[2020] FWCFB 6011

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jeremy Lee
v
Superior Wood Pty Ltd
(C2019/4915)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER HAMPTON

SYDNEY, 10 NOVEMBER 2020

Appeal against decision [2019] FWC 5095 of Commissioner Simpson in matter U2018/2253.

Introduction and background

[1] In a decision issued on 5 May 2020 1 (May decision), we considered and determined an appeal made by Mr Jeremy Lee against a decision made by Commissioner Simpson on 22 July 20192 (Commissioner’s decision) concerning Mr Lee’s application for an unfair dismissal remedy arising from the termination of his employment with Superior Wood Pty Ltd (Superior Wood). The Commissioner’s decision was concerned with the question of the unfair dismissal remedy to be awarded to Mr Lee, his dismissal having previously been found to have been unfair in a Full Bench appeal decision issued on 1 May 20193 (first appeal decision). The Commissioner declined to order the remedy of reinstatement, as was sought by Mr Lee, and instead ordered that he be paid compensation in the amount of $24,117.08 (less tax) plus superannuation of 9.5% on this amount.4 This was the maximum amount of compensation permissible under s 392(5) of the Fair Work Act 2009 (FW Act). In the May decision, we determined that the Commissioner’s decision was attended by appealable error and, having earlier granted permission to appeal, we upheld the appeal and quashed the Commissioner’s decision. We further determined that we would ourselves rehear the Mr Lee’s unfair dismissal application insofar as it concerned the remedy, if any, to be provided to him under the FW Act. Directions for the filing of further evidence and submissions in this respect were issued on 12 May 2020. This decision is concerned with the outstanding issue of remedy.

[2] The directions which were issued on 12 May 2020 required Superior Wood to file and serve any further evidence and submissions concerning remedy by 22 May 2020, and for Mr Lee to file and serve his evidence and submissions by 5 June 2020. On 19 May 2020, Mr Lee sent the Commission correspondence in which he objected to the directions for the filing of further submissions and requested that he be granted an immediate remedy. In this correspondence Mr Lee was highly critical of the manner in which his case had been handled by the Commission and the May decision, and among other things said that “[t]his is a travesty, a non-ruling in favour of the respondent, an insult to the applicant, and a gross waste of public money”.

[3] On 22 May 2020, Mr Lee sent the Commission a copy of a letter he had received from Superior Wood together with his response. The letter from Superior Wood, which was dated 22 May 2020 and signed by Mr Finlayson (the Managing Director of Superior Wood) stated (omitting formal parts):

“Dear Jeremy,

I note that on various occasions in the proceedings before the Fair Work Commission you have raised concerns about the income you have lost since your employment was terminated on 12 February 2018 on account of you being unable to find another job.

We acknowledge that a long time has passed since then.

Having regard to these matters, I have today authorised an ex-gratia payment of $25,000.00 less tax to be paid into the same bank account that your wages were paid into.

Please note, in making this ex-gratia payment Superior Wood Pty Ltd is not making any admission of liability and is not admitting that you are entitled to be reinstated. As you know, the company continues to contest your reinstatement in the Fair Work Commission.”

[4] Mr Lee’s reply was as follows:

“Dear Skene Finlayson,

I have just received your email.
Please stop your "ex gratia" payment, as it has not been Ordered by the Commission.
My bank details were provided to you in good faith. They are not to be used by you, at random, for your own purposes, without my knowledge or consent.

I assume this payment is in relation to Matter C2019/4915.
As you would be aware, I am currently awaiting the Full Bench Remedy for Decision [2020] FWCFB 1301.

All communications regarding my Unfair Dismissal and its Remedy, should be cc'd to the Commission and all Parties.
I have cc'd all parties your email and attachments, and this response.”

[5] Superior Wood filed its further evidence and submissions on 22 May 2020 pursuant to our directions. Its evidence consisted of a witness statement made by Mr Finlayson and a witness statement made by Kerryn Baker, the company accountant for the Finlayson Group (which includes Superior Wood).

[6] On 25 May 2020 Mr Lee sent the Commission correspondence in which he contended that he had filed his 19 May 2020 objection to the filing of further submissions pursuant to the grant of liberty to apply in the 12 May 2020 directions, stated that he had not received a response and that Superior Wood had now filed the further submissions he objected to, and requested a clarification from the Commission. Mr Lee was advised in response the same day that the 12 May 2020 directions would not be altered.

[7] On 1 and 2 June 2020, the Commission received correspondence concerning a request from Mr Lee that Superior Wood provide its bank account details to him so that he could return the ex gratia payment made to him. Advice was eventually received that the bank account details had been provided by Superior Wood and that the moneys had been repaid by Mr Lee.

[8] Mr Lee filed further submissions pursuant to the directions on 5 June 2020. On 11 June 2020 Superior Wood sought leave to file a further witness statement responding to an allegation contained in Mr Lee’s submissions that Superior Wood had not paid him the superannuation amount ordered by the Commissioner. Leave was subsequently granted, and Superior Wood filed a further statement made by Ms Baker on 26 June 2020.

[9] The determination of Mr Lee’s appeal by us has been delayed by proceedings in the Federal Court of Australia instituted by Mr Lee. As we noted in the May decision, the publication of that decision was delayed to a degree because we became aware that Mr Lee had, counter-intuitively, sought judicial review of the first appeal decision in which his dismissal had been found to be unfair. We did not consider it appropriate to determine the appeal of the Commissioner’s decision concerning the proper remedy for Mr Lee’s unfair dismissal in circumstances where he was seeking that the decision in which his dismissal was found to be unfair be quashed. Mr Lee’s two applications for judicial review were dismissed by the Court (Reeves J) on 6 February 2020. 5

[10] During June 2020, we became aware that Mr Lee had filed two applications for extension of time and leave to appeal 6 against the decision of Reeves J. These applications were filed on 11 March 2020 but not served on the Commission as a respondent until 16 June 2020. The presiding member’s chambers then sent the following email (omitting formal parts) to the parties on behalf of the Full Bench on 26 June 2020:

“The Full Bench is currently engaged in the process of re-determining the remedy, if any, to be awarded to Mr Jeremy Lee in respect of his dismissal by Superior Wood Pty Ltd. This process is founded upon a finding made in an earlier Full Bench decision published on 1 May 2019 (Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946) under Pt 3-2 of the Fair Work Act 2009 that Mr Lee’s dismissal was unfair.

Mr Lee previously instituted proceedings for judicial review of the 2019 Full Bench decision in the Federal Court of Australia in matter QUD 356 of 2019. The relief sought included that the 2019 Full Bench decision be quashed. In a decision issued on 6 February 2020 (Lee v Fair Work Commission [2020] FCA 733), the Court (Reeves J) dismissed Mr Lee’s application.

The Full Bench has been advised that Mr Lee has now applied for leave to appeal the Court’s decision and for an extension of time to do so (QUD 66/2020). In circumstances where Mr Lee is continuing to proceed with litigation seeking as an ultimate objective that the 2019 Full Bench decision which found his dismissal to be unfair to be quashed, the Full Bench has formed the provisional view that it would be inappropriate and unsafe to determine the remedy to be awarded in respect of the unfair dismissal until such time as that litigation has been determined to finality by the Court.

If any party wishes to make submissions in response to this provisional view, they may do so in writing within seven days of the date of this correspondence.”

[11] Superior Wood advised it agreed with our provisional view. No response was received from Mr Lee.

[12] On 21 August 2020, the Court dismissed Mr Lee’s applications 7 and we have accordingly proceeded to determine the issue of remedy.

Superior Wood’s submissions and evidence

[13] In its submissions, Superior Wood opposes reinstatement as the most appropriate remedy in the circumstances. It acknowledges that there are some matters which support the reinstatement of Mr Lee, including his good employment record, the fact he did not contribute to the dismissal as found by the Full Bench in the first appeal decision, and when first required to comply with the Site Attendance policy, Mr Lee advanced his objections to the policy prior to his dismissal and without causing any broader issues in the workplace. Superior Wood submitted that despite these matters, there are other factors that outweigh these and do not support reinstatement, being:

• Mr Lee’s description of Mr Finlayson as “deceitful” and “dishonest” in the Form F51 and various other statements made by or on behalf of Mr Lee in the course of the proceedings before the Commissioner, which it contended were derogatory or defamatory of Mr Finlayson or Superior Wood and make it impossible for Superior Wood to place trust or confidence in Mr Lee if he were to be reinstated;

• Mr Lee’s conduct indicates that he had ongoing issues with the scanning system and that continuing to agitate these issues is likely to hinder the restoration of the relationship between the parties and may lead to termination of his employment in “quick time”, therefore rendering the remedy of reinstatement futile;

• Mr Lee should be disentitled from being awarded reinstatement due to his conduct in the course of the proceedings; and

• various economic considerations, such as the impact any order for reinstatement would have on the company, particularly in the context of the COVID-19 pandemic.

[14] Superior Wood contended that there was a loss of trust and confidence between the parties and that this should be taken into account in considering whether an order for reinstatement should be made. It pointed to various occasions during the course of the proceedings in which Mr Lee or his representative, Mr Andrew Lee (A Lee), had made derogatory statements about Superior Wood or Mr Finlayson and submitted that this was akin to the circumstances in Marroun v State Transit Authority 8 and Thomas & Faamausili v Virgin Australia Airlines9. Further, it submitted that an employer’s continuing financial position can be relevant to the appropriateness of reinstatement and whether the payment of compensation would affect the viability of the employer’s enterprise.

[15] Superior Wood submitted that Mr Lee is disentitled, as a matter of discretion, from being awarded reinstatement because of his conduct in the course of the litigation, and cited Jeffrey v IBM Australia Limited 10 as authority for this proposition. It pointed to Mr Lee’s conduct (his own and that of his brother A Lee acting on his behalf) during cross examination before Commissioner Simpson and “unjustified criticism” towards Mr Finlayson, Superior Wood, his former lawyers, the Privacy Commissioner and the Commission.

[16] In respect of economic considerations, Superior Wood submitted that the business was under economic pressure as it had lost work from Corinthian, unsuccessfully tendered for work from Bunnings, and was suffering from a downturn in the residential housing market and increased imports from China. In the event of reinstatement, it submitted, any order to restore lost pay should be calculated as follows:

• determine any lost remuneration since the termination of Mr Lee’s employment;

• deduct any lost remuneration for the period between 10 December 2019 and 6 February 2020 due to the Full Bench’s deferral of the determination of this appeal in light of Mr Lee’s counterintuitive step of seeking judicial review of the first appeal decision in the Court;

• make an allowance for the fact Mr Lee did not work 52 weeks every year; and

• deduct the compensation awarded to Mr Lee by Commissioner Simpson ($24,117 less tax) and the $25,000 (less tax) ex gratia payment made by Superior Wood on 22 May 2020.

[17] Further to the above calculation, Superior Wood submitted that a further 50% discount should be applied to any remuneration awarded due to the length of time it took for the proceedings to run their course. Superior Wood did not object to Mr Lee being provided continuity of service pursuant to s 391(2) of the FW Act.

[18] In his statement of evidence, Mr Finlayson said that:

• Superior Wood’s business had been significantly affected over the last six months due to volatility in the housing sector and the coronavirus, with a loss of export orders from Chinese customers and the business operating at a net loss;

• the business’s mill at Imbill had been closed for six weeks due to the effect of the virus and was now operating two weeks on, two weeks off until further notice;

• the plants at Melawondi and Imbil were reduced to a single shift at the end of March for the same reason;

• Superior Wood had consequently reduced its labour force by terminating the employment of 19 casual staff and stood down 24 full-time employees, and the total number of working hours and casual employees had reduced;

• if Mr Lee had been employed by Superior Wood in the last few months, it is highly likely his employment would have terminated because of the effects of the coronavirus on the business;

• Mr Finlayson expected the operating environment and revenue of Superior Wood to decline further in the next six months and considered it likely that more casual employees would have their employment terminated due to the adverse effects of the coronavirus;

• if Mr Lee was reinstated, he considered it likely that Mr Lee would be amongst those terminated because of these circumstances, with selection for termination being based on employees’ skill sets;

• there was projected to be a continuing decline in the housing and export markets, and the employing entities in the Finlayson Group had no vacancies for the position of factory hand or similar roles or roles requiring the skill set that Mr Lee has;

• Lee worked 44.8 weeks, 47.9 weeks and 30.86 weeks in the financial years 2015-16 and 2016-17 and in the year 1 July 2017 to 12 February 2018 respectively; and

• Mr Finlayson had authorised payment of an ex-gratia amount of $25,000 less tax to be paid to Mr Lee, and to that end $17,000 had been paid into his bank account and $2,375 had been paid into his superannuation fund.

[19] In Ms Baker’s statement of evidence, she said that she had reviewed the financial, payroll and other records of Superior Wood, which had disclosed that:

• export sales for the six months ending April 2020 were down 22.67% compared to the same period in the previous year;

• in the period January-April 2020 the business had made a net loss;

• total hours worked by employees in the previous three months were 22,841 in March, 12,862 in April and 13,521 in May; and

• the numbers of casual employees engaged over the previous three months were 69 in March, 56 in April and 49 in May.

[20] In her second witness statement, Mr Baker said that Superior Wood had paid the superannuation amount of $2,291.12 ordered by the Commissioner to Mr Lee on 2 August 2019, and she attached to her statement an extract from Superior Wood’s bank statement demonstrating that the payment was made on that date.

Mr Lee’s submissions and evidence

[21] Mr Lee filed further submissions and various other documents in response to our directions of 12 May 2020. Mr Lee’s submissions addressed a wide range of matters in addition to the issue of remedy. His submissions included the following contentions:

• the matter “offers you [the Commission] the chance to reject coercion and theft in favour of my right to protect myself, my ownership and my right to withhold consent”;

• Mr Finlayson had spent a year attempting to argue that the Commission should not reinstate Mr Lee because he has somehow been offended;

• the Commission has used a whole range of devices to deny ordering Mr Lee’s return to work, but with the evidence, facts and law supporting immediate reinstatement, the only thing keeping him from work is the use of indefinite delay;

• Mr Lee had risked every possible financial penalty and paid a heavy price for defending his sovereignty;

• the process for further submission had been “conjured by the Full Bench, to forestall providing a Remedy” and was “in favour of the Respondent …. whose workers still suffer the theft of their personal information”;

• the Full Bench should not have allowed this, since it was “not for the Commission to constitute a quasi appeal because they seek a refuge from making a just ruling”;

• this was the second time the Commission had gone well beyond its authority “to create a fictional legal process of delay, and therefore avoid, a fair remedy”;

• this was on top of the fact that the Commission had allowed the respondent to have legal representation even though it is patently unfair to the other unrepresented party;

• Superior Wood’s submissions had “verballed” and misquoted Mr Lee;

• the microphones had been turned off in the last Full Bench hearing of the case, which obscured the record, and repeated requests for the matter to be heard in an open, public and transparent manner and for the full case record to be made available to the public had been denied time and time again by the Commission;

• Superior Wood had made an unauthorised payment to Mr Lee’s bank account on 22 May 2020, despite his immediate request to stop it;

• Mr Finlayson had indicated in his latest submission that if Mr Lee was reinstated, he may shortly thereafter sack Mr Lee, which was a statement that Mr Finlayson would obviate any reinstatement order;

• this would compound Superior Wood’s earlier failure to comply with the Commissioner’s remedy order, which is a criminal offence;

• Superior Wood has continued to assert that the employment relationship is no longer viable despite the fact that Mr Lee has twice had his appeals upheld;

• the Full Bench’s attempt to require Mr Lee to “submit to their cross-examination with hypothetical questions about the future” was “an attempt to take away the possibility of reinstatement” and a “reversal of the onus of proof”, and constituted a “modern day witchhunt” for which the Full Bench should be “ashamed”;

• the Full Bench should look at the evidence and Mr Lee’s actual record;

• prior to his dismissal, Mr Lee was “the most reliable worker at the workplace” as he never missed a day of work during his employment with Superior Wood;

• during the three and a half months between the installation of the fingerprint scanning system and his dismissal, Mr Lee was not rude to the owner of Superior Wood, Mr Finlayson, or the site manager, Ian Swinbourne, nor did he run a social media campaign against the use of the system by his employer or make any speeches against it, as was suggested by Superior Wood;

• Mr Lee was just as good an employee after the demand to provide his fingerprints as he was before;

• Mr Lee was fully entitled to present his case to get his job back, and should be allowed to describe his employer’s conduct accurately to do so;

• during the course of the proceedings before the Commission, Mr Lee had not been rude to Mr Finlayson, but rather was giving an accurate description of Mr Finlayson’s conduct;

• the Full Bench did not question Mr Finlayson about his theft of employees’ biometric data, his future intentions for his fingerprint scanners, or his illegal site policy;

• Mr Lee has foregone or risked almost two and a half years of income, “over $100,000 and counting”, in order to protect his privacy; and

• the Federal Court Full Court decisions in Workpac v Skene 11 and Workpac v Rossato12 should be taken into account, in that he should have been classified by Superior Wood as a permanent employee rather than a casual, as his work hours were regular and predictable, regular and ongoing, and the Full Bench should acknowledge this and “the compensation awarded must be calculated from the time I started there, until the day I am reinstated and return to work”.

[22] Mr Lee submitted that the Full Bench should grant an order for lost remuneration of an amount totalling $146,372.13 (gross). This amount includes $20,592.28 (gross) holiday pay and $14,470.25 (gross) public holiday pay that he contends he did not receive since commencing employment at Superior Wood on 15 November 2014.

Consideration

[23] In paragraphs [48]-[55] of the May decision, we set out the provisions of the FW Act and the principles derived from case law relevant to the consideration of grant of the remedy of reinstatement in an unfair dismissal case. In this decision we rely upon, but do not repeat, the principles referred to in the May decision.

[24] Mr Lee continues to seek the remedy of reinstatement. There are a number of matters, which we do not perceive to be factually in dispute, which support his reinstatement to employment with Superior Wood:

(1) Mr Lee had a good employment record, with no performance or conduct concerns up to the time Superior Wood introduced its new Site Attendance Policy requiring employees to sign on and sign off for work using newly-introduced fingerprint scanners (Policy).

(2) It was found in the first appeal decision that there was no valid reason for Mr Lee’s dismissal. Nor can it be said that Mr Lee engaged in conduct which contributed to him being dismissed or provided any justification for any other form of disciplinary action. As was found in the first appeal decision, Mr Lee’s genuine consent was required for his fingerprint to be scanned, and he was entitled to withhold that consent.

(3) When Mr Lee was first required to comply with the Policy, he constructively advanced his objections to the Policy prior to his dismissal without creating any broader issues in the workplace.

(4) Mr Lee has suffered continued unemployment since his dismissal, with a consequent loss of income.

[25] In paragraph [76] of the May decision we also noted that Mr Lee had given evidence to the following effect before the Commissioner:

• “There were no other outstanding issues or problems with trust prior to me being dismissed. And certainly, if I get reinstated I wouldn’t have any problems with trust. And I don’t think that the employer should either because it would be a continuation of my employment. There is no reason to suggest otherwise.” – Mr Lee when giving evidence in chief.

• Superior Wood should have no concerns about Mr Lee’s willingness to comply with other policies “so long as they don’t require me to give my biometric data.”

• The description of Mr Finlayson’s conduct did not relate to his overall conduct and “while I was working there I was very complimentary of my employer in regard to his honesty and sincerity about paying employees that were due, and that’s quite rare” and Superior Wood “never shirked paying superannuation” - Mr Lee in re-examination.

• Mr Lee has very limited actual contact or dealings with Mr Finlayson in the workplace.

[26] The above evidence, taken at face value, weighs in favour of reinstatement because it suggests that if reinstated, Mr Lee would continue his employment in the same way as he did before his dismissal and retains some degree of respect and goodwill for Superior Wood. It also suggests that any personal friction that has arisen between him and Mr Finlayson is not a significant matter because of the limited dealings they would be likely to have with each other in the workplace should Mr Lee be reinstated.

[27] In the absence of any other relevant considerations, the above matters would normally lead to the discretion being exercised in favour of the award of the remedy of reinstatement. We assign them significant weight in our consideration of the remedy to be awarded to Mr Lee. However, Mr Lee’s conduct during the course of his litigation against Superior Wood has raised real doubt as to whether, if reinstated, a workable employment relationship could be re-established between him and Superior Wood notwithstanding the above matters. This conduct falls into three categories.

[28] First, there is the conduct of Mr Lee and his representative A Lee in the proceedings before the Commissioner. In the May decision 13 we identified the matters that were referred to in the Commissioner’s decision in this respect as follows:

• The description of Mr Finlayson in the Form F51 as being “deceitful and dishonest”. The Commissioner considered that these and other statements were such that it was reasonable for Mr Finlayson to feel that Mr Lee’s statements about him were offensive, objectionable, and damaging to any goodwill that might have otherwise existed between the parties before the statement was made.

• The cross-examination during the hearing was conducted as if the unfairness of the dismissal was yet to be determined and involved attempting to obtain concessions that the biometric scanner was not designed to improve safety and that the scanner actually takes the fingerprint rather than creating an algorithm to convert into a binary code.

• Mr Lee’s conduct was indicative that he had ongoing issues with the scanning system and that continuing to agitate those issues is “likely to hinder any restoration of the employment relationship despite evidence to the contrary”.

[29] In the May decision, we determined that the Commissioner was entitled to regard as of importance the description of Mr Finlayson as “deceitful and dishonest” and to conclude that these types of statements made about Mr Finlayson were offensive, objectionable and damaging of goodwill that might have otherwise existed between the parties before the statements were made. 14 We also said that there was no proper basis for the suggestion that, in introducing the Policy, Superior Wood or Mr Finlayson acted in bad faith or for an improper motive, that the statements made by Mr Lee about Mr Finlayson’s motives and actions were damaging and not objectively justified, and the Commissioner was entitled to treat this as a matter weighing against a finding that a workable relationship was capable of being restored through a reinstatement order.15

[30] In relation to Mr Lee’s submissions before the Commissioner concerning the merits and implications of the actions undertaken by Mr Finlayson and/or Superior Wood in introducing the scanning system, we said in the May decision that they did not in their own right indicate that that the restoration of the working relationship would be problematic or that they founded the proposition that Mr Lee would in the future refuse to comply with and respect company policies (save for his right to refuse to be fingerprint scanned pursuant to the Policy), but that they did reveal that the difference of view about how and why the biometric scanners were introduced is likely to remain a source of some continuing tension between Mr Lee and Superior Wood. 16

[31] For the purpose of our reconsideration of the issue of remedy, we will have regard to the identified aspects of Mr Lee’s conduct in the proceedings before the Commissioner in the same way as we said the Commissioner was entitled to have regard to them in the May decision. They are matters which we consider weigh against the making of a reinstatement order because they indicate that any restored employment relationship would be marked by a lack of goodwill and continuing tension.

[32] In the second category are certain aspects of the submissions made by Mr Lee, or on his behalf by A Lee, and their general conduct at the hearing before us on 10 December 2019. The salient aspects of this conduct are as follows. Towards the outset of the hearing, we endeavoured to ask Mr Lee a few straightforward questions concerning the issue of whether a relationship of trust and confidence could be restored between himself and Superior Wood. This was met with resistance from Mr Lee, either directly or through A Lee. We initially adjourned for a short period to allow Mr Lee to consider his position in this respect. After we resumed, Mr Lee and A Lee on his behalf continued to resist the proposition that Mr Lee should answer any questions about this issue. The following exchange, recorded in the transcript, is an example of this:

VICE PRESIDENT HATCHER: All right. Can you sit near the microphone so you can stay seated and speak into it comfortably? I don't know whether you need to move your chair a bit to do that. Mr Lee, Mr Jeremy Lee, this is an appeal against the decision of Commissioner Simpson, which you've read that decision, no doubt?

MR A LEE: Commissioner, are you proposing to cross-examine my brother?

VICE PRESIDENT HATCHER: I wasn't speaking to you, Mr Andrew Lee. Mr Jeremy Lee, you've read the decision and appeal - - -

MR A LEE: I understand that but I'm here today assisting my brother, so I just hope to clarify what's happening.

VICE PRESIDENT HATCHER: I'm asking him a couple of questions. I'm just trying to make sure he understands what I'm about to ask him. Mr Jeremy Lee, you've read the decision of Commissioner Simpson?

MR A LEE: So you are questioning my brother. (Indistinct) for cross-examination.

VICE PRESIDENT HATCHER: Do you want to adjourn again, or not? It's a pretty straightforward question.

MR A LEE: (No audible reply)

VICE PRESIDENT HATCHER: Mr Jeremy Lee, did you hear the question?

MR J LEE: (No audible reply)

VICE PRESIDENT HATCHER: Mr Curran, can you hear us in Brisbane?

MR CURRAN: Loud and clear, Vice President.

VICE PRESIDENT HATCHER: Mr Jeremy - - -?

MR J LEE: (Indistinct)

VICE PRESIDENT HATCHER: Mr Jeremy Lee, are you refusing to answer that question, are you?

MR J LEE: Vice President, I made it very clear that my brother will be representing me today. If you propose to cross-examine me, I want you to make that clear, and on what grounds?

VICE PRESIDENT HATCHER: Mr Jeremy Lee, I'm not cross-examining you. I just want to ask you a very simple question, and before I ask the question I want to make sure you understand the basis of the question. So I'm not going to - - -?

MR J LEE: (Indistinct)

VICE PRESIDENT HATCHER: Cross-examine you. I just want ask you a simple question

MR A LEE: And as I appear, assisting my brother today, am I able to protect him from cross-examination?

VICE PRESIDENT HATCHER: Well, there's nothing to - - -

MR A LEE: If I feel as though the Commission is not acting in his interests?

VICE PRESIDENT HATCHER: I'm not cross-examining him so there's nothing to protect?

MR J LEE: Vice President, what is the distinction between you questioning me and you cross-examining me?

VICE PRESIDENT HATCHER: I just want to ask you one question.

COMMISSIONER HAMPTON: Mr Lee, you're not under oath or affirmation. We're hearing your appeal. We are entitled to, and it's in your interests that we explore your position. I'm not sure if you think this is actually advancing your interests. We just want to understand your position and you need to appreciate that there are issues here about the extent to which your position if reflected in the submissions that are made to the Commission. That's the context in which we want to hear directly from you.

MR J LEE: Commissioner Hampton, my position will be made abundantly clear in my presentation. 17

[33] After continuing exchanges of this character, the course taken was that we posed a single question to Mr Lee, and then adjourned again for a short period to allow Mr Lee to consider his response. This is captured in the following exchange:

VICE PRESIDENT HATCHER: Mr Lee, we're giving you an opportunity to persuade us about this issue. I can only say again, we regard it as an issue of importance and we really what to hear from you about that to get an understanding of the basis upon which a viable working relationship could possibly be restored. We're seeking some assurance from you about that issue but we can't make you answer, and if you don't want to answer, well don't. But I think what we'll do - I think we'll adjourn - - -

MR A LEE: My brother just did answer (indistinct).

VICE PRESIDENT HATCHER: Well, I think we'll adjourn for about ten minutes so you can carefully think about what we've said - - -

MR A LEE: We have been attempting to take (indistinct) - - -

VICE PRESIDENT HATCHER: And then give your response - - -

MR A LEE: We have been attempting to make - - -

VICE PRESIDENT HATCHER: When we come back.

MR A LEE: We have been attempting to present the applicant's case.

SHORT ADJOURNMENT [9.44 AM] 18

[34] Upon resumption, Mr Lee declined to give a direct answer to the question, but responded as follows:

MR J LEE: Commissioner Hatcher I'd like to have the opportunity to present my case and all the questions will most probably be answered in my presentation. But if you have questions afterwards, please feel free… 19

[35] Mr Lee then had a prepared lengthy submission read out by A Lee. There are three aspects of this submission which are of note. First, the submissions continued to agitate at length the issue of “the ownership of biometric data” and to characterise the conduct of Superior Wood in seeking to implement the Policy as an act of theft and coercion. Second, the submissions personalised the attack on the Policy as one directed at Mr Finlayson. Third, Mr Lee framed the issue as one concerned with the interests of employees generally. For example, the submission opened as follows (underlining added):

MR A LEE: Thank you, Commissioner. This case is about ownership, the ownership of people's sensitive data, their biometric data. If people own anything, they own this. It is so obvious, it is self-evident. It contains something from people that they own. It must have been consent. So this case is also about consent, and if you ignore both ownership and consent and take from someone what you do not own, that is theft.

So, this case is about ownership, consent and theft and the well-organised, coordinated attempt to legitimise it. It's about the theft of Australian workers most personal, most sensitive, most private, without their consent, by an industry with the full knowledge of and assistance from governments, Attorneys General, policy Commissioners and the Work Commission.

My brother refused to give him biometric data to Skene Finlayson because it is inappropriate for his employer to possess it, must less demand it by threatening a worker's livelihood. Yet Mr Finlayson goes on in full view of the Commission attempting to steal this data from my brother and using this employee's biometric data for his own interests. In short Mr Finlayson has committed and continues to commit daylight robbery. 20

[36] As a further example, the submission went on to say (underlining added):

Needless to say, instead of reinstating my brother, the Commission has endorsed his termination, ignored his rights to privacy and given the employer Skene Finlayson a green light to continue stealing the biometric data from his other 400 staff. Mr Finlayson has been assisted by employer groups, my brother's former legal representatives, the Federal Privacy Commissioner and the work Commission throughout, and has made a financial gain from sacking my brother of over $60,000. This gain has been my brother's loss. My brother stole nothing, threatened no one and appealed to a Commission calling itself fair to protect his privacy and his job.

This matter is the first case of its kind and it's very clear. It has no precedent. With my brother's appeal to the Full Bench, that's the previous Full Bench, the Federal Privacy Commissioner, who had earlier attempted to quietly ignore the matter, was forced to reopen her consideration of the issues. The outcome of this matter will have an impact, not only upon my brother, but on the (indistinct) industry of all Australian workers' biometric data.

The remedy in this matter is a precedent and the Commission will ultimately decide whether employees can protect their biometric data with a (indistinct) and all workers have a right to privacy, or whether the Full Bench will endorse and reward Mr Finlayson's coercion at best.

I am mindful and the Full Bench would be too, that large employers from mining, fast food, retail, manufacturing, war and hospitality industries have already introduced systems just like Mr Finlayson's fingerprint scanners. These systems have been introduced very carefully and very quietly with the knowledge of and in consultation with the Federal Government, the Federal Pricing Commissioner and industry and business groups.

When Mr Finlayson installed his fingerprint scanners and ordered his 400 staff to use them, under threat of the sack, he was following a carefully designed strategy, developed and refined by (indistinct) to minimise any resistance to this industrial scale classing [sic]. Mr Finlayson's use of threats, his order to use the scanners, his concise denials about what he's taken, his secrecy over where the employee data goes, how has access to it, where it is stored, whether he sells or trades it, who owns the data and who's consent is required, these were all part of this intricate scheme.

Issues of ownership and consent are intrinsically linked; they cannot be separated. To acknowledge ownership is to recognise that you must seek consent and conversely to ask the consent is to acknowledged ownership. Mr Finlayson could have been honest, he could have talked to his workers, explained his proposal and asked for their consent. Instead, rather than acknowledge ownership and ask for consent, Mr Finlayson decided on option B, steal it. 21

[37] As a final example, Mr Lee submitted (underlining added):

The respondent is highly motivated to prevent my brother being reinstated for at least four reasons. Mr Finlayson does not want to be forced to admit fault. He does not want to pay compensation for unfairly dismissing my brother and the largest amount of compensation remember, is due upon reinstatement. He fears that all his other employees will also refuse to use the scanner, as soon as they see my brother reinstated on the old sign-in system. He is aware that if he loses, he will affect all other wealthy employers that have been stealing their employees' biometric data for many years already. 22

[38] After the completion of the prepared submission, we endeavoured to ask Mr Lee some questions. The first question and answer were as follows (edited to remove various non-responsive statements that were made):

VICE PRESIDENT HATCHER: Yes. In the submission this morning, I've noted that you've said this about either Mr Finlayson in person, or your employer generally, that they've engaged in theft, illegality, dishonesty, coercion, threatening behaviour, falsehoods, has been deceitful, and has feigned or faked emotion. So I'm just asking you, in the light of all those submissions, Mr Jeremy Lee, if you are reinstated, could you or would you have trust and confidence in your employer?

. . .

MR J LEE: Okay, I'd just like to - do you seek context about - certainly, my position is that I can trust Mr Finlayson as I did before I was dismissed. Yes, from my position nothing has changed.

VICE PRESIDENT HATCHER: Can I just ask, you say nothing has changed?

MR J LEE: Yes. That is to say, my employer - before I was sacked I was already aware that his site attendance policy was illegal. And that he was using coercion to get people's biologic data, yet I acted honestly in that I didn't miss any days of work. I treated Mr Finlayson with respect when I had occasion to see him, which is not very often, but he does come onto the floor sometimes.

I would also like to address the words that we used in the presentation, and would like to note that the Full Bench has ruled that Mr Finlayson's site attendance policy was illegal, and that his assertion that people had to provide their biometric data was illegal. So I would ask that you consider that.

. . .

MR J LEE: I'd just also like to note that the Full Bench did clarify that the biometric fingerprint scanners do in fact take a fingerprint, which directly disputes Mr Finlayson's assertion whilst I was still working there that it does not. So, again I try - yes, I'll leave it there, Commissioner. 23

[39] The second question and answer were:

VICE PRESIDENT HATCHER: Mr Jeremy Lee, do you appreciate that just because the Full Bench ruled that you were right and Mr Finlayson was wrong about whether he could direct you to provide the biometric data, it doesn't necessarily mean that he had an evil intent or that he was intent on stealing something, anything like that? Or do you think that's a possibility?

MR J LEE: Just a moment, Commissioner, I'll just confer with the (indistinct). It seems to me that you're concentrating on me, yet I was the party that has been ruled to be unfairly dismissed. I merely described the - what occurred accurately. I did not personally attack Mr Finlayson. I had no reason to. I just merely described - and the Full Bench conferred with what occurred. And they have also reasoned that (indistinct).

VICE PRESIDENT HATCHER: Well, you're obviously correct about that. But is it possible you can accept that just because somebody is wrong about something doesn't necessarily make them a bad person, or a person you can't trust?

MR A LEE: Commissioners, it just seems to be a reversal. My brother's done nothing wrong here. He's been unfairly dismissed, which the Full Bench has found. He's always sought reinstatement. Mr Finlayson unfairly dismissed him and Mr Finlayson is not being questioned, my brother is. It seems to be a reversal of what should occur. The Full Bench is not questioning Mr Finlayson of his motivations or his actions or anything. Whether or not his actions were legal, or his site policy, or whether or not he is - the system takes effect (indistinct), you know, like, my brother's being questioned. It seems to be a reversal of what should be occurring. My brother has always sought reinstatement. And he was unfairly dismissed. He has done nothing, at all, to harm Mr Finlayson. 24

[40] The third question and answer (similarly edited) were:

VICE PRESIDENT HATCHER: … In your submission, Mr Jeremy Lee, you referred to the fact that - I think you said Commissioner Simpson failed to acknowledge or find that the policy with respect to collecting biometric data was unlawful, not just for you but for everybody. Is that an issue which you would continue to agitate if you were reinstated?

MR A LEE: Commissioner, my brother would return to work and worked just as he did, politely and productively before he was unfairly dismissed. I think he's made that abundantly plain. And I can't really see any - it's almost as though the Commission is seeking a reason to not reinstate him. But you have all the reason in the world to actually reinstate him. So why question him further? You're not questioning the respondent.

COMMISSIONER HAMPTON: Yes, Mr Lee. Look, I appreciate you are trying to assist your brother but with all due respect, don't worry so much about motive. And I appreciate you have your set views about the Commission but just for a moment, just take a step back. A reasonable question, I personally am interested in the answer. Don't worry so much about motive. I appreciate your jaundiced view, but you know, you're not - - -

MR A LEE: What are you (indistinct), Commissioner?

COMMISSIONER HAMPTON: You're not helping your brother.

MR A LEE: Commissioner, what are your concerns?

COMMISSIONER HAMPTON: Well, the Vice President has asked the question. I am interested in the answer.

VICE PRESIDENT HATCHER: I mean, just to explain the context, I think you understand that for the Commission to order reinstatement we'd have to be satisfied that it's going to lead to a viable and productive working relationship. And you, of course, quite properly have pointed to the fact that prior to the dismissal Mr Jeremy Lee was a productive employee with no problems whatsoever, and we think it's obvious that that's the case. But a lot of water has passed under the bridge since that happened. And we're trying to get an understanding that if Mr Jeremy Lee was reinstated, whether it would simply return to what was happening before, which would be good, or whether in the course of everything that's happened, and all the things that have been said about Mr Finlayson, and because the issue has now been raised about biometric data, is just going to lead to arguments and conflict. And we're - - -

Looking for some reassurance on that score, that's all.

MR A LEE: Sure. Okay. Mr Finlayson probably visited the factory floor once every couple of months. Sometimes it was longer, sometimes shorter, but he wasn't there very often. There wasn't a lot of interaction and that's actually been stated by Mr Finlayson in his own evidence. So it's not as though Mr Finlayson and my brother will be dealing with each other on a daily basis. My brother works in the factory. Mr Finlayson has, I don't know how many factories. And he visits occasionally. Yes, it's almost being over (indistinct) by the Commission, so yes, there's - it's just - there's something there. My brother will return to work and be just as productive and reliable. Like, he was the most reliable worker before being unfairly dismissed of anyone in that or the neighbouring factory, okay, so there's no evidence or anything that he would be any different now.

. . .

VICE PRESIDENT HATCHER: All right. But can we go back to the question I did ask you and that is, does Mr Jeremy Lee intend to continue to agitate the issue of biometric data policy in respect of other employees if he is reinstated?

MR A LEE: I'm not sure what you mean by that, continue to agitate, just like - are you saying that he is gagged or he can't talk or?

VICE PRESIDENT HATCHER: I'm not saying anything. I'm just asking what Mr Jeremy Lee intends to do if he's reinstated. I'm not saying he can or can't do it.

MR A LEE: Yes, but agitate, what do you mean by "agitate"?

VICE PRESIDENT HATCHER: Raise the issue, argue about it, talk to other employees about it, I don't know.

MR A LEE: I just don't understand. I mean, if he - my brother's in the real world. It's not some kind of text book (indistinct) walk in and he doesn't have a voice and other people can't approach him and ask him about it. Like, what are you proposing, to just - he's not going to get up and make any speeches, if that's what you mean.

VICE PRESIDENT HATCHER: All right.

MR A LEE: It's almost like you're suggesting a constriction of his freedom of speech.

VICE PRESIDENT HATCHER: I'm not suggesting anything. I'm just asking a question. All right, anyway, that's all we have to ask.

MR A LEE: Yes, but you are suggesting that, well, okay, what are you concerns that - you're saying that your concern that my brother may continue to agitate the issues. I mean, how is he supposed to know what he can and can't say and what he - he's not going back to agitate any issues. 25

[41] Finally, in submissions in reply, Mr Lee reiterated some of the matters raised earlier in answer to our question. This included the following:

The other thing that came up was that, again, the Commission was concerned that if my brother went back to work - I mean, I'm just not quite sure how the Commission - what picture they have in their head, but it's almost as though you are concerned that if my brother goes back to work and he's not permitted to speak about anything that people approach him on. When he was there previously and the scanners had been introduced, it was known throughout the factory by all of the other staff that my brother was not using the fingerprint scanner.

They approached him. He didn't go out of his way to approach them, or go on any crusade. But when they did approach him, he talked to them. They're his work mates, he has to. To do otherwise is to curtail his freedom of speech, his right to express himself. My brother has never described Mr Finlayson using the terms "evil" (indistinct) these were terms brought up by Mr Finlayson's lawyer only.

There has been no social media posting, nothing like that from my brother. So you can have every confidence that if my brother is reinstated with all continuance, he will return to work and be just as reliable and just as good an employee as he was before. 26

[42] It is difficult to identify a consistent thread in Mr Lee’s submission. As the passages from the transcript quoted above demonstrate, he was at the outset of the hearing highly resistant to answering any questions from us concerning whether a relationship of trust and confidence between him and Superior Wood could be restored via a reinstatement order, and indicated that the answers to any such questions would be found in his submissions. If so, then his submissions indicated the following about his position:

• Mr Finlayson had personally attempted to steal Mr Lee’s biometric data for his own benefit;

• Mr Finlayson was continuing to steal the biometric data of his remaining employees as part of a carefully designed strategy involving the use of coercion, threats and secrecy; and

• the outcome of this case would determine whether employees can protect their biometric data or whether Mr Finlayson’s coercion will be endorsed and rewarded.

[43] These propositions weigh strongly against the proposition that a workable employment relationship can be re-established. They suggest that Mr Lee considers that his former employer has engaged in dishonest, coercive and illegal behaviour towards him and its other employees, that he will retain a strong sense of grievance about this in any restored employment relationship, that his grievance in that regard is personally directed to Mr Finlayson, and that he would regard success in obtaining from the Commission an order for his reinstatement as the catalyst for all Superior Wood’s to cease using the fingerprint scanner sign-in, sign-out system.

[44] However, in response to questions from us after the completion of his prepared submissions, Mr Lee contended that:

• immediately prior to his dismissal, he attended for work as usual and treated Mr Finlayson with respect notwithstanding the coercion that was being used to implement the Policy;

• interaction with Mr Finlayson on a day-to-day basis was in any case limited;

• if reinstated, Mr Lee would return to working “politely and productively” and reliably as he did before his dismissal; and

• Mr Lee did not intend if reinstated to agitate and campaign upon the issue of biometric data, although he would no doubt talk to his work colleagues about it.

[45] Taken at face value and in isolation, these responses would suggest that the restoration of Mr Lee to his employment relationship would not be the cause of any particular difficulty. However, it is difficult to reconcile these responses with the degree of hostility and lack of respect towards Superior Wood and Mr Finlayson personally displayed in Mr Lee’s submissions. Further, we note Mr Lee’s refusal to give a direct response to the proposition that was put to him that the finding in the first appeal decision that Superior Wood could not lawfully direct Mr Lee to undergo fingerprint scanning did not necessarily mean that Mr Finlayson had acted with an evil intent or for the purpose of theft. This is not surprising having regard to the proposition advanced in Mr Lee’s submissions to which we have earlier made reference and goes well beyond the passionate rhetoric that one might expect from a party in Mr Lee’s circumstances.

[46] On balance, we consider that the submissions advanced by Mr Lee at the hearing on 10 December 2019 weigh against the grant of a reinstatement order. Having regard to the serious and unsupported allegations raised against Superior Wood and Mr Finlayson personally in those submissions, and the degree of hostility and lack of respect that Mr Lee displayed, we do not consider that Superior Wood could reasonably be expected to have the requisite degree of trust and confidence in Mr Lee as an employee in the future. From Mr Lee’s perspective, notwithstanding his protestations that if reinstated he would simply return to being the worker he was before, it is difficult to accept that he would have the necessary trust and confidence in an employer which he believes to have engaged in theft, coercion and illegal behaviour against both him and other employees.

[47] The third category of conduct in the course of the litigation is that which has occurred since the May decision was issued. We have earlier summarised the further submissions advanced by Mr Lee in support of his reinstatement filed on 5 June 2020. These submissions “doubled down” on many of the proposition advanced at the 10 December 2019 hearing, including that he reiterated the allegations of theft and coercion on the part of Superior Wood, accused Superior Wood of not complying with the Commissioner’s compensation order and thus having committed a criminal offence, and characterised what he had said about Mr Finlayson during the proceedings as merely an accurate description of his conduct. These propositions similarly weigh against the likelihood of a workable employment relationship between Mr Lee and Superior Wood being able to be restored.

[48] There is also the curious extra-curial episode of the (pre-tax) $25,000 payment which Superior Wood made to Mr Lee on 22 May 2020 but which he then repaid to Superior Wood. This payment was made without prejudice to Superior Wood’s position that it opposed Mr Lee’s reinstatement, but appears otherwise to have been unconditional and was on top of the six months’ pay which Superior Wood had already made to Mr Lee pursuant to the Commissioner’s compensation order. This payment was said to have been made in response to Mr Lee’s submission at the hearing on 10 December 2019 concerning the loss of income he had suffered as a result of his dismissal and, if so, it demonstrates generosity and goodwill on the part of Superior Wood. We cannot discount the possibility that the payment was made as a litigation tactic to avoid the grant of a reinstatement order, although it is difficult to conceive what the strategic thinking behind this could be. In any event, Mr Lee’s refusal to accept this payment, in circumstances where it is not possible to identify any legal prejudice to his claim for reinstatement by accepting it, further bespeaks of the lack of any trust and goodwill on his part.

[49] We note Superior Wood’s evidence and submissions concerning its commercial position in the current circumstances of the COVID-19 pandemic. In his 5 June 2020 submissions, Mr Lee did not in terms say that he wished to cross-examine Mr Finlayson or Ms Baker, or expressly contradict the propositions advanced in Superior Wood’s submissions concerning its current commercial position. We consider in any event that little weight can be assigned to this material. It does not go so far as to say that there is no position to which Mr Lee could be reinstated and, in any event, the fact that the job held by an applicant for an unfair dismissal remedy is no longer vacant or even no longer exists does not by itself render the grant of reinstatement inappropriate. 27 An order for reinstatement is not a guarantee of a job for an indefinite duration and if, because of economic vicissitudes, there is a possibility or even a likelihood that an applicant if reinstated has to be made redundant in the future, that is not a reason not to grant the reinstatement remedy.

[50] Having regard to the above matters, our overall conclusion is that the reinstatement of Mr Lee would be inappropriate. While, as earlier stated, there are significant matters which weigh in Mr Lee’s favour and would normally lead to a reinstatement order being made, the extraordinary conduct engaged in by Mr Lee in the course of the proceedings before the Commissioner and even more so before us does not permit us to be satisfied that a workable employment relationship could be re-established through the making of a reinstatement order. We emphasise that we are not referring in this respect to the conduct of Mr Lee and his representative towards this Commission, which was at various points disrespectful, obstreperous, querulant and contemptuous. We are rather referring to the various instances identified above in which Mr Lee made unsupported allegations of theft, coercion and illegal behaviour on the part of Superior Wood and Mr Finlayson and thus demonstrated a readiness to damage their reputation in a public forum, Mr Lee’s obvious continued sense of grievance against and lack of respect for Superior Wood and Mr Finlayson personally, which it is likely he would carry into his employment if reinstated, and Mr Lee’s readiness to continue to agitate the issue of the use of fingerprint scanners on a broader basis notwithstanding his individual vindication on this issue in the first appeal decision. These matters provide a rational basis for the conclusion that it is unlikely that a relationship of trust and confidence could be restored, and do not permit us to have confidence that the other matters which weigh in Mr Lee’s favour provide a reliable indicator as to the capacity for a workable employment relationship to be re-established.

[51] Accordingly, we decline to make any order for reinstatement.

[52] Having found that reinstatement of Mr Lee is inappropriate, we turn to the issue of whether we should make an order for monetary compensation in his favour. Under s 390(3)(b) of the FW Act, we are not permitted to order the payment of compensation unless we consider it is appropriate in all the circumstances.

[53] We do not consider that the making of an order for compensation would be appropriate in all the circumstances. It is clear that Mr Lee has suffered monetary loss as a result of his unfair dismissal, and that would normally be sufficient to render an award of compensation appropriate. However, as earlier stated, arising from the decision the subject of this appeal, the Commissioner made an order that Superior Wood pay Mr Lee the amount of $24,117.08 in compensation plus 9.5% superannuation on this amount. This was the maximum amount of compensation permissible under s 392(5) of the FW Act. Although, in the May decision, we quashed the Commissioner’s decision, we did not quash the Commissioner’s order. We are satisfied that Superior Wood has paid Mr Lee, and Mr Lee’s superannuation fund, the amounts required to be paid under the Commissioner’s order. Accordingly, it would not be appropriate for any further order for compensation to be made in Mr Lee’s favour.

[54] These proceedings are now finalised on the basis set out above.

al of the Fair Work Commission with Member's signature.