Appeal against decision [2025] FWC 605 of Deputy President Colman at Melbourne on 27 February 2025 in matter number U2025/641 – permission to appeal refused.

Ms Yanjun Liu has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Colman issued on 27 February 2025, for which permission to appeal is required. In the decision, the Deputy President declined to grant an extension of time for the filing of Ms Liu’s application for an unfair dismissal remedy against the respondent, Hills Health Pty Ltd.

The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

Decision under appeal

Being satisfied that Ms Liu’s application was filed one week outside the 21-day statutory timeframe for lodgment in s 394(2) of the Act, the Deputy President proceeded to consider whether to allow a further period for the application to be made, having regard to the factors in
s 394(3). As to the reason for the delay (s 394(3)(a)), the Deputy President accepted that Ms Liu is suffering from the mental health condition described in the correspondence from her doctor. However, he did not accept that this condition rendered Ms Liu unable to lodge the application on time, the conclusion not being consistent with Ms Liu’s submissions at the hearing as to the actions she took in the period prior to filing the application. The matters in
ss 394(3)(b), (c), (d) and (f) were neutral considerations. As to the merits of Ms Liu’s substantive application (s 394(3)(e)), the Deputy President recorded Ms Liu’s submission that her dismissal was unfair including because it was in retaliation for having raised concerns and complaints and for taking sick leave. The respondent’s position was that Ms Liu was dismissed on 20 December 2024 because she no longer had a legal right to work in Australia, as her working visa had expired on 8 November 2024. The Deputy President concluded that the merits of the case weighed strongly against an extension of time.

Having regard to the findings made in relation to the above factors, the Deputy President concluded that there were no exceptional circumstances such as to exercise his discretion to extend time. Further, the Deputy President concluded that even if the discretion were enlivened, it would not be exercised in this case.

Permission to appeal – principles

There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the…

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.

Continue reading Yanjun Liu v Hills Health Pty Ltd

Details

AGLC: Yanjun Liu v Hills Health Pty Ltd [2025] FWCFB 93
Case: [2025] FWCFB 93
Decision Date: 12 MAY 2025

CaseChat Overview and Summary

Yanjun Liu lodged an appeal against a decision of Deputy President Colman, who had refused to grant an extension of time for the filing of her unfair dismissal application against Hills Health Pty Ltd. The appeal was heard by the Fair Work Commission, which had to decide whether to grant permission to appeal the decision. The Commission found that the appeal did not meet the stringent public interest test set out in section 400 of the Fair Work Act 2009 (Cth). Ms Liu argued that she was denied procedural fairness and that there was a significant error in the assessment of her medical evidence. The Commission found that the Deputy President had properly considered Ms Liu's medical evidence and that there was no significant error in his assessment of it. The Commission also found that there was no procedural unfairness in the hearing. The Commission refused permission to appeal because it found that the appeal did not raise any genuine issue of law, principle, or wider application, and that upholding the appeal would lack any useful result.

The Fair Work Commission considered the appeal on the basis that it was necessary to engage with the grounds to consider whether they raised an arguable case of appealable error. The Commission found that Ms Liu’s contention that she was denied procedural fairness was not sustainable because she had not indicated that she did not understand anything during the hearing, and she had thanked the Deputy President at the conclusion of the hearing, stating that matters were "all clear on my side." The Commission also found that the contention that there was a significant error in assessing medical evidence was not sustainable because the Deputy President had properly considered the medical evidence and the weight to be assigned to the conclusions was a matter for the Deputy President. The Commission further found that the contention that the appeal attracts the public interest by reference to the stringent test that applies to unfair dismissal proceedings under s 400(1) of the Act was not sustainable because the appeal did not raise any genuine issue of law, principle, or wider application. The overall conclusion reached by the Deputy President that there were no exceptional circumstances justifying the grant of an extension of time when all the matters in s 394(3) were taken into consideration had not been the subject of challenge in the appeal. The Commission concluded that the appeal would lack any useful result. Therefore, the Commission refused permission to appeal in accordance with s 400(1) of the Act.

Orders