CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - PROCEDURAL FAIRNESS - VALID REASON INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DE, 170EDA Australian Universities Academic Staff (Conditions of Employment) Award 1988 MARTIN JAMES RICE v THE UNIVERSITY OF QUEENSLAND QI 95/1042 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 NOVEMBER 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1042 QUEENSLAND DISTRICT REGISTRY BETWEEN: MARTIN JAMES RICE Applicant AND: THE UNIVERSITY OF QUEENSLAND Respondent MINUTE OF ORDERS BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 NOVEMBER 1995 THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1042 QUEENSLAND DISTRICT REGISTRY BETWEEN: MARTIN JAMES RICE Applicant AND: THE UNIVERSITY OF QUEENSLAND Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 NOVEMBER 1995 REASONS FOR JUDGMENT Dr Rice ("the applicant") has applied to this court by application filed on 28 February 1995 for the remedies of reinstatement and compensation in respect of the termination of his employment by The University of Queensland ("the University"), relying on subsection 170EA(1) of the Industrial Relations Act 1988 ("the Act"). The applicant had been dismissed from his employment by the University by letter dated 13 February 1995 received by him on 15 February 1995. His dismissal took effect on and from 10 February 1995. From 30 January 1974 the applicant had been employed by the University, initially as lecturer, and later as senior lecturer in Entomology (the position he held at termination) at its St Lucia, Brisbane, campus. The conditions of his employment on and from 17 October 1988 were governed by the provisions of the Australian Universities Academic Staff (Conditions of Employment) Award 1988 ("the Award"), which award was made under a law of the Commonwealth. The Vice-Chancellor of the University wrote to the applicant by letter dated 22 June 1994 setting out allegations of serious misconduct as defined in clause 9 of the Award. The letter advised the applicant of his suspension from duties, with pay, and immediate exclusion from the University. Details of each of the allegations appeared in quite voluminous attachments which accompanied the Vice-Chancellor's letter. The applicant submitted a written response dated 22 July 1994 to the allegations, denying them. The Vice-Chancellor decided that a prima facie case for serious misconduct existed, and referred the matter to a Committee of Investigation ("the Committee"). The Committee heard evidence and received submissions on behalf of the parties on various days from 31 October 1994 to 30 November 1994. It received further written submissions on 7 December 1994. The Committee provided a report dated 18 January 1995, in which it determined that the applicant had been guilty of serious misconduct and recommended to the University's Chief Executive Officer (the Vice‑Chancellor) that he dismiss the applicant from the employment of the University. The Vice-Chancellor accepted the Committee's recommendation, and on 10 February 1995 the Senate of the University ratified the Vice-Chancellor's decision to dismiss the applicant. The letter dated 13 February 1995 terminating the applicant's employment then followed. After the applicant made application to this court on 28 February 1995, I ordered by consent of the parties, on 5 July 1995, that the hearing of the application be confined to an examination of documents listed in a List of Agreed Documents handed up to me and placed with the papers, and submissions thereon. The hearing before me took place on 30 and 31 October, 1, 2 and 3 November 1995. The applicant appeared unrepresented, and the University by counsel. Law Subsection 170DE(1) of the Act relevantly provides: An employer must not terminate an employee's employment unless there is a valid reason connected with the employee's conduct..... In an application such as the one before me, the onus of proof is as provided for in subsection 170EDA(1) of the Act: If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1): (a) the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and (b) if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid. Vice-Chancellor's Allegations The allegations of serious misconduct which appeared in the Vice‑Chancellor's letter dated 22 June 1994 to the applicant were as follows: 1. You are alleged to have committed serious misbehaviour in that: (1) You deliberately disobeyed a series of formal written directions from me as Chief Executive of the University that you not be involved in the commercialization of a neem seed industry in Australia in such a way that these activities would adversely affect your primary duties at this University. (2) You misrepresented your involvement in these activities, from which you derived personal gain, by denying both in letters and in your "Paid Consultative and Related Outside Work" returns that you were significantly involved in any such activities. (3) You used the property and facilities of the University, without recompense, in the conduct of these activities. (4) While engaging in unauthorized conduct with parties external to the University, you represented yourself as an agent of the University or as acting with the University's endorsement, or you so acted as to lead them to the reasonable belief that the University endorsed your behaviour and claims. 2. Your serious misbehaviour as outlined above has seriously impeded the carrying out of your own duties in that: (5) Your teaching and lecturing has been performed at such an inadequate standard that students have justifiably complained of your incompetence. (6) (a) You have inadequately prepared lecture notes. (b) You have failed to provide lecture notes when explicitly instructed by your Head of Department to do so. (7) You have consistently prepared examination questions late, and delivered them late to the appropriate authority in charge of the examination programming, despite repeated and explicit instructions from relevant authorities to do so on time. You will recall that I formally found an example of your conduct in this regard unsatisfactory last year and wrote to censure, warn and counsel you on 6th. May 1993. (8) You have persistently returned late, or have not returned at all, written assignments or written examination questions, despite clear directives to the contrary from your Head. (9) You have conducted both written and oral exams in an unacceptable manner. (10) You have attended practical classes for an unacceptably brief time or not attended them at all. 3. Further the alleged serious misbehaviour has been an impediment to other persons carrying out their duties in that: (11) You have re-scheduled practical classes to a time when you knew you would be absent on leave thus requiring other staff to undertake your obligations at short notice. (12) You have created a range of administrative difficulties for each of the Heads or Acting Heads of your Department who have had to deal with you since you became involved with the commercialization of neem seed. (13) You have inadequately supervised the Doctor of Philosophy student, Mr Zhen, at the same time as providing misleading reports of his progress. 4. (14) Instance (13) alleged above amounts, in the alternative, to serious dereliction of the duties required of you as a staff member. (15) The cumulative effect of the instances (1) to (13) alleged above amounts to serious dereliction of duties required of you as a staff member. Award Clause 9(a) of the Award defines serious misconduct to mean: (i) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of the member's duties or to other members carrying out their duties; or (ii) serious dereliction of the duties required of the member's office; or (iii) conviction by a court of competent jurisdiction of an offence of a kind which constitutes a serious impediment to the carrying out of the member's duties or to other members carrying out their duties. Proceedings before the Committee At the outset of its inquiry, the Committee ruled that it was hearing five allegations of serious misconduct against the applicant. It was of the view that paragraphs 1 and 2 of the Vice Chancellor's letter dated 22 June 1994 to the applicant should be read together as making four allegations of serious misconduct. It ruled that the allegations in paragraph 3 of that letter could not be relied upon to show that the serious misbehaviour alleged in paragraph 1 constituted serious misconduct. Paragraph 3 was not in accordance with clause 9(a)(i) of the Award, because of its omission of the word "serious" before the word "impediment", and its reference to "persons" rather than "members". The Committee further ruled that a fifth allegation of serious misconduct was made in paragraph 4 of the letter, which alleged that the cumulative effect of instances (1) to (13) amounted to serious dereliction of duties required of the applicant as a staff member. Findings of the Committee The Committee found to be proven the following facts or matters alleged (page 136-7 of its report): Allegation 2 That Dr Rice misrepresented his involvement in activities in the commercialisation of a neem seed industry in Australia from which he derived personal gain by denying both in letters and in his "Paid Consultative and Related Outside Work" returns that he was significantly involved in any such activities. Allegation 3 That he used the property and facilities of the University, without recompense, in the conduct of those activities. Allegation 5 That his teaching and lecturing has been performed at such an inadequate standard that students have justifiably complained of his incompetence. Allegation 6(B) (sic) That he has failed to provide lecture notes when explicitly instructed by his Head of Department to do so. Allegation 7 That he has consistently prepared examination questions late, and delivered then (sic) late to the appropriate authority in charge of the examination programming, despite repeated and explicit instructions from relevant authorities to do so on time. Allegation 8 That he had persistently returned late written assignments or written examination questions despite clear directives to the contrary from his Head. Allegation 9 That he conducted an oral exam in an unacceptable manner. Allegation 12 That he has created a range of administrative difficulties for each of the Heads of (sic) Acting Heads of the Department of Entomology who have had to deal with him since he became involved with the commercialisation of neem seed. While the Committee was satisfied that two allegations (allegations 2 and 3) of serious misbehaviour were established, it was not satisfied that they had seriously impeded the carrying out by the applicant of his own duties. Accordingly, having failed to find that allegations 1 and 4 had been proved, and in light of its ruling earlier referred to about the effect of paragraph 3 of the Vice Chancellor's letter dated 22 June 1994 to the applicant, the Committee was not satisfied that any of the four allegations against the applicant of serious misconduct in the sense of serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of the member's duties or to other members carrying out their duties had been established. It remained then for the Committee to consider whether or not the University had established serious misconduct in the sense of serious dereliction of the duties required of the member's office. It considered that it was incumbent upon the University to establish that the applicant had abandoned or neglected the duties required of his office, that this was serious, and that it was culpable. Of the instances it had found proved, the Committee had concluded in respect of allegation 5 that culpable neglect on the part of the applicant was not involved. It was in respect then of the cumulative effect of instances 2, 3, 6(b), 7, 8, 9 and 12 that the Committee made a finding of serious dereliction of the duties required of the applicant's office, and consequently, serious misconduct on his part.The Committee noted that these instances had taken place over a period of more than five years. Applicant's Case Before Me At the outset, counsel for the University tendered a letter dated 11 October 1995 from the applicant to the University's solicitors in which the applicant responded to a request for particulars of the grounds on which he was relying in support of his application. This letter expressed that: I am seeking reinstatement for the following reasons: (1) in making its various findings, the Committee misunderstood or failed to take proper note of the evidence; (2) the Committee made findings that were not open to it on the evidence; (3) the University used procedures in relation to the applicant which were open to a reasonable apprehension of bias, before, during and after the Investigation. (4) in considering the findings and recommendation of the Committee, the University failed to observe any rules of procedural fairness in relation to the applicant; (5) the University accepted the findings and recommendation of the Committee without making any proper enquiry as to the accuracy of the findings or the appropriateness of the recommendation. Not surprisingly, in the circumstances of an unrepresented applicant, counsel for the University did not hold the applicant strictly to the confines of these "particulars". I will now deal with such of the submissions made by the applicant to me as I consider merit attention. Given the nature of some of the grounds argued by him, I have not necessarily followed the order chosen by him. The following is, I consider, a fair representation of the arguments put to me with which I have chosen to deal. The groupings I have used are my own, and are meant to be descriptive only of issues raised. Bias The applicant complained of unfairness in the method of selection employed of persons to constitute the Committee. He claimed in effect that a disinterested observer might entertain a reasonable apprehension that the Committee members would be partial to the University's case. He made a like criticism of Mr Byrom, the University's Legal Officer, who along with a Ms Lavery, presented the University's case to the Committee. I find there to be no factual basis to this attack. Further, the applicant was represented before the Committee by two industrial officers from the National Tertiary Education Industry Union. No challenge or objection either to the composition of the Committee or the appearance of Mr Byrom was made. If it were necessary so to do, I would hold that the applicant waived any right he had to object to the composition of the Committee, and to Mr Byrom's appearance - Vakauta v Kelly 167 CLR 568. I am aware that the applicant was not legally represented, but consider the principles in Vakauta should hold good for industrial advocates in the present circumstances. The applicant's attack on Mr Byrom's role extended not only to his alleged high degree of previous involvement with members of the Committee, but like involvement with witnesses who gave evidence for the University. It is unsurprising that Mr Byrom might have had such involvement given his role as the University's Legal Officer. I reject this challenge. Imbalance of Resources The applicant complained that there was an imbalance of resources, as between the University and himself, applied to the presentation and defence of the allegations before the Committee. The proceedings adopted by the University in raising the allegations, and pursuing them, were in accordance with the Award put in place by the Australian Industrial Relations Commission. Any imbalance of resources was, necessarily, something beyond the University's control. No objection on this basis was made to the Committee. A reading of the transcript of proceedings before the Committee suggests that the applicant was competently represented. Lack of Procedural Fairness The applicant submitted that after the Committee reported to the Vice‑ Chancellor, he ought to have been allowed an opportunity to argue his case before the Vice-Chancellor, or the Senate of the University, or both. There is no support for this submission in the Award. Indeed, apart from the practicality of such a course, the provisions of clause 9(o) of the Award might be thought to be against such submission. Clause 9(o) provides: The decision of the Chief Executive Officer shall be final, except where current rules, practices, legislation or orders of any Governor in Council of State require that a recommendation or decision to demote or dismiss a staff member be ratified by the governing body of the University, and subject to the jurisdiction of any competent external authority. Any recommendation or decision of the Chief Executive Officer required to be ratified by the governing body of the University shall take effect only from the date of such ratification, provided that the governing body shall make its decision on the basis of the reasons for decision provided by the Chief Executive Officer or Committee of Investigation as the case may be and not otherwise. In my opinion, the applicant was given the opportunity to defend himself against the allegations made, as required by para 170DC(a) of the Act. Procedural fairness did not require that he be given the opportunity of a hearing before the Vice-Chancellor, or the Senate, or both, subsequent to the Committee's report. The applicant claimed also that the University had withheld a very important piece of evidence from the Committee. This was identified as document no. 32, part of the agreed documents which became exhibit R2 before me. It appears to be typed notes of conversations between a Sonja Mamin, a secretary and the applicant on 8 October 1993, apparently relating to requests of the applicant by his then Head of Department for lecture notes and examination questions. The applicant contended that this document should have been put before the Committee by the University. Ms Mamin was not called as a witness before the Committee. I consider that there was no obligation on the University either to call her as a witness, or to put the document into evidence. Further, far from concealing the document, the evidence before me establishes that the document was released to the applicant under the Freedom of Information legislation on 11 November 1994, during the course of the hearing before the Committee. The offer to release documents under Freedom of Information was made by the University to the applicant, on 26 September 1994, more than a month before the Committee first sat. Finally, I doubt that document 32 could, in any event, be said to possess anything of real significance to the applicant's defence of the allegation to which it is referable. An aspect of lack of procedural fairness was said to be the Committee's refusal to allow the applicant to recall a witness, Professor Paterson. I can find no support for this in the transcript of proceedings before the Committee. Vendetta Central to the applicant's stance before me was his oft-repeated assertion that he was the victim of a vendetta by senior administrators of the University to get rid of him from its employment. It was put that various of the applicant's departmental heads were involved in such a masterplan. The participants included former Heads or Acting Heads of Department, Dr Exley, Professor Paterson, Dr Zalucki and Professor Gordh. They included also the Vice-Chancellor, and a Mr Feeney, Director of Personnel Services. I consider that there was no evidence before the Committee in support of this assertion. Professor Gordh was described by the applicant as a "cat's paw" of the Vice-Chancellor. My reading of the evidence suggests that the Professor was rather independently minded, and not acting as anyone's tool. In correspondence which passed between them, the applicant called into question Professor Gordh's mental health. This elicited a very robust rejoinder, to which I was taken. What does emerge from the evidence in my view is a course of conduct on the part of the applicant towards his superiors accurately described by counsel for the University as exhibiting features of unnecessarily provocative, aggressive, offensive and unrepentant behaviour in respect of which one could reasonably expect a strong response. I reject the assertion that the behaviour of the Vice-Chancellor towards the applicant was other than appropriate to his role as the chief administrative officer of the University. There is likewise no substance in the applicant's attack on Mr Feeney. Delay in Taking Action The applicant asserted what I took to be acquiescence on the part of the University in his conduct, pointing to what was said to be delay on its part in finally taking action against him. I consider that this must be seen in light of the nature of the allegations made against him. It was, in my view, not unfair to the applicant to draw on numbers of matters over the years. The correspondence in evidence between the University and the applicant does not reveal any acquiescence on the former's part in his conduct. Intellectual Property The applicant claimed before me that he was entitled not to provide lecture notes to his head of department despite being explicitly instructed so to do. He claimed intellectual property in such notes, and advanced this as a reason for not producing them. The Committee rejected this as a valid excuse. I agree. There is no suggestion in the material that any of the applicant's superiors were going to misuse intellectual property (if any) the applicant might have had in the notes. Failure to find all allegations proved The applicant submitted, in effect, that the failure of the Committee to find all allegations proved somehow vitiated its conclusions in respect of those it did find proved. This submission is misconceived. It was never an all-or-nothing situation. As to the standard of proof, I consider the Committee was right in observing that, while the civil standard was appropriate, the standard was to be applied so as to require a level of certainty which had regard to the gravity of the matters to be proved and the seriousness of the consequences of an adverse finding. Conformity of findings with terms of allegations I am satisfied that the substance of the findings was in conformity with the substance of the allegations made against the applicant. Censure of 6 May 1993 The applicant complained that it was wrong of the Committee to take into account the fact that the Vice Chancellor had, on 6 May 1993, found that the applicant had engaged in unsatisfactory conduct and had censured, warned and counselled him. The finding of unsatisfactory conduct related to an allegation that the applicant had not complied with a specific directive of his head of department to provide the latter with a copy of an exam by a stated date. The Vice Chancellor's finding of unsatisfactory conduct, on the applicant's part on this occasion, was pleaded as part of allegation 7. The applicant's submission was that this matter was "res judicata". What the Committee said in respect of this instance was that it considered that it should not reopen the matters placed before the Vice Chancellor or review in any way his decision. It considered, however, that it was entitled to take it into account in determining whether the applicant had consistently prepared examination questions late (its report page 86). The Committee also had regard to the fact that the applicant had already been dealt with by the Vice Chancellor for this instance in considering what its recommendation to the Vice Chancellor ought to be (its report pages 146-7). In its use of this earlier instance I do not consider that the Committee erred. Character References The applicant submitted that the Committee appeared to have ignored numerous favourable character references relating to the applicant which were placed before it. In view of the evidence available to support the Committee's findings, I do not consider that these references have any relevant bearing on the matter. Conclusion I am of the view that there was ample evidence before the Committee to support its findings. I consider that the instances the Committee found proved constituted serious misconduct on the part of the applicant within the terms of clause 9(a) of the Award. The University has discharged the onus that lies on it under the Act to establish that there was a valid reason for the termination of the applicant's employment. I am not satisfied that the applicant's termination was harsh, unjust or unreasonable. Order I order that the application be dismissed. I certify that this and the preceding TWELVE (12) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 30 November 1995 Appearing for the Applicant: In person Counsel for the Respondent: Mr Murdoch Solicitor for the Respondent: Corrs Chambers Westgarth Dates of hearing: 30, 31 October, 1, 2 & 3 November 1995 Date of judgment: 30 November 1995