Wu v DSMJ Pty Ltd (No 2) - [2024] FCA 1404

FEDERAL COURT OF AUSTRALIA
Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404

Appeal from: Wu v DSMJ Pty Ltd [2023] FedCFamC2G 1056

File number: NSD 1449 of 2023

Judgment of: KENNETT J

Date of judgment: 6 December 2024

Catchwords:
INDUSTRIAL LAW – claim for compensation arising out of termination of employment – claim that respondents engaged in adverse action against appellant because he exercised a workplace right (as the Fair Work Act 2009 (Cth) (FW Act) defines those terms) – where appellant was directed to be on-call – where appellant was offered extra remuneration for being on-call – where appellant did not wish to perform on-call duties – where appellant did not put in issue whether direction to be on-call was lawful – where appellant did not put in issue whether the termination of his employment was lawful – whether adverse action was taken because of appellant’s exercise of a workplace right

INDUSTRIAL LAW – whether insisting on compliance with a lawful direction can be undue influence or coercion within the meaning of ss 343-344 of the FW Act – whether appellant required to identify source of a workplace right

INDUSTRIAL LAW – where appellant directed to be on-call – whether direction contravened s 62 of the FW Act because additional hours were unreasonable

PRACTICE AND PROCEDURE – appeal from Federal Circuit and Family Court of Australia (Division 2) – where primary judge has decided issues as to liability but not penalty – whether decision interlocutory for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth)

Legislation:
Evidence Act 1995 (Cth) s 102

Fair Work Act 2009 (Cth) ss 45, 62, 340, 341, 342, 343, 344

Federal Court of Australia Act 1976 (Cth) s 24

Work Health and Safety Act 2011 (Cth) ss 19, 84

Surveillance Devices Act 2004 (NSW) s 7

Professional Employees Award 2020 cll 3.3, 24.2, 24.5

Cases cited:
Lees v Intrepid Travel Pty Ltd [2023] FedCFamC2G 766

Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166

Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd (Trial Judgment) [2024] FCA 1265

Wild v Meduri [2024] NSWCA 230

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 154

Date of hearing: 16, 17, 19 September 2024

Counsel for the appellant: The appellant appeared in person

Counsel for the first, third, fourth and fifth respondents: V Brigden

Solicitor for the first, third, fourth and fifth respondents: People + Culture Strategies

Counsel for the second respondent: The second respondent did not appear

ORDERS

NSD 1449 of 2023

BETWEEN: JIANHUA WU

Appellant

AND: DSMJ PTY LTD

First Respondent

JOE COLON

Second Respondent

MEGAN FARRELL (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

KENNETT J

DATE OF ORDER:

6 DECEMBER 2024

THE COURT ORDERS THAT:
1.Leave to appeal be granted.
2.The appeal be dismissed.
3.Any party that wishes to seek an order for costs is to…

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: [2024] FCA 1404
Decision Date: 6 December 2024

CaseChat Overview and Summary

Wu v DSMJ Pty Ltd (No 2) concerned an appeal against an interlocutory judgment in a dispute arising from the termination of employment. The appellant, Mr Wu, sought to appeal the decision of the Federal Circuit and Family Court of Australia (FCFCOA) which found that his employer, DSMJ Pty Ltd, had engaged in adverse action against him by terminating his employment. The primary judge had not yet determined the penalty for the contravention found, but had ruled on the liability issues. Mr Wu claimed that the termination was because he exercised a workplace right by not agreeing to be on-call outside of his regular duties. The court was required to determine whether insisting on compliance with a lawful direction could constitute undue influence or coercion within the meaning of sections 343-344 of the Fair Work Act 2009 (Cth) (FW Act), and whether Mr Wu was required to identify the source of a workplace right.

The Federal Court found that the primary judge's decision was interlocutory for the purposes of section 24(1A) of the Federal Court of Australia Act 1976 (Cth), and thus leave to appeal was necessary. The court examined the nature of the direction to be on-call, and whether it contravened section 62 of the FW Act because the additional hours were unreasonable. The court noted that Mr Wu did not dispute the lawfulness of the direction to be on-call or the termination of his employment, and that he had not identified any workplace right he exercised that could have led to the adverse action. The court concluded that there was no evidence that insisting on compliance with a lawful direction constituted undue influence or coercion, and that Mr Wu had not met the burden of proving that he exercised a workplace right.

Accordingly, the court dismissed the appeal and noted that the only remaining issue in the proceeding in the FCFCOA was the appropriate penalty for the contravention found by the primary judge. The court granted leave to appeal and ordered that any party wishing to seek an order for costs must file written submissions within 14 days, with responsive submissions to follow if necessary. The question of costs was to be dealt with on the papers if an order for costs was sought in accordance with the order.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be dismissed.

3. Any party that wishes to seek an order for costs is to file written submissions of no more than five pages, together with any evidence on which it wishes to rely on the question of costs, within 14 days.

4. If submissions are filed pursuant to order 3, any other party may file responsive submissions of no more than five pages, together with any evidence on which it wishes to rely, within a further 14 days.

5. The question of costs be dealt with on the papers if an order for costs is sought in accordance with order 3.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The weight of authority in this Court indicates that, although the order from which Mr Wu seeks to appeal is clearly a final order, the judgment is an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and leave to appeal is therefore required: Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166 (Katzmann, Snaden and Raper JJ) at [44]. The respondents did not oppose a grant of leave to appeal, and that leave will be granted. The only issue remaining in the proceeding in the FCFCOA is the appropriate penalty for the contravention that his Honour found (which is not the subject of an appeal), and there is therefore no doubt that the order from which Mr Wu seeks to appeal settles the rights of the parties in respect of the other alleged contraventions. No purpose would be served by requiring Mr Wu to wait until after the determination of penalty before appealing.Summary of the facts At relevant times DSMJ designed and manufactured computer software. Mr Wu started working for Grow Super Ops Pty Ltd (Grow), a subsidiary of DSMJ, in January 2019. On 4 February 2020 he signed a new employment contract with Grow. A letter from the CEO of Grow to Mr Wu dated 24 June 2021 informed Mr Wu that, from 1 July 2021, his “employing entity” would change from Grow to DSMJ and that this would “not impact anything except the entity paying your weekly wages”. The evidence in the FCFCOA did not include any written contract between Mr Wu and DSMJ or agreement to novate the contract that he had signed with Grow. However, the parties conducted the case on the understanding that there was a contract between Mr Wu and DSMJ (the contract) which was in the same terms as the contract he had signed with Grow. (In some of the communications referred to below, Mr Wu and others referred to his employer as “Grow”. This may have been because Grow was the leading entity in the corporate group or because of an assumption that it was still the entity that employed Mr Wu. Nothing turns on these references.) The contract appointed Mr Wu to the position of Lead Systems Engineer on a full time basis. His duties were set out in a schedule to the contract as follows.8. Duties:a)Deploying, automating, maintaining and managing AWS cloud-based production systems to ensure the availability, performance, scalability and security of production systems;b) Build, release and configuration management of production systems;c) Pre-production Acceptance Testing to help assure the quality of our products/services;d) System troubleshooting and problem-solving across platform and application domains;e) Suggesting architecture improvements and recommending process improvements;f) Evaluating new technology options and vendor products;g) Ensuring critical system security through the use of best in class cloud security solutions;h) Oversight and involvement in defining operational support processes; and any other duties and responsibilities assigned or delegated to you from time to time which are within your skills, qualifications and competencies. As a cross-functional team, you may be called upon to fulfil duties that sit outside your usual scope of duties from time to time. These will be kept to a minimum but can vary in type, scope and size.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Wu v DSMJ Pty Ltd [2023] FedCFamC2G 1056
File number:	NSD 1449 of 2023
Judgment of:	KENNETT J
Date of judgment:	6 December 2024
Catchwords:	INDUSTRIAL LAW – claim for compensation arising out of termination of employment – claim that respondents engaged in adverse action against appellant because he exercised a workplace right (as the Fair Work Act 2009 (Cth) (FW Act) defines those terms) – where appellant was directed to be on-call – where appellant was offered extra remuneration for being on-call – where appellant did not wish to perform on-call duties – where appellant did not put in issue whether direction to be on-call was lawful – where appellant did not put in issue whether the termination of his employment was lawful – whether adverse action was taken because of appellant’s exercise of a workplace right INDUSTRIAL LAW – whether insisting on compliance with a lawful direction can be undue influence or coercion within the meaning of ss 343-344 of the FW Act – whether appellant required to identify source of a workplace right INDUSTRIAL LAW – where appellant directed to be on-call – whether direction contravened s 62 of the FW Act because additional hours were unreasonable PRACTICE AND PROCEDURE – appeal from Federal Circuit and Family Court of Australia (Division 2) – where primary judge has decided issues as to liability but not penalty – whether decision interlocutory for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Evidence Act 1995 (Cth) s 102 Fair Work Act 2009 (Cth) ss 45, 62, 340, 341, 342, 343, 344 Federal Court of Australia Act 1976 (Cth) s 24 Work Health and Safety Act 2011 (Cth) ss 19, 84 Surveillance Devices Act 2004 (NSW) s 7 Professional Employees Award 2020 cll 3.3, 24.2, 24.5
Cases cited:	Lees v Intrepid Travel Pty Ltd [2023] FedCFamC2G 766 Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166 Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd (Trial Judgment) [2024] FCA 1265 Wild v Meduri [2024] NSWCA 230
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	154
Date of hearing:	16, 17, 19 September 2024
Counsel for the appellant:	The appellant appeared in person
Counsel for the first, third, fourth and fifth respondents:	V Brigden
Solicitor for the first, third, fourth and fifth respondents:	People + Culture Strategies
Counsel for the second respondent:	The second respondent did not appear

NSD 1449 of 2023
BETWEEN:	JIANHUA WU
Appellant
AND:	DSMJ PTY LTD
First Respondent
JOE COLON
Second Respondent
MEGAN FARRELL (and others named in the Schedule)
Third Respondent

ORDER MADE BY:	KENNETT J
DATE OF ORDER:	6 DECEMBER 2024