Yi Zhang v Medlab Clinical Ltd
[2021] FWCFB 2453
•3 MAY 2021
| [2021] FWCFB 2453 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Yi Zhang
v
Medlab Clinical Ltd
(C2021/1516)
VICE PRESIDENT HATCHER | SYDNEY, 3 MAY 2021 |
Appeal against ex tempore decision and order PR727310 of Commissioner McKenna at Sydney on 25 February 2021 in matter number C2020/6997.
Introduction and background
[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 dissatisfied in his working relationships with Dr Mueller. Following the applicant's unsolicited and unheralded discussions about resignation, the applicant and the respondent in the end (indistinct) settled upon a mutual arrangement or agreement to part company.
There was no coercion the part of the respondent, and I note it is not incumbent upon an employer to attempt to prevail upon an employee to remain in its employment. This was not… a case advanced of being a constructive dismissal, although there is some overlap. I reiterate that it is my finding that the parties mutually separated, in terms of their employment relationship.” 5
[4] The Commissioner went on to find that Dr Mueller and Ms Spyropoulos were not involved in any coercive conduct, but took time to talk to Mr Zhang about his advice that he was considering resigning. 6 The Commissioner also made the following adverse credit finding with respect to Mr Zhang:
“Last, it is necessary to make findings in the following respects, given the conflicting and incompatible accounts of what occurred on 25 August 2020. It is an area I sometimes try to avoid, but I am bound in this matter to make the relevant findings. To the extent there were differences of material relevance as between the evidence of the applicant, on the one hand, and the respondent's witnesses on the other hand, I preferred – and strongly so – the evidence adduced in the case of the respondent.
The evidence of the applicant on various levels was, regrettably, unsatisfactory. It involved at times argumentativeness, obfuscation, evasiveness, and, indeed, outright refusal to answer questions reasonably put to him. I also considered – again, regrettably – that there has been some reconstruction in what has been put forward by the applicant, and, I might say, some inconsistent reconstruction in that regard. It is unnecessary to catalogue these matters. What was said by the applicant during the proceedings today speaks for itself.” 7
[5] The Commissioner also found that Mr Zhang had been untruthful in some of his dealings with Medlab. 8
[6] In his notice of appeal (as amended), Mr Zhang set out the following grounds of appeal:
“Significant errors of fact
1. Her commissioner did not approve the evidence for applicant to approve anything.
2. Her commissioner ignores the fact the respondent submitted false evidence.
3. Her commissioner ignored the fact the there is an option of payments for compassion for lost the job why respondent use the payment in lieu of notice to expression their compassion.
4. Her commissioner misinterpreted the employment separation certificate.
5. Her commissioner ignored the fact legal definition of dismissal. Which is which party formally end the employment. – mutual separation did not have legal standing.
6. Her commissioner accepts the HR’s verbal evidence however, HR also are suspected submitted false evidence. Also, HR made inconsistent document throughout applicant’s employment.
- Details will be provided in argument later.
- My lawyer did not follow my instruction and lots of critical point is not discussed at hearing, and no evidence is granted, it was very hard for applicant to prove anything.”
- It was not her commissioner’s fault as she was not instructed by applicant’s legal representative.”
[7] In respect of permission to appeal, Mr Zhang contended in his notice of appeal that:
“The respondent are suspected conduct the misleading conduct of employment. Which is the public interest.”
[8] Mr Zhang’s written and oral submissions with respect to permission to appeal were, at least in some respects, somewhat difficult to follow. We read them as advancing the following contentions:
• it is in the public interest to grant permission because the appeal raises general important issues concerning the need for correct information to be provided in an employment separation certificate, and the need for the Commission to protect the employee from “deformation” [sic; presumably defamation];
• the Commissioner failed to take into account relevant matters, including failing to reject the term “mutual separation”, accepting Medlab’s explanation of the “wrong selection” which would allow employers to release the incorrect information which “deforms” the employee’s reputation, and encouraging the violation of justice;
• the decision manifests an injustice, in that the Commissioner failed to “conduct proper authenticity verification on evidence”, failed to comprehensively assess hearsay evidence, incapacitating Mr Zhang’s “ability of defending and by not ordering evidence”, and exaggerating Mr Zhang’s history when assessing his credibility while ignoring the dishonesty of the other party;
• the decision was counter-intuitive in various respects;
• the fact that Medlab made a payment categorised as being made in lieu of notice was demonstrative of a dismissal;
• Medlab had submitted false documents in support of its position; and
• the Commissioner’s assessment of Mr Zhang’s evidence was made in circumstances where Mr Zhang had been asked misleading and provoking questions for more than one hour, his legal representative did not do his job, Mr Zhang was not allowed to raise objections himself, and Mr Zhang had no legal experience and spoke English as a second language.
Consideration
[9] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by:
(i) the General Manager (including a delegate of the General Manager); or
(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[10] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 10 The public interest is not satisfied simply by the identification of error11, or a preference for a different result.12 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 13
[11] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 14 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.15 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.16
[12] We are not satisfied that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds which would justify the grant of permission to appeal. The decision was one which turned on its own particular facts, and the appeal does not raise any issue of law or principle which is of wider application. As earlier explained, the question of whether Mr Zhang was dismissed turned upon whose evidence of the events of 25 August 2020 was to be accepted. Ms Spyropoulos’ version of events, given by her in her statement of evidence and confirmed in cross-examination, amply supports the position that Mr Zhang stated that he wished to leave his employment with Medlab and that an agreement that he should do so based on the provision of a reference and two weeks’ pay was reached. The Commissioner, with the benefit of seeing and hearing the witnesses give their evidence in its entirety, accepted Ms Spyropoulos’ evidence and made adverse credit findings against Mr Zhang. No reasonably arguable ground of error in relation to these conclusions has been advanced by Mr Zhang. Further, we agree with the Commissioner’s assessment of the evidence. In particular, we note that Ms Spyropoulos’ evidence was supported by the contemporaneous notes that she took of the relevant meeting with Mr Zhang and Dr Mueller on 25 August 2020, and that Mr Zhang’s evidence was marred by statements as to what occurred that were obviously artificial and self-serving in nature.
[13] There were two matters which might, ostensibly, be regarded as adverse to the proposition that Mr Zhang was not dismissed: first, he was paid two weeks’ pay upon the termination of his employment and, second, Ms Spyropoulos ticked the box “Unsuitability for this type of work” as the reason for the termination of Mr Zhang’s employment in the employment separation certificate. The Commissioner dealt with these two matters specifically in her decision, as earlier discussed, and disposed of them on the basis of her acceptance of Ms Spyropoulos’ evidence. We accept that Ms Spyropoulos’ explanation of these matters was not inconsistent with the position that Mr Zhang’s employment ended by mutual agreement following his indication that he wished to depart his employment.
[14] We have reviewed the evidence to consider whether the outcome of the proceeding before the Commissioner was counter-intuitive or manifested an injustice. It is clear that Mr Zhang initiated the events of 25 August 2020 by telling Ms Spyropoulos that he wished to resign, and while he subsequently prevaricated about this position over the course of various meetings, Ms Spyropoulos’ evidence was that at the final meeting with her and Dr Mueller, he eventually confirmed in clear terms that he wished to depart his employment. Mr Zhang said that he initially acted upon impulse in stating that he wished to resign, which may be true, but his subsequent conduct as described by Ms Spyropoulos is inconsistent with resignation merely being a passing fancy on his part. On the evidence accepted by the Commissioner, we do not consider it to be arguable that Medlab in any way coerced Mr Zhang to resign or took advantage of any momentary confusion or distress on his part.
[15] We also do not accept that any arguable case of denial of procedural fairness has been advanced. Mr Zhang was legally represented at the hearing, and he is bound by the conduct of his case by his legal representative. In any event, no particular deficiency in his legal representation has been identified. Mr Zhang’s case was fully articulated before the Commissioner, and was properly considered and rejected by her.
[16] Accordingly, for the reasons given, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr Y Zhang on behalf of himself.
Mr K Brotherson of counsel on behalf of the respondent.
Hearing details:
2021.
Sydney (via video-link):
3 May.
Printed by authority of the Commonwealth Government Printer
<PR729162>
1 PR727310
2 [2020] FCAFC 152, 300 IR 146
3 Transcript, 25 February 2021, PN 12
4 Ibid, PNs 13-15
5 Ibid, PNs 19-20
6 Ibid, PN 21
7 Ibid, PNs 22-23
8 Ibid, PNs 24-25
9 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
10 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial reviewin Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
13 [2010] FWAFB 5343, 197 IR 266 at [27]
14 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
15 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
16 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
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