Ilya Kerig [2019] FWC 6181 (5 September 2019)

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Mr Ilya Kerig is employed by Victoria University (University). He has been stood down from his employment without pay pursuant to the serious misconduct provisions of the Victoria University Enterprise Agreement 2013[1] (Agreement).

[2] On 2 August 2019 Mr Kerig made an application to the Fair Work Commission (Commission) to deal with a dispute in relation to that stand down. In effect Mr Kerig disputes the ability of the University to stand him down in the circumstances in which it did. Mr Kerig now seeks interim orders that:

• The investigation into his misconduct stop until such time as the dispute is heard and determined by the Commission;

• His suspension be revoked from its date of effect with no loss of salary.

[3] The application for interim orders was heard by me on 4 September 2019 following unsuccessful conciliation of the dispute.

[4] Having considered the submissions and material put before me I am not satisfied that the interim orders should be granted. These are my reasons.

[5] The University has put five allegations of alleged misconduct to Mr Kerig. In doing so the University has reached the view that the allegations, if substantiated amount to serious misconduct. The University also determined that, in these circumstances Mr Kerig should be stood down without pay.

[6] The definition of serious misconduct is found at clause 62.1.13 of the Agreement and states as follows:

(a) serious misbehaviour which constitutes a serious impediment to the carrying out of a staff member's duties or to a staff member's colleagues carrying out the staff member's duties;

(b) serious dereliction of the duties required of the position;

(d) conviction by a court of an offence that constitutes a serious impediment to the carrying out of a staff member's duties or functions or to a staff member's colleagues carrying out their duties or functions.

Examples of conduct which may constitute serious misconduct are:

• serious or repeated bullying or harassment, including sexual harassment; or

• wilful and/or gross breach of the staff member's contract, the University's policies and/or regulations, such that it would be unreasonable to continue the staff member's employment.

[7] The stand down provisions are found at clause 62.4 of the Agreement. Clause 62.4 states that:

62.4.1 If an allegation of serious misconduct has been made against a staff member, and if the relevant senior officer considers that, prima facie, the allegations are serious enough to warrant the staff member not being at work, the relevant senior officer may, at any stage during the procedures under clause 62, suspend the staff member, either with or without pay, until the conclusion of the matter, provided that:

(i) the Vice-Chancellor may give approval so that the staff member may draw on any accrued entitlement to annual leave or long service leave for the duration of the suspension without pay;

(ii) the Vice-Chancellor may at any time direct that salary be paid, in part or in full, on the grounds of hardship for the period of the suspension or a part period; and

(iii) the Vice-Chancellor will ensure that the RAC at its first meeting, or an Investigator, consider whether suspension without pay should continue and that the RAC or Investigator will have the power to recommend the revocation of such a suspension from its date of effect.

62.4.2 During any period of suspension the staff member will be excluded from the University or any identified parts of the University, provided that he or she will be permitted reasonable access to the University to prepare the staff member's case and to collect personal property.

[8] The allegations against Mr Kerig are, in summary, that:

He restored a University iMac computer[2] (computer) to factory default settings and then personalised the computer to restrict the University from gaining administrator access to the computer and to avoid having his digital activity monitored by the University. Further he knowingly and wilfully installed Boot Camp Assistant (software) to download and run Windows 10 on the computer allocated to him against the advice of the University's Information Technology Services (ITS) Department. In doing so he breached a number of identified University policies;

He deliberately and wilfully stored and accessed inappropriate content regarded as objectionable and offensive, using the University's IT resources. In doing so he breached a number of identified policies;

The volume of personal material stored on the computer which was allocated to enable him to undertake work related duties was unreasonable and not in accordance with the University's IT policies and procedures. In doing so he breached a number of identified University policies;

He failed to abide by a lawful direction in that he sought to dishonestly gain access to the computer and potentially interfere with the investigation pertaining to his conduct. The University considers such behaviour to be unprofessional. In doing so he breached an identified University policy;

His actions amounted to serious misconduct in accordance with clause 62.1.13 of the Agreement.

[9] In putting these allegations to Mr Kerig the University set out in extensive detail the basis on which it had reached the decision that the allegations should be put.

[10] The Commission has the power under s.589 of the Fair Work Act 2009 to issue interim orders of the type sort by Mr Kerig.

[11] In deciding if interim orders should be issued there are two main considerations - firstly, if there is a serious issue to be tried (or matter to be determined) and, secondly, where the balance of convenience lies.

[12] These matters were considered by Bromberg J in Quinn v Overland[3] where his Honour said:

[45] 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. 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: Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability: Australian Broadcasting Corp v O'Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].

[13] Of course, prior to considering such matters the Commission must be satisfied that it has jurisdiction to deal with the application before it.

[14] The University says that the Commission does not have jurisdiction to deal with the dispute as Mr Kerig has not gone through the steps of the dispute settling procedure in the Agreement.

[15] Mr Kerig maintains that he has met the requirements of the dispute settling procedure.

[16] I am not satisfied I have enough information before me from either party to make a definitive judgement on this. For the purpose of determining the interim order question I have assumed jurisdiction. Should the matter proceed further jurisdiction is a matter that will need to be fulsomely dealt with by both parties.

[17] Mr Kerig says that the University has no evidentiary basis on which to consider that the allegations against him constitute serious misconduct. He says this for a number of reasons.

[18] Firstly, he says that the University does not have the evidence to support the allegations. Secondly, he says that the misconduct, even if true, is not so serious as to constitute serious misconduct such that it would warrant suspension.

[19] Mr Kerig said, of the allegations, that he had permission to make the changes to the computer by his supervisor and that it was done with the knowledge of ITS; he did not deliberately and wilfully store inappropriate content on the computer and that it must have been downloaded by mistake when he connected his personal iPhone to the computer; most of the files on his computer were work related matters and not personal and that he had sought to have the computer returned to him because he had understood that his conversation with Ms Jennifer Curley, College Manager, on 24 May 2019 had resolved the issues and there was therefore no reason he could not have access to the computer.

[20] Mr Kerig also submits that the means by which the University gathered information to support the allegations breached his privacy in that the University accessed his private files on the computer allocated to him and, further, the University breached copyright laws in that it distributed personal material on the computer that over which he holds copyright and passed that on to others in the University. In doing so it caused damage to him.

[21] The University presented extensive material to Mr Kerig when he was provided with the allegations. The University says I can rely on this material to conclude that it had a rational basis to conclude that the allegations would constitute serious misconduct.

[22] I have considered in detail the material produced by the University, all of which has been seen by Mr Kerig. That material includes:

• Emails between the University ITS staff and Mr Kerig in relation to Windows 10 on his computer (although I also note an email to Mr Kerig from his supervisor indicating he could keep the software on his computer) and information relating to removing the computer from the University network meaning its use could not be monitored;

• Details describing the offensive content (which I choose not to repeat here) including violent video games;

• the volume of personal material found;

• the relevant policies of the University.

[23] I am satisfied, on the basis of the material provided, that the University had a sound basis on which to put the allegations to Mr Kerig.

[24] I am also satisfied that the allegations, if substantiated, have the capacity to constitute serious misconduct. The storing of offensive material of the type described could, arguably, constitute a serious impediment to Mr Kerig carrying out his duties in that it would go to the trust that the University could have in him to carry out his duties in accordance with appropriate standards of workplace conduct. If it is that Mr Kerig altered the computer it would, arguably, constitute an impediment to Mr Kerig carrying out his duties as the University could not be confident that he would not interfere with University equipment.

[25] I acknowledge Mr Kerig's assertions with respect to the breach of his privacy (he has a complaint with the Privacy Commissioner) and the copyright he holds on some material accessed by the University. I also acknowledge his submissions that the University has not abided by its own policies and procedures in embarking on the investigation. However, I am not convinced that these submissions outweigh the allegations or my view that those allegations have the capacity to constitute serious misconduct. I am not convinced that Mr Kerig has demonstrated that it is arguable the misconduct could not constitute serious misconduct. Rather it seems to me that Mr Kerig seeks to impugn the University processes as opposed to what was found on the computer and his subsequent conduct.

[26] While Mr Kerig does not consider he has done anything wrong I am not inclined to his point of view.

[27] Having found as such I am satisfied, that, prime facie, the University had reasonable grounds to conclude that Mr Kerig should not be at work.

[28] The allegations of Mr Kerig's interference with the computer and his attempt to gain access to it following the commencement of the investigation (his email to he ITS Department of 27 May 2019) provides a rational basis for the University to conclude that Mr Kerig should be stood down from his employment and barred from attending the University during that stand down.

[29] It might be arguable that this was an over reaction and that the University could do things to protect its computer network from such incursions. I am satisfied however that, prime facie, the University had reasonable grounds to stand Mr Kerig down.

[30] For these reasons I do not consider that he has a case that might probably succeed.

[31] The allegations against Mr Kerig have been investigated and he has been advised of the outcomes of that investigation. He has appealed that outcome to the Review and Appeals Committee (RAC). The RAC has been constituted and has met. It has been unable to commence detailed considerations as Mr Kerig has been unwell and unable to make his submissions to the RAC.

[32] The University says that the misconduct proceedings are well advanced. It says that if Mr Kerig was successful in obtaining the orders he seeks the University would be prejudiced because it would result in a delay to the RAC process (it would be stopped by the granting of the interim order) and there would be a risk that Mr Kerig would engage in similar conduct adverse to the University's interests.

[33] Mr Kerig says that he has suffered emotionally and financially and has suffered reputational damage which will continue if he remains stood down.

[34] Whilst I appreciate the effect of the stand down on Mr Kerig I am satisfied that the University is doing what it can to have the RAC process proceed such that the matter may be brought to an appropriate end in a timely manner.

[35] Mr Kerig says he does not believe the RAC is undertaking its responsibilities appropriately but that is not a matter for me. Mr Kerig chose to use the RAC process - it is a matter in his hands.

[36] In the totality of the circumstances of this case and the seriousness of the allegations against Mr Kerig (which I accept he challenges) I am not satisfied that the balance of convenience lies in the granting of the orders sought.

[37] Mr Kerig's application for interim orders is refused.

[38] Mr Kerig is required to advise the Commission by 4.00pm Thursday 12 September 2019 how he now wishes to proceed with his application.

[2] Mr Kerig has an iMac computer allocated to him by the University for the purposes of carrying out his duties.

[3] [2010] FCA 799. See also Health Services Union v Victorian Hospitals' Industrial Association and others [2012] FWAFB 2901 at [9]; and The Australian Maritime Officers' Union [2015] FWC 5127 at [10].

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