Mainsbridge v Murdoch University [1998] IRCA 5

INDUSTRIAL relations COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - motion to dismiss application made pursuant to s 170EA Workplace Relations Act 1996 (Cth) - meaning of "conduct" - discussion of Sangwin v Imogen Pty Ltd - meaning of "connected with" - whether an employee's alleged misconduct justifies dismissal requires objective assessment

Workplace Relations Act 1996 (Cth), s 170DE(1)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, applied Byrne v Australian Airlines Ltd (1992) 45 IR 178, considered Cosco Holdings Pty Ltd v Van Do & Others (FCA, Full Court, 4/12/97, unreported), followed Cowell Electric Supply Company Ltd v Collector of Customs (1995) 127 ALR 257, applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, compared Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314, applied Sangwin v Imogen Pty Ltd (IRCA, 8 March 1996, unreported), discussed

BRUCE MAINSBRIDGE v MURDOCH UNIVERSITY

WI 2115 of 1995

MADGWICK J

SYDNEY (HEARD IN PERTH)

13 february 1998

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 2115 of 1995

BETWEEN: BRUCE MAINSBRIDGE

Applicant

AND: MURDOCH UNIVERSITY

Respondent

JUDGE(S): MADGWICK

DATE OF ORDER: 13 february 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Notice of Motion is dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 2115 of 1995

BETWEEN: BRUCE MAINSBRIDGE

Applicant

AND: MURDOCH UNIVERSITY

Respondent

JUDGE(S): MADGWICK

DATE: 13 february 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: Background The respondent ("the University") applied at the end of the applicant's case to dismiss these proceedings on the basis that the applicant could not succeed. It was conceived that there was a short point that might bring lengthy proceedings to speedy finality. The applicant, Professor Mainsbridge (as he was and as I find it convenient to refer to him) had been employed by the University as a Professor of Physics since 1974. In December 1994, the University advised Professor Mainsbridge that allegations of serious misconduct had been made against him. A Committee of Inquiry was convened on 27 February 1995 to investigate those allegations, pursuant to the procedures set out in clause 9 of the Australian Universities Academic Staff (Conditions of Employment) Award 1988 ("the Award"). The text of the clause is set out in the Appendix hereto. On 9 August 1995 the Committee found Professor Mainsbridge guilty of serious misconduct, and recommended that he be dismissed. In due course, the University Senate ratified that recommendation on 9 June 1995 (as it was bound to do under the Award: cl 9(o)), and on 7 September 1995 the University summarily terminated Professor Mainsbridge's employment. Professor Mainsbridge brought an action against the University in the Industrial Relations Court, seeking reinstatement and compensation on the ground that the termination of his employment was unlawful, contrary to s 170DE(1) of the (then) Industrial Relations Act 1988 (Cth). Section 170DE(1) is in the following terms: "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." It is enough to say of the subject matter of the allegations that there is some material to support most of them; in respect of nearly all of them, there are disputes as to what actually occurred and in what context, and as to how seriously any default by Professor Mainsbridge might reasonably be viewed. My present impression is that there are arguments of substance available to each of the parties. At the end of the applicant's case, the University filed the Notice of Motion to dismiss Professor Mainsbridge's application, which is the subject of this decision. The parties desired that I decide the questions raised by the Notice of Motion finally, rather than on the narrow basis of mere arguability of the applicant's case sufficing to defeat the respondent's application, c.f. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The competing submissions The respondent submits that, following the decision in Cosco Holdings Pty Ltd v Van Do & Others (Federal Court of Australia, Full Court, 4 December 1997, unreported), the applicant must fail. The argument is that, accepting that the phrase "connected with" in s 170DE(1) means having a "real and substantial" connection with: Cowell Electric Supply Company Ltd v Collector of Customs (1995) 127 ALR 257 at 266, it is established, from facts not in dispute, that Professor Mainsbridge's employment was terminated for reasons connected with his conduct. It is perfectly clear that the responsible organs of the University acted, as they were bound to do under the Award, upon the report of the Committee of Inquiry on the very subject of allegations about Professor Mainsbridge's conduct. Thus there was plainly a real and substantial connection between the reason for the termination of Professor Mainsbridge's employment and his conduct. The requirement that the reason be "valid" is a requirement at most that the reason for termination be lawful (apart from the operation of s 170DE) and that the connection with the conduct be genuine: Cosco. Manifestly, this is not a case of merely colourable reference by an employer to reasons of conduct; the Award not only legally sanctions dismissal for serious misconduct, but requires it if a Committee of Inquiry so recommends. All that is required is that there be a genuine connection with conduct of the employee; that was said to posit a less onerous test for an employer than if, say, the statutory and Convention requirement had been (as it is for "operational requirements") that the reason for termination be "based on" conduct. The applicant responds that it is inherent in Cosco that, in a case where operational requirements are said to be the basis of the reasons for termination, there should truly be such operational requirements. It must logically also be that, where conduct is relied upon as being "connected with" the reasons for termination, there should in reality (and not merely in the opinion of the employer or his/her agents or advisers) have been conduct which was such a connecting factor. Accordingly, whether or not there was such conduct is necessarily for the Court to determine. There are two aspects to the question whether such conduct existed: did the conduct that is said to have occurred actually occur, and was it of a kind which could reasonably be the source of a reason to terminate the employment of the employee in question - in substance, was it truly "serious misconduct"? Indeed, the argument for the objective existence of such (mis)conduct is stronger than for the objective existence of "operational requirements" where these are relied upon: a "requirement" is necessarily in the end no more than somebody's belief that something is requisite; but "conduct" is not only a matter of opinion or belief. It was further argued that Professor Mainsbridge had subsisting contractual rights not to be dismissed except for serious and actual misconduct. These rights were said to subsist despite Cl 3(c) of the Award because of the logic of the reasoning in Byrne v Australian Airlines Ltd (1992) 45 IR 178. Conclusions Attractive as they are at first sight, the submissions of the respondent must, in my opinion, fail. (1) Application of Cosco While it has not been explored whether, in this Court, I am technically bound by Cosco, it is unthinkable that I should not follow it and, counsel for the applicant having chosen not to make any formal submission that it was wrongly decided, this is no occasion for a discussion of its correctness, except to say that, in my respectful view, it plainly calls for reconsideration: among other matters, a number of relevant decisions of single judges of the Industrial Relations Court of Australia were apparently not brought to the Court's attention. The conclusion of Lindgren and Lehane JJ in the major judgment was that: "[i]n the statutory context with which we are concerned, the primary work of 'valid' is to exclude the reasons listed in s 170DF(1). If there are other reasons for which an employer may not lawfully dismiss an employee, then equally, no doubt, such a reason will not be a 'valid' reason. Additionally, perhaps, the word 'valid' may serve to emphasise that the reason must be genuinely connected with the employee's capacity or conduct or genuinely based on operational requirements." However, Lindgren and Lehane JJ had earlier pointed out that: "To say, as the section does, in addition that the reason must be 'valid' is, no doubt, to add a further element to that requirement of a genuine foundation..." Their Honours had also earlier held that the words "based on" (without resort to "valid reason") required that the foundation of the reason for termination be "real and not specious". With respect, such a construction is plainly called for. As counsel's submissions acknowledged, "connected with" must likewise be construed as meaning really and substantially, that is to say (perhaps among other things) genuinely, connected with.