Kweifio-Okai v RMIT [1997] IRCA 233

DECISION NO:233/97 INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - VALID REASON - whether OPERATIONAL REQUIREMENT - whether failure to comply with lawful and reasonable direction of location transfer - OPPORTUNITY TO RESPOND - whether applicant given opportunity to be heard in relation to selection for transfer - REMEDY - consideration of applicant's conduct in refusing transfer - whether REINSTATEMENT impracticable - possibility of re-establishment of satisfactory working relationship - COMPENSATION - likelihood of applicant's employment to have continued - Workplace Relations Act 1996 ss170DC, 170DE, 170EA, 170EE Universities and Post Compulsory Academic Conditions Award 1995 KWEIFIO-OKAI -V- RMIT VI 2661 of 1996 PARKINSON JR MELBOURNE 25 JULY 1997 IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) VI 2661 of 1996 VICTORIA DISTRICT REGISTRY ) B E T W E E N: George KWEIFIO-OKAI Applicant AND: RMIT Respondent JUDICIAL REGISTRAR : PARKINSON PLACE : MELBOURNE DATED : 25 JULY 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application pursuant to Section 170EA of the Workplace Relations Act, 1996, be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) VI 2661 of 1996 VICTORIA DISTRICT REGISTRY ) B E T W E E N: George KWEIFIO-OKAI Applicant AND: RMIT Respondent JUDICIAL REGISTRAR : PARKINSON PLACE : MELBOURNE DATED : 25 JULY 1997 REASONS FOR JUDGMENT This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996, ('the Act'). The applicant was employed by the Royal Melbourne Institute of Technology, at its Latrobe Campus, as a Senior Lecturer in the Anatomy and Physiology Department. He commenced employment on 15 December, 1986, as a casual tutor and was appointed to the position of Senior Lecturer on 11 July, 1994. His duties and responsibilities in the position included both the teaching and supervision of graduate students and research. The research component of his work was of significant importance and it was acknowledged that the applicant's research undertakings were extremely valuable to the respondent and the community. The applicant's employment was terminated by the respondent on 14 October, 1996. The respondent contends that it had valid reason for the termination, as a consequence of the applicant's failure to obey its direction to commence working at the City Campus. The respondent contends that its direction to transfer location was a reasonable direction in the circumstances, and that such a direction was in accordance with the terms of the Universities and Post Compulsory Academic Conditions Award 1995, ('the Award'), and the applicant's contract of employment and was lawful. It further contends that the transfer arose as a result of the operational requirements of the respondent and whilst related to matters arising from the applicant's relations with other employees, was not a disciplinary or penalty measure. The applicant contends that the transfer was unreasonable and not in accord with the terms of the Award or the contract, and was as a consequence of the respondent implementing disciplinary measures, without regard to the provisions of the Award. The applicant contends that there was no operational requirement and that the transfer was motivated by disciplinary considerations. It is appropriate to set out the background to this matter and I now do so, together with my findings on the evidence. Between 1992 and 1996 difficulties arose between the applicant and other employees of the respondent. These difficulties were fundamentally personality difficulties, although described by the applicant as being as a consequence of his instructions not being carried out by various administrative employees and motivated by discriminatory behaviour, based upon race. It appears from the evidence that there was a gradual deterioration in the relations between the applicant and in particular the technical and administrative staff of the respondent, which manifested in an identifiable way in about 1991. Prior to that time there appears to have been no significant difficulties in relationships and the evidence is that the applicant enjoyed a close and friendly working relationship with the secretarial employees in the department. I do not intend to set out all of the matters evidenced, but now proceed to identify the principal and more significant events which identify a process of deterioration in relations. In 1991 the applicant corresponded with the Laboratory Manager of the department as to matters involving his use of the photocopier. In 1992 he corresponded with the Head of the Department, Professor Reichenbach, as to allegations of racist behaviour directed towards himself. He circulated this correspondence throughout the department. In that correspondence the applicant indicated that he did not wish any to discuss the allegations of racism any further. In 1994 the applicant was appointed to the position of senior lecturer which involved permanent tenure. On 19 May, 1995, the applicant entered into correspondence in relation to his criticism of the Faculty Research and Higher Degrees Committee procedures and in the course of that correspondence, utilised what might be described as unreasonable and rather harsh language towards the intended recipient of the letter, the Chairperson of that Committee, Associate Professor Lawry. In that letter the applicant concluded by advising: (Exhibit R1 Document 7) " 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. ". The letter was endorsed " respectfully presented " and signed by the applicant. This correspondence was sent also to the head of the anatomy and physiology department. On 26 May, 1995 the applicant sent a memorandum to the department secretary, Ms Jennifer Szwede, an administrative and clerical employee, advising that he no longer required her secretarial services, because of her collusion with others in the department against him over the previous 2 years. (Exhibit R1 Document 8) A reference was made in that correspondence to the recipient's emotional state. This correspondence was also sent by the applicant to the Department Head, with a notation indicating that he did not think that any discussion of the matter would be necessary. On 5 June, 1995, the applicant circulated a notice in the department alleging racist conduct on the part of a staff member and identifying various other matters of friction in the department. In that correspondence the applicant advised: (Exhibit R1 Document 9) " I will remain restrained so long as there are no further developments. ". The applicant was advised by the department head that it was necessary for discussions to occur in relation to the allegations of racial discrimination and his method of communicating with staff. The applicant declined to meet with the department head, on the basis that the allegations of discrimination could not be investigated by the university and that he had not identified any particular person. The necessity for a meeting was pressed by Professor Reichenbach and in the course of the meeting the applicant was informed of the need to address his concerns in a more appropriate manner and to moderate his form of speaking to and of people. In November, 1995, relations between the applicant and the non academic staff in the department significantly deteriorated. This is evidenced by correspondence and conversations from the applicant to the technical and secretarial staff and other administrative staff. In December, 1995, the applicant posted a notice, to Ms Szwede, one of the secretarial staff in the following terms: (Exhibit R1 Document 16) " Why the fuck is the attached not on every notice board in the department, Madam Secretary ? "