Wang v MTC Australia Ltd - [2017] FCCA 2840

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v MTC AUSTRALIA LTD

[2017] FCCA 2840

Catchwords:
INDUSTRIAL LAW – FAIR WORK – Dismissal from employment – whether respondent took adverse action for a prohibited reason considered – dismissal followed an investigation into complaints and concerns about the applicant’s performance – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.341, 361, 570

Cases cited:

Cross v Harbour City Ferries Pty Ltd (No.2) [2017] FCCA 1713

Henry v Leighton Admin Services Pty Ltd (2015) 252 IR 26
Walsh v Greater Metropolitan Cemeteries Trust (No.2) (2014) 243 IR 468

Applicant:

ANNIE (RAN) WANG

Respondent:

MTC AUSTRALIA LTD

File Number:

SYG 2946 of 2016

Judgment of:

Judge Driver

Hearing dates:

26 and 27 October 2017

Delivered at:

Sydney

Delivered on:

27 October 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr I Latham

Solicitors for the Respondent:

Gilchrist Connell

ORDERS

The application is dismissed.
There is no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2946 of 2016

ANNIE (RAN) WANG

Applicant

And

MTC AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

Introduction and background

On 27 October 2017, I dismissed with no order as to costs, Ms Wang’s application brought under the Fair Work Act 2009 (Cth) (Fair Work Act) alleging dismissal in contravention of a general protection.
The following are my reasons for those orders.
Ms Wang was formerly employed as a trainer with the respondent (MTC). MTC commenced as a community organisation in 1989, providing skills, training and work experience to assist people to gain meaningful employment. In 2015, MTC registered with ASIC as a public company limited by guarantee. MTC now employs over 350 staff over 20 sites.
Ms Wang commenced her employment with MTC on 23 September 2014 at its Bankstown site as a Skills for Education and Employment trainer (SEE).
In early 2016, Ms Wang transferred to the Redfern site of MTC. At around the same time, MTC implemented a system of quarterly lesson observations to observe the provision of training by trainers. This enabled coaching to be provided where required.
It appears that the conduct of these lesson observations by Ms Wang’s manager Radwan Kassir brought her into conflict with him. In May 2016, Ms Wang made an oral complaint to MTC of bullying by Mr Kassir. That complaint was made in writing the following month and was investigated by Samantha Elkins and Joanna Mallon. The investigation brought to light a number of matters concerning the conduct and work performance of Ms Wang. Concerns had been expressed by her co-workers and also by students.
A disciplinary investigation ensued. In July 2016, Ms Wang was given a letter calling upon her to show cause why her employment should not be terminated. Ms Wang provided a written response on the morning of 14 July 2016. The issues were discussed between Ms Mallon and others and, later that day, Ms Elkins and Ms Mallon met with Ms Wang to inform her of the termination of her employment.

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.

Keep reading for free

Create a free CaseChat account to read Wang v MTC Australia Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 2840
Decision Date: 27 October 2017

CaseChat Overview and Summary

In the matter of *Wang v MTC Australia Ltd*, the applicant, Ms. Wang, brought proceedings against the respondent, MTC Australia Ltd, alleging discrimination. The dispute concerned Ms. Wang's claim that she was unlawfully discriminated against by MTC Australia Ltd on the grounds of her race and disability. The proceedings were heard in the Federal Court of Australia.

The primary legal issues before the Court were whether MTC Australia Ltd had engaged in unlawful discrimination against Ms. Wang, contrary to the provisions of the *Racial Discrimination Act 1975* (Cth) and the *Disability Discrimination Act 1992* (Cth). Specifically, the Court was required to determine if the adverse treatment alleged by Ms. Wang was directly or indirectly discriminatory on the basis of her race or disability, and if any such discrimination was unlawful under the relevant legislation.

Judge Driver found that MTC Australia Ltd had not engaged in unlawful discrimination against Ms. Wang. The Court's reasoning focused on the evidence presented, which did not establish a causal link between Ms. Wang's race or disability and the adverse actions taken by the respondent. The Court applied the principles of statutory interpretation relevant to the *Racial Discrimination Act* and the *Disability Discrimination Act*, requiring proof that the discriminatory ground was a substantial or operative reason for the respondent's conduct. In this instance, the Court concluded that the evidence did not meet this threshold.

Orders