1
Fair Work Act 2009
s 604—Appeal of decision
Liguo Zhou
v
Central Capital Pty Ltd T/A Central Capital Group
(C2018/6514)
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER MCKINNON
SYDNEY, 16 JANUARY 2019
Appeal against decision [[2018] FWC 6747] of Senior Deputy President Hamberger at
Sydney on 31 October 2018 in matter number U2018/7031; public interest not enlivened by
the appeal; permission to appeal refused.
Introduction
[1] Mr Liguo Zhou claims he was dismissed from his employment as a CRM Web
Designer with Central Capital Pty Ltd (Central Capital) on 29 June 2018. Central Capital
maintains it did not dismiss Mr Zhou. His employment had commenced on 3 April 2017.
Following the “dismissal” Mr Zhou applied under s.394 of the Fair Work Act 2009 (Act) for
an unfair dismissal remedy. That application was lodged on 9 July 2018. Section 385 provides
that a person has been unfairly dismissed if the Commission is satisfied that the person has
been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not
consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of
genuine redundancy.
[2] The question of whether Mr Zhou had been dismissed was determined by Senior
Deputy President Hamberger in a decision published on 31 October 20181 (Decision). The
Senior Deputy President determined that Mr Zhou had not been dismissed in that his
employment was not terminated at the employer’s initiative and Mr Zhou did not maintain or
assert that he had been forced to resign.2 Absent a finding that Mr Zhou was dismissed, there
could not be a finding that he had been unfairly dismissed and so the application for a remedy
was dismissed.
[3] Mr Zhou lodged a Notice of Appeal on 15 November 2018 by which he applies for
permission to appeal and appeals against the Decision. This decision is concerned only with
whether permission to appeal should be given.
1 [2018] FWC 6747
2 Ibid at [34]
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DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 23
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Consideration
[4] An appeal under s.604 of the Act is an appeal by way of rehearing and the Fair Work
Commission’s (Commission) powers on appeal are only exercisable if there is error on the
part of the primary decision maker.3 There is no right to appeal and an appeal may only be
made with the permission of the Commission.
[5] As this is an appeal from a decision made under Part 3-2 of the Act, s.400 of the Act
also applies. Section 400 of the Act provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA 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.”
[6] By his Notice of Appeal, Mr Zhou alleges that the public interest is invoked because “I
believed (sic) that seeking the truth is always the public interest”. His grounds of appeal as
enumerated are as follows:
“1. Ms Li was already aware of the fact that I had taken the legal action when I
was fired on 29th June 2018. She subsequently sent several e-mails in order to
produce fake evidence for the purpose of misleading the hearing;
2. Ms Li lied about the fact that Ms Liu (Xiaodong Liu, Lisa) came to the office
on 29th June. Consequently, Ms Liu’s witness statement was not accepted in
the hearing;
3. Regarding the investigation, the transcript shows that Weimin Zhou (William)
was not willing to be an investigator;
4. If Ms Li did not verbally dismiss me on 29th June, some words in Ms Li’s first
statement would not be logical;
5. Ms Li’s behaviour on 13th July clearly showed that she had dismissed me and
did not expect me to return to work as normal;
6. Ms Li dismissed me on 29th June and thought that she could dismiss me
without notice on 3rd July;
7. Ms Li’s behaviour regarding the issue of “sick leave” also shows that she had
dismissed me and was not willing to clarify the issue with me before 13th July;
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
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8. Ms Li ignored all the message or E-mail which linked to the “dismissal” issue.”
[7] Further elaboration and explanation of these grounds is to be found in documents
attached to the Notice of Appeal.
[8] Granting permission to appeal will rarely be appropriate unless an arguable case of
appealable error is demonstrated. In the absence of appealable error an appeal cannot
succeed.4 The fact that the Member at first instance made an error is not necessarily a
sufficient basis for the grant of permission to appeal.5
[9] As can be seen from the above, an appeal against an unfair dismissal decision can only
proceed on the ground that it is in the public interest that permission to appeal be granted and
where an error of fact is alleged it must be a significant error of fact.
[10] These proceedings are restricted to permission to appeal considerations. Mr Zhou is
not required to present a full or developed argument about his appeal grounds. Our present
task is to determine whether it is in public interest that permission to appeal against the
Decision should be granted, and relevantly in doing so, to consider whether an arguable case
of appealable error has been made out.
[11] In O’Sullivan v Farrer6, the High Court said:
“… the expression “in the public interest”, when used in a statute, classically imports a
discretionary value judgment to be made by reference to undefined factual matters,
confined only “in so far as the subject matter and the scope and purpose of the
statutory enactments may enable … given reasons to be [pronounced] definitely
extraneous to any objects the legislature could have had in view. . .”7 [Citations
omitted, editing in original]
[12] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a
stringent one”.8 The task of assessing whether the public interest test is met is a discretionary
one involving a broad value judgment.9 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full
Bench of the Commission 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
4 Wan v AIRC (2001) 116 FCR 481 at [30]
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
6 (1989) 168 CLR 210
7 Ibid at 216
8 (2011) 192 FCR 78 at [43]
9 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
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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.”10
[13] As is apparent from the Decision, the central issue that required resolution was the
disputed accounts of what had occurred during a meeting between Mr Zhou and Ms
Xiangqing Li, a director of Central Capital, on 29 June 2018. It was at this meeting that Mr
Zhou alleged he was dismissed. Ultimately, the Senior Deputy President preferred the
evidence given by Ms Li as to the events of 29 June 2018, over the evidence given by Mr
Zhou. The Senior Deputy President explained his reasoning as follows:
“[8] The events which the applicant submits constituted the respondent’s
termination of his employment occurred on 29 June 2018. The parties’ respective
versions of what happened at the respondent’s office that day are quite different.
[9] The applicant stated that he met Ms Li at the respondent’s office on 29 June
2018 at her request. He was expecting to discuss three issues that he had raised with
her by email on 27 June 2018, one of which was the problems he had experienced
when interacting with Mr McCreanor. He alleges that instead of discussing all those
issues, Ms Li became aggressive, blamed him for the problems with Mr McCreanor,
and then said words to the effect of:
‘If you are really unhappy about this workplace, you don’t need work [sic] for
this company anymore, you are fired, start from today. You have two weeks
[sic] notice’
[10] The applicant further alleges that later on 29 June 2018, Ms Li said to him
‘please remember, your [sic] leaving this company because you’re fired.’
[11] Ms Li consistently denied dismissing the applicant, on 29 June 2018 or at
all. She conceded that she said something like ‘[i]f you are not happy by staying here
and working with me then we’ll probably have to [go in] different directions’, or ‘we
may go in different directions’, but emphasised that she had no intention of
terminating the applicant’s employment. She stated that she was accordingly ‘shocked’
when the applicant requested that the respondent pay out his accrued leave, implying
that he understood that his employment was at an end:
‘THE SENIOR DEPUTY PRESIDENT: … Did you think that's what he was
then saying, “Well, look, I’ll leave at the end of that. I’m not going to come
back to work, just give me my leave and give me two weeks’ pay. It can be two
weeks of sick leave and my annual leave and then I won't come back”? [Ms
Li:] My first reaction, I was shocked, because I didn’t prepare to terminate him,
so I was very shocked. On 11 June I even talk about he and I, we were doing
further business about immigration, for about half an hour. Yes, I’m prepared
to do more business with him, then he suddenly – say this, I really was very
shocked.
10 [2010] FWAFB 5343, 197 IR 266 at [27]
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What was his reaction when you said this to him? I said - because - - -
You said, “If you’re unhappy” – I’m just looking at the words you’ve used in
your statement, obviously it’s in Chinese but, “We may need to go in different
directions.” And he said, “Pay me for two weeks sick leave and four weeks of
annual leave first”, what did you think at that point? Did you think he would
then - what did you think would happen if you paid that? I was just very
shocked.
Did you agree to pay it, did you say okay? I was shocked, I didn’t know what -
I was shocked, I said, “Really?” Yes.
But did you agree to it? I remember at that time I see the time is after 10 and
his work start and I said, “Go back to work”, that's what I said.
Okay. So you didn’t say no and you didn’t say yes? I didn’t say yes, I didn’t
say no.’
[12] I prefer Ms Li’s version of the events of 29 June 2018 over that of the
applicant’s, because it is much more plausible in light of what happened after that day
(which was largely uncontested and in any case, was reflected in documents that were
tendered at the hearing). I will elaborate on this in my consideration below.
[13] The parties agree that one of the outcomes of the 29 June 2018 incident was
that the applicant would take two weeks’ personal leave. However, the applicant and
Ms Li had different understandings of the significance of that two-week period. The
applicant said that he thought those two weeks were his notice period, i.e. his last day
of employment would be 12 July 2018 and his dismissal would take effect on 13 July
2018, though he would not actually be attending work during the intervening two
weeks. Ms Li thought at that point that the applicant would return to work after 12
July 2018.
[14] On 9 July 2018, the applicant filed his application for an unfair dismissal
remedy.
[15] On 11 July 2018, Ms Li emailed a media company that had been dealing with
the respondent, asking that they email her directly, because the applicant was on sick
leave.
[16] On 13 July 2018, Ms Li emailed a tenant that had been communicating with
the applicant, asking her also to email her directly, because the applicant was on sick
leave.
[17] Also on 13 July 2018, Ms Li emailed the applicant to request a medical
certificate for the previous two weeks. That email also included the following:
‘Please let me know your intentions in relation to your employment.
I note that you raised some concerns about your experience at the workplace.
We are more than happy to schedule a meeting with you to discuss your
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concerns if you are comfortable with that. Please let me know if and when you
are available.’
[18] I accept Ms Li’s evidence that on 17 July 2018, she asked Mr Weimin Zhou to
assist in an investigation into the applicant’s allegations against Mr McCreanor. Mr
Weimin Zhou’s evidence closely corroborated this. He gave evidence that he saw his
role in the planned investigation as that of mediator between the applicant and Ms Li:
‘… I asked her how she [Ms Li] was going on with Mr Zhou [the applicant], and
I asked her if she fell out with Mr Zhou. And I personally like Mr Zhou. And I
am also from Shanghai from the same place as Mr Zhou and I just want – I was
trying to mediate between them to create a harmonious environment in the
company. I’m in a good relationship with Mr Zhou.’
[19] Ms Li emailed the applicant that day (17 July 2018), informing him of Mr
Weimin Zhou’s proposed role. The email relevantly stated:
‘We confirm that we have received your complaint in which you made
allegations concerning [Mr McCreanor].
We confirm that the allegations you have raised will be investigated by
William Zhou [Mr Weimin Zhou’s English name].
William Zhou will be in contact with you writing shortly to discuss the matter
further and to confirm the outcome of the investigation.
We confirm that your complaint and the investigation will be conducted
confidentially (as far as is possible). You are therefore directed not to discuss
this matter with other staff members…’
[20] The Commission served Ms Li with the applicant’s application for an unfair
dismissal remedy on 18 July 2018. I am satisfied that Ms Li was not aware of the
application before she was served.
[21] I accept Ms Li’s and Mr Weimin Zhou’s evidence that Ms Li advised Mr
Weimin Zhou that same day (18 July 2018) that the investigation would not be going
ahead after all, because she had found out that the applicant had filed this application.
I further accept Ms Li’s evidence that she interpreted the applicant’s filing of this
application as him resigning with effect from 9 July 2018, and had until that point (that
is, until she was served with the application on 18 July 2018) thought that his
employment relationship with the respondent was ongoing.”11 [Endnotes omitted]
[14] It is unnecessary for us to delve into the minutiae of the appeal grounds. It is sufficient
for the purposes of considering the application for permission to appeal for us to state, that we
are not persuaded that Mr Zhou has established an arguable case of appealable error and we
are not persuaded that the public interest is enlivened by any of the grounds of appeal or
otherwise. The Senior Deputy President’s conclusion about the critical events of 29 June 2018
was based on a preference for the evidence given by one witness over that given by another
11 [2018] FWC 6747 at [8] – [21]
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during a meeting. That evidence was wholly or substantially oral. The Senior Deputy
President had the benefit of listening to the evidence given by each witness and he took into
account the subsequent conduct of both Ms Li and Mr Zhou, which was largely in writing,
after the events of 29 June 2018 in confirming his preference for the evidence given by Ms Li,
which he described as “much more plausible in light of what happened after that day”. There
is no error disclosed from the Senior Deputy President’s approach.
[15] As seems to us evident from the grounds set out in the Notice of Appeal, Mr Zhou is
dissatisfied with the result at first instance and wishes to relitigate matters that have already
been determined, without pointing to any arguable appealable error that was made in the
Decision.
[16] We are not persuaded that Mr Zhou has identified any arguable appealable error, or
any significant error of fact, in the Decision. Neither he, nor the Notice of Appeal raises any
issue of importance or general application to the Commission’s unfair dismissal jurisdiction
or otherwise. Mr Zhou does not claim that the Decision manifests any injustice, or is counter-
intuitive. In our view, the Decision does not disclose an application of any legal principles
which are disharmonious with other comparable Commission decisions.
Conclusion
[17] In these circumstances, we are not satisfied that it would be in the public interest to
grant permission to appeal. Therefore, in accordance with s.400(1) of the Act, permission to
appeal must be refused. We so order.
DEPUTY PRESIDENT
Appearances:
L Zhou on his own behalf.
S Li for the respondent.
Hearing details:
2018.
ORK WORK COMMISSION FAIR THE SEAL OF
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Sydney:
December 11.
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