Federal Court of Australia

Mills v University of New England [2023] FCA 1409

ORDERS

THE COURT ORDERS THAT:

1.    The costs of the applicant’s application for continuation of the injunction made on 2 November 2023 be reserved.

2.    The matter be listed for case management at 9:30 am on Tuesday 21 November 2023.

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

REASONS FOR JUDGMENT

KENNETT J

introduction

1    The applicant (Mr Mills) is employed as the head of a residential college at the University of New England (the University) in Armidale, New South Wales. In February 2023 he attended a retreat for student leaders at Coffs Harbour. An allegation later emerged that, when walking with a group of students to their accommodation in the evening, Mr Mills had touched a female student inappropriately.

2    Mr Mills complains that the process that has been followed by the University to investigate this allegation, and consider the imposition of sanctions upon him, has not complied with relevant provisions of the UNE Professional Staff Enterprise Agreement 2002 (the Agreement) and that the University has therefore contravened s 50 of the Fair Work Act 2009 (Cth) (the FW Act). Pursuant to s 545 of that Act, he seeks declaratory relief and an order that the “misconduct process” be abandoned. He also seeks pecuniary penalties under s 546 of the FW Act.

3    The present issue concerns an interlocutory order sought by Mr Mills. His originating application sought an order that the University:

(a)    cancel a meeting of the Misconduct Investigation Committee (MIC), which had been convened to consider the complaint against Mr Mills, that was scheduled for 3 November 2023; and

(b)    take no further steps in the misconduct process until further order.

4    This application came before Katzmann J as duty judge on 2 November 2023. At that stage it was urgent and was heard ex parte. Her Honour made the order that was sought.

5    The issue whether the ongoing aspect of the order should be continued came before me, as duty judge, on 10 November 2023. I have concluded that the order should continue.

provisions of the agreement

6    In so far as it is presently relevant, cl 47 of the Agreement provides as follows.

(a)    Employees are entitled to procedural fairness in connection with the management of misconduct and serious misconduct allegations (cl 47.1).

(b)    “Misconduct” is conduct that is “unsatisfactory”, including conduct that constitutes an impediment to the carrying out the employee’s or other employees’ duties. An example is a failure to follow a reasonable and lawful direction (cl 47.5).

(c)    “Serious Misconduct” is “wilful conduct” that constitutes a “serious” impediment to the carrying out the employee’s or other employees’ duties, or serious dereliction of duties. Examples include wilful conduct that causes serious or imminent risk to a person’s health and safety and “serious or repeated Bullying or harassment, including sexual harassment” (cl 47.6).

(d)    Where there is an allegation of Misconduct or Serious Misconduct, the University Officer is to make an initial assessment and arrange preliminary inquiries to determine an appropriate course of action. This is to include “talking to” the employee who is the subject of the allegations (cl 47.10).

(e)    The courses that may then be taken (under cl 47.11) are (relevantly here):

(i)    if there is no merit in the allegations, dismiss the matter;

(ii)    if the allegations have merit but do not amount to Misconduct or Serious Misconduct, decide whether the matter should be dealt with under a different process;

(iii)    if the allegations have merit but are not of a serious or significant nature, attempt to resolve the matter with the employee through “Remedial Action” (defined in cl 47.7 and including counselling, a requirement to attend training and mediation); or

(iv)    refer the matter to the “Head of Cost Centre” or relevant University Officer) (who is then referred to as “the Delegate”) and notify the employee in writing.

(f)    If the matter is referred to a Delegate, they must notify the employee of the allegations “in sufficient detail to enable the employee to understand the precise nature of the allegations” and provide a minimum period of 10 days in which to respond (cl 47.12).

(g)    If the employee does not respond, or admits the allegations, a range of actions become available under cl 47.14. They include closing the matter, informing the employee of proposed “Disciplinary Action” or referring the matter back to the Head of Cost Centre to take Remedial Action (cl 47.14).

(h)    If the allegations are denied in part or in full, an investigation process begins. The Delegate is to make such inquiries as are considered necessary, which may include the appointment of an investigator (cl 47.16). The investigator can determine their own process and who is to be interviewed, subject to the requirement that they “must allow the Employee a reasonable opportunity to respond to any new matters, or variations to the initial allegations”. The investigator reports to the Delegate, and their report must be given to the Employee within 5 days of being provided to the Delegate (cl 47.17).

(i)    If the Delegate considers that there has been conduct that amounts to Misconduct or Serious Misconduct, they are to establish a MIC; otherwise the matter will be closed (cl 47.18).

(j)    Where a matter is referred to a MIC, it must be convened within 10 working days (where practicable) (cl 47.19).

(k)    The MIC is to be chaired by a person appointed by the Vice-Chancellor from a list of people agreed between the University and the relevant Union. The other members are to be an employee nominated by the University and an employee nominated by that Union (cl 47.20). It is required, inter alia, to conduct its proceedings “as expeditiously as possible consistent with the principles of procedural fairness” and to report to the Vice-Chancellor and the Employee within 10 days of concluding its proceedings (cl 47.22(f), (h)).

(l)    Under cl 47.21, the MIC is to:

report on the facts relating to the allegation/s that have been denied …, including whether there are any mitigating circumstances evident, and make a finding as to whether Misconduct or Serious Misconduct has occurred, and to recommend appropriate action.

(m)    After being sent the MIC’s report, the Employee has 10 days in which to write to the Vice-Chancellor raising any concerns about the process and outlining any factors they wish to have taken into account (cl 47.23).

(n)    The Vice-Chancellor is then to make a “determination” (cl 47.24) which, at least implicitly, can involve the taking of “Disciplinary Action”. “Disciplinary Action” is defined by cl 47.8 and can involve:

(i)    formal written censure, reprimand or warning;

(ii)    reallocation of duties (including a reduction in level); or

(iii)    termination of employment (only in a case of Serious Misconduct).

the present case

7    The following chronology emerges from the evidence before the Court on the interlocutory application.

8    Mr Mills received an email from the Director, People and Culture, on 16 March 2023 directing him to attend a meeting on the following Monday. There was an exchange of emails in which Mr Mills sought information about what was to be discussed and the Director refused to tell him anything more than that she had been “made aware of instances of [his] behaviour which concern the wellbeing, health and safety of students residing at the Armidale campus”. Mr Mills was threatened with disciplinary action if he did not attend.

9    Mr Mills attended the meeting. He was asked if he had ever touched anyone inappropriately. It was put to him that “several people saw you touch someone on the backside” (a statement that, on the evidence adduced thus far, seems to have had no basis). He complained that he had not been shown a copy of a complaint, and was told that the Director was not putting a complaint to him. He was directed not to discuss the matter with anyone and not to “engage in any clarifying questions”.

10    A witness to the alleged incident (the witness) was interviewed by an employee of the University on Monday 20 March (the same day as the meeting) and provided her detailed observations of the incident.

11    On 29 March (without any further communication with Mr Mills), the University appointed an investigator. Nothing seems to have happened thereafter until early May 2023, when the investigator interviewed the alleged victim and the witness. The alleged victim’s account of the incident was equivocal. Mr Mills will seek to argue that the investigator repeatedly asked leading questions at critical points. The investigator did not interview either of the two other people who were present, even though one was standing next to the witness at the time.

12    On 30 May 2023 a “University Officer” wrote to Mr Mills, directing him to attend a meeting on 8 June. (The meeting was later postponed to 28 June.) This was said to be in accordance with cl 47.10. “The Allegation” was set out as follows:

It is alleged that on or about 13 February 2023 you behaved inappropriately and or sexually harassed [the alleged victim], when you used your hand to make unwelcome and uninvited physical contact with her buttocks. The contact occurred whilst you and a group of female students were walking back to your accommodation at the Big 4 Caravan Park, after departing the bus from the Leadership Retreat at Coffs Harbour.

13    It may be noted that this formulation provided some detail of the alleged incident, but not as much as the University had by this stage obtained from the witness, and curiously referred to a time “on or about” 13 February 2023 even though the exact date was known.

14    Also curiously, on 1 June 2023, the University wrote to the investigator (who had been retained on 29 March) and asked her to prepare her report in draft but not to “forward it at this stage”. It may be that somebody at the University had read cl 47.10–47.16 of the Agreement and realised that the appointment of the investigator had been premature.

15    Mr Mills met with the University Officer via Teams on 28 May. Detailed particulars of the allegation, which the University seems to have had from the witness, were not put to him.

16    On 2 August 2023 Dr Rebecca O’Reilly, Associate Professor in Nursing, wrote to Mr Mills, informing him that she was required to decide an appropriate course of action under cl 47.11 of the Agreement and that, under cl 47.11(e), she was referring the matter to a Mr Bryn Griffiths as Delegate. The “Allegation” was set out in the same terms as in the letter of 30 May.

17    On 4 August 2023 a different University Officer (Mr Timothy Mannes) wrote to Mr Mills “as Delegate” to “notify” him of “the Allegation concerning [his] conduct”. This was said to be in accordance with cl 47.12 and reference was made to cl 47.13, 47.14 and 47.16. “The Allegation” was set out at greater length but included no further particulars. It was as follows:

It is alleged that on or about 13 February 2023 you behaved inappropriately and or sexually harassed [the alleged victim], when you used your hand to make unwelcome and uninvited physical contact with her buttocks. The contact occurred whilst you and a group of female students were walking back to your accommodation at the Big 4 Caravan Park, after departing the bus from the Leadership Retreat at Coffs Habour. It is alleged that your conduct breached UNE Code of Conduct, policies and your employment agreement in that it was sexual harassment by physical contact being unwelcome touching or patting of [the alleged victim’s] buttocks.

18    On 21 August 2023 Mr Mills’s solicitors responded denying the allegation, complaining of a lack of particulars and asserting non-compliance with cl 47.12.

19    On 28 August 2023 a Mr Millard responded, saying that the Delegate would proceed under cl 47.16. It will be recalled that cl 47.16 contemplates the appointment of an investigator. It was in fact Mr Millard who had engaged the investigator on 29 March. A few days later, on 31 August, the Delegate wrote to Mr Mills telling him that “I have appointed an investigator”. (On the existing evidence, this was at best misleading.)

20    On 4 September 2023 the investigator wrote to Mr Mills, inviting him to “respond to the allegations” and asking whether he wanted to do this “via a transcribed interview process or in writing”. It appears that Mr Mills did not respond directly to the Delegate. On 15 September 2023, his solicitors wrote to the University alleging several breaches of cl 47 of the Agreement, including a lack of sufficient particulars of the allegation. An exchange of emails then occurred between the solicitors and the investigator. Responding to a question as to what procedure would be followed, the investigator replied (opaquely and, on the present evidence, disingenuously):

There are no new matters or variations to the allegation. The process for the investigation, is for me to finalise by report by obtaining and analysing the evidence gathered including Mr Mills’ response, and to make a finding on the balance of probabilities. My report will then be provided to the UNE for their consideration as to what, if any further action is required pursuant to UNE policy.

21    Mr Mills does not appear to have made any substantive response to the investigator apart from (through his solicitors) denying the allegations.

22    Mr Mannes informed Mr Mills by letter on 24 October 2024 that he had considered the investigator’s report and was of the view that Mr Mills’ conduct amounted to Misconduct or Serious Misconduct. He said that he was in the process of convening a MIC.

23    It is not clear when the investigator’s report was provided to Mr Mills. The letter under which it was sent to the University was dated 23 October 2023 (the day before Mr Mannes conveyed his decision to convene the MIC). The covering letter refers to instructions to conduct the investigation having been received on 5 April 2023. The report concluded that the allegation was substantiated. Transcripts of the interviews that the investigator had conducted were annexed to the report. This appears to have been the first time Mr Mills was provided with the witness’s detailed account of how she saw the incident unfold.

24    By an undated letter received on 26 October, Mr Mannes directed Mr Mills to attend a MIC meeting on 3 November. The letter informed Mr Mills that the MIC members had been provided with the investigator’s report.

25    The meeting on 3 November did not take place as a result of the orders made by Katzmann J, referred to above.

26    Two other points of potential relevance should be noted.

(a)    The recollection of the witness, contained in the transcript of her interview with the investigator, was that she was walking behind Mr Mills and the alleged victim; Mr Mills turned towards his accommodation and passed behind the alleged victim; and in the process his hand touched her buttocks. This level of particularity was not available to Mr Mills until he received the investigator’s report.

(b)    Mr Mills has given evidence that he suffers from an eye condition which makes his peripheral vision very poor and he regularly bumps into things. Of course, this evidence is so far untested. It has also not been raised in the misconduct process so far.

consideration

27    The parties proceeded on the orthodox basis that the questions requiring consideration were whether there is a real issue to be tried and where the balance of convenience lay. In this case, the latter question turns to a large extent on how the answer to the former is understood.

Real issue to be tried

28    The University accepts that there is a real issue to be tried as to whether there have been contraventions of cl 47 of the Agreement. However, the University submits that the case for the proposed order requiring abandonment of the current misconduct process is weak. If that is so, the case for the interim injunction suspending that process is clearly difficult to maintain: the justification for the interim injunction is the presentation of the status quo so that the claim for the proposed final order is not rendered nugatory.

29    The University’s submission, shortly put, is that any unfairness arising from possible breaches of cl 47 in the process that has occurred thus far has been, or can be, cured by the process that is yet to occur before the MIC and the consideration of its report by the Vice-Chancellor. Mr Mills now has a detailed account of what is alleged to have occurred. He can put to the MIC (and subsequently the Vice-Chancellor) whatever evidence and arguments he may wish to in response to this material.

30    To assist this submission, the University has undertaken to the Court to convene a new MIC and not to provide it with the investigator’s report (although it would be provided with the transcripts attached to that report). Thus, if the investigator’s conclusions are undermined by Mr Mills not having had a proper opportunity to make his case before her, the MIC’s deliberations will not be tainted by those conclusions.

31    This argument might well have considerable force if the present case were an application for a writ of prohibition, seeking to prevent the making of an administrative decision on the ground that the decision would be procedurally unfair. That is to say, there is scope for at least a reasonable argument that the reconstituted MIC can provide to Mr Mills a hearing that is procedurally fair and no disciplinary action can be taken until that process is complete. However, this is not a case of that kind. The issues are whether provisions of the Agreement have been contravened and, if so, what is the appropriate relief to grant in response to those contraventions.

32    If Mr Mills’ case is made out at a final hearing, it will establish that he has not received the procedural protections provided for by cl 47. Had its provisions been followed, he would have had the following opportunities.

(a)    In an initial assessment under cl 47.11, he could potentially have persuaded the University Officer that the allegation against him had no merit and should end there, or that what happened did not amount to Misconduct or was not serious enough to require an investigative process. That would have avoided the stress, and risk to his career, arising from such a process.

(b)    He could have made properly informed submissions to the Delegate (or, once an investigator was appointed, to the investigator), including meeting with the investigator to explain his understanding of the incident. Potentially, he could have persuaded the Delegate that there was no Misconduct or Serious Misconduct and the matter should be closed (cf cl 47.18). That would have avoided the stress and risk of a proceeding before a MIC.

33    In the circumstances disclosed by the evidence before me, those opportunities would have been more than theoretical. According to the interview transcripts, the physical contact between Mr Mills and the alleged victim was fleeting, and so slight that she did not really notice it at the time. If he was turning to pass behind her at the time, it was not necessarily implausible that the contact either did not occur or was accidental. He could have put forward evidence of his eye condition and its effects, which would have added weight to an argument along those lines.

34    Thus, on Mr Mills’ case, he has lost something of importance even if the remainder of the process now in train can be rendered procedurally fair. Because the first two stages of the process mandated by cl 47 have not been carried out properly, in effect all of his eggs are in the basket of the MIC. On that basis, I think it is reasonably arguable that the relief to be granted under s 545 of the FW Act should include an order requiring the process to be terminated. If considered appropriate, the University could then commence the process afresh.

Balance of convenience

35    Clearly, if the misconduct process continues and is completed while this proceeding is on foot, the claim for an order requiring termination of the process will be rendered nugatory. That goes a long way to establishing that the balance of convenience favours an interim order requiring the process to be suspended.

36    A further undertaking proffered by the University seeks to shift the balance. That undertaking is, subject to any order of the Court, not to implement any disciplinary action determination involving termination of employment. The result is that Mr Mills’ employment would not be terminated while the proceeding was on foot, and he would not be put in the position of needing to amend (or commence another proceeding) and seek an order for reinstatement.

37    While this undertaking is not insignificant, it is in my view not sufficient to require the interim injunction to be dissolved.

(a)    In its terms, the undertaking only applies to termination of employment. It would not prevent implementation of a decision to impose any other form of disciplinary action (such as formal censure or re-allocation to different — potentially less remunerative — duties). If that were to occur while the proceeding was in train (including while judgment is reserved), Mr Mills would have to seek leave to amend his application and seek additional orders to attempt to unwind what had occurred.

(b)    The undertaking is only to refrain from implementing a decision — not from making a decision. A position could be reached in which there is a decision to terminate Mr Mills’ employment (and a MIC report supporting that decision) which, if Mr Mills’ case is made out, will need to be the subject of an application for relief under s 545. Although (as I understand it) relevant decisions are not ordinarily made public, there is some potential prejudice to Mr Mills if he is found to have sexually harassed a student, even if the imposition of sanctions on him is prevented by a court order.

(c)    Continuation of the misconduct process to any extent is highly likely to result in wasted effort in the event that Mr Mills’ application succeeds. To the extent that effort is expended by the University, it may be said to have chosen to do so. However, I do not consider that Mr Mills should be put to the effort and stress of participating in the MIC’s process, and then making representations to the Vice-Chancellor, in circumstances where he is simultaneously involved in curial proceedings that may vitiate the whole process.

38    The University has also expressed concern about the effect of further delay to the misconduct process, including on the well-being of the students involved (who, according to the evidence, will be continuing as students in 2024). I do not think this consideration can be given great weight.

(a)    I was informed that neither the alleged victim nor the witness was or is a resident in the college which Mr Mills heads. I infer, therefore, that the prospects of them needing to have any interactions with Mr Mills (or circumstances arising where such interactions might be feared) are limited. There was no evidence to the contrary of such an inference. The highest the evidence went was statements by the alleged victim to the investigator that she kept seeing Mr Mills on campus and her preference was not to see him. There is no evidence of the University having been moved, in the months that have elapsed since the allegation was raised, to seek any arrangements that would prevent contact between Mr Mills and the students.

(b)    There has already been considerable delay in dealing with this matter, which appears to have resulted from dilatoriness on the part of the University’s officers rather than anything done by Mr Mills; indeed, delay is part of what Mr Mills complains about. The University was aware of an allegation against Mr Mills at least by 16 March, and the witness seems to have been interviewed on 20 March. Something recognisable as a “preliminary assessment” under cl 47.10 got under way at the end of May. The matter was referred to a Delegate in early August and the Delegate made his decision on 24 October. If the University is prejudiced by delay it has, to a large extent, brought this upon itself. To the extent that the decision-making process is made more difficult by witnesses’ memories having faded, this has already occurred and is a problem for all parties.

disposition

39    The order made by Katzmann J on 2 November 2023, in so far as it has ongoing effect, should continue in force.

40    Subject to hearing from the parties, I consider that her Honour’s order will continue in force without any order needing to be made by me at this time. I will therefore make no order except to list the matter for case management on a date to be fixed, and reserve the costs of the interlocutory hearing.

Associate:

Dated:    15 November 2023