Wang & Anor v Australian Industrial Relations Commission & Ors

[2006] HCATrans 549

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M57 of 2006

B e t w e e n -
NAN WANG AND QIAN XIAO
Applicants
and
THE FULL BENCH, AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
LEWIN C, AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Second Respondent
DEMOS PROPERTY SERVICES (AUSTRALIA) PTY LTD
Third Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.14 AM

__________________

GUMMOW J: The applicants are husband and wife. They were employed by the third respondent as office cleaners. After their employment was terminated, they sought relief in the Australian Industrial Relations Commission (“the Commission”) under various provisions of the Workplace Relations Act 1996 (Cth). Commissioner Lewin made certain orders favourable to the applicants. Despite this measure of success they appealed to the Full Bench of the Commission. That appeal succeeded. Commissioner Lewin then made further orders, again giving some relief to the applicants. The applicants then filed an application for constitutional writs in this Court. Hayne J referred that application to the Federal Court of Australia. A Full Court of that Court (North, Madgwick and Siopis JJ) dismissed the applicants’ application.

The applicants’ application for special leave to appeal to this Court raises no issue of law, and demonstrates no jurisdictional error on the part of the Commission. It must be dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish the disposition signed by Heydon J and myself.

AT 9.15 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, Mr and Mrs Wang, sought judicial review of a decision of the Australian Industrial Relations Commission (AIRC) and the subsequent refusal of the Minister for Immigration and Multicultural Affairs to grant them a visa. The dispute concerned the AIRC's finding that Mr Wang had not been dismissed from his employment in circumstances that would entitle him to a remedy under the Workplace Relations Act 1996 (Cth). The applicants argued that the AIRC had erred in law in its determination.

The primary legal issue before the Full Federal Court was whether the AIRC had correctly interpreted and applied the definition of "dismissal" within the meaning of the Workplace Relations Act 1996 (Cth). Specifically, the court had to consider whether the applicants' resignation, which they contended was effectively forced by the employer's conduct, constituted a dismissal for the purposes of the Act. A related issue was whether the Minister's decision to refuse the visa, which was predicated on the AIRC's finding, was affected by any error of law.

Gummow and Heydon JJ held that the AIRC had not erred in its interpretation of the Act. Their Honours affirmed that a resignation, even if induced by the employer's conduct, does not automatically amount to a dismissal unless the employer's conduct was such as to amount to a repudiation of the employment contract, which the employee then accepted by resigning. The court found that the evidence did not support such a repudiation in this instance. Consequently, the Minister's decision, which relied on the AIRC's finding, was not vitiated by any error of law.

The applications for judicial review were dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established