Lui Cheng v Griffith University
[2020] FWC 1995
•22 APRIL 2020
| [2020] FWC 1672 |
| 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 further orders. Ms Cheng was given an opportunity to reply to these submissions. I have taken these submissions into account in reaching my decision or each order.
[8] As it is relevant to the orders sought by Ms Cheng, I note that the University has filed its submissions and evidence in relation to Ms Cheng’s application for relief from unfair dismissal. In those submissions dated 3 June 2019 the University states:
The reason for Ms Cheng's dismissal was unsatisfactory work performance.
Ms Cheng was notified of the reason for her dismissal by letter dated 25 October 2018
and provided with 1 week pay in lieu of notice.
THE INITIAL APPLICATIONS
Order 1
[9] The first documents Ms Cheng seeks are:
All written or verbal record in any form from the Head of Element (Ms Heidi Piper) to any Griffith staff including but not limited to the applicant regarding Ms Piper’s decision to confirm Ms Cheng’s “continuing appointment for an indefinite period” according to clause 41 of the Enterprise Agreement 2012- 2016.
[10] In her application for the order Ms Cheng says that these documents are necessary because:
According to the Griffith University (GU) Enterprise Agreement 2012-2016(EA 2012-2016) which includes Griffith University Probation Policy and Procedure as parts of the EA 2012-2016, only the Head of Element had the authority to confirm Ms Cheng’s “continuing appointment for an indefinite period”. Please refer to clause 41 of the EA, and the last part of the two documents (Griffith University Probation Policy and Procedure).
To my understanding, the Head of Element on or before 25 June 2018 was Ms Heidi Piper. Please let me know if my understanding is inaccurate.
If Ms Cheng’s “continuing appointment for an indefinite period” was never confirmed by the Head of Element from GU, it is possible that Fair Work Commission has no jurisdiction to handle this unfair dismissal matter because Ms Cheng’s 3-month contract ended on 25 June 2018. Please advise.
[11] Ms Cheng also says that the order should be issued because the Enterprise Agreement places a legal obligation on the University to confirm employment and the document is an important part of the compulsory process under clause 41 of the Agreement.
[12] Ms Cheng also says that Ms Piper was the only person with authority to confirm appointment or terminate employment.
[13] Ms Cheng further submits that she was advised in writing on 25 September 2018 by Mr Ken Greedy, Director People and Wellbeing that there was “a decision to taken confirm your appointment” and there therefore must be such a decision.
[14] Ms Cheng seeks the documents “so the right of the applicant to receive the written record/document about this decision will hopefully not be further violated”.
[15] Ms Cheng also requests that the University representative to advise whether she asked Mr Greedy directly about the records.
[16] The University says that to issue the orders would be futile as the document that Ms Cheng seeks (confirmation of continuing employment post probationary period) does not exist. It submits that Ms Cheng’s on-going employment occurred by default (that is, automatically) as no action was taken to terminate her employment within the probationary period.
[17] The University submits that this advice has previously been provided to Ms Cheng on 7 November 2019 (which she then forwarded to the Commission on 31 March 2020).
[18] The University also submits that it has provided to Ms Cheng the contents of her personal file including all documents relating to her performance.
Decision
[19] I have decided not to issue the order sought by Ms Cheng.
[20] To the extent Ms Cheng seems to suggest that the document will assist the Commission in determining if it has jurisdiction to deal with her application (as her employment was never confirmed) the University does not raise this jurisdictional objection. The University does not say that Ms Cheng was not employed at the end of her probationary period and, in fact, concede that she was.
[21] Whilst Ms Cheng may wish to have the document provided to her (if it exists) it is not relevant to the reason for her dismissal and will not assist in determining any matters at issue in her dismissal.
[22] If it is that Ms Cheng does not consider the Commission has jurisdiction to deal with her application for relief from unfair dismissal she may withdraw her application.
[23] What occurred in terms of any failure to advise Ms Cheng of her ongoing employment status post her probationary period is not a matter with any apparent relevance to the matter to be decided which is whether Ms Cheng was unfairly dismissed on the grounds of performance.
Order 2
[24] The second document sought by Ms Cheng is:
Griffith University (GU)’s unconditional offer of a “continuing appointment made for an indefinite period” to Ms Cheng.
[25] In her application Ms Cheng says the document is necessary because:
According to page 22/239 of the unfair dismissal benchbook issued by Fair Work Commission (FWC):
What is a contract?
‘The law holds that before any simple contract [including a contract of employment and a contract for services] is enforceable it must be formed so as to contain various elements. These are: 1. There must be an “intention” between the parties to create a legal relationship, the terms of which are enforceable. 2. There must be an offer by one party and its acceptance by the other…..”
Griffith University claimed that I was in a continuing appointment after 25 June 2018. However, to my understanding, GU did not provide me with any unconditional offer of a “continuing appointment made for an indefinite period”.
If GU never offered Ms Cheng any unconditional offer of “continuing appointment for an indefinite period”, it is possible that Fair Work Commission has no jurisdiction to handle this unfair dismissal matter because Ms Cheng’s 3-month contract ended on 25 June 2018. Please advise.
[26] Ms Cheng said that she seeks the document as she wants to confirm if it exists or not.
[27] The University again says that the issue of the order is futile. Ms Cheng already has all documents from her personal file.
[28] The University says that Ms Cheng received an employment contract with an offer of continuing employment for an indefinite period subject to a probationary period and some other matters. It says that there is no document confirming appointment post the probationary period. Further, it says that there was no requirement in the 2012 Agreement, which applied to Ms Cheng’s employment at the time, to provide a staff member with an unconditional offer of a “continuing appointment made for an indefinite period”.
Decision
[29] I have decided not to issue the order sought by Ms Cheng.
[30] Again the University does not suggest that Ms Cheng was not employed on an ongoing basis post her probationary period and does not raise any jurisdictional objection to the application for relief from unfair dismissal being heard.
[31] The matter before the Commission in the unfair dismissal application is in relation to actions taken by the University to terminate Ms Cheng’s employment. This occurred well after the end of her probationary period of employment and whilst she was still employed by the University. There is no position put by the University that Ms Cheng was not properly employed by it at the time it decided to terminate her employment.
[32] The document sought has no apparent relevance to the matter the Commission needs to decide. I accept that Ms Cheng has all the documents from her personal file and it would be futile to issue the order sought by her.
Order 3
[33] The third set of documents sought by Ms Cheng are:
All the documents and records which show that the supervisor conducted final review of the applicant’s overall performance at least two weeks prior to the end of the probationary period.
All the documents and records which show the content of the final review of the applicant’s overall performance during the probationary period (26 March 2018 – 25 June 2018).
If the supervisor (Ms Kathryn Bennett) did not conduct the final review of the applicant’s overall performance at least two weeks prior to the end of the probationary period, please let the applicant and the Fair Work Commission know.
[34] Ms Cheng seeks the documents because:
According to Clause 41.2 of the EA 2012-2016:
41.2 Decision to Confirm Appointment
The supervisor should conduct the final review of the staff member’s overall performance at least two weeks prior to the end of the probationary period. As a result of this review, the supervisor will recommend to the Head of Element to either confirm or terminate the appointment. The Head of Element will make a decision to either confirm or recommend termination of appointment to the Director, OHRM.
Griffith University claimed that I was in a continuing appointment after 25 June 2018. According to clause 41.2 of the EA 2012-2016, the only way to make a decision to confirm appointment is to start with:
The supervisor should conduct the final review of the staff member’s overall performance at least two weeks prior to the end of the probationary period.
However, to my understanding, the supervisor Ms Kathryn Bennett never conducted the final review of the applicant’s overall performance during probationary period at least two weeks prior to the end of the probationary period(the end of probationary period should be 25 June 2018 in the applicant’s case so the final review of the applicant’s overall performance during probationary period should be conducted on or before 11 June 2018 according to clause 41.2 of the EA 2012-2016).
If GU is in breach of clause 41.2 of the EA 2012-2016, no decision as defined by clause 41.2 of the EA 2012-2016 can never be legally made. If GU never made a legal decision to confirm Ms Cheng’s continuing appointment, it is possible that Fair Work Commission has no jurisdiction to handle this unfair dismissal matter because Ms Cheng’s 3-month contract ended on 25 June 2018. Please advise.
[35] Ms Cheng submits that the email from Mr Greedy of 25 September 2018 states that a “review of your performance was done prior to the end of probation period and this resulted in probation being confirmed.” Ms Cheng says, therefore, that there some communication from the person who undertook the review, otherwise how could Mr Greedy state as he did.
[36] Ms Cheng requests that the record be produced so that her right to “receive the written record/document about this [probationary] review of her performance” not be further violated.
[37] The University says that to issue the order would be futile as:
• Ms Cheng has been provided with a copy of all documents in regards to the performance review that occurred.
• Regarding a “final review” which would potentially lead to confirmation of employment at end of probation period – that document does not exist.
• All documentation in regards to Ms Cheng’s performance management process during and after her probation have been provided to her either in her employment file that was sent to her directly by the University (which was also sent by Ms Cheng to Ms Rance on 25/10/19) or has been provided through submissions the Respondent made last year to the FWC.
Decision
[38] I have decided not to issue the order sought by Ms Cheng in the form she has sought.
[39] Rather, I will order that the University produce all documents in relation to the review of Ms Cheng’s performance during and post her probationary period. This may satisfy Ms Cheng that she has received these documents and performance is clearly relevant to the dismissal of Ms Cheng.
[40] Whilst the University says that it has produced all performance review documents to Ms Cheng I will ask that these specific documents that go to her performance be produced to the Commission.
THE FURTHER APPLICATIONS
[41] Since the hearing of these three applications the Commission has received two further applications for production of documents from Ms Cheng. As outlined above I have considered these applications following receipt of written submissions from both parties.
Order 4
[42] The 4th order sought by Ms Cheng seeks:
1. All documents and records which show Mr Ken Greedy (Director, Human Resources)’s decision to terminate Ms Cheng’s appointment prior to the end of the probationary period (25 June 2018).
2. All documents and records which show Mr Ken Greedy (Director, Human Resouces)’s notification to Ms Cheng regarding his final decision (if any) to terminate Ms Cheng appointment prior to the end of the probationary period (25 June 2018). [sic]
[43] Ms Cheng set out in the application the purpose to which she sees the documents going. The reasons are not dissimilar to those set out above and are not repeated in full here. She did also state:
If Ms Cheng’s continuing appointment was terminated on or before 25 June 2018, it is possible that Fair Work Commission has no jurisdiction to handle this unfair dismissal matter because Ms Cheng’s 3-month contract ended on or before 25 June 2018. Please advise.
Decision
[44] There is no claim by the University that Ms Cheng’s employment was terminated on or before 25 June 2018. The University says, and I accept, that there are no documents that can satisfy this. Ms Cheng’s employment was not terminated until 25 October 2018.
Order 5
[45] In the last order Ms Cheng seeks:
The written advice from the Director, Human Resources to show the alternation of the employment contract: Ms Cheng’s “appointment was therefore confirmed by default"
[46] Ms Cheng seeks this document as she says that
Her employment contract “did not state “Type of appointment: you are offered a continuing appointment confirmed by default”. In fact, the employment contract states “Type of appointment: you are offer a continuing appointment made for an indefinite period subject to resignation, or the probationary, retirement, termination, change and redundancy provisions of the University”.
…Ms Rance [the University’s representative in these proceedings] failed to provide the written advice from the Director, Human Resources to show the alternation of the employment contract: [Ms Cheng’s “appointment was therefore confirmed by default"], Ms Rance’s statement of Ms Cheng’s “appointment was therefore confirmed by default" is deemed to be false, illegal and in violation of employment contract and EA 2012-2016. As a result, Ms Rance’s statement of Ms Cheng’s “appointment was therefore confirmed by default" is not valid. Therefore, Ms Cheng’s continuing appointment was never confirmed. As a result, Ms Cheng’s 3-month employment contract ended on 25 June 2018. Therefore, Fair Work Commission has no jurisdiction to handle this matter.”
Decision
[47] I do not intend to issue the order as sought by Ms Cheng. There is no apparent relevance of the documentation to the application for unfair dismissal. As stated above the University does not say it dismissed Ms Cheng on 25 June 2018. It does not raise a jurisdictional objection to Ms Cheng’s application.
[48] The unfair dismissal proceedings are not the place to seek documents not relevant to the unfair dismissal itself. Beyond performance issues it is not apparent that issues surrounding the conclusion of Ms Chen’s probationary period are of any relevance.
[49] The documents sought by Ms Cheng have no apparent relevance to the unfair dismissal application before the Commission. I will not order the production of them.
CONCLUSION
[50] The Order arising from order 3 above will be issued with this decision. Ms Cheng is required to serve it on the University.
[51] Ms Cheng is reminded that her submissions and evidence in relation to her application for relief from unfair dismissal are due to be filed by 4:00pm (AEST) on 29 April 2020.
COMMISSIONER
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