FEDERAL COURT OF AUSTRALIA

Kweifio-Okai v RMIT University [1999] FCA 1686

INDUSTRIAL LAW – whether employment terminated for valid reason connected with employee’s conduct – whether transfer of appellant from one campus to another reasonable

PROCEDURE – whether issues not raised at trial may properly be raised on appeal

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Coulton v Holcombe (1986) 162 CLR 1

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

JB Chandler Investment Company Limited (In voluntary liquidation) v Commissioner of Taxation (1993) 47 FCR 588

Associated Newspapers Ltd v Bancks (1951) 83 CLR 322

Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR(NSW) 632

Shevill v The Builders Licensing Board (1981-1982) 149 CLR 620

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977-1978) 138 CLR 423

Davison v Vickery’s Motors Ltd (In Liquidation) (1925) 37 CLR 1

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

GEORGE KWEIFIO-OKAI v RMIT UNIVERSITY

V 356 of 1999

BRANSON, MARSHALL & DOWSETT JJ

MELBOURNE

8 DECEMBER 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BRANSON J

Introduction

1                     I have had the advantage of reading in draft form the reasons for judgment of Dowsett J.  I gratefully adopt his Honour’s outline of the background to this appeal.

2                     The Notice of Appeal filed by the appellant does not comply with the Federal Court Rules in that it does not specify grounds of appeal (O 52 r 12).  However, it appears that the appellant swore an affidavit in support of his appeal.  This document identifies a number of complaints against the judgment delivered by the learned primary judge.  The complaints include that the direction given to him to work from the city campus of the respondent was “contrary to the terms of the contract of [his] employment”, that the direction was unreasonable and had the character of a disciplinary ground, that the direction was vague and lacked clarity and that the investigation conducted by the Misconduct Investigation Committee was attended by illegality, misconduct and conflict of interest.

3                     By his written submissions, the appellant contended that:

“The question for determination by the present court is a narrowly confined question of Law – ie did the Respondent act lawfully in seeking to change my contractual base of work from Bundoora to the City campus of RMIT, my refusal on which the Respondent relied to terminate my employment on 14 October 1996?”

4                     Nonetheless, the submissions canvas a wide range of issues which, in general terms, seem to address the grounds identified in the affidavit referred to above.

Availability of principal ground of appeal

5                     The written terms and conditions of employment of the appellant by the respondent include the following:

“Campus Location:    You will be based at the Bundoora Campus but may be required to work at other campuses of the University.”

6                     The appellant was legally represented before the Judicial Registrar, although he appeared in person before the learned primary judge and before this Court.

7                     It appears that a submission was put to the Judicial Registrar that the direction given to the appellant to relocate to the City campus was unlawful as being in conflict with the appellant’s terms and conditions of employment.  The Judicial Registrar rejected this submission.  When the matter came before the learned primary judge on an application for review of the decision of the Judicial Registrar, his Honour directed the parties to file and serve statements of contentions of fact and law.  Pursuant to his Honour’s direction, the appellant filed a document entitled “Statement of Contentions of Fact.”  The only contention contained in such document touching upon the asserted conflict between the direction given to him to relocate to the City campus and his terms and conditions of employment was expressed as follows:

“My transfer from the Bundoora Campus to the City Campus was in breach of the terms of my contract of employment in that the RMIT failed to provide me with proper facilities for undertaking my research and my usual under-graduate teaching load.”

8                     The respondent’s statement of contentions of fact and law filed pursuant to his Honour’s direction addressed the issue of the lawfulness of the direction given to the appellant to relocate to the City campus.  The principle contention of law in this regard set out in the respondent’s document was  as follows:

“The express terms of Okai’s contract of employment required him to work at other campuses of RMIT ….  Accordingly, RMIT was entitled to request Okai to work at the city campus.”

9                     It appears that the appellant did not seek to argue before the primary judge that the respondent was not entitled to direct him to relocate to the City campus.  The reasons for judgment of Ryan J record that the appellant contended first that the direction to relocate was not a reasonable one and had been improperly given as a form of punishment and, secondly that it was not open to the respondent to discipline him in circumstances where the respondent had failed properly to investigate his grievances which had provoked the conduct to which the respondent took exception.

10                  Had the appellant run his case before the primary judge on the basis that the direction given to him to relocate to the City campus was unlawful as being inconsistent with the contractual provision that he would be based at the Bundoora campus, difficult issues of fact and law would have needed to be addressed.  The first of these would have been the proper construction of the provision.  As Dowsett J makes plain in his reasons for judgment, the relevant contractual provision is unclear and susceptible to more than one meaning.  In such circumstances, evidence of surrounding circumstances, if relevant, would have been admissible to assist in the interpretation of the provision (Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 per Mason J at 352).

11                  It may also have been necessary for his Honour to reach a conclusion as to whether the provision constituted a condition for the benefit of the appellant only.  The importance of this consideration flows from the possibility, on the evidence before Ryan J, that if the provision was a condition for the benefit of the appellant only, the appellant may have lost his right to rely on the provision by conduct amounting to waiver.  Evidence before Ryan J tended to establish that at a meeting between the appellant and his Dean held on 11 July 1996 (ie apparently the day after he was advised that he would be required to relocate) to discuss arrangements for the appellant’s return to work, the appellant advised the Dean that he appreciated the ‘practical’ need for the relocation and he did not challenge the right of the respondent to require him to relocate.  Further, four day’s later, the appellant wrote to the Vice-Chancellor of the respondent.  His letter included the following paragraphs:

“I have suggested to the Dean that the arrangements to do research in the city campus can be realised without me having to physically re-locate.  The Dean has advised that the decision lies with you.  Hence this personal request to you that I keep my office and use of it at Bundoora within the arrangements proposed in the Dean’s letter.

It makes no administrative sense for me to physically relocate to the city campus except if the intention is to pave the way to permanently relocate me there.  Events to date convince me that will be the eventual outcome.”

12                  Further correspondence between the appellant and officers of the university followed.  Nothing suggests that the appellant, at any time before his dismissal, challenged the right of the respondent to require him to relocate to the City campus provided that the circumstances did not constitute demotion or punishment.  The appellant’s position was clarified in a facsimile message which he sent to the Deputy Vice-Chancellor on 30 August, 1996 in which he asserted:

“I have not disobeyed a lawful direction to relocate to the City Campus, merely awaiting detailed information about the relocation to be assessed by me as not constituting demotion or punishment in my literal reading of s 12(f) of the 1995 Award.  In my view the context of the relocation makes it unfair and unlawful.”

13                  Moreover, had the lawfulness of the respondent’s direction to the appellant to relocate to the City campus been challenged before Ryan J, it may be that the respondent would have wished to explore with the appellant the circumstances in which he, as he asserted in his summary of argument before this Court, requested the Dean in late 1994 to relocate him from Bundoora to the City campus.

14                  The appellant is an educated and intelligent man with experience of industrial matters within the higher education sector.  He had legal representation before the Judicial Registrar and may be assumed to have received legal advice at about the time of the hearing before the Judicial Registrar concerning his dispute with the respondent.  The issue of the consistency of the direction given to him to relocate to the City campus and the terms and conditions of his employment was raised before the Judicial Registrar and was raised again by the respondent’s statement of contentions of fact and law.  In my view, it was not incumbent on the primary judge in the circumstances to seek to interfere with the way in which the appellant chose to run his case.  Before the primary judge the appellant chose to challenge the reasonableness of the direction to relocate to the City campus but not its lawfulness.  In my view, in the circumstances outlined above, it is not now open to him to change his stance.

15                  As the High Court said in Coulton v Holcombe (1986) 162 CLR 1 at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

See also University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 and JB Chandler Investment Company Limited (In voluntary liquidation) v Commissioner of Taxation (1993) 47 FCR 588 per Gummow J at 593.

Other grounds of appeal

16                  In my view, no error has been identified in the primary judge’s consideration of the reasonableness of the direction given to the appellant to relocate to the City campus.  His Honour concluded, as it was plainly open to him to do on the evidence before him, that it was reasonable for the respondent to relocate the appellant to the City campus to achieve a solution for the breakdown in the working relationship between the appellant and most of the staff at the Bundoora campus.

17                  It appears not to have been argued before Ryan J that the direction was vague and lacking in clarity.  For this reason, it is not appropriate for the argument to be raised now.  In any event, I note that the practical import of the direction seems to have been well understood between the parties.  To the extent that this contention may be understood as suggesting that the motive behind the direction is unclear (ie as to whether it was a disciplinary measure or a measure to deal with interpersonal conflict not reflecting any disciplinary aspect), again, it seems to me, that no error in the consideration of the issue of the primary judge has been shown.

18                  Similarly, in my view, no error has been demonstrated in the consideration by the primary judge of the appellant’s arguments concerning the investigations of the Misconduct Investigation Committee.

19                  By his affidavit in support of his notice of appeal, but not in his submissions to this Court, the appellant criticised the primary judge’s assessments of the credibility of witnesses.  These criticisms are in my view, without substance.

20                  Having given consideration to the entirety of the submissions of the appellant, I am satisfied that the appeal should be dismissed.

Associate:

Dated:

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MARSHALL J

21                  This is an appeal from a judgment of a single judge of the Court dealing with an application by the appellant, Dr Kweifio-Okai pursuant to s170EA of the Industrial Relations Act 1988 (Cth) (“the Act”). The trial judge dismissed Dr Kweifio-Okai’s application for relief in respect of what Dr Kweifio-Okai alleged was the unlawful termination of his employment by the respondent, RMIT University, (“the University”).

Factual background in summary

22                  Dr Kweifio-Okai was employed by the University as a Senior Lecturer at its Bundoora campus. He had been continuously employed by predecessors of the University since January 1987. Dr Kweifio-Okai’s appointment to the position of Senior Lecturer occurred on 18 July 1994. On that day he signed a document acknowledging his acceptance to abide by certain conditions in his engagement as a Senior Lecturer. One such condition was entitled “Campus Location”. The content of that condition was as follows:

“You will be based at the Bundoora Campus but may be required to work at other campuses of the University.”

23                  By July 1996 the University perceived that there had been a breakdown in working relationships between Dr Kweifio-Okai and most other staff at the Bundoora campus. Accordingly, Dr Kweifio-Okai was directed to relocate and to work at the city campus of the University. This direction was the result of an investigation by the University into the circumstances surrounding Dr Kweifio-Okai’s interaction with other staff at Bundoora. Dr Kweifio-Okai did not comply with the University’s request that he relocate to the city campus. As a result of that failure to comply the University terminated his employment on 14 October 1996.

The raising of the breach of contract point

24                  Dr Kweifio-Okai, who represented himself before the trial judge and on appeal, submitted that the University was not entitled to insist that he shift his base from Bundoora to the city. He submitted that his contract of employment specifically provided that he would be based at Bundoora. Dr Kweifio-Okai did not make that submission before the trial judge. Counsel for the University contended that he should not be permitted to raise the point on appeal. I disagree. The employment contract signed on 18 July 1994 was in evidence before the trial judge. Counsel for the University on appeal did not refer to the existence of any possible further evidence which might offset the effect of Dr Kweifio-Okai’s point about his employment contract. As Mason and Deane JJ said in Legione v Hateley (1983) 152 CLR 406 (at 450):

“The normal rule is that a party will not be permitted to argue a point, neither raised on the pleadings, nor fought at the trial, when further evidence might possibly affect the result.”

25                  This is not a case where any further evidence exists which might possibly produce a different result on this aspect of the case. The only possible evidence which may be relevant to assist in the construction of the campus location conditions of Dr Kweifio-Okai’s employment contract would have been evidence of the surrounding circumstances leading to that part of the contract being agreed to.  However I consider that if such evidence had been sought to be adduced it would have been inadmissible as the relevant part of the contract is unambiguous and not susceptible of more than one meaning.  See Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 per Mason J (at 352).

26                  It is clear from the terms of the campus location condition that Dr Kweifio-Okai may be required to work away from Bundoora but nonetheless would be based there.  In other words, his office and main facilities would be at Bundoora but he may be required to work at other campuses as well as Bundoora.  Accordingly, in my view, Dr Kweifio-Okai is entitled to rely on the breach of contract point despite the fact that it was not raised by him before the trial judge. Counsel for the University relied upon the judgment of the High Court in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, at 483, where the point was made that “a party is bound by the conduct of his case”. However Metwally is distinguishable because in that case the parties were given an opportunity to argue the relevant questions in the Court below but declined to take up the opportunity to do so.

27                  Although, as appears from the separate reasons for judgment of Branson J and Dowsett J, Dr Kweifio-Okai raised the question of his contract of employment before the judicial registrar it must be borne in mind that the trial before the primary judge was conducted de-novo and the parties were not bound by the conduct of their cases before the judicial registrar. In D'Antuono v Minister of Health (1997) 80 FCR 226, at 228-229,  Burchett J, sitting as a member of a Full Court, stressed (at 233) that a review is a re-hearing de-novo on material put to the Court at that hearing and that the matter is considered afresh.  No contrary view was expressed by Carr J or RD Nicholson J.  Indeed their separate judgments are consistent with Burchett J’s approach to that issue.

28                  Dr Kweifio-Okai’s position in this appeal should not be adversely affected by reason of his conduct of his case before the judicial registrar. This is especially so when one considers that he did not conduct the case himself before the judicial registrar but did so before the trial judge. One must always keep in mind the particular difficulties faced by litigants in person which may hamper their judgment as to how to best represent their own interests. See generally Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438.

29                  It was submitted on behalf of the University that whether the termination of Dr Kweifio-Okai’s employment was effected for a valid reason must be considered in light of the entire factual matrix and not by reference to the breach of contract point alone. Additionally he disputed that any relevant breach of Dr Kweifio-Okai’s employment contract had occurred. Counsel submitted that the direction to Dr Kweifio-Okai to relocate to the city campus was consistent with the requirement to work at other campuses. That interpretation of the contract is to be rejected. No construction of that interpretation permits the University to unilaterally require Dr Kweifio-Okai to change his base from Bundoora. The failure of Dr Kweifio-Okai to obey a direction at odds with his contract was at the heart of the University’s decision to terminate his employment. Consequently it is a very important factor to consider when determining whether or not Dr Kweifio-Okai’s employment was terminated for a valid reason.

Consideration

30                  In my opinion the termination of Dr Kweifio-Okai’s employment was not for a valid reason. The reason for the termination was his failure to comply with the direction to relocate. That direction was not a lawful one as it conflicted with the terms of Dr Kweifio-Okai’s contract of employment. It will be a rare case where an employer can terminate an employee for a valid reason based on the operational requirements of that employer, when the basis for the termination is the employee’s failure to comply with an unlawful direction. Counsel for the University contended that in any event Dr Kweifio-Okai’s working relationship with other staff at Bundoora had completely broken down. However he was not dismissed for that reason. The University’s contention about the breakdown of working relationships may well be a persuasive one when considering the question of remedy but it cannot be retrospectively relied upon by the University to attempt to assert that it dismissed Dr Kweifio-Okai for a valid reason. The actual reason relied upon for the termination was not “sound, defensible or well-founded”. See Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

31                  The University’s direction to Dr Kweifio-Okai, as Dowsett J points out, was for him to relocate his base to the city and to commence duties at that campus. The University cannot seek to unlawfully require a change of base on the pretext that Dr Kweifio-Okai had been directed to work by his attendance at the city campus irrespective of what campus would be his base. The critical point is that the requirement to relocate to the city and work there was a composite direction which was designed to achieve a change of base. That direction is not lawful simply because it encompasses a direction to return to work. That return to work can only, in the circumstances, be sensibly understood on the basis that it necessarily involved a change of base, which in turn resulted in the University breaching a term of its contract with Dr Kweifio-Okai.

Remedy

32                  All the material facts which should be before the Court to sensibly deal with any question of remedy are not currently before it. Counsel for the University submitted that in the event that the appeal is allowed the matter should be remitted to the trial judge to deal with the making of any orders under s170EE of the Act. Dr Kweifio-Okai made no submission to the contrary. It is appropriate in the absence of the relevant facts being before the Court that the matter be remitted to the trial judge.

Associate:

Dated:

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

DOWSETT J:

33                  Prior to 14 October 1996 the appellant had been employed for many years as a member of the academic staff of the respondent or of an institution which was its predecessor.  On that date his employment was terminated.  The relevant circumstances appear from the reasons of Ryan J, from whose judgment this appeal is brought.  From 1992 until 1996, the appellant had, on occasions, engaged in conduct towards other staff members which was, to say the least, unacceptable.  He claimed that his conduct was justified on a number of bases, but it is impossible to accept that claim.  On 20 March 1996 he was suspended from his duties until 1 April whilst an enquiry was conducted into various complaints against him and his counter-allegations.  The appellant’s conduct was found to be unsatisfactory, and he was censured on 27 May 1996.  The Deputy Vice-Chancellor, in her letter advising him of the censure, said:

During the course of the process referred to, you raised a number of issues.  As explained to you in our meeting today, the University will undertake an investigation of these issues.  This investigation will:

(i)        consider means of repairing the relationship between the academic and general staff within the Faculty;

(ii)       determine whether there is any evidence of racial vilification within the Faculty;

You should note that the investigation will not concern itself with the allegations against you as these have already been investigated and these matters are now finalised.

My first concern is that the work of the Department return to normal as soon as possible.  It is important, therefore, that the investigation be undertaken quickly.  To this end I believe it would be in the interests of all parties if you were not to return to work in the Department during the investigation and would like you to consider working at the city campus.  You indicated that you might prefer to stay home instead and we accept whatever choice you make.  I would appreciate it if you would finalize these details with Professor Story as soon as possible.

34                  The reference to the “city campus” is to one of a number of campuses operated by the respondent.  The appellant had been located at the Bundoora campus.  Thereafter, an investigation was conducted into what might loosely be described as inter-personal relationships within the relevant department.  It disclosed that the majority of employees in the department felt hostility of some kind towards the appellant and resented any suggestion that he might return to work with them.  As a result, the respondent determined that he should be directed to “return to work at the city campus”.  On 11 July 1996 the Dean of the relevant faculty, Professor Story, interviewed the appellant.  Professor Story’s note of the conversation is, in part, as follows:

I confirmed the determination of the Vice-Chancellor that Dr Kweifio-Ikai was not to return to work on the Bundoora campus of RMIT but was to relocate to the City campus.  I detailed the arrangements for his immediate employment on the City campus.  I subsequently confirmed these by letter (attached). 

Although Dr Kweifio-Ikai did not state his definite acceptance of these conditions, my impression was that he would agree to the arrangements.

Dr Kweifio-Ikai acknowledged that some of his past behaviour and actions, presumably in respect of his interaction with members of the Department of Anatomy and Physiology, were inappropriate.  He indicated that he considered his transfer to the City campus as a ‘punishment’ but he appreciated the ‘practical’ need for the transfer to occur.  I agreed that, during the short interim period before he transfers to the City campus, he could continue to use the present arrangements to visit the Bundoora campus, for the purpose of meeting the head of the Department of Anatomy and Physiology and accessing his office and research records.  …  The visits to the Bundoora campus are to cease when Dr Kweifio-Ikai commences his employment on the City campus.

Another matter raised by Dr Kweifio-Ikai was the future of his collaborative research work, involving cell culture facilities, on the Bundoora campus with Dr Fred De Munk.  I informed Dr Kweifio-Ikai that, whilst the collaboration could continue, he would not be allowed to undertake activities in the project on the Bundoora campus.  I agreed to investigate ways in which effective collaboration could continue, given the above restriction.

35                  As indicated above, Professor Story wrote to the appellant on 11 July, confirming the “arrangements made at our meeting yesterday”.  In that letter he confirmed the appellant’s attachment to a department at the city campus and advised that appropriate research facilities would be available there.  He also advised that the appellant would not be required to teach during the second semester of 1996, and that teaching responsibilities for the following year would be discussed at a later stage.  There was to be further discussion concerning the supervision of post-graduate students.  The letter concluded with a direction that the appellant commence duties on the city campus by Friday, 19 July 1996 and that:

If this is not possible, you should contact me immediately and we will finalize a suitable alternative date.

36                  The appellant wrote to the Vice-Chancellor saying that:

It makes no administrative sense for me to physically relocate to the City Campus except if the intention is to pave the way to permanently relocate me there.”

37                  He suggested that the university ought either:

(a)       To return me to my administrative base at Bundoora within the arrangements suggested by the Dean, or

(b)       Enter serious negotiations with my lawyer … regarding an amicable parting of ways.

38                  On 17 July 1996 the appellant wrote to Associate Professor Green of the Department of Medical Laboratory Science, indicating his proposals for research work and his requirements.  He suggested that he would be able to do the work in laboratories operated by other people at the Bundoora campus and that he would not require facilities at the city campus.  This letter was apparently passed to Professor Story who replied, indicating that the appellant could carry out the proposed research at the city campus but not at the Bundoora campus.  Professor Story also indicated that office facilities would be available for the appellant at the city campus.  He was told to transfer his effects from Bundoora to the city campus as soon as possible.

39                  On 29 July 1996 the Vice-Chancellor replied to the appellant’s letter of 15 July, confirming that he was required to “work on the City Campus”.  The appellant replied on 30 July as follows:

In response to yours dated 29 July 1996 and with regard to the points raised in my fax to you (15 July 1996) and the significant employment disadvantage of moving my office to the City Campus, I respectfully decline your order to relocate to the City Campus.

40                  Professor Story wrote on 5 August, directing him immediately to commence duties on the city campus, using the facilities which had been arranged for him.  The letter concluded:

If you do not return to work on the City campus by 9 August 1996, I will be forced to take further action.

41                  The appellant replied on 9 August, saying:

Given the seriousness of your threat to terminate my employment if I refuse to relocate to the City campus by 9.8.96, I have sought intervention from the Governor of Victoria, His Excellency Richard E McGarvie in his capacity as Visitor to the RMIT.

42                  On 19 August the acting Vice-Chancellor advised the appellant that she was investigating “a matter which may constitute serious misconduct, or, in any event, misconduct, on your part …”.  He was invited to respond to certain allegations, primarily that he had failed to commence work on the city campus by 19 July as previously directed.  The acting Vice-Chancellor also pointed out that the Visitor had no jurisdiction to deal with the matter.

43                  The appellant responded to the acting Vice-Chancellor on 22 August.  On 30 August he wrote to the Deputy Vice-Chancellor, asserting that he was “still teaching at an outside institution … as directed at the beginning of the year”.  This apparently related to an arrangement pursuant to which the respondent earned income from the appellant’s so doing.  In par (2) of the letter he said:

I have not disobeyed a lawful direction to relocate to the City Campus, merely awaiting detailed information about the relocation to be assessed by me as not constituting demotion or punishment in my literal reading of section 12(f) of the 1995 Award.  In my view the context of the relocation makes it unfair and unlawful. 

44                  On 4 September 1996 the appellant was advised of the establishment of a misconduct investigation committee and invited to meet with that committee.  This meeting occurred on 13 September 1996.  The committee appears to have reported that the appellant had abandoned his duties by refusing to relocate to the city campus, thus rendering himself unavailable for teaching duties or for meetings with heads of department and other members of staff, or to perform his research work, using facilities provided for him at the city campus.  Of course, he had been relieved of teaching duties for the rest of 1996, but it seems to have been accepted that his other duties compelled his presence at the city campus if he were to perform them as directed by the respondent.

45                  On 14 October the acting Vice-Chancellor wrote to the appellant, indicating that she considered him to be guilty of disobeying lawful directions and that this constituted serious misconduct for which his services were to be terminated.  He was offered five weeks’ salary in lieu of notice. 

46                  The appellant sought relief pursuant to s 170EA of the Industrial Relations Act 1988 (Cth) (the “Act”).  In due course the matter came before Judicial Registrar Parkinson who gave judgment on 25 July 1997, dismissing the application.  The appellant then sought review of that decision, which matter came before Ryan J.  On 30 April 1999, his Honour dismissed the appellant’s motion for review.  From that decision the appellant now appeals.

47                  In the course of the present hearing, the respondent challenged the entitlement of the appellant to attack the decision of Ryan J upon a ground which seems not to have been argued before his Honour.  The point arises out of the conditions upon which the appellant was employed by the respondent.  The “Employment Schedule” by which the position was offered and accepted provides:

You will be based at the Bundoora Campus but may be required to work at other campuses of the University. 

48                  As I have indicated, the respondent operated several campuses, including the city campus and the Bundoora campus.  The case was conducted upon the basis that the appellant’s duties included three aspects, namely:

·                 Lecturing;

·                 Research work; and

·                 Supervising post-graduate students.

49                  The respondent was entitled to require him to perform his work at “other campuses”.  This presumably means that he could be directed to lecture, carry out his research, or some part of it, and supervise students at campuses other than the Bundoora campus.  Prima facie this would permit the respondent to direct him to perform all of his duties at campuses other than the Bundoora campus.  The only possible limitation upon this is the stipulation that he “will be based at the Bundoora campus”.  In argument there was a tacit assumption that these two conditions, as to base and as to location of work, were necessarily inter-related.  In general, one might expect that they would be.  However it is difficult to see any reason for limiting the respondent’s right to direct the appellant to perform work at other campuses unless the notion of “basing” has this effect. 

50                  The New Shorter Oxford Dictionary relevantly defines “base” as:

A town, camp, harbour, airfield, etc from which (especially military) operations are conducted and where stores and supporting facilities are concentrated; a centre of operations, a headquarters.

51                  In other words, a base may be a support facility rather than the site at which relevant operations are conducted.  If so, there could be no objection to the appellant’s being “based” at Bundoora, but performing his work at other campuses.  If all of his work were at the city campus, it may well be irrational that such an arrangement should continue, but that would not compel a narrow construction of the apparently unlimited right in the respondent to direct him to work at other campuses.  It might, more rationally, lead to a narrow construction of the requirement that he be based at the Bundoora campus.  It may be that such basing was to continue only for so long as the work requirements of the respondent were consistent with its being an appropriate base. 

52                  This issue was apparently raised before the Judicial Registrar.  I say this only because at AB xvi, there is a reference to a contention on behalf of the appellant that the respondent had relocated him as a disciplinary measure and that in so doing, it was in breach of the terms of the contract of employment.  I assume that this refers to the provision which I have been discussing.  The Judicial Registrar resolved the matter by finding that:

I am also satisfied that the provisions of the Award and the provisions of the employment contract contemplate a situation where transfer is necessary as a result of a breakdown of relations between employees at a work-site, irrespective of who is at fault for the breakdown of relations.

53                  The process by which the Judicial Registrar reached this conclusion is not clear, but an earlier passage on the same page refers to “the award provisions for transfer by way of relocation expenses”.  I have read the award.  As far as I can see, it says nothing about transfers between campuses, but Schedule II provides for the payment of employees’ expenses incidental to relocation.  I doubt whether one can read that Schedule as authorizing transfers between campuses where the matter has been expressly dealt with in the contract of employment.  In any event, the point is that the issue appears to have been raised before the Judicial Registrar.  However it seems that it was not dealt with by Ryan J.  Counsel for the respondent told us that the matter was not raised before his Honour.  The appellant did not dispute this.  Finkelstein J raised the point when entertaining an application by the appellant for leave to appeal out of time.  His Honour did not suggest that the point was a good one, but only that it appeared to be arguable.  This was relevant in considering the application with which his Honour was then concerned.  As a result, the point became a focus of the appellant’s case in this Court.  Even if the point has merit, we must consider whether the appellant ought be allowed to raise it at this stage. 

54                  There are two aspects to the point.  The appellant claims firstly that he was entitled to maintain his “base” at the Bundoora campus.  Secondly, he claims that the requirement that he be so based implied a limitation upon the extent to which the respondent could require him to perform his duties at other campuses.  Of course, it might be as easily argued that there was an implied term that his base be at an appropriate site, having regard to the campuses at which he was to perform his duties from time to time.  The stipulation that the Bundoora campus be his base may have been only an initial assignment, reflecting the respondent’s intentions as to his employment at that time.  I do not suggest that such an approach is necessarily correct, but it is possible.  Both approaches involve reading down an express provision of the contract.  As Finkelstein J observed, the proper construction of the agreement might arguably be dependent upon the circumstances in which it was negotiated.  (See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337.)  Those circumstances were not canvassed before Ryan J, but at p 3 of the appellant’s written submissions dated 1 November 1999, he took a similar line, arguing that the requirement to work at other campuses had a particular, and limited meaning in the university setting.  This may be so, but there appears to have been no evidence to that effect before Ryan J.  Either or both parties may have led such evidence had the point be raised in those proceedings.

55                  A second area which may well have been canvassed, had this issue been raised before Ryan J, was the effect of the discussion between Professor Story and the appellant on 11 July 1996, as evidenced by Professor Story’s note and by his letter of 12 July 1996.  Although Professor Story said that the appellant had not stated “his definite acceptance of these conditions” he derived the impression that “he would agree”.  The subsequent letter certainly speaks of “arrangements made at our meeting yesterday”.  More importantly, his Honour noted that in the appellant’s oral evidence, he said of the meeting:

I did not object at that stage because the way Professor Story had put it, I mean, it was preceded with a whole range of discussions and the impression I got from him was, you know, that at that stage he was very, very worried himself.  He had not been speaking to Sue Viney and he’s blamed for a whole host of things and what I felt was we were sort of giving each other comfort.  It was on that condition, on that sort of – not opposing but canvassing the issues of the relocation which I left.  So it was fairly amicable.  I think it was correct to say that he was under the impression that I was agreeable to it, yes.

56                  Thus the appellant accepted that Professor Story may well have thought that he was agreeable to the proposal.  It is not necessary in order that there be a contract that an offer be expressly accepted.  Conduct, including statements indirectly implying acceptance, may be sufficient to evidence an intention to do so.  Thus it may have been reasonably arguable that at the meeting on 11 July, an agreement was reached which replaced the obligation to provide a “base” at the Bundoora campus with an obligation to provide such a base at the city campus.  It is true that Professor Story was, at best, equivocal on the point, but he did not give his recollection of the words actually used in the conversation.  Had this been a live issue before Ryan J, it may have been further investigated.  There is also the argument based upon the terms of the award, which found favour with the Judicial Registrar, although I must say that I do not have much enthusiasm for it.  I should add that at some stage, the appellant argued that the facilities at the city campus were not adequate for his purposes, but before Ryan J, they were treated as being “at least the equal of those available to the (appellant) at Bundoora …”.

57                  The question, then, is whether the appellant should now be allowed to rely upon an assertion that he had a contractual right to be “based” at Bundoora, whatever that may mean, notwithstanding the direction that he perform his duties at the city campus.  The significance of such an argument is that it will be a basis for asserting that the respondent was, itself, in breach of contract at the time that it purported to determine the appellant’s employment for his breach, in that it was asserting an entitlement to change his base.  Alternatively, the argument may be that the “transfer” to the city campus (including the direction as to duties) was in breach of contract.  As I have said, the latter approach would depend upon acceptance of a construction of the relevant term of the contract of employment which subordinates the right of the respondent to direct the appellant as to where he should perform his duties to his asserted right to a base at the Bundoora campus.  I do not consider that argument to be fairly open.  The principal obligation upon the appellant was to perform duties as directed.  Any obligation upon the respondent to provide a base was intended to assist the appellant in discharging those duties.  The obligation as to performance of duties was the dominant theme.  The contract should be construed accordingly.

58                  The suggestion that the respondent was in breach of contract in refusing to continue to provide a base at Bundoora must be considered in the context of the appellant’s behaviour.  The appellant was in breach in refusing to perform any of his duties at the city campus.  The case has been conducted upon the basis that he both indicated an intention not to perform duties at the city campus and actually failed to do so.  Although this was not clear in the course of argument, a perusal of the record discloses as much. 

59                  In Associated Newspapers Ltd v Bancks (1951) 83 CLR 322, the High Court said at 336:

The first question is whether the company’s undertaking to present the defendant’s drawings on the front page of the comic section is a condition or essential term of the contract going to its very root, the breach of which would immediately entitle the defendant at his option to rescind the contract and sue for damages for the loss of the contract, or a mere warranty or non-essential and subsidiary term the breach of which would entitle the defendant to damages.

60                  At 337, the Court adopted the following passage from the judgment of Jordan CJ in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR(NSW) 632 at 641-2:

The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor.

61                  There is little doubt that the appellant’s failure to perform his duties at the city campus, as directed by the respondent, was a breach of an essential term of the contract.  Further, his indication that he would continue so to act in the future evidenced a clear intention to repudiate the contract.  See Shevill v The Builders Licensing Board (1981-1982) 149 CLR 620 at 625-6.  This conduct would justify his dismissal.  On the other hand, the respondent’s obligation to provide a “base” at the Bundoora campus was arguably only a warranty, a breach of which would not entitle the appellant to terminate the contract.  Such a breach would also not detract from the respondent’s right to determine the contract for the appellant’s breach.  See Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26.  The position may be otherwise if the breach or anticipatory breach evidenced an intention to repudiate.  See DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977-1978) 138 CLR 423 at 432-4).  However that case also demonstrates that assertion of an intention to perform a contract according to a mistaken construction of it will not always constitute repudiation.

62                  The issue is complex and involves significant factual questions which were not addressed in evidence, at least by the respondent.  In those circumstances it is difficult to see why this Court should now entertain it.  The proper approach by an appellate court to such a problem appears in the judgment of Starke J in Davison v Vickery’s Motors Ltd (In Liquidation) (1925) 37 CLR 1 at 35, where his Honour said:

No one, I suppose, disputes the authority of an appellate Court to consider questions raised, for the first time, before it, but such questions ‘ought to be most jealously scrutinized.  The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested.  And it is obvious that no care is exercised in the elucidation of facts not material to them.’  … It is less difficult to induce a Court of Appeal to consider a question of law raised for the first time upon the construction of a document or upon undisputed facts, than a new question of fact.  But a party cannot be allowed to take his chance of a finding in his favour upon the fact of an agreement, and then, on appeal, for the first time dispute the authority of the person who negotiated that agreement.  Such a party is and ought to be bound by the course of the trial … .

63                  It cannot be said that the appellant, even as an unrepresented person, was unaware of the terms of his contract or of their significance.  Indeed, it appears that the question was at least partially raised before the Judicial Registrar.  I would decline to allow the appellant to rely, at this stage, upon any assertion of a contractual entitlement to maintain a base at the Bundoora campus.

64                  As I understand it, the respondent’s conduct in dismissing the appellant was to be assessed pursuant to subs 170EDA(1) and subs 170DE(1) of the Act. It was for the respondent to demonstrate that it had terminated the appellant’s employment for:

… a valid reason or reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

65                  That involved an examination of the respondent’s direction that the appellant perform his duties at the city campus and not attend at the Bundoora campus, and of the appellant’s refusal to comply with such directions.  The only substantial attack upon the decision of Ryan J was the assertion that the direction to “transfer” to the city campus constituted further punishment for the appellant’s misbehaviour which had previously been dealt with by way of censure.  I assume for the moment that the censure and the letter in which it was conveyed constituted an affirmation by the respondent of the contract of employment, notwithstanding the appellant’s breach.  It was nonetheless open to the respondent, in exercising its power to direct the appellant as to where he should perform his work, to have regard to the strained inter-personal relationships which existed at the Bundoora campus.  As his Honour found, it was, in the circumstances, a reasonable step to take.  Whilst the “punitive” process may have been completed and the contract affirmed, the respondent still retained the right to determine how it would deploy its resources, including its entitlement to call upon the appellant to perform his duties at any of its campuses.  There was no reason why it should not have used that resource in a way which minimized the adverse effects of inter-personal conflict.

66                  It follows that the appellant’s conduct in refusing to perform his principal duties under the contract was a valid reason for his dismissal.  It certainly could not be suggested that the decision to dismiss was “capricious, fanciful, spiteful or prejudiced”, to adopt the words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373, referred to by Ryan J at AB 230-1.

67                  I have perused the appellant’s written submissions and considered his oral submissions.  I have also considered carefully the history of this matter, both as disclosed in the judgment of Ryan J and as it otherwise appears in the material.  I am firmly of the view that there is no substance in the appeal and that it must be dismissed.

Associate:

Dated:              8 December 1999