A STAY OF OPERATION OF THE ORDER IN MATTER NO.U 64 OF 2021 WHICH IS THE SUBJECT OF FBA 10 OF 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00662

DELIVERED : Friday, 24 December 2021

FILE NO. : PRES 8 OF 2021

Applicant

AND

Yan Li

Respondent

Catchwords : Industrial law (WA) - Appeal filed - Application to stay operation of order - Relevant principles applied - Application dismissed

Legislation : Industrial Relations Act 1979 (WA) s 49(11)

Industrial Relations Commission Regulations 2005 (WA)   

Result : Application dismissed

Representation:

Counsel:

Applicant : In person

Respondent : In person

Case(s) referred to in reasons:

GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00190; (2021) 101 WAIG 569

Reasons for Decision

Introduction

1         The applicant seeks an order that the decision of the Commission made on 23 November 2021 in application U 64 of 2021 be stayed pending the hearing and determination of appeal FBA 10 of 2021.  The order of the Commission the subject of the stay application declared that the dismissal of the respondent by the applicant on 19 June 2021 was harsh, oppressive and unfair.  The applicant was ordered to pay compensation for loss in the sum of $2,854.16 gross and compensation for injury in the sum of $1,500.00, both within 21 days of the date of the order.

Appeal to the Full Bench

2         In appeal FBA 10 of 2021, whilst not articulated in the form of grounds of appeal as required by the Industrial Relations Commission Regulations 2005 (WA), the applicant asserts the following in his grounds of appeal. They are lengthy and his contentions are as follows:

(a) The commissioner agreed there were 13 errors in the order of decision in speaking to the Minus, [sic] while she refused to review the case.  The errors included very important evidence of facts.  After amendment there were still some errors.

(b) The commission treated a SMS from me as main evidence of dismissal.  The translation in the decision was not accurate including some words I never said.

(c) Mr Xu's evidence in the decision described 'Mr Xu doubted Ms Li's version of events'.  The fact is the police decided it was false accusation.  I told the commissioner the fact and Ms Li admitted to that before the commissioner in hearing.  There was no doubt that she was not telling the truth.  It was important to reflect a person’s credibility.

(d) Mr Xu's evidence stated 'Mr Xu conceded in cross-examination that he didn't have a clear recollection of what happened on the day'.

That statement distorted the fact.  I expressed to the commissioner we should not focused on fetching oils or other details.  If the rules of a business were lawful and being agreed by most staff, then the employee should obey the rules.

(e) In the part Mr Xu's evidence it stated 'Mr Xu told the WAIRC that when Ms Li walked out on 17 June 2021, he regarded that as being her resignation.  That was not the fact.  I told in hearing she refused to work with oral resigning.  I stated it already in Form 2A from the beginning.  I didn’t judge her resignation only by action of walking out.

(f) In cross-examination Ms Yin pointed out Ms Li hadn’t fetched oil and started to serve the customer.  Ms Li was not telling the truth.  This part of witness testimony was not included in the decision.  It was important to reflect the fact and a person’s credibility and should not be ignored.

(g) The commissioner questioned ‘Ms Li had left work on two or three previous occasions before completing her shift but had continued in employment.  Mr Xu did not point to anything about the 17 July 2021 occasion which should lead to the consequence being different to what they had been in past.’

Refusing to carry out lawful and reasonable instruction is one kind of serious misconduct.  Inviting Ms Li to go back working mean I already gave her opportunities to improve her performance.  Accepting Ms Li’s resignation at her third time of misconduct was reasonable.  There was no ground to talk Ms Li out of resignation on 17 July 2021 to make any difference from what had been in the past.

(h) The decision stated ‘it was beyond doubt that Ms Li was unwell on 17 July 2021, the nature of her illness was such that it was unlikely to have been capable of being visibly observed by Mr Xu or her work colleagues’.

Ms Li described in Form 2 ‘I felt very uncomfortable and had difficulty breathing’.  It was not reasonable difficulty in breathing couldn’t being visible, especially after refusing to work Ms Li walked to the resting room, collected her bag, and walked out normally.  The decision also stated ‘as an aside, I note that there is no requirement for an employee to advise their work colleagues of they are unwell.  Ms Li’s illness was no one’s business but her own and her employers to the extent that it impacted on her ability to do her work.  ‘In cross-examination by Mr Xu, Ms Li conceded that she did not inform anyone at the business that she was unwell before she left on 17 June 2021.  In Ms Li’s evidence Ms Li described she spoke briefly to Mr Xu complaining about the job scheduling before she left.  Ms Li recognized she didn’t inform the employer and spoke to him complaining his instruction.  If Ms Li still regarded her as an employee of the business, she really felt sick with difficulty in breathing, and she still could speak, then what she should do was declaring her illness, asking for a leave, and seeking help.  The fact was Ms Li didn’t have difficulty in breathing, she refused to work, spoke to the employer complaining work instruction and expressed not working anymore.

(i) The decision stated ‘it is common ground that Ms Li didn’t say goodbye to her work collogues[sic] or give notice of her intentions to her employer when she left the workplace on 17 July 2021.  I consider the fact she did not do so indicates that she did not intend that day to be her last working day’.

That was not the fact.  From beginning I told the commission Ms Li orally resigned, while the decision stated, ‘she didn’t give notice of her intentions to her employer’.  It seemed Ms Li’s words without any witness were accepted by the commissioner, and my words with witness was set aside.  That is unfair.  As mentioned above, since the commissioner considered there was no requirement for an employee to advise their work colleagues of they are unwell, there was no requirement for an employee to say goodbye to their work colleagues on last working day.  There were 4 workers signed the certification letter to prove Ms Li refused to carry out the employer’s instruction, left without approval, expressed not working anymore.  Also, the witnesses of workers pointed out she was not telling the truth, all of staff were happy with the allocation system except Ms Li.  There was no requirement and ground for her to say goodbye when resigning.

(j) The decision stated ‘Ms Li’s text message to Mr Xu of 19 June 2021 is inconsistent with her having intended to resign.  Her text message attached the GP’s medical certification certifying her unfit for work for one week.  Had she considered that the employment has been ended by her, there would be no reason for her to provide Mr Xu with a medical certificate’.

Before Ms Li sending a photo of medical certificate she first sent an aggressive and disrespectful message.  There were not any words of asking for a sick leave, only complaining, and slandering.  It had been 43 hours after she left on 17 June 2021.  During this period Ms Li had not inform the employer her illness and asked for a sick leave.  The fact and witness could certify Ms Li did not have any illness on 17 June 2021 when she left.  A medical certificate issued on 18 June 2021 could not certify there was any sickness relate to her work and the business, also could not certify her health conditions on 17 June 2021.  If there was illness it could be started after she left work on 17 June 2021.  The reason for her to provide Mr Xu with a medical certificate could be she regretted resigning and seek money.

(k) The decision stated ‘Mr Xu’s text message to Ms Li of 19 June 2021 did not expressly state that Mr Xu was ending the employment.  However, it referred to finalizing payment of what Mr Xu owned to Ms Li the following week.  It also contained allusion to consequences if Ms Li created conflict: in other word, veiled threats in the event Ms Li did not ‘go quietly’.  The content of the text message could leave no misunderstanding that the employment relationship was at an end’.

The decision confirmed my message did not expressly state I was ending the employment.  Then the commissioner only surmise dismissal from finalizing payment.  The translation was not correct.  In the message there were not any words meaning finalizing or ending something.  Ms Li didn’t told the commission the fact that together with her last week’s payment, I transferred to her amount of $1,600 which was more than her 2 weeks’ payments.  Ms Li resigned herself.  Even being dismissed, the amount of money was in lieu of 2 weeks’ notice.  I submitted the evidence before speaking to the minus, the commissioner expressed she would not consider the evidence, that should be provided to the hearing or appeal.  In my message to Ms Li, I advised we could part way amicably without hurting each other.  I reminded Ms Li because she really had done something offensive, for example she made false accusation of assault towards co-worker.  Ms Li was easy to be irrational.  She accused co-worker of assault, she accused business rules as bully.  In the final statement of hearing, Ms Li kept crying and said she had no money and power, she didn’t understand why my witness and the witness of police were lying.  All the facts proved Ms Li was self-centered and could not control herself.  She was so easy to complain or accuse something/somebody that she did not like.

(l) The decision stated, ‘Ms Li was in touch with Mr Xu within 24 hours providing an explanation for her absence’.

That was not the fact.  I pointed out Ms Li was not honest and provided evidence before speaking to the minus.  The commissioner only amended the time as 43 hours.  In her message after 43 hours from leaving work there was not any expressing of illness or asking for sick leave.  There were only slandering and complaining.  That should not be regarded as an explanation for her absence.  In her application Form F8 to Fair Work, under the question ‘what date were you notified of your dismissal? Her answer was ‘I am not sure.’ In Ms Li’s application Form 2 to WAIRC, under the question ‘what date were you told that you were dismissed? Her answer was ‘17/06/2021.’ While the message she received date was 19/06/2021.  All her answers proved Ms Li did not undergo any dismissal.  She was not honest.

(m) The decision stated ‘Ms Li does not seek reinstatement.  She has made a claim for Worker’ Compensation in respect of the incident of 31 May 2021 and ongoing bullying in the workplace.  She has been certified unfit for work from 18 June 2021 until the date of the hearing, attributed to the incident of May 2021,’

On one hand, Ms Li’s accusation to the co-worker had been decided as false accusation by the police.  She complained the rules of business as ongoing bullying also was proved to be false by the witness.  Anyway, Ms Li made application of Woker’ [sic] compensation on 10th August 2021, 7 weeks from when she left work.  Only the incident occurred on 31 May 2021 was mentioned in her application for Worker’s Compensation.  Whereas the police had decided it was false accusation.  Then there was not any injury related to the business.

(n) The decision stated ‘Further, Ms Li has been unfit for work since the date of the dismissal…according to Mr Xu’s unchallenged evidence, it relates primarily to the 31 May 2021 incident.  On all accounts, Ms Li commenced feeling unwell, to the extent that she had to cease work, on 17 June 2021, prior to the date of dismissal on 19 June 2021.’ There was no evidence of Ms Li’s feeling unwell before 18 June 2021, and there was no evidence of her feeling unwell, to the extent that she had to cease work, on 17 June 2021.  My evidence unchallengedly proved Ms Li made false accusation on 31 May 2021.  She did not tell the truth concerning the incident and was dishonest.  My evidence never mentioned her feeling unwell because she never provided any medical certificate or other evidence before 19 June 2021.  Being unwell from 31 May June to the extent that she had to cease work on 17 June 2021, was only a conclusion based on Ms Li’s description without any evidence.  If she really had been felling unwell, that should attribute to her bad-tempered character.  Ms Li described the rules of the business as ongoing bully, and she accused co-work of assault.  She accused and complained what she didn’t like.

(o) The decision stated ‘I do consider it likely that, if not for the termination of her employment by text message on 19 June 2021, Ms Li was more likely to have recovered from her illness and been able to return to work.  On that basis, I am satisfied she has suffered some loss.  I assess her loss as four weeks’ pay being a period following Ms Li’s likely recovery from her illness that she would likely have continued to work before resigning’.

The fact was the translation of the text was not correct.  Also, the message was replying to Ms Li’s slandering and complaining.  There was not any information of dismissal.  Paying last week’s income and kindly providing extra money was normal and respectable.  I was not finalizing or end something in the message, only informing payment.  Also, the assessment of loss was arbitrary, since illness and recovery are medical science, only professional can make a decision.  In Manning v Huntingdale Veterinary (1998) 78 WAIG 1107, President Sharkey pointed out an unfairly dismissed employee is to be compensated to the fullest extent of his or her loss and that the calculation of loss must not be arbitrary.

(p) The decision stated ‘As for the gravity of the employer’s behavior, the termination was effected by a text message to Ms Li.  The text message was private, however it was sent to Ms Li when she was unwell.  Mr Xu ought to have known she was unwell, even if he professes that he did not know or did not believe she was unwell’…He ought to have known from her text message itself that she was suffering, and hurt, as she said as much in the message.’

I have to point out Ms Li’s message included false accusation and complaint which were an offence to human dignity and reputation.  The commissioner considered ‘I ought to have known from her text message itself that she was suffering, and hurt, as she said as much in the message.’ Ms Li’s accusation and complaint in the message was certified to be false by the witness.  My reply of message was counteroffensive.  If she felt unwell, that should attribute to her impulsive character.  Ms Li kept complaining co-worker, employer, business rules, witness from her team and the police.  She cried in the hearing with saying ‘I had no power and money.  I don’t understand why they were lying’.  Her words alluded someone was controlling the police and witnesses.  Ms Li kept making false accusation and complaint.  She couldn’t control her emotion.  If she was unhappy with somebody and feeling unwell, that was not anybody else’s fault.

(q) The decision stated ‘The lack of clarity and frankness in Mr Xu’s text message was also likely to have compounded Ms Li’s hurt and confusion.  She had to work out from it that her employment was terminated.  Further, the threats of reporting Ms Li to government agencies if she agitated any grievance reflects on the gravity of Mr Xu’s behavior.’

In her application to Fair Work, under the question ‘what date were you notified of your dismissal? Her answer was ‘I am not sure.’ In Ms Li’s application Form 2 to WAIRC, under the question ‘what date were you told that you were dismissed? Her answer was ‘17/06/2021.’ The facts make clear there was not any content of dismissal in the message.  I advised we should not hurt each other after parting ways.  I had to protect myself and reminded if she hurt me by false accusation as what she had done to co-worker or doing something else, I could make true accusation to beat back false accusation.  There was no threat, only self-defense instead.  The lie lays at the truth and the truth must lay at the lie.

(r) The decision stated ‘it is somewhat difficult to gauge the level of impact the message had on Ms Li given that she was primarily injured by conduct at work that preceded the termination, namely the 31 May 2021 incident and the 17 June 2021 events.  I am satisfied nerveless that the level of impact is beyond that which is ordinarily associated with an employer initiated termination of employment.  I would therefore award Ms Li $1,500 for injury.’

The decision was based on 31 May 2021 incident and the 17 June 2021 events and a message sent on 19 June 2021.  I must point out 31 May 2021 incident was false accusation decided by the police, the 17 June 2021 event she was not telling the truth was certified by the witness.  The private message was counteroffensive to slandering and self-defense of potential hurt.

Accordingly, there was not any harsh, oppressive, and unfair dismissal.  The decision was not correct without reflecting the fact.  The decision should be quashed.

Stay application

3         In the stay application filed by the applicant, and in a statutory declaration filed by him, the above grounds of appeal in the notice of appeal to the Full Bench, are largely repeated.

4         As part of the grounds in support of the application for a stay, the applicant contended that the Commission, in publishing a corrigendum to its reasons, whilst not differing from the final order, evidenced errors in the decision which the applicant contended were crucial in terms of times and dates of events as to whether there was a dismissal or injury.  Furthermore, the applicant contended that a text message that he sent to the respondent, on 19 June 2021, regarded by the Commission as crucial to its finding that the respondent was dismissed, was not correctly translated.

5         The applicant also contended that the conclusions of the Commission in relation to Ms Li’s reliability as a witness and whether she was telling the truth, were open to question.  It was also asserted by the applicant that if a stay is not granted, then the appeal becomes “useless”.  The applicant contended that he did not wish to pay the money under the order until the appeal proceedings have been determined.  The applicant did not however, in his submissions, contend that he was concerned that any monies paid under the order would not be paid back by the respondent if the appeal was successful.

6         The respondent opposed the grant of a stay.  She contended that the order is very clear in its terms, and she should receive the benefit of it, as made by the Commission. In connection with her present circumstances, the respondent submitted that she is still suffering some health difficulties and is not presently employed.  However, her husband is employed and is providing income for the household.  The respondent said that she is aware of her obligation to repay any monies paid to her under the order if the appeal is successful, and she will do so.

Consideration

7         Under s 49(11) of the Industrial Relations Act 1979 (WA) at any time after an appeal to the Full Bench has been instituted, a person with a sufficient interest may apply for an order that the operation of the decision appealed against be stayed.  I am satisfied in this matter that an appeal has been properly instituted by the applicant under s 49 of the Act to the Full Bench.  I am also satisfied that the applicant is a person with a sufficient interest under s 49(11) of the Act, to apply for a stay of the Commission’s order.

8         For the purposes of the disposition of the present application, I refer to my recent decision on a stay application in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00190; (2021) 101 WAIG 569 where at [8] I said as follows:

 The relevant principles applicable to stay applications are not in contest. Reference was made by both parties to John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] WAIRC 02983; (2005) 85 WAIG 3918, per Ritter AP at [31] – [38]. These principles were recently discussed and considered by the Court of Appeal in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141, where the Court, at [47] - [48] said:

 An application for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) or an interim order for a stay under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) is generally considered in the framework of the principles enunciated in Eastland Technology Australia Pty Ltd v Whisson. Those principles were conveniently re-stated by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri in the following terms:

(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.

(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.

(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.

(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.

(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

 Accordingly, consideration of whether there are 'special circumstances' justifying an interim stay normally involves assessment of three things:

(1)  Is the stay necessary to preserve the subject matter or the integrity of the litigation?

(2)  Does the appeal have reasonable prospects of success?

(3)  Does the balance of convenience favour the grant of the stay?

9         As to the criterion as of whether the appeal has a reasonable prospect of success, having considered the grounds of appeal set out in the notice of appeal, the Commission’s reasons for decision delivered on 12 November 2021 and the arguments of the parties in the proceedings at first instance, there is at least an arguable case on the appeal, but I put it no higher than that.

10      However, and importantly, I am also required to consider whether the appeal will be rendered nugatory if a stay is not granted.  This involves a consideration of the need to preserve the subject matter or the integrity of litigation, which in the present context, means whether any monies paid in accordance with the Commission’s order, are likely to be recoverable.

11      As noted above, the applicant did not take issue with this contention at the outset of the hearing of the application for a stay.  He did not contend that he had concerns that if monies were paid under the order, that the respondent would not pay them back in the event that the appeal was successful.  However, it seemed that his position on this question slightly changed, after hearing that the respondent is not presently working or earning an income.

12      In my view however, having heard from the parties, I accept that the respondent is well aware of her obligations in relation to the repayment of any monies paid to her under the order, in the event that the appeal is successful.  Furthermore, I am not satisfied that on what is before me in these proceedings, the respondent will be unable to do so, in that eventuality.  Additionally, I am not satisfied that the balance of convenience is in favour of the grant of a stay.  In short, the applicant has not demonstrated special circumstances warranting the making of an order in his favour.  Accordingly, the application for a stay is dismissed.