You v CSIRO
[2020] FWCFB 3804
•20 JULY 2020
| [2020] FWCFB 3804 |
| 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, 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 where he was no longer represented. On 22 April 2020 the CSIRO confirmed, in response to a query from the Deputy President’s chambers, that they would seek to be represented at the hearing. On 23 April 2020, Dr You sent in a further objection, supported by a submission, as to why the CSIRO should not be granted permission for legal representation. The same day, the Deputy President issued directions for the filing of written submissions concerning the issue of representation.
[5] On 1 May 2020, Dr You made a further application for the production of documents by the CSIRO. The documents sought to be produced are set out in Annexure A to this decision. On 4 May 2020, Dr You was advised that the Deputy President declined to issue the orders for production sought on the basis that they were oppressive and the bulk of the documents sought would be of limited relevance.
[6] On 7 May 2020, Dr You filed his written submissions concerning the issue of permission for legal representation. In broad summary, he contended that because he was self-represented, a non-native English speaker, had limited resources and no legal experience, it would be unfair to grant permission for legal representation to the CSIRO in circumstances where it was a large employer with significant internal legal personnel.
[7] On 11 May 2020, in correspondence from the Deputy President’s chambers to Dr You, the Deputy President’s full reasons for refusing to issue the orders for production sought by Dr You on 1 May 2020 were given. The correspondence relevantly stated:
“…The Deputy President has considered your application against the background of the Respondent’s Outline of Submissions and evidentiary material. In short, the Deputy President declines to make the Order sought for several reasons, including that:
• some of the documents/records sought replicate aspects of your previous Form F52 application of 18 March 2020 which were already refused by the Commission, for instance, items 3-8 of your most recent application appear to replicate those aspects of your earlier application in which you sought any documents (including any internal briefing documents and correspondence) held by the Respondent regarding the decision to terminate your employment and any documents relating to the allegation that you behaved inappropriately in respect of students;
• you will have the opportunity to cross examine the Respondent’s witnesses in respect of issues related to the termination of your employment by the Respondent, in particular Ms Toni Moate (the decision maker in respect of the termination of your employment), Ms Lisa Van Schieveen, Mr Callum Johnston and Dr Nick Barnes;
• advice received from the Respondent on 31 March 2020 that it is unlikely that it will seek to rely on video footage of your attendance at a conference in Perth in December 2018; and
• the relevance of some of the documents/records sought in your most recent application, e.g. some of the records sought in respect of Ms Byers at item 9 of your proposed order do not appear relevant to your unfair dismissal application.”
[8] On the same day, 11 May 2020, Dr You applied again for orders for the production of documents against the CSIRO. The categories of documents which he sought are set out in Annexure B to this decision. The email covering Dr You’s application identified his purpose in seeking the documents as follows:
“Applicant respectfully seeks an order to produce a few documents related to the Respondent's reason for dismissal. It is in serious concern the Respondent may have committed multiple federal offences and state offences. It is in concern multiple evidences submitted by the Respondent are unsolicited. Therefore, unjust, unfair and unreasonable.
The Applicant aware his working email account has been accessed by the Respondent (CSIRO) without his knowledge at least twice in 2018 and 2019. And personal information of third parties has been collected and used by the CSIRO. At least one third party person has confirmed he/she has never received any privacy notice from CSIRO. The Applicant in genuine believe he has the obligation to verify and inform all the third parties about the leaking as soon as possible.”
[9] The Deputy President’s chambers quickly sent a response to the application on the same day (11 May 2019) which stated: “The Deputy President does not propose to make the order sought in the below email as these matters are all capable of being addressed in any cross examination of Mr Johnston and Ms Van Schieveen”.
[10] On 15 May 2020, the Deputy President conducted a hearing on the issue of whether the CSIRO should be granted permission for legal representation, as well as an application made by the CSIRO for security for costs. The Deputy President communicated a decision at the end of the hearing that the CSIRO was granted permission for legal representation.
[11] On 22 May 2020, the Deputy President issued his reasons for his earlier decision to grant the CSIRO permission for legal representation (together with his decision concerning the CSIRO’s application for security for costs). 1
“[37] As previously noted, the Commission has the benefit of the parties having filed their respective outlines of submissions and evidentiary material in this case. What is clear from that material is that many if not most of the factual issues in this case are disputed. In addition, Dr You’s credit as a witness is, as foreshadowed above in CSIRO’s submissions, likely to be a key issue in substantive proceedings concerning his unfair dismissal application. These issues are likely to result in extensive cross examination both of and by Dr You.
[38] I note also that Dr You in his submissions regarding CSIRO’s application for security for costs contended among other things that CSIRO had committed offences under various Commonwealth and state laws, including the Information Privacy Act 2014 (ACT), the Health Records (Privacy and Access) Act 1997 (ACT), the Telecommunications Act 1997 (Cth) and the Surveillance Devices Act 1998 (WA). A fair reading of those submissions suggests that these issues are likely to be traversed in his cross examination of some of CSIRO’s witnesses.
. . . .
[41] Having regard to the decisions in Changan and King and the factors identified at paragraphs [36]-[38] above, I am satisfied that this matter involves a degree of complexity such that representation would enable the matter to be dealt with more efficiently. The efficiency will in my view relate primarily to the evidentiary aspects of the case. For all these reasons, I am satisfied that the requirement in s.596(2)(a) of the Act is met in this case.
[42] With regard s.596(2)(b) of the Act, while I note Dr You’s contention that CSIRO employs between 60 and 100 in-house lawyers, the LinkedIn profiles attached to his submissions indicate that the lawyers concerned have expertise in the following areas – commercial, contractual, intellectual property, work health and safety/rehabilitation and/or workers’ compensation matters. Significantly, none of the profiles provided by Dr You identified workplace relations expertise and/or experience in prosecuting contested matters before the Commission. Similarly, the LinkedIn profiles attached to Dr You’s submissions of some of CSIRO’s human resource/workplace relations employees did not identify or point to any experience in appearing in the Commission in contested matters such as this one. In those circumstances, having regard to the complexities described above, I am satisfied that CSIRO is unable to represent itself effectively in this matter in the absence of legal representation.
[43] In circumstances where I am satisfied that the requirement in s.596(2)(a) and (b) of the Act are met, I turn now to consider whether it is appropriate to exercise the discretion available to the Commission to grant CSIRO permission to be represented in this matter. To that end, I note firstly that CSIRO has been legally represented in the proceedings to date. As such, drawing on the language in Warrell, I consider it unlikely that granting permission for CSIRO to be represented would fundamentally change the dynamics and manner in which the hearing of Dr You’s unfair dismissal application proceeds.
[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.
[45] Finally, in my view significant weight should be attached to the prospect that this matter will be dealt with more efficiently were permission to be granted, particularly when regard is had to the potential for the proceedings to be highly contested, the extensive witness evidence in this matter and the prospect that witness credit will be a significant issue in the proceedings.
[46] It is for these reasons that I decided to exercise the discretion available to the Commission under s.596 of the Act and grant CSIRO permission to be represented by a lawyer in these proceedings.”
[12] Dr You lodged both appeals on 26 May 2020, which was the second listed day for the hearing of his unfair dismissal application before the Deputy President. In each of his notices of appeal, he sought a stay pursuant to s 606 of the FW Act. The stay applications were heard by the presiding member of the Full Bench on 26 May 2020, and dismissed. In his decision, 2 the presiding member said (footnotes omitted):
“[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…
[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. 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.”
[13] The hearing of the evidence in Dr You’s unfair dismissal application before the Deputy President completed on 29 May 2020. On 11 June 2020 the Deputy President made directions for the filing of written closing submissions. The timetable for filing such submissions ends on 30 July 2020.
Dr You’s appeal grounds and submissions concerning permission to appeal
[14] Dr You’s notice of appeal in the first appeal identified the date of the decision under appeal as 11 May 2020. As earlier set out, on 11 May 2020 the Deputy President communicated two decisions to reject applications made by Dr You for order for production of documents – the first rejected his application made on 1 May 2020, and the second rejected his application made the same day (11 May 2020). The notice of appeal does not explicitly identify whether the first or second decision (or both) are the subject of the appeal, but the grounds of appeal appear to be directed to the rejection of the order for production sought on 11 May 2020. The four grounds of appeal 3 are somewhat lengthy, but may best and most fairly be summarised as follows:
(1) The decision was contrary to the overwhelming weight of the evidence, because the evidence showed that the CSIRO may have committed cybercrimes subject to two years imprisonment, and the related evidence was therefore illegal. The Deputy President refused to verify or filter the evidence.
(2) The Deputy President in his decision of 22 May 2020 relied upon the applications for production of documents in concluding that the evidence was complex and justified the grant of permission for legal representation, but the Deputy President did not order the production of the documents sought. Exclusion of illegal evidences would significantly reduce the complexity.
(3) Dr You did not have the capacity to demonstrate that evidence was illegally obtained in cross-examination.
(4) It was unreasonable for the Deputy President to overlook the potential for the commission of cybercrimes which are punishable by imprisonment.
[15] In his written submissions in support of his application for permission in respect of the first appeal, Dr You alleged “errors” not referred to in his notice of appeal, including “errors” said to have been made by witnesses at the hearing on 29 May 2020. He also alleged that there was an “error” in the use of illegal evidence. He contended that the grant of permission to appeal would be in the public interest because it raised the issue of cybercrime, which was important to Australia’s security, and because unauthorised access to a Commonwealth computer is a crime punishable by two years’ imprisonment.
[16] The grounds of the second appeal may be summarised as follows:
(1) The finding that the CSIRO did not have capability to represent itself was contrary to the overwhelming weight of the evidence.
(2) The grounds advanced by Dr You as to why there would be unfairness as between him and the CSIRO were ignored except for the fact that he is a non-English speaker and he would have access to a translator.
(3) The Deputy President ignored existing case law in making his decision.
(4) The finding that the matter was complex was contrary to the overwhelming weight of the evidence. The number of issues in the matter did not render it complex. The Deputy President relied on the applications for orders for production made by Dr You, but only one of these was granted.
(5) There was an inconsistent standard applied between the CSIRO, which is a large organisation, and Dr You, who is from a non-English speaking background.
(6) The CSIRO was permitted to be represented by a lawyer at the hearing on 15 May 2020 without having been given permission to do so.
[17] In his written submissions, Dr You submitted that the grant of permission to appeal would be in the public interest because:
• the decision would make it impossible for applicants to succeed against big companies unless it was quashed, since it establishes that big companies can deliberately use their unlimited resources to deliberately make the case look more complex and be represented by a highly paid barrister “who can easily slam any self-represented employee”;
• expenditure by the CSIRO on legal representation wasted and squandered Australian taxpayers’ money; and
• the hearing on 15 May 2020 demonstrated serious unfairness to non-English speaking background employees.
Consideration
General principles
[18] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[19] Section 400 of the FW Act applies to these appeals (notwithstanding that they concern interlocutory decisions involving the exercise of power under s 590 and 596 5). Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[20] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 7
[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.8 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[22] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 10 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
First appeal
[23] We do not consider that permission should be granted for the first appeal, for two reasons. Firstly, the appeal is concerned with a discretionary interlocutory procedural decision made by the Deputy President as part of the case management of the matter before him. It would not normally be in the public interest to grant permission to appeal from a decision of this nature. Because Dr You’s unfair dismissal application has yet to be determined by the Deputy President, it is not possible to conclude at this stage that the Deputy President’s refusal of the orders for production of documents sought by Dr You has had any prejudicial effect on his capacity to advance his case. If Dr You is ultimately unsuccessful in his application, it will be open for him then to appeal the final decision and any interlocutory decisions which affected the final result. Any challenge to the refusal to order production of the documents might then be considered in the proper context and any alleged prejudice to Dr You’s case (for example, by the admission of illegally-obtained evidence adverse to Dr You’s case) properly understood.
[24] Second, we can identify little merit in the first appeal in any event. The categories of documents to be produced under the orders sought by Dr You (whether on 1 May or 11 May 2020), apart from being almost self-evidently oppressive, and requiring in some cases the creation of documents or the production of documents in the possession, custody or control of persons other than the CSIRO, have little or no apparent relevance to the issues in the proceedings. In particular, the documents sought in the order applied for on 11 May 2020, which appears to be the subject of the first appeal, are concerned with an attempt to fish for documents to support the otherwise unsupported assertion that evidence sought to be adduced by the CSIRO was obtained illegally. As far as we can tell, this is based solely on the fact that the CSIRO accessed its own computer system in its investigation of the allegations of misconduct against Dr You. There is no basis for the proposition that there was an issue about the commission of a “cybercrime” which properly arose in the matter and required the order for production sought to be made.
Second appeal
[25] We are likewise not satisfied that it would be in the public interest to grant permission in relation to the second appeal. This appeal, again, concerns an interlocutory decision made by the Deputy President pursuant to s 596(2) of the FW Act that was discretionary in nature. There is no basis at this time for the conclusion that the grant of permission for legal representation to the CSIRO has resulted in prejudice to Dr You in the conduct of the hearing. As the Deputy President observed in his reasons of 22 May 2020, the Commission is commonly faced with the position of one party being legally represented and the other not, and is in a position to ensure a self-represented party is not disadvantaged and has a fair opportunity to advance their case. Further, the premise in Dr You’s case that the role of a lawyer is to engage in a pugilistic exercise to “slam” their opponent is misconceived, since lawyers have duties to both the tribunal and the opposing party which would bar them from taking unfair advantage of a self-represented litigant.
[26] Because the hearing of the evidence has been completed, with written closing submissions in the process of being filed pursuant to the Deputy President’s directions, the balance of convenience would weigh heavily against permission to appeal being granted. If permission was granted at this stage, and the appeal heard and determined in Dr You’s favour, presumably the hearing would have to be conducted a second time without the CSIRO being legally represented. This would represent a waste of time and resources of both the parties and the Commission in circumstances where no decision has yet been made as to whether Dr You’s unfair dismissal application will succeed. Further, Dr You has not advanced any contention that the grant of permission for legal representation to the CSIRO has yet caused him any unfair disadvantage at the hearing before the Deputy President. Insofar as Dr You has contended that permission for representation should not have been granted in circumstances where he does not come from an English-speaking background, we note that the services of an interpreter were made available to and utilised by Dr You throughout the hearing.
[27] We are not satisfied that Dr You has identified any meritorious ground of appealable error in the decision which would justify the grant of permission to appeal in the public interest. One important element in this case is, as earlier explained, that both Dr You and the CSIRO were granted permission for legal representation at the directions hearing on 29 January 2020. The decision the subject of the second appeal was, in substance, a refusal to revoke the earlier grant of permission rather than to grant permission for the first time. Dr You contended that circumstances had changed when, from 9 April 2020, he ceased to be legally represented himself. However, the Deputy President granted permission pursuant to s 596(2)(a) and (b), and it is not apparent to us how the considerations under these provisions might be affected by Dr You ceasing to be legally represented.
[28] It is apparent that the Deputy President determined the issue of legal representation in an orthodox way. The principles applicable to the grant of legal representation have been well-established in decisions of the Federal Court of Australia and Full Benches of this Commission, and the second appeal does not raise any issue in that connection which is novel or of wider application.
Conclusion
[29] For the reasons stated above, we are not satisfied that it would be in the public interest to grant permission to appeal in respect of either appeal. Accordingly, as required by s 400(1), permission to appeal must be refused for each of the appeals.
VICE PRESIDENT
Appearances:
Dr S You on behalf of himself.
Mr J Tracey of counsel for the Respondent
Hearing details:
2020.
Sydney:
6 July.
Printed by authority of the Commonwealth Government Printer
<PR721135>
Annexure A
1. Ms Jan Byers
a. Ms Byers’s licenses/warrants/permissions as an investigator for public agencies in all the states or territories of Australia where she has conducted the investigation regarding Dr You’s dismissal. Specifically:
New South Wales, as described in Commercial Agents and Private Inquiry Agents Act 2004 (NSW);
Queensland as described in Security Providers Act 1993 (Qld);
West Australia, as described in Security and Related Activities (Control) Act 1996 (WA); Tasmania, as described in Security and Investigations Agents Act 2002 (Tas);
Victoria, as described in Private Agents Act 1996 (Vic);
Australian Capital Territory, as described in Security Industry Act 2003 (ACT).
b. Any form of Rule/Policy/Under-taking/Code-of-conduct/Guideline or any other form of documents which explicitly defines Ms Jan Byer’s capacity and code of conduct as an investigator for public agencies.
c. A statistic how many times Ms Byers’s has conducted misconduct investigation under the request of the Respondent (Commonwealth Scientific and Industrial Research Organization). Among which, how many times Ms Byers makes a finding in favor of the employer, how many times Ms Byers makes a finding in favor of the employee.
d. A statistic of Ms Byers’s investigation outcome when the subject of the investigation is a natural person pertaining a misconduct: race, country of origination, gender, age, years employed by the company, outcome of the investigation. And a sub-statistic for those requested by the Respondent (CSIRO).
2. Mr Adrian Turner
a. All documents in the possession, custody or control of Mr Turner and his personal assistants pertaining to the termination of the Applicant’s employment and allegations of misconduct made against him, within the time range of 1 July 2018 to 31 December 2019, including but not limited to:
b. any correspondence or records of communications between Ms Adrian Turner (and his personal assistants) and any employee or contractor of the Respondent relating to the decision to terminate the Applicant’s employment.
3. Mr Callum Johnston, Ms Lisa van Schieveen, Ms Angela Morton, Ms Anthea White, Ms. Kati Retchie and Mr Frank O’Donnell (CSIRO Human Resources)
a. All documents in the possession, custody or control of Mr Johnston, Ms Schieveen, Ms Morton and Mr O’Donnell pertaining to the termination of the Applicant’s employment and allegations of misconduct made against him, within the time range of 1 July 2018 to 31 December 2019, including but not limited to:
b. Any correspondence or records of communications between Ms Adrian Turner (and his personal assistants) and any employee or contractor of the Respondent regarding the decision to terminate the Applicant’s employment.
4. Dr Nick Barnes
a. Any form of documents in the possession, custody or control of Dr Barnes which are related to his supervision with Mr Kaiyue Lu, within the time range from 1 July 2018 to 22 November 2018.
b. All documents in the possession, custody or control of Dr Barnes which are related to his supervision with Ms Peipei Song and Mr Changkun Ye,within the time range from 1 July 2018 to 22 November 2018.
c. Current and historical signed ANU/CSIRO supervision contracts with Ms Peipei Song and Mr Changkun Ye.
5. Mr Kaiyue Lu
a. The email which Mr Lu sends by himself to ANU which makes allegations against Dr You on 21 November 2018.
b. All documents in the possession, custody or control of Mr Lu which related to his allegation against Dr You that Dr You forces him to make an irrelevant lecture slides and threatens him not graduate as described in the email mentioned above.
c. Current and historical supervision contract signed with ANU of Mr Kaiyue Lu.
6. Dr Daniel MacDonald
a. Alldocuments in the possession, custody or control of Dr MacDonald that Ms Peipei Song, Mr Changkun and Ms Jing Zhang directly rather than interpreted through a third person requested removal of Dr You on 20 December 2018.
7. Ms Jing Zhang
a. Any form of documentsin the possession, custody or control whichshows Ms Jing Zhang directly, rather than interpreted through a third person, make an allegation against Dr You regarding withdrawing the research paper they co-authored and submitted to CVPR2019.
8. Ms Peipei Song and Mr Changkun Ye
a. Any form of documentsin the possession, custody or control whichshows Ms Peipei Song directly, rather than through a third person, make any allegation against Dr. You.
b. Any form of documentsin the possession, custody or control whichshows Mr Changkun Ye directly, rather than through a third person, make any allegation against Dr. You.
9. Higher Degree by Research Administrative Office, College of Engineering and Computer Science, Australian National University (HDR Office)
a. Application for PhD portfolio of Mr Kaiyue Lu, Ms Peipei Song and Mr Changkun Ye which is in the possession of HDR Office.
10. The Respondent (CSIRO)
a. All documents in the possession, custody or control of CSIRO which related to the unsolicited filming (voice and video recording) of Dr. You on 4 December 2018 at Perth.
b. Any other filming, voice taping in the possession, custody or control of CSIRO and its employees.
Annexure B
1. Mr Callum Johnston
A. Any form of evidence the access to Dr You’s email account without Dr You’s knowledge is approved by the Work Space Relations team of CSIRO as described in his witness statement paragraph 55. Along with the related policies.
B. The privacy notices served to the following persons on or around 12 October 2018 to inform them that their private information has been collected. As described in his witness statement paragraph 57 and related evidences CWJ15, CWJ16, CWJ17, CWJ18, CWJ19. Also as set out in CSIRO misconduct procedure – Disclosure of personal information, Australian Privacy Act 1988, Information Privacy Act 2014, Australian Capital Territory,:
a. Dr Shaodi You
b. Mr Fan Wang, Zongmu Co. a third party.
c. Ms Dale Druhan, Australian National University, a third party
d. Dr Larry Lu, Australian National University, a third party
e. Dr Hongdong Li, Australian National University, a third party
f. Dr Antonio Robles-Kelly, Deakin University, a third party
g. Dr B. Barkaren, Deakin University, a third party.
C. The consent the listed third parties approve CSIRO to collect their personal information for the purpose of investigating Dr You’s conduct. As set out in Privacy Act 1988, Information Privacy Act 2014, Australian Capital Territory.:
a. Mr Fan Wang, Zongmu Co. a third party.
b. Ms Dale Druhan, Australian National University, a third party
c. Dr Larry Lu, Australian National University, a third party
d. Dr Hongdong Li, Australian National University, a third party
e. Dr Antonio Robles-Kelly, Deakin University, a third party
f. Dr B. Barkaren, Deakin University, a third party.
D. The privacy notices served to the following persons on or around 14 December 2018 that their private information has been collected. As described in related evidences CWJ35 page 175, Also as set out in CSIRO misconduct procedure – Disclosure of personal information:
a. Dr Shaodi You
b. Dr Daniel MacDonald, Australian National University, a third party
2. Ms Lisa van Schieveen
A. Any form of evidence the access to Dr You’s email account without Dr You’s knowledge is approved CSIRO as described in her witness statement paragraph 24. Along with the related policies.
B. The privacy notices served to the following persons on or around 26 August 2019. As described in her witness statement paragraph 24 and related evidences LVS9, and as set out in CSIRO misconduct procedure – Disclosure of personal information,:
a. Assoc. Prof. Hanna Suominon;
b. Mr. Yongxuan Fu.
C. The consent the listed person approve CSIRO to collect their personal information for the purpose of investigating Dr You’s conduct. As set out in Privacy Act 1988, Information Privacy Act 2014, Australian Capital Territory.:
a. Assoc. Prof. Hanna Suominon;
b. Mr. Yongxuan Fu.
1 [2020] FWC 2679
2 [2020] FWC 2752
3 There are five number grounds of appeal in the notice of appeal, but the grounds numbered 2 and 4 are the same.
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 See Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 4552 at [10]-[11]
6 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
3
10
0