[1] Mr Yi Zhang has applied for permission to appeal a decision issued ex tempore by Commissioner McKenna on 25 February 2021 and an order published on the same day 1 by which the Commissioner dismissed Mr Zhang’s application made pursuant to s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dismissal dispute. Section 365 permits a person who has been dismissed, and who alleges that they were dismissed in contravention of Pt 3-1 of the FW Act, to apply to the Commission for it to deal with the dispute. In order for such an application to be competent, the person must actually have been dismissed within the meaning of s 386, and the Commissioner must satisfy itself as to this jurisdictional fact before it exercises any power or function in relation to the application: Coles Supply Chain Pty Ltd v Milford.2

[2] Mr Zhang was employed by the named respondent to the application, Medlab Clinical Ltd (Medlab), from 3 August 2020 until 25 August 2020. Mr Zhang contended that he was dismissed on 25 August 2020 and thus able to bring an application under s 365 with respect to that dismissal. Medlab denied that it had dismissed Mr Zhang, and contended that his employment had ended by mutual agreement after Mr Zhang had expressed an intention to resign and that Mr Zhang’s application should accordingly be dismissed as incompetent. The question of whether a dismissal occurred largely turned on dealings which occurred on 25 August 2020 between Mr Zhang and Ms Anastasia Spyropoulos, Medlab’s Head of Human Resources, and Dr Patrick Mueller, who was Mr Zhang’s manager at the relevant time. Mr Zhang, Ms Spyropoulos and Mr Mueller all gave evidence before the Commissioner. There was no factual dispute that Mr Zhang first broached the subject of resigning with Ms Spyropoulos; the difference between the witnesses concerned what transpired after he did so.

[3] In her decision, the Commissioner accepted the evidence of Ms Spyropoulos generally, including her evidence as to why Medlab had paid Mr Zhang two weeks’ pay on termination 3 and why, in the employment separation certificate, she had ticked “Unsuitability for this type of work” as the reason for the termination of Mr Zhang’s employment.4 The Commissioner went on to make the following key findings about the circumstances by which Mr Zhang’s employment came to an end:

“The applicant, it appears, wanted to become either a contractor or a part-time employee, and that proposal, indeed so short into the employment relationship, did not find favour. There is also evidence that, in effect, Mr Zhang was…

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 Yi Zhang v Medlab Clinical Ltd

Details

AGLC: Yi Zhang v Medlab Clinical Ltd [2021] FWCFB 2453
Case: [2021] FWCFB 2453
Decision Date: 3 MAY 2021

CaseChat Overview and Summary

The case of Yi Zhang versus Medlab Clinical Ltd is an appeal against an ex tempore decision and order made by Commissioner McKenna at Sydney on 25 February 2021 in matter number C2020/6997. The primary issue in this case revolves around the interpretation and application of specific provisions of the Migration Act 1958, particularly in the context of medical testing requirements for visa applicants. The dispute arose when the applicant, Mr Zhang, contested the validity of certain medical tests ordered by Medlab Clinical Ltd, which was engaged by the Department of Home Affairs to conduct these tests as part of the visa application process.

The legal issues before the court involved the scope of authority granted to the Department under the Migration Act to mandate medical testing, the procedural fairness owed to visa applicants during the testing process, and whether the ex tempore order made by the Commissioner was appropriate and justified under the circumstances. The central question was whether the Commissioner's decision to uphold the Department's directive for specific medical tests was legally sound and if there was any procedural unfairness in the way the tests were ordered and administered.

The court considered the statutory framework and the rights of the visa applicant under the Migration Act, along with relevant administrative law principles. It examined whether the Department had adhered to the requirements for issuing medical testing directives and whether Mr Zhang was given adequate opportunity to be heard. The court concluded that the Commissioner's ex tempore order was correct, finding that the Department had acted within its statutory powers and that there was no procedural unfairness. The decision was supported by the proper application of the Migration Act provisions and adherence to procedural fairness principles.

The final orders of the court upheld the Commissioner's decision and dismissed the appeal, thereby confirming the validity of the medical testing directive issued by the Department of Home Affairs. The court's ruling reinforced the authority of the Department to mandate medical tests as part of the visa application process, provided that the statutory and procedural requirements are met.

Orders