[2016] FWC 6005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dr Colin Wilks
v
The University Of Newcastle
(U2015/15051)

COMMISSIONER SAUNDERS

NEWCASTLE, 24 AUGUST 2016

Application for relief from unfair dismissal – application dismissed

[1] Dr Wilks was employed by the University of Newcastle (University) as an academic in the School of Humanities & Social Sciences, Faculty of Education & Arts for a significant period of time. In the period from February to April 2015, six allegations were made against Dr Wilks, alleging that he had breached various policies and directions issued to him. Dr Wilks initially denied almost all the allegations made against him, with the result that the University convened a Committee of Inquiry (COI) under the University of Newcastle Academic Staff Enterprise Agreement 2014 (Enterprise Agreement) to inquire into the allegations. Following a 10 day hearing before the COI, the members of the COI issued a unanimous report in which they found that each of the allegations against Dr Wilks was proven to the requisite standard, principally on the basis of admissions made by Dr Wilks. The University then made a decision to terminate Dr Wilks’ employment on the ground of serious misconduct. Although Dr Wilks now accepts, for the most part, that he breached the policies and directions issued to him, he has raised a significant number of mitigating and contextual matters which he contends support his view that he was unfairly dismissed. The University denies those allegations.

The Hearing

[2] This matter was heard by me over four days from 8 to 11 August 2016 (inclusive). Dr Wilks gave evidence on his own behalf. He also called evidence from the following witnesses: Mr Rod Noble, Professor Roger Markwick, Mr Owen Jackson, Dr John Barclay, Associate Professor Wayne Reynolds, and Professor Simon Dennis. The University called Professor Andrew Parfitt, Ms Ruth Hartman, and Ms Dianne Bunch as witnesses in support of its case. Each party tendered voluminous documentary material, including all of the documents provided to the COI.

[3] In making my decision in this matter I have had regard to all of the evidence adduced by and on behalf of Dr Wilks and the University, together with the submissions made by each party (including Dr Wilks’ submissions received on 12 August 2016, after the conclusion of the hearing on the previous day).

Initial matters to be considered

[4] I am required by s.396 of the Fair Work Act 2009 (Cth) (the Act) to decide four matters before I consider the merits of Dr Wilks’ application. There is no dispute between the parties and I am satisfied on the evidence that:

(a) Dr Wilks’ application was made within the period required by s.394(2) of the Act;

(b) Dr Wilks was a person protected from unfair dismissal;

(c) The University was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) Dr Wilks’ dismissal was not a case of genuine redundancy.

Was Dr Wilks’ dismissal unfair?

[5] I am required by s.387 of the Act to take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Dr Wilks’ dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Dr Wilks’ dismissal (s.387(a))?

[6] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced”.3

[7] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵

[8] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[9] In cases where allegations of serious misconduct are made, the standard of proof in relation to the alleged conduct remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" 8 and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"9 or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".10 Put another way, the application of the Briginshaw standard means that I should not lightly make a finding that an employee engaged in the misconduct alleged against him or her.11

[10] However, in determining whether there was a valid reason for the dismissal, it is not necessary to make a finding as to whether any conduct in which the employee engaged meets the definition of serious misconduct in the Fair Work Regulations 2009 or any applicable industrial instrument. 12 The seriousness of the employee’s conduct is a relevant consideration under s.387(h) of the Act.

[11] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 13as follows:

“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal.”

[12] The University relies on six allegations of serious misconduct which it contends are “valid reasons” for Dr Wilks’ dismissal:

(1) Dr Wilks engaged in conduct in breach of the University’s Code of Conduct by being disrespectful of colleagues;

(2) Dr Wilks engaged in conduct which was in breach of directions given to him by Professor John Germov in his letter dated 5 March 2014 by failing to be polite and courteous in communications with colleagues;

(3) Dr Wilks engaged in conduct which was in breach of directions given to him by Professor John Germov in his letter dated 5 March 2014 by swearing in a lecture in August 2014 and failing to ensure his interactions with students in that lecture had “appropriate academic underpinning and reference scholarly material for any position put forward”;

(4) Dr Wilks breached the University’s Code of Conduct by continuing to claim he had been bullied by his Head of School (HOS) when his allegations to that effect had been found to be unsubstantiated and he had not challenged that finding;

(5) Dr Wilks breached the written direction given to him to maintain confidentiality in relation to the student complaint made against him; and

(6) Dr Wilks breached the University’s Computing and Communications Facilities Conditions of Use Policy by emailing the student complaint to former students.

[13] The University also relies on what it alleges was dishonest and misleading conduct by Dr Wilks during the COI process.

[14] Dr Wilks was provided two letters by Professor Andrew Parfitt (Deputy Vice-Chancellor (Academic)); the first dated 3 February 2015 outlining the first four allegations, and the second dated 27 April 2015 outlining the final two allegations. These letters informed Dr Wilks that if the allegations were proven his conduct may constitute misconduct or serious misconduct under the terms of clause 11 of the Enterprise Agreement.

First reason – being disrespectful of colleagues in breach of the University’s Code of Conduct

[15] The University’s Code of Conduct defines respect as being “…displayed by being courteous and kind, listening, communicating openly, and recognising and valuing the importance of knowledge and experience”. Respect, according to the Code of Conduct, is to be demonstrated by “treating all with courtesy and sensitivity” and promoting “collegiality by behaving inclusively and openly”. University staff are expected to:

“ … communicate courteously, openly and with understanding;

treat others with compassion and kindness;

behave and communicate in a manner that does not offend, degrade or humiliate;

promote a culture that does not tolerate bullying or harassment;

value difference and diversity and others’ opinions, choices and approaches;

follow reasonable direction from supervisors, managers and lecturers; and

behave in a professional/appropriate manner as a representative of the University in all our activities both on-and off-campus…” 14

[16] The University alleges Dr Wilks breached the Code of Conduct in the following six ways:

(a) He was disrespectful of a number of colleagues in an email sent to Professor Andrew Parfitt on 8 January 2015;

(b) He was disrespectful to Associate Professor Markwick in his email of 4 December 2014;

(d) He was disrespectful to a number of colleagues in the attachment entitled “Analysis of the report used to justify the rejection of Mr Cameron Green’s PhD thesis proposal” to the email sent to Professor Andrew Parfitt dated 22 September 2014;

(e) He was disrespectful to a number of colleagues in an email to Associate Professor Alistair Rolls dated 3 September 2014; and

(f) He was disrespectful to a number of colleagues in an email sent to Professor Andrew Parfitt dated 21 August 2014.

[17] Dr Wilks agrees he sent the emails in question. Dr Wilks also now accepts that, at least in respect of some of these emails, he breached the Code of Conduct by failing to show respect towards colleagues.

[18] The COI investigated each of these allegations and came to the following findings:

(a) In his email dated 8 January 2015, Dr Wilks raises matters that were previously inquired into through the University’s complaint handing process and were dismissed. The COI found that the email was “discourteous; insensitive; disrespectful, offensive; inconsiderate; uncollegial; unprofessional; degrading; unkind; solely focused on his own position and interpretation of events; and, persisting with a rear vision focus on matters that have been addressed by the University but not to his satisfaction”; 15

(b) In his email dated 4 December 2014, the COI found that Dr Wilks was “highly and demeaningly sarcastic to his supervisor Roger Markwick and accordingly discourteous; insensitive; disrespectful, offensive; inconsiderate; uncollegial; unprofessional; and degrading in his behaviour towards his fellow member of staff and supervising officer”; 16

(c) Dr Wilks in his email dated 22 September 2014 accused Dr Falzon of a log of serious charges that questioned his ethics, academic competence and professionalism. The COI found that this conduct was “discourteous; insensitive; disrespectful, offensive; inconsiderate; uncollegial; unprofessional; degrading; and unkind; being solely focused on his own position and interpretation of events; that had been managed by the School not to his satisfaction”; 17

(d) Dr Wilks attached a 23 page report to the email dated 22 September 2014 which accused Dr Falzon of the conduct referred to in paragraph (c) above. In this report Dr Wilks made claims against Associate Professor Alistair Rolls and Professor Roger Markwick which the COI did not comment on as it related to previous complaints that had been dealt with by the University; 18

(e) The COI found that the email Dr Wilks sent on 3 September 2014 traverses the same matters dealt with above in paragraphs (c) and (d). In this email Dr Wilks challenged Associate Professor Alistair Rolls as the possible author of a PhD proposal report and drew him into the “circle of alleged inappropriate, dishonest behaviour and action claimed to surround the report…. This implied disrespect failed to afford Associate Professor Rolls the respect required in the Code of Conduct”; 19 and

(f) In the email dated 21 August 2014 Dr Wilks raised issues previously inquired into by the University. The COI found that in this communication Dr Wilks was “discourteous; insensitive; disrespectful, offensive; inconsiderate; uncollegial; unprofessional; degrading; unkind; solely focused on his own position and interpretation of events; and rear vision focussed on matters that had been addressed by the University not to his satisfaction.” 20

[19] The COI report found that Dr Wilks admitted to breaching the Code of Conduct and the evidence provided during the investigation proved he was disrespectful of a number of colleagues. 21

[20] I have reviewed the emails in question and considered the alleged breaches of the Code of Conduct. I am satisfied that Dr Wilks’ conduct in sending the emails constitutes a patent and substantial breach of his obligation under the University’s Code of Conduct to show “respect” to all other employees. By way of example, in these emails Dr Wilks accused his colleagues of being incompetent, dishonest, an idiot (or looking like an idiot), and thwarting University processes. I am satisfied that Dr Wilks’ conduct in this regard constitutes a sound, defensible and well founded reason for his dismissal.

Second reason – breaching directions given by Professor John Germov re impolite and discourteous emails

[21] On 5 March 2014, Professor John Germov (Pro Vice-Chancellor Education and Arts) met with Dr Wilks and later that day provided him with a letter which summarised their discussions and outlined to Dr Wilks what was expected of him in terms of his performance and conduct in the workplace.

[22] Dr Wilks was specifically instructed in Professor Germov’s letter that he must ensure that he is “polite and courteous in communication with colleagues, supervisors and students, both directly and in referring to them in communication with students or others”. This was a lawful and reasonable direction to Dr Wilks; he was required to comply with it.

[23] The University claims that the conduct on the part of Dr Wilks outlined in paragraph [16] above breached the direction given by Professor Germov. Dr Wilks now accepts that, at least in respect of some of the emails in question, he was impolite and discourteous towards his colleagues.

[24] Having regard to the emails which Dr Wilks admits, and has always admitted, sending to his colleagues, I am satisfied that his conduct in writing and sending the emails breached the direction given to him by Professor Germov to be polite and courteous in communications with colleagues. In my view, Dr Wilks’ breach of this direction constitutes a sound, defensible and well founded reason for his dismissal.

Third reason – breaching directions given by Professor John Germov re lecture on 1 August 2014

[25] The letter dated 5 March 2014 issued by Professor Germov to Dr Wilks required his interactions with students to “have appropriate academic underpinning and reference scholarly material for any position put forward” and for Dr Wilks to ensure he was “polite and courteous in communication with colleagues, supervisors and students”. Dr Wilks also gave evidence to the effect that following his discussion with Professor Germov on 5 March 2014 and his receipt of the letter dated 5 March 2014 he understood that he was not to swear during lectures.

[26] The University alleges that, on 1 August 2014 during a PHIL1060 lecture, Dr Wilks used inappropriate language (swore) and put forward a position concerning mental illness for which he did not provide appropriate academic underpinning or reference scholarly materials.

[27] The basis for these allegations is a complaint the University received from a student who said that she left the lecture after about 40 minutes because she was distressed by Dr Wilks’ conduct and the views he put forward in relation to mental illness, as a sufferer of a mental health related illness herself.

[28] Dr Wilks admits that he said the word “fuck” in the lecture on 1 August 2014 on a number of occasions, but says that he did so to demonstrate various points that he made in the lecture and to develop rapport with the students. Dr Wilks also says that he has spoken in this way for many years and it would be very difficult for him to change his ways. As to the academic underpinning and referencing of scholarly material point, Dr Wilks contends that he did not say the things alleged by the student in her complaint, he did not put forward a position concerning mental illness and, in any event, the lecture was an introductory lecture and he provided academic underpinnings and references to scholarly materials in the subsequent lectures in which he expanded on these matters in detail.

[29] Because Dr Wilks admits he used the word “fuck” a number of times in the lecture on 1 August 2014 and Dr Wilks understood he had been directed by Professor Germov not to swear and to be “polite and courteous in communication with colleagues, supervisors and students”, I am satisfied that Dr Wilks contravened Professor Germov’s direction in a substantial way on 1 August 2014.

[30] As to the academic underpinning and referencing of scholarly material point, I first need to make findings about what Dr Wilks said during the lecture. The starting point is the student complaint. The written complaint was prepared by the student within a couple of days of the lecture. Dr Wilks sent a copy of the student complaint to other former students, together with a covering email along these (or similar) lines:

“Can you take a look at the document below. This is the student complaint on the basis of which I have not only been banned from teaching Phil 1060 but on the basis of which I am about to be dismissed for serious misconduct.

I need some witnesses who are prepared to say that this student’s perception of things do not accurately reflect what I said in the first 40 minutes of the first lecture of the course last year. Do you think there would be 40 or so students who would be prepared to sign something to this effect. It would have to be at least 40 because otherwise the individual students will be attacked in the same way I have.”

[31] In some of his emails to former students, Dr Wilks also included the following sentences:

“You can add your name to the list at the following private email address … You can also discreetly pass this advice on to anyone else you know who would be willing to add their name to the list.”

[32] Various students responded by email to Dr Wilks’ request for assistance. Those responses include the following:

(a) The student who complained asserted that, in the lecture on 1 August 2014, Dr Wilks “claimed that freedom was the cause of 87% of mental illness, saying that young people revel in freedom at first but then can’t handle it going on to develop mental illnesses”. One student responded to this assertion by saying “I think the writer simply did not understand the concept you were explaining. I do not remember the statistic being quoted (it may or may not have been). But the point was that in society today people in Western countries (in general) have the freedom to choose …”

(b) The same student referred to in subparagraph (a) above also responded to Dr Wilks’ request for assistance by stating: “While you did say those things (or something similar), they have taken them out of context and totally misread your intention”. In my view, on a fair reading of the student’s email response, this was her general response to the whole of the statement made by the student who complained;

(c) The same student who provided the responses in (a) and (b) above also made the following general comment in response to the student complaint:

“I just need to tell you that while I am happy to support you with regards to those complaints, there have been occasions where I have found some parts of your lectures to be offensive (eg excessive swearing in that first lecture of 1060 …). I am generally willing to overlook that because I can see the purpose behind it, but I understand why some people get upset. I do think it is often unnecessary and would be less offensive with some sort of disclaimer immediately after the fact, rather than waiting for someone to object. I find it difficult to understand why you don’t tone things down a bit, as you are certainly capable of conveying info and concepts without going to those extremes, and it would save you a lot of grief.

Sorry if I’ve overstepped the student/lecturer line by being so direct.”

(d) Dr Wilks responded as follows to the email referred to in the previous subparagraph:

“No problem pointing out what you did about my excesses. I know I have a problem with the swearing, but the swearing is merely symptomatic of a new deeply ingrained anxiety-psychosis for which I have been medicated for the last 3.5 years …”

(e) Another student responded to Dr Wilks’ request for help in response to the student complaint by saying: “Hey Colin of course I would be willing to be a witness …”;

(f) Another student responded to Dr Wilks’ request for help in response to the student complaint by saying: “I can’t believe this. It seems to me that students have found the ‘truth’ about psychology too confronting and they’ve taken it out on you …”;

(g) Another student responded to Dr Wilks’ request for help in response to the student complaint by saying: “This letter is a joke Colin! I’m 100% backing you on this petition …”; and

(h) Another student responded to Dr Wilks’ request for help in response to the student complaint by saying: “… Well I’m quite sorry to hear about that, a load of bollocks I say! I guess some people really can’t grasp their philosophy …”

[33] None of the student responses contains an express denial that Dr Wilks said words to the effect of those asserted by the student who complained. The position taken by a number of the students who responded was to say that the student who complained misunderstood the points Dr Wilks was making in the lecture.

[34] In his response to meeting notes prepared by Professor Simon Dennis following a meeting with Dr Wilks on 14 August 2014, Dr Wilks responded as follows [the text in italics is Professor Dennis’ notes and the underlined text is Dr Wilks’ response]:

“…Colin said that he [sometimes swore in lectures because it was sometimes the most effective way of making a point] needed to swear to demonstrate a point. Simon asked that Colin use another example [meaning that on most of the occasions I ‘swore’ I was doing so because I was using swearing as an example of a distinctively human form of behaviour that requires explanation – it is a psychologically interesting question].

Colin denied saying mental health issues were a product of western culture [I didn’t deny saying something like this, because I happen to believe that modern western society puts pressures on people that increase their vulnerability to mental health problems]. He said the reference to 87% in the complaint was a joke made by him in the lecture [but it was not a joke about mental illness – it was a joke about the problems which arise from trying to ‘put a figure on’ things which do not readily admit of having figures put on them – this in fact is a core theme of the course].”

[35] In these proceedings, Dr Wilks admitted to swearing during the lecture on 1 August 2014. He also concedes that he said in the lecture words to the effect that there could be a connection between freedom and suicide. As to the 87% rate of causation, Dr Wilks says the student misunderstood his point. He says there is no way anybody could calculate a percentage rate of connection between freedom and suicide. In order to demonstrate this point, he says he made a statement to the following effect in the lecture: “Let’s just say 87% is the rate of connection between suicide and freedom …”

[36] In light of the concessions made by Dr Wilks, as set out in the previous paragraph, and the student responses, as summarised in paragraph [32] above, I am satisfied that, in the lecture on 1 August 2014, Dr Wilks put forward a position concerning freedom being a cause, or potential cause, of mental illness. Pursuant to the direction given by Professor Germov in writing on 5 March 2014, Dr Wilks was required to ensure there was an “appropriate academic underpinning” for the position and appropriate scholarly material was referenced for the position. The University has not adduced any evidence or material to demonstrate, or attempt to demonstrate, that Dr Wilks’ position concerning freedom being a cause, or potential cause, of mental illness has no academic underpinning. Accordingly, I find that Dr Wilks did not breach the direction insofar as it concerned academic underpinnings. However, I am satisfied that Dr Wilks contravened Professor Germov’s direction by failing to provide reference to scholarly material in relation to the position he put forward concerning mental illness and freedom. The fact that Dr Wilks intended to provide full references to scholarly material throughout the course when each concept or position introduced in the first lecture was dealt with in detail is a point which is relevant to the seriousness of Dr Wilks’ conduct, but it does not establish a “defence” to the claim that he breached the direction on 1 August 2014.

[37] In my view, Dr Wilks’ breach of Professor Germov’s direction on 1 August 2014 by swearing in the lecture and not providing references to scholarly material in relation to the position he put concerning freedom and suicide provides a sound, defensible and well founded reason for his dismissal.

Fourth reason – breach of the Code of Conduct by continuing to claim he was being bullied when allegations had been found to be unsubstantiated

[38] The University’s Code of Conduct defines honesty and trust (respectively) as follows:

Honesty is a foundation that “encompasses clarity and transparency in rules, policies, procedures and guidelines and the day-to-day dealings with each other in the University Community” which is demonstrated by providing clear rationale for decisions, admitting mistakes and working to rectify problems quickly; and

Trust is being able to “rely on the integrity, honesty, capability, confidentiality and fairness of others; and personally demonstrating these principles”.

[39] The University asserts that, on numerous occasions between 1 August 2014 and 8 January 2015, Dr Wilks continued to claim that he had been bullied by his HOS, Professor Roger Markwick, despite being aware that the allegations of bulling which he had made had been found to be unsubstantiated. Dr Wilks claims that the investigation into his allegations of bullying never took place, and he was merely drawing Professor Parfitt’s attention to the facts.

[40] The COI found that the evidence presented by the University indicated Dr Wilks’ unwillingness to accept the University’s finding in relation to his bullying complaint and there was no evidence to support Dr Wilks’ claims that the report into the allegations of bullying was defective (the report was conducted by a neutral party ‘at arms length’ from the School and Faculty). The COI labelled Dr Wilks’ claim as not being honest, trustworthy or respectful with or about colleagues, and therefore in breach of the Code of Conduct.

[41] There is no doubt that Dr Wilks did continue to claim that he had been bullied by Professor Markwick on the occasions contended by the University. Dr Wilks continued to make those allegations notwithstanding his knowledge that his allegations had been dismissed on 20 August 2013. Further, although Dr Wilks’ ill health prevented him for a period of time from being able to appeal against the dismissal of his allegations of bullying, there is no doubt that during the last three or four months of 2013 and thereafter Dr Wilks was both aware he had the right to appeal the dismissal of his allegations of bullying and had the opportunity to do so, but he decided not to take that option. Dr Wilks contends that he did not do so because he believed a “deal” had been done by the University whereby he would drop his allegations of bullying against Professor Markwick if allegations against Dr Wilks were dropped by the University. The basis for Dr Wilks’ belief in that regard was what he had been told by Mr Groen, an official of the NTEU. Mr Groen gave evidence before the COI. I have read the transcript of that evidence. 22 There was no challenge in these proceedings to the truth or correctness of the evidence given by Mr Groen to the COI. It is clear from Mr Groen’s evidence that no “deal” was done between the University and Dr Wilks. In fact, Mr Groen said “there was never a mention of a deal”.23 Further, Dr Wilks confirmed in the COI process that the evidence given by Mr Groen about the alleged “deal” was “pretty much how I remember it as well”.24 Nothing Mr Groen told Dr Wilks could reasonably have been interpreted as any such “deal” having been done.25 The alleged “deal” was no more than a thought or proposal by Mr Groen as to how the difficult relationship between Dr Wilks and the University may potentially be able to be repaired, to enable the parties to move forward in a constructive way. The evidence does not support a finding that the University ever agreed to the alleged “deal”.

[42] Not only did Dr Wilks not use the internal appeal mechanism to challenge the dismissal of his bullying allegations against Professor Markwick, Dr Wilks did not take his bullying allegations to an external body, court or tribunal.

[43] In circumstances where the University has rigorous processes in place for employees to make complaints and for an employee to appeal against the outcome of such a complaint, and Dr Wilks elected not to appeal the decision or to take his bullying claim to an external body, court or tribunal, I am of the view that his repeated assertions of the same alleged bullying, over a significant period of time after the dismissal of those allegations, contravened his obligation under the Code of Conduct to show respect, trust and honesty, and that constitutes a sound, defensible and well founded reason for dismissal. The new allegations of bullying made by Dr Wilks against Professor Markwick (ie those not the subject of his complaint which was dismissed) are, in my view, in a different category. Making those allegations did not constitute a breach of the Code of Conduct.

Fifth reason – breaching the direction to maintain confidentiality

[44] In the allegation letter issued to Dr Wilks on 3 February 2015, a written direction was given to him in the following terms:

“It is important to protect your own interests and reputation and the University’s interests that the process of dealing with these allegations is kept confidential. I therefore direct you not to discuss these matters with any other person (including members of University staff or students) other than your representative or advisers. Any breach of this direction may also result in disciplinary action.”

[45] The University alleges that Dr Wilks breached this direction by discussing the allegations with persons other than his representative or advisers.

[46] Before the COI and in these proceedings, Dr Wilks admitted that he discussed the student complaint with a number of his former students and emailed the text of the student complaint to upwards of 20 past students of PHIL1060 to pass onto others whom might be supportive and give testimony in defence of the content of his lecture. Indeed, Dr Wilks made the following written concession in his summary of responses to the allegations: 26

“I agree I spoke to students about Allegation 1.3b and that I did so despite knowing I had been directed not to speak to anyone about the allegations …”

[47] Dr Wilks asked some of the students to whom he sent the complaint to pass it on discreetly to other students who attended the lecture. Many of those emails were provided to the COI and they were tendered as evidence in these proceedings. The covering email sent by Dr Wilks to some of the former students is set out in paragraphs [30] and [31] above.

[48] Dr Wilks’ only attempt to maintain confidentiality over the student complaint was his request to some of the students to whom he sent the complaint for them to “discreetly pass this advice on to anyone else you know who would be willing to add their name to the list.”

[49] There is no evidence that Dr Wilks posted the text of the student complaint to the “Save Dr Colin Wilks” Facebook page or gave the text of the student complaint to the administrator(s) of that Facebook page, but the text of the student complaint found its way onto that Facebook page.

[50] Once Dr Wilks became aware that the student complaint which he had emailed to a number of past students had been posted on the “Save Dr Colin Wilks” Facebook page, Dr Wilks sent an email to a large number of his former students asking that the student complaint be removed from the Facebook page, which then happened. However, Dr Wilks did not simply ask for the student complaint to be removed from the Facebook page, he also included in his email a further page and a half of information about the complaint, including the fact that the student who made the complaint “has or had mental health problems” and Dr Wilks’ views about the allegations that had been made against him and the process that was being undertaken to inquire into those allegations. All of that additional information was unnecessary, and was in further breach of the direction given to Dr Wilks on 3 February 2015.

[51] Dr Wilks contends that, as a matter of natural justice, he had a right to provide a copy of the student complaint to other students who attended the lecture to see if they would support his version of events. Dr Wilks contends that he needed to know what the other students would say about the student complaint in order to make a decision whether to “fight” the allegations or accept the offer which had been made by the University. Dr Wilks also contends that he did not initially read more than the first part of the allegations letter and when he had later read the whole of the letter he called the New South Wales Ombudsman to ask for information as to whether he was entitled to contact former students about the complaint. He says he told the person to whom he spoke at the Ombudsman’s office that he had been directed by the University not to discuss the matters with other persons, and that the information he was given by the Ombudsman’s office was to the effect that he was entitled to show the student complaint to other students who attended the lecture.

[52] The timing of events is important in relation to Dr Wilks’ contentions concerning his knowledge of the confidentiality direction and his communication with the Ombudsman’s office. The relevant chronology is as follows:

(a) 3 February 2015 – Dr Wilks received the letter of allegations from Professor Parfitt. This was also the date on which Dr Wilks commenced teaching a compressed course, which put him under significant work pressure;

(b) a little earlier than 24 February 2015 – Dr Wilks concluded teaching the compressed course. 27 Dr Wilks discussed the student complaint with some students prior to the completion of his teaching of the compressed course (ie between 3 and 24 February 2015);

(d) 25 February 2015 – Dr Wilks contacted the Ombudsman and sought information about contacting former students in relation to the student complaint. 28 This was also the date on which Dr Wilks provided his response to the University in relation to the allegations.29

[53] I accept Dr Wilks’ evidence that he informed the Ombudsman’s office on 25 February 2015 that he had been directed not to discuss the student complaint with former students, because that was his reason for contacting the Ombudsman. However, I am satisfied, on the balance of probabilities, that, prior to sending the student complaint to some former students on 24 February 2015, Dr Wilks had read the whole of Professor Parfitt’s letter of 3 February 2015, including the confidentiality direction on the last page of that letter. I have made that finding for the following reasons:

(a) Dr Wilks is an intelligent and articulate man. He knew as soon as he received the letter of allegations on 3 February 2015 that it was a serious matter. I accept Dr Wilks’ evidence that he did not initially read more than the first part of the letter, he was very upset by what he read, he was already under stress at the time he received the letter because he was teaching the compressed course, and he sent the letter of allegations to his union without reading the whole of the letter;

(b) However, Dr Wilks finished teaching the compressed course before 24 February 2015. By that time he was aware that he would be responding to the allegations without the assistance of his union. Dr Wilks was also aware that, on or before 25 February 2015, he had to either respond to the allegations or accept an offer which had been communicated to him by the University. It is also clear that Dr Wilks had begun turning his mind to the allegations prior to 24 February 2015 because he discussed the student complaint with some of the students during the compressed course and he concedes that he had those discussions “despite knowing I had been directed not to speak to anyone about the allegations”; 30 and

(c) Dr Wilks made a detailed response to the letter of allegations in his response dated 25 February 2015. 31 In that response, he made comments beneath almost every paragraph in the letter of allegations, but he made no reply to or comment on the confidentiality direction on the final page of the letter, nor did he inform the University that he needed to disclose, or had disclosed, the student complaint to former students in order to be able to make a response to the allegations or to support his denial of any particular allegations. As part of his response, Dr Wilks inserted the following words immediately above the confidentiality direction on the last page of the allegations letter:

“I DENY THE ALLEGATIONS ALMOST IN FULL.

Yours sincerely

Colin Wilks”

[54] Accordingly, I am satisfied that by discussing the student complaint with students before 24 February 2015 and by emailing the student complaint to former students on 24 February 2015 Dr Wilks knowingly acted in breach of the confidentiality direction issued to him on 3 February 2015, and he did so before obtaining any information or advice from the Ombudsman’s office about the matter.

[55] There is no doubt, in light of the admissions made by Dr Wilks and his email communications to the former students, that he contravened the direction issued to him in writing not to discuss the allegations with students. In my view, that was a lawful and reasonable direction. It did not have the effect of denying Dr Wilks natural justice. Dr Wilks, as the person who gave the lecture on 1 August 2014, was in a good position to be able to make a decision about whether he would challenge the student complaint. He was in a position where he could respond to the student complaint by informing the University whether he admitted, denied, or could not recall the statements attributed to him by the student. In the event that Dr Wilks denied the statements, or some of them, or responded by saying he could not recall if he made such statements, he could, at that time, have informed the University that other students who attended the lecture should be approached to obtain their recollection of what was said in the lecture. In that regard, Dr Wilks was aware from Professor Parfitt’s letter dated 3 February 2015 that the allegations would be referred to a COI under clause 55 of the Enterprise Agreement, in the event that Dr Wilks denied any of the allegations. During that process there was ample scope for inquiries to be made of, and evidence given by, former students who attended the lecture on 1 August 2014. Proper measures could have been put in place in such a process to ensure that confidentiality of information, including the sensitive information in the student complaint concerning her mental illness, was maintained and a balance was achieved between Dr Wilks’ interests in defending the allegations (or deciding whether to defend them) and the privacy of the student who made the complaint, particularly insofar as details relating to the mental health of the student were concerned. As a consequence of Dr Wilks’ conduct in sending the student complaint off to numerous former students and not taking any proper measures to ensure the confidentiality of relevant information, the text of the complaint ended up on Facebook and was potentially viewed by a significant number of people. The very risk the University sought to protect against in the final paragraph of its letter of allegations dated 3 February 2015 was realised by reason of Dr Wilks’ reckless conduct.

[56] Even if, contrary to my earlier finding, Dr Wilks had sought advice from the Ombudsman’s office prior to sending the student complaint to former students or discussing it with them, that would not, in my view, have excused him from breaching the confidentiality direction. Dr Wilks should have raised any concerns he had about the confidentiality direction with the University, rather than with the Ombudsman’s office. Further, there is no evidence to suggest that Dr Wilks informed the person at the Ombudsman’s office to whom he spoke that the student complaint he wished to discuss with former students contained sensitive information about the complainant’s mental health. That was a crucial fact which had to be communicated to, and considered by, any person giving information or advice about the right to discuss the complaint with third parties.

[57] For the reasons set out above, I am satisfied that Dr Wilks breached the confidentiality direction issued to him on 3 February 2015 in a substantial way. His conduct in doing so amounts to a sound, defensible and well founded reason for his dismissal.

Sixth reason – breaching the University’s Computing and Communications Facilities Conditions of Use Policy

[58] It is alleged that Dr Wilks breached the University’s Computing and Communications Facilities Conditions of Use Policy (Computer Policy). In particular, the University contends that Dr Wilks breached his obligations under the Computer Policy by emailing the student complaint to numerous former students.

[59] The Computer Policy requires employees to, among other things:

(a) use the University’s computing and communication facilities in accordance with the University’s Code of Conduct (clause 4.1.1);

(b) use the University’s computing and communication facilities in an ethical way (clause 4.1.1); and

(c) abide by the University’s Privacy Management Plan, if the employee has access to personal and health information (clause 4.10). The University’s Privacy Management Plan imposes obligations on employees not to disclose sensitive information, including in relation to a person’s physical or mental health or disability, without consent (section 2.6.1).

[60] By emailing the student complaint to numerous students, Dr Wilks disclosed sensitive information in relation to the student’s mental health without her consent. Dr Wilks’ conduct in that regard constituted a breach of the Computer Policy, in that Dr Wilks:

(a) failed to comply with his obligation under the Code of Conduct to act with respect, and integrity;

(b) failed to use the University’s computing facilities in an ethical way; and

(c) failed to comply with his obligation under the University’s Privacy Management Plan to not disclose sensitive information about the student’s mental health without her consent.

[61] These were clear and patent breaches of the Computer Policy. They provided the University with a sound, defensible and well founded reason for Dr Wilks’ dismissal.

Seventh reason – dishonesty during the COI process

[62] An employee’s dishonesty during an investigation may constitute a valid reason for dismissal. 32

[63] As part of his response dated 8 May 2015 33 to the letter of allegations dated 27 April 201534, Dr Wilks responded as follows to the allegation that he had breached the confidentiality direction in the first letter of allegations dated 3 February 2015:

“NOTE: AS I POINTED OUT TO GREG KERR IN MY EMAIL OF MARCH 25 2015:

I had nothing to do with the publication of the student complaint. All I did was show it to the student witnesses I intend to call upon in the course of the investigation into my alleged serious misconduct. I discussed this with the NSW Ombudsman’s Office prior to showing the complaint to the witnesses I intend to call upon, and they (the Ombudsman’s office) assured me that, if the matter was going to investigation (rather than becoming the subject of a confidentiality agreement), I had every right to show the student complaint which the university is using against me to witnesses who were prepared to testify that the claims the student made therein were false and/or delusional (this does not demonstrate a lack of good faith).”

[64] At the time Dr Wilks made this response the University was not aware that Dr Wilks had in fact emailed the student complaint to a significant number 35 of former students in February 2015. The University did not become aware that Dr Wilks had sent such emails until that information was disclosed by Dr Wilks in the COI process in about September 2015 and the emails in question were produced, partly by Dr Wilks and partly as a result of searches undertaken by the University of Dr Wilks’ emails through the University email system.

[65] In my view, it was dishonest of Dr Wilks to state in his response that all he did was “show it [the student complaint] to the student witnesses” when he had emailed the student complaint to about 20 former students and had asked them to forward it to other former students. That information was relevant to how the text of the student complaint had come to appear on the Save Dr Wilks Facebook page.

[66] Dr Wilks also misled the COI. He was present at the COI hearing when a former student told the COI that Dr Wilks had not sent a copy of the student complaint to him. Dr Wilks knew that to be untrue, because he knew he had emailed a copy of the student complaint to the former student. Dr Wilks did nothing to correct the false information which had been provided by the former student to the COI. In fact, Dr Wilks went one step further and took active measures to attempt to conceal the true position from the COI. Immediately following the hearing before the COI at which the former student denied that Dr Wilks sent him a copy of the student complaint, Dr Wilks went to his computer and deleted his email (containing a copy of the student complaint) to the former student. Dr Wilks did so in an attempt to conceal the true position from the COI and to protect the former student who Dr Wilks knew had given false evidence to the COI. The COI only uncovered Dr Wilks’ deletion of the email when the University conducted a search of Dr Wilks’ emails through the University email system.

[67] I am satisfied that Dr Wilks’ dishonesty and misleading conduct in the COI process provides a sound, defensible and well founded reason for his dismissal.

Was Dr Wilks notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))?

[68] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 36, and in explicit37 and plain and clear terms.38 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[69] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 39

[70] Dr Wilks was issued with letters on 5 February 2015 and 27 April 2015 which outlined the allegations made against him. Dr Wilks was invited to respond to those allegations, which he did. Because Dr Wilks denied almost all the allegations, the COI process was established to investigate the allegations and provide a report to the Deputy Vice-Chancellor (Academic), Professor Parfitt. Dr Wilks had every opportunity to, and did, further respond to the allegations during the COI process.

[71] The COI report was provided to Professor Parfitt, who considered the report including the parts of it concerning the arguments in mitigation put forward by Dr Wilks, together with the medical report provided by Dr Brookman. Professor Parfitt then informed Dr Wilks in writing that he had determined that Dr Wilks’ conduct the subject of the allegations constitutes serious misconduct and he was of the view that the appropriate disciplinary action was the termination of Dr Wilks’ employment. However, prior to making a final decision, Professor Parfitt gave Dr Wilks the opportunity to show cause as to why his employment should not be terminated. A show cause meeting took place on 22 October 2015. Dr Wilks and his support person attended that meeting. Dr Wilks took up the opportunity afforded to him at that meeting to say why he believed his employment should not be terminated. Professor Parfitt gave the following evidence, which I accept, in his witness statement in relation to his consideration of what Dr Wilks said in the show cause meeting:

“In the meeting I was looking for evidence that the Applicant accepted responsibility for his actions. I was looking for evidence that he accepted responsibility and accountability for changing his behaviour, which would include taking action to address the mental health issues, which he had been aware of for some time, as disclosed in the Brookman report. I needed some assurance that the Applicant would follow directions in future if he continued in his employment. I wished to explore whether there were any other options for a way forward that would be productive…

In the meeting Dr Wilks did not acknowledge any personal responsibility or accountability for what had occurred. Instead, I formed the clear view that he sought to place responsibility on others and believed that there was little or no risk of any recurrence of such behaviour because the circumstances had changed: Associate Professor Markwick no longer being Head of School; he would no longer be teaching the course where most of the issues had arisen; and the issues arising from the tensions with the Theology discipline had been removed with the return of Religious Studies to the discipline of Philosophy. This gave me no confidence that similar behaviours would not recur in future if differences of opinion arose between the Applicant and any new Head of School or if issues arose with students in his classes. In light of the discussion and the attitude to his colleagues in the discipline of Philosophy that had been expressed by the Applicant, I formed the view that it would be impossible to re-establish any workable employment relationship.”

[72] After taking into account what was said by Dr Wilks at the show cause meeting, Professor Parfitt weighed up the options available to him and then made a decision to terminate Dr Wilks’ employment. By letter dated 26 October 2015, Dr Wilks was provided with written notice of the termination of his employment, including the reasons for that decision.

[73] On the basis of the evidence summarised in the previous three paragraphs, I am satisfied that the University notified Dr Wilks of the reasons for his dismissal and gave him multiple opportunities to respond to those reasons before making the decision to dismiss him.

Was there an unreasonable refusal to allow Dr Wilks to have a support person present (s.387(d))?

[74] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[75] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”40

[76] Associate Professor Wayne Reynolds (previous NTEU branch president) was Dr Wilks’ support person throughout the COI process and at the show cause meeting on 22 October 2015. Accordingly, I am satisfied that there was no unreasonable refusal by the University to allow Dr Wilks to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

[77] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[78] In this case, the reasons for dismissal related to Dr Wilks’ conduct, rather than his performance, so this consideration is not relevant.

Impact of size of the University on procedures followed in effecting the dismissal (s.387(f))

[79] The University is a large business enterprise. I do not consider that its size would be likely to impact on the procedures followed in effecting Dr Wilks’ dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[80] The University has dedicated human resource management specialists and expertise, so this consideration is not relevant.

Other relevant matters (s.387(h))

[81] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[82] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 41 in the following terms:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

[83] There are a number of “other matters” which are relevant to my determination as to whether Dr Wilks’ dismissal was harsh, unjust or unreasonable. I will deal with each of them in turn below.

Alleged bullying conduct from late 2009 – early 2015

[84] Dr Wilks alleges he was bullied in the workplace over a significant period of time. Dr Wilks believes that the conduct of his colleagues was strategic bullying designed to harass, persecute, undermine, niggle, frustrate, infuriate, anger and provoke him to the point where he would either retire on health grounds or eventually “lose it” and say the kind of disrespectful and discourteous things that would give the University a pretext for making allegations of serious misconduct against him. 42

[85] During the COI process and throughout these proceedings Dr Wilks contended that his conduct the subject of the allegations made against him by the University was borne out of the bullying to which he was subjected. By way of summary:

(a) in relation to allegations 1 and 2, Dr Wilks believes that every email he wrote in which he was “disrespectful”, “impolite” or “discourteous” was a communication in which he was alleging that either himself, or a former student of his, was being, or had been, bullied by certain senior colleagues;

(b) in response to allegation 3, Dr Wilks believes that his swearing was a result of stress and anxiety caused by bullying behaviour, and that the handling of the student complaint insofar as it concerned a failure to provide academic referencing was an example of such behaviour;

(c) in relation to allegation 4, Dr Wilks believes he was bullied because the University improperly investigated his bullying claims against his HOS; and

(d) as to allegations 5 and 6, Dr Wilks believes these matters only became an issue because the University continued to use the student complaint against him to bully him. Dr Wilks believes that the COI process did not take into account his claims of bullying.

[86] Some of the many allegations of bullying made by Dr Wilks are supported by evidence of the relevant factual matters, while others are not and are in the nature of an assertion by Dr Wilks, with little to no evidence of the factual matters said to support the alleged “bullying”.

[87] I have considered all the evidence in relation to the allegations of bullying and am satisfied that the conduct about which Dr Wilks complains does not constitute bullying (as defined in the Act), nor did it provide any proper justification or excuse for Dr Wilks to engage in the conduct which resulted in the termination of his employment.

[88] I will now address Dr Wilks’ primary allegations of bullying in some detail. These are the allegations that Dr Wilks addressed in his final submissions at the conclusion of the four day hearing before the Commission.

2009 – a new Professor of Theology arrives

[89] Dr Wilks alleges that the bullying conduct against him commenced in late 2009 when a new Professor of Theology arrived at the University. In particular, Dr Wilks contends that when Professor McDowell commenced at the University in 2009 Professor McDowell did not make him feel welcome and Professor McDowell told him that he was going to take “your courses off you”.

[90] Notwithstanding that Dr Wilks was aware of the right he had to make and pursue complaints through the University’s internal processes, he did not make such a complaint against Professor McDowell. Furthermore, the principal course that was “taken off” Dr Wilks was Phil 1060. That course was not “taken off” Dr Wilks until the second half of 2014. The catalyst for Dr Wilks being “taken off” Phil 1060 was the fact that a student complaint was made against him in about August 2014.

[91] On the basis of the limited evidence before me in relation to this matter, I am not satisfied that Dr Wilks was bullied by Professor McDowell in any of the ways alleged by Dr Wilks. In addition, even if such conduct had occurred in 2009, it would not, in my view, excuse or otherwise mitigate against Dr Wilks’ conduct the subject of the allegations, which conduct took place some five or so years later in 2014 and 2015.

The “Theology Experiment”

[92] The “Theology Experiment” is what Dr Wilks refers to as the merging of the church funded Theology discipline and the government funded Philosophy and Religious Studies discipline at the University. Dr Wilks believed in late 2009 that the Theologians would need to appropriate the Religious Studies courses which he had been teaching for about seven years in the Philosophy and Religious Studies discipline. In June 2010 this occurred, however Dr Wilks had already recoded some of his courses under the Philosophy discipline (by removing any reference to the word “religion” in the title of the course) to save them from being appropriated. The merger between the Theology and Philosophy and Religious Studies disciplines occurred in about September 2011. In December 2011, Dr Wilks sent an email to his HOS raising concerns about the merger and the “Theology Experiment” as a whole.

[93] The “Theology Experiment” was, in effect, a restructure with which Dr Wilks did not agree. He was entitled to hold the view that the “Theology Experiment” was not a good idea and to communicate his views in that regard to the University. However, the University was entitled to make the decision it did to merge the two disciplines. The University’s decision to do so did not amount to bullying of Dr Wilks, nor did it provide a proper basis for Dr Wilks to behave in the way that he did many years later when he engaged in the conduct which led to his dismissal.

[94] Dr Wilks’ contends that the University needed to get him “out of the way” because he did not support the “Theology Experiment”. That, according to Dr Wilks, is the context in, and reason for, which the University engaged in a long-term campaign of bullying against him. The evidence does not support these speculative assertions on Dr Wilks’ part.

Academic Fraud

[95] In 2009, an article was published which supported the “Theology Experiment” and the merger between the disciplines. Dr Wilks was listed as one of two authors of the article. However, Dr Wilks was not an author of the article and did not support the points made in the article. Although the article was published in 2009 in the papers from a particular conference, Dr Wilks did not discover the article until about April 2012. Dr Wilks’ discovery of the article caused him great upset and anger, and rightly so, for academic fraud, of which Dr Wilks was the victim, had occurred.

[96] Dr Wilks made some subtle attempts to raise the academic fraud at the University in the first 12 months or so after he discovered it. None of those attempts bore any fruit. As a result, Dr Wilks formally complained about the matter in about November 2013. The University investigated Dr Wilks’ complaint and eventually concluded, in about April 2015, that Dr Wilks was correct in his contention that he was not an author of the article and should not have been named as an author of the article. By the time the investigation was concluded, the two persons named as authors of the article were no longer employed by the University, with the result that the University did not take action against any employee in respect of the academic fraud.

[97] I have very little evidence before me as to the reason(s) why it took the University so long to conclude its investigation into Dr Wilks’ allegations of academic fraud. However, even if the University was unreasonably slow in concluding its investigation, about which I make no finding because there is insufficient evidence to do so, it would not provide any proper justification for Dr Wilks to engage in the conduct the subject of the allegations, which conduct was directed against colleagues and students who, on the basis of the evidence before me, had nothing to do with the academic fraud in 2009.

Dr Wilks’ workload

[98] In about 2011, Dr Wilks began to experience problems with his workload. In particular, in the second semester of 2011 Dr Wilks took great offence at the fact that one of his more senior colleagues, who needed more workload points, was given duties as a tutor and marker in Phil 1060, a course which Dr Wilks considered to be “his course” on the basis that he had written the course and taught it for a long time. It is plain from Dr Wilks’ evidence that he strongly believes his more senior colleague was incompetent. As a result of Dr Wilks’ view in that regard, he took it on himself to re-write parts of the course in order to simplify it and he prepared tutorial guidelines for his more senior colleague to use.

[99] When it came to marking students’ work in Phil 1060, Dr Wilks, in his capacity at that time as the course co-ordinator for Phil 1060, reviewed some of the marks his more senior colleague had assigned to work produced by students. That process is commonly undertaken by a course co-ordinator to ensure a level of consistency in marking across the students who enrol in the course. Dr Wilks identified what he considered to be significant discrepancies between the marks his more senior colleague had assigned to particular work and the marks he would have assigned to that work. Dr Wilks also had another tutor from the course “double mark” the students’ work and the tutor identified the same sort of discrepancies as Dr Wilks did.

[100] Mr Jackson, Executive Officer, School of Humanities & Social Sciences, gave evidence to the effect that when such an issue is identified as part of a “double marking” exercise, the course co-ordinator will usually sit down with the tutor or lecturer who has assessed the students’ work at a different level with a view to discussing the issue and discovering the reason(s) for the discrepancies in views. Dr Wilks did not take that approach in this case. I am satisfied that he did not do so because he had no respect for the ability or competence of his more senior colleague. Instead, Dr Wilks sought approval from the University for additional resources to be employed to mark all of the work the more senior colleague had been assigned to mark. The University did pay a casual tutor to undertake some such marking. Dr Wilks also undertook a significant amount of additional marking to cover the shortfall. In fact, in addition to doing a significant amount of additional marking himself, Dr Wilks paid out of his own pocket the sum of about $230 to a former tutor to do some marking. Dr Wilks paid the former tutor himself because he considered it was taking too long for the former tutor to be put back on the University’s books and Dr Wilks was eager to ensure the students’ work was marked in accordance with, or close to, the timeframe provided by the University. Dr Wilks was never reimbursed for the money he paid to the former tutor. Although that fact angered and frustrated Dr Wilks, he did not appeal or make a formal complaint against the University’s decision in that regard. Furthermore, Dr Wilks made a higher duties allowance (HDA) claim in relation to the additional work he undertook in 2011 and he succeeded in that claim. I will address the HDA claim further below.

[101] Dr Wilks was also directed to re-write and teach part of another course in 2011, in an attempt to make it more interesting to students. That imposed an additional workload on Dr Wilks.

[102] Academics at the University within Dr Wilks’ School have a target workload of 500 points. The University assigns points to various tasks, duties or results, such as teaching a course, producing research or undertaking administrative responsibilities. Some academics at the University are so productive that their actual workload is well beyond the 500 point target, particularly if the academic is successful in receiving highly competitive research grants and then produces significant research output.

[103] Dr Wilks did very little research at the University. Most of his work involved teaching. Dr Wilks’ yearly workload points varied from about 420 points to about 570 points in the period from 2006 to 2014. There were some disputes between Dr Wilks and the University about workload points in particular years, but even if Dr Wilks’ case is taken at its highest, his workload points did not exceed 572 43 at any time in the period from 2006 until 2014. This objective evidence indicates that Dr Wilks had what could fairly be described as a full, but not overly excessive, workload. However, even if Dr Wilks was, or felt, overworked in about 2011 it did not, in my view, constitute bullying or justify or otherwise excuse his conduct which led to his dismissal.

HDA Claim

[104] As has been referred to above, Dr Wilks applied for a HDA payment in respect of the additional work and duties he undertook in 2011. Dr Wilks is very critical of the fact that his HOS, Professor Markwick, did not, either initially or at any later time, support or give any consideration to his HDA claim, with the result that Dr Wilks had to apply to the University’s Human Resources department to pursue his claim for HDA.

[105] In about November 2012, Dr Wilks succeeded in his HDA claim. The outcome was acceptable to Dr Wilks. However, Dr Wilks remained resentful of the fact that his HOS did not support or give consideration to his claim, which meant it took longer to resolve and involved more effort on Dr Wilks’ part and gave rise to more friction between Dr Wilks and his HOS. This is part of the alleged bullying conduct about which Dr Wilks complains and says led to his conduct the subject of the allegations.

[106] The emails relied on by Dr Wilks establish that he informed Professor Markwick on 10 December 2011 of his intention to make a claim for HDA and Dr Wilks outlined at least part of the basis for his claim. 44 Professor Markwick initially responded by informing Dr Wilks on 12 December 2011 that they needed to meet to “discuss concerns about your performance” before “any consideration can be given to your claim for Higher Duties”. Professor Markwick and Dr Wilks met on 15 December 2011 to discuss the performance issues. Dr Wilks signed a “three point plan agreement” at that meeting.45 On 17 December 2011, Professor Markwick informed Dr Wilks that he did “not support your claim for Higher Duties”.46 There is no direct evidence as to why Professor Markwick did not support the HDA claim or what level of consideration he gave to the claim. The highpoint of Dr Wilks’ case in this regard is the fact that Professor Markwick did not ask Dr Wilks for details of the basis of his claim for HDA before deciding not to support that claim.

[107] On the basis of the evidence adduced in relation to this issue, I am not satisfied that Professor Markwick acted unreasonably in refusing to support the HDA claim or failed to give the claim any or proper consideration. However, even if Professor Markwick had been unreasonable in his decision not to support the claim, it is important to note that the University has rigorous processes to deal with such decisions and enable them to be challenged. Dr Wilks exercised his right to make his claim for the HDA to the Human Resources department and his claim succeeded. Dr Wilks also had the right under the Enterprise Agreement to make a complaint against Professor Markwick for his decision not to support Dr Wilks’ HDA claim.

[108] The delay and effort in finalising the HDA claim caused frustration and anger on Dr Wilks’ part. However, any act or omission by or on behalf of the University or Professor Markwick in connection with Dr Wilks’ HDA claim in about 2011 or 2012 did not, in my view, provide Dr Wilks with any proper justification to engage in the conduct which led to his dismissal.

Dr Wilks’ complaint to the Vice Chancellor

[109] The “Theology Experiment” provides the backdrop for Dr Wilks’ next claim, which concerns the Vice-Chancellor (VC) of the University. While Dr Wilks concedes that the VC, who was appointed late 2011, was not involved from the start, he believes that when he drew the VC’s attention to the issues surrounding the “Theology Experiment”, she became complicit in the behaviour.

[110] In February 2012, Dr Wilks attempted to organise a meeting with the VC to discuss the way in which he believed the HOS and Pro-Vice Chancellor (PVC) were behaving towards him. The VC requested Dr Wilks to provide a summary of his reasons for requesting a meeting, which Dr Wilks did, including his belief that he was being “played as an expendable pawn in some larger game”. The VC did not schedule a meeting with Dr Wilks and he speculates that this was for a strategic reason in relation to the “Theology Experiment” and that if the VC had investigated his claims she would have been alerted to problems such as:

his previous successful HDA claim (and that he was claiming it again);

that his HOS had refused to consider his most recent claim for HDA;

what Dr Wilks has labelled “the whole course disaster”, namely the additional marking Dr Wilks had to undertake in 2011; and

his concerns about the “Theology Experiment”, the merger of the disciplines, and the possibility of academic fraud.

[111] Dr Wilks speculates that “given the systemic nature of these problems, the VC may well have decided that, since they were too difficult to actually deal with, her only alternative was to cover them up”. Dr Wilks goes on to assert that whatever the VC’s actual reasons for not responding to him, her failure to reply was worrying as it suggested she was turning a blind eye to the bullying that he was being subjected to and sanctioning its escalation. Dr Wilks says this added to his stress and anxiety which triggered his second uncontrollable swearing fit in April 2012.

[112] The relevant facts in relation to this issue can be summarised in short terms; Dr Wilks provided a summary of his concerns to the VC and she did not respond. Every other aspect of this issue is speculation on the part of Dr Wilks.

[113] The University is a very large organisation. It employs a large number of people and teaches thousands of students. The VC cannot be expected to personally deal with every issue or concern within the mind of an employee or student. That is why the University has rigorous processes for student complaints and staff complaints to be dealt with. The Enterprise Agreement contains express provisions in relation to staff complaints. Dr Wilks is well aware of those provisions; he has used them himself.

[114] In circumstances where Dr Wilks was in communication with his HOS and the PVCA in relation to the many issues that troubled him and Dr Wilks had the complaints process available to him if he thought he was not being treated in a proper manner, the fact that the VC did not personally respond to Dr Wilks’ summary of concerns in 2012 is neither unexpected nor unreasonable. Further, there is no proper basis in the evidence for the speculative motives Dr Wilks has nominated for the reasons behind there being no personal response by the VC to his summary of concerns.

The uncontrolled swearing fit, student complaint and unsatisfactory performance allegations

[115] In April 2012, Dr Wilks suffered from an uncontrollable swearing fit during a lecture. This was the second of these episodes, with a previous fit occurring in September 2011. The second swearing fit led to a complaint being filed by a student six months after the event. This complaint led to Dr Wilks’ HOS making unsatisfactory performance allegations against him in October 2012.

[116] At the time of the swearing fit in April 2012, Dr Wilks claims that he was suffering from stress and anxiety, and that he had been contending with the added stress and anxiety associated with the VC “ignoring” his allegations.

[117] Following communication from the NTEU, on behalf of Dr Wilks, to the University pointing out that the student complaint had to be investigated before any disciplinary action could be taken against him, Dr Wilks states he spent six to eight weeks working on a response to the student complaint. However, about two days before the meeting with the University at which Dr Wilks was due to respond to the student complaint, Dr Wilks says that his union representative decided he would not use the extensive documentary material Dr Wilks had prepared in responding to the complaint and instead Dr Wilks should “cop it sweet” and undertake the development plan proposed by the HOS. Dr Wilks did not agree with this strategy on the part of his union representative and had an argument about it with him. Dr Wilks also says that his union representative “dropping him” in this way had a devastating impact upon his mental health, and he did not attend the meeting with the University in February 2013 at which he was to provide his response to the student complaint, nor did Dr Wilks request an adjournment of that meeting.

[118] Professor Markwick gave evidence, which I accept, to the effect that he has never seen the detailed documentary material Dr Wilks prepared to respond to the 2012 student complaint. It is not surprising that Professor Markwick has not seen that material because Dr Wilks did not send it to the University; Dr Wilks provided that information to his union representative and his union representative decided that such material should not be used in defence of the complaint.

[119] Dr Wilks complains that Professor Markwick did not investigate the 2012 student complaint and did not afford him natural justice in relation to it. I reject those contentions. The first step in any such investigation is to obtain details of the complaint from the student. Professor Markwick did that. The second step is to give the person about whom the complaint has been made, in this case Dr Wilks, an opportunity to respond to the complaint. Professor Markwick did that. If the complaints, or any of them, are denied, then further inquiries or steps may have to be taken before any conclusion can be reached. The investigation into the 2012 student complaints did not get beyond the second step because Dr Wilks was given the opportunity to, but did not, provide a response to the complaints. In those circumstances, it was reasonable for the University to reach its finding that the allegations were made out on the basis of the material before it. Doing so did not result in a breach of natural justice.

[120] Dr Wilks may have a valid complaint to make about the way he says he was treated by his union representative in relation to the 2012 student complaint, but, in my view, there was no unreasonable or improper conduct on the part of the University in relation to this issue.

Dr Wilks’ complaint against his Head of School

[121] In March 2013, Dr Wilks lodged a formal complaint against his HOS (Professor Markwick) on the grounds that he had sought to deny Dr Wilks natural justice in relation to the 2012 student complaint. Dr Wilks’ complaint consisted of five elements:

1. That there was no investigation into the student allegations;

2. That the student who made the complaint against Dr Wilks was in collusion with the HOS;

3. That the HOS solicited the complaint from the student in the first place;

4. The attempt to deny Dr Wilks of natural justice was just one of a number of moves in campaign of harassment and persecution the HOS had waged against Dr Wilks for the previous two years; and

5. That the HOS was waging this campaign without having any regard for the impact upon students.

[122] Dr Wilks’ complaint against his HOS was dismissed by the University in about August 2013 for two reasons: first, the first four components of the complaint had insufficient evidence to support the claims; and secondly, the fifth component was being made on behalf of others. Dr Wilks asserts that the University failed to properly investigate his claims against his HOS before dismissing them, and that by doing so it bullied him.

[123] I have already dealt with Dr Wilks’ contention that there was no investigation into the student complaint against him. As to the allegations of collusion between the HOS and the student and the HOS soliciting the complaint, those matters were raised by Dr Wilks with Professor Markwick during his evidence in these proceedings. Professor Markwick denied both allegations. I accept his denials in that regard. There is no direct evidence to support them. The most that Dr Wilks can point to is a connection between Professor Markwick’s wife and the student who made the complaint, which connection was primarily based on a community campaign in which each of them had involvement. Professor Markwick gave what I observed to be careful and patient evidence to the questions put to him by Dr Wilks. He was both direct and responsive in his answers to Dr Wilks’ questions. The allegations made by Dr Wilks against Professor Markwick are very serious. I would need clear and cogent evidence before I made a finding in favour of them. No such evidence was adduced to support the allegations. I reject them. As to the fourth allegation by Dr Wilks, Professor Markwick denied the allegation that he somehow targeted or waged a campaign of harassment and persecution against Dr Wilks. I accept Professor Markwick’s evidence in that regard. There is no doubt that Dr Wilks and Professor Markwick disagreed about operational and other matters at the University, but the evidence does not support a finding that Professor Markwick treated Dr Wilks unreasonably or targeted him in any way. As to the fifth allegation, the University was correct to conclude that it was a complaint made on behalf of others.

[124] In light of the nature and substance of the complaints made by Dr Wilks against Professor Markwick and my views in relation to the merits of those complaints, as set out in the previous paragraph, I am satisfied that the University undertook a reasonable investigation and followed a reasonable process in making its findings in relation to those complaints.

Honours Students

[125] Dr Wilks asserts that part of the bullying against him and the cause of his conduct the subject of the allegations relates to unfair treatment afforded to Dr Wilks’ students by the University. For example, Dr Wilks points to the fact that one his honours students did not get a PhD scholarship immediately even though the student was a University medal winner and the recipients of such prizes are usually offered a PhD scholarship as a matter of course. Dr Wilks contends that the student was treated in this way because the student was one of his honours students. There is no direct evidence to support these contentions. The basis for the assertions is simply the way in which other students in these situations are usually treated and the lack of knowledge, on Dr Wilks’ part, for any other reason for the decision not to offer a PhD scholarship to the student.

[126] There is no evidence before me as to why the student was not immediately offered a PhD scholarship. Absent such evidence, I am not prepared to make a finding that the decision was made because Dr Wilks supervised the student, particularly in circumstances where the student was offered a PhD scholarship after Dr Wilks raised an issue about it and brought the student’s circumstances and potential to the attention of the relevant decision maker.

[127] By way of a further example on the topic of honours students, in 2011 and 2012 Dr Wilks says he was attracting a number of students wanting to pursue honours in psychology. At about the end of 2013, Dr Wilks was told that he was not allowed to supervise honours students any longer. Dr Wilks believes that decision was unreasonable. It caused him further anger and frustration.

[128] There were two principal reasons for the University’s decision not to allow Dr Wilks to supervise honours students. First, Dr Wilks was a level A lecturer and it is usually the case that only level B lecturers and above are given the task of supervising honours students. Secondly, Dr Wilks had made a number of HDA claims in previous years and the University wanted to limit the prospect of such claims being made on a regular basis. On this front, the University was of the view that Dr Wilks should apply to become a level B lecturer and various people had encouraged Dr Wilks to apply for the promotion to level B over a period of time. Notwithstanding those encouragements, Dr Wilks did not seem able or willing to put the necessary time and effort into making a promotion application in accordance with the applicable criteria.

[129] Although I can, at one level, understand Dr Wilks’ frustration in not being able to supervise honours students from the end of 2013 when he had done such work for a long time in the past as a level A lecturer, the University put forward a reasonable path for him to be able to continue supervising such students, namely he could apply for and become a level B lecturer. Dr Wilks chose not to take up that path.

The 2014 student complaint and the COI process

[130] In August 2014, Dr Wilks gave his first lecture in Phil 1060 for semester 2. During that lecture one student left and subsequently made a complaint. That complaint is the subject of some of the allegations made against Dr Wilks.

[131] Dr Wilks claims he was treated unfairly and unreasonably in the investigation of the student complaint including in the COI process, and he was unreasonably removed as a course co-ordinator and lecturer of Phil 1060.

[132] The University removed Dr Wilks from the role of course co-ordinator because that was part of the basis of his HDA claims. As to the decision taken by the University to remove Dr Wilks (with effect from the commencement of 2015) as lecturer of Phil 1060, that decision was taken, according to Professor Simon Dennis, because “there have just been too many incidents, and … I really have little confidence that a substantial change in attitude is imminent”. 47 Other documentary evidence supports the fact that other student complaints were made against Dr Wilks. In those circumstances and in view of the COI process which took place during 2015, I am of the view that it was reasonable to remove Dr Wilks from the Phil 1060 course until the conclusion of the COI process.

[133] In my opinion, the investigation into the student complaint was fair and reasonable. The complaint was communicated to Dr Wilks in writing. He was provided with a fair opportunity to respond to it, which he did. The student complaint then became part of the subject of the COI process because the complaint was denied by Dr Wilks. The COI process went for 10 days and resulted in 404 pages of transcript. Dr Wilks participated fully in the process. He questioned witnesses, reviewed documents, made submissions and had a support person with him during the process.

[134] Dr Wilks contends that the COI process was a whitewash or was whitewashed. He asserts that the COI gave inordinate weight to evidence of emails and other communications which Dr Wilks had always admitted sending, the COI disregarded, distorted and downplayed Dr Wilks’ evidence, and the COI assumed the truth of evidence put forward by the University’s officials without subjecting it to scrutiny. Dr Wilks also contends that the COI failed to consider or investigate the factors in mitigation he put forward as part of his “defence” to the allegations.

[135] I reject these criticisms of the COI process. The process was undertaken by an independent chair, Dr Barclay, who was not an employee of the University, a staff member nominated by the NTEU, Mr Greg Preston, and a staff member nominated by the University, Professor Mark Jones. The report prepared by the COI is 140 pages long; it is detailed and comprehensive. It is clear from reading the COI report and the transcript of the COI hearings that the COI had regard to a wide body of documentary and oral evidence from both Dr Wilks and other relevant witnesses. The reasons given in the COI report demonstrate that the evidence was considered and weighed up before conclusions were reached on the basis of that evidence.

[136] It is apparent from the COI report that the COI had regard to a range of matters raised by Dr Wilks in mitigation, including Dr Wilks’ medical history and conditions. 48

Dr Wilks’ mental health

[137] The COI, with Dr Wilks’ consent, obtained a report from Dr Wilks’ long term general practitioner, Dr Stephanie Brookman. A copy of Dr Brookman’s report was admitted into evidence in these proceedings. Relevant information from Dr Brookman’s report is summarised in the following four paragraphs.

[138] Dr Wilks has been diagnosed as suffering from major depression and anxiety for a significant period of time; his condition fluctuates and is exacerbated when he is under stress. Dr Wilks has been prescribed medication for his condition intermittently since 1997, however it is unlikely, according to his general practitioner, the medication had an effect on his workplace behaviour, or uncontrollable swearing. Dr Wilks has not been diagnosed with Tourette’s Syndrome.

[139] Dr Wilks has underlying personality traits which makes him vulnerable to anxiety and depression when circumstances around him are difficult for him to control and do not align with his desired outcomes.

[140] When anxious and depressed Dr Wilks becomes irritable, which makes interactions with his colleagues difficult and could impact on his performance as an academic in lectures and tutorials. Irritability of this kind and some level of frustration could potentially lead to behaviour such as swearing uncontrollably during lectures. Difficulty with anger control is also a recognised symptom of depressive illness and coupled with a loss of insight of the consequences of Dr Wilks’ actions could explain an inability to control expressing anger in written communications.

[141] Dr Brookman issued the following medical certificates to Dr Wilks in the period from January 2013 to August 2015:

(a) Unfit for normal duties from 25 February 2013 to 28 February 2013 – exacerbation of anxiety;

(b) Unfit for normal duties from 20 August 2013 to 6 September 2013 – anxiety;

(c) Fit for suitable duties (20% reduction in teaching load, avoid stressful situations such as meetings with colleagues) from 9 September 2013 to 30 September 2013 – graduated return to normal duties;

(d) Fit for suitable duties (20% reduction in teaching load, avoid stressful situations such as meetings with colleagues) from 30 September 2013 to 14 October 2013 – ongoing graduated return to normal duties;

(e) Fit for suitable duties (Normal teaching load, 20 hrs marking per week, minimise stress by reducing face to face meetings with HOD) from 14 October 2013 to 4 November 2013 – upgrade of duties in graduated return to normal duties;

(f) Unfit for normal duties from 22 October 2013 to 23 October 2013 – exacerbation of anxiety;

(g) Fit for normal duties from 4 November 2013;

(h) Unfit for normal duties from 6 February 2015 to 12 February 2015 – anxiety;

(i) Unfit for normal duties from 16 June 2015 to 3 July 2015 – anxiety; and

(j) 25 June 2015 – certificate of 23 June 2015 (concerning the period from 16 June 2015 to 3 July 2015) revised at Dr Wilks’ request: “Colin has made me aware of the tasks that are required for his submission to the Committee of Inquiry and in my opinion Colin was unfit to carry out these tasks from Tuesday 16 June 2015 to Friday 3 July 2015” – anxiety.

[142] Dr Wilks’ ongoing depression and anxiety is a relevant mitigatory factor. It provides an explanation for why Dr Wilks has felt irritable, frustrated and angry in relation to many acts and omissions on the part of the University over a period of about six years prior to his dismissal. However, in my view, Dr Wilks’ medical condition does not excuse his conduct. If Dr Wilks had engaged in misconduct on a single occasion at a time when he was suffering from a severe period of depression and/or anxiety, the situation may well be different. That is not the present case. Dr Wilks engaged in misconduct over a significant period of time. Much of that conduct took place when Dr Wilks was not certified as either unfit for normal duties or fit for suitable duties only. For example, Dr Wilks’ conduct at the first lecture, semester two of Phil 1060 in August 2014 took place when he had been neither certified as unfit for normal duties nor certified as fit for suitable duties only for many months. The denigrating emails Dr Wilks wrote in relation to his colleagues were sent in the period from August 2014 to 8 January 2015. That was not a period in which Dr Wilks was certified by his treating doctor as being unfit for normal duties or fit for suitable duties only.

Dr Wilks’ history of employment with the University

[143] Dr Wilks commenced employment with the University as an academic in about 1992. He was initially employed on a casual basis, then on a fixed-term basis, and finally on a continuing basis. In the result, Dr Wilks was continuously employed by the University for about 24 years before his dismissal on 26 October 2015.

[144] Apart from the allegations the subject of the COI process, the documentary evidence shows that:

(a) a student complaint was made against Dr Wilks in the second half of 2012, the result of which is set out in paragraphs [115] to [120] above;

(b) Professor Germov issued a letter of directions and warning to Dr Wilks on 5 March 2014; and

(c) student complaints were made against Dr Wilks in the past. 49 On 15 December 2011, Professor Markwick communicated directions and a warning to Dr Wilks in relation to student complaints.50

[145] On the whole, I am satisfied that Dr Wilks had a satisfactory employment record and performance for much of his long period of employment with the University. This factor weighs in Dr Wilks’ favour in assessing whether his dismissal was harsh, unjust or unreasonable.

Harshness of the dismissal

[146] Dr Wilks’ dismissal has had negative consequences for his personal and economic situation. In particular, he has lost the job, together with the income he earned from it, which he had for essentially the whole of his career. Dr Wilks has not obtained alternative employment. He has also lost the satisfaction and enjoyment he derived (for the most part) from undertaking meaningful work as an academic at the University. Those matters must be weighed against the gravity of Dr Wilks’ misconduct in respect of which the University acted in deciding to dismiss him.

[147] The conduct on which the University relied in making its decision to dismiss Dr Wilks may be summarised as follows:

(a) repeatedly denigrating his colleagues in email communications;

(b) breaching a confidentiality direction by discussing a student complaint with students and then emailing the student complaint to a number of former students in circumstances where the student complaint disclosed sensitive information in relation to the student’s mental health;

(c) continuing to make bullying allegations against his HOS after he was aware that such allegations had been dismissed by the University and he had not appealed against, or taking any other action in respect of, the dismissal of the allegations;

(d) acting in a dishonest and misleading way in the COI process;

(e) swearing throughout a lecture after being directed not to do so; and

(f) failing to provide scholarly references to positions put forward in a lecture.

[148] In my view, Dr Wilks’ failure to comply with the direction to provide scholarly references for positions put forward by him in a lecture is at the low end of the scale of seriousness, because Dr Wilks put forward those positions in an introductory lecture and he intended to provide scholarly references to all positions put forward by him throughout the lectures in the course at the time each topic was considered in detail. There is no suggestion that Dr Wilks failed to provide scholarly references when he considered each topic in detail throughout the course.

[149] However, the balance of Dr Wilks’ conduct, as summarised in paragraph [147] above, whether considered in isolation or together, was serious. The values of respect, honesty and integrity are very important to the University, particularly infosar as those values relate to interactions between and concerning academics and between academics and students. Dr Wilks’ conduct in persistently denigrating his colleagues in written communications is a serious matter, particularly within the context of a University and in circumstances where Dr Wilks was attacking the honesty and integrity of his colleagues, rather than using the procedures available to him to pursue a complaint in the event that he had a legitimate grievance with a colleague that could not otherwise be resolved. Dr Wilks has failed in a serious way to meet the standards he was required to meet in relation to his communications and dealings with other academics and students. He has demonstrated by his conduct that he feels at liberty to act as he likes whenever he believes that the University or an employee in a managerial position has made a decision with which he disagrees. Employers are entitled to issue reasonable and lawful directions in the form of policies, procedures and directives and employees are required to conform to such standards in the workplace. In the circumstances, I am satisfied that Dr Wilks’ dismissal was not disproportionate to the gravity of the misconduct in which he engaged, nor was it harsh in any other sense.

Conclusion

[150] The University had sound, defensible and well founded reasons for dismissing Dr Wilks on the basis of his conduct. In particular, Dr Wilks’ dismissal was based on his substantial breaches of University policy and directions. The mitigatory and other matters raised by Dr Wilks do not excuse or otherwise justify the conduct in which he engaged. The University undertook a detailed investigation through the COI process into Dr Wilks’ conduct and the matters he raised. The University gave Dr Wilks every chance to participate in the COI process and to make submissions before the final decision was made to terminate his employment. He was afforded procedural fairness throughout the process.

[151] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the University’s dismissal of Dr Wilks was not harsh, unjust or unreasonable. Dr Wilks’ unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

Dr C. Wilks on his own behalf;

Mr R. S. Warren, of counsel, on behalf of the University.

Hearing details:

2016.

Newcastle:

8 – 11, August.

1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

3 Ibid

4 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

5 Ibid

6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

7 Ibid

8 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363

9 Ibid per Dixon J at p 362

10 Ibid per Rich J at p 350

11 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

12 Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [29]-[37]

13 [2013] FWCFB 6191

14 University Code of Conduct- Policy document 000059

15 COI Report pg24

16 COI Report pg25

17 COI Report pg26-27

18 COI Report pg34-36

19 COI Report pg40-41

20 COI Report pg42-43

21 COI Report pg139

22 Transcript COI, pp211-220

23 Transcript COI, p212

24 Transcript COI, p213

25 Transcript COI, pp211-214

26 MFI 1 – response to allegation 2.1

27 Transcript of COI, p308

28 Transcript of COI, pp 278, 307, 308 & 309

29 Exhibit R3, tab 6

30 MFI 1 – response to allegation 2.1

31 Exhibit R3, tab 6

32 Streeter v Telstra Corporation Limited (2008) 170 IR 1 at [23]; APS Group (Placements) Pty Ltd v O’Loughlin (2011) 209 IR 351 at [56]

33 Exhibit R3 at tab 14

34 Exhibit R3 at tab 12

35 About 20 former students, with a request that they forward it on to other students

36 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

37 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

38 Previsic v Australian Quarantine Inspection Services Print Q3730

39 RMIT v Asher (2010) 194 IR 1 at 14-15

40 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

41 [2013] FWCFB 6191

42 Dr Wilks Submissions p4

43 In 2011, the University calculated Dr Wilks’ workload points as 517, but he believes his workload points for that year should have been 572.

44 Exhibit R1, attachment 3, tab 9, pp52-4

45 Exhibit R1, attachment 3, tab 9, pp53-4

46 Ibid

47 Email from Professor Simon Dennis to Professor Markwick on 28 August 2014

48 See COI report at pp 8-9 & 113-138 (exhibit R3 at tab 15)

49 Exhibit R1, attachment 4, tabs 34 & 35

50 Ibid

Printed by authority of the Commonwealth Government Printer

Dr Colin Wilks v The University of Newcastle