Wang & Anor v Australian Industrial Relations Commission & Ors

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.