Shulin Guo v Metwest Steel Pty Ltd
[2016] FWCFB 7208
•28 OCTOBER 2016
| [2016] FWCFB 7208 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Metwest Steel Pty Ltd
(C2016/5374)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 5808 of Commissioner Williams at Perth on 18 August 2016 in matter number U2016/1000.
Introduction
[1] On 8 September 2016 Mr Shulin Guo lodged a notice of appeal in which he applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Williams issued on 18 August 2016 1 (Decision). In the Decision, the Commissioner found that, notwithstanding there was a valid reason for Mr Guo’s dismissal by Metwest Steel Pty Ltd (Metwest), it was unjust. However, the Commissioner also determined there should be no order for reinstatement or compensation. A separate Order was issued giving effect to the Decision2 (Order).
[2] At the time of his dismissal, Mr Guo was employed by Metwest as a welder. He was dismissed because he did not attend for work and at the hearing before the Commissioner, Metwest relied on him not having attended for work as required on 24 February 2016 to justify the dismissal. The Commissioner found under s.387(a) of the FW Act that the direction that Mr Guo attend for work on 24 February 2016 on a construction site, which was followed by an SMS message on 25 February 2016, was a lawful and reasonable direction and Mr Guo’s non-attendance represented a valid reason for his dismissal.
[3] The Commissioner then dealt with the remaining matters required to be dealt with under s.387 of the FW Act and concluded:
“[54]In all the circumstances I accept that the dismissal of Mr Guo was unjust, notwithstanding there was a valid reason for his dismissal, because of the failure to give warnings as required by the letter of offer and to follow a fair procedure whilst acknowledging the latter failure was a consequence of the modest size of the enterprise and the absence of human resource management specialists and expertise.”
[4] In relation to remedy, the Commissioner noted that Mr Guo did not seek reinstatement. Having concluded there was considerable animosity between Mr Guo and his foreman as a consequence of the events surrounding the dismissal and having had regard to the fact that Metwest is a relatively small business, the Commissioner was satisfied that reinstatement was inappropriate.
[5] In assessing compensation, the Commissioner considered the matters set out in s.392(2) of the FW Act. His assessment took into account the following factors:
● Mr Guo had been employed a little less than four years 3;
● there was no evidence as to what efforts Mr Guo had made to mitigate his loss 4 or what remuneration he had earned from employment or other work since he had been dismissed5; and
● if Mr Guo had been not dismissed in the manner he was and Metwest had instead followed a fair process including giving him three warnings, it would have dismissed him in any event because the work available for Mr Guo was on a construction site and for a seven day period, he had repeatedly refused to work on that site 6.
[6] The Commissioner’s assessment was that if a fair process had been followed, it would have resulted in the dismissal occurring one week later than it actually did but Mr Guo would not have been entitled to be paid during that week because he had refused to work on the construction site. The Commissioner therefore concluded that if Mr Guo had not been dismissed when he was, he would not have received any additional remuneration 7.
[7] The Commissioner also concluded that even if Mr Guo had been likely to receive any additional remuneration, he would have reduced the amount of compensation to be ordered by 50% because Mr Guo’s misconduct in refusing to attend for work as directed directly contributed to Metwest’s decision to dismiss him 8.
[8] The Commissioner concluded that no compensation should be ordered.
[9] Mr Guo’s grounds of appeal involved taking issue with what he described as factual findings. These included:
● During the period of his employment, there was a maximum of three times that he worked as a welder and it was his understanding that there would not be a continuous and sufficient amount of welding work at the building sites.
● There should have been no misunderstanding between him and his foreman, Mr Weidong, in relation to the date of his return to Perth from travel in China.
● Mr Weidong’s allegation that there was no work for him at the workshop was untrue because it was fully loaded with work and the welders needed to work overtime every day. Further, while he was told that the reason for him having to work on building sites was that he did not get along well with others at the workshop, it was really because he had sought an increase in wages and Metwest did not want him encouraging other workers to do the same.
● The 26 February 2016 date of termination of employment was not correct because he did not collect the termination letter until 4 March 2016 and it had only been sent to him after Mr Weidong had been unsuccessful in persuading him to resign.
● The reasons why he did not seek out other employment after being dismissed was because his visa did not allow him to work for another company and he had suffered a “mental meltdown for this unjust dismissal”.
[10] Mr Guo submitted it was in the public interest for the Commission to grant permission for the appeal because there were a lot more people like him suffering injustice at work and they should fight for their rights at work and not step back from any injustice.
Consideration
[11] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] This appeal is one to which s.400 of the FW Act applies. Section 400 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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[13] 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”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment11. 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.” 12
[14] 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. 13 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.14
[15] Essentially, Mr Guo is challenging the finding of the Commissioner that there was no legitimate basis for his repeated refusal to work on the construction site and the practical implication flowing from this is that there was error in the Commissioner’s determination that no compensation be awarded. However, this has to have been a significant error of fact.
[16] The Commissioner’s findings in relation to the reason Mr Guo gave for refusing to work on the construction site were outlined in paragraph [19] of the Decision:
“[19] I note that Mr Guo’s explanation that it was illegal for him to work on the construction site was not at any time mentioned in any of the text messages between the men. I note that by his own admission Mr Guo had previously worked for MetWest on construction sites and had not objected to doing so. I note that there is nothing in the letter of offer that says where Mr Guo will work or that otherwise prevents him from being directed to work on a construction site. There is similarly nothing in the material provided by Mr Guo regarding his Visa that prevents him working on a construction site as a Welder. I find there was no legitimate basis for Mr Guo to refuse to work on the construction site.”
[17] We consider the Commissioner’s finding that there was no legitimate basis for Mr Guo’s repeated refusal to work on the construction site was open to him and we do not consider there to be any error in the Commissioner’s conclusions that Mr Guo would not have changed his position, nor earned any additional remuneration. Mr Guo gave the Commissioner no indication that he would have changed his mind if he had been warned he would be dismissed if he did not work on the construction site and the Commissioner had regard to the text messages exchanged between Mr Guo and Mr Weidong during the period between 24 February 2016 and 1 March 2016. In the hearing before us, Mr Guo confirmed that even had he not been dismissed, he would have continued to refuse to work on the construction site.
[18] We do not consider that Mr Guo has demonstrated any arguable case that the Commissioner erred in concluding that no compensation should be ordered. We do not consider that the appeal raises any issue which calls for consideration at the appellate level. For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. In accordance with s.400(1), permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
S. Guo on his own behalf.
R. Gilliam for Metwest Steel Pty Ltd.
Hearing details:
2016.
Melbourne:
10 October.
1 [2016] FWC 5808
2 PR584362
3 Decision at [58]
4 Decision at [59]
5 Decision at [60]
6 Decision at [61]
7 Decision at [62]
8 Decision at [63]
9 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
10 (2011) 192 FCR 78 at [43]
11 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506; 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]
12 [2010] FWAFB 5343 at [27], 197 IR 266
13 Wan v AIRC (2001) 116 FCR 481 at [30]
14 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 388, 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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