FEDERAL COURT OF AUSTRALIA

Milam v University of Melbourne [2019] FCA 171

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide minutes of orders to give effect to these reasons by no later than 2 pm on 22 February 2019.

2.    If agreement cannot be reached concerning the terms of the orders the application will be listed for further hearing on 25 February 2019 at 10:15 am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The Applicant is a Professor and Head of School in the Faculty of Arts at the Respondent, the University of Melbourne. In this proceeding the Applicant alleges that the Respondent breached certain obligations owing to her under the University of Melbourne Enterprise Agreement 2013 and consequently s 50 of the Fair Work Act 2009 (Cth). The Applicant’s claims arise out of a preliminary investigation by the Respondent in connection with certain behaviour the Respondent alleges constitutes misconduct or serious misconduct on the part of the Applicant within the meaning of Part I of the Enterprise Agreement.

Background

2    The Applicant was appointed by the Respondent in December 2017 and commenced her four year term in January 2018. The Faculty of Arts has four Heads of School and a Director of the Asia institute, who are collectively responsible for its management. In the course of 2018 the Applicant raised concerns about certain governance matters in the Faculty. It is unnecessary at this stage for me to form any view as to the veracity or otherwise of those concerns.

3    In August 2018 the Respondent, through its solicitors Corrs Chambers Westgarth, engaged Mr Brian Lacy AO to conduct a preliminary inquiry into matters concerning the interaction between certain senior academic staff of the Faculty..

4    The course of the preliminary inquiry is not presently relevant. It is sufficient for present purposes to note that on 31 January 2019 it culminated in the Respondent making a statement of preliminary allegations of misconduct and in the suspension of the Applicant on full pay pending further investigation of the preliminary allegations. The further investigation is to be conducted by another external investigator, Ms Jacqueline Parker of Gapacity Pty Ltd.

5    The terms of the suspension and the preliminary allegations are contained in a letter from the Respondent dated 31 January 2019. This letter provided that:

“During your suspension, you will not be required to perform the Head of School role… Where required, you may attend the University for the sole purpose of preparing for, and delivering, scheduled teaching activities. In all other circumstance [sic] you are requested not to attend any University workplace unless requested or authorised by me. You may, however, continue research work and other scholarly activities that do not require attendance at the workplace…”

6    Before the Court is an application, on an urgent basis, for interlocutory orders restraining the Respondent from giving effect to, or taking any further step in furtherance of the findings of Mr Lacy AO’s inquiry, including the suspension of the Applicant.

Principles

7    The principles which guide the granting of an injunction are helpfully set out in the Respondent’s outline of submissions. It is convenient to reproduce those submissions (omitting footnotes):

“The principles are well known. They were neatly summarised by Collier J in United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd.

In Australian Broadcasting Corporation v O’Neill, the High Court explained principles relevant to the grant of interlocutory relief. In particular,

1.    There must be a serious question to be tried as to the applicant’s entitlement to relief; and

2.    The applicant is likely to suffer injury for which damages will not be an adequate remedy; and

3.    The balance of convenience favours the granting of an interlocutory injunction.

(Gleeson CJ and Crennan J at [19].)

As Gummow and Hayne JJ further explained, in order for an applicant for interlocutory relief to demonstrate that there is a “serious question to be tried”:

1.1     It is sufficient that the applicant show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: at [65].

1.2    The applicant need not demonstrate more than a 50% chance of ultimate success: at [68].

1.3    In that light the issue may be understood as whether the applicant has made out a prima facie case for relief: at [65], [70].

1.4    Whether the applicant shows a sufficient likelihood of success depends on the:

1.4.1     nature of the rights asserted; and

1.4.2    practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application: at [72].

A more detailed account can be found in the Full Court decision in Samsung Electronics Co Limited v Apple Inc. There, the court said:

As Sundberg J observed in Sigma Pharmaceuticals (Aust) Pty Ltd v Wyeth (2009) 81 IPR 339; [2009] FCA 595 at [15] (Sigma Pharmaceuticals), when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 (Tidy Tea) at [416] per Burchett J; Aktiebolaget Hassle v Biochemie Australia Pty Ltd (2003) 57 IPR 1; [2003] FCA 496 at [31] per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325; [2005] FCA 1218 at [18] per Stone J; and Castlemaine Tooheys at CLR 154; ALR 558 per Mason ACJ.”

8    The submissions on behalf of the Applicant did not take issue with the statement of general principles referred to above. The Applicant added only that these principles also apply to relief under s 545(2)(a) of the Act, referring to what Barker J at [17] said in ABCC v CFMEU (2009) 189 IR 37:

“To win an interlocutory injunction under the general law, it is well understood that the applicant needs to establish a serious case to go to trial and address the question of where the balance of convenience or justice lies in the circumstances of the case. I consider these factors are also relevant to the grant of a statutory interim injunction under the Act. Under the general law, the adequacy of a remedy in damages if an injunction is not granted, is also taken into account, where rights may be interfered with.”

The Applicant’s claims

9    The Applicant’s claims are founded on breaches of Part I of The University of Melbourne Enterprise Agreement 2013. It is common ground that the Enterprise Agreement applies to the matters in dispute between the Applicant and the Respondent. The Enterprise Agreement, relevantly for present purposes, provides:

“Part I Misconduct

61.     MISCONDUCT AND SERIOUS MISCONDUCT

Application

61.1     The procedures set out in this Part will apply where there is alleged or actual misconduct or serious misconduct.

61.2     This Part does not apply to casual staff members.

Definitions

61.3     ‘Allegations’ refers to all the allegations which have led to the determination of misconduct or serious misconduct.

61.4     Disciplinary action means action by the University to discipline a staff member and is limited to:

(a)     formal censure, warning or counselling;

(b)     withholding of an increment for up to one year;

(c)     demotion to a lower classification or increment and/or transfer to another position;

(d)     suspension with pay; or

(e)     termination of employment, provided it may only occur in the case of serious misconduct.

61.5     Fair treatment in relation to the treatment afforded to a staff member means that:

(a)     the staff member has been advised of the allegations made against her or him, including relevant facts, reasoning and documentation;

(b)     the staff member has been given a reasonable opportunity to respond to the allegations, to produce relevant evidence, to have relevant persons interviewed and to make written submissions in relation to all allegations and to comment on any disciplinary action recommended;

(c)     findings made against the staff member are made on the basis of a reasonable assessment of the evidence; and

(d)     any disciplinary action is proportionate to the staff member’s alleged conduct.

Misconduct means:

(a)     negligence in the performance of the duties of the position held; or

(b)     misbehaviour (which will include favouritism); or

(c)     conduct in breach of the staff member’s contract or the University’s policies, regulation or procedures that does not constitute serious misconduct.

6.17     Serious misconduct means:

(a)     serious misbehaviour of a kind (or conviction by Court) 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)     serious dereliction of the duties required of the position.

(c)     examples of conduct which may constitute serious misconduct are:

(i)     theft;

(ii)     fraud;

(iii)     assault;

(iv)     serious or repeated bullying or harassment, including sexual harassment;

(v)     persistent or repeated instances of misconduct;

(vi)     acceptance of payment or other forms of inducement to vary the result of a student; and

(vii)     wilful and gross breach of the staff member’s contract, the University’s policies or regulations, such that it would be unreasonable to continue the staff member’s employment.

…

Allegations of Misconduct or Serious Misconduct

61.9     Persons or staff are required to promptly bring any allegations of Misconduct or Serious Misconduct to the attention of their Head of Department (or an appropriate alternative) of the University.

61.10     Where a Head of Department receives a complaint or otherwise forms a view that a staff member’s actions may constitute Misconduct or Serious Misconduct, he or she should report the matter to the Head of Budget Division.

…

61.14     Any investigation conducted under this clause will afford Fair Treatment to the person or persons being investigated.

…

Suspension after allegation of Serious Misconduct

61.18     Where serious misconduct is alleged, the Executive Director (Human Resources) or the Provost in consultation with the Executive Director (Human Resources) may suspend the staff member. Such suspension will be on full pay.

61.19     Written notification of suspension, including the grounds for suspension and requirements relating to access to the workplace, systems and facilities will be given to the staff member within two (2) working days of the suspension. During any period of suspension the staff member may be excluded from the University and denied access to University systems and facilities, provided that s/he will be permitted reasonable access to the University, where necessary, for the preparation of his or her case and to collect personal property.”

10    The contraventions of the Enterprise Agreement relied upon by the Applicant are conveniently summarised in paragraph 5 of the Respondent’s Submissions:

“5    The alleged contraventions seem to be identified in the Statement of Claim at:

(a)    [40]-[41] - failure to follow the Part 1 process;

(b)    [43]-[47] - failure to afford “Fair Treatment” by reason of alleged misleading statements about the role of the Lacy Inquiry;

(c)    [50]-[51] - failure to afford “Fair Treatment” by failing to provide adequate particulars of the allegations;

(d)    [54]-[56] - suspending Prof Milam in circumstances where there is no allegation of “Serious Misconduct”;

(e)    [59]-[61] - the suspension is disproportionate to the alleged conduct; and

(f)    [63]-[66] - initiating a partial suspension which is not permitted by the 2013 Agreement.”

11    The Applicant has filed and served an Amended Statement of Claim which adds a further particular of breach, namely that the Respondent by its letter of 31 January 2019 failed to provide grounds for suspension as required by clause 61.19.

12    It is not necessary to separately consider each of the alleged breaches of the Enterprise Agreement. For present purposes, it is sufficient to refer to two of the grounds relied upon by the Applicant, which in my opinion each raise a serious question to be tried.

13    The first concerns the question of whether the anterior factual investigation conducted by Mr Lacy AO enlivens the process governed by Part I of the Enterprise Agreement. The Respondent contended that, far from avoiding its obligations under Part I, it was intent on complying with those obligations; and to that end engaged Mr Lacy AO to conduct a fact finding investigation necessary to properly frame any allegations with the requisite particularity.

“One can only reach a sufficient level of certainty as to the allegations that are made if one conducts inquiries sufficient to enable those allegations to be made. It is that step, and only that step, which was the subject of the Lacy Inquiry.”

14    There may be force in this argument for the reasons advanced by the Respondent, namely, that the Enterprise Agreement should be construed in its context to allow the process in Part I to be given practical operation. Notwithstanding this submission, in my view, there is sufficient doubt about the question of whether Part I applies to the anterior inquiry by Mr Lacy AO to conclude that there is a serious question to be tried. I am fortified in that conclusion by the allegations made by the Applicant to the effect that in the course of Mr Lacy AO’s inquiry statements were made by the University which were misleading as to the purpose of the inquiry so far as her conduct was concerned ([43] – [47] of the Statement of Claim). This issue turns on, among other things, disputed facts. In my view it also raises a separate serious question to be tried.

15    The second issue which in my view raises a serious question to be tried concerns the proper construction of “misconduct” and, in particular, “serious misconduct” as defined in the Enterprise Agreement. One aspect of the question is whether there is a rational basis to conclude that the preliminary allegations made against the Applicant are capable of amounting to serious misconduct. This question in turn raises the question of whether the Respondent is empowered to suspend the Applicant pursuant to clause 61.18 of the Enterprise Agreement.

16    For these reasons I have concluded that the Applicant has established a serious question or questions to be tried.

Balance of Convenience

17    In my opinion, the balance of convenience clearly lies in favour of granting interlocutory relief. The Respondent relied on an affidavit of Dr Eastoe, the Executive Director of Human Resources at The University of Melbourne. In paragraphs 20 and 21 of her affidavit, Dr Eastoe explains that her decision to suspend the Applicant was not a disciplinary action and was largely informed by concerns that two senior employees had experienced harm resulting from the Applicant’s “repeated behaviours”. I do not think it is necessary to repeat the names of the two senior employees concerned. It is sufficient to note that in the case of each of them, I am satisfied that the risk of harm has been mitigated. Dr Eastoe explains that one of the employees is now in an alternative role “where she will not be required to come into contact with Professor Milam” (Dr Eastoe [23]). As to the other, the Applicant has explained in her second affidavit of 12 February 2019 the reasons why she is unlikely to have regular interaction with the employee concerned.

18    On the material before me, I have no reason to doubt that Dr Eastoe has a bona fide apprehension concerning the risk of harm to the two senior employees if they were required to interact with the Applicant. However, having regard to the evidence referred to above, in my view the risk of harm is low and may be further averted by other measures to which I shall refer to below.

19    On the other hand, the risk of harm to the Applicant not readily compensable by damages to the Applicant is potentially significant. The Applicant has explained that if she is precluded from attending the Respondent’s premises for the purposes of carrying out her research and other duties, this is likely to substantially impede, if not render impossible, her ability to continue leading a bid through the Australian Research Council to establish a new Centre of Excellence. The Applicant has been leading this bid process since 2013. The Centre of Excellence bid entails a multi-institutional application for grants of funding over seven years, comprising $35 million of government money and a further estimated $30 million in cash and kind contributions from partner institutions in Australia, the United Kingdom and the United States of America. I accept for present purposes that the Applicant’s ability to advance this work to a potentially successful conclusion is at serious risk of being undermined if the suspension and related limitations upon her attendance at the University were to continue.

20    Further, in my opinion, the Applicant is very likely to suffer significant harm to her reputation if her suspension is continued. In my view, such harm is not readily compensable by an award of damages.

21    I also accept for present purposes the Applicant’s evidence of the harm to her health as a result of the investigation.

22    Conversely, if the Respondent is successful at trial, it may re-enliven the further inquiry to be conducted by Gapacity.

Disposition

23    This application came on for hearing urgently on 12 February 2019. In the circumstances, there was not adequate time to hear submissions from the Respondent concerning the terms of the proposed interlocutory orders handed up at the hearing by the Applicant. Accordingly, I direct that the parties confer with a view to providing agreed Minutes of Orders reflecting these reasons. On the question of potential harm to the two senior employees referred to in Dr Eastoe’s affidavit, I invite the Respondent to consider what, if any, conditions might be included in the orders to further minimise the risk of harm to those employees, should this be considered necessary. Alternatively, if further protective conditions are required, it may be sufficient to include them in a separate agreement with the Applicant, but that is a matter for the parties

24    I direct that the parties provide minutes of orders by no later than 2 pm on 22 February 2019.

25    If agreement cannot be reached concerning the terms of the orders the application will be listed for further hearing on 25 February 2019 at 10.15 am.

Associate:

Dated:    19 February 2019