Dr Brian Joseph Chambers and James Cook University of North Queensland
[1995] IRCA 33
•10 February 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
NO. QI158 OF 1994
BETWEEN:
DR. BRIAN JOSEPH CHAMBERS
Applicant
AND:
JAMES COOK UNIVERSITY OF NORTH
QUEENSLAND
Respondent
REASONS FOR JUDGMENT
BOULTON J.R.
From 1 January 1982 until 2 June 1994 the applicant was employed by the respondent as a lecturer. 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”).
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In about November, 1993 allegations of sexual harassment were made against the applicant. These allegations were from two of the applicant’s students. A Sexual Harassment Grievance Committee of the respondent considered the allegations, and reported to the Vice-Chancellor of the respondent. In consequence, the Vice-Chancellor wrote to the applicant by letter dated 24 December 1993 setting out allegations of serious misconduct requiring further investigation pursuant to clause 9 of the Award.
This letter also advised the applicant of his suspension from duties, with pay, and exclusion from the University. The applicant submitted a written response to the allegations, denying them.
A committee of investigation (“the committee”) was duly convened and a hearing in camera took place on 13, 14 and 18 April 1994 at the University. The applicant appeared unrepresented.
The committee provided a report dated 20 May 1994 in which it determined that the applicant had been guilty of serious misconduct, and it recommended to the chief executive officer of the respondent (the Vice-Chancellor) that he dismiss the applicant from the employment of the respondent. The Vice-Chancellor determined that
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the applicant should be dismissed. The respondent ratified this determination. By letter dated 2 June 1994 to the applicant the respondent dismissed him from its employment.
The applicant made application to this Court on 17 June 1994.
On 11 August 1994 Spender J. ordered that pleadings be filed, with further directions listed for 14 October 1994. On that date, the parties asked me to order, by consent, that the evidence to be presented at the hearing before me be limited to the transcript of the proceedings before the committee, exhibits tendered to the committee, and its report dated 20 May 1994. I so ordered, and the hearing proceeded before me on this basis on 6 and 7 December 1994, in Townsville.
Subclause 9(a) of the Award provides as follows:
“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....”
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It goes on to provide further definition in (ii) and (iii). Neither of these was relied on by the representative who appeared before the committee on the respondent’s behalf.
The applicant’s Counsel relied on numerous grounds to attack the determination and recommendation of the committee which resulted in the termination of the applicant’s employment. I will deal with these in turn, not necessarily in the order chosen by Counsel.
At the outset, attention was directed to the drafting of the allegations. I will set them out in full, along with the findings of the committee which relate thereto.
Allegation
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”).
Finding
During rehearsal of her solo performance the Respondent grabbed the Complainant’s arm, rolled with her to the ground and held her -5-
face close to his. She objected to and was discomforted by this conduct.
The Respondent suggested to the Complainant that a sexual relationship was natural and intrinsic to their relationship.
The Complainant informed the Respondent that she did not want a physical relationship.
The Complainant perceived that her drama studies were at risk and that she might fail that part of her study course if she reacted unco-operately (sic) towards him.
There were no explicit threats or overt coercion concerning the outcome of the Complainant’s study course, by or from the Respondent.
The Complainant perceived that there was pressure from the Respondent for her to undertake a solo theatre rehearsal role.
The Complainant perceived that the teaching of her Medea role was subjected to an overt (and in her view) inappropriate sexual
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interpretation.
The Complainant’s withdrawal from the course of study was for a number of personal reasons, but included her desire to avoid the pressure she felt was imposed on her by the Respondent. The Complainant was neither motivated nor influenced by personal malice towards the Respondent or through any conspiracy with another or others in the making of her complaint or in the presentation of her evidence before the Committee, although it is accepted that there was collaboration of an unobjectionable nature with the Complainant ...(B) prior to formal complaints being made.
The Complainant was not offered a High Distinction in her course in exchange for any sexual favours.
The Committee is not satisfied that the 1991 rehearsal strategies were overtly masturbatory as described in the evidence.
Allegation
That on or about 13 April 1992 at Complainant A’s place of residence you improperly pressured Complainant A to engage in
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sexual intercourse with you and did in such circumstances then engage in sexual intercourse with Complainant A.
Finding
The sexual intercourse was consensual but consent was given:
- under pressure from the Respondent’s superior position as Lecturer;
- in response for perceived special attention given her in studies;
- through a relaxation of inhibition caused by consumption of alcohol.
Allegation
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.
Finding
The sexual intercourse was consensual but consent was given:
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under pressure from the Respondent’s superior position as
Lecturer;
- in response for perceived special attention given her in studies;
- through a relaxation of inhibition caused by consumption of
alcohol.
The Committee finds that the unchallenged evidence of the Complainant as to the duration of the sexual intercourse was inconsistent with the Respondent’s assertion of a mutual loving relationship.
4. Allegation
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.Finding
The Committee accepts that the Complainant perceived the existence of further pressure and/or harassment but it considers that this perception was influenced by other factors.
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The Committee is not satisfied that any conduct of the Respondent was directed to obtaining the Complainant’s consent to engage in further acts of sexual intercourse.
Allegation
That during the 1993 academic year you took inappropriate physical liberties and made verbal and sexual approaches to a student enrolled in a Theatre Performance subject conducted by you (referred to as “Complainant B”).
Finding
The Committee found this Complainant to be an intense, complex and emotional personality, given on occasion to over-dramatisation and unusually naive/gullible for a mature-age woman.
This finding substantially influenced the Committee’s view of the evidence of this Complainant, but it accepts that sexual intercourse (the two occasions not being challenged by the Respondent insofar as their occurrence per se was concerned) did take place.
The Respondent in effect seduced the Complainant to have sexual -10-
intercourse with him through flattery and through arousing in her conflict of feeling.
The Complainant perceived that in order to receive a proper assessment in her studies she needed to maintain a relationship (not necessarily sexual) beyond the normal student/teacher relationship.
The Complainant perceived that her studies and/or career would be prejudiced by any rejection of the Respondent’s attitude towards her.
The Respondent took advantage of the Complainant’s personality as described above. The sexual intercourse that occurred was instigated by the Respondent.
Allegation
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.
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Finding
(NB the committee dealt with allegations 6 and 8 together,
referring to 8 as “the latter simpliciter”).
The acts alleged occurred.
The Committee infers that consent was given but was given reluctantly or under misconception and was induced by their relationship of teacher and student and by the Complainant’s perceptions of the consequences that might flow from the latter.
The Committee does not accept the further Particulars (a), (b) and (c) of Particular 8 either on the evidence and also, it being unable to accept all three of those sub-particulars, because of the framing of the charge and the use of the connecting word “...and...” The Committee does not accept the evidence of the Complainant or the allegations referred to in 8(b) and (c) and has some doubt with respect to the Complainant’s evidence and the allegation in 8(a).
Allegation
Further, that the act of sexual intercourse referred to in paragraph 6 was without the consent of Complainant B and involved:
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(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.Finding
The Committee does not accept the further Particulars (a), (b) and (c) of Particular 7 either on the evidence and also, it being unable to accept all three of those sub-particulars, because of the framing of the charge and the use of the connecting word “...and...” The Committee does not accept the evidence of the Complainant or the allegations referred to in 7(b) and (c) and has some doubt with respect to the Complainant’s evidence and the allegation in 7(a).
Allegation
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
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(c) the use of force restraining Complainant B from leaving.
Finding
(Refer to 6 herein).
Allegation
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.
Finding
This is expressed as an alternative to the assertions of non-consensual sexual intercourse.
Assertions of intoxication are relevant only to Complainant ...(A).
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The Committee is not satisfied that any ingestion of alcohol was sufficient to render the Complainant unable to give or deny consent.
The Committee finds that there was implied threats insofar as Complainant ...(B). was concerned.
The Committee finds that there were implied undertakings about course study and assessment albeit expressed in subtle terms, in respect of both Complainants.
Allegation
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;
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(c) sexual harassment (both physical and verbal) of Complainants A and B; and
(d) conduct inconsistent with your continued employment with the University.
Finding
Further, our findings on the evidence are such that we conclude that the very uneven position that existed between Dr. Chambers as Lecturer and each of the Complainants as students was such that in circumstances which we have found proved Dr. Chambers took advantage of the sub-servient position of each of the
Complainants in that relationship and exploited them sexually. We regard that as serious misconduct.
Accordingly, we find that Particular number 10 has been established on the balance of probabilities as well, for the reasons already stated.
Was the applicant required to meet one charge of serious misconduct as defined in the Award with 10 particulars of that charge? Alternatively, were there two charges, one in respect of Complainant A with
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paragraphs 2, 3 and 4 providing particulars of that charge, and the second charge being in respect of Complainant B, with paragraphs 6, 7 and 8 providing particulars thereof? I leave aside for the moment allegations 9 and 10.
On behalf of the applicant it was argued that the committee embarked upon its investigation without clarifying this situation. I think it is instructive to look at the way in which the committee treated the “charges” in its report. At page 3 thereof it refers to allegations of serious misconduct, these allegations being particularised in the said letter. It refers to particulars 1 to 4 as being particulars of an alleged relationship with one student, and particulars 5 to 8 being particulars of
an alleged relationship with the other student. At page 4 thereof particular 9 is described as a particular relating to the allegations concerning both complainants. As for paragraph 10, it is referred to as a particular expressed in terms which invite certain conclusions to be drawn from proven facts rather than amounting to factual allegations in themselves.
At page 5 of the report the committee refers to “the composite allegation of serious misconduct and each of the particulars thereof”. At page 6 reference is made to “the serious misconduct alleged”. The
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committee uses the singular again on page 19, when referring to “the particulars of the allegation of serious misconduct”.
I consider that the committee ought to have required specific definition of what was alleged to be the act or acts of “serious misconduct” within the meaning of the Award..
In my view the committee was under a duty to properly inform the applicant at the outset of the hearing precisely what he was charged with. The discussion in Duncan v Medical Disciplinary Committee [1986] 1 NZLR 513 at 546 is instructive in this regard.
As to particular 9, it was expressed to be in the alternative (to what had gone before). Counsel complained that this was a “trap” charge, of the kind deprecated in Sloan v General Medical Council [1970] 1 WLR 1130. While I do not think it suffers from this vice, there are features about the findings associated with it to which I will return.
Counsel contends that the charge or charges of the complainants ought to have been heard and determined separately. He relied on Re College of Physicians and Surgeons of Ontario & K 16 DLR (4th) 424. In that case a physician was charged with professional misconduct -18-
in engaging in sexual impropriety with two female patients, S.A.H. and C.B. The Discipline Committee of the College of Physicians and Surgeons heard the evidence of the two women in a common hearing. The majority of the Ontario High Court of Justice held that the evidence of the two women should not have been heard in a common hearing. By hearing both in the same hearing, the tribunal could not avoid to have found support for the credibility of one woman in the story of the other. There was no indication on the record in the reasons for decision of the tribunal that it had warned itself in accordance with the principles in Boardman v Director of Public Prosecutions [1974] 3All E.R. 887. The conclusion was that the hearing was vitiated, as was the decision of the disciplinary tribunal.
Counsel also relied on the decision of the High Court of Australia in Hoch v The Queen 165 C.L.R. 292. In that case an indictment charged three counts of indecently dealing, each count being in respect of a separate boy. Unless the evidence of each offence was admissible in relation to the other offences charged, separate trials should have been ordered. The probative value of the evidence, which was a condition precedent to its admissibility, was destroyed where there was a possibility of joint concoction of the evidence between complainants. Admissibility of evidence of this kind depended not only on similarity
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between the acts which the prosecution sought to prove but, more importantly, on the non-existence of “a cause common to the witnesses” - page 302.
The only indication I can find that the committee may have addressed itself to this issue is a statement by it on page 10 of its report where it accepts that there was collaboration of an unobjectionable nature between the complainants prior to formal complaints being made. It does not otherwise deal with whether the evidence could properly be regarded as similar fact, or the desirability of hearing the complainants in a common hearing. In this regard what is of concern, in my view, is the committee’s own assessment of Complainant B. The committee found her to be “an intense, complex and emotional personality, given on occasion to over-dramatisation and unusually naive/gullible for a mature-age woman” - page 12. I am left uneasy that in hearing the evidence of the complainants together, the committee’s reservations about Complainant B may have been assuaged by the evidence of Complainant A. There ought to have been separate hearings.
Counsel for the applicant also pointed to the fact finding undertaken by the committee. He claimed that not only did the facts found not support the conduct particularised, but more significantly the committee did not
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relate its findings to serious misconduct as defined in the Award. This is the issue which has caused me most concern. After extensive readings of the committee’s report, I am left with the view that it has committed the same error that the Misconduct Tribunal was found to have committed in Re Newnham [1993] 1 Qd. R. 502.
Dealing first with the committee’s fact finding, I provide some examples of its approach. It will be recalled that particular 9 was expressed to be in the alternative to the earlier “assertions of non-consensual sexual intercourse” (to use the committee’s words). The committee proceeded to find this particular proved, despite having referred to the sexual intercourse the subject of particulars 2 and 3 as being consensual. It found that there were “implied threats” insofar as Complainant B was concerned. It did not, however, identify what conduct constituted this finding and to what incidents in the other charges these threats related. It also found subtly expressed “implied undertakings” about course study and assessment in respect of both complainants. Again, there were no relevant findings identifying the terms of the undertakings and in respect of what incidents the subject of the other particulars.
Findings about “perceptions” of the complainants were used in support of findings that particulars 1, 2, 3, 5 and 6 had been proved. Yet there
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were no findings that anything said or done by the applicant had caused or contributed to these “perceptions”. One wonders whether the committee had the actual persuasion of the mind required of it, given the gravity of the allegations against the applicant, when making findings in these terms - Rejfek v McElroy 112 CLR 517 at 521.
Turning now to particular 10, Counsel complained that it was a “comprehensive” charge which should not have been laid. The problem that I see with it is not the fact that it is a comprehensive charge (Duncan at 546), but that its terms arguably go beyond the concept of serious misconduct as stipulated in the Award. At the hearing before the committee, the representative of the respondent had this to say of particular10:
“That clause essentially ties the threads together making the formal allegation of serious misconduct” - page 11 of the transcript.
On one view, the reference in paragraph 10 to “constitutes serious misconduct of themselves” introduces the danger of focusing on the concept of “serious misconduct” simpliciter and not as defined in the Award. This might be thought to be compounded by the further words
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“and in addition constitutes serious misconduct as ....”, with the four examples then given. Of those four, the last seems more properly to be characterised as an exhortation rather than a true particular.
The respondent’s representative also had this to say to the committee:
“We say that the events concerned clearly constitute serious misconduct on any definition if you like to adopt for the term” - page 11 of the transcript.
It seems to me that he may well have contributed by these remarks and others to the committee’s focusing on other than serious misconduct as contemplated in the terms of the Award.
Despite the committee making reference during the course of the proceedings before it and in its report to the definition of “serious misconduct” in the Award, its approach leaves me unconvinced that it properly directed itself to the task before it. At page 20 of its report it said “It seems to us that Dr. Chambers has conducted himself in a manner which could be regarded as professionally grossly negligent and that his conduct was such that it had the capacity to destroy or diminish the regard for the profession of teaching that might be held by any right and decent thinking citizen”. It then went on to deal with authorities put before it by the respondent’s representative which related to
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professional misconduct. After recommending that the chief executive officer dismiss the applicant from his employment, it again used the expression in respect of him that he had been “professionally grossly negligent in his conduct”.
The use of this language and the fact finding undertaken by the committee convince me that it did not direct itself as it was required to do, to the definition of serious misconduct as contained in the Award to see if the facts it found proved supported the particulars or any of them, and those particulars in turn constituted serious misconduct within that definition. I consider that Counsel for the applicant is correct in submitting that despite the committee’s reciting of the definition of serious misconduct it did nomore than pay lip service to that definitiion in its conclusion, especially at page 20 of its report.
The respondent’s Counsel argued that even if I found the decision of the committee vitiated for what he called “procedural errors”, the committee’s findings would survive in some way so as to prevent me, in the proper exercise of my discretion, from ordering the applicant’s reinstatement. I am unable to find any support in authority for such a course.
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I should add for the sake of completeness that the respondent’s Sexual Harassment Policy does not presently prohibit consensual sexual intercourse between staff members and students.
I conclude that the decision of the committee is vitiated by errors of law in the following respects:
The committee did not require specific definition of what was alleged to be the act or acts of “serious misconduct” within the meaning of the Award which it was required to investigate.
Its failure to properly inform the applicant precisely what he had
to meet denied natural justice to him.
The committee wrongly allowed the complainants to give evidence
at a common hearing.
The findings of fact were not properly related to the charges to
which they were referable.There was no proper finding of serious misconduct as defined in the Award.
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The only reason available to the respondent for terminating the applicant’s employment having not survived challenge, and it not having been shown that reinstatement of the applicant is impracticable, the orders I make are:
The application is allowed.
An order requiring the respondent to reinstate the applicant by
reappointing him to the position in which he was employed immediately before the termination, such reinstatement to
operate from the date of this order.
That the period between the date of termination and the date of the applicant’s reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.
That the respondent pay to the applicant the remuneration lost by the applicant because of the termination.
Liberty to apply in the event that the parties cannot agree on the
remuneration lost by the applicant.
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That the respondent pay the sum referred to in para. 4 herein
within 21 days from the date of these orders.
I certify that this and the preceding TWENTY-FIVE ( 25 ) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.
........ ........ ........ ........ ........ ........ ........ ......
Judicial Registrar
DATED: 10 February 1995
Counsel for applicant: Mr. Cooper
Solicitors for applicant: Suthers & Taylor
Counsel for respondent: Mr. Burchardt
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Solicitors for respondent: Mallesons Stephen Jaques
Dates of hearing: 6 & 7 December 1994
Date of judgment: 10 February 1995
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