FEDERAL COURT OF AUSTRALIA Imberger v The University of Western Australia [2014] FCA 1456 Citation: Imberger v The University of Western Australia [2014] FCA 1456 Parties: JORG IMBERGER v THE UNIVERSITY OF WESTERN AUSTRALIA File number: WAD 384 of 2014 Judge: GILMOUR J Date of judgment: 22 December 2014 Catchwords: INDUSTRIAL LAW – urgent application seeking orders under s 545 of the Fair Work Act 2009 (Cth) – misconduct provisions under enterprise agreement – powers of suspension and investigation under enterprise agreement – whether there is a serious question to be tired as to the proper construction of misconduct provisions – balance of convenience in granting relief – application dismissed Legislation: Fair Work Act 2009 (Cth) s 545 Cases cited: McAleer v University of Western Australia (2007) 159 IR 96 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 210 FCR 1 Date of hearing: 22 December 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: Mr GMG McIntyre SC with Mr A Drake-Brockman Solicitor for the Applicant: DLA Piper Australia Counsel for the Respondent: Mr IM Neil SC Solicitor for the Respondent: Herbert Smith Freehills IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 384 of 2014 BETWEEN: JORG IMBERGER Applicant AND: THE UNIVERSITY OF WESTERN AUSTRALIA Respondent JUDGE: GILMOUR J DATE OF ORDER: 22 DECEMBER 2014 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 384 of 2014 BETWEEN: JORG IMBERGER Applicant AND: THE UNIVERSITY OF WESTERN AUSTRALIA Respondent JUDGE: GILMOUR J DATE: 22 DECEMBER 2014 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a Winthrop Professor of Environmental Engineering, Centre for Water Research at the University of Western Australia. He is also the Director of the Centre for Water Research there. His CV in the field of water research is impressive. He is a fellow of various societies in Australia and overseas. His career has included that of associate professor with tenure at the University of California, Berkeley. Since 1979, he has held his present position at the University of Western Australia. He has published a number of books, contributed to many others, and has authored extensive journal articles. 2 The respondent, the University of Western Australia, suspended the applicant on full pay on or about 17 November 2014. On that date, Professor Dawn Freshwater advised him of that fact by letter. She is the Senior Deputy Vice-Chancellor of the University. The letter, which was in the most general of terms, disclosed that Professor Freshwater was in receipt of a report concerning allegations made by a number of former students in relation to the applicant. The students were not identified, nor were any details of the allegations. They were characterised in the letter as allegations "which, if true, would constitute serious misconduct". 3 It is important to make absolutely clear that, neither at the time the letter was written, nor since then, does the respondent assert that the allegations, or any of them, are established. Indeed, senior counsel for the respondent was at pains to make this point clear. The respondent has, pending a full investigation, adopted a neutral stance on those issues. 4 Since receipt of the letter dated 17 November 2014, the applicant has, on a number of occasions, sought details of the allegations made against him. Ultimately, he has been provided with a schedule of allegations. This, I am informed, is the high-water mark of the content of the allegations made, certainly as at November 2014. They are highly general, and do not condescend to any kind of details such as the identity of the complainant, dates, places, and so on. 5 The applicant has instituted proceedings under the Fair Work Act 2009 (Cth) (the Fair Work Act) seeking declaratory relief, together with penalties and compensation. The applicant read his affidavit, sworn 18 December 2014, and that of his solicitor Mr Brian Jackson, affirmed 19 December 2014. The respondent read the following affidavits: Ms Catherine Russo, a solicitor with Herbert Smith Freehills, affirmed 20 December 2014; Mr Mark David, the Acting Human Resources Director at the University, affirmed 21 December 2014; and Ms Samantha Maddern, another solicitor employed by Herbert Smith Freehills, affirmed 22 December 2014. 6 By an interlocutory application, the applicant now seeks interlocutory relief: first, by orders pursuant to s 545 of the Fair Work Act, that until the hearing of the substantive application or further order, the disciplinary action, taken pursuant to Schedule D of The University of Western Australia Academic Staff Agreement 2014 (the Agreement), be prohibited from further proceeding; second, by orders pursuant to the same provision, that, until the hearing of this application or further order, the determination to suspend the applicant on full pay be set aside, and the applicant be entitled forthwith to return to his full duties for the respondent. I will deal with the relief sought in the reverse order. 7 The first issue is whether there is a serious question to be tried as to the proper construction of the misconduct provisions of the Agreement which governs the employment relationship between the respondent and the applicant. The substantive provisions are to be found in Schedule D to that agreement. This sets out a process where allegations of misconduct are levelled against an employee. There may, or may not, be further investigation of the allegations (para 3.1). 8 Paragraph 5 of the Agreement deals with suspension – I will return to this shortly. Paragraph 6 concerns the process where there is an investigation. Ultimately, the Senior Deputy Vice-Chancellor of the University may impose disciplinary action under para 6.5.1. This includes suspension pursuant to the power to suspend under para 1.1.5 of Schedule D. It seems to me to be very much arguable that the suspension provisions under para 5 confer a power on the respondent to suspend an employee, even before the investigation and review processes under para 6 are undertaken or completed. 9 One can readily see why that kind of immediate power might be important in particular circumstances. Nonetheless, it is a power which, if used, will necessarily visit significant adverse consequences upon an employee. Issues of standing, reputation, personal health, amongst others, form part of that adverse matrix. It is at least arguable that the power under para 5.1 is subject to the process outlined under para 5.2. In my opinion, it is the better view as to the proper construction of how that provision operates. Paragraph 5.2 is in the following terms: Where the University considers suspending an employee with or without pay, the employee will be advised in writing and given 5 working days to respond in writing or in person. The matter of suspension will then be considered and determined. Following determination, or where there is no response from the employee within 5 days, the decision will be confirmed in writing. 10 The respondent, through its senior counsel, quite properly, in my view, acknowledges that there is a serious question to be tried as to the proper construction of para 5.2. That said, it submits that even where the applicant's construction is adopted, to the effect that written advice under para 5.2 must be given to the employee under that provision, the question nonetheless remains, "Advice as to what?" As a fact, no prior written notice was given to the applicant. In my opinion, the suspension power under para 5 is to distinguished from the power under para 6.5.1 conferred upon the Senior Deputy Vice-Chancellor to impose disciplinary action by way of suspension under para 1.1.5 of Schedule D. 11 The paragraph 5 suspension power is, in my opinion, a power to suspend, based not on a consideration of the allegations made, taken together with the evidence in support of them, the employee's response, and evidence from the employee. Consideration of that combined kind is the subject of the investigation and review provisions set out under para 6. Rather, the suspension of an employee, under the powers conferred by para 5, proceeds not upon proof that the allegations are true, nor even a provisional weighing up of the allegations taken with the employee's response. 12 Paragraph 5.1 describes the foundation necessary for exercise of the power of suspension. I will, for present purposes, treat this as subject to the provisions of para 5.2. The necessary foundation comprises: (1) a report of an allegation, or allegations, of serious misconduct, and (2) the alleged serious misconduct is of a nature that it would be unreasonable for the respondent to continue the employment of the employee. The report referred to in that paragraph is that mentioned first in para 2.2, being one which provides information about the nature and details of the misconduct allegations. 13 This report is not to hand, but senior counsel for the respondent informed me that its content rose no higher than the content of the schedule of allegations to which I have referred. The allegations, general as they are, if ultimately established, would, I think, meet the description of serious misconduct. The applicant, to the extent that the limited information affords him, denies each and every allegation made against him. 14 It is accepted that arguably there was non-compliance with para 5.2. However, the content of that non-compliance requires consideration. The applicant submits that the provision required there to be given full details of the allegations made against him in writing, so that he could respond in writing within five days, before any suspension occurred. I do not accept this submission. It is not what the language of para 5.2 requires, nor should such a requirement be readily implied in a certified enterprise agreement. 15 What para 5.2 directs is that where the respondent considers suspending an employee, that employee will be advised of that fact in writing, and the employee will have five working days to respond in writing or in person to the advice that the respondent is considering suspension. This would enable the employee to make written submissions going to the issue of suspension, not whether the allegations made are true or not. 16 As I have mentioned, the power of suspension is an important power. It has a protective element within it. Here, the respondent does not want the applicant to interact with its students in the face of serious misconduct allegations whilst these are being investigated. In due course, once the investigation has run its course, it may very well be, for example, that the allegations are found to be wholly spurious and were, perhaps, the product of no more than that of disgruntled students. Such allegations are easily made. In that result, the applicant's suspension would inevitably be lifted. He may or may not receive compensation. Presently the respondent, as I have said, has elected to suspend him on full pay. I do not regard para 5.2 as requiring the respondent to provide details of the allegations to the applicant for a number of reasons. 17 First, as I've mentioned, it does not provide for this expressly. This is in contradistinction to provisions such as para 6.1.2, which grants an employee, following upon written advice of an investigation, the opportunity to be heard and, or alternatively, submit a written statement. Second, the springboard for the power of suspension to be invoked is a report of allegations of serious misconduct, and the view of the respondent in relation to the allegations that it would be unreasonable to continue the employment of the employee. 18 In other words, it is the characterisation of the allegations as serious misconduct which inform the consideration of, and the imposition of, the suspension - not whether the allegations are likely or not to be made out in due course. Whilst I think this construction of para 5.1, read with para 5.2, is preferable to that contended for by the applicant, it is better left, for present purposes, as constituting a serious question to be tried. 19 The interlocutory relief sought by the applicant in relation to his suspension is that it be set aside. The respondent contends that the Court has no such power, citing by way of illustration McAleer v University of Western Australia (2007) 159 IR 96 at [54]. The applicant submits that the powers found in s 545(1) and (2) of the Fair Work Act are wide enough to enable the Court to fashion relief. Putting the jurisdictional question to one side and assuming that the Court has relevant power, an order of the kind sought by the applicant would be mandatory in nature and would proceed, in effect, from a finding as to the construction of para 5.2 in the nature of a final conclusion or determination. This would require a high degree of assurance that the final relief would be guaranteed: see generally Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 210 FCR 1 at [17]-[21]. I am not persuaded to that level of assurance. Indeed, to the contrary, I regard the applicant's case on that question of construction as weak. 20 In any event, I consider that the balance of convenience is against the grant of such relief as is sought in this respect. The respondent has offered unconditionally to permit the applicant to carry on with his research work. The detail of how that would work in practice can be the subject of a dialogue between the applicant and the respondent. The weakness of the applicant's construction of para 5.2 to which I have referred also militates against any intervention. The respondent has since November 2014 heard the applicant's submissions as to why he should not be suspended pending a full investigation. 21 If the Court were otherwise minded to restrain the continuing suspension of the applicant until para 5 is complied with (assuming but without deciding that it has such power), the respondent would start the process under para 5 again and would again suspend the applicant on the strength of the evidence before me. Any inconvenience to the applicant will likely be of short duration. I am informed that the applicant will be given details of the allegations made against him by the end of this week. The investigation process after that will, to an extent, depend upon the applicant as to when and how he responds to the allegations. In the meantime, he is suspended on full pay. 22 I accept that these allegations are completely denied by the applicant and that he has found the fact that they were made deeply distressing and perhaps even caused harm to his health. This must be particularly so given his very lengthy service to the respondent, across half a century, as well as his considerable standing here and overseas in the academic and scientific community. On the other hand, the respondent has obligations and duties at law to its students and to its own reputation and it is entitled to safeguard these. I am of the opinion that the powers under para 5 are conferred for interim purposes only pending an investigation under para 6. Importantly, they are exercisable not because it is thought by the respondent that there is substance in the allegations but merely by reason of their objective nature and characteristics. The respondent has, through senior counsel, made it explicitly clear that it has formed no view one way or the other as to the truth or falsity of the allegations. 23 The fact that the allegations have been made and that an investigation is on foot were both matters which were being treated by the respondent in the strictest of confidence. That was entirely appropriate. To the extent that these matters have now entered the public domain, that is the consequence of a legal and forensic judgment made by the applicant and those advising him. Should there be any publicity concerning this case, then any fair reporting of it will, undoubtedly, make clear that the suspension does not mean that there is any substance whatsoever in the allegations. It would be quite unfair for it to be thought that the respondent has suspended the applicant because it considers the allegations or any of them to have any merit whatsoever. 24 I will now turn to the other interlocutory relief sought by the applicant whereby he seeks to restrain, in effect, the investigation which is underway into the allegations pursuant to para 6 of the Agreement. As to this, I find that there is no issue to be tried, serious or otherwise. The investigation provisions under para 6 are not tied or conditioned by anything found in para 5. Paragraph 6 proceeds from the provisions of para 3 in circumstances where the Senior Deputy Vice-Chancellor has determined, as here, that the allegations warrant further investigation. In particular, the state of belief under para 6.1.1 which may be reached by the Senior Management Representative in receipt of the report containing the allegations, as with the decision to suspend, are referrable to the nature of the allegations and whether, "if proven", they would constitute relevantly serious misconduct. 25 The state of belief assumes that the allegations are true and the characterisation of them as serious misconduct or not proceeds from that assumption. The consequence of reaching such a state of belief based on that assumption merely has the consequence that the Senior Management Representative may commission an investigation. It is during the investigation, which may lead to the imposition of disciplinary action, including suspension, that procedural fairness as set out is provided to the employee. Conclusion 26 For all these reasons I would dismiss the application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 5 May 2015