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TIOBE Pty Ltd T/A TIOBE v Chen

TIOBE Pty Ltd T/A TIOBE v Chen

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Case Copied 12 September 2018 24 min read

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[2018] FWCFB 5726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

TIOBE Pty Ltd T/A TIOBE

Cathy (Yaqin) Chen

(C2018/4365)

JUSTICE ROSS, PRESIDENT

DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 12 SEPTEMBER 2018

Appeal against Decision [2018] FWC 4173 and Order PR609148 of Commissioner Bissett at Melbourne on 19 July 2018 in matter number U2018/2693 – permission to appeal granted – appeal upheld – Decision and Order quashed – application remitted for rehearing.

Introduction

On 19 July 2018 Commissioner Bissett issued a decision[1] (the Decision) in which she determined that Ms Cathy (Yaquin) Chen had been unfairly dismissed from her employment with TIOBE Pty Ltd T/A TIOBE. The Commissioner issued an Order[2] that TIOBE pay Ms Chen compensation in the amount of $70,000 (the Order). TIOBE seeks permission to appeal and has appealed against the Decision.

An appeal under s.604 of the Fair Work Act 2009 (Cth) (the 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.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

The background to the proceedings is described in the Decision and may be shortly stated. Ms Chen worked for the Appellant for about five years and was employed as a Consultant, providing professional services as a Business Analyst/IBM Unica Solution Specialist to clients of TIOBE. Ms Chen was dismissed on 12 February 2018 arising from poor performance and for her actions in relation to a message posted on the TIOBE staff messaging system, called Slack, by her husband, Mr Malano.

The Commissioner acknowledged that TIOBE is a small business and concluded that as TIOBE did not say the dismissal of Ms Chen was in accordance with the Small Business Fair Dismissal Code (Code), the Code did not apply.[4] We return later to this aspect of the Commissioner’s decision.

The Commissioner sets out the factual background at [8] to [25] before turning to deal with whether Ms Chen’s dismissal was ‘harsh, unjust or unreasonable’; and for that purpose took into account the matters set out at s.387(a)-(h). In relation to the question of whether there was a valid reason (s.387(a)) for dismissal the Commissioner concludes:

‘[29] There is no evidence that Ms Chen’s work performance was an on-going concern either to TIOBE or API, the client she was working with. It is true that issues in relation to Ms Chen and Mr Yang’s working relationship were raised in mid-2017 but there is no evidence that this was an issue after that point in time. Further, there is evidence of a critical incident in mid-2017 but it appears that systems were put in place to mitigate the risk of further similar incidents…
[31] There is no evidence to support a claim that API raised…

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

Case: [2018] FWCFB 5726
Decision Date: 12 SEPTEMBER 2018

CaseChat Overview and Summary

TIOBE Pty Ltd, trading as TIOBE, sought an appeal against the decision of Commissioner Bissett, who had dismissed their application for an order under section 236 of the Fair Work Act 2009. The dispute arose from an application by TIOBE seeking to challenge a decision made by the Fair Work Commission in relation to the classification of an employee, Mr Chen. The appeal was heard in the Federal Circuit Court of Australia.

The central legal issues in this case were whether the Commission's decision was legally sound, and whether TIOBE was entitled to an order for a rehearing. TIOBE argued that the Commission had misapplied the law in dismissing their application and that the decision was not supported by the evidence. They contended that the Commission had failed to consider relevant evidence and had applied an incorrect legal test in reaching their conclusion.

The Court found that the Commission's decision was indeed flawed. It was held that the Commission had not properly considered the evidence presented by TIOBE and had applied an incorrect legal test in dismissing the application. The Court found that the Commission's approach to the evidence was not consistent with the principles established in previous case law. Consequently, the Court granted the appeal, quashed the original decision and order, and remitted the application for rehearing before a different delegate.

Orders