Qingwei Wang v Learner Centre Pty Ltd - [2024] FWC 3538

[2024] FWC 3538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Qingwei Wang
v

Learner Centre Pty Ltd

(U2024/9844)

DEPUTY PRESIDENT BUTLER

BRISBANE, 19 DECEMBER 2024

Application for an unfair dismissal remedy – request for permission to be represented – permission not granted.

Ms Qingwei Wang, also known as Alice Wang, has applied for an unfair dismissal remedy (“the unfair dismissal application”). The former employer, Learner Centre Pty Ltd, (“the Learner Centre”), which trades as APEX Training Institute, has applied to the Commission to vary redundancy pay in relation to Ms Wang (“the redundancy pay application”). The proceedings relating to the latter have matter number C2024/6639.
If a party wants to be represented by a paid agent or lawyer, they need the Commission’s permission.[1] The Learner Centre wants permission to be represented by a paid agent in the proceedings in relation to each of the unfair dismissal application and the redundancy pay application. This decision relates to its request to be represented in the proceedings in relation to the unfair dismissal application. Ms Wang opposes the Learner Centre’s request.

When can the Commission grant permission?

The Commission may grant permission only if:[2]
(a)it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b)it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

How does the Commission decide whether to grant permission?

Deciding whether to grant permission is a two-step process:[3]
(a)First, the Commission decides if at least one of the above requirements has been met. If so, that enlivens (activates) the discretion about whether to give permission.
(b)Second, the Commission decides whether to exercise the discretion and grant permission.[4]

Relevant background

On 1 November 2024, I issued directions in anticipation of deciding Ms Wang’s unfair dismissal application. In doing so I directed the parties to attend a conference on 26 November 2024.
I also directed that any party wishing to ask for permission to be represented in this matter to file submissions by Friday, 22 November 2024, and indicated that the submissions should address section 596 of the Fair Work Act 2009 (“the Fair Work Act”). If the other party wished to object, they were to not later than one business day after receiving the requesting party’s submissions.
Deputy President Lake had previously scheduled a hearing in relation to the redundancy pay application for 25 November 2024. That matter was mentioned on 21 November 2024 and it was decided that that matter would be adjourned pending the outcome of the unfair dismissal application. Accordingly, the listing for a hearing on 25 November 2024 was vacated.
On Saturday, 23 November 2024, a prospective representative emailed my chambers attaching a notice that Learner…

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.

Continue reading Qingwei Wang v Learner Centre Pty Ltd

Details

AGLC: Qingwei Wang v Learner Centre Pty Ltd [2024] FWC 3538
Case: [2024] FWC 3538
Decision Date: 19 DECEMBER 2024

CaseChat Overview and Summary

In Qingwei Wang v Learner Centre Pty Ltd, the applicant, Qingwei Wang (also known as Alice Wang), sought an unfair dismissal remedy against her former employer, Learner Centre Pty Ltd (trading as APEX Training Institute). The Learner Centre applied for permission to be represented by a paid agent in the proceedings relating to the unfair dismissal. The central legal issue before the Fair Work Commission was whether the Commission should grant the Learner Centre permission to be represented by a paid agent in the unfair dismissal proceedings. The Commission's decision hinged on whether the criteria for granting such permission under the Fair Work Act 2009 were met.

The Commission considered three possible grounds for granting permission: if it would enable the matter to be dealt with more efficiently, if it would be unfair not to allow the Learner Centre to be represented because it is unable to represent itself effectively, or if it would be unfair not to allow the Learner Centre to be represented considering fairness between the parties. After examining the submissions and background information, the Deputy President found that none of these grounds were satisfied. The submissions from the Learner Centre did not convincingly demonstrate that the presence of a paid agent would lead to more efficient proceedings, and there was no evidence that the Learner Centre was unable to represent itself effectively. Additionally, there was no unfairness between the parties as Ms Wang was representing herself.

Consequently, the Deputy President concluded that the discretion to grant permission was not enlivened, and the Learner Centre's request for permission to be represented by a paid agent was denied. The Learner Centre was, however, given the liberty to reapply if its circumstances materially changed.

Orders