| [2020] FWCFB 585 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic
v
Mei Chan
(C2019/7659)
VICE PRESIDENT HATCHER |
MELBOURNE, 17 FEBRUARY 2020 |
Appeal against decision [2019] FWC 7824 of Deputy President Cross at Sydney on 29 November 2019 in matter number U2018/10383.
Introduction
[1] Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic has lodged an appeal, for which permission to appeal is required, against a decision is sued by Deputy President Cross on 29 November 2019 1 (decision).
[2] The matter was allocated to the Deputy President for rehearing following a decision by a differently constituted Full Bench on 23 July 2019 2 (the First Full Bench). For reasons summarised below, the First Full Bench quashed an earlier decision of Senior Deputy President Hamberger which concluded that the appellant was not a small business employer, the Small Business Fair Dismissal Code (Code) did not apply, and the dismissal of Ms Chan was unfair (first instance decision).3
[3] Upon reallocation, the Deputy President concluded that the appellant was not a small business employer and, in determining the merits of the substantive application, adopted the conclusions of the Senior Deputy President at [19] to [75] of the first instance decision. The Deputy President issued an order that the appellant pay Ms Chan an amount of $40,000 plus superannuation by way of compensation. 4 That is the decision and order now under appeal before us.
[4] The appellant conducts a dental practice with two clinics at Hurstville and Hornsby in New South Wales. Ms Chan commenced working for the appellant as a Dental Assistant at the Hurstville clinic in July 2013. From March 2014, she performed the role of Practice Manager at the Hornsby clinic. 5 Ms Chan was dismissed by the appellant on 21 September 2018. The termination letter issued to her on 18 September 2018 provided the following reasons for the dismissal:
(1) identified discrepancies in the cash accounts for which Ms Chan was responsible;
(2) the alleged unauthorised withdrawal of cash from the Appellant’s cash account; and
(3) the taking of an extended period of unauthorised leave.
[5] Ms Chan lodged an application for an unfair dismissal remedy with the Fair Work Commission on 8 October 2018. In its initial Form F3 response to the unfair dismissal application, the appellant objected to the application on the basis that it was a small business employer and had complied with the Code. The matter was set down for hearing before the Senior Deputy President in respect of both the appellant’s jurisdictional objection and the merits of the substantive application.
[6] The First Full Bench described the first instance decision of the Senior Deputy President in the following way:
“[5] As required by s.396 of the Fair Work Act 2009 (the Act), the Senior Deputy President in the Decision turned to the initial matters to be decided before considering the merits. In considering the Appellant’s jurisdictional objection, the Senior Deputy President was required to establish the number of employees of the Appellant employed at the time of the Respondent’s dismissal. He ultimately found that the Appellant “…did not have fewer than 15 employees at the relevant time” from which conclusion it followed that the Respondent was not a small business employer and that the Code did not apply (s.396(c)).
[6] Critical to the Senior Deputy President’s conclusion was his finding as to the employment status of 7 dentists engaged by the Appellant. The Senior Deputy President found that these dentists were employees rather than contractors as contended by the Appellant. We return later to this aspect of the Senior Deputy President’s decision.
[7] Having determined that the Code did not apply, the Senior Deputy President considered whether the dismissal was “harsh, unjust or unreasonable”; and for that purpose gave consideration to the matters set out at s.387(a)-(h) of the Act. As to whether there was a valid reason for dismissal the Senior Deputy President concluded:
‘[52] The evidence in this case is far from clear. This was compounded by the primitive accounting practices used by the respondent. However, I generally accept the applicant’s version of events, especially as it was generally consistent with the written records, such as they are. In particular, I accept that the applicant had an understanding with the respondent that she would receive both commission and a performance bonus, and that these would continue to be paid while she was on maternity leave. The applicant’s practice, accepted and condoned by the respondent over a long period of time, was that she would take this money herself from the respondent’s cash receipts. There was nothing hidden about this. Both the commission and the bonus were included in the monthly cash reports that the applicant gave to the Dr Zhang and Mr Guan. They were also included in the report that the applicant prepared on 11 June 2018.
[53] I do not consider there is sufficient evidence to sustain any of the allegations the respondent made against the applicant. In particular, I am not persuaded that there are any significant, unexplained discrepancies in the cash accounts the applicant had prepared.
[54] Moreover, I accept on the balance of probabilities that Dr Zhang had verbally agreed to pay the applicant a $200 performance bonus for every $12,000 of revenue received per week.
[55] There is no basis for accepting the respondent’s contention that the applicant took unauthorised leave during the period from May 2017 to February 2018. She appears to have kept Dr Zhang informed when she needed to have time off because of complications with her pregnancy. There is no evidence that she failed to meet any requirements for ‘prior written approval’ of that leave.
[56] Finally, I am satisfied that any money the applicant took from the respondent’s cash receipts was money that she was authorised to receive.
[57] Given these findings, I am satisfied that there was no valid reason for the applicant’s dismissal.’
[8] The Senior Deputy President considered the other matters he was required to take into account under s.387 of the Act and relevantly stated:
‘[58] I am satisfied that the applicant was broadly notified of the allegations made against her, and that she was given an opportunity to respond. There is no evidence that the applicant was prevented from having a support person present at any relevant meetings.
[59] The process taken by the respondent in effecting the dismissal was broadly consistent with its relatively small size and lack of access to dedicated human resource management specialists or expertise.
[60] I do not consider there are any other matters I should take into account.’
[9] The Senior Deputy President concluded that:
‘Having regard to all these factors, I am satisfied that the dismissal was unjust and unreasonable.’
[10] The Senior Deputy President next dealt with the question of remedy and concluded that reinstatement was inappropriate, noting that the Respondent had not sought reinstatement. The Senior Deputy President then turned to the issue of compensation and after consideration of the matters set out in s.392(2)(a)–(g) of the Act ordered that the Appellant pay compensation in the amount of $40,000 plus superannuation.”
(references omitted)
[7] The consequence of the Senior Deputy President determining that the seven dentists engaged by the appellant were employees was that the Code did not apply. 6 The Senior Deputy President concluded that the dismissal was harsh, unjust or unreasonable as there was insufficient evidence to sustain any of the allegations the appellant made against Ms Chan in the termination letter.
[8] The appellant sought permission to appeal the first instance decision and order. A review of the appellant’s appeal grounds and submissions before the First Full Bench discloses three grounds of appeal. The first two grounds challenged the Senior Deputy President’s conclusion that the seven dentists were employees and therefore the Code did not apply. The third ground of appeal alleged error in the Senior Deputy President’s conclusion that Ms Chan had complied with the maternity leave notice requirements under s 74 of the Fair Work Act 2009 (Cth) (FW Act), being the requirement to provide prior written notice of her intention to take maternity leave.
[9] The initial focus of the appellant’s oral submissions during the hearing before the First Full Bench was on its concern that the Australian Business Number (ABN) specified on the Form F53 Notice of Representative Commencing to Act (Form F53) 7 filed and served by Ms Chan’s solicitor, was not the correct ABN for the appellant. This is an issue to which we return later in this decision. However, as is apparent from the transcript extract below, the identified anomaly with the ABN was corrected by the First Full Bench upon application by Ms Chan’s solicitor:8
“Presiding member: So your complaint is that the solicitor for the respondent has identified the wrong ABN or ACN number. Is that the gist of it?
Mr Guan: No, my point is that the form he submitted is for a different case. The number 99257936073 is not the ABN of my company.
Presiding member: So your complaint is that he has identified the wrong ABN number. Yes?
Mr Guan: That’s right.
Presiding member: All right. Mr Clarke, do you want to make an application?
…The issue seems to be this: Mr Guan says that the ACN – or ABN number for Advanced Health Invest Pty Ltd is 99157936073, which is not the number that you have identified in your notice of - --
Mr Clarke: Yes, I see. Yes, I do make an application to amend in that case, your Honour.
Presiding member: Yes.
Mr Clarke: I apologise - --
Presiding member: Mr Guan, Mr Clarke has made an application to amend his notice of representative commencing to act; to replace the ACN number - the ABN number identified at page 2 of the form with the number 99157936073.
Mr Guan: I have an objection, because the hearing has officially commenced. Before commence of the hearing, he failed to provide the legal paper to support that he has the legal basis to the be legal representative of the other party.
Presiding member: Yes, all right. We are satisfied that the notice insufficiently identifies the legal name of the appellant to this appeal. We exercise our discretion to amend the form 53 filed by the respondent’s legal representative by deleting the ABN/ACN number appearing at page 2 of the form and replacing it with an ABN/ACN number 99157936073. Now, Mr Guan, can we deal with your appeal.”
[10] In its decision, the First Full Bench determined that it did not consider that the Senior Deputy President’s conclusion that each of the seven dentists were employees of the appellant was reasonably open on the evidence and, accordingly, there was no sound evidentiary basis to support a conclusion that the appellant was not a small business employer. The First Full Bench therefore upheld the first ground of appeal. It did not determine the remaining grounds of appeal. 9 The Full Bench ordered that the matter be remitted for allocation to another member for rehearing.
[11] The matter was subsequently allocated to Deputy President Cross. At a directions hearing on 15 August 2019, the parties agreed that further evidence in the matter would be confined to the question of whether the Code applied. 10 A consequence of this agreement was that Ms Chan’s substantive merits case would be determined by the Deputy President on the evidence and material before the Senior Deputy President at first instance. Accordingly, directions were issued by the chambers of the Deputy President on 15 August 2019 for the filing and service of evidence and material “relating to employee numbers and the Small Business Code.”
[12] On 30 August 2019, in accordance with the directions, the appellant filed an outline of submissions containing one paragraph. It was contended that all the dentists working for the appellant were contractors and not employees. In support of its position, the appellant filed a redacted copy of an agreement it referred to as a “dentist’s contractor agreement.”
[13] On 6 September 2019, at Ms Chan’s request, the Deputy President issued an order compelling the appellant to produce documents relating to four individuals that performed work for it between 30 June 2018 and 20 September 2018. On 19 September 2019, a further order was made by the Deputy President at Ms Chan’s behest, requiring the appellant to produce documents relating to eight dentists that performed work for it during 2018.
[14] On 23 September 2019, Ms Chan filed and served a document titled “Outline of submissions concerning jurisdictional issue.” In it, Ms Chan noted that the appellant had not complied with the orders for production of documents and submitted that the evidence currently before the Commission was insufficient for determination of whether the appellant was a small business employer within the meaning of s 23(1) of the FW Act.
[15] The matter was listed for a hearing on 25 September 2019. However, it became apparent during the hearing that it could not proceed in the absence of what the Deputy President described as “the relevant documentation that I need to decide the issue of whether the Small Business Code applies.” 11 The Deputy President issued further directions for compliance with the orders for production and for the filing of submissions arising from the documents produced. Also during this hearing, the Deputy President indicated, perhaps more clearly than at the 15 August 2019 directions hearing, the procedural course he proposed to adopt in the ongoing management of the matter. Specifically, the Deputy President stated:12
“That then raises the question that was put by Mr Swanson in relation to the basis of the evidence at first instance. What I had anticipated when issuing the directions and conducting the hearing on or about 15 August was that whatever evidence was before Hamberger SDP would be taken as having been read before me. Unless I saw reason to depart from factual findings of his Honour, or that I felt that I had a basis for departing from any findings of credit, that I would also adopt those findings of the Senior Deputy President.
That then points to the further evidence that would be before me that is currently limited to one contract that is completely redacted as to name. It may be through the process of the notices to produce that further evidence or documents upon which the parties rely may come to light. I wish to enquire of the parties whether - and I note it may be that they cannot give that indication in the absence of actually seeing what might be produced or sought to be relied upon, but I am enquiring as to whether the parties see that we might be able to schedule the production of evidence and further submissions as concluding the evidence in the matter without a formal hearing.”
[16] It is apparent from a review of the transcript that the approach proposed by the Deputy President was agreed to by the parties. 13
[17] On 27 September 2019, the appellant produced unredacted copies of six dentists’ contracts. In respect of this material, Ms Chan and the appellant filed further written submissions on 4 October 2019 and 9 October 2019 respectively.
[18] Ms Chan’s submissions considered five of the six dentists’ contracts (one produced contract being for a dentist that commenced after the date Ms Chan was dismissed, thereby not being relevant to the question of whether the appellant was a small business employer at the time of the dismissal). Ms Chan contended that each contract was properly characterised as a contract of employment, with the result being that the appellant was not a small business employer within the meaning of s 23(1) of the FW Act.
[19] The appellant’s submissions accepted that of the six dentists it engages, one (Dr Zhang) is an employee. It contended that the remaining five dentists are contractors. It drew support for this proposition from clause 7 of the contract, titled “No employment or partnership relationship” which states:
“7.1 Independent contractor
The Parties agree that despite any other provision of the Agreement or any other implication which may arise as a result of a course of dealing between them, the Dentist is not an employee of the Principal but an independent contractor.”
[20] It was submitted by the appellant that it was a small business employer but that, in any event, Ms Chan did not provide written notice and a medical certificate in support of her maternity leave and this gave rise to a valid reason for the dismissal.
[21] The Deputy President approached his consideration of the matter by first determining the jurisdictional issue. After summarising the approach in Jiang Shen Cai t/a French Accent v Rozario 14 for distinguishing between employees and independent contractors, the Deputy President considered the content of the dentists’ contracts produced by the appellant.
[22] At [27] of the decision, the Deputy President summarised various provisions of the contract which he considered to be indicative of an employment relationship. This included:
(1) the exercise of significant control over the time and places at which the dentist can work; 15
(2) the exercise of substantial control over the way the dentists may carry out their work; 16
(3) the manner of remuneration; 17
(4) the payment of expenses associated with running the clinic; 18
(5) the assignment of intellectual property from the dentist to the appellant; 19 and
(6) the termination provisions. 20
[23] At [28] of the decision, the Deputy President summarised various provisions of the contract which he considered to be indicative of it being an independent contractor agreement. This included:
(1) the dentists’ responsibility for all taxation and GST liabilities; 21
(2) the provision of remuneration by reference to the dentist’s professional fees, less expenses, plus a management fee (and not by periodic wage or salary); 22
(3) the absence of an entitlement to paid holiday or sick pay (together with a fee for sick leave taken without two weeks’ notice or a valid medical certificate); 23
(4) a “general tendency” for dentists to be engaged as independent contractors; 24
(5) but for a 10-kilometre exclusion area, the dentists are free to perform work for others; 25 and
(6) clause 7 of the contract titled “No employment or partnership relationship” (which we earlier set out). 26
[24] The Deputy President considered and weighed these factors and concluded that none of the dentists could be viewed as conducting a business of their own to which the work in question forms a part. 27 With respect to the appellant’s reliance upon clause 7 of the contracts, the Deputy President concluded that:
“[34] The express term that the Dentists are independent contractors cannot take effect according to its terms if it contradicts the effect of the terms of the Contractors Agreement as a whole, as it does.”
[25] The Deputy President determined that each dentist in question was an employee of the appellant at the time of Ms Chan’s dismissal. Accordingly, the appellant was not a small business employer. 28
[26] Turning to the merits of Ms Chan’s substantive application, the Deputy President determined as follows:
“[36] As noted above, the parties agreed that the only matter for further evidence and determination was the question of whether the Respondent was a small business employer.
[37] Consistent with the First Instance Decision, I have found that the Respondent was not a small business employer. There are no grounds to disturb the conclusions of the Senior Deputy President at paragraphs [19] to [75] of the First Instance Decision.
[38] Having found that the Respondent was not a small business employer, I adopt the conclusions of the Senior Deputy President at paragraphs [19] to [75] of the First Instance Decision, and order that the Respondent pay the amount of $40,000.00 plus superannuation as compensation to the Applicant. An order to this effect will issue separately.”
[27] The appellant sought, and was granted on 24 December 2019, an interim stay in respect of the order. 29 The interim stay order was revoked on 20 January 2020 and replaced with an order staying the requirement to pay Ms Chan applicable superannuation30 (in light of the fact that the appellant had already effected payment of the $40,000 sum to Ms Chan).
[28] Mr Guan is the director of the appellant and was self-represented in the appeal proceedings before us. The notice of appeal dated 16 December 2019 identified one ground of appeal, as follows:
“The Deputy President Cross said ‘in the first rehearing, the parties agreed that the further evidence would relate only to the Small Business Code, and that the other evidence and transcript of the proceedings before Senior Deputy President Hamberger be relied upon.’, As the respondent, I did not show or express the agreement for the above statement, the Fair Work Commission did not arrange the interpreter for this hearing. I did not hear the above agreement. The deputy president cross wrongly understand the Fair Work Act 2009 about the small business code. The item of small business code is clearly said that if it is small business, the employee cannot apply unfair dismissal, however, the other way is not correct, if it is not small business, it is unfair dismissal. This understanding is wrong. The Deputy President Cross deliberately wrongly understood and used the small business code to make the decision [sic].”
[29] Through an interpreter, Mr Guan made oral submissions in support of the appeal. He said that he did not wish to make further submissions on the appeal ground set out above. Rather, the focus of his oral submissions was on the incorrect ABN contained in the Form F53. We understand the appellant’s submissions to be to the effect that the decision was “illegal” because it relied upon material obtained through an order for the production of documents sought by Ms Chan (and her lawyer) in circumstances where the Form F53 did not contain the correct ABN for the appellant. 31
[30] Ms Chan submitted that permission to appeal should be refused because the appeal did not raise any issue which attracted the public interest, the decision was not attended with sufficient doubt and did not manifest an injustice. Further, there was no significant error of fact in the decision.
[31] 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.32 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[32] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[33] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 33 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.34 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues 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.” 35
[34] 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.36 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.37
[35] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 38 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[36] Having regard to the appellant’s written and oral submissions, there are in effect two grounds of appeal that require consideration. The first is whether the Deputy President erred by proceeding on the premise that Mr Guan agreed that the merits of the substantive application would be determined in accordance with the Senior Deputy President’s findings (appeal ground one). The second is whether appealable error is disclosed having regard to the appellant’s concern regarding the ABN in the Form F53 (appeal ground two).
[37] As to the first appeal ground, we have earlier set out the procedural steps taken by the Deputy President. If it was not apparent from the matters discussed at the 15 August 2019 directions hearing (noting that an interpreter was not present), the proposed course for dealing with the substantive merits case was made clear at the 25 September 2019 hearing. A review of the transcript discloses that the Deputy President stated, “whatever evidence was before Hamberger SDP would be taken as having been read before me” and “unless I saw reason to depart from factual findings of his Honour, or that I felt that I had a basis for departing from an findings of credit, that I would also adopt those findings of the Senior Deputy President.” The Deputy President invited submissions from each party in response to the proposal. When asked for his view, Mr Guan, with the assistance of an interpreter, responded, “Okay.” From this, we surmise that Mr Guan understood and agreed with the proposal advanced.
[38] We indicate that the approach proposed by the Deputy President was sensible in the circumstances of this case, noting that the only merits issue that had been agitated by the appellant before the First Full Bench was the question of whether Ms Chan had complied with the maternity leave notice requirements.
[39] At the hearing of the appeal, we raised with Mr Guan the question of whether he had understood that the Deputy President was going to determine whether the dismissal was unfair in accordance with Senior Deputy President Hamberger’s ruling on that matter. Mr Guan responded, “yes, I did.” Furthermore, a review of the material filed by the parties following the 25 September 2019 hearing reveals that the appellant did not advance any submissions in support of a view that a different course to that proposed by the Deputy President should be taken in relation to determining the merits of the substantive case.
[40] Having regard to the above matters, we are not persuaded that the Deputy President erred in the manner contended. We are satisfied that, at least from 25 September 2019, the appellant understood and agreed with the course proposed by the Deputy President for the determination of the matter on rehearing. Consistent with the procedure identified and agreed to at the 25 September 2019 hearing, it is apparent from the decision that the Deputy President approached his consideration of the matter by determining the jurisdictional issue by reference to the supplementary evidence, material and submissions produced, and then considered the merits issues by reference to the material that was before the Senior Deputy President. We read paragraphs [36]-[38] of the decision as meaning that, no new matter having been raised in respect of the merits, the Deputy President had independently considered and adopted the Senior Deputy President’s analysis of the merits issues in the case. No arguable case of appealable error is disclosed in this approach.
[41] For completeness, however, we have considered the issue concerning compliance by Ms Chan with the notice requirements for taking maternity leave – particularly as, on one view, the Full Bench may have anticipated that the rehearing would involve a complete redetermination of the matter, including in respect of this issue.
[42] In support of this appeal ground before the First Full Bench, the appellant’s written submissions stated as follows:
“2. Had Respondent given her employer written notice of the taking parental leave and provided a medical certificate? Fair Work Act S 73. S 74
The following are the points of decision appellant is appealing:
[28] In June 2017, the applicant informed the respondent she was pregnant. There were complications with the pregnancy; consequently, the applicant took quite a lot of time off work between 17 June and 16 August 2017. The applicant kept Dr Zhang informed via WeChat. There is no evidence that Dr Zhang objected to the applicant taking this time off.
[29] In around November 2017, the applicant indicated to Dr Zhang that she would be going on maternity leave in February 2018, and asked what would happen to her commission. Dr Zhang told her she would continue to receive her commission while she was on leave.
[30] During December 2017, the applicant had further time off from work due to complications with her pregnancy. She continued to keep Dr Zhang informed. Again, there is no evidence that Dr Zhang took any objection to this, or asked for any medical certificates.
The following are appellant’s opinions:
According to Fair Work Act 2009, any employee if she want to apply the leave due to the medical or pregnant reason, she should apply by written application and provide the medical certificate from doctor. For this case, Mrs Mei Kuen Chan have not applied the leave by written application and have not provide the medical certificate. According to decision, she only reported that she is pregnant. Do you understand the difference between APPLY and REPORT? The meaning of these two English word are very clear. And difference is very clear too. By law, it is very clear said that the employee should apply the leave by written application, not by oral application and should provide the medical certificate. If the tribunal support what Mrs Mei Kuen Chan’s saying, does it mean any employee can leave the work just make a call?” [sic]
[43] In the course of oral argument before the First Full Bench, after reading ss 73 and 74 of the FW Act, the appellant made the following submissions:
“Mr Guan: (Through interpreter) The respondent took maternity leave of over six months without any application to the company and she simply left her position. The clause specifies clearly that written notice is needed; he or she must provide written notice. We did request her to provide us with a medical certificate, which she denied. Hamberger SDP ignored the provisions mentioned, which means that the decision made is wrong. He applied wrong laws or didn’t apply any law.
By law it says that written notice is needed. However, there was no written notice. So far the respondent has failed to provide me with any written notice or medical certificates. If she has, the dispute can be simply settled. These are the arguments for my appeal that I wish to make.”
[44] We understand the appellant’s argument to be that Ms Chan did not make a written application for unpaid parental leave and failed to provide a medical certificate confirming the need for and anticipated commencement date of such leave. The appellant contends that in the absence of compliance by Ms Chan, the leave was unauthorised and forms a valid reason for dismissal.
[45] We reject the proposition that Ms Chan’s parental leave was unauthorised. In arriving at this conclusion, we have assessed the evidence which was before the Senior Deputy President in the matter and set this out below.
[46] It is not in dispute that in or about June 2017 in a WeChat message, Ms Chan advised Dr Zhang (who she regarded to be her supervisor) that she was pregnant and expecting to give birth in February 2018. Dr Zhang gave evidence that she informed Mr Guan of this in June 2017. 39 This is supported by the evidence of Mr Guan.40
[47] Ms Chan’s view that Dr Zhang was her supervisor and therefore the appropriate contact person to whom she should report is supported by the following evidence:
(1) Dr Zhang is the wife of Mr Guan (the managing director for the appellant). Dr Zhang gave evidence that she communicated messages to clinic staff on Mr Guan’s behalf. 41 In respect of Ms Chan, this included decisions regarding commission payments.42
(2) Ms Chan contends that she was given directions both in relation to day to day tasks and revenue raising activities by Dr Zhang. 43
(3) Dr Zhang made a decision with Mr Guan about Ms Chan’s parental leave pay and advised Ms Chan of their decision. 44
(4) Ms Chan reported any absences from work to Dr Zhang. 45 In turn, Dr Zhang informed Mr Guan.46
(5) Ms Chan referred to Dr Zhang as “boss”, without being corrected. 47
(6) Ms Chan engaged with Dr Zhang about her return to work from parental leave. 48
[48] It is clear on the evidence that there was ongoing dialogue, in writing via WeChat, between Ms Chan and Dr Zhang regarding Ms Chan’s pregnancy from around June 2017. 49 The written communication was supplemented by verbal discussions in the workplace.
[49] Between June and December 2017, Ms Chan took time off work on account of complications with her pregnancy. Ms Chan notified Dr Zhang of these absences via WeChat. Dr Zhang did not request evidence in support of these absences or direct Ms Chan to separately inform Mr Guan.
[50] It is not in dispute that in around November 2017, Ms Chan had a conversation with Dr Zhang about her intention to take maternity leave in February 2018 50 and enquired about the status of her commission payments.51 In January 2018, Dr Zhang confirmed with Ms Chan through WeChat that she and Mr Guan had made a decision about how commission payments would be managed during Ms Chan’s absence on parental leave.52
[51] Mr Guan gave evidence that he approved Ms Chan’s parental leave in around February 2018. 53 Ms Chan commenced parental leave on 5 February 2018 and gave birth on 12 February 2018.54
[52] While there is no evidence before the Commission that Ms Chan provided a medical certificate to the appellant concerning her pregnancy, it was open to Ms Chan to hold the view that the appellant had dispensed with that requirement at the point in time that it approved her leave. This is consistent with s 74(5) of the FW Act which refers to the provision of a medical certificate or other evidence “if required by the employer.” In any event, there is no evidence before the Commission that the appellant advised Ms Chan at any time that it required further information from her regarding her impending leave. Nor is there any evidence of the appellant informing Ms Chan during her parental leave (or prior to it commencing) that it held the view that such leave was unauthorised. To now assert that the leave was unauthorised is inconsistent with Mr Guan’s evidence that he approved it.
[53] Ms Chan’s absence on approved parental leave is also supported by a letter dated 5 June 2018, signed by Mr Guan, in which he certifies that Ms Chan was “on paid maternity leave” and would return to full time work on 17 June 2018 (albeit, Ms Chan gave evidence that she returned to work on a full time basis on 1 June 2018). 55 This correspondence is at odds with the appellant’s contention before the First Full Bench that Ms Chan merely reported her intention to take leave, rather than applied for it.
[54] Having regard to the above matters, we do not consider that granting permission to appeal with respect to appeal ground one would have any utility even if it was reasonably arguable. The sole merits issue agitated by the appellant after the decision of the Senior Deputy President which, arguably, remained alive after the First Full Bench decision, is simply inarguable. There is no realistic possibility that, if another hearing was ordered, the appellant could succeed on this issue.
[55] As to the second appeal ground, it is apparent from the transcript extract set out at [9] above that the First Full Bench corrected the anomaly identified by the appellant in respect of the ABN contained in the Form F53. In any event, this point is utterly lacking in substantive merit and has no bearing upon the substance of the appeal. It follows that no appealable error is disclosed on account of the fact that the matter was not dealt with in the decision.
[56] We are not persuaded that the appellant has established that it is in the public interest to grant permission to appeal. Having regard to our conclusions above, the appellant has not established an arguable case of error in relation to the decision. There are no other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Q Guan on behalf of Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic.
W Clarke on behalf of Ms Chan.
Hearing details:
2020.
Melbourne (with video-link to Sydney):
5 February.
Printed by authority of the Commonwealth Government Printer
<PR716419>
4 PR714726
5 Applicant’s outline of submissions dated 11 January 2019 at 4(a)
6 Section 396(c), Fair Work Act 2009 (Cth)
7 Dated 6 June 2019
8 Transcript of hearing in C2019/2709 dated 11 June 2019 at [38]-[42] and [45]-[51]
9 [2019] FWCFB 5104 at [12]
10 Transcript of hearing in U2018/10383 dated 15 August 2019 at [16]-[20]
11 Transcript of hearing in U2018/10383 dated 25 September 2019 at [80]
12 Transcript of hearing in U2018/10383 dated 25 September 2019 at [86]-[87]
13 Transcript of hearing in U2018/10383 dated 25 September 2019 at [89]-[91]
14 [2011] FWAFB 8307 at [29]-[30]
15 [2019] FWC 7824 at [27](a)(i) to (iv)
16 Ibid at [27](b)(i) to (viii)
17 Ibid at [27](c)(i) to (ii)
18 Ibid at [27](d)
19 Ibid at [27](e)
20 Ibid at [27](f)
21 Ibid at [28](a)
22 Ibid at [28](b)
23 Ibid at [28](c)
24 Ibid at [28](d)
25 Ibid at [28](e)
26 Ibid at [28](f)
27 Ibid at [29]
28 [2019] FWC 7824 at [35]
29 PR715608
30 PR716054
31 See appellant’s outline of submissions (undated but filed on 29 January 2020)
32 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, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
33 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
34 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210, 64 ALJR, 89 ALR 71 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398, 275 ALR 408 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]
35 [2010] FWAFB 5343, 197 IR 266 at [27]
36 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
37 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]
38 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
39 Witness statement of Jun Zhang dated 17 December 2018 (Zhang statement 1) at [15]-[16]
40 Witness statement of Qi Guan (Kelvin Guan) dated 18 December 2018 (Guan statement) at [19]
41 Zhang statement 1 at [4]
42 Zhang statement 1 at [14]; witness statement of Jun Zhang dated 22 January 2019 (Zhang statement 2) at [8]
43 Witness statement of Mei Kuen Chan dated 1 January 2019 (Chan statement) Annexures A to E
44 Chan statement at [32] and Annexure E
45 Chan statement at [29] and [33] and Annexure B and D; Zhang statement 1 at [16] and [17]
46 Guan statement at [22]; Zhang statement 1 at [16] and [17]
47 Chan statement at Annexure B
48 Guan statement at [24]
49 Chan statement at Annexure B, Annexure D, Annexure E
50 Transcript of hearing in U2018/10383 dated 29 January 2019 at [1063]
51 Chan statement at [32]
52 Chan statement at Annexure E
53 Guan statement at [23]
54 Chan statement at [35]
55 Chan statement at [38]