DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Qing Dai
v
St Michael’s Grammar School
(C2020/2627, C2020/2651)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT MANSINI

SYDNEY, 21 DECEMBER 2020

Appeal against decision [2019] FWC 4530 of Commissioner Bissett at Melbourne on 2 July 2019 in matter number AB2019/213 and appeal against decision [2020] FWC 758 of Commissioner Wilson at Melbourne on 1 April 2020 in matter number U2019/6378.

Introduction

[1] Ms Qing Dai has lodged appeals, for which permission to appeal is required, against two decisions. The first decision appealed was issued by Commissioner Bissett on 2 July 2019 1 (first decision), and concerned an application for anti-bullying orders made by Ms Dai pursuant to s 789FC of the Fair Work Act 2009 (FW Act) in respect of her former employment as a part-time laboratory assistant with St Michael’s Grammar School (School). In her decision, the Commissioner declined to grant an application made by the School that the application be dismissed on the basis that, because Ms Dai’s employment with the School had been terminated on 17 May 2019, she faced no risk of being bullied in the future at the School and accordingly the application had no reasonable prospects of success. Instead, the Commissioner determined that Ms Dai’s anti-bullying application should be stood over pending the determination of an application for an unfair dismissal remedy which Ms Dai had lodged in respect of her dismissal on 7 June 2019.

[2] Ms Dai’s appeal against the first decision (first appeal) was lodged on 22 April 2020. It was filed well outside the 21-day time period for the lodgement of appeals prescribed by rule 56(2)(a) of the Fair Work Commission Rules 2013. Accordingly the first appeal is incompetent unless an extension of time is granted pursuant to rule 56(2)(c).

[3] The second decision was made by Commissioner Wilson on 1 April 2020 2 (second decision) and concerned Ms Dai’s application for an unfair dismissal remedy. In the second decision, the Commissioner found that there were valid reasons for Ms Dai’s dismissal related to her capacity and conduct and that there were no substantial procedural defects or other matters which would render her dismissal unfair, and dismissed Ms Dai’s application. Ms Dai’s appeal against the second decision (second appeal) was also filed on 22 April 2020.

[4] The hearing of both appeals was delayed for some time because of health issues suffered by Ms Dai. On 7 October 2020, a notice of listing was issued in both appeal matters for a hearing to be held by videoconference on 2 November 2020 concerning whether permission to appeal should be granted. Directions were made at the same time which, among other things, required Ms Dai to file an outline of submissions in each matter addressing the question of permission to appeal by 26 October 2020. Ms Dai filed a submission in accordance with this direction on 26 October 2020.

[5] On 20 October 2020,…

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] FWCFB 6896
Decision Date: 21 DECEMBER 2020

CaseChat Overview and Summary

Qing Dai, the applicant, appealed against two decisions of the Federal Circuit Court of Australia made in relation to disputes with St Michael’s Grammar School, the respondent. The first decision was made by Commissioner Bissett on 2 July 2019 and the second by Commissioner Wilson on 1 April 2020. The applicant sought to appeal against these decisions on the basis of errors of law and alleged procedural unfairness. The court was required to determine whether the applicant had grounds for appeal and, if so, what orders should be made.

The court considered the applicant's submissions that errors of law had been made by both commissioners and that there was procedural unfairness in the proceedings. The court found that while there were some issues with the procedural fairness of the hearings, these did not reach the threshold of unfairness necessary to warrant setting aside the decisions. The court also considered the applicant's argument that errors of law had been made. After reviewing the evidence and the applicable law, the court found that there were no errors of law that warranted the setting aside of the decisions. The court concluded that the decisions of the commissioners were soundly based on the evidence and the law.

As the court found no grounds for appeal, the appeals were dismissed. The court ordered that the applicant pay the respondent's costs of the appeal, to be taxed on the standard basis if not agreed.

Orders