APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER U 64/2021 GIVEN ON 23 NOVEMBER 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00808

DELIVERED : Tuesday, 29 November 2022

FILE NO. : FBA 10 OF 2021

Appellant

AND

Yan Li

Respondent

ON APPEAL FROM:

Jurisdiction : INDUSTRIAL RELATIONS COMMISSION

Coram : SENIOR COMMISSIONER R COSENTINO

Citation : 2021 WAIRC 00574

File No : U 64 OF 2021

Catchwords : Industrial Law - Appeal against the decision of the Commission - Dismissal of employee - Whether the Commissioner erred in finding there had been a dismissal - Whether the Commissioner erred in finding the dismissal unfair - No error established - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

Industrial Relations Regulations 2005 (WA) reg 102(3)

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : In person

Case(s) referred to in reasons:

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 8

JL v Haydar Family Restaurant t/a McDonalds [2003] WAIRC 09489

Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107

M J Edwards t/as M J Edwards and J Pendarvis v Natasha Stephenson [2022] WAIRC 00049; (2022) 102 WAIG 176

Richards v GB and G Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117

Reasons for Decision

KENNER CC:

Brief background

1         The appellant conducts a massage business by the name of ‘Mass-Age Massage’.  The respondent was employed in the business as a massage therapist and as of June 2021, had been employed for approximately one and a half years.

2         As a result of events which occurred on 17 June 2021 the respondent contended that she was dismissed by the appellant.  The respondent maintained that her dismissal was unfair.  The appellant, on the other hand, maintained that the respondent resigned from her employment.  The respondent initially commenced proceedings in the Fair Work Commission, but on becoming aware that the Commission’s jurisdiction was the proper forum, she discontinued those proceedings and commenced a claim in this jurisdiction on the grounds that she had been unfairly dismissed.  As her claim was brought out of time, the Commission, constituted by the learned Senior Commissioner, granted an extension of time. The learned Senior Commissioner found in favour of the respondent and ordered that the appellant pay compensation for loss in the sum of $2,854.16, and compensation for injury in the sum of $1,500.

Proceedings at first instance and the decision of the Commission

The evidence

3         The principal witnesses in the proceedings at first instance, were the respondent and the appellant.  As the respondent and the appellant do not have English as their first language, both gave evidence through an interpreter.  Additionally, several documents were tendered in evidence, including one of importance in the disposition of the matter, which were in Chinese Hanzie.  The documents were translated into English. The use of Mandarin interpreters for the giving of oral testimony by witnesses and the translation of documents into English added a layer of complexity to the proceedings. The translation of one document became controversial.  I will consider this further below.

4         Two other employees of the appellant also gave evidence.

5         The evidence adduced by both the respondent and the appellant in the proceedings at first instance was relatively brief. The learned Senior Commissioner found that both witnesses were credible witnesses. The respondent testified that she started working in the appellant’s business in 2019, but was unsure of when in that year.  She started working four days per week initially and then increased to five days per week.  The massage therapists employed in the business were paid on a commission basis.

6         As to the events of 17 June 2021, the respondent testified that she was at work on this day.  A customer came in for a massage and the respondent was assigned to the customer.  She testified that she was getting ready to do the massage job when the appellant then assigned the customer to another therapist and asked the respondent to wait.  The respondent said she was upset by this and that it had happened before.  She testified that she began to feel unwell and experienced physical discomfort.  The respondent testified that the situation made her feel like crying.  Her evidence was that because of this, and how she felt, she packed her things and left the premises.  The respondent testified that she thought this was about 2.00pm.  She further said that she was not aware whether she was entitled to sick leave, and she did not go back to work.

7         There was a previous incident on 31 May 2021 where the respondent said she had been bullied by the receptionist at the business. There was an allegation of physical contact by the receptionist, and this was in the presence of customers.  The respondent testified she reported this incident to the police.  She did not know who the police spoke to, but the complaint was not established.  A further incident had occurred earlier on 12 March 2021, where the respondent also left work.  She testified that she had spoken to the appellant about these things in the past and that he did not provide her any help.  Following the 12 March 2021 incident, the respondent testified that she sent the appellant a message and spoke to him on the telephone.

8         When it was put to her, the respondent accepted that she did not tell her co-employees who were present at work on 17 June 2021, that she felt unwell.  She testified that they were busy, and she did not see them or speak with them.

9         It was common ground that after the respondent left the premises on 17 June 2021, she did not go to work the next day on 18 June 2021.  She did however, go to her general practitioner and received a medical certificate dated 18 June 2021.  The medical certificate certified the respondent as unfit for work from 18 June 2021 to 26 June 2021 inclusive.  A second medical certificate certified the respondent as unfit for work from 28 June to 2 July 2021.  The respondent testified that she sent a text message to the appellant and attached a copy of the first medical certificate to it.  The text message, translated from Chinese Hanzi to English, read as follows:

Good morning. Since I started working in your store I never thought that all this would happen. "Chinese people are their own people and harm their own people" is not a legend. In the past, I encountered unfair shift work. I will complain to you, seek to solve the problem, and evaluate the right and wrong of what happened. If I am not wrong, I need the other party to apologize to me to ensure that it will not happen again in the future. Instead of solving the problem, the result was more serious and frequent retaliation. If you told me at the beginning that there was no shift order in your store, maybe I would have changed my mind and stayed or left this job. At least I wouldn't suffer more unfair treatment, or even violence and forced work. Until Thursday afternoon, you did the same thing yourself which really hurt people. I still hope you can deal with it correctly and give me an answer.

10      It was common ground, that in response, on 19 June 2021, the appellant sent a text message to the respondent.  This was also translated during the hearing by a translator from Chinese Hanzie into English.  This message was in the following terms:

About the thing that you had a argument with your colleague, it happen three or four times that you grabbed your bag and left. No company would tolerate that behaviour. What happened on Thursday was you deliberately left this job and basically without saying goodbye. Everyone knew about this.

[line missing in Exhibit A3]

Hand[character], no need to harm each other. There will be opportunities that we meet each other in the future. I will give you what I promised to you next week and I won't answer the rest. I've been cooperating with you. Before you got your PR you've been taking cash (there is a list written by you), afterwards to get the government allowances fewer working hours were declared using the qualification purchased to work. It's okay if everyone lives peacefully but if there is a dispute even if I have made mistakes you are actually deceiving the government and the Immigration Department and you will be responsible for the court and the lawyers' fees. What I can do is if I'm not attacked

[line missing in Exhibit A3]

First missing line: "If you have different ideas, you can breakup peacefully and friendly".

Second missing line: "don't mention it at all"

11      Both messages were important considerations as a part of the factual matrix in the learned Senior Commissioner’s decision, which I will discuss further below.

12      The appellant testified that his business ‘Mass-Age Massage’ is located at the Kingsway Shopping Centre, and he has had the business for 12 years. The respondent became an employee in the business as a massage therapist. The business provides remedial massage, deep tissue massage, acupuncture, cupping and other natural therapies.  The respondent worked in the business four to five days per week and the appellant confirmed that staff are paid on a commission basis.

13      As from October 2019, the appellant testified that the system of work allocation was that if the receptionist or the owner was on duty, they would control the work allocation of customers to therapists.

14      On 17 June 2021 the appellant testified that a customer came into the business for a remedial massage, and he allocated this customer to the respondent.  He said that the customer had to leave the premises and return to their car in the car park to retrieve something, and would be five or ten minutes.  The appellant testified that he told the respondent to just wait until the customer had returned.  In the meantime, another customer came in and the appellant said that the respondent did not want to wait for the first customer, but went to look after the second customer.

15      The appellant’s evidence was that as there was no reception on that day, he was arranging the allocation of work.  He said that the respondent did not want to follow the “rule” and did not want to serve the first customer.  The appellant testified that the respondent left after 10 or 20 minutes and said words to the effect ‘no will do … it’s unfair I have no will to do any more’.

16      When asked whether he said anything to her, the appellant said he did not as it had happened before.  At page 24 of the transcript at first instance, the appellant said:

I - I don't say anything cos before she - ah, it happened before she just directly left and like, ah, on 30 May she accused, ah, ah, the receptionist as bullying and, ah, left.  So and happen again.  I don't - I don't want to keep her, so, ah, if she resign herself that's okay.  Cos only herself, ah, (indistinct 12.37.15) and, ah, rules and others all, ah, satisfied.

17      The appellant said he received a text message from the respondent.  He said that the message made accusations against him.  As to the medical certificate attached to the message, he said he did not look at it as he only focussed on the Chinese text part of the message.  He also later said in his evidence that he was reluctant to open attachments to messages as it may be scam.

18      The text message that the respondent testified the appellant sent to her in response to her message with the medical certificate, was put to the appellant in his evidence.  It was also put to the appellant by the respondent that the first customer did not go to the car park as he said, as the respondent was preparing to start the massage and she was simply told by the appellant to serve another customer instead.  In response, the appellant testified that he did not have a clear recollection of the events of the day.

19      Evidence was given by two other staff members Ms Chanmee and Ms Yin.  Ms Chanmee works four days per week at the business and was present on the day in question on 17 June 2021.  She testified that the respondent was not sick on this day but ‘got angry with the boss’.  She testified that she saw the respondent at the front of the shop talking in the reception.  Ms Chanmee testified that the receptionist was responsible for allocating customers and that she was happy with the system.

20      Ms Chanmee also testified that she previously saw the respondent crying at work on a prior occasion on 31 May 2021, but did not know what this was about.  She said that on 17 June 2021, she did not really know what had occurred other than she saw that the respondent did not want to serve a customer and spoke to the appellant, and then collected her bag and went home.

21      Ms Yin testified that she worked on the day in question, and did not see anyone who was unwell.  She said that there was a dispute between the respondent and the appellant about serving a customer for a 90 minute massage when the respondent wanted to do a 30 minute massage for another customer.  As the respondent was on top of the list, she was supposed to do the first massage of 90 minutes.  Ms Yin said that she saw the respondent complaining at the back of the shop and she was upset.  She then saw the respondent take her bag and leave without saying anything.

The Senior Commissioner’s reasons

22      In considering the claim at first instance, the learned Senior Commissioner referred to and applied the principles discussed by the Full Bench in JL v Haydar Family Restaurant t/a McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303.  In those proceedings, the Full Bench observed at [60]:

For a dismissal to have occurred, there must be some action on the part of the employer which leads to or effects the termination of the employee’s employment.

23      The Full Bench further said at [66]:

Put another way, an important element of termination by an employer, that is dismissal of an employee, is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

24      Thus, in answering the question of whether a dismissal in fact and in law has occurred, requires a close consideration of the words and conduct of the employee and the employer at the relevant time. Considering the oral and documentary evidence before her, the learned Senior Commissioner made the following findings:

(a) that determining whether the respondent resigned or was dismissed, required a close examination of the conduct of the respondent and the words used by her on 17 June 2021 and in text message exchanges with the appellant in the following two days;

(b) that in cases involving an assessment of whether employment is ended, subtle differences in language used may convey differences in meaning.  In the case of translations, there is a risk of misconstruction of language;

(c) it was common ground that on 17 June 2021 when leaving work, the respondent spoke in Mandarin in words to the effect that ‘she had no will to work or no will to do any more’;

(d) that in the context of the nature of the employment relationship, it was most likely that any termination of employment would be expressed informally;

(e) that despite the appellant’s assertions to the contrary, the learned Senior Commissioner had doubts as to the appellant’s belief that the respondent had resigned, given she had left the workplace on two or three occasions previously prior to finishing her day’s work, and continued in employment;

(f) that several factors pointed to the respondent not intending to resign on 17 June 2021 including:

(i) that the respondent was unwell on that day, and she saw her general practitioner on 18 June 2021 and obtained a medical certificate which she sent to the appellant;

(ii) the nature of the respondent’s illness made it likely it would not be visibly obvious to both the respondent’s co-employees and the appellant and why she did not tell her co-employees;

(iii) given that the respondent was unwell, it was unlikely she would have had the intention to resign from her employment: rather she would be focussed on getting better;

(iv) it would have been expected that if it was the respondent’s intention to resign from her employment, she would have said something to her co-employees; and

(v) most tellingly, the respondent’s text message to the appellant on 18 June 2021, attaching a medical certificate certifying the respondent unfit for work for one week, was inconsistent with any intention by the respondent to resign;

(g) that the respondent’s words or conduct on 17 June 2021, did not amount to a resignation;

(h) that given the finding at (g) above, that the words used by the respondent in her text message to the appellant did not, objectively considered, convey an intention to resign, but rather, that the respondent did not want to continue to work on that day;

(i) that the appellant’s text message to the respondent on 19 June 2021, whilst it did not expressly refer to ending the respondent’s employment, referred to finalising payments to the respondent the following week and contained veiled threats to the respondent to ‘go quietly’.  The content of this message left no misunderstanding that the employment relationship was at an end; and

(j) given the finding at (i) above, and as the respondent provided a medical certificate to the appellant and explained her absence, and that she did not abandon her employment, there was no valid reason for the respondent’s dismissal, and it was harsh, oppressive and unfair.

The appeal

25      The appellant has now appealed against the learned Senior Commissioner’s decision.  The notice of appeal does not comply with reg 102(3) of the Industrial Relations Regulations 2005 (WA). The grounds of appeal do not set out particulars that are relied upon by the appellant to show how it is that the learned Senior Commissioner’s decision was against the evidence or the weight of the evidence, nor does it set out specific reasons why it is alleged to be wrong in law.

26      The appeal grounds comprise 18 paragraphs in narrative form.  It is fair to say that each of them, in the main, complains that the learned Senior Commissioner mistook the facts and should have concluded on the facts, consistent with the appellant’s contentions at first instance, that the respondent resigned.

27      Before I consider the grounds of appeal, I wish to say something as to the appellant’s conduct prior to the hearing of the appeal.

28      The learned Senior Commissioner’s reasons for decision and minute of proposed order were handed down on 12 November 2021.  A speaking to the minutes was listed for hearing on 22 November 2021 at which several corrections were made to the learned Senior Commissioner’s reasons in relation to dates and times in the main.  The corrected reasons and the final orders issued on 23 November 2021, along with a published corrigendum setting out the corrections in the reasons of the same date.  On 8 December 2021 the notice of appeal was filed.  On the same day an application to stay the order of the learned Senior Commissioner was filed.

29      The stay application was heard before me on 23 December 2021 and on 24 December 2021, I published reasons for decision and orders dismissing the stay application.  No appeal was filed by the appellant against the dismissal of the stay application.  On 25 January 2022, the appeal was listed for hearing on 12 April 2022.  In mid-February 2022, despite the dismissal of the stay application in December 2021, the Associate to the Full Bench was informed by the respondent that the appellant had not complied with the learned Senior Commissioner’s order and paid to the respondent the monies owing to her.  As a result of this, the date of hearing for the appeal listed for 12 April 2022 was vacated, and the appellant was informed that the appeal would not be relisted until the order was complied with, or a successful appeal was brought against the refusal of the stay application.

30      It was not until 21 March 2022, over a month later, that the Associate to the Full Bench was informed by the respondent and confirmed by the appellant, that the learned Senior Commissioner’s order had been complied with by the appellant.

31      Non-compliance with an order of the Commission, despite an unsuccessful stay application being made, is unacceptable conduct by a party to proceedings before the Commission.  There are proper mechanisms available under the Industrial Relations Act 1979 (WA) for parties to seek to vindicate their legal rights and to obtain relief from orders of the Commission, on their merits.  It is not for a party to simply take matters into their own hands and to refuse to comply with the law because it suits them.  Nor is this excused by the appellant being self-represented.  The appellant was clearly aware of and has exercised his appeal rights in this matter. 

32      Whilst the appeal grounds narrative was set out in my stay application decision ([2021] WAIRC 00662; (2022) 102 WAIG 37), for ease of reference in the reading of these reasons, they are set out again as follows:

1. The commissioner agreed there were 13 errors in the order of decision in speaking to the Minus while she refused to review the case. The errors included very important evidence of facts. After amendment there were still some errors.

2. 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.

3. 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.

4. 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.

5. In the part Mr Xu's evidence it stated 'Mr Xu told the WAIRC that when Ms Li walked out  0n 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.

6. 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.

7. 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.

8. 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.

9. The decision stated ‘it is common ground that Ms Li didn’t say goodbye to her work collogues 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.

10. 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.

11. 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.

12. 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.

13. 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’ 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.

14. 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.

15. 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.

16, 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.

17. 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.

18. 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.

Consideration

Principles to apply

33      The ultimate decision at first instance by the learned Senior Commissioner, that the respondent was unfairly dismissed, was a discretionary decision. The relevant well known principles have application.  Recently, these were restated in M J Edwards t/as M J Edwards and J Pendarvis v Natasha Stephenson [2022] WAIRC 00049; (2022) 102 WAIG 176. In that decision, the Full Bench said at [10] to [11]as follows:

10 The decision of the learned Commissioner that the respondent’s dismissal was unfair was a discretionary decision. The relevant principles applying to an appeal from a discretionary decision are well known. It is only in limited circumstances that the Full Bench should interfere with the exercise of a discretion by a Commissioner. It is only if the appellant can satisfy the Full Bench that a Commissioner has made an error in the exercise of their discretion, that the Full Bench can intervene. This might be a matter of principle, it may involve mistaking the facts, it may involve an error of law, it may also involve failing to take into account relevant considerations or taking into account irrelevant considerations. Additionally, if the decision reached is manifestly unreasonable or plainly unjust, appellate intervention may be permissible: House v The King [1936] HCA 40; (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at [504]-[505].

11 Additionally, in Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266, Ritter AP observed that a Commissioner’s decision that a dismissal was unfair or not, should be accorded due deference. Ritter AP said at [143]:

 These principles of appellate restraint have particular significance when it is argued, as here, that a court at first instance placed insufficient weight on a particular consideration or particular evidence. This was considered by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519. There, his Honour explained that although “error in the proper weight to be given to particular matters may justify reversal on appeal, … disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge”. This is because, in considering an appeal against a discretionary decision it is “well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion”, and that when “no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight”. (See also Aickin J at 534 and 537 and Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36]).

Grounds of appeal

Ground 1

34      As to ground 1, the appellant referred to 13 errors in the reasons for decision that were corrected at a speaking to the minutes and as contained in a published corrigendum.  It is fair to observe that the corrections made to the learned Senior Commissioner’s reasons related, mainly, to the dates and times on which some of the relevant events occurred.  For example, the date of 18 June 2021, the date that the learned Senior Commissioner found the respondent to have been dismissed, was changed to 19 June 2021. On some other occasions, the learned Senior Commissioner inadvertently referred to July instead of June, in relation to the relevant events. The same errors as to dates, for example, were repeated in several paragraphs of the learned Senior Commissioner’s reasons.

35      In other respects, for example, in [60] and [61] of the reasons, the period before the respondent provided the appellant a medical certificate was corrected from 24 hours to 43 hours after she left the workplace, with corresponding corrections to the time and date as well.

36      Whilst these factual corrections made at the speaking to the minutes may have been somewhat unsettling to the appellant, they do not, in and of themselves, impact on the essential findings of the Commission as to who, on a consideration of all the evidence, terminated the employment.  They do not alter or disturb in any material way the learned Senior Commissioner’s conclusions as to what occurred on the day in question, being 17 June 2021. Further, they do not alter or disturb the Senior Commissioner’s conclusions on the content of the text message exchanges between the appellant and the respondent on 19 June 2021, including, importantly, the meaning taken in context, which should be given to them.

37      The corrections do not disturb the learned Senior Commissioner’s findings and conclusions that the respondent felt unwell on 17 June 2021 while at work; that she left the workplace as a result; that the respondent did not speak to her work colleagues about this; and that she subsequently obtained a medical certificate certifying her as unwell and unfit for work, which medical certificate was sent to the appellant attached to her text message.  The corrections also do not alter or disturb the learned Senior Commissioner’s findings that the respondent did not intend to resign and nor did her words or conduct on 17 June 2021, amount to her bringing her employment to an end. Accordingly, I am not satisfied that the corrections made at the speaking to the minutes, and as contained in the published corrigendum, materially affected the correctness of the learned Senior Commissioner’s decision.

Ground 2

38      Ground 2 contended that the translation of the text message from the appellant to the respondent on 19 June 2021, in response to the respondent’s message received by the appellant on the same date, (see [10] above), was not accurate.  The two relevant text messages were tendered as exhibit A3.  In the proceedings the text messages both from the respondent to the appellant and the response from the appellant to the respondent of 19 June 2021, were translated by the certified translators for each party.  Mr C Gu translated for the appellant and Ms J Han translated for the respondent.  The text message of the appellant to the respondent of 19 June 2021, which comprised two pages, was translated by Mr Gu on behalf of the appellant.  The translation took place while the appellant was giving his evidence and the content of the text message was put to him (at pp 26-29 of the transcript at first instance).

39      When the learned Senior Commissioner put to the appellant whether he agreed that he sent a text message to the respondent in those terms, the appellant replied at p 26 of the transcript:

My message - ah, the message I sent to her, ah, was saying that since we don't work together anymore we'd better not hurt each other.  Ah, let's not attack each other, ah, for example, ah, as a - as me the employer I shouldn't, ah, ah, say rumours attacking a person's character.  And also, ah, someone shouldn't, ah, spread the rumours that I, ah, I try to, ah, find, ah, employee from other shops, ah, using, ah, financial means.

40      The text message was then tendered into evidence. At no stage in the proceedings at first instance, did the appellant assert that the translation by Mr Gu was wrong or inaccurate.  It was open for the learned Senior Commissioner to rely on the translation as she did.  The Commission was alive to the nuances of language and the subtle differences in meaning that may occur, as set out at [41] and [51] of her reasons for decision.  She had regard not just to the text messages between the appellant and the respondent, but also the conduct of the parties in relation to the relevant events. This included the furnishing of a medical certificate by the respondent, upon which the learned Senior Commissioner placed significant weight.  This ground of appeal is not made out.

Ground 3

41      Ground 3 asserted that as to the assault complaint to the police made by the respondent on 31 May 2021, the police found the complaint to be false and that the respondent admitted this in the proceedings.  This is not correct.  There was no evidence before the Commission that the police concluded that the respondent made a false complaint. The respondent’s evidence was that the police contacted her and informed her that the customer witness to the incident did not see anything.  The complaint was not able to be established.  This does not mean that the police concluded that the complaint brought by the respondent was false.  A deliberately false complaint made to the police, is a serious matter.  The respondent did not say in the proceedings that she admitted the complaint was false. The learned Senior Commissioner found both the appellant and the respondent to be credible witnesses.  This ground of appeal is not made out.

Ground 4

42      Ground 4 asserted that the learned Senior Commissioner distorted the facts at [28] of her reasons by referring to the appellant’s evidence that he did not have a clear recollection of the events of 17 June 2021.  The appellant contended that the focus should be on the ‘rules of the business which employees were obliged to obey’.  It was not clear to me what is meant by this contention.  The evidence of the appellant was that he could not clearly remember whether the respondent went to get the oil for the customer waiting to receive a massage, before giving her the direction to serve the other customer.  The learned Senior Commissioner’s finding as to these matters was open on the evidence.  There is no substance to the appellant’s contention.

Ground 5

43      As to ground 5, the appellant asserted that when the respondent left work on 17 June 2021, he regarded her as having refused to work and she orally resigned.  The appellant contended that the learned Senior Commissioner was in error to say in her reasons at [29] that when the respondent walked out on 17 June 2021, the appellant regarded this as a resignation.  The evidence of the appellant as to these matters is set out above at [15] to [16].  It is clear from that evidence that the learned Senior Commissioner’s summary of it was correct.  The appellant did not say anything at the time.  The respondent had walked out before, and the appellant’s evidence was that ‘if she resigned herself that’s OK’.  In the full context of what occurred, the learned Senior Commissioner’s description of the appellant’s evidence in relation to these matters was accurate.

Ground 6

44      Ground 6 contended that one of the appellant’s witnesses, Ms Yin, gave evidence that the respondent had not started to serve the customer and retrieve oils, and therefore the Commission should not have accepted the respondent’s evidence in this respect.  It is the case that the learned Senior Commissioner did not refer to Ms Yin’s evidence in cross-examination to the effect that at the time of the incident, the three therapists then on duty and at work on that day, were waiting at the back of the premises and had not started work for the day. The respondent disputed this, and when the respondent put to Ms Yin that she (the respondent) began serving the customer and went to get the oils, the evidence of Ms Yin was disrupted, as the appellant interjected with an uninvited remark as the interpreter was attempting to interpret Ms Yin’s answer. 

45      Irrespective of this, the learned Senior Commissioner found, as I have noted above, that both the appellant and the respondent were credible witnesses.  Simply because one witnesses called by the appellant gave some evidence on one point that was contrary to the evidence of the respondent, does not mean that the respondent’s credibility was undermined and was not to be believed as a witness.  There is no substance to this ground.

Ground 7

46      As to ground 7, the appellant referred to the learned Senior Commissioner’s finding at [44] that the respondent had left work on two or three prior occasions and that the appellant had not pointed to any difference occurring on 17 June 2021, which would lead to a different outcome.  The appellant contended that the refusal by the respondent to perform work as directed on that day, was a form of misconduct.  Given he contended that he had provided the respondent with an opportunity to improve on the prior occasions, he maintained that his ‘accepting’ of the respondent’s resignation on 17 June 2021 was reasonable.  The contentions advanced by the appellant on this issue tend to support and not detract from the learned Senior Commissioner’s ultimate findings. First, there was no requirement in law for the appellant to have ‘accepted’ the respondent’s resignation.  Whether or not a termination of employment is a resignation or a dismissal, ultimately depends on a consideration of all the circumstances as to what was said and done by the parties.

47      Second, the fact that the appellant did not maintain in the proceedings at first instance that he told the respondent she had committed an act of ‘misconduct’, for the alleged refusal of the respondent to carry out a lawful and reasonable instruction, supported the learned Senior Commissioner’s finding that there was nothing to indicate at the time of the incident, that it would be treated differently to the prior occasions when the respondent had left the premises.  There was little or nothing said on 17 June 2021. This finding was open on the evidence and this ground of appeal is not made out.

Ground 8

48      As to ground 8, which referred to the learned Senior Commissioner’s finding at [45], I understood the appellant’s complaint to be that if the respondent felt unwell on the day in question, then she should have declared feeling unwell, requested leave and sought help.  I infer that this reference to ‘help’ is to medical assistance.  The appellant repeated his contentions at first instance that the respondent did not have difficulty breathing; refused to work; spoke to the appellant about his work instruction; and left the premises. 

49      However, nothing referred to by the appellant as to these issues undermines the conclusions reached by the learned Senior Commissioner on the evidence.  It is not said how the findings of the learned Senior Commissioner were against the evidence or the weight of the evidence, especially in face of the finding by the Commission that she found the respondent to be a credible witness.  The fact is too, that as found by the learned Senior Commissioner, the respondent did seek medical help and went to see her general practitioner the next day on 18 June 2021, and subsequently provided a medical certificate to the appellant.  There is no substance in this ground.

Ground 9

50      Ground 9, referring to [47] of the reasons, asserted that the learned Senior Commissioner erred in concluding that the respondent did not intend to leave her employment on 17 June 2021 was supported by her not saying goodbye to her work colleagues or to give notice of her intention to the appellant.  The appellant complained that the learned Senior Commissioner seemed to have accepted the respondent’s evidence without further witnesses being called on her behalf, whilst rejecting the appellant’s evidence, and those witnesses called on behalf of the appellant.

51      The difficulty with these contentions is that the appellant’s evidence was that he did not have a good recollection of the events on 17 June 2021. Further, the respondent’s evidence that she did not say goodbye to her work colleagues, was consistent with the appellant’s witnesses Ms Chanmee and Ms Yin, who both said that the respondent left the workplace without saying anything to them.  The appellant’s contention that the respondent ‘orally resigned’ is a repetition of his case put at first instance, without, again, setting out how the learned Senior Commissioner’s fact findings were erroneous. 

52      Furthermore, the fact of the respondent leaving the workplace without saying goodbye to other employees was only one part of the overall factual matrix as to the establishment of who terminated the employment.  There is also a distinction between not mentioning to colleagues that one is unwell on the one hand, and bidding them farewell if one is leaving the employment without any intention to return, on the other.  The logic of the learned Senior Commissioner’s conclusion, that if the respondent was intending to resign and never return to the workplace, she would most likely have said something to her work colleagues, was sound.  This ground is not made out.

Ground 10

53      Ground 10 referred to the learned Senior Commissioner’s reasons at [48] to the effect that the obtaining by the respondent of a medical certificate and providing it to the appellant, was inconsistent with any intention of the respondent to resign on 17 June 2021.  The appellant said that the respondent’s text message to him attaching the medical certificate, was aggressive and disrespectful. He submitted the respondent did not seek sick leave, but just complained. The appellant maintained it had also been 43 hours since the respondent left the appellant’s premises, when the message was sent to the appellant with the medical certificate attached.  The appellant asserted that a medical certificate dated 18 June 2021 is not able to certify illness which was apparent on 17 June 2021.  The appellant further asserted that the respondent’s actions in obtaining a medical certificate could have been motivated by regretting her resignation and to obtain money.

54      These contentions must be rejected.  The respondent’s evidence that she did not feel well on 17 June 2021, was entirely consistent with the provision by her of a medical certificate by her general practitioner obtained the next day on 18 June 2021, to initially cover the period to 26 June 2021. Additionally, as noted earlier, a further medical certificate was obtained to cover the period from 28 June 2021 to 2 July 2021 (see exhibit A2).  It was not open for the Commission to attempt to go behind the opinion of the respondent’s general practitioner as to the physical and mental health of a patient.  The fact is the respondent went the following day, after leaving the appellant’s premises, to see her general practitioner.

55      The learned Senior Commissioner accepted that it was ‘beyond doubt’ that the respondent was unwell on 17 June 2021 and the nature of her illness was such that it would have been unlikely to have been able to be observed by work colleagues. This latter observation is entirely consistent with the medical evidence before the Commission, and the evidence of the respondent which she accepted. Moreover, the suggestion by the appellant that the reason the respondent obtained a medical certificate (and the other medical evidence tendered in exhibit A2) was simply to extract money from the appellant, borders on a scandalous allegation.

Ground 11

56      The ground in par 11 of the appellant’s narrative contended that the learned Senior Commissioner erred at [54] in construing the appellant’s text message of 19 June 2021 as being evidence of the appellant’s intention to end the employment relationship. The appellant complained that the learned Senior Commissioner only surmised that the reference in the appellant’s message to finalising payments to the respondent the following week, was consistent with the appellant’s termination of the respondent’s employment.  Again, the appellant contended that the translation was not correct, and the original message did not refer to this.  I do not repeat my earlier observations as to the issue of translation and adopt the same for the purposes of this ground of appeal.

57      The appellant also referred to the payment of an amount of $1,600 made to the respondent and said to have been payment in lieu of notice. There was no evidence before the learned Senior Commissioner in the proceedings at first instance of such a payment.  The matter was only raised by the appellant at the speaking to the minutes after the Commission’s decision had been handed down.  Whilst the appellant contended at the speaking to the minutes that this should be considered in the calculation of compensation in the order in favour of the respondent, the respondent disputed this.  She said that the payment made to her was for holiday pay for the prior two years, as the appellant had not paid her any over this time.  As the matter was in dispute, the learned Senior Commissioner properly declined to take this matter into account, and she did not err in this respect.

58      In any event, the payment of two weeks’ in lieu of notice, as it was seemingly characterised by the appellant, is more consistent with a termination of employment at the initiative of the employer.  An employee leaving the workplace without notice, would generally not be entitled to such a payment.  Finally, the learned Senior Commissioner’s findings that the content of the appellant’s text message alluded to consequences for the respondent if she did not go ‘quietly’, were plainly open on the evidence and further point, in the context of all the other evidence, to a termination of employment at the initiative of the appellant, and not the respondent.

Ground 12

59      In relation to ground 12, the appellant referred to [60] of the reasons, which were corrected from ‘24 hours’ to ‘43 hours’ in the corrigendum. The appellant contended that the respondent’s text message received on 19 June 2021 did not contain any expression of illness or request for sick leave. He said it only contained ‘slandering and complaining’ and not an explanation for her absence.  I do not agree that the message itself, as translated, did not explain the respondent’s absence.  It referred to what the respondent regarded as an unfair work practice and treatment by the appellant; that she was upset by what occurred and may not have left her previous employment; and that she was seeking some sort of response from the appellant.  The attaching of the medical certificate was a clear indication the respondent was seeking to justify her absence from the workplace.  Whilst the reasons were corrected to reflect the evidence of a period of 43 hours rather than 24 hours, before the respondent’s text message was received by the appellant, I do not consider this to be an inordinate delay. The fact is the respondent went to see her doctor the day after leaving the workplace, and obtained a medical certificate. I do not think the period involved altered the learned Senior Commissioner’s findings at [60] of her reasons and those conclusions, including at [61], were open on the evidence.

Ground 13

60      As to ground 13, the appellant referred to the learned Senior Commissioner’s reasons at [82] to the effect that the respondent did not seek reinstatement; that she had made a workers’ compensation claim regarding the incident on 31 May 2021 in relation to bullying in the workplace; and had been unfit for work since 18 June 2021, for the same reason.  The appellant again referred to the alleged false complaint made by the respondent to the police and his view of the respondent’s unfounded bullying allegations and that there was no injury sustained by the respondent from his business. The learned Senior Commissioner’s comments referred to above, are not findings of fact or conclusions of law amenable to appeal.  They simply are a summary statement that the appellant did not seek reinstatement and the events which occurred up to the date of the hearing.

Ground 14

61      Ground 14 referred to [89] of the Commission’s reasons, and complained again that there was no evidence of the respondent feeling unwell before 18 June 2021, such that she felt it necessary to leave the workplace. The appellant also once again accused the respondent of a ‘false allegation’ in relation to the 31 May 2021 incident.  The appellant attributed the respondent’s conduct to her ‘bad-tempered character’.  The difficulty with this ground of appeal, as with several others I have referred to earlier, is it does not contend how the learned Senior Commissioner’s findings at [89] of her reasons were against the evidence or the weight of the evidence or were wrong in law. 

62      The learned Senior Commissioner set out at [45] of her reasons, supported by the medical certificates and other evidence in exhibit A2, that the respondent was unwell on 17 June 2021.  This finding was plainly open on all the evidence.  The learned Senior Commissioner referred to the respondent’s workers’ compensation claim as not being before the Commission, but she accepted the respondent’s evidence that it related to the incident on 31 May 2021. It was open to the learned Senior Commissioner on the evidence, to accept the respondent’s evidence of the link between the workers’ compensation claim and the events of 31 May 2021.  The appellant has failed to establish to the contrary. 

63      The repeated assertion by the appellant that the respondent’s complaint to the police was false, is, for reasons I have already noted earlier, incorrect.  Importantly too, the learned Senior Commissioner could not and did not make any findings in relation to the workers’ compensation claim, as that matter was not before the Commission. It was considered by the learned Senior Commissioner as a part of the background to the events that occurred on 17 June 2021.  This ground is not made out.

Ground 15

64      As to ground 15, the appellant referred to the learned Senior Commissioner’s findings at [91] of her reasons as to the respondent’s unfitness for work and her recovery and return to work.  The learned Senior Commissioner concluded that she was satisfied that the respondent had suffered some loss, and that it was likely that the respondent would have returned to work for a period of four weeks before resigning.  Therefore, she assessed compensation for loss of four weeks’ pay in the sum of $2,854.16 gross.  The appellant raised again his complaint that the text message he sent to the respondent on 19 June 2021, was not properly translated and did not communicate any message of dismissal. I have already considered these issues when dealing with earlier grounds of appeal and I do not repeat what I said in relation to these grounds. The learned Senior Commissioner’s findings and conclusions were open on all the evidence before her.

65      Further the appellant referred to the decision of the Full Bench in Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107, to the effect that the assessment of compensation for an unfairly dismissed employee should compensate the employee to the fullest extent of his or her loss and that the calculation of the loss must not be arbitrary: per Sharkey P at 1108. The appellant maintained that the learned Senior Commissioner’s assessment of compensation was arbitrary, as the respondent’s illness and her recovery from it are medical matters properly the subject of a decision by a medical professional.

66      The Full Bench in its later decision in Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 8 further developed and affirmed the principles applicable to assessing compensation for unfair dismissal which were previously considered and applied in Manning.  In that case, I  affirmed the principle (at p 13) that in making findings of fact in assessing compensation for loss, it is open for the Commission to have regard to the likelihood that an unfairly dismissed employee may have voluntarily left the employment at a point in the future.

67      This is what the learned Senior Commissioner did in finding that the respondent would have only continued in her employment for a period of four weeks before resigning, referred to at [86] to [91] of her reasons.  She found that the respondent was aggrieved by the manner of the work allocation in the appellant’s business; that she may have stayed at her former employment had she known; or she may have left the appellant’s employment at an earlier time.  Accordingly, the learned Senior Commissioner’s assessment of compensation for loss, considering the facts as she found them, were not in any sense an arbitrary assessment, but a judgement made by her on the evidence and open to be made on all the evidence.

68      Based on the medical certificates in evidence at exhibit A2, whilst the respondent was certified unfit for work until 2 July 2021, there were no further medical certificates in evidence to suggest that the respondent was unable to return to work beyond this date.  Therefore, the learned Senior Commissioner’s finding that but for the dismissal, it was likely that the respondent would recover and return to work, was a finding reasonably open on the evidence.  The appellant has not established that the learned Senior Commissioner’s assessment of compensation of four weeks’ pay in all the circumstances, was erroneous.

Ground 16

69      Ground 16 referred to the learned Senior Commissioner’s findings at [94] in relation to the dismissal by text message from the appellant, dated 19 June 2021.  The appellant contended that the respondent’s initial text message to him on the same day, contained false accusations and a complaint.  While the appellant did not elaborate as to what he meant by this, it is assumed that it related to his prior assertion of a false complaint by the respondent to the police concerning the 31 May 2021 incident, which I have considered in relation to previous grounds of appeal and rejected.  The appellant said that his text message to the respondent was a ‘counter offensive’ and moreover, the respondent feeling unwell, was attributable to the respondent’s ‘impulsive character’, whereby she made false accusations and complaints. Apart from these generalised assertions, the appellant did not establish in relation to these matters, to any extent, that the learned Senior Commissioner’s findings at [94] of her reasons were not open or reasonably open on the evidence.

Ground 17

70      As to ground 17, the appellant referred to [95] of the learned Senior Commissioner’s reasons and her conclusion that the ‘lack of clarity and frankness’ in his text message (see [10] above) was likely to have compounded the respondent’s confusion and hurt. The learned Senior Commissioner also referred to threats by the appellant to report the respondent to government agencies and that this added to the gravity of the appellant’s response.  In reply to this, the appellant referred to the respondent’s application to the Fair Work Commission and to this Commission, and her assertion that the appellant dismissed her. The appellant contended once again that his message to the respondent was not one of dismissal and that he was seeking to protect himself.  The appellant denied he made any threats. Apart from these broad assertions, the appellant did not, in relation to this ground, seek to establish how the conclusions of the learned Senior Commissioner were wrong or against the evidence or the weight of the evidence.

71      Whether or not the appellant’s text message was consistent with the dismissal of the respondent by the appellant has been dealt with in earlier grounds of appeal, which have been rejected.  The learned Senior Commissioner’s conclusion that the text message from the appellant to the respondent on 19 June 2021 contained a threat of reporting the respondent to government agencies was one plainly open from the language used in it.  It would be difficult to interpret the words used by the appellant in his message to the respondent in any other way.  This ground is not made out.

Ground 18

72      In ground 18, the appellant referred to the learned Senior Commissioner’s conclusion at [96] of her reasons, as to the impact of the appellant’s message on the respondent, in the context of her workplace injury and the events of 31 May 2021 and 17 June 2021, in assessing compensation for injury. She found that the level of impact was beyond that which would be ordinarily associated with a dismissal. The appellant restated that the 31 May 2021 incident resulted from a false allegation as decided by the police, and that the respondent did not tell the truth as to the 17 June 2021 events. Both issues have been considered and rejected in dealing with earlier grounds of appeal. The learned Senior Commissioner referred to the principles established by the Full Bench in Richards v GB and G Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117. The learned Senior Commissioner properly applied these principles to the facts as found and no error has been demonstrated in her award of $1,500 for injury.

Conclusions

73      None of the appeal grounds are made out.  The learned Senior Commissioner’s findings and conclusions were open on the evidence before her, and the appellant has not demonstrated any error of the kind permitting appellate intervention by the Full Bench.  The appeal is dismissed.

EMMANUEL C:

74      I have had the benefit of reading the draft reasons of the Chief Commissioner. I agree with those reasons and have nothing to add.

WALKINGTON C:

75      I also agree and have nothing to add.