitted that the applicant did not submit or indicate that he is not fit and well enough to attend and participate in hearings, and the content and tone of his submissions lent further weight to the respondent’s submissions that the Commission should not hold any further hearings in relation to the matter and should instead make a determination based on the hearings to date.

Decision

Natural Justice and Mr.Wang’s Alleged Unreasonable Conduct

[8] Hobsons Bay opposes an adjournment and requests me to determine the matter on the basis of proceedings to date, having regard to Mr.Wang’s conduct which it describes in the following terms:

‘The Applicant has treated the Commission’s processes and protocols with contempt. His actions have been an abuse of such processes and protocols.’

[9] It submits that it has been put to additional and unnecessary time and expense, and that Mr.Wang has been afforded more than sufficient natural justice. It said that Hobsons Bay will be prejudiced if the matter is adjourned.

[10] Mr.Wang in his reply submissions did not contradict or otherwise deal with these submissions.

[11] In Stead v State Insurance Commission 6 the High Court described the obligation to provide natural justice with respect to a contest of facts in the following terms:

“...The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board, in these terms:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge...No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

That general principle is, however, subject to an important qualification which Bollen J. Plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial...”

[12] Is there an issue of fact between the parties? In this case Hobsons Bay has made five allegations that it claims justifies the termination of Mr.Wang’s employment:

● that on 12 July Mr.Wang ‘behaved in a demanding, aggressive and disrespectful manner towards your Acting Team Leader while discussing your roster for the upcoming week’;
● ‘it took a number of other staff in the office to calm you down, because your behaviour was demanding, aggressive and disrespectful and your Acting Team Leader and other staff in the office felt threatened and intimidated’;
● that Mr.Wang contacted the Mayor’s office by telephone and letter concerning employment related matters in breach of directions issued by Ms.Terri Rowe in October 2011 not to contact the Mayor regarding employment related matters;
● ‘on 19th August you failed to follow a lawful and reasonable management direction given by Tanya Gucevski to refrain from recording the disciplinary meeting’;
● ‘71 Home and Community Care clients have informed the team leader office they do not want you to provide support to them’ 7.

[13] There may be other alleged valid reasons which arise from the employer evidence. For example, Ms.Gucevski, Human Resource Coordinator, was the HR representative dealing with Mr.Wang during the disciplinary process and Mr.Wang’s termination of employment. She gave untested evidence that:

‘During all of my interactions with Mr.Wang, he has been rude, disrespectful, uncooperative, dishonest, difficult, demanding, and aggressive.’ 8

[14] Employer witnesses have given evidence and their evidence has not yet been tested in cross examination.

[15] Mr.Wang admitted contacting the Mayor by letter about his disciplinary issues 9. He did not directly deal with the rest of these allegations in his extensive submissions, although they were the stated reason for the termination of employment. When he was asked about the truth or otherwise of the allegations he denied that he was demanding, aggressive and disrespectful, or threatening to his supervisors10, said that his employer ‘just falsified everything and its baseless’11, ‘they completely made it up. For the purpose of terminating me they made [it] up’12, ‘he or she lied’13. He accused employer witnesses and their lawyer of variously ‘making a false statement’, swearing and giving ‘false evidence’, and ‘perjury’14. He has made many similar allegations since, in numerous emails.

[16] He has made other allegations, and supported them by his sworn evidence. These include that his dismissal was ‘unlawful’, and involved ‘criminal acts’, was in breach of Brodie’s law and occupational health and safety legislation, and was motivated by ‘revenge’. He requested that if I find this that I transfer the matter to a court ‘or call police’ 15. Employer witnesses have denied these allegations.

[17] There clearly is a contest of fact between the parties.

[18] Mr.Wang has cross examined Ms.Turner, Ms.Alker, and Ms.Rowe but not other witnesses, and said that he does wish to cross examine other witnesses 16. Mr.Wang applied for orders for Ms.Turner and Ms.Alker to attend and give evidence and then objected to their evidence in the strongest terms, suggesting that I should ‘call [the] police now’, to have one arrested17.

[19] The respondent claims that the applicant has behaved unreasonably in various respects. However, the Commission is obliged to provide each party with natural justice, and unreasonable behavior by a party does not always mean that the Commission is relieved of that obligation 18. The Act provides some limited circumstances where an application may be dismissed, but they are limited in nature19. The Act does provide for an order for costs to be sought against an applicant for some unreasonable conduct, and some of these issues could conceivably be dealt with in such proceedings, should the respondent decide to make such an application against Mr.Wang20. These proceedings are however not costs proceedings.

[20] Hobsons Bay has cooperated in the efficient and orderly conduct of these proceedings. It behaved with restraint in the face of threatening or otherwise inappropriate emails from the applicant. Mr.Wang wrote a one line email to Hobsons Bay on 1 May 2014: ‘I give every one a chance, then .......’. The day before Mr.Wang sent Hobsons Bay a one line email which provided: ‘Everyone knows your big name.’ These emails are completely inappropriate. Hobsons Bay dealt with numerous emails, approximately 62 forwarded to my chambers since 25 March, most sent by the applicant outside the scope of the submissions directed by me. It has been put to some cost in so doing. It claims that many of these emails are not relevant to the proceedings, such as the five allegations which led to the termination of Mr.Wang’s employment. Again, these issues do not relieve the Commission of the obligation to provide Mr.Wang with natural justice.

[21] If Mr.Wang closes his case and requests me to make a decision on the basis of proceedings to date I will do so. However, he submitted on 9 April that he wished to cross examine employer witnesses 21. There are issues of fact between the parties. I am not able to determine the matter on the basis of proceedings to date because of the requirements of natural justice.

Mr.Wang’s Medical Certificates

[22] Hobsons Bay submit that:

‘Only when it becomes clear to the Applicant that His Honour will not adjourn the matter on the grounds of bias nor will his Honour recuse himself from the hearing, does the Applicant cynically and belatedly claim a medical reason for his non-attendance’ 22.

[23] The employer alleges that Mr.Wang is abusing the system of medical certificates, in which the Commission places weight on such certificates when they are provided by qualified medical practitioners, and in practice places trust in both parties appearing and medical practitioners.

[24] Mr.Wang did not respond to this submission or deal with the issue of his medical condition.

[25] It is a curious coincidence that in each case the applicant applied for an adjournment of the proceedings scheduled for 10 April, 11 April, 2 May, and 8 May, and then when the adjournment application was refused absented himself and provided a medical certificate stating that he was unfit to attend for medical reasons. It is also curious that the applicant is apparently able to draft long and complex written submissions, and numerous submissions, but is not able to attend proceedings.

[26] However, the applicant has provided three medical certificates, stating that the applicant was ‘unfit for his usual occupation/study’ on 10-11 April, ‘unfit to attend his usual occupation’ on 2 May, and ‘unfit to attend his usual occupation’ on 8 May. The certificates appear to be valid on their face. Hobsons Bay has not submitted, and given reasons, that in fact on those days the applicant was medically fit to attend proceedings, or that the medical certificates were false or improperly issued. It is open to Hobsons Bay to question a medical certificate in various ways, such as through a complaint to the Australian Health Practitioner Regulation Agency 23, but this has not been done. In the circumstances I have decided at this stage to give those medical certificates evidentiary weight.

[27] A lack of medical capacity may mean that an application has no reasonable prospects of success 24.

Mr.Wang’s Procedural Submissions

[28] Mr.Wang did not address the issue I sought submissions on from the parties. Instead he submitted that I should give up the case and transfer it to another member of the Commission. It appears that he seeks to substantiate a claim of bias. The issue of bias has been considered in Livesey v. New South Wales Bar Association 25, Ebner v Official Trustee26, UFU v MFESB27, Priestly v Department of Parliamentary Services28, and other matters.

[29] In Ebner v Official Trustee the High Court said:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” 29

[30] In his submission Mr.Wang complains about a conciliator, the Commission and another member of the Commission in holding an ‘unnecessary Mention’, my refusal to issue orders sought by the applicant, alleged that I accepted ‘a lie’ from the respondent’s representative, that the applicant was ‘confused’ about exhibits, that the respondent refused to produce documents in Exhibit W1, spoke about ‘the truth of an incident on 07 August 2013’, ‘false evidence’ in Exhibits H3, and H4, a refusal by myself to take action on ‘perjury’ by employer witnesses, directions by me to the applicant to answer questions and other actions, an allegation directed at the representative for the respondent, ‘false statements’ by a number of signatories to employer disciplinary letters, and allegations of breaches by the employer of various laws. This submission follows complaints during proceedings in which Mr.Wang complains about fairness, bias, and procedural issues 30.

[31] Some of these issues were dealt with during proceedings on 11 April, as soon as they were raised by Mr.Wang. The employer denied that there were any procedural shortcomings or bias 31. The employer later submitted that Mr.Wang was avoiding dealing with the allegations against him by raising procedural issues, such as whether or not Hobsons Bay’s representative was actually a lawyer, or whether or not Ms.Gately had the authority to sign disciplinary letters32.

[32] Mr.Wang did not respond to these employer submissions, except by repeating his complaints.

Orders

[33] Mr.Wang complains that not all orders sought by him were granted and claimed that a refusal to grant orders was bias 33. I granted some orders, and some were refused on the basis of relevance, that they were a fishing expedition, they were unduly burdensome, or because a medical certificate was provided34. I reconsidered and arranged that documents that he sought were provided to him by the employer35, notwithstanding legitimate employer concerns about relevance, that he already had them, and other matters36. I made it clear that I would be willing to reconsider decisions made on such procedural matters if a case were put37. There is nothing unusual in this, and such decisions are made in many proceedings.

Orders for production of documents

[34] On 28 April Hobsons Bay provided Mr.Wang by registered post with a letter concerning Exhibit W1. In the letter Hobsons Bay analysed Exhibit W1 and submitted that Mr.Wang had already received a number of these documents, some did not exist, some were provided, and three were objected to. Mr.Wang complains 38 about this response but does not substantively or persuasively address the reasons given by the employer in each case. No issue of bias arises.

Orders that witnesses attend

[35] Mr.Wang complains that I did not issue an order that Mr.Daley attend 39. However, Mr.Daley attended and provided a witness statement and oral evidence. Mr.Wang complains that an order was not issued for the attendance of ‘a nurse who assessed Ms.Sciascia on 7 August’. However, this nurse appears to be on her evidence Ms.Turner40, who has already attended. Ms.Sciascia has a medical condition which excuses her attendance. Direct witnesses of the incident of 12 July which led to his termination (Ms.Turner and Ms.Alker) were ordered to attend and give evidence at the request of Mr.Wang, and did so, and Mr.Wang cross examined them. He now complains that their evidence is ‘perjury’. It is difficult at this stage to see that the other witnesses sought by Mr.Wang have anything to add. I have no reason to believe that Ms.Gately improperly signed disciplinary letters. This is simply a fishing expedition. All the evidence suggests that the employer had decided to undertake a disciplinary process, and did so. If some substantive reason for calling other witnesses was provided I would consider it.

[36] All the material suggests that at this stage Mr.Wang has been given reasonable access to all relevant documents and witnesses. In any event, no issue of bias arises.

Other Issues

[37] In relation to other issues, Mr.Wang complains that his witness statement of 5 April was not admitted 41. However, it was admitted as Exhibit W3. I forwarded a list of exhibits to Mr.Wang on 17 April, in order to assist him. It is appropriate for the Commission to direct a witness to answer questions, and to ask whether or not a witness agreed or disagreed with an allegation in the termination letter. Ms.Gucevski left the hearing before the cross examination by Mr.Wang, although she was the instructor42. The allegations concerning Ms.Turner’s evidence and the employer’s evidence will be dealt with in the determination of the overall application for an unfair dismissal remedy. I quite properly refused Mr.Wang’s demand that I refer her to the police for ‘perjury’, which Hobsons Bay described as ‘a bizarre and unreasonable request’. The employer put submissions on these issues during proceedings, which I agree with43. Mr.Wang did not reply to these submissions, although he repeated his complaints.

Conclusion on bias

[38] Nothing has been identified which might lead me to decide the case other than on its legal and factual merits, and there is no logical connection between such a matter and a deviation from the course of deciding the case on its merits. I do not believe that any fair-minded observer would reasonably believe that these circumstances would give rise to doubts that I would bring an impartial mind to the determination of the issues that will fall for determination. If these matters were sufficient many if not most proceedings would be affected.

Conclusion

[39] If Mr.Wang has not yet closed his case the question arises of whether or not he is medically fit to attend. He put extensive submissions but did not address the question of his medical condition, and gave me no reason to understand that his medical condition had changed. If anything the inference that can be drawn from his conduct and submissions is that if I list the matter for hearing he will continue to not appear because of an alleged medical condition. This will simply add to employer costs. Mr.Wang did not oppose an adjournment on the basis I proposed.

[40] I will adjourn the matter until the applicant provides me with a satisfactory medical certificate that he is fit and well enough to attend and participate in hearings regarding his application. As noted earlier, this was the course of action taken by the Commission in Hall v. Brisbane Metropolitan Touch Association Inc 44.

[41] Alternatively, if Mr.Wang advises me that he has closed his case and wishes me to issue a decision on the basis of the oral submissions and evidence led during proceedings held on 9, 10 and 11 April, and 2 May, and the documents tendered and marked as exhibits during those proceedings, I will do so.

DEPUTY PRESIDENT

Appearances:

Mr N Wang the applicant

Mr G Katz for the respondent

Hearing details:

2014

Melbourne

9 April, 10 April, 11 April and 2 May

Final written submissions:

2014

9 May and 12 May

 1   [2014] FWC 2792

 2   Davidson, Print Q0784, Full Bench, at pp.6-7

 3   Nan Wang v. Demos PR959095 Lewin C; Nan Wang v. Demos PR957652 Full Bench; Nan Wang and Xiao Qian v. Demos PR948228 Simmonds C; Qian Xiao v. Demos PR952575 Lewin C; Qian Xioa v. Demos PR957654; Nan Wang v. Australian Federal Police [2005] AATA 908 per Deputy President S.A.Forgie; Wang & Anor v Full Bench, Australian Industrial Relations Commission & Ors Full Federal Court; [2006] HCATrans 549 (5 October 2006), High Court of Australia, per Gummow and Hedon JJ

 4   Eg. Email from Mr.Wang dated 30 April 2014.

 5   Eg. Exhibit W1; PN1364-1419; Mr.Katz letter to Mr.Wang 28 April 2014; PN1639-1646; PN1428-1434; PN1325; PN1130-1137;

 6 (1986) 161 CLR 141 at 145-146

 7   Termination Letter, Exhibit H13

 8   Exhibit H6, paragraph 8

 9   Exhibit W2, Attachment 23

 10   PN461

 11   PN205

 12   PN259

 13   PN220

 14   Email 16 April 2014 at 12.16pm from Mr.Nan Wang to Commission

 15   Exhibits W1, W2, W3

 16   PN1320-PN1321

 17   PN891-905

 18 Queensland v. J.L.Holdings Pty Limited (1997) 189 CLR 146 at 154, quoted and followed in Ghalloub v. Aon Risk, Full Bench, PR56665, 21 March 2005

 19   Eg. s.399A of the Act

 20   See the discussion in Ghalloub, ibid

 21   PN1320

 22   Hobsons Bay Submission of 9 May

 23   Babu v. Norwood Industries [2013] FWC 7005 at 11, 26 September 2013

 24   Hall v. BMTA Inc [2014] FWC 2792 at 12

 25 (1983) 151 CLR 288 at 294

 26 (2000) 205 CLR 337, at 345

 27 (2005) 141 IR 438, at [79] and [84], per Ross VP, Hamilton DP, Gay C

 28   [2011] FWA 672, at [11], per Watson VP

 29   Ibid

 30   PN684; PN1351; PN1639-1646

 31   PN1639-1646

 32   PN1590-1592

 33   PN684-698

 34   PN1428-1434

 35   Exhibit W1

 36   PN1364-1419; Mr.Katz letter to Mr.Wang 28 April 2014

 37   PN1428, PN1434

 38   Emails from Mr.Wang dated 1 May 2014 at 2.33 pm, 2.48 pm, 2.57 pm, 3.17 pm, as well as an inappropriate threat at 4.51pm; Mr.Wang email of 29 April 2014, 30 April 2014, Submission of 9 May 2014 paragraphs 18-26, pp.4-5.

 39   Submission of 9 May 2014, paragraph 6, p.2

 40   PN689

 41   Submission of 9 May 2014, paragraph 15 p.3

 42   PN746

 43   PN1639-1646

 44   Ibid

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549890>