Dr Dongguang Li v Edith Cowan University
[2014] FWCFB 2857
•19 MAY 2014
[2014] FWCFB 2857 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Edith Cowan University
(C2012/3248)
Edith Cowan University
v
Dr Dongguang Li
(C2012/3252)
VICE PRESIDENT HATCHER | SYDNEY, 19 MAY 2014 |
Appeals against decision [2012] FWA 1887 of Deputy President McCarthy at Perth on 9 March 2012 in matter number U2011/4259.
[1] Dr Dongguang Li was dismissed from his position as Associate Professor, School of Computer and Security Science, at Edith Cowan University (the University) effective from 11 January 2011. Dr Li made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of that dismissal on 18 January 2011. Dr Li’s application was allocated to Deputy President McCarthy for hearing. On 9 March 2012 the Deputy President issued a decision 1 (Decision) in which he found that there was a valid reason for the dismissal, that the dismissal was nonetheless unfair, that reinstatement was not an appropriate remedy, and that Dr Li should receive an amount of compensation equal to two months’ pay. The Deputy President issued a separate order (Order) giving effect to his determination concerning compensation.2
[2] On 30 March 2012, Dr Li lodged a notice of appeal against the Decision. On the same day, the University lodged its own notice of appeal against the Decision and the Order. Permission to appeal under s.604 of the Act is required in respect of both appeals. Dr Li filed an amended notice of appeal on 23 April 2012.
[3] There was a considerable delay in the hearing of the appeals due to events beyond the Commission’s control. The appeals were originally listed to be heard before a differently constituted Full Bench in Perth on 3 May 2012. However, a short time after the hearing had commenced on that day Dr Li, who was representing himself, provided the Full Bench with two medical certificates which placed into question his capacity to properly conduct his appeal. As a result, the hearing was adjourned, but not before Dr Li had been provided with assistance in obtaining pro bono legal representation. Legal representation was ultimately able to be arranged for Dr Li, in that on 9 August 2012 a solicitor filed Form F53 notices that he was commencing to act for Dr Li in each appeal. There was a further directions hearing in the matter on 5 September 2012, at which directions were issued for the filing of amended grounds of appeal and additional written submissions in the matter, on the basis that the appeals would be determined entirely on the basis of the written submissions filed. However, the amended appeal grounds and submissions were not filed in accordance with the directions. After a considerable delay, the solicitor for Dr Li advised the Commission on 20 February 2013 that, after a further meeting scheduled with his client for 25 February 2013, “one of two things will happen ... I will receive instructions to file the Grounds of Appeal settled by counsel or I will file a Notice of Ceasing to Act”. On 27 February 2013, Dr Li’s solicitor filed Form F54 notices that he was ceasing to act in each appeal.
[4] The Full Bench for the appeals was subsequently reconstituted. On 4 May 2013, Dr Li advised the Commission by email, in response to a communication from the Associate to the Presiding Member (Vice President Hatcher), that he intended to proceed with his appeal, that he sought the opportunity to make oral submissions in support of his appeal, and that he did not consent to the matter being determined without a hearing (that is, on the basis of the written submissions that had been filed). On 29 May 2013, a further directions hearing was conducted in Perth. Dr Li was unable to attend this directions hearing because of illness, and was represented by his wife, Ms Rongrong Wang. She advised the Commission that Dr Li was in no position to conduct his appeal personally because of illness, and that he had been unable to obtain further legal representation. The Commission made directions requiring, among other things, that Dr Li file a medical report concerning his illness. This medical report was filed on 3 July 2013, and stated amongst other things that Dr Li would not be fit to conduct his appeal for at least six months. The matter was the subject of a further directions hearing on 9 August 2013 (conducted in Sydney, with a video-link to Perth). No appearance was made by or on behalf of Dr Li at this directions hearing.
[5] The appeals were then listed for hearing on 11 December 2013, on the basis that this was over six months after the medical report filed on 3 July 2013. However, on 27 November 2013 Ms Wang by email applied for a further adjournment of the appeals on the basis of Dr Li’s “ongoing mental illness”. Accompanying this email was a medical certificate and a written submission in support of Dr Li’s appeal. After some further communications between the parties and the Commission, the adjournment was granted and the appeals were listed for hearing on 24 March 2014. On 6 March 2014, Dr Li confirmed that he would represent himself at the hearing of the appeals with the assistance of his wife, Ms Wang, and requested that the Commission arrange an interpreter to assist him.
[6] The hearing of the appeals proceeded on 24 March 2014 before a further reconstituted Full Bench. An interpreter was made available in accordance with Dr Li’s request. Dr Li was able to articulate the features of his appeal which he wished to emphasise in a way which was sufficiently comprehensible to us. We were also aided by the written submissions which had been filed on 27 November 2013. We gave leave to Dr Li to file a further written submission giving greater details as to one aspect of his appeal, and he filed such a submission on 30 March 2014.
The Decision
[7] In his Decision, the Deputy President commenced by identifying the reasons relied upon by the University to justify Dr Li’s dismissal as follows:
“[3] Li’s employment was terminated on grounds of serious misconduct.
[4] In the Employers Response to the application lodged ECU asserted that Li:
- Plagiarised a paper presented by Associate Professor Zhihu Huang entitled “A Novel Segmentation Approach for Ballistics Image Identification” for use in Dr Li’s Paper to the Second Australian Security and Intelligence Conference entitled “Firearm Forensics Based on Ballistics Cartridge Case Image Segmentation Using Colour Invariants”.
- Plagiarised four (4) separate papers and misrepresented them as him being the sole author as follows:
i. A Novel Ballistics Imaging System for Firearm Identification - Dongguang Li;
ii. Colour Seal Segmentation and Identification - Dongguang Li;
iii. Analysis of Moment Invariants on Image Scaling and Rotation ~ Dongguang Lil;
iv. A Novel Binarization Algorithm for Ballistics Firearm Identification Dongguang Li.
(the Papers)
- Misled ECU regarding the authorship of the Papers.
- Breached ECU’s policies regarding authorship of research and the Australian Code for the Responsible Conduct of Research regarding authorship of research.”
[8] The Deputy President then dealt with some procedural issues which arose in the course of the hearing of Dr Li’s application. Because Dr Li’s appeal submissions alleged that, in substance, he was denied procedural fairness by the Deputy President in a number of respects, it is necessary to set out in full what the Deputy President said in respect of these procedural issues:
“[5] This matter was not without its difficulties. Li’s native language is not English and an interpreter was involved for the majority of proceedings. Li could understand and speak English but it appeared to me that he had some difficulty in precise understanding of English and nuances and subtleties that arose during proceedings. This resulted in Li sometimes speaking on his own behalf, sometimes asking questions of witnesses directly and sometimes relying on an interpreter for both purposes.
[6] Li provided a 44 page, 220 paragraph outline of submissions. He stated that ‘I am not in a good state of health and with poor memory and difficult concentration, the above statements and the Outline of Submissions of Dongguang Li were orally told to my wife Rongrong Wang who managed to write in Chinese and then got them translated into English with the help of a professional translation service.’
[7] In an effort to overcome some of these difficulties I required lodgement of documentation with an aim to facilitate proceedings and to better enable Li’s understanding of the proceedings and what ECU was endeavouring to establish. This included requiring parties to provide questions to be put to witnesses in cross examination prior to that evidence being heard and even written responses to those questions. I also allowed Li’s wife to sit next to him during his evidence as I thought this might provide a calming and supportive presence for him.
[8] The representatives of ECU fully cooperated in these efforts, providing ample material and documentation to the Tribunal and to Li. Li appeared to have little regard to the extent of resources devoted to the proceedings and the efforts ECU made. He appeared to me to take issue with almost everything, whether it was a substantive or procedural matter. For example, Li initially wanted to call over 60 witnesses and seemed to expect me to order that they all attend. ECU’s representatives were tolerant throughout the proceedings and clearly conscious of its difficulties and usually avoided taking objections they could easily have raised.
[9] Unfortunately these efforts to facilitate proceedings were only marginally effective. Despite these efforts, the proceedings involved 6 days of hearing and substantial documentation.”
[9] The Deputy President then dealt with the question of whether Dr Li’s dismissal was unfair taking into account the matters identified in s.387 of the Act. The Deputy President did not accept that Dr Li had engaged in plagiarism, but did accept that in causing papers to be published under his name alone without identifying as co-authors other persons who had significant input into the writing of those papers and the conduct of the underlying research, Dr Li had engaged in professional misconduct. The Deputy President said:
“[17] I do not consider Li’s conduct to be acts of plagiarism but rather a failure to follow academic authorship standards and protocols. I consider that Li was not the sole person involved either in the research, or in the development of the papers from that research. He might well have been the main instigator of the research projects, but it is clear to me that he was not the only person involved either in the research or the writing of the papers.
[18] I therefore find that Li did commit acts of professional misconduct by publishing or allowing the publishing of papers under his name alone where others, at least, should have been included as co-authors or indeed, at least acknowledged as having contributed.”
[10] On the basis of those findings, the Deputy President concluded that there was a valid reason for the dismissal:
“[26] I find that Li did engage in conduct, by publishing or allowing the publishing of papers under his sole authorship when others were involved in the research and / or the writing of the papers, constituting misconduct of such a nature that there was a valid reason for his dismissal.”
[11] In respect of whether the University had given Dr Li an opportunity to respond to the matters alleged against him, the Deputy President was critical of the fact that the University had made findings concerning those matters in Dr Li’s absence, notwithstanding that Dr Li had travelled to China during the relevant period without the University’s permission:
“[22] The misconduct hearing was conducted in Li’s absence.
[23] Throughout the oral evidence of Professor Hackling it was clear that the Committee was conscious of Li’s inability to attend but they nevertheless proceeded and made conclusions in a report they forwarded to the Vice Chancellor.
[24] Whilst Li should have remained in Perth and should have sought permission to travel to China, in my opinion, that conduct of Li does not then justify conducting a hearing in Li’s absence and making findings about his conduct without Li having the opportunity to be present. A proceeding involving allegations of professional misconduct by an academic, particularly involving allegations of plagiarism or authorship disputes, clearly has serious career implications. ECU not delaying its deliberations, or at the very least delaying its report and findings, to enable Li to present his defence of the allegations was, in my view, a fundamental denial to Li of his rights.
[25] I therefore find that ECU did not provide Li with a proper opportunity to provide an explanation regarding his conduct.”
[12] Having dealt with the other matters he was required to take into account under s.387, the Deputy President came to the conclusion that Dr Li’s dismissal was unfair because of the procedural flaws he had earlier identified, saying:
“[29] A matter I do consider relevant and very important is the nature of Li’s position and the implications of the nature of the allegations on his career. Allegations of the nature made here and the effect it would have on career prospects are far more serious in matters such as this one. Every opportunity should have been given to Li to present his explanations to the Misconduct Committee in person and conclusions should not have been reached until he had.
...
[31] In considering the above matters that I must have regard to, I have given substantive weight to my finding that the procedure undertaken by the Misconduct Committee was flawed for the reasons explained above. When all of the matters I must have regard to are taken into account, I find that Li’s dismissal was unfair.”
[13] The Deputy President then turned to the question of remedy. He found that the primary remedy of reinstatement was not appropriate as follows:
“[32] I do not consider that reinstatement is appropriate in this case. I consider that Li’s evidence and conduct throughout the proceedings displayed beyond any doubt that if Li were reinstated, it would be impossible for ECU to establish any workable relationship with him regardless of what goodwill they might show or the extent of any efforts they might make to re-establish a relationship. I regard the relationship as being soured to the point of it being unrecoverable.”
[14] The Deputy President then assessed the amount of compensation as being equivalent to two months’ salary, on the basis that two months was the maximum amount of additional time the employment relationship would have lasted had the University adopted an adequate procedure for the consideration and determination of the allegations made against Dr Li. 3 In doing so, the Deputy President made it clear that, but for the procedural inadequacies identified, he would not have found the dismissal to be unfair.
Dr Li’s appeal grounds and submissions
[15] It is somewhat difficult to identify precisely the grounds of appeal, and the submissions in support of those grounds, which are pressed by Dr Li in his appeal. His amended notice of appeal filed on 23 April 2012 contained 26 grounds of appeal. Those grounds may conveniently be grouped into the following propositions:
(1) The Deputy President erred in finding that there was a valid reason for Dr Li’s dismissal based on the conclusion that he had committed professional misconduct. The real reason for his dismissal was a complaint he had made alleging serious misconduct on the part of his line manager, Professor Craig Valli, or his temporary absence from work because of illness and injury, or because he filed a complaint or participated in proceedings against the University (grounds 1, 2, 3 and 21).
(2) The Deputy President erred by ignoring the fact that he was not paid any period of time in lieu of notice or his accrued leave entitlements upon being dismissed (ground 4).
(3) The Deputy President erred by ignoring the fact that Dr Li was suffering a “severe medical psychiatric condition” when he was dismissed, and by not taking into account that the University had engaged in unlawful impairment discrimination and/or mental disability discrimination against Dr Li (grounds 5, 9 and 22).
(4) There were procedural difficulties in the hearing before the Deputy President which meant that Dr Li did not receive a fair hearing, including that the University “presented emails from my former ECU mailbox ... without offering me the equal access to my former ECU mailbox”, that there was a lack of understanding on Dr Li’s part as to what was happening, a problem with an interpreter who spoke Cantonese rather than Mandarin, and a time limitation of 30 minutes placed on his cross-examination of witnesses (grounds 6 and 7).
(5) The Deputy President erred by not taking into account workplace bullying and victimisation Dr Li had suffered for three years at the hands of Professor Valli, and by refusing Dr Li the opportunity to question Professor Valli about these matters (ground 8).
(6) The Deputy President erred by not ordering the remedy of reinstatement. The issue of whether the relationship between Dr Li and the University had soured to the point of being unrecoverable was never discussed during the hearing and was baseless. Given his age, his employment prospects, his mental illness, and the financial loss he had suffered because of dismissal, reinstatement was the only appropriate remedy. Dr Li had good working relationships with all his previous work colleagues, except for Mr Valli, and his work had been valuable to the University (grounds 10-15 and 17-19).
(7) Dr Li had been forced to withdraw a workers’ compensation claim by a threat of dismissal, and the Deputy President erred by ignoring this unlawful behaviour by the University (ground 16).
(8) The Deputy President erred in finding that there was no unreasonable refusal to allow a support person to be present to assist in discussions relating to his dismissal (ground 20).
(9) The Deputy President erred by ignoring the fact that the University’s lawyers had illegally put pressure on Dr Li by intentionally serving documents on him at after-hours times and by illegally obtaining evidence overseas (ground 23).
(10) The Deputy President erred by finding that Dr Li’s explanation for travelling to China was not convincing (ground 24).
(11) Two of the University’s witnesses, Associate Professor Zhihu Huang and Dr Jinsong Leng, had perjured themselves in specified respects, and the Deputy President erred by ignoring this or taking their evidence into account (grounds 25 and 26).
[16] The written submissions filed by Dr Li on 27 November 2013 proceeded by reference to six stated grounds of appeal. These are presumably the amended grounds of appeal that were foreshadowed by the former legal representatives but never filed by way of an amended appeal notice. Grounds 1 and 2 in the submissions broadly correspond to proposition (1) above but focussed on the proposition that there was “no evidence” to support the valid reason finding and raised an additional issue of a failure to give adequate reasons. Ground 3 alleges that in considering the appropriateness of reinstatement the Deputy President took into account an irrelevant consideration and denied Dr Li procedural fairness by taking into account Dr Li’s conduct during the hearing but failing to put him on notice that he intended to do so and giving him the opportunity to make submissions about it. Ground 4 also deals with the Deputy President’s refusal of the remedy of reinstatement, and alleges error on the basis that the Deputy President failed to take into account relevant considerations such as Dr Li’s length of service, the absence of previous warnings, the fact that dismissal was not recommended by the University’s Misconduct Committee, the commission of similar breaches of standards by the alleged co-authors of Dr Li’s papers against Dr Li, the absence of likely future breaches, and that the alleged misconduct could not be proven. Ground 5 corresponds with proposition (3) above. Ground 6 corresponds with propositions (5) and (7) above, and involves the contention that the dismissal was unfair because it was unlawful.
[17] The written submissions also contended that permission to appeal should be granted because the Decision manifested an injustice in that (a) the University’s allegation of plagiarism was not made out, (b) the Deputy President nonetheless found that a valid reason existed for termination, and (c) that reinstatement was not appropriate because of irrelevant considerations.
[18] Dr Li’s oral submissions at the hearing of his appeal focussed upon propositions (3)-(6) above. In relation to proposition (1), Dr Li contended that the allegations of professional misconduct against him should be re-heard by the University’s Misconduct Committee upon him being reinstated, but did not otherwise deal with the evidence concerning those allegations. In relation to proposition (4), Dr Li went beyond the matters identified in his appeal notice and identified further alleged procedural defects in the hearing before the Deputy President, including that he was denied the opportunity to make a closing submission and that his wife, who was representing him, was not allowed to speak during the hearing. Dr Li was given the opportunity to file a further written submission identifying, by reference to the transcript, the instances where he contended he was denied a fair hearing. Dr Li filed a further written submission in that connection on 30 March 2014.
Dr Li’s appeal - consideration
Valid reason finding
[19] Having regard to the various grounds of appeal and the written and oral submissions advanced in support of Dr Li, we consider that there are four main issues which we must deal with in this appeal. Given the uncertainty of the appeal grounds and the delays involved in Dr Li presenting his submissions we will deal with these issues in somewhat more detail than might otherwise have been necessary to determine the initial question of whether permission to appeal should be granted. The first issue is the challenge to the Deputy President’s finding that there was professional misconduct on the part of Dr Li which constituted a valid reason for his dismissal (see proposition (1) identified above and Grounds 1 and 2 of the written submissions of 27 November 2013). This challenge was not developed in Dr Li’s oral submissions, and we must primarily rely upon the written submissions to deal with Dr Li’s case in this respect. We also note that the import of the challenge to this finding for the Decision as a whole was never explained. Dr Li succeeded in obtaining a finding that his dismissal was unfair, notwithstanding that there was found to be a valid reason for his dismissal. It is unclear whether Dr Li was asking us to quash the Decision in its entirety, including the finding that his dismissal was unfair, or whether he only wanted us to quash that part of the Decision which concerned remedy. If it was the latter, it was not articulated what the consequence of any appellable error with respect to the Deputy President’s valid reason finding would have on his conclusions as to remedy. In any event, we will deal with the challenge to that finding in the terms in which it was presented.
[20] We consider that the evidence clearly established that Dr Li caused to be published four academic papers identifying himself as the sole author, in circumstances where those papers were to a very significant degree written by other academics (principally Associate Professor Zhihu Huang and to a lesser extent Dr Jinsong Leng and Dr Shuyu Chen). This conduct was in breach of the Australian Code for the Responsible Conduct of Research and the University’s policy on the conduct of research which incorporated a requirement to comply with that Code. It was in our view capable of being characterised as professional misconduct, since it compromised what was described in the University’s policy as the “quality, integrity and originality of research practice”. The submission that there was no evidence to support the findings of the Deputy President in this respect must be rejected.
[21] Dr Li, in his written submission, said that his conduct, as found by the Deputy President, did not amount to serious misconduct justifying dismissal in accordance with the general law or the terms of the enterprise agreement which applied to Dr Li’s employment. We do not accept that submission. Section 387(a) requires the Commission to take into account whether “there was a valid reason for the dismissal related to the person’s capacity or conduct”. A valid reason is one that is sound, defensible or well-founded. It is not necessary in this connection for an employer to demonstrate serious misconduct such as would justify summary dismissal. 4 Therefore even if the valid reason found by the Deputy President did not constitute serious misconduct, that does not amount to appellable error. We consider that the professional misconduct found by the Deputy President to have occurred was a sound, defensible, well-founded and therefore valid reason for dismissal.
[22] We further do not accept that the Deputy President failed to give sufficient reasons for his conclusion that Dr Li’s conduct as found constituted professional misconduct and a valid reason for dismissal. The test is whether the “the reasons given ... articulate the essential grounds for reaching the decision and ... address material questions of fact and law in a manner which discloses the steps which lead to a particular result”; it is not however necessary to “spell out every detail in the reasoning process”. 5 The conduct of Dr Li, a senior academic, in publishing papers solely under his own name which were, to a significant degree, the result of the work of other academics was capable of being characterised as professional misconduct without the need for detailed reasoning to explain that conclusion. Indeed it was a conclusion which verged on the self-evident.
[23] Finally, we do not accept the proposition that the Deputy President erred in his finding that there was a valid reason for the dismissal because that reason was not the real reason for the dismissal. Although it is the case that Dr Li made formal complaints about various matters during the period in which the investigation into the plagiarism allegations made against him was being conducted, we were not taken to any evidence which would satisfy us that Dr Li’s complaints were the real reason for his dismissal. We consider that the evidence makes it completely clear that the real reason for the University’s dismissal of Dr Li was its stated reason. The Deputy President was correct in addressing the valid reason consideration on this basis.
Refusal of reinstatement remedy
[24] The second issue is Dr Li’s challenge to the Deputy President’s conclusion that reinstatement was not the appropriate remedy (see proposition (6) above and Grounds 3 and 4 of the written submissions of 27 November 2013). We do not consider that Dr Li has succeeded in identifying any appellable error in this part of the Decision. The power conferred in the Commission by ss.390 and 391, once a dismissal has been found to be unfair, to grant or withhold the remedy of reinstatement involves the exercise of a broad discretion in which no one consideration and no combination of considerations is necessarily determinative of the result and in which the decision-maker is allowed some latitude as to the choice of the decision to be made. 6 In the exercise of that discretion, the question of whether a harmonious and productive employment relationship can be restored if a reinstatement order is made will clearly be a relevant consideration.7 In the hearing before the Deputy President, Dr Li made a wide range of serious allegations against the University itself and various employees of the University who gave evidence, including Professor Valli, Professor Finlay-Jones, Professor Hackling, Dr Leng and Ms Cuthbert. Notwithstanding what we consider to be plain evidence that Dr Li engaged in professional misconduct, Dr Li insisted that his dismissal by the University had been motivated by ulterior matters so that the real reasons for his dismissal had not honestly been disclosed. In that context, we consider that it was open to the Deputy President to give these matters critical weight and to conclude that a workable employment relationship between Dr Li and the University could not be re-established and therefore that reinstatement was not appropriate. It is difficult to conceive that any of the other considerations, which Dr Li contended in his written submissions ought to have been taken into account, could otherwise have justified the making of a reinstatement order if the re-establishment of a workable employment relationship was not possible.
[25] We do not consider that because Dr Li was not put on notice that the way he conducted his case during the hearing would be taken into account on the question of remedy, he was thereby denied procedural fairness. Because the practicability of the restoration of the employment relationship will obviously always be a germane consideration in relation to the remedy of reinstatement, we do not think that it is necessary for a member of the Commission to have to point this out specifically in the course of the hearing of an unfair dismissal case. In considering the question of remedy, the Deputy President was put in the difficult position that neither Dr Li nor the University had in their closing written and oral submissions said anything at all about remedy. Their submissions were confined to the issue of whether the dismissal was unfair. There was never any suggestion that the hearing should be split so that unfairness and remedy would be dealt with separately. In those circumstances, we do not think the Deputy President can fairly be criticised for canvassing matters in his decision on remedy which were not raised in the hearing before him.
Mental illness at the time of the dismissal
[26] The third issue is Dr Li’s contention that he was suffering a mental illness at the time of his dismissal and that, in dismissing him, the University thereby engaged in unlawful discrimination (proposition (3) and Ground 5 of the written submissions of 27 November 2013). In his oral submissions, Dr Li took us to various parts of the evidence which he said demonstrated that he was suffering a mental illness at the time that the University was considering the plagiarism allegations against him and at the time he was dismissed. It is not necessary for the details of that evidence to be described; it is sufficient to say that we accept Dr Li’s submission in this respect. However, it does not follow from our acceptance of this submission that the Deputy President erred by not taking this matter into account in considering Dr Li’s unfair dismissal application. Dr Li did not identify any evidence which would support the conclusion that his dismissal was in any way motivated by his mental illness and, as earlier stated, it is clear on the evidence that the University’s findings as to the plagiarism allegations against Dr Li were the reason for the dismissal. There is therefore no basis for the conclusion that Dr Li’s dismissal constituted an act of unlawful discrimination. Dr Li’s illness did not render him immune from dismissal for reasons unconnected with that illness. 8
[27] It also appeared to be suggested in Dr Li’s oral submissions that because the plagiarism allegations against Dr Li were investigated and dealt with at a time during which he suffered from a mental illness, Dr Li was denied procedural fairness by the University in that he was in no position to respond properly to the allegations at that time, and that the Deputy President erred by not taking this into account. We do not accept this submission for two reasons. Firstly, it does not appear to us that a submission of this nature was put to the Deputy President, at least not in any clearly comprehensible terms. An appellant will ordinarily not be permitted to allege error in an appeal on the basis of a case that was not squarely raised at first instance. 9 Secondly, Dr Li was in any event the beneficiary of a finding by the Deputy President that he had been denied procedural fairness by the University, with that finding being the foundation for the conclusion that his dismissal was unfair. It is therefore difficult to conceive how, if the Deputy President had found that Dr Li was also denied procedural fairness because of his mental illness, it could have affected the result. It was certainly not relevant to the Deputy President’s decision not to reinstate Dr Li. Such a finding might, arguably, have affected the quantification of compensation (in that Dr Li may have been employed for longer if the University had waited until Dr Li had recovered from his illness before dealing with the plagiarism allegations), but Dr Li has not appealed the quantum of compensation that was ordered by the Deputy President.
Procedural issues
[28] The fourth issue is Dr Li’s contention that there were procedural defects in the hearing before the Deputy President which resulted in Dr Li not receiving a fair hearing (see proposition (4) above, as explained in the oral submissions and the further written submission of 30 March 2014). We do not accept this. We are satisfied that the Deputy President made every reasonable effort to ensure that Dr Li received a fair hearing, taking into account his mental health, his language difficulties and the fact that he was self-represented. The specific matters raised by Dr Li do not, we consider, have any substance. We will deal with them in turn.
[29] Firstly, the issue raised about the University “present[ing] emails from my former ECU mailbox ... without offering me the equal access to my former ECU mailbox” could not amount to a denial of procedural fairness. It was not suggested by Dr Li that he had sought an order for the production of any documents in this connection, let alone that the Deputy President had refused to make such an order.
[30] Secondly, as to the interpreters, the transcript does not disclose that Dr Li ever made a specific complaint that he was having difficulty in understanding what was happening because any interpreter used spoke Cantonese rather than Mandarin. Dr Li referred us to the transcript for 1 July 2011, at which a different interpreter than that used on the previous day (Mr Sao Duc Luong) was sworn in. The transcript does record the Deputy President saying that Dr Li had raised with his Associate a concern that “the level of interpretation was not such that is facilitated him in his evidence at all”, but the Deputy President went on to say that “I’ll take all of those sorts of circumstances and things into account in weighing up how I assess the evidence”. 10 There was then an exchange between the Deputy President and the solicitor for the University as follows:
“MR DRAKE-BROCKMAN: Ironically the first interpreter did seem to speak very good Mandarin, so - - -
THE DEPUTY PRESIDENT: Well, as a matter of fact we were endeavouring to - and I'm not criticising the current interpreter, but there apparently are different levels of interpreters that are available.
MR DRAKE-BROCKMAN: Yes.
THE DEPUTY PRESIDENT: And the initial interpreter was a level 1, the previous interpreter was a level 2 and I think the interpreter today is a level 2.
MR DRAKE-BROCKMAN: Yes.
THE DEPUTY PRESIDENT: I'll just have to, I think in all the circumstances, take the interpretation issue into account as to how I assess the evidence.
MR DRAKE-BROCKMAN: Yes. Well, apparently interpreter 1 is a credit to the University of Western Australia. That's the classic Mandarin.
THE DEPUTY PRESIDENT: All right. Okay, if the interpreter could be sworn in.”
[31] At no stage was any complaint made by Dr Li that any previous or current interpreters spoke Cantonese rather than Mandarin. During 1 July 2011, and the previous hearing day on 28 June 2011, Dr Li was giving evidence and was being cross-examined; the transcript discloses that Dr Li for the most part answered the questions asked of him in clear English without the use of the interpreter. We cannot identify any specific instance of Dr Li not being able to understand what was being put to him in a way which could have affected the outcome of the proceedings, and none was identified by Dr Li in his submissions.
[32] Thirdly, given the large number of witnesses involved, we do not consider that it was unreasonable for the Deputy President to place some time limits on the cross-examination of witnesses. Under ss.589, 590 and 591 of the Act, the Commission has control over its own procedure and the way in which it receives evidence and other information. The use of those powers to limit the capacity of a party to question witnesses could only lead to appellable error if it amounted to a denial of a reasonable opportunity to present the party’s case. The only specific complaint in this respect by Dr Li was that he was denied the opportunity to question Professor Valli about “his unlawful workplace bullying and victimisation”. However, the transcript discloses that at the hearing on 27 September 2011, Dr Li was permitted to cross-examine from 11:05 am until the luncheon adjournment at 1:07 pm. When the hearing resumed after that adjournment at 2:23 pm, the Deputy President expressed a concern about the time the matter had taken, and indicated that he would permit Dr Li to continue with and finish his cross-examination of Professor Valli, and then require Dr Li to put his questions for the remaining witnesses in writing, with those witnesses to respond in writing, and that Dr Li could then cross-examine those witnesses for half an hour each on the next hearing day. 11 Dr Li then resumed his cross-examination of Professor Valli, which continued until 3:43 pm. Dr Li had not finished his cross-examination by that time, and the Deputy President refused to let him continue. Instead, he allowed Dr Li the opportunity to put further questions to Professor Valli in writing, to which Professor Valli could respond.12 Dr Li subsequently availed himself of this opportunity, and set out 139 questions in writing, each of which was answered by Professor Valli in writing. In those circumstances, we consider that Dr Li had a reasonable opportunity to ask whatever he wanted to ask of Professor Valli. Dr Li has not otherwise identified any instance where the time limitations upon his cross-examination affected his capacity to present his case.
[33] Fourthly, we do not accept that Dr Li was denied the opportunity to make a closing submission. The transcript of the final day of the hearing on 17 October 2011 shows that the following occurred at the end of the day:
“THE DEPUTY PRESIDENT: Thank you. Is there anything you want to say, Mr Li? This is your last chance to say anything?
MR LI: I have received a response, a brief overview of oral arguments and there was one item. They said my son sent an email on behalf of me to ECU to cheat my boss and this was here and today I want to clarify the issue with them. My son did not sent an email, he was with me. I have evidence here, my son's passport and travel with me at the same day and also was with me. If the ECU accept this I let the issue go.
THE DEPUTY PRESIDENT: I don't think it's important, Mr Li.
MR LI: Okay. I have an applicant's brief overview of oral argument here with points. Can I submit - - -
THE DEPUTY PRESIDENT: You can provide that to me, yes.
EXHIBIT #A15 APPLICANT'S OVERVIEW OF ORAL ARGUMENT
THE DEPUTY PRESIDENT: Is that all you wish to say?
MR LI: We should argue with them?
THE DEPUTY PRESIDENT: No, that's it. You get the last say, this is your last say.
MR LI: What I want to say is this process it is harsh, unreasonable and I did not plagiarise from Zhihu Huang and Jinsong Leng. I have been doing my job for the old procedures and the purpose (indistinct) was that Craig Valli tried to get rid of me, get me fired. Since he become the head of school he want to get my research work because that reached the peak of the fruitful stage, and also I want to say ECU has breached their human rights, it is full of discrimination and unfairness in this process. But the dismissal is unfair. Thank you, your Honour. Thank you for your time.
THE DEPUTY PRESIDENT: I will reserve my decision. I would like to be able to say I can give a decision fairly quickly, but given the amount of material, amount of evidence and other issues, I can't promise that it will be as prompt as I would like. This matter is adjourned.”
[34] It is sufficient to say we do not consider that there is any basis for the proposition that Dr Li was denied the opportunity to make a closing submission. Dr Li’s “Written Overview of Oral Argument” which was marked as Exhibit A15 was 13 pages long and focussed on the allegations of plagiarism and professional misconduct against him.
[35] Finally, we reject the proposition that Dr Li’s wife, Ms Wang, appeared as his representative but was denied the opportunity to say anything. There is no indication in the transcript that Ms Wang sought to appear in the proceedings as an advocate or that Dr Li was doing anything other than representing himself. It is the case that, at the commencement of the hearing on 22 June 2011, the Deputy President made an opening statement in which he said the following 13:
“The applicant also has had his partner or wife representing him in other proceedings and I am presuming that she'll be representing him in these proceedings. She also requires an interpreter and the same interpreter has been made available for that purpose.”
[36] However there is nothing in the transcript which indicates that Dr Li or Ms Wang acted consistently with the Deputy President’s presumption. Nor in any event did Dr Li identify any instance where the Deputy President prevented Ms Wang acting as Dr Li’s advocate and addressing the Commission. There was an instance in which the Commissioner prevented Ms Wang from speaking, but that was in the context of that part of the hearing in which Dr Li was giving evidence. When Dr Li had entered the witness box and had taken the affirmation before giving evidence, the following occurred 14:
“THE DEPUTY PRESIDENT: Before I start, Mr Li, do you have any documents that you wish to have with you whilst you're examined?
THE INTERPRETER: No, I don't have, but what about my wife? Can my wife sit with me?
THE DEPUTY PRESIDENT: Yes, she can. Now, Ms Li, you understand you are not giving evidence now, Mr Li is. The only reason I'm allowing you to sit there is to assist him with any documents he may wish to tender, so you should not speak at this juncture to me. Any interpretation will be made by Mr Jacobs. You can assist your husband, however, to sort his documents that he wishes to present.
THE INTERPRETER (MS LI): So I can't say anything?
THE DEPUTY PRESIDENT: No. If you wish to make any comment to Mr Jacobs, you can, and any comment will be through Mr Jacobs, who will then convey anything you wish me to know, through him.”
[37] It is apparent therefore that Dr Li was permitted to have his wife sit with him in the witness box while giving evidence. In granting that indulgence, the Deputy President quite properly made it clear that Ms Wang was not permitted to say anything. This injunction was subsequently not complied with, as the transcript of 28 June 2011 revealed 15:
“THE DEPUTY PRESIDENT: Mrs Li, you continue to - you're going to have to sit over there if you continue to prompt your husband on the evidence. You can be there to help him with the papers. You can't be there to speak.
THE INTERPRETER: Mrs Li, would like to speak out.
THE DEPUTY PRESIDENT: She can, but later. If she wishes to speak she will have to go in the witness box herself and give evidence herself. Mr Li is giving evidence now and she can't influence his evidence.
MRS LI: Okay.
THE DEPUTY PRESIDENT: They are Mr Li's answers, not her answers. She cannot speak. If she wants to give her own answers she can give her own answers later. Every time she speaks to Mr Li and he gives an answer it is not good for his evidence.
THE INTERPRETER: I understood now.”
[38] The invitation for Ms Wang to give evidence herself was not taken up. We do not consider that any procedural unfairness arose from the circumstances we have described.
[39] For completeness, we note that Dr Li’s further submission of 30 March 2014 identified a number of further instances of alleged procedural deficiencies. In doing so, Dr Li travelled well beyond the grounds of appeal in the amended appeal notice and the matters raised in the written submissions. In any event, we have examined the additional matters raised and we are satisfied that Dr Li has not identified any matters which would sustain a conclusion that he was denied procedural fairness.
Other grounds of appeal
[40] The other grounds of appeal were not developed in the written or oral submissions. We do not consider that any appellable error has been identified in those grounds.
Permission to appeal
[41] Under s.400(1) of the Act, the Commission must not grant permission to appeal in respect of an unfair dismissal decision unless the Commission considers it in the public interest to do so. We do not consider that Dr Li has suffered an injustice as a result of the Decision, nor has he succeeded in identifying any appellable error in the Decision. The public interest is not engaged by Dr Li’s appeal. We must therefore refuse permission to appeal.
The University’s appeal
[42] The University’s appeal challenged the Deputy President’s conclusion that Dr Li’s dismissal was unfair. It submitted that the Deputy President erred in the following respects:
(1) The finding that the University did not give Dr Li a sufficient opportunity to present explanations for his conduct was in error, given the Deputy President’s own findings and the evidence that Dr Li misled the University as to his whereabouts and deliberately avoided seeking permission or informing the University of his travel plans.
(2) That finding was also in error because of the other opportunities identified in the evidence which the University provided to Dr Li to respond to the plagiarism allegations both before and after the Misconduct Investigation Committee meeting.
(3) The Deputy President’s own findings as to Dr Li’s professional misconduct should have been sufficient for a finding that the dismissal was not unfair. The magnitude of Dr Li’s professional misconduct was such that, even if there had been no procedural defect in the University’s decision-making process, the outcome would have been the same.
[43] In circumstances where the very serious plagiarism allegations against Dr Li were dealt with by the University’s Misconduct Investigation Committee at a hearing held at a time when it was known to the University that Dr Li was in China, we consider that it was open to the Deputy President to find that the University did not provide Dr Li with a proper opportunity to provide an explanation for his conduct, notwithstanding that Dr Li went to China without permission. The hearing conducted by the Misconduct Investigation Committee was the critical event in the University’s decision-making process, so that it cannot be said that Dr Li’s absence from this hearing was compensated for by other opportunities he was given to respond to the allegations. Nor can it be said that his attendance at the hearing could not possibly have made any difference to the outcome, having regard to the fact that the Deputy President found that Dr Li’s conduct could not properly be characterised as plagiarism in accordance with the allegations against him.
[44] In addition we note that the amount of compensation awarded to Dr Li was relatively small, and because no stay of the Order was ever applied for or granted we presume it was complied with in accordance with its terms on or before 23 March 2012. It is difficult therefore to identify that the University’s appeal has any practical purpose in 2014. We do not consider that the University’s appeal attracts the public interest, and therefore we must refuse permission to appeal.
Orders
[45] We order as follows:
(1) In matter C2012/3248, permission to appeal is refused.
(2) In matter C2012/3252, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Dr D. Li on his own behalf
A. Musikanth of counsel with B. Jackson on behalf of Edith Cowan University
Hearing details:
2014.
Sydney video-link Perth:
24 March.
1 [2012] FWA 1887
2 PR520980
3 Decision at [33]
4 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]
5 Barach v University of New South Wales[2010] FWAFB 3307 at [16]
6 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19] per Gleeson CJ and Guadron and Hayne JJ
7 See Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 244; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 17-18.
8 See Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 220 IR 445 at [61] per French CJ and Crennan J
9 Coulton v Holcombe (1986) 162 CLR 1 at 7-8
10 PN 2617
11 PNs 2971-2972
12 PNs 3387-3388
13 PN 1
14 PNs 18-22
15 PNs 1086-1091
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