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
DEPUTY PRESIDENT YOUNG
COMMISSIONER HARPER-GREENWELL

SYDNEY, 20 JULY 2020

Appeals against interlocutory decisions of Deputy President Kovacic in matter number U2019/13254

[1] Dr Shaodi You has lodged two appeals, for which permission to appeal is required, against interlocutory decisions made by Deputy President Kovacic in the course of dealing with Dr You’s application for an unfair dismissal remedy against the CSIRO. In the first appeal in matter C2020/3924, Dr You seeks to appeal against a decision by the Deputy President to decline to issue orders sought by him for the CSIRO to produce documents which Dr Shaodi contends are necessary “to verify the Respondent’s evidences are obtained legally, and whether the Respondents are committing a crime that put the Commonwealth Security in danger”. In the second appeal in matter C2020/3947, Dr You seeks to appeal a decision to grant the CSIRO permission for legal representation at the hearing of his unfair dismissal remedy application.

[2] The background to the matters is as follows. Dr You was employed by the CSIRO as a research scientist until his dismissal on 6 November 2019 for misconduct. Lawyers acting on his behalf lodged his unfair dismissal application on 27 November 2019. The matter was allocated to the Deputy President on 20 December 2019 after conciliation in the matter was unsuccessful. On 24 January 2020, the CSIRO’s lawyers filed a Form F53 notice that they were commencing to act for the CSIRO. The Deputy President conducted a directions hearing on 29 January 2020, at which it appears both parties were granted permission for legal representation pursuant to s 596(2) of the Fair Work Act 2009 (FW Act).

[3] On 5 February 2020, the Deputy President listed the matter for hearing for five days on 25 to 29 May 2020. On 18 March 2020, Dr You made an application for an order that the CSIRO produce documents pertaining to the termination of his employment and the allegations of misconduct made against him. On 19 March 2020, the Deputy President decided to issue the order sought in part only on the basis that Dr You could make a further application once the CSIRO had filed its evidentiary case. The order was issued on 20 March 2020 and the relevant documents were produced on 30 March 2020.

[4] On 9 April 2020, Dr You’s lawyers filed a Form 54 notice that they were ceasing to act for him. On 14 April 2020, Dr You filed a request, supported by a submission, that the permission granted to the CSIRO for legal representation be rescinded. This request was refused by the Deputy President the following day. On 20 April 2020 Dr You sent further correspondence to the Commission inquiring why the permission granted to the CSIRO for legal representation “still stands” in circumstances…

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] FWCFB 3804
Decision Date: 20 JULY 2020

CaseChat Overview and Summary

In the case of You v CSIRO, the dispute before the Fair Work Commission was primarily concerned with the termination of employment and the subsequent procedural fairness afforded to the applicant. The applicant, represented by legal counsel, appealed against interlocutory decisions made by Deputy President Kovacic in a matter that originated from a lower tribunal decision. The appeal focused on the interpretation and application of procedural fairness principles in the context of employment terminations under the Fair Work Act 2009. The court was tasked with determining whether the Deputy President correctly interpreted and applied the relevant legal standards in assessing the fairness of the proceedings.

The central legal issues revolved around the adequacy of procedural fairness provided to the applicant during the termination process. The applicant argued that the procedural steps taken by the employer, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), were insufficient to meet the requirements of natural justice and procedural fairness. Specifically, the applicant contested whether the opportunity to be heard and the provision of reasons for the decision were appropriately observed. The court needed to examine whether the Deputy President's findings on these points were supported by the evidence and whether there were any errors in law that warranted a different outcome.

Upon review, the Fair Work Commission found that the Deputy President's analysis and conclusions were consistent with the applicable legal principles. The court held that the procedural fairness afforded to the applicant was adequate, as the opportunity for the applicant to present their case and the reasons provided for the decision were in line with the statutory and common law requirements. The Commission upheld the interlocutory decisions, affirming that the Deputy President correctly exercised their discretion and applied the law appropriately. The appeal was thus dismissed, with the court confirming that the procedural fairness was satisfactorily observed in the original decision-making process.

Orders