//
[2017] FWC 3492
General information, not legal advice.
Fair Work Commission
2017-07-07
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - application for interim orders
[1] Dr Hari Subramanian has made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act).
[2] Dr Subramanian is employed pursuant to a fixed-term contract expiring on 31 December 2017 as a Senior Research Fellow of the Asia Pacific Centre for Neuromodulation (the Centre). The Centre is part of The Queensland Brain Institute at The University of Queensland (the University). Dr Subramanian commenced in this role on 11 March 2013, and relevant to the funding available the role was to terminate on 10 March 2017. On 19 January 2017, Professor Pankaj Sah, on behalf of the University wrote to Dr Subramanian to inform him the contract would be renewed for the period 11 March 2017 to 31 December 2017.
[3] The work performed by Dr Subramanian is important research work, with an aim of discovering how to alleviate urinary incontinence in humans. The environment in which he works is a state-of-the-art laboratory.
[4] The research performed by him has included Deep Brain Stimulation (DBS) on animals - cats and rats - to broaden the international understanding of neurologic, psychiatric and autonomic disease conditions for sufferers, including those with Parkinson's Disease, or those who stutter. DBS includes inserting probes into the brains of live animals to then understand any positive or negative reactions by the animal.
[5] At some point in 2015 an anonymous complaint was made by a person with regard to research Dr Subramanian has published with co-contributors. While Dr Subramanian had published four papers, the University set out to investigate the complaint relevant to only one paper, as it was only the one paper where the University was identified by affiliation.[1]
[6] Dr Subramanian was interviewed on 20 May 2016 relevant to the first paper. A second complaint was then received relevant to a second paper co-authored by Dr Subramanian.[2] Dr Subramanian was not initially interviewed in relation to the second complaint.
[7] The University has in place a Research Misconduct Policy setting out the principles for managing complaints of research misconduct. A Research Misconduct Procedure giving effect to the Policy requires the University to undertake a preliminary investigation if there is prima facie case that research misconduct exists. The Procedure provides that the 'Designated Person' tasked with undertaking inquiries may recommend the establishment of an internal inquiry panel. Dr Susan O'Brien is employed by the University as the Manager of the Office of Research Integrity, and she is the Designated Person with carriage of the complaint made against Dr Subramanian. She is also the 'named person' in this application before the Commission.
[8] If an Investigation Panel is constituted, the person being investigated is informed that the Panel will conduct its inquiry in accordance with the Australian Code for the Responsible Conduct of Research. The Research Misconduct Procedure provides the following:
9.2 An inquiry panel will be established by appointing suitable members, including at least one member with knowledge and experience in an associated field of research and at least one member who is familiar with the responsible conduct of research and with the Code. At least one member should have experience on similar panels, or have related experience or expertise, and all members must, as far as possible, be free from bias and must declare any conflict of interest. To achieve this membership, the University may draw on its own staff or externally as required.
9.3 A person appearing before the research misconduct inquiry may be accompanied by a support person who may be another member of staff or a Union representative provided that the support person is not a currently practising solicitor or barrister.
9.4 The inquiry panel must abide by confidentiality requirements and must impress upon all persons involved in the inquiry their obligation to keep details of the investigation confidential.
9.5 The inquiry panel will provide a written report to the CEO. The CEO must consider the findings and, in consultation with the Director, Human Resources, determine if misconduct or serious misconduct proceedings should be initiated in accordance with the EA.'
[9] The University established the Inquiry Panel with the following individuals:
Professor Peter Koopman, Executive Director, Research Integrity (Chairperson);
Professor Paul Hodges, Senior Principal Research Fellow and Director of the NHMRC Centre for Clinical Research Excellence in Spinal Pain, Injury and Health; and
Dr Marc Kamke, UQ Research Integrity Officer.
[10] The Inquiry Panel's terms of reference is to determine the following issues relevant to the each paper:
Whether appropriate ethics approval existed; and
Whether data has been falsified and/or fabricated.
[11] A confidential Report of Preliminary Investigation details that the Inquiry Panel interviewed the following academics on 20 October 2016:
Dr Subramanian;
Professor Gert Holstege;
Ms Miranda Arun;
Dr Subramanian (again); and
Dr Subramanian and Professor Holstege (together).
[12] The Report of Preliminary Investigation details that Professor Holstege is a former post-doctoral supervisor of Dr Subramanian, who continues to mentor, collaborate and co-publish with Dr Subramanian. Professor Holstege is a senior author on the first paper, and not an author of the second paper.
[13] Ms Arun undertook undergraduate studies and worked as a casual Research Assistant (April 2014 - July 2016) in Dr Subramanian's laboratory. Since August 2016 she has been a PhD student under the supervision of Dr Subramanian. She is the second author on the first paper, and first author on the second paper.
[14] On 16 March 2017, the Inquiry Panel provided to Dr Subramanian a draft report of its findings which were largely adverse to Dr Subramanian. Dr Subramanian's response was received by the Inquiry Panel on 28 April 2017, and the response taken into consideration and attached to the further draft report provided to the Commission dated 26 May 2017.
[15] Dr Subramanian was issued the further draft report dated 26 May 2017 on 30 May 2017, and invited to provide any further written submissions for consideration by the Inquiry Panel by 14 June 2017.
[16] On 2 June 2017, Dr Subramanian made the present application before the Commission. He is represented by Mr Chris McArdle of McArdle Legal.
[17] The Commission's anti-bullying Case Management Team was copied in on numerous emails exchanged between the University and Mr McArdle, and on 9 June 2017 invited the parties to inform the Commission if there was some urgency in the application requiring the Panel Head's urgent consideration.
[18] Mr McArdle sought expedition of the application given the requirement for Dr Subramanian to respond to the University by 14 June 2017. A telephone hearing was requested, and a request to the University that it would not require a written response from Dr Subramanian by 14 June 2017.
[19] Commissioner Hampton is the Panel Head for anti-bullying applications before the Commission. Commissioner Hampton's Chambers wrote to the parties informing them that the matter would be allocated to a Brisbane-based Member of the Commission, and seeking the University's views as to whether it could provide an undertaking that it would take no action in relation to Dr Subramanian that would prevent the request for interim arrangements being dealt with on its merits.
[20] The University was unable to provide an undertaking and accordingly an urgent telephone hearing before Commissioner Hampton was convened that afternoon.
[21] I am not privy to what occurred during the hearing on 9 June 2017; however I do understand that the University agreed that Dr Subramanian would not be required to provide his written response to the latest draft of the Inquiry Panel until 20 June 2017.
[22] On the basis that Dr Subramanian held concerns that his employment might be in jeopardy upon receipt by the University of his written submissions in response to the draft Inquiry Panel report (i.e. shortly after 20 June 2017), I informed the parties the matter was to be listed for an urgent hearing on 15 June 2017 to determine whether interim orders should be issued.
[23] Prior to the hearing on 15 June 2017, Mr McArdle communicated to the Commission that the following orders were sought:
This matter is listed for conciliation before a member of the Commission on ................. at ...........am/pm.
Notwithstanding any prior direction by either Respondent to the contrary, neither Respondent is to take any action or give any direction preventing the Applicant from fully disclosing all material relevant to this matter, to any or all of Gert Holstege, Peter Silburn, and Ron Balnave.
Until further order, no action is to be taken by either Respondent to proceed with any of the actions foreshadowed to the Applicant as described in the Application, arising from or in connection with its document, described to him as "preliminary findings".
Until further order, the Applicant is excused from taking any action required of him by either Respondent, arising from or in connection with that document.
[24] At the hearing leave was granted for Dr Subramanian to be represented by Mr McArdle. Leave was granted for Mr Stuart Andrews, Executive Director of the Australian Higher Education Industrial Association to appear on behalf of Dr O'Brien. It was noted that leave was not required for Mr Andrews to represent the industrial interests of the University.
[25] During the hearing it was put by the University that there was not any urgent requirement to hear the substantive case relevant to the application, because Dr Subramanian was not at any immediate risk of being dismissed. Even if ultimately there were adverse findings about him, following all requirements in the University's Policies, Procedures, and the enterprise agreement covering the University and Dr Subramanian, it might be in the order of three months or so for any decision relating to his employment to be made.[3]
[26] After briefly adjourning the hearing and meeting with the parties separately over two hours, the parties reached an agreement to deal with the interim issues, such that an interim order of the Commission would not be required. On resuming the hearing, the following record of the agreement was made on transcript:[4]
Commissioner: Thank you. We're now back on record. I've had the opportunity to meet with the parties individually over the last few hours to attempt to resolve the application and not have to make interim orders. I'm of the view that the parties have reached agreement on the way forward. I propose to summarise what I understand to be the way forward but I ask the parties to let me know if there is any other understanding that I haven't covered.
In order for this application - the complete bullying application to be adjourned indefinitely then the university will invite further interviews of five individuals, those persons being Professor Holstege, Dr Silburn, Dr Balnave, Dr Huang and Ms Arun. They'll invite those individuals to participate in interviews relevant to the second draft report that has already been put together by the panel. It will be the panel as currently constituted who will interview those five individuals individually and if - those interviews will be conducted in person or if that is not available, by video conferencing at the university's expense.
If all three panel members can't be available at the relevant interviews, then the interview will be recorded and made available to any of those panel members who are missing. As a result of those interviews, a third draft report will be prepared by the panel, including the information provided by these five individuals. If some of these individuals choose not to participate it will be simply those who have participated and the third draft report - there will be an endeavour by the university to provide that to the applicant by mid-August and there will be some communication if there are any delays in that.
Dr Subramanian will have 14 days from receipt of the third draft report to provide his submissions with respect to all of those issues contained within the third draft report. As a result of this agreement there will be no requirement for Dr Subramanian to provide a response to the draft two report that would have otherwise been required by 20 June, so that is no longer required. In respect of Professor Holstege, it's the university's wish that he be requested by his counsel here, Mr McArdle, not to have any further communication relevant to this matter with any person at the university, other than to respond to the request for an interview; that is, that he's not to communicate with people in roles where he thinks he might be able to influence any decisions here. So that request has been made, Mr McArdle, and I'll just ask you to put on transcript your views on that after you've dealt with your views as to whether I've summarised this issue well enough for you. The application - the substantive application of the anti-bullying application could be called upon by the applicant to be put back on before the Commission, before me as it's currently assigned to me at short notice, so you'd be at liberty to apply, Mr McArdle, for anything else that you require if this particular way forward was not progressing in the way it should be.
Mr McArdle: Well, yes, Commissioner - we confirm that we regard that as a reasonable outcome of today. I give an undertaking to the Commission that I will advise Professor Holstege to go through this channel for any progress he wants to make in the matter and not to contact senior officers of the university. It's up to him if he does it but I'll advise him not to.
Mr Andrews: Thank you, Commissioner, and thanks for the summary of what's been put. Just for completeness, the other aspect was in terms of the timing of the interviews, that we just put on record that the invitations will be for those interviews to take place on the first three weeks of July, to fit in with what the Commission has recorded as the intent of the university to have the report finalised in early August.
Commissioner: Very good, and another thing is that if the university does not have the contact details of these individuals that if that is within the applicant's knowledge then that should be shared: specifically for example Dr Huang.
Commissioner: Mr McArdle, you know where he is, do you?
Mr McArdle: Somewhere in China are my instructions, Commissioner, but Dr Subramanian has email addresses and things like that. We will - I'll give my friend a brief of where everyone is, what their contact details are, early next week if not tomorrow.
Mr McArdle: Dr Holstege will be here next week but my understanding is you won't be able to get to him until July so we'll get his details.
Mr Andrews: Yes, I'm content with that course, Commissioner. Just for completeness, if we have liberty to apply too if there is anything that goes off-course.
Commissioner: Yes, of course - it is the applicant's application but if it assists the matter then you're of course free to contact my chambers. Now, is it apparent, Mr McArdle, that if any of these five individuals do not wish to participate that that will not affect the course that this investigation then takes?
Mr McArdle: That would be putting an unfair onus on the university, if non-participation by someone put a brake on this. We understand that there is no capacity to subpoena these people or anything like that. So I understand that that would be voluntary but my anticipation is that such voluntary participation will be forthcoming.
Commissioner: Very good - I just wanted to make sure that that was the case; that didn't mean for this to fall off the rails. All right, so that summarises entirely the understanding between the parties?
Mr McArdle: Yes, Commissioner, as far as we're concerned.
Commissioner: All right, is there anything else that needs to be put on record today?
Mr McArdle: Not at this stage: we'd thank the Commission for its assistance in the matter.
Commissioner: You're very welcome. On that basis then we'll adjourn.
[27] Where the Commission had given liberty to either party to seek another listing of the application in the event the agreement between the parties "fell off the rails", an application was made within a week of the hearing of 15 June 2017.
[28] Emails were exchanged between the parties from 16 June 2017 to inform the Commission that following the hearing on 15 June 2017, which concluded at 2.00pm, Professor Sah, QBI Director sent a text message to Dr Subramanian at 3.23pm to inform him that he had been unsuccessful in the role to commence 1 January 2018 with renewed funding. Accordingly, Dr Subramanian's employment with the University will not be renewed when his fixed-term employment ends on 31 December 2017.
[29] Mr McArdle corresponded with the University on 16 June 2017 that Dr Subramanian considered that he had been "fobbed off" until the matter before the Commission was "out of the way", and the University had merely gone through the motions of interviewing him, but with a fixed intention of removing him.
[30] The University responded by email on 19 June 2017 to the effect that the interview panel for the role to be performed from 1 January 2018 was not privy to the inquiry being undertaken in relation to alleged research misconduct, nor was the interview panel privy to the matter before the Commission on 15 June 2017. The University responded that if it had intentions to terminate Dr Subramanian's employment at the earliest opportunity, it would not have extended Dr Subramanian's employment to 31 December 2017 earlier in January 2017.
[31] The University advised it would not object if Dr Subramanian sought a further listing before the Commission.
[32] On 21 June 2017 Mr McArdle sought the matter be re-listed, indicating the following draft interim order would be sought:
'No move be taken to fill (which includes offer it to anyone else) the position for which Dr Subramanian was interviewed, and which was the subject of the notification by text on Thursday 15 June, pending finalisation of this matter.'
[33] My Associate communicated with the parties that the earliest opportunity I had to re-list the hearing was on 30 June 2017, and sought an undertaking from the University that it will not make any offers to employ any person in the role Dr Subramanian was interviewing for up to and including 30 June 2017. If the University could not provide such an undertaking, the Commission may urgently list the matter. This would have resulted in other applications before the Commission being moved to give priority to this matter.
[34] By email response the University gave an undertaking that it would not make any 'formal' offer of employment to any person up to and including 30 June 2017.
[35] Directions were issued for Dr Subramanian to file and serve material relevant to the current fixed-term employment. The Commission sought material relevant to the role Dr Subramanian had been interviewing for, and evidence as to 'what basis there might be a right, entitlement or expectation to be offered a future role with the [University] beyond 31 December 2017'.
[36] Prior to the commencement of the hearing on 30 June 2017 the following witness statements were filed:
• Dr Subramanian - dated 26 June 2017[5];
• Dr Subramanian - dated 27 June 2017[6];
• Dr Susan O'Brien - dated 29 June 2017[7]; and
• Professor Sah - dated 29 June 2017[8].
[37] Mr McArdle advised the Commission that Dr O'Brien and Professor Sah were not required for cross-examination.
[38] Neither party filed the contracts of employment entered into between the parties, however they were made available on the day of the hearing and I am satisfied each party had opportunity to review the three relevant documents.[9]
[39] The University filed and served an Outline of Submissions. Dr Subramanian relied on his Outline of Submissions from the earlier hearing, together with an authority of a recent Interim Order in an anti-bullying matter and Reasons for Decision of Commission Hampton.[10]
[40] Dr O'Brien's witness statement reveals that of the three members of the Inquiry Panel, only one is freely available during July 2017 to conduct interviews of the five academics. Professor Koopman is on extended long service leave until late July, and Professor Hodges is overseas until 21 July 2017, and then convening an international conference until 27 July 2017. It is Dr O'Brien's evidence that this information was not known to those present representing the University at the hearing before me on 15 June 2017, when the arrangements to interview the five academics were proposed for the first three weeks of July 2017. Dr O'Brien's evidence is that if only one panel member conducted the interviews it would not be sound.
[41] The following draft orders were sought:
'1.That further interviews and a further report of the academic review committee subject to these proceedings be completed by 31 July. If necessary, in order to expedite the discharge of this order, interviews may be conducted by video link or other agreed means.
2. In the absence of final agreement, this matter is listed for hearing on or before 31 August 2017. All evidence and an outline of submissions of the Applicant must be filed and served 14 days before that date, and all evidence and an outline of submissions of the Respondents must be filed and served 7 days before that date. Evidence and an outline of submissions in reply by the Applicant must be served two working days prior to that date.
3. Notwithstanding any prior direction by either Respondent to the contrary, neither Respondent is to take any action or give any direction preventing the Applicant from fully disclosing all material relevant to this matter, to any or all of Gert Holstege, Peter Silburn, and Ron Balnave.
4. Until further order, no action is to be taken by either Respondent to proceed with any of the actions foreshadowed to the Applicant as described in the Application, arising from or in connection with its document, described to him as "preliminary findings".
5. Until further order, the Applicant is excused from taking any action required of him by either Respondent, arising from or in connection with that document.
6. Until further order, the University of Queensland is to take no step to offer the position now held by the Applicant, or any extension of it to 2020, to any other person.'
[42] At the hearing, leave was extended for Dr Subramanian to be represented by Mr McArdle. Leave was granted for Mr Martin Osborne, Partner of Norton Rose Fulbright, to appear on behalf of Dr O'Brien and the University.
[43] During the hearing Mr McArdle conceded that paragraph 5 of the proposed orders is at odds with the earlier consent position the parties had agreed to, and would not have utility, as Dr Subramanian would need to respond to the next draft report. It would not require an order of the Commission for Dr Subramanian to respond to next version of the preliminary report, and it is in his best interests that he responds to the next report when it is delivered.
[44] Further, Mr McArdle no long pressed paragraph 3 of the proposed orders.[11]
[45] After submissions had been made by both parties as to a potential timeframe for the further interviews of the five academics, and the availability of the Inquiry Panel, the parties ultimately agreed on a compressed timetable to complete the inquiry into alleged research misconduct. The timetable proposed by the University, requiring a process where no more than 14 days is required from each step (and seven days for Dr Subramanian to respond to each request) was agreed by the University, and which it is prepared to provide in an undertaking. Mr Osborne confirmed the University could provide to Dr Subramanian by 3 July 2017 an undertaking to reflect what was proposed during the hearing.
[46] Mr McArdle confirmed the proposed undertaking was acceptable, and accordingly paragraphs 1, 2 and 4 of the draft orders were not pressed, leaving only paragraph 6 unresolved.
[47] Knowing that the Commission was being pressed to make an interim order relevant to the University being prohibited from making an offer of employment to the candidate it considered successful during the interview for the role commencing 1 January 2018, I urged the representatives to consider calling Dr Subramanian to give oral evidence or be cross-examined. Interestingly, neither representative wished for this to occur, both citing the interlocutory nature of the hearing.
[48] Mr McArdle expressed the interim order being sought in relation to preventing the University from offering the role commencing 1 January 2018 to another person as seeking a 'holding pattern'.[12] The following exchange occurred:[13]
Mc McArdle: If the interim order about the formal job offer is not made, then the jurisdiction of the Commission, that is the bona fide jurisdiction of the matter before it, is effectively practically extinguished. I think that was the point that was being made by Hampton C in April, in that fundamental case. What is the point of making orders about the treatment of someone within an employment if the employment just evaporates?
Commissioner: Well, the employment doesn't evaporate until 31 December, in this instance.
Mc McArdle: We've got the date of the evaporation then, Commissioner.
[49] While I note that it is not often oral evidence and cross-examination of witnesses is appropriate in interlocutory proceedings, in the circumstances, I considered that I could not make a decision on the evidence before me without hearing from Dr Subramanian as to his view as to his 'right, obligation or expectation' of being offered a role beyond 31 December 2017.
[50] Professor Sah's uncontested evidence is that the University has selected a person it now wishes to make a formal offer to accept employment from 1 January 2018, hereinafter referred to as 'Dr X'. I have made a confidentiality order[14] to protect Dr X's identity, as it is unnecessary and unfair to refer to Dr X by name in these proceedings or elsewhere. All those present during the hearing of 30 June 2017 (including interested observers) gave an undertaking not to speak about Dr X by name in any forum.
[51] The University very much wishes to make a formal offer to Dr X to commence employment from 1 January 2018, and an interim order, if granted, would prevent the University from making a formal offer to Dr X. It was on this basis I considered it necessary for Dr Subramanian to give oral evidence and allow for cross-examination. I too had a number of questions to ask of him to assist in the determination of an application for an interim order.
[52] It is Dr Subramanian's evidence that he was surprised when Professor Sah wrote to him to extend his employment until 31 December 2017. Dr Subramanian has a close relationship with Professor Peter Silburn, who along with Professor Sah is the coordinator of the Centre. Dr Subramanian's evidence is that Professor Silburn has said to him whenever the topic has come up that he would be continuing on until the end of 2020.[15]
[53] Dr Subramanian's evidence is that at various times, Professor Silburn has said to him words to the effect of, "If it was not for this integrity investigation, you would have a long life at the UQ. I would be very sad for you to leave. We need you." Further, he has said, "Don't worry about your contract. It is as safe as the Bank of England, and will be extended to 2020."
[54] Dr Subramanian relies on a letter from Professor Silburn in May 2015 regarding a grant. Professor Silburn's letter includes the following:
'Dr Subramanian's current appointment with UQCCR/APCN commenced in March 2013, with an end date in March 2017 (4 years). The duration of his contract of appointment was subject to the duration of our centre's operating budget, with partner agreements in place only for the provision of funds until March 2017. This year I have had verbal agreement from our major supporter that funding support will be extended for APCN for another 5 years (until 2020), with the aim to execute a formal written agreement in June/July 2015. This agreement will allow us to extend Dr Subramanian's appointment until at least March 2020.'
[55] Where Professor Silburn might be said to be in Dr Subramanian's "camp", Professor Sah is more objective. Dr Subramanian relies on a letter from Professor Sah in August 2016 supporting Dr Subramanian's application when he was, at that time, applying for a fellowship role. Dr Sah concluded the letter as follows:
'I give an undertaking that conditional only on the applicant's sustained performance as a researcher:
[56] It is Dr Subramanian's evidence that up until the investigations commenced into alleged research misconduct, he was being promised work up until 2020 if funding was achieved. Now that funding has been achieved, he considers the University's advertisement of the role beyond 31 December 2017 as an artificial exercise to ensure that he is not provided with continued employment.
[57] Dr Subramanian was flown to Los Angeles by an interested employer in November 2016; however he knocked back an initial offer of employment. He was also flown to Minnesota to meet with Medtronic, a major supplier of neuro modulation devices. Again, he declined a job offer on what he says is the urging of Professor Silburn, encouraging him to stay focused on further funding in Brisbane for continued studies.
[58] On 20 December 2016 Professor Sah sent to Dr Subramanian the following email:
'Hi Hari........With regard to your position - we now have the funding in place from APCN. However, we have agreed that the position that will be supported will have to be advertised. It will be for a systems person working on animal models and will report to me. The position is expected to be filled sometime march/april. As your position finishes early next year, I can give you an extension to your contract till the end of 2017 with the expectation that you would apply for the advertised position. However, the person we appoint will be competitive.....'
[59] In questioning from me, Dr Subramanian confirmed that he was at times comforted by Professor Silburn in a promise for on-going work, and it was then a surprise to learn he'd have to compete for the role. The following was put by me to Dr Subramanian:[16]
'Did you ever ask Dr Sah why the appointment beyond - well, commencing 1 January 2008 would be competitive? --- I asked him and he said that "HR will not allow me to make an automatic" - renewal of the position automatic. It has to be advertised"
And when were you told that?---I can't specifically recollect but it was after the email I received from Professor Sah.'
[60] I questioned Dr Subramanian as to whether he was required to complete an application form for the role commencing 1 January 2018. The following exchange occurred:[17]
'And who did you give it to?---I gave it to Professor Silburn and he replied back to me saying "That is a solid application. Highly competitive". I am not sure that he used the word "highly" or not but he said "It's a solid application, competitive."
[61] Dr Subramanian's evidence is that he learned he was up against another candidate on 13 June 2017, when he was required to present a seminar to the interviewing panel. He learned that another person, Dr X was presenting a seminar to the interview panel on the same day.
[62] Dr Subramanian's evidence is that he raised with Professor Silburn the competitive nature of the recruitment for the role. In oral evidence Dr Subramanian said the following:[18]
'Well, this was one of the issues that I raised with Professor Peter Silburn as soon as I received the email from Sah that there's going to be a competitive process. Of course I'm aware of the fact that when there's a competitive process and where there's a job advertisement there's going to be hundreds of people applying for it. And when I raised this issue with Professor Silburn and saying that "What if I have a competitor but in a different, completely different project scope?" I'm one of the very few people unique in the area.'
[63] It is Dr Subramanian's evidence that Professor Sah was, even at the interview, exclaiming Dr Subramanian's good work. Up until the time Dr Subramanian became aware of Dr X's existence on the day of the seminar presentation, Dr Subramanian considered that the funding granted by the interested third party was to a reasonable degree because of the specific research he was undertaking. He had met with the organisation providing the funding, and considered that they were impressed with his studies and his facilities. The research that Dr X performs is different to the work of Dr Subramanian. His evidence is that at no time was he told the University might go down a different path - that is, choose a different kind of research from the research that he performs.
[64] Dr Subramanian's evidence is that his particular research has taken years to do, and when he has committed to being a supervisor of PhD students, he has made a solid commitment to do so. He considered that both Professor Silburn and Professor Sah would have some say in the appointment when the funding was extended, and Professor Silburn was extremely encouraging of his work.
[65] Dr Subramanian's evidence is that of the four people on the interview panel, at least two of them knew of the inquiry being undertaken into alleged research misconduct. He considers he was not given adequate opportunity during the panel interview to discuss his research, and he considers one interviewer asked irrelevant questions.
[66] In cross-examination, Dr Subramanian was asked if he had any evidence that the selection panel chose Dr X over Dr Subramanian for any illegitimate reason. Dr Subramanian answered no.[19] The following question was put and answered in cross-examination:[20]
'So you really have no way of saying that you were the better candidate based on the process or out of the process?---Based on the promises and the - as I said, let me repeat again, based on the promises and the type of program that Professor Silburn wanted, I can say that I am the better candidate than [Dr X] because [Dr X] is not doing what Professor Silburn wanted to do.
But you've already said earlier Professor Silburn wasn't your boss, Professor Sah was?---Well, again we're coming back to a boss and - - -'
[67] Dr Subramanian's evidence is that if his employment ends on 31 December 2017, his laboratory goes with him. While it was not put before me, Dr Subramanian informed the Commission he has a written agreement confirming the laboratory is his property. He brought with him his laboratory from another university where had had earlier worked. This was contested by the University, however not a great deal of time was spent on this issue during the hearing and it remains contested.
[68] Professor Sah was not required for cross-examination and in any event was not available to attend the hearing as he was overseas. It is Professor Sah's evidence that he and Professor Silburn were able to secure the promised funding. The funding was not secured on the basis that Dr Subramanian personally would be employed in the research position. It is Professor Sah's evidence that the position attached to the new funding is a new position, with a different focus to the work Dr Subramanian had been performing. Dr Subramanian's research had been relatively autonomous.
[69] The position had to be advertised in accordance with the Universities policies and procedures, with a competitive application process because the role was to be for a period in excess of 12 months. In limited circumstances, and for very senior roles (such as at Professorial level), an incumbent can be placed into the role without a formal recruitment process, but only with the permission of the Vice-Chancellor. An interview is still required. Professor Sah did not think the circumstances warranted this avenue being explored.
[70] The role was advertised and a number of candidates applied. Two applicants were shortlisted, and Dr Subramanian was informed he had been shortlisted for the role on 23 May 2017. He was asked to present at a seminar on 13 June 2017 on a topic of his choosing, and to participate in an interview with a selection panel on 14 June 2017.
[71] It is Professor Sah's evidence that the other shortlisted candidate, Dr X out-performed Dr Subramanian. The panel considered that Dr X is a very experienced and focused neuroscientist and had demonstrated independent research leadership experience. The panel considered that Dr X had a demonstrated record of successfully obtaining grants to support their research, where Dr Subramanian did not.
[72] The selection panel concluded that Dr X was an appointable candidate and that Dr Subramanian was not an appointable candidate. That is, if an offer was put to Dr X and the offer was not accepted, the default position would not be to appoint Dr Subramanian to the role. It is the University's contention that the role would be re-advertised and would not revert to Dr Subramanian simply because he had been the only other shortlisted candidate.
[73] Professor Sah's evidence is that the investigation into potential research misconduct by Dr Subramanian was not discussed at all during the selection panel's deliberations, nor did it influence Professor Sah's decision-making.
[74] On 15 June 2017, Professor Sah sent the following text message to Dr Subramanian:
'Dear Hari - After the interviews, the committee finished its deliberations yesterday. I'm sorry to tell you that your application for this position was not successful. Hence we will not be renewing your contract. I wanted to let you know this before you got a formal letter from HR. These positions are competitive, and at level C, they cannot be automatically renewed. I am away for the next 4 weeks but happy to talk with you about this when I get back. Pankaj'
[75] It is Professor Sah's evidence that even in the event Professor Silburn may have wished for Dr Subramanian to have continued in his employment beyond 31 December 2017, and he may have indicated that that was his view, he had no authority or ability to make that happen.
[76] Professor Sah's evidence is that Dr X has been informed that the University has declared Dr X the successful candidate for the new position. This communication was made on or around 15 June 2017 and prior to Dr Subramanian taking issue with being unsuccessful. A formal offer has not been made, pending this application; however it is the University's desire to promptly formally offer the role to Dr X.
[77] Dr X will require some time to relocate from overseas, and if there is any delay in being able to offer to Dr X the role pending these proceedings, Dr X may not eventually accept the role as time continues to pass.
[78] Funding for the role has been secured for a period of three years. If the University cannot demonstrate the funding is being used as intended, it may not secure an additional two years of funding as it hopes to do.
[79] The recruitment process has taken the University approximately three and a half months. If the University is prevented from formally offering the role to Dr X until some point in the future, and Dr X is no longer interested in the role, the recruitment process would have to commence from the beginning. The University's concern is that any order of the Commission to prevent the University from offering the role to Dr X may likely result in the role being unfilled come 1 January 2018.
'The Commissioner refers to Gooley DP, who was talking about the principles of an interim decision order. Gooley DP, in turn, is quoting Bromberg J, in Quinn v Overland.[23] This is the very useful quote:
In determining an application for interlocutory relief the court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief."'
[81] Mr McArdle further provided the following in contending that Dr Subramanian has established a prima facie case:[24]
'The most recent evidence that's given, for example, is that the questions from the interview panel were not searching and probing, they were idle or changing the subject about, "What do you think about little children walking around with probes in their heads?" Which is sort of a flippant, non-rigorous, dismissive question. That's the evidence of what the witness tells us about. So that's just one example.
If we look at the entirety of the evidence for and against, there's something very definite for this Commission to rule on, that is, whether or not the disadvantage of this individual and what is now happening to him arises from behaviour that has caused an effect on him, that has been shown by doctor's certificates, which can be shown to be not reasonable management action. That's something that has to be decided, Commissioner, whether or not the activity that is having an effect, that's repeatedly been going on for a year, was or was not a reasonable management action. So we've got a prima facie case.'
[82] It is contended that a prima facie case has been made out that Dr Subramanian was not offered the role because he was under investigation, and because at least two of the selection panel members were aware of the inquiry. It is submitted that flippant questions and comments were put to Dr Subramanian during the interview, demonstrating that he was not afforded the same opportunity as Dr X.
[83] It is submitted that this has resulted in an adverse effect on Dr Subramanian, as demonstrated by the medical certificates he relies on, and that it is not conduct which could be described as reasonable management action.
[84] Mr McArdle again referred to the decision of Bayly in consideration of the effect of the order if it is made:[25]
'Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.'
[85] It is contended that the only inconvenience for the University, if an order was to be made in the form requested, would only be that it not be able to do what it wants, and that this could only be considered to be an inconvenience or an irritation when compared to the consequence Dr Subramanian would suffer if the order was refused.[26]
[86] It is further contended that Dr Subramanian, as a likely consequence of the order not being made, would likely suffer a consequence of unemployment, loss of professional reputation and loss of career.[27]
[87] In relation to the impact of the proposed orders on Dr X, it was submitted that there would be no suffering by that person. Dr X has on-going employment at an internationally renowned clinic and if the order were granted, Dr X would simply stay there.[28]
[88] It was submitted that the requirement of a prima facie case in Bayly does not mean Dr Subramanian has to show he will ultimately be successful in his case, but rather show that there is there is merit in preserving the status quo pending the trial of the substantive application.[29]
[89] It is the University's submissions that the situation in Bayly is very different from the matter presently before the Commission. In Bayly, the applicant was facing imminent termination, and if Ms Bayly had been dismissed as anticipated, the entire proceedings before the Commission would dissipate.
[90] Hampton C said in Bayly:[30]
'What is clear, is that as a result of the prerequisites of s.789FF of the Act, the dismissal of Ms Bayly would significantly compromise, and potentially deny, her capacity to have the s.789FC application heard and determined. Further, in the absence of interim orders, this was a very real prospect given all of the particular circumstances evident here and the stated intention of BKI. This is a significant factor directly relevant to the balance of convenience and the exercise of any discretion.'
[91] It was submitted that Hampton C made the interim order because he was heavily influenced that Ms Bayly was going to be dismissed; not at some future date, but then and there.
[92] The University's submission is that the facts in this matter can be distinguished against the facts in Bayly. In Dr Subramanian's situation, his employment is likely to continue up until 31 December 2017. It was submitted that once the investigation inquiry has been completed, these proceedings could be re-enlivened and pursued if that was what Dr Subramanian wished to do.
[93] The University submitted that there is no serious question to be tried relevant to whether Dr Subramanian is being bullied at work. It submitted that Dr Subramanian would be unable to demonstrate repeated unreasonable behaviour towards him, where the University asserts that it has taken reasonable management action in a reasonable manner.
[94] The University puts Dr Subramanian's evidence no higher than his assertion that some members of the selection panel for the role he was seeking knew of the inquiry being undertaken, and Professor Silburn had repeatedly given him assurances of the excellent work he was doing.
[95] Mr Osborne submitted that the position to commence 1 January 2018 is a bona fide new position, and the person who fulfils the role will take the research in the direction that they wish to. If Dr X is offered the role and accepts the role, Dr X will undertake their particular field of research, not continue the work Dr Subramanian has been performing.
[96] In any event, the recruitment for the role has been undertaken in accordance with published policies of the University under the watchful eye of the QBI human resources function.
[97] As to the balance of convenience if the Commission is minded to make an interim order preventing the University offering the role to Dr X, the University submitted that it would be more than a mere irritation as submitted by Dr Subramanian. If an order is made, the University will be prevented from recommencing recruitment until after the determination of the investigation and any pursuit of this application in the Commission. The University would effectively have to seek a lifting of any order made to allow it to even commence a recruitment process.
[98] Further, it is the University's submission that even if the Commission does make the order as sought, it will not result in the position being awarded to Dr Subramanian. Professor Sah's evidence is that Dr Subramanian has been determined by the selection committee not to be appointable. In granting the order, all it would do is stop the University from filling the position. The University submitted the Commission lacks the power to order Dr Subramanian be employed in the role commencing 1 January 2018 when his term appointment expires on 31 December 2017.
[99] It is the University's submission that the anti-bullying jurisdiction should not be used as a quasi-pre-emptive unfair dismissal jurisdiction.
[100] The University did not seek to quibble with the issue as to whether the Commission had jurisdiction to make interim orders against the University, rather than Dr O'Brien who is the named person. In the same way that Hampton C made orders against the employer party in Bayly, the University did not resile from the fact that it is ultimately the University, and not directly Dr O'Brien who is conducting the inquiry in relation to Dr Subramanian. Further, it is the University who has informed Dr Subramanian that he is not the successful candidate for the role commencing 1 January 2018, not Dr O'Brien.
[101] On the issue as to whether the Commission could exercise a power to order Dr Subramanian be employed in the role, Mr McArdle said the following:[31]
'The very clear thing the Commission can do in these proceedings if it's convinced of what we're going to put before it in any substantive hearing, is that this person be given a fair hearing when it comes to employment. Obviously you can't order that someone employ someone, but you can order that someone give someone a fair hearing. We suggest that had this individual been given a fair hearing, then he would have got the job.'
[102] After hearing the evidence and submissions of the parties, I then spent a considerable amount of time questioning Mr McArdle as to the exact wording of the proposed order Dr Subramanian was seeking. After a short adjournment and obtaining instructions from Dr Subramanian, Mr McArdle pressed the Commission to make an order to the effect that the University will be prevented from offering the role to any person until the substantive application before the Commission has been determined.
[103] I have had careful regard for the decision in Bayly and the authorities cited within. The decision of Hampton C in Bayly appears to be an entirely appropriate course of action in the circumstances; to preserve Ms Bayly's employment where she was not well enough to attend the workplace in the period it would take for the Commission to programme and hear the substantive application.
[104] Without an order to prevent her employer from dismissing her, Ms Bayly's action in the Commission would likely be extinguished.
[105] It was put by Dr Subramanian that if the Commission declined to make an order preventing the University offering the role commencing 1 January 2018 to Dr X, then there would be very little left for him to pursue in his substantive application if ultimately his employment will end 31 December 2017.
[106] It is Dr Subramanian's submission that if the Commission made an order as sought by him, and if the University concluded its inquiry by October 2017, he may make application that he be given a 'fair hearing' in a fair-minded and even-handed recruitment process for the role commencing 1 January 2018.
[107] When the application was first before the Commission at hearing seeking an interim order on 15 June 2017, the Commission understood at that time that Dr Subramanian held genuine concerns that his employment would imminently end. With the consent arrangement in place, there was no risk of that occurring, and therefore no requirement to consider the making of interim orders.
[108] On Dr Subramanian learning he was unsuccessful in the role with the new funding, a further application for interim orders was made, eventually landing on just the one proposed order; the restriction on the University to offer the role to the other shortlisted candidate.
[109] As disappointing as it is for Dr Subramanian to learn that he has not been successful for the role commencing 1 January 2018, it does not correlate that the Commission should make an order preventing the University from offering the role to Dr X.
[110] The University extended Dr Subramanian's fixed-term employment until 31 December 2017 at the height of its inquiry into alleged research misconduct. I accept the University's submission that if it had wanted to release Dr Subramanian on account of it already forming a view that there will be an ultimate finding that he has engaged in research misconduct, it could have done so.
[111] Dr Subramanian's current role was offered to him and accepted on the basis of funding in existence at the time. That particular funding has been extended, and symbiotically, Dr Subramanian's term has been extended. Dr Subramanian's contract will expire on 31 December 2017 by the expiration of time unless either party seeks to terminate the contract prior to that date in accordance with the terms of the contract.
[112] If the further funding from 1 January 2018 had not been secured, there would be no cause of action for Dr Subramanian to seek an interim order in the form that he is seeking. The inquiry would be underway and as per the consent position reached on 15 June 2017 and modified by the proposed undertaking on 30 June 2017, a further five academics will be interviewed and a further draft report prepared and issued to Dr Subramanian.
[113] Dr Subramanian obviously considered there was utility in bringing his application before the Commission on those terms alone. The application made by Dr Subramanian addresses the concerns Dr Subramanian has with regard to adverse findings if they are made, and the effect it might have on his professional reputation and employability. Even if the Commission heard the substantive hearing in the latter part of 2017 and handed down a decision prior to 31 December 2017 declaring inter alia that it was inappropriate for the University to make adverse findings against him on the basis of bullying, there would be utility in such a course of action.
[114] The fact that Dr Subramanian was shortlisted but ultimately unsuccessful for a role to commence 1 January 2018 with new funding does not correlate that there is a prima facie case that the University or any person at the University has engaged in bullying of Dr Subramanian. Dr Subramanian's evidence is that he understood the role was to be advertised, and he contemplated that there might be 'hundreds' of people applying for the role.
[115] He even considered that there might be candidates wishing to take the research in a different direction. He was comforted by Professor Silburn, who on Dr Subramanian's uncontested evidence assured him that his research was eminently important and that Dr Subramanian should 'fly the flag' relevant to his research speciality. Professor Silburn commended Dr Subramanian's application as being 'highly competitive', and accordingly, Dr Subramanian was on notice his pursuit of the role was in an environment of a competitive recruitment process.
[116] The University's policies and procedures are fundamentally sound, requiring the advertisement of positions where the role is to be for a period of 12 months or more. Professor Sah's decision not to make application for the role to be offered directly to Dr Subramanian is also sound. I am satisfied that Dr Subramanian has not been treated differently to any other employee in similar circumstances. I do not accept there is a prima facie case of bullying in relation to the recruitment selection of the role commencing 1 January 2018.
[117] In Quinn[32], Bromberg J stated that the test is whether the applicant has made out a prima facie case that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be entitled to relief. In the case presently before the Commission, the relief sought in the substantive application is relevant to the speed and manner at which the inquiry into alleged research misconduct is being undertaken, together with the qualifications of the Inquiry Panel. There is evidently enough time to hear and determine the substantive application during Dr Subramanian's fixed-term employment given the undertakings proposed by the University as to timetabling have been accepted, albeit somewhat reluctantly by Dr Subramanian.
[118] In Quinn, Bromberg J discussed further the test of "prima facie case", declaring that the applicant does not need to demonstrate that it is more probable than not that he will succeed at trial. Rather, the test is whether the applicant can demonstrate a sufficient likelihood of success to justify the preservation of the status quo pending the trial.
[119] Dr Subramanian is extremely confident that following the University interviewing the five academics it will be clear that he has not engaged in research misconduct. His confidence in this view is unwavering.
[120] At least two of the academics to be interviewed - Professor Silburn and Professor Holstege - appear to hold Dr Subramanian and his research in very high regard. Professor Holstege has attempted numerous communications with senior office-holders of the University to deny any suggestion that Dr Subramanian has engaged in any research misconduct. Dr Subramanian is pleased there are plans to interview the five academics, and it his expectation that once the Inquiry Panel hears from these academics, the inquiry will cease and adverse findings against him will not have been made.
[121] That is the substantive application before the Commission, and the timetabling for the next steps to be undertaken by the Inquiry Panel, Dr Subramanian and various University personnel are now in place. The interim orders sought do not alter that. The status quo is, in fact, in place.
[122] The application for the interim order is largely to seek to preserve Dr Subramanian's rights in the event the University determines there are no grounds to the research misconduct allegations. Dr Subramanian would expect that having been cleared of the allegations, he would be entitled to be fairly considered for the role commencing 1 January 2018. It is this status quo that Dr Subramanian is seeking to protect by the making of an interim order. The submission is that Dr Subramanian has not been afforded a fair process in applying for the role.
[123] I am not satisfied that it is appropriate to make an interim order to prevent the University from offering the role commencing 1 January 2018 to Dr X or to any other person until such time as the substantive application has been determined. On the current timetable, the substantive application may not come before the Commission until early-to-mid October 2017. That is when the Deputy Vice-Chancellor of the University may make a decision relevant to the findings of alleged research misconduct. While the substantive application can then be programmed and a hearing conducted and decision delivered prior to 31 December 2017, Dr Subramanian is in the same position whether an interim order is made or not.
[124] While a future application to order the University to give a "fair-minded and even-handed" opportunity for Dr Subramanian to present to an independent selection committee has been foreshadowed, the balance of convenience weighs heavily in favour of the University in that it is has already provided to Dr Subramanian a "fair-minded and even-handed" interview and seminar in consideration of selection to the role commencing 1 January 2018.
[125] I accept that the University has obtained fresh funding, and that it is entitled to call the role a new role. This is so because of its own obligation to advertise the role and ensure it is a competitive selection process. The benefit of this policy is abundantly clear to ensure fairness to all applicants and to prevent nepotism. Further, I also accept that the University is free to offer the role based on the funding to an academic with an alternate pathway of research, and the University is not bound by the funding or any other reason to promise to Dr Subramanian that his employment will be open-ended or assured.
[126] It is clear from the conversation Dr Subramanian had with Professor Silburn at [62] that upon learning in late 2016 the role would be competitively recruited, the University may take the opportunity to recruit an academic with an alternative research interest. While aware that this scenario was possible, it appears Dr Subramanian naively considered he would be the only competitive candidate until he discovered there was another shortlisted candidate on 13 June 2017.
[127] I do not accept that simply because two of the members of the selection panel were aware of the inquiry into alleged research misconduct, the selection process was infected. I accept that the selection panel determined on the information before it, independent of the inquiry relevant to Dr Subramanian that Dr X was the candidate the University wished to make an offer to and it was for bona fide reasons.
[128] I have had regard to [36] of the decision in Bayly where Hampton C stated that interim orders 'would not be issued lightly'. To prohibit the University from offering employment to Dr X until the substantive application is determined, or even a shorter period if so ordered, would be taking an extraordinary step and one that I do not accept is necessary to preserve Dr Subramanian's rights in relation to the substantive application.
[129] I accept the University's evidence that such an order, or even an order for a shorter period of time would severely restrict the University resulting in more than mere inconvenience. If the substantive application is next before the Commission in October 2017 pursuant to the agreed timetabling, the University is prevented from offering the role to any person. While it is true the proposed order would not prevent the University from re-commencing recruitment for the role by re-advertising the position and re-commencing the selection process, it would prevent the University from being able to offer confidence to any preferred candidate that the role could commence from 1 January 2018. A new selection committee would need to be established, and it would be expected the committee members who have selected Dr X in the recent recruitment for the role would be prevented from participating on a new committee due to alleged bias or apprehended bias concerns Dr Subramanian holds.
[130] I do not find there are any grounds to form a view that there is a serious test that the selection committee has prejudiced Dr Subramanian's candidature for the role. On the balance of convenience, an interim order preventing the University from offering the role to Dr X would result in a severe and unnecessary restriction on the University without affecting Dr Subramanian's rights relevant to the substantive application.
[131] Dr Subramanian's rights relevant to the substantive application are not adversely affected by the decision of the University to offer the new role commencing 1 January 2018 to Dr X.
[132] I decline to make the interim order sought, or any interim order at all.
[133] The University is at liberty to offer to Dr X, if it so wishes, the role commencing 1 January 2018.
[134] The University is directed to provide the undertaking it committed to make to Dr Subramanian relevant to the timetabling of the inquiry by 4.00pm, 11 July 2017 with a copy to my Chambers.
[135] Dr Subramanian, Dr O'Brien and the University are each at liberty to seek the Commission's further assistance relevant to the substantive application.
[1] Subramanian, H.H., Arun, M., Silburn, P.A. and Holstege, G. (2016). Motor organisation of positive and negative emotional vocalization in the cat midbrain periaqueductal gray. The Journal of Comparative Neurology 524: 1540-1557. Doi:10.1002/cne.23869.
[2] Arun, M., Silburn, P.A. and Subramanian, H.H. The periaqueductal gray-nucleus retroambiguus definition and its multifunctional configuration in the rat.
[10] Lynette Bayly [2017] FWC 1886.
[21] Lynette Bayly [2017] FWC 1886.
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