FEDERAL COURT OF AUSTRALIA
Soliman v University of Technology, Sydney [2012] FCAFC 146
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | UNIVERSITY OF TECHNOLOGY, SYDNEY First Respondent FAIR WORK AUSTRALIA Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons on or before 7 November 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
FAIR WORK DIVISION | NSD 1376 of 2011 |
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA |
BETWEEN: | FAWZY SOLIMAN Applicant
|
AND: | UNIVERSITY OF TECHNOLOGY, SYDNEY First Respondent FAIR WORK AUSTRALIA Second Respondent
|
JUDGES: | MARSHALL, NORTH AND FLICK JJ |
DATE: | 24 OCTOBER 2012 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
THE COURT
1 The Applicant in the present proceeding, Dr Fawzy Soliman, was a Senior Lecturer as well as the subject coordinator of the subject “Global Strategic Management”. He is employed by the First Respondent, the University of Technology, Sydney, within the Faculty of Business.
2 The facts which give rise to the present proceeding may be traced back to May 2007 when Dr Soliman submitted an examination paper for an examination that was to be held at the end of the semester. He conducted a series of revision classes with his students. The problem was that the contents of that examination paper were disclosed during the course of those revision classes.
3 A complaint was made by an “anonymous student” on 11 June 2007. A Misconduct Investigation Committee was set up to investigate. That Committee provided its report in December 2007. A majority of the Committee found that Dr Soliman was guilty of “misconduct”; one member of the Committee dissented and concluded that there was no “misconduct”.
4 In January 2008 the Acting Vice-Chancellor informed Dr Soliman that he was to be demoted from a Level C (Senior Lecturer) Step 6 to a Level B (Lecturer) Step 6.
5 Litigation followed.
6 Dr Soliman claimed that the disciplinary action was in breach of the University of Technology, Sydney Academic Staff Agreement 2006 (“the Agreement”). In January 2008 Dr Soliman filed an application in the Australian Industrial Relations Commission, as it then was, pursuant to s 709 of the Workplace Relations Act 1996 (Cth) and Clause 10 of the Agreement. Questions arose as to whether the procedural requirements for taking disciplinary action under the Agreement had been complied with. Issue was taken with the timing of the Committee’s formation, the time within which the Committee concluded its proceedings and whether the report provided justified the taking of disciplinary action.
7 The proceedings before the Commission were adjourned in order to enable those questions to be resolved by this Court. Her Honour Justice Jagot resolved those questions and delivered judgment in October 2008: Soliman v University of Technology, Sydney [2008] FCA 1512, 176 IR 183. An appeal was dismissed in December 2009: Soliman v University of Technology, Sydney (No 2) [2009] FCAFC 173, 191 IR 277.
8 By this time the application that had been made to the Australian Industrial Relations Commission became an application to be resolved by Fair Work Australia. That application resumed. Following an unsuccessful challenge to the jurisdiction of Fair Work Australia by Dr Soliman, a hearing on the substantive issues was held on 11 and 12 October 2010. Both Dr Soliman and the University were represented by Counsel. Vice President Watson of Fair Work Australia delivered his decision in November 2010: Soliman v University of Technology, Sydney [2010] FWA 8639. The Vice President concluded that “the Committee was entitled to make the findings that it did and the Vice Chancellor was entitled to reach the conclusions on the misconduct and disciplinary action involved”: [2010] FWA 8639 at [43].
9 A Notice of Appeal was filed in December 2010. The Full Bench of Fair Work Australia delivered its decision in March 2011: Soliman v University of Technology, Sydney [2011] FWAFB 1427. The Full Bench concluded that the “Vice-President’s decision [was] not affected by error, much less error indicating a refusal or failure to exercise jurisdiction. It follows that no appeal lies under s. 120(1)(f) of the [Workplace Relations Act 1996]”.
10 A Summons and an Application for an Order to Show Cause were then filed in the High Court of Australia in April 2011. An order was sought, inter alia, quashing the decision of the Full Bench. On 9 August 2011 an order was made by Heydon J remitting the matter to this Court pursuant to s 44(2) of the Judiciary Act 1903 (Cth).
11 The Defendants named in the proceeding commenced in the High Court were the University of Technology Sydney (as the First Defendant) and the individual members of the Full Bench (collectively as the Second Defendant). At the outset of the hearing an order was sought (and made) amending the nomenclature of the parties to Applicant and Respondents and substituting Fair Work Australia as the Second Respondent in lieu of the individual Members of Fair Work Australia.
12 Notwithstanding the fact that this Court was constituted by three Judges, the Application remains in the original jurisdiction of this Court.
13 Written submissions were filed in this Court by both Dr Soliman and the Respondent University.
14 The written submissions filed on behalf of Dr Soliman advanced a series of propositions which did not sit comfortably with the Grounds set forth in the Application for an Order to Show Cause. Oral submissions, in turn, departed from the written submissions. Ultimately, Senior Counsel on behalf of Dr Soliman advanced three arguments, namely:
there was no evidence to support the finding in paragraph [39] of the Vice President’s decision that it was “more probable than not that [Dr Soliman] did provide his students with what he intended to be the examination questions and answers”;
even if the facts as found by the Vice President were to be accepted, those facts did not constitute “misconduct” within the meaning of and for the purposes of cl 46.2 of the Agreement; and
the “disciplinary action” taken against Dr Soliman was disproportionate to his misconduct. It was contended that in imposing that action, the Vice President either failed to address submissions which had been advanced for consideration or, alternatively, he failed to give reasons for his decision.
No question arises as to the power of this Court to consider grounds different from those initially set forth in any initiating process in the High Court: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [47]-[48]. The oral argument on appeal proceeded upon the basis that if one or more of these arguments were made out in respect to the decision of the Vice President such that it should be quashed, the consequence would be that the decision of the Full Bench should also be quashed.
15 Although there was a suggestion raised by Junior Counsel for the University that the Vice President was confined to that material which was before the Committee and the Acting Vice-Chancellor, there was no submission advanced that the function being discharged by the Vice President was anything other than to “stand in the shoes” of the Acting Vice-Chancellor and to undertake a review of the factual merits of the dispute.
16 The first two arguments advanced on behalf of Dr Soliman are rejected; the third is accepted. That ground, it is concluded, vitiates both the decision of the Vice President and the Full Bench.
Misconduct and the Anonymous E-mail
17 Clause 46.2 of the Agreement provides as follows:
‘Misconduct’ means wilful conduct by a staff member which is unsatisfactory.
Clause 46.3, it should be further noted, provides as follows:
‘Serious misconduct’ means:
(a) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member’s duties or to a staff member’s colleagues carrying out their duties; or
(b) conviction by a Court of competent jurisdiction of an offence of a kind that may be reasonably regarded as constituting a serious impediment to the discharge by the staff member of his or her functions or duties, or to the staff member’s colleagues carrying out their functions or duties; and/or
(c) serious dereliction of duties.
Clause 46.7 provides for those circumstances in which the Vice-Chancellor establishes a “Committee” to investigate an allegation of “misconduct” or “serious misconduct”. Clause 47.1 provides for the constitution of such a Committee as follows:
Where a Committee is established in accordance with sub-clauses 29.11.2, 45.11, or 46.7 it will comprise the following membership:
(a) one person independent of the University who has relevant knowledge and experience, agreed by the Vice-Chancellor and the affected staff member, and who will be the Chair. If agreement cannot be reached with ten working days, then the Vice-Chancellor may ask a member of the Higher Education Panel of the AIRC to nominate a person to act as Chair
(b) one person from within the University selected by the Vice-Chancellor; and
(c) a person chosen by the staff member from the pool of elected staff representatives.
18 The anonymous e-mail forwarded on 11 June 2007 reported what the author believed may constitute “academic misconduct”. The text of that e-mail was as follows (without alteration):
Dear UTS Executices,
I would like to report something I believe as an academic misconduct.
I sat in 21630 Global Strategic Management in Autumn 2007 semester, of which Dr. Fawzy Soliman is both the coordinator and the sole lecture/tutor of the subject. In particularly the last three lectures of the subject, Dr. Soliman revealed all of the 20 multiple choice questions and 5 essay questions that he promised us (students) we will see in the exam – scheduled to be on the 20th of June 2007.
For proof/evidence, I present to you here with the digitally scanned the notes I personally copied off the slides that Dr. Soliman put up - please refer to the images attached. The slides were intentionally left up on the screen long enough so students would be able to write all of them down.
If this turns out to be an appropriate academic conduct, please disregard my email and I apologise to have taken your time. However, if this turns out to be a misconduct, may actions be taken against the relevant parties. I sincerely appreciate your help.
Should there be any more authentication or evidence required, please do not hesitate to contact me on this email I set up specifically for this purpose. I will be happy to provide it to you.
Regards,
A UTS student
The “digitally scanned notes” to which the e-mail referred were in fact attached to that e-mail. When those “notes” were compared to the examination paper, there was a direct correlation.
19 During the course of the hearing before the Vice President on 11 and 12 October 2010 Dr Soliman gave evidence and further relied upon the evidence of a former employee of the University (Professor Mukhi) and two students. A “large number” of documents were also relied upon.
20 The written reasons and findings provided by the Vice President set forth the background facts which gave rise to the application made in January 2008, the evidence given and the submissions advanced. The decision then set forth the “Conclusions” reached, relevantly including the following:
[39] Having considered all of his responses to the allegations I consider that it is more probable than not that he did provide his students with what he intended to be the examination questions and answers. If there had been more than one paper prepared, then the need to carefully avoid providing the actual questions and answers would have been evident. If he did not imply or suggest that the questions provided in class would be those in the examination, it is hard to imagine why students complained in the way that they did. If he did imply that they were the same then this could only be because his actions were entirely wilful.
[40] His inability until much later to locate the electronic version of the alternative paper that he said that he intended to set creates doubts that it existed at the time. It appears to me that his denials were likely to have been made because he did not consider the allegations could be proven. When it became clear that the allegations were proven he shifted to an alternative explanation.
[41] However if Dr Soliman mistakenly sent an alternative paper to the examinations department, this is not the end of the matter. His conduct would be described as extremely careless. Sending the paper he had prepared (an amalgam of previous papers) was wilful. So too was the communication in three revision classes of the same questions. He alleges that he was not aware at the time that what he had done was to tell students the precise questions and answers in the pending examination. The consequences therefore may not have been apparent, but each step was wilful in the sense that they resulted from actual conduct on his part. Communicating the questions and answers of what was allegedly prepared as an additional or supplementary examination is also wilful and in breach of University values.
[42] In any event the conduct was clearly unsatisfactory performance. A failure to apply appropriate care when dealing with examination questions is unsatisfactory. A view that the practice is not wrong is out of step with the values of the University expressed by the reaction by senior colleagues and the thrust of University Coursework Assessment Policy and Procedures Manual.
[43] In all of the circumstances I consider that the Committee was entitled to make the findings that it did and the Vice Chancellor was entitled to reach the conclusions on the misconduct and disciplinary action involved.
[44] Dr Soliman has failed to establish that the actions of the University are inconsistent with the Agreement or are unfair or inappropriate. He has not established that the disciplinary actions taken by the University should be disturbed. The dispute is determined accordingly.
No Evidence
21 The written outline of submissions filed on behalf of Dr Soliman contended that there was no evidence to support each of the following findings made by Vice President Watson:
• “… it is more probable than not that [Dr Soliman] did provide his students with what he intended to be the examination questions and answers” (at para [39]);
• “A view that the practice is not wrong is out of step with the values of the University expressed in the reaction by senior colleagues and the thrust of University Coursework Assessment Policy and Procedures Manual” (at para [42]); and
• “… the conduct was clearly unsatisfactory performance” (at para [42]).
In the alternative, the written submissions contended that “if it is found that there was material properly before FWA to found the basis for the above findings, then Vice President Watson should have indicated the possibility that he would take into account that material as evidence of the factual position, and permitted the Applicant to take steps to cross-examine the relevant persons”.
22 The oral submissions confined the argument to whether or not there was any evidence to support the finding that Dr Soliman intentionally provided his students with the questions and answers. Notwithstanding the submissions made within Dr Soliman’s written outline of submissions, Senior Counsel on behalf of Dr Soliman expressly abandoned, during the hearing of the appeal, any reliance upon a potential denial of procedural fairness arising from:
any failure to put to Dr Soliman the substance of findings to be made against him contrary to the rule in Browne v Dunn (1893) 6 R 67; or
making findings contrary to the rule in Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J.
Given the fact that the Vice President was not bound by the rules of evidence, such submissions (if pressed) may have proved difficult to sustain: cf. Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 at [57], 201 ALR 437 at 450 per Gummow and Heydon JJ (Gleeson CJ agreeing).
23 It may be accepted that a critical finding of fact based upon no evidence may constitute jurisdictional error sufficient to found an order quashing the decision of the Vice President: Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13] per Wilcox, French and Finkelstein JJ; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19], 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ; SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 at [121], 187 FCR 109 at 142 per Flick J (Besanko J agreeing). “A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process”: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [16], 241 CLR 390 at 396 per French CJ.
24 The difficulty confronting Dr Soliman, however, is that the e-mail forwarded on 11 June 2008 does constitute evidence upon which a finding could be made that Dr Soliman’s conduct was “wilful conduct … which is unsatisfactory”. The weight to be given to that evidence remained a matter initially for the determination of the Committee established by the Vice-Chancellor and thereafter for the Vice President – and not this Court. If questions of weight be left to one side, the anonymous e-mail provided evidence that Dr Soliman:
“revealed all of the 20 multiple choice questions and 5 essay questions”;
made a “promise” that these questions would be the one the students “will see in the exam”; and
presented the materials to the students by way of slides which he “left up on the screen long enough so students would be able to write all of them down”. The weight to be given to the comment that Dr Soliman displayed the material “intentionally” for the stated purpose was again a matter for the Vice President.
The attached “digitally scanned notes” were in two parts. The first part was a series of questions with multiple choice answers showing the correct answer circled; the second part was headed “Exam hints”. It was not disputed that Dr Soliman provided the questions that later appeared in the examination and the answers to those questions.
25 The simple submission advanced by Senior Counsel for Dr Soliman was that the e-mail constituted “no evidence” primarily because it was anonymous. It was submitted that it was not even known whether it was sent by a “student”. The e-mail, it may be accepted, was sent anonymously. In some circumstances it may well be the case that an administrative decision-maker may have his decision set aside where it is founded upon material from an undisclosed source. “No tribunal”, it has been said, “without grave danger of injustice”, may set aside the common law rules of evidence and “resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party”: R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. Reliance upon material which cannot be tested may well constitute a denial of procedural fairness. There should, for example, be a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case: eg. Pearce v Button (1985) 8 FCR 408 at 422 per Lockhart J. App’ld: Clean Ocean Foundation v Environment Protection Authority [2003] VSC 335 at [29], 20 VAR 227 at 235 per Balmford J. Reliance cannot be placed upon material which has no probative weight, particularly when it would be procedurally unfair to do so: eg. Yelds v Nurses Tribunal [2000] NSWSC 755 at [28], 49 NSWLR 491 at 503 per Adams J.
26 But reliance upon the anonymous e-mail in the present proceeding worked no unfairness to Dr Soliman. The source of the e-mail may have been unknown; but the contents of that e-mail were largely not in dispute. What was fatal to the argument being advanced on behalf of Dr Soliman was the conclusion drawn from the uncontested factual content of the e-mail.
27 The first argument advanced on behalf of Dr Soliman is thus rejected.
Misconduct
28 The second argument advanced on behalf of Dr Soliman proceeded on the assumption that the first argument had been rejected and that there was evidence to support a finding that Dr Soliman had in fact engaged in “wilful conduct”.
29 Dr Soliman’s conduct, so the second argument ran, was not “unsatisfactory”. The conduct, it was submitted, “was not a breach of any specific direction, rule or policy of the University, and was therefore not ‘misconduct’ …”. There was no rule or guideline published by the University which provided that in-class revision for examinations could not take the form of providing students with the very questions and answers that they would later be called upon to answer in the examination itself. There were many methods, so it was submitted, whereby revision could be undertaken. No authority was cited in support of any such constraint upon the natural and ordinary meaning of the words employed in cl 46.2 of the Agreement.
30 That conduct which may fall within the reach of cl 46.2 may be the subject of legitimate argument. Clearly enough, clauses 46.2 and 46.3 seek to draw a distinction between “misconduct” and “serious misconduct”. And even the term “misconduct” is confined by the fact that the “misconduct” must be both “wilful” and “unsatisfactory”. As in other contexts, what constitutes “misconduct” is to be informed by reference to the context in which the term is employed: cf. North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 per Smithers and Evatt JJ; Re La Trobe University; Ex parte Wild [1987] VR 447 at 458.
31 But there is no reason why the term “misconduct” should be confined to only that conduct which is contrary to or “in breach of any specific direction, rule or policy of the University”. Indeed, given the context in which cl 46.2 appears, the power conferred upon the Vice-Chancellor to establish a Committee to investigate allegations of “misconduct” and “serious misconduct” and the constitution of such a Committee, it may well be that what constitutes “misconduct” or “serious misconduct” is left – at least initially – to the deliberation and good judgment of those with experience in university affairs.
32 Although questions may arise as to the extent to which the accumulated expertise of an expert body can be relied upon as a substitute for evidence, that is not the issue presented for resolution in this case. What is in issue is the conclusion to be drawn from the facts presented – whether those facts can constitute “misconduct”. The expertise of the Committee established by the Vice-Chancellor can, within limits, be relied upon to properly characterise those facts. The manifest intention behind cl 46 of the Agreement is that the conduct in question be subject to the evaluation of those with knowledge of university affairs: cf. Minister for Health v Thomson (1985) 8 FCR 213 at 217 per Fox J. A committee is “entitled to bring to bear its own experience and expertise in reaching its conclusions”: Romeo v Asher (1991) 29 FCR 343 at 349 per Morling and Neaves JJ. See also: Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 569 per Hayne JA (as his Honour then was). In the context of a legal practitioner it has thus been concluded that “misconduct” means “conduct which other solicitors in good repute would regard as disgraceful or dishonourable”: Re a Solicitor [1960] VR 617 at 620 per Dean J. Even during the course of its proceedings, an expert member may utilise that expertise in questioning a party before it: Simjanoski v La Trobe University [2004] VSC 180 at [25]-[30] per Balmford J.
33 The experience and expertise of members of an administrative committee, it is concluded, can be brought to bear in its questioning of witnesses, in its deliberations and in interpreting the meaning and content of terms in use within its field of expertise. The content of the term “misconduct” is to be informed by those with knowledge of the standards to be maintained by university lecturers and is not confined to only that conduct which has been the subject of specific rules, directions or guidelines.
34 There is no reason why the definition in cl 46.2 should be confined by a constraint that “misconduct” only embrace that conduct which is contrary to some written rule or guideline. Whether facts fall within that term or not is left initially to the judgment of the Committee established by the Vice-Chancellor.
35 This second argument is also rejected.
A Failure to Provide Reasons – the Disciplinary Action Taken
36 The final argument advanced on behalf of Dr Soliman assumed that the first two arguments had been rejected and that his conduct fell within the definition of “misconduct” in cl 46.2.
37 Upon this assumption, the final argument was that the decision to demote Dr Soliman was a decision disproportionate to the “misconduct”. Submissions had been advanced before the Vice President regarding both the existence of “mitigating factors” and the “sanction” being “neither fair nor reasonable”. These submissions, it was said, had not been addressed by the Vice President in his reasons for decision.
38 The written “Outline of Submissions” provided to the Vice President emphasised from the outset what Dr Soliman regarded as the harshness of the decision taken by the Acting Vice-Chancellor. Those submissions thus identified the “Issues in dispute” as follows:
Issues in dispute
5. The issue before FWA is essentially whether the disciplinary decision to demote the applicant taken by the Acting Vice-Chancellor under the Agreement was the result of an appropriate operation of the Agreement. See, by analogy, Miller v University of New South Wales (2003) 132 FCR 174 at [73]. See also Soliman v University of Technology Sydney [2010] FWA 4324.
6. The applicant employee submits that the Agreement has been applied or operated so harshly, oppressively or unreasonably against him as to amount to an abuse: see North West County Council v Dunn [1971] HCA 34; (1971) 126 CLR 247 at 263; Victoria v Commonwealth [1995] HCA 45; (1995) 187 CLR 416 at 517.
7. There are three limbs to the applicant’s argument before FWA:
a. The misconduct said to have occurred was not ‘misconduct’ within the meaning of the Agreement.
b. Alternatively, if it is found that the applicant’s conduct was ‘misconduct’, there were mitigating factors that should have been taken into account, and if taken into account would properly (that is, fairly or reasonably) have led to a materially different result.
c. If it is found that the applicant’s conduct was misconduct, demotion was neither a fair nor reasonable response in the sense that the sanction was disproportionate to the act.
The written “Outline of Submissions” reverted to the perceived harshness of the decision taken by the Acting Vice-Chancellor later when those submissions continued in part as follows:
There were mitigating factors that should have been taken into account
30. If it is found that the above policies did provide a clear benchmark and that the applicant has fallen short of that benchmark, then the applicant submits that the University should have taken into account the mitigating circumstances. These include:
a. The absence of any clear University policy on the issue.
b. The permitted discretion allowed to academics in respect of assessment and revision.
c. The divergent assessment practices throughout the University and the existence of similar practices in other units.
d. The previous absence of any interference by the University in relation to assessment and revision practices.
e. That it was the first time Dr Soliman had been the Subject Coordinator, thereby having control over the method and assessment strategy for the course.
f. The lack of any communication or guidance provided to Dr Soliman by the School of Management in relation to the setting of exams and revision classes.
g. The conduct was the same in relation to all three classes, so that no student was disadvantaged against the other.
h. The applicant’s significant employment history and distinguished career (see Annexure A1 to Statement of Dr Soliman dated 7 September 2010) where no allegations of this type had been raised before.
The written submissions also continued on to state:
The sanction was neither fair nor reasonable
…
37. The following matters of relevance should have been given weight by the University.
The gravity of the conduct
38. The conduct, even as found by the Committee, did not involve acts of moral turpitude, stealing or deceit. …
39 It was also properly accepted by Junior Counsel for the University that the only reference made by the Vice President to the submissions advanced were the following:
Submissions
[24] Counsel for Dr Soliman submit that the issue in dispute is whether the Vice Chancellor’s decision to demote Dr Soliman was the result of appropriate operation of the Agreement. They submit that the terms of the Agreement have been applied harshly, unreasonably or oppressively.
[25] Counsel for Dr Soliman submit that there were a number of mitigating factors that the Vice Chancellor should have taken into account when determining the appropriate disciplinary action to be taken against Dr Soliman. These include, the absence of a clear policy, the differing assessment practices used throughout the University, that Dr Soliman was coordinating the subject for the first time and had limited guidance concerning setting examinations and revision classes, that the conduct was the same in each of the classes and no student was disadvantaged against other students and Dr Soliman’s employment history with the University.
…
[28] Counsel for Dr Soliman contend that the sanction imposed on Dr Soliman was disproportionate to the conduct and that Dr Soliman should be reinstated to his former position as Senior Lecturer with remuneration backdated to 15 January 2008.
But these statements were simply a restatement of the submissions. The only reference to the manner in which the submissions were resolved by the Vice President was again properly accepted by Junior Counsel for the University to be found in the following statements:
Conclusions
[31] This matter involves disciplinary action against a long serving academic over a most unfortunate incident concerning an examination in June 2007. Both the disciplinary action and the controversy concerning a breach of security over the examination are serious matters.
…
[43] In all of the circumstances I consider that the Committee was entitled to make the findings that it did and the Vice Chancellor was entitled to reach the conclusions on the misconduct and disciplinary action involved.
40 It is concluded that the final argument advanced on behalf of Dr Soliman should prevail. In reaching this conclusion, however, it is necessary to address a number of propositions.
41 First, and at its most fundamental level, there can be no doubting the proposition that Dr Soliman placed great significance upon his submissions that the decision taken by the Acting Vice-Chancellor was unduly harsh and disproportionate. Although there may be some doubt as to whether the Vice President adequately summarised these submissions in his reasons for decision, there can be no doubting the proposition that those reasons failed to resolve the submissions advanced. There was, for example, no finding of fact or reason which expressly addressed the submission that:
the sanction that was imposed was harsh and oppressive and sufficient to “amount to an abuse”. If the University sought to rely upon the conclusion at para [43], even that conclusion was defective in that it employed language more appropriate in a judicial review application than that which is appropriate in a case where the merits of the decision are being reviewed. To conclude that the Acting Vice-Chancellor was “entitled to reach the conclusions on the misconduct …”, really says nothing about whether or not the Vice President would also have made the same decision.
Moreover, the findings and reasons of the Vice President also fail (for example) to expressly address the submissions that:
there was “permitted discretion allowed to academics in respect of assessment and revision”; and
“… no student was disadvantaged against the other”.
Although there is no requirement that a decision-maker need refer to every piece of evidence and every submission which may be advanced for resolution, no conclusion (with respect) is open in the present proceeding other than that the Vice President failed to engage with and address the submissions advanced in respect to the perceived harshness of the sanction imposed.
42 Second, in the absence of an express statutory requirement there is no general common law duty to provide findings or reasons for an administrative decision: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. See: Akehurst, ‘Statements of Reasons for Judicial and Administrative Decisions’ (1970) 33 Modern Law Review 154
43 Third, notwithstanding the absence of an express statutory requirement to provide reasons, a requirement to do so may be implied in circumstances where (for example) there is a right of appeal or a right to seek judicial review: Osmond (supra) at 666-667 per Gibbs CJ. See: Campbell, ‘The duty to give reasons in administrative law’ [1994] Public Law 184. But where the “legal rights as between an employee are determined”, the decision in Osmond has been confined to “administrative decision-making and not to the exercise of judicial power”: Campbelltown City Council v Vegan [2006] NSWCA 284 at [109]-[110], 67 NSWLR 372 at 394-395 per Basten JA. Handley JA (with whom McColl JA agreed) there expressed a broader view, namely that there was an “implied duty to give proper reasons” where “there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts”: [2006] NSWCA 284 at [24], 67 NSWLR 372 at 377.
44 Fourth, where reasons have been voluntarily provided a court may look at the reasons which have been provided for the purpose of determining whether any grounds of review are available: Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 at [9] per Gray J. In East Melbourne Group Inc v Minister for Planning [2008] VSCA 217, 23 VR 605 at 661-662 Ashley and Redlich JJA have observed:
[228] In our view, reasons are no less important where an authority, though not under a statutory duty to provide reasons, provides reasons to explain the discretionary exercise of a statutory power. Where the authority gives reasons for its decision, the court may act upon them if they demonstrate an erroneous approach to an exercise of power. But like reasons given pursuant to a statutory obligation, reasons voluntarily provided should not be overzealously scrutinised.
45 Fifth, the extent of any such obligation to give reasons imposed upon the Australian Industrial Relations Commission has in any event been considered by a Full Court in Edwards v Giudice [1999] FCA 1836, 94 FCR 561. Edwards there applied to the Commission for relief in respect to what she regarded as the harsh, unjust or unreasonable termination of her services. A Commissioner ordered her reinstatement. A Full Bench granted leave to appeal and upheld the appeal. The Full Bench concluded that the Commissioner had failed to make findings as to whether Edwards had in fact engaged in the conduct relied upon to terminate her services. An application seeking orders (inter alia) quashing the decision of the Full Bench was dismissed. Moore J relevantly concluded:
[10] I should mention one further matter. While the Full Bench did not say so expressly, it appears to have proceeded on the basis that Commissioner Tolley had a duty to give reasons which addressed material issues of fact and law. It was correct in taking this approach. The powers exercised by the Commission in relation to an application under s 170CE in an arbitration involve the vindication of personal rights conferred by the [Workplace Relations Act 1996 (Cth)]. The proceedings result in inter partes orders: see s 170CI. As is apparent from the passage quoted from [Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 at 341-342), the exercise of those powers gives rise to quasi-judicial proceedings with a conditional right of appeal. An appeal is by leave. Though it was decided in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 that there is no general obligation to give reasons, there are many cases where the obligation does arise: see Fleming v The Queen (1998) 73 ALJR 1 at 7 [22]; 158 ALR 379 at 386 [22] and particularly when a right of appeal exists: see T v Medical Board (SA) (1992) 58 SASR 382; Re Saunders [1993] 2 Qd R 335 and Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729.
[11] A comparatively recent decision of the Court of Appeal, R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310, addressed whether the Civil Service Appeal Board of the United Kingdom was obliged to give reasons in relation to its consideration of penalty in a claim for unfair dismissal. Lord Donaldson said at 319: “Any other conclusion would reduce the board to the status of free-wheeling palm tree.” In my opinion the subject matter of the power to arbitrate under s 170CG, when taken together with the conditional right of appeal conferred by s 45 and the grounds of appeal in s 170JF, point to the conclusion that the Commission is, when determining an application under s 170CE by arbitration, obliged to give reasons for its decision which deal with the material legal and factual issues presented for determination and which deal with the matters the Commission must consider because of s 170CG(3) and the relevant provisions of s 170CH. The power conferred by s 45(6)(b) is, in my opinion, not directed to the provision of reasons by the primary decision-maker against whose decision or order an appeal is brought. That provision is intended to facilitate the hearing of an appeal where the Full Bench seeks to investigate itself issues that were not investigated or investigated fully at the original hearing.
Marshall J there similarly concluded:
[44] In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given.
[45] As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366:
“A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made.”
[46] The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant “special circumstance” in the context of the portion of the judgment of Gibbs CJ in Osmond. See Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734–5), and per Handley JA at 739.
[47] It should be noted that Full Benches of the Commission have thoroughly reviewed the obligation of Commission members to provide adequate reasons for decision on previous occasions and that their decisions accord with the views expressed above. See, for example, Re Astec Pty Ltd (1992) 45 IR 261 and Confectionery Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49 at 52. See also Dornan v Riordan (1990) 24 FCR 564, in the context of the obligation of the Pharmaceutical Benefits Remuneration Tribunal's duty to disclose its reasoning process, (at 568).
[48] Commissioner Tolley's reasons for decision did not disclose with any certainty an understanding of the reasoning process he applied. The Full Bench, in those circumstances, was entitled to reach the conclusion that the Commissioner was in error in deciding to make the order which flowed from his decision. Accordingly it is my opinion that the Full Bench made no error of law in granting leave to appeal and upholding the appeal. I agree with Moore J that the Full Bench was empowered to remit the matter to a Commissioner other than Commissioner Tolley pursuant to s 45(7)(c) of the Act.
That decision, it may be noted, says nothing expressly as to whether a failure to provide reasons constitutes jurisdictional error for the purposes of s 75(v) of the Commonwealth of Australia Constitution or s 39B of the Judiciary Act. Finkelstein J dissented. However, it is implicit from the judgments of the majority in Edwards that they considered that the decision of the Full Bench did not contain any relevant error, let alone jurisdictional error.
46 In the circumstances of the present proceeding, it is concluded that there was a requirement imposed upon the Vice President to provide reasons and findings in respect to his decision. That requirement is to be implied by reason of:
the fact that his decision affects the rights and livelihood of Dr Soliman;
the obligation on his part to comply with the common law requirements of procedural fairness;
the obligation on his part to act in a quasi-judicial manner;
the availability of a right of appeal from his decision, albeit subject to the grant of permission by the Full Bench; and
the availability of judicial review in respect to both his decision and that of the Full Bench.
The requirement to provide reasons also gives full effect to the majority decision of the Full Court in Edwards.
47 The consequence of there being a failure to provide findings and reasons where such a requirement or obligation exists, however, is less certain.
48 The submission advanced on behalf of Dr Soliman that the failure to provide findings and reasons constitutes either jurisdictional error or an error of law such that the decision of the Vice President should be set aside is rejected.
49 Even in a context where there is a statutory duty to provide reasons, a failure to provide reasons may not in itself be sufficient to warrant the decision being set aside: Repatriation Commission v O’Brien (1985) 155 CLR 422. Brennan J there observed in respect to the duty to provide reasons imposed by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
… It is not clear to me that the A.A.T. did fail to expose its reasons for rejecting Mr. O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: … An obligation to give oral or written reasons for a decision is cast on the A.A.T. by s. 43(2) of the A.A.T. Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so. An A.A.T. decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. In my opinion the reasons given by the A.A.T. in this case do not warrant an inference that it failed to review the Commission's decisions according to law. [(1985) 155 CLR at 445-446]
Subsequently, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, 216 CLR 212 when considering s 501G of the Migration Act, which imposed a requirement to give reasons, Gleeson CJ, Gummow and Heydon JJ concluded:
[46] … [F]ailure in the notification required by s 501G does not impeach the cancellation decision for jurisdictional error.
McHugh J similarly observed:
[55] The prosecutor contends that the Minister's failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority. Whether a scheme has that effect is determined by applying the principles stated by this Court in Project Blue Sky Inc v Australian Broadcasting Authority. In Project Blue Sky, the majority Justices rejected the traditional distinction between “mandatory” and “directory” requirements, saying that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. In determining the purpose of the legislation, regard has to be had to “the language of the relevant provision and the scope and object of the whole statute”. In this case, it is beyond argument that the Act did not intend that failure to comply with s 501G should invalidate the decision to cancel a visa. Section 501G(4) of the Act states that “[a] failure to comply with this section in relation to a decision does not affect the validity of the decision”.
See also: Seiffert v Prisoner’s Review Board [2011] WASCA 148 at [162]-[179] per Martin CJ. Nor may a failure to provide reasons be sufficient to warrant part of a decision being set aside.
50 A failure to comply with a statutory obligation to provide reasons may constitute an error of law but it does not follow that a failure to do so constitutes jurisdictional error sufficient to warrant setting a decision aside either in whole or in part: Kennedy v Australian Fisheries Management Authority [2009] FCA 1485, 182 FCR 411. See also: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 at [45]-[49], 179 FCR 554 at 562-563 per Bennett, Flick and McKerracher JJ; Sherlock v Lloyd [2008] VSC 450 per Kyrou J.
51 In circumstances such as the present, where there is no statutory requirement to provide either reasons or findings of fact, it would be difficult to conclude that a failure to do so constitutes jurisdictional error such as to warrant the decision of the Vice President being set aside. A similar reservation was expressed in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [21], 289 ALR 541 at 548 per Flick and Jagot JJ.
52 It would be equally difficult to conclude that an order in the nature of mandamus would be available. Mandamus “will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty”: Re Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513 at 515 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ. “[C]ritical to the assessment of whether an arguable case sufficient to warrant grant of an order nisi is made out … is the identification of some duty of a public nature which remains unperformed”: Re Reith; Ex parte Hollier (1998) 72 ALJR 1412 at 1414 per Hayne J. In the absence of any statutory requirement to provide reasons or to make findings of fact and in the absence of any common law “duty” to do so, it would be difficult to identify any “duty” which would attract the grant of the remedy.
53 But where findings of fact and reasons have been provided, and where those reasons fail to address a submission which has been advanced, it may found a conclusion that that submission has not been considered or addressed.
54 Such a conclusion may be available where there is a statutory requirement to provide findings and reasons. Thus, for example, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 a submission was advanced that a decision of the Refugee Review Tribunal should be set aside because the Tribunal had failed to provide adequate reasons. Section 430(1) of the Migration Act 1958 (Cth) required the Tribunal to prepare a written statement setting out “the reasons for the decision” and “the findings on any material questions of fact”. Although it was concluded that s 430 did not require the Tribunal to make findings on every question of fact which it may be considered were material ([2001] HCA 30 at [8]-[10], 206 CLR 323 at 331-332 per Gleeson CJ), McHugh, Gummow and Hayne JJ observed:
[69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material … This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error … The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration …
What is of present relevance is the proposition that a failure to mention a particular matter may support a conclusion that that matter was not in fact considered. A failure to include a matter in a statement of reasons provided pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) may similarly justify an inference being drawn that that matter was not taken into account: Sullivan v Department of Transport (1978) 20 ALR 323 at 349 per Deane J, 352-353 per Fisher J; Alexander v Australian Community Pharmacy Authority [2010] FCA 189 at [56], 265 ALR 424 at 435 per Bromberg J. See also: Electronic Industries Ltd v The Mayor, Councillors and Citizens of the City of Oakleigh [1973] VR 177 at 188-189 per Gowans J. But the “mere fact that not every issue was addressed in the statement of reasons or in the departmental advice contained in departmental briefs does not prove that the material was not considered by the Minister”: Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 399 at [123], 167 FCR 463 at 492 per North J. See also: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [96] per Cowdroy J.
55 Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error: cf. WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319. Lee, Carr and Tamberlin JJ there concluded:
[21] However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].
56 In the present proceeding it is concluded that the failure to refer to the submissions relating to mitigating circumstances and the reasonableness of the decision of the Acting Vice-Chancellor is properly to be characterised as a failure on the part of the Vice President to resolve, in accordance with law, the application that had been made.
57 Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case. Two factors, in particular, dictate the conclusion that the reasons of the Vice President fail to give any real consideration to the submissions advanced on behalf of Dr Soliman as to mitigating circumstances, namely:
the fact that the findings and reasons provided were written by an experienced, senior member of Fair Work Australia with legal qualifications and a person who had the considerable benefit of written submissions filed by experienced legal practitioners: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [36], 290 ALR 326 at 337; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37] per Lander, Flick and Jagot JJ;
and, irrespective of any consideration being given to the qualifications and experience of the person who prepared those findings and reasons:
the fact that any reading of the findings and reasons of the Vice President disclose no real attempt to engage with the submissions being advanced on behalf of Dr Soliman.
The submissions advanced on behalf of Dr Soliman as to mitigating circumstances were not considered by the Vice President. The decision of the Full Bench gives no greater consideration to those submissions. Both the decision of the Vice President and the decision of the Full Bench, it is concluded, should be quashed.
Conclusions
58 The first two Grounds, as reformulated during the course of the hearing of the Application in this Court, should be rejected.
59 The failure to address the submissions regarding mitigating circumstances and the reasonableness of the decision of the Acting Vice-Chancellor, however, does constitute jurisdictional error. But that error does not emerge from any failure to provide reasons and no relief in the nature of mandamus would be available compelling the Vice President to now provide reasons going to the issues identified.
60 The appropriate order to be made is an order that the parties bring in Short Minutes of Orders to give effect to these reasons.
61 It is contemplated that those Short Minutes should include an order remitting the application to Fair Work Australia. There is no reason why an order should be made that Dr Soliman’s application for a dispute resolution process to be conducted should not be remitted to the Vice President whose decision was under challenge.
The Order of the Court is:
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons on or before 7 November 2012.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, North and Flick. |
Associate:
