Star X Technology Solutions Pty Ltd v Kang Huai Liu
[2024] FWCFB 313
•22 JULY 2024
| [2024] FWCFB 313 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Star X Technology Solutions Pty Ltd
v
Kang Huai Liu
(C2024/3732)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 22 JULY 2024 |
Appeal against order PR775155 of Deputy President Boyce at Sydney on 20 May 2024 in matter number U2024/1693 – permission to appeal refused.
Star X Technology Solutions Pty Ltd (Star X) seeks permission to appeal and if granted, appeals an Order[1] of Deputy President Boyce dated 20 May 2024.
The Deputy President determined that Mr Kang Huai Liu had been unfairly dismissed by Star X within the meaning of s 385 of the Fair Work Act 2009 (Cth) (Act). The Deputy President issued an Order that Star X pay to Mr Liu the gross sum of $8,496.06 (subject to taxation as required by law), and pay to Mr Liu’s nominated superannuation account statutory superannuation contributions of $934.57.
Star X sought a stay of the decision and order pending the hearing and determination of the appeal. The stay application was granted[2] and an order made[3] on 21 June 2024.
The application was listed for permission to appeal only. For the reasons that follow, permission is refused.
Decision under appeal
The background to this application was summarised in the stay decision at paragraphs [7] to [21] inclusive and is not repeated here. It relevantly records that the Deputy President issued a decision ex tempore on transcript at a hearing on 20 May 2024, a hearing that Star X did not attend:[4]
[20] The Deputy President issued a decision ex tempore on transcript which, in summary, reasoned as follows:
(a) The 5 January 2023 employment contract sets out Mr Liu’s remuneration, duties, hours of work and related matters and contained a termination provision.
(b) The appellant had not filed a Form F3 in accordance with the requests made by chambers.
(c) The appellant, by its Director Mr Shi, had engaged with chambers from time to time but had not engaged with the proceedings resulting in the first hearing on 1 May 2024 being adjourned.
(d) The 20 May 2024 hearing proceeded in the absence of the appellant, as it had been appropriately notified.
(e) The 29 January 2024 resignation letter brought the employment contract to an end, but the relevant question was whether it amounted to a dismissal within the meaning of s 386 of the Act.
(f) The email correspondence between the parties demonstrated a breakdown in the relationship. Mr Liu’s evidence and submissions demonstrated that he had been stood down without pay in January 2024 and was owed salary that had not been rectified by the appellant.
(g) The appellant’s failure to pay Mr Liu in accordance with his employment contract is a fundamental breach of contract and the employment relationship. Mr Liu brought the employment to an end because of the appellant’s failure to pay him, despite Mr Liu’s requests.
(h) Mr Liu’s resignation was forced because of conduct engaged in by the appellant, such conduct amounts to repudiation and brought the employment contract to an end. Accordingly, Mr Liu was dismissed within the meaning of s 386 of the Act such that Mr Liu’s unfair dismissal application was within jurisdiction.
(i) There was no valid reason for Mr Liu’s dismissal for the purposes of s 387(a). As there was no valid reason, Mr Liu was not notified of it or given an opportunity to respond (s 387(b) and (c)). There were no considerations relevant to s 387(d) and no evidence of unsatisfactory performance by Mr Liu for the purposes of s 387(e). Sections 387(f) and (g) were treated as neutral considerations.
(j) With respect to any other relevant matters (s 387(h)), Mr Liu continued to be owed salary for work performed, which weighed in favour of a finding that the dismissal was harsh, unjust or unreasonable. The dismissal was found to be unfair.
(k) With respect to remedy, reinstatement was not regarded to be appropriate. Having regard to the matters under s 392(2) and taking into account (i) Mr Liu’s period of one year’s service, (ii) there being no evidence of the appellant’s viability, (iii) Mr Liu’s recently secured new employment, and (iv) the amount of remuneration he would have received and earned pursuant to ss 392(2)(c) and (f), the Deputy President determined it appropriate to order compensation in the amount of two months’ pay, representing the period it took Mr Liu to secure new employment. Having regard to the considerations in Sprigg,[5] no deductions were made for contingencies and the Deputy President was satisfied that the amount, expressed as a gross sum, was appropriate.
Appeal grounds
There are 21 paragraphs within section 2.1 of the Form F7 Notice of Appeal in response to the question “what are the grounds for your appeal?” These grounds fall under two headings: significant errors of fact and misleading actions. They may generally be summarised as containing an explanation of the case that Star X might have advanced if it had engaged in the proceedings at first instance.
In relation to the alleged significant errors of fact, Star X contends that Mr Liu resigned from his employment on 29 January 2024 and accordingly, he has not been dismissed within the meaning of s 386 of the Act.
Under the heading “misleading actions,” Star X contends that it was notified of Mr Liu’s application for an unfair dismissal remedy on or about 20 February 2024. It says that it reached an agreement with Mr Liu’s girlfriend on 4 April 2024 “on the outstanding entitlement and salary amount” for Mr Liu. Star X’s position is that in circumstances where the “final amount was agreed upon and payment had been made, the Appellant assumed the matter was resolved and did not see the need to respond to the FWC.”
Star X contends that it is in the public interest to grant permission to appeal because the decision manifests an injustice. It says that if permission is refused, an employee who resigned for personal reasons would be unjustly compensated for an unfair dismissal that did not occur, leading to a substantial injustice.
Permission to appeal – principles
There is no right to appeal and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act and therefore s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[6]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[10] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
Alleged significant errors of fact
This is an appeal from a discretionary decision to which the principles in House v The King[11] apply. The correctness of the Deputy President’s decision can only be challenged through the demonstration of error in the decision-making process.[12]
Star X contends that the Deputy President erred in concluding that Mr Liu had been dismissed in circumstances where Mr Liu resigned on 29 January 2024. Star X also says that Mr Liu erroneously informed the Deputy President that he had been requested to work from home, without pay, from around 10 January 2024. Star X contends that it observes flexible working arrangements and only requires its employees to attend the office one to two days per week. Further, Star X says that since October 2023, it had “avoided making some large payments” from a business bank account demonstrating multiple unauthorised payments and further had “encountered technical problems when making payment of salary” to Mr Liu. Accordingly, some payments were delayed, and a portion of Mr Liu’s salary was paid in cash “on multiple occasions.”
The contention made by Star X that the Deputy President made significant errors of fact does not appear to be arguable, having regard to the following matters.
The Deputy President conducted an analysis of Mr Liu’s resignation letter, including whether it had been forced by reason of conduct or a course of conduct engaged in by Star X. This consideration occurred by reference to the material and evidence that was before the Deputy President, which was confined to Mr Liu’s evidentiary case. Mr Liu’s evidence was that he was told to stay at home and that he would not be paid until later in January 2024. This evidence was uncontested, and the Deputy President was entitled to accept it. In the exercise of his discretionary judgment, the Deputy President was satisfied that Mr Liu’s resignation had been forced by the conduct of Star X.
In the course of the proceedings before us, Star X accepted that it did not pay – until June 2024 – Mr Liu’s January 2024 salary in full, and Mr Liu’s statutory superannuation entitlements for the March, June, September and December quarters in 2023 and January 2024. Each of these payments is said to have been made on instruction to Star X from the Fair Work Ombudsman. Having regard to these matters, we see no arguable appealable error arising from the Deputy President’s finding that Mr Liu brought the employment to an end because of Star X’s repudiatory conduct in failing to pay him, despite Mr Liu’s requests.[13] The Deputy President’s conclusion that Mr Liu’s resignation was forced by the conduct of Star X appears to be drawn from the material and evidence before the Commission and is consistent with the position explained to us on appeal. A forced resignation meets the definition of a dismissal under s 386(1)(b) of the Act. It follows that no arguable appealable error arises from the Deputy President’s determination that Mr Liu was dismissed.
Misleading actions
Star X contends that Mr Liu lodged against it both an application for an unfair dismissal remedy in the Commission as well as an underpayment case with the Fair Work Ombudsman. Star X says that it “assumed there was only one case.”
Star X submits that on or around 4 April 2024, it reached an agreement with Mr Liu’s girlfriend “on the outstanding payments” for Mr Liu. Thereafter, Star X “assumed” the matter was resolved and “sent emails to the Commission stating that payment has been made.” Star X says that Mr Liu’s girlfriend had advised that she would discontinue “the Fair Work matter” and Star X therefore believed that attendance at the hearing before the Deputy President was “unnecessary.”
We are not persuaded that this matter demonstrates an arguable case of appealable error. Star X failed to attend three proceedings listed before the Deputy President: a 10 April 2024 case management conference, a 1 May 2024 hearing, and a further hearing on 20 May 2024. The notices of listing issued by the Deputy President’s chambers were effective in placing the parties on notice of the proceedings, and in securing Mr Liu’s attendance at them.
Further, Star X was in receipt of the 10 April 2024 Directions issued to the parties, which provided compliance deadlines and placed the parties on notice of potential outcomes arising from a failure to comply. Despite this, Star X did not file submissions or other evidence, including in support of its view that the matter had been resolved between the parties.
Each of these notifications from the Commission to the parties were clearly stated as being in connection with Mr Liu’s application for an unfair dismissal remedy. In this context, the contention by Star X that it erroneously assumed that the Commission and the Fair Work Ombudsman are the same entity does not point to any arguable contention of appealable error on the part of the Deputy President. Further, the above matters appear to satisfactorily demonstrate that the appellant was given a reasonable opportunity to present its case, both in writing, and at hearings or conferences convened by the Commission.
Against this context, we do not consider it to be arguable that the Deputy President failed to take steps to engage with Star X upon receiving an email from Mr Shi that “payment” had been made. Star X was given the opportunity to address the Deputy President about this matter at the 1 May 2024 hearing, but it chose not to attend. The Deputy President afforded Star X a further opportunity to address him at a hearing on 20 May 2024, but it chose not to attend this hearing either. No arguable appealable error arises from the choice, solely of Star X, not to take advantage of the opportunity provided to it to present its case in the Commission. As Kirby J said in Allesch v Maunez:[14]
“Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.”
We note that absent any arguable error on the part of the primary decision-maker, the permission to appeal process is not intended to provide an avenue for an unsuccessful party to redress deficiencies in the manner in which their case was run at first instance.
Procedural fairness
Star X contends that it was not served with a copy of Mr Liu’s written submissions and evidence filed on 15 April 2024, or the emails filed by Mr Liu with the Commission on 1 May 2024 attaching the resignation letter or his employment contract.
We acknowledge that service of evidentiary material lodged with the Commission is an integral part of ensuring procedural fairness. The question is whether the procedural infraction which appears to have occurred led to any substantive prejudice to Star X in advancing its case before the Deputy President, which would justify the grant of permission to appeal in the public interest. In this respect, McHugh J in Re Refugee Review Tribunal; Ex parte Aala[15] said as follows:
[104] Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.” Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”. In this case, however, the denial of natural justice did not affect the outcome.”
(References omitted)
We have come to the conclusion that the procedural infraction which occurred did not cause any substantive prejudice to Star X did not deny it the opportunity for a successful outcome for two reasons.
First, Mr Liu’s 15 April 2024 submissions are one paragraph in length and are an exact replica of the content of Mr Liu’s Form F2 application for an unfair dismissal remedy.[16] Star X had been in receipt of Mr Liu’s Form F2 application since it was served following lodgement. This means that there is no aspect of Mr Liu’s 15 April 2024 submissions that Star X had no prior notice of. Further, Mr Liu’s resignation letter and employment contract were documents already in the possession of Star X.
Second, Star X failed to attend each of the three proceedings listed before the Deputy President in the application: a case management conference and two hearings. The submissions of Star X before us are that it had no intention of participating in any proceedings before the Commission based on its assumption that the “matter was resolved and did not see the need to respond to the FWC.” In these circumstances, we are not persuaded that receiving Mr Liu’s 15 April 2024 submissions, which went no further than the Form F2 application, would have altered the view of Star X as to the desirability of participating in the Commission proceedings, or led to its active participation.
Taken together, these matters do not point to any substantive unfairness or prejudice resulting from Star X not having received the identified material that would justify the grant of permission to appeal in the public interest. It follows that we are not persuaded that the infraction affected the outcome. We are not persuaded by the contention that receipt of this material would have, of itself, put Star X on notice that Mr Liu was actively prosecuting his case. There are other matters that ought to have made that point exceedingly clear to Star X such as the email from the Deputy President’s Chambers to Star X and Mr Liu on 10 May 2024. This email referred to the upcoming 20 May 2024 hearing, attached three translated documents filed by Mr Liu on 9 May 2024 in support of his case, and advised the parties that a Mandarin interpreter would be available at the hearing.
Nor are we persuaded by Star X’s contention that it was procedurally disadvantaged on the basis that Mr Liu produced documents that had been translated from Mandarin to English, but not by a qualified translator. At the appeal hearing, the legal representative for Star X and its Director, Mr Shi, were invited to advise the Commission of any concerns that had been identified in the translated WeChat messages and emails, but no concerns were brought to the attention of the Full Bench. Star X acknowledged that there is no obvious mistake in the translation and in general terms, submitted that the material is “fine” and “acceptable.” It follows that no arguable case of appealable error arises.
Conclusion and disposition
For the reasons given, we do not consider that a reasonably arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that, by reason of
s 400(1) of the Act, we must refuse permission to appeal.
Permission to appeal is refused. It follows that the stay order[17] is discharged and requires compliance by Star X.
DEPUTY PRESIDENT
Appearances:
F Wang of Prudentia Legal for the appellant
K Liu, W Tian for the respondent
Hearing details
2024.
Melbourne (by video):
July 9.
[1] PR775155
[2] [2024] FWC 1536
[3] PR776296
[4] [2024] FWC 1536
[5] Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; 88 IR 21
[6] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[7] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[11] (1936) 55 CLR 499 at pp 504-505
[12] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21] per Gleeson CJ, Gaudron and Hayne JJ
[13] Appeal Book (AB) p 23 at PN110
[14] Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [38] per Kirby J
[15] [2000] HCA 57; 204 CLR 82 at [103]
[16] AB pp 27-30
[17] PR776296
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