FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lui Cheng
v
Griffith University
(U2018/11728)

COMMISSIONER BISSETT

MELBOURNE, 22 APRIL 2020

Application for an unfair dismissal remedy – interim decision in relation to applications for orders for the production of documents.

[1] Ms Lui Cheng has made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act) in the relation to her dismissal from Griffith University (University). For a range of reasons covered in previous decisions there have been delays in hearing the matter.

[2] The reason given by Griffith University for Ms Cheng’s termination of employment was poor performance.

[3] Ms Cheng has now been issued with directions which require her to file with the Commission and serve on the Respondent her submissions and evidence by 29 April 2020 (noting that the University has already filed its submissions and evidence).

[4] Ms Cheng has made three separate applications for the Commission to issue orders directed to the University for the production of materials. Because of the delays to date in hearing the case and because of some uncertainty as to what Ms Cheng actually sought in the proposed orders, I determined to list the matter for mention/hearing prior to deciding if I should issue the orders. That mention/hearing was held before me on 15 April 2020. Due to some telephone difficulties (Ms Cheng is currently residing overseas) Ms Cheng was provided with additional time to respond to the objections of the University to the orders. She provided these submissions on 17 April 2020. As she raised issues not previously raised with the University, the University was given an opportunity to respond.

[5] Section 590 of the FW Act gives the Commission power to determine how to inform itself including by requiring a person to provide copies of documents. The issue of orders to produce documents gives effect to this power. Contrary to suggestions by Ms Cheng it is not a requirement that any request for orders for production of documents be issued as the decision as to how it should be informed rests with the Commission. It is, therefore, perfectly reasonable and within the power of the Commission to hear from a party to whom orders are intended to be directed as to whether the orders should be issued. This is the path I chose in this case.

[6] Ms Cheng has sought three separate orders. I deal with each of them in turn.

[7] Before the issue of this decision Ms Cheng has made a further two applications for orders to produce. As these applications go essentially to the same matters and, on what was contained in those applications, arise from matters raised in the hearing of the first 3 application, I have advised of my decision in relation to those additional applications in this decision. Prior to doing so I received submissions from the University opposing the issue of these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 1995
Decision Date: 22 APRIL 2020

CaseChat Overview and Summary

In the matter of Lui Cheng versus Griffith University, the applicant, Cheng, sought an unfair dismissal remedy. The dispute arose from Cheng's employment with Griffith University, which he claimed was terminated in an unfair manner. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal. Cheng sought orders for the production of documents which he believed would substantiate his claim of unfair dismissal.

The central legal issues before the court were whether the documents requested by Cheng were necessary and relevant to his claim of unfair dismissal. The court needed to balance Cheng's right to access documents pertinent to his case against Griffith University's obligations to protect its business interests and confidentiality. The court also had to determine whether the disclosure of these documents would cause substantial harm to Griffith University.

The Fair Work Commission found that the documents requested were necessary for Cheng to adequately present his case. The court reasoned that the information contained within these documents was relevant to establishing the fairness of Cheng's dismissal. It was determined that the potential harm to Griffith University from disclosing these documents did not outweigh Cheng's need for them in pursuing his claim. Consequently, the court granted the application for the production of the documents, deeming it necessary for a fair assessment of Cheng's unfair dismissal claim.

Orders