Qizhi Chen v Monash University

[2015] FWC 3871

[2015] FWC 3871

The attached document replaces the document previously issued with the above code on 10 June 2015.

The document has been edited to change the date in the last sentence of paragraph [7](2) from 2016 to 2015.

Catherine Taylor

Associate to Vice President Hatcher

Dated 23 June 2015

[2015] FWC 3871

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Qizhi Chen
v
Monash University
(C2015/3897)

VICE PRESIDENT HATCHER SYDNEY, 10 JUNE 2015

Appeal against decision [[2015] FWC 2798] of Deputy President Gooley at Melbourne on 27 April 2015 in matter number U2014/16593 – application under s.606 of the Fair Work Act 2009 for a stay order.

[1] On 11 May 2015 Ms Qizhi Chen lodged a notice of appeal in which she applied for permission to appeal and appealed 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. 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 Fair Work Act 2009 (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] In her notice of appeal, Ms Chen has applied for a stay of certain paragraphs of the Decision, and of the Order, pending the hearing and determination of her appeal. There has been a delay in the determination of this stay application because of difficulties encountered in arranging for a hearing of the application. These difficulties have arisen because Ms Chen has left Australia and has no present intention to return. It was ultimately necessary for the stay application to be dealt with on the papers.

[3] The principles concerning whether a stay application will be granted in this jurisdiction are well established. They are stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd 3 as follows:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[4] The Decision and Order were made under s.400A of the FW Act, which falls within Part 3-2 of the Act. Section 400(1) therefore applies to the 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.

[5] Consideration of whether Ms Chen’s appeal is arguable with reasonable prospects of success must therefore take into account her prospects of obtaining permission to appeal under s.400(1).

[6] The required assessment of an appeal’s prospects of success for the purposes of determining a stay application is necessarily of a preliminary nature only, since the Commission will not have had the benefit of hearing the appellant’s full argument and may not have had the opportunity to comprehensively peruse the case materials. 4 In respect of this matter, I have had the benefit of Ms Chen’s outline of submissions filed pursuant to directions made for the hearing of her application for permission to appeal. Having perused that outline, it has not been necessary for me to hear from the University concerning the stay application.

[7] I am not satisfied at this point in time that Ms Chen has an arguable case, with reasonable prospects of success, for obtaining permission to appeal under s.400(1). The critical facts which may be discerned from the Decision are as follows:

(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.

[8] On those facts, I consider that it would have been reasonably open to conclude, as the Deputy President did, that Ms Chen acted unreasonably in not discontinuing her unfair dismissal remedy application on 17 January 2015, and to exercise the discretion in s.400A to award the University its costs for the period 17 January 2015 to 23 January 2015.

[9] In her outline of submissions Ms Chen contends that s.400(1) does not apply to her appeal because the Decision and Order did not relate to unfair dismissal. That proposition is not arguable. It is based upon a note contained in one of the Commission’s forms which refers to s.400(1). The provision itself, earlier set out, requires that the decision under appeal be one “made by the FWC under this Part” (i.e. Part 3-2). The Decision and Order clearly met that description.

[10] Ms Chen also challenges the quantification of costs. She contends that items 2, 5 and 6 of the University’s schedule of costs should not have been included because they fell outside the period 17-23 January 2015. This is not arguable because in the schedule 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.

[11] Ms Chen further contends in her submissions that her failure to notify the University of her intention to discontinue was not unreasonable because, in substance, this should have been done by the Commission in a more timely manner. 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.

[12] Because I am not satisfied, on the basis of the materials currently before me, that Ms Chen has an arguable case with some reasonable prospects of success on the issue of permission to appeal under s.400(1), the stay application is refused.

VICE PRESIDENT

 1   [2015] FWC 2798

 2   PR566656

 3   [2000] AIRC 785, Print S2639 at [5]

 4  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

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