Chambers v James Cook University No 1
[1995] IRCA 459
•25 August 1995
CATCHWORDS
INDUSTRIAL LAW (CTH) - TERMINATION OF EMPLOYMENT - VALID REASON - whether serious misconduct in terms of Award - whether alleged sexual harassment established - whether non-exploitive, consensual intercourse between lecturer and student - change of reason for dismissal post-termination - denial of procedural fairness as required by Award - proposed restructuring - whether reinstatement impracticable.
PRACTICE AND PROCEDURE - REVIEW - review of Judicial Registrar's decision - hearing de novo.
Industrial Relations Act (1988) ss. 170DC, 170DE, 170EA, 170EDA, 376, and 377.
Association of Professional Engineers, Scientists and Managers Australia on behalf of Philip Edward Cross v Deniliquin Council, (unreported judgment of 10 March 1995 No. NI 253 of 1994)
Keating v Teico Investments Pty Ltd (1994) 57 I.R. 339
Harris v Caladine (1990) 172 CLR 85
Brandy v Human Rights and Equal Opportunity Commission, (unreported judgment of the High Court of 23 February 1995)
Liddell v Lembke (1994) 127 ALR 342
BRIAN JOSEPH CHAMBERS V JAMES COOK UNIVERSITY OF NORTH QUEENSLAND
No. QI 158 of 1994
SPENDER J
BRISBANE (heard in Townsville)
25 AUGUST 1995
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. QI 158 of 1994
QUEENSLAND DISTRICT REGISTRY )
BETWEEN : BRIAN JOSEPH CHAMBERS
Applicant
AND: JAMES COOK UNIVERSITY OF NORTH QUEENSLAND
Respondent
CORAM: Spender J
PLACE: Brisbane (heard in Townsville)
DATE: 25 August 1995
MINUTES OF ORDER
THE COURT DECLARES THAT:
.the termination of the employment of Dr Brian Joseph Chambers by James Cook University contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
THE COURT ORDERS THAT:
that the respondent, James Cook University, reinstate the applicant, Dr Brian Joseph Chambers, by appointing him to a position in the University on terms and conditions no less favourable than those on which he was employed immediately before the termination;
for all purposes, the respondent, James Cook University, treat the applicant, Dr Brian Joseph Chambers, as having been continuously employed by it from the date of termination to the date of reinstatement;
the respondent, James Cook University, pay to the applicant, Dr Brian Joseph Chambers, the remuneration lost by him because of the termination of his employment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. QI 158 of 1994
QUEENSLAND DISTRICT REGISTRY )
BETWEEN : BRIAN JOSEPH CHAMBERS
Applicant
AND: JAMES COOK UNIVERSITY OF NORTH QUEENSLAND
Respondent
CORAM: Spender J
PLACE: Brisbane (heard in Townsville)
DATE: 25 August 1995
REASONS FOR JUDGMENT
This is an application by James Cook University, in the form of a notice of motion filed 20 February 1995, which seeks a review pursuant to s. 377 of the Industrial Relations Act (1988) ('the Act'), of the decision of Judicial Registrar Boulton in the Industrial Relations Court of Australia on 10 February 1995, ordering that Dr Brian Joseph Chambers be reinstated to the position in which he was employed at the University immediately before the termination of that employment.
Dr Chambers had been dismissed from his employment by the University by letter dated 2 June 1994 received by him on 4 June 1994. He applied to this Court on 17 June 1994, under s. 170EA of the Act. He claimed:
"(a) an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 ('the Act').
(b)an order requiring the Respondent to reinstate the employee in employment; and
(c)an order that the Respondent pay compensation to the employee. "
Section 170DE(1) of the Act relevantly provides:
"An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct..."
Section 170DE(2) provides:
"A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid. "
Section 170EA empowered Dr Chambers to "apply to the Court for a remedy in respect of termination of his...employment".
From 1 January 1982 until 2 June 1994, Dr Chambers was employed by the University as a lecturer. At the time of the termination of his employment he was a Senior Lecturer in Theatre in the Department of Creative Arts within the Faculty of Arts at the James Cook University of North Queensland. The conditions of his employment on and from 17 October 1988 were governed by the provisions of the Australian Universities Academic Staff (Conditions of Employment) Award 1988 ('the Award'). This award was made under a law of the Commonwealth.
While it will be necessary to refer in more detail to various steps leading to the letter of termination, in broad summary, the position was that in about November 1993, allegations of sexual harassment were made against Dr Chambers by two of his former students. A Sexual Harassment Grievance Committee of the University considered the allegations and reported to the Vice-Chancellor of the University, Professor Ray Golding. In consequence, the Vice-Chancellor wrote to Dr Chambers by letter dated 24 November 1993 setting out allegations of serious misconduct requiring further investigation pursuant to cl. 9 of the Award.
The letter advised Dr Chambers of his suspension from duties, with pay, and exclusion from the University. Dr Chambers submitted a written response to the allegations, denying them. A committee of investigation was convened and a hearing in camera took place on 13, 14 and 18 April 1994 at the University. Dr Chambers appeared for himself. The Committee provided a report dated 20 May 1994, in which it determined the applicant had been guilty of serious misconduct and recommended to the Chief Executive Officer of the University (the Vice-Chancellor) that he dismiss the applicant from employment of the University. The Vice-Chancellor determined that the applicant should be dismissed and the University ratified this determination. The letter of 2 June 1994 terminating Dr Chambers's employment then followed.
After Dr Chambers made application to this Court on 17 June 1994, I ordered on 11 August 1994 that pleadings be filed and that the matter be listed for further directions on 14 October 1994. On that day, Judicial Registrar Boulton ordered by consent of the parties that the evidence to be presented at the hearing before Judicial Registrar Boulton be limited to the transcript of the proceedings before the Committee, exhibits tendered to the Committee and its report dated 20 May 1994. The hearing before Judicial Registrar Boulton occurred on 6 and 7 December 1994 at Townsville. Judicial Registrar Boulton made orders, including the order for reinstatement, on 10 February 1995.
As to the nature of a review pursuant to s. 377 of the Act of that decision of Judicial Registrar Boulton, Division 3 of Part XIV of the Act deals with the appointment of Judicial Registrars and their powers and with review of their decisions. Section 376 relevantly provides:
"The Rules of Court may delegate to the Judicial Registrars...all or any of the Court's powers in relation to proceedings in the Court, in so far as the proceedings relate to:
(a)...
(b)a claim that the termination of an employee's employment was unlawful...whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory. "
Section 376(4) and (5) provides:
"(4) A power delegated to the Judicial Registrars is, when exercised by a Judicial Registrar, taken to have been exercised by the Court or a Judge, as the case requires.
(5) The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a judge. "
Section 377(1) and (2) provides:
"(1) A party to proceedings may apply to the Court to review a Judicial Registrar's exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of Court or each further period as is allowed in accordance with the Rules.
(2) On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar's exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised. "
The nature of a review undertaken under s. 377 was the subject of a judgment by Moore J in Association of Professional Engineers, Scientists and Managers Australia on behalf of Philip Edward Cross v Deniliquin Council (NI 253 of 1994), an unreported judgment of 10 March 1995. Moore J said at p. 3:
"What is comprehended by the expression 'the Court may review...(the) exercise of a power' in s377 is ultimately a matter of construction of the provision which confers the right to appeal: see Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 at 273 and Brandy v Human Rights and Equal Opportunity Commission, 23 February 1995, unreported, High Court at 14 per Mason CJ and Brennan and Toohey JJ, though plainly s377 has to be construed having regard to constitutional requirements concerning the exercise of the judicial power of the Commonwealth. Commonwealth legislation should be construed to avoid invalidity: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14 per Mason CJ which is a principle embodied in s15A of the Acts Interpretation Act 1901. "
As noted by his Honour:
"Judicial Registrars are appointed by the Governor-General: see s375, must have the same qualifications as those required for appointment as a Judge: see ss381 and 362(3), and receive a salary determined by the Remuneration Tribunal: see s383. Judicial Registrars hold office for a fixed term: see s382(2), until they resign: see s385 or are removed by the Governor-General for specified reasons: see s386. They take an oath of office in relevantly the same terms as that taken by a Judge: see ss387, 473 and 368. Section 379 is headed 'Independence of Judicial Registrars' and states that a Judicial Registrar is not subject to direction or control when exercising delegated powers. However Judicial Registrars are not Judges in the sense that their office is not one created in conformity with the provisions of s72 of the Constitution. "
The meaning of the word "review" in s. 377 was considered by Northrop J in Keating v Teico Investments Pty Ltd (1994) 57 I.R. 339. In reference to s. 377(1) and (2), Northrop J said, at 340:
"These provisions are almost identical with provisions contained in s 31A of the Bankruptcy Act 1966 (Cth). Under that section certain powers of the Federal Court in identified matters may be exercised by Registrars of the Federal Court. Subsections 31A(6) and (7) are, for present purposes, identical with the provisions of ss 377(1) and (3) of the Industrial Relations Act. Authorities have made it clear that a review under s 31A(6) of the Bankruptcy Act is by way of a re-hearing de novo on material put to the Court at that hearing. This is made clear by a reference to one of a number of cases on this issue: see Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374.
My tentative view is that a similar approach should be adopted in relation to reviews under s377 of the Industrial Relations Act with the result that when a final order is made by a Judicial Registrar in a proceeding of the kind which I will describe in a moment, a party can seek a review of that final decision. That review is as of right. The Court is under a duty to hear and determine that review in conformity with the views expressed in Re Kwiatek. "
See also the judgment of Hill J in Re Brindle; Ex parte F.B. & F.A. McMahon Pty Ltd (1992) 35 FCR 506.
In Harris v Caladine (1990) 172 CLR 85, the High Court was concerned with the validity of provisions of the Family Law Act 1975 (Cth) which permitted judges of the Family Court of Australia to make rules delegating to Registrars powers of the Court. The Court was also concerned with the validity and effect of a rule dealing with the manner in which a review might be conducted. Mason CJ and Deane J, at 95, said:
"For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. "
In Brandy v Human Rights and Equal Opportunity Commission (1994-5) 127 ALR 1, the High Court unanimously concluded that the provisions of the Racial Discrimination Act 1975 which established a scheme whereby determinations of the Human Rights and Equal Opportunity Commission could be registered with the Federal Court to render them enforceable as orders of that Court and providing for a right of review by the Federal Court, were invalid. The review made under s. 25ZAC of the Racial Discrimination Act provided that the Court "may review all issues of fact and law" and a party to it "cannot adduce new evidence without the leave of the Court".
I agree with Moore J in APESMA v Deniliquin Council (supra) that the maintenance of the integrity of the separation of powers arising from the application of the provisions of Chapter III of the Constitution requires s. 377 of the Act to be construed so as to treat the review as a hearing de novo. As Moore J said:
"In such a hearing the parties are not bound to or limited by the evidence before the Judicial Registrar and may adduce evidence that was not put to the Judicial Registrar because either a party neglected to call it or it concerns events occurring after the hearing. The judge must decide the matter by reference to evidence led in the review and independently of the decision of the Judicial Registrar. "
The central provision of Division 3 Part VIA of the Act is s. 170DE(1) which provides:
"An employer must not terminate an employee's employment unless there is a valid reason connected with the employee's conduct: s. 170DE(1). "
In my opinion, that requirement requires a temporal connection between the existence of the valid reason or valid reasons and the termination. It is not sufficient if, at a time subsequent to a termination of employment, an employer learnt of the existence of a basis on which the termination might validly have been effected. This conclusion is reinforced by the provisions of s. 170DC which relevantly provides:
"An employer must not terminate an employee's employment for reasons related to the employee's conduct...unless -
(a)the employee has been given the opportunity to defend himself...against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity. "
This provision means that what is relied on by an employer as the reason for the termination of the employee's employment must have been the subject of an opportunity given to the employee to defend the allegations made against him or her. If an employee asserts that there is a valid reason 'A' to terminate the employee's employment and gives to the employee an opportunity to defend himself or herself concerning that allegation, it is in my opinion not competent for an employer to justify the termination of the employee's employment on the basis of reason 'B' in circumstances where reason 'B' was never put to the employee prior to the termination of his employment. Of course, after-termination facts might have a relevance as to the appropriate remedy.
In the circumstances of the present case, if it be the case that Dr Chambers was dismissed for the reason that he had engaged in serious misconduct within the terms of the award governing his employment, that serious misconduct being sexual harassment of one or another of his students, his dismissal can not now be justified on the basis of, absent sexual harassment, non-exploitive and voluntary intercourse had occurred between Dr Chambers and one or other of those students. In my opinion, if the question of voluntary non- explotive intercourse between a lecturer and a student was not asserted as a valid basis for his dismissal (and in respect of which he was not given an opportunity to defend himself) then it cannot, subsequent to the dismissal, be relied on as the 'valid reason" for that dismissal.
In an application under s. 170EA such as this, the onus of proof is as indicated in s. 170EDA(1), which provides:
"If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1):
(a)the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and
(b)if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid. "
The University's case in these present proceedings is restricted to those matters which were chosen by it to be the charges it levelled against Dr Chambers. The evidence of the witnesses in these proceedings is to be confined to those matters.
On 7 April 1995, I made certain orders concerning the identity of the two mature-age students who had made complaints of sexual harassment against Dr Chambers. My reasons for making those orders are published separately.
Complainant A gave evidence before me but Complainant B did not. Both complainants are mature women, Complainant A is aged in her forties, and Complainant B in her fifties. Dr Chambers also is in his early fifties.
A written complaint by Complainant B was made, dated in part 15 November 1993 and in part 21 November 1993. The complaints of Complainant B concerned events which occurred in the 1993 academic year.
Complainant A made a written complaint of sexual harassment against Dr Chambers on 23 November 1993. The complaints related to conduct that Complainant A alleged occurred during the 1992 academic year and, in particular, the circumstances surrounding two acts of sexual intercourse that occurred in April 1992. The circumstances in which Complainant A's written complaint was lodged some eighteen months after the central allegations of sexual harassment is a matter to which detailed reference will later be made.
On 25 November 1993, the Vice-Chancellor wrote to Dr Chambers in the following terms:
"I am obliged to inform you that complaints have been lodged against you under James Cook University's Sexual Harassment Grievance policy, a copy of which is attached.
I have therefore appointed a Sexual Harassment Grievance Committee to examine these complaints.
The Committee has met and has confirmed that the complaints constitute allegations of sexual harassment as defined in the University's policies pertaining to sexual harassment grievances.
The allegations are set out in Appendices A and B to this letter.
The Sexual Harassment Grievance Committee wishes to interview you at 2.30 pm on Thursday 9 December in Room 302 Humanities II Building. You may wish to make a written response in the meantime. If so, you may address it to Ms D. Gray, Equal Opportunity Co-ordinator who will ensure its presentation to the Committee. Please mark any such correspondence CONFIDENTIAL. "
The Appendix A referred to in that letter was as follows:
"It is alleged that, prior to and during the 1992 academic year, the following incidences (sic) of sexual harassment occurred:
A. During rehearsal of solo performance pieces you took inappropriate physical liberties and made verbal and physical sexual approaches to a student. The student claims, that, during rehearsals, you were aggressive almost to the point of physical violence. She cites the following examples of sexual harassment during these rehearsals:
1. 'ostensibly wrestling me to the floor at which point he would bring his face close to mine in an intimate manner';
2. 'brushing my breasts in passing';
3. 'touching my bottom';
4. 'exhorting me to explore my body physically as part of the process of character development'.
The student states that she felt 'emotionally and physically abused by the requests made to me during these two hour working sessions".
B. The student alleges that parts of the course were conducted at the Vale Hotel on the grounds that you stated that: 'I was too tense and physically restricted and needed to be loosened up'. She states that, during these sessions, you made sexual and physical approaches.
C. The student alleges that, on 13 April 1992, 'went after rehearsal as usual to the Vale Hotel. He encouraged me to drink to excess and then took me home and came in with me. I was pressured into having intercourse. The second occasion where intercourse took place was in late April after the usual hotel session. On this occasion I was not inebriated. I had been extremely cautious about drinking with Dr Chambers since the first time. He came in on the pretext of looking at my Visual Art assignment and again I was pressured into intercourse'.
D. The student alleges that she was continually harassed to have intercourse with you from that time on. She states that 'I felt under great pressure to grant sexual favours as I believed the drama with honours component of my degree was at risk if I did not'.
E. The student claims that the above events, combined with the feeling that 'I must go to extreme lengths to avoid any further association with him', persuaded her not to enrol at honours level in Drama. The students (sic) states that she felt 'denied equal student opportunity' and that the events described above 'constituted serious sexual harassment'. "
Appendix B was in the following terms:
"Student B has alleged that during 1993 the following incidences (sic) of sexual harassment by you occurred at either her or your homes during solo performance rehearsals.
A. During a rehearsal at your home, you were drinking alcohol and asked her several times to sit on your lap. She states that you said that she had 'to learn to be sensual and relaxed'.
B. During another rehearsal at your home, she alleges that you told her that she was 'terrific' and offered to 'make a star out of me'. She states that: 'He said he might even take me and my play to the Adelaide Festival'. Student B also alleges that you said to her 'Do you want a fuck?' She states that, when she refused, you terminated the rehearsal in an abrupt and aggressive manner. She states that she went to her car but that you then encouraged her to return to the house as she was in no fit state to drive. She alleges that she was led into the house and placed on a bed where you 'had sex many times. Everytime I wanted to get up and leave he kept me back and did it again. He was enormously strong'.
C.Student B alleges that, on the following day, a further incident occurred at your home. On this occasion she states that you told her 'that it was good for an actress to have a relationship with the director it would make working together easier'. She alleges that you 'pulled me in his bedroom...Then he had sex with me again'.
D. The student also alleges that, after these incidents, her concentration suffered, she received little tuition from you and that procedures for assessment of her performance were impeded.
E. Student B also alleges that, on 17 November, you visited her house 'to negotiate'.
On 7 December 1993, Dr Chambers took up the invitation to make a written response to the complaints. In part, in that response, he said:
"I have worked professionally with Grievant A, who is aged in her forties, for two years and with Grievant B, who is aged in her fifties, for three years, in my capacity as Senior Lecturer in Theatre. "
Having detailed the nature of his professional work with these students and referring to the "appreciative regard and professional respect that these students generally had for me", he said:
"I was therefore greatly surprised when confronted with these allegations of sexual harassment. At the outset, I admit I had brief sexual encounters with both Grievants although these encounters in reality amounted to one night stands. These sexual encounters arose out of a mutual sexual attraction which was based on the choice and consent of mature middle-aged persons. At no time was coercion on my part or unwillingness on the respective parts of Grievant A or Grievant B evident in these sexual encounters. "
He gave lengthy and detailed denials of the allegations of sexual harassment and concluded his letter by saying:
"I strongly contest the allegations of sexual harassment which have been levelled against me by Grievant A and Grievant B.
In particular, I reject any suggestion that I used my position as Senior Lecturer in Theatre, or any authority attaching thereto, to either explicitly or implicitly gain sexual favours from Grievant A or Grievant B.
In making these complaints against me, I am concerned and honestly believe that Grievant A and Grievant B have colluded with premeditated malice in an attempt to damage my professional reputation at James Cook University.
The timing of Complainant A's allegations and their combination with those of Complainant B's, does not appear, in my opinion, to be coincidental.
Further, I honestly believe that your Sexual Harassment Grievance Committee did not impartially treat me in my interview with it and that my submission to it was not accorded its just and due consideration. Now I believe I am confronted with Serious Misconduct allegations which are legalistically tuned and highly selective in their intrepretation (sic) of the initial written complaints I received from the Sexual Harassment Grievance Committee (initial complaints and my written response are enclosed) and which, more significantly, allege areas of complaint of which I was hitherto unaware and of which I was never informed..either in writing or orally.
The salient and irrefutable fact of this matter is that I had brief sexual encounters with two mature women in a context of mutual sexual attraction which was based on choice and consent. These sexual encounters were entered into by mutual consent, without coercion on my part or unwillingness on the respective parts of Grievant A or Grievant B, and thereafter ended quickly by mutual agreement. "
It is convenient in the light of Dr Chambers's response to the allegations first made against him to set out the James Cook University Sexual Harassment Grievance procedure. That policy document commences with a definition of sexual harassment which is in the following terms:
"Sexual harassment is an unacceptable form of behaviour. As an educational institution and as an employer, James Cook University of North Queensland has a responsibility to provide an environment for work and study free from sexual harassment. Sexual harassment is unlawful, in that it is a contravention of the Commonwealth Sex Discrimination Act 1984 and the Queensland Anti-Discrimination Act 1991. Both Acts state that 'a person must not sexually harass another person'.
Both Acts describe a range of conduct that may qualify as sexual harassment - not only physical activity that could qualify as criminal sexual assault, but a range of unwelcome, unsolicited and unreciprocated behaviour.
The laws state that sexual harassment occurs if a person:
(a)subjects another person to an unsolicited act of physical intimacy; or
(b)makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
(c)makes a remark with sexual connotations relating to the other person; or
(d)engages in any other unwelcome conduct of a sexual nature in relation to the other person;
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so:
(e)with the intention of offending, humiliating or intimidating the other person; or
(f)in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility of offence, humiliation or intimidation include consideration of the other person's sex, age, race, any impairment, and the relationship between the parties to the event. "
The policy states:
"Sexual harassment may be unintentional as well as deliberate. For example, an action may be perceived by the perpetrator as friendly or jocular, but viewed by the person to whom it is directed as offensive, humiliating or intimidating."
The definition section importantly makes the statement:
"Sexual harassment does not arise in the context of mutual sexual attraction which is based on choice and consent. The fundamental elements of sexual harassment are coercion on the one part and unwillingness on the other. "
The policy document provides for procedures to deal with complaints of sexual harassment and includes the convening of a Sexual Harassment Grievance Committee which "may conciliate or mediate between parties, and may recommend disciplinary action where appropriate".
A Sexual Harassment Grievance Committee of the University considered the allegations and reported on 10 December 1993 to the Vice-Chancellor. He wrote to Dr Chambers by letter of 24 December 1993 in the following terms:
"As you are aware, a Sexual Harassment Grievance Committee of the University recently considered allegations of sexual harassment made against you. In its report dated 10 December 1993, the Committee's conclusion was that grave incidences (sic) of sexual harassment have been perpetrated by you.
Accordingly, I believe the following allegations of serious misconduct require further investigation pursuant to clause 9 of the Australian Universities Academic Staff (Conditions of Employment) Award 1988:
That during the 1992 academic year you took inappropriate physical liberties and made verbal and physical sexual approaches to a student enrolled in a Theatre Performance subject conducted by you (referred to as 'Complainant A').
That on or about 13 April 1992 at Complainant A's place of residence you improperly pressured Complainant A to engage in sexual intercourse with you and did in such circumstances then engage in sexual intercourse with Complainant A.
That on a further occasion in or about late April 1992 at Complainant A's place of residence you again improperly pressured Complainant A to engage in sexual intercourse with you and did in such circumstance then engage in sexual intercourse with Complainant A.
That subsequent to the events described in paragraphs 2 and 3 you have applied further pressure and/or harassment to Complainant A to engage in further acts of sexual intercourse with you.
That during the 1993 academic year you took inappropriate physical liberties and made verbal and physical sexual approaches to a student enrolled in a Theatre Performance subject conducted by you (referred to as 'Complainant B').
That in or about September 1993 at your place of residence you improperly pressured Complainant B to engage in sexual intercourse with you and did in such circumstances engage in sexual intercourse with Complainant B.
Further, that the act of sexual intercourse referred to in paragraph 6 was without the consent of Complainant B and involved:
(a)the use of force in procuring and engaging in sexual intercourse;
(b)violent sexual assault; and
(c)the use of force restraining Complainant B from leaving.
That on the day following the events referred to in paragraphs 6 and 7 you did again engage in sexual intercourse with Complainant B at your place of residence and that this was again without the consent of Complainant B and involved:
(a)the use of force in procuring and engaging in sexual intercourse;
(b)violent sexual assault; and
(c)the use of force restraining Complainant B from leaving.
Further and in the alternative, that insofar as any of the incidents referred to in the above paragraphs were with the consent of Complainants A or B, such consent was improperly obtained either through:
(a)intoxication;
(b)express or implied threats about the Complainant's course assessment by you; or
(c)express or implied undertakings by you about the Complainant's academic or professional progress.
10.That the matters referred to in the preceding paragraphs constitute serious misconduct of themselves, and in addition constitute serious misconduct as:
(a)an abuse of your position within the University as Senior Lecturer in Creative Arts (theatre);
(b)an abuse of your position as Lecturer of Complainants A and B;
(c)sexual harassment (both physical and verbal) of Complainants A and B; and
(d)conduct inconsistent with your continued employment with the University.
Please note that in accordance with the Award, you are required to submit a written response to the above allegations within the next thirty days. A copy of Clause 9 of the Award is attached for your information.
I also hereby advise that I consider it necessary and in the interests of the University to forthwith suspend you from all duties, with pay, and exclude you from the University. "
In my opinion, it is plain from the terms of that letter that there were ten allegations of serious misconduct levelled by the Vice-Chancellor against Dr Chambers.
In light of subsequent findings and the arguments presented to the court, it is convenient to note that the first allegation of serious misconduct specifies the taking of "inappropriate physical liberties and the making of verbal and sexual approaches", without further definition, some time during the 1992 academic year, in respect of a student enrolled in the Theatre Performance subject conducted by Dr Chambers.
The word "inappropriate' might be in current fashion, but one thing that might be said about its use is that it covers a wide range of possible conduct, from conduct proscribed by the criminal law made, conduct unlawful by statute which may result in civil penalties, to conduct which is merely in bad taste or contrary to the prevailing sense of fashion, like wearing brown shoes with a navy suit or drinking red wine with fish. The use of the word almost necessarily involves some obfuscation of meaning and does not convey anything meaningful of the "nature of the acts or omissions" in "sufficient detail to enable the person to know" the "precise nature of the allegations and to properly respond to the allegations", referring to the words contained in cl. 9(d)(i)(1) of the Award later set out.
The second and third allegation of serious misconduct alleged two specific acts of intercourse with Complainant A at Complainant A's place of residence, the acts of intercourse occurring as a consequence of improper pressure by Dr Chambers on Complainant A. The fourth allegation of serious misconduct asserts "further pressure and/or harassment to engage in further acts of sexual intercourse" with Complainant A.
The fifth allegation is similar to the first, with all its deficiencies, except that it relates to Complainant B. The sixth allegation is the applying of improper pressure to Complainant B to engage in sexual intercourse. The seventh and eighth allegation in substance alleges rape by Dr Chambers of Complainant B. The ninth allegation is expressed in the alternative, but has as its essential feature the improper obtaining of consent. The tenth allegation is not really an allegation of misconduct but provides in four joined reasons why the previous matters are said to constitute serious misconduct.
Clause 9 of the Award outlines the procedures in respect of serious misconduct. It is necessary to set out that clause extensively, particularly having regard to cl.9(b) and cl. 9(d)(i)(1). Clause 9 relevantly provides:
"CL9 - PROCEDURES IN RESPECT OF SERIOUS MISCONDUCT
(a)In the context of these procedures serious misconduct shall mean:
(i)serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of the member's duties or to other members carrying out their duties;
...
(b)Where there is any question that a staff member may have been guilty of serious misconduct, the matter shall be investigated and reported on solely in accordance with these procedures, notwithstanding anything to the contrary in the staff member's terms of employment or any of the procedure(s) that may currently be in operation at any university.
(c)All allegations of serious misconduct shall be investigated in the first instance by the chief executive officer.
(d)(i) Where the chief executive officer believes that an allegation of serious misconduct by a staff member warrants further investigation, he or she shall:
(1)notify the staff member in writing of the nature of the act or acts or omission or omissions which constitute the alleged serious misconduct in sufficient detail to enable the staff member to know the precise nature of the allegations and to properly consider and to properly respond to the allegations; and
(2)require the staff member with 30 days to submit a written response.
(ii)Provided that:
(1)the chief executive officer may, at the time the allegations are conveyed to the staff member, if he or she considers it necessary and in the interests of the university, suspend the staff member from duty, with pay, and exclude him or her from the university; and
(2)a staff member who is suspended and excluded from the university shall be permitted reasonable access to the university for the preparation of his or her response to the allegation and to collect books, papers and other personal property.
...
(h)If the allegation is denied in part or in full by the staff member, or if the staff member fails to submit a written reply pursuant to paragraph 9(d)(i) hereof and the chief executive officer decides that a prima facie case for serious misconduct exists...the chief executive officer shall proceed to refer the matter to a committee of investigation (hereinafter referred to as the committee).
The committee shall consist of:
(i)a senior member of the legal profession or a person with appropriate experience in industrial relations appointed by agreement between the chief executive officer and the president of the local branch of the union, and who shall chair the committee;
(ii)a nominee of the chief executive officer; and
(iii)a nominee of the president of the local branch of the union;
provided that the parties shall have no longer than fourteen days to agree in terms of 9(i)(i) above, starting from the day upon which either of the parties notifies in writing to the other a name or names in connection with an agreed appointment to the position.
(j)The function of the committee shall be to investigate any case referred to it by the chief executive officer pursuant to subclause (h) hereof.
(k)(i) The committee shall hold its first hearing promptly after the receipt by its chairperson from the chief executive officer of the allegation(s) of serious misconduct.
(ii)The chief executive officer shall appoint a person who is a staff member of the institution (provided that the person concerned is not a currently practising barrister or solicitor) or an officer or staff member of the Australian Higher Education Industrial Association to present on behalf of the institution the case to the committee. This person may call witnesses in support of the case and may cross-examine any persons appearing as witnesses in support of the case of the staff member (including the staff member if he or she appears as a witness).
(iii)The staff member shall have the right to be present at all hearings of the committee provided that the committee may deliberate on its findings and on its report in private.
(iv)The staff member shall be entitled to be assisted or represented at all hearings of the committee by an agent of his or her own choice who is a staff member of the institution (provided that the agent concerned is not a currently practising solicitor or barrister) or a staff member or officer of the union, and may personally, or by his or her agent, call witnesses in support of his or her case and may cross-examine persons called on behalf of the institution.
(v)The committee shall give each party reasonable notice of the time and place at which the initial and subsequent hearings shall take place. The committee may at any time adjourn the proceedings to another time and place.
(vi)The committee shall, subject to this subclause, determine its own procedures, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the consideration of the matter before it permits.
(vii)The committee may take evidence on oath or affirmation. Any evidence given on oath or affirmation shall be tape recorded, and a committee may decide that any other oral evidence be tape recorded. A copy of any tape recordings of evidence shall be provided to the staff member and the university upon request.
(viii)All proceedings of the committee shall be held in camera. No persons except the members of the committee and any person providing secretarial assistance to the committee shall be present during its deliberation after the evidence has been presented and all submissions have been completed. The members of the committee shall treat the proceedings as confidential. None of the parties to the proceedings or witnesses thereto shall make public statements commenting upon the proceedings for their duration.
(ix)In the event that the staff member does not attend either personally or by his or her agent after reasonable notice of the committee's intention to meet has been given to the member of staff or his or her agent, the committee may proceed and may determine the matter in his or her absence.
(l)The committee shall, after hearing and considering the evidence adduced and submissions made before it, promptly report in writing to the chief executive officer on:
(i)whether it is satisfied that each of the facts or matters alleged has been proven;
(ii)whether the facts as proven constitute serious misconduct on the part of the staff member; and
(iii)its recommendation as to whether the chief executive officer should exercise any of the powers referred to in subclause 9(e) hereof, together with the reasons for its findings, provided that where the committee has investigated a matter in which the facts are not disputed but the penalty imposed is disputed, the committee shall report only in accordance with paragraphs 9(l)(ii) and (iii) hereof.
(m)The committee shall, when it furnishes its report to the chief executive officer, forward to the staff member a copy of the same report.
(n)The chief executive officer shall, after receiving the report of the committee, act on its findings by proceeding forthwith to exercise one or more of the following powers, namely to:
(i)dismiss the case and remove any suspension previously placed upon the staff member; or
(ii)censure the staff member, withhold an increment of salary for a period not exceeding twelve months, demote the staff member, or dismiss the staff member from the employment of the university.
...
(q)If the staff member offers his or her resignation or accepts an offer of early retirement with immediate effect during the operation of these procedures, the resignation shall forthwith be accepted by the chief executive officer and the proceedings shall thereupon cease. "
By letter dated 14 January 1994, Dr Chambers responded. Having referred to his claim about "the appreciative regard and professional respect that these Complainants had for me", his letter stated:
"I was therefore greatly surprised when, on 25 November, I was confronted with allegations of sexual harassment. I duly presented a detailed written report to your Sexual Harassment Grievance Committee in which I strongly contested any suggestion that I used my position as Senior Lecturer in Theatre, or any authority attaching thereto, to either explicitly or implicitly gain sexual favours from Complainant A or Complainant B.
Now being confronted with allegations of misconduct arising from these previous allegations of sexual harassment, I offer the following information.
At the outset, I admit that I had two brief sexual encounters with each of the Complainants, although these encounters in reality amounted to one-night stands. These sexual encounters arose out of a mutual sexual attraction which was based on the choice and consent of mature middle-aged persons. At no time was coercion on my part by the use of physical force, use of intoxication, use of express or implied threats about the Complainants' course assessment, or use of express or implied undertakings about the Complainants' academic or professional progress evident in these sexual encounters. At no time, furthermore, was unwillingness on the respective parts of Complainant A or Complainant B evident in these sexual encounters. "
His letter contained detailed denials. His letter asserted:
"I strongly contest the allegations of serious misconduct which have been levelled against me by Complainant A and Complainant B.
In particular, I reject any suggestion that I used my position as Senior Lecturer in Theatre, or any authority attaching thereto, to either explicitly or implicitly gain sexual favours from Complainant A or Complainant B.
In making these complaints against me, I am concerned, and honestly believe, that Complainant A and Complainant B have colluded with premeditated malice in an attempt to damage my professional reputation at James Cook University.
The timing of Complainant A's allegations and their combination with those of Complainant B's, does not appear, in my opinion, to be coincidental. "
Pursuant to the provisions of the Award earlier set out, a Committee of Investigation was constituted and a hearing in camera was held on 13, 14 and 18 April 1994 at the University. At that hearing the University was represented by Mr R. A. Millar, barrister and solicitor of the Supreme Court of Victoria employed by Mallesons Stephen Jaques in Melbourne, who were the solicitors for the University. In a statement filed 5 April 1995, he says that he appeared on behalf of the University at the hearings of the Committee of Investigation in his then capacity as a staff member of the Australian Higher Education Industrial Association. At the hearing, Dr Chambers appeared for himself. He did not give sworn evidence to the Committee of Investigation.
In the report of the committee furnished in accordance with cl. 9(l) of the Award, the committee said:
"The allegations of serious misconduct were particularised by the Vice-Chancellor. "
This was a reference to the letter of the Vice-Chancellor of 24 December 1993 set out above. What the report refers to as "particulars" were dissected by it in the following way:
"Particulars 1 to 4 inclusive concern an alleged relationship with Complainant A.
Particulars 5 to 8 concern an alleged relationship with Complainant B.
Particular 9 is expressed to relate to the allegations concerning both Complainants, as does Particular 10 although the latter is expressed in terms which invite certain conclusions to be drawn from proven facts rather than amounting to factual allegations in themselves. "
The committee seems, wrongly, to have regarded the allegations by the Vice-Chancellor as one allegation of serious misconduct, with a number of particulars. So much follows from a sentence in its report where it said:
"It has regarded the onus of proof of both the composite allegation of serious misconduct and each of the particulars thereof, as resting upon the University through its Advocate, Mr Millar. "
The University served a notice to admit facts on Dr Chambers and Dr Chambers admitted some of the facts that the University asked him to admit. One of those was that "the committee on 9 December 1993 gave the applicant an opportunity to refute the allegations made against him, and he did so. "
"To refute" means "to prove the falsity or error of" an allegation, opinion or statement. While the words used, as a matter of construction, mean that Dr Chambers had proved the falsity of the allegations made against him, I do not take it that the University was intending to accept that this is what had occurred.
The Committee made what it called the following "general findings of fact":
"1. That the Respondent was a Lecturer of and the immediate Supervisor in respect of solo theatre performances, of both Complainants.
2.Both Complainants in 1991 and 1992 respectively were students of Dr. Chambers.
3.The Respondent had sexual intercourse with Complainant A on the two occasions referred to in the evidence and in the Particulars.
4.The Respondent had sexual intercourse with Complainant B on the two occasions referred to in the evidence and in the Particulars.
5.The Respondent and Complainant A had established and maintained during the relevant period a social acquaintanceship outside their formal University roles.
6.The Respondent and Complainant B had developed a more limited social acquaintanceship during the relevant period outside their formal University roles.
7.Both Complainants had suffered physical illness (Ross River Fever) which was not connected with the Respondent in any way, in 1991 and 1992 respectively, which impacted upon their emotional and physical health in part of the relevant periods. "
The letter of termination by the Vice-Chancellor is dated 2 June 1994 and commences:
"You would have by now received a copy of the report of the Committee of Investigation into allegations of serious misconduct, and the reasons for their recommendation therein.
In accordance with clauses 9(o) and 9(p)(i) of the award, Council has ratified my recommendation that your employment contract be terminated, on the basis of their reasons.
Accordingly, you are hereby dismissed from the University, effective immediately. "
As this letter makes plain, the basis for the termination of Dr Chambers's employment is the reasons of the Committee of Investigation.
Clause 9(d) of the Award provides an exclusive procedure for investigating complaints of this type. I am satisfied that the requirements of cl. 9(d)(i)(1) have not been complied with.
It was submitted by Dr Jessup QC, senior counsel for the University, that the admitted shortcomings in the formulation of the first allegation in the Vice-Chancellor's letter of 24 December 1994 could be remedied, in the context of the receipt by Dr Chambers of that letter, by having regard to the earlier letter of the Vice-Chancellor. Even if one could regard the incidents in that earlier letter as con-stituting the definition required by cl. 9 of the allegation (which I doubt), that letter is silent as to when in any meaningful way this conduct is alleged to have occurred, and in particular the evidence does not permit a conclusion as to whether the complaints relate to a time before or after the two admitted acts of intercourse with Complainant A in April of 1992. Even with these difficulties, in respect of what the Committee referred to as "Particular 1", there is no finding concerning any touching on the breast or touching on the bottom, as referred to in the earlier Vice-Chancellor's letter.
The Committee found that during rehearsal of her solo performance, the respondent grabbed the complainant's arm, rolled with her to the ground and held her face close to his. She objected to and was discomforted by this conduct. The Committee also said that, at a time which is not identified and at a place which is not identified, the respondent suggested to the complainant that a sexual relationship was natural and intrinsic to their relationship.
There are references to the subjective perceptions of the complainant in the Committee's findings concerning what it called "Particular 1", but the Committee expressly found: "There was no explicit threats or overt coercion concerning the outcome of the complainant's study course, by or from the Respondent"; and "the complainant was not offered a high distinction in her course in exchange for any sexual favours". Complainant A received a distinction in the course she was then pursuing.
Whether there was a valid reason for the University to terminate the employment of Dr Chambers is a question of fact. In the area of sexual harassment there is a large measure of genuine and justified public concern. I am conscious of the fact that whatever decision I reach will not please everybody. It is of course not meant to. My conclusions of fact in this case are based on the evidence produced before me, including the oral evidence-in-chief and cross-examination of Complainant A, the evidence-in-chief and cross-examination of Dr Chambers, and also the evidence of Mrs Chambers. Complainant B did not give evidence before me. A possible understanding for this circumstance arises from a consideration of the findings by the Committee concerning her evidence before it.
I will refer in some detail to some of the evidence given by the witnesses before me and its significance concerning my conclusion. My conclusions are based on the evidence before me, quite divorced from any perception of how such conclusions might be received by this section or that in the community.
As the Chief Justice of Australia, Sir Gerard Brennan said in the Inaugural Deakin Law School Oration on 26 July this year:
"[The judiciary] must always respond to any application duly made to it. And it must account publicly and to the parties for the reasons for its decisions. It is a judiciary for a society living under the rule of law. "
The Chief Justice continued:
"Our traditions and our system know nothing of decisions reached according to mass opinion or popular acclaim. If mass opinion or popular acclaim were the reference points, courts could trim their decisions to accord with public sympathy or outrage, or the policies of the government of the day, or popular political opinion, or the pontifical pronouncements of the columnists. But they could not maintain the rule of law. In our courts, popularity of decisions is no criterion of the true discharge of judicial duty. "
In my opinion, what the Committee referred to as "Particular 1" is too vague and uncertain to properly found an allegation of serious misconduct justifying termination. It is contrary to the mandatory requirements of the Award under which Dr Chambers was employed and, further, in my opinion, is not supported on the facts. Moreover, the Committee did not make findings nor did it give reasons to satisfy both the allegation and the Award.
Notwithstanding the absence of any finding of the Committee concerning any brushing of the breasts of Complainant A or touching of her bottom, in the course of her evidence before me, she was directed to that part of her written statement which refers to "ostensibly wrestling me to the floor", and gave evidence in the following terms:
"He needed to get some emotion out of me; I needed to be emotional in the part. It called for anger, for rage, and so he would - he pushed at me and he was trying to get me angry and I pushed back at him and as I pushed back he pulled my arms and rolled me down on to the ground next to him and he put his face up to my - about that close to me. "
She said, concerning the brushing of her breasts, that:
"That happened throughout the course. He would just walk past casually while I was rehearsing and just brush past - as he brushed past, he'd just be too close. "
The area in which the rehearsal occurred was approximately three metres by four metres, but there was in the rehearsal room a quantity of desks and chairs with that space for rehearsal work.
In relation to her complaint of touching her bottom, in her evidence before me Complainant A said that Dr Chambers was:
"...just slapping my bottom as he walked past; just sort of - just very casual sort of thing like you'd do to a friend sort of thing. "
She said that she told Dr Chambers that she didn't like it, to which he just laughed.
In cross-examination, Complainant A said there was never any manual fondling of breasts, that it was "just his shoulder coming up against" her. Dr Chambers admits that there was some physical touching of part of the rehearsal process but there was never any contact of a sexual kind.
I am not satisfied that there was any deliberate touching of the breasts or bottom of Complainant A by Dr Chambers. I am satisfied that there was one instance, approximately in July or August 1992, when she was "grabbed" by Dr Chambers, and each ended up on the floor. In respect of it Complainant A said that:
"...Probably what I meant was he was trying to help me to express emotion and that's the way - he through - doing all those violent emotional things he was trying to get me - get me angry to show emotion. "
This statement by the complainant was in the context of her statement that during the rehearsal process Dr Chambers would "rampage around and come at me physically as if he was going to do some violence". She admitted that he never did do any violence, and that this aspect of the rehearsal process was part of the tuition process. She admitted that she was a person who found it hard to manifest strong emotion because she "kept it inside me", and when asked "So he had to draw it out from you, didn't he?", she replied "Yes".
I am satisfied that the first allegation of serious misconduct in the Vice-Chancellor's letter of 24 December 1994 is not made out. While on at least one occasion Dr Chambers adopted an aggressive role during the rehearsal process, I think this was part of his deliberate attempt to procure a response in the director-actress relationship. My assessment of Complainant A's evidence in this regard is that she saw his conduct, at least in this respect, in the same way.
What the Committee referred to as "Particulars 2 and 3" can be dealt with together. They in fact constitute the gravamen of the University's case against Dr Chambers.
In respect of these two allegations the Committee found that in each case the sexual intercourse was consensual, but said that the consent was given under pressure from Dr Chambers's superior position as a lecturer, in response for perceived special attention given her in studies and through a relaxation of inhibition caused by consumption of alcohol.
The second of the above three aspects relates to a subjective view by Complainant A and not is not expressed in any way as being based on anything said or done by Dr Chambers.
In particular, there is no finding of improper pressure. Moreover, the finding in respect of the second act of intercourse that the consent was through a relaxation of inhibition caused by consumption of alcohol, is just simply wrong. The complainant's case both before the Committee and before me was that on the occasion of the second act of intercourse she had not consumed any alcohol.
In respect of what the Committee called "Particular 4", the Committee accepted that Complainant A perceived the existence of further pressure and/or harassment, but expressed the view that this perception was influenced by other factors. It found that it was not satisfied that any conduct by Dr Chambers was directed to obtaining the complainant's consent to engage in further acts of sexual intercourse.
In the context of these findings, it is necessary to refer with some particularity to the evidence concerning the two admitted acts of intercourse between Dr Chambers and Complainant A.
Dr Chambers has at all times admitted that on two occasions he had intercourse with Complainant A. However, his case is, and has always been, that these occasions were based on choice and consent between mature age adults without coercion and in respect of which Complainant A was not unwilling. His contentions are directed, of course, to the statement in the University's sexual harassment policy which states that:
"Sexual harassment does not arise in the context of mutual sexual attraction which is based on choice and consent. The fundamental elements of sexual harassment are coercion on the one part and unwillingness on the other. "
I have considered the evidence of Complainant A and Dr Chambers concerning both incidents. It was submitted on behalf of the University, that the coarsely expressed request in the carpark, in conjunction with a "fairly robust physical approach" constituted improper pressure. He had "talked her into it", it was submitted, by the coarse request. I am not satisfied that either act involved any improper pressure on Dr Chambers's behalf, any coercion, threat or promise emanating from him, nor in respect of either incident was Complainant A an unwilling partner.
The first act of intercourse occurred on 13 April 1992. I am satisfied that on that evening, Complainant A drove her own car to the Vale Hotel and Dr Chambers had also driven his car to the Vale Hotel. I think it likely that that occasion commenced about 7 o'clock and they remained at the hotel until about 9.30 pm, during which time Complainant A had "two or three" Rum and Cokes. She told her counsel that while she was inside the hotel there was no discussion between Dr Chambers and herself as to the idea of having sex together that evening. Her account was that, after they left the hotel that night, she went to her car and he followed her. His car was parked either next to hers or with another car in between. Dr Chambers came back to Complainant A's car. She put the key in the lock to get into the car and Dr Chambers rubbed himself against her and expressed in coarse language that he wanted to have intercourse with her. She says that Dr Chambers had an erection and was rubbing himself against her. She was then asked:
"What did you say or do at that time?"
to which she replied:
"I guess I gave in to it. "
She was asked:
"...and then what happened?"
and she said:
"We went back to my place. "
She in fact went to her place by driving in her own car and driving Dr Chambers as a passenger in that car. She got out of the car, went to the back of the house and opened up the garage, drove in, and then went upstairs with Dr Chambers. They went directly to her room. She says that she took off her own clothing. She was asked:
"He didn't have to seduce you in any way, did he?"
"No, he did not."
"You did not try and stop him entering you, did you?"
"No, I did not. "
"Did you feel you'd been raped?"
"No, just used. "
Complainant A was then in her early forties and Dr Chambers in his early fifties. Complainant A had separated from her husband in the previous November and Dr Chambers was himself experiencing marital difficulties at the time. When cross-examined of her feelings when she was aware of his erection, she said:
"I guess when I'd had all that to drink, I was - I was a lot more relaxed and I am a woman. "
She was later asked:
"And you said in your evidence that he rubbed this erection up against you and you gave in to it. What did you mean by that?"
to which she said:
"It means because I was inebriated I went along with him in what he wanted. "
To the suggestion that she was surely not claiming to be unable to control her mental faculties, she said:
"No, I'm just saying that I'm a normal human being who does respond to sexual pressure sometimes. "
She was next asked:
"What was the sexual pressure?"
to which she replied, importantly in my view:
"I guess there was a part in me that needed to do something about the same lines as he was doing. "
There was another session at the hotel in the following week and then a further week later at the hotel there was a discussion between Complainant A and Dr Chambers concerning a sample of some graphics that she was doing as part of work she was doing for posters for children's theatre. She said that she told Dr Chambers that she would appreciate having his comments on her artwork, "so I - I virtually invited him back to my place to have a look at my artwork". She said:
"I think he joked about, 'come back home to see my etchings' or something at the time. "
She had not had anything alcoholic to drink on that occasion.
I am satisfied that, as on the first occasion, on this occasion she drove Dr Chambers in her car back to her house. On this occasion they went into a studio next to the ground floor garage. She pulled out her drawings and sketches to show him. There is a difference in the account of what occurred after that. I prefer Dr Chambers's account that Complainant A went upstairs and returned with a bed cover and some cushions and that subsequently an act of intercourse occurred between them. Complainant A said that she did not bring any bed covering or pillows down to the room and that an act of intercourse occurred when he pulled her across him as he was seated, pulled down her leggings, and had intercourse with her as she straddled him. She said of this incident:
"I considered it my own fault for inviting him back."
I am not satisfied that on either of these occasions was there improper pressure applied by Dr Chambers to achieve sexual intercourse with Complainant A, as the second and third allegations of serious misconduct allege. Both incidents were occasions on which middle aged persons, each in their own way suffering matrimonial difficulties, sought solace in a sexual relationship. On the first occasion, Complainant A, after the direct request on 13 April in the car park of her for intercourse, drove both of them to her house where each of them disrobed in her bedroom before having intercourse. I am satisfied that this was an act of consensual sexual intercourse without coercion or exploitation by one of the other. I make the same conclusion in respect of the second act of intercourse, only a fortnight after the first. If there had been improper pressure by Dr Chambers on the first occasion, it is in my view most unlikely that Complainant A would have invited him to return to her home even for the purpose of looking at her artwork, and particularly so after Dr Chambers's comment about "etchings".
Complainant A says later in that year she attempted to make a complaint to the Equal Opportunity Co-ordinator at the University. She says that the Co-ordinator "chose not to listen to me; she chose to put me off." She says that when she ultimately lodged a complaint in November 1993, that came about as a result of a telephone call from Complainant B who complained to Complainant A that she, Complainant A, had done nothing about harassment by Dr Chambers. Complainant B told her "You didn't put a complaint in; why didn't you do it?" and Complainant A told Complainant B "Well, if you put a complaint in and I put a complaint in together, maybe something will be done about it." Complainant A then gave Complainant B the undertaking "I would see the complaint through".
The allegations concerning Complainant B can be dealt with more shortly. The important elements of the allegations concerning her were rejected by the Committee. It expressed the view that she was "an intense, complex and emotional personality, given on occasion to over-dramatisation and unusually naive/gullible for a mature-age woman." It accepted, as was not disputed by Dr Chambers, that sexual intercourse did take place. Complainant B did not give evidence before me and having regard to the onus that lies on the University and to the findings made by the Committee concerning their assessment of her, I am not satisfied that any of those allegations of serious misconduct involving her has been established.
So far as what the Committee called "Particular 9" was concerned, that allegation is of the improper obtaining of consent. So far as Complainant A is concerned, the Committee said it was:
"...not satisfied that any ingestion of alcohol was sufficient to render the Complainant unable to give or deny consent. "
It also found so far as Complainant A was concerned that there were no explicit threats or overt coercion concerning the outcome of the complainant's study course by or from the respondent, nor was she offered academic achievement in exchange for any sexual favours. I am satisfied that the consent to the two acts of intercourse between Complainant A and Dr Chambers were fully consensual, and consent was not improperly obtained.
It follows then that the University has not discharged the onus that lies on it pursuant to the Act to establish that there was a valid reason for the termination of Dr Chambers's employment. What is referred to by the Committee as "Particular 10" is simply a labelling exercise and does not call for specific findings.
None of the matters of serious misconduct alleged by the Vice-Chancellor against Dr Chambers involves an allegation that it was serious misconduct for Dr Chambers to engage in consensual and non-exploitive intercourse with one of his students. The Committee correctly observed:
"Whilst it is not within the ambit of issues falling for us for determination, we accept as a view based on experience and common sense, the evidence of Dr Davis wherein she agrees that it is not ethical behaviour for a lecturer to develop a sexual relationship with a student, particularly in a solo performance context. "
[my underlining]
Having regard to the terms of the Award, to the sexual harassment policy of James Cook University and the chronology of complaints made against Dr Chambers, the case against him was always one of sexual harassment, in the manner specified in the allegations contained in the letter by the Vice-Chancellor to Dr Chambers.
Those allegations are not made out. It follows that the termination of employment of Dr Chambers by James Cook University was contrary to the Act.
In the course of submissions it was suggested by Dr Jessup QC on behalf of the University that even voluntarily consensual intercourse between a lecturer and a student amounted to serious misconduct justifying termination. That was not the case that was alleged against Dr Chambers; it was not the case he was called upon to meet as the Award calls for; and, having regard to the provisions of the Act requiring an opportunity to be given to an employee to be heard before his/her employment is terminated, cannot constitute a valid reason for the termination of Dr Chambers's employment. For those reasons, it is unnecessary for me to express a view whether what is asserted in this respect constitutes serious misbehaviour justifying dismissal.
If the University wishes to assert that any act of intercourse between lecturer and student, regardless of the circumstances, constitutes serious misconduct warranting termination of employment, then it ought to be the subject of an express policy. The implications of such a policy for the individual rights of both lecturer and student, independently of their circumstances, age differences and so on, is a matter that one could expect to engender considerable debate. Any such policy would seem to make the sexual harassment statement by James Cook University a snare and a delusion.
That, however, is not the case that was levelled against Dr Chambers and it is unnecessary to consider it further.
On the question of reinstatement, it was submitted on behalf of the University that it was "simply not appropriate, and in that sense, not practicable", to have "a person who regards consensual affairs with his students as perfectly acceptable", teaching students at the University.
The second basis touching reinstatement asserted by the University was that some restructuring had taken place in the Department. The teaching programme it was said had been changed so that part of that programme which Dr Chambers originally took is not there, and that in that circumstance the court would be entitled to conclude that reinstatement is not practicable.
In Liddell v Lembke (1994) 127 ALR 342, Wilcox CJ and Keely J said at 360:
"Plainly, it was Parliament's intention that the primary remedy for unlawful termination should be reinstatement and that compensation should be available only where this was impracticable.
The precise meaning of 'impracticable' in this context should be left to another day; the question is one of general importance and it was not fully argued in this case. But, although 'impracticable' does not mean 'impossible', it means more than 'inconvenient' or 'difficult'. The imposition of such a stringent limitation on the court's power to award compensation, rather than order reinstatement, is inconsistent with the notion that Parliament intended the court to have an open discretion whether to intervene at all. "
See also Gray J at 367-8.
The first basis alleged by the University cannot be accepted.
The University cannot on this aspect of the matter pull itself up by its own bootstraps. Moreover, the restruct- uring of which Professor Davis speaks is a staged one. In no relevant sense is reinstatement in this case impracticable, particularly having regard to the provisions of s. 170EE(1)(a)(ii).
The Court declares that the termination of the employment of Dr Chambers by James Cook University contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
The Court orders:
(i)that the respondent reinstate the applicant by appointing him to a position in the University on terms and conditions no less favourable than those on which he was employed immediately before the termination;
(ii)for all purposes, the respondent, James Cook University treat the applicant as having been continuously employed by it from the date of termination to the date of reinstatement;
(iii)the respondent, James Cook University, pay to Dr Brian Joseph Chambers the remuneration lost by him because of the termination of his employment.
I certify that this and the preceding forty-six (46) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 25 August 1995
Counsel for the applicant : Mr D. R. Cooper
instructed by : Suthers & Taylor
Counsel for the respondent : Dr C. N. Jessup QC and Mr P. Burchardt
instructed by : Mallesons Stephen Jaques
Dates of Hearing : 10-13 April 1995 inclusive
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