Industrial Relations Commission of New South Wales CITATION: Jia Ju Huang v The Sunnyfield Association [2006] NSWIRComm 286 APPELLANT: Jia Ju Huang PARTIES: RESPONDENT: The Sunnyfield Association FILE NUMBER(S): IRC 173 of 2006 CORAM: Schmidt J; Kavanagh J; Grayson DP CATCHWORDS: Appeal - application for leave to appeal and appeal - unfair dismissal proceedings under section 84 of the Industrial Relations Act 1996 - whether there was a failure to apply the provisions of section 95 of the Industrial Relations Act 1996 - whether the Commissioner erred on the evidence - whether the unfair dismissal proceedings ought to have been delayed whilst worker's compensation proceedings were dealt with - public interest test not satisfied - leave to appeal refused - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 CASES CITED: Huang & The Sunnyfield Association [2005] NSWIRComm 1215 Jia Ju Huang and The Sunnyfield Association [2006] NSWIRComm 144 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158 HEARING DATES: 06/09/06 DATE OF JUDGMENT: 09/15/2006 APPELLANT: Mr Jia Ju Huang, unrepresented INTERPRETER: Ms Hua Dong LEGAL REPRESENTATIVES: RESPONDENT: Mr AK Singh of counsel Employment Advocacy Solutions Pty Ltd JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J Kavanagh J Grayson DP 15 September 2006 Matter No IRC 173 of 2006 JIA JU HUANG AND THE SUNNYFIELD ASSOCIATION Application by Jia Ju Huang to extend time to appeal and leave to appeal and appeal against a decision of Commissioner Ritchie given on 7.12.2005 in matter no. IRC 3257 of 2005 DECISION OF THE FULL BENCH [2006] NSWIRComm 286 1 Jia Ju Huang seeks leave to appeal and appeals from a decision given by Commissioner Ritchie on 7 December 2005, dismissing the application brought under s 84 of the Industrial Relations Act 1996 ('the Act'). (See Huang & The Sunnyfield Association [2005] NSWIRComm 1215). On 20 April 2006, Kavanagh J granted Mr Huang an extension of time to appeal that decision. (See Jia Ju Huang and The Sunnyfield Association [2006] NSWIRComm 144.) 2 Mr Huang's application had not been brought within the time fixed by s 84 of the Act and the Commissioner granted an extension of time to file the application, in the circumstances revealed on the evidence. Mr Huang sought reinstatement in his employment. The Commissioner noted at [36] that his case was that 'as a consequence of his making of a claim for workers compensation in late January 2005 he was terminated on the basis of redundancy in May 2005'. The respondent's case was that the reasons for the dismissal were financial, a restructure for greater efficiency. 3 Having noted that the onus fell on the applicant to make out his case, the Commissioner concluded at [39] that 'the applicant was made redundant as a consequence of the restructuring of the Division he worked in.' He explained that he had reached that conclusion, having regard to evidence given by Mr Huang and other witnesses and considering documents in evidence. The Commissioner preferred the evidence of Mr Fan, over that of Mr Huang, on the question of whether Mr Fan had told Mr Huang not to pursue a worker's compensation claim, as Mr Huang claimed and Mr Fan denied. He also noted that Mr Fan was not the applicant's supervisor and had played no part in the applicant's selection for redundancy. 4 The Commissioner concluded at [44]: In summary, I find that the termination of the applicant by the respondent was for the reason of redundancy as a consequence of a restructure and it was neither harsh, unjust or unreasonable. 5 In his application for leave to appeal, Mr Huang explained that leave should be granted because the Commissioner did not consider s 95 of the Industrial Relations Act 1996, in respect to the appellant's application and that the matter raised important questions of practice and procedure. The grounds of appeal were only one - 'error of law'. 6 The case advanced by Mr Huang was that he had made an application under s 84 of the Act, because of the advice he had received at the time from Legal Aid NSW. Section 88(f) of the Act provides that in determining the application, the Commissioner 'may, if appropriate, take into account…(f) such other matters as the Commission considers relevant'. Section 163(1) of the Act requires that: (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 7 It followed, the submission continued, that the Commissioner erred in failing to have regard to the provisions of s 95 of the Act, which provides: (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee. 8 It was also submitted that the Commissioner erred in not having regard to the following matters: (a) That the section where the Appellant worked in was not in fact shut down. (b) That the installation of the new machinery equipment was quite irrelevant to some of the pre-injury duties, which involved very significant heavy lifting and pushing performed by the Appellant. (c) That whether those very significant heavy lifting and pushing duties still existed in the business of the Respondent and performed by whom after the redundancy of the Appellant. (d) That the nature and truthfulness of the Respondent's assertion that no alternative position were available to the Appellant while very significant staffs were in the employ. 9 A further submission was that the Commissioner erred in failing to postpone the hearing until the applicant's workers compensation claim 'had been determined by a competent authority.' The applicant sought leave to admit further evidence in relation to proceedings before the Workers Compensation Commission of NSW, on 10 May 2006. 10 In his reply of 4 August, Mr Huang argued that the submission of the respondent to the appeal should be disregarded, because it was out of date and if it was received, his position would be prejudiced. The respondent had been directed to file and serve its submissions by 28 July. That direction was not complied with. The submissions were filed on 31 July and received by Mr Huang on 1 August. We note that this submission was rejected at the hearing, the Full Bench taking the view that justice required that both parties be heard. 11 The respondent's case was that leave to appeal would not be granted, the requirements of s 188 of the Act not being satisfied. There was no public interest in the matter raised. The only error of law pointed to was a failure to apply the provisions of s 95 of the Act. That being so, the appeal was a pointless one. Section 95 did not apply to the proceedings below and if the appellant had remedies under s 93 of the Act, he had two years from the termination of his employment to exercise them. It followed that the appellant would not be prejudiced by leave being refused. His unsuccessful application under s 84 of the Act, would not preclude such a further application. 12 As to other errors alleged, it was argued that the evidence against the appellant was overwhelming and that no error could be demonstrated. The appellant was not entitled to a second hearing on appeal. 13 There was no question that the appellant had brought his application under s 84 of the Act. An onus accordingly fell on him to make out that his dismissal had been harsh, unreasonable or unjust. It followed that the Commissioner had correctly proceeded to determine the application brought, in accordance with the requirements of the Act. Section 163 of the Act imposed no obligation upon him, to apply the provisions of s 95 of the Act to the proceedings. Consideration 14 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 15 It is also well settled that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4].) 16 The complaint in this case is essentially three-fold. The first, a failure to apply the provisions of s 95 of the Act; the second, that the Commissioner reached the wrong conclusion on the evidence and the third, that the proceedings ought to have been delayed, while proceedings in the Workers Compensation Commission were dealt with. 17 We are satisfied that this is a case where leave to appeal may not properly be granted, given the provisions of s 188 of the Act. It provides: (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 18 The question of leave was only pressed in relation to the arguments advanced about s 95 of the Act, but we are satisfied that the public interest test was not satisfied by the appellant, in relation to any of the three aspects of the appeal which he raised. 19 Not only was the argument in relation to s 95 of the Act not advanced to the Commissioner, it is quite clear that the appellant's reliance on s 95 of the Act was entirely misplaced. There was no doubt that the application brought by Mr Huang was brought under s 84 of the Act. Having been unsuccessfully conciliated, the Commissioner was bound to determine the case, in accordance with the provisions of s 88. While the provisions of s 163 were relevant to the way in which the Commissioner went about that exercise, he was not entitled to approach a consideration of the case in accordance with the provisions of s 95, as Mr Huang argued he was bound to do. Had he done so, the Commissioner would have fallen into error. 20 Section 84 appears in Part 6, Unfair Dismissal, of Chapter 2 Employment of the Act. Section 95 appears in Part 7, Protection of Injured Employees, of that Chapter. Section 92 of that Part provides: 92 Application to employer for reinstatement of dismissed injured employee (1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury. (3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement. 21 While Mr Huang may have had rights to bring such an application, there was no suggestion that he had done so. The Commissioner would have fallen into error, had he proceeded to deal with the claim made by Mr Huang under s 84 of the Act, as if Mr Huang had made an application to the respondent under s 92 of the Act, which the respondent had refused and as if Mr Huang had thereupon made an application to the Commission under s 93 of the Act. None of those steps were taken by Mr Huang. As s 95 itself makes plain, its application is confined to proceedings brought under Part 7 of Chapter 2 of the Act. The record of the proceedings below show that the Commissioner was aware that Mr Huang's language skills were very limited and that he had himself filled out his application form. The central issue argued Commissioner Ritchie in the case was whether or not the dismissal was the result of Mr Huang's workplace injury. The scheme of the Act does not now permit the appellant to rely on s 95 of the Act on appeal, having commenced and advanced the proceedings at first instance under s 84. 22 It follows that the Commissioner was correct in observing that the onus fell on Mr Huang to make out his case. The provisions of s 88(f) and s 163 of the Act led to no different conclusion. Such proceedings are inter-partes and while an unrepresented litigant may properly receive a certain amount of assistance from the Commission, the Commissioner was also obliged to ensure that he decided the cases respectively brought by the parties and that he did not recast the applicant's case, in the way sought to be pressed on appeal. 23 It follows that leave to appeal must be refused, in respect to the matter pressed in the application for leave. 24 While not strictly arising, we note two further matters were raised by Mr Huang; firstly that the hearing of his application should await finalisation of proceedings in the Workers Compensation Commission. There was no evidence that he had made such an application to the Commissioner. Having made no such application, Mr Huang cannot complain on appeal that there should have been such a delay. Certainly, that situation cannot give rise to any public interest considerations. In those circumstances, we decline to receive the evidence Mr Huang sought to introduce on appeal, as to what later transpired in the Workers Compensation proceedings. 25 Finally, as to the complaints made in relation to the conclusions which the Commissioner reached on the evidence, nothing to which Mr Huang pointed, could properly be considered to raise public interest considerations. The Commissioner concluded that Mr Fan's evidence had to be preferred over that of Mr Huang and that otherwise his claim that he had been dismissed because of his injury was not made out, having regard to the evidence of other witnesses to whom the Commissioner referred. It was not demonstrated that such conclusions were not open on the evidence. 26 It follows that leave to appeal may not be granted in this case, given the requirements of s 188 of the Act, to which we have referred. Orders 27 For the reasons given, leave to appeal is refused and the application for leave to appeal and appeal is dismissed. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.