Qian Tang v Hisense Australia Pty Ltd T/A Hisense
[2024] FWCFB 437
•19 NOVEMBER 2024
| [2024] FWCFB 437 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Qian Tang
v
Hisense Australia Pty Ltd T/A Hisense
(C2024/6808)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT BELL | MELBOURNE, 19 NOVEMBER 2024 |
Appeal against decision [2024] FWC 2259 and order PR778574 of Commissioner Wilson at Melbourne on 27 August 2024 in matter number U2024/2835 – extension of time refused.
Ms Qian Tang has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Wilson issued on 27 August 2024. In the decision, the Commissioner dismissed Ms Tang’s application for an unfair dismissal remedy against the respondent, Hisense Australia Pty Ltd, as he was satisfied that Ms Tang’s dismissal was a case of genuine redundancy.
The Notice of Appeal was filed outside the 21-day timeframe for lodging an appeal required by the Fair Work Commission Rules 2024. Accordingly, the matter was listed for permission to appeal and an extension of time. For the reasons that follow, we decline to allow a further period of time for the lodgement of the appeal and the application for permission to appeal is dismissed on that basis.
Decision under appeal
The decision records that Ms Tang was employed as a human resources business partner and covered by the Clerks – Private Sector Award 2020 (Award). Following Ms Tang’s return to work in December 2023 from a period of parental leave, Ms Tang was asked to attend a 19 January 2024 restructure meeting at which she was notified of a proposed restructure that may affect her position. Ms Tang was invited to advance any proposal or alternatives for consideration before a further meeting on 23 January 2024.
By way of an email on 23 January 2024, Ms Tang expressed her concerns regarding the redundancy proposal and stated that she did not regard it to be genuine. Ms Tang rejected a casual position offered to her by the respondent. Subsequently, the respondent informed Ms Tang that her employment was terminated by way of redundancy.
The Commissioner found that the respondent no longer required Ms Tang’s job to be performed by anyone because of changes in the operational requirements of its enterprise
(s 389(1)(a) of the Act). The Commissioner accepted the evidence of the Operations Director, Ms Sun, that there were three employees performing essentially generic roles in the human resources department and the respondent was required to reduce that number by one, having regard to pressures on the business internationally and in Australia. Of the three employees, Ms Tang’s performance was rated as the weakest.
The Commissioner also found that the respondent had complied with its consultation obligations under the Award, having regard to the discussions with Ms Tang on 4 January and 19 January 2024 and which otherwise took place by way of correspondence (s 389(1)(b) of the Act). The Commissioner was satisfied that the respondent considered the potential for redeployment into another position and offered Ms Tang a casual role (s 389(2) of the Act). The Commissioner concluded that Ms Tang’s dismissal was a case of genuine redundancy.
Grounds of appeal and public interest
Ms Tang advances five grounds of appeal in her Notice of Appeal, summarised as follows:
The respondent was not asked for evidence to support the finding at paragraph [21] of the decision.
The Commissioner ignored Ms Tang’s evidence demonstrating her entitlement to return to her job and duties and believed the respondent.
The Commissioner took Ms Tang’s lowest rating of “English and communication skills” as a valid reason for Ms Tang’s selection for redundancy despite the Chinese language being used 80% of the time when speaking and writing at work.
The decision did not address Ms Tang’s “Work efficiency and Multi-task skills” or the fact that one of the human resources team members had never performed payroll duties.
Prior to Ms Tang’s parental leave, the human resources team comprised of one manager and two team members. This structure did not change after Ms Tang’s redundancy as an employee who covered Ms Tang’s parental leave remained in the team.
The respondent did not produce evidence to support paragraphs [19], [20] and [31] of the decision.
Ms Tang elaborates on these matters in her written outline of submissions. Without restating the matters that Ms Tang addresses by her grounds of appeal, Ms Tang submits, in summary, that the Commissioner exhibited bias by failing to apply s 84 of the Act, which entitles employees returning from parental leave to resume their positions and accepting a fabricated performance scoring to justify the dismissal. In connection with this, the Commissioner made an incorrect finding at [33] of the decision. Further, Ms Tang submits that the Commissioner mischaracterised the termination reason at [17] of the decision and erroneously concluded at [27] that no evidence of discrimination was provided.
Ms Tang contends that it is in the public interest to grant permission to appeal because the decision sets a dangerous precedent for the dismissal of employees returning from parental leave by reassigning their duties to other team members, thereby endangering the job security of new mothers.
Extension of time
Rule 128(2) of the Fair Work Commission Rules 2024 requires that an appeal must be filed within 21 days after the date of the decision appealed against, or within such further time allowed by the Commission on application.
As is frequently noted,[3] time limits of the kind in rule 128(2) should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench in Jobs Australia v Eland[4] as follows:
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Ms Tang being granted an extension of time within which to lodge the notice of appeal.[5]
Consideration
We are prepared to accept that Ms Tang has provided a satisfactory reason for the relatively short delay in lodging the appeal, and that there is no apparent prejudice to the respondent if time were extended. However, in the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended. Having regard to the Notice of Appeal and submissions, we do not consider that Ms Tang has alleged any matter that demonstrates an arguable case of appealable error.
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. 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.”[6]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] 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.[9]
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.
Appeal grounds (1), (6) and Ms Tang’s written submissions contend that there was no evidence to support the Commissioner’s findings. This contention cannot be sustained. In paragraphs [19], [20] and [21] of the decision, the Commissioner summarises s 389 of the Act, and the evidence given in the proceedings before him, including in respect of the business need to reduce the workforce by up to 10 employees, which the Commissioner accepts at paragraph [31].
Ms Tang’s appeal grounds (2) to (5) broadly contend that the Commissioner did not address relevant matters and thereby made erroneous factual findings. Ms Tang must demonstrate that there is an arguable basis for concluding that the findings were either not reasonably open on the evidence, glaringly improbable or contrary to incontrovertible facts.[10] Further, where an error of fact is alleged, s 400(2) of the Act requires that it must be a significant error of fact.
In our view, an arguable contention has not been advanced that the Commissioner’s findings were not open on the evidence. The decision demonstrates that the Commissioner applied the statutory considerations in s 389 of the Act in an orthodox manner. Ms Tang’s contention that the structure of the human resources team did not change after her redundancy was raised at first instance, but the Commissioner was satisfied for the purposes of s 389(1)(a) that Ms Tang’s role was no longer required for operational reasons. This conclusion appears to be supported by the oral evidence of Ms Sun, which the Commissioner accepted, describing it as “extensive,”[11] “compelling” and going to the “heart of the decision-making” by the respondent, which Ms Tang was unable to directly contradict.[12] The matters that Ms Tang says were “ignored” or which concern her performance ranking were addressed in the decision to the extent that they were supported by probative evidence upon which the Commissioner could rely, as the Commissioner noted at [33] of the decision. There is no basis to support any inference, as Ms Tang contends in her written submissions, that the Commissioner demonstrated bias in favour of the respondent by reason of his conclusion at [33] of the decision. Nor is there any other basis to conclude that Ms Tang raised such concerns with the Commissioner or was deprived of the opportunity for a fair hearing.
Ms Tang’s submissions that she was dismissed by reason of exercising a right to parental leave or was discriminated against by the respondent due to her parental status were considered by the Commissioner. The Commissioner concluded that there was no evidence that would lead to a conclusion that these were operative factors either in the decision to dismiss Ms Tang or to select her for redundancy. The material before the Commission does not otherwise draw a sufficient connection between these events beyond Ms Tang’s contention and as such, no arguable error is disclosed.
We are not otherwise persuaded that the balance of matters raised in Ms Tang’s written submissions and orally before us demonstrate an arguable case of appealable error. They instead demonstrate a preference for a different result. 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 such that permission to appeal must be refused under the Act. This weighs against the grant of an extension of time to lodge the appeal.
Order and disposition
Having regard to the likelihood that the appeal grounds would not be upheld if time were extended, we conclude that in all the circumstances, the interests of justice do not favour Ms Tang being granted an extension of time.
An extension of time to file the appeal is refused. Ms Tang’s application for permission to appeal is dismissed on that basis.
DEPUTY PRESIDENT
Appearances:
Q Tang on her own behalf.
R Sun for the respondent.
Hearing details:
2024.
Melbourne (by video):
November 6.
[1] [2024] FWC 2259
[2] PR778574
[3] See Snyder v Helena College Council, Inc t/a Helena College[2019] FWCFB 815
[4] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8] and the authorities cited therein; Andrew John Paul v Busways Pacific Pty Ltd & Others [2024] FWCFB 369 at [32]-[33]
[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541
[6] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[7] 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]
[8] 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]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Edwards v Noble [1971] HCA 54, 125 CLR 296; Fox v Percy [2003] HCA 22, 214 CLR 118 at [28]-[29]
[11] Decision at [20]
[12] Decision at [29]
Printed by authority of the Commonwealth Government Printer
<PR781387>
0
0
0