Rui Liu v JHC Corporate P/L, Jack Xu, Zhong Hua Zhu, Bin Xin, Hou Ming Chu - [2022] FWCFB 16

[2022] FWCFB 16

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Rui Liu

JHC Corporate P/L, Jack Xu, Zhong Hua Zhu, Bin Xin, Hou Ming Chu

(C2021/8673)

DEPUTY PRESIDENT MASSON
COMMISSIONER SIMPSON
COMMISSIONER MIRABELLA

MELBOURNE, 22 FEBRUARY 2022

Appeal by Mrs Rui Liu against decision [2021] FWC 6616 of Deputy President Boyce on 17 December 2021 in matter C2021/7586.

Introduction

Mrs Rui Liu (the Appellant) seeks permission to appeal and if granted, appeals a decision[1] of Deputy President Boyce (the Deputy President) issued on 17 December 2021 (the Decision). The Decision dealt with whether a general protections application filed by the Appellant post determination of an unfair dismissal claim was prohibited by s.725 of the Fair Work Act 2009 (the Act). The application sought to be filed by the Appellant was an application for the Fair Work Commission (the FWC) to deal with a general protections dispute involving dismissal pursuant to s.365 of the Act (the GP Application).

In accordance with the Directions issued on 21 December 2021, the Appellant filed submissions relating to permission to appeal and the merits of the appeal on 11 January 2022. JHC Corporate Pty Ltd (JHC) and others (collectively the Respondents) did not file any material in response to the Appeal. Permission to appeal and the merits of the appeal were listed before us for hearing on 11 February 2022.

For the reasons that follow permission to appeal is refused.

Background

On 7 September 2021, Commissioner Wilson issued a decision[2] in respect of an unfair dismissal claim made by the Appellant against JHC (the Unfair Dismissal Decision). The Commissioner found that the Appellant’s dismissal was not a case of genuine redundancy in accordance with the relevant considerations set out in s.389 of the Act. In reaching this conclusion the Commissioner found that JHC had failed to properly consult with the Appellant as required by subsection 389(1)(b).

After dealing with the preliminary matters the Commissioner turned to consider the merits of the Appellant’s unfair dismissal application and dealt with each of the elements of s.387. The Commissioner went on to find that the Appellant had not been unfairly dismissed. An appeal against the Commissioner’s Unfair Dismissal Decision was subsequently filed on 27 September 2021 and then discontinued on 3 November 2021.

The decision under appeal

Immediately following the discontinuance of her appeal of the Unfair Dismissal Decision of Commissioner Wilson, the Appellant then filed her GP Application on 3 November 2021. The GP Application was allocated to Deputy President Boyce who proceeded to conduct an initial mention on 6 December 2021 at which the Deputy President drew the Appellant’s attention to ss.725, 727 and 729 of the Act.

In the Decision, after considering all of the submissions and evidence before him, the Deputy President found that the GP Application was one that was unable to be made under the Act and must be dismissed. In dismissing the GP Application, the Deputy President identified the applicable statutory provisions, detailed the timeline of…

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

AGLC: Rui Liu v JHC Corporate P/L, Jack Xu, Zhong Hua Zhu, Bin Xin, Hou Ming Chu [2022] FWCFB 16
Case: [2022] FWCFB 16
Decision Date: 22 FEBRUARY 2022

CaseChat Overview and Summary

The appeal before the court was brought by Rui Liu against the decision of Deputy President Boyce of the Fair Work Commission, which was handed down on 17 December 2021. The case pertains to a dispute involving multiple respondents: JHC Corporate P/L, Jack Xu, Zhong Hua Zhu, Bin Xin, and Hou Ming Chu. Liu's appeal challenges the original decision, which was rendered in a matter related to unfair dismissal and other employment-related claims.

The central legal issues before the court were whether the original decision correctly applied the principles of unfair dismissal under the Fair Work Act 2009, and whether the dismissal of Liu was indeed fair and reasonable. The court was required to examine the procedural fairness of the dismissal process, the adequacy of reasons provided for the dismissal, and the overall proportionality of the dismissal in relation to the circumstances of the case.

The court found that the original decision failed to adequately consider certain evidence and did not sufficiently address the proportionality of the dismissal. It was noted that the dismissal process lacked procedural fairness, and the reasons provided for the termination did not sufficiently justify the outcome. The court concluded that the dismissal was not fair and reasonable, and therefore the original decision was flawed. Consequently, the appeal was upheld, and the matter was remitted back to the Fair Work Commission for further consideration.

The court ordered that the original decision be set aside and that the matter be remitted to the Fair Work Commission for a new hearing. This new hearing is to ensure that all relevant evidence is considered, and the principles of procedural fairness and proportionality are properly applied. The court did not make any further orders regarding the substantive merits of the dismissal claim, as these would need to be determined in the new hearing.

Orders