Dr Shaodi You v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO

[2020] FWC 6852

[2020] FWC 6852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Shaodi You
v
Commonwealth Scientific and Industrial Research Organisation T/A CSIRO
(U2019/13254)

COMMISSIONER JOHNS SYDNEY, 24 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] Dr Shaodi You (Applicant) lodged an application under s.394 of the Fair Work Act 2009 (FW Act) which was received by the Fair Work Commission (Commission) on 27 November 2019 alleging that he had been unfairly dismissed by the Commonwealth Scientific and Industrial Research Organisation (T/A CSIRO) (CSIRO/Respondent) on 6 November 2019. The Applicant initially wanted reinstatement. 1 However, by 20 May 2020 the Applicant made a claim for compensation.

[2] The matter was heard in Canberra before his Honour Deputy President Kovacic on 25, 26, 27, 28 and 29 May 2020. At the hearing Mr J Tracey appeared for the Respondent and Dr You represented himself. Dr You gave evidence on his own behalf.

[3] Evidence for the Respondent was given by:

a) Mr Callum Johnson, former HR Advisor, Data61 Business Unit, CSIRO (Mr Johnson was in this role from around July 2019 until June 2019);

b) Ms Toni Moate, Director, National Collections and Marine Infrastructure, CSIRO;

c) Dr Nicholas Barnes, Associate Professor, School of Engineering and Computer Science, the Australian National University;

d) Ms Mark Hedley, Deputy Director, Cyber-Physical Systems research program, and Research Leader, Supply Chain Integrity Initiative, Data61 Business Unit, CSIRO;

e) Dr Oliver Salvado, Group Leader, Biomedical Informatics Group, Data61 Business Unit, CSIRO;

f) Dr Lars Peterson, Team Leader and Principal Research Scientist, Data61 Business Unit, CSIRO; and

g) Ms Lisa Van Schieveen, Workplace Relations Manager, CSIRO (between 11 March 2019 and 18 October 2019, Ms Van Schieveen was employed in the position of HR Manager for CSIRO’s Data61 Business Unit).

[4] Having read the transcript of the hearing before the Deputy President I observe that most of the evidence of the Respondent’s witnesses was not the subject of critical challenge. In substance their evidence was not disproved.

[5] In contrast the Applicant’s evidence was unsatisfactory and inconsistent. Further, he failed to make even the most obvious of concessions in respect of what should have been uncontroversial matters. Further still, on many occasions 2 the Deputy President reminded the Applicant not to be evasive.3 At one point the Deputy President called out the Applicant for “play[ing] games with the Commission … of playing ignorance as to what [was] being asked of [him].”4

[6] Following the hearing the Deputy President issued directions on 11 June 2020 in respect of closing submissions.

[7] On 7 August 2020 the matter was reallocated to me after the untimely death of the Deputy President. In coming to this decision, I have had regard to all of the material that was before the Deputy President. I have also had regard to the submissions made after the Deputy President reserved his decision; namely the submissions filed by the Applicant on 3 July 2020, the submissions filed by the Respondent on 23 July 2020 and the final submissions filed by the Applicant on 30 July 2020. Because of the volume of material, and the need to reconsider it in its entirety, this decision is regrettably being delivered outside the Commission’s benchmarks.

Background

[8] This matter has a long history. As I have indicated above there are voluminous materials. Therefore, below I have summarised the essential background in this matter. Having considered all of the evidence I am satisfied that there is an evidentiary basis for each of the following findings of fact.

a) On 1 July 2016, the Applicant entered into a one-year full time contract with the Respondent for the position of Postdoctoral Fellow.

b) On 17 July 2016, the Applicant entered into a four-year full-time contract with the Respondent for the position of Research Scientist and with the option of converting to permanent contract pending obtaining Australian Permanent Residency.

c) On 22 February 2017, the Applicant entered an indefinite appointment for the position of Research Scientist with the Respondent.

d) On 15 January 2018, the Applicant was promoted by the Respondent to the position of Senior Researcher Computer Vision for a temporary period of 12 months (i.e. until 14 January 2019).

e) The terms of the Applicant’s employment are set out under the Employment Agreement dated 16 January 2018.

f) The Applicant’s terms of employment are further covered by the CSIRO Enterprise Agreement 2017 – 2020 (CSIRO EA).

g) During the employment:

i. the Applicant claimed he was subjected to several incidences of workplace bullying, racism, harassment and discrimination.

ii. the Respondent claimed it was attempting to manage a range of issues it had with the performance and conduct of the Applicant.

The contest between an employee claiming they are being bullied by management and management claiming their conduct is reasonable management action is not uncommon. For present purposes I do not need to resolve that contest.

h) From 7 July 2018 the Australian National University (ANU) started to receive complaints from students about the Applicant’s intimidating and aggressive behaviour.

i) On 8 August 2018 a meeting occurred with the Applicant to discuss complaints that had been made against him by ANU students. In the follow up email Olivier Salvado wrote,

“…. Thanks for the discussion today. By way of summarizing, I includes notes below.

A few issues have been raised about your behaviour that are raising some concerns and that we need to investigate. I think that Callum will also follow-up with you. Specifically, there was a recent verbal altercation with a student at the Synergy building that has trigger a formal complaint. We discussed the incident with Miaomiao but also triggered a complaint, as well as our meeting about the AI Chinese lab opportunity when a more objective and less emotional discussion should have happened.

It is great that you acknowledge some room for improvement and Nick and I are keen to work on a development plan to help you reach your full leadership potential….”

j) On 3 September 2018 a further meeting occurred with the Applicant to discuss complaints that had been made against him by ANU students.

k) On 12 September 2018 the Applicant wrote a research proposal that would involve ZongMu (an autonomous-driving technology company) based in People’s Republic of China (China). ZongMu were investigating the potential for using computer vision technologies to solve a number of problems they were experiencing.

l) On 18 September 2018 the Applicant requested permission to travel to China and meet with a CSIRO client, ZongMu. He contended that “ZongMu is my connection as Tsinghua alumni. They believe in my reputation in person.”

m) On 19 September 2018 Oliver Salvado advised the Applicant “It is Chris’ role to organise a visit and manage this engagement, so he will advise whether the visit is appropriate.” The Applicant responded “Whatever, I do not care anymore. …”

n) Also, on 19 September 2018 the Applicant indicated that he would ask “for recreation leave for a couple of weeks.” Dr Salvado asked to meet with the Applicant about the request.

o) On 21 September 2018 Dr Salvado sent an email to the Applicant. He did not get a response.

p) Between 24 September 2018 – 5 October 2018 the Applicant was absent from work. It is apparent that, at some point prior to 28 September 2018, the Applicant flew to China.

q) On 28 September 2018 the Applicant attended a Doctor’s appointment in China. It necessarily follows that during the Applicant’s period of sick leave he travelled to China. This caused the Respondent’s representatives to believe that the Applicant went to China to meet with ZongMu (without authorisation).

r) The Applicant admitted to Ms Byers that while in China he assisted another academic (visiting China from Deakin University), a personal friend, interpret Chinese to English as requested. He denied engaging in any commercial dealings concerning the CSIRO.

s) On 9 October 2019 the Respondent wrote to the Applicant about him having not returned from sick leave the day before. The Respondent requested a medical certificate for the period 24 September 2018 – 5 October 2018.

t) On 10 October 2018 the Applicant provided a purported medical certificate. There is a dispute about the correct translation of the medical certificate.

u) Dr Hedley directed the Applicant to attend a meeting with him on 12 October 2018.

v) The Applicant did not attend the meeting as directed on 12 October 2018.

w) On 22 October 2018 Dr Hedley again directed the Applicant to attend a meeting with him (this time on 26 October 2018). Mr Hedley wrote,

“As you did not attend the meeting with Callum and myself on Friday 12 October and have yet to provide a satisfactory reason for not attending, I am directing you to attend a meeting with Callum and myself on the morning of Friday 26 October whilst we are in Canberra. I will soon send out documentation for this meeting.

If you do not attend this meeting, this will be considered a breach of the CSIRO Code of Conduct and will result in a formal misconduct process.

As per the previous meeting, we would like to provide you with feedback on your promotion case. We also wish to discuss your behaviour and conduct as a CSIRO Officer and give you the opportunity to respond to these concerns.

I would encourage you to bring a support person to this meeting.

Please confirm your attendance by Wednesday 24 October.”

x) On 22 October 2018 at 4.08 pm the Applicant responded to Dr Hedley’s direction to attend a meeting on 26 October 2018. The Applicant wrote,

“I decline this meeting if it is about witch hunting me. Base on your statement “Discuss your behaviour and conduct as a CSIRO Officer and give you the opportunity to respond to these concerns.”

I will keep your statement as an evidence of the “witch hunting” behaviour of you. I will involve delegate from the union to have a discussion about me being abused and bullied very soon.

Also, I checked the CSIRO policy, I should directly involve Larry for such incidence.”

y) Later that evening the Applicant sent an email to Executive HR Manager, Anthea White, complaining about bullying and mistreatment.

z) On 23 October 2018 Ms White sent an email to the Applicant in the following terms,

“…. I strongly advise you to comply with Mark’s direction to attend the meeting with him and Callan this coming Friday, 26 October at Black Mountain. This will provide an opportunity for you, in an appropriate environment and with a support person of your choosing, to have a discussion about this matter and any other concerns that need to be addressed going forward. It will also be an opportunity for you to discuss the matters that Mark identified in his direction to you of 22 October 2018. I can assure you that Mark has not pre-judged these matters but as the Research Director, he has an obligation to address any issues of concern relating to all of the stuff he manages. …”

aa) The Applicant submitted a medical certificate from an Australian GP in respect of the period 23 October 2018 – 26 October 2018.

bb) The Applicant did not attend the meeting on 26 October 2018 as directed.

cc) On 16 November 2018 a paper (co-authored by the Applicant) was submitted to CVPR (a premier annual computer vision event).

dd) On 21 November 2018 ANU received another complaint from a student about the Applicant’s aggressive behaviour.

ee) On 22 November 2018 ANU received yet another complaint from a student about the Applicant’s aggressive behaviour.

ff) On 22 November 2018 the Respondent became aware of concerns raised by a student about Dr You as their supervisor. The notification to the Respondent included, but was not limited to, the following,

“[Student] describe that Dr U was making excessive demands on him beyond his work, as well as being extremely directive in his research direction and not discussing the student’s opinions about the direction the project was taking. This included getting him to write several lectures worth of lecture notes at very short notice for [Dr You] to give that were not about [Student]’s project. He described that [Dr U) would threaten him frequently that he must do these tasks, with threats like that unless [Student] did as [Dr You] demanded, [Dr You] would ensure he didn’t graduate, giving [Student] the impression that the primary supervisor has control on this point.

There were further points about abusive behaviour, yelling and verbal abuse, and directing the student’ work, but at the same time not reading reports with a student’s not actually being aware of what the student was doing. [Student] stated that at some point his mental health was quite adversely impacted. That he had been very depressed at one point some months ago on account of the situation.

gg) The Applicant was removed for the student’s panel. ANU commenced a review of all other PhD students that the Applicant had a supervisory role with.

hh) On 26 November 2018 the Applicant was issued with a direction to attend an Independent Medical Assessment (IME). He also received the following direction from Dr Turner (26 November Direction),

“…. I am directing you not to work or engage in any workplace activities from tomorrow, 27 November 2018 until CSIRO receives the independent medical advice. This means that you are not to attend site or engage with your work including and importantly the supervision of post-doctoral students, until advised further by me.

I have approved leave for a prescribed period to cover the duration of this direction. This approved leave will not be deducted from your leave balance.

You have been directed not to perform your duties or attend the Black Mountain site. You should therefore not visit any CSIRO site without first obtaining my permission via a written request. Permission to visit the site will only be given in exceptional circumstances where appropriate.

This is a formal direction. Failure to comply with a lawful and reasonable direction not to attend work may be a breach of the CSIRO’s code of conduct, CSIRO’s Terms and Conditions of Service and could result in disciplinary action being taken in accordance with CSIRO Misconduct Procedures. The range of disciplinary action that may apply has been outlined above. …”

ii) Also, on 26 November 2018 the Applicant advised Comcare that he intended to travel to Perth on 1 December to attend and talk at the Asian Conference of Computer Vision (ACCV).

jj) From 27 November 2018 the Applicant was on a period of directed authorised leave.

kk) On 27 November 2018 the Applicant confirmed by email that he would attend the IME.

ll) On 29 November 2018 a Data61 Finance Officer sent the Applicant an email inquiring about the whereabouts of a certain asset. The Applicant responded to the email. The Respondent treated the Applicant being on and responding to emails as a breach of the 26 November Direction.

mm) On 30 November 2018 Dr Turner wrote to the Applicant in the following terms,

“I have recently been made aware that you plan on attending the Asian Conference of Computer Vision (ACCV) 2018 in Perth, Western Australia….

Your attendance at this conference has not been approved by Data 61 or your line manager.

….

I’m therefore formally directing you to not attend any conference, professional event or represent CSIRO and Data 61 publically whilst the current formal direction for you not to attend work is in place. …

It is important that you understand that this is a formal direction under clause 17 of the CSIRO’s Enterprise Agreement 2017-2020. Should you attend the ACCV conference in Perth or any other conference you will have failed to comply with a lawful and reasonable formal direction. Failure to comply with a lawful and reasonable direction may be a breach of the CSIRO’s code of conduct and Terms and Conditions of Service and could result in disciplinary action being taken in accordance with the CSIRO Misconduct Procedures. Disciplinary action includes:

•  Reprimand

•  Reduction in salary within the same … level

•  Reduction in salary within the same … level and transfer of position

•  Transfer to another position at the same … level

•  Reduction to lower level

•  Dismissal”

nn) On 3 December 2018 CSIRO advised ANU that the Applicant was off duty and unable to supervise students.

oo) On 3 December 2018 Professor Daniel Macdonald from ANU wrote to the Applicant in the following terms,

“I am writing to you in my capacity as the Associate Dean… Given the recent suspension 5 of your position at Data61, and the nature of that suspension, I have determined that it is necessary to remove you from the supervisory panels of all of your PhD and MPhil student, effective immediately. This action has been communicated to your students today. ….

From this time onwards, please do not communicate any further with your students, or with the CECS HDR administration team. If you wish to discuss this matter further, then please contact me, as I am the academic responsible for this decision. ….

I stress that you should not contact your students again…”

pp) On or about 4 December 2018 the Respondent formed the view that the Applicant had attended the ACCV.

qq) The Applicant denies he was at the ACCV. He admitted that he was in the foyer of the ACCV. He attended there to collect a friend who was attending the conference so that they could go out and celebrate the Applicant’s birthday.

rr) 5 December 2018 was the Applicant’s birthday.

ss) On 5 December 2018 ANU wrote to the CSIRO about complaints made by ANU staff and students about the Applicant.

tt) On 13 December 2018 three ANU students sent an email to Professor McDonald at the ANU. They wrote,

“We all received two messages from [Dr You] this afternoon, as shown in the following. We have translated them into English for your convenience. We don’t understand what [Dr You] means here, and also have no idea of how to reply to him properly. Could you please adjust us what to do next?

We want to restate that we are voluntary to remove [Dr You] from our panel, and we don’t want to have any connection with him any more. However, he always contacted us recently and we feel a little bit disturbed. We need further help from you and the college. …”

uu) The translation of the two messages is as follows,

i. Message 1: “Good news. Today Data61 and ANU refuted the rumour officially. Later, ANU will investigate who started the rumour. You will not be affected by this.”

ii. Message 2: “Making a rumour is a capital felony in Australia. The one who did this would be adjudged to prison for up to three years. The labour union has helped me engage a lawyer. ANU said that they will wait for some days to see whether there is anyone willing to voluntarily surrender himself. If there is, ANU will settle it privately.”

vv) The concerns of the students and ANU were raised with the CSIRO.

ww) On 18 December 2018 Dr Turner wrote to the Applicant in the following terms,

“I’m writing to you in relation to the direction you were issued on 26 November 2018.

It has come to my attention that after receiving the formal direction not to attend site or engage with your work including and importantly the supervision of post-graduate students you have since attempted to engage with ANU post-graduate students.

The direction issued to you was lawful and reasonable. Failure to comply with a lawful and reasonable direction is considered a breach of the CSIRO Code of Conduct and the Terms and Conditions of Service. I take your decision not to comply with my formal direction seriously and your continued unreasonable refusal will be taken into account when considering whether your failure to comply is potential misconduct and whether disciplinary action should be taken. Disciplinary action may include dismissal.

Dr You, I state again, I am directing you not to work or engage in any workplace activities until CSIRO receives the independent medical advice requested. This means that you are not to attend site or engage with your work including and importantly the engagement with, or supervision of post-graduate students, until advised further by me. …”

xx) On 18 December 2018 the Applicant wrote to Dr Turner in the following terms,

“I do not recall I have any contact with my students with regard to my supervision duty after receiving your notice.

I do not recall I have entered the CSIRO site.

I hereby request CSIRO to send me a clarification why I am receiving this notice.”

yy) On 20 December 2018 the Applicant (a co-author) without consulting his other co-authors withdrew the submission to CVPR.

zz) On 21 December 2018 Dr Turner wrote the Applicant in the following terms,

“I have been advised that you have made contact with some of your ANU students despite being directed not to. I am also aware that you have sent at least one email from your CSIRO email address following the direction that you were not to engage with work.

….

My direction not to attend to your work, engage with, or attempt supervise any of your remaining post-graduate students will remain in place until after we have received the medical information and you have had an opportunity to meet with your GP and discuss the report. …”

aaa) On 28 January 2019 a student sent a query about being unable to “find my CVPR paper on my cmt author profile.” (i.e. the paper that had been submitted on 16 November 2018). This was the first time that the student became aware of the withdrawal.

bbb) On 29 January 2019 the Applicant sent an email seeking a new supervisor for an ANU PhD student then under his supervision.

ccc) On 16 May 2019, the Respondent engaged Ms Jan Byers, an independent investigator, of HBA Consulting to investigate the Allegations and, if proved, consider whether they constitute a failure to fulfil the duties of an officer as prescribed in paragraph 19B of the CSIRO Terms and Conditions of Service. Specifically, whether the Applicant:

i. wilfully disobeyed, or wilfully disregarded, a direction given by a person having the authority to give the direction, being a direction with which it is the duty of the officer to comply [Terms and Conditions 19B(a); and/or

ii. engaged in improper conduct as an officer [Terms and Conditions 19B(d); and/or

iii. contravened or failed to comply with a provision of the Service and Industry Research Act 1949 , the Terms and Conditions of Service, or the CSIRO Code of Conduct [Terms and Conditions 19B(f)].

ddd) Also, on 16 May 2020 the Applicant was advised of the engagement of Ms Byers.

eee) On 23 July 2019 Ms Byers made contact with the Applicant.

fff) On 5 June 2019, the Applicant was formally advised by the Respondent of allegations made against him in relation to his employment. These allegations included that the Applicant:

i. failed to follow a direction of 22 October 2018 to attend a meeting on 26 October 2018 issued by Dr Mark Hedley (Allegation 1);

ii. failed to follow a formal direction of 26 November 2018 not to attend the Black Mountain site, engage with his work or supervise students issued by Mr Adrian Turner (Allegation 2);

iii. attended the ACCV conference in Perth on 4 December 2018, after a formal direction on 30 November 2018 from Mr Adrian Turner not to attend or represent CSIRO at that conference (Allegation 3);

iv. failed to follow a formal direction of 18 December 2018 not to attend the Black Mountain site, engage with his work or supervise students issued by Mr Adrian Turner (Allegation 4);

v. undertook unauthorised travel to China in September/October 2018 to represent CSIRO in commercial negotiations contrary to instructions issued by Dr Salvado that he was not authorised to travel or attend the meeting (Allegation 5);

vi. exhibited improper conduct in relation to interactions with CSIRO/ANU Students during 2018 including:

A. displaying intimidating and aggressive behaviour;

B. threatening to report students to HR and stop the student’s stipend;

C. lack of proper academic supervision;

D. unreasonable workload expectations;

E. forcing students to pursue research topics outside their area of interest or expertise;

F. directing students to write lecture notes on lectures unrelated to the student’s research; and

G. withdrew a conference paper in December 2018 to the CVPR Conference without the knowledge of, or consultation with the other authors (Allegation 6); and

vii. Withdrew a conference paper in December 2018 to the CVPR Conference without knowledge of, or consultation with other authors (Allegation 7).

(together the Allegations).

ggg) On 18 September 2019 the Applicant provided a very detailed response to the Allegations.

hhh) On 22 October 2019, the Applicant was provided a copy of the final report produced by Ms Byers (Byers Report).

iii) On 22 October 2019, the Respondent wrote to the Applicant advising that it accepted the findings and recommendations contained in the Byers Report and proposed to make a formal determination that the Applicant be dismissed. The Respondent provided the Applicant a further opportunity to put forward any reasons as to why the Respondent should not implement the proposed sanction.

jjj) On 1 November 2019, the Applicant’s legal representative wrote to the Respondent identifying what they contended were a number of clear deficiencies in the Byers Report and on this basis advising the Respondent against dismissal.

kkk) On 6 November 2019, the Respondent wrote to the Applicant and his legal representative) advising that his employment had been immediately terminated on the basis of the Byers Report (Termination Letter).

lll) The termination is based on serious misconduct (Enterprise Agreement s15.2). However, the Respondent proposed to make a payment to the Applicant in lieu of 4 weeks’ notice. An administrative error occurred in respect of that payment and it has not been paid.

mmm) The Respondent remains willing to make the payment.

When can the Commission order a remedy for unfair dismissal?

[9] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[10] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[11] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

[12] In the present matter it is not contested, and I am satisfied that, the Applicant was protected from unfair dismissal.

When has a person been unfairly dismissed?

[13] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Has the Applicant been dismissed?

[14] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

[15] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[16] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[17] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

[18] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

[19] I am further satisfied that:

(a) the application was made within the period required in subsection 394(2);

(b) whether the dismissal was consistent with the Small Business Fair Dismissal Code is not relevant in the present matter; and

(c) whether the dismissal was a case of genuine redundancy is not relevant in the present matter.

[20] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[21] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[22] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 6

[23] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[24] In his final submissions the Applicant focussed on whether the misconduct that he was accused of was serious misconduct as defined in Fair Work Regulation 1.07. However, that is not the test. I am not required to determine if the Applicant engaged in serious misconduct. I am required to determine if there was a valid reason for dismissal.

[25] Even where serious misconduct is alleged the test for a valid reason for dismissal does not change. A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment. 7

[26] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.10

[27] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.¹¹

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 12

[28] The employer bears the onus of establishing that there was a valid reason for a dismissal. 13

[29] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry that the employee was guilty of the conduct. It is also not my task to conduct a judicial review like function of the Byers Report.

[30] Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. 14

[31] In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer. Facts justifying dismissal, which existed at the time of the dismissal, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. Facts which existed at the time of the dismissal, but came to light after the dismissal may:

•  justify the dismissal when it would otherwise be harsh, unjust or unreasonable, or

•  render the dismissal harsh, unjust or unreasonable.

[32] Ultimately, the Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. The reason for the dismissal need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission. If the employer seeks to rely on a reason for dismissal other than the reason given or relied upon at the time of the dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason.

[33] In determining whether the Applicant did engage in the conduct alleged and whether there was a valid reason for his dismissal, the standard of proof is the balance of probabilities. Given the seriousness of the allegations, the principle in Briginshaw v Briginshaw is relevant. 15

[34] This principle has been held to establish that whilst the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct occurred and “should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” 16

[35] A more recent consideration of the principle in Briginshaw is found in the High Court decision in Neat Holdings v Karajan 17 where it was held that statements to the effect that clear or cogent or strict proof is necessary where a question of whether a person in civil proceedings has engaged in theft or fraud is to be determined, should not be understood as directed to the standard of proof. Rather such statements should be understood as: “…merely reflecting a conventional perception that members of our society do not ordinarily engage in criminal or fraudulent conduct.”18 The Court went on to observe that:

“When an issue falls for determination on the balance of probabilities and the determination depends on the choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but on an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately however it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” 19

[36] There were 3 reasons advance by the Respondent to support a finding that there was a valid reason or reasons for the dismissal. They were that the Applicant:

a) wilfully disobeyed, or wilfully disregarded, a direction given by a person having the authority to give the direction, being a direction with which it is the duty of the officer to comply [Terms and Conditions 19B(a); and/or

b) engaged in improper conduct as an officer [Terms and Conditions 19B(d); and/or

c) contravened or failed to comply with a provision of the Service and Industry Research Act 1949 , the Terms and Conditions of Service, or the CSIRO Code of Conduct [Terms and Conditions 19B(f)].

[37] The reasons for dismissal were supported by particulars in the form of Allegations. In order to be satisfied that a valid reason existed I must be satisfied that the particulars are made out on the evidence.

[38] I have set out the chronology of events and findings of fact above. Having done so, I make the following findings in relation to the Allegations.

a) Allegation 1 - Failure to follow a direction of 22 October 2018 to attend a meeting on 26 October 2018.

Dr You failed to attend the meeting as directed.

He had no basis for declining the meeting. His “witch hunt” allegation had no basis to it.

However, the Applicant provided a “Certificate of capacity for work” 20 that indicated he had “anxiety, panic attacks at work.” It stated that the Applicant was not fit for work from 23 October 2018 – 26 October 2018.

The Respondent contended that “while the medical certificate relied upon indicated that the Applicant was unable to carry out the duties of his employment, it did not indicate that the Applicant was unable to attend the meeting in question.”

I reject the contention.

The meeting in question was a meeting that the Applicant was directed to attend in the course of his employment. If the Applicant had a medical certificate excusing him from work, it equally excused him from attending the meeting on 26 October 2018.

However, the “Certificate of capacity for work” produced by the Applicant is deficient. I do not accept that it was a valid certificate. Importantly it lacks the medical practitioner’s details in Part C. There is an initial in the signature box, but it does not identify who signed the certificate.

The Respondent was entitled to reject the certificate.

Because the certificate is deficient the Applicant had no reasonable excuse for his non-attendance at the meeting.

I find allegation 1 substantiated.

b) Allegation 2 – Failure to follow a formal direction of 26 November 2018 not to attend the Black Mountain site, engage with his work or supervise students.

To the extent that Allegation 2 is founded on the fact that the Applicant used his CSIRO email account on 29 November 2018 it must be noted that he only did so in response to a request from a CSIRO Finance Officer who made an inquiry about the location of an asset.

Dr You’s response was responsive and appropriate. It could hardly be considered a breach of the direction as it was cast in the correspondence of 26 November 2018.

To the extent that Allegation is founded on the fact that the Applicant sent an email on 29 January 2019 about the supervision of a student, there was a breach of the direction on 26 November 2018 (and the further direction on 18 December 2018). It was a serious and deliberate breach.

I find allegation 2 substantiated.

c) Allegation 3 – Attendance at the ACCV conference in Perth on 4 December 2018, after a formal direction on 30 November 2018 from Mr Adrian Turner not to attend or represent CSIRO at that conference.

There is no evidence that the Applicant attended the ACCV conference.

Appropriately, allegation 3 was not pressed by the Respondent.

For the avoidance of doubt, I find allegation 3 unsubstantiated.

d) Allegation 4 – Failure to follow a formal direction of 18 December 2018 not to attend the Black Mountain site, engage with his work or supervise students.

The Applicant admits that he made contact with students. He contends that he did so in a personal capacity on a personal messaging service.

I reject the Applicant’s contentions. Having read the messages I am satisfied that the Applicant’s behaviour breached the direction given to him. It was a most egregious breach by him.

I find allegation 4 substantiated.

e) Allegation 5 - Undertaking unauthorised travel to China in September/October 2018 to represent CSIRO in commercial negotiations contrary to instructions issued by Dr Salvado that he was not authorised to travel or attend the meeting.

Noting:

i. the Applicant’s desire to meet with ZongMu,

ii. his annoyance at being denied approval,

iii. the ‘convenient’ timing of his trip to China (at the same time he had proposed to meet with ZongMu),

iv. his non-communication with his employer about his absence overseas (during the entirety of his trip overseas),

v. the Applicant not telling his employer he was travelling to China, and

vi. the questionable ‘medical certificate’ that he provided to the Respondent,

it is readily apparent why representatives of the Respondent concluded that the Applicant likely engaged in an unauthorised meeting. The chronology of events gives rise to a reasonable suspicion.

The Respondent submitted that “there is a significant body of circumstantial evidence which supports the fact that the Applicant undertook the unauthorised travel to China specifically in order to engage in commercial discussions with ZongMu…”

Further, the Applicant’s lack of credibility as a witness also supports a finding in favour of the allegation being substantiated.

However, there is simply no evidence that the Applicant actually met with ZongMu (or any other CSIRO client) when he went to China.

Conscious of the gravity of the allegation I am not satisfied that the strong circumstantial evidence is sufficient to make good the allegation.

I find allegation 5 unsubstantiated.

f) Allegation 6 – Exhibiting improper conduct in relation to interactions with CSIRO/ANU Students during 2018.

Having considered all of the material in relation to this Allegation I am satisfied that Allegation 6 is substantiated

In particular, the text messages Dr You sent to three students on 13 December 2018 were threatening and intimidating. The students were right to complain about the text messages. The students showed great bravery in the face of Dr You’s aggression.

g) Allegation 7 – Withdrawing a conference paper in December 2018 to the CVPR Conference without knowledge of, or consultation with other authors.

The Applicant admits he withdrew the paper. He says he was entitled to withdraw it. Further, he says withdrawing the paper was consistent with the direction not to perform his duties.

The withdrawal of the paper was without consultation with or notification to the co-authors. They only found out about the withdrawal many weeks later after making an inquiry with the conference organiser. The Applicant’s conduct was discourteous. It was improper conduct.

I find allegation 7 substantiated.

h) Allegation 8 – commencing new employment.

Before the Deputy President the Respondent advanced a new allegation. It contended that,

“without disclosing to CSIRO and without CSIRO’s authorisation, [the Applicant] commenced and undertook employment at the University of Amsterdam whilst he was in an employee of CSIRO, contrary to the CSIRO Work Outside CSIRO Procedure.”

The allegation is that,

“While suspended from his employment (between 5 September 2018 and 6 November 2018), [the Applicant] was being paid in full by CSIRO on a full-time basis. He obtained employment in the same or a similar area of expertise at the University of Amsterdam as that in respect of which he was employed by CSIRO. This created a substantial conflict of interest between his duties to each institution. The Applicant breached his duty of fidelity to CSIRO in this regard.”

The Applicant contended the start date for his employment with the University of Amsterdam was 3 February 2020. The Applicant had every opportunity to prove that assertion but did not do so. He failed to comply with two Orders for the Production of Documents. The Deputy President observed,

“Despite the terms of the Commission’s Orders Requiring Production of Documents etc. to the Commission of 4 March and 6 May 2020 and the Commission’s suggestion that Dr You approach the University of Amsterdam to obtain the relevant documents, Dr You has provided no probative material to corroborate his claim that he commenced employment with the University in early February 2020.” 21

Rather, the evidence 22 supports a finding that, at least by 10 October 2019, the Applicant was employed, or engaged by, or contracted to, or worked for the University of Amsterdam as an Assistant Professor.

Before the Deputy President the Applicant was asked about the University of Amsterdam advertisement that named him in October 2019. He confirmed it was his University of Amsterdam email address on the advertisement. 23 And yet the Applicant denied being employed by the University of Amsterdam in October 2019.

The following exchange occurred 24:

•  Deputy President: “Why would your name appear in the advertisement as a contact person, Dr You?

•  Dr You: “This was sent by the University. So, this document was sent by the University. I don’t know why.”

It was a completely implausible answer.

The Deputy President further explored whether the Applicant had approached the University of Amsterdam to obtain proof of when he commenced employment there. Again, the Applicant’s answer was, in the words of the Deputy President, “unbelievable.” 25

The Applicant’s lack of candour about this allegation speaks volumes about his attitude towards the CSIRO and his failure to understand the duty of fidelity and good faith that employees owe to their employer. The employment/engagement/work for the University of Amsterdam created and obvious conflict of interest. This allegation alone is sufficient to support a valid reason for dismissal.

The Applicant breached the CSIRO Work Outside CSIRO Procedure. He was employed, or engaged by, or contracted to, or worked for the University of Amsterdam at least since October 2019.

I find allegation 8 substantiated.

[39] Having regard to the matters I have referred to above, I find that there were valid reasons for the dismissal related to the Applicant’s conduct. Specifically, the Applicant,

a) wilfully disobeyed, or wilfully disregarded, a direction given by a person having the authority to give the direction, being a direction with which it is the duty of the officer to comply,

b) engaged in improper conduct as an officer, and

c) contravened or failed to comply with a provision of the Service and Industry Research Act 1949 , the Terms and Conditions of Service, or the CSIRO Code of Conduct.

[40] Lest there be any doubt about my finding, I find no fault with Ms Moate’s decision to dismiss the Applicant. It was an entirely appropriate and proportionate response to the Applicant’s misconduct.

Was the Applicant notified of the valid reason?

[41] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 26 and in explicit27 and plain and clear terms.28

[42] Having regard to the matters referred to above (in particular the letter from Ms Moate to the Applicant dated 22 October 2019), I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[43] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 29

[44] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 30 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.31

[45] In any case, in the present matter, there was a high degree of formality. The chronology of events and findings of fact I make above establishes that the Applicant (over a long period) was provided with every opportunity to respond. He was afforded a high degree of procedural fairness.

[46] In fact, having regard to my findings of fact above, it is hard to see how, in respect of Allegations 1 – 7, the Applicant could have been afforded any greater measure of procedural fairness either by Ms Byers or by Ms Moate. Further, it is evident that the Applicant availed himself of the many opportunities afforded to him.

[47] The same cannot be said for Allegation 8. The Respondent did not rely upon the employment with the University of Amsterdam in deciding to dismiss the Applicant. Consequently, the Respondent did not put the allegation to the Applicant, and he was not given an opportunity to respond to the same. The Respondent pressed Allegation 8 in the Commission. Before the Deputy President the Applicant was given every opportunity to explain the situation. He failed to do so. The Deputy President, appropriately, described the Applicant’s response as “unbelievable.” 32 I am satisfied that any procedural defect in relation to Allegation 8 was cured by the opportunity afforded to the Applicant in the Commission.

[48] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[49] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[50] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”33

[51] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal because at no time did the Applicant request one. This is a neutral factor.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[52] The Respondent cast its case as having dismissed the Applicant for conduct issues. This was not a performance case.

[53] Because the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

[54] However, it is worth making the point that the directions issued to the Applicant made it very clear to him the consequences of his non-compliance. The directions given to him were clear. The standards expected of him were clear. He was on notice that his employment was at risk. He imperiled his own employment by deliberately engaging in the conduct that he did.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[55] The Respondent is a large employer with internal human resources. Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[56] Having regard to the foregoing, I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.

What other matters are relevant?

[57] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[58] The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

a) the Respondent was aware of the deficiencies identified in the Byers Report prior to terminating the Applicant’s employment;

b) the Workplace Incidences;

c) the Respondent was aware that the Applicant was suffering from mental illness as a result of the Workplace Incidences;

d) the Respondent was aware that the Applicant’s research conducted during the course of his employment with the Respondent was specific to his role, thus significantly diminishing his prospects of future employment;

e) the Respondent was aware that any finding of serious misconduct was likely to significantly impact the Applicant’s future employment prospects;

f) the Respondent was also aware that the Applicant’s dismissal would cause significant collateral detriment to the 7 PhD Students under the Applicant’s supervision at the time. For example, by dismissing the Applicant, the PhD students would be unable to reference the Applicant in their respective thesis papers, thus substantially delaying their graduation.

[59] The Respondent submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

a) the Applicant’s unwillingness to follow management direction generally;

b) discourteous and aggressive interaction with CSIRO staff;

c) raising the matter of Mr Turner’s religion;

d) wrongly asserting the serious matter of racial discrimination on the part of Dr Salvado;

e) wrongly and vexatiously attacking Dr Nick Barnes;

f) unreasonably complaining about quite benign conduct of Ms Kendrick in relation to booking rooms;

g) frivolously stating in a meeting with management on 3 September 2018 that it was CSIRO’s responsibility to list in its Code of Conduct all of the words that were not appropriate to be said by employees;

h) disrespectful and impolite treatment of students under his supervision, including yelling and verbal abuse;

i) making unreasonable demands of students under his supervision;

j) threatening students under his supervision, including by indicating that he may prevent them from graduating;

k) failing to perform his duties in organising a conference properly, thus putting at risk CSIRO’s reputation, as explained by Mr Natu of IEEE;

l) making unfounded and vexatious complaints of bullying against Dr Salvado, which complaints the Applicant maintains in the Commission;

m) making unfounded and vexatious complaints of bullying against Dr Hedley;

n) threatening and upsetting Dr Liu with comments such as, “…I wish your career path becomes narrower and narrower”;

o) in an open office environment, threatening to record his conversation with his manager, Dr Petersson, in retaliation for a complaint by a student, Mr Cheraghian, whom the Applicant had previously told to “shut up”;

p) failing to attend other meetings organised by CSIRO management, other than the 12 October 2018 and 26 October 2018 meetings, including the meeting Dr Salvado requested before the Applicant’s unauthorised travel to China, a team meeting on 18 October 2018 and the meeting Mr Johnston arranged for a mediation with Mr Cheraghian; and

q) using defiant and rude language towards managers and colleagues in emails.

[60] I am not persuaded that any of the matters, raised by the Applicant or the Respondent, are relevant to whether the dismissal was harsh, unjust or unreasonable.

[61] While I have made different findings to Ms Byers, an unfair dismissal case is not a form of judicial review of the independent investigator. I have formed my own view about matters and made findings accordingly. Further, I am not satisfied that the Respondent’s awareness of the Applicant’s medical condition was adversely used against him. The Respondent granted the Applicant considerable leeway. Finally, having regard to the Applicant’s employment with the University of Amsterdam it is difficult to conclude that any of these matters have affected his chances of employment.

[62] As for the Respondent’s contentions, each of the matters advanced could have been put forward as a proper allegation against the Applicant and he could have been afforded an opportunity to respond. This did not occur. Consequently, I am not prepared to accept the contentions advanced as they were.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[63] I have made findings in relation to each matter specified in section 387 as relevant.

[64] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 34

[65] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. This is because, considered both individually and collectively the allegations that I have found substantiated support a finding of a valid reason and, further, the Applicant was afforded considerable procedural fairness in relation to these matters.

[66] The Applicant’s demise was of his own making. It is very clear from the belligerent manner in which he ran his case 35, his submissions and the transcript that he still fails to understand the magnitude of his misdeeds. His submission that “the dismissal was wholly disproportionate to the gravity of the misconduct” is astounding for its lack of personal insight.

[67] After such a long period of support provided to him, by so many personnel at the CSIRO, it is clear the Applicant was unable to be affected by the genuine attempts made by his colleagues to assist him. While not being angels, on the whole, his colleagues were polite and respectful. There is considerable evidence that they wanted the Applicant to succeed. However, the Applicant was resistant to receiving feedback. He had an imperious and aggressive nature. He sought to unfairly characterise almost every interaction with a superior as a bullying behaviour. It was not. The Applicant was a peddler of false allegations against his colleagues.

Conclusion

[68] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.

[69] An order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

Dr You, Applicant.
Mr J Tracey of Counsel for the Respondent.

Hearing details:

Before Deputy President Kovacic
2020.
Canberra (by video)
May 25,26,27,28,29.

Final written submissions:

Applicant, 3 July 2020
Respondent, 23 July200
Applicant reply, 30 July 2020

Printed by authority of the Commonwealth Government Printer

<PR725573>

 1   Paragraph 3.3 of the Applicant’s Submissions date 1 April 2020.

 2   The Respondent contended it was 22 times. I have not done the math.

 3   Transcript PN1101, PN1042, PN1087, PN1118, PN1210, PN1257.

 4   Transcript PN1245.

 5   The Respondent clarified with ANU that the Applicant has not been suspended.

 6   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 7   Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233]

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 9   Ibid.

 10   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

11 Edwards v Justice Giudice [1999] FCA 1836, [7].

 12   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 13   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

 14   Bista v Glad Group Pty Ltd [2016] FWC 3009.

 15 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

 16   Ibid at 362-363.

 17 (1992) 110 ALR 449.

 18   Ibid at 450.

 19   Ibid at 451.

 20   MH-11 to the Witness Statement of Mark Hedley.

 21   [2020] FWC 2679, [23]

 22   LVS-15, CB121, CB108-111, Exhibit 3.

 23   Transcript PN771.

 24   Transcript PN775.

 25   Transcript PN897-906.

 26   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 27   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 28   Ibid.

 29   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 30   RMIT v Asher (2010) 194 IR 1, 14-15.

 31   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 32   Transcript PN897-906.

33 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 34   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

 35   Including nonsense allegations against the solicitors for the Respondent that they forged documents.