Wu v DSMJ Pty Ltd (No 2)

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.