Leading by example: the gold standard for procedural fairness in FWC employee dismissal case

Procedural fairness can be tricky to get right, however, the recent case of Dr Shaodi You v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO [2020] FWC 6852 (You v CSIRO) had the Fair Work Commission (FWC) commending CSIRO for ticking all the procedural fairness boxes when dealing with allegations of suspected employee misconduct, and serves to provide a useful checklist for other employers dealing with similar issues.

The case reminds us that affording proper procedural fairness in misconduct matters requires clear communication with staff about:

• standards of appropriate conduct;
• what the consequences of misconduct may be; and
• where misconduct is suspected to have occurred, consistently providing the employee with every opportunity to respond to the allegations of misconduct, before reaching any decision about the appropriate outcome.

The facts in You v CSIRO

Dr You had been employed by the CSIRO since July 2016 in various research positions which included supervising PhD students at the Australian National University (the ANU).

Over the course of 2018, Dr You engaged in a number of instances of suspected misconduct. This included intimidating and aggressive behaviour towards ANU students, and taking a trip to China where the CSIRO suspected Dr You of meeting a client without the CSIRO's permission, despite knowing permission from the CSIRO was required.

Dr You was counselled about aspects of his conduct, but repeatedly failed to respond to emails from the CSIRO, and failed to comply with directions to attend meetings with the CSIRO to discuss and respond to concerns about his behaviour. Notably, in response to a direction to attend a meeting in October 2018, Dr You accused the CSIRO of "witch hunting", stated he would contact his union because he was being "abused and bullied", and did not attend this meeting.

Dr You was subsequently directed to attend an Independent Medical Assessment (IME), and to not engage in any work activities until the outcome of this IME was known. Dr You agreed to attend the IME, however, he continued to engage in workplace activities and contact students despite this, and subsequent directions not to do so. At hearing, the Commissioner found that Dr You had:

• failed to follow a direction of 22 October 2018 to attend a meeting on 26 October 2018;
• failed to follow a formal direction of 26 November 2018 not to attend the Black Mountain site, or engage with his work or supervise students;
• failed to follow a formal direction of 18 December 2018 not to attend the Black Mountain site, or engage with his work or supervise students;
• engaged in improper conduct in relation to interactions with CSIRO/ANU Students during 2018; and
• withdrawn a conference paper in December 2018 to the CVPR Conference without knowledge of, or consultation with other authors.

Throughout this period, the CSIRO repeatedly advised Dr You that a failure to comply with a reasonable direction was serious and may breach the CSIRO's policies, including its Code of Conduct, and could result in disciplinary action including dismissal.

Ultimately, on 16 May 2019, the CSIRO engaged an independent investigator to investigate seven instances of alleged misconduct by Dr You (Allegations). Dr You was advised of the investigator's engagement and the details of the Allegations. Dr You was again provided with an opportunity to respond to the Allegations as part of the investigation, which he did. Based on all the evidence, the investigator found a number of the Allegations were substantiated and Dr You was provided with a copy of the investigation report. In October 2019, the CSIRO wrote to Dr You advising him that it accepted the findings and recommendations of the investigation report, and proposed to terminate his employment based on these findings. The CSIRO invited Dr You to respond to this proposed sanction, which he did. On 6 November 2019, the CSIRO wrote to Dr You advising him that his employment had been terminated.

Dr You brought an unfair dismissal claim to the FWC.

No unfair dismissal

The Commissioner held that Dr You was not unfairly dismissed, and that the dismissal was not harsh, unjust or unreasonable. In reaching their findings, the Commissioner found that five of the initial seven allegations were substantiated. A further allegation which was raised in the proceedings – that Dr You had engaged in employment with another university whilst still employed by the CSIRO – was also substantiated. The Commissioner found that based on this, there were valid reasons for dismissal relating to Dr You's conduct, specifically, that he had:

• wilfully disobeyed, or wilfully disregarded, a direction given by a person having the authority to give the direction, being a direction with which it is the duty of the officer to comply;
• engaged in improper conduct as an officer; and
• contravened or failed to comply with a provision of the Service and Industry Research Act 1949, the Terms and Conditions of Service, or the CSIRO Code of Conduct.

In considering whether Dr You was given an opportunity to respond to any valid reason related to his capacity or conduct, the Commissioner particularly focused on the fact that Dr You was provided with every opportunity to respond to the Allegations throughout the entire process. Whilst noting that an opportunity to respond "does not require formality", the Commissioner highlighted that in this matter "there was a high degree of formality [and that] the Applicant (over a long period) was provided with every opportunity to respond. He was afforded a high degree of procedural fairness".

The Commissioner further went on to say that:

"It is hard to see how, in respect of Allegations 1 – 7, the Applicant could have been afforded any greater measure of procedural fairness either by Ms Byers [the investigator] or by Ms Moate [a Director at the CSIRO]. Further, it is evident that the Applicant availed himself of the many opportunities afforded to him."

The Commissioner also found that with respect to the additional Allegation 8 raised during proceedings, that Dr You was given ample opportunity to give a response during proceedings and that "any procedural defect in relation to Allegation 8 was cured by the opportunity afforded to the Applicant in the Commission".

Finally, in considering harshness, the Commissioner held that they were: "satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. This is because, considered both individually and collectively the allegations that I have found substantiated support a finding of a valid reason and, further, the Applicant was afforded considerable procedural fairness in relation to these matters."