Kweifio-Okai v Royal Melbourne Intitute of Technology [1999] FCA 534

FEDERAL COURT OF AUSTRALIA

Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 534

GEORGE KWEIFIO-OKAI v ROYAL MELBOURNE INSTITUTE OF

TECHNOLOGY

VI 2661 OF 1996

RYAN J 30 APRIL 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 2661 OF 1996

BETWEEN: GEORGE KWEIFIO-OKAI

Applicant

AND: ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY

Respondent

JUDGE: RYAN J

DATE OF ORDER: 30 APRIL 1999

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the applicant's motion for review be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 2661 OF 1996

BETWEEN: GEORGE KWEIFIO-OKAI

Applicant

AND: ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY

Respondent

JUDGE: RYAN J

DATE: 30 APRIL 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application pursuant to s 170EA of the Industrial Relations Act 1988 ("the Act"). The applicant was first employed in 1986 as a casual tutor by the Phillip Institute of Technology ("the Institute"), the predecessor of the respondent ("RMIT"). On 12 January 1987 he was appointed by the Institute to the position of Senior Tutor (Anatomy and Physiology) in the Department of Anatomy and Physiology ("the Department") within what was then the School of Physical Education and Leisure Studies. That appointment was for a fixed term to expire on 31 December 1989. On 27 February 1989 the applicant was appointed by the Institute to the position of Lecturer in the Department in what had, by then, become the School of Human Movement and Physical Education. 2 The applicant received a letter dated 10 July 1996 from Christine Fitzherbert, Director of the Human Resources Management Group ("HRMG") of RMIT which had expanded to absorb the Institute. That letter contained the following passages: "Further to today's telephone conversation, this will confirm my advice that the Vice-Chancellor has approved the following recommendation in relation to your return to work. 'In view of the breakdown in working relationships between most of the staff at the Bundoora campus and Dr Kweifio-Okai, as a result of his behaviour, it would be reasonable to direct Dr Kweifio-Okai to return to work at the City campus and he should be directed to do so in consultation with the Dean of the Faculty of Biomedical and Health Sciences.' As a consequence, would you please contact the Dean of the Faculty of Biomedical and Health Sciences, Professor David Story, and arrange to meet and discuss a return to work process to locate you at the City campus." 3 The applicant did not comply with that request and as a result of a subsequent disciplinary investigation ("the second investigation") instituted by RMIT, the applicant's employment with RMIT was terminated on 14 October 1996. It was submitted by Mr Justin Bourke of Counsel for RMIT that the applicant had engaged in a course of offensive, intimidating and threatening behaviour at the Bundoora campus of RMIT. As a result, it was submitted, RMIT had decided, because of the breakdown in working relationships at the Bundoora campus resulting from the applicant's conduct, to direct the applicant to work at its city campus. 4 The applicant contended that the direction transferring him to the city campus of RMIT was not a reasonable one and had been improperly given as a form of punishment. As I understood him, the applicant submitted, first, that it was not open to RMIT to discipline him for conduct which had been the subject of a previous disciplinary investigation ("the first investigation") pursuant to the relevant provisions of the Universities and Post Academic Conditions Award 1995 ("the Award") and for which the applicant had already been censured in accordance with the provisons of the Award. 5 The applicant submitted secondly that it was not open to RMIT to discipline him in circumstances where RMIT had failed to properly investigate his grievances which had provoked the conduct to which RMIT had taken exception. 6 In or about 1990 the applicant made allegations that Mr Phil Smith who, at that time, had been a technical officer within the Department, had imposed inappropriate restrictions on the applicant or had otherwise harassed him in relation to the use of a photocopier. A letter sent by the applicant to Mr Smith was in these terms: "Dear Phillip, I wish to comment on your attitude towards me re the use of the photocopier. By this letter I wish to solve the problem very quietly. Failing this effort I will make an official complaint to Dr Reichenbach. Yesterday you smartly commented that I had taken over from Margaret as the most regular user of the photocopier – that I was wearing down the machine. Today you commented that at the rate at which I was photocopying, it might be necessary to have my name inscribed on the photocopier. I do not appreciate those smart comments they have been consistent with your general attitude to me. A week ago I was hand feeding paper into the photocopier when it stuck on the rollers. The following day you asked me to make sure I use proper transparency for photocopying and a notice to that effect also appeared on the wall above the photocopier. The implication was that I had caused the damage to the rollers by feeding the copier with the inappropriate transparency. I was not directly accused but that was the implication. I must advise that I am not used to being supervised by the technical staff. If in this case your responsibility (responsibilities) required that you interact with me, I hope it will be based on mutual respect. While I don't consider it a duty to explain to you I have been photocopying a lot recently, I will do so nevertheless. There has [sic] been two bottlenecks in the system – a delay in getting my course outline typed, and secondly the overload of work at the PIT Press. As a result I have had to get these copies ready on time for this week. I know of other staff members who have done the same. If I find myself in a similar position in future I will do the same. If you have real concerns about the rate at which the machine is being used the proper procedure is to inform Dr Reichenbach who alone can communicate the concern to the academic staff except when specifically delegated to you. If this letter does not put an end to the irritation from you, I will have to inform Dr Reichenbach together with this." 7 On 21 October 1992, the applicant sent the following memorandum to Professor Peter Reichenbach, the Head of the Department: "RE: SPECIAL PHYSIOLOGY STAFF MEETING 20/10/92 Dear Sir I accuse the department of Anatomy and Physiology of condoning racist behaviour towards me. The central issue of my complaint to you was the rudeness of the Physiology technical staff towards me which I am sure would not happen to any other lecturer in the department. This matter was not brought up and I wasn't going to because I consider the forum inappropriate for resolving this issue. The question of whether or not physiology technical staff are available to help in what everyone persistently called research work is peripheral to my complaint. If the position of the department is that staff should settle questions of rudeness among themselves, the department would be encouraging nasty confrontations. In any case I would be encouraged to seek solution outside the department. This letter is being circulated to all staff who attended the meeting and with great respect, I would prefer not to discuss this matter further." 8 On 27 September 1993 the applicant wrote to Professor Reichenbach a further memorandum containing the following passages: "Since my full-time appointment with the University in February 1987, I have made two unsuccessful attempts to gain promotion faster than the annual stepwise promotions which have led to my present level B2 classification… In the absence of any scheme for realising my goal for faster promotion, I now formally request the department to promote me from my present position to Level C Snr Lectureship to be effective from 1st January 1994." 9 Professor Reichenbach replied on 30 September 1993 commenting: "In conclusion, George, I recognise your natural wish to be promoted and to accelerate your career ambitions, however this can only occur within the RMIT guidelines." 10 Despite these indications of dissatisfaction, it appears that the applicant continued to work effectively within the Department at the Bundoora campus of RMIT, and, on 18 July 1994, he was promoted to the full-time position of Senior Lecturer. The terms and conditions of hiss employment in consequence of that appointment included: "Campus Location: You will be based at the Bundoora Campus but may be required to work at other campuses of the University." 11 On 19 May 1995 the applicant wrote to Associate Professor Anne Lawrie, the chairperson of the Faculty Research and Higher Degrees Committee within the Department of Applied Biology and Biotechnology, concerning applications for post-graduate training by Ms Kylie Peace and Ms Natalie Williamson, two of the applicant's post-graduate students who had applied for admission to a course leading to the degree of Master of Applied Science. 12 That letter concluded with these paragraphs: "As to whether I feel I am being singled out, I draw your attention to the attached letters – the first to the Dean when the present applications were first rejected and the second to the faculty re a previous PhD application. The two letters, two and a half years apart, are remarkably similar in their criticism of the application process. Neither suggested that I was being victimised. In the letter to the Dean I pointed out that other members of the Faculty were equally dissatisfied with the application process. To suggest that I feel victimised is rather cheap. The trauma caused by the application process to my previous PhD student meant that by the time the application was accepted, she was no longer in the frame of mind to pursue the PhD work. I note a similar anxiety in the present applicants. I have therefore decided that rather than prolonging their agony, I will withdraw my supervision if resubmitted applications are rejected again. Rather than sitting back and hoping things will change, I will seek reforms to the FRHDC. I will seek to have the Committee divided into two, a research committee and a higher degrees committee with no member belonging to both. I will seek to have most functions of the research committee transferred to the Departments and to have the application for postgraduate candidature simplified considerably. Since you have played a major role in the present rules governing postgraduate applications - at the Faculty and University levels, you will need to fuck off completely from the Committee to enable the needed reforms." (Original emphasis.) 13 A week later, on 26 May 1995 the applicant sent this memorandum to Ms Jennifer Szwede, the Department Secretary: "This is a short [sic] to advise that from now on I will no longer be using your secretarial services. I have avoided this course of action in the past because of your emotional state. In the past years you have colluded with the two Rudis in major intellectual conflicts in the Department. Rudi Vilani is still psychologically and emotionally traumatised over my appointment as a Snr Lecturer in the department and your continued collusion may involve you in major divisions in the Department. This course of action is therefore in part to protect you." 14 One copy of that memorandum bore the following handwritten notation addressed to Professor Reichenbach, the Head of the Department: "Attached for your information. I will be advising today about my future in the dept shortly and therefore I don't consider a discussion over this issue necessary" 15 On 5 June 1995, the applicant circulated a memorandum to "Departmental Staff (Anatomy and Physiology)" which recited: "I had the following exchange with a staff member. Referring to an overseas fax I was about to send I said 'I see 0015 gets you out of the country' to which came the retort 'and that's where you should go'. I laughed it off but I can assure staff from my vast experience with such issues that a staff member could land in serious trouble for that retort. I am more concerned about other developments in the Department which if not checked can bring discredit to an otherwise friendly Department and University. The first relates to the relationship between Peter Rich and Seba. The antagonism harboured by Peter Rich towards Seba borders on racism. Perhaps the best way to see this is to ask whether if Seba, the most senior Anatomist, were white and male she would have suffered the same antagonism. My concern is that the antagonism is underpinning all discussions relating to anatomy. The second relates to my recent relationship with Rudi Villani. Late last year Rudi had said that the reason I was promoted was because of my colour. I laughed it off and explained to a staff member that I would have been promoted in 1991 if the panel had not thought it would have upset Rudi. Since the debate on self-directed learning started, Rudi has made similar racist comments. My doubts on the self-directed learning are based on Rudi's teaching record in the Department. Rudi has been studying for 5 out of the past 8 years, for his PhD and lately for a diploma. He had succeeded in getting reduced hours of teaching, have [sic] avoided teaching the hard subjects and steadfastly refused to do extra teaching or stand in for lecturers in emergency situations. As a result I have had to pick up the tabs. Note the request for 6 months leave to develop the McLab. With his record in mind and the fact that southern school students bitterly complained about a similar teaching approach (which made him leave 2 years ago) I have every reason to be alarmed. Rudi Villani is very crossed with Seba for suggesting that if he is not careful Rudi Klein might be promoted ahead of him. An alliance between Rudi and Peter Rich against Seba and myself threatens to divide the Department along racial lines and may have encouraged the exchange narrated in the first paragraph above. Cleverly both Rudi and Peter are succeeding in creating the impression that there is nothing else to their debates. I don't know how Seba will cope. In my case, I devised a 3 stage strategy. After executing stage 1, the HOD and Dean of the Faculty have restrained me. I will remain restrained so long as there are no further developments. I remain your most truly charming friend. George K/O" (Original emphasis) 16 Professor Reichenbach then wrote to the applicant on 7 June 1995 in these terms: "It is most important that I have an opportunity to discuss with you the latest public letter which you sent to Anatomy and Physiology staff. Within the letter are suggestions of racial discrimination which need to be discussed and investigated as a matter of urgency. Please arrange with Joan to see me at the earliest convenient time." 17 The applicant replied by a handwritten note of the same date which asserted, amongst other things: "1. Suggestions of racial discrimination or vilification cannot be investigated by the University. 2. In paragraph 1 of said letter, I did not identify the person and do not wish to do so. In subsequent paragraphs specific names were mentioned in specific contexts. If it is defamatory to them, they can act on it. Only then will I feel obliged to defend the letter. 3. The letter was appropriate in alerting staff to issues of racial vilification. It is educational as much as anything else." 18 That prompted this note from Professor Reichenbach dated 9 June 1995: "I received your note indicating that you did not believe it was necessary to meet with me on the issue of communication with staff. Because of the public manner in which you have aired some of your personal grievances, I am concerned at the impact this could have on the operation of the department. Furthermore, the severity of the accusations cannot be ignored by me or by the university. It is therefore most important that you make an appointment to meet with me as soon as possible."(Original emphasis) 19 After some months, the applicant then wrote as follows on 28 November 1995 to Mr Smith, who, by that time, had become the Laboratory Manager of the Department: "RE: ACCESS TO ANATOMY AND PHYSIOLOGY BUILDING AT THE WEEKENDS Dear Phil I think you misread my note to you re the above topic. I was not requesting a key to enter the building at weekends, I was demanding that I be given a key for my exclusive use to enter and leave the building as I choose. Your major concern is security. That is your problem! My problem is to discharge my duties as a Senior Lecturer in the department without any hindrance. The reason I am making this distinction, to underscore my point, is that RMIT seems unable to tailor security arrangements with the core functions of the university. Please provide me with a key by Friday otherwise I will invite the Vice Chancellor to settle the issue." (Original emphasis) 20 Mr Smith replied on the same day in these terms: "Subject: Access to Anatomy & Physiology Department out of hours. George, In reference to your letter to me on Tuesday the 28th of November, I am afraid you misunderstand the situation regarding key access to the University Buildings. I do not have the authority to supply any staff with the E1 key you have demanded. Security issue these keys, and then only in special cases. If you wish to take this up with them, you will have to contact Terry Redding, Ext 2225. You are partially correct in your statement that security is my concern. Actually security of the department is the concern of all staff. The department has been given two E1 Keys to give access to some areas of the department and the podium, which also allow access to the area after hours. Security will not give more, because they do not wish too many E1 keys, which give access to all Campus Buildings, be readily available. This could create a security problem. Limiting the number of E1 keys available, reduces the risk of keys being lost and then potentially misused. If you are given an E1 key all staff may then request that they also should have one. A new security key system is to be introduced which will isolate the access and internal key setup for each department. I believe that I mentioned this in a staff meeting earlier this year. When this occurs, we will have much more freedom to request keys for staff to access the area out of normal hours. I do not know when this is to be implemented. Perhaps you could ask Terry Redding when you speak to him. If access is required to the Anatomy & Physiology area outside of normal working hours by any staff member, at this point in time, then the security people are happy to unlock the doors at any time. The security people must be notified of any use of the Anatomy & Physiology area outside of normal working hours. This is for security and safety reasons in case of an emergency. I do hope that this clears up any misconceptions. If you wish to discuss this any further, I will gladly be available." 21 As well, Mr Smith sent this handwritten note also dated 28 November 1995: "George I would appreciate you speaking to me personally if you have a problem with something I have, or have not, done. Writing letters, I find, leads to misunderstanding of intentions and requirements. I do not believe that I am unapproachable and would be happy to talk to you at any time. On another point, you appear to give me authority over things for which I have no control. Subsequently, I cannot always provide your requests, or even your demands, even when given ultimatums or threats, whichever you deem appropriate. If this is not acceptable to you perhaps we could discuss it together, or with Peter Reichenbach, if you prefer. I apologise for writing this note, but I did try to speak to you this morning but you had gone." 22 Professor Reichenbach then sent the following memorandum to the applicant dated 21 December 1995: "RE: INTERPERSONAL RELATIONSHIPS I am most concerned about a breakdown in relationships between you and some of the support staff in the department. From my observations and knowledge the support staff have been extremely cooperative and helpful in supporting the academic function of the department. I am sure that you have been given nothing but co-operation in meeting your teaching and research requests. It is of great concern therefore to note that you continually have problems in your relationships with these people. There is a limit to the number of times other staff are prepared to overlook your actions and attitude towards them. Following our discussions of last week in which some of these issues were raised I indicated that I would speak to the staff on the matter. You expressed the view that it would not do any good. Since then there have been other actions by you which only serve to inflame the problem and which I find unacceptable. I must say that I am personally disappointed with the situation, because from my point of view in all areas of your academic work including research, leadership and teaching you are making a very positive contribution to the department and the university. It is imperative that you make an appointment to see me at the earliest convenient time in the New Year so that we can attempt to solve these problems. I will be back from the 2nd January." 23 The applicant replied by this letter dated 2 January 1996: "Dear Peter, Re: Interpersonal Relations, yours dated 21/12/95 I respond to your letter of 21/12/95 by assuming that you have asked my advice on the problem. This is my advice. 1. Jennifer Szwede is suicidal. If you raise her hopes and don't fulfil them she might kill herself and you could be blamed. 2. Bernadette Mitchell has an extremely volatile temperament and she is potentially violent. Your intervention might justify any violent action by her. 3. Phil Smith is under two main pressures. Firstly the accusation that he is weak and unable to stand up for the support staff. Then the view of him providing an outlet out of my embargo on the services of Jennifer and Bernadette. Your intervention with an outcome that appeared unsatisfactory in the eyes of the support staff will undermine his authority and aggravate the situation. The difficulty you have is that if you do not intervene the situation will not improve but if you intervene you will certainly aggravate the situation. My 37 diary entries of staff attitudes towards me involve the same issues year in and year out and will recur again this year given the unchanged internal dynamic of the department. Then there are two other factors – the possibility that Phil is near breaking point and my absolute determination to deal with problems in a more forceful way in 1996. The record of resolving interpersonal problems in the department is poor. When Bernadette told me to get out of the country (unidentified in my public letter of mid 1995 to A & P staff) you allowed yourself to be convinced that it was being enquired of me when I visit Ghana next and that I was being over-sensitive. To improve interpersonal relations in the department you will need to investigate the comments by Bernadette made in the presence of Jennifer and Karl Hausler and to initiate disciplinary action against her. You should then make it clear to staff that if they speak to me in a humiliating way they should not expect you to act when I respond in a particular way." 24 Mr Smith then wrote to the applicant on 26 February 1996 on the matter of "Powerbook" computers: "Subject: Powerbook 145 Loan I am responding to your letter dated the 26/2/96. The spare Powerbooks are for all to share. I believe that you received the memo that I sent to all staff in which I presented the rules related to the borrowing of the Powerbooks. Exceptions to these rules will occur when a special situation occurs. Such a situation resulted in the extended loan of one of the spare Powerbooks to you over the break. After discussion with Peter Reichenbach, I believe that you will be on leave three days this week. In response to your urgent need, you may keep the Powerbook until Monday 4th of March. As this is the beginning of semester, all staff will be back and the demand for the Powerbooks will increase. All staff have access to a Macintosh computer in their office. Some have opted for a laptop computer, others have a desktop. The spare Powerbooks are to meet the occasional need for staff to work at home or elsewhere. But, as was stated in the memo I sent, this is short term borrowing only so as to be fair to all. I hope this is helpful to you." 25 That prompted this reply dated 27 February 1996: "I have just finished reading your rather interesting response to my previous letter. The reason for the previous letter was to stop you from coming back to me with your moral righteousness as in 'the spare Powerbooks are for all to share'. I anticipated well. Now who the fucking poofter are you to demand that 'I may keep the Powerbook until Monday 4th of March'. I will reiterate the point of the previous letter – I will not be returning the Powerbook in the nearest future. Even a dickhead like you should get it this time! George."(Original emphasis) 26 Appended to that memorandum was the following: "If you verbally approach me on this topic I could be violent. That was my resolution for 1996." 27 Jennifer Szwede wrote as follows to the applicant on 4 March 1996: "Dear George I am writing to you in response to the note you placed in my letter box regarding the Research Seminar in mid December '95. This note understandably caused me considerable stress. In it you ask why I hadn't displayed this notice on the Department notice boards. The answer is very simple – I was not aware of the existence of such a notice and on making enquiries discovered they had been mailed to our research representative. You too could have taken this simple step instead of wrongly accusing me. Even more simply, you could have come and asked me if I had received them. The manner in which you addressed me in this note and the language you used was extremely inappropriate and unprofessional and has resulted in my total loss of respect for you. I have made every effort in the past to discuss things with you but to no avail. I have also been prepared to forgive you for your ill treatment in the hope that it was a misunderstanding and wouldn't happen again. However, your notes are becoming more hostile and personal and I refuse to be treated in this way. I find it very hard to understand how anyone can be so damning without reason and then be so stubborn as to blatantly refuse any discussion or offer any explanation. How can you possibly expect the situation to be resolved? Surely you are finding it stressful to work under these conditions as I know I am. P.S. Peter Reichenbach is aware of your last note to me and is hoping the matter will sort itself out. His non-action in no way condones your behaviour. cc Peter Reichenbach" 28 The notice to which Mrs Szwede referred was related to a Faculty of Biomedical and Health Sciences 1995 Research Forum to be held on Friday 15 December. Attached to the notice and left on a desk was this handwritten note, which the applicant did not dispute having written: "Why the fuck is the attached not on every notice board in the department, Madam Secretary?" 29 That note had been signed by the applicant. 30 On 6 March 1996 Professor Reichenbach sent a memorandum to Professor David Story which was in the following terms: "As discussed with you briefly last week I am most concerned about the staff interpersonal relations as it involves George Okai. I have copied a number of documents relating to the problem which seems to be escalating since you spoke to George last year. George has now had verbal and written 'words' with three of the support staff none of whom are really in a position to do too much about the problem. I have spoken to each of them and whilst they all originally liked George his attitude towards them has certainly soured the relationship. You will note from George's point of view he sees many of the problems as being racial. Yet when I asked him to make an official complaint he did not wish to follow it up through the University processes. There is no doubt that my intervention in the problem has not been successful and therefore it is probably necessary for someone with specific professional skills to become involved. The people with whom George has clashed are for the most part wanting the problem solved without any formal action being taken. They do not want George to be subjected to disciplinary action. However there does not appear to be a solution by encouraging interpersonal discussion of the issues. Given that George has twice made reference to violence in his interpersonal dealings in 1996 I believe that the matter should be handled with care by appropriate authorities within the University. I am prepared to do my part as directed. No doubt my memo of 6th March will create some reaction from George." 31 On the same day Professor Reichenbach made this written request of the applicant: "George, We were unable to meet as planned in early January re your interaction with staff. Since that time we have both been either busy or on leave such that I have let the issue lie dormant. However, as a result of further problems occurring it is essential that we meet this Thursday afternoon. Please meet me in my office at 3.30pm on Thursday." 32 That request elicited this response from the applicant dated 7 March 1996: "Dear Peter I respond to yours dated 6/3/96 by saying simply that the situation between me and certain staff has reached a stage where I am ready to use legitimate violence, physical and verbal, to have peace of mind in the department. For that reason I have been bringing my kitchen knife to work hoping to regress into a 'primitive African state' to defend myself. Therefore things being under control your proposed meeting on Thursday 7/3 may not be necessary. I am in the process of completing the typing of two grant applications (both due on 23/3/96). It will be nice if I finish them on Tues 12th March, to get comments from fellow workers. Therefore unless you think the meeting is necessary, I prefer we postpone or cancel it." 33 On 14 March 1996, the applicant had a meeting with the Dean, Professor Story, his Head of Department, Professor Reichenbach and Mr Peter Raymond, an employee relations consultant from HRMG based at the Bundoora campus. These notes of what occurred were made by Mr Raymond: "Dean outlined meeting rationale: - George's feelings of racial vilification - Threatening/abusive notes from George - Notes are unacceptable to RMIT - Work performance is not being questioned – only behaviour - Will be guided by Award and Industrial Legislation K/O- Says he has been instructed by lawyer not to attend this meeting – has attended out of respect to Dean and Professor Reichenbach. Context is that he feels under threat of violence – has reported this to police in December – that his threat of 'legitimate violence' is reasonable. States that he believes that RMIT will not defend him against racism. R- Cannot accept any assertion that RMIT accepts racism or condones racism. He must put out evidence of this for us to investigate. K/O- Whenever Australian get into an argument it gets racist (challenged this assertion) Letters he sends are meant to be offensive. This is preferable to physical violence, in his view. His method of letting off steam. Indicated that some incidents that could be construed as racial vilification have led to this. Brief discussion of one of these – the second one. Pointed out to him that he must bring incidents of this type to our notice so we can investigate. George agreed to do this from now on. CORRESPONDENCE Copies given of letters to George for his consideration. 19/5/95- Last sentence in particular Professor Anne Lawrie George confirms that he wrote this. Wrote last sentence with deliberately offensive language as a reflection of his feelings about his treatment. Emphasised by Dean & HOD that this is not acceptable and should not be repeated. Handwritten note 14/12/95 Confirmed that this was written by him. This Jennifer Szwede was his way of responding to the perceived rudeness earlier that week from Ms Szwede. Told by Dean and HOD that he should talk to HOD if he experienced rudeness – should not use offensive letters or communications to staff. Memo 2/1/96 Confirmed that letter was by him. Says that Bernadette Prof Reichenbach told him Jennifer is suicidal. Says it is obvious in Bernadette's approach to him that she is potentially violent. It is his personal observation of her. 'My absolute determination to deal with problems in a more forceful way in 1996' – Clarification sought of this sentence. George says he was asked by Prof Reichenbach to stop writing correspondence to other staff – particularly the abusive type letters. His response was to say that if he was not to write in an abusive manner to staff then he would respond to staff in a more verbally forceful manner. Memo 27/2/96 Confirmed that this was written by George. The language Phil Smith used – foul, offensive words – was deliberately constructed. Pointed out by Dean that he could have written an equally forceful memo without this language. Threat 'I could be violent' discussed. George meant that this could cause verbal violence only. Emphasised that verbal violence is unacceptable to RMIT. Memo 7/3/96 Confirmed that George wrote this (illegible) Peter Reichenbach 'Ready to use legitimate violence, physical and verbal, to have peace of mind.' Meant that he would use defensive methods if he was attacked. Has formed the view that a staff member, not prepared to name anyone, could (Phil or Bernadette he said) become violent. An incident could get out of hand and he feels that this could involve some one else provoking him to defend himself. Also states that this was not very seriously meant. Emphasised by Dean that this was not appropriate and this was very poor if it was an attempt at levity. Letter is public knowledge and staff are concerned. Not able to be sure how this got out – George believes Bernadette sent it out. Is not bringing kitchen knife or any other weapon to work – has not done so and doesn't intend to do so. George felt that his computer was tampered with and has had Commonwealth police come to deal with this. No resolution as yet. Did not bring it to attention of HOD and they were unaware of it. Did tell security he had done this. Terry at the gate. Asked to let HOD know in future. George asked how he intended to conduct himself in future. How will he respond in future? George intends to restrict his written communications to appropriate language to RMIT and will not use abusive, threatening, rude or insulting language in future. He does not carry, will not carry and has not carried any weapons and doesn't intend to use weapons on staff members. In relation to his grievances – George will consider the appropriate channels and may chose to go outside the University. Is considering testing RMIT's methods. Concluded at 7.04 pm 14/3/96 Discussion Story/ Reichenbach/PR 7.05 pm 14/3/96 Outlined range of responses – warning or (ultimately) report to V/C & recommend termination. Also that there are NTEU concerns/staff concerns/HRMG concerns. Decision is with Dean and HOD under advice from me. Proposed process: - George to stay off campus in the next few working days – till Thursday next week (return) - In meantime – staff will be spoken to by Dean and HOD (& myself) in small groups or individually and assured that the matter had been dealt with. They may raise concerns and these will be dealt with. Conciliatory approach. - Need for conciliatory approach to be stressed. - George to be warned by Dean in writing. Recommenced 14/3/96 7.22pm Dean emphasised that the University views his grievances seriously but cannot accept his actions and the correspondence that he has been responsible for. His academic standing is high but this is not a mitigating factor. He must desist from these actions and any further repeat would result in action under the award. Will be warned in writing about this. He has been asked to not attend campus till Thursday next week – if he has need for any thing on campus he should call Professor Reichenbach. This is not a punishment – it is a cooling off period to allow time to deal with issues. Concluded 7.35pm." (Original emphasis) 34 Mr Raymond had a meeting with Mr Matthew McGowan of the National Tertiary Education Union ("the Union") concerning the applicant and sent a copy of a handwritten note of that meeting to Professor Story. That note, dated 19 March 1996, contained these passages: "Had a meeting with Matthew McGowen yesterday. Says that they would not accept George Kweifio-Okai back either at Bundoora or in the City. Would also not fight a dismissal or any other action we were to take in relation to George. Advised by me that a report from Prof Story to the A/g V/C (Ruth Dunkin) should outline the allegations (ie memos) the response of George in our interview. It should also recommend a course of action as per the award and include draft correspondence from the V/C to George. The recommended penalty, if any, should be as per award. Copy of my notes of meeting and items of correspondence from George K/O taken from my file for Prof Story to use in his report. Probably need to recommend censure/counselling. Dean's view that any more forceful action may compound problems." 35 At about this time the applicant had also submitted a letter to the student newspaper "Catalyst", which was not circulated at the Bundoora campus, in which he recounted his version of the matters set out above. 36 In a letter dated 20 March 1996, the Acting Vice-Chancellor, Dr Peter Frost, wrote to the applicant in the following terms: "Dear Dr Kweifio-Okai I am writing to you in relation to your behaviour at RMIT over a period of time. On the basis of material presented, I have formed the opinion that you are guilty of misconduct, given that you have threatened some staff members and used abusive and insulting language to other members of staff. This is evidenced in the following: 1. Your memorandum dated 19 May 1995 to Associate Professor Anne Lawrie – in particular the last paragraph. 2. Your note of around 4 December 1995 to Ms Jennifer Szwede. 3. Your memorandum of 27 February 1996 to Mr Phil Smith – in particular the insulting and abrasive tone of the final paragraph and the handwritten threat of violence. 4. Your memorandum of 7 March 1996 to Associate Professor Peter Reichenbach – in particular the first paragraph threatening physical and verbal violence and your assertion that you would arm yourself with a kitchen knife. Accordingly, effective immediately, I am suspending you from your duties under clause 12(c) of the Universities and Post Compulsory Academic Conditions Award 1995. During your suspension you are not to attend any campus of RMIT without prior arrangement through your Head of Department. I enclose a copy of the award plus copies of the above correspondence for your information." 37 On 20 March Professor Story telephoned the applicant and made this contemporaneous file note of the conversation: "Re: Telephone conversation with Dr George Kweifio-Okai at approximately 1.00pm on 20 March 1996. I telephoned Dr Kweifio-Okai at the above time to indicate that I was directing him that he was not return to the University campus at Bundoora before next week, that is until Monday, 1 April 1996, unless he received specific instructions from me to do so. Dr Kweifio-Okai indicated that he would only abide by such a requirement if it was issued in the form of a 'legal restraint'. I indicated that I would need to obtain advice on this but that I did not believe that the University would consider it appropriate to seek a form of legal injunction at this stage. I further indicated that my directive was official and that he should abide by it. He reiterated that he was not prepared to do so and that, without a legal restraint, he would be returning to the campus. I have agreed to telephone him after obtaining advice on the matter." 38 On the same day Professor Story and Mr Raymond had a meeting with Mr McGowan of the Union. Mr Raymond made the following contemporaneous notes of that meeting: "Matthew says staff are concerned are concerned at being seen as forcing him (George Okai) to resign. Not keen to be 'villains'. Staff do not wish to work with George again. Feel 'abandoned' and nobody has communicated with them or takes their concerns seriously. Feels we should say something about George's absence at the regular staff meeting. D. Story will get this attended to by P. Reichenbach. D. Story also confirmed that he would write a report to the V/C and leave decision to V/C. George would remain off-campus for another week. David will contact him and advise him of this. Discussed Award processes with Matthew. Not able to prejudge outcomes from Misconduct Investigation Committee. This will obviously need to be handled in a way that we can (RMIT and NTEU) live with in future – boot may be on other foot for NTEU! Matthew not sure of how staff will accept the final outcome but is concerned that we rebuild basis of trust for the staff. Dean accepts need to address this – will be done in due course. George will not accept direction not to return to campus. Has told the Dean that 'a legal restraint' will be the only thing he will accept. David Story told him it was a lawful direction from David, as his supervisor, and George refused to accept this. He will only remain off-campus if he is subject to a legal restraint. David will forward a note about the incident to me. P.R. 2.05pm 20/3 AHEIA advice – try 12(b) and (c) of award this afternoon and issue suspension with pay. Get V/C (A/g) to write to George – outline charges and invite response from him. Suspend (on full pay) and outline charges. Don't need to say what penalty is proposed. This can follow either response by George or outcome of Misconduct Investigating Committee."(Original emphasis) 39 By a letter dated 27 March 1996, the RMIT'S Acting Vice-Chancellor, Ruth Dunkin, notified the applicant that: "I am writing to advise you that, as a consequence of your suspension, you now have ten working days from the date of receipt of this letter to submit a written response to the matters contained in the letter of March 20th 1996, which was delivered to your residence by courier on that evening. You will remain suspended from duty until such times as the University completes its inquiries as outlined in clause 12 of the Universities and Post Compulsory Academic Conditions Award 1995. During your suspension you will continue to be paid. You have been provided with a copy of the award. If there is any other material you need to assist you with your response, please direct your inquiry to your Head of Department, Associate Professor Peter Reichenbach. I reiterate that you are charged with misconduct in that you have threatened some staff members and used abusive and insulting language to other members of staff. This is evidenced in the following: 1. Your memorandum dated 19 May 1995 to Associate Professor Anne Lawrie – in particular the last paragraph. 2. Your note of around 4 December 1995 to Ms Jennifer Szwede. 3. Your memorandum of 27 February 1996 to Mr Phil Smith – in particular the insulting and abrasive tone of the final paragraph and the handwritten threat of violence. 4. Your memorandum of 7 March 1996 to Associate Professor Peter Reichenbach – in particular the first paragraph threatening physical and verbal violence and your assertion that you would arm yourself with a kitchen knife. Copies of these documents have been provided with our letter of 20 March 1996. If you deny the above allegations in part or in full, or you do not respond to these allegations, within ten working days, a Misconduct Investigation Committee will consider the matter. The Committee will be constituted according to clause 13(c) of the Universities and Post Compulsory Academic Conditions Award 1995. The Committee will provide an opportunity for you to be interviewed and will ensure that you have an adequate opportunity to answer the allegations of misconduct. The Committee may take into account such further evidence as it believes appropriate to substantiate or otherwise the facts in dispute. It will also interview any other person or persons who may be able to establish the merits or otherwise of the case and all interviews will be conducted in your presence and in the presence of an advocate (who may not be a currently practising solicitor or barrister) whom you may choose to represent you. The Committee's terms of reference will be to report on the facts relating to the alleged misconduct, including whether any mitigating circumstances are evident. The Committee will operate in camera and will keep a tape recording of its proceedings, a copy of which will be available to you upon request. The Committee will provide a report to me and to you, as soon as is practicable following the conclusion of its proceedings. On receipt of the Committee's report, I will consider if disciplinary action is warranted and what form such action should take. Any such disciplinary action will be in accordance with clause 5(c) of the Universities and Post Compulsory Academic Conditions Award 1995." 40 The applicant sent a facsimile message dated 1 April 1996 to the Acting Vice-Chancellor which contained these passages: "Re: Yours dated 27/3/96 and that of Dr Peter Frost dated 20/3/96 Date: 1st April 1996 At the level of my employment, a finding of gross misconduct if confirmed, is a statement of incompetence in my capacity to hold my current position. That being my view I intend to resign if I do not succeed in overturning your decision. The finding of gross misconduct concerns the interpretation of 2 letters as threats to use violence and 2 others for using abusive language. The matters were dealt with at the faculty level and I was given the impression that they were deciding the issue. Had my advice that the university dealt with the issue in the first instance been heeded, I would have been saved the time of repeating the explanations given to and accepted by the faculty. The responses give a detailed background to the letters in order to situate them in their appropriate contexts. Having previously appeared and explained my position to the faculty group, this letter should be considered comprehensive enough not to require my appearance before any committee again. Now the letters (1) 19/5/95 letter to Assoc Prof Ann Lawrie – in particular the last paragraph. In order to understand the basis of the alleged offensive paragraph, this letter must be read together with those of the Dean (20/3/95) and to the FRHDC secretary (30/10/92). Both were attached to the letter. A former PhD student of mine had been humiliated by the unwieldy application process. She was to suffer further humiliation at the hands of a technical officer. Both contributed to her eventual withdrawal from the PhD candidature. I had wasted a year of my time in her. On striking similar difficulties in enrolling 2 masters students in 1995, it was my duty as a senior academic to point out ways by which the application process could be improved, hence my letter of the 20/3/95 to the Dean. Those constructive criticisms negated the accusation by Ann Lawrie to HOD that I felt discriminated against. While I don't expect you to understand how offensive that might be, I suspect you'll understand the hurt caused the overseas student who had to withdraw from the candidature. (2) Note dated 4/12/95 to Jennifer Szwede In the week preceding the above letter, I was with a masters student performing some experiments. Jennifer entered and said 'You told Mr X you'll be in your room, and here you are, he's been trying to ring etc.' and left. Now I had just returned from my room for the time I said I was going to be there. I know Jennifer has said she was not rude. She was not only very rude but she did that in front of a student, a habit that characterises several diary entries of her (and other staff) attitude to me. My letter was a way of telling her that if she was going to question my professionalism then I was going to have to question hers. I am surprised that you did not make mention of her written reply to me. (3) Letter dated 27/2/96 to Phil Smith This letter could only be understood in the context of my interactions with Phil in 1995 regarding the powerbook, a portable computer available for use by staff at home (except December total usage about 6 times for a few days to a week). The letter was measured to the total provocation Since I started doing my own typing last year, the pattern of obstacles Phil had put in my way tended to indicate a deliberate attempt to get me back to using the typing services of Jennifer. Note the following: -Pressure on me to return the powerbook when those said to be in need of it tell me otherwise. -Smart comments whenever I borrow or return the powerbook, on one occasion that other staff have complained of smoke in the powerbook I had used at home (surprising because I had made it a point not to smoke while using it) and the parting comment 'and you should know that the university has no smoking policy'. -Rebuke of a masters student for lending a powerbook for my overnight use. -A powerbook in working order just prior to handing over to Phil had suddenly broken down. Phil sent out a circular to all staff announcing the damage, advising new policies on borrowing the powerbook and advising users not to leave the powerbook in their cars. I was the only user in the previous month. -By mid October 1995 I had developed a major neck and shoulder injury. I mentioned this to Phil. He chuckled in excitement. In order to avoid further injury to myself I decided to get keys from Phil to come in on weekends to type. He advised the need to limit keys given to staff because of security concerns. -In December 1995, I borrowed the powerbook to prepare 2 lecture/tutorial manuals for 1996. When finished, Phil was on holidays. By the time he returned I had started using it to prepare research grant applications. He came to my office and advised that if any other user needed it urgently he would get back to me. Now if you know Phil you'll know that he will return all worked up and armed with moral verbiage as to why the wrath of God may descend upon you if you don't do the right thing. To forestall any moral advice he may have for me I sent him a note telling him my usage of the powerbook might inconvenience other users and that he should contact the Head of Department before coming back to me. That letter did not stop Phil writing back with moral indignation, restating the rules concerning use of powerbooks and setting a date for its return. Even though he had agreed on that date with HOD, it was necessary for him to authorise the date himself without reference to that agreement. The University should note that without the 2 letters, Phil would have approached me in a verbally aggressive manner and given my resolution to answer back, the likely confrontation may well be a police matter, rather than the University as it is now. Phil exercises authority in the department greater than any lab manager in any department of a university I know. I have always wondered about the policy status of circulars he sends to staff. Any criticism of policies he sets invites emotional and spirited defence from him at staff meetings which he attends as a matter of 'right' (in other departments technical staff attend meetings by invitation only). He forever has the need to exercise his authority, be it in relation to my research students, scientific sales people or cost centres, and he manages a moral justification. Hence in relation to an expensive payment to be met from my outside earnings anyway, Phil says 'Now this is expensive, but if Peter has agreed I presume it is OK'. 'You don't have to rush and buy them' mistaking a purchase for my research for that of my research students. Most irritating is influence on scientific salespeople. One had said 'You better consult Phil' in response to my 'We'll need to buy this'. Another had said 'You'll send the department broke' in response to my 'I am thinking of buying this item'. Now some academic staff have congratulated me for this letter presumably because they see the need to put Phil in his place but they share the responsibility for his unchecked power which in many ways adversely impact on academic decisions. In my opinion questioning my sincerity based on racial stereotypes such as financial irresponsibility or some latent corruption is racist. (4) Letter dated 7/3/96 to Associate Professor Reichenbach To understand the context of this letter is to understand the history of problems I have had in the department. That I had not answered verbally to any provocation is a tribute to my remarkable tolerance and good nature. 5 years ago, a female lab assistant had told me off in a laboratory class. I reported it to Peter who spoke to her. The matter will have ended there save a development which was to characterise all such incidents in the department. Phil took up the issue, saying to all except me that I had been rude and over-reacted and that I needed to be censured. He succeeded in having a meeting pass a motion to the effect that the primary duty of lab staff was towards student classes, not to research. I protested at the failure of staff to appreciate the gravity of my treatment in front of a whole laboratory class. Peter arranged a meeting of myself and the lab assistant. When I revealed what she had said after I had left the lab (as informed by the tutor in charge of the lab class as well as the students who were prepared to make a formal complaint on my behalf) she admitted her rudeness, said she had postnatal depression and apologised. The admission may not have been communicated to staff because of the personal privacy aspect of the admission and therefore the view persisted, courtesy of Phil, that I had treated a technical staff badly. It is important to precisely locate the point at which the above incident escalated because of the implications in subsequent events. The matter escalated when Peter's intervention was not accepted and Phil intervened. I concluded then that the department and indeed the university was incapable of dealing with such conflicts and mine was a moral duty to take insults on the chin. By mid-1994 developments were beginning to tax my patience. An academic staff member was so aggrieved by my gaining promotion ahead of him that Peter had to warn senior staff to be careful how to handle him. By the end of 1994 reports were reaching me from students that in justifying his so-called self directed learning approach, the academic staff member had reflected badly on my teaching. More significantly he had sought the sympathy and support of Bernadette and Jennifer. This was most cruel because both had traumas in their lives, Bernadette because of a tragic marriage separation and Jennifer because of a tragic death of her husband. Both were coming to terms with their problems, I was responsible for Jennifer being made a permanent employee for the precise reason of the typing she did for me, Bernadette needed escape from the anatomy lab work because of her back problems, she had helped me in animal experiments over the weekends for which she was paid from my outside earnings and gained promotion (for this staff development). Their largely positive contribution to the department turned viciously destructive when the aggrieved lecturer sought their sympathy such that by early 1995 Bernadette was telling me to leave the country and Jennifer forcing contentious academic issues at staff meetings. I had to lessen my dependence on them to stem the tide. By late last year I was sufficiently concerned by developments in the department that I began informing senior people within the university. I also sought to convince the HOD and Dean to seriously consider promotion on the basis of teaching only so as to satisfy the aggrieved staff member at the root of the problems. Finally I sought help from the Commonwealth and State Police. I also reckoned that the reason some staff treated me like a kid was because I refused to speak back. It was necessary that they know I will now answer back. Now if you accept my real fears of physical violence coming from either Phil or Bernadette in response [to] my decision to answer back, then you'll understand why I had an obligation, even a duty, to warn that I could use legitimate violence if only to forestall anticipated actions on their part. The reference in the letter of 7/3/96 to Peter regarding arming myself and hoping to regress into a primitive African state etc refers to a previous conversation I have had with him. Somewhat irritated at his impotence at dealing with problems in the department and his irritation when I take matters into my hands, I had said 'it is not as though I have been bringing a kitchen knife to work hoping to regress into a primitive African state and get stuck into somebody'. Given my history of non violence, both physical and verbal in the department, and not having eaten anybody in the department, I did not expect him to have fits over the letter. To believe the letter was a threat one needed to assume that using violence was my idea of 'things being under control' such that I did not consider a meeting necessary to avert it, that I was happy to waste my time preparing grant applications for use in 1997 while simultaneously desperately hoping to regress into a state to commit an act that would deny me the opportunity to use them. The letter was a cheeky letter meant for the eyes of Peter only, the university should accept it from me as such even if some staff who illegally intercepted or read it saw otherwise. The Faculty Response A faculty team comprising the Head of Department, Dean and the HRMG representative pointed out to me that the tone and perceived threats in the letters in question were unacceptable to the University, my explanations and assurances not to repeat them were accepted and I have been counselled. It now remains for you to endorse their position and reverse yours. Requests 1. The assurances given to the faculty and its acceptances ensured my cooperation to stay away from the campus for 1 week while any fears of staff were allayed. As a person experienced in these matters I knew it was a tactical error, I would be seen as admitting fault and once off campus it was easier to keep me off campus. As expected, 1 week later I had to stay away another week this time to satisfy the Union. To ensure this a letter of suspension was sent (Dr Frost 20/3/96). Now 2 weeks after I agreed to stay away for 1 week, I received another letter (yours 27/3/96) repeating the letter of suspension of the week before which effectively further extended my period of absence from the campus. My good faith has been abused. I bring to your attention 3 commercial matters, negotiation of licensing arrangements for developed drugs, renewal of drug patent and a commercial collaborative venture, which could be compromised by delays in resolving this issue in reasonable time. 2. A reversal of the finding of gross misconduct and my re-instatement to normal duties should be linked a clamp down on interception of mail and other invasions of privacy as evidenced in the present saga and by the following examples in the past three years -two external grant applications reached their destinations well after the closing dates though posted well before the closing dates. -two research articles, a correction to a research article and a letter to conference organisers did not reach their destinations. -four overseas letters and one letter posted to my work address from home did not reach me. Two others I had posted to my work address had been opened. Please check with the Head of Department, the suburban branch Post Office (Grisham St. Bundoora) and University mail office (Bundoora) for past complaints. -a document on my computer was saved on a date and time while I was on an academic leadership course late last year. -a 1995 circular sent out to all staff by a non-academic staff re frequency of photocopy breakdowns stated that staff photocopy cards have been scanned to identify over-users. I advise the university to seek advice on how to eliminate similar transgressions." (Original emphasis) 41 The applicant also sent this handwritten note dated 29 April 1996 to "Mr Matthew McGowan, NTEU (RMIT City)": "I am sure you approve of the ongoing character assassination of me among staff and students at RMIT. I am also sure that you approve of the threatening phone calls I have been receiving lately. Of course these follow your involvement, which ensure my exclusion from the campus. Your siding with the relevant RMIT staff without seeking my side of the story is, to say the least, unprincipled. I am sure the Commonwealth Universities body will be able to pronounce on your behaviour at some future time. Don't bother responding!" 42 On 10 May 1996 the Director of HRMG, Ms Christine Fitzherbert, sent the following written advice to the Vice-Chancellor: "Purpose 1. To provide you with information about and recommendations endorsed for resolution of the case of Dr George Kweifio-Okai of the Department of Anatomy and Physiology in the Faculty of Biomedical and Health Sciences. Details 2. Dr George Kweifio-Okai has been suspended under clause 12 of the Universities and Post-Compulsory Academic Conditions Award 1995. A report from the Faculty regarding the behaviour which gave rise to his suspension is attached (Attachment 1). Attachment 2 is a report from the Employee Relations Branch. 3. Following his suspension, Dr Kweifio-Okai responded in writing to the allegations against him (Attachment 3). The Director, Human Resources Management Group subsequently provided a report outlining options for dealing with Dr Kweifio-Okai and the allegations (Attachment 4). 4. The report recommended that Dr Kweifio-Okai be formally censured and counselled under the award and that his duties be transferred to the city campus, by agreement. It was also recommended that RMIT conduct a structured investigation into the Department and matters surrounding this issue. The Deputy Vice-Chancellor (Education and Training) has endorsed this recommendation. The Dean, Biomedical and Health Sciences also supports the recommendation, but would however, prefer to retain Dr Kweifio-Okai on the Bundoora Campus, if possible. 5. Clarification was sought on how the investigation could be implemented. A further paper from Employee Relations Branch recommended a combination of an external investigator, Ms Sue Viney, together with a representative of the Employee Relations Branch, as the most appropriate way to conduct a structured investigation. This was also endorsed by both the Deputy Vice-Chancellor (Resources) and the Deputy Vice-Chancellor (Education and Training) (Attachment 5). 6. The investigation will not concern itself with the allegations against and explanation of Dr Kweifio-Okai as this has already been amply investigated. The investigation will focus on: (i) repairing the relationship between the academic and general staff within the Faculty as a result of this matter; (ii) any evidence of racial vilification within the Faculty; (iii) producing recommendations based on its findings. 7. The Administrative Appeals Tribunal has now sought that RMIT make a decision on how it intends to deal with this issue and a hearing on this matter is to be notified. Recommendation 8. Your approval is also sought for the action already endorsed by the Deputy Vice-Chancellor (Resources) and the Deputy Vice-Chancellor (Education and Training) being that: (i) Dr Kweifio-Okai be formally censured for his actions, and counselled by the Deputy Vice-Chancellor (Education and Training) and the Dean of the Faculty of Biomedical and Health Sciences; and (ii) Dr Kweifio-Okai be temporarily transferred to the City Campus while a structured investigation into the other matters surrounding this issue be undertaken. The terms of reference to be drawn up in consultation with the Dean of the Faculty of Biomedical and Health Sciences and consistent with paragraph 6 (i)-(iii)." (Original emphasis) 43 Ruth Dunkin as Deputy Vice-Chancellor (Education and Training) then wrote to the applicant on 27 May 1996 setting out as follows the result of the first investigation: "I am writing to you in connection with your suspension from duties and the subsequent investigation of a charge of misconduct. I apologise that this matter has taken some time to conclude and regret any inconvenience that this may have caused you. Your behaviour has been found by the Vice-Chancellor to be unsatisfactory under clauses 12(e) and 12(f) of the Universities and Post-Compulsory Academic Conditions Award 1995. The finding is based on the allegations put to you in writing on 20 March 1996 and your admissions in your response of 1 April 1996. It has therefore been decided that you should be censured for your behaviour, in accord with clause 5(c)(i) of the award. This was the purpose of our meeting with you today. Any further behaviour of this kind will be viewed very seriously by the University, and may result in further action being taken under the award. During the course of the process referred to, you raised a number of issues. As explained to you in our meeting today, the University will undertake an investigation of these issues. This investigation will: (i) consider means of repairing the relationship between the academic and general staff within the Faculty; (ii) determine whether there is any evidence of racial vilification within the Faculty. The investigation will produce recommendations to the University based on its findings and will be carried out by an external consultant, Ms Sue Viney assisted by Mr Peter Raymond of the Human Resources management Group. You will be able to present any material you feel is relevant to the investigation, as will the other staff involved in the Faculty. The investigation will produce its report and decisions based on the report will be taken by 28 June 1996. You should note that the investigation will not concern itself with the allegations against you as these have already been investigated and these matters are now finalised. My first concern is that the work of the Department return to normal as soon as possible. It is important, therefore, that the investigation be undertaken quickly. To this end I believe it would be in the interests of all parties if you were not to return to work in the Department during the investigation and would like you to consider working at the city campus. You indicated that you might prefer to stay home instead and we accept whatever choice you make. I would appreciate it if you would finalise these details with Professor Story as soon as possible." (Original emphasis) 44 Shortly afterwards the applicant sent the following handwritten note dated 31 May 1996 by facsimile transmission to Mr Raymond: "RE: Deputy Vice Chancellor Dunkin's letter of 27/5/96 1. My advice is that the cited basis of my suspension (20/3/96) having been dealt with (27/5/96) I should be returned to full duties on all campuses of the RMIT. 2. Noting the suggestion that my presence on the Bundoora campus might not aid the present investigations I am prepared to arrange with you a work schedule and presence at the Bundoora campus that will be acceptable to all parties. 3. Many thanks & hope to hear soon." 45 The applicant also sent a letter to Ms Sue Viney, the external consultant appointed by the University to investigate the matters referred to in the Deputy Vice-Chancellor's letter of 27 May 1996. His letter was stated to be: "…in response to your request (5/6/1996) to document claims of racial vilification in the Department of Anatomy and Physiology." 46 There were then set out various matters relied upon by the applicant as evidencing racial vilification within RMIT. The applicant's letter included this passage: "In this submission, I confine myself to incidents of racial vilification as they relate to general staff and in particular Phil Smith and Bernadette Mitchell. Consistent with a previous communication to HOD, I believe Jennifer Szwede to be emotionally vulnerable and will have difficulty going through the process of investigations as you outlined to me." 47 The report produced by Ms Viney was dated 4 July 1996 and entitled "Report Of The Committee Established To Investigate Certain Allegations Of Racial Harassment". Its purpose was recorded as being: "To report the findings of the committee established to investigate allegations of racial harassment within the Department of Anatomy and Physiology and to provide recommendations to the Vice-Chancellor." 48 Under the heading "ANALYSIS" the report continued: "Some of the incidents complained about occurred up to five years ago. The memories of any potential witnesses will no doubt be clouded by the passage of time. This is particularly so given the nature of the allegations made in this case, many of which are open to different interpretations and constructions. After such a delay, the nuances of communication which are critical to the understanding and investigation of Dr Kweifio-Okai's complaints may have been lost. In addition, many incidents appear to have entered the 'public domain' within the Department with consequent translation and reinterpretation. It is therefore difficult for the Committee to come to definite conclusions about the actuality of incidents. At interview, the majority of issues raised by Dr Kweifio-Okai with the Committee concerned the administrative/management arrangements within the Department, that is the definition of boundaries between academic staff and general staff. Dr Kweifio-Okai made these complaints on behalf of all academics who, in his belief, were subjected to inappropriate interference in academic matters by general staff. The outcomes sought by Dr Kweifio-Okai at interview included no review of claims for payment by general staff, no memoranda to be signed by technical staff whatever the subject matter and no technical staff to attend staff meetings. The Committee concluded from this that: (a) there was no basis to Dr Kweifio-Okai's claims of discrimination; and (b) his concerns can be more properly described as being about the general position and role of academics within the Department." 49 The Report then noted that: "The Committee accepts both Ms Mitchell and Ms Szwede's explanations of their conduct." 50 In relation to the allegations made by the applicant against Mr Smith, the Report concluded: "In respect of the racist comments alleged by Dr Kweifio-Okai to have been made in his presence by Mr Smith, the Committee is satisfied with Mr Smith's alternative explanations." (Original emphasis) 51 The Report's conclusions included the following: "In the Committee's view therefore the complaints are not substantiated. At most, some minor comments of a racist nature may have been made in Dr Kweifio-Okai's presence, although not directed at him. Whilst such comments are inappropriate, it could not be said that these comments formed part of a culture of systematic racial harassment. Moreover there is no evidence to substantiate that any problems Dr Kweifio-Okai was experiencing within the Department, in particular with the allocation of tasks among staff, were in any way related to his race or ethnic origin." (Original emphasis) 52 The "Conclusion of the Committee" was in these terms: "After careful consideration of the material presented by Dr Kweifio-Okai and the material presented by the respondents, the Committee has concluded that on the basis of the information available to it, Dr Kweifio-Okai's complaints of racial harassment and discrimination as defined in Sections 9, 15 and 18C of the Racial Discrimination Act 1975, Section 3 of the Human Rights and Equal Opportunity Commission Act 1986 and Section 6 of the Equal Opportunity Act 1995 can not be sustained." 53 In July 1996 Ms Viney prepared a second report entitled "Report On The Department Of Anatomy And Physiology" which included these passages: "The review was commissioned to determine whether issues raised by Dr Kweifio-Okai were systematic of wider problems in interpersonal relations in the Department of Anatomy and Physiology. The terms of reference were to: 1. assess and report on the state of relations between the academic and general staff within the department; 2. determine whether there was any evidence of racial harassment within the department; and 3. provide recommendations based on its findings. The client for the review is the Director, Human Resources Management Group." 54 The report also noted: "Whilst many staff emphasised the valuable close working relations that they had with most of their colleagues, fourteen staff (out of twenty-one) described unresolved conflicts within the department that were personally affecting them and their ability to perform their duties. Only four staff did not raise the matter of conflict with the review team." ... "As Table 1 (below) shows, fifteen of twenty-one staff spontaneously offered the view that Dr Kweifio-Okai should not return to the Bundoora campus. Five staff have been classified as 'neutral'. This is on the basis that they did not offer an opinion and did not appear to be particularly affected by the incidents. Only two staff appeared positive about a return. Two staff (including an academic) have indicated that they have sought legal advice on actions open to them should he return. Their concerns are about their personal physical safety, their psychological health and the damage their reputations have suffered as a result of Dr Kweifio-Okai's allegations, particularly those made in Catalyst." (Original emphasis) 55 Paragraph (13) of the recommendations made by the report was in these terms: "(13) Having regard to the complexities of the matter, a decision is taken as soon as possible about the location and other arrangements for Dr Kweifio-Okai and that this is communicated officially to all staff promptly." (Original emphasis) 56 A memorandum dated 9 July 1996 was sent by Christine Fitzherbert, Director of the HRMG, to the Vice-Chancellor. The subject of the memorandum was stated to be "Dr George Kweifio-Okai – Return to work options" and it recited: "Purpose 1. To provide you with details of the options available in organising a return to ordinary duties for Dr George Kweifio-Okai following his suspension from duty. Background 2. Dr Kweifio-Okai was suspended from duty in March 1996, following the discovery of threatening [and] abusive letters written by him to other staff within the Department of Anatomy and Physiology. 3. His behaviour was found to be unsatisfactory and he was counselled and censured at a meeting with the Dean of the Faculty of Biomedical and Health Sciences and the Deputy Vice-Chancellor (Education and Training) on May 27 1996. 4. Following this meeting, Dr Kweifio-Okai wa advised by letter from the Deputy Vice-Chancellor (Education and Training) that a structured investigation would be held. The investigation would look into his allegations of racial harassment within the Department and also the relationships between academic and general staff within the department. He was further advised that 'it would be in the interests of all parties if you were not to return to work in the Department during the investigation and would like to consider working at the city campus. You indicated that you might prefer to stay at home instead and we accept whatever choice you make.' 5. Dr Kweifio-Okai has not returned to work at the city campus and has remained at home during the investigation period. He has made pre-arranged visits to the Bundoora campus to obtain material from his laboratory and to check his e-mail and faxes. Details 6. The structured investigation into the relationship between academic and general staff within the department has been completed and recommendation 13 of the report is that a decision about the location of Dr Kweifio-Okai be made as soon as possible, and that this decision be communicated to all staff promptly. 7. In the course of the investigation it became clear that it would be impractical to return Dr Kweifio-Okai to the Bundoora campus. The consequences of his behaviour toward staff on the Bundoora campus is that at least 14 of the 21 staff opposed his return to the Bundoora campus. 8. In addition, there appears to be little evidence of contrition about his behaviour during discussions. It is not possible to be confident that he would not repeat the long standing pattern of his behaviour toward staff if he were returned to the Bundoora campus. 9. The National Tertiary Education Union (NTEU) have also expressed opposition, on behalf of their members, to his return to the Bundoora campus. The union advise that they believe the return of Dr Kweifio-Okai may constitute a risk to the health and safety of their members and would put a Provisional Improvement Notice (PIN) under the Occupational Health and Safety Act on the Department. 10. During the inquiry, Dr Kweifio-Okai made a number of requests such as a separation of himself from the technical staff at the Bundoora campus and better facilities for his research. These would be more easily provided at the city campus. Professor Story has indicated that the laboratory facilities available for Dr Kweifio-Okai and the close proximity of his colleague Dr Theo Macrides would possibly lead to an enhanced environment for Dr Kweifio-Okai to pursue his research. 11. The employment contract signed by Dr Kweifio-Okai states that he is 'based on the Bundoora campus but may be required to work at other campuses of the University'. A legal opinion from Scott Lowson, the University Solicitor, is that a direction to Dr Kweifio-Okai to work at the city campus is not unreasonable and is one which the University is authorised to make. Recommendation 12. In view of the breakdown in working relationships between most staff at the Bundoora campus and Dr Kweifio-Okai, as a result of his behaviour, it would be reasonable to direct Dr Kweifio-Okai to return to work at the city campus and he should be directed to do so in consultation with the Dean of the Faculty of Biomedical and Health Sciences." 57 On 11 July 1996 the applicant had a meeting with the Dean, Professor Story. A record of that meeting is preserved in this file note which Professor Story made on the following day: "Date:12/7/96 Re: Meeting with Dr George Kweifio-Okai on 11/7/96 I met with Dr Kweifio-Okai at approximately 10.30 am on Thursday 11 July 1996 to discuss arrangements for his return to work at RMIT. The meeting lasted about one hour. I confirmed the determination of the Vice-Chancellor that Dr Kweifio-Okai was not to return to work on the Bundoora campus of RMIT but was to relocate to the City campus. I detailed the arrangements for his immediate employment on the City campus. I subsequently confirmed these by letter (attached). Although Dr Kweifio-Okai did not state his definite acceptance of these conditions, my impression was that he would agree to the arrangements. Dr Kweifio-Okai acknowledged that some of his past behaviour and actions, presumably in respect of his interaction with members of the Department of Anatomy and Physiology, were inappropriate. He indicated that he considered his transfer to the City campus as a 'punishment' but he appreciated the 'practical' need for the transfer to occur. I agreed that, during the short interim period before he transfers to the City campus, he could continue to use the present arrangements to visit the Bundoora campus, for the purpose of meeting the Head of the Department of Anatomy and Physiology and accessing his office and research records. For each such visit he is to arrange a suitable time with either Mr Peter Raymond (HRMG) or Associate Professor Reichenbach. He is to be escorted whilst on the campus by one of these persons or a member of RMIT security. The visits to the Bundoora campus are to cease when Dr Kweifio-Okai commences his employment on the City campus. Another matter raised by Dr Kweifio-Okai was the future of his collaborative research work, involving cell-culture facilities, on the Bundoora campus with Dr Fred De Munk. I informed Dr Kweifio-Okai that, whilst the collaboration could continue, he would not be allowed to undertake activities in the project on the Bundoora campus. I agreed to investigate ways in which effective collaboration could continue, given the above restriction. The discussion concluded at approximately 11.30 am." 58 After his meeting with Professor Story on 11 July 1996, the applicant received the letter from Ms Fitzherbert dated 10 July 1996 which is reproduced at the commencement of these reasons. 59 Professor Story, in the meantime, had written this letter to the applicant dated 12 July 1996: "This letter is to confirm arrangements made at our meeting yesterday (Thursday, 11 July) for your return to work at RMIT. (i) You will be required to work on the City campus of RMIT. (ii) For the remainder of 1996 you will be attached to the Department of Medical Laboratory Science. During this period, the Acting Head of that Department, Associate Professor Ralph Green, will be your supervisor. Office accommodation and normal academic support services will be made available to you within the Department of Medical Laboratory Science. (Your Departmental affiliation and supervisor beyond 1996 will be determined towards the end of the year). (iii) Appropriate facilities will be made available to you on the City campus to enable you to undertake your research. (iv) You will not be required to teach in undergraduate courses during Semester 2 of 1996. Your teaching responsibilities in 1997 will be arranged by discussion towards the end of this year. (v) I will discuss your ongoing role as a co-supervisor of Ms Lynne Hodges, a PhD student, with the primary supervisor Associate Professor Theo Macrides and the Acting Head of the Department of Medical Laboratory Science. I will advise you of the outcome of those discussions as soon as possible. I am anxious that you return to work at RMIT as soon as possible. To this end, I direct you to commence duties on the City campus by Friday 19 July 1996. If this is not possible, you should contact me immediately and we will finalise a suitable alternative date." 60 The applicant then sent this facsimile message dated 15 July 1996 to Professor Beanland, the Vice-Chancellor of RMIT: "I refer you to the attached letters (Director, HRMG, 10/7/96 and Dean, FBHS, 12/7/96) which sought to extend my suspension from the Bundoora Campus until the end of the year when 'my department of affiliation and supervisor beyond 1996 will be determined'. I have suggested to the Dean that the arrangements to do research on the city campus can be realized without me having to physically re-locate. The Dean has advised that the decision lies with you. Hence this personal request to you that I keep my office and use of it at Bundoora within the arrangements proposed in the Dean's letter. It makes no administrative sense for me to physically relocate to the city campus except if the intention is to pave the way to permanently relocate me there. Events to date convince me that will be the eventual outcome. In the week or two preceding my 18 week suspension which started on 7/3/1996, certain technical staff and the NTEU had decided that I was to be removed from the Bundoora campus. Even with this knowledge, I agreed when the Dean suggested to me to voluntarily take a week off for him to try to sort things out. When the University finally came to make a decision (27/5/96) I complied with the advice that 'it would be in the interest of all parties if you were not to return to work in the department during the investigations' after my suggestion of compromise to Peter Raymond 'I am prepared to arrange with you a work schedule and presence at the Bundoora Campus that will be acceptable to all parties' was rejected. Even though my legal advice was to ignore the advice and return to Bundoora (the basis of my suspension having been disposed of) I complied with the continued suspension from the Bundoora campus. The ensuing investigation by Sue Viney into my allegations of racism was handicapped by the time constraint. Even though I had serious reservations, pointed out to the committee and partly included in the report, I still co-operated. It was unlikely that the committee would be able to provide the detailed and exhaustive investigations into matters of this kind not investigated at the time they happened, some according to my submission 5 years ago, by a University devoid of a policy on the investigation and prevention of racism (as pointed out by the Sue Viney committee and previously admitted by an EEO officer at an RMIT academic leadership conference I attended last year). My cooperation to that point was used by the RMIT to submit me to the agenda of getting me out of the Bundoora Campus. I believe that if I physically relocate to the city campus, come year's end, forces will be brought into play again to ensure a permanent relocation hence my compromise solution here. The RMIT can no longer postpone the decision on my future at university. It must consider either of two alternatives (a) To return me to my administrative base at Bundoora within the arrangements suggested by the Dean, or (b) Enter serious negotiations with my lawyer, (please advise who to contact in the university), regarding an amicable parting of ways. I cannot overemphasise the urgency in resolving this case, to bring an end to the disruption and damage to my academic career, the enormous cost to the university, the embarrassment caused certain sections of the RMIT academic community in relation to their morale, loyalty to RMIT and authority within the university and the damage to the RMIT's reputation. This saga has however resulted in a management review of the department and a recommendation for an RMIT policy on investigation and prevention of racism, vindicating my complaints which led to my abusive letters to certain staff of the university. In my opinion this case is a public matter around the following issues: (a) To what extent should university staff be allowed to dictate who they'll work with? (b) Is the damage caused me and still being caused proportionate to the 'crime' and is RMIT not exposing itself to the same allegations that I have levelled against some staff? (c) What is the proper role of a staff union in cases such as this? And in any case does it include appointing and allowing a major player at the centre of the dispute in the department to act as a union representative during the resolution of the dispute? OR Is it proper for the union to provide a backup to physical threats and threats of boycott by some department staff, perpetuating my exclusion from the Bundoora Campus? (d) Could RMIT have handled the issue differently, ie fairly to all parties and what protection do those of us born overseas have in cases such as this? The University must ponder these questions as it goes about the changes it has already started." (Original emphasis) 61 The applicant also sent a facsimile message dated 17 July 1996 to Associate Professor Ralph Green of the Department of Medical Laboratory Science at RMIT which included these passages: "I have been directed by the Dean to contact you regarding my attachment to your department in the second semester. This letter is to outline the research I intend to do over this period. (a) Proposed Work * Effects of plant derived triterpenes on platelet function/coagulation (with Allan Turner and Theo Macrides). * In Vitro (cell culture) cytotoxicity tests (with Fred De Munk, Dept of Applied Chemistry, Bundoora). * Effects of triterpenes on elastase activity etc (PhD work by Lyn Hodges jointly supervised with Theo Macrides). (b) Requirements All research activity will be done in the laboratories of Theo, Allan or Fred. Therefore I have no need for any facilities on the city campus. It would be necessary, however, to transfer my research funds from A & P to MLS for the purposes of the research and (c) below. (c) Travel Fred De Munk and I have been invited to partake in an overseas workshop on herbal drug development during January 1996. I therefore intend to take leave from mid-December to January 1996. Finally none of the above requests should compromise my continued use of my Bundoora office." 62 The Dean, Professor Story, wrote as follows to the applicant on 24 July 1996: "Re: Attachment to Department of Medical Laboratory Science I have reviewed your proposed research program for second semester 1996, as outlined in your fax of 17 July 1996, which Associate Professor Ralph Green and I are happy to have conducted within his Department. As it would not be appropriate for you to carry out your proposed work with Fred De Munk at the Bundoora Campus, you should instead make arrangements for this work to be carried out on the City Campus. If you require laboratory space for this Associate Professor Green will make the appropriate arrangements. You should also have your own office space within the Department and to this end a room in Building 9 (9.2.58) is available for your use. In relation to the laboratory space required for your other work, this will need to be negotiated with Mr Alan Turner and Associate Professor Theo Macrides. You should contact Associate Professor Green directly to make appropriate arrangements for your work to proceed. I have spoken to Associate Professor Peter Reichenbach regarding your research equipment and this will be transferred to the Department for your use as soon as it has been properly identified. As you will not be returning to work on the Bundoora campus you should make arrangements to transfer your effects from that office to the above office as soon as possible. Please advise me immediately of the date on which you will be commencing with the Department so that appropriate arrangements can be made." 63 The Vice-Chancellor, Professor Beanland, wrote to the applicant a letter dated 29 July 1996 in the following terms: "I acknowledge receipt of your faxed correspondence dated 15 July 1996. I note the points you have made, however I confirm my earlier decision requiring you to work on the City Campus, which was conveyed to you by Professor Story in person at your meeting on Thursday 11 July and in letters from him dated 12 July and 24 July 1996." 64 The applicant sent this facsimile reply dated 30 July 1996: "In response to yours dated 29 July 1996 and with regard to the points raised in my fax to you (15 July 1996) and the significant employment disadvantage of moving my office to the City Campus, I respectfully decline your order to relocate to the City Campus." 65 Another letter from Professor Story to the applicant dated 5 August 1996 contained this passage: "I have your letter to the Vice-Chancellor of 3 July 1996, in which you refuse to relocate to the City campus and I am writing to you once again to direct you to immediately commence duties on the City campus of RMIT, using the facilities I have arranged to be allocated to you. These facilities were allocated in the light of the duties you proposed to carry out in your letter of 17 July 1996, and agreed to, with modifications, by myself in my letter to you of 24 July 1996. As stated in my letter of 24 July 1996, you will not be returning to work on the Bundoora campus. You are also, therefore, directed to make arrangements to transfer your effects from that campus to the City campus immediately. It is my wish that you should commence your duties as negotiated previously and I must advise you that, if you decide not to return to work as directed, you will be subject to disciplinary action under the Universities and Post Compulsory Academic Conditions Award 1995, which might result in termination of your employment. If you do not return to work on the City campus by 9 August 1996, I will be forced to take further action." 66 The applicant sent a facsimile message to Professor Story on 9 August 1996 advising, amongst other things: "Given the seriousness of your threat to terminate my employment if I refuse to relocate to the City campus by 9/8/96, I have sought intervention from the Governor of Victoria, His Excellency Richard E McGarvie in his capacity as visitor to the RMIT." 67 The Acting Vice-Chancellor, Ruth Dunkin, also wrote a letter to the applicant dated 19 August 1996 which included this notification: "I have undertaken an examination of a matter which may constitute serious misconduct, or, in any event, misconduct, on your part, in terms of your duties and responsibilities as a member of the academic staff of the University. Pursuant to the Universities and Post Compulsory Academic Conditions Award 1995, I am writing to you to notify you that you have ten days to respond in writing to the allegation detailed below. I am taking this action under clause 12 of the Universities and Post Compulsory Academic Conditions Award 1995. Allegations It is alleged that you have deliberately disobeyed lawful directions in that you: · failed to return to work on the City Campus of RMIT by 19 July 1996, as directed in the letter to you dated 12 July 1996; · did not return to work on the City Campus of RMIT as previously directed, despite confirmation of this direction in the letter to you from myself dated 29 July 1996; · again failed to return to work on the City Campus of RMIT by 9 August 1996, as directed in the letter to you dated 5 August 1996; · have absented yourself from work without leave despite the above directions. You are hereby put on notice that the University is likely to view the allegations made above as amounting, if proven, to 'serious misconduct' or 'misconduct' for the purpose of the Universities and Post Compulsory Academic Conditions Award 1995. If you deny the above allegations in part or in full, or you do not respond to these allegations, within ten working days, a Misconduct Investigation Committee will consider the matter. The Committee will be constituted according to clause 13(c) of the Universities and Post Compulsory Academic Conditions Award 1995. The Committee will provide an opportunity for you to be interviewed and will ensure that you have an adequate opportunity to answer the allegations of serious misconduct/misconduct. The Committee may take into account such further evidence as it believes appropriate to substantiate or otherwise the facts in dispute. The Committee will also interview any other person or persons who may be able to establish the merits or otherwise of the case and all interviews will be conducted in your presence and in the presence of an advocate (who may not be a currently practising solicitor or barrister) whom you may choose to represent you. The Committee's terms of reference will be to report on the facts relating to the alleged serious misconduct/misconduct, including whether any mitigating circumstances are evident. The Committee will operate in camera and will keep a tape recording of its proceedings, a copy of which will be available to you upon request. The Committee will provide a report to me and to you, as soon as is practicable following the conclusion of its proceedings. On receipt of the Committee's report, I will consider if disciplinary action is warranted and what form such action should take. Any such disciplinary action will be in accordance with clause 5(c) of the Universities and Post Compulsory Academic Conditions Award 1995. ... University Visitor I also note that you have requested the intervention of the University Visitor in this matter. Under clause 9 of the Universities and Post Compulsory Academic Conditions Award 1995, the Visitor has no jurisdiction to deal with this matter and therefore the University will not be delaying the action outlined in this letter." 68 The applicant sent the following memorandum dated 22 August 1996 to the Acting Vice-Chancellor, Ruth Dunkin: "The above letter was premised on the view that the Governor as Visitor to the RMIT has no jurisdiction in the matters I have raised with him. I am sure the university will allow the Governor to decide that. Until he does I will not respond to your letter of 19/8/96. As the conflict enters the nastiest stage, I use my vast experience in helping others in similar conflicts in the past and as a Senior Lecturer (still) of the university to offer the following advice. (a) We have reached a stage of the conflict which requires the most honourable behaviour from the RMIT and all parties involved commensurate with my behaviour up to this point. In this regard I want you to note the ff. I nearly missed a message left with my wife that instructed I could no longer go to the Bundoora campus except to empty my office. Had I made the trip 30 minutes earlier as I had originally planned and been turned back by security at the gate, the temperature of the conflict could well have been raised. Then your decision not to await judgment of the Visitor on the contentious issue of relocation, the allegations of gross misconduct (to be denied in full once the Visitor has advised) and your decision to stop salary payments (which you'll find out soon is unwarranted). (b) I advise that you and Christine Fitzherbert entertain the possibility that decisions you have made/are making may be overturned. If you entertain this possibility, it might filter down to the department and avoid the psychological shock, and possible escalation of the conflict, at my eventual and inevitable return to full duties within the Department of Anatomy and Physiology. In this regard I need to remind you that teaching responsibilities in the department are being decided now and you must avoid having to justify my exclusion from teaching in the Department of Anatomy and Physiology on the basis of allocations to others. In addition I will suggest that Peter Raymond should be counselled on how to present the progress of the conflict to departmental members and preferably in the presence or with the knowledge of HOD. (c) May I draw your attention to what is at stake in litigation following termination of my employment. On my side you have the destruction of a career at its peak. On the other side the possible spectacular failure of an operation, loss of face and possible escalation of the conflict. Contingency plans must be put in place if any staff obstructs implementation of a finding against the RMIT. (d) The RMIT must learn from the mistakes of handling this issue so that it does not repeat it at litigation. - It was my perception of injustice which led me to write the offensive letters. It is my perception of injustice in the handling of the case which is pushing it to litigation. It will be my perception of unjust tactics during litigation that will determine my actions at litigation and beyond. - Throughout the conflict the RMIT has sided with my detractors and oblivious to the damage caused me, it has been concerned at the 'depth of emotion' generated by my letters but not the 'depth of emotion' generated in me as a result of the behaviour of certain staff. It has sympathised with the emotional vulnerability of certain members of the staff in relation to my letters but not my emotional vulnerability to the racism of certain staff. It has tolerated threats over my possible return to the department but not the 'perceived' threats in my letters. It has yielded to the UNION blackmail that relocation or dismissal of staff are not options in the resolution of the conflict but entertains same for me. Such one-sidedness may be pursued in a university looking after its own. It may not be tolerated once litigation is triggered by my dismissal. (e) The RMIT should have realised by now that the operation to eject me from the university would not have reached this stage without outside help, and that such a situation at once compromises your strictly legalistic approach to the conflict. RMIT must consider its image and its wider community responsibilities before embarking on a course of action that may damage it." (Original emphasis) 69 The applicant also sent this facsimile message dated 28 August 1996 to the Vice-Chancellor, Professor Beanland: "I kindly request that you take personal charge (and hence ultimate responsibility) of decisions re my case now. While the primary concern of the RMIT has so far been the interest of A&P staff, I must emphasise that I too have rights under the RMIT equal opportunity employment policy. The right in question is access to my Bundoora campus office so I may not be disadvantaged in defending myself against adverse decisions by the University and so that I receive and respond to relevant mail. Peter Raymond has verbally advised that I no longer use my Bundoora office (20/8/96) except to empty it. A request in writing has not been complied with. Of course while my relocation is unresolved I was not expecting this gestapo tactic. May I request that either the RMIT formally advises me that I can no longer enter the Bundoora campus or else restore my limited access to my Bundoora office." 70 On 30 August 1996 the applicant sent this facsimile message to Deputy Vice-Chancellor Dunkin: "I have now received a reply from the Governor to whom I am appealing as Visitor to the RMIT in relation to the relocation to the City Campus. I am therefore now in a position to respond to your letter of 19/8/96. (1) I am still teaching at an outside institution for the RMIT as directed at the beginning of the year, still co-supervising 2 RMIT honours students at an approved research institution and still doing research related work. I have however applied to the Dean for 1 month leave effective from 19/8/96 (supported with medical certificates) to cover my limited capacity for work under the circumstances. (2) I have not disobeyed a lawful direction to relocate to the City Campus, merely awaiting detailed information about the relocation to be assessed by me as not constituting demotion or punishment in my literal reading of s 12(f) of the 1995 Award. In my view the context of the relocation makes it unfair and unlawful. (3) Ultimately resolution of the conflict, in my opinion, lies in my immediate restoration to the Bundoora Campus and to duties before my suspension on 14/3/96. If that is done now, the damage still caused me is still enormous. The situation as it is now is your order for me to relocate to the City Campus and my accommodation of that order within the context of retaining my Bundoora office for the discharge of agreed work for the rest of the year. Your position is clear to me and I hope mine to you. You must now make a decision to avoid further damage." 71 Associate Professor Reeders then wrote this letter to the applicant dated 4 September 1996: "Allegations of serious misconduct/misconduct hearing I write to inform you that a Misconduct Investigation Committee has been established to examine the allegations made against you by the acting Vice-Chancellor in her letter to you of August 19, 1996. The Committee will operate as per clause 13(c) of the Universities and Post Compulsory Academic Conditions Award 1995. Our task is to decide whether you have disobeyed a lawful direction, and if so, what mitigating factors should be taken into account by the Vice-Chancellor when determining penalties. We propose to meet and hear evidence regarding these allegations on September 13, from 9am to 1pm, in Building 6, Level 3, Room 9. We would like to interview you at the hearing. You are invited also to be present when we interview officers of the University regarding these matters of whom you also may ask questions. Interviews will be tape recorded. We urge you to bring an advocate, who must not be a practising barrister or solicitor. In your reply to the letter of August 19, you assert that you were directed to teach at an outside institution at the beginning of the year. The committee will ask you to provide evidence of this. The committee will also ask for evidence of work, and directions to work, at any RMIT site or campus. To support your claims, you may nominate witnesses whom I will approach to attend the hearing. Please confirm that you are able to attend with my secretary, Jan Matthews, on 9660 3959. If necessary, a further hearing will be held on September 19th at 9am in the same place." 72 The letter was signed by Associate Professor Reeders as "Chair, Misconduct Investigation Committee" and as "Dean (acting), Faculty of Social Sciences and Communications". 73 A letter sent on the following day, 5 September 1996, from the Vice-Chancellor, Professor Beanland, to the applicant included these passages: "As you were informed in the Acting Vice-Chancellor's letter to you of 19 August 1996, if you denied the charges a Misconduct Investigation Committee would consider the matter, pursuant to clause 13(c) of the Universities and Post Compulsory Academic Conditions Award 1995. Since your letters can be construed only as a denial of the charges the matter has been referred to a Misconduct Investigation Committee, which will write to you in due course about a hearing, when you will have the opportunity to present any evidence which you believe relevant." 74 A Misconduct Investigating Committee met on 13 September 1996 to conduct the second investigation. It was chaired by Professor Reeders and comprised also Ms Colleen Coutts as the nominee of RMIT and Ms Cathy Brigden as the nominee of the Union. The applicant and Mr Peter Raymond from HRMG who summarised RMIT's allegations against the applicant, were also in attendance. The applicant did not have an advocate present on his behalf. 75 The outcome of the meeting of the Misconduct Investigating Committee was recounted in a memorandum to the Vice Chancellor from Professor Story dated 23 September 1996 which included these passages: "I have been informed that the Committee appointed to investigate the charge of misconduct/serious misconduct against Dr Kweifio-Okai has found that Dr Kweifio-Okai's actions, at the least, constitute misconduct. As you are aware the charge resulted from the refusal of Dr Kweifio-Okai to comply with my instruction, subsequently reiterated by you, to resume his duties at RMIT and, in doing so, to transfer to the City Campus of the University. I understand that you are now required to determine if Dr Kweifio-Okai action's constitute misconduct or serious misconduct and then to impose the appropriate penalty. Mr Peter Raymond, Human Resources Management Group, has asked that I provide you with advice and my recommendations to assist you in your consideration of these matters. In refusing to relocate to the City Campus, after an absence from normal duties for some five months, Dr Kweifio-Okai would appear to have abandoned his duties to RMIT. The adverse consequences of this to the Faculty and the University have been that: · he has been unavailable for teaching duties in courses provided on the City Campus · he has not reasonably made himself available for meetings with his Head of Department and other members of the academic staff of his department to consider important courses and departmental/faculty planning matters. (To provide for Dr Kweifio-Okai's attendance, such meetings would have been transferred from Bundoora to the City Campus). · he has been unavailable for discussions with me and the Heads of the Departments of Anatomy & Physiology and Medical Laboratory Science on his ongoing duties and responsibilities in the faculty; and, · he has not effectively resumed his research activities using the facilities made available to him on the City campus. Although not strictly germane to the question of whether his refusal to accept the directive to transfer to the City Campus, I am now firmly of the view that Dr Kweifio-Okai's actions which lead to his initial suspension from duty, his failure to recognise the genuine concerns of other staff of his department about his behaviour, his failure [to] make any serious attempt to address these concerns, and the resentment that his behaviour has engendered in many of his colleagues, make it impossible for him to resume a normal and effective working role in the Department of Anatomy & Physiology. Moreover, I also consider that to now transfer Dr Kweifio-Okai to another department of the faculty would also lead to serious problems in respect of working relationships between staff and that these would inevitably adversely affect morale in the faculty. My recommendations are: (i) Should you decide that Dr Kweifio-Okai's actions constitute serious misconduct, I recommend that his employment with RMIT be terminated. Since he is currently absent on sick leave, I assume that such termination would date from the expiration of that leave. However, the possibility that he will seek to extend the tenure of his sick leave will need to be considered. I presume that Human Resources Management Group will provide additional advice in such circumstances. (ii) Should you decide that serious misconduct has not been established and that Dr Kweifio-Okai's actions amount only to misconduct, I recommend that he be demoted from his current level C appointment to academic level B4." 76 Ms Fitzherbert sent a memorandum to the Vice-Chancellor dated 24 September 1996, the purpose of which was stated to be: "1. To provide you with: · advice on options for dealing with the case of Dr George Kweifio-Okai in the light of the report of the Misconduct Investigating Committee on the latest charges of misconduct/serious misconduct; and · consideration of the disciplinary penalties available under the award, should these be decided upon." 77 Ms Fitzherbert recommended: "It is recommended that you consider applying disciplinary action, and that action be the penalty of termination of employment, as outlined in the attached paper." 78 The Acting Vice-Chancellor, Ruth Dunkin, then wrote to the applicant a letter dated 14 October 1996 which advised, amongst other things: "I have considered the report of the Misconduct Investigating Committee and consider that your behaviour, in deliberately disobeying lawful directions as alleged in the letter to you from the Acting Vice-Chancellor dated 19 August 1996, constitutes serious misconduct. I have also decided, in all the circumstances, that the disciplinary action under clauses 5(c) and 9 of the Universities and Post Compulsory Academic Conditions Award 1995, is to be termination of your employment with RMIT. Your continued refusal to commence duties as directed has left me with no other choice of action. This action will take effect immediately and you will be paid five weeks salary in lieu of notice." 79 It was submitted by the applicant that the direction by RMIT that he move to the city campus was not reasonable. It was said to be punitive in character. He contended first that it was not open to RMIT to discipline him in respect of conduct which had already been the subject of disciplinary proceedings and for which he had been censured pursuant to the relevant disciplinary provisions of the Award. The applicant further submitted that it was not open to RMIT to discipline him further for past conduct if the grievances of the applicant which had given rise to that conduct had not been fully and properly resolved by RMIT. On the other hand, Counsel for RMIT submitted that, although the breakdown in working relationships at the Bundoora campus had been largely due to the conduct of the applicant, RMIT, in directing him to move to the city campus, had been concerned only to restore an effective and productive working relationship for the staff of the Department and not to impose further disciplinary sanctions on the applicant. 80 It will be recalled that Ms Dunkin, the Deputy Vice-Chancellor (Education and Training) wrote to the applicant a letter dated 27 May 1996 which has already been reproduced in these reasons. That letter advised the applicant that he had been censured in accordance with cl 5(c)(i) of the Award. It also foreshadowed an investigation by Ms Sue Viney into issues raised by Dr Kweifio-Okai going to the relationship between academic and general staff of RMIT and racial vilification to which he claimed to have been subject. 81 In my view, it is clear from that letter that RMIT regarded itself as having conclusively dealt with the allegations against the applicant in respect of his conduct within the Department. Not only does the letter indicate that any "further behaviour of this kind" would be viewed very seriously and could result in "further action" being taken against the applicant, it also emphasises that the foreshadowed investigation was specifically not to concern itself with allegations against the applicant which, it was said, "have already been investigated"; as the letter put it "these matters are now finalised". 82 Regard must also be had to the letter to the applicant from Christine Fitzherbert of HRMG dated 10 July 1996. The relevant parts of that letter are set out at the commencement of these reasons. 83 That letter provides contemporaneous corroboration of RMIT's assertion, which I accept, that its decision to direct the applicant to move to the city campus was prompted solely by a desire to restore to normal the relations between Bundoora staff which RMIT considered, in my view with some justification, had become unworkable. 84 It is also clear from the subsequent documentary evidence, particularly the letter to the applicant from Professor Story dated 24 July 1996, that the Department genuinely intended to establish an effective working environment for the applicant at RMIT's city campus. 85 Moreover, the evidence supports a finding that the applicant had initially given the impression that he was willing to move to the city campus. In the file note of the meeting of 11 July 1996 between Professor Story and the applicant, Professor Story recorded: "Although Dr Kweifio-Okai did not state his definite acceptance of these conditions, my impression was that he would agree to the arrangements." 86 The file note continued: "Dr Kweifio-Okai acknowledged that some of his past behaviour and actions, presumably in respect of his interaction with members of the Department of Anatomy and Physiology, were inappropriate. He indicated that he considered his transfer to the City campus as a 'punishment' but he appreciated the 'practical' need for the transfer to occur." 87 The finding that the applicant had created that impression is also supported by his evidence when cross-examined by Mr Bourke on the hearing of the review. The applicant said: "I did not object at that stage because the way Professor Story had put it, I mean, it was preceded with a whole range of discussions and the impression I got from him was, you know, that at that stage he was very, very worried himself. He had not been speaking to Sue Viney and he's blamed for a whole host of things and what I felt was we were sort of giving each other comfort. It was on that condition, on that sort of – not opposing but canvassing the issues of the relocation which I left. So it was fairly amicable. I think it was correct to say that he was under the impression that I was agreeable to it, yes." 88 Professor Story wrote to the applicant on 12 July 1996 confirming the arrangements made during their meeting on the previous day. That was the letter stipulating conditions (i) to (v) under which the applicant was to work at the city campus which has been reproduced earlier in these reasons. 89 Under cross-examination by Mr Bourke about that letter, the applicant was asked: "…there's a letter confirming the arrangement that you are to commence at the city campus on 19 July 1996, correct?" 90 The applicant replied:"Yes". 91 Mr Bourke then asked the applicant: "A transfer had nothing to do with any form of victimisation against you, did it?" 92 The applicant replied: "The letter which came in between had." 93 That was a reference to the letter dated 10 July 1996 from Ms Fitzherbert of HRMG, already set out at the commencement of these reasons, which had informed the applicant of the Vice-Chancellor's recommendation that: "In view of the breakdown in working relationships between most of the staff at the Bundoora campus and Dr Kweifio-Okai, as a result of his behaviour, it would be reasonable to direct Dr Kweifio-Okai to return to work at the City campus and he should be directed to do so in consultation with the Dean of the Faculty of Biomedical and Health Sciences." 94 At p 10, para 3 of his "Statement of Contentions of Fact", filed on 16 November 1998, the applicant asserted: "My transfer from the Bundoora campus to the City campus of the RMIT constitutes unlawful victimisation as a result of me having made a complaint of racial discrimination which is, in turn, a further breach of the Equal Opportunities Act." 95 The applicant was asked by Mr Bourke: "Is that your view?" 96 The applicant replied "Yes, it is", and went on "in the context of the letter saying because of my behaviour". 97 Although the applicant may have construed the expression "as a result of his behaviour" in the recommendation of the Vice-Chancellor contained in the letter of 10 July 1996 from Ms Fitzherbert as ascribing a reason for punishing the applicant or discriminating against him, I do not consider that a fair reading of the expression, in the context of the recommendation as a whole, supports that construction. In my view, all that the Vice-Chancellor had done was to ascribe a reason for the "breakdown in working relationships between most of the staff at the Bundoora campus and Dr Kweifio-Okai". The Vice-Chancellor was not concerned to apportion blame for the breakdown which he identified. Nor was he concerned to assess whether or not the behaviour which he attributed to Dr Kweifio-Okai had been justified. The sole purpose of the recommendation, I find, was to prescribe a solution for the breakdown in working relations which would cause the least possible disruption and damage to RMIT as a whole. It is to be noted in this context that the applicant accepted in the proceedings of the Committee on 13 September 1996 that the facilities at the city campus of RMIT were of a standard that would not have prevented him from carrying on his research work. His objection was that "mentally, though I would not be able to work." 98 The transcript of that hearing included the following relevant exchange between the applicant and the chairman, Professor Reeders. 99 Professor Reeders asked: "Okay can I try and summarise then the view that you have put to us and please correct me if I am wrong. You agree that you have not turned up to work on the City campus. But your argument is that that instruction represents a punishment, and moreover an unwarranted punishment, and you are also arguing that being required to relocate would personally embarrass you because there would be rumour on the City campus presumably focussing on why you had been forced to attend the City campus, and negative comment would be made. Is that correct?" 100 The applicant replied "the stigma". 101 Professor Reeders then asked: "Okay. But in terms of your capacity to do the work in terms of facilities, access to facilities, there is no real issue. That you believe that you would be able to continue with your research work substantially on the City campus, sharing facilities or having such equipment transferred as is essential to your projects." 102 The applicant replied: "Mentally though I would not be able to work. I agree with you. Facilities here are of a standard – I must have been probably making the point that I was seriously considering relocating to this campus early last year, seriously. So it is not a question of whether there is a problem with not working here, but the problem is the circumstances under which I am being asked to come here. I just will not. Seven months after the event I still feel the same way, it is just not possible." 103 It will be remembered that the applicant's terms and conditions of employment included: "Campus Location: You will be based at the Bundoora Campus but may be required to work at other campuses of the University." 104 In my view it was reasonable in the circumstances for RMIT to direct the applicant to relocate to the city campus to achieve a solution for what the Vice-Chancellor's recommendation termed "the breakdown in working relationships between most of the staff at the Bundoora campus and Dr Kweifio-Okai". I find that the disciplinary proceedings against the applicant which had resulted in his being censured pursuant to the provisions of the Award had been concluded and played no part in the decision that he should move to the city campus. Because the facilities at the city campus were apparently accepted as being at least the equal of those available to the applicant at Bundoora, the direction for relocation could not reasonably be regarded as a demotion or other form of discipline imposed by RMIT on Dr Kweifio-Okai. I consider that he refused to comply with that direction because he regarded it as a defeat in his struggle against what he perceived to be the forces ranged against him at Bundoora. 105 The applicant also submitted, as I understood it, that it was not open to RMIT to discipline him in circumstances where his grievances and allegations against members of the Department, and which he said had provoked his concededly inappropriate behaviour, remained unresolved. 106 The applicant had sought to adduce evidence and to make submissions with respect to the matters which had formed the basis of the first investigation and which have been outlined above. The thrust of his submissions in that context was that those matters had been at the bottom of the decision by RMIT to direct the applicant to relocate to the city campus. Accordingly, it was argued, RMIT could not have taken that decision if it had properly investigated the allegations made by the applicant. 107 As already indicated, the direction that the applicant move to the city campus was motivated solely by RMIT's concern to overcome the breakdown in working relationships at the Bundoora campus and was not actuated by any desire to punish or discipline the applicant. It is therefore unnecessary to consider whether the first investigation was as thorough as it might have been or arrived at conclusions which should have commended themselves to reasonable investigators. 108 Furthermore, I did not understand the applicant to submit that, in relation to the first investigation and the subsequent decision to censure the applicant, RMIT had acted otherwise than in accordance with the provisions of the Award. There is therefore no occasion to consider, independently of the Court's examination of whether there was a valid reason for the termination of the applicant's employment, evidence with respect to the matters that formed the basis of the first investigation and the subsequent decision to censure the applicant. 109 The applicant made no claim that he was not given an opportunity to respond to the allegations of misconduct constituted by his refusal to relocate to the city campus. It follows that the only basis on which the present application can succeed is that the applicant's refusal to comply with that direction was not a valid reason, within the meaning of s 170DE(1) of the Act, for RMIT's terminating his employment. That sub-section provides: "An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." 110 The concept of valid reason has been explained by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 in the following passage at 373 which has been adopted with approval in a number of subsequent cases in this Court and the Industrial Relations Court of Australia: "Subsection 170DE(1) refers to 'a valid reason, or valid reasons', but the Act does not give a meaning to those phrases or the adjective 'valid'. A reference to dictionaries shows that the word 'valid' has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is '2 Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.' In the Macquarie Dictionary the relevant meaning is 'sound, just, or well founded; a valid reason.' In its context in sub-s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of sub-s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 252; 60 IR 1 at 7 when considering the construction and application of s 170DC." 111 In the application of the concept as there elaborated, the Court does not substitute for that of the employer its own view of whether an applicant's employment should have been terminated. The enquiry is only as to whether a reasonable employer, paying fair and proper regard to the mutual interests, duties and obligations of both employer and employee could have terminated the employment. 112 As already explained, RMIT's decision to terminate the applicant's employment because of his conduct in refusing to comply with the direction to move to the city campus was defensible or well-founded. It was certainly not taken capriciously, without proper deliberation. Even if it were necessary or appropriate to go behind that immediate reason for the termination of the applicant's employment and consider the reasonableness of the direction that he move to the city campus, that would not avail the applicant. It will be apparent from my earlier findings that the giving of that direction was a defensible or justifiable attempt to overcome a difficult problem of personnel relations. Accordingly, because it arose from his refusal to comply with that direction, there was a valid reason or reasons for the applicant's termination related to the operational requirements of RMIT as well as to the applicant's conduct constituted by the refusal. 113 For these reasons the applicant's motion for review must be dismissed. I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.