DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Yan Jie (Richard) Zhang
v
Royal Automobile Association of South Australia Incorporated t/a RAA
(C2019/7780)

Appeal against decision [2019] FWC 8090 of Commissioner Platt at Adelaide on 2 December 2019 in matter number U2019/5672.

Introduction and background

[1] Mr Yan Jie (Richard) Zhang has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Commissioner Platt on 2 December 2019 1 (decision). The decision concerned an application made by Mr Zhang for an unfair dismissal remedy in respect of the termination of his employment with RAA Automobile Association of South Australia Incorporated (RAA). The Commissioner determined that Mr Zhang’s dismissal was not harsh, unjust or unreasonable and accordingly dismissed the application. Mr Zhang contends in his appeal that the decision was affected by significant error of fact and incorrect application of the law. Details of the appeal grounds follow in this decision.

[2] Mr Zhang was employed by RAA as a Security Installation and Service Technician from 2 November 2010 until his dismissal on 3 May 2019. On 2 April 2019, RAA commenced a disciplinary process in relation to an allegation that Mr Zhang had failed to comply with a work procedure by taking new security stock from the storeroom without authorisation. It was alleged that, in doing so, Mr Zhang had failed to follow a reasonable and lawful direction in breach of RAA’s code of conduct. On 3 April 2019, Mr Zhang was given an allegations letter regarding the alleged failure to follow the work procedure.

[3] On 4 April 2019, Mr Zhang attended a meeting with Mr Carnelutti (Service Delivery Manager and Mr Zhang’s direct manager) and Ms Wallace (People & Capability Consultant) to respond to the allegations. He denied the allegations and, in doing so, denied knowledge of the work procedure and disputed the accuracy of the minutes of a meeting of 15 March 2019 in which the work procedure was recorded as having been discussed. Mr Carnelutti gave evidence before the Commissioner that, during the 4 April 2019 meeting, Mr Zhang was informed that termination of his employment was not going to be an outcome.

[4] On 5 April 2019, Mr Zhang attended a meeting at which the outcome of the investigation was discussed and a first warning was issued in writing. During the course of that meeting, Mr Zhang was alleged to have behaved inappropriately towards Mr Carnelutti and Ms Wallace, the two managers who conducted the meeting. On 10 April 2019, Mr Zhang was sent a further allegations letter regarding his behaviour in the 5 April 2019 meeting, which was alleged to constitute several breaches of RAA’s code of conduct. Specifically, it was alleged in the letter that:

“...you used aggressive language and body language in a meeting that was inappropriate to the setting and caused those in the meeting and those around the meeting area to have concerns for their well-being and their safety.

The phrase ‘I will make you pay’ and ‘someone will pay’ was used several times and you were mocking your direct Manager, pointing aggressively across the table. The employees at the Corporate Reception and Vehicle Inspection office were concerned with your behaviour as your yelling could be heard through the walls of the meeting room. We allege that your actions have had an adverse effect on the safety and well-being of employees in the vicinity of the meeting and this adverse effect has the potential to have long term consequences to the mental health of the employees involved.”

[5] On 30 April 2019, Mr Zhang attended a meeting with his lawyer and responded to the further allegations, which he denied. On 3 May 2019, Mr Zhang’s employment was terminated. The termination letter stated the reason for termination was the outcome of an investigation into the allegation, but did not specify the allegation on which the termination decision was based. Ms Wallace gave evidence that the reason for Mr Zhang’s dismissal was the outcome of the investigation into the allegations about Mr Zhang’s conduct at the 5 April 2019 meeting.

[6] After the dismissal, Mr Zhang revealed in his witness statement filed in the Commission on 25 July 2019 in support of his unfair dismissal remedy application that he had secretly recorded the 5 April 2019 meeting. Relevant to this issue:

•  Mr Zhang had taken the recording using his mobile phone, turning it on before he entered the room and turning it off afterwards;

•  Mr Zhang did not disclose that he was recording the meeting to the other participants;

•  Mr Zhang gave evidence that he made the recording because his English was no good and for his own protection and to allow a written account of the meeting to be made which was easier for him to understand;

•  RAA’s evidence included that Mr Zhang’s questions in the meeting appeared to be influenced by the fact that the meeting was recorded, and it considered Mr Zhang’s conduct in making the secret recording to have completely eroded its trust.

[7] In the proceedings before the Commissioner, RAA relied upon the fact that Mr Zhang had covertly recorded the 5 April 2019 meeting as a further matter constituting a valid reason for his dismissal.

The decision

[8] In his decision, the Commissioner outlined the evidence of Mr Zhang and each of the seven witnesses called by RAA, and then set out the reasons for his decision made during the course of the hearing not to admit Mr Zhang’s recording of the 5 April 2019 meeting into evidence. The RAA had opposed the admission of the recording on the basis that it was made in breach of s 6 of the Surveillance Devices Act 2016 (SA). The Commissioner said that he determined not to receive the recording for the following reasons:

•  having regard to the evidence about the disciplinary nature of the meeting, which the Commissioner found took place behind closed doors and with no CCTV cameras pointing at the meeting room, he rejected Mr Zhang’s contention that the meeting was not a private meeting;

•  he rejected Mr Zhang’s contention that the taking of handwritten notes by RAA comprised a recording of the meeting;

•  it was necessary for him to weigh up the considerations discussed in the decision in Kelly Walker (No.2); 2

•  he considered that Mr Zhang’s actions did not fall within the exclusions in the Surveillance Devices Act, although he expressly declined to make any finding that Mr Zhang’s conduct was inconsistent with that Act; and

•  he found that the recording appeared to have been made merely in the hope that it would assist Mr Zhang, not to protect his lawful interests. 3

[9] In his consideration of the matter, the Commissioner began with a finding that Mr Zhang was not a credible witness and that he preferred the evidence of RAA’s witnesses where it conflicted with that of Mr Zhang. 4 The Commissioner then made a number of evidentiary findings, which included that:

•  Mr Zhang’s conduct towards Mr Carnelutti at the 5 April 2019 meeting was combative, disrespectful, disproportionate and represented a significant breach of the RAA code of conduct, and he failed to treat him and other RAA managers with dignity and respect; 5

•  Mr Zhang was initially untruthful in the investigation meeting on 4 April 2019; 6

•  Mr Zhang’s conduct in secretly recording the 5 April 2019 meeting fatally damaged the employment relationship; 7 and

•  Mr Zhang had not accepted responsibility for his actions or shown remorse. 8

[10] The Commissioner then separately considered each of the matters required to be taken into account under s 387 of the FW Act. In respect of the existence of a valid reason under s 387(a), the Commissioner found that each of the following constituted a valid reason for the dismissal in respect of Mr Zhang’s conduct:

•  Mr Zhang acted in the manner alleged by RAA at the 5 April 2019 meeting, and that was a significant breach of the code of conduct;

•  Mr Zhang was untruthful during the investigation; and

•  Mr Zhang’s secret recording of the 5 April 2019 meeting fatally damaged the employment relationship. 9

[11] In respect of s 387(b) and (c), the Commissioner was satisfied that Mr Zhang was notified of each of the reasons relied upon by RAA for his termination and given the opportunity to respond to the allegations, in both cases with the exception of the secret recording which he found was not within RAA’s knowledge at the time. In respect of s 387(d), the Commissioner determined that Mr Zhang was not unreasonably refused a support person in the meeting related to his dismissal at which his lawyer was present, and had not requested a support person in the prior meetings. The Commissioner made findings in respect of s 387(e)-(g) which are not presently relevant.

[12] The matters the Commissioner considered to be relevant matters under s 387(h) were Mr Zhang’s language skills, his health condition and his medication which may have meant he was sleep deprived. In taking those matters into account, the Commissioner considered they might explain some of his conduct but did not excuse it. 10

[13] Having taken into account all matters required to be considered under s 387, the Commissioner concluded that Mr Zhang’s dismissal was not harsh, unjust or unreasonable. 11

Appeal grounds and submissions

[14] Mr Zhang’s notice of appeal contains 15 “reasons for appeal”. However Mr Zhang’s written and oral submissions were focused on one issue, namely the Commissioner’s refusal to admit the recording of the 5 April 2019 meeting into evidence. In this respect it was submitted that:

•  this constituted a denial of natural justice in that Mr Zhang was deprived of the fundamental right to present his case;

•  the Commissioner had listened to the recording in chambers prior to determining not to receive it;

•  Mr Zhang was denied the opportunity to cross examine witnesses who were said to have amended their evidence in light of the recording;

•  the recording was directly relevant to the issue of what occurred at the 5 April 2019 meeting, which constituted the primary reason for dismissal;

•  the recording was not made in contravention of the Surveillance Devices Act, since Mr Zhang made it to protect his lawful employment interests;

•  in any event there was no reason to exclude the secret recording, since there was no disadvantage to RAA in allowing an accurate record of the meeting into evidence;

•  the Commission was not bound by the Evidence Act 1995 (Cth), and it was open for the Commission to receive the evidence even if it were unlawfully obtained pursuant to s 590 of the FW Act in equity and good conscience; and

•  having regard to the identified errors, the Commissioner’s assessment as to whether to exercise his discretion was misplaced.

[15] It was submitted that the grant of permission to appeal was in the public interest because the decision excluded evidence that was material and relevant, amounting to jurisdictional error due to the denial of natural justice; the Commissioner erred in his application of the Surveillance Act and finding that the secret recording was inadmissible; RAA used the secret recording to amend its evidentiary material; there were limited examples of decisions concerning the admission of evidence obtained by the use of listening devices and it was in the public interest that this be clarified; and Mr Zhang was denied procedural fairness prior to dismissal as RAA denied him access to an interpreter despite knowledge that English was not his first language.

Consideration

[16] 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.¹² There is no right to appeal and an appeal may only be made with the permission of the Commission.

[17] 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.

[18] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], 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.¹³ 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.” 14

[19] 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

[20] 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. 17 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[21] We are not satisfied it would be in the public interest to grant Mr Zhang permission to appeal because we are not persuaded that the appeal has any substantial utility. As we have earlier set out, the Commissioner found on the basis of the witness evidence that Mr Zhang had conducted himself at the 5 April 2019 meeting in the manner alleged by RAA and that this behaviour constituted a valid reason for his dismissal. Mr Zhang has advanced no explanation as to why the admission of the recording might conceivably have led to a different finding in this respect. There was not even a bare contention that the recording would properly have founded a different finding. Mr Zhang (as well as RAA) opposed the proposition that we should listen to the recording ourselves to assess its import in respect of the Commissioner’s findings concerning the 5 April 2019 meeting, and accordingly we did not do so. Notwithstanding this, Mr Zhang took the liberty of including what purports to be a transcript of the recording in his appeal book. The contents of this document do not appear to lend his case any assistance.

[22] Further, as we have earlier set out, the Commissioner found that there were two other valid reasons for Mr Zhang’s dismissal: his untruthfulness in the investigation, and the fact (admitted by Mr Zhang) that he made a covert recording of the 5 April 2019 meeting with the result that he fatally damaged the employment relationship. Neither of these findings are challenged in Mr Zhang’s appeal. Accordingly we are not satisfied that there is a reasonable possibility that the admission of the recording might have changed the outcome of the case. In that circumstance the appeal serves no practical utility.

[23] The ruling made by the Commissioner to not admit the recording may, we accept, be open to criticism since it does not identify any prejudicial effect on RAA which might have outweighed the probative value of the content of the recording. Further, it was unusual that the Commission subsequently admitted statements made by witnesses for RAA who had heard the recording and gave evidence on that basis (although it must be noted that Mr Zhang, who was legally represented, did not object to the admission of these statements). However these matters do not surmount the difficulty concerning the lack of utility in the appeal.

[24] We have also considered the somewhat tangential submission that there was a denial of procedural fairness because of the lack of an interpreter. This relates to the disciplinary process conducted by RAA, but there was no express challenge to the findings made by the Commissioner concerning s 387(b) and (c). Mr Zhang was provided by the Commission with an interpreter throughout the proceedings before the Commissioner, and no issue concerning the interpreter was raised at first instance. Mr Zhang in his appeal identified some points in the transcript of the hearing where there are references to words spoken being “indistinct”, but there is no basis to conclude that this had anything to do with the interpreter or was other than an audio issue. The transcript reflects that Mr Zhang speaks English and did not consider an interpreter critical to his ability to understand every word spoken. There is no arguable case of a denial of natural justice in this respect.

[25] We do not consider, having regard to the above matters, that the decision manifests any injustice or raises any issue of principle or general application.

[26] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act.

VICE PRESIDENT

Appearances:

R Manuel of Counsel on behalf of Mr Zhang.
A Short, solicitor, on behalf of RAA.

Hearing details:

2020.
Melbourne with video link to Adelaide:
7 February.

Printed by authority of the Commonwealth Government Printer

<PR717116>

 1   [2019] FWC 8090

 2   [2019] FWC 4862

 3   [2019] FWC 8090 at [38]-[43]

 4   Ibid at [47]-[57]

 5   Ibid at [71]

 6   Ibid at [72]

 7   Ibid at [74]

 8   Ibid at [75]

 9   Ibid at [86]

 10   Ibid at [98]

 11   Ibid at [101]

12 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

13 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, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 14   [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

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]

 17   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]