Qizhi Chen v Monash University
[2015] FWCFB 4037
•25 JUNE 2015
| [2015] FWCFB 4037 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Monash University
(C2015/3897)
VICE PRESIDENT HATCHER | SYDNEY, 25 JUNE 2015 |
Permission to appeal sought against decision [[2015] FWC 2798] of Deputy President Gooley at Melbourne on 27 April 2015 in matter number U2014/16593.
Introduction
[1] Ms Qizhi Chen lodged a notice of appeal on 11 May 2015 in which she applied for permission to appeal a decision of Deputy President Gooley issued on 27 April 2015 1 (Decision) and an order issued pursuant to the Decision on 30 April 20152 (Order) pursuant to s.604 of the Fair Work Act 2009 (FW Act). The Decision and Order concerned an application by Monash University, the respondent to an unfair dismissal remedy application lodged by Ms Chen, for a costs order in its favour pursuant to s.400A of the FW Act. In the Decision the Deputy President found that Ms Chen had acted unreasonably in failing to discontinue her unfair dismissal remedy application on 17 January 2015, and exercised her discretion to award costs to the University for the period 17 January 2015 to 23 January 2015 (when the unfair dismissal remedy application was discontinued). The Order required Ms Chen to pay the University $2260 for costs within 14 days of the date of the Order (that is, by 14 May 2015).
[2] Ms Chen in her notice of appeal also applied for a stay of the Order and certain paragraphs of the Decision. In a decision issued by Vice President Hatcher on 10 June 2015 3 (Stay Decision), that application for a stay was refused. In the Stay Decision, the critical facts of the matter as found by the Deputy President in the Decision, were summarised. For convenience, we reproduce and adopt that summary here:
“(1) The University had two jurisdictional objections to Ms Chen’s unfair dismissal remedy application - firstly, that it was filed outside the 21-day time period prescribed by s.394(2)(a) and there were no exceptional circumstances justifying the grant of an extension of time under s.394(3), and, secondly, that at the time of the lodgement of the application Ms Chen had on foot a complaint to the Australian Human Rights Commission concerning her dismissal which had not been withdrawn or failed for want of jurisdiction, contrary to the prohibition on multiple applications in s.725 of the FW Act.
(2) On 16 January 2015 directions were issued to the parties to file material in relation to the jurisdictional objections. Those directions required the University to file its material by Tuesday 27 January (the day after the Australia day public holiday), which in practical terms meant that the University had to substantially prepare its material by Friday 23 January 2015.
(3) On 17 January 2015 Ms Chen electronically filed a general protections application and, in an attached email, she asked that this new application be substituted for her unfair dismissal remedy application. This was not forwarded by Ms Chen to the University.
(4) On 20 January 2015 Ms Chen by further correspondence to the Commission asked for an adjournment of her unfair dismissal application on the basis that she wished to replace it with her general protections application. This was not forwarded by Ms Chen to the University.
(5) On 23 January 2015 Ms Chen was advised by a staff member of the Commission that it would be necessary for her to discontinue her unfair dismissal remedy application. She then discontinued that application on that day. The University was informed about this in the early afternoon.” 4
[3] One other factual matter noted in the Decision was that on 30 January 2015, the University made an offer of settlement (Offer) which was open for acceptance until 2 February 2015. The substance of the offer was that the University would forego its costs application in relation to the unfair dismissal application if Ms Chen discontinued the general protections application she had lodged on 23 January 2015. Ms Chen did not accept the Offer within the required time, but unsuccessfully asked that she be allowed until 6 February 2015 to consider it. The offer lapsed as a result.
[4] The following critical conclusions concerning the nature of Ms Chen’s conduct in the period 17-23 January 2015 made by the Deputy President in the Decision were as follows:
“[37] Ms Chen submitted that she was not aware that she was required to inform Monash of her intentions. There was of course no legal obligation on Ms Chen to alert Monash to the fact that she was considering discontinuing her application. However given she knew about the directions she knew Monash would be working on its material. Had she copied her email to the Commission to Monash these costs may have been avoided. Monash may not have prepared the material it did.
[38] Of course until Ms Chen discontinued her application, Monash was required to comply with the directions of the Commission. As such, her decision not to discontinue until 23 January 2015 also caused Monash to incur costs.
[39] Ms Chen did not provide any explanation of why she did not seek to file a general protections application until 17 January 2015.
[40] Ms Chen was dismissed in June 2014. She had six months to determine which type of application she should make to the Commission.
[41] Ms Chen was aware when she lodged her unfair dismissal application that it was based on claims of sex discrimination.
[42] Having made her unfair dismissal application she then took two months to decide not to proceed with it and make a general protections application which she then shortly thereafter discontinued.
[43] Once she made her unfair dismissal application, she had had the benefit of Monash’s response which put her on notice that her application was opposed because it was lodged out of time and because she had made a complaint to the AHRC which had not been withdrawn or failed for want of jurisdiction.
[44] Ms Chen has not provided a satisfactory explanation of why she did not take the steps she took until 17 January 2015.
[45] I therefore find that Ms Chen’s failure to discontinue her application at an earlier time was unreasonable.
[46] I do not accept the submission that that material would needed to have been prepared anyway because the same objections would be raised to the general protections application.
[47] While the Commission would have been required to determine the question of whether Ms Chen should be granted an extension of time, whether it would have been required to determine the other objection is less clear in light of the decision of the Full Bench in Hewitt v Topero Nominees Pty Ltd 5.Had the general protections matter proceeded and Monash relied upon the same material, this submission may have had some weight however, given Ms Chen discontinued her general protections application on 4 February 2015, the submission carries no weight.
[48] I find that her unreasonable conduct caused Monash to incur costs and that those costs could have been avoided if Ms Chen had discontinued her application on 17 January 2015 being the date she attempted to substitute a general protections application for her unfair dismissal application. I find that Monash is entitled to its costs for work performed between 17 January 2015 and 23 January 2015.
. . .
[49] On 30 January 2015, Monash made an offer of settlement. That offer was open until 2 February 2015. In that letter Monash offered to forgo this costs application if Ms Chen discontinued her general protections application. I do not consider that I can have regard to this in relation to costs incurred up to 23 January 2015 as the offer was not made until after Ms Chen had discontinued her application.
[50] Ms Chen submitted that she did not unreasonably refuse to accept the offer and I accept that submission. She asked that she be given until 6 February 2015 to consider the options. While that date was not reasonable, as that was the last date Monash could make its costs application, it could have responded by giving Ms Chen some additional time to consider the offer. Instead it advised Ms Chen on 2 February 2015 that it would proceed with its costs application.
[51] I do not consider that Ms Chen was unreasonable in rejecting this offer.”
[5] In her submissions in support of her application for permission to appeal, Ms Chen advanced the following propositions:
(1) Section 400(1) did not apply to her application for permission to appeal, because the appeal, although one made under Part 3-2 of the FW Act, was from a decision relating to procedural matters and not a decision relating to unfair dismissal.
(2) The Deputy President erred in including in her calculation of the costs to be payable under the Order items of costs incurred outside the period 17-23 January 2015.
(3) The failure of Ms Chen to notify the University of her intention to discontinue her unfair dismissal application on 17 January 2015 was not unreasonable because the Commission should have understood that that was her intention and itself notified the University.
(4) Ms Chen’s discontinuance of the general protections application on 4 February 2015 would, if she had been allowed the reasonable extension of time she had sought to respond to the Offer, would have constituted acceptance of the condition upon her in the Offer, with the result that the University would have foregone its costs application in accordance with the Offer. In those circumstances, the Order should not have been made.
(5) For the reasons identified, the Decision and Order were attended with sufficient doubt to warrant their reconsideration, and substantial injustice would result if permission to appeal was refused.
Consideration
[6] We have been able to consider and determine this application for permission to appeal without holding a hearing pursuant to s.607. We formed the view that the appeal could be adequately determined without the parties having to make oral submissions, and Ms Chen and the University consented to this course (noting that the University initially declined to consent, but subsequently gave its consent on 12 June 2015). Our consideration of the matter is based upon the submission in support of her application for permission to appeal lodged by Ms Chen on 1 June 2015.
[7] We reject Ms Chen’s submission that s.400(1) does not apply to her appeal. Section 400(1) provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
[8] The Decision and Order were made in exercise of the power under s.400A to make costs orders in relation to unfair dismissal remedy applications. Section 400A is part of Part 3-2 of the FW Act. The Decision and Order were therefore made under Part 3-2. Section 400(1) does not contain a requirement that the decision be one that “relates to unfair dismissal”, although we have no doubt in any event that the Decision and Order would meet that description.
[9] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment7. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 8
[10] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 9 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.10
[11] We are not satisfied that Ms Chen has demonstrated an arguable case of appealable error on the part of the Deputy President. Her submission concerning the Deputy President’s quantification of costs is without merit. We adopt the conclusion about this argument stated in the Stay Decision as follows (noting that, as a result of the appeal being dealt with on the papers, there is nothing before us which was not before Vice President Hatcher):
“[10] ... This is not arguable because in the schedule [of costs provided by the University] they are, with one possible exception, dated as falling within that period. The exception is the perusal of the notice of listing dated 16 January 2015 (item 5(a)). If this perusal occurred on 16 and not 17 January 2015, it would not be arguable that the public interest is attracted because the amount involved is only $16. Ms Chen also contends that the Deputy President erred in awarding costs of $1614 for the preparation of submissions and an affidavit in support of the jurisdictional objection because they were dated 27 January 2015 and there was no evidence that they were prepared before that time. I do not consider this to be arguable given the Deputy President’s acceptance of the proposition (at paragraph [34] of the Decision) that Ms Chen knew that the University would have to substantially prepare its material by 23 January 2015. Additionally, the University’s submission in support of the costs application stated (at paragraph 32) that by 23 January 2015 it had completed the majority of the drafting work on its submissions and affidavit. This does not appear to have been put into contest by Ms Chen, and the Deputy President was entitled to accept this. There is no arguable case of error in this respect.”
[12] We likewise reject as untenable the submission that Ms Chen’s conduct in the 17-23 January 2015 period could not have been found to be unreasonable because it was the Commission’s responsibility to advise the University of Ms Chen’s foreshadowed intention to discontinue her unfair dismissal remedy application. We again adopt the following conclusion stated in the Stay Decision about this:
“[11] ...This is not arguable. At least in respect of matters not involving any element of personal confidentiality, Ms Chen was not entitled to communicate to the Commission in writing without, at the least, copying those communications to the University. There was no basis for the assumption that the Commission would do this on Ms Chen’s behalf, nor is it contended in any event that Ms Chen held such an assumption at the time. Had she simply copied her communication to the University, so that the University would have been aware from 17 January 2015 that Ms Chen intended to discontinue her unfair dismissal remedy application, it is likely that the costs the subject of the Order would not have been incurred.”
[13] We also do not consider that any arguable case of appealable error has been demonstrated concerning the way in which the issue of the Offer was dealt with in the Decision. We agree with the Deputy President’s conclusion that neither the Offer nor Ms Chen’s response thereto had any relevance to the reasonableness or otherwise of Ms Chen’s conduct in the period 17-23 January 2015. The fact that the parties failed to agree on a settlement which might have avoided the University’s costs application having to proceed had nothing to do with the merits of that costs application once it proceeded.
[14] None of the grounds of appeal is of a nature which would attract the public interest. No issue of importance and general application is raised; no diversity in first-instance decision-making has been identified; no injustice is manifest; the result is not counter intuitive; and no disharmony in the application of legal principles is apparent.
[15] We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly permission to appeal must be refused in accordance with s.400(1).
VICE PRESIDENT
1 [2015] FWC 2798
2 PR566656
3 [2015] FWC 3871
4 [2015] FWC 3871 at [7]
5 [2013] FWCFB 6321
6 (2011) 192 FCR 78 at [43]
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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 [2010] FWAFB 5343 at [27], 197 IR 266
9 Wan v AIRC (2001) 116 FCR 481 at [30]
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
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