FEDERAL COURT OF AUSTRALIA
Soliman v University of Technology, Sydney (No. 2) [2009] FCAFC 173
University of Technology, Sydney, Act 1989 (NSW) ss 4 and 5
Workplace Relations Act 1996 (Cth) ss 328, 333(c), 340(2), 342(1), 347(1), 347(5), 349, 351, and 418
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) s 2(1) and Schedules 1, 3, 8 and 17
Workplace Relations Regulations 2006 (Cth) Reg 8.13)
Byrne v Australian Airlines Limited (1995) 185 CLR 410
Ansett Transport Industries (Operations) Proprietary Limited v Wardley (1980) 142 CLR 237
Quickenden v O’Connor (2001) 109 FCR 243
Shop Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51
Bruce v Cole (1998) 45 NSWLR 163
Grindley v Barker (1798) 1 B&P 229; 126 ER 875
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
FAWZY IBRAHIM SOLIMAN v UNIVERSITY OF TECHNOLOGY, SYDNEY
NSD 1705 of 2008
GRAHAM, LOGAN AND FLICK JJ
7 DECEMBER 2009
SYDNEY
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
|
FAIR WORK DIVISION |
NSD 1705 of 2008 |
|
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
|
FAWZY IBRAHIM SOLIMAN Appellant
|
|
|
AND: |
UNIVERSITY OF TECHNOLOGY, SYDNEY Respondent
|
|
JUDGES: |
|
|
DATE OF ORDER: |
7 DECEMBER 2009 |
|
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
|
FAIR WORK DIVISION |
NSD 1705 of 2008 |
|
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
|
BETWEEN: |
FAWZY IBRAHIM SOLIMAN Appellant
|
|
AND: |
UNIVERSITY OF TECHNOLOGY, SYDNEY Respondent
|
|
JUDGES: |
GRAHAM, LOGAN AND FLICK JJ |
|
DATE: |
7 DECEMBER 2009 |
|
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
the court:
1 This case concerns the demotion of an academic by one classification level from Step 6 Level C to Step 6 Level B.
Background
2 By s 4 of the University of Technology, Sydney, Act 1989 (NSW) a University was established consisting of:
(a) a Council,
(b) Convocation,
(c) the professors and full-time members of the academic staff of the University and such other members or classes of members of the staff of the University as the by-laws may prescribe, and
(d) the graduates and students of the University.
3 Section 5 of the University of Technology, Sydney, Act provided for the University to be a body corporate under the name of the University of Technology, Sydney.
4 In or about February 1990 the appellant entered into a contract of employment with the University under which he was appointed as a lecturer in the School of Business and Public Administration. The applicable salary was that of a ‘step 7 Lecturer’.
5 Under paragraph (e) of the contract of employment the appellant’s appointment was expressed to be subject to and governed by the relevant provisions (as in force from time to time) of:
‘(i) The University of Technology, Sydney, Act 1987.
(ii) The University of Technology, Sydney, By-Law.
(iii) Conditions of Employment determined by the University under the above Act.
(iv) The Australian Universities Academic Staff (Salaries) Award 1987.
(v) The Australian Universities Academic Staff (Conditions of Employment) Award 1987.
…’
6 Paragraph (g) of the contract of employment provided:
‘(g) No one other than the Vice-Chancellor or Deputy Vice-Chancellor is authorised by the University to establish or vary the conditions of this employment.
…’
7 Following the amendments to the Workplace Relations Act 1996 (Cth) (‘the Act’) effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) which, relevantly for present purposes, commenced on 27 March 2006, a new Part 8 was inserted that contained a number of provisions dealing with workplace agreements. Division 2 of Part 8 was entitled ‘Types of workplace agreements’. In ss 326-331 provision was made, at that time, for a variety of forms of workplace agreements including Australian Workplace Agreement or AWAs, employee collective agreements, union collective agreements, union greenfields agreements, employer greenfields agreements and multiple-business agreements.
8 Section 328 of the Act relevantly provided in respect of union collective agreements:
‘328 An employer may make an agreement … in writing with one or more organisations of employees if, when the agreement is made, each organisation:
(a) has at least one member whose employment in a single business (or part of a single business) of the employer will be subject to the agreement; and
(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.’
9 Under s 333(c) a union collective agreement was ‘made’ at the time when the employer and the organisation or organisations agreed to the terms of the agreement and under s 347(1) of the Act, as it then was, a workplace agreement came into operation on the day the agreement was ‘lodged’ with the Employment Advocate. Under s 342(1) of the Act an employer was required to lodge a union collective agreement that had been ‘approved’ in accordance with s 340 of the Act, within 14 days after the approval.
10 The process for approval of a union collective agreement was set out in s 340(2) of the Act. Section 340(2) relevantly provided:
‘340(2) [A] … union collective agreement is approved if:
(a) the employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement; and
(b) either:
(i) if the decision is made by a vote–a majority of those persons who cast a valid vote decide that they want to approve the agreement; or
(ii) otherwise–a majority of those persons decide that they want to approve the agreement’
11 Section 418 of the Act provided for the making of regulations in relation to, amongst other things, the signing of workplace agreements by persons bound by those agreements, or representatives of those persons. Regulation 8.13 of the Workplace Relations Regulations 2006 (Cth) (‘the Regulations’) relevantly provided:
‘8.13(1) For paragraph 418 (e) of the Act, an employer must obtain the signatures of:
(a) for all workplace agreements–the employer … in relation to the agreement; and
(b) in addition to paragraph (a):
…
(ii) if the workplace agreement is a union collective agreement–the organisation or organisations of employees with which the employer made the agreement; …
…
(2) For subregulation (1), a signature to the workplace agreement must be accompanied by:
(a) the full name and address of each person signing the workplace agreement in accordance with subregulation (1); and
(b) an explanation of the person’s authority to sign the workplace agreement.
…
(5) The validity of a workplace agreement is not affected by a failure to comply with subregulations (1) and (2).’
The University of Technology, Sydney Academic Staff Agreement 2006
12 In 2006 a union collective agreement entitled ‘University of Technology, Sydney Academic Staff Agreement 2006’(‘the agreement’) was made, approved, lodged with the Employment Advocate and came into operation on the day of lodgement. The agreement was expressed to continue in operation until 30 June 2009 (but see s 347(5) of the Act and s 2(1) and Schedules 1, 3, 8 and 17 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) in relation to its operation beyond 30 June 2009).
13 Clause 5 of the agreement provided under the heading ‘RELATIONSHIP WITH AWARDS AND CERTIFIED AGREEMENTS’:
‘5.1 This Agreement constitutes a closed agreement between the parties and comprehensively regulates the relationship between the University and those staff whose employment is subject to the Agreement.
5.2 This Agreement is a Union Collective Workplace Agreement pursuant to Section 328 of the Workplace Relations Act 1996 (as amended) and rescinds and replaces the University of Technology Sydney Enterprise Agreement (Academic Staff) 2004. To remove any uncertainty, this Agreement wholly displaces and operates to the exclusion of all awards and other agreements that would otherwise apply to staff whose employment is regulated by the provisions of this Agreement.
5.3 Unless provided for by this Agreement, Protected Award Conditions (as defined under section 354 of the Act) including:
(a) rest breaks
(b) incentive-based payments and bonuses
(c) annual leave loadings
(d) observance of days declared by or under a law of the State of NSW to be observed generally within NSW as public holidays by workers in NSW and entitlements of staff to payment in respect of those days
(e) days to be substituted for, or a procedure for substituting days referred to in paragraph (d)
(f) monetary allowances for:
i. expenses incurred in the course of employment; or
ii. responsibilities or skills that are not taken into account in rates of pay for staff; or
iii. disabilities associated with the performance of particular tasks or work in particular conditions or locations
(g) loadings for working overtime or for shift work
(h) penalty rates
(i) outworker conditions
(j) any other matter specified in the Workplace Relations Regulations (Commonwealth) as varied from time to time
are expressly excluded by this Agreement.
5.4 Nothing in this Agreement shall be taken as incorporating as a term of this Agreement, any policy, procedure or guideline referred to in this Agreement. If there is any inconsistency between a policy, procedure or guideline and the express terms of this Agreement, the express terms of this Agreement prevail.’
The distinction between a contract of employment and a union collective agreement
14 The prevailing system of industrial regulation has from time to time allowed for individual contracts of employment between a given employer and a given employee to be underpinned in a variety of ways. Firstly, there have been industrial awards, then there may have been pre-reform certified agreements and, until 1 July 2009, workplace agreements.
15 The underpinning regime, as we have described it, does not require that the rights and obligations for which it provides become contractual rights and obligations.
16 Under s 349 of the Act an award had no effect in relation to an employee while a workplace agreement operated in relation to the employee.
17 By virtue of s 351 of the Act a union collective agreement that is in operation binds the relevant employer, in this case the University of Technology, Sydney, the organisation or organisations of employees with which the relevant employer made the agreement, in this case the National Tertiary Education Industry Union, and all persons whose employment is subject to the agreement.
18 The relevant statutory underpinning for a union collective agreement is to be found in s 351 of the Act.
19 In dealing with a situation where there was an award underpinning an individual contract of employment Brennan CJ, Dawson and Toohey JJ said in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 421:
‘In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, … the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations. …’
(footnote omitted)
20 Earlier, their Honours explained at 420:
‘A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True, the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement.’
(footnote omitted)
21 To like effect, Wilson J said in Ansett Transport Industries (Operations) Proprietary Limited v Wardley (1980) 142 CLR 237 at 287 – 8:
‘… It will be seldom … that an award will lend itself to the “covering the field” test of inconsistency on the subject of the contract of employment. Few, if any, awards reflect an intention to express completely, exhaustively or exclusively the law governing that contract between the parties. It will generally be a case of specific provisions which will, of course, have the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment with which they are inconsistent. In Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden’s Pty. Ltd. Walters and Wells JJ., in a passage with which I respectfully agree, discuss the relationship of an award to the common law and to statute law and refer with approval to the following passage from Webb: Industrial Relations and the Contract of Employment (1974), p. 21:
“The significance of the common law can be recognised if contracts of employment are seen to be stratified. First there is a foundation strata being the common law. Superimposed on this are State Acts, regulations and State industrial determinations; in places such State law cuts through and replaces the common law foundational strata. Above this again are Commonwealth Acts, regulations and awards of the Arbitration Commission. Federal law cuts through State law in places, sometimes at the point where State law has already cut through common law, sometimes direct into common law.”
Their Honours also refer, inter alia, to the remarks of Latham C.J. in Amalgamated Collieries of W.A. Ltd. v. True.’
(footnotes omitted)
22 In relation to a pre-reform certified agreement serving as an underpinning instrument, such a situation was considered by a Full Court of this Court in Quickenden v O’Connor (2001) 109 FCR 243. At [69] Black CJ and French J, as his Honour then was, said:
‘The broad brush complaint that common law contractual rights were displaced by the certified agreement faced another threshold issue. For while the agreement bound Dr Quickenden by force of law, it did not thereby terminate his contract of employment. It created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them. There is nothing in the agreement however which expressly sets aside or displaces the terms of existing or common law rights generally. The agreement itself is not, on the face of it, and is not expressed to be, exhaustive of the rights and duties of those bound by it. If anything it focuses upon the rights of employees, rather than their obligations.’
23 In his reasons for judgment Carr J said at [131]:
‘… As the High Court of Australia explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420 – 421 an award imposes certain statutory terms and conditions which do not necessarily displace underlying common law contractual relations. If they conflict, the award or certified agreement may modify the contractual provisions, but otherwise they continue to co-exist. Byrne involved an award, but there does not seem to be any relevant distinction, for present purposes, between an award and a certified agreement. …’
(See per Graham J in Shop Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 at [24]-[25] and [29]-[35].)
24 The same principles are applicable to the relationship between a common law contract of employment and a union collective agreement under the Act.
The allegations against the appellant and the ensuing disciplinary action
25 By an anonymous email dated 11 June 2007 addressed to four named ‘UTS Executices’ including the head of the School of Management, an unidentified student undertaking the subject ‘21630 Global Strategic Management’ made allegations in relation to academic misconduct directed at the appellant who was the appointed Subject Co-ordinator and sole lecturer/tutor of the subject.
26 On 3 August 2007 the Vice-Chancellor, Professor R. Milbourne, notified the appellant, then a senior lecturer in the School of Management, Faculty of Business, that he had determined that further investigation of the allegations was warranted. For present purposes the detail of the allegations is unimportant.
27 On 6 December 2007 Commissioner P.A. Lawson of the Australian Industrial Relations Commission sent a letter to Professor Milbourne under the heading ‘RE: Allegations of misconduct/serious misconduct against Dr. F. Soliman, Faculty of Business’ which relevantly provided:
‘You will recall that in September 2007 you constituted a Misconduct Investigation Committee in relation to allegations of misconduct/serious misconduct against Dr Soliman arising from matters referred to you by Prof. Lynch in June 2007.
The Committee’s membership was made up of Ms B Olliffe, Associate Dean, Faculty of Law; Mr P. Healy, Senior Lecturer, Faculty of Design, Architecture and Building; and the writer as the Chair of the Committee. …
I regret that finalisation of the report has been delayed due in part to work and leave commitments of the Members, and to some extent by some irreconcilable differences between the views of the Majority of the Committee and its other Member.
I forward herewith the report of the Majority of the Committee and Minority Report for your consideration.
…’
28 The relevant report occupied some 18 pages numbered 1-15 and (i)-(iii). Both parts of the report bore the primary heading:
‘UNIVERSITY OF TECHNOLOGY SYDNEY
REPORT OF MISCONDUCT INVESTIGATION COMMITTEE’
The first part of the report comprising pages 1 – 15 had the additional heading ‘Majority Report’ and the other part comprising pages (i)-(iii) was headed ‘Minority Report by Mr Patrick Healy’. Both parts of the report were dated 5 December 2007. That part of the report described as ‘Minority Report by Mr Patrick Healy’ commenced with a paragraph as follows:
‘1. I agree with and support paragraphs [1] to [63], and paragraph [78] of the Majority Report.’
29 The Minority Report by Mr Patrick Healy included 19 other paragraphs numbered [2]-[20]. Paragraph 20 purported to draw conclusions in relation to eight out of the nine allegations which had been made in respect of the appellant, contending that certain of the allegations were ‘not misconduct as defined in subclause 46.2 of the Agreement’, that others were ‘not serious misconduct as defined in subclause 46.3 of the Agreement’ and that these allegations ‘would constitute misconduct but have not been established’.
30 The Majority Report of Commissioner P A Lawson and Ms Olliffe contained 83 separate paragraphs under the headings ‘INTRODUCTION’, ‘BACKGROUND’, ‘THE FORMAL ALLEGATIONS’, ‘DR SOLIMAN’S RESPONSE’, ‘SWORN STATEMENT BY DR SOLIMAN TO THE COMMITTEE, DATED 10 OCTOBER 2007’, ‘COMMITTEE PROCEEDINGS/WITNESS EVIDENCE – 10 OCTOBER 2007’, ‘ADDITIONAL EVIDENCE – 10 OCTOBER 2007’, ‘COMMITTEE PROCEEDINGS – 11 OCTOBER 2007’, ‘CONSIDERATION AND CONCLUSIONS’. Under certain of these headings the Majority Report also contained a series of subheadings.
31 For present purposes the content of the report and the components thereof, being the ‘Majority Report’ and the ‘Minority Report by Mr Patrick Healy’, are unimportant.
32 On 13 December 2007, Professor Milbourne, as Vice-Chancellor, wrote to the appellant in relation to the outcome of the investigation into the allegations of misconduct against him. He noted the receipt of ‘the Reports arising out of the investigation’ and indicated that he had attached a copy of them for the appellant’s information. It would appear that the attached reports were omitted from the letter. In a letter dated 4 January 2008 from the appellant to the then Acting Vice-Chancellor, Professor Booth, the appellant wrote:
‘It appears that you have not received my letter dated 24th of December 2007 due to the Christmas holiday period. I did not find any of the attached reports enclosed with the Vice-Chancellor letter dated the 13th of December 2007. I then contacted Mr Mark Dolahenty who was kind to contact the university to obtain a faxed copy of the report on the 17th of December 2007. I obtained a copy of the reports from Mr Dolahenty soon after. I was also told that the HRU staff informed Mr Dolahenty that the 5 days period from the 13th of December 2007 has been extended.’
33 In Professor Milbourne’s letter of 13 December 2007 he advised that he had given the ‘Reports’ careful consideration. He said:
‘Before deciding to take disciplinary action, in accordance with sub-clause
46.10(a) I invite you to advise me in writing within five working days of the date of this letter, of any matters that you may wish me to take into account at the time a decision is (sic) as to disciplinary action is considered. Having regard to those matters, I will then advise you of my decision and the date of effect of any disciplinary action to be taken.’
34 As it transpires Professor Milbourne took an extended Christmas break which necessitated the appointment of an Acting Vice-Chancellor for the period 2 – 21 January 2008 inclusive. By a memorandum dated 17 December 2007 Professor Milbourne as Vice-Chancellor appointed Professor Peter Booth, the Senior Deputy Vice-Chancellor as Acting Vice-Chancellor for the period 2 – 21 January 2008.
35 In an affidavit sworn 29 May 2008 Professor Booth deposed to having had a meeting with Professor Milbourne on 24 December 2007. He said:
‘16. … I had to be fully briefed on the matter as the [appellant] had not responded to the Vice-Chancellor’s letter of 13th December 2007 ….
17. At the meeting, the Vice-Chancellor informed me of the background to the Committee proceedings and provided me with the [appellant’s] case file with all the relevant documentation and correspondence. He also informed me that Peter Fox could provide me with greater detail on the case, if required.
18. The Vice-Chancellor informed me of his views on the matter and his analysis of the Report. I recall that the Vice-Chancellor said to me words to the following effect:
“I think the [appellant’s] actions are a major breach of what is acceptable academic behaviour, especially with regard to the leadership responsibilities of a senior lecturer. Unless the [appellant] can respond by bringing compelling evidence that the findings were incorrect or that there are some mitigating circumstances, my intention is to go with demotion.”
19. The Vice-Chancellor also said to me words to the following effect:
“I do not find the minority view in the Report convincing and it does not deal with the facts of the case. I think the actions of the [appellant] are a major breach of acceptable academic behaviour and unacceptable for one holding the rank of senior lecturer. This is why I think demotion by rank rather than increment within rank is appropriate disciplinary action if the [appellant’s] response does not change the assessment of the Report.’
…
21. As the University was closed between the Christmas and New Year period the Vice-Chancellor and I decided not to take any action until after this period, allowing further time to receive any response from the [appellant].’
36 The Acting Vice-Chancellor proceeded to take disciplinary action against the appellant. In his affidavit he said at [24]:
‘24. In the absence of any response from the [appellant], I decided that in light of all the material I had considered and my briefing with the Vice-Chancellor, disciplinary action should be taken against the [appellant]. The disciplinary action was:
(a) Demotion by one classification level, to Step 6 Level B; and
(b) Formal censure for the behaviour and conduct.’
37 The Acting Vice-Chancellor’s affidavit noted that on 2-3 January 2008, with the assistance of Mr Fox, he had prepared a letter to the appellant informing him of his decision.
38 At [26]-[27] of his affidavit the Vice-Chancellor said:
‘26. … In my view, the [appellant’s] actions … constituted a major breach of acceptable academic behaviour. Given the severity of the breach I felt it undermined one of the bases of being a senior lecturer and such action undermines the University’s quality control, bringing the University’s integrity and reputation into disrepute.
27. I also considered the history of the [appellant’s] performance and employment record in taking my decision. I noted that there was no pattern of misconduct to justify the more serious disciplinary action of termination of employment.’
39 In this context the Acting Vice-Chancellor wrote to the appellant on 3 January 2008 stating under the heading ‘Disciplinary Action’:
‘I refer to the Vice-Chancellor’s letter to you dated 13 December 2007, which followed his consideration of the reports arising out of the Misconduct Investigation Committee on 10 and 11 October 2007. A copy of those reports was sent to your representative, Mr Mark Dolahenty, by fax on 17 December.
In his letter of 13 December 2007, the Vice-Chancellor invited you to advise him in writing of any matters you wished him to take into account when considering disciplinary action. The period of five working days for you to provide detail of those matters has elapsed.
…
Having considered the reports of the Misconduct Investigation Committee and the associated documentation including the explanations you provided, it is my decision that:
1. You be demoted by one classification Level, to Step 6 Level B, to take effect from the first full pay period commencing on or after 14 January 2008. You will be required to serve a full twelve months at this salary level before you become eligible to apply for promotion to Level C.
2. You be formally censured for your behaviour and conduct and you are to be formally counselled in relation to appropriate professional conduct and on the need for you to comply with University policies. This counselling will be undertaken by a senior University officer and you will be advised of the arrangements by the Dean, Professor Lynch.
…’
40 By a letter bearing date 24 December 2007 the appellant wrote to the Vice-Chancellor under the heading ‘Re: Your letter dated 13th of December 2007’. The appellant’s letter included:
‘I received your letter dated the 13th of December 2007 on Monday the 17th of December 2007. However, I did not find any of the attached reports enclosed with the letter. I then contacted Mr Dolahenty who was very kind to contact the university and obtained a faxed copy of the report to his office on the 17th of December 2007. I obtained a copy from Mr Dolahenty soon after.
Accordingly, I am attaching with this letter my comments and reply to each of the two reports.
However, below is a summary of my reply to the two reports:
…
I refer to your letter dated the 13th December 2007 and the attached two reports: namely a) Majority Report and b) Minority Report and would like to inform you that in relation to the Majority Report is that the Committee has operated outside its terms of reference.
…’
41 The appellant’s letter was accompanied by a 20 page document entitled ‘Dr Soliman’s comments and reply to the Majority Report authored by P.A. Lawson and B. Oliffe’.
42 In his affidavit Professor Booth referred to his receipt on or about 4 January 2008 of two letters from the appellant, one bearing date 4 January 2008 and an attached copy of another dated 24 December 2007. In his reply dated 9 January 2008 the Acting Vice-Chancellor said:
‘I refer to your letter dated the 4 January 2008 and your letter dated 24 December 2007 both of which were received by me on 4 January 2008. I note that your letter dated 24 December has an original signature and is not a copy (as referred to in your covering letter dated 4 January 2008). I have also received your letter dated 8 January 2008.’
43 In relation to the appellant’s letter bearing date 24 December 2007 Professor Booth said in his affidavit:
‘29. I spoke to Mr Fox shortly after receipt of the letters that same day and I thought that the best course of action would be to treat the [appellant’s] Response as if it had been submitted within the notice period and give it due consideration.
30. Even though I received the [appellant’s] Response well after the required time for submission had elapsed, I took the time to read and consider it carefully. In doing so, I wanted to ascertain whether the [appellant] presented any material that could change my initial view that disciplinary action was appropriate.
31. Nothing in the [appellant’s] response compelled me to disturb the original decision that the [appellant’s] misconduct justified disciplinary action. He did not address the findings of the Report. He also did not raise any mitigating circumstances, such as personal reasons, which may have forced me to re-consider whether a full demotion of rank was appropriate.
32. I also reviewed the Report together with the [appellant’s] Response to cross-check the [appellant’s] references to parts of the Report.
…’
44 The appellant’s letter of 8 January 2008 to Professor Booth was a three page addition to what he had earlier said in his letter of 4 January 2008 in relation to the Acting Vice-Chancellor’s letter recording the disciplinary action which had been taken of 3 January 2008.
45 The Acting Vice-Chancellor proceeded to write a further letter to the appellant under the heading ‘Disciplinary Action’ in which he said:
‘As no correspondence from you was received within the 5-day period provided by sub-clause 46.10(a) of the Agreement, I proceeded to make a decision concerning disciplinary action having already considered my briefing from the Vice-Chancellor, the Misconduct Investigation Committee Reports and other relevant documentation, including the explanations you provided regarding your conduct …
Nevertheless, I have reviewed your correspondence dated 24 December 2007, 4 January and also 8 January 2008, and I note the various matters you raise. It is not my intention to enter into discussion on every point nor is it appropriate for me to re-examine the evidence reviewed by the Committee. However there are some important points that I wish to make in response to your letter dated 24 December 2007.
…
Having received the Majority and Minority Reports, the Vice-Chancellor and I have given consideration to the matters outlined in them, together with all of the other relevant documentation …
I have read your letter dated 24 December 2007, and further communication dated 8 January, and given them very close consideration … Nothing contained in the material provided to me persuade me that the decision made as advised to you in the letter dated 3 January 2008 should be disturbed.
…’
The initiation of proceedings
46 In the foregoing circumstances the appellant instituted proceedings in this Court on 3 April 2008.
47 The hearing of the proceedings before the primary judge took place on 8, 9 and 25 September 2008. On 8 September 2008 a ‘Further Amended Application’ was brought into existence and on 25 September 2008 a Further Amended Statement of Claim was filed. At [60] of her reasons for judgment the primary judge observed that the appellant’s case ‘altered over time’. At [61] her Honour said:
‘61 In consequence of the grant of leave on 25 September 2008 to amend the statement of claim and to re-open to tender the contract of employment the submissions altered (but the initial submissions were not abandoned) …’
48 In the Further Amended Application the appellant sought a series of declarations, including declarations to the effect that:
(i) the appointment of the chairperson to the committee was null and void and of no effect,
(ii) the committee had no power to make findings of fact after the expiry of 10 working days from its appointment,
(iii) disciplinary action taken against the appellant was void and of no effect,
(iv) the appellant was entitled to be paid with interest all arrears of wages since his purported demotion, and
(v) the University was bound to pay into the appellant’s superannuation fund the difference between contributions that would have been paid but for the purported demotion and those paid by reason of the purported demotion.
The appellant also claimed an order requiring the University to do all things necessary to restore the appellant to the position he occupied together with all benefits to which he was entitled before the taking of the purported disciplinary action against him.
49 The primary judge’s conclusion was recorded at [110]-[111] of her reasons for judgment as follows:
‘110 … apart from the University’s concession of breach of cl 46.9.1, the applicant has not established any breach of the agreement. Further, the agreement does not form part of the contract of employment and is not itself a contract between the applicant and the University. The consequence of the admitted breach is not invalidity of the actions of the committee or the Vice-Chancellor. As the actions of the committee and the Vice-Chancellor were valid the remedies sought by the applicant are not available.
111 Given the applicant’s undertaking not to institute penalty proceedings under s 719 the only other remedy available (as the applicant originally sought under s 849) is an interpretation of the agreement. In the circumstances of this case, particularly the focus on the applicant’s individual position, I do not consider it appropriate to make any consequential declarations. The proceedings should be dismissed.’
The appeal
50 The appellant filed a Notice of Appeal, appealing from the whole of the judgment of the primary judge given on 10 October 2008, on 30 October 2008. An Amended Notice of Appeal was filed on 5 November 2008 and, with leave granted on 4 November 2009, a Further Amended Notice of Appeal was filed on 5 November 2009.
51 The appeal was fully argued on 4 November 2009 in anticipation of the Further Amended Notice of Appeal being filed, as indeed it was.
52 At the commencement of the hearing of the appeal the appellant sought leave to file a different Further Amended Notice of Appeal, in the form of a draft which had been provided as an attachment to the appellant’s Outline of Submissions of 29 October 2009. Leave to raise a fresh ground of appeal numbered 4 was refused. The appellant then indicated that the proposed new ground of appeal numbered 3 would no longer be pressed. In the circumstances the Notice of Appeal was recast to appeal nominally from three, but in fact only two, grounds of appeal The grounds as recorded in the Further Amended Notice of Appeal filed 5 November 2009 were as follows:
‘1. … the primary judge erred in the interpretation given to cl.46.9 of [the agreement] and in particular clauses 46.9.5 thereof.
2. Further to Ground 1, … the primary judge erred in finding that, upon the proper interpretation of the Certified Agreement, clause 46.9.5 did not require as a pre-condition of the exercise of the Vice Chancellor’s power to take disciplinary action against the appellant (the Disciplinary Power) [that he] have available for consideration, and in fact consider, a report by a committee constituted under clause 46.9.1 of [the agreement] (the Committee) of the findings of fact made by the Committee, as opposed to reports of the opinions of individual members of the committee.
5. Further to Ground 1 and in further alternative to Ground 2, the primary judge erred in finding that, upon the proper interpretation of [the agreement], the Vice Chancellor who made the decision to exercise the Disciplinary Power against the appellant was not precluded by clause 46.9.5 from considering the views of a person other than the Committee.’
53 The appellant acknowledged that the ground of appeal identified as number 1 was nothing more nor less than a preamble to the two remaining grounds identified as numbers 2 and 5.
54 In our opinion, neither of the substantive grounds of appeal has been made out and the appeal should be dismissed.
The unanimity issue
55 Ground number 2 raised the issue as to whether or not it was open to the Acting Vice-Chancellor to take disciplinary action founded upon a Committee report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances were evident, where the report did not contain unanimous findings of the Committee, which had three members.
Factors that may be considered when exercising the disciplinary power
56 Ground number 5 raised the question of whether it was open to the Vice-Chancellor, when deciding whether or not to take disciplinary action, to take under consideration anything other than, firstly, the findings of the Committee on the facts relating to the alleged misconduct or serious misconduct, including any findings as to whether any mitigating circumstances were evident, and, secondly, matters brought to his attention by the staff member whose conduct was in question.
Consideration
57 The primary judge addressed the unanimity issue at [99]-[106] of her reasons for judgment. At [99] her Honour noted the appellant’s submission as follows:
‘99 The applicant submitted that the committee was required to make unanimous factual findings (relying on the discussion about the rule in Grindley v Barker (1798) 1 B&P 229; 126 ER 875 [Grindley v Barker] in Bruce v Cole (1998) 45 NSWLR 163 at 205E – 206). As the committee had not made unanimous factual findings there were no findings of the committee and no capacity of the Vice-Chancellor to take disciplinary action.’
58 In Bruce v Cole a bench of five judges constituted the Court of Appeal in the New South Wales Supreme Court. It considered a challenge by a judge in relation to the validity of a report made by two serving judicial officers and one retired judicial officer who constituted a Conduct Division of the Judicial Commission of New South Wales, appointed under the Judicial Officers Act 1986 (NSW), to examine certain complaints made to the Judicial Commission, concerning the conduct of the plaintiff, then a judge of the Supreme Court.
59 It would appear that the Conduct Division took the view that the statutory report to the Governor should not contain any indication that it was a majority report rather than a unanimous report. Spigelman CJ said at 174-175, in this regard:
‘One of the functions of the report is to inform parliament. In my view that function is better performed if reasons for dissent … are made available as part of the report.
… The parliament should receive as much assistance as possible in exercising its weighty task of deciding whether to address the Governor.
… I do not see anything in the text or subject matter of the Act which warrants the statement that parliament must receive “one finding of fact, one opinion and one expression of reasons”.
There is no reason why a Conduct Division when “setting out” its “conclusions” under s 29(1) or its “findings of fact” and opinion under s 29(2), should be prohibited from setting out the reasons by which it reached its conclusions, including a statement of any minority position.
…’
60 Mason P, Sheller and Powell JJA each agreed with Spigelman CJ without adding any additional reasons. At 208 Priestley JA recorded his express explicit agreement with what the Chief Justice has said concerning the opinion formed by the minority member of the Conduct Division and its availability in any consideration of the possible removal of the plaintiff from office as a judge of the Supreme Court of New South Wales.
61 Priestley JA did not consider Grindley v Barker to be a ‘particularly persuasive decision’. However he observed that it had from time to time been followed by courts of high authority. It concerned the interpretation of a statute which provided for the appointment of a number of persons to carry out public duties, but which did not say whether those persons should be unanimous in carrying out their duties. Priestley JA said at 205:
‘The court seems to have accepted that the ordinary meaning of the words governing the appointments of the persons would require, if the question were one of private law, that they should act unanimously. However, relying on a sentence in Coke’s notes upon Littleton, the court took the view that in regard to public law, and where public duties were concerned, convenience required only that a majority would be sufficient, in the public interest. The court also recognised that the words of statute could be sufficiently clear to require unanimity but did not think they were of the necessary clarity in the instant case.’
62 At [100] the primary judge said in respect of the rule in Grindley v Barker
‘100 … The rule has been said to be one of convenience and apply where the powers are “not of mere private confidence, but in some respects of a general nature” (Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457 at 463E).
101 If the disciplinary provisions of the agreement are merely private in nature then it does not automatically follow that the rule in Grindley v Barker applies. The issue is to be resolved as one of construction having regard to the nature and purpose of the agreement as an industrial agreement. There are a number of factors weighing against the [appellant’s] approach to the issue.
63 The primary judge proceeded to expound four reasons why she could not accept that the agreement required the Committee to make unanimous findings of fact. The four reasons advanced by her Honour were as follows:
‘102 First, the committee is constituted by an independent chair and two nominees (one for the Vice-Chancellor and one for the staff member). Given that constitution it must have been within the contemplation of the parties to the agreement that the committee would not make unanimous factual findings because two of its members are nominees. The parties could not reasonably have intended that the process would be stultified merely because members of the committee disagreed about the factual findings that should be made.
103 Secondly, the committee’s function is limited to the making of factual findings about the alleged misconduct. The committee has no function in determining whether or what disciplinary action should be taken. This is a point of distinction from Grindley v Barker and subsequent decisions applying it. The distinction is important because it discloses the limited function of the committee as an investigatory body. The making of separate (and irreconcilable) factual findings by the committee does not undermine its function in the scheme of the agreement. It might be as relevant for the Vice-Chancellor to know that the committee members disagreed about their factual findings as it is to know what those findings were.
104 Thirdly, the Vice-Chancellor is bound to consider the committee’s factual findings but is not bound by them. The Vice-Chancellor can take a different view from the committee about the facts. This is evident from the terms of cll 46.9.4, 46.9.5 and 46.9.6. A divergence in factual findings by committee members does not prevent the Vice-Chancellor from considering the findings and, as noted, disagreement between committee members may itself be relevant to the Vice-Chancellor’s consideration.
105 Fourthly, none of the provisions relating to the committee require the committee’s findings on the facts to be unanimous. The committee’s findings on the facts may be unanimous, involve majority and minority findings or involve individual and separate findings by each of the three members. Nothing in the agreement suggests that these findings will not be the findings of fact and report of the committee.’
64 We agree with her Honour’s observations.
65 In relation to the ground of appeal numbered 5 the primary judge observed that the agreement empowered the Acting Vice-Chancellor to take disciplinary action in accordance with clauses 46.9.5 and 46.10 of the agreement. She observed that there had been no suggestion that Professor Booth failed to consider the committee’s report as required by clause 46.9.5. Her Honour then said at [108]:
108 … I do not accept that Professor Booth was precluded from taking into consideration the views expressed by Professor Milbourne before he took leave. Clause 46.9.5 specifies that which the Vice-Chancellor must take into consideration. Subject to fairness considerations the agreement does not prevent the Vice-Chancellor from taking into consideration other matters. In the circumstances of this case it was proper for the Vice-Chancellor to brief the Acting Vice-Chancellor on the matter including his views on the committee’s factual findings.’
66 We also agree with the observations of her Honour in this regard. Clause 46.9.5 of the agreement did not preclude the Acting Vice-Chancellor from considering the views of a person other than the Committee. There is no suggestion that Professor Booth did not bring his own mind to bear in deciding what, if any, disciplinary action should be taken.
The agreement
67 Clause 46 of the agreement was headed ‘DISCIPLINARY ACTION FOR MISCONDUCT/SERIOUS MISCONDUCT’. It contained 17 separate subclauses under five subheadings, being ‘Application’, ‘Definitions’, ‘Procedures’, ‘Investigation of misconduct/serious misconduct’, ‘Suspension’ and ‘Other Matters’.
68 Clause 47 of the agreement was entitled ‘REVIEW/INVESTIGATION COMMITTEES’. The clause provided for the establishment of three person committees and for the conduct of their proceedings. The heading ‘REVIEW/INVESTIGATION COMMITTEES’ demonstrated that a committee might undertake a review or an investigation. Subclauses 29.11.2, 45.11 and 46.7 and associated provisions all made reference to the appointment or establishment of a ‘Committee’.
69 Clause 29.11 of the agreement permitted the review of decisions to retrench staff members. In the event that an affected staff member sought review of a decision that the relevant staff member was ‘an excess staff member’, clause 29.11.1 made provision for the lodgement by the affected staff member of an application for review of the Vice-Chancellor’s decision to that effect.
The role of the Committee, in such circumstances, was to determine whether the requisite process had been followed or whether a genuine redundancy decision had been made by the university. In the event that the Committee reported to the Vice-Chancellor that the requisite process had not been observed, the Vice-Chancellor was required to reconsider his/her decision in light of the Committee’s report (see clause 29.11.2, 29.11.5 and 29.11.6).
70 Clause 45.11 of the agreement permitted a review of the process leading to the making by the Deputy Vice-Chancellor of a recommendation in respect of disciplinary action to be taken against a staff member, where a supervisor had formed the view that the performance of the staff member was ‘unsatisfactory’.
In the event that an affected staff member sought a review prior to the Vice-Chancellor’s consideration of the Deputy Vice-Chancellor’s recommendation and his determination whether disciplinary action was to be taken, a Committee was to be established which was to ‘review the steps taken during the process to ensure that the staff member was afforded procedural fairness throughout the managing of staff performance process’ (see clause 45.14). The Committee was to submit ‘a report on its findings of this review to the Vice-Chancellor’.
In the event that the Committee concluded that the procedures had not been properly followed it was open to the Vice-Chancellor to take steps to remedy any perceived unfairness as may seem reasonable to him or her.
71 Clause 46.7 of the agreement contemplated the appointment of a Committee to investigate and report on the facts relating to alleged misconduct or serious misconduct on the part of a staff member, including whether any mitigating circumstances were evident.
72 Clause 47.1 of the agreement dealt with the composition of a Committee, whether to conduct a review or to carry out an investigation, as follows:
‘47.1 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 within 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.’
73 In relation to the conduct of proceedings of a Committee clause 47.2 of the agreement provided for procedural fairness allowing for representation for the affected staff member and the Vice-Chancellor, an opportunity being afforded to the staff member to present submissions, an opportunity for the affected staff member to be interviewed, a hearing in the sense that all interviews should take place in the presence of the affected staff member and the Vice-Chancellor or their respective representatives, the keeping of a record of the interviews and proceedings and the expeditious discharge of the Committee’s relevant role. Clause 47.2 included:
‘47.2 The Committee will:
…
(e) interview any person the Committee thinks fit to establish the facts of the particular case
…
(g) take into account other material the Committee believes appropriate to the case
…’
74 In relation to disciplinary action for misconduct/serious misconduct the respective roles of the Vice-Chancellor, meaning the person appointed as such to be the Vice-Chancellor of the university and anyone fulfilling that role on a temporary basis and any nominee of the Vice-Chancellor, and of the ‘Committee’, were set out in clause 46 which relevantly provided as follows:
‘Procedures
46.5 The following procedures apply where disciplinary action is to be taken against a staff member for misconduct or serious misconduct [as defined in clause 46.2 and 46.3 respectively]. …
46.6 The Vice-Chancellor will consider any allegation/s of misconduct and/or serious misconduct. If the Vice-Chancellor believes the allegation/s warrant further investigation then the Vice-Chancellor will:
(a) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegation/s, and to properly consider and respond to them; and
(b) require the staff member to submit a written response within ten working days.
46.7 If the staff member denies in part or full the allegation/s, or fails to submit a written response to any allegations, the Vice-Chancellor will:
(a) refer the matter to a Committee for investigation; or
(b) counsel and/or censure the staff member for unsatisfactory behaviour and take no other action; or
(c) take no further action.
46.8 If the staff member admits in full the allegation/s, and the Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, then the Vice-Chancellor may take disciplinary action [as defined in clause 46.4].
46.9 Investigation of misconduct/serious conduct
46.9.1 Where a matter is referred for investigation in accordance with sub-clause 46.7(a), a Committee will be established within ten working days in accordance with Clause 47.
46.9.2 The Committee will investigate the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.
46.9.3 The terms of reference of the Committee is to report solely on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.
46.9.4 If, having considered the Committee’s findings on the facts, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct the Vice-Chancellor will immediately advise the staff member in writing. The Vice-Chancellor may, by agreement with the staff member, publish the advice in an appropriate manner.
46.9.5 On receipt of the report of the Committee and having considered the findings on the facts related to the alleged misconduct or serious misconduct, including any findings as to whether any mitigating circumstances are evident, the Vice-Chancellor may take disciplinary action.
46.10 Before deciding to take disciplinary action, the Vice-Chancellor will:
(a) invite the staff member to advise within five working days, in writing, any matters that he or she may wish the Vice-Chancellor to take into account at the time a decision as to disciplinary action is considered
(b) have regard to any such matters brought to attention by the staff member when deciding whether any disciplinary action should be taken; and
(c) advise the staff member of that decision and of the operative date of any disciplinary action to be taken.
…
Other Matters
46.16 This Clause in no way constrains the university from carrying out other or further investigations relating to the consequences of conduct of a staff member or former staff member when required in the public interest …
…’
(emphasis by underlining added)
75 In our opinion the procedures laid down for disciplinary action for misconduct/serious misconduct against a staff member of the university is not merely a matter of private concern. There is a real public interest to be considered. The agreement represented a set of consolidated, clear and effective industrial conditions of employment, to the mutual benefit of staff members and the university (see clause 4). By virtue of the operation of s 351 of the Act, the agreement bound staff members who may have voted against its approval and staff members who were not employed by the university at the time but who may have become employees after the agreement came into force.
76 The function of the Committee in relation to allegations of misconduct and/or serious misconduct was not to make findings as to what the facts as found may establish. The Committee’s function was as set out in clause 46.9.3 to report solely on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances were evident.
77 To enable the Vice-Chancellor to make a decision as to what, if any, disciplinary action should be taken, when the affected staff member has not admitted in full the allegations against him or her, common sense dictates that a divergence of opinion amongst the Committee members as to the facts would be every bit as important as assistance for the Vice-Chancellor, as unanimous findings on the facts may be. The same considerations would apply in relation to findings on the facts relating to whether any mitigating circumstances were evident.
78 In our opinion unanimity is not required when the Committee submits a report on the facts.
79 It is implicit from the terms of clause 46.9.5, in the context of allegations of misconduct and/or serious misconduct having been made and notified and the allegations have been denied ‘in part or full’ or there having been a failure to respond to the notification, that a decision to take disciplinary action will be dependent upon a finding of misconduct or serious misconduct.
80 In deciding what disciplinary action may be appropriate where there has been an admission of the relevant allegations or where the Vice-Chancellor has formed the view that the relevant staff member engaged in misconduct or serious misconduct, it would, in our opinion, be inappropriate for a Vice-Chancellor to act or be expected to act in a vacuum.
81 In our opinion it was perfectly appropriate for Professor Booth when fulfilling the role of Vice-Chancellor on a temporary basis to have regard to his briefing with the Vice-Chancellor whose office he was filling in the Vice-Chancellor’s absence. It was equally appropriate for the Vice-Chancellor to have regard, when considering whether or not the conduct the subject of the allegations answered the description of misconduct or serious misconduct, to matters other than the Committee’s findings on the facts, its findings on any mitigating circumstances that may have been evident, and, matters put to the Vice-Chancellor by the affected staff member in response to the Vice-Chancellor’s invitation to do so in accordance with clause 46.10. It would defy logic to require the Vice-Chancellor to (say) disregard a complainant’s communication with the Vice-Chancellor to the effect that the complainant had fabricated the allegations of misconduct and wished to extend the staff member an apology. It would equally defy logic to suggest that a Vice-Chancellor could not (say) have regard to a mitigating circumstance of which he was aware independently of anything contained in the Committee’s report or anything that may have been put by the staff member to the Vice-Chancellor in response to the clause 46.10 invitation.
82 In our opinion Professor Booth acted entirely appropriately when he both reached a decision in respect of disciplinary action and then revisited it, as he did, a week later after he had the benefit of the appellant’s letter bearing date 24 December 2007 (cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; see also SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [35]).
83 Given that the appellant has failed to make good either of the grounds of appeal contained in the further Amended Notice of Appeal filed 5 November 2009, it is unnecessary to consider the residual question as to the form of the relief which may have been granted had the decision of the Court on the grounds of appeal been otherwise.
84 As indicated above, the appeal should, in our opinion be dismissed.
|
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Graham, Logan and Flick. |
Associate:
Dated: 7 December 2009
|
Counsel for the Appellant: |
I M Neil SC and V A McWilliam |
|
|
|
|
Solicitor for the Appellant: |
Rasan T. Selliah and Associates |
|
|
|
|
Counsel for the Respondent: |
A T Britt |
|
|
|
|
Solicitor for the Respondent: |
Colin Biggers & Paisley |
|
Date of Hearing: |
4 November 2009 |
|
|
|
|
Date of Judgment: |
7 December 2009 |
