McAleer v The University of Western Australia [2007] FCA 52

FEDERAL COURT OF AUSTRALIA

McAleer v The University of Western Australia [2007] FCA 52

INDUSTRIAL LAW – certified agreement ‑ breach of the provisions of disciplinary procedure – failure to provide particulars of allegations of serious misconduct – whether a penalty should be imposed Workplace Relations Act 1996 (Cth) ss 178, 178(2), 178(4)(iia) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645 MICHAEL McALEER v THE UNIVERSITY OF WESTERN AUSTRALIA WAD 71 OF 2006

SIOPIS J

2 february 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 71 OF 2006

BETWEEN: MICHAEL McALEER

Applicant

AND: THE UNIVERSITY OF WESTERN AUSTRALIA

Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 2 february 2007

WHERE MADE: PERTH

THE COURT DECLARES THAT:

1. Upon the proper interpretation of cl 6.1.1 of Sch D of The University of Western Australia Academic Staff Agreement 2004 ('the 2004 certified agreement'), the respondent breached the terms of that clause in that it failed, in its letter of 6 January 2006 to the applicant, to notify the applicant of the allegations of serious misconduct made against him in sufficient detail to enable the applicant to understand the precise nature of the allegations and to properly consider and respond to them. 2. Upon the proper interpretation of cl 6.6 of Sch D of The University of Western Australia Academic Staff Agreement 2006, the allegations of serious misconduct made against the applicant by the respondent, in the respondent's letter dated 6 January 2006 to the applicant, are required to be dealt with in accordance with the provisions of Sch D of the 2004 certified agreement. THE COURT ORDERS THAT: 3. The respondent is to pay to the applicant, the sum of $20 000 as a penalty in respect of the respondent's breach of cl 6.1.1 of Sch D of the 2004 certified agreement. 4. The respondent is permanently restrained from taking any further steps to pursue the allegations of serious misconduct, made against the applicant in its letter to the applicant dated 6 January 2006, before the Misconduct Investigation Committee, appointed in February 2006 and comprised of Ms Robyn Carroll, Professor Mark Bush and Dr Bruce Stone. 5. The applicant's application is otherwise dismissed, and the respondent's cross‑claim is dismissed. 6. The question of costs is adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.