Wenhui (Vincent) Wang v John Meeke, Sonia Leggatt, Body Corporate for Central Approach CTS 41004
[2024] FWCFB 258
•14 MAY 2024
| [2024] FWCFB 258 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Wenhui (Vincent) Wang
v
John Meeke, Sonia Leggatt, Body Corporate for Central Approach CTS 41004
(C2024/2279)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 MAY 2024 |
Appeal against decision [2024] FWC 635 of Deputy President Lake at Brisbane on 25 March 2024 in matter number AB2023/276 – permission to appeal refused.
Mr Wenhui (Vincent) Wang has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision[1] of Deputy President Lake issued on 25 March 2024. The decision dealt with an application made by Mr Wang against Mr John Meeke, Sonia Leggatt and the Body Corporate for Central Approach Community Titles Scheme 41004 (Body Corporate) for a stop bullying order pursuant to
s 789FC of the Act.
Mr Wang’s application was listed for permission to appeal only. Permission to appeal a decision will be given in limited circumstances, and in this case, only if:
(a) the Commission is satisfied that the appeal is in the public interest; and/or
(b) there is an arguable case that the original decision contains an appealable error of fact or law.
For the reasons that follow, we are not satisfied that Mr Wang has identified any public interest basis to grant permission to appeal. Nor do we consider that Mr Wang’s appeal grounds identify any arguable appealable error in the Deputy President’s decision. Accordingly, permission to appeal is refused.
Relevant background
Pursuant to a management agreement executed on 13 April 2010 between Mr Wang, his wife, and the Body Corporate, Mr Wang and his wife were engaged to provide property management services in respect of the common property referred to as “Central Approach.”[2]
In late 2022, a report issued to the Body Corporate committee by a services consultant, Management Rights Advice and Service Consultants, determined that Mr Wang and his wife were not performing their duties in the manner required by the management agreement. Mr Meeke, a resident of the property, was appointed as the Body Corporate representative in April 2023. Ms Leggatt is employed by BCSystems Pty Ltd which is a company that performs administration tasks for the Body Corporate.[3]
From in or about May 2023, Mr Meeke communicated with Mr Wang and his wife in relation to the Body Corporate’s various concerns about the caretaking services. Mr Wang lodged his application for a stop bullying order in the Commission on 2 July 2023. On 8 August 2023, a remedial action notice (RAN) was issued by the Body Corporate to Mr Wang and his wife.[4]
The respondents objected to Mr Wang’s stop bullying application on the basis that Mr Wang did not perform work for a constitutionally-covered business and in any event the actions taken by the respondents constituted reasonable management action carried out in a reasonable manner and in accordance with the management agreement.
Following an unsuccessful conciliation conference on 18 August 2023, the matter proceeded to a Hearing before the Deputy President on 4 December 2023.
Decision under appeal
The Deputy President’s decision is comprehensive and respectfully records the cases advanced by the parties. Relevantly, the Deputy President:
(a) recorded the difficult history of the application;[5]
(b) considered the respondents’ jurisdictional objection that Mr Wang was not a worker at work in a constitutionally-covered business, such that the Commission does not have jurisdiction to determine Mr Wang’s application. The Deputy President determined that the limited evidence before him was insufficient to reach a concluded view on the jurisdictional objection and turned to consider the substantive merits of Mr Wang’s application;[6]
(c) identified each of Mr Wang’s allegations of bullying and sets out the relevant statutory framework against which they would be considered;[7]
(d) made findings in respect of each of Mr Wang’s allegations of bullying and, with the exception of allegation 3, concluded that the allegations were “not bullying behaviour,” or were “reasonable management action taken in a reasonable manner,” or were not otherwise substantiated;[8]
(e) determined, in respect of allegation 3, that the ultimatum given to Mr Wang by Mr Meeke may have been unreasonable;[9]
(f) found that there was no future risk of ongoing harm in respect of allegation 3 as Mr Meeke had stepped down from his role as Body Corporate representative, and there was no bullying behaviour, nor any future risk, in respect of Ms Leggatt at all;[10]
(g) observed that while Mr Wang had “placed his hopes on the Commission to stop” the process associated with the termination of the management agreement, the Commission was not able to determine specific issues pertaining to the enforcement of the parties’ contractual arrangements;[11] and
(h) dismissed the application on the grounds that the primary allegations of bullying advanced by Mr Wang were not substantiated or amounted to reasonable management action such that there is no future risk of ongoing harm by the persons named.[12]
Appeal grounds and submissions
Having regard to the matters identified in Mr Wang’s Form F7 Notice of Appeal and his oral submissions in the hearing before us, we understand that Mr Wang seeks to appeal the decision on the following basis:
(1) It is unacceptable that the Commission did not determine whether it had jurisdiction in relation to Mr Wang’s application until the decision was issued. The Commission has not clarified whether it has authority to adjudicate on Mr Wang’s claims or whether its decision is binding.
(2) The respondents were “free” to exploit a dominant position to victimise and punish Mr Wang. This is demonstrated by the Body Corporate issuing a RAN to Mr Wang on 8 August 2023 during the mediation, but the Commission did not comment on this.
(3) The respondents have demanded that Mr Wang pay its legal fees, but the Commission did not comment on this. Because the Commission did not provide a “clear opinion” on this, effective mediation could not proceed, and the respondent terminated the management agreement on 14 December 2023.
(4) Although the decision concluded that there is almost no risk of sustained or future harm, if Mr Wang had been made aware of the Commission’s lack of jurisdiction sooner, Mr Wang would have sought to continue mediating and “would not have been so fixated on the bullying issue, thus avoiding the serious consequences to their work and livelihood.”
With respect to the public interest, Mr Wang submits that he had sought the Commission’s mediation services to assist in the resolution of the dispute, which was minor and could have been resolved amicably through mutual apologies. However, due to Commission’s inaction in mediating the dispute, the conflict escalated, resulting in harm to his rights. Therefore, it is crucial for Commission to play an active role in mediating disputes and to ensure timely communication regarding its jurisdiction to prevent detrimental outcomes.
Principles – permission to appeal
An appeal under s 604 of 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.[13] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[15]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[16] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[17]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[18] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
Having regard to Mr Wang’s Notice of Appeal and oral submissions, we do not consider that Mr Wang has alleged any matter that demonstrates an arguable case of appealable error.
Appeal grounds (1) and (4) raise similar issues. By these appeal grounds, Mr Wang considers it to be unacceptable that the outcome of his stop bullying application was not known until the Deputy President issued his decision. Mr Wang submits that had he been aware of the Commission’s “lack of jurisdiction sooner” he would have sought to continue mediation rather than proceeding to Hearing.
Consistent with the Directions issued by the Deputy President on 27 October 2023, which are said to have been “set with the consent of the parties,” Mr Wang’s application for a stop bullying order proceeded to a Hearing to determine (a) the jurisdictional objection that was advanced by the respondents, and (b) whether a stop bullying order should be made. The purpose of the Hearing on 4 December 2023 was to provide the Deputy President with sufficient evidence and material to enable a decision on these matters to be made.
The decision demonstrates that the Deputy President did not reach a final conclusion about whether or not Mr Wang was a worker in a constitutionally-covered business (being the respondents’ jurisdictional objection). Rather, the Deputy President proceeded to determine Mr Wang’s substantive application, relevantly concluding that the allegations of bullying raised by Mr Wang had not been substantiated or that the conduct instead constituted reasonable management action. Further, the Deputy President was satisfied that there was no risk of ongoing harm by Mr Meeke and Ms Leggatt. Mr Wang has not challenged these findings in the appeal.
It follows that the contentions advanced by appeal grounds (1) are (4) are founded on a mistaken view that the Deputy President concluded that the Commission lacked jurisdiction. This is not the finding that the Deputy President made. Instead, the Deputy President determined that Mr Wang’s substantive bullying application was unsuccessful having regard to the evidence and material before him. Such a conclusion could not have been reached prior to the 4 December 2023 Hearing and therefore could not have been communicated “sooner,” as contended. Accordingly, no arguable case of appealable error arises in relation to the contentions made by appeal grounds (1) or (4).
For completeness, to the extent that appeal grounds (1) and (4) are directed towards the Deputy President’s concluding observations that the Commission cannot prevent the termination of the management agreement, or determine specific issues pertaining to the enforcement of the parties’ contractual arrangements,[19] no arguable appealable error arises. Mr Wang’s originating application and his 22 November 2023 written submissions each request that the Commission issue a stop bullying order. The Deputy President’s decision deals squarely with this request.
By appeal ground (2), Mr Wang contends that the Body Corporate issued a RAN on 8 August 2023 against his interests and the Deputy President did not “comment on” this. Mr Wang submits that this step should not have been taken during the period that the application was before the Commission. Similarly, by appeal ground (3), Mr Wang contends that the Deputy President did not address the demands made by the respondents that Mr Wang pay its legal fees and therefore effective mediation could not proceed.
At the outset, it is relevant to note that the conduct of the respondents during the proceedings cannot give rise to any arguable contention of appealable error by the Deputy President. To the extent that Mr Wang contends by each of these appeal grounds that the Deputy President erred by failing to take action to prevent the respondents from taking steps to “suppress or penalise” Mr Wang, or that the Deputy President did not “comment on” these matters, then the appeal grounds are not arguable.
Issuing a RAN is an option available to the Body Corporate pursuant to the management agreement. It is also a term of the management agreement that a defaulting party is responsible for any legal fees incurred by the other party in connection with the default. In the decision, the Deputy President specifically considered Mr Wang’s contentions that the provision of the RAN and the demand for payment of its legal fees amounted to bullying.[20] The Deputy President concluded, upon consideration of these matters and the evidence before him, that these matters either did not amount to bullying behaviour or were unsubstantiated.[21] Mr Wang has not challenged these findings in the appeal.
We understand that Mr Wang considers that the Deputy President erred by not reaching these conclusions, or providing a “clear opinion” sooner. However, consistent with our observations at [20] above, the Deputy President’s decision in respect of these concerns could not have been made prior to the 4 December 2023 Hearing at which the parties gave evidence and provided submissions on the issue. It follows that the contention that the Deputy President erred in the manner contended by appeal grounds (2) and (3) is not arguable.
Conclusion
For the reasons given, we do not consider that a reasonably arguable case has been advanced that the decision was attended by appealable error. Nor does there appear to be any utility in the grant of permission to appeal in circumstances where the management agreement has been terminated and the relationship between the parties has ceased.
Furthermore, we are not satisfied that the public interest is enlivened. Specifically, we are not satisfied for the purposes of s 604(2) of the Act that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Order and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
W Wang, on his own behalf
B Sandford of Mahoneys for the respondents
Hearing details:
2024.
Melbourne (by video):
8 May 2024.
[1] [2024] FWC 635 (Decision)
[2] Decision at [4]
[3] Decision at [7]-[11]
[4] Decision at [13]-[28], [101]-[102]
[5] Decision at [4]-[30]
[6] Decision at [32]-[45]
[7] Decision at [46]-[49]
[8] Decision at [51]-[115]
[9] Decision at [70]
[10] Decision at [116]-[120]
[11] Decision at [121]-[123]
[12] Decision at [124]-[127]
[13] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[14] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[15] [2010] FWAFB 5343, 197 IR 266 at [27]
[16] Wan v AIRC (2001) 116 FCR 481 at [30]
[17] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663] at [28]
[18] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[19] Decision at [121]-[123]
[20] Decision at [93]
[21] Decision at [94]-[115]
Printed by authority of the Commonwealth Government Printer
<PR774974>
0
0
0