Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2019] FWC 4530 of Commissioner Bissett at Melbourne on 2 July 2019 in matter number AB2019/213 and appeal against decision [2020] FWC 758 of Commissioner Wilson at Melbourne on 1 April 2020 in matter number U2019/6378.

[1] Ms Qing Dai has lodged appeals, for which permission to appeal is required, against two decisions. The first decision appealed was issued by Commissioner Bissett on 2 July 2019[1] (first decision), and concerned an application for anti-bullying orders made by Ms Dai pursuant to s 789FC of the Fair Work Act 2009 (FW Act) in respect of her former employment as a part-time laboratory assistant with St Michael's Grammar School (School). In her decision, the Commissioner declined to grant an application made by the School that the application be dismissed on the basis that, because Ms Dai's employment with the School had been terminated on 17 May 2019, she faced no risk of being bullied in the future at the School and accordingly the application had no reasonable prospects of success. Instead, the Commissioner determined that Ms Dai's anti-bullying application should be stood over pending the determination of an application for an unfair dismissal remedy which Ms Dai had lodged in respect of her dismissal on 7 June 2019.

[2] Ms Dai's appeal against the first decision (first appeal) was lodged on 22 April 2020. It was filed well outside the 21-day time period for the lodgement of appeals prescribed by rule 56(2)(a) of the Fair Work Commission Rules 2013. Accordingly the first appeal is incompetent unless an extension of time is granted pursuant to rule 56(2)(c).

[3] The second decision was made by Commissioner Wilson on 1 April 2020[2] (second decision) and concerned Ms Dai's application for an unfair dismissal remedy. In the second decision, the Commissioner found that there were valid reasons for Ms Dai's dismissal related to her capacity and conduct and that there were no substantial procedural defects or other matters which would render her dismissal unfair, and dismissed Ms Dai's application. Ms Dai's appeal against the second decision (second appeal) was also filed on 22 April 2020.

[4] The hearing of both appeals was delayed for some time because of health issues suffered by Ms Dai. On 7 October 2020, a notice of listing was issued in both appeal matters for a hearing to be held by videoconference on 2 November 2020 concerning whether permission to appeal should be granted. Directions were made at the same time which, among other things, required Ms Dai to file an outline of submissions in each matter addressing the question of permission to appeal by 26 October 2020. Ms Dai filed a submission in accordance with this direction on 26 October 2020.

[5] On 20 October 2020, Ms Dai sent an email to the Commission in which she sought that the presiding member of this Full Bench recuse himself from the hearing of her appeals and, on 23 October 2020, filed submissions and additional material in support of this recusal application. Ms Dai filed further additional material in support of the application on 26 October 2020. On 2 November 2020, the presiding member informed the parties by email that he declined to recuse himself from hearing the matters, and that reasons for this decision would be provided in due course. The presiding member's reasons have been issued simultaneously with this decision.[3]

[6] On 20 October 2020, Ms Dai wrote to the presiding member's chambers stating that it "is not acceptable for any scheduled hearings other than face-to-face hearings" to proceed, and attached a letter from Dr Simon Wong, dated 20 October 2020, in which Dr Wong expressed the opinion that if the hearing was to proceed by way of videoconference rather than face-to-face, this would aggravate Ms Dai's "fragile mental state" and make communication difficult given her "problematic command of English". On 23 October 2020, the chambers of the presiding member wrote to Ms Dai advising that the current COVID-19 restrictions did not permit in-person hearings, that the Full Bench did not consider the letter from Dr Wong demonstrated that she was medically incapable of attending the hearing via video-link, and that the matter would proceed as listed. Later that day, Ms Dai sent further correspondence attaching a hand-written letter from a clinical psychologist, dated 20 October 2020, which endorsed the view and reasons expressed by Dr Wong in advising that Ms Dai required an in-person hearing.

[7] On 30 October 2020, Ms Dai sent an email to the chambers of the presiding member requesting that the hearing be re-scheduled and attached a medical certificate from Dr Simon Wong, dated 30 October 2020, certifying that "Ms Dai is not fit to participate in the hearing on 2/11/2020". Ms Dai was advised the same day by the presiding member's chambers that the Full Bench did not intend to reschedule the hearing on the basis of this medical certificate, and that if she sought an adjournment, it would be necessary to attend the hearing to do this.

[8] At the hearing on 2 November 2020, Ms Dai did not seek an adjournment. However, she became distressed while making her oral submissions. This required the hearing to be temporarily adjourned, and for the presiding member to have a private conversation with Ms Dai. When the hearing resumed, directions were made allowing Ms Dai to file further submissions in writing. Ms Dai filed further submissions and other materials on 17 and 25 November and 1 and 4 December 2020.

[9] In the first decision, the Commissioner's reasoning for standing over (rather than dismissing) Ms Dai's anti-bullying application was as follows:

"[39] Much rests on DQ's application for an unfair dismissal remedy. In circumstances where, if reinstated, DQ may be able to demonstrate that there is a risk that bullying will continue there are no grounds to find that the application for orders to stop bullying has no reasonable prospects of success without making some evaluative judgement of the merits of her unfair dismissal application. There is not the information before the Commission that would allow this to occur. To dismiss DQ's application now will deny her the opportunity to pursue her existing application should she be successful in the unfair dismissal application.

[40] I have taken into account that DQ does not seek that I make findings or issue any orders in relation to her application at this point in time but rather that I keep the file open. In any event without cogent reasons I would decline to make any orders (interim or otherwise) in relation to the application as such orders would have no utility at this point in time.

[41] I have taken into account that to not dismiss the application leaves both the school and HV in a situation where they cannot close off this matter. However, dismissing the application does not mean the issue goes away. If DQ is successful in her unfair dismissal application and does gain reinstatement, given the specialised area within which the work she does is performed it is inevitably that the reinstatement will be to the same work area alongside the same people as before the application for orders to stop bullying was made. DQ could, if reinstated, make a fresh application for orders to stop bullying on the facts that existed at the time of the current application - the issue (putting aside the merits of the application) does not go away.

[42] In these circumstances I have decided that I should not dismiss DQ's application. The s.587 application was made by the school purely on the basis that DQ had been dismissed. There is a chance that decision may be found to have been unfair and that DQ may be reinstated (although I make no assessment of the chances of success of either) which will enliven the application for orders to stop bullying so that it may be dealt with on its merits.

[44] If DQ is not successful in the unfair dismissal application in gaining reinstatement or the unfair dismissal application settles prior to hearing without a return to work a further application under s.587 of the FW Act to dismiss the application for orders to stop bullying can be made and will be considered.

[46] The file in relation to the application by DQ for orders to stop bullying will be held pending the determination of the unfair dismissal remedy application. The parties are asked to inform me of the outcome of the unfair dismissal application when it is known."

[10] In her notice of appeal against the first decision, Ms Dai asserts that the appeal was filed within 21 days of the first decision being issued, but then goes on to say in relation to whether an extension of time should be granted:

"I have been also very sick since readying the decision the key words and the barrister had been withdrawn just recently after Commissioner Wilson deliberately rejected all his bubmisssion, which have had by over 30 years employment law expeience 6/4/20 but the last Sunday just delivery to me while my skin has started more more sickness." (reproduced verbatim).

[11] Ms Dai's appeal grounds and submissions are not, as we understand them, directed to the first decision at all, but concern the merits of her disputation with the School and the second decision.

[12] We decline to grant an extension of time to file the first appeal. No reasonable explanation has been advanced for the delay of approximately nine months in filing the appeal. No contention of appealable error in respect of the first appeal is identifiable in Ms Dai's notice of appeal or appeal submissions. The first decision was in fact one made in Ms Dai's favour, so that we do not comprehend why Ms Dai might be aggrieved by that decision.

[13] Accordingly, the first appeal is dismissed as incompetent.

[14] In the second decision, the Commissioner made findings of fact concerning the misconduct allegations which caused Ms Dai to be dismissed. At the outset of his findings, the Commissioner said (referring to Ms Dai by the pseudonym "Louise"):

"[7] There is no question that what transpired in the period between March 2018 when Louise was employed by The School and May 2019 when she was finally dismissed is a very distressing state of affairs; and most of all for Louise. However the employer witnesses are credible and their evidence of poor conduct and behaviour in the workplace is to be accepted, with much of the poor behaviour alleged in their evidence - yelling, failing to listen, failing to follow reasonable and reasoned directions, making false or overblown accusations without a credible base - being repeated in the hearing before me. The matter of mental illness relied upon by Louise was amply evident including during the conduct of the hearing.

[8] The circumstances of Louise's mental illness may explain what went on in the workplace and may even call for reasonable accommodations to be given to her, when reviewing events or requests made of her. In the end though, Louise's circumstances do not excuse what occurred and it is for her conduct and behaviour she was ultimately held accountable by her former employer, which reasonably formed the view that the egregious nature of her conduct and behaviour was misconduct warranting dismissal. My findings, set out in detail below in this decision, find that the conduct alleged occurred and that it was misconduct. I further find that the misconduct, and other matters, accrue to a valid reason for termination of employment."

[15] The Commissioner went on, after dealing with the matters requiring preliminary consideration under s 396 of the FW Act, to outline the factual background and the key events and to deal with the evidence given by the witnesses. In the last respect, the Commissioner made the following findings:

"[26] Except where the context requires a different interpretation, I accept without reservation the evidence of the Respondent's witnesses and prefer their evidence to that of Louise.

[27] Louise's evidence is not accepted by me. Bearing in mind both that English is not her first language and that she suffers to some degree at least from a mental illness it would be appropriate to ordinarily make allowances for minor inconsistencies in recollection or narrative. However, much of what Louise had to say to the Commission was repetitive and self-serving and designed to display a narrative at odds with events that demonstrably occurred. My observation of Louise was that her oral English proficiency is quite high when calm and collected and probably what one would expect of a speaker at upper-high school level. It may be further observed that her oral English is frequently better than her written English. During the hearing she repeatedly took and answered questions in English and frequently did not rely on the interpreter for translation in either direction. However, when she became agitated her English proficiency reduced. She was assisted in the hearing by two very capable interpreters whom she took to criticising on different occasions.

[28] Beyond the question of language proficiency it is to be observed that much of Louise's reasoning to the Commission, in whichever language, was an endeavour on her part to merely repeat in the best favourable light for her what she desired to say and to avoid the question or propositions being put to her. That could well be a product of her mental illness and in that regard it needs to be noted that there is no substantive formal evidence before me about the nature of her illness beyond a few medical and other certificates providing only a basic insight into her illness. It is also to be noted that the sheer volume of what Louise had to say to the Commission would suggest that whatever the nature of her illness she has had a full opportunity to put forward her case. Because of these observations I find myself unable to accept her narrative or reasoning about events which took place."

[16] The Commissioner proceeded to make detailed factual findings about the circumstances which led to Ms Dai's dismissal. It is not necessary to summarise those findings. It is sufficient to say that they detail conduct on the part of Ms Dai which on any reasonable view was incompatible with the continuation of her employment. The Commissioner then dealt with each of the matters required to be taken into account under s 387. With respect to s 387(a), the Commissioner gave detailed consideration to Ms Dai's submissions as to why her conduct did not constitute a valid reason for dismissal, and rejected them. The Commissioner made findings of fact that Ms Dai had engaged in the misconduct which the School contended justified her dismissal, and also accepted that she was not competently performing the duties of her job. The Commissioner's conclusion in respect of s 387(a) was as follows:

"[174] I am therefore satisfied on the evidence that The School held valid reasons for Louise's dismissal related to her person's capacity or conduct (including its effect on the safety and welfare of other employees). Those reasons, as set out above, were her failure to disclose prior to or shortly after employment relevant previous employment disciplinary and medical history; that she was not competently performing the role; and her misconduct associated with the events on and after 9 May 2019."

[17] In respect of s 387(b), the Commissioner found that Ms Dai was notified of some but not all of the reasons for her dismissal and consequently, in relation to s 387(c), found that Ms Dai was not given the opportunity to respond to some of the reasons for her dismissal. The Commissioner concluded with respect to s 387(c):

"[185] While the Respondent can be said to have been procedurally unfair in not disclosing these reasons to Louise and giving her an opportunity to respond, such does not ultimately sway the decision to be given in this matter."

[18] It is not necessary to refer to the Commissioner's findings with respect to paragraphs (d)-(g) of s 387. In relation to s 387(h), the Commissioner took into account Ms Dai's mental illness, and said (footnote omitted):

"[190] Section 387(h) requires taking account of any other matters to be relevant in my determination of this application. One such matter is Louise's mental illness. The formal evidence before the Commission on the subject is scant, with the high point being the assessment given in several of the General Practitioner's certificates and worker's compensation certificates and to a certain extent within the Psychologist's communications. The most they say is that Louise was suffering from "depression and anxiety"; that those matters affected her attention/concentration, her memory (short and/or long term) and her judgement (ability to make decisions); and that those matters combined manifested themselves with "lowered mood, increased distress".

[191] The informal evidence though would show that such diagnosis was hardly profound. All but the matter of depression was likely constantly conspicuous to all concerned at The School from at least 4 September 2018, and was most definitely evident to the Commission throughout the pre-hearing and hearing phases of dealing with Louise's application. Mental illness is a modern calamity and deserves to be taken seriously. People afflicted with mental illness deserve reasonable accommodations to be made by their employer for them to deal with the consequences of the illness. However, what is required is no more than would be required of the employer of someone suffering from any number of other illnesses; employees may be entitled to have lighter duties while they undertake chemotherapy, or it may be reasonable to move a person's starting time and working days because of a permanent incapacity. What is not required for anyone is for a wall to be built around the employee so that employing them means doing things their way and not otherwise."

[19] The Commissioner found that Ms Dai's mental illness and conduct had caused upset and distress to other employees of the School. The Commissioner also found that, insofar as there were any procedural defects in the effectuation of the dismissal, they did not render the dismissal unfair because if all of the matters raised against Ms Dai had been put to her for her response prior to dismissal, "the likely result would be further denials and claims of bullying".[4] The Commissioner then concluded:

"[194] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for Louise's dismissal and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding their being a valid reason for her dismissal that the dismissal was otherwise unfair."

[20] It is necessary to observe that Ms Dai's notice of appeal and written submissions are not readily comprehensible. Her notice of appeal reproduces in full all those parts of the second decision which contains the words or expressions "dishonest", "May 2019" and "November 2018", with those references highlighted. In her grounds of appeal, Ms Dai appears to contend that the highlighted references constitute significant errors of fact, and that none of any "'Dishonest' concerns" had been raised by Ms Dai's previous employers. Ms Dai then proceeds to refer to a diverse range of matters, including particular experiences in her previous jobs, her family's experiences in connection with the Cultural Revolution, the circumstances pertaining to her becoming a union member, and her experience of bullying at a previous school at which she had worked and the psychological injury this had caused her. Ms Dai then gives a detailed retelling, from her perspective, of the events which led to her dismissal. She also revisits at length matters associated with her dismissal from her previous employment with Camberwell Grammar School (CGS) in 2017, which was the subject of a previous unfair dismissal application by her.[5] The propositions which appear to be directed at demonstrating error in the second decision are, as far as we can identify them, as follows:

• the Commissioner relied on dishonest documents produced by the School and failed to find dishonesty on the part of various persons employed by the School;

• in assessing the evidence, the Commissioner failed to take into account that Ms Dai was representing herself for the first 6 days of the hearing and had difficulty maintaining focus, such that at times she gave answers that seemed unrelated to the question asked;

• the transcript was punctuated with repeated directions to Ms Dai about her conduct in the proceedings, including "threats to discontinue them";

• the Commissioner refused Ms Dai's request to go to the toilet during the hearing on 11 November 2019;

• the Commissioner improperly used his discretion to meet the School's best interests by permitting its legal representative to aggravate Ms Dai's psychological conditions, which the Commissioner clearly knew of; and

• the Commissioner threatened to discontinue the hearings "all the time" including in a directions letter dated 14 November 2019, which caused Ms Dai to lose trust and confidence in him, caused her to be admitted to hospital for 7 days for her mental illness, and her forced her to hire a barrister to represent her from 15 November 2019 at the cost of around $15,000.

[21] Ms Dai's contends in her notice of appeal that permission to appeal should be granted because the second decision contains discriminatory language towards her as a Chinese Australian, such as "Notoriously, egregious, disability, dishonest [and] more terrible words". It is difficult otherwise to comprehend what is said about permission to appeal in the notice of appeal, since Ms Dai simply sets out large extracts from the decision and from other documents which are not identified.

[22] Ms Dai's written outline of submissions filed in accordance with the directions are, with respect, simply not comprehensible. The outline recounts matters apparently connected to Ms Dai's allegation that she was bullied while employed in the school, and contains various quoted propositions from a document which we cannot identify and responds to those propositions. Nothing in the outline addresses any aspect of the second decision.

[23] Ms Dai's oral submissions at the hearing were difficult to follow because, as earlier stated, she quickly became distressed and highly agitated. Her further written submissions filed on 25 November 2020 contained the following contentions of error pertaining to the second decision which, as best we can, may be summarised as follows:

(1) All the reasons to dismiss Ms Dai other than the "9/5/19 event" should have not been given any weight by the Commissioner in the second decision. The audio record of the "9/5/19 event" and the photo of the property Ms Dai was said to have tried to remove from the School prove that the reason mentioned in the dismissal letter was invalid.

(2) The evidence given by the School's witnesses was fabricated solely for the purpose of securing Ms Dai's dismissal. The School ignored the evidence that Ms Dai had been bullied. The Commission did not take account of the submissions made on Ms Dai's behalf, and granted the School permission for legal representation contrary to the approach taken in Ms Dai's earlier proceedings against CGS.

(3) The undisclosed allegation relating to the CGS case should not have been given any consideration by the Commissioner, as Ms Dai had honestly answered the pre-employment questions posed by the School to the best of her knowledge. The outcome of the CGS case was on the Commission's website and reported in the Herald Sun newspaper. It was not correct that Ms Dai had lost trust and confidence in the School.

(4) Paragraph [8] of the second decision contains an ambiguous reference to her "former employer" which shows that the Commissioner had already made his mind up about Ms Dai's case. The Commissioner also found that the School's witnesses were credible and Ms Dai was not without considering the evidence, and the Commissioner should have allowed Ms Dai to cross-examine all of the School's six witnesses.

[24] Ms Dai also contended that the public interest favoured her being granted permission to appeal because:

• Ms Dai had 20 years unblemished science service in 6 countries plus 6 years' full-time school employment;

• Ms Dai had been the subject of bullying, and it was necessary to make systematic changes in employment law to create a zero tolerance for bullying;

• Ms Dai's treating medical practitioners have acknowledged that she has difficulty comprehending the English language and the nuances of Western culture, and consequently Ms Dai has difficulty in communicating effectively when she has no visual cues;

• it would be in the public interest to determine whether the Commissioner's views can override both the medical professionals' views as well as the views of a senior Australian employment law professional;

• it was necessary to permit Ms Dai to restore her reputation; and

• Ms Dai's dismissal by the School and CGS were in the same pattern but with completely opposite outcomes.

[25] Ms Dai's submissions also contained various factual assertions and grievances in relation to her employment both with the School and with CGS.

[26] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[6] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[27] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[28] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[7] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[8] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[9]

[29] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[10] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[11]

[30] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[12] However it is necessary to engage with those grounds to some degree in order to consider whether they raise an arguable case of appealable error.

[31] We are not satisfied that it would be in the public interest to grant permission to appeal. Reading Ms Dai's notice of appeal and her submissions as generously as we can, we simply cannot identify any reasonably arguable contention of error in respect of the second decision. Ms Dai's notice of appeal and submissions, as we have earlier set out, contain a number of procedural complaints about the way in which the Commissioner conducted the proceedings. With one possible exception, those complaints are without substance. We consider that the Commissioner made all due allowances for the fact that Ms Dai was, for the first 6 days of the hearing, representing herself, that she had mental health issues and that she spoke English as a second language and required the services of an interpreter. The Commissioner, we consider, took all reasonable steps to explain to Ms Dai the substantive issues required to be determined and the hearing procedure which he proposed to adopt, and granted adjournments when necessary to allow Ms Dai to compose herself. Notwithstanding this, Ms Dai repeatedly engaged in non-cooperative and disruptive behaviour, including refusing to answer questions, interrupting others and generally not complying with procedural directions made by the Commissioner. This required the Commissioner to take steps to manage Ms Dai's behaviour from time to time.

[32] We reject Ms Dai's proposition that the Commissioner continually threatened to "discontinue" her application. Ms Dai provided no identification of when this was said to have occurred during the hearing. Having perused the transcript, we can find no instance of when this occurred in the manner alleged. What Ms Dai might be referring to is that, during the hearing on 11 November 2019, the Commissioner twice threatened to exclude Ms Dai from the hearing while her witness Mr Wang was giving evidence, and to disregard Mr Wang's evidence.[13] This happened because Ms Dai, who was examining Mr Wang via the telephone with the assistance of the interpreter, on a number of occasions addressed Mr Wang directly in Mandarin immediately after she had asked a question and before he had answered, despite being warned not to do so.[14] We consider that the Commissioner's response to this conduct was reasonable in the circumstances.

[33] The written directions communicated to the parties by the Commissioner on 14 November 2019 followed behaviour on the part of Ms Dai at the hearing on 13 November 2019 which appears to have been not only disruptive but also troubling and indicative of mental distress. This caused the Commissioner to include in the directions the following requirement:

"...As a result, I give a Direction that Ms Dai is to provide to the Commission no later than 24 hours prior to the next scheduled hearing date a certificate prepared by a suitably qualified medical practitioner certifying;

• that they have examined Ms Dai after the date of these Directions;

• that they have read and understood these Directions;

• that in their professional opinion Ms Dai is fit to participate in the future hearings of her case before the Fair Work Commission; and

• that, if she is not to be represented by a lawyer in all of the future hearings of her case, that she is fit to conduct her case, taking into account;

• her need to be able to cross-examine four witnesses from St Michael's Grammar School over a period of two working days; and

• follow such directions as may be given by the Commission to her about the conduct of the case."

[34] Following this, the Commissioner stated in the directions:

"Should Ms Dai not provide such a certification within the time period referred to or such certification as Ms Dai provides is either non-compliant with the foregoing Directions or indicates that Ms Dai is not fit then the dates set for the resumption of the matter will be vacated and instead the application will proceed to a Mention Hearing on a date and time to be fixed."

[35] We consider that, in the unusual circumstances facing him, this was a reasonable approach to be taken by the Commissioner. As the Commissioner elsewhere observed in the directions, the behaviour of Ms Dai gave rise to concern about not only her own health and safety, but also that of the School's representatives and the Commission's staff. We note that Ms Dai's contention that the directions forced her to hire a barrister is false. Counsel for Ms Dai had already given notice to the Commission that he would seek to represent her at future stages of the hearing, as the directions themselves note.

[36] The exception referred to earlier occurred during the hearing on 11 November 2019, when the Commissioner refused a request on the part of Ms Dai to go to the toilet.[15] This occurred while Mr Wang was being cross-examined and in the course of a sequence of disruptive and non-compliant behaviour on the part of Ms Dai. Although it is not possible to capture the full context of the Commissioner's refusal from the transcript, we accept that it is arguable that this was not the ideal course of action. However, very shortly afterwards, Ms Dai departed the courtroom of her own volition, presumably to go the toilet, and the Commissioner consequently adjourned the hearing for a short period.[16] It cannot be concluded that any prejudice to Ms Dai resulted from this incident or that it has any implications for the content or outcome of the second decision.

[37] We turn now to the small number of matters raised in Ms Dai's submissions which actually addressed the second decision. The proposition that the use of certain language by the Commissioner in the second decision to criticise Ms Dai's conduct and behaviour is discriminatory against her as a Chinese Australian is completely baseless. There is no criticism of Ms Dai in the second decision that can in any way be related to her ethnicity. The propositions that the Commissioner accepted evidence fabricated by the School, ignored Ms Dai's submissions and did not allow her to cross-examine witnesses have no merit. No arguable case of error is disclosed by the fact that the Commissioner granted the School permission for legal representation in circumstances where the respondent had not been granted permission in Ms Dai's earlier proceedings against CGS. Indeed, having regard to the manner in which the hearing progressed, we consider that the Commissioner was entirely correct in granting the School permission for legal representation. The other matters raised by Ms Dai are inarguable and merely demonstrate a preference for a different result.

[38] We consider that the second decision discloses that the Commissioner took an entirely orthodox approach to Ms Dai's application, analysed the evidence in detail, made carefully considered findings of fact, and took into account and considered the case advanced by Ms Dai. The result does not manifest an injustice, nor is it counter-intuitive. Ms Dai's appeal does not raise any issue of importance or general application.

[39] Accordingly, in respect of the second appeal, permission to appeal is refused.

[1] [2019] FWC 4530

[2] [2020] FWC 758

[3] [2020] FWC 6895

[5] In [2017] FWC 5561, Ms Dai's dismissal from Camberwell Grammar School was found to be unfair. In [2017] FWC 6315, Ms Dai was refused the remedy of reinstatement but was awarded compensation. In [2018] FWCFB 1362, permission to appeal from the remedy decision was refused.

[6] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[7] [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]

[8] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[9] [2010] FWAFB 5343, 197 IR 266 at [27]

[10] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[11] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

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

[13] Transcript, 11 November 2019, PNs 4307, 4315

[14] Ibid at PNs 4280, 4289-4291, 4295-4297, 4311-4315, 4319-4320

Printed by authority of the Commonwealth Government Printer