Tiobe Pty Ltd T/A Tiobe v Cathy (Yaqin) Chen

[2018] FWC 4722

[2018] FWC 4722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

TIOBE Pty Ltd T/A TIOBE
v
Cathy (Yaqin) Chen
(C2018/4365)

DEPUTY PRESIDENT MASSON MELBOURNE, 10 AUGUST 2018

Appeal against decision [2018] FWC 4173 of Commissioner Bissett at Melbourne on 19 July 2018 in matter number U2018/2693 – stay of decision

[1] This decision concerns an application for a stay order by TIOBE Pty Ltd T/A Tiobe (the Appellant). The stay order is sought pursuant to s 606 of the Fair Work Act 2009 (the Act) in relation to an appeal lodged against a decision of Commissioner Bissett. In that decision, the Commissioner determined that Ms Cathy (Yaquin) Chen (Ms Chen; the Respondent) had been unfairly dismissed and ordered compensation in the amount of $70,000.00 (inclusive of superannuation), less applicable taxation, to be paid to the Respondent within 21 days.

[2] Section 606(1) of the Act provides as follows:

Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

[3] The Appellant seeks a stay of the whole of the order of Commissioner Bissett. The practical effect of a stay would be to suspend the obligation to pay the compensation until the appeal in this matter is determined.

Principles for staying the operation of a decision or order

[4] It is well established that, in deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal. 1 In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed.2

[5] These principles should be applied against the statutory framework that applies to appeals against decisions relating to unfair dismissal. Unlike appeals against decisions made under other provisions of the Act, permission to appeal a decision under Part 3-2 will only be granted if the Commission considers it to be in the public interest to do so. 3 There is accordingly a higher threshold for permission to appeal.4

[6] Further, to the extent that the appeal is on a question of fact, the appeal can only be made on the ground that the decision involved a significant error of fact. 5

[7] More generally, other errors said to have been made by the first instance decision-maker must be of a kind identified by the High Court in House v King. 6

Background

[8] Ms Chen was employed by the Appellant as a Consultant and commenced her employment on or about 12 March 2013. She provided professional services as a Business Analyst/IBM Unica Solution Specialist to clients of the Appellant until her dismissal on 12 February 2018. At the time her employment was terminated on 12 March 2018, Ms Chen had completed a 14 month assignment with API.

[9] Ms Chen was terminated by the Appellant on performance grounds based on claimed feedback from API that it did not want Ms Chen working with them any longer and Mr Czarnota, who is the Managing Director and major shareholder of the Appellant, could not get another engagement for her. Further, it was claimed by Mr Czarnota that he met with Ms Chen several times in the six months following July 2017 and had given her a number of warnings about her work performance.

[10] The unfair dismissal proceedings before the Commission were conducted as a hearing at which Ms Chen and a Mr Malano gave evidence for Ms Chen, while Mr Czarnota gave evidence for the Appellant. Permission to appear was granted by the Commissioner pursuant to s 596 of the Act for a paid agent to represent Ms Chen. The Appellant was self-represented in the proceedings.

[11] The Commissioner heard sworn evidence from each of the three witnesses and found “that there is no evidence of any on-going performance issues such that I could find that they provide a valid reason for Ms Chen’s dismissal”. 7The Commissioner further found that Ms Chen was not notified of the reason for dismissal, that there was no evidence that she had been given an opportunity to respond to the reasons for her dismissal prior to the termination of her employment and that there was no evidence of specific performance concerns having been raised with Ms Chen. The Commissioner further found that while the Appellant was a “small business” and that its size may well have impacted the manner of the dismissal, “It does not excuse the lack of documentation by TIOBE to support the claims it has made with respect to performance issues or meetings with Ms Chen.”8

[12] The Commissioner concluded that the termination was unjust and that there was no basis for the conduct or work performance issues to justify the termination of Ms Chen. The Commissioner’s decision (the Decision) was issued on 19 July 2018.

The grounds of appeal

[13] The Respondent raises six grounds of appeal, variously contending that the Commissioner’s decision was affected by errors of law or significant errors of fact and that the Appellant was denied natural justice by reason of its self-represented litigant status, and that these enliven the public interest.

[14] By its first and second grounds of appeal, the Appellant contends that the Commissioner erred in failing to determine or be satisfied that the applicant’s dismissal was not consistent with the Small Business Fair Dismissal Code (the Code) in accordance with s 385(c) and s 396 (c) of the Act before considering the merits of Ms Chen’s application.

[15] By its third ground, the Appellant contends that the Commissioner erred in law and denied the Appellant natural justice by failing to ensure that the Appellant, as an unrepresented party to the proceeding, had a fair hearing and was aware of the fundamental procedure whereby the Appellant was permitted as a small business employer, to rely upon, lead evidence and make submissions in respect of the Code.

[16] By its fourth ground, the Appellant contends that the Commissioner erred in law by failing to take into account or failing to give any, or any sufficient weight, to the degree to which the absence of dedicated human resource management specialists or expertise in the Appellant’s enterprise would be likely to impact on the procedures followed in effecting the applicant’s dismissal (in accordance with s 387(g) of the Act).

[17] By its fifth ground, the Appellant contends that the Commissioner erred in finding there was no evidence that work performance was an on-going concern of API, the client Ms Chen was working with immediately prior to her dismissal.

[18] By its sixth ground, the Appellant contends that the Commissioner erred in awarding compensation by finding that Ms Chen would have continued to be employed for a further 12 months but for the termination and that the amount awarded by the Commissioner was in all the circumstances excessive.

[19] The grounds of appeal are not matters that are to be determined in this stay application. Rather, the question to be determined is whether the order made by Commissioner Bissett on 19 July 2018 should be stayed. The purpose of examining the grounds of appeal is to consider whether they disclose an arguable case of error, with some reasonable prospect of success on appeal.

Arguable case with some reasonable prospect of success

[20] The Appellant’s first and second grounds of appeal go to whether the Commissioner actively considered and determined whether the dismissal of Ms Chen was consistent with the Code as a necessary preliminary consideration prior to embarking on her consideration of s 387 matters. As evident from paragraph [6] of the Decision, the Commissioner was satisfied that the Appellant was a “small business” but then concluded that the Code did not apply because the Appellant did not contend that the dismissal was consistent with the Code.

[21] The fact that the Appellant may not have contended that the dismissal was consistent with the Code does not in my view relieve the Commission of the statutory obligation to actively consider and determine whether the Code was complied with. That is clear from the wording of s 396 of the Act where it states that a number of matters must be decided before considering the merits of the application including “whether the dismissal was consistent with the Small Business Fair Dismissal Code”. There is, in my view, an obligation for the Commission to actively consider and determine the question of compliance with the Code in circumstances where the employer is a “small business”. It is not apparent from the Decision that the Commissioner did so.

[22] In my view there is an arguable case, with some prospects of success that the Commissioner has fallen into jurisdictional error in not considering and determining whether the Code had been complied with by the Appellant prior to considering the merits of the case pursuant to s 387 of the Act.

[23] I am satisfied that the public interest for the purposes of permission to appeal is engaged for the reasons of the importance and general application of the Commission’s obligations pursuant to s 385(c) and 396 (c) of the Act with respect to the application of the Code. Further, a failure to have properly considered and determined compliance with the Code may, in the circumstances of this matter where the Appellant was self-represented in the proceedings, manifest an injustice.

[24] It is not necessary to consider the other appeal grounds. For the purposes of a stay application, it is sufficient that there is an arguable case, with some reasonable prospect of success, in relation to one of the appeal grounds.

Balance of convenience

[25] The Respondent submitted that in the event that I were to find that the Appellant had made out an arguable case with some prospect of success, then the Appellant should be ordered to deposit the amount due into an interest bearing account under the control of the Appellant’s legal representative.

[26] The Appellant’s representative was unable to advise whether the Appellant would be prepared to undertake to deposit the amount due to the Respondent into an interest-bearing account. It was submitted however, that the Appellant’s request for an expedited hearing of its appeal, the preservation of the status quo and the prejudice the Appellant would suffer if required to pay the compensation in advance of the appeal hearing favoured the Appellant in consideration of the balance of convenience.

[27] I am satisfied that the balance of convenience lies with the Appellant in the particular circumstances of this matter. However, I intend to issue orders requiring the payment of the compensation amount into an appropriate interest bearing account pending the appeal determination as a condition of the stay being ordered. In reaching this decision, I am heavily influenced by the fact that the amount of compensation awarded to Ms Chen was due to be paid by the Appellant on or by 10 August 2018. Furthermore, no application has been made by the Appellant for the compensation amount to be paid in instalments, that option having been made available to the Appellant on further application to the Commission in the Decision 9.

Conclusion

[28] Taking all of these matters into account, I am satisfied that I should make an order staying the operation of the order of Commissioner Bissett in PR609148, pending the determination of the appeal.

[29] The stay order is however conditional and subject to the Appellant paying into an interest-bearing account the sum ordered by the Commissioner. This sum shall be paid to Ms Chen in the event that the appeal is unsuccessful.

[30] The application for a stay is granted. An order giving effect to my decision is issued separately in PR609869.

DEPUTY PRESIDENT

Appearances:

J Tracey of Counsel for the Appellant.

G Dircks for the Respondent.

Hearing details:

2018.

Melbourne.

August 10.

Printed by authority of the Commonwealth Government Printer

<PR609870>

 1   Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 at [5]; applied in Bank of Sydney Ltd v Repici[2015] FWC 5511 et al.

 2   Ibid. See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13].

 3   Section 400(1) of the Act.

 4   WorkPac Pty Ltd v Bambach (2012) 220 IR 313; FWAFB 3206 at 14.

 5   Section 400(2) of the Act.

 6   House v R (1936) 55 CLR 499.

 7   [2018] FWC 4173 at paragraph [32].

 8 Ibid at paragraph [53].

 9   [2018] FWC 4173 at paragraph [74].