D v Charles Sturt University - [2013] FWC 5446

[2013] FWC 5446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

D
v
Charles Sturt University
(U2013/5408)

COMMISSIONER ROBERTS

SYDNEY, 28 OCTOBER 2013

Application for unfair dismissal remedy - alleged serious misconduct involving a student - application dismissed.

[1] This decision concerns an application lodged on 2 January 2013 by Mr D pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Charles Sturt University (CSU or the University). In consideration of the nature of allegations made against Mr D, I have decided not to name him, his representative during the University inquiry or his accuser.

[2] The application was dealt with by a Fair Work Commission Conciliator on 8 February 2013 but the conciliation was unsuccessful. The matter was then set down for arbitration hearing before me in Sydney on 25 June 2013. Final submissions were made in writing and that submission process ended on 6 August 2013.

[3] At the hearing Mr D represented himself and CSU was represented by Mr D Wedgwood, a CSU Employee Relations Officer. Mr M Wilson gave sworn evidence for the University. Mr Wilson is the Director, Workplace Relations and Policy in CSU’s Human Resources Division.

[4] Mr D was last employed by CSU as a Senior Lecturer at the University’s Wagga Wagga NSW campus. His employment was governed by the Charles Sturt University Enterprise Agreement 2010-2012 (the Agreement).

[5] Mr D’s employment at the University commenced in or about February 1991 and was terminated at the initiative of CSU on 21 December 2012 on the ground of alleged serious misconduct arising from an allegedly inappropriate series of actions involving an international student at CSU, Ms Z.

[6] On 29 October 2012, Ms Z was observed by a Ms Logan (a CSU cleaner) to be in a distressed state. Ms Z had reported that a University staff member “had tried to touch her and kiss her”. Ms Logan took Ms Z to see Mr D Seymour (Administrative Assistant). During Ms Z’s discussion with Mr Seymour, she handed him a piece of paper on which she had written the name of the staff member concerned. Ms Logan was not informed of that name. Mr Seymour then informed Ms J Head, Residential Life Co-ordinator. On 30 October 2012, Ms Head accompanied Ms Z to a counselling session during which it was agreed that Ms Z would formally report the alleged incident. A formal complaint then led to an interview between Ms Z and Mr A Crowl, a CSU Employee Relations Officer, on 30 October 2012. Ms Head attended that meeting also.

[7] In evidence are the notes Mr Crowl took concerning his interview with Ms Z on 30 October 2012. Those notes recorded Ms Z’s version of events on 26 and 29 October 2012:

“[Ms Z] took an exam in his subject recently and due to the friendship she had developed with him she felt it was okay to visit him last Friday 26 October and ask how she went. [Mr D] indicated to [Ms Z] that she had done very well, which made her feel very happy.

When [Mr D] told [Ms Z] that she had passed the exam she was very excited and gave him a hug, which she said was purely a friendship hug because she was so excited to hear she had done well in the exam.

They talked very widely on the Friday and [Ms Z] felt very comfortable with him, as he had a wide knowledge of Chinese heritage and culture.

[Ms Z] visited him again on the Monday and agreed to go to lunch with him when he asked. [Ms Z] did feel that he seemed very happy on the Monday, but in a way that was different to his normal behaviour.

[Ms Z] was of the opinion that lunch would be on the campus or possibly in town. She had no idea the lunch would be out of town or a picnic.

[Mr D] firstly took [Ms Z] to the winery where he offered to buy her a bottle of wine, which surprised her and she declined. [Ms Z] eventually paid for the wine herself.

After the visit to the winery [Mr D] took her on a drive to Marrar where they had a picnic - it appeared strange to [Ms Z] that [Mr D] was so well prepared for the picnic.

The picnic was nice, but as a foreigner she was unsure if it was correct to be having a picnic with a lecturer. [Ms Z] was worried about comments that [Mr D] was making like ‘I’m older than your boyfriend, but I have a young body’. In addition to these comments [Mr D] often commented to [Ms Z] that she ‘was a very traditional Chinese beauty’.

When they were about to leave he leant against the car in a manner that was making [Ms Z] feel uncomfortable.

[Mr D] then grabbed [Ms Z]’s hand and took her behind some bush where he asked her for a hug and although uncomfortable she let him hug her. [Ms Z] said that this hug wasn’t like the first hug and he touched her inappropriately.

During the hug [Mr D] kissed her on the neck and then asked if he could kiss her on the lips. [Ms Z] the [sic] pushed him away, walked away and asked to be taken home.

[Mr D] pursued her even as she walked away and tried to kiss her again.

[Mr D] brought up the original hug and the feelings this brought out in him. [Ms Z] was concerned about this because the original hug was not sexual in nature, but was done in excitement and was just between friends. Due to the age difference and his role as an academic [Ms Z] thought she was completely safe with [Mr D] and was disgusted and sickened by his actions.

[Mr D] was very uncomfortable on the way home and when he could see that [Ms Z] was upset asked her if there was anyone she would like to contact. [Mr D] then said to [Ms Z] that he didn’t think she would get any phone coverage where they were.

[Ms Z] was concerned that [Mr D] asked her what her plans were and seemed to have a good knowledge of where she worked and when she worked. [Mr D] also asked if there were any other people in the college where she stayed.

[Ms Z] mentioned on numerous times how much respect she had for [Mr D] prior to the incident and that he was very honourable in his dealings with her. [Mr D] even did individual emails to [Ms Z] asking her if she needed assistance in any matters.

[Ms Z] had enjoyed her experience at CSU greatly and this incident had sickened and disgusted her and changed her whole experience at the University.”

[8] Mr Crowl’s report then came to the attention of the Vice-Chancellor, Professor A Vann. Professor Vann wrote to Mr D on 31 October 2012 particularising the allegations against him:

“Dear Mr [D]

Re: Alleged Serious Misconduct

I am writing to you in relation to alleged serious misconduct on your part arising from an incident involving a female student [Ms Z] that allegedly occurred on Monday 29 October 2012.

The student has alleged that you behaved in an inappropriate way by making unwelcome sexual advances towards her.

I believe the alleged conduct on your part, if proven, amounts to serious misconduct. ‘Serious misconduct’ is defined in clause 3 of the Charles Sturt University Enterprise Agreement 2010-2012 as including ‘sexual harassment’.

The complaint referred to an incident which arose in the context of an alleged inappropriate relationship between yourself and a female international student. The allegations of serious misconduct made against you are detailed as follows:

Allegation 1

That you have breached the University’s Code of Conduct for Staff, in particular sub-clause 1.2(a), which specifies that staff must maintain appropriate standards of conduct.

The particulars of this allegation are:

(a) The student alleges that you invited her to lunch on 29 October 2012. The student stated that she believed this lunch would take place on the University campus but when she met you as arranged you took her in your car to a location at some distance from the campus for a picnic. The student alleges that prior to going to the picnic location you took her to the University winery and offered to buy her wine, which she declined.

(b) She alleges that after finishing lunch you grabbed her by the hand and took her behind bushes where you asked her for a hug and when she did, you kissed her on the neck, touched her inappropriately and attempted to kiss her on the lips. The student alleges that even after she pushed you away and stated that she wanted to go home, that you pursued her and tried to kiss her again. It was only at this time did you stop your unwanted advances.

(c) Following this incident you drove the student back to the Wagga campus where she was observed to be in a distraught state and made the allegations about your behaviour to a member of the University’s staff.

(d) The student claims that because of the academic relationship and the relative age difference she had no prior concern about the nature of your relationship with her.

Allegation 2

That you have breached the University’s Code of Conduct for Staff, in particular sub-clause 4(c), which specifies that staff must engage in conduct which is professional and which does not bring the University into disrepute.

The particulars of this allegation are the same as for Allegation 1.

Allegation 3

That you have breached the University’s Code of Conduct for Staff, in particular sub-clause 4(d), which specifies that staff must treat students with courtesy, and with respect for their rights.

The particulars of this allegation are the same as for Allegation 1.

Allegation 4

That you have breached the University’s Code of Conduct for Staff, in particular clause 5.2, which specifies that harassment is unacceptable behaviour, and clause 5.3, which specifies that staff must comply with University policies and procedures pertaining to harassment and ensure that their own conduct contributes to an environment free of harassment.

‘Harassment’ is defined in clause 3.1 of the University’s Policy on Prevention of Harassment and Bullying, as ‘unwelcome behaviour that makes a person feel offended, belittled, intimidated or apprehensive and that a reasonable person, taking into account all the circumstances, would expect to cause offence, intimidation or apprehension.’ The University’s Guidelines on Prevention of Harassment and Bullying, further define ‘sexual harassment’ as including unsolicited, unwelcome attention of a sexual nature that is demeaning, compromising, embarrassing or distressful to the recipient’ (clause 6.1).

The particulars of this allegation are the same as for Allegation 1.

Allegation 5

That you have breached the University’s Code of Conduct for Staff, in particular clause 14, which specifies that staff must take responsibility for their own behaviour in respect of actual, potential or perceived conflicts of interest. This clause refers to the Conflict of Interest Procedure which, in clause 5.1, specifically provides that:

A conflict of interest arises where an employee is involved in a close, personal, romantic or sexual relationship with a student in relation to whom the employee has academic or administrative responsibilities.

The particulars of this allegation are:

The student involved is enrolled in a course taught by you and her allegations suggest that an inappropriate close, personal relationship has developed and that by your alleged conduct on 29 October 2012 you attempted to initiate a sexual relationship with the student.

Allegation 6

That you may have breached s28F of the Sexual Discrimination Act 1984 (Cth) which provides that it is unlawful for a member of the staff of an educational institution to sexually harass a person who is a student at the institution and that as your employer, under s 106 of the Sex Discrimination Act, the University may be held vicariously liable for any unlawful conduct.

The particulars of this allegation are the same as for Allegation 1.

I believe the above allegations would, if proven, constitute serious misconduct on your part, and may involve criminal offences. I am reserving the right to refer this matter to the police for investigation.

In accordance with Clause 38 - Misconduct/Serious Misconduct of the Charles Sturt University Enterprise Agreement 2010-2012, I require you to provide a written response to these allegations by close of business on 14 November 2012 (i.e. ten (10) working days from today’s date).

The above allegations are serious and have the potential to blemish the good name and reputation of the University. Accordingly, I am invoking my authority to suspend you from duty without pay and exclude you from the University Campus until such time as I can consider your response to the allegations. You are directed to not make any contact with the student during your suspension from duty.

I am dealing with this matter in accordance with the Clause 38 - Misconduct/Serious Misconduct of the Charles Sturt University Enterprise Agreement 2010-2012. A copy of that clause is attached as Appendix 1 for your information. Copies of the other provisions cited in this letter are attached as Appendix 2 for your information.

If you have any enquiries regarding this matter please contact Mr Mal Wilson, Director Workplace Relations on [numbers omitted] in the first instance.

I await your reply to these allegations by 14 November 2012.” 1

[9] Clauses 38 and 39 of the Agreement provide:

“38 MISCONDUCT/SERIOUS MISCONDUCT

38.1 An allegation of misconduct should normally be resolved through conciliation or mediation between the employee against whom the allegation has been made, and his or her supervisor.

38.2 Where it is not appropriate for an allegation of misconduct to be resolved pursuant to sub-clause 38.1, or where an allegation has not been resolved pursuant to that sub-clause, the supervisor of the employee against whom the allegation has been made shall provide a report to the Vice-Chancellor.

38.3 All allegations of serious misconduct shall be reported to the Vice-Chancellor.

38.4 Where the Vice-Chancellor believes that, following consideration of a report made pursuant to either sub-clause 38.2 or 38.3, an allegation(s) warrants further investigation, the Vice-Chancellor shall:

(i) notify the employee in writing and in sufficient detail to enable the employee to understand the precise nature of the allegations and to properly consider and respond to them; and

(ii) require the employee to submit a written response within ten (10) working days.

38.5 The Vice-Chancellor may suspend an employee with or without pay pending completion of an investigation into possible misconduct/serious misconduct by an employee. The employee may be given approval to draw on any annual or long service leave credits for the duration of a suspension without pay, unless the allegation of misconduct/serious misconduct relates to the misappropriation of University funds or assets. The Vice-Chancellor may at any time lift the suspension without pay on the grounds of financial hardship.

38.6 Where suspension without pay has been imposed, and the matter is subsequently referred to a formal review pursuant to sub-clause 38.10, the Vice-Chancellor shall ensure that the investigator or committee determines at its first meeting whether suspension without pay should continue.

38.7 Where an employee has been suspended without pay pending the decision of the Vice-Chancellor, then any lost income shall be reimbursed if there was no serious misconduct or if the Vice-Chancellor so decides.

38.8 Following consideration of an employee’s written response to the allegations made against him or her, the Vice-Chancellor shall advise the employee in writing of his or her decision with respect to further pursuing disciplinary action.

38.9 Where an employee fails to provide a response to the allegations made against them, or admits to the allegations in full, and the Vice-Chancellor has reasonable grounds to believe that the employee’s conduct constitutes misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action in accordance with sub-clause 39.2 of this Agreement.

38.10 If an allegation is denied in part or in full, the Vice-Chancellor shall institute a formal inquiry pursuant to sub-clauses 38.11 to 38.15 below, unless the Vice-Chancellor decides to take no further action or to counsel or censure the employee for unsatisfactory behaviour and take no further action.

38.11 Where a matter is referred to a formal review pursuant to sub-clause 38.10, the Vice-Chancellor shall appoint an independent investigator to conduct the inquiry.

38.12 In cases of academic serious misconduct, the affected employee or the Vice-Chancellor may choose at the time that the allegations are responded to, to establish a Review Committee to substitute for the single investigator. Where such a committee is established, it will comprise the following membership:

(i) an independent Chairperson selected by the Vice-Chancellor from a list of chairs agreed between the parties to the Agreement;

(ii) one (1) person from within the University, selected by the Vice-Chancellor; and

(iii) one (1) person from within the University, selected by the Branch President of the relevant union for Charles Sturt University.

38.13 The terms of reference of the independent investigator are to report solely on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.

38.14 The investigator shall not include in the report any course of action which the Vice-Chancellor may consider or follow in relation to the allegations referred to the investigator pursuant to subclause 38.10, or record any findings or decisions where those allegations constitute misconduct or serious misconduct.

38.15 In conducting a formal review, the investigator/committee shall:

(i) provide an opportunity for the employee to be interviewed and to ensure that he or she has adequate opportunity to answer any findings, allegations, statements or submissions. The investigator/committee may take into account such further materials as it believes appropriate to substantiate or otherwise the facts in dispute;

(ii) interview any person it thinks fit to establish the facts of the particular case;

(iii) conduct all interviews in the presence of the employee or the employee’s advocate and the Vice Chancellor and his or her advocate;

(iv) conduct proceedings in camera (unless otherwise agreed by the employee and the Vice Chancellor);

(v) take into account such further material as it believes appropriate to the case;

(vi) ensure that the employee and his or her advocate and the Vice Chancellor and his or her advocate have the right to ask questions of interviewees, and make submissions. They shall have the right to present and challenge evidence;

(vii) keep a record of proceedings; and

(viii) provide a report, together with a record of proceedings, to the Vice-Chancellor and the employee within ten (10) working days of completion of the proceedings.

39 SUBSEQUENT ACTION BY VICE-CHANCELLOR

39.1 On receipt of the report pursuant to sub-clause 38.15 (viii), the Vice-Chancellor shall give consideration to the findings on the facts related to the alleged misconduct or serious misconduct and advise the employee in writing of his or her decision with respect to further pursuing disciplinary action.

39.2 Where the Vice-Chancellor is of the view that the conduct or behaviour of the employee does constitute misconduct, the Vice-Chancellor may take disciplinary action which may include; counselling; formal censure; withholding of a salary step; demotion by one or more salary steps; demotion by one or more classification levels; and in the case of serious misconduct, termination of employment.

39.3 This clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of an employee, or former employee, when required in the public interest (eg inquiring into the truth of research results).”

[10] Clause 3 (Definitions) of the Agreement also relevantly provides:

“Serious misconduct shall mean and refer to:

(i) serious misbehaviour or improper conduct of a kind that constitutes a serious impediment to the carrying out of an employee's duties or to an employee’s colleagues carrying out their duties;

(ii) serious dereliction of the duties required of the academic office or position held by an employee;

(iii) conviction by a Court of an offence which constitutes a serious impediment of the kind referred to in paragraph (i) hereof;

(iv) theft, bullying, assault or sexual harassment; and/or

(v) repeated and/or persistent misconduct of a more serious nature.”

[11] On 1 November 2012, Mr D replied to Professor Vann. On 4 November 2012, Mr D again wrote to Professor Vann, on this occasion substituting a letter dated 4 November 2012 for his earlier letter of 1 November. The 4 November 2012 letter said:

“Dear Vice-Chancellor

Re: Alleged Serious Misconduct

I refer to your letter dated 31 October 2012 detailing of a number of allegations, to which I offer the following responses.

Relevant background information

Student [Z] came to see me in my office on the afternoon of Thursday 25 October. She was in an agitated state because she thought she might have failed an examination paper [reference omitted], which she had taken the previous day. I had by then marked all the exam scripts. (The examination comprised 70 multiple-choice questions.)

I knew that the student had passed the exam, but advised that I was unable to discuss the matter. The student then became more agitated and started to weep. I then indicated that she had nothing to worry about. Shortly thereafter the student embraced me. Such behaviour was unprecedented in my experience. I assumed it was a spontaneous expression of relief, but at the same time felt embarrassed and confused, and also concerned about being placed in a potentially compromising situation.

I gave the student a clean handkerchief with which to wipe her tears. She gradually became more composed and apologised for her behaviour before leaving my office in a composed state.

I note that the foregoing matters, which are pertinent to subsequent events, are not mentioned in your letter.

Allegation 1

The student came to see me in my office at approximately 11:35 am on Monday 29 October to return my handkerchief. I had forgotten about the handkerchief and had not expected to see the student again. There was no prior arrangement for her to see me. I had not invited her to lunch that day, or any other day. The student sat on my visitor’s chair and started a conversation. There was nothing in particular that I wished to discuss, but I was aware that she would soon be returning to China and asked whether she had considered taking CSU wine as a gift from Australia for family members. (I asked because I knew that CSU wine is a popular gift among returning overseas students.) The student indicated that she thought that was a good idea, but was unknowledgeable about Australian wine. I suggested that our winery staff would be able to assist her.

Our winery has a new cellar door outlet, which I had been planning to visit. As a gesture of goodwill, I suggested that, if the student wished, I could accompany her to the winery and use my staff discount on her behalf. My general rule is not to socialise with enrolled students. I was prepared to make an exception on this occasion as Session 2 had finished a few days before. All subject grades had been finalised and submitted. The student had completed her course (and I assumed was therefore no longer enrolled) and I could see no possibility of actual, potential or perceived conflicts of interest.

The student accepted my offer and we drove to the CSU Winery. The student selected some wine, which I initially offered to pay for in order to use my staff discount. I asked the winery staff member whether students were entitled to any discount. When I was informed that students were entitled to the same discount as staff I withdrew my offer and the student paid for the wine. These facts can be confirmed by the winery staff member. I note that the fact that the student purchased wine, which was the only reason for our visit to the winery, is not mentioned in your letter.

My intention had been to return alone to my office to have lunch, but as I was placing the wine in the back of my car I noticed that my lunch cooler-bag was still there. On the spur-of-the-moment I asked the student if she would like to go for a short drive to see some more countryside and, if she wished, share a sandwich. I was an unpremeditated suggestion, driven by unforeseen circumstances and readily accepted by the student; not a planned ‘picnic’ as alleged.

We drove to Marrar, which is a short drive from the University. When we arrived we shared my sandwich at a local BBQ facility and afterwards visited the shop across the road where I bought a small bottle of orange juice for the student and an ice-cream for myself. On the student’s initiative, we then sat at a table outside the shop and conversed for a few minutes before returning to my car. I opened the passenger door and the student briefly embraced me before getting into the car. The embrace was similar to the one she had given me in my office a few days before and I assumed was simply an expression of appreciation. At no stage did I grab her hand, take her behind bushes, kiss her, or attempt to kiss her. There were no unwanted or inappropriate advances on my part. [It is possible that this version of events can be corroborated by the shopkeeper. We were the only people outside the shop and there is a clear view across the road from the shop to where my car was parked.]

On the drive back to the University the student continued conversing with me in an amicable manner. She suggested that if ever I visited the restaurant where she worked she would ensure that I got a good deal. She never showed any signs of being in a distraught state. I had intended to return directly to the car-park, but at the student’s request dropped her off at the Mini-Market. She still showed no signs of being in a distraught state, and thanked me as I handed her the wine. The time was then approximately 1 pm.

I deny that I have breached sub-clause 1.2(a) of the University’s Code of Conduct for Staff.

Allegation 2

I deny that I have breached sub-clause 4(c) of the University’s Code of Conduct for Staff.

Allegation 3

I deny that I have breached sub-clause 4(d) of the University’s Code of Conduct for Staff.

Allegation 4

I deny that I have breached clause 5.2 or clause 5.3 of the University’s Code of Conduct for Staff.

Allegation 5

I deny that I have breached clause 14 or clause 5.1 of the University’s Code of Conduct for Staff. I have never been involved in a close, personal, romantic or sexual relationship, and have never attempted to initiate any such relationship, with student [Z]. My relationship with the student, as with all students, has always been professional. I always conduct myself in accordance with the University’s Code of Conduct for Staff. Student [Z] sought my advice on approximately two occasions about enrolling in a Master’s course in Australia. She asked me to provide her with a reference, which I did. In those respects the student was a little more demanding than other students of my time and resources, but there was never any inappropriate close, personal relationship.

Allegation 6

I have never breached s28F of the Sex Discrimination Act 1984 (Cth).

In conclusion, I submit that all the allegations of serious misconduct detailed in your letter are false. Accordingly, I request that you allow me to return to normal duties after giving the foregoing responses due consideration. Alternatively, I request that my salary be reinstated, pending resolution of this matter.

I have been a diligent employee of the University for nearly 22 years. I am a recipient of our Faculty’s Award for Teaching Excellence and have consistently contributed to the University’s scholastic reputation through publications and presentations of conference papers. I have research planned for the coming session, which I would like to return to as soon as possible.” 2

[12] On 7 November 2012, Professor Vann appointed Emeritus Professor Helen Gamble pursuant to clause 38.11 of the Agreement to examine the allegations against Mr D. Professor Vann’s letter to Professor Gamble relevantly said:

“I refer to discussions between yourself and Mr Mal Wilson, Director, Workplace Relations, with respect to undertaking a formal inquiry for Charles Sturt University in relation to serious misconduct allegations made against an employee of the University, Mr [D].

Pursuant to subclause 38.11 of the Charles Sturt University Enterprise Agreement 2010-2012 (see Appendix), you are hereby appointed as the independent investigator in this matter.

In conducting the formal review, I draw your attention to subclauses 38.13 through 38.15 of the Enterprise Agreement, notifying you of the terms of reference.

Please note that the student making the allegations, Ms [Z] is an international student and is due to leave Australia to return to China on 24 November 2012 so this matter needs to be treated with urgency.

Please also note that in accordance with subclause 38.15(iii), I have nominated Mr Wilson as my advocate to assist in the proceedings.

You will find attached copies of the following documents to assist you with your formal review:

(i) Notes of interview with Ms [Z] dated 30 October 2012;

(ii) Allegations letter to Mr [D] dated 31 October 2012; and

(iii) Mr [D]’s response to the allegations dated 4 November 2012.” 3

[13] On the same day, Professor Vann wrote to Mr D in the following terms:

“I am in receipt of your response dated 4 November 2012 in relation to allegations of serious misconduct put to you in my correspondence of 31 October 2012.

I have carefully considered your response to the allegations, noting your denial of most of the allegations other than having lunch with the student off Campus.

In light of the above, and in accordance with subclause 38.10 of the Charles Sturt University Enterprise Agreement 2010-2012, I now advise that I will be instituting a formal inquiry pursuant to subclauses 38.10 to 38.15 of the Enterprise Agreement. A copy of Clause 38 - Misconduct/Serious Misconduct of the Enterprise Agreement is in the Appendix to this letter.

I have appointed an independent investigator pursuant to subclause 38.11 of the Charles Sturt University Enterprise Agreement 2010-2012. The University has engaged the services of Professor Helen Gamble to conduct the formal review.

Professor Gamble will be conducting the formal review pursuant to subclauses 38.13 to 38.15 of the Enterprise Agreement (copy attached).

In conducting the formal review, Professor Gamble will be in contact with you to provide you with an opportunity to be interviewed and to ensure that you have adequate opportunity to answer any findings, allegations, statements or submissions prior to her report being forwarded to me.

Once I am in receipt of Professor Gamble’s report, I shall give consideration to the findings on the facts related to the alleged serious misconduct. Should I be of the view that your conduct or behaviour does constitute serious misconduct, I may take disciplinary action which may include, but is not limited to, termination of employment.

Until this matter is finalised, you remain suspended from duty without pay.

Should you have any enquiries, please direct them, in the first instance, to Mr Mal Wilson, Director Workplace Relations, on [numbers omitted].”

[14] On or about the same date, Mr Wilson wrote to Mr D in the following terms:

“I refer to the Vice-Chancellor’s letter to you dated 6 [sic] November 2012 concerning the appointment of Professor Helen Gamble as independent investigator pursuant to subclause 38.11 of the Charles Sturt University Enterprise Agreement 2010-2012 to conduct the formal review.

As indicated in that letter the formal review will be conducted in accordance with clause 38.15 of the Enterprise Agreement. Under that clause you are entitled to attend all interviews and/or have an advocate attend on your behalf, ask questions of interviewees and make submissions. You also are entitled to present and challenge evidence.

The independent investigator will be travelling to Wagga Wagga next Tuesday 13 November 2012 to conduct interviews and you are requested to be available on that date to participate in the formal review.

The schedule for the independent investigator’s attendance in Wagga Wagga is being coordinated by Mr Andrew Crowl, Employee Relations Officer. Mr Crowl will contact you to confirm the details of the timing and location for the formal review. Should you have any enquiries, please direct them, in the first instance, to Mr Crowl on [numbers omitted].”

The Gamble Inquiry

[15] Mr D wrote to Professor Gamble on 12 November 2012 denying the allegations against him. Essentially, Mr D’s letter was an expansion of parts of his letter to Professor Vann on 4 November 2012. I have paid regard to the material in Mr D’s letter of 12 November 2012.

[16] In her inquiry, Professor Gamble conducted interviews on 13 November 2012 in Wagga Wagga. Mr D was represented by Mr B and the University by Mr Wedgwood. Mr Crowl acted as secretary to the inquiry. Interviewees were Ms Z (to some extent assisted by an interpreter), Mr D, Ms K Murrell-Orgill, a CSU student counsellor, attended as a support person for Ms Z. Ms Logan and Ms Head were also interviewed. Ms Z’s interview was conducted with her in a separate room linked by a telephone conference line to Mr D and Mr B. Professor Gamble also paid regard to a number of documents, those being the Vice-Chancellor’s letter to Mr D of 31 October 2012, Mr Crowl’s notes of his meeting with Ms Z on 30 October 2012, a statement by Ms Logan, a statement by Ms Head, Mr D’s letter to the Vice-Chancellor of 4 November 2012, Mr D’s letter to Professor Gamble of 12 November 2012 and photographs of the picnic area taken by Mr D. The University said that it was agreed between the parties that Professor Gamble would not consider a statement from Mr Seymour or Mr D’s letter to the Vice-Chancellor of 1 November 2012. Mr D disputes that any agreement existed in relation to the Seymour statement.

[17] Professor Gamble also received submissions from Mr B on behalf of Mr D dated 19 November 2012, a submission from Mr Wedgwood dated 23 November 2012, a response to Mr Wedgwood’s submission by Mr B dated 29 November 2012, a further submission from Mr Wedgwood dated 30 November 2012 and photographs of the picnic area submitted by Mr Wedgwood.

[18] I have paid regard to all of the evidence, submissions and materials which were before Professor Gamble during her inquiry.

[19] Professor Gamble produced her report (the Gamble Report) on or about 9 December 2012. In a covering letter to Professor Vann, Professor Gamble set out the allegations against Mr D and her findings. In that regard, the letter to Professor Vann relevantly said:

“I am satisfied that all the facts contained in the particulars have been accurately reported by the student involved, Ms [Z]. I have accepted most of the evidence given by Ms [Z] and have rejected most of the denials made by Mr [D]. I interviewed Ms [Z] and Mr [D] on 13 November 2012 and found Ms [Z] to be an honest witness who, on most occasions, had a reliable recollection of events.

I believe that for the most part Ms [Z] acted properly throughout the events of 24-29 October 2012 while Mr [D] did not.

However, because I do not find Mr [D] to have planned any of the events that occurred, I have been unable to make a positive finding of fact in relation to the particulars supporting Allegation 5. I consider Mr [D] to have acted on whim, taking advantage of opportunities as they presented themselves. He made unwise decisions which he is unable to explain satisfactorily. Mr [D] frightened Ms [Z] but did not intend to harm her.

Thank you for asking me to investigate these matters. I trust that my findings will assist you to make decisions under cl.39 of the CSU Enterprise Agreement.”

[20] Professor Gamble adopted the test in Briginshaw v Briginshaw 4 (Briginshaw)in relation to the conduct of her inquiry and her ultimate findings. In Briginshaw, Dixon J said that:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.” 5

[21] Dixon J, after a consideration of extensive case law, went on to say: “... it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain.” 6

[22] A Full Bench of the Commission in Budd v Dampier Salt Limited 7 considered the Briginshaw test. The Full Bench said:

“So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: ‘The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.’ In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore, it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities.” [citations omitted]

[23] After receiving the Gamble Report, Professor Vann wrote to Mr D on 12 December 2012. In that letter Professor Vann said that he had considered the Report and had “formed the opinion that the facts support Allegations 1-4 and 6 made against you in my correspondence to you dated 31 October 2012. I believe that you are guilty of serious misconduct.” Professor Vann then offered Mr D a further opportunity, prior to the taking of disciplinary action, to advise him of any mitigating circumstances. Mr D was required to do so by 20 December 2012.

[24] Mr D replied to Professor Vann on 18 December 2012. In that reply, Mr D set out, in both the letter itself and an appendix thereto, his belief “that the findings of the inquiry may be unsound and that actions taken in reliance of those findings might be unsafe.” The letter went on to say that the failure to uphold Allegation 5 “substantially reduces the seriousness of perceived misconduct.” Mr D’s letter went on to say:

“I submit that the incident, denied by me but supported by findings of the inquiry, which led to allegations of serious misconduct was an unintended and unforeseen consequence of a series of unfortunate, yet innocent, whims on my part; as follows: (1) giving my handkerchief to the student when she shed some tears while in my office; (2) offering to take the student to the CSU winery so that she could buy a gift pack of wine to take back to China; and (3) offering to take the student for a short drive in my car for the purpose of viewing some beautiful Australian countryside and providing an opportunity for us to share my packed lunch and enjoy convivial conversation in a tranquil setting.

None of those actions had any evil intent. I regarded each as an act of kindness and/or a gesture of goodwill. Nevertheless, an alternative view is that none of those actions was accompanied by a rational consideration of possible consequences and/or interpretations. In brief, they were unwise.

I regret that such impulsive behaviour is most likely due to the fact that I suffer from a mild form of Asperger Syndrome (AS). In normal circumstances I display none of the symptoms of AS, apart from an occasional tendency to converse in monologues. I suspect that the series of impulsive actions in question was triggered by feelings of mild euphoria, brought on by the fact that I had just finished marking all my exam papers and was looking forward to a break from teaching and an opportunity to continue with some interesting research projects.”

[25] Mr D went on to set out details of his career at the University and his involvement in local community associations. He also requested Professor Vann “take into consideration my age, my intention to retire within the next two or three years, and the extreme financial hardship I would suffer should the disciplinary action take the form of termination of employment. In that event I would be unable to recoup lost income from other sources. I submit that the forfeiture of two or three hundred thousand dollars would be too harsh a penalty.”

[26] The appendix to Mr D’s letter of 18 December 2012 set out in great detail the alleged deficiencies in the inquiry conducted by Professor Gamble. I have paid careful attention and regard to that material, some of which is set out in summary form elsewhere in this decision.

[27] On 21 December 2012, the Acting Vice Chancellor, Professor S Thomas again wrote to Mr D. The letter said:

“Further to the Vice-Chancellor’s correspondence dated 12 December 2012 in which he found you to be guilty of serious misconduct, I now write to advise you of my decision with respect to disciplinary action in accordance with subclause 39.2 of the Charles Sturt University Enterprise Agreement 2010-2012.

You were extended an opportunity to advise me of all matters on which you may seek to rely as mitigating circumstances. I am in receipt of your response dated 18 December 2012 and have considered it carefully.

There were six (6) allegation of serious misconduct made against you. In summary, the allegations were that you behaved in an inappropriate way towards a student by making unwanted sexual advances to her. These allegations were supported by five (5) Particulars.

An Independent Investigator, Professor Helen Gamble, was appointed to conduct a formal inquiry into this matter. The terms of reference for the investigator were to report solely on the facts relating to the alleged serious misconduct, including whether any mitigating circumstances were evident. This was in accordance with Clause 38.15 of the Enterprise Agreement.

Professor Gamble conducted a comprehensive investigation during which interviews were conducted in Wagga Wagga with yourself, the student [Ms Z], a member of the University’s cleaning staff [Ms Logan] and the Residence Life Co-ordinator [Ms Head]. Professor Gamble provided you with the opportunity to present evidence and make written submissions. You were also provided with the opportunity to present evidence and make written submissions. You were also provided with the opportunity to make submissions in response to submissions made by the University’s advocate in this matter, Mr David Wedgwood. You were assisted throughout the investigation by your own advocate, [Mr B].

Professor Gamble has reported that all four (4) Particulars in relation to Allegations 1-4 and 6 have been made out to her reasonable satisfaction and represent factual evidence to support the allegation of serious misconduct made against you. Professor Gamble found that the one (1) Particular in relation to Allegation 5 was not made out to her reasonable satisfaction.

Given the definitions contained in Clause 3 of the Enterprise Agreement, specifically the definition of serious misconduct, your behaviour on 29 October 2012 towards a student of this University, in my view, constitutes improper conduct of a sexually harassing nature that frightened and distressed Ms [Z], was inappropriate and unprofessional considering your position as a senior academic at this University and your length of service in such a role, was discourteous and disrespectful of Ms [Z], and was conduct which could bring the University into disrepute.

The Vice-Chancellor is the only officer of the University empowered under Clause 36.2 of the Enterprise Agreement to terminate the employment of staff. I am currently the Acting Vice-Chancellor and have the full authority to exercise the powers of that Office. The power to terminate employment is a responsibility I take very seriously and I would never exercise this power without providing an employee with an opportunity to write to the Vice-Chancellor and put forward any mitigating factors for consideration. I note that in your case the Vice-Chancellor has afforded you that opportunity and has also afforded you repeated invitations to respond to the allegations of serious misconduct. I believe that you have been afforded procedural fairness in this matter as listed below:

(a) You were given an opportunity to provide a response to the allegations of serious misconduct in the Vice-Chancellor’s letter to you dated 31 October 2012 and you did so in your letter dated 4 November 2012 (which replaced your earlier response dated 1 November 2012);

(b) You were advised in the Vice-Chancellor’s letter to you dated 4 November 2012 that an independent investigator had been appointed to report solely on the facts of the matter and that you would be given an opportunity to be interviewed by the investigator;

(c) The investigator conducted interviews in Wagga Wagga on 13 November 2012. Both you and your advocate attended these interviews;

(d) Your advocate made a submission to the investigator on 19 November 2012;

(e) The University’s advocate made a submission to the investigator on 23 November 2012. You were provided with a copy of this submission;

(f) Your advocate responded to the University advocate’s submission on 29 November 2012;

(g) The University’s advocate made a further submission to the investigator on 30 November 2012. You were provided with a copy of this submission;

(h) A copy of the investigator’s report dated 9 December 2012 was hand-delivered to you on 13 December 2012;

(i) The Vice-Chancellor wrote to you on 12 December 2012 providing you with an opportunity to advise on all matters that you may seek to rely upon as mitigating circumstances. This letter was hand-delivered to you on 13 December 2012; and

(j) I received your response on 19 December 2012 and have since spent some considerable time examining the central issues.

Pursuant to subclause 39.2 of the Enterprise Agreement, I have decided to terminate your employment at the University. Your termination will take effect immediately and in accordance with subclause 31.5 of the Enterprise Agreement, you will not receive any notice period.

I require you to return all University property in your possession, including your staff identification card, computer, mobile telephone, credit card and all keys issued to you, to Mr Andrew Crowl at a time no later than close of business on Friday 21 December 2012. Should you require access to your office beyond that time to collect any personal possessions, I request you to liaise with Mr Crowl to arrange such access. Mr Crowl can be contacted on [numbers omitted].

I have directed that any outstanding monies owed to you, in respect of Annual and Long Service Leave be paid to you as soon as possible. These monies will be deposited into your nominated bank account.”

Evidence

Mr D

[28] Mr D elected not to give sworn evidence. I will return later in this decision to this matter.

Mr Wilson

[29] Mr Wilson gave sworn evidence and submitted a witness statement 8 In summary, it was his statement that he has held his current position since April 2004 and is responsible for the conduct of disciplinary procedures in accordance with Part 7 of the Agreement.

[30] Mr Wilson went on to say that after he was advised of Ms Z’s complaint, he obtained statements from her and relevant CSU staff. It was also his role to make the necessary arrangements for Professor Gamble’s investigation and to inform Mr D of those arrangements.

[31] Mr Wilson’s statement went on to set out a basic timeline of events leading up to the termination of Mr D’s employment.

[32] In cross-examination, Mr Wilson:

● Agreed that he had input into the drafting of Professor Vann’s letter of 31 October 2012. 9

Denied that “the inquiry process was prejudiced from the outset”. 10

Said that he believed the University had acted in accordance with the Agreement. 11

● Said that, while Mr D was not present when Ms Z was interviewed by Professor Gamble: “My understanding is that that was an agreed position, as I have indicated, between the two advocates and the internal investigator. My understanding was that yourself and your advocate moved to an adjoining room, that you were linked into the student’s evidence via a teleconference and that when she completed her evidence you physically rejoined the inquiry.” 12

Disagreed that Mr D was denied natural justice during Professor Gamble’s inquiry. 13

Agreed that Ms Z did not make a written complaint but went on to say that Ms Z gave evidence for the inquiry and was open to cross-examination by Mr D’s representative. 14

Said that he did not personally interview Ms Z.

Was extensively questioned about the process adopted by Professor Gamble in her inquiry and the outcome of that inquiry.

Outline of Applicant’s argument

[33] The Applicant filed an outline of his argument prior to the arbitration. 15

[34] In his written outline, Mr D dealt with the history of this matter and the conduct of the Gamble Inquiry. Most of that material is mentioned elsewhere in this decision.

[35] The outline goes on to claim that: “Mr Wedgwood persistently behaved in a manner inimical to me, with limited regard for due process, or for the accuracy of matters of fact or the reasonableness of matters of opinion he submitted to the inquiry. His two submissions to the inquiry ... demonstrate an extreme bias in favour of the complainant [Ms Z] and against me, which tainted the inquiry process and was clearly intended to sway the outcome against me.”

[36] In relation to the Gamble Inquiry, Mr D argued that Professor Gamble did not follow the provisions of clause 38.15(iii) of the Agreement when she allowed Ms Z to give her evidence from a separate room. “We were disadvantaged by being unable to observe [Ms Z]’s body language, particularly hand gestures, while she was being interviewed. It was also sometimes difficult to hear and/or understand what [Ms Z] was saying.”

[37] “Subclause 38.15(vi) of the Agreement states that the employee and his or her advocate have the right to challenge evidence. That right was substantially restricted by the investigator’s directive that only my advocate should question the complainant during the hearing of evidence. The right to challenge evidence was also effectively denied in relation to evidence submitted by Mr Wedgwood, and admitted by the investigator, after the hearing of evidence.”

[38] The Applicant went on to say that Professor Gamble also did not comply with the terms of reference set out at clause 38.13 of the Agreement.

[39] “I submit that the University has no discretion to conduct inquiries into allegations of misconduct or serious misconduct other than in accordance with due processes prescribed in the Agreement, which is a contract between the University and its employees. Actions taken by the University in breach of that contract should not be allowed to disadvantage its employees.”

[40] Mr D went on to claim that he was denied natural justice by being denied an opportunity to question Ms Z as to what factors may have influenced her decision to pursue the allegations against him. He went on to claim that part of the alleged events between him and Ms Z was fabricated by Professor Gamble “thereby perverting the course of justice and precipitating unjust outcomes to her inquiry.”

Applicant’s final submissions

[41] Mr D filed his final submissions in writing. Mr D argued that it was Ms Z who had behaved inappropriately during two visits to his office and that, by contrast, his behaviour had been entirely appropriate. His submissions went on to argue in some detail that the Gamble Inquiry was not conducted in accordance with the Agreement and that in this regard the evidence of Mr Wilson is of no utility.

[42] Mr D went on to argue that “no inference is to be drawn from the fact that I have chosen to exercise my right not to appear as a witness.” In any event, the Commission is not obliged to follow the Jones v Dunkel 16 rule. Mr D goes on to submit that an adverse inference should be drawn from the failure of the University to produce Ms Z and Professor Gamble as witnesses. In relation to the question of reinstatement, Mr D submitted that on the facts before me, he was entitled to reinstatement, maintenance of the continuity of his employment and payment of lost remuneration. Reinstatement “cannot be inappropriate simply because another employee of the same employer has an adverse personal opinion about the dismissed employee.” “I submit that should I be reinstated, I would have no difficulty in resuming my former duties. There would be no hard feelings on my part.”

Outline of Respondent’s argument

[43] The University filed an outline of its argument prior to the arbitration. 17

[44] In its written outline, the University dealt with a number of factual matters which are already contained elsewhere in this decision and therefore will not be repeated here.

[45] The outline went on to say: “The University contends that Mr [D]’s dismissal was not harsh, unjust or unreasonable. The termination of the employment of a male academic for inappropriate conduct with a female student for which that academic has some supervisory responsibility in relation to the student’s course of study is standard throughout the higher education sector.”

[46] “The University contends that the inquiry into Mr Mr [D]’s conduct was conducted in accordance with all relevant provisions of the Agreement. Further, the University contends that there are no matters required to be considered under section 387 of the Act that would found a conclusion that this dismissal was harsh, unjust or unreasonable.”

Respondent’s final submissions

[47] The University filed its final submissions in writing.

[48] In its final submissions, the University set out the history of this matter and argued that the dismissal was not harsh, unjust or unreasonable.

[49] The submissions went on to argue that the findings in the Gamble Report provided a valid reason for the termination of Mr D’s employment. The University went on to argue that “the failure of [Mr D] to give evidence must be dealt with in accordance with the principle of Jones v Dunkel in which the High Court said:

“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.” 18

[50] The submissions went on to argue that Ms Z was not available to give evidence as she had returned to China and if Mr D wished to challenge the Gamble Report, he was entitled to call Professor Gamble as a witness.

[51] In relation to the taking of evidence by Professor Gamble from Ms Z whilst Ms Z was in a separate room from Mr D and Mr B, the University argued that this was agreed by both Mr D and Mr B. Mr B did not raise this as an issue in his submissions to Professor Gamble on 19 November and 29 November 2012.

[52] In relation to the admission of a statement from Mr Seymour, the University said that the exclusion of that statement was agreed to by Mr D and Mr B.

[53] In summary, the University argued that the Gamble Inquiry was conducted in accordance with the terms of the Agreement and on a basis which is common in the university sector.

[54] The submissions argued that Mr D’s application should be dismissed in its entirety but in the alternative, argued that reinstatement would be inappropriate because the University has lost all trust and confidence in him. The submissions did not advance any substantive argument relating to potential compensation.

[55] I have also paid regard to the case law cited during proceedings and in written submissions from each party.

Conclusions and Findings

[56] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[57] As Mr D’s conduct on 29 October 2012 was the sole reason for the termination of his employment, I have to determine for myself whether the impugned conduct occurred and, if so, its nature and then, depending on the outcome of my determination of the earlier matters, whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 19:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[58] In Container Terminals Australia Limited v Toby 20, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”21

[59] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 22 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[60] In Qantas Airways Ltd v Cornwall 23, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[61] In Edwards v Justice Giudice 24, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[62] Mr D’s employment was terminated on 21 December 2012 at the initiative of CSU. For the termination, CSU relied upon Mr D’s alleged serious misconduct in his dealings with Ms Z on 29 October 2012. The decision by the Acting Vice-Chancellor to dismiss Mr D without the payment of notice for serious misconduct was reached after consideration by her of the Gamble Report which upheld five of the six allegations against Mr D made by Professor Vann in his letter of 31 October 2012.

[63] As noted above, I must determine for myself whether the impugned conduct by Mr D occurred or not. In this regard, I am not bound to accept the findings by Professor Gamble as final and definitive. However, those findings are of importance given their role in the Acting Vice-Chancellor’s decision to dismiss Mr D.

[64] In deciding Mr D’s application for relief, I have not been assisted by the paucity of sworn evidence in proceedings. The sole witness was Mr Wilson, a person who played only a facilitative role in the Gamble Inquiry. In the usual course of events, I would have expected to receive evidence from the Applicant, Ms Z, Professor Gamble and possibly Mr Crowl. Mr Wedgwood invites me to draw an adverse inference from the failure of Mr D to give evidence. Mr D invited me to draw a similarly adverse inference from the failure of the University to call Professor Gamble. This is commonly known as a Jones v Dunkel point.

[65] A decision of a Full Bench of the Commission in Xiu Zhen Huang v Rheem Australia Pty Ltd 25 summarised the rule in Jones v Dunkel in the following terms:

“The rule in Jones v. Dunkel is a rule of commonsense and fairness in relation to the fact finding process. The rule was considered at length by a full bench of the Commission in Tomayo v Alsco Linen Service Pty Ltd and we respectfully endorse that analysis. The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party’s‘camp’. However, the rule also extends to an unexplained failure to tender documents within the party’s control. A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case or positively favourable to the opposing party’s case. A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party’s evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.” [citation omitted] 26

[66] In the case before me, there has been a total absence of sworn evidence bearing on the events of 29 October 2012, preceding events and the Gamble Inquiry proceedings. Ms Z returned to her home country on or about 24 November 2012 and apparently remains outside Australia. Her absence as a witness is no one’s fault. The failure of Mr D to give evidence on his own behalf was an unfortunate decision by him, but within his rights. 27 In the light of the University’s failure to call evidence from any persons other than Mr Wilson, I do not propose to draw any inference from the failure by either side to call any particular person as a witness. This leaves me with an almost total reliance on written materials, including the Gamble Report.

[67] In relation to the Gamble Inquiry and subsequent Report, I am satisfied that the Inquiry was properly established and conducted in a procedurally fair manner. In particular, I am satisfied that Professor Gamble (a distinguished academic lawyer) went to all necessary lengths to properly inquire into the events in question. Mr D’s objections to the process adopted by Professor Gamble appear to me to have only arisen after the Inquiry was completed. I am satisfied that during the Inquiry, Mr D and/or his representative agreed to the procedures adopted by Professor Gamble. In his submissions to Professor Gamble, Mr B did not raise any substantive procedural issue. I also reject the serious aspersions cast by Mr D on Professor Gamble, her integrity and independence. The aspersions cast by Mr D also only arose after the findings of the Inquiry were released.

[68] From a careful reading of the Gamble Report, I am further satisfied that the findings made by Professor Gamble were open to her on the evidence and materials before her, adopting the Briginshaw standard. The Vice-Chancellor was entitled to rely on Professor Gamble’s findings.

[69] In her Report, Professor Gamble said:

“Proof of the facts alleged depends in large part on acceptance of much of the evidence given by [Ms Z] and rejection of much of [Mr D]’s evidence and of the explanations given by him. This is acknowledged by [Mr B] (Response, 29 November 2012, pp.1-2) and Mr Wedgwood (Submission, 23 November 2012, para. 24).” 28

[70] Professor Gamble was in possession of far more evidence in this matter than I am in that she was able to directly interview Mr D and Ms Z and was able to take account of questions asked by Mr Wedgwood and Mr B. Her account of the sequence of events on 29 October 2012 and the summary conclusions contained in her letter to the Vice-Chancellor of 8 December 2012 do not materially differ from my own assessment. Professor Gamble appears to me to have made every reasonable effort to provide Mr D with procedural fairness and I can discover no instance during her inquiry where his right to natural justice was not respected.

[71] It was certainly open to Professor Gamble to prefer the version of events presented by Ms Z against that presented by Mr D.

[72] I am satisfied that the version of events given by Mr D as to his interactions with Ms Z in his office during the week preceding the 29 October 2012 incident, is credible. Mr D himself stated that he “felt embarrassed and confused, and also concerned about being placed in a potentially compromising situation” when Ms Z embraced him in his office. 29 If that was so, why would he place himself in a possibly much more seriously compromising position by offering to share his lunch with Ms Z and then driving her some 30 kilometres to a park outside Wagga Wagga to do so?

[73] There is nothing to suggest that the allegations made by Ms Z against Mr D arose from any malice on her part. I am satisfied that Ms Z looked upon Mr D as a respected lecturer within the University and thus trusted him. Mr D’s actions towards her on 29 October 2012 were therefore heinous in their effect on Ms Z and potentially on the University’s standing and reputation. Mr D is a man of mature years who has been at the University for some twenty two years, his position and length of service do not mitigate his behaviour, but render it more serious.

[74] I conclude, as did Professor Gamble, that the events that occurred were not planned but Mr D “acted on whim, taking advantage of opportunities as they presented themselves. He made unwise decisions which he is unable to explain satisfactorily. [Mr D] frightened [Ms Z] but did not intend to harm her.” 30 Accordingly, I also agree with Professor Gamble’s decision not to uphold Allegation 5. That allegation is clearly not supported by the facts in this case.

[75] Mr D’s claim in his final submissions that he suffers from Aspergers was never mentioned before that time and is unsupported by any form of medical evidence. Such a claim was never put before Professor Gamble. Accordingly I have not considered his claim of a medical condition in making my decision. I believe that the version of events presented by Ms Z is credible and supported by her statements to Ms Logan, Ms Head and Mr Crowl.

[76] I am not impressed by the argument from Mr D concerning the technical enrolment status of Ms Z on or about 29 October 2012. In my view, when Mr D dealt with Ms Z during October 2012, she was a student in the care of CSU. The argument put forward by Mr D in relation to the enrolment status of Ms Z was typical of a number of nitpicking legalistic points (such as the exact position of bushes in the park) raised by him during both the Gamble Inquiry and in submissions to me, which do nothing to justify or explain the events of 29 October 2012. Mr D needs to face the fact that it is never acceptable for a person in a respected position of authority to behave as he did. His actions on 29 October 2012 were not just ‘unwise’ but betrayed the trust which Ms Z and the University had reposed in him.

[77] All in all, having considered all of the evidence, submissions and documentary material before me, I have concluded and find, on the balance of probabilities, that Mr D behaved in a highly inappropriate manner towards Ms Z on 29 October 2012 and that the findings of the Gamble Inquiry were overall a fair and objective examination of those events. The Acting Vice-Chancellor then had a valid reason to terminate Mr D’s employment for serious misconduct based on the Gamble Report and the earlier report from Mr Crowl which provoked Professor Vann’s letter to Mr D of 31 October 2012 and I so find. Clause 3 of the Agreement defines serious misconduct and there is no doubt that the Gamble Report established such serious misconduct. I have also established to my own satisfaction that Mr D’s behaviour on 29 October 2012 occurred essentially as described by Professor Gamble.

[78] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[79] In Byrne v Australian Airlines 31, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[80] In Parmalat Food Products Pty Ltd v Wililo 32, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 33

[81] The question of valid reason is dealt with above.

[82] It is clear that Mr D was notified of the reasons for the termination of his employment by way of the Acting Vice-Chancellor’s letter to him dated 21 December 2012 and I so find. That letter was set out earlier in this decision. It is further clear and I find that Mr D was given an opportunity to respond to the allegations against him before a decision was made to terminate his employment. Further, it is clear that Mr D was allowed to have a support person/advocate present to assist him during the Gamble Inquiry. Any question of unsatisfactory performance does not relevantly arise in this case.

[83] The size of the employer enterprise is a factor which is likely to have impacted on the procedure followed in effecting the applicant’s dismissal. On what is before me, I conclude that CSU has internal access to professional advice in industrial relations matters and this led it to conducting a procedurally fair process leading up to the dismissal and I so find.

[84] I have also taken into consideration a number of other factors. These include Mr D’s age, his long employment history with the University, his future employment prospects and the economic and personal effects of the termination of employment on him. I have also paid regard to the relevant provisions of the Agreement and the University’s Code of Conduct.

[85] In his application for relief, Mr D alluded to another alleged incident which occurred in 1998 involving himself and an overseas student. During the proceedings before me, both sides dealt with that prior incident. However, when I asked Mr Wedgwood whether the earlier alleged incident was relied upon by the University in its decision to dismiss Mr D, he answered: “... categorically no. It did not influence the university’s decision. I was not aware of the previous incident until after [Mr D]’s employment with the university had terminated.” 34 Mr Wedgwood went on to say that no information concerning the 1998 incident was provided to Professor Gamble.

[86] I wish to make it clear that the 1998 material has played no role in my determination of Mr D’s application for relief.

[87] All in all, I am unable to find the termination of Mr D’s employment was harsh, unjust or unreasonable. Mr D embarked on a course of action on 29 October 2012 that led him to behave in such a manner towards Ms Z that the University was entitled to consider as serious misconduct. Only Mr D knows why he behaved in such a manner but the ultimate result of that behaviour is nobody’s fault but his own.

[88] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[89] The application is dismissed. An order reflecting this decision is in PR539895.

COMMISSIONER

Appearances:

Mr D, the Applicant.

D Wedgwood for Charles Sturt University.

Hearing details:

2013.

Sydney:

June 25.

Final written submissions:

6 August 2013.

1 Attachment 1 of Appendix A to Exhibit CSU 2.

2 Attachment 7of Appendix A to Exhibit CSU 2.

3 Appendix B to Exhibit CSU 2.

4 (1938) 60 CLR 336.

5 Ibid at 361-362.

6 Ibid at 363.

7 [2007] AIRCFB 797.

8 Exhibit CSU 2.

9 Transcript PNs92-93.

10 Transcript PN94.

11 Transcript PN108.

12 Transcript PN122.

13 Transcript PN170.

14 Transcript PN175.

15 Exhibit D 1.

16 [1959] HCA 8.

17 Exhibit CSU 1.

18 Above n 15 at 12.

19 Print S4213, 17 March 2000.

20 Print S8434, 24 July 2000.

21 Ibid at para 15.

22 (1995) 62 IR 371 at 373.

23 [1998] FCA 865.

24 [1999] FCA 1836.

25 PR954993, 9 February 2005 per Lawler VP, Leary DP and Deegan C.

26 Ibid at para 33.

27 See my discussion with Mr D at Transcript PNs46-56.

28 See Appendix A to Exhibit CSU 2.

29 Above n2.

30 Above n27.

31 (1995) 185 CLR 410.

32 [2011] FWAFB 1166

33 Ibid at para 24.

34 Transcript PN319.

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