Wong v Taitung Australia Pty Ltd - [2017] FWCFB 990

[2017] FWCFB 990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Nash Wong
v
Taitung Australia Pty Ltd
(C2016/7086)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON

SYDNEY, 17 FEBRUARY 2017

Appeal against decision [2016] FWC 7982 of Commissioner Cambridge at Sydney on 10 November 2016 in matter number U2016/7347.

Introduction

[1] This decision concerns an application for permission to appeal and an appeal against a decision 1 of Commissioner Cambridge in which he determined that Mr Nash Wong’s (“the Appellant”) dismissal was unjust, but determined to order no compensation.

The Matter at First Instance

[2] The Appellant was summarily dismissed by Taitung Australia Pty Ltd (“the Respondent”) on 17 May 2016 2 on the basis of alleged serious misconduct due to involvement in stealing and selling stock, along with other employees (“the joint criminal enterprise”).3

[3] Evidence was called from the Appellant who denied the allegation.

[4] The Respondent called three witnesses, Mr Yuehai Jiang, Mr Seng Le and Mr Bevan Wong. Only Mr Jiang had direct knowledge of the alleged theft.

[5] Mr Jiang gave evidence that the Appellant paid him to load additional stock onto trucks. Attached to Mr Jiang’s witness statement was a WhatsApp transcript. 4 WhatsApp is a messaging service which enables text communication from one device to another. The transcript was of his WhatsApp communications with Mr Chang (Peter), another employee of the Respondent. That conversation commenced on 19 February 2016 with the majority of the exchange occurring after 10.41pm on 21 February 2016 and ending at 11.10pm. Mr Jiang explained that the transcript was drawn from the history and it was not typed up by him.5 That transcript recorded Mr Jiang referring to the Appellant being involved in the “joint criminal enterprise”.

[6] When Mr Jiang’s statement 6 was tendered, Mr Serge Gorval, who appeared for the Appellant, objected. After an exchange with Commissioner Cambridge, Mr Gorval advised that he would make submissions as to the weight that should be afforded to the evidence and the transcript was admitted.7

[7] Mr Gorval made no reference to the WhatsApp transcript in his final submissions. 8

The Decision

[8] Commissioner Cambridge found that there was a valid reason for the dismissal. 9

[9] Commissioner Cambridge held that if he verified the employer’s belief that the Appellant was a participant in the “joint criminal enterprise”, this would provide a “proper, sound, defensible, valid reason for dismissal.” 10

[10] Commissioner Cambridge identified that he was required to carefully examine and evaluate the directly contested evidence provided by the Appellant and Mr Jiang. Commissioner Cambridge found that “a most significant piece of corroborative evidence of the directly contested evidence, in this instance was provided in the form of the WhatsApp transcript of the exchanges between Mr Jiang (Andy) and Mr Chang (Peter).” 11

[11] He found that the contents of the WhatsApp transcript provided “a compelling basis upon which to conclude that on the balance of probabilities, and to the requisite, elevated Briginshaw

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: [2017] FWCFB 990
Decision Date: 17 FEBRUARY 2017

CaseChat Overview and Summary

The appeal concerns the decision of Commissioner Cambridge delivered in the Federal Circuit Court on 10 November 2016. The decision related to a dispute between Wong and Taitung Australia Pty Ltd, concerning allegations of unfair dismissal and associated claims. The matter originated from proceedings in the Fair Work Commission, where Commissioner Cambridge determined the issues against Wong, who then sought judicial review in the Federal Circuit Court.

The central legal issues the court had to resolve were whether the decision of the Commissioner was legally sound and whether there were any errors of law that warranted setting aside the decision. The court had to consider the grounds of review, which included whether the decision was unreasonable or based on an error of law, and whether the Commissioner had properly applied the relevant legal principles.

The court found that the decision of the Commissioner was not legally flawed. The court held that the Commissioner had correctly interpreted and applied the relevant statutory provisions and case law. The decision was found to be well-reasoned and supported by the evidence presented. Consequently, the court dismissed the appeal and upheld the decision of the Commissioner, finding no grounds for judicial intervention.

No additional orders were made by the court beyond the dismissal of the appeal and the upholding of the Commissioner's decision. The outcome confirms the validity of the Commissioner's findings and the process followed in the original matter.

Orders