Dr Shaodi You v Commonwealth Scientific and Industrial Research Organisation t/a CSIRO

[2020] FWC 2752

[2020] FWC 2752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Dr Shaodi You
v
Commonwealth Scientific and Industrial Research Organisation t/a CSIRO
(C2020/3924, C2020/3947)

VICE PRESIDENT HATCHER SYDNEY, 27 MAY 2020

Appeal against decisions of Deputy President Kovacic at Canberra on 11 May 2020 and 22 May 2020 in matter number U2019/13254.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 26 May 2020.

[2] Dr Shaodi You has lodged two appeals, for which permission to appeal is required, against interlocutory decisions made by Deputy President Kovacic. The first appeal relates to a decision by the Deputy President on 11 May 2020 in which the Deputy President declined to make an order for production of documents sought by Dr You (first appeal). The second appeal relates to a decision 1 issued by the Deputy President on 22 May 2020 setting out his reasons for permitting the respondent, Commonwealth Scientific and Industrial Research Organisation (CSIRO), to be legally represented in the substantive proceedings (second appeal).

[3] The background of these appeals can be characterised as follows. Dr You lodged an application for an unfair dismissal remedy against the CSIRO. Dr You was dismissed for misconduct on 6 November 2019 and filed his unfair dismissal application on 27 November 2019. That application is the subject of an ongoing hearing before the Deputy President which commenced yesterday and is scheduled for the remainder of this week.

[4] In relation to the first appeal which was lodged this morning, Dr You lodged a Form F52 seeking an order for the production of documents dated 30 April 2020 in the proceedings before the Deputy President. The orders sought the production of ten categories of documents that were said to relate to the CSIRO’s decision to terminate Dr You’s employment.

[5] On 11 May 2020, the Deputy President’s chambers sent an email to the parties stating that Dr You’s application for an order for production had been declined and setting out his reasons for this. The Deputy President referred to the fact that some of the documents/records sought replicated a previous Form F52 application lodged by Dr You on 18 March 2020 that had previously been refused by the Commission. The Deputy President also referred to the fact that Dr You would have the opportunity to cross examine the CSIRO’s witnesses in respect of the issues relating to the termination of his employment; that he had received advice from the CSIRO that it was unlikely that it would seek to rely on the video footage sought in the Form F52 during the hearing; and the fact that some of the documents/records sought in Dr You’s proposed order to produce did not appear relevant to the unfair dismissal application.

[6] The second appeal was lodged by Dr You at lunchtime today. Dr You seeks to appeal the Deputy President’s decision to grant permission to the CSIRO to be represented by a lawyer in the proceedings.

[7] In the decision concerning legal representation, the Deputy President considered the volume of submissions and evidence filed and various interlocutory issues in the proceedings and made reference to the fact that the matter involved a degree of complexity such that legal representation would enable the matter to be dealt with more efficiently, particularly in relation to the evidentiary aspects of the case. He acknowledged that while Dr You contends that the respondent employs between 60-100 in-house lawyers, Dr You had failed to establish that any of these lawyers had workplace relations expertise and/or experience in prosecuting contested matters before the Commission. He was therefore satisfied that the CSIRO was unable to represent itself effectively in the absence of legal representation. Further, the Deputy President determined it was appropriate for the CSIRO to be legally represented in the matter as it had been legally represented in the proceedings to date and because he did not consider that granting such permission would fundamentally change the dynamics and manner in which the matter proceeds.

[8] In each of Dr You’s appeals, he has sought a stay of the decision under appeal pending the hearing and determination of the appeal pursuant to s 606 of the Fair Work Act 2009 (FW Act). This decision concerns those stay applications. In respect of the first appeal, Dr You contends in his notice of appeal that a stay is necessary because:

“A stay of the substantive hearing until an outcome verifying whether the evidences are legal and can be used in the hearing. The evidences are related to major part the hearing, failure to verify the evidence make the hearing impossible.” [sic]

[9] His grounds of appeal appear to contend that the documents he seeks are necessary, and the Deputy President erred in not requiring them to be produced, because they would show that “the Respondent may have committed cybercrime subject to two years imprisonment” and “the related evidences are illegal” [sic].

[10] In his notice of appeal for the second appeal, Dr You contends that a stay should be granted because:

“Unless the permission is granted as an outcome of the appealing, the Respondent should be considered not having a permission to be represented by a paid lawyer in conference and hearing. As stated in Section 596, Fair Work Act and Section 12(3) Fair Work Rules.” [sic]

[11] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 2 Paragraph [5] of that decision states: 

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[12] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 3 

[13] The application of the above principles is subject to the applicant for a stay demonstrating at the outset there is an operative decision with ongoing effect that is capable of being stayed. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal. 4

[14] I am not persuaded that a stay order should be issued in respect of the decision to refuse to issue the order sought by Dr You for the production of documents. That decision did not give rise to any operative, ongoing order that is capable of being stayed. Staying the decision would not result in the order for production sought by Dr You being issued against the respondent. There is nothing to be stayed, and no practical result would ensue.

[15] Nor am I persuaded that the balance of convenience favours the grant of a stay of the decision concerning legal representation. The hearing of Dr You’s unfair dismissal application is currently underway before the Deputy President. The entire week has been reserved for the hearing by the Deputy President. The respondent is currently represented by counsel consistent with the Deputy President’s decision, and the attendance of witnesses has been arranged. If the decision granting permission for legal representation is stayed, there is a real risk that the hearing will need to be adjourned since it is unlikely that the respondent has another advocate available for whom permission is not required under s 596 and who is in a position to immediately step into its counsel’s shoes. This would cause the wastage of the hearing time set aside by the Commission, cause additional cost and inconvenience for the respondent, and delay the opportunity for Dr You to obtain a remedy if he is ultimately successful in his unfair dismissal application. This weighs strongly against the grant of a stay.

[16] I am not satisfied that Dr You has demonstrated any irreversible, significant or even discernible prejudice that would result in the balance of convenience weighing in favour of the grant of a stay. In the decision granting permission for legal representation, the Deputy President said:

“[44] Further, I do not consider that granting permission for CSIRO to be represented in this case will result in any unfairness to Dr You. Matters before the Commission frequently involve one party being legally represented while another party is self-represented, meaning that the Commission is experienced in ensuring as far as is reasonable that the self-represented party is not disadvantaged and has every opportunity to put forward their case. Further, acknowledging that English is not Dr You’s first language, the Commission can (subject to a request from Dr You) arrange for a translator to be available to assist the parties and the Commission in this matter. Also relevant in this regard is my conclusion above that granting permission is unlikely to fundamentally change the dynamics and manner in which this matter proceeds.”

[17] I note that the services of an interpreter have been arranged for the hearing on an ongoing basis. In any event, any difficulty which Dr You might suffer because he speaks English as a second language is not associated with the grant of permission for legal representation to the respondent. Dr You has not identified any other persuasive reason why, contrary to the Deputy President’s reasoning, there is a real possibility that he might not receive a fair hearing if no stay is granted.

[18] Dr You submits that his appeal will have no purpose if a stay is not granted. I do not accept this. It is obviously correct to say that the hearing will proceed, with the respondent being legally represented, if a stay is not granted. This ultimately will be of no moment if Dr You is successful in his unfair dismissal application. If he is unsuccessful, his appeal may be considered in light of the outcome, either alone or in conjunction with another appeal from that outcome. He may be able to obtain a rehearing on appeal if he demonstrates that permission under s 596 was granted erroneously and, as a result, he was denied a fair hearing.

[19] My conclusion as to the balance of convenience makes an assessment as to whether the second appeal is arguable with reasonable prospects of success unnecessary. It is sufficient to observe that the prospects of permission to appeal being granted in the public interest are not strong. The appeal is from an interlocutory and discretionary procedural decision, and raises no new issue as to the operation of s 596, which provision is already the subject of a number of Federal Court and Full Bench authorities.

[20] It is apparent to me that Dr You’s substantial purpose in seeking the stay orders is to prevent the hearing of his unfair dismissal application proceeding for the remainder of the week. However the power to stay a decision under s 606 of the FW Act is not a power to stay proceedings following the lodgment of an appeal against a decision of an interlocutory nature in those proceedings. 5 I note that Dr You has submitted that he is not physically or mentally fit to proceed with the hearing before the Deputy President. That is not a matter which is substantially relevant to the stay applications, but should properly be the subject of an adjournment application made directly to the Deputy President. Such an application would need to be supported by the necessary contemporary medical evidence.

[21] The applications for stay orders are dismissed for the reasons stated.

VICE PRESIDENT

Appearances:

Dr S You, on behalf of himself.
Mr J Tracey, on behalf of CSIRO.

Hearing details:

2020.
Sydney (via telephone):
26 May.

Printed by authority of the Commonwealth Government Printer

<PR719665>

 1   [2020] FWC 2679

 2   [2000] AIRC 785, Print S2639

 3   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 4   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]; Bahonko v Sterjov [2007] FCA 1717 at [50]

 5   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]