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[2020] FWC 1461
Fair Work Commission
2020-04-01
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 1 April 2020.
The name of the video file at paragraph [53] has been removed and replaced with "[video].mov".
[2020] FWC 1461 [Note: An appeal pursuant to s.604 (C2020/2588) was lodged against this decision.]
s.739 - Dispute resolution
Alleged dispute about any matters arising under the enterprise agreement and the NES - whether University fulfilled requirements of clause 62 - application dismissed.
[1] Mr Ilya Kerig has notified a dispute to the Fair Work Commission pursuant to s.739 of the Fair Work Act 2009 (FW Act) and in accordance with the dispute settling procedure of the Victoria University Enterprise Agreement 2013 (Agreement). Mr Kerig's disputes relates to a decision by his employer, Victoria University, to investigate his conduct and, in doing so, suspend him from his job at the University without pay.
[2] Mr Kerig said that his dispute relates to whether the University had correctly enlivened the serious misconduct provisions of the Agreement and if it had properly complied with the procedures for investigating misconduct in clause 62 of the Agreement.
[3] Mr Kerig requested that the Commission make interim orders in relation to his application. By decision[1] dated 5 September 2019 I rejected that application. Mr Kerig now seeks to have his application determined.
[4] Evidence was given in the substantive proceedings by Mr Kerig, Professor Robert Strathdee and Professor Marcia Devlin.
[5] In determining the application I have been required to assess the witnesses. I found Professor Devlin to be a reliable witness. She was calm, considered and forthright in her evidence. She sought to understand the, at times, convoluted questions of Mr Kerig. She treated Mr Kerig with respect as a self-represented applicant. Her evidence was credible and I consider her to be a witness of truth.
[6] Professor Strathdee, whilst perhaps not as patient with Mr Kerig, was forthright in his answers. He was a credible witness and his evidence reliable.
[7] In this regard both are to be contrasted to Mr Kerig who made assertions without foundation in much of his evidence. Mr Kerig's "evidence" was given more in the way of submissions with limited factual material to back this up. Where there is conflict in the evidence I have preferred that given by Professor Devlin and Professor Strathdee to that of Mr Kerig.
[8] The following background is not contentious and is drawn primarily from the material submitted by Mr Kerig.
[9] Mr Kerig was employed by Victoria University as a Loans Support Officer in the College of Arts and Education. He commenced employment with the University on or about 20 September 2019. His employment was terminated on 16 January 2020 (see below).
[10] In around May 2017 Mr Kerig was issued with an iMac computer by the University for the purposes of carrying out his duties. On 24 October 2017 Mr Kerig asked if the iMac could be swapped for a PC workstation as he preferred Windows 7.[2]
[11] On 27 October 2017 at 4.32pm Mr Kerig wrote to Information Technology Services (ITS) at the University with a subject line "Windows 10 on iMac" and asked:
How much is Windows 10 to purchase? We need to install it on one of the VU iMacs. Or can I get an ISO file, since VU has a site windows allowance
[12] An ITS employee (Elias) responded that:
VU ITS will not supply a copy of Windows for iMac. Our licensing does not allow us to distribute the Windows licensing to Apple devices.
What your trying to carry out is called "Dual Boot" but this is not supported by VU ITS, Apple or Microsoft.
Can I ask what you are trying to achieve by moving an iMac to Windows system?
[13] At 4.51pm that day Mr Kerig replied:
It's definitely supported by Apple and Microsoft [web addresses supplied]
This is not Dual Boot this is Boot Camp, so perhaps it is a little different...
Unfortunately I cannot quote you on something that is beyond our licensing.
If you wish to use Windows Software, I would strongly recommend acquiring a Windows Computer from the Asset Control Management Officer...
ITS sell various software to colleges, do you sell Windows 10.
[16] The following morning Mr Stellini from ITS replied that he was not sure how much the Windows 10 license cost "as it is provided to VU Staff by an external company" and provided details as to how to access the external company.[3]
[17] On 20 May 2019 Mr Kerig was on leave. Mr Fernandez, another University employee was using the iMac normally used by Mr Kerig. Mr Fernandez experienced some difficulties with the iMac and reported this to ITS where a job was "logged" to resolve the matter.[4]
[18] ITS apparently examined the computer and determined that it was not configured in accordance with University policy in that it had been:
Refreshed back to factory defaults;
Personalised with a local administrator account;
Had Boot Camp configured; and
Had Windows installed.
[19] This was reported to Ms Jennifer Curley, College Manager, College of Arts and Education.[5] Ms Curley notified People and Culture (P&C) who sought more information.[6] The iMac was, at this time, detained by ITS.[7]
[20] Mr Kerig returned from leave on 24 May 2019 and a meeting was held with him with respect to the iMac issues. Mr Kerig was advised that the iMac was to be kept by ITS while issues with it were further investigated and that he (Mr Kerig) should contact Ms Curley if he required files from the computer. An alternative computer was allocated to Mr Kerig. In addition to Mr Kerig, the meeting was attended by Ms Curley, Ms Sue Dodd (Acting Deputy Dean), Ms Heather Braden (Senior Workplace Relations Advisor P&C) and Ms Theodora Tsombanopoulos (P&C Consultant).[8]
[21] That day, and following the meeting, Mr Kerig sent an email to Ms Braden, Ms Dodd and Ms Curley. That email said:
I'm sorry for the issues you encountered with my computer. I'm sure it was an inconvenience.
I often go an extra mile for students and staff and I believe it's unfair to be immediately punished when something like that occurs.
Currently, all these issues are affecting my health and wellbeing.
First the news about the unexpected end of higher duties, then the computer issue...
And now we got position description issue again. (For my original position this time.) There's no end to it!
If you feel that is necessary to proceed with disciplinary action, so be it.
But all I want is to work with my collegues in harmony in a healthy and fair working environment. [sic]
[22] On Monday 27 May 2019 Mr Kerig lodged a grievance with Professor Strathdee, Mr Shaun Eltham (Vice President P&C) and Ms Ann Proctor (Executive Officer in the office of the Vice President P&C) in relation to Ms Curley, his supervisor. The grievance raised issues associated with Mr Kerig's parental leave in late 2018, requests he says made of him by Ms Curley requesting that he do things "not in [his] or higher duties PDs", higher duties, career growth and progression, not being provided with support to attend a conference in Russia, the iMac issue outlined above, classification of his position and the use of a casual employee. Each of the recipients of the email acknowledged receipt of the email.[9]
[23] On or around 6 June 2019 Mr Kerig met with Mr Eltham and Ms Jen Warszewski of P&C with respect to a number of issues. In correspondence subsequent to the meeting Mr Kerig asked why his computer (presumably the iMac) was being held. Mr Eltham advised him that it would be held for as long as required for the investigation to be completed.[10]
[24] On 14 June 2018 a meeting was held between Mr Eltham, Ms Tsombanopoulos and Mr Billy Moshos from IT Security and Risk Assurance. The meeting was advised of issues with the iMac status in light of the removal of it from the University Managed Operating Environment (MOE) and the identification of files with "content that was of concern".
[25] On 24 June 2019, on further investigation of the iMac allocated to Mr Kerig, the University "uncovered a video containing sexually explicit content" and inappropriate images. Professor Strathdee and Mr Eltham were briefed on the discovered content. On 26 June 2018 Professor Strathdee issued Mr Kerig with a Notice of Meeting for 28 June 2019.[11]
[26] At the meeting on 28 June 2019 Mr Kerig was presented with a statement of allegations and copies of relevant documents including the video and images found on the iMac.[12] Mr Kerig was also advised by letter from Professor Devlin that he was suspended without pay pursuant to clause 62.4 of the Agreement[13] for the course of the investigation into the allegations against him.
[27] The allegations against Mr Kerig, in summary, are that:
He restored a University iMac computer (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 considered such behaviour to be unprofessional. In doing so he breached an identified University policy;
5. His actions amounted to serious misconduct in accordance with clause 62.1.13 of the Agreement.[14]
[28] Mr Kerig was given until 12 July 2019 to respond to the allegations. He provided his response by that date.[15]
[29] Following receipt of Mr Kerig's response Professor Strathdee prepared a "supervisor's report" in accordance with the requirements of clause 62.3.11 of the Agreement. That report was provided to Professor Devlin, Deputy Vice Chancellor, who was the "senior officer" for the purposes of clause 62.3 of the Agreement, on 24 July 2019. Professor Strathdee said in that report that he considered that "all of the allegations of serious misconduct are made out in full" and recommended that Mr Kerig's employment be terminated without notice.[16]
[30] Professor Devlin considered the report and recommendations of Professor Strathdee and determined that Mr Kerig's employment should be terminated. She sent a letter to this effect to Mr Kerig on 26 July 2019 advising him that his employment would be terminated without notice on 12 August 2019.[17] That letter was signed on Professor Devlin's behalf by Professor Solomonides.
[31] Mr Kerig ultimately sought review of the decision to terminate his employment by the Review and Appeals Committee (RAC). The RAC upheld the decision of Professor Devlin and Mr Kerig's employment was terminated in January 2020.
[32] Mr Kerig has sought, in the resolution of this dispute, that the questions the Commission should answer are:
Whether all actions/procedures under clause 62 have been followed and have been followed correctly;
Whether the University has properly enlivened the serious misconduct process under the Agreement. That is, whether the conditions necessary to commence serious misconduct procedures against Mr Kerig and to suspend Mr Kerig have been made out;
Whether the University has a right to refuse access to accrued personal leave during a period of suspension [without pay] under clause 62.4 [of the Agreement] when all medical evidence was provided.
[33] I am satisfied that the questions sought by Mr Kerig to be answered by the Commission are matters arising under the Agreement. In this respect the dispute can be characterised as one arising pursuant to the operation of disciplinary procedures as articulated in clause 62 of the Agreement.
[34] Further, I am satisfied that Mr Kerig has sought to resolve these matters through the appropriate steps of the dispute settling procedure of the Agreement and that such steps were not successful in resolving the dispute.
[35] The matter raised by Mr Kerig at question 3 above was not part of the original dispute notified by Mr Kerig to the Commission. I am however satisfied that it is a matter that developed through the period of disputation between Mr Kerig and the University, it relates directly to the matters in dispute and it is matter that is properly before the Commission. It is therefore a matter I will consider.
[36] I am therefore satisfied that I have jurisdiction to deal with the dispute before me.
[37] Part of this dispute arises because of explicit video and images found on the iMac allocated to Mr Kerig. Mr Kerig objects to any viewing of that material as he says it is private material.
[38] To the extent that it is necessary to answer the questions posed above I have viewed the material. I do not intend to describe it in any detail or refer to it in any way that might identify any people involved. It is, however, not possible for me to determine the dispute without consideration of all of the material that was before the relevant people, including decision makers, at the University. That material is otherwise subject to a confidentiality order[18] of the Commission.
[39] The provisions of the Agreement relevant to the matter before the Commission are set out in clause 62 of the Agreement. The complete clause 62 is at Attachment A to this decision.
[40] I have determined to consider the second question first.
Were the conditions necessary to commence serious misconduct proceedings against and to stand Kerig down without pay met by the University?
[41] It is evident from the processes outlined above that following a benign request for assistance with respect to an iMac by Mr Fernandez (which he was required to use but was having difficulty with) initial issues were identified by ITS in the normal course of dealing with that request. These issues included that the iMac:
Was refreshed back to factory defaults;
Was personalised with a local administrator account;
Had Boot Camp configured; and
Had Windows installed.
[42] As the relevant manager, Ms Curley was advised of what had been identified by ITS. The evidence suggests, and I accept that it is reasonable that I infer, that she raised the matter with P&C who requested further information. Ms Curley sought that information from ITS.[19] ITS replied to Ms Curley who passed this information back to P&C. At this stage, while some matters were being investigated by ITS in relation to the iMac, no issues of misconduct had been raised or put to Mr Kerig although it is apparent on the Investigation Timeline document[20] submitted by Mr Kerig that an investigation into what had occurred with the iMac was taking place and that there was some consideration of a "misconduct letter".
[43] Mr Kerig was advised of the issues with the iMac on his return from leave and told that the University may put allegations to him in due course.
[44] Further investigation by ITS resulted in explicit content being discovered on the iMac at a later date (between about 14 and 24 June 2018).
[45] Mr Kerig submits that the investigation carried out by P&C prior to the allegations being put to him was improperly carried out and unlawful as it was not carried out in accordance with the relevant policy. He submits that any investigation of the iMac must be carried out by ITS[21] but that, in this case, ITS gave a copy of the hard drive to P&C and it was from this that P&C developed the allegations.[22]
[46] Further Mr Kerig submits that there was no ITS audit report produced. He submits that this was critical so that he understood where on the iMac the material was found.
[47] It is not apparent to me why ITS was the section of the University that was required to formulate the allegations against Mr Kerig. The process, on documents provided to the Commission by Mr Kerig, is that ITS further investigated the computer after Mr Cichello (an ITS employee) advised Ms Curley of some preliminary findings in relation to the iMac.[23] This further investigation by ITS resulted in a meeting with P&C representatives attended by Mr Moshos from IT Security and Risk Assurance. At this meeting advice was given by ITS of the impact of the removal of the iMac from the MOE and also that there were some files identified on the iMac which contained content of concern. Further information on the finding of explicit content on the iMac was provided 10 days later.
[48] As to an IT audit report, I note that attached to the letter of allegations were details of the files discovered on the iMac in the form of a screen shot of the folders and files found on Mr Kerig's computer.[24] It is unclear what else Mr Kerig sought. I am unclear as to the import of a formal audit not being conducted. In this respect it is worth noting that Mr Kerig has at no time denied knowledge of the existence of the files found on the iMac. Rather Mr Kerig says they constituted reasonable personal use of University supplied IT equipment, that the files got onto the iMac accidentally and that the material was private and could not be accessed without his permission.
[49] I am not satisfied that the investigation of the hard drive from Mr Kerig's iMac was conducted by P&C after it was copied to P&C by Mr Cichello. Mr Kerig has not identified any specific evidence to this effect. I am, however, satisfied that ITS was involved appropriately into the investigation as to modifications to and content stored on the iMac. There is nothing in the material before me to suggest that ITS could not advise P&C of what it had found nor for P&C to take this information and use it as the basis of a decision to put allegations to Mr Kerig.
[50] There is nothing apparently untoward, improper or unlawful in the process by which matters were identified by ITS in relation to the iMac and this information forwarded to P&C who then determined what action, in the form of allegations, to be put to Mr Kerig.
[51] Mr Kerig claimed in his submissions and evidence that "the only report" done by ITS was that information provided from Mr Cichello to Ms Curley on 20 May 2019 and that after that P&C "got their hands on the hard drive" of the iMac and "searched very hard" to find the files. However, the Timeline of Events document[25] indicates that ITS retained the iMac and that ITS provided a report on material found on the iMac. Apart from assertions Mr Kerig has provided no evidence to support his characterisation of events.
[52] Even if Mr Kerig was correct and ITS handed over the hard drive of the iMac to P&C who then discovered the inappropriate material on that hard drive, I see nothing wrong with this process. Whilst Mr Kerig maintains that only ITS can undertake an audit on a computer this cannot mean the inappropriate material, found on a computer which is the property of the University, cannot be acted upon by the University.
[53] Mr Kerig submits that the process of determining that allegations should be put to him was corrupted because ITS and/or P&C should have seen that the inappropriate material was accidentally uploaded onto the iMac.[26] Further, he said that the inappropriate files were only stored on the iMac and not accessed and that P&C failed to investigate any access of the files.[27] In this respect Mr Kerig relied on a screen shot of the properties profile of a file called "[video].mov"[28] which shows that the file was created on 9 January 2018, modified on 21 June 2013 and accessed on 6 June 2019.
[54] Whilst Mr Kerig suggested that it was "obvious" that the files had been uploaded to the iMac accidentally he did not explain how the properties of this file in particular demonstrated this. However, even if the files were accidentally uploaded to the iMac, it is not clear what effect this would have on the decision of the University to instigate the serious misconduct proceedings against Mr Kerig. This may have been a relevant finding arising out of the allegations put to Mr Kerig but it does not suggest that an investigation was not warranted.
[55] Professor Strathdee's evidence is that he became aware of matters associated with the iMac in June 2019 through a series of discussions with P&C. Having been appraised of the issues with the iMac and the totality of the issues, Professor Strathdee reached a view that the allegations arising from what was found on the iMac could amount to serious misconduct if proven.
[56] I have, in respect to the second question to be answered, viewed (some of) the files discovered on the iMac. Objectively considered - and putting to one side whether private files could form the basis of an allegation of misconduct - I am satisfied that the material on which the allegations are based is such that, if proven, could amount to serious misconduct as defined in the Agreement.
[57] Mr Kerig raised an issue in his submissions in relation to a misconduct letter referred to in an email from Ms Curley on 20 May 2019 that she sent to Ms Rebecca Anselmi from P&C. The email from Ms Curley said, in part "Can this detail be included in the misconduct letter." The detail was the information provided that day by Mr Cichello as to what he found on the iMac allocated to Mr Kerig.[29] Mr Kerig suggests that this email shows it had already been determined to commence misconduct proceedings against him prior to his leave which commenced on 17 May 2019.
[58] Ms Curley was not called to give evidence in the proceedings either by the University or Mr Kerig. Professor Strathdee gave evidence that he could not recall a conversation with Ms Curley on or before 20 May 2019 about misconduct proceedings. It is not apparent from the email chain of 20 May 2019[30] when the issues with the iMac were first brought to the attention of P&C by Ms Curley or when ITS first alerted Ms Curley and/or P&C of issues with the iMac.
[59] Given the lack of evidence about such matters and given Professor Strathdee's evidence I am satisfied that the formulation of allegations to be put to Mr Kerig occurred after 20 May 2019. What was being considered by Ms Curley and/or P&C before that date is not known.
[60] I am satisfied, on the basis of the evidence before me that, on having been alerted to issues with the iMac, ITS investigated the issues (as would be expected). In that investigation ITS found what it considered to be unauthorised modification to the iMac (although I note Mr Kerig does not agree they were unauthorised). ITS retained to iMac and, on further investigation, found inappropriate material and a high volume of personal material. Arising from these findings allegations were formulated to be put to Mr Kerig. Professor Strathdee formed the view that the allegations could, if found to be substantiated, amount to serious misconduct.
[61] The conditions necessary to commence serious misconduct proceedings were therefore met.
Were the conditions necessary to stand Mr Kerig down without pay during the investigation of the misconduct met by the University?
[62] The second aspect of this question is whether the University had grounds to stand down Mr Kerig without pay.
[63] Clause 62.4 of the Agreement 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.
[64] Clause 62.4.1 establishes a two step process with respect to reaching a decision to suspend an employee - the first step is to determine if the allegations are serious enough to warrant suspension and the second is to determine if such suspension should be with or without pay.
[65] The relevant senior officer in this case was Professor Devlin. Professor Devlin gave evidence that:
• In deciding to suspend Mr Kerig without pay she took into account that he did have annual leave and long service leave that he could access if needed in accordance with clause 62.4.1(i) of the Agreement.[31]
• She made the decision to suspend Mr Kerig as soon as she had the information she required to make a decision about whether his conduct warranted suspension.[32]
• In making a decision to suspend an employee she is not required to speak to anyone but makes the decision on the basis of written material before her.[33]
[66] Professor Devlin said that the decision to suspend Mr Kerig:
wasn't a disciplinary action, it was an action available to us under the enterprise agreement at the time. My judgment was that the allegations were so serious that they warranted suspension while they were properly investigated and I took that action.[34]
[67] Mr Kerig says that the decision to suspend him without pay was disciplinary action of the harshest kind as it left him without any income. He submits that the decision to suspend him without pay was made without him being given the opportunity to respond to the proposal to suspend him. In any event Mr Kerig submits that it is not apparent that the conduct was enough so as to warrant his suspension without pay.[35]
[68] Mr Kerig questioned how it could be that Professor Devlin could make the decision to suspend him on 28 June 2019 when the meeting of 28 June 2019 had been arranged some days earlier.
[69] I am satisfied that Professor Devlin, in only being required to consider prima facie that the allegations were enough to warrant the staff member not being at work, properly exercised the power available to her in determining that Mr Kerig not be at work. Professor Devlin was not required to reach a concluded view based on evidence that the conduct amounted to serious misconduct but that it did "at first view" or "before [the] investigation" had occurred.[36] She was entitled to reach the view she did on the basis on the allegations to be put to Mr Kerig.
[70] On its face, the conduct Mr Kerig was alleged to have engaged in could reasonably be considered to be a wilful and/or gross breach of University policies such that it comes within the definition of serious misconduct.
[71] The further decision that Professor Devlin did make was that Mr Kerig should be suspended from work without pay. Mr Kerig sees that as particularly harsh and a form of punishment. In reaching this decision Professor Devlin took into account that Mr Kerig did have untaken annual and long service leave such that he could seek approval from the Vice-Chancellor to draw on that if needed. There is nothing untoward in the reasoning of Professor Devlin in this regard.
[72] For these reasons I am satisfied that the conditions necessary to suspend Mr Kerig without pay during the investigation of the misconduct were met by the University.
[73] Whilst I appreciate Mr Kerig's sense that the decision to suspend him without pay was particularly harsh on him, this is not grounds to find that the University did not have grounds to do as it did. The Agreement allows for employees to be suspended with or without pay if the relevant level of satisfaction is reached by the decision maker as to the allegations. That occurred in this case.
Whether all actions/procedures under clause 62 have been followed and have been followed correctly
[74] Mr Kerig submissions on this aspect of the question are that:
(i) Clause 62.1.1 of the Agreement was not properly followed in that disciplinary action was not considered as a last resort;
(ii) Clause 62.1.2 was not followed correctly in that there was not a thorough, expeditious investigation and that the principles of natural justice were not afforded to him (rule against bias; hearing rule);
(iii) Clause 62.1.6 was not followed correctly as Mr Kerig was not advised in writing of the commencement of action concerning misconduct;
(iv) The requirements of clause 62.1.13 to justify a finding of serious misconduct did not exist;
(v) The requirements of clause 62.3.11 were not met as Mr Kerig's response to the allegations was not taken into account;
(vi) The requirements of clauses 62.3.12 - 62.3.15 were not complied with in that it is apparent that Professor Devlin did not write the outcome letter as required by the Agreement.
[75] I will consider each of these.
[76] Clause 62.1.1 of the Agreement states that:
Disciplinary action should be used a as last resort. A supervisor should make every reasonable effort to resolve...possible misconduct through guidance, counselling and appropriate staff development...before moving to formal disciplinary procedures...However, this does not prevent a supervisor determining to refer a matter of misconduct directly to a relevant senior officer at sub-clause 62.3.6.
[77] Sub-clause 62.3.6 provides for the provision of a report to the relevant senior officer who will then take action in determining appropriate disciplinary action.
[78] Whilst Mr Kerig complains that he had meetings with Ms Curley on 24 May 2019 and Mr Strathdee on 5 June 2019 and neither took any steps to resolve the situation (even though he says he sought to explain himself) he misunderstands what clause 62.1.1 requires to have happen.
[79] There is nothing in clause 62.1.1 that suggests that possible misconduct must be resolved through guidance or counselling. In fact the clause specifically recognises that the misconduct may be such that this step is not appropriate.
[80] In this case the identified misconduct was of such seriousness that it was reasonable that it be referred to the relevant senior officer as allowed for under clause 62.1.1. The actions of the University, in not resolving the matter through counselling, were not in breach of the clause 62.1.1 of the Agreement.
[81] Clause 62.1.2 requires that "all matters concerning...misconduct and serious misconduct will be investigated thoroughly, expeditiously and in accordance with the principles of natural justice."
[82] Mr Kerig complains firstly that the investigation was not carried out thoroughly because he was:
Never contacted by ITS;
Not contacted by P&C to discuss;
ITS never investigated the computer although P&C did;
There was no report created as part of the investigation; and
IT Security Policy requires any audit to be conducted only in accordance with the IT Security Audit Authorities procedure. The IT Appropriate Use Policy states that "...VU has the right to intercept, interrogate or otherwise capture data created or received by individual users...in accordance with the IT Security - IT Security Audit Authorities Procedure." That Procedure exists to ensure an audit is conducted by IT staff and not by P&C. Further, there is no policy that says P&C can investigate IT matters.
[83] I am not convinced that the submissions of Mr Kerig suggest that the investigation was not carried out thoroughly or expeditiously.
[84] Mr Kerig relies, in the main, on the absence of a policy that allows P&C to undertake an investigation into an IT related matter and a statement made during his appeal to the RAC.
[85] In relation to the statement made to the RAC by a person (presumably) from ITS, they do not support the view of Mr Kerig. The statements made[37] suggest that any request for an ITS investigation is validated, including with P&C, that a request properly made results in an investigation and a report and that unauthorised devices on the University network are not investigated as a matter of course unless it has been raised as an issue or there is apparent harm being caused by the device. It was not evidence that supports a contention that only ITS could have carried out the investigation with no engagement with P&C.
[86] In this case ITS were asked to investigate an issue with the iMac. That investigation was generated by an employee who could not do what he thought he should be able to do on a University computer. It was a standard request. On investigating ITS found issues with the iMac which, on advice back to Ms Curley, warranted some intervention by P&C. There is nothing in what occurred to suggest that P&C instigated any investigation, rather a set of circumstances brought information to the attention of P&C that caused it to act. Following the initial investigation by P&C Mr Kerig was informed. The iMac was retained for further investigation by ITS.
[87] That Mr Kerig was not spoken to by ITS is not a breach of policy. Mr Kerig was spoken to by P&C on 24 May 2019 when he was advised of the issues with the iMac.
[88] Nothing of what did occur is apparently in breach of the policies Mr Kerig relies on.
[89] Mr Kerig also submits that the rules of natural justice were not followed. He says that there was bias in the decision maker, his submissions in reply to the allegations were not properly considered, he did not have access to all documentation in relation to the allegations and he was not given an opportunity to confront witnesses and/or test their evidence.
[90] Mr Kerig relies on a number of negative interactions he may have had with Ms Curley and Mr Strathdee to support his claims of bias. In particular he says that Ms Curley had made up her mind that she wanted to terminate his employment and did not want to "solve the issue". Mr Kerig also says that he complained about Ms Curley to Professor Strathdee. That Ms Curley had involvement in the decisions that ultimately led to his dismissal he says is therefore a breach of natural justice.
[91] Mr Kerig also relies on the complaint he made of Professor Strathdee to Professor Devlin in relation to a direction Professor Strathdee gave to Mr Kerig on 4 June 2019[38] in relation to a task Mr Kerig was required to complete and a complaint he made to Professor Devlin and others on 4 July 2019[39] complaining that Professor Strathdee should not be the report writer.
[92] The complaint Mr Kerig made in relation to the direction issued to him by Professor Strathdee does not, of itself, provide evidence of bias by "the decision maker". Professor Devlin was the decision maker in this case. Certainly Ms Curley was not (she appears to have played no role in the decision taken to investigate Mr Kerig and certainly not in the ultimate decision to dismiss him from his employment). Professor Strathdee was also not the decision maker beyond the determination of the allegations to be put to Mr Kerig. Whilst Professor Strathdee was the relevant supervisor who wrote a report to the decision maker he was not the decision maker.
[93] There is nothing to support Mr Kerig's "belief" that any alleged bias in Ms Curley or Professor Strathdee arose from any desire of them to restructure the media centre. None of his claims in this regard are supported by evidence.
[94] The right to have a decision made by a decision maker free of bias should not be interpreted as meaning that a manager with whom an employee may have disagreed or a manger who has previously made decisions unfavourable to an employee is, by virtue of those acts, biased. Bias, or an apprehension of bias, requires there to be some connection between the previous acts of the decision make and the decision to be made in this instance. In any event, as explained above, neither Ms Curley nor Professor Strathdee were decision makers and there is no allegation of bias against Professor Devlin.
[95] Mr Kerig also suggests that he was not given access to all documents, a proper opportunity to have his reply considered nor an opportunity to confront witnesses.
[96] Mr Kerig was given a copy of the allegations against him. He was given an opportunity to provide a response to these allegations, which he did.[40] There is nothing to suggest his response was not properly considered.
[97] Mr Kerig says he was denied natural justice as he was denied the opportunity to respond to his suspension from work, that he was not given access to the full investigation (the "University is still hiding information pertaining to the request of personal files"), and he was not given the opportunity to "confront Jennifer Curley who initiated the investigation".
[98] Mr Kerig misunderstands the rules of natural justice. Those are that he has the right to know the case against him (the allegations), he has a right to be heard in relation to that case and to test the evidence and he has the right to a decision maker free of bias.
[99] Mr Kerig was made aware of the case against him. It was contained in the letter of allegations. He took that letter and provided his response. He did not request further details prior to providing his response. It is not clear what he believes the University is hiding and why that information meant that he did not know the case against him by the University. As to his desire to confront Ms Curley it is not apparent that she "initiated the investigation". Mr Kerig was caught in a circumstance of his own making. He went on leave. A person who thought he should have been able to access the iMac could not do so and raised the matter with ITS then looking into the iMac. That Ms Curley sought to have the matters uncovered by ITS put to Mr Kerig is neither here nor there. That Mr Kerig was not given an opportunity to question Ms Curley as to the sequence of events as outline in the emails of 20-22 May 2019[41] does not mean he was denied natural justice. The decision maker was Professor Devlin, against whom no claims of bias are made.
[100] Clause 62.16 provides that "a supervisor must advise the staff member in writing of the commencement of action concerning...serious misconduct" and that the staff member has the right to be represented.
[101] Mr Kerig suggests that the serious misconduct procedures had commenced on or around 20 May 2019 (presumably when Ms Curley requested details on what had been found on the iMac from Mr Cichello). Further, he says that disciplinary action was taken when it was determined by Professor Strathdee that Mr Kerig would no longer receive higher duties from 22 May 2019 when he returned from leave.
[102] It is clear that the University undertook some preliminary review with respect to the iMac commencing on or about 20 May 2019. It was not necessary at this time to advise Mr Kerig of this review. A decision as to whether what was discovered was a matter that required action pursuant to clause 62 of the Agreement had not been made at that stage. It was incumbent and proper for the University to make an informed decision as to whether misconduct may have occurred and so properly enlivened clause 62.
[103] Mr Kerig was given forewarning on 24 May 2019 that issues with the iMac had been identified. At the time misconduct proceedings were commenced Mr Kerig was advised in writing. This occurred on 28 June 2019. Whilst there may be some criticism of the delay from 22 May 2019 until the formal advice was given to Mr Kerig on 28 June 2019 this can be explained by the extent of material discovered on the iMac that then required review prior to formal allegations being put to Mr Kerig.
[104] The decision not to extend Mr Kerig's higher duties position was not a decision taken in the context of the investigation or allegations put to him. It was a management decision taken on Mr Kerig's return to work from annual leave on 24 May 2019. It is not apparent that this was "disciplinary action". I do note that Mr Kerig did raise a grievance with that decision (along with many others) on 27 May 2019. It appears that the resolution of this issue was placed in abeyance once Mr Kerig was suspended. I would observe that cessation of higher duties is not a "demotion" as suggested by Mr Kerig but rather the cessation of something that was not permanent.
[105] I am satisfied that Mr Kerig was advised on the commencement of the misconduct proceedings in accordance with clause 62.1.6 on 28 June 2019 when he was advised in writing of the allegations against him.
[106] Serious misconduct is defined in clause 62.1.13 of the Agreement. Mr Kerig says that the conduct he is alleged to have engaged in did not create a serious impediment to anyone and was not a serious dereliction of duties as "accidental storage of inappropriate content does not constitute a serious dereliction of duties" and that there is an "expectation of privacy when personal use [of a computer] is allowed."
[107] Clause 62.13 of the Agreement goes on to provide examples of what may constitute serious misconduct. This includes wilful and/or gross breach of University policies. A breach of policy may, depending on the circumstances, constitute conduct which is a serious impediment to the carrying out of the staff member's duties or to a staff member's colleagues carrying out their duties.
[108] In this case the University considered that the conduct of Mr Kerig breached University policies. The storage of the material on the iMac could impede colleagues carrying out their duties in that, knowledge of the content may impede others wishing to work near or in conjunction with Mr Kerig.
[109] Mr Kerig does not seem to appreciate that a reasonable personal use policy that allows an employee to do, for example, personal banking or receive a personal email does not provide licence to engage in activities on University equipment where that activity or content may breach University policy.
[110] I am satisfied that the conduct of Mr Kerig put in the letter of allegations may amount to serious misconduct.
The supervisor will take into account the staff member's response at sub-clause 62.3.10, consider the relevant evidence and refer the matter to the relevant senior officer by way of a report (the "report"). The report must set out evidence of the alleged serious misconduct, the staff member's response (including whether the staff member admits or denies the allegations in full or in part) and any recommendation regarding disciplinary action.
[111] Mr Kerig says that, in writing his report to Professor Devlin, Professor Strathdee:
Did not take Mr Kerig's response into account;
Did not substantiate allegations;
Provided an "untruthful" description of the files (on the iMac)
Briefed Professor Devlin along the way and provided her with the outcome letter and supervisor's report;
Made incorrect statements in the allegations letter.
[112] If the allegations letter put to Mr Kerig contained incorrect statements, Mr Kerig's opportunity to respond to it (which he took up) was his opportunity to correct those errors.
[113] Professor Strathdee provided his written report to Professor Devlin on 24 July 2019.[42] In that report Professor Strathdee indicates that, in his findings, he has had regard to the written response to the allegations provided by Mr Kerig. The report of Professor Strathdee contains a non-judgemental description of the files - it specified the number of files, whether they were videos or still images and, only of the games files, indicate that they were "considered to be violent in nature". Mr Kerig has provided nothing to suggest that the description of the files in the report was "untruthful" or, if incorrect, how this adversely effected consideration of the report provided by Professor Strathdee.
[114] The report did find the allegations substantiated, despite the assertion of Mr Kerig to the contrary.
[115] It is not in dispute that Professor Strathdee provided Professor Devlin with his written report and a draft outcomes letter. There is nothing untoward about this in and of itself as long as Professor Devlin took an independent mind to the decision she was required to make.
[116] Mr Kerig's claim that the provisions of clause 62.3.11 were not followed is not sustained. His claim that Professor Strathdee "is capable of doing whatever it takes to achieve his objectives" is a statement without foundation and not supported by evidence.
[117] These clauses require that the relevant senior officer (Professor Devlin in this case) confirms procedures have been followed, considers the report and the staff member's written response, decides if the allegations are made out in part or in full and what, if any disciplinary action should be taken. The senior officer can consider if serious misconduct allegations only amount to misconduct.
[118] Mr Kerig claims that Professor Devlin could not have had time to properly consider the report and associated materials as she received the report at 3.57pm on 24 July 2019 and left to go interstate at 12.30pm on 25 July 2019. Further, he says her diary had her busy in meetings on the morning of 25 July 2019 so she would not have had time to review the report.
[119] Mr Kerig says that Professor Devlin neither wrote nor signed the outcomes letter - it having been provided to her by Professor Strathdee and signed in her absence by Professor Solomonides.
[120] Professor Devlin gave evidence that she was provided with the report and draft outcomes letter by Professor Strathdee but that she was the relevant senior officer who made the decision as to the outcome based on the findings.
[121] Professor Devlin said, and I accept, that it is most likely she read the report either late in the day on 24 July 2019 (as she often worked late) or she may have read it on 25 July 2019 between meetings or at the airport or on the flight to Perth. Despite Mr Kerig's objections to the contrary I am satisfied on the basis of experience that it is not unusual for people to work on flights and I accept that Professor Devlin may have done so.
[122] I also accept on the basis of her evidence that Professor Devlin properly reviewed the report and associated documentation. I am satisfied that she considered the recommendation in the report but determined for herself the appropriate outcome given the findings in the report. I am also satisfied that it was appropriate for Professor Devlin to request Professor Solomonides to sign the letter on her behalf and in her absence.
[123] Whether Professor Devlin personally drafted the outcomes letter is not a relevant consideration. It is not unusual for senior staff within any organisation to have letters or reports drafted for them. Ultimately, if a person signs the letter that contains a decision then they must own that decision. Professor Devlin has not shied away from the decision she made which was reflected in the outcomes letter.
[124] I consider nothing untoward in Professor Devlin being briefed over time as to the matter that she ultimately had to decide. Having been briefed over a period of time - and being aware of the allegations at the time she made the decision to stand Mr Kerig down without pay - I am satisfied that Professor Devlin fulfilled her obligations under clause 62.3 and the Agreement was properly followed.
[125] For all of the reasons given above and on the basis of the evidence and materials before me I am satisfied that the requirements of clause 62 of the Agreement have been complied with.
[126] In reaching this conclusion I accept that the process used by the University may not be perfect but it is often the case that consideration of whether a matter needs to be dealt with under clause 62 of the Agreement will evolve as preliminary information is gathered.
[127] That a policy does not exist that specific allows something to happen (i.e. P&C lead an investigation) does not mean that the University cannot act in that manner. The consideration is whether the action is contrary to policy. I am not satisfied, on the evidence and material before me, that the policy was not adhered to.
[128] That an apology was proffered by Mr Kerig early in the investigative/information gathering process does not excuse the conduct nor necessarily resolve the issue. In this case the material kept on the iMac was apparently explicit and inappropriate. An apology, in these circumstances, was not considered as sufficient by the University to resolve the matter.
Was Kerig entitled to paid personal leave whilst suspended without pay?
[129] Mr Kerig was suspended without pay from his position with the University in June 2019.
[130] Mr Kerig says he was ill from 7 August 2019 until 29 November 2019 for which medical certificates were provided.[43] The University has not provided Mr Kerig with paid sick leave for this period. Mr Kerig says that he is entitled to paid sick leave in accordance with the National Employment Standards (NES).
[131] The University says that there is no entitlement to paid sick leave during a period of suspension without pay because the entitlement is to be paid for the employee's "ordinary hours of work" and during a suspension an employee has no ordinary hours of work.
[132] The University submits that the matter was referred to the Fair Work Ombudsman who agreed with the University.
[133] Section 99 of the FW Act states that:
If, in accordance with this Subdivision, an employee takes a period of paid personal/carer's leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
[134] Mr Kerig says that his ordinary hours of work in the period are those hours he would have worked had he been at work (and not suspended without pay). Mr Kerig relies on s.147 of the FW Act to support his position.
[135] The University submits that the Agreement does not contain any right of the employer to summarily dismiss an employee for serious misconduct. The counter to this in the Agreement is the ability to suspend an employee, including without pay, during an investigation. If an employee could offset suspension without pay by taking paid personal leave they could, in effect, gain months of effective paid notice if ultimately dismissed.
[136] I do not agree with Mr Kerig's construction of the requirements of the NES.
[137] Mr Kerig's reliance on s.147 of the FW Act is misplaced. Section 147 does no more than require that a modern award contain a term specifying the ordinary hours of work for each classification in the award. It is not a "definition".
[138] For the period in question Mr Kerig did not have any ordinary hours of work as he had been suspended without pay. He was not performing any duties for the University. Whilst, if he had not been suspended his ordinary hours would be 36.75 per week, his privilege of being at work, and hence having any ordinary hours, had been taken away from him by the suspension. The same may well be true of other leave entitlements except that the Agreement provides a specific right to access annual and long service leave with approval.
[139] There is a logic in the structure of the Agreement in this regard. If an employee is dismissed or otherwise leaves employment annual leave and long service leave must be paid out. Personal leave is not. Allowing an employee to access annual and long service leave whilst suspended without pay does not accrue any additional benefit to the employee. If ultimately not dismissed the employee is recredited with the leave, if dismissed any remaining annual and long service leave still owing will be paid out.
[140] The illness suffered by Mr Kerig while suspended without pay is not a condition that stopped him from attending the workplace - it is the suspension that imposed that barrier. It would be unusual if the suspension could be negated by some other condition dependent on the capacity to work (i.e. illness). Were Mr Kerig correct, the suspension without pay provision could become meaningless and could, as put by the University, result in a windfall gain to an employee terminated for serious misconduct.
[141] In Swanson v Monash Health[44] (Swanson)Jones J in the Federal Circuit Court held that when an employee took paid personal leave, the employment relationship and contract of employment continued, the essence of which was the employer's right to direct its employee what to do. Applying this principle it seems to me that, even if Mr Kerig did have entitlement to paid personal leave, the University retained the right to suspend him without pay. Whilst the circumstances in Swanson were different to those before me (Ms Swanson was on personal leave and refused a direction by her employer to attend a medical examination) the principal of the right of the employer to give a direction to the employee stands. This strongly suggests that even if Mr Kerig had an entitlement to access paid personal leave, the direction that he be suspended without pay stood and his entitlement to be paid was suspended for the period of the suspension.
[142] Should Mr Kerig have returned to work, his annual and long service leave would be re-credited to him and his entitlement to paid personal leave enlivened.
[143] Absent any further detailed analysis of the relevant provisions of the Agreement or the NES by Mr Kerig, I am not satisfied he had an entitlement to paid personal leave whilst he was suspended from the University without pay.
[144] I have carefully considered all that Mr Kerig has put before the Commission in relation to his application. I would observe that his case was poorly put based on assertion and with little or no evidence to support his arguments.
[145] During the hearing I asked Mr Kerig what it was he wanted from the case. Although somewhat confused, he said he was seeking a "ruling" of some description that the process of his suspension without pay was not properly done and the allegations against him not substantiated (even though he conceded that one of the files on the iMac was inappropriate). As I explained to Mr Kerig I was not convinced that what I could decide would provide him with what he sought.
[146] Ultimately I am satisfied that the University did have grounds on which to commence the serious misconduct process with respect to Mr Kerig and to stand him down without pay whilst it did so. I am not satisfied that the University has failed to comply with the requirements of clause 62 of the Agreement.
[147] The questions posed by Mr Kerig, in order asked, are therefore:
Whether all actions/procedures under clause 62 have been followed and have been followed correctly: Yes
Whether the University has properly enlivened the serious misconduct process under the Agreement. That is, whether the conditions necessary to commence serious misconduct procedures against Mr Kerig and to suspend Mr Kerig have been made out: Yes
Whether the University has a right to refuse access to accrued personal leave during a period of suspension [without pay] under clause 62.4 [of the Agreement] when all medical evidence was provided: Yes
[148] Mr Kerig's application must therefore fail. The application is dismissed.
62.1.1 Disciplinary action should be used as a last resort. A supervisor must make every reasonable effort to resolve instances of unsatisfactory performance and possible misconduct through guidance, counselling and appropriate staff development, or appropriate work allocation before moving to formal disciplinary procedures at sub-clauses 62.2.7 and 62.3.6. However, this does not prevent a supervisor determining to refer a matter of misconduct directly to a relevant senior officer at sub-clause 62.3.6.
62.1.2 All matters concerning unsatisfactory performance, misconduct and serious misconduct will be investigated thoroughly, expeditiously and in accordance with the principles of natural justice.
62.1.3 The provisions of clause 62 - Disciplinary Procedures - do not apply to casual staff members or to the non-confirmation of employment at the end of a probation period.
62.1.4 Disciplinary action against an academic staff member can only be taken by the Vice-Chancellor.
62.1.5 Unreasonable failure of a staff member to participate in the actions/procedures for unsatisfactory performance, misconduct or serious misconduct will not delay the completion of these procedures. If a staff member resigns, actions/procedures under this clause will lapse. This clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of a staff member or former staff member when required in the public interest.
62.1.6 A supervisor must advise the staff member in writing of the commencement of action concerning unsatisfactory performance, misconduct or serious misconduct. The supervisor must also advise the staff member that she/he has the right to be represented at all times during these procedures and that they are entitled to bring a representative to any relevant meetings with their supervisor.
62.1.7 A Review and Appeals Committee (RAG) convened pursuant to sub-clauses 62.2.17 for unsatisfactory performance and 62.3.18 for misconduct or serious misconduct will report (the "RAC Report") to the Vice-Chancellor:
62.1.8 If at any stage during the actions/procedures under clause 62 the University finds that the details of the alleged unsatisfactory performance, misconduct or serious misconduct should be amended or new details added, the staff member must be advised of this in writing and be given a further reasonable opportunity to provide a response prior to any further steps being taken by the University.
62.1.9 Action concerning unsatisfactory performance, misconduct and serious misconduct means action according to the procedures and disciplinary actions of clause 62.
**62.1.**10 Disciplinary action for unsatisfactory performance, misconduct and serious misconduct means, and is limited to:
62.1.11 Unsatisfactory performance means inefficiency, poor or underperformance, or negligence or failure of the staff member to perform the work of the position or appointment at a level that would be reasonably required, having regard to:
Examples of conduct which may constitute serious misconduct are:
• serious or repeated bullying or harassment, including sexual harassment; or
62.1.14 Supervisor means, for an academic, the head of the organisational unit in which the academic is employed, or another academic staff member classified at Level Cor above appointed by the Vice-Chancellor to be supervisor of one or more academics or a group of academics, and for a professional staff member, the person to whom they are accountable.
62.1.15 Relevant senior officer means the Vice-Chancellor in the case of an academic staff member and the relevant Deputy Vice-Chancellor, Pro Vice-Chancellor, or Vice-President (or their equivalents) for a professional staff member.
62.1.16 Representative, for the purpose of clause 62, means a staff member's chosen representative or, in the case of the Vice-Chancellor's representative, a University staff member or an officer or staff member of the Australian Higher Education Industrial Association, provided that neither representative will be a practising barrister or solicitor.
62.1.17 A Review and Appeals Committee (RAC) means the body described at clause 9 which fulfils the functions as set out in sub-clause 62.1.7.
62.1.18 An Investigator, for the purpose of clause 62, means a person who is appointed by agreement between the Vice-Chancellor and the NTEU Branch President for Victoria University and fulfils the functions of a RAC pursuant to sub-clause 62.1.7.
62.2.1 Where a staff member's supervisor is of the view that the staff member's performance is unsatisfactory as defined at sub-clause 62.1.11, the supervisor will:
62.2.2 Assistance with specific training and development programs may be provided where the supervisor considers it appropriate.
62.2.3 A record of the counsel given shall be kept and a copy supplied to the staff member concerned.
62.2.4 The staff member and the supervisor will meet at least monthly to assess the staff member's performance prior to the conclusion of the review period.
62.2.5 If, at the end of the review period, the staff member has met the required standard of performance, the supervisor will advise the staff member of this in writing and no further action will be taken.
62.2.6 Where, at the end of the review period, the staff member's work performance remains of an unsatisfactory standard, the supervisor will advise the staff member in writing that either:
62.2. 7 If disciplinary action is to be taken, the supervisor will advise the staff member in writing of the evidence of unsatisfactory performance, including details of any relevant facts and documentation.
62.2.8 The staff member will have five working days from the time of receiving the written advice at sub-clause 62.2.7 to respond to the supervisor in writing, and if the staff member so chooses, a reasonable opportunity to respond in person.
62.2.9 The supervisor will take into account the staff member's response at sub-clause 62.2.8, consider the relevant evidence and determine whether to refer the matter to the relevant senior officer by way of a report (the "report"). Where the supervisor determines to refer the matter to the relevant senior officer, the report must also be sent at the same time to the staff member.
62.2.1 0 The report must set out evidence of the alleged unsatisfactory performance, the staff member's response at sub-clause 62.2.8, the record of attempts to remedy the alleged problem, and any recommendation regarding disciplinary action.
62.2.11 The staff member will be entitled to ten working days from the date of receiving the report to submit to the relevant senior officer a written response.
62.2.12 The relevant senior officer will consider the supervisor's report at sub-clause 62.2.9, the staff member's written response at sub-clause 62.2.11, if any, and confirm that the preceding procedures for unsatisfactory performance have been followed.
62.2.13 The relevant senior officer may seek additional information, or refer the matter back to the supervisor to ensure that procedures for unsatisfactory performance are followed.
62.2.14 After confirming that the actions/procedures for unsatisfactory performance have been followed and considering the supervisor's report, the staff member's written response, if any, and any additional information, the relevant senior officer will make a decision (the "decision") about what, if any, disciplinary action should be taken against the staff member. The decision will be limited to taking disciplinary action, as defined in sub-clause 62.1.1 0, or taking no further action.
62.2.15 The staff member will be notified in writing of the decision by the relevant senior officer at subclause 62.2.14.The relevant senior officer's decision shall set out in writing, and provide to the staff member, a statement as to what material she/he has considered; what additional information has been considered, what acts or omissions or failings on the part of the staff member constitute unsatisfactory performance, and any relevant conclusions upon which her/his finding of unsatisfactory performance is based.
62.2.16 Any decision concerning disciplinary action will take effect no earlier than five working days from the date of the advice as at sub-clause 62.2.15.
62.2.17 The staff member may seek a review by a RAC or an Investigator of the decision of the relevant senior officer within five working days of receiving the written decision referred to at sub-clause 62.2.15. In this case the decision will take effect after the Vice-Chancellor has considered the report of the RAC or Investigator.
62.2.18 The decision of the relevant senior officer becomes final if the staff member has not sought a review at sub-clause 62.2.17 within the five working days.
62.2.19 After receiving the RAC or Investigator's report and recommendations, the Vice-Chancellor must take into account the RAC or Investigator's report and any recommendations, and he/she will either confirm, amend, or withdraw the decision made at sub-clause 62.2.14.
62.2.20 The Vice-Chancellor will advise the relevant senior officer, the supervisor and the staff member in writing of his/her decision.
62.3.1 If an allegation of misconduct is made, the staff member will be advised in writing by the supervisor:
62.3.2 The supervisor must either refer a matter of misconduct directly to a relevant senior officer at sub-clause 62.3.6, or:
62.3.3 The staff member and the supervisor will meet monthly to assess the staff member's conduct prior to the conclusion of the review period. A record of the counsel given shall be kept and a copy supplied to the staff member concerned.
62.3.4 If, at the end of the review period, the staff member has met the required standard of conduct, the supervisor will advise the staff member of this in writing and no further action will be taken.
62.3.5 If the supervisor believes that the staff member's conduct has not improved to the required standard during the review period, or there has been a reoccurrence of misconduct during the review period, or the matter needs immediate action as determined at sub-clause 62.3.2, the supervisor may commence disciplinary action against the staff member at sub-clause 62.3.6.
62.3.6 If disciplinary action is to be taken, the supervisor will refer the matter to the relevant senior officer by way of a report (the "report"). In this case the relevant senior officer will then follow the actions/procedures at sub-clause 62.3.12.
62.3. 7 Where the supervisor determines to refer the matter to the relevant senior officer the report must also be sent at the same time to the staff member. The report must set out evidence of the alleged misconduct, the staff member's response, the record of attempts to remedy the alleged misconduct, and any recommendation regarding disciplinary action.
62.3.8 The staff member will be entitled to ten working days from the time of receiving the report to submit to the relevant senior officer a written response.
62.3.9 If an allegation of serious misconduct is made, the staff member will be advised in writing by the supervisor:
62.3.1 0 The staff member will have ten working days from the time of receiving the written advice at sub-clause 62.3.9 to respond to the supervisor in writing. The supervisor must also allow the staff member a reasonable opportunity to respond in person within those ten days.
62.3.11 The supervisor will take into account the staff member's response at sub-clause 62.3.10, consider the relevant evidence and refer the matter to the relevant senior officer by way of a report (the "report"). The report must set out evidence of the alleged serious misconduct, the staff member's response (including whether the staff member admits or denies the allegations in full or in part) and any recommendation regarding disciplinary action.
Disciplinary decision for misconduct or serious misconduct
62.3.12 The relevant senior officer will consider the supervisor's report at sub-clauses 62.3.6 or 62.3.11, the staff member's written response, if any, and confirm that the preceding actions/procedures for misconduct or serious misconduct have been followed. The relevant senior officer may seek additional information. The relevant senior officer may also refer the matter back to the supervisor to ensure that the preceding actions/procedures have been followed.
62.3.13 After confirming that the preceding actions/procedures have been followed and considering the report, the staff member's written response, if any, and any additional information, the relevant senior officer will make a decision (the "decision") about whether the allegation is made out in part or in full and what, if any, disciplinary action should be taken against the staff member.
62.3.14 The relevant senior officer may determine that allegations of serious misconduct amount only to misconduct.
62.3.15 The staff member will be notified in writing of the decision by the relevant senior officer at subclause 62.3.13. The relevant senior officer's decision shall set out in writing, and provide to the staff member, a statement as to what material she/he has considered; what additional information has been considered (if any), what acts or omissions or failings on the part of the staff member constitute misconduct or serious misconduct, and any relevant conclusions upon which her/his finding of misconduct or serious misconduct is based.
62.3.16 Where the decision is to take disciplinary action the decision will take effect no earlier than ten working days from the date of that advice.
62.3.17 If the relevant senior officer determines that no disciplinary action will be taken and the staff member has been suspended at sub-clause 62.4.1, the staff member will be reinstated at no loss of salary or conditions.
62.3.18 A staff member may seek a review by a RAC or Investigator of the decision of the relevant senior officer at sub-clause 62.3.13 within ten working days of receiving the written decision referred to at sub-clause 62.3.15. In this case the decision will take effect after the Vice Chancellor has considered the report of the Review and Appeals Committee or Investigator.
62.3.19 The decision of the relevant senior officer becomes final if the staff member has not sought a review at sub-clause 62.3.18 within the ten working days.
62.3.20 After receiving the RAC or Investigator's report and recommendations, the Vice-Chancellor must take into account the RAC or Investigator's report and any recommendations, and he/she will either confirm, amend, or withdraw the decision made at sub-clause 62.3.13.
62.3.21 The Vice-Chancellor will advise the senior officer, the supervisor and the staff member in writing of her/his decision.
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.
[5] Ms Curley was the relevant manager of the area in which Mr Kerig worked.
[11] Exhibit A2, D18, exhibit R1, attachment RS-2.
[14] The allegations in full and relevant policies said to have been breached are in exhibit R1, attachment RS-3, pages 4-7.
[16] Exhibit R1, attachment RS-6, page 8.
[17] Exhibit R2 attachment MD-4. Note that clause 62.3.16 of the Agreement requires that disciplinary action take effect "no earlier than ten working date from the date of [the] advice."
[19] Ex A1, D8, page 3 - email from Ms Curly to Ononfrio Cichello, Monday 20 May 2019.
[24] Exhibit R1, attachment RS-3 - document marked attachment 11.
[26] Transcript PN 988, PN1018, PN1443.
[28] Exhibit A4. The name of the file has been withheld.
[36] Macquarie Dictionary on line definition of prima facie.
[42] Exhibit R2, paragraph 18, attachment MD-3.
Printed by authority of the Commonwealth Government Printer
Ilya Kerig
Victoria University [2020] FWC 1461