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[2001] AIRC 1055
General information, not legal advice.
Australian Industrial Relations Commission
2001-10-11
Original judgment source is linked above.
s.45 appeal against decision [Print S0551]
issued by Senior Deputy President Harrison on 29 October 1999
s.170CE application for relief in respect of termination of employment
s. 45 appeal - termination of employment - application for order of reinstatement - leave to appeal - admission of new evidence on appeal - approach to be adopted on appeal - whether there was a valid reason for termination - whether direction to take up First Year Laboratory Director position was lawful and reasonable - interpretation of position classification standards - position consistent with contract of employment - assignment of duties was reasonable and lawful direction - Full Bench satisfied that refusal to assume duties constituted serious misconduct - common law concept of serious misconduct - no justifiable basis for refusal - applicant's conduct constituted serious breach of contract or evinced intention no longer to be bound by contract - award definition of serious misconduct - question of onus in relation to s170CE(1)(a) - whether termination of employment was harsh, unjust or unreasonable - merit of application considered - termination not harsh, unjust or unreasonable - leave to appeal granted - appeal dismissed.
[1] This is an application for leave to appeal and an appeal against a decision of Senior Deputy President Harrison given on 29 October 1999 (Print S0551).
[2] There is a long background to the hearing of the present appeal by the Commission. Briefly stated, the background includes the following.
[3] When the appeal came back before the Commission, application was made by counsel for Dr Miller for the admission of new evidence and for the amendment of the grounds of the appeal. On 30 May 2001 the Full Bench determined to admit the new evidence. A program was established for the filing of additional evidence, the hearing of the evidence, and the filing of written submissions.
[4] The additional evidence relied upon by the Applicant relates mainly to the University of New South Wales (Academic Staff) Enterprise Agreement 1997-1998 (the EBA) and, in particular, to the Position Classification Standards (PCS) which form a schedule to the Agreement and to the provisions relating to serious misconduct. The Full Bench sat on 15 August 2001 to hear the evidence and to allow cross-examination of the witnesses.
[5] The additional evidence presented for the Applicant includes the following.
"4. Award Conditions Protection: the University has agreed to protect all award conditions for the life of the enterprise agreement, with the re-drafting of certain agreed clauses, specific to UNSW, relating to unsatisfactory performance, misconduct and probation."
[6] The additional evidence presented by the University includes the following:
[7] After the hearing of the evidence, the parties were required to file written submissions in the appeal. In proceedings on 17 September 2001, counsel for the Applicant and the University were given an opportunity to speak to the written submissions. Written submissions in reply were filed by counsel for the Applicant on 21 September 2001.
[8] In considering the appeal, it is appropriate at the outset to refer in some detail to the proceedings and decision of the Senior Deputy President in this matter and to the decision of the Court in Miller.
[9] The Senior Deputy President dismissed Dr Miller's application for an order seeking reinstatement in employment with the University. The conclusion reached by her Honour was as follows:
"[124] I have earlier found that Dr Miller was required to comply with the lawful and reasonable directions of his employer. I have also earlier found that the direction to Dr Miller to assume the job of FYLD was lawful. On the basis of my findings in those parts of this decision in which I have considered s.170CG(3)(a) and (e) I also find that direction was reasonable. In my opinion Dr Miller had no proper basis to refuse that direction. The University had a valid reason to dismiss him. It did all that could reasonably be expected to accommodate Dr Miller's concerns about ensuring he would have adequate time for research. None of the grounds asserted by Dr Miller as to why he should not be directed to do the job were persuasive.
[125] The dismissal of Dr Miller was not harsh, unjust or unreasonable. His application is dismissed." (Print S0551)
[10] In the Court's decision, a summary is provided as to the essential reasons of the Senior Deputy President for dismissing the application for reinstatement. No issue was raised in the appeal proceedings as to the summary provided. We therefore adopt the summary of the Court (104 IR 415 at 416-422) as follows:
7 The Senior Deputy President described the evidence before her thus:
· The terms and conditions of academic staff of the second respondent were regulated, relevantly, by the Universities and Post Compulsory Academic Conditions Award 1995 (the Award); and by the University of New South Wales (Academic Staff) Enterprise Agreement 1997-98 (the EBA).
· Within the School there is a position known as First Year Laboratory Director (FYLD), an important "job" (the job) (although not referred to by that name in any award or the EBA) which is allocated to a member of the academic staff by the Head of School (Professor Oitmaa). Students enrolled in courses requiring them to spend time in the First Year Laboratory (FYL) come not only from the Faculty but also from other Faculties. Much of the School's budget reflects "earnings" for providing this teaching to students of other faculties.
· Over the previous twenty years, the job has been performed by one particular member of the academic staff, but, by 1997, Professor Oitmaa had formed the view that it was time for a change in the way the job was done and the FYL operated. In February 1997, Professor Oitmaa asked the applicant whether he would be interested in being FYLD, as the position was becoming vacant later in the year, when the incumbent would move to another position. The applicant declined.
· In August 1997, Professor Oitmaa asked any member of staff interested in taking on the position of FYLD to contact him. There were no volunteers.
· Professor Oitmaa then decided that the applicant was the best person for the job, for the following reasons: his experience; his stated interest in teaching and curriculum development; the fact that he had not undertaken significant administrative duties since 1992; he had only supervised one PhD student; and he did not have a research output sufficient to prevent him undertaking the job.
· In September 1997, Professor Oitmaa wrote to the applicant asking him to take on the position of FYLD from 1 December 1997, stating that no one had volunteered and that the job "needs to be done", and giving, in essence, the reasons mentioned above why the applicant had been approached.
· The applicant responded in late September 1997, stating that the FYLD would have little, if any, time for research and that he had already filled two positions which had taken research time - Second Year Laboratory Director (1982 - 88) and Post-Graduate Director (1989 - 1992).
· The applicant and Professor Oitmaa met later in September 1997. The applicant expressed his reasons for not wishing to undertake the job. Professor Oitmaa offered to appoint additional staff to take on some aspects of the job. This offer was repeated by Professor Oitmaa in a memorandum to the applicant dated 30 September 1997, in which Professor Oitmaa also expressed his belief that, as FYLD, the applicant would still have the equivalent of two days per week for research.
· By memorandum dated 29 October 1997, the applicant informed Professor Oitmaa that he declined to accept the job.
· Professor Oitmaa replied by memorandum to the applicant dated 5 November 1997, indicating that the applicant's conduct constituted a "clear refusal to accept a legitimate assignment of teaching and administrative duties ...".
· By letter dated 10 November 1997, the University's Vice-Chancellor wrote to the applicant in this connection and referred to cl 14.2(b) of the EBA. Clause 14.2 deals with disciplinary action for misconduct/serious misconduct. By cl 14.2(b), the Vice-Chancellor is to consider any such allegation and, if he/she believes it warrants further investigation, the Vice-Chancellor shall notify the academic and require a written response. The applicant was required to respond to the allegation that, on at least four separate occasions and without reasonable excuse, he refused to carry out the lawfully given instructions of his supervisor, Professor Oitmaa, to undertake the responsibility of FYLD.
· In his written response dated 26 November 1997, the applicant denied the allegation on several grounds, including his claim that the instruction was unreasonable, unjust and oppressive, as it was effectively a demotion, because the job's responsibilities were inconsistent with the Position Classification Standards (PCS) in the EBA, and involved lower level administrative duties.
· The Vice-Chancellor replied by letter dated 28 November 1997, informing the applicant that the matter would be referred under cl 14.2(f) to a Misconduct Investigation Committee (MIC) in accordance with the terms of reference in cl 14.3.2, that is, to report on the facts and on any mitigating circumstances.
· In its report dated 23 February 1998, the MIC noted that there was a real issue about whether the allegation, in the light of the alleged facts and circumstances, might give rise to a finding of misconduct; that the duties of FYLD were extensive and lent credence to the claim that there would be insufficient time left for an average of two days per week for research; that the previous FYLD had been a tutor, then a lecturer, and the position had not before been filled by an Associate Professor; and that there were mitigating circumstances which deserved consideration.
· Upon receipt of the report, by letter dated 4 March 1998, the Vice-Chancellor notified the applicant of a determination that the applicant had been found guilty of serious misconduct, and that, although disciplinary action could be taken, the Vice-Chancellor had decided to address two of the applicant's concerns and to give the applicant a final opportunity to accept the job; but that, if not accepted, the Vice-Chancellor would proceed to disciplinary and other action. With respect to the first area of concern (research time) the Vice-Chancellor said that Professor Oitmaa was confident that the applicant would have two days per week for this, averaged over the academic year and that the role of FYLD would, in the case of the applicant, be for a term of three years maximum. Secondly, the job did not involve a demotion: it was not a full-time academic position, but rather a component which made up a full-time academic position. The letter continued:
"I understand that the importance of the role of First Year Laboratory Director to the School of Physics is not at issue. Rather your concerns about taking on the role are based on your observations of how the previous incumbent performed the role. Professor Oitmaa does not envisage a similar role for you as First Year Laboratory Director.
In his memo to you of 10 September 1997 Professor Oitmaa indicated that he thought you had both the capacity and ability necessary to undertake the role of First Year Laboratory Director. He says in his memo, (referred to at page 3 of the Committee's report):
`I am approaching you for a number of reasons. Firstly I am convinced of the essential nature of the laboratory program and the pivotal role it must continue to play in educating both physics majors and servicing students. Therefore it is essential that the laboratory be overseen by someone with sound educational views and a commitment to quality teaching. Secondly, it requires a capacity and willingness to work hard and you have demonstrated these qualities over the years. Finally, it needs, I believe, someone with an experimental approach to physics. I have given serious consideration to all of the School's current academic staff and I believe you are the best person for the position.'"
Professor Oitmaa went on in his memo to describe the role envisaged and said that (at page 3 of the Committee's report),
"`... the laboratory had been drifting for the last few years and some urgent revitalization is needed.'
The exact duties of the role and the level of support staff assigned to assist the Director should be discussed and clarified with Professor Oitmaa and Professor Sutherland.
I have instructed Professor Oitmaa that once you have accepted the role of First Year Laboratory Director that he and Professor Sutherland should meet with you to discuss the two issues I have referred to above, to clearly define the expectations of all parties in you taking on the role of First Year Laboratory Director over the next three years. I have also discussed with Professor Oitmaa and the Dean my view that the Dean should have an ongoing role to ensure that the issues referred to in this letter are monitored during the period that you undertake the role of First Year Laboratory Director.
You should however be aware that the discussions will only commence on the basis that you agree to accept the responsibility of First Year Laboratory Director. The role is an academic function which is able to be performed by an Associate professor and which you have been properly directed to take up.
You will need to respond to me in writing by the close of business Monday 9 March 1998 indicating, without qualification, your acceptance of the role. If you fail to accept the role within the time frame indicated, I will proceed to take disciplinary action against you and consider the options available to me under the UNSW (Academic Staff) Enterprise Agreement 1997-98, including demotion or termination of your employment at this University."
· The applicant responded by letter dated 9 March 1998, disputing that he was guilty of serious misconduct, reiterating his earlier reasons. On 12 March, the applicant indicated that he would not accept the role of FYLD.
· By letter dated 13 March 1998, the Vice-Chancellor summarily dismissed the applicant for his refusal to obey the Head of School's instructions.
(b) Was the termination of employment harsh, unjust or unreasonable within s 170CG(3)?
8 The Senior Deputy President noted that the Commission was obliged, by s 170CA(2), to ensure "a fair go all round".
9 The Senior Deputy President further noted that s 170CG(3) provided that in determining this, regard must be had to:
"(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
10 Turning to s 170CG(3)(a), the Senior Deputy President, noting that the relevant enquiry relates to the applicant's conduct and possibly the second respondent's operational requirements, addressed first the question whether the dismissal was within the meaning of "serious misconduct" under the Award and the EBA. In this connection, reference was made to the applicant's contract of employment as follows:
· (As has been seen above) upon the applicant's appointment in 1981 as a lecturer (tenurable), a written agreement was entered into. The applicant was there required, "in addition to performing the specific duties attaching to the [appointed] position", to "participate actively" in the second respondent's corporate interests, and to "undertake such duties consistent with his position as may be assigned to him ...".
· No further formal agreement was entered into when the applicant was appointed Senior Lecturer (1 July 1988) and Associate Professor (1 January 1990), but the applicant contended, and the second respondent accepted, that in accordance with the earlier agreement, the second respondent could not require an academic to undertake duties inconsistent with his or her position. The second respondent, however, contended (and the applicant denied) that the job of FYLD was "consistent with" the position of Associate Professor.
11 Turning next to the EBA, the Senior Deputy President noted that one of its Schedules, in prescribing Position Classification Standards (PCS), stated that -
"The Position Classification Standards (PCS's) describe the broad categories of responsibilities associated with academic staff at different levels. The standards are not exhaustive of all tasks in academic employment, which is by its nature multi-skilled and involves an overlap of duties between levels. All levels of academic staff can expect to make a contribution to a diversity of functions within the University. Such functions include teaching, research, participation in professional activities and participation in the academic planning and the governance of the University. The balance of the functions will vary according to level and position over time."
12 The Schedule describes Levels A (Associate lecturer) through to E (Professor). Each Level stipulates a "General Standard", "Specific Duties" and a "Skill Base".
13 The applicant was a Level D academic. The PCS was as follows:
A Level D academic is expected to make a significant contribution to all activities of the organisational unit or interdisciplinary area and play a significant role within their profession or discipline. Academics at this level may be appointed in recognition of distinction in their disciplinary area.
Specific duties required of a Level D academic may include:
· The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions.
· The development of and responsibility for curriculum/programs of study.
· The preparation and delivery of lectures and seminars.
· Supervision of major honours or postgraduate research projects.
· Supervision of the program of study of honours students and of postgraduate students engaged in course work.
· The conduct of research, including, where appropriate, leadership of a large research team.
· Significant contribution to the profession, and/or discipline.
· Attendance at departmental and faculty meetings.
A Level D academic will normally have the same skill base as a Level C academic [i.e. Senior Lecturer]. In addition there is a requirement for academic excellence which may be evidenced by an outstanding contribution to teaching and/or research and/or the profession."
14 The Senior Deputy President said that this statement was not exhaustive, and did not prohibit an academic undertaking other duties and went on to state that there was -
"... no reason why [the applicant] could not lawfully be required to perform duties associated with the job of FYLD even if some of the duties that make up that job may be akin to those in, for example, the list of specific duties in Level B".
A Level B academic is expected to make contributions to the teaching effort of the institution and to carry out activities to maintain and develop his/her scholarly, research and/or professional activities relevant to the profession or discipline.
Specific duties required of a Level B academic may include:
· The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions.
· Initiation and development of subject material.
· The preparation and delivery of lectures or seminars
· Supervision of the program of study of honours students or of postgraduate students engaged in course work.
· Supervision of major honours or postgraduate research projects.
· Development of course material with appropriate advice from and support of more senior staff.
· A range of administrative functions the majority of which are connected with the subjects in which the academic teaches.
· Attendance at departmental and/or faculty meetings and/or membership of a number of committees.
A Level B academic shall have qualifications and/or experience recognised by the institution as appropriate for the relevant discipline area. In many cases a position at this level will require a doctoral or masters qualification of equivalent accreditation and standing. In determining experience relative to qualifications, regard is had to teaching experience, experience in research, experience outside tertiary education, creative achievement, professional contributions and/or to technical achievement."
"[97] Referring specifically to Level D the specific duties do not provide an exhaustive list of duties of an academic at this level. Nor should they be read as excluding any other specific duty that may be identified in another level. They are not legislation and an approach to them akin to statutory interpretation is inappropriate. If however it was necessary I would find that based on the evidence about what the duties of FYLD were likely to include, and in particular the evidence of Professors Sutherland and Oitmaa the job of FYLD would be likely to involve input into the development and responsibility for curriculum courses and subjects, high level administrative functions and an input into marking and assessment." (Emphasis added)
17 The Senior Deputy President went on to conclude that it was reasonable to have required the applicant to have undertaken the job of FYLD; that it was unreasonable of the applicant to have refused to do so; that the second respondent had a valid reason to dismiss him; and that the second respondent "did all that could reasonably be expected to accommodate [the applicant's] concerns about ensuring he would have adequate time for research"." (104 IR 415 at 416-422)
[11] In adopting the above summary, we note that there is no reference in the summary to several matters dealt with in the Senior Deputy President's decision. In particular, these relate to the various reasons given by Dr Miller for refusing to accept the assignment as FYLD. We note the following.
[12] We also note that there are various other matters which were the subject of evidence before the Senior Deputy President including the complaints made by and developments relating to the Applicant's wife in her position as a Senior Lecturer at the University and the correspondence between the Applicant's solicitors and the University's legal officer. We also note that there were several meetings and discussions held and extensive testimony given relating to the events and circumstances surrounding the instruction given to the Applicant to undertake the duties of FYLD, his refusal to do so, and the steps taken by the University in dealing with the disciplinary matter.
[13] The Senior Deputy President considered the requirements of s.170CG(3)(b) to (e) in reaching her decision. The Senior Deputy President said:
"A finding that a valid reason exists or does not will not of itself result in a finding a dismissal is harsh, unjust or unreasonable or otherwise. It is just one of several considerations s.170CG obliges me to take into account. Furthermore in doing so I am obliged, by the virtue of s.170CA(2), to ensure "a fair go all round" is accorded to Dr Miller and the University." (Print S0551 at par 82)
[14] In particular, the Senior Deputy President considered any other relevant matters under s.170CG(3)(e), including the other reasons advanced by the Applicant for his refusal to comply with the direction to undertake the job of FYLD, and found that: it was unreasonable for the Applicant to maintain the assertion about insufficient time for research given the assurances provided by the Vice-Chancellor and Professor Oitmaa; his promotion prospects would not be lessened by taking the job; there was no evidence to support a submission about victimisation on the basis of union membership or that the Applicant was treated unfairly because of views held about discrimination; there was no merit in the Applicant's claims regarding adherence to University policies or the treatment of student complaints; and that the Applicant would not be required to bear a disproportionate share of administrative duties in taking on the position of FYLD (Print S0551 at pars 114-123).
[15] The Court in Miller considered the decision of the Full Bench of the Commission refusing the Applicant leave to appeal against the Senior Deputy President's decision.
[16] The Court decided that the Full Bench in the appeal had applied a "reasonably open" test in the consideration of the asserted errors "rather than the test of whether it was seriously arguable that the Senior Deputy President had actually been wrong". The Court held that the Full Bench was in error in the approach adopted to the determination of the question of leave to appeal and that the error was jurisdictional. The Court said:
"48 In our opinion, when the reasons of the Full Bench are read as a whole, it appears that the Full Bench proceeded upon the basis that the question of leave, and if granted, the questions in the appeal itself, were to be addressed by a very broad approach to the evidence, and in particular by inquiring whether there was evidence before the Senior Deputy President from which a conclusion that, in assigning FYLD duties, the second respondent had acted in a reasonable way, was open to her. In approaching its task in such a generalised fashion, the Full Bench, with respect, lost sight, we think, of three material considerations that it was bound to take into account: (1) the "discretion" conferred upon the Senior Deputy President was, in truth, a narrow one (of the secondary kind previously described); (2) although there was here, technically, a "discretion", it could still be challenged for error upon the House principles, as was held in Coal & Allied (par 21); and (3) the specific requirements of s 170CG(3)(a) in the context of the particular provisions of cl 2 of the employment contract.
49 The Court must, of course, take care to distinguish between jurisdictional error and errors within jurisdiction, often a difficult matter. In this case, for instance, there are passages in the Full Bench's reasons which, standing alone, could provide ground for thinking that the substance of the matters that concern us were actually addressed. However, as we have implied, the reasons must be read as a whole. It is of significance that the Full Bench, at the outset of the explanation of its own reasoning, instructed itself generally as to its task as follows:
Under s.45(2), a Full Bench must grant leave to appeal `if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted'. This provides a further obligatory basis for the granting of leave and does not replace the conventional considerations: see Construction, Forestry, Mining and Energy Union v. Giudice (1998) 159 ALR 1 at 20. In relation to an appeal against the exercise of a discretionary power, the principles to be applied in the determination of the appeal are broadly those which were enunciated by the High Court in House v. The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (see also Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518).
In considering whether to grant leave to appeal in this matter, we have examined whether there was any error made in the exercise of the discretion by the Senior Deputy President. This would include an error of law or fact or in the application of principle which is sufficiently fundamental in character as might persuade a Full Bench on appeal that the decision reached at first instance was not reasonably open_. In adopting this approach, we have had regard to the arguments presented by the Applicant both as to jurisdiction and discretion. We have done so even though_ we do not accept the Applicant's submission that the determination of the s.170CE application in this case involved other than the exercise of discretionary power_. Having considered all these matters, we are not persuaded that the decision of the Senior Deputy President is attended with sufficient doubt as to warrant it being reconsidered by an appeal bench or that substantial injustice would result if leave to appeal is refused." (Emphasis added.)_
50 Whether error falling within the well-known categories identified in House v The King has been established, at least where the asserted error is one of law or fact, rather than the application of a broad standard, is generally not to be determined by the application of the test whether the decision on such a point was "reasonably open". Such asserted errors are generally themselves not the subject of a discretionary judgment but discrete, intermediate decisions made by the primary decision maker along the way to the final, overall judgment which is regarded as a discretionary one.
51 The question is one of overall impression and, despite the particular phrases in the Full Bench's reasons tending in a contrary direction, it is our firm conclusion that a "reasonably open" test was applied in the consideration of the asserted errors, rather than the test of whether it was seriously arguable that the Senior Deputy President had actually been wrong. Had the latter approach been taken, the focus on the three matters we have identified in [48] above would necessarily have been different. It cannot be said that, had that occurred, the result must necessarily have been the same." (104 IR 415 at 435-436)
[17] The Court therefore granted the prerogative relief sought, quashing the decision of the Full Bench and directing that the application for leave to appeal be heard and determined in accordance with law.
[18] The approach to be adopted in the hearing of the present appeal may be discerned from the decision of the Court.
[19] The Court referred to the decision of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585 (Coal & Allied) and, in particular, quoted passages from the judgment of Gleeson CJ, Gaudron and Hayne JJ dealing with the nature of an appeal under s.45 of the Act. The passages quoted from Coal & Allied included the following:
"[15] The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to `make such order as it [thought] fit'. The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it.
[16] The terms of s 45 to suggest that the powers of a Full Bench are exercisable or, as in Brideson [No 2], are required to be exercised in the absence of error on the part of the primary decision-maker.
[17] Because a Full Bench of the Commission has power under s 45.
[18] The Full Court was in error in thinking that the nature of an appeal under s 45(7) of the Act depends on the decision at first instance being attended by appealable error. That being so, it is necessary to consider the manner in which the Full Bench determined the appeal from Boulton J. Before doing so, however, it is convenient to say something as to the concept of `a discretionary' decision.
[19] `Discretion' is a notion that `signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which `no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
[20] In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.
[21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v R in these terms:
`If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so'." (174 ALR at 591-592)
[20] The Full Court in Miller then went on to say:
"45 In our opinion, insofar as the decision of the Senior Deputy President here may be described as "discretionary", it is a "narrow" discretion in the secondary sense described in par (19) in Coal & Allied_, that is to say, one requiring the decision-maker to make a particular decision if he or she forms a particular opinion or value judgment._
46 In the present case, s 170CG(3)(a)). In our view, this legislative scheme does not provide the considerable latitude (to borrow the language in par (19) of Coal & Allied_, above) which is available where the considerations relevant to the exercise of a statutory discretion are confined only by the subject matter and object of the legislation._
47 Further, as was held in Coal & Allied (par 21), even if the discretion is a narrow one, it could, we think, have been challenged before the Full Bench by showing some error in the Senior Deputy President's decision-making process, that is to say, by demonstrating that she has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts, or failed to take into account a material consideration." (104 IR at 434-435)
[21] We respectfully adopt this approach in the determination of the present appeal.
[22] The parties have provided extensive written submissions in the appeal. Although we have considered all the submissions in reaching our conclusions, we do not find it necessary to repeat or summarise all the submissions in this decision. We have also examined the evidence presented in the proceedings before the Senior Deputy President and on appeal in reaching our decision.
[23] Having regard to the evidence and cases presented, we consider that the main issues to be considered in the appeal may be dealt with under the following headings:
(a) What is the approach to be adopted on appeal in the present matter;
(b) Was there a valid reason for the termination having regard to:
(i) whether the direction to assume the duties of First Year Laboratory Director was lawful and reasonable, and
(ii) whether the refusal to assume the duties constituted `serious misconduct';
(c) Was the termination of employment harsh, unjust or unreasonable?
[24] We turn to consider the matters raised in the appeal.
[25] We have referred above to the decision of the Court in Miller and the approach to be adopted in this appeal.
[26] Counsel for the Applicant submitted that the question of leave to appeal should be heard together with the appeal. In relation to the nature of the appeal, counsel referred to ss.45(1) and 170JF of the Act and to the decision in Coal & Allied (174 ALR at pars 14 and 17). It was submitted that where further evidence is admitted in relation to a matter fundamental to the issues to be determined, as in the present case, the Commission is required to decide the issues arising afresh on the basis of all the evidence. It was said that in such circumstances the Commission on appeal is not confined to the correction of error on the part of the Senior Deputy President but is entitled to have regard to all the evidence and material in making a decision. In any event, it was submitted that error is demonstrable in the present case.
[27] We do not consider that the admission of further evidence in the present case does change the nature of the appeal. The mere admission of further evidence does not have this effect (see Coal & Allied 174 ALR at pars 13 and 14) and the nature of the additional evidence presented on appeal in this case is not such as to warrant such change. The appeal is by way of re-hearing and the statutory provisions are to be construed on the basis that the power on appeal is to be exercised for the correction of error. The additional evidence is to be considered for the purpose of determining whether there has been error on the part of the Senior Deputy President. If error is demonstrated, the appeal bench may then proceed to decide the issues on the basis of all the evidence before it.
[28] Notwithstanding this, and because of the history of the present matter and the various proceedings involved, we have approached the appeal on the basis that we should consider all the evidence and material before the Commission and arrive at our own conclusion as to the correct decision on the s.170CE application.
[29] In the present matter, the Commission was required to determine whether the termination of employment was harsh, unjust or unreasonable in all the circumstances. In so determining, section 170CG(3) of the Act provides as follows:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
[30] It is clear that the scheme under s.170CG(3) of the Act involves the making of findings in relation to the matters referred to in paragraphs (a) to (e) and then a consideration of whether a termination was harsh, unjust or unreasonable having regard to those matters.
[31] In many respects, the main issues which arise for consideration in this appeal concern whether there was a valid reason for the termination based on the Applicant's conduct.
(b) Was there a valid reason for termination?
[32] In the present matter, the Applicant was summarily dismissed by the University for serious misconduct because of his failure to accept the assignment as FYLD. Pursuant to the EBA, the Applicant could only relevantly be dismissed for serious misconduct: see clause 14. Accordingly, as was put by counsel for the Applicant, in order to determine whether there was a valid reason for the termination the Commission was required to determine whether there was serious misconduct, namely in this case an alleged refusal to obey a lawful and reasonable direction of the employer.
[33] It was submitted by the Applicant that an investigation as to whether an order is lawful and reasonable would of necessity require an inquiry as to the terms of a contract and the scope of the employee's obligations under the contract and the requirements imposed on the employee by the order so as to determine whether those requirements fall within the scope of the contract: see North v Television Corporation Ltd (1976) 11 ALR 599 at 609; and R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 at 621-622. The determination of whether an order was lawful and reasonable is a question of mixed fact and law which does not give rise to the exercise of a discretion: see Miller 104 IR at 434-435.
[34] In general it was put that the Senior Deputy President erred in holding that the direction to the Applicant to perform the duties of FYLD was a lawful and reasonable order.
[35] In her decision, the Senior Deputy President examined whether, consistent with the Applicant's contract of employment, he could lawfully be directed to undertake the duties of FYLD and found that the direction was lawful (Print S0551 at pars 91-98). Her Honour noted that the express terms of the contract entered into by the Applicant on appointment to the University in 1981 required an employee "in addition to performing the specific duties attaching to the position" to which he is appointed to also "participate actively" in the corporate interests of the University and "undertake such duties consistent with his position as may be assigned to him" (at par 91). Her Honour rejected the Applicant's argument that the duties of the job of FYLD were not duties for a Level D academic in the context of the Position Classification Standards (PCS) in the EBA, finding that the PCS did not provide an exhaustive list of duties or exclude any other specific duty identified in another level (at pars 93-97).
[36] The relevant terms of the contract between the Applicant and the University are found in the letter of engagement dated 24 December 1981 which provides, in part, as follows:
"2. The employee in addition to performing the specific duties attaching to the position to which he/she is hereby appointed shall be required to participate actively in all the corporate interests of the University and to undertake such duties consistent with his/her position as may be assigned to him/her by the Vice-Chancellor or other members of the staff of the University under whose supervision or direction his/her duties are performed."
[37] Reference may also be made to the University's General Conditions of Appointments and Supplementary Procedures manual relating to the appointment of Professors and Associate Professors. With respect to "duties", this document states:
"An appointee must devote the whole of her/his working time to the duties of her/his office. Such duties include supervision of and participation in teaching and examining undergraduate and postgraduate students and engagement in and promotion of research and advanced study in the appointee's field.
In addition, the appointee must participate actively in the corporate interests of the University."
The document also sets out the PCS for the Level D academic (Associate Professor) and other levels from the EBA. The relevant parts of Schedule 4 of the EBA are set out earlier in this decision.
[38] It was submitted by the Applicant that the University had not proved that the FYLD duties are consistent with Dr Miller's position, or that they were of the specific character of Associate Professor level duties. It was said that the evidence as a whole suggests that the duties are not consistent with the Applicant's position in that they were substantially more junior than the duties ordinarily expected of an Associate Professor. It was said that the PCS might be referred to as an aid to understand what duties would have been "consistent with" the Applicant's position and that the PCS in fact reinforce the conclusion that the FYLD duties are not consistent with the position of Associate Professor.
[39] The main issue for consideration here concerns whether the duties of FYLD sought to be assigned to the Applicant were "duties consistent with his position" as an Associate Professor. This involves a consideration of what the duties of FYLD would entail together with an understanding of the proper construction of the Applicant's contract of employment.
[40] There is extensive evidence before the Commission as to the duties of FYLD. The evidence includes:
· The statement of the major responsibilities of the role of FYLD provided to the Misconduct Investigation Committee (MIC) by Associate Professor G Russell, the First Year Director in the School of Physics. It was noted that this statement was not a comprehensive list of the responsibilities.
[41] We do not refer to all the evidence given in relation to the duties of FYLD. This includes evidence by the Applicant and the Vice-Chancellor and relevant correspondence and other material. Nor do we consider it necessary to seek to set out a definitive list of all the duties involved. The major responsibilities of the current position are set out in the statement of Associate Professor Russell. The evidence of Professor Oitmaa and others was to the effect that the position of FYLD needed to be revitalised and that the role of the new occupant of the position would include responsibility for the review and revitalisation of the First Year Laboratory and for developing the laboratory in new directions.
[42] We accept that a significantly changed role was envisaged for the FYLD. It is understandable in this context that the University might seek to assign a higher level academic to the position than had been assigned in the past. We therefore do not accept the submission by the Applicant that the duties of FYLD were substantially of a type which could be required of a Level B academic (Lecturer). We also do not accept the submission of the Applicant that the evidence as a whole (even without regard to the PCS) suggests that the duties were not consistent with Dr Miller's position in that they were substantially more junior than the duties ordinarily expected of an Associate Professor. Whilst this might have been a conclusion about the duties as previously assigned to FYLD, it is not a conclusion which the evidence suggests could be drawn about the FYLD position which was sought to be assigned to Dr Miller. The importance of the role that he was being assigned as FYLD and the changed nature of the role were made clear to the Applicant by the Vice-Chancellor, the Dean of the Faculty and the Head of the School of Physics.
[43] The Senior Deputy President relied in her decision on the PCS in finding that the direction to take on the job of FYLD was lawful. The PCS are set out in Schedule 4 of the EBA and describe the broad categories of responsibilities associated with academic staff at different levels, namely Level A (Associate Lecturer), Level B (Lecturer), Level C (Senior Lecturer), Level D (Associate Professor) and Level E (Professor).
[44] It was submitted by the Applicant that the PCS were not part of his contract of employment, although resort might be had to them as an aid to understanding what duties would have been "consistent with" his position. It was said that the PCS reinforce the conclusion that the duties of FYLD are not consistent with the Applicant's position as Associate Professor. In this regard, reference was made to the recent decision of Duncan SDP in National Tertiary Education Industry Union v Australian Higher Education Industrial Association (PR901141, 15 February 2001) (the NTEIU Case). Reference was also made to the evidence given in the proceedings before Duncan SDP and in the present proceedings regarding the development and application of the PCS.
[45] It was contended by the Applicant that Harrison SDP erred in her interpretation of the PCS. In particular, it was contended that the preamble to the PCS cannot be read as permitting the employer to require an academic to perform any and unlimited duties at his/her own level or below. It was said that this approach was adopted by the Senior Deputy President in reaching her opinion that "there is no reason why Dr Miller could not lawfully be required to perform duties associated with the job of FYLD even if some of the duties that make up that job may be akin to those in, for example, the list of specific duties in Level B" (Print S0551 at par 96). It was submitted that such an approach was inconsistent with the form of drafting adopted in the PCS and with the approach adopted to the PCS by Duncan SDP in the NTEIU Case. It was also not supported by an examination of the history of the development of the PCS. It was therefore submitted that the terms of the PCS as set out in Schedule 4 to the EBA, and the preamble in particular, did not permit the University to require the Applicant to perform duties which were at the level of a Level B academic. It was a breach of the EBA to require the Applicant to perform the duties of FYLD and such an order was not a lawful direction.
[46] We have sought to set out the basis of the Applicant's arguments relating to the PCS and the extent to which they are relevant in the determination of the present matter. However we do not find it necessary to reach a concluded view regarding these submissions, although we incline to a construction of the PCS that, at least in relation to administrative functions, would not permit an employer to require an academic to perform unlimited duties as specified at a lower level.
[47] The PCS describe the broad categories of responsibilities associated with academic staff at different levels. In relation to the Level D academic (Associate Professor), it is provided that the specific duties required may include, inter alia, "high level administrative functions". It is clear that these functions must be understood in the context of the other specific duties required of a Level D academic and with reference to the differentiation in the PCS of administrative functions at the different levels. In this regard, we note that distinctions are made in the PCS with respect to administrative functions at each level. For example, for a Level B academic (Lecturer) the specific duties may include: "A range of administrative functions the majority of which are connected with the subjects in which the academic teaches"; for a Level C academic (Senior Lecturer) they may include: "Broad administrative functions"; and for a Level E academic (Professor), they may include: "Developing policy and being involved in administrative matters within the department or other comparable organisational unit and within the institution". There are other duties which are specified in the same terms in the PCS for Level B to E academics, such as: "The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions"; "The preparation and delivery of lectures and seminars"; "Marking and assessment"; and "Consultation with students".
[48] On our reading of the evidence and material in this case, the duties that the Applicant was required to undertake as FYLD may properly described as involving "high level administrative functions" and the "development of and responsibility for curriculum/programs of study" as referred to in the specific duties which might be required of a Level D academic in the PCS. In this regard we agree with and adopt the alternative finding made by the Senior Deputy President in her decision:
"If however it was necessary I would find that based on the evidence about what the duties of FYLD were likely to include, and in particular the evidence of Professors Sutherland and Oitmaa the job of FYLD would be likely to involve input into the development and responsibility for curriculum courses and subjects, high level administrative functions and an input into marking and assessment." (Print S0551 at par 97)
[49] In our view the Senior Deputy President correctly found on the evidence that the duties of FYLD assigned to the Applicant were consistent with his position as an Associate Professor. Such a finding was appropriate having regard to the terms of the contract and the duties of an Associate Professor as set out in the PCS. In this regard we note that the proper focus for the consideration of the duties of FYLD is not the previously performed functions or the past occupants of the position but the functions as envisaged for the position in the future. This was the position that the Applicant was directed to accept by the University. Nothing has been put by way of evidence or submission in the appeal proceedings which warrants a conclusion other than that the direction to the Applicant to assume the duties of FYLD was lawful.
[50] The Senior Deputy President considered whether it was reasonable to require the Applicant to undertake the job of FYLD and decided that the direction was reasonable in the context of his expressed reasons for refusing to perform the duties. Her Honour found that the decision to assign the Applicant the job was not the result of victimisation based on any maladministration complaint made by him or his wife. Her Honour said:
"[109] I expressed during the arbitration my concern that inadequate consideration seemed to have been given by Dr Miller to the seriousness of allegations he made in his complaints. His evidence in cross-examination suggests a readiness to assume in respect of anything Professor Oitmaa did or any decision he made which impacted in anyway upon him that he did so with malice. He was unable to convincingly explain how it was that Professors Niland, Sutherland and Wicken may have independently arrived at the same opinion or decision as Professor Oitmaa. Based on the evidence of Professor Oitmaa (including his lengthy cross-examination) I find that his decision to assign Dr Miller the job of FYLD was not a reaction to any complaint lodged by Dr Read." (Print S0551 at par 109)
[51] The Senior Deputy President also considered matters arising under s.170CG(3)(e) in relation to the Applicant's submissions as to why it was unreasonable to direct him to take up the job of FYLD. The Senior Deputy President dealt with these submissions in the following passages in her decision:
"[116] Despite the assurances given to him by the Vice-Chancellor and Professor Oitmaa about time being available for research Dr Miller steadfastly maintained his opinion there would not be adequate time. He was entirely dismissive of any suggestions the job would not be same as it had been in the past. Had he been prepared to undertake it he would have been able to insist the University made good its assurances. I see no reason to doubt the evidence of the Vice-Chancellor and Professor Oitmaa about these assurances. It was unreasonable of Dr Miller to maintain his assertion in the arbitration that he would not have adequate time for research.
[117] Next Dr Miller asserted that taking the job would lessen his chances of promotion. I rely on the evidence of Professor Sutherland that taking on the job would not have lessened Dr Miller's chances of promotion to Professor.
[118] Another submission was that he was being victimised on the basis of his union membership. In dismissing this ground I adopt the Vice-Chancellor's description as my own - it is just not plausible. There is no evidence at all to support it.
[119] Dr Miller asserted that he was being unfairly treated because of views he holds about discrimination. I referred to this in my summary of facts. It arose in Dr Miller's complaint dated 7 October 1997. It is unclear how a connection can properly be made between Professor Oitmaa's comments to Dr Miller in that staff meeting and the assignment to him of the job of FYLD. The ground is baseless.
[120] Next it was said that he was assigned the job in retaliation for his role in the removal of marks controversy. I commented earlier in my summary of the facts that the correspondence relating to this ground should have resolved any ongoing concern on Dr Miller's part. There is no evidence to support this ground. It is baseless.
[121] Dr Miller said it was reasonable to refuse the job because he would be required to conform with certain practices imposed by Professor Oitmaa, not being ones in accordance with University policies and in particular relating to assessment of students in the first year laboratory, treatment of student complaints and conduct of student surveys. There was no evidence that persuaded me these complaints were reasonable. Professor Oitmaa said that to his knowledge student complaints had and would continue to be dealt with properly. Neither Dr Miller nor any other staff member would be required by him to act contrary to University policy. Additionally there are proper procedures in the University that would have allowed Dr Miller to pursue any complaint he had about non-compliance with University policy. The assertion by Dr Miller that it was "unreasonable, unjust and oppressive" to expect him to become FYLD as he could not be confident of the way student complaints would be dealt with relates to a complaint that arose sometime between 1989 and 1992. I have referred to it in my summary of the facts. Dr Miller's assertions fall a long way short of providing evidence that would persuade me there is any merit in this ground.
[122] Dr Miller referred to the MIC Report and findings made therein. My task is to apply the provisions of the Act. It is a different task to that which the EBA prescribed for the MIC. I have however considered the findings of the MIC as did the Vice-Chancellor. The assurances the Vice-Chancellor gave Dr Miller about time being made available for research should have resolved that concern. To the extent the report refers to aspects of Dr Miller's contract of employment those considerations are encompassed within reasons given earlier in this decision.
[123] Finally Dr Miller said he had already undertaken certain administrative duties and the job of FYLD would mean he had a disproportionate share of administrative duties. I accept the assessment of Professor Oitmaa that Dr Miller was not being required to bear a disappropriate share of administrative duties." (Print S0551 at pars 116-123)
[52] In the appeal it was submitted by the Applicant that the Senior Deputy President erred in finding that the direction was reasonable. In particular it was submitted that the order of 11 March 1998 was unreasonable in that it required the Applicant to perform an additional 8-12 hours per week of work. It was more unreasonable as academic workload was a sensitive industrial issue and clause 22.2 of the EBA provides that until a workload policy is developed "the University will be sensitive to the issue of attempting to avoid increased overall workload of academic staff affected by any restructuring/change process". It was said that a sensitive approach would have required further discussions in circumstances where alternatives were clearly available. It was also submitted that the order was unreasonable in the light of the MIC's finding that "the duties (of FYLD) were extensive and lent credence to the claim that there would be insufficient time left for an average of two days per week for research time" and the University's knowledge that there was a genuine dispute about the appropriateness of the allocation of the FYLD duties to the Applicant.
[53] The submissions of the University in the appeal proceedings dealt with each of the matters raised by the Applicant and refer to relevant parts of the evidence before the Commission. In particular, the submissions refer to workload calculations; the performance of FYLD duties by the previous occupant; the offer by Professor Oitmaa of additional technical and administrative support in the laboratory; the relative workloads of members of the School; and the Vice-Chancellor's attempts subsequent to the MIC report to address the concern of the Applicant about "research time", the guarantee given as to two days per week for research averaged over the academic year and the assurance that the assignment would be for a maximum of three years. We generally adopt those submissions.
[54] Having regard to the evidence and submissions, we conclude that the assignment of the FYLD position to the Applicant was a reasonable direction. We agree with the Senior Deputy President's finding in this regard. The University was entitled to assign the duties to the Applicant. It did not make the assignment for improper purposes. It did all that could reasonably be expected to accommodate the Applicant's concerns about ensuring adequate time for research. It engaged in a process of discussion and correspondence over a lengthy period in an endeavour to understand and address the concerns raised by the Applicant about the assignment. Moreover, the Vice-Chancellor addressed the concerns raised with the MIC as to research time and the transfer to the FYLD position being regarded as a demotion and clarified that the maximum time that the Applicant would be required to perform the duties of FYLD would be 3 years.
[55] It was submitted by the Applicant that, even if the direction to perform the duties of FYLD was lawful and reasonable, the Senior Deputy President erred in finding that Dr Miller's conduct constituted serious misconduct, either at common law or under the award definition.
[56] The Applicant submitted that the relevant definition of serious misconduct is that found in the Universities and Post Compulsory Academic Conditions Award 1995 [Print M6477] (the Award). It was said that this definition was imported into the EBA. It was also submitted that the Applicant's conduct did not fall within the common law definition of serious misconduct, and therefore could not fall within the narrower award definition. Accordingly it was said that the question of whether the award definition applies is one that, on the Applicant's case, does not require determination in the present case. It would, however, arise if the Commission was of the view that the Applicant was guilty of serious misconduct at common law.
[57] The Senior Deputy President found that the elements necessary to permit summary dismissal for serious misconduct had been made out in this case. Her Honour considered this matter by reference to the EBA and the common law concept of "serious misconduct" which is reflected in the legislation (see s.170CM and reg. 30CA) and also by reference to the definitions in the Award. The preferred construction of the Senior Deputy President was that the EBA covering the Applicant's employment contains no definition of misconduct or serious misconduct and does not import the award definitions. The Senior Deputy President found that the refusal of the Applicant to comply with a lawful and reasonable direction of his employer provided the basis for the University to take disciplinary action under the EBA against him for serious misconduct. Her Honour was also of the view that the actions of the Applicant would fall within the award definition of serious misconduct.
[58] At common law it may be serious misconduct to disobey an order of an employer which is lawful and reasonable: see Adami v Maison de Luxe Ltd [1924] HCA 45; (1924) 35 CLR 143 (Adami); and R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601.
[59] In determining whether a refusal to carry out the lawful and reasonable direction of an employer constitutes serious misconduct, it is necessary to have regard to all the circumstances, including the nature and extent of the employee's conduct. In Clouston and Co Limited v Corry (1906) AC 122, Lord James of Hereford stated:
"There is no fixed rule of law defining the degree of misconduct which will justify dismissal." ( at 129)
[60] In Laws v London Chronicle (Indicator) Newspapers (Ltd) (1959) 2 All ER 285 (Laws), Lord Evershed MR (Jenkins and Willmer LJJ agreeing) said:
"The question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service." ( at 287)
See also: North v Television Corporation Ltd (1976) 11 ALR 599; Gooley v Westpac Banking Corporation [1995] IRCA 658; (1995) 59 IR 262; and Izdes v L G Bennett and Co Pty Ltd (1995) 61 IR 439 (Izdes).
[61] It is clear from the authorities that the refusal or failure to obey must be of such a fundamental nature as to be inconsistent with the continuation of the employment contract, namely that the employee is repudiating the contract or one of its essential conditions (see Laws at 289). In Adami Isaacs ACJ said:
"It was contended that in all cases of employer and employee, irrespective of the nature of the employment - from messenger to manager, from domestic service to commercial or scientific service, whether it be the case of a housemaid or seaman on the one hand or the headmaster of a school or a hospital surgeon on the other, whether the duties be the well understood and universally implied household duties or those arising for the first time under a complicated written contract - the phrase "wilful disobedience of a lawful order" means simply conscious disobedience of an order obedience to which is found after litigation to be in fact and in law within the range of duties. The proposition asserts that, provided ultimately the order is found to be within the scope of the contract, it matters not how isolated and trivial the occasion may have been, how unimportant the disobedience in relation to the employer's affairs, how doubtful in fact or law the legality of the order may have been, how bona fide and reasonable may have been the contention of the employee or how clearly his action was intended and explained at the time as defence only and not in any way as defiance. That is a proposition I find it impossible to accept." [1924] HCA 45; (35 CLR 143 at 148-149)
In Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, Dixon and McTiernan JJ said:
"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell (1); English and Australian Copper Co. v. Johnson (1); Shepherd v. Felt and Textiles of Australia Ltd. (2)). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." (at 81-82)
[62] In the present case, it was submitted by the Applicant that the disobedience was the result of Dr Miller's view of the correct legal position in his dispute with the University: see Bruce v AWB Ltd [2000] FCA 594; (2000) 100 IR 129 at 140-141 (Bruce). It was said that the Senior Deputy President failed to appreciate the distinction, emphasised in Bruce, between persistent wilful disobedience which constitutes serious misconduct and what occurred in the present case, namely adherence by an employee to the employee's view of the correct legal position in a particular contractual dispute. This was not considered by the Senior Deputy President, in part because significant evidence which would have provided the context as to the nature of the industrial and legal dispute between the parties was excluded. In this regard, reference was made to the evidence of Dr Blackford and Mr McCulloch regarding the development of the PCS. It was submitted that the Applicant's view of the contract and the PCS was a tenable and respectable view in the light of the MIC's report, the variation made to the preamble in the PCS as contained in the University of New South Wales (Academic Staff) Enterprise Agreement 2000 (the 2000 EBA) and the decision of Duncan SDP in the AHEIA Case. It was submitted that there was a genuine dispute as to the scope of the contract and the terms of an industrial agreement and therefore it should not be concluded that the Applicant's refusal constituted serious misconduct.
[63] Further, it was submitted that the University had open to it the dispute settling procedures under clause 23 of the EBA and that these should have appropriately been used given the nature of the dispute about the assignment of the FYLD duties and the MIC report. In this regard it was noted that the preamble to the PCS in the 2000 EBA states that where a dispute arises as to the appropriate duties of an academic then the dispute should be dealt with through the dispute settling procedure. It was said that there was no need for hasty action by the University to fill the FYLD position and there were a range of disciplinary sanctions available under the EBA, including formal censure, counselling and demotion. It was submitted that the nature of the misconduct (if any) by the Applicant in refusing to perform the duties of FYLD in the circumstances was not such as to meet the relevant test for serious misconduct. It was said that the Applicant's conduct in adhering to his own view of the contract did not, in all the circumstances, constitute a repudiation of a fundamental term of the employment contract.
[64] The question whether the Applicant was guilty of "serious misconduct" justifying his dismissal requires an examination of the conduct concerned and the circumstances in which it occurred. We have considered the evidence and submissions put in the appeal proceedings and before the Senior Deputy President. Although a significant and persuasive case has been presented for the Applicant on appeal, we consider that it involves a selective reading of the evidence and circumstances relating to the dismissal.
[65] We do not accept the contention that this is a simple case where one party has bona fide taken and acted upon a wrong view of the contract in refusing the direction of the employer. On the evidence, the Applicant refused the direction to assume the duties of FYLD and on several occasions repeated that refusal. The reasons given for the refusal included: victimisation and mala fides on the part of Professor Oitmaa in assigning the duties; the instructions were unreasonable, unjust and oppressive as it was effectively a demotion and would affect his employment and promotion prospects; the responsibilities of FYLD were inconsistent with the PCS at his level of appointment and involved lower level administrative duties; he would have a disproportionate share of administrative tasks; and the instruction was based on improper motives relating to his views on sex discrimination, his involvement in union activities and complaints made under the Code of Conduct. The Applicant also raised issues about research time. The Applicant made a maladministration complaint against Professor Oitmaa as a result of the assignment of the FYLD position to him. The maladministration complaint alleged that the assignment was "unreasonable, unjust and oppressive" for reasons relating to the possibility of student complaints and the value of teaching surveys and was "improperly discriminatory and wholly or partly based on improper motives" on the part of Professor Oitmaa.
[66] Indeed the Applicant gave evidence in the proceedings before the Senior Deputy President that "under no circumstances" would he undertake the duties of FYLD (see Print S0551 at par 114). It was suggested in the Applicant's written submissions in reply in the appeal that there was evidence that Dr Miller might not have refused to perform the duties of a FYLD position which had been genuinely restructured. This was the first time such a submission has been put. It is based on an answer given by the Applicant during cross-examination in the proceedings before the Senior Deputy President. The acceptance of the submission would involve the Commission reaching a conclusion regarding the circumstances of the refusal which in our view is not consistent with the whole of the evidence in this matter or with the tenor of the case which has been prosecuted by the Applicant. Upon our reading of the evidence, the Applicant was aware of the changed nature of the FYLD position envisaged by the University but nevertheless continued his refusal to assume the duties of that position.
[67] The Applicant continued to refuse to accept the assignment even though he was warned on several occasions that disciplinary action would be taken against him. He was on notice from at least 5 November 1997 that his refusal to accept the assignment as FYLD might result in disciplinary action including termination of employment.
[68] The evidence in the present case discloses conduct on the part of the Applicant amounting to serious misconduct, namely conduct constituting a serious breach of contract or evincing an intention no longer to be bound by the contract. The Applicant repeatedly refused to take on the job of FYLD despite the lawful and reasonable direction of the University to do so and in circumstances where there was no justifiable basis for his refusal. This was not a case where the employee had obtained legal advice about the construction of his contract of employment and had maintained the refusal on the basis of that advice (compare Bruce 100 IR at 141).
[69] In reaching our conclusion on this issue, we have also considered the circumstances in which the conduct occurred. We have taken into account the report of the MIC and the advice to the Vice-Chancellor that issues of law had been raised and should be considered and that the facts of the matter, in certain respects, suggested mitigating circumstances which deserve consideration. Under the EBA the Vice-Chancellor was able, after considering the MIC's findings, to take disciplinary action (see clause 14.3.2(d)). The Vice-Chancellor considered the report of the MIC and determined that the Applicant was guilty of serious misconduct and that disciplinary action could be taken. The Vice-Chancellor met with the Applicant in a further endeavour to persuade him to accept the assignment. The Vice-Chancellor sought to address concerns raised by the Applicant about the FYLD position and provided a guarantee about research time. The Applicant was clearly not satisfied with the assurances offered and continued to refuse to accept the position. Both the Vice-Chancellor and the Dean of the Faculty of Science and Technology gave evidence that they considered that it was unprecedented for an academic staff member to refuse to perform duties that he/she had been directed to do.
[70] The dispute settlement procedures under clause 23 of the EBA were available to the University in the circumstances of this matter; but they were equally available to the Applicant. We do not therefore make any adverse inference against either party on the basis of their failure to utilise the procedures. The explanation might merely reflect an assessment of the likelihood of resolution of the dispute through those procedures given the positions taken by the parties. As we have said, this was more than a dispute about differing but genuinely held views as to the proper interpretation of the employment contract. We note that the changed wording in the preamble to the PCS in the 2000 EBA will ensure that there is recourse to the dispute settlement procedures in future cases. Perhaps the history of the present matter confirms the advisability of exhausting all available avenues of dispute resolution in such cases.
[71] The Senior Deputy President found that the elements necessary to permit summary dismissal for serious misconduct were made out. We have considered the evidence and submissions in the proceedings at first instance and in the appeal and we have arrived at the same conclusion. In all the circumstances, we regard the Applicant's conduct in repeatedly refusing the lawful and reasonable direction to assume the FYLD position as amounting to serious misconduct.
[72] The alternative argument put by the Applicant was that the award definition of serious misconduct was imported into the EBA and that this definition is narrower than applied at common law. The definition in clause 5(d) of the Award is as follows:
(i) Serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an academic's duties or to an academic's colleagues carrying out their duties.
(ii) Serious dereliction of the duties required of the academic office.
(iii) Conviction by a court of an offence which constitutes a serious impediment of the kind referred to in paragraph (i)."
[73] We note that the Senior Deputy President in her decision considered whether the actions of the Applicant would fall within the award definition of serious misconduct. We were asked in the appeal to decide that the EBA incorporates the award definition. We have reservations about adopting such a construction of an agreement which expressly provides in relation to Termination of Employment and Disciplinary Action that the relevant clause "replaces entirely" the termination of employment and disciplinary action provisions of the Award (see clause 14.0 of the EBA). However we do not find it necessary to express a concluded view on the matter. The Senior Deputy President decided that the Applicant's refusal to perform the FYLD duties also constituted serious misconduct under the award definition (see Print S0551 at par 99). No substantive submissions about that finding were put in the appeal, apart from the submissions we have already dealt with regarding the common law definition. We adopt the reasoning and conclusion of her Honour on this matter.
[74] Paragraph 170CG(3)(a) refers to "a valid reason for termination" and makes it clear that the reason must be valid in the context of the employee's capacity or conduct or based on the operational requirements of the employer's business. It has been suggested that a valid reason would be one that is "sound, defensible or well founded" and that a reason which is "capricious, spiteful or prejudiced" could not amount to a valid reason: see Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[75] The entire relevant factual matrix must be considered in determining whether an employee's termination is for a valid reason: Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413. In Izdes Beazley J said:
"In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct." (61 IR 439 at 451)
In considering the validity of the reason, "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct": see Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
[76] In our view the conduct of the Applicant did constitute serious misconduct. Such conduct provided a "sound, defensible or well founded" reason for the University to terminate his employment. In all the circumstances we consider that the University had a valid reason for termination connected with the Applicant's conduct.
[77] It was submitted by the Applicant that the Senior Deputy President fell into error in various parts of her approach and decision. We have already dealt with most of these arguments in the context of our examination of whether there was a valid reason for the termination in this matter. We now deal with the submission relating to onus.
[78] It was submitted that the Senior Deputy President erred in law in placing on the Applicant the onus of showing that the direction to perform the duties of FYLD was not lawful and reasonable, and that failure to obey such direction was not serious misconduct. However the passages referred to in the Senior Deputy President's decision do not establish that such an onus was placed on the Applicant or that the Senior Deputy President departed from the general approach for dealing with s.170CE applications as described by a Full Bench of the Commission in Advanced Australian Workplace Solutions Pty Ltd v Fox (Print S0253, 25 October 1999, at pars 94-97).
[79] In Rode v Burwood Mitsubishi (Print R4471, 11 May 1999) a Full Bench of the Commission referred to the changes made to the Act in 1996 which removed the provision placing the onus on the employer of proving that there was a valid reason connected with the employee's capacity or conduct for the termination. The Full Bench said:
"[31] The appellant suggested that the respondent was obliged to bring forward evidence that it had considered seasonal and other relevant factors before deciding to terminate Mr Rode's performance. The decision in Cowell v Irlmond Pty Ltd was relied on in support of this proposition.
[32] We do not agree with the appellant's submissions on this point. The decision in Cowell is clearly distinguishable from the matter before us. It was determined under the previous legislative provisions and the factual circumstances were quite different. Section 170EDA(1) of the former Industrial Relations Act 1988 provided that where an application alleges that a termination was not for a valid reason, the employer bore the onus of proving that there was a valid reason. There is no equivalent provision in the current Act.
[33] In this case the respondent led evidence as to the reasons for the termination of the applicant's employment. In our view the respondent was not obliged to do any more than that." (Print R4471 at pars 31-33)
[80] The question of which party bears the onus in an application under s.170CE(1)(a) in which it is alleged that a dismissal was harsh, unjust or unreasonable must be considered in the relevant statutory context. This includes the repeal of s.170EDA of the former Act and the insertion of s.170CA(2) into the Act. It also includes s.110(2) of the Act: see generally Siao v GIO Australia Limited (Print P0899, 13 May 1997). In determining whether a dismissal was harsh, unjust or unreasonable the Commission must have regard to the matters specified in s.170CG(3), including whether there was a valid reason for the termination. The onus is generally on the applicant to establish the case for relief and this will include putting evidence relevant to the consideration of whether there was a valid reason for the termination. It will then be a matter for the respondent to decide whether or not to call evidence. The Commission will make relevant findings in relation to the validity of the reason based on a consideration of the evidence presented and the matters in issue between the parties (see generally Edwards v Giudice [1999] FCA 1836; (1999) 169 ALR 89 at 92 per Moore J).
[81] In the present matter we have decided that there was a valid reason for the termination of employment, namely the Applicant's serious misconduct. In the appeal the Applicant has submitted that both under the Act and under the terms of the EBA, the onus was on the University to establish serious misconduct. We do not accept that this is the position under the Act or that the provisions of the EBA have the effect of changing the position regarding onus in an application under s.170CE(1)(a) of the Act. In any event, even if there was such an onus on the University in this regard or to establish serious misconduct, we consider that it has been discharged in the present case.
(c) Was the termination harsh, unjust or unreasonable?
[82] The finding as to whether there was a valid reason for the termination under s.170CG(3)(a) is only one of the matters to be considered by the Commission in determining whether a termination was harsh, unjust or unreasonable. The Commission must also have regard to the matters referred to in s.170CG(3)(b), (c) and (d). Further, there must be a consideration of all the relevant facts and circumstances surrounding the termination. This is evident from s.170CG(3)(e) and from s.170CA(2) which enjoins the Commission to apply basic notions of fairness to both the employer and employee in carrying out its functions under Division 3 of Part VIA of the Act.
[83] The Senior Deputy President made findings in relation to the matters in s.170CG(3)(b) to (e). The findings were not challenged in the appeal proceedings. We have considered the evidence and submissions before the Commission and see no reason to depart from her Honour's findings. We adopt them.
[84] This has been a difficult case. It is disappointing that a dispute over the assignment of the FYLD duties was not able to be resolved in a different way than by the termination of the Applicant's employment. This has cut short the career at the University of an senior academic whose academic standing and contribution has never been in question. It has resulted in the prosecution of matters in the courts and in the Commission which have no doubt involved significant costs to the parties and to the public.
[85] The Applicant made application under s.170CE of the Act alleging that the termination of his employment by the University was harsh, unjust or unreasonable. The Senior Deputy President considered the extensive evidence and submissions presented regarding the termination in a case which occupied some seven hearing days. The Senior Deputy President determined that the termination was not harsh, unjust or unreasonable.
[86] The Full Bench has again considered the merits of the application in this appeal. We have admitted additional evidence and have had the benefit of well-prepared and comprehensive submissions by senior counsel on behalf of the Applicant. We have also been assisted by the detailed submissions presented by the University. We have had regard to the decision of the Court in Miller and have examined the decision of the Senior Deputy President and the alleged errors in that decision. We have also examined the extensive evidence and material before the Commission and have considered the submissions of the parties as to the relevant conclusions to be drawn from the evidence and about the legal issues involved. We have applied the relevant statutory considerations and have sought to make a judgment having regard to the "fair go all round" approach embodied in the legislation.
[87] Although there have been very lengthy and detailed submissions as to virtually every aspect of the evidential and other issues raised in this matter, we consider that in the end the basic elements of the case are straightforward. The Applicant was assigned the FYLD position by the Head of the School of Physics. This was a lawful and reasonable direction by his employer. The Applicant repeatedly refused the assignment and raised various concerns and objections about it. Many of the reasons given by the Applicant for his refusal were of little merit. Other concerns were addressed by the University, although not to the Applicant's satisfaction. The Applicant was of the view that the FYLD duties should not be assigned to an academic at his level. However it has been found that the FYLD position was able to be assigned to him consistent with his contract of employment as the job was different than that previously performed by a lower level academic. The University took the view that the FYLD position was an important one and appropriate to be filled by a senior academic. It was decided that the Applicant was the appropriate person to be assigned the position. Very considerable efforts were made by the Head of School, the Dean of the Faculty of Science and Technology and the Vice-Chancellor in meetings with the Applicant and/or by correspondence to alleviate his concerns about the position and to warn him of the possible serious consequences of continued refusal to accept the assignment. The Vice-Chancellor advised the Applicant that his continued refusal to accept the FYLD duties was of a sufficiently serious nature as to invoke the provisions of the EBA dealing with Disciplinary Action for Serious Misconduct. The matter was referred to the University's Misconduct Investigation Committee. The Vice-Chancellor considered the report of the MIC and determined that the Applicant was guilty of serious misconduct and that disciplinary action could be taken. At this stage the Vice-Chancellor met with the Applicant in a further endeavour to address his concerns about the FYLD position and to persuade him to accept the assignment. The Applicant maintained his refusal to accept the position. The University then dismissed him for serious misconduct. In all the circumstances, we conclude that the termination of the Applicant's employment was not harsh, unjust or unreasonable.
[88] This was also the conclusion reached by the Senior Deputy President. We are not persuaded that there was any error of such a nature in her Honour's consideration and determination of the application as would warrant an appeal bench interfering with the decision. In any event, we have arrived at the same conclusion.
[89] In view of the issues raised in the proceedings, we have decided to grant leave to appeal. However, for all the reasons given, we dismiss the appeal.
R. Kenzie Q.C. with C Howell, of counsel, for Dr David Miller.
R. Goot S.C., with S. Prince, of counsel, for the University of New South Wales.
Printed by authority of the Commonwealth Government Printer
David Miller re David Miller
University of New South Wales - PR910187 [2001] AIRC 1055;
(1996) 142 ALR 681
(2001) 104 IR 415
(1998) 159 ALR 1
(1936) 55 CLR 499
(1986) 161 CLR 513
(2000) 174 ALR 585
(1976) 11 ALR 599
(1938) 60 CLR 601
(1924) 35 CLR 143
(1995) 59 IR 262
(1995) 61 IR 439
(1933) 49 CLR 66
(2000) 100 IR 129
(1995) 62 IR 371
(1998) 81 IR 410
(1999) 169 ALR 89