DID THE UNIVERSITY COMPLY WITH CLAUSE 14.3(g) OF THE AGREEMENT?
8 To determine whether the University breached cl 14.3(g) of the Agreement (or related provisions), it is first necessary to describe the steps taken by the University in the investigation into the allegations against the applicant. The following account deals primarily with facts which emerge from correspondence passing between the parties during the investigation.
9 After the Dean informed the applicant by letter dated 27 March 2000 of the general nature of the allegations made by the complainant, two meetings were held (on 7 and 17 April 2000) between the applicant, the Dean and other parties. The allegations were not resolved. On 17 April 2000, the Dean wrote to the Deputy Vice-Chancellor, noting the "potential seriousness" of the allegations and expressing the view that it was inappropriate to deal with them further under cl 14.3(a) of the Agreement. The allegations were referred to the Deputy Vice-Chancellor under cl 14.3(b) of the Agreement. On 5 June 2000, the Deputy Vice-Chancellor wrote to the applicant. The letter advised the applicant that a number of allegations in the report of the Dean warranted further investigation. The letter set out the allegations and required the applicant to respond within ten days, a procedure contemplated by cl 14.3(e) of the Agreement. After requesting and receiving an extension of time in which to respond, the applicant submitted a written response on 3 July 2000. The applicant sent further letters to the Deputy Vice-Chancellor on 6, 10 and 12 July 2000.
10 On 28 July 2000, the Deputy Vice-Chancellor wrote to the applicant. The letter said:
"I am in receipt of your three letters dated 3, 10 and 12 July 2000 setting out your response to allegations of misconduct and/or serious misconduct and the associated correspondence.
In investigating this matter pursuant to subclause 14.3(g) of the UNSW (Academic Staff) Enterprise Agreement 2000 (the Enterprise Agreement), I have carefully considered the version of events and facts contained in the allegations made against you and those contained in your response. It is clear to me that there is significant discrepancy between the two.
As a result, I do not believe that it is open to me to form a view that there has been no misconduct or serious misconduct, pursuant to subclause 14.3 of the Enterprise Agreement.
Subclause 14.3 of the Enterprise Agreement provides me with three options:
- to take no further action;
- to counsel and/or censure you;
- to refer the matter to the Misconduct Investigation Committee.
As I have stated above there is a significant discrepancy between your version of events and facts and those allegations put to you in my letter dated 5 June 2000. Therefore, I do not believe that I can take either of the first two options because both imply that the facts of the matter are clear.
I have therefore decided to refer this matter to the Misconduct Investigation Committee in accordance with subclause 14.3(g)(iii) of the Enterprise Agreement.
The terms of reference of the Misconduct Investigation Committee are to report on:
(i) whether there is sufficient evidence to support the allegation(s) of misconduct and/or serious misconduct;
(ii) whether the procedures of subclause 14.3 have been followed; and
(iii) whether there are any mitigating circumstances.
Following its deliberations, the Misconduct Investigation Committee will make a report to the Vice-Chancellor.
As an alternative to having the matter referred to the Misconduct Investigation Committee, the Enterprise Agreement allows you to elect either of the following options:
1. To have an Investigator agreed by you and the University investigate the matter and report to the Vice-Chancellor;
2. To have me prepare a report on the matter which would be referred directly to the Vice-Chancellor.
If you elect either of these options then the Investigator or I will be required to determine whether there is sufficient evidence to support the allegation(s) of misconduct and/or serious misconduct and whether there are any mitigating circumstances.
If the matter is referred to the Misconduct Investigation Committee or if you elect either of the two options set out above, the relevant report will be provided to you. You will then be given five days to make any written comment on the report to the Vice-Chancellor. Following any response by you, the Vice-Chancellor will make a decision on the matter in accordance with subclause 14.3(j) of the Enterprise Agreement.
If you wish to elect either of the options rather than have the matter referred to the Misconduct Investigation Committee, would you please advise me in writing by the close of business on Friday, 4 August 2000.
I am also in receipt of your letter dated 7 July 2000. You raise some issues in relation to the process used in the investigation of this matter to date. Unless you advise me otherwise, I will include this letter in any material referred to the Misconduct Investigation Committee, to an Investigator or that is considered by myself as part of a report to the Vice-Chancellor."
(Emphasis added.)
11 The letter dated 7 July 2000 referred to in the last paragraph is not in evidence. It can be seen that in the above letter the Deputy Vice-Chancellor was proposing that if one of the identified means of dealing with the allegations was taken up by the applicant, he would prepare a report which then would be sent to the Vice-Chancellor. This course was agreed to by the applicant when, on 4 August 2000, he wrote to the Deputy Vice-Chancellor. The letter read in part:
"Thank you for your letter dated 28th July 2000, in which you provided me with three options in order to further process the allegations made by Ms Baurka against me. I have decided to choose the third option, and ask you to prepare a report on the matter which would be referred directly to the Vice-Chancellor.
In the meantime, I would like to provide further information for you in preparing your report.
…
I am sorry that I have to ask you to take this responsibility of reporting your findings to the Vice-Chancellor."
12 On 7 August 2000, the Deputy Vice-Chancellor wrote to the applicant, stating:
"I note that you have elected, as an alternative to the matter being referred to a Misconduct Investigation Committee, to have me prepare a report on the matter which would be referred to the Vice-Chancellor. As I stated in my letter of 28 July 2000 I will be required in preparing my report to the Vice-Chancellor to determine whether there is sufficient evidence to support the allegation(s) of misconduct and/or serious misconduct and whether there are any mitigating circumstances."
13 In the course of his investigation, the Deputy Vice-Chancellor held meetings with ten people, including six with the applicant and two with the complainant. On 19 January 2001, the Deputy Vice-Chancellor provided his report to the Vice-Chancellor. I note that Professor Pettigrew's term of appointment as Deputy Vice-Chancellor ended on 31 December 2000 though nothing was said to turn on this. The report contained findings on the allegations and conclusions about whether the applicant's conduct, as found, constituted misconduct and/or serious misconduct. On or about 19 January 2001, the Vice-Chancellor forwarded the report to the applicant and invited him to respond within five working days, in accordance with cl 14.3(i) of the Agreement. On 6 February 2001, the applicant wrote to the Vice-Chancellor. The letter responded in part to the report and criticized the investigation conducted by the Deputy Vice-Chancellor. On 15 February 2001, the applicant sent a further letter to the Vice-Chancellor. It again responded to the report, and contained additional criticisms of the investigation.
14 On 15 March 2001, the Acting Vice-Chancellor wrote to the applicant. The letter read in part:
"… I have … formed the view that, on the basis of probability, there is sufficient evidence for me to determine that you are guilty of misconduct in your position as Head of School.
In accordance with subclause 14.3(j)(ii) of the UNSW (Academic Staff) Enterprise Agreement 2000, I have determined that you should be suspended from your position as Head of School. The suspension will take effect from the close of business on Friday, 16 March 2001 and will continue until your term as Head of School ends on 31 December 2001. The suspension only relates to your duties as Head of School, it does not affect your full-time position as Professor of Finance. During the period of suspension you will not receive the Head of School allowance normally paid to the holder of that position."
15 It is against this background that the question concerning the meaning of cl 14.3(g) arises. The parties advanced different constructions of cl 14.3(g). Their submissions may be summarised as follows.
16 The applicant contends that cl 14.3(g) does not permit the Deputy Vice-Chancellor to conduct an investigation. Clause 14.3(g) offers three alternatives to a person being investigated as to how the investigation will proceed. The first is to have the matter referred to the MIC, which is constituted and must act in accordance with cl 14.3.1, 14.3.2 and 14.3.3 of the Agreement. The second is to have the matter referred to an Investigator, whose identity and terms of reference must be agreed to by the University and the person being investigated. The third is to "have the Deputy Vice-Chancellor's report referred directly to the Vice-Chancellor who may deal with the matter in accordance with subclause 14.3(j)". The reference to "the Deputy Vice-Chancellor's report" in the penultimate paragraph of cl 14.3(g) assumes that such a report is already in existence at the time the person being investigated chooses between the three alternatives. This alternative does not enable the Deputy Vice-Chancellor, after the election, to conduct an investigation and prepare a report. It should be treated as a reference to a "preliminary" report, presumably based on the investigation carried out by the Deputy Vice-Chancellor under the first paragraph of cl 14.3(g).
17 The considerations advanced to support this construction were first, the definite article in "the Deputy Vice-Chancellor's report" is intended to refer to a report already in existence, secondly, the use of the verb "referred" in the absence of any reference to the preparation of a report suggests the report is already in existence and thirdly the adverb in the phrase "referred directly" suggests there is to be no intervening investigation prior to the referral of the report.
18 In addition, to construe the clause as enabling the Deputy Vice-Chancellor to conduct an investigation before preparing a report is potentially unfair to the person making the election, for several reasons. Firstly, the person does not have the benefit of any preliminary findings by the Deputy Vice-Chancellor when making the election. Secondly, the Agreement contains neither specific procedural safeguards nor a general requirement that the person being investigated be afforded procedural fairness. Thirdly, the Agreement imposes no time limit on the investigation. Further, the third alternative is better viewed as a "confess and avoid" provision, enabling the person to take his or her case directly to the Vice-Chancellor on the basis of the Deputy Vice-Chancellor's preliminary findings.
19 The University contends that the investigation was in accordance with cl 14.3(g) of the Agreement. The three alternatives provided by cl 14.3(g) differ in their formal requirements and the extent to which the person being investigated participates in the investigation. The first alternative, namely referring the matter to the MIC, is the most formal and allows the person being investigated to participate at each stage of the investigation. The second alternative, namely referring the matter to an Investigator, permits the person being investigated to agree on the Investigator and their terms of reference, but otherwise does not afford a right to participate. The third alternative, namely having the Deputy Vice-Chancellor provide his or her report directly to the Vice-Chancellor, does not provide the person being investigated with any right to participate. The use of the words "the Deputy Vice-Chancellor's report" cannot refer to a report already in existence. There is nothing in the Agreement which provides for the preparation of a report by the Deputy Vice-Chancellor prior to the election under cl 14.3(g). The use of the words "referred directly" does not preclude the holding of an investigation, because any report of the MIC or an Investigator is also referred directly to the Vice-Chancellor. The third option is not simply a means of enabling the person being investigated to "confess and avoid". Rather, cl 14.3(f) serves that purpose.
20 The University sought to rely on extrinsic evidence of two matters. First, it led evidence of the history of negotiation of cl 14.3(g) in support of a submission that the third alternative was intended to enable the Deputy Vice-Chancellor to conduct an investigation and prepare a report after the person being investigated had made an election. This took the form of documents produced to the University by the National Tertiary Education Union ("NTEU") under subpoena and oral evidence from Mr Neil Morris, who is employed by the University and represented the University in negotiations for the Agreement. Secondly, the University suggested that the applicant had sought advice on his options from an industrial officer of the NTEU, Mr Mark Dolahenty, and had acquiesced in the procedure adopted by the University. I will return to consider the purpose for which the University relied on evidence of the conduct of the applicant and the NTEU.
21 The penultimate paragraph of cl 14.3(g) is ambiguous. That is, it is not clear on the face of the paragraph what the phrase "the Deputy Vice-Chancellor's report" refers to. The construction advanced by each of the parties is tenable.
22 However, I think the construction advanced by the applicant is more consistent with the language and purpose of cl 14 and related provisions. The first sentence of cl 14.3(g), in terms, requires the Deputy Vice-Chancellor to "investigate the matter" after the academic has denied the allegation. The second sentence then contains the phrase "having investigated the matter". This implies that the Deputy Vice-Chancellor's investigation is complete. It may be accepted that the investigation by the Deputy Vice-Chancellor, which is then complete, has been undertaken for a particular and limited purpose. That is, it has been undertaken to reach a point where the Deputy Vice-Chancellor is either satisfied, in the face of a denial of the allegations by the academic, that the allegations are not made out or that one of the steps in cl 14.3(g)(i), (ii) or (iii) should be taken. However, both (i) and (ii) appear to contemplate that the investigation has been sufficiently complete and of sufficient substance for the Deputy Vice-Chancellor to decide to take no further action (even though not satisfied that the allegations had not been made out), or counsel and/or censure the academic. Similarly, any investigation that would lead the Deputy Vice-Chancellor to conclude that the allegations were not made out is also likely to have been of substance. While the clause does contemplate further investigation (either by the MIC or an Investigator), the clause (and related clauses) deal expressly with the manner in which the investigation is undertaken to, amongst other things, afford the academic some measure of procedural fairness. However there is no express reference to further investigation by the Deputy Vice-Chancellor and necessarily, no prescribed procedures. It is unlikely, in my opinion, that the sub-clause contemplates what would be effectively a second investigation by the Deputy Vice-Chancellor before the preparation of the report.
23 I consider the better view of cl 14.3(g) is that it is intended, by allowing the academic to elect to have the Deputy Vice-Chancellor report, to enable the academic to "take his or her chances" in an expedited process. That process would involve having the Deputy Vice-Chancellor report on what was then known to him or her as a result of the inquiry completed to that date (which must have been sufficiently serious to warrant the Deputy Vice-Chancellor concluding that the matter should go to the MIC for further investigation). The process is subject to the opportunity the academic has to make further representations directly to the Vice-Chancellor (cl 14.3(i)). While I accept that the Deputy Vice-Chancellor may not have then written a report, that must be done, as I view the operation of the clause, immediately after the academic makes the election and without further investigation.
24 As noted earlier, the University sought to rely on an earlier certified agreement and on evidence of the negotiation of cl 14.3(g) in the Agreement in its present form in support of its preferred construction. Evidence of the historical background to an agreement can be a permissible extrinsic aid to interpretation, at least to the extent that it illuminates the objective background facts that were known to both parties and/or the subject matter of the agreement or award: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352; Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248 at 256-7; Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517; John L Pierce Pty Ltd v Kennedy (2001) 105 IR 459 at [16]. (Those cases concerned awards, though the principles concerning interpretation of awards apply also to certified agreements: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212; Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality and Miscellaneous Workers Union (1998) 80 IR 275 at 281.) However, as I understand the present state of the authorities, evidence of the historical background to an agreement, including evidence of antecedent negotiations, is irrelevant in so far as it is relied upon simply to demonstrate the subjective intentions, aspirations or expectations of the negotiating parties. That is because the interpretation of an ambiguous word or phrase turns not on the actual or stated objectives of the negotiating parties but on their presumed intentions, as inferred from the words chosen by the parties in the context of the facts and circumstances known to them.
25 There is no inconsistency between this principle of interpretation and the approach adopted by Burchett J, with whom Drummond J agreed, in Short v F W Hercus Pty Ltd (supra) and subsequent cases which have relied on that case as authority for the use of extrinsic materials in the construction of industrial awards and agreements. In that case, Burchett J said at 517 - 518:
"No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with that same general subject, and finally was adopted as a clause dealing with the same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so.
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that give rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed."
26 There is nothing to suggest that the "other guidance" to which his Honour refers is intended to extend beyond those matters which might be regarded as part of the objective factual background to an agreement to encompass evidence of the subjective intentions of the parties. The historical use and purpose of a particular clause, particularly one which has arisen from past debate and adjudication, is a matter which may well fall within the actual knowledge of both parties or be sufficiently notorious such that it becomes a pertinent guide to the presumed intentions of the parties who have elected to include the clause in a new award or agreement. Likewise a perceived deficiency in a clause appearing in an earlier agreement may be regarded as a matter within the actual knowledge of the parties and therefore part of the surrounding circumstance to which the court is entitled to have regard when construing a new agreement; see John L Pierce Pty Ltd v Kennedy (supra).
27 Evidence of antecedent negotiations, including drafts and correspondence exchanged between the negotiating parties, may establish background facts which were known to both parties and to that extent such materials are relevant. However, they are also likely to reveal inadmissible and irrelevant evidence of "the terms of the contract which the parties intended or hoped to make … [which are] are superseded by, and merged in, the contract itself": see Codelfa per Mason J at 353. The problem with admitting evidence of the parties' negotiations was explained by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1384:
"It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus."
His Honour added at 1385:
" …it may be a matter of degree, or of judgment, how far one interpretation, or another, gives effect to a common intention: the parties, indeed, may be pursuing that intention with differing emphasis, and hoping to achieve it to an extent which may differ, and in different ways. The words used may, and often do, represent a formula which means different things to each side, yet may be accepted because this is the only way to get 'agreement' and in the hope that disputes will not arise."
For a recent example of how and why evidence of antecedent negotiations often proves unenlightening see AFMEPKIU & Ors v Qantas Airways Limited [2001] FCA 547.
28 An exception to this general principle was considered by Mason J in Codelfa at 352-353:
"If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable persons in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances."
I did not understand the University to invoke this exception when seeking to rely on the evidence of the prior negotiations. I should add that the law has not been static in this area as can be illustrated by the discussion in a note in the Law Quarterly Review: see Common assumptions and contract interpretation (1997) LQR 237. Nonetheless on the present state of the authorities, the evidence of the prior negotiations is irrelevant.
29 However because the relevant provision is ambiguous and the University sought to demonstrate the true meaning of the contentious phrase by reference to extrinsic material, it is probably desirable that something be said about the material. The University pointed first to the University of New South Wales (Academic Staff) Enterprise Agreement 1997 ("the previous Agreement"). Clause 14.2 of the previous Agreement was headed "Disciplinary Action for Misconduct / Serious Misconduct" and differed from cl 14.3 of the current Agreement in two relevant respects. First, under the previous Agreement, an allegation of misconduct was not considered by a Deputy Vice-Chancellor. Rather it passed directly for consideration by the Vice-Chancellor. Secondly, if the allegation was denied by the academic, the Vice-Chancellor was obliged under the previous Agreement to refer the matter to a Misconduct Investigation Committee ("the MIC procedure") (unless he or she decided to censure the academic or take no further action). That is, there were no alternatives to the MIC procedure.
30 The University then pointed to evidence of the negotiation of cl 14.3(g) of the current Agreement. In the following analysis I will refer to documents as if the University (who seeks to rely on the documents) has proved that each of the documents was created on or about the date I nominate, was created by the party referred to, that handwritten notes on some of the documents were made shortly after the document was created or on a nominated date and that the notes were made by a particular person and had a particular significance. However I do so in order to facilitate the analysis of the documents in the way I have been invited to by the University. Ultimately these documents do not, in my opinion, assist the University. However were it otherwise (and the authorities indicated that material of this character can be called in aid in construing an industrial instrument) then a real issue would arise about whether and to what extent the University has proved, on the balance of probability, that the documents have those various attributes. I have considerable reservations about whether it has, at least as to many of them.
31 Evidence was given by Morris (see [20] above) about what was effectively the subjective intention of the University during the negotiations. Morris stated that the aim of the University was to streamline the procedures for dealing with academic staff misconduct. Before negotiations commenced, Morris prepared a document which he described as a "strategy paper" which he says was adopted by the University bargaining team. That document included the following:
"7. Removal of reference to unsatisfactory performance and misconduct investigation review appeal committees
- committees are time consuming, labour intensive and quasi-legal and costly and provide nothing in the way of protection for the employee that cannot be achieved through the AIRC.
- current committee structure to be removed but fundamental entitlements of natural justice and fairness be maintained when dealing with unsatisfactory performance or misconduct issues.
- Replace current committee with something along the lines of academic review/appeal committees for denying tenure, increment etc."
32 On 2 February 1999, the University produced a draft proposed Agreement for consideration by the NTEU. In cl 15.4, it was proposed that an allegation of misconduct which was denied by the academic and which had not been resolved by the "workplace supervisor" would be reported to the Vice-Chancellor. Proposed cl 15.4(f) then provided:
"f) If the allegation is denied in part or in full or if the academic has not responded to the allegations the Vice-Chancellor may refer the matter to a Disciplinary Investigation Committee, take no further action, or take disciplinary action for misconduct / serious misconduct."
Under proposed cl 15.5 the Disciplinary Review Committee ("DRC") was to conduct an investigation and report its findings to the Vice-Chancellor within fifteen days of the referral of the allegation to it, unless an extension of time was granted.
33 There followed a number of draft agreements with amendments and annotations. This evidence is very difficult to follow in that, as noted earlier, it is neither clear from the documents which party generated each document nor what status each acquired during negotiations, nor were these particular documents addressed in Morris' evidence. However, it may be inferred that at some stage the NTEU rejected the University's proposed DRC procedure and insisted on the retention of the previous MIC procedure.
34 On 20 May 1999, a document was produced entitled "draft without prejudice for both parties to consider". Morris stated that this document looked like it was generated by the NTEU. By this stage, it was proposed that an unresolved allegation be referred by a workplace supervisor to the Deputy Vice-Chancellor, rather than the Vice-Chancellor. The Deputy Vice-Chancellor would then allow the academic an opportunity to respond. Proposed 14.2.9(c) of this draft provided:
"If the allegation is denied in part or in full, or if the academic has not responded to the allegations, the Deputy Vice-Chancellor may:
- take no further action
- counsel and/or censure the academic; or
- refer the matter to a Misconduct Investigation/Review Committee in accordance with the provisions of subclause 14.3.2 or
- refer the matter to the Vice-Chancellor for action. (uni)"
Morris stated that the last option was a proposal put by the University for consideration by the NTEU. This proposed clause also appeared in a draft emailed the following day to Morris, and others involved in negotiations, by Ms Trish Mullins (who, Morris said, represented the NTEU in negotiations).
35 On 25 May 1999, a draft was produced by the University. It contained a proposed cl 14.3 of which sub-cll (h) and (i) relevantly provided:
"(h) If some part of an allegation(s) is denied by the academic the Deputy Vice-Chancellor may refer that part of the allegation(s) to a Misconduct Investigation Committee, counsel or censure the academic for the conduct, take no further action, or refer the matter to the Vice-Chancellor. Provided that the academic will have the opportunity to have the matter investigated by an investigator agreed by the University and the academic as an alternative to the allegation(s) being referred to a Misconduct Investigation Committee, or prior to the matter being referred to the Vice-Chancellor. If the academic decides to have the allegation(s) referred to an investigator, the University and the academic will also need to agree on the terms of reference for the investigation. If agreement can not be reached between the University and the academic within 10 working days over the appointment of an investigator or the terms of reference for the investigation, the Deputy Vice-Chancellor may refer the allegation(s) to either a Misconduct Investigation Committee or the Vice-Chancellor. If an investigator is appointed, his/her task will be to investigate the allegation(s) in accordance with the terms agreed by the University and the academic, and report to the Vice-Chancellor. A copy of the report will be made available to the academic at the same time that it is provided to the Vice-Chancellor.
(i) If the academic has not responded to the allegation(s), the Deputy Vice-Chancellor may refer that matter to a Misconduct Investigation Committee, counsel or censure the academic for the conduct, take no further action or refer the matter to the Vice-Chancellor."
Morris said that the crossing-out was done by Mullins. I infer from this that, at this stage of the negotiations, the NTEU did not accept the University's proposal that the Deputy Vice-Chancellor be able to refer an allegation, which was denied by the academic, directly to the Vice-Chancellor. (Whether this proposal was also intended to enable the Deputy Vice-Chancellor to carry out an investigation is unclear from the document.)
36 On the same day, another draft was produced which contained alternative versions of cl 14.3(h), which specified the actions open to the Deputy Vice-Chancellor if an academic denied, or did not respond to, an allegation. The proposal of the NTEU was:
"[…] the Deputy Vice-Chancellor shall refer the matter to a Misconduct Investigation Committee in accordance with the provisions of subclause 14.4 unless he/she decides to take no further action or counsel or censure the academic for unsatisfactory behaviour and take no other action."
The proposal of the University was:
"[…] the Deputy Vice-Chancellor may refer the matter to a Misconduct Investigation Committee, take no further action, or counsel or censure the academic for unsatisfactory behaviour and take no other action or refer the matter to the Vice-Chancellor."
In handwriting (said by Morris to be that of Mullins) under the University's proposal are the words:
"option for [academic] on written [agreement] to
- refer to investigator
- have it dealt with by VC not committee".
It would appear that the parties still disagreed about whether the Deputy Vice-Chancellor could refer an allegation directly to the Vice-Chancellor.
37 The following day the NTEU prepared a document entitled "summary of where bargaining is at", which I infer was intended to report on negotiations to NTEU members. The document read in part:
"Discipline: still discussing it. […], still discussing misconduct. Main issues to resolve are:
· […]
· whether there are some cases of misconduct / serious misconduct that can be dealt with by the Vice-Chancellor directly without going to the committee such as theft, sexual or other assault or whether the current procedure should continue for these cases which allows for suspension followed by a committee hearing before the VC can consider dismissal
· […]"
This indicates that the NTEU was still considering the University's proposal that an allegation be referred directly to the Vice-Chancellor and moreover, suggests that the NTEU viewed such a procedure as potentially appropriate only for certain types of allegations.
38 On 1 June 1999, a further draft was produced by the University in which proposed cl 14.3(h) reverted to the form contained in [35] above. There is some hand written annotation which indicates that the disagreement referred to in [35] remained.
39 Next in evidence is a draft headed "bargaining package as at 27/5/99 (2/6/99)" which Morris stated probably reflected discussions held on 2 June 1999. Proposed sub-cl 14.3(i) was the same as in [35] above, but proposed sub-cl (h) now read:
"(h) If some part of an allegation(s) is denied by the academic the Deputy Vice-Chancellor may investigate the matter and determine to (i) take no further action, (ii) investigate the matter where the DVC believes it appropriate to do so, or (ii) counsel and/or censure (iii) refer the matter to the Misconduct Investigation Committee. Provided that the academic can as an alternative to the MIC (i) have the matter investigated by an investigator agreed by the University and the academic, (ii) have the matter referred directly to the Vice-Chancellor.
[…]"
(Emphasis added.)
The words in bold were those proposed by the University. The underlined words were amendments in hand by, I infer, Mullins. It is difficult to conclude what had been agreed to in discussions about this draft. Perhaps the NTEU was moving towards accepting the University's proposal that an allegation might be referred directly to the Vice-Chancellor by the Deputy Vice-Chancellor. However, if that was so, it should also be inferred from the fact that words concerning an investigation by the Deputy Vice-Chancellor were amended and moved, that an investigation by the Deputy Vice-Chancellor remained a live issue. It would also appear that this was the first time the word "directly" appeared in the phrase "have the matter referred directly to the Vice-Chancellor".
40 On 8 June 1999, a further draft was produced by the University. Proposed cl 14.3(h) now read:
"(h) If an allegation(s) is denied by the academic and the Deputy Vice-Chancellor is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the academic in writing, and may, by agreement with the academic, publish the advice in an appropriate manner. Otherwise, the Deputy Vice-Chancellor should investigate the matter and at the end of the investigation may:
(i) take no further action; or
(ii) counsel or censure the academic; or
(iii) refer the matter to the Misconduct Investigation Committee.
Provided that the academic can, as an alternative to the Misconduct Investigation Committee, elect to have the matter investigated by an Investigator agreed by the University and the academic.
[…]"
41 The sub-clause proceeded to specify the procedure to be followed by the Investigator, in similar terms to those in [35] above. The words in bold were those proposed by the University. In hand, at the end of this passage, was added "or have a report from the DVC referred directly to the VC". I infer that this was added by Mullins, but I do not know whether the NTEU assented to this proposal, or merely noted it during discussions. The amendments in hand made to the previous draft did not appear in this draft. It is possible to infer that the NTEU was now open to the proposal of having a report of the Deputy Vice-Chancellor referred directly to the Vice-Chancellor. I should also refer to proposed sub-cl (j), which read:
"(j) The academic concerned shall have 5 days have the opportunity to make written comment within 5 days to the Vice-Chancellor in response to a report from the Deputy Vice-Chancellor under subclause (h) or (i), or a report from the Misconduct Investigation Committee, or Investigator under subclause (h) before the Vice-Chancellor makes a determination."
This was then crossed out in hand and replaced with a handwritten proposed sub-cl (j):
"(j) Copies of reports to the VC from the DVC, MIC or Investigator shall be made available to the academic concerned who shall have the opportunity within 5 working days to make a written comment to the VC."
42 Again, this might indicate that the NTEU was open to the proposal of the University. However, it is significant that the only express reference to an investigation by the Deputy Vice-Chancellor (in proposed cl 14.3(h)) clearly contemplated that such an investigation would occur prior to the election by the academic. It is also significant that this form of words was proposed by the University itself.
43 On 15 June 1999, the University produced another draft, again with its proposals in bold type. Proposed cl 14.3(h) from the previous draft had now become proposed cl 14.3(g) and read, with annotations in hand (again, I infer, by Mullins):
"(g) If an allegation(s) is denied by the academic and the Deputy Vice-Chancellor will investigate the matter and at the end of the investigation, if s/he is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the academic in writing, and may, by agreement with the academic, publish the advice in an appropriate manner. Otherwise, the Deputy Vice-Chancellor should investigate the matter and at the end of the investigation may:
(i) take no further action; or
(ii) counsel or censure the academic; or
(iii) refer the matter to the Misconduct Investigation Committee;
and advise the academic accordingly as per 14.2(e)"
Next to this passage was a handwritten box containing a tick, which might indicate the NTEU agreed to this much of the sub-clause. The sub-clause continued:
"The academic can, as an alternative to the Misconduct Investigation Committee, elect to have the matter investigated by an Investigator agreed by the University and the academic or have the Deputy Vice-Chancellor's report referred directly to the Vice-Chancellor who may deal with the matter in accordance with subclause (j)."
Next to this passage is an empty box with a question mark next to it, which might by contrast indicate that the NTEU had not yet agreed to this part of the sub-clause.
44 On 17 June 1999, the University produced a further draft. Proposed sub-cl 14.3(g) differed from the previous draft in two significant respects. Firstly, the words "will investigate the matter" appeared in the first sentence, as per the handwritten amendment to the previous draft. Secondly, the words "and at the end of the investigation" had been deleted.
45 On 18 February 2000, a document was circulated to academic staff entitled "Explanation of the terms of the University of New South Wales (Academic Staff) Enterprise Agreement 2000". The document was under cover of letter signed by both Morris and Rae Frances, who was President of the UNSW Staff Association. The letter read in part:
"The attached explanation of the terms of the University of New South Wales (Academic Staff) Enterprise Agreement 2000 represents the agreed position between the University and the NTEU."
46 The salient passage in the document read:
"CLAUSE 14 TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION
[…]
Instead of reference to a MIC, the academic may choose to either have the matter investigated by an independent investigator agreed by the University who will report to the Vice-Chancellor, or to have the Deputy Vice-Chancellor report directly to the Vice-Chancellor."
(Emphasis added.)
47 In my view, this evidence does not lend support to the University's preferred construction, for two reasons.
48 First, the documents relied upon by the University as evidence of negotiations tend ultimately to beg the question of how the Deputy Vice-Chancellor's report was to be prepared. It may be accepted that the University's aim in negotiations was to put in place a more streamlined and flexible disciplinary process. It insisted at every stage of the negotiations on having alternatives to the MIC procedure. It may also be inferred from the fact that the Agreement ultimately contained alternative procedures (including the provision of a report by the Deputy Vice-Chancellor to the Vice-Chancellor) that the NTEU was prepared to accommodate this aim up to a point. However, that by itself does not sustain a conclusion that the parties to the Agreement were of one mind that the Deputy Vice-Chancellor would be free to conduct his or her own investigation if the academic so elected. There is no document in evidence in which the NTEU even appears to assent to that proposal. In so far as the NTEU agreed to any investigation by the Deputy Vice-Chancellor, such agreement appears to have been limited to an investigation conducted by the Deputy Vice-Chancellor before the election by the academic. I have the impression that the NTEU remained unwilling to the end to permit the Deputy Vice-Chancellor to carry out an investigation as an alternative to the investigations which could be carried out by the MIC or the independent Investigator.
49 Secondly, it is difficult to reconcile the University's preference for a streamlined disciplinary process with the lengthy and apparently open-ended investigation which is illustrated by the investigation conducted in this case by the Deputy Vice-Chancellor. As was pointed out by counsel for the applicant, under cl 14.3.1(a) of the Agreement the MIC would have been obliged to report its findings only fifteen days after the matter was referred to it unless an extension of time were granted by the Deputy Vice-Chancellor. Likewise, the DRC process proposed by the University (see [32] above) contemplated a time-frame of fifteen days. By contrast, no time limits are specified for any further investigation by the Deputy Vice-Chancellor and, as a matter of fact in the present matter, the Deputy Vice-Chancellor's investigation lasted from 7 August 2000 to 19 January 2001.
50 The University submitted that I should draw what I might describe as a Jones v Dunkel ((1959) 101 CLR 298) inference from the failure of the applicant to call a representative of the NTEU to give evidence about the intention of the NTEU when negotiating cl 14.3(g) of the Agreement. One would have expected the applicant, it was submitted, to call such a representative to contradict the evidence given by Morris. There are three problems with this submission. First, and most importantly, such evidence would have been directed (as I understood the University's submission) to the subjective intention of the NTEU. That would not resolve what is to be inferred from the surrounding facts as to what the parties' intentions were objectively. Secondly, I see no basis for inferring that the applicant would have known who to call as a witness, let alone what evidence they would have given. For my part, I cannot be confident that there was a witness the applicant would "naturally" have called, but for fear of the evidence they would give: see Fabre v Arenales (1992) 27 NSWLR 437 at 449-50 per Mahoney JA. The University has suggested that the applicant should have called Mullins but I cannot be satisfied on the material before me that the applicant knows either who she is or what evidence she might give. Dolahenty, by contrast, was known the applicant because the applicant had met with him, and was called to contradict the University's assertion that the applicant had received advice from the NTEU about his options under the Agreement which did not differ from the advice given by the Deputy Vice-Chancellor. Thirdly, even if the applicant could have called such a witness, I do not find that his failure to do so assists me in determining the proper construction of cl 14.3(g). At most, the rule in Jones v Dunkel permits an inference that such a witness' evidence would not have assisted the applicant, and that other evidence which might have been contradicted by that witness may more readily be accepted. It does not allow an inference that the witness' evidence would have been detrimental to the applicant's case, nor can the inference make up for a deficiency in the evidence led by the University: Jones v Dunkel (supra) at 312 per Menzies J. I am unpersuaded that the evidence led by the University supports its construction of the sub-clause. I do not think the lack of evidence from a representative of the NTEU enables me to more readily accept the University's construction.
51 The University contended that a term should be implied into the Agreement that the Deputy Vice-Chancellor may conduct an investigation and prepare a report after the person being investigated has made an election. However, such a term would in my view fail several of the conditions necessary to justify the implication of a term: see Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347. In the absence of any limit on the investigator or procedural protection for the person being investigated, it would not in my view be reasonable or equitable. As there are alternative procedures (the MIC and the independent Investigator), it is not necessary to give business efficacy to the Agreement. And it is not so obvious that it goes without saying.
52 I should refer briefly to the reliance placed by the University on evidence of the applicant's alleged acquiescence in the procedure it adopted. First, the applicant is not a party to the Agreement and therefore nothing in relation to the construction of the Agreement can or should be inferred from his conduct. Secondly, there is now, in any event, a considerable line of authority that conduct of a party which occurs after the making of an award or agreement is not a permissible extrinsic aid to interpretation of the award or agreement: see e.g. Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445; Short v F W Hercus Pty Ltd (supra) at 517; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178-9. Thus the conduct of the applicant during the investigation cannot support the University's preferred construction of the Agreement. Indeed, in written submissions filed after the hearing, the University disavowed such a submission.
53 Thirdly, while the written submissions of the applicant deny that parties to a certified agreement can "contract out" of the obligations under the agreement, I ultimately did not understand the University to make a submission that the conduct of the applicant constituted some form of waiver or estoppel. The question whether a person can by their conduct waive or be estopped from enforcing a provision of a certified agreement appears to be unresolved, though it has been raised in the context of awards: Kidd v Savage River Mines (1984) 6 FCR 398, Jackson v Monadelphous Engineering Associates Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 17 October 1997), Metropolitan Health Service Board v Australian Nursing Federation (2000) 176 ALR 46; 98 IR 390. In absence of a clear submission from the University to this effect, I will not consider the issue further.
54 In the end, I understood the University to submit that the applicant's conduct was relevant only to the question of penalty. I will therefore return to this evidence when considering that issue.
55 I conclude that, after the applicant elected to have the Deputy Vice Chancellor report to the Vice Chancellor, the Deputy Vice-Chancellor was not authorised by cl 14.3(g) of the Agreement to carry out an investigation before providing that report to the Vice-Chancellor. In the result, the University breached cl 14.1 of the Agreement which fairly clearly precludes a decision to discipline being made if the procedures in cl 14.3 and related provisions have not been followed. I now turn to the second alleged breach of the Agreement.