s.394 - Unfair dismissal

Application for relief from unfair dismissal - senior academic dismissed for breaches of the Australian Code for the Responsible Conduct of Research - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] Dr Pradeep Tanwar held the position of Professor at the time he was dismissed by the University of Newcastle. He was the Director of the University's Global Centre for Gynaecological Diseases. On 25 August 2025, Dr Tanwar was dismissed for allegedly engaging in research misconduct comprising eight serious and two minor breaches of the Australian Code for the Responsible Conduct of Research. Dr Tanwar contends that his dismissal was harsh, unjust and unreasonable. The University denies that Dr Tanwar's dismissal was unfair.

• [2] I heard Dr Tanwar's unfair dismissal case against the University on 2, 3, 4 and 5 February 2026. Dr Tanwar gave evidence in support of his case, as did Laureate Professor John Attia, a retired academic from the University, and Ms Ainslee Turner, whose family provided significant philanthropic funding to the University to support Dr Tanwar's research. A number of character references were also tendered by Dr Tanwar.[1] The University adduced evidence from Professor Juanita Todd, Pro Vice-Chancellor Research at the University, Professor Zee Upton, Deputy Vice-Chancellor (Research & Innovation) at the University until December 2025, Mr David Toll, Chief Operating Officer at the University, Mr Martin Sainsbury, Chief People and Culture Officer at the University, and Mr Andrew Cairns, Associate Director Workplace Relations, Governance and Policy at the University. In addition to the evidence from these witnesses, the parties tendered significant numbers of documents, which were included in a 5,676 page hearing book. I have had regard to the witness and documentary evidence in deciding this matter.

[3] Section 396 of the Fair Work Act 2009 (Cth) sets out four matters which I am required to decide before I consider the merits of an unfair dismissal application.

[4] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Dr Tanwar's application for unfair dismissal was made within the period required by s 394(2) of the Act;

(b) Dr Tanwar was a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Dr Tanwar's dismissal; and

(d) Dr Tanwar's dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[5] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Dr Tanwar's dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

• [6] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[2]

• [7] It is not enough for an employer to establish that it had a reasonable belief that the employee engaged in particular conduct.[3]

• [8] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[4]

• [9] In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[5]

• [10] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[6]

• [11] A "valid" reason for dismissal is one that is "sound, defensible or well founded"[7] and not "capricious, fanciful, spiteful or prejudiced."[8]. A reason that is "valid" will involve something more than a minor failing or trivial misdemeanour and must be of sufficient gravity or seriousness to justify dismissal.[9]

[12] Prior to making its decision to dismiss Dr Tanwar, the University convened an Investigation Panel in accordance with the requirements of The University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023 and the University's Research Breach Investigation Procedure, to investigate the allegations and make findings. The Investigation Panel was formally convened on 18 February 2025 and comprised of the following experienced academics, all of whom were external to the University:

(a) Distinguished Professor Annemarie Hennessy AM, Deputy Executive Dean (Westmead), Faculty of Medicine and Health, University of Sydney;

(b) Professor Jacqueline Phillips, Professor of Neurophysiology, Faulty of Medicine, Health and Human Sciences, Macquarie University; and

(c) Professor Edwina Cornish AO, Council Member, La Trobe University, former Provost Monash University.

• [13] The Investigation Panel unanimously found that Dr Tanwar committed eight serious and two minor breaches of the Code.[10]

[14] The University contends that it had a valid reason to dismiss Dr Tanwar because:

(a) each of the serious breaches of the Code gave the University a valid reason to terminate Dr Tanwar's employment; or

(b) the serious breaches of the Code, considered together with the minor breaches of the Code, gave the University a valid reason to terminate Dr Tanwar's employment; or

(c) the serious breaches of the Code, considered together with the minor breaches of the Code and Dr Tanwar's demonstrated failure to properly understand and appreciate his obligations under the Code, gave the University a valid reason to terminate Dr Tanwar's employment.

[15] I will now deal with each of the alleged breaches of the Code.

[16] The University alleges that Dr Tanwar carried out the following research projects (Ecofibre Research Projects) without first obtaining appropriate Human Research Ethics approvals from the University with respect to the collection and use of human tissue biopsies from patients with ovarian and endometrial cancers:

(a) Efficacy of Cannabinoids in Patient-Derived Models of Endometriosis, which commenced on January 2021 and was varied on 29 October 2021; and

(b) Testing the efficacy of Cannabinoids in Models - Patient Derived and Otherwise - of Various Gynaecological Diseases, which commenced on 25 March 2022.

• [17] The human ethics approval which Dr Tanwar obtained from the University for the Ecofibre Research Projects was on the basis that the human tissues to be used in the research would come from a biobank. Dr Tanwar's research team used human tissues obtained from patients of Hunter New England Health, rather than a biobank, in the Ecofibre Research Projects. Dr Tanwar accepted that at the time they commenced, the human research ethics approval did not extend to obtaining tissues directly from patients.[12]

[18] At a later point in time, Dr Tanwar obtained ethics approval from Hunter New England Health. This gave Dr Tanwar ethics approval for the acquisition of human patient tissues for the Ecofibre Research Projects.

[19] As the Chief Investigator for the Ecofibre Research Projects, Dr Tanwar was responsible for registering his ethics approval from Hunter New England Health with the University promptly and ensuring that these were linked to the Ecofibre Research Projects as soon as they were obtained. This was not done.

[20] The Investigation Panel found that this allegation was proven. The Investigation Panel rated it as a minor breach of the Code, having regard to the fact that Dr Tanwar's breach was not wilful and that applying for and registering ethics approvals related to human research can be complex.

[21] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as minor

[22] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was minor.

[23] The University alleges that Dr Tanwar failed to establish and implement appropriate informed consent processes for collection and use of human tissue biopsies from patients with ovarian and endometrial cancers for the Ecofibre Research Projects.

• [24] The Grant Establishment Forms prepared by Dr Tanwar for the Ecofibre Research Projects named Dr Tanwar as the Chief Investigator. Under the University's Responsible Conduct of Research Policy, a Chief Investigator means "any person assigned to a research project with ultimate responsibility for the intellectual, administrative, and ethical conduct of research".[13] Dr Tanwar accepted that as Chief Investigator for the Ecofibre Research Projects he had overall responsibility for supervising the projects.[14]

• [25] The Human Research Ethics Application submitted by Dr Tanwar to the Hunter New England Health Research Ethics Committee for the research project ending with the numbers 0336 relevantly stated:[15]

(a) Dr Tanwar is the Co-ordinating Principal Investigator/Researcher;

(b) Dr Tanwar "is the coordinating lead investigator of this research project. He will be coordinating with clinicians for sample collection arrangements. He will supervise other researchers towards the successful completion of this project";

(c) Experienced specialist medical practitioners working in the relevant Hunter New England Health hospitals "will obtain consent from patients and will provide participant medical information to the researcher";

(d) Separate institutional approvals or authorisations will be required prior to commencing research at each site;

(e) Written consent will be obtained from all participants to participate in the research;

(f) Further on the topic of consent from patients participating in the research, "participants will be introduced to the study by treating clinician at the end of a presurgery consultation, the participant can take information statement away for consideration, and bring the signed form on the day of the surgery. If they agree to discuss the project, the research staff (who is not involved in that person's clinical care) will ask the participant for consent to use their tissue/blood/peritoneal wash fluid and will use the research form for this study. The eligibility of a participant for this project will be decided by the HREC approved staff specialist after reviewing the participant's clinical history. To get participant consent, the research staff will provide participant information and consent forms to the participant, that has been written in plain language for this project, following HNELHD templates. The participant will be given enough time (1-2 days prior to the surgical procedure) to read and understand the participant information statement [and] consent form before consenting. The research staff will also explain to the participant the significance of recruitment and every aspect of the collection procedure. The consent form will only be provided to the participants who are legally eligible to decide for themselves"; and

(g) As to ethical considerations related to the approach to consent, "participants will be provided with the participant information sheet and written consent form in lay English language by the research staff e.g., research nurse, who is not involved with the participant care. The research staff will explain to the participant the significance of recruitment and every aspect of the collection procedure. The consent form will only be provided to the participants who are legally eligible to decide for themselves. Participants whose primary language is not English or have other literacy issues will be provided with interpreter or certified personnel to help them understand the consent form. Furthermore, any women who identify themselves as Aboriginal or any other nationality will be offered culturally appropriate or familial support".

• [26] The ethical protocols for another joint research project with Hunter New England Health (project ending with the numbers 1901) relevantly stated:[16]

(a) Dr Tanwar is the Coordinating Principal Investigator/Researcher;

(b) Dr Tanwar "is the coordinating lead investigator of this research project. He will be coordinating with clinicians for sample collection arrangements, and access to biobanks information. He will also supervise other researchers towards the successful completion of this project";

(c) Experienced specialist medical practitioners working in the relevant Hunter New England Health hospitals "will obtain consent from patients and will provide participant medical information to the researcher"; and

(d) On the topic of consent from patients participating in the research, "initially, HREC approved staff specialists after reviewing the patient's clinical history will approach a patient regarding participation in this project. The staff specialist will provide participant information statement document to the participant and will also explain the significance of recruitment and every aspect of the collection procedure. The patient will be given 1-2 days prior to surgery to read and understand the participant information statement. If the patient agrees to participate in this project, then the patient will be contacted by a staff specialist who is not directly involved with the participant care at each site before their scheduled surgical procedure to obtain informed consent to use their biospecimens for scientific purposes. The staff specialist will explain each part of the consent form and will answer all questions raised by the participant. The eligibility of a participant for this project will be decided by the HREC approved staff specialist after reviewing the participant's clinical history. The consent form will only be provided to patients who are legally eligible to decide for themselves. Participants whose primary language is not English or who have other literacy issues will be provided with an interpreter or certified personnel to help them understand the consent form. Furthermore, any women who identify themselves as Aboriginal or any other nationality will be offered culturally appropriate or familial support. The participant will be informed that participation is completely voluntary and that refusal to participate will not interfere with their ongoing treatment or patient care. As this project holds no direct benefit to the participant such as economic or personal, that means there will be no re-negotiation after participation refusal".

• [27] The NSW Health Policy Directive entitled "Research - Authorisation to Commence Human Research in NSW Public Health Organisations" relevantly:[17]

(a) defines a Co-ordinating Investigator to be "the individual who takes overall responsibility for the research project and submits the project for ethical and scientific review. They are responsible for ongoing communication with the HREC and passing on any outcomes from this to the Principal Investigators. For single centre research, Coordinating Investigator and Principal Investigator are synonymous";

(b) defines a Principal Investigator to be "the individual who takes responsibility for the overall conduct, management, monitoring and reporting of research conducted at a site and submits the research project for site authorisation";

(c) states that "Principal Investigators are required to submit an application for site specific assessment for research that is to be conducted at a site under the control of a Public Health Organisation"; and

(d) states that "Co-ordinating Investigators are required to submit an application for access request review for research that requires support from a Public Health Organisation in the form of access to participants, tissue or data but does not involve the conduct of research at that Public Health Organisation".

• [28] Dr Tanwar accepted in his evidence that there can only be one Co-ordinating Principal Investigator.[18]

• [29] A Hunter New England Health Investigation Report in relation to ethics breaches pertaining to the research projects ending in numbers 0036 and 1901 referred to "more than 140 patients not receiving patient information sheets, more than 100 patients not signing consent forms and more than 30 patients being asked to sign consent forms retrospectively".[19] That report also made reference to some clinicians only obtaining "verbal consent from participants".[20]

• [30] The following relevant findings and recommendations were made in the Hunter New England Health Investigation Report:[21]

The approved Human Research Ethics applications for projects 2022/ETH01901 and 2022/ETH00336 required:

- Written consent to be obtained from participants;

- Participants to be provided with participant information statements prior to consenting to participation.

The approved protocols in 2022/ETH00336 required that research staff explain to the potential

participant the significance of recruitment and every aspect of the collection procedure. The approved protocol also required research staff not involved in direct patient care obtain informed

The approved protocols in 2022/ETH01901 state that staff specialists reviewing a patient's clinical history would approach a patient regarding participation in the project and provide the patient information document. If a patient agreed to participate in the project, the patient would be contacted by a staff specialist who was not directly involved in the participant care before their scheduled procedure to obtain informed consent.

Clinicians involved in 2022/ETH01901 failed to obtain prospective written consent from some

participants in these research projects. In some cases, staff specialists directly involved in patient

care obtained verbal consent only. Informed consent was not obtained by staff specialists not directly involved in patient care, in contravention to the required procedure under the approved

protocols. Participant information statements were not provided in all cases.

While nurse support for 2022/ETH00366 was provided by the District for a short period, a research nurse was not engaged by the research team for this project. Research staff, other that the District provided nurse, had no contact with participants or potential participants.

In breach of the approved protocols, it was clinicians directly involved in patient care who obtained verbal consent from participants. Written consent was not provided in many cases and it is unclear if written information statements were provided to participants in all cases. These practices did not comply with approved ethical protocols.

As the Principal Coordinating Investigator for 2022/ETH01901 and 2022/ETH00336 Professor Tanwar was required to take overall responsibility for the research project conduct and submit the projects for ethical and scientific review.

While there is an identified failure of HNE clinicians participating in this project to obtain written consent and provide information statements as per the approved protocols for 2022/ETH01901 and 2022/ETH00336, research staff employed by the UoN collecting samples from HNE clinicians for this research project also had an obligation to ensure protocols were being followed.

During the investigation of this matter, discrepancies in the documentation within consent forms for participants in 2022/ETH00336 were identified. The Investigation Panel, in consultation with HNE legal officer, concluded that this issue should not form part of this HNE investigation and have referred this matter to the UoN for review as part of their investigations. The Panel felt that the UoN were best placed to conduct a review of these concerns as:

1. Professor Tanwar and his research staff who provided the relevant consent forms to

1. The forms of concern predominantly relate to private patients of Dr Boulton.

The Investigation Panel are of the opinion that failure to comply with responsibilities as outlined in the Australian Code of the Responsible Conduct of Research is substantiated. As the CPI, Professor Tanwar holds ultimate responsibility for complying with the Code.

Specifically, those involved in the research project:

• Recruited participants and collected samples without the provision of the HREC approved participant information sheet.
• Failed to obtain written informed consent as required in the HREC approved protocol. No prospective written consent obtained for 2022/ETH01901 could be identified by the investigators, and concerns have been raised regarding the veracity of consent forms provided for project 2022/ETH00336.
• Failed to ensure a research nurse and/or research staff were engaged and responsible for the consent process for project 2022/ETH00336 as required for compliance with the approved protocols.
• Failure to report the concerns of lack of compliance to the HREC when first aware.

All the information, including the responses by Professor Tanwar to the concerns raised, have been considered and it is concluded that research projects undertaken at HNELHD sites, for which Professor Tanwar was the CPI, did not comply with the approved protocols and thereby did not comply with requirements within the Australian Code for the Responsible Conduct of Research, 2018, specifically R17 requires:

R17 - Comply with the relevant laws, regulations, disciplinary standards, ethics guidelines and institutional policies related to responsible research conduct. Ensure that appropriate approvals are obtained prior to the commencement of research, and that conditions of any approvals are adhered to during the course of the research.

While the Committee acknowledges shortcomings in processes and actions of HNE clinicians

involved in this research project, Professor Tanwar as CPI, carries the overall responsibility for

ensuring that the research project complied with HREC authorised protocols.

It is the view of the Panel that Professor Tanwar did not have sufficient oversight over the management and conduct of the projects and there were clear deficiencies in communication

between himself and the clinicians involved in the projects.

The Investigation Panel acknowledge the extenuating circumstances wherein the ethically approved protocols outlined responsibilities for clinicians in obtaining written consent. However, confirmation from the clinicians of their awareness of this responsibility was not available and ultimately, the responsibility for project conduct lies with Professor Tanwar, the CPI.

1. Hunter New England Human Research Ethics Committee & Research Office
   1. All existing HNEHREC authorisations with Professor Tanwar as Coordinating Principal Investigator be withdrawn.
   2. Professor Tanwar engages a clinical co-principal investigator to lead all future clinically related research in the Hunter New England Local Health District.
   3. HREC to consider that research samples only be routinely collected from NSW Health Pathology, not directly from operating theatres or clinical settings. Other pathways considered on individual basis with additional checks in place.
   4. All clinical research investigators to provide evidence of Good Clinical Practice certification 3-yearly, enforced via site specific approval processes.
   5. HNE Research Office facilitate Good Clinical Practice training opportunities for all Heads of Department and research active clinicians.
   6. Template study management filing systems be established for all clinical research, and education conducted on the same.
   7. Establish HREC submission checklists that requires a signature from all investigators to prevent submissions occurring without clinicians being aware of their stated involvement.
   8. Implement enhanced research project activity and compliance monitoring systems for externally led research.
   9. Consider the use of Clinical Trial Management System to assist with compliance monitoring interventional trials.
   10. Consider changes to site specific approval processes beyond those already implemented since the time these projects under investigation were authorised.
   11. Oversee in-depth education for all research engaged staff on Good Clinical Practice, research ethics and integrity.
   12. Ensure all CPI's and PIs provide evidence of training in human research ethics and integrity with all HREC submissions.

1. HNELHD
   1. Executive support and resourcing to implement the above recommendations noting the employment of a Research Office Project Manager to commence in October.
   2. Manage open disclosure to participants.

1. University of Newcastle
   1. Recommend that all blood and tissue samples related to these projects be destroyed.
   2. Recommend no further research to be conducted on animals that have received tissue and that UoN to determine the future of those animals according to the relevant animal ethics protocol and procedure.

1. University of Newcastle and HNELHD jointly
   1. The organisations, via the Joint Arrangements Committee, consider ways of working for improved transparency and collaboration on research integrity matters including consideration for a joint and aligned policy framework.
   2. Respond in a joint co-ordinated manner to research integrity concerns of where staff members across both organisations are under investigation.

1. NSW Health Pathology
   1. Review site-specific authorisation process for both applications.
   2. Review the provision of tissue blocks that was not covered in these HREC approved protocols and provide response to HNE HREC."

[31] Dr Tanwar appealed the outcome of the Hunter New England Health investigation but was not successful.

[32] The Hunter New England Health Investigation Report was considered by the Investigation Panel.

[33] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code.

[34] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as serious.

[35] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was serious. As the Chief Investigator for the Ecofibre Research Projects and the Co-ordinating Investigator for the joint research projects with Hunter New England Health, Dr Tanwar had ultimate responsibility for the ethical conduct of research in those projects. This required Dr Tanwar to ensure that participant information sheets were provided to patients and written consent was obtained from patients in accordance with the approved ethical protocols before tissues were obtained from patients and used in Dr Tanwar's research projects.

• [36] Dr Tanwar's ultimate responsibility for the ethical conduct of research in the projects he led is distinct from the obligation a medical practitioner has to obtain consent from a patient before the patient undergoes a procedure, operation or treatment.[22]

• [37] Dr Tanwar failed to establish and implement informed consent processes in both projects for the collection and use of human tissue biopsies from patients with ovarian and endometrial cancers. I accept that some of the clinicians who were responsible for obtaining written consent from patients failed to comply with their obligations under the ethical protocols to obtain such written consent, but as the person with ultimate responsibility for the projects Dr Tanwar had to ensure that there was a system in place whereby he could be satisfied that written consent had been obtained before a tissue sample was used in the research projects. This could have happened in a variety of ways, including by requiring written consent to be uploaded onto a digitised system and checked by Dr Tanwar's research team or a copy of the consent form, with personal information redacted, sent to Dr Tanwar's research team. It was not sufficient for Dr Tanwar to rely on text messages or phone calls from individual doctors informing a member of Dr Tanwar's team that a particular patient had consented to the study. Further, the written consent forms that were required by the approved ethical protocols to be given to patients did not simply ask whether the patient consented to their tissue (which would otherwise be discarded) being used for research purposes. The consent forms asked a series of questions, including whether the participant would like a lay summary of results derived from their donated biospecimens, whether they would like their general practitioner to be informed about any genetic studies results derived from their donated tissue, whether they would like a lay summary of the results of the whole study, whether they consented to results derived from their donated biospecimens being used for ethically approved future studies, whether they consented to any genetic studies results derived from their donated tissue being stored after completion of the project and used in ethically approved future studies, as well as questions about the particular biospecimens to which the participant agreed to donate.[23] Absent knowledge of a participant's answers to these detailed questions, Dr Tanwar's team could not know what they were, or were not, authorised to do with a particular participant's donated biospecimens or what information had to be provided to the participant once results were obtained from their donated biospecimens. As Professor Todd explained in her oral evidence, Dr Tanwar needed all the answers to the questions in the consent forms to ensure that the research complied with the ethical responsibilities.[24]

[38] The University alleges that Dr Tanwar failed to disclose to participants that their tissue samples would be transplanted onto patient-derived xenograft mice.

[39] The approved participant consent forms do not specifically ask for consent for use of tissue on animals, although they do ask for consent to use the tissue in future ethically approved studies.

• [40] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code. The Investigation Panel noted that research integrity requires full disclosure of all intended uses of biological samples and human ethics approval should have been obtained for the specific use of the biological samples in animal modes.[25]

[41] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as serious.

[42] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was serious.

[43] The University alleges that Dr Tanwar, as Chief Investigator for the Ecofibre Research Projects, failed to ensure effective data and sample management practices within his laboratory for the collection, use, storage and security of personal and/or health information collected or used during the Ecofibre Research Projects, including by failing to submit a data management plan in accordance with the University's Research Data and Primary Materials Management Procedure for human ethics approval.

[44] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code.

[45] Dr Tanwar accepts the allegation but contends that his breach of the Code was minor, not serious.

• [46] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and accept that the breach was serious. Dr Tanwar failed to comply with his obligation to submit a data management plan. Further, the Human Research Ethics Application prepared by Dr Tanwar for the joint Hunter New England Health project ending in number 0336 stated that "participants' information/data will be stored as a password protected digital copy and will only be accessible by Prof. Pradeep Tanwar as a coordinating principal investigator".[26] Dr Tanwar did not comply with this requirement. Red notebooks and manilla folders containing personal information were used in the labs where research was conducted. Although the labs were not accessible to members of the public, this was a significant departure from the ethical protocols prepared by Dr Tanwar and approved by the Hunter New England Health Ethics Committee.

[47] The University alleges that, in relation to the Ecofibre Research Projects, Dr Tanwar failed to disclose his interests to the University's Human Research Ethics Committee in relation to several patents granted between 2019 and 2024 where he was named as sole or co-inventor.

[48] The Investigation Panel found that this allegation was proven and rated it as a minor breach of the Code.

[49] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as minor.

[50] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was minor.

[51] The University alleges that Dr Tanwar, as Coordinating Principal Investigator and as a researcher, failed to make full disclosure of the end-use of patient samples and data to the Hunter New England Health Ethics Committee in the application and associated patient-facing documents with respect to research projects ending in the numbers 3366 and 1901 and that, as a result, the Hunter New England Health Ethics Committee did not have the opportunity to consider the ethical implications of these uses when reviewing and approving these projects.

[52] This allegation concerns a failure to inform the Hunter New England Health Ethics Committee that Dr Tanwar's research team intended to transplant tissue samples obtained from patients onto patient-derived xenograft mice. Because the Hunter New England Health Ethics Committee was unaware of Dr Tanwar's intention to do this, it was not in a position to require the inclusion of such information in the information document provided to patients or the consent form to be given to, and signed by, patients.

[53] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code.

[54] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as serious.

[55] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was serious.

[56] The University alleges that Dr Tanwar, as Coordinating Principal Investigator and as a researcher, failed to comply, and to take steps to ensure other members of his research team complied, with human ethics protocols approved by the Hunter New England Health Ethics Committee in respect of the joint research projects between Hunter New England Health and the University. The University alleges that as a result, patients who participated did not:

(a) receive patient information sheets detailing how their tissue and data would be used; and

(b) have the opportunity to provide informed and written consent including consent related to the collection and use of their tissue and data.

[57] This allegation concerns obtaining written consent and providing written information sheets to patients participating in the joint research projects between the University and Hunter New England Health. The analysis set out above in relation to allegation 3.2(a), which concerns the Ecofibre Research Projects, also applies to this allegation.

[58] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code.

[59] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as serious.

[60] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was serious.

[61] The University alleged that a number of the patient consent forms supplied retrospectively by Dr Tanwar to the University during the preliminary assessment, when compared with the original forms, had significant discrepancies, in that:

(b) the formed contained signatures of patients that did not match actual records of those patients' signatures as recorded in the surgical record books of Dr Angela Boulton.

[62] The Investigation Panel found that this allegation was not proven. The University is still considering this allegation, but does not rely on it in these proceedings, other than on the question of remedy. Accordingly, it does not need to be addressed any further under s 387(a) of the Act.

[63] The University alleges that Dr Tanwar, as Coordinating Principal Investigator and as a researcher, failed to maintain, and failed to ensure that other members of his research team maintained:

(a) a complete record of the number of participants from whom human tissue samples were collected under Hunter New England Health ethical protocols 2022/ETH01901 and 2022/ETO00336; and

(b) a complete and accurate inventory of human tissue samples collected from patients under Hunter New England Health ethical protocols 2022/ETH01901 and 2022/ETO00336.

[64] The Investigation Panel found that these allegations were proven and rated them as serious breaches of the Code.

[65] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breaches of the Code as serious.

[66] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breaches were serious. Without a complete and accurate inventory of human tissue samples collected from each patient, Dr Tanwar's team could not match each human tissue sample with a particular participant. This would become problematic if a participant wanted to exercise their right to withdraw their tissue sample from one or more research projects.

[67] The University alleges that Dr Tanwar failed to register the joint research project between Hunter New England Health and the University approved under Hunter New England Health ethics protocol 2022/ETH01901 with the University before commencing the project.

[68] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code.

[69] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as serious.

[70] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged. Dr Tanwar should have ensured that the joint research project with Hunter New England Health was registered with the University because it was related to the Ecofibre Research Projects, following the decision to collect and use tissue biopsies and develop laboratory-based disease models. This should have happened shortly after ethics approval was obtained from Hunter New England Health. Although the breach is not as serious as some of the other breaches found by the Investigation Panel, I accept that it is not trivial and is fairly characterised as serious.

[71] The University alleges that Dr Tanwar failed to notify the University when concerns were raised with him regarding the patient consent process in relation to the joint research projects between Hunter New England Health and the University.

[72] Dr Tanwar's team became aware of the issue on 21 February 2024. It was not until 5 April 2024 that Dr Tanwar contacted the University's Research Integrity Unit. The failure to act earlier was a breach of Dr Tanwar's obligation to report suspected breaches, particularly given the University's contractual responsibilities to Ecofibre, the private funder of the Ecofibre Research Projects.

[73] The Investigation Panel found that this allegation was proven and rated it as a serious breach of the Code.

[74] Dr Tanwar accepts both the allegation and the Investigation Panel's classification of the breach of the Code as serious.

[75] On the basis of the evidence before the Commission, I am satisfied that Dr Tanwar breached the Code as alleged and the breach was serious.

[76] The University alleges that Dr Tanwar, when alerted to concerns about the patient consent process in relation to the joint research projects between Hunter New England Health and the University, sought to procure retrospective signed consent forms from more than 30 patients who had previously provided only verbal consent.

[77] The Investigation Panel found that this allegation was not proven. The University is still considering this allegation, but does not rely on it in these proceedings, other than on the question of remedy. Accordingly, it does not need to be addressed any further under s 387(a) of the Act.

[78] The University alleges that Dr Tanwar falsely claimed that he was the primary and only inventor for the invention which was the subject of US Patent 2021/0025872 A1 filed on 29 March 2019 and granted on 28 January 2021.

[79] The Investigation Panel did not make any finding in relation to this allegation because it was of the view that the matter should be referred to a patent attorney to determine the inventing step relating to the patent.

[80] The University is still considering this allegation, but does not rely on it in these proceedings, other than on the question of remedy. Accordingly, it does not need to be addressed any further under s 387(a) of the Act.

• [81] Dr Tanwar accepts that he was bound by the Code,[27] but raises a number of mitigating factors in relation to his breaches of the Code. I will take these mitigating factors into account under s 387(h) of the Act. They do not, however, alter the fact that Dr Tanwar committed eight serious and two minor breaches of the Code. These breaches of the Code by a senior academic were of sufficient seriousness to justify the termination of Dr Tanwar's employment. Accordingly, I am satisfied that the University had a sound, defensible and well-founded reason to terminate Dr Tanwar's employment.

[82] The fact that the University had a valid reason to dismiss Dr Tanwar weighs against a conclusion that the termination of Dr Tanwar's employment was harsh, unjust or unreasonable.

[83] Dr Tanwar was notified of the reasons for his dismissal before any decision was made to terminate his employment. In particular, such notifications were made in the letter from Professor Upton to Dr Tanwar dated 15 July 2025, enclosing a copy of the Investigation Report and notifying Dr Tanwar that Professor Upton had recommended the termination of his employment, and the show cause letter issued to Dr Tanwar by Mr Toll on 25 July 2025.

[84] Dr Tanwar was given, and took up, multiple opportunities to participate in the University's assessment, investigation and show cause processes and to respond to the reasons for his dismissal.

Unreasonable refusal to allow a support person (s 387(d))

[85] Dr Tanwar was legally represented throughout the investigation process. Dr Tanwar's lawyer accompanied him to his interview with the Investigation Panel and his meeting with Mr Toll on 20 August 2025.

[86] There was no unreasonable refusal by the University to allow Dr Tanwar to have a support person present to assist at any discussions relating to his dismissal.

Warnings of unsatisfactory performance (s 387(e))

[87] Dr Tanwar was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

[88] The University is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of the University's enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Dr Tanwar's dismissal.

[89] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [90] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:[28]

"[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal": Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee's disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and her or her dependents.]

[43] The determination of whether there was a "valid reason" proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as "substantive fairness" from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason".

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] FCA 209; (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

"Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer's policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13]."

Length and quality of Dr Tanwar's employment at the University

[91] Dr Tanwar was employed by the University for about 13 years prior to his dismissal. He had not been subjected to any disciplinary action or complaint prior to his dismissal. Dr Tanwar's success as a research academic at the University saw him promoted from the position of Lecturer (2012-2014) to Senior Lecturer (2015-2017) to Associate Professor (2018-2021) to Professor (2021-2025). Dr Tanwar secured over $25 million in research funding, led the creation of the Centre at the University, and received numerous awards for research excellence. I consider that the length and quality of Dr Tanwar's employment with the University weighs in favour of his argument that his dismissal was harsh.

• [92] I accept that Dr Tanwar has demonstrated remorse for breaching the Code and the consequences of those breaches. However, I do share Mr Toll's concern that Dr Tanwar has continued to attribute blame to others rather than accepting that he had the ultimate responsibility as the most senior researcher on the projects to ensure that the ethical protocols were followed.[29]

[93] Dr Tanwar is critical of the speed with which the University made its decision to suspend him, on full pay, on 11 April 2024. The decision to suspend was made within one day of concerns being brought to the attention of Mr Cairns about allegations of serious research breaches against Dr Tanwar.

[94] Mr Cairns met with Professor Todd and Professor Upton to discuss the allegations made against Dr Tanwar. Mr Cairns did not have very much information about specifically what the consent-related allegations concerned and incorrectly understood that Dr Tanwar had collected samples. However, he was informed that serious allegations had been made regarding Dr Tanwar's research team using intimate human samples without obtaining proper informed consent and that Hunter New England Health had suspended its approval for various research projects being undertaken by Dr Tanwar in order to facilitate an investigation. Mr Cairns recommended that Dr Tanwar be suspended.

[95] Clause 10.7.1 of the Enterprise Agreement confers a discretion on the University to suspend an academic in circumstances where the academic is alleged to have engaged in "misconduct/serious misconduct, or Research Code Breach", including circumstances where the academic's continued presence in the workplace constitutes a risk to the health and safety or a person, poses a threat to the reputation, viability, or profitability of the University, or interferes with evidence relevant to an investigation.

[96] Professor Upton made the decision to suspend Dr Tanwar having regard to the following matters:

(a) the seriousness of the allegations against Dr Tanwar, which carried the real risk of causing reputational damage to the University; and

(b) the risk associated with Dr Tanwar continuing to have:

(i) access to data that was critical to the University's assessment and investigation processes, which could lead to its manipulation and/or deletion; and

(ii) ongoing interaction with Dr Tanwar's research team, who were potential witnesses in relation to the allegations against Dr Tanwar and needed to remain independent and free from influence in relation to their evidence.

[97] I consider that it was appropriate for Professor Upton to suspend Dr Tanwar, with full pay, on 11 April 2024, while the serious allegations were investigated. I do not accept the contentions advanced on behalf of Dr Tanwar that he should have been given an opportunity to be heard before the decision to suspend was made, that it would have been more appropriate to sit down and discuss the concerns with Dr Tanwar or take some other, less formal, approach to solve the problem or improve the research projects, or that Professor Upton should have taken into account Dr Tanwar's 'clean record' before making a decision about his suspension. Serious allegations about breaches of the Code had been made. They impacted the University, its staff and students, Hunter New England Health, as well as patients who had donated tissue samples for use in research. It was not just a potential future problem that could be avoided; it involved the alleged taking and use of samples where fully informed consent had not been obtained. These were serious matters. They had the real capacity to pose a threat to the reputation of the University, as well as Dr Tanwar's reputation as a senior academic and researcher.

[98] Dr Tanwar is critical of the training provided to him by the University in relation to his obligations under the Code. He contends that the training was not designed, described, or delivered as role-specific training addressing:

(b) clinician-dependent consent and consent documentation processes;

(c) the practical interface between a University Coordinating Principal Investigator and NSW Health clinicians across multiple hospital sites; and

(d) the management of risk where critical ethical steps are performed by third parties outside the researcher's direct control.

[99] I do not accept these criticisms of the training provided to Dr Tanwar by the University.

[100] There is no dispute that the Code imposes institutional obligations on the University to provide training and support appropriate to the research environment.

• [101] In 2019, Dr Tanwar participated in training conducted by the University in relation to 'Research Integrity and the Responsible Conduct of Research'.[30] That training included an invitation to contact the Assistant Dean (Research) if the academic wanted any advice on how to deal with a research integrity situation.[31]

[102] On 6 May 2020, the University appointed Associate Professor Kathryn Skelding as the Research Ethics Advisor for the School of Biomedical Sciences and Pharmacy (Medical Biochemistry). As part of her role, Associate Professor Skelding was available to provide guidance and support for ethics applications.

• [103] In 2021, Dr Tanwar was sent a training seminar by Associate Professor Skelding in relation to 'Human Research Ethics Presentation'.[32]

• [104] In addition, as a Professor with considerable research experience and the Director of the Centre, the University was entitled to expect that Dr Tanwar would be aware of the requirements of the Code and the University's policies directed towards compliance with the Code. The fact that Dr Tanwar made a complaint to the University in about 2023 in relation to various breaches of the Code by another staff member demonstrates that he was familiar with the obligations of researchers under the Code. That complaint concerned the unauthorised destruction of human and mouse tissue samples and unauthorised use of data belonging to another researcher for the purpose of securing a fellowship.[33]

[105] Although undertaking joint research projects with other institutions such as Hunter New England Health involves some additional complexity, including Site Specific Authorisations at each site (hospital) where samples are being obtained for the research, there was a consistent regulatory requirement that Dr Tanwar, as the person leading the research projects, would have ultimate responsibility for ensuring ethical protocols were followed. Having such ultimate responsibility is not a particularly complex concept. Ensuring the obligation is met requires that appropriate compliance systems be put in place and followed.

[106] I do not accept the contention advanced on behalf of Dr Tanwar that the introduction of new training by the University after the events the subject of these proceedings proves that the training provided by the University to Dr Tanwar on research ethics was inadequate. The new training included mandatory research integrity training by the University in February 2025, consisting of 11 modules, compulsory Good Clinical Plan certification for clinical researchers, and mandatory online training in human research ethics. The University is always seeking to improve its processes and regulatory compliance. The introduction of this new training by the University was part of that continuous improvement process, as well as a response to issues that had arisen in the workplace.

[107] Dr Tanwar relies on the fact that an audit was undertaken in about February 2024 by Dr Sarah Moberley, Manager Research Ethics of Hunter New England Health, and no outstanding concerns were identified.

[108] Dr Tanwar contends that this audit was of both joint research projects being undertaken by the University and Hunter New England Health. The University contends that the audit was only of one of those two projects - the project ending in numbers 0336.

• [109] The documentary evidence before the Commission establishes to my satisfaction that the audit undertaken by Dr Moberley only related to the project ending in numbers 0336.[34] Further, the audit was limited to dealing with research governance issues.

• [110] I accept that the dismissal has been extremely difficult for Dr Tanwar both personally and economically. Dr Tanwar lost a very senior position and has not been able to secure alternative employment. The findings that he has breached the Code, together with the decision by the University to terminate his employment, will definitely have a significant negative impact on Dr Tanwar's career as an academic, including the potential cessation of that career. One example of this is the fact that the National Health and Medical Research Council of Australia has decided to take significant actions against Dr Tanwar as a result of the findings of research misconduct by the University.[35] Dr Tanwar's solicitor has informed the National Health and Medical Research Council that he intends to seek a review of those actions following the determination of Dr Tanwar's unfair dismissal case in the Commission. I have given careful consideration to the personal and professional impact on Dr Tanwar of the University's decision to dismiss him.

• [111] The conduct that led to Dr Tanwar's dismissal has also had significant consequences for the University and some of its staff and students. Professor Todd summarised these impacts in the following way in the correspondence she sent to Professor Upton on 11 July 2025:[36]

"1. Funders. The research directly involves work for which the University has accepted funds from eleven funders. A total of ~$14M ($8M spent to date) in research funding is linked to the ethical clearances against which we have been told to destroy all tissues. Research reliant on these tissues will not materialise in research outcomes. Unspent funds will need to be returned and there may be potential requirements to repay funding due to the impact of the research practices.

2. Students. Two students were required to abandon their PhD work and recommence their studies (one 2.5 years and one 4 years into their PhD). The University is paying the costs of supporting these students to complete under augmented stipends. A total of fourteen students have been disrupted and assigned to new supervision. At least another two students have been identified whose completed PhDs are likely reliant on data that can no longer contribute to research outcomes.

3. Staff. A total of seventeen staff had their employment disrupted and career outputs affected. Four staff were able to be placed in other employment at the University for a period.

4. Animals. Over 1000 mice have been expended during the research that will not yield publishable/useable data.

5. Reputation. Trust in the University, the funders, and four participating health institutions will be affected by the implications of these research breaches."

[112] In addition, the failure to ensure ethical protocols were followed has meant that some women who donated their samples to research have done so without proper informed consent being obtained. It is no excuse to say that no patients were physically harmed, no patients complained, verbal consent was obtained from patients, and the tissues donated to research would otherwise have been discarded. Patients of Hunter New England Health who donate their tissues to researchers are entitled to expect that the ethical protocols put in place by those researchers, with the approval of the Hunter New England Health Human Research Ethics Committee, will be followed.

• [113] Professor Todd also gave evidence, which I accept, as to the implications of the findings made by the Investigation Panel and the effective closure of the Centre:[37]

117. On 29 August 2025, I wrote to Dr Tanwar to confirm the corrective actions to be taken by the University in response to the outcomes of the Investigation. A copy of this correspondence appears at Ex-097. In summary, the University was required to:

(a) notify various funding bodies, partner institutions, collaborators, committees and regulatory bodies in accordance with its obligations under funding agreements, contracts and institutional policies;

(b) destroy all research materials and data collected under the HNE Projects' ethics approvals;

(c) take steps to correct the scholarly record in relation to publications that contained or relied on data or findings associated with any substantiated breaches; and

(d) refer the unresolved matters for further investigation under the Breach Procedure.

These various actions were and are serious, time and cost-intensive and ongoing.

118. As a result of the suspension of all research activities connected with the ethical clearances on the HNE Projects, very little research activity was able to be completed within the Centre from April 2024 onwards. Instead, Dr Tanwar's research team were largely undertaking laboratory maintenance work as an interim measure while the University worked through its initial assessment and investigatory processes.

119. As also noted, in September and October 2024:

(a) it became apparent that the outcomes of the HNE Investigation required the University to destroy all blood and tissue samples collected under two research protocols; and

(b) this contributed to the discontinuation of various Centre projects and funding arrangements, as well as the repayment of some philanthropic grants by the University.

120. Of particular note, Ecofibre elected to terminate its grant funding agreement with the University at around this time. Having already worked through the document governing the research work performed by the Centre in connection with Ecofibre, as described in paragraph 65 above, I was aware that most of the senior researchers in Dr Tanwar's research team were employed on the basis that their employment costs would be funded by way of the Ecofibre grants. The loss of Ecofibre funding accordingly meant that the grants used to maintain the employment of Dr Tanwar's senior researchers was no longer available to the University. One remaining senior researcher was employed on independent funds but was a respondent in a separate allegation of potential breaches of the Code that had been escalated to investigation.

121. Since there was no research work for Dr Tanwar's research team to perform after this time, no grants available to fund the ongoing employment of Dr Tanwar's senior researchers, and thus no-one available to lead any new research projects going forward, most of the fixed-term employees in Dr Tanwar's team ceased their employment with the University upon the expiry of their fixed-term contracts in December 2024. Only a few researchers were able to be reallocated to other research projects within the University.

122. These matters contributed to the effective closure of the Centre at the end of December 2024. There are currently no employees or students allocated to the Centre, nor any research work conducted within it. The University is instead in the process of reallocating the laboratory space and equipment to other research endeavours."

[114] I do not accept Dr Tanwar's contention that it was unfair for the University to rely on consequences it 'manufactured' or 'self-inflicted' to justify its decision to terminate Dr Tanwar's employment. I do not accept that the University 'manufactured' or 'self-inflicted' any consequences of Dr Tanwar's actions. As a result of the Hunter New England Health investigation, ethics approval for the joint research projects between Hunter New England Health and the University was withdrawn and the University had little choice but to destroy all blood and tissue samples collected in those joint research projects. In the weeks that followed completion of the Hunter New England Health investigation, Professor Todd explored whether there was anything the University could do to allow data from the blood and tissues obtained by Dr Tanwar's team to be used to satisfy the requirements of associated PhD studies, on the basis that the data could not be published or made public in any way. In doing so, Professor Todd personally met with representatives from the Australian Research Integrity Committee and discussed whether there was any way that the University could facilitate Dr Tanwar's PhD students finalising their PhDs, noting that one student was already at the point of submission after four years' work and the other was also two years into their PhD. Professor Todd also sought extraordinary permission from the Hunter New England Health Ethics Committee to enable Dr Tanwar's students to use the relevant blood and tissue samples for the purpose of their theses. The unfortunate result of these enquiries was confirmation from the Hunter New England Health Ethics Committee that it was not legally possible for the University or its researchers to use the relevant blood and tissue samples. The samples which had to be destroyed were also being used in the Ecofibre Research Projects. Ecofibre elected to terminate its grant funding agreement with the University.

[115] The laboratory in the Centre held biological samples sourced from multiple biobanks, in addition to the samples from patients in Hunter New England Health hospitals. Ms Turner's father asked, in the meeting on 17 October 2024, what it would cost to keep Dr Tanwar's research team employed until the University's investigation into the allegations against Dr Tanwar was concluded. I am persuaded by Professor Todd's evidence that the University:

(a) undertook reasonable steps to assess whether the Centre could continue to function and Dr Tanwar's research team could continue their employment with the University; and

(b) made reasonable decisions in relation to the effective closure of the Centre at the end of December 2024.

• [116] The consequences of Dr Tanwar's conduct were significant and have had a broad impact as I have explained above. This distinguishes this case from other cases such as University of Newcastle v Sheng Jin,[38] where the consequences of the employee's conduct were not significant.

[117] True it is that others involved in the research projects failed to comply with their obligations under the research protocols. For example, experienced clinicians were responsible for obtaining written consent from patients before their samples were used in any research. Some clinicians complied with those obligations while others did not. I have given weight to the failure by others to comply with their obligations under the ethical protocols in assessing the seriousness of Dr Tanwar's conduct and the fairness of his dismissal.

[118] Although it was not Dr Tanwar's role to be present while consent was obtained or to otherwise supervise the work of the clinicians, it was his responsibility, as the person ultimately responsible for the research projects, to ensure that all ethical protocols were met. This ultimate responsibility necessitated systems being in place whereby Dr Tanwar's research team could be satisfied that informed written consent had been obtained before any sample was used in a research project.

• [119] Dr Tanwar also relies on a range of other mitigating factors which were addressed in his written and oral submissions, as well as his detailed response to the show cause letter from the University (including the submissions referred to therein) and character references provided as part of that response. I have read and considered those matters.[39] They include the following:

(a) Unintended misunderstandings and miscommunication between the research team at the University and the clinical team at Hunter New England Health regarding the roles and responsibilities in the consenting process significantly contributed to issues with the consent protocols. These misunderstandings within the clinical and research teams ultimately resulted in challenges whereby Dr Tanwar reasonably and appropriately relied on the clinical team to provide guidance on hospital procedures, administrative and organisational processes, unfamiliar institutional hierarchies, and varying communication channels. Being part of the hospital, Dr Tanwar believed the clinical team at Hunter New England Health was best placed to provide this guidance, however, now understands this was not the case.

(b) At no time did Dr Tanwar or his team intentionally or wilfully breach the Code, nor did they act recklessly in relation to their ethical obligations. This matter does not represent a pattern of unethical behaviour by Dr Tanwar, or his team.

(c) Dr Tanwar has repeatedly acknowledged his remorse and shortcomings, despite recognising that many of the breaches were attributable to procedural issues and imperfect systemic processes to support a scientist/researcher navigating complex hospital systems. Notwithstanding this, he acknowledges his overarching responsibility for compliance with the approved protocol and for maintaining ethical standards within his team. Dr Tanwar accepts responsibility for his conduct, and is doing all that he can to make things right.

(d) Dr Tanwar wishes to reiterate that he acknowledges his responsibility for the oversight and sincerely apologises for not clearly outlining his ethical obligations in earlier communications with the University. Dr Tanwar reaffirms his commitment to upholding the highest standards of research integrity going forward. Dr Tanwar continues to hold himself to a high ethical standard in conducting research and continues to engage in professional learning to better inform his practice. In this regard, Dr Tanwar has undertaken significant education on research ethics, and ethics fundamentals. Dr Tanwar understands the importance of human research ethics training and continual improvement, to mitigate any discrepancy from occurring. Dr Tanwar and his team have learned from their experience and consider their knowledge in human ethics has relevantly improved as a result. Dr Tanwar has insight into, and well apprehends, the importance of abiding by strict research ethics protocols and ensuring proper supervision of his team. Dr Tanwar is committed to ensuring he implements these improvements and changes in his future research.

(e) Dr Tanwar appreciates that for those who volunteered their samples, part of their own human body, it is a profound and delicate matter. Dr Tanwar very much appreciates that each and every step taken in conducting research with respect to the human sample must be exceptionally cautious and thorough.

(f) Dr Tanwar feels very strongly about the value and reputation of the University's name, and will take any steps deemed appropriate to properly demonstrate his commitment to contributing to its good name and repute.

(g) This matter has been the centre of Dr Tanwar's life for some time, and the distress and suffering he feels on reflection is immense. Irrespective of same, he has taken the necessary steps to learn from this matter and will otherwise continue to take those steps for some time.

(h) As to allegation 3.1, Dr Tanwar accepts full responsibility for the oversight and acknowledges that the approvals were not registered in a timely manner. Dr Tanwar also points out that it is a common pattern within the University for timely registration of Hunter New England Health ethics protocols not to be enforced or guided with any clarity. Dr Tanwar observes that it was common for University human research ethics registration to only occur once new funding was received and was to be linked to an existing protocol.

(i) As to allegation 3.2(a), Dr Tanwar accepts his responsibility as the person with ultimate responsibility for the research projects and acknowledges that oversight in a complex, multisite study reflects a shared responsibility among all parties involved, including clinical teams, institutional governance bodies, and site investigators. Dr Tanwar relied on clinicians to comply with their obligation under the ethics protocols to obtain written consent from patients, but stresses that he remains committed to working collaboratively to strengthen institutional compliance and uphold the highest standards of ethical research conduct in any role he may hold at the University. Dr Tanwar, on behalf of both research and clinical teams, now fully understands and appreciates what failed and has taken the relevant steps by way of educating himself, so this does not reoccur.

(j) As to allegation 3.2(b), Dr Tanwar accepts that more detailed information regarding patient-derived xenografts should have been provided to the human research ethics committee, rather than a general statement about samples being used in future approved studies. Dr Tanwar says that he relied on the formal ethics approval and assumed that all necessary ethical standards had been met.

(k) As to allegation 3.3, Dr Tanwar says this was an administrative lapse and no harm was caused to patients. Dr Tanwar has recognised his shortcomings and reiterates that his team did not collect any samples from patients who had not provided informed consent. These samples were only collected from patients following confirmation of consent being received from the clinical team. Dr Tanwar has undertaken extensive training and now fully understands his obligations in relation to patient samples and data handling. Dr Tanwar is committed to ensuring that such oversights do not occur again and that all data storage and management processes meet the highest ethical and regulatory standards, with robust quality assurance protocols in place.

(l) As to allegation 4.1, Dr Tanwar informed the Director of the Knowledge Exchange and Enterprise for the School of Biomedical Sciences and Pharmacy about all his research activities and followed their directions related to any conflict-of-interest management involving his research activities. Dr Tanwar says that his suspension from 11 April 2024 made it more difficult for him to disclose relevant matters. Notwithstanding this, Dr Tanwar unequivocally agrees with the recommendations for future human research ethics applications and conflicts of interest.

(m) As to allegation 5.1, Dr Tanwar says that no concern was raised by the University human research ethics committee nor the Hunter New England Health ethics committee regarding information included in participant-facing documents during the approval process. Dr Tanwar agrees that information concerning the use of tissue samples taken from patients should have been explicitly included in the participant-facing documents, however, cannot reconcile as to why these concerns were not raised during the approval process.

(n) As to allegation 5.2, Dr Tanwar acknowledges his responsibility for the overall project. Irrespective of this, Dr Tanwar's supervisory duties, in conjunction with the administrative obligations associated with managing multiple concurrent research projects, precluded him from personally overseeing every aspect and detail of the research program. Dr Tanwar says that that fault should be attributed a breakdown in the collective responsibilities shared among the Site Principal Investigator, clinical staff, Coordinating Principal Investigator, and the need for improved governance and quality assurance protocols and procedures by the organisations involved. Consistent with the shared responsibility framework established by the National Statement and the Code, this matter is best understood as a site-level breach, requiring institutional reflection rather than attributing blame to the individual. Holding Dr Tanwar solely accountable would be inconsistent with the collaborative governance principles underpinning Australian research ethics and compliance systems.

(o) As to allegations 5.4 and 5.5, Dr Tanwar relied on the audit undertaken by Dr Moberley and says that hospital records are outside his control. Dr Tanwar says that any deficiency in local record keeping is a site related governance issue, not personal misconduct by him.

(p) As to allegation 5.6, Dr Tanwar acknowledges that he holds overarching responsibility for ensuring compliance with the approved protocol and for maintaining ethical standards within his team. Dr Tanwar points to the fact that the project was registered, albeit with a regrettable delay. He says this was an honest administrative oversight.

(q) As to allegation 5.7, Dr Tanwar accepts responsibility for the delay in reporting the Hunter New England Health protocol consent-related issue to the University and acknowledges the importance of timely disclosure in accordance with the University's policy. Dr Tanwar says that he attempted to respect the internal processes of the hospital and his clinical colleagues. He did not deliberately conceal the concerns from the University. Dr Tanwar says that the delay is properly characterised as an oversight within a complex distributed governance environment, not concealment or serious misconduct. Dr Tanwar says that he understands the importance of institutional reporting obligations regardless of interpersonal or professional dynamics. He is fully committed to upholding the University's policies and assures the University that a delay in reporting will not occur again.

• [120] I have also taken into account the evidence given by Laureate Professor Attia and Ms Turner. Professor Attia was only able to make "general comments about the issues at hand" because he had stepped down from his role as Assistant Dean Research for the College of Health and Medicine before the issues the subject of these proceedings emerged.[40] Professor Attia was not involved in approving the projects on which Dr Tanwar was working at the time he breached the Code, nor did he investigate the breaches. Professor Attia expressed the view that "the breaches identified, while regrettable, are not unusual in complex, multi-site cross institutional medical research".[41]

• [121] Ms Turner gave evidence about various meetings she attended after the University had commenced an investigation into the allegations against Dr Tanwar. Where there is conflict between Ms Turner's evidence and evidence given by Professor Todd as to what was said at the meeting on 17 October 2024, I prefer the evidence of Professor Todd where it is supported by the contemporaneous notes made by Professor Todd and admitted into evidence.[42] Subject to this qualification, I have taken into account Ms Turner's evidence of what was said in the relevant meetings in my overall assessment of the procedural fairness afforded to Dr Tanwar. Ms Turner expressed opinions about the way she believed Dr Tanwar was treated by the University and how the breaches of the Code could have been corrected. I accept that Ms Turner gave honest opinion evidence about these matters, but I do not agree, for the reasons explained elsewhere in this decision, with Ms Turner's opinions that the University was "creating a scapegoat" in Dr Tanwar and "the breaches would have been easily corrected had Professor Tanwar been given appropriate support by the University".[43]

• [122] Dr Tanwar was summarily dismissed by the University on grounds of serious misconduct. The proportionality of the summary nature of Dr Tanwar's dismissal must be weighed against the gravity of his misconduct in respect of which the University acted in deciding to dismiss him.[44]

• [123] In Sharp v BCS Infrastructure Support Pty Ltd,[45] a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an "other relevant matter" within the meaning of s 387(h) of the Act (references omitted):

"[33] The relevance of the definition of "serious misconduct" in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of "serious misconduct" for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression "serious misconduct" is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression "serious misconduct" is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is "satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person". However, it is clear that conduct may constitute "misconduct" for the purpose of s.392(3) without necessarily being "serious misconduct". The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee's conduct met a postulated standard of "serious misconduct". In Rankin v Marine Power International Pty Ltd Gillard J stated that "There is no rule of law that defines the degree of misconduct which would justify dismissal without notice" and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. "Serious misconduct" is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

"[48] The terms 'misconduct', 'serious misconduct' and 'serious and wilful misconduct' are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term 'serious misconduct' is under consideration an evaluation of what conduct represents 'serious' misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2)."

[35] In the Decision, the Vice President, correctly, did not attempt to address the parties' submission concerning "serious misconduct" in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp's conduct was "serious misconduct" was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that "the Applicant's conduct constituted serious misconduct justifying immediate dismissal". That is, "serious misconduct" was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question."

[124] The Code does not mandate termination of employment for a breach of the Code. Nor does the Enterprise Agreement. Schedule 13 of the Enterprise Agreement permits the University to take a range of disciplinary action for a breach of the Code but only permits termination of employment in cases of serious Code breaches.

• [125] Having regard to all the circumstances, I consider that Dr Tanwar's conduct in committing eight serious breaches and two minor breaches of the Code was of such a grave nature as to be repugnant to the employment relationship. Dr Tanwar was an experienced academic. He was employed in the senior position of Professor and was the Director of the Centre. He understood that he was bound by the Code and had overall responsibility for the research projects he led. Extensive and serious failures to comply with the Code strikes at the heart of the role of an experienced researcher. The consequences of those breaches by Dr Tanwar were significant. There is a sound and rational basis for Mr Toll's belief, which formed the basis of his decision to dismiss Dr Tanwar, that the University could not have trust and confidence in Dr Tanwar as a senior academic employee, particularly in circumstances where the University's research reputation is critical to the sustainability and success of its world-class research activities and is vital for the purpose of attracting government funding, donors, industry assistance and high calibre researchers.[46]

[126] The Research Breach Procedure documents the University's approach for managing concerns regarding potential breaches of the Code. If there is a potential breach of the Code that warrants assessment, the Research Breach Procedure provides for a preliminary assessment to be conducted. This involves the gathering of initial facts, information and advice about the concerns and providing a preliminary assessment report to the University's Pro Vice-Chancellor Research. The Research Breach Procedure does not require that allegations be put to, or information be obtained from, the academic to whom the potential breaches of the Code relate.

[127] Two preliminary assessments were conducted in relation to concerns that Dr Tanwar had breached the Code. The first preliminary assessment, undertaken by Professor Chris Dayas, related to a complaint made to the University on about 15 March 2024 to the effect that Dr Tanwar had falsely claimed that he was the primary and only inventor for the invention that was the subject of a particular patent. The second preliminary assessment, undertaken by Laureate Professor Claire Collins, related to potential breaches of the Code concerning issues arising from the Hunter New England Health investigation. Both Professor Dayas and Professor Collins concluded that the complaints against Dr Tanwar and his research team would, if proven, constitute breaches of the Code and fall within the spectrum of serious breaches of the Code.

• [128] Information was obtained from Dr Tanwar for the second preliminary assessment but not the first preliminary assessment. Dr Tanwar contends that this was a "missed opportunity to sensibly discuss the matter before unnecessary escalation". Professor Upton disagrees with this assertion. So do I. There was no requirement to permit Dr Tanwar to participate in a preliminary assessment and if the sharing of information with a respondent might compromise a preliminary assessment, then the University's policies suggest that information should not be shared with a respondent.[47]

[129] Following the preliminary assessments, the University convened an Investigation Panel in accordance with the requirements of the Enterprise Agreement. The Investigation Panel was comprised of three eminent academics with considerable research experience. They investigated the alleged breaches of the Code and took into account a vast body of material, including Dr Tanwar's verbal and written responses to the allegations, before making their findings. Dr Tanwar was also given an opportunity to be heard by the University after it received the Investigation Panel's report but before any decision was made to terminate his employment.

[130] Dr Tanwar requested that the Investigation Panel not conduct its investigation until the conclusion of the investigation by Hunter New England Health. The University acceded to that request. Inevitably, this delayed the commencement of the investigation by the Investigation Panel and meant that Dr Tanwar was suspended, on full pay, for a longer period than would otherwise have been the case. It also meant that Dr Tanwar's opportunity to present his case to the Investigation Panel was delayed. I accept that this delay had an impact on Dr Tanwar's health and his reputation.

• [131] Dr Tanwar contends that Mr Toll informed him that the University was only relying on his serious breaches of the Code as the reason for his dismissal, whereas in these proceedings the University has relied on both the serious and minor breaches of the Code. Dr Tanwar contends that this gives rise to procedural fairness concerns. I do not accept this contention. The following paragraphs of the show cause letter are relevant to this issue:[48]

"As you know, this investigation concluded that you had committed eight serious and two minor breaches of the Code. Professor Zee Upton (the University's Deputy Vice Chancellor, Research and Innovation, and the Responsible Executive Officer for the purpose of the Procedure) subsequently determined that you had committed research misconduct of a serious and reckless and/or negligent nature through serious breaches of the Code. Professor Upton has accordingly recommended the termination of your employment with the University.

I am the University delegate with responsibility for determining what, if any, disciplinary action will be taken against you in relation to this matter. Based on the information currently available to me, I consider that the termination of your employment is the appropriate response to your substantiated research misconduct.

Pursuant to Schedule 13, clause 2.5, of the University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023, I now offer you and your representative (if you so choose) an opportunity to meet in person and/or make written submissions as to why your employment should not be terminated. If you wish to avail yourself of this opportunity, you may put forward any matters going to mitigation for me to consider...

If you do not take up either of these opportunities within the timeframes set out above, I will proceed to make a final decision in relation to the disciplinary action that will be taken against you based on the information currently available to me..."

• [132] The expression "research misconduct" means "a serious breach of the Code which is also intentional or reckless or negligent".[49] Mr Toll's letter refers to "research misconduct ... through serious breaches of the Code". It also makes express reference to the eight serious and two minor breaches of the Code. This gives rise to some ambiguity as to whether Mr Toll was considering terminating Dr Tanwar's employment solely on the basis of his serious breaches of the Code or on the basis of both the serious and minor breaches of the Code. In any event, Dr Tanwar was not denied procedural fairness because:

• (a) Dr Tanwar's show cause response demonstrates that he understood that Mr Toll was considering both the serious and minor breaches of the Code. So much is clear from the part of the show cause response in which it was stated that "We understand that... you have proposed that termination of Prof. Tanwar's employment is the appropriate outcome in light of the findings in the Final Report" by the Investigation Panel.[50] Findings were made by the Investigation Panel in their "Final Report" in relation to the serious and minor breaches of the Code; and

• (b) Dr Tanwar's detailed show cause response sent to the University responded to both the eight serious breaches of the Code and the two minor breaches of the Code (allegations 3.1 and 4.1).[51]

[133] Having regard to all the material before the Commission, I am satisfied that the University undertook a fair investigation and afforded Dr Tanwar procedural fairness prior to making the decision to terminate his employment. I do not accept Dr Tanwar's contention that the University's decision maker, Mr Toll, lacked curiosity or failed to take relevant matters into account before making his decision to terminate Dr Tanwar's employment, or that he failed to consider reasonable alternatives to dismissal. Mr Toll read the large body of material pertaining to the investigation and obtained advice from Mr Sainsbury and Professor Upton before making his decision. In addition, Mr Toll read Dr Tanwar's response to the show cause letter and met with Dr Tanwar and his solicitor to hear further from him before making a decision. It was not Mr Toll's role to re-prosecute the investigation undertaken by the Investigation Panel. Mr Toll relied on the expertise of the members of the Investigation Panel and had regard to their findings when evaluating whether to terminate Dr Tanwar's employment. I do not accept that the University, or Mr Toll in particular, prejudged the outcome investigation process. I am satisfied that the process was both careful and detailed, and it informed the ultimate outcome determined by Mr Toll on about 25 August 2025.

[134] Dr Tanwar points to the fact that others involved in the research projects, including clinicians who failed to comply with their obligations under the ethical protocols to provide written information to patients and obtain written consent from them, have not been dismissed or had other disciplinary action taken against them. Dr Tanwar also submits that other employees of the University have not been dismissed for breaches of the Code.

[135] The University does not have control over clinicians employed by Hunter New England Health. The University has no ability to discipline such clinicians.

• [136] As for other staff of the University, care must be taken to ensure that assertions of differential treatment involve comparable circumstances.[52] The evidence before the Commission does not establish that other employees of the University have been treated differently to Dr Tanwar in materially the same, or equivalent, circumstances. Other members of Dr Tanwar's research did not have ultimate responsibility for the ethical conduct of research in the projects led by Dr Tanwar. In addition, broad statements in the evidence such as "the breaches identified, while regrettable, are not usual..."[53] do not establish to my satisfaction that unfair differential treatment has occurred.

• [137] There is no question that Dr Tanwar, who has 17 years of veterinary and biomedical research experience, is highly respected for his abilities as a scientist.[54] He was a leader at the University and a leader in his own research field. However, it is accepted by Dr Tanwar that he committed numerous serious breaches of the Code. A cornerstone of reliable scientific research is that it must be performed ethically and responsibly.[55] To achieve this, the requirements of the Code must be met. This case demonstrates that where such obligations are not met, the consequences can be significant, including the destruction of tissue samples obtained from patients, the non-publication of research undertaken on such samples, the shutting down of future research on such samples, as well as material adverse impacts on staff, students and the University. In addition, even though no patients were harmed by Dr Tanwer's breaches of the Code and none complained, patients have a right to expect that approved ethical protocols will be followed, including by being provided with written information about research projects before deciding whether to consent, giving informed consent in writing, being informed of the ways in which their discarded tissue will be used in research, such as having their tissue transplanted onto patient-derived xenograft mice, and having their information and data stored in such a way to ensure that their privacy is protected.

[138] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that the University's dismissal of Dr Tanwar was not harsh, unjust or unreasonable. There was clearly a valid reason for Dr Tanwar's dismissal. The University undertook a reasonable investigation and afforded Dr Tanwar procedural fairness before making its decision to terminate his employment. The seriousness and consequences of the conduct in which Dr Tanwar engaged in breach of the Code outweighs the harsh consequences of the dismissal insofar as it has impacted on Dr Tanwar's personal and economic situation. My assessment is that Dr Tanwar's dismissal was not disproportionate to the gravity of his misconduct.

[139] For the reasons given, Dr Tanwar's application for relief from unfair dismissal is dismissed.

[2] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[5] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J.

[6] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

[7] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.

[9] Rabbi Pinchas Ash v Chabad Institutions of Victoria Limited [2020] FWCFB 44 at [18].

[11] I will use the allegation numbering adopted by the Investigation Panel

[23] See, for example, Hearing Book at pp 1686-1687 & 4254-4255

[28] [2013] FWCFB 6191

[34] Hearing Book at pp 553, 557, 3462, 3639 & 4002

[38] [2013] FWCFB 3369

[43] Hearing Book at p 339 [39] & [44]

[44] Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]

[45] [2015] FWCFB 1033

[52] Darvell v Australian Postal Corporation [2010] FWAFB 4082 at [21]- [24]

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