[2022] FWCFB 16
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Rui Liu
v
JHC Corporate P/L, Jack Xu, Zhong Hua Zhu, Bin Xin, Hou Ming Chu
(C2021/8673)

DEPUTY PRESIDENT MASSON
COMMISSIONER SIMPSON
COMMISSIONER MIRABELLA

MELBOURNE, 22 FEBRUARY 2022

Appeal by Mrs Rui Liu against decision [2021] FWC 6616 of Deputy President Boyce on 17 December 2021 in matter C2021/7586.

Introduction

[1] Mrs Rui Liu (the Appellant) seeks permission to appeal and if granted, appeals a decision 1 of Deputy President Boyce (the Deputy President) issued on 17 December 2021 (the Decision). The Decision dealt with whether a general protections application filed by the Appellant post determination of an unfair dismissal claim was prohibited by s.725 of the Fair Work Act 2009 (the Act). The application sought to be filed by the Appellant was an application for the Fair Work Commission (the FWC) to deal with a general protections dispute involving dismissal pursuant to s.365 of the Act (the GP Application).

[2] In accordance with the Directions issued on 21 December 2021, the Appellant filed submissions relating to permission to appeal and the merits of the appeal on 11 January 2022. JHC Corporate Pty Ltd (JHC) and others (collectively the Respondents) did not file any material in response to the Appeal. Permission to appeal and the merits of the appeal were listed before us for hearing on 11 February 2022.

[3] For the reasons that follow permission to appeal is refused.

Background

[4] On 7 September 2021, Commissioner Wilson issued a decision 2 in respect of an unfair dismissal claim made by the Appellant against JHC (the Unfair Dismissal Decision). The Commissioner found that the Appellant’s dismissal was not a case of genuine redundancy in accordance with the relevant considerations set out in s.389 of the Act. In reaching this conclusion the Commissioner found that JHC had failed to properly consult with the Appellant as required by subsection 389(1)(b).

[5] After dealing with the preliminary matters the Commissioner turned to consider the merits of the Appellant’s unfair dismissal application and dealt with each of the elements of s.387. The Commissioner went on to find that the Appellant had not been unfairly dismissed. An appeal against the Commissioner’s Unfair Dismissal Decision was subsequently filed on 27 September 2021 and then discontinued on 3 November 2021.

The decision under appeal

[6] Immediately following the discontinuance of her appeal of the Unfair Dismissal Decision of Commissioner Wilson, the Appellant then filed her GP Application on 3 November 2021. The GP Application was allocated to Deputy President Boyce who proceeded to conduct an initial mention on 6 December 2021 at which the Deputy President drew the Appellant’s attention to ss.725, 727 and 729 of the Act.

[7] In the Decision, after considering all of the submissions and evidence before him, the Deputy President found that the GP Application was one that was unable to be made under the Act and must be dismissed. In dismissing the GP Application, the Deputy President identified the applicable statutory provisions, detailed the timeline of relevant events, and concluded as follows;


[8] It is this Decision that is the subject of this appeal.

Principles of appeal

[9] An appeal under s.604 of the 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. 4  There is no right to appeal, and an appeal may only be made with the permission of the Commission.

[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. 5 The public interest is not satisfied simply by the identification of error,6 or a preference for a different result.7 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...” 8

[11] 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. 9 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Grounds of appeal and submissions

[12] The Full Bench discerns from the Appellant’s filed material that there are four grounds of appeal.

[13] Firstly, the Appellant submits that s.725 of the Act has no application given that she filed an appeal in respect of the Unfair Dismissal Decision but discontinued the appeal before its determination, and instead filed the GP Application. The substance of this submission is that by discontinuance of the appeal of the Unfair Dismissal Decision, that had the effect of withdrawing her unfair dismissal application within the meaning of subsection 729(1)(b)(i) of the Act.

[14] Secondly, the Appellant submits that whilst Commissioner Wilson found in the Unfair Dismissal Decision that the dismissal was not a genuine redundancy, he went on to find that the dismissal was nonetheless a fair redundancy, and that the dismissal was not unfair. The substance of the Appellant’s submission is that no distinction should be drawn between a genuine redundancy and a fair redundancy as described by the Commissioner for the purposes of subsection 729(1)(b)(iii).

[15] The substance of the Appellant’s third argument is that s.725 is intended to operate to prevent the making of multiple applications for the same dismissal at the same time, and that s.725 was not intended to operate to prevent different applications being made at separate times. Put another way, the Appellant’s submission is that s.725 is directed to being a bar to the filing of different applications for the same dismissal concurrently, but not sequentially.

[16] Finally, the Appellant submits that the Deputy President in the Decision failed to address the issues and evidence raised in the Appellant’s filed material.

Statutory Framework

[17] Section 725 of Subdivision B of Division 3 of Part 6-1 of the FW Act relevantly provides as follows:

“General Rule

[18] Relevant to determination of the matter before Deputy President Boyce and now before us on appeal are ss.727 and 729 which provide as follows;

Consideration

[19] Before turning to consider the grounds of appeal it is necessary to say something about ss.725-732 of the Act. Section 725 is intended to prevent applicants from lodging multiple applications in relation to a dismissal, that is to prevent ‘double dipping’. So much is made clear by the Fair Work Bill 2008 Explanatory Memorandum (the Explanatory Memorandum) where it states:

[20] A Full Bench considered the operation of s.725 in Peter Ioannou v Northern Belting Services Pty Ltd (Ioannou). We note that the Full Bench in Ioannou were considering the operation of s.725 in the context of an amendment sought to an application made under s.394 of the Act so that it could proceed as general protections applications under s.365 of the Act. In considering s.725, the Full bench relevantly stated as follows:

“[28] In relation to the present matter, the effect of s.725 is that the applicant must not make an application in relation to his dismissal under s.365 unless the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy (s.729(1)(b)). In other words, s.725 of the Act operates to preclude the applicant from bringing a general protections application in circumstances where there is an extant s.394 application before the Commission.

[30] It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons). Section 588 of the Act allows an applicant to discontinue an application in accordance with any procedural rules, whether or not the matter has been settled. Rule 10 of the Rules deals with the discontinuance of applications before the Commission by the applicant lodging a notice of discontinuance or giving appropriate notice that, inter alia, the applicant wishes to withdraw the application.” (our emphasis added)

[21] For the purposes of the present matter, it is clear enough from the plain wording of the relevant sections of the Act, the Explanatory Memorandum, and the reasoning of the Full Bench in Ioannou that the only circumstances in which the Appellant in the present matter could make a valid GP Application is where her unfair dismissal application had been either withdrawn, failed for want of jurisdiction or failed because her dismissal was found to be a genuine redundancy. Absent those conditions being present, she is statutorily barred from making her GP Application.

Ground 1 of appeal

[22] The Appellant’s first ground of appeal goes to her contention that she withdrew her unfair dismissal application by reason of the withdrawal of her appeal of the Unfair Dismissal Decision. That contention must be rejected. It is clear that the unfair dismissal application made by the Appellant under s.394 was not withdrawn but was determined by Commissioner Wilson. A separate and discreet application was then made, that of the appeal under s.604 against the Unfair Dismissal Decision. That the appeal was subsequently withdrawn by the Appellant on 3 November 2021 did not have the effect of withdrawing the unfair dismissal application as it had already been determined and dismissed.

[23] It follows that the Appellant’s unfair dismissal application was not withdrawn within the meaning of s.729(1)(b)(i). No appealable error is disclosed in respect of the first ground of appeal.

Ground 2 of appeal

[24] In relation to the Appellant’s second ground of appeal, the Unfair Dismissal Decision of Commissioner Wilson dealt with the jurisdictional question arising under s.389 of the Act as to whether the dismissal of the Appellant was a case of genuine redundancy. He did so prior to considering the substantive merits of the case by reference to the criteria set out in s.387 of the Act.

[25] The above-described approach of the Commissioner was consistent with the requirement in s.396(d) of the Act, that being the Commission must decide the jurisdictional question arising under s.389 before considering the merits of the matter. It is clear from the Unfair Dismissal Decision of the Commissioner that the Appellant’s unfair dismissal application did not fail because the dismissal was found to be a case of genuinely redundancy. The Commissioner plainly did not make such a finding.

[26] The Commissioner found that the Appellant’s dismissal was not a case of genuine redundancy and then proceeded to consider the merits of the matter as he was required to by reference to the s.387 criteria. In doing so he concluded that the dismissal was not unfair. The Commissioner’s description of the termination of the Appellant as a “redundancy for genuine reasons” was done in the context of his consideration of s.387(h) and did not alter his conclusion that the termination was not a genuine redundancy as defined at s.389 of the Act.

[27] It follows from the above that the Appellant’s unfair dismissal application did not fail because her dismissal was found to be a genuine redundancy, such as to bring it within the scope of s.729(1)(b)(iii). No appealable error is disclosed in the Deputy President’s conclusions as they relate to the second ground of appeal.

Ground 3 of appeal

[28] Turning to the third ground of appeal, the Appellant contends that s.725 is intended to operate such that it only prevents multiple applications being made at the same time. She contends that as she did not have an extant unfair dismissal application, she was not barred from making her GP Application.

[29] The Appellant’s third ground of appeal has no merit. As set out above, Ioannou is clear authority for the proposition that s.725 prohibits multiple applications seeking a remedy for a dismissal, other than in specified circumstances where a particular application has been withdrawn or failed for want of jurisdiction or in the case of an unfair dismissal application been found to be a genuine redundancy. As already dealt with above, the Appellant’s unfair dismissal application was neither withdrawn, dismissed for want of jurisdiction or failed for reason of her dismissal being found to be a genuine redundancy. There is no warrant for the construction of s.725 of the Act advanced by the Appellant such that it would allow the statutorily barred GP Application to proceed. No appealable error is disclosed in the Decision in respect of the third ground of appeal.

Ground 4 of appeal

[30] In relation to the Appellant’s fourth ground of appeal, to the extent that it is put that the Deputy President did not address issues and evidence contained in the Appellant’s submissions, this appears to be a reference to the substantive merit issues raised by the Appellant in relation to her dismissal. It is apparent that the Appellant remains aggrieved at the outcome of her application for an unfair dismissal remedy which was dismissed. While the Appellant sought to again ventilate those substantive issues in her GP Application, the Deputy President was required to only deal with the jurisdictional issue before him, that of whether the Appellant was statutorily barred by s.725 from pursuing her GP Application.

[31] In any case, were the Appellant successful in her appeal, s.368 of the Act would expressly prevent the Commission from dealing with her s.365 dispute by arbitration other than where allowed by s.369 of the Act. No appealable error is disclosed by the Deputy President not dealing with the merits of the Appellant’s GP Application.

[32] It is apparent from the above that the Appellant’s unfair dismissal application was not withdrawn, did not fail for want of jurisdiction nor fail by reason of a genuine redundancy being found to have occurred. Consequently, the Appellant’s GP Application was statutorily barred pursuant to s.725 of the Act. It follows in our view that the Deputy President applied the correct legal principles, considered, and dealt with the material that was before him concerning the jurisdictional issue he was required to determine and reached the correct conclusions.

[33] Having considered the Appellant’s submissions and all the materials filed on appeal, we have also considered whether this appeal attracts the public interest. We are not persuaded, for the purposes of s.604(2), that:

Conclusion

[34] For the reasons set out above, we are not satisfied that the Appellant has demonstrated an arguable case of appealable error or that it would be in the public interest to grant permission to appeal pursuant to s 604(2) of the Act.

[35] Permission to appeal is refused.


DEPUTY PRESIDENT

Appearances:

H Shen for the Appellant.

J Xu and P Chu for the Respondents.

Hearing details:

2022.
Melbourne and Brisbane (By Microsoft Teams):
February 11.

Printed by authority of the Commonwealth Government Printer

<PR738551>

 1   [2021] FWC 6616.

 2   [2021] FWC 5345.

 3   [2021] FWC 6616 at [[7]-[9].

 4   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).

 5   O’Sullivan v Farrer (1989) 160 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].

 6   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

 7   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 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 8   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

 9   Wan v AIRC (2001) 116 FCR 481 at [30].