Dr Dimitri Gramotnev v Queensland University of Technology
[2010] FWA 6237
•20 DECEMBER 2010
Note: An appeal pursuant to s.604 (C2011/2549) was lodged against this decision - refer to Full Bench decisions dated 7 March 2011 [[2011] FWAFB 1446] and 24 June 2011 [[2011] FWAFB 2306] for result of appeal.
[2010] FWA 6237 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Dimitri Gramotnev
v
Queensland University of Technology
(U2009/10396)
COMMISSIONER SPENCER | BRISBANE, 20 DECEMBER 2010 |
Termination of employment - Arbitration - whether valid reason.
Introduction
[1] Dr Dimitri Gramotnev (the Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) following the termination of his employment by the Queensland University of Technology (QUT/the Respondent). The letter of termination cited ‘serious misconduct’ as the reason for termination. The Applicant sought reinstatement to his former position of Lecturer at QUT.
[2] The application proceeded to conciliation before a Fair Work Conciliator; however it was unable to be resolved. No jurisdictional objections were raised and the matter proceeded to arbitration.
[3] The Applicant was represented by Mr John Merrell of Counsel, instructed by Mr Adrian Hallewell of Clifford Gouldson Lawyers. The Respondent was represented by Mr Dan Williams of Minter Ellison Lawyers, instructed by Ms Jane Banney from QUT.
[4] Directions were set for the filing of evidence and submissions. A significant volume of material was filed with Fair Work Australia (FWA) to determine this matter, as the dismissal related to a series of correspondence between the Applicant and the Respondent. Whilst not all of the submissions and evidence has been referred to, all of such have been considered in making this decision.
[5] The Respondent sought to have the matter held as a closed hearing/conference, pursuant to s.399 of the Act. A range of issues arose as a result of this request, including whether the transcript and resulting decision would be public. A further consideration was if a subsequent appeal application was made, whether the manner in which the initial proceedings were conducted would provide some limitation on the nature of that proceeding or other related proceedings where the transcript or decision may be required to be relied upon. The Applicant’s representative objected to this request for a private hearing. This request was not granted. The primary position is that unfair dismissal arbitration proceedings are public proceedings. There were no compelling reasons or significant information to demonstrate that either party would be subject to significant prejudice or damage if the hearing was not conducted as a closed proceeding from the public record. It was emphasised that both parties could make application, if required, to suppress certain parts of the transcript as the matter proceeded if issues of commercial sensitivity etc arose, and these matters would be considered at the time of the application.
Background
[6] The Applicant was 52 years of age at the time of dismissal and had immigrated to Australia from Russia in 1995. He commenced employment with the Respondent in February 1996 in the School of Physical and Chemical Sciences (the School). The Applicant is a physicist and developed expertise in the field of ‘nanophysics’ and particularly nano-optics. He was employed as a Lecturer (Level B), pursuant to the Enterprise Bargaining Agreement (Academic Staff) 2005-2008 (the Agreement), which incorporates the associated QUT Manual of Policies and Procedures (MOPP), including the Code of Conduct.
[7] It is not disputed between the parties that the Applicant authored and sent specified emails, and that this forms the basis of the termination of his employment. Certain concerns and complaints were made by the Applicant (in these emails) directed at senior QUT employees, namely, Associate Professor Godwin Ayoko (Acting Head of School), Professor David Gardiner (former Deputy Vice-Chancellor (Academic)), Professor Peter Coaldrake (Vice-Chancellor), Professor Simon Kaplan (Executive Dean of the Faculty of Science and Technology) and later Professor Kenneth Bowman (Deputy Vice-Chancellor (Academic)). The Respondent considered these concerns and complaints to take the form of threats and intimidation.
[8] The Applicant’s dismissal followed a show-cause process. The termination of the Applicant’s employment was later effected by a letter from Professor Bowman. The termination letter cited ‘serious misconduct’ as the reason for the termination, in relation to specified correspondence sent by the Applicant.
[9] The Applicant’s performance as a Lecturer was not in issue. The primary reason for the termination was the authoring and sending of emails which the Respondent alleged amounted to serious misconduct. The termination letter states “...the subject of the allegation, constituted serious misconduct” and “...in circumstances where you accept that you authored and sent the emails referred to in my original letter to you, and you do not accept my request that you agree not to send similar correspondence in the future, and to cease your ‘pursuit’ of senior members of University Staff, I believe I have no other option but to terminate your employment.”
[10] The Applicant in his evidence stated he was a principled person. It can be seen from the correspondence and his evidence that the Applicant is a passionate, articulate and methodical person. He also provided evidence that he suffered from the disease myelofibrosis, a bone marrow disorder which, according to his evidence, is exacerbated by stress and in particular stress associated with the events arising from the circumstances he alleged were associated with the unfair processes he was subjected to during the course of his employment, as set out in his correspondence. The Applicant gave evidence that he had not taken a single day of “recreational” leave in the time he was employed by the Respondent. 1
[11] The Applicant also stated that his wife is also a physicist with expertise in fields generally known as ‘environmental physics’ and ‘nanophysics’; and that both he and his wife “love conducting research and teaching physics”. He stated their “lives revolve around their work.”
[12] The Applicant’s wife was not employed by the Respondent but had been assisting a group of the Applicant’s PhD students. This formed one of the issues between the parties.
[13] The Applicant’s particular expertise and skills in the field of physics were of significant speciality and were never questioned by the Respondent. His curriculum vitae reflects his impressive qualifications, achievements, experience and knowledge in the field. 2 It was also evident that the Applicant’s students respected, supported and admired him, to the point that a petition was signed by a group of students expressing their disappointment with the Respondent’s actions.3 The hearing was attended by some of the Applicant’s former students.
Legislation
[14] The unfair dismissal application was made pursuant to s.394 of the Act. In determining whether a dismissal was harsh, unjust or unreasonable (and therefore unfair), FWA is required to consider certain matters as set out in s.387 of the Act, set out as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[15] The definition of serious misconduct contained in clause 6.16 of the Agreement is also relevant, as the Respondent relied on this definition. It is extracted as follows:
“ ‘Serious Misconduct’ is misconduct of a serious and wilful nature and is normally limited to:
...
(iii) conduct of a kind which constitutes a significant impediment to the carrying out of a staff member’s duties or to the staff member’s colleagues carrying out their duties;
...
and is conduct of a type that would make it unreasonable to require the University to continue employment of the staff member concerned.”
[16] Clause 44 of the Agreement is also relevant as it provides for ‘Disciplinary action for misconduct and serious misconduct’. Clause 44.2.2 is as follows:
“Any allegation of Misconduct or Serious Misconduct will be considered by the Vice-Chancellor. If he/she believes such allegation(s) warrant further investigation, the Vice-Chancellor will:
(i) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegation(s) and to properly consider and respond to them; and
(ii) require the staff member to submit a written response to the allegation(s) within ten (10) working days of the date of receipt of the written allegation(s).”
[17] Further, the Agreement provides the QUT with the capacity to deal with matters of Misconduct or Serious Misconduct, as follows, in clause 44.2.6 and 44.2.7:
“If one or more of the allegation(s) are admitted by the staff member and the Vice-Chancellor is of the view that the conduct constitutes Misconduct or Serious Misconduct, the Vice-Chancellor will advise the staff member in writing of the decision and the operative date and details of the Disciplinary Action to be taken.
If each of the allegation(s) is wholly or partly denied, or if the staff member has not responded to the allegation(s), the Vice-Chancellor may:
(i) decide to take no further action; or
(ii) counsel or censure the staff member in relation to the conduct in question and take no further action; or
(iii) refer the matter to the Misconduct Investigation Committee.”
[18] Clause 44.2.10 is also relevant:
“Following consideration of the report from the Misconduct Investigation Committee (which will not be binding on the Vice-Chancellor), if the Vice-Chancellor determines that misconduct or serious misconduct has occurred, the Vice-Chancellor shall determine whether or not to impose Disciplinary Action and, if so, what that Disciplinary Action will be. The Vice-Chancellor shall advise the staff member in writing of this decision. Where the decision is that the misconduct or serious misconduct has not occurred the Vice-Chancellor may, at the request of the staff member, publish the decision in an appropriate manner.”
[19] The Applicant had not denied the allegations put to him apart from Dr. Galina Gramotnev’s email and this allegation was withdrawn. Accordingly, the matter was not referred to the Misconduct Investigation Committee.
Evidence and issues relevant to the termination
[20] The Applicant provided evidence on his behalf, in the form of two statements. He was cross-examined. Evidence on behalf of the Respondent was provided by Professor Bowman, the Acting Deputy Vice-Chancellor (Academic), who was also cross-examined.
[21] The Applicant’s representative submitted that the Applicant’s conduct should be considered in the specific context of a series of events; including an earlier complaint made to Major-General Arnison in 2008, and the Applicant’s employment history overall. The events involved the Applicant, various other employees of the Respondent, and the Applicant’s wife.
Summary of events leading to November 2008 complaint to Major-General Arnison
[22] The Applicant submitted that it was relevant that in 2003, accusations were made by Professor Lidia Morawska (Director of the International Laboratory for Air Quality and Health) about the Applicant that he had ‘compromised’ academic ethics. There was a suggestion made that the Applicant was attempting to take credit for his wife’s work. 4 The accusations were that the Applicant had compromised academic ethics, acted with secrecy and against an open and collegial spirit, and that he made accusations against a colleague that were unsubstantiated and unfairly damaging.5
[23] In 2004, the Applicant failed to be promoted, and was further passed over for promotion in 2006 and again in 2008. He stated that this was due to Professor Morawska’s involvement in the selection process.
[24] This determination does not deal with the promotion process; and the relevant materials for such were not put before the tribunal.
[25] In 2007, the School was restructured and the Applicant viewed this as reprisal against him personally, to remove the area of study of which he was a leader. 6
[26] Also relevant is the Applicant’s performance review in mid-2007, conducted by Professor Ayoko. Professor Ayoko wrote on the activity statement, ‘Summary of Discussion, Supervisor’s summary of agreed points of action, including criteria for measuring achievement of goals’:
“...
1.13 Counselled him not to attempt to resolve grievance with members of the University by sending e-mails to all Staff of the School/Faculty/University but through appropriate channels.” 7
[27] This statement by Professor Ayoko was disputed by the Applicant, at the time of the performance review. He stated “I believe that points ... 1.13 ... are not related to the Supervisor’s summary of agreed points of action, including criteria for measuring achievement of goals..., and thus can neither be regarded as agreed points of action, nor they are relevant to this section of the Form.” 8 This Activity Statement was never signed by Professor Ayoko or the Applicant, as a result of this disagreement.
[28] The Applicant also referred to two previous emails to Professor Coaldrake in June and July 2008 in which he raised issues in relation to Professor Ayoko’s conduct. Specifically, in the July email:
“I once again urge you to immediately dismiss the Acting Head of School, Dr G. Ayoko, from his position on the basis of his official misconduct and misuse of position and administrative powers, as well as his incapability to provide reasonable, fair and independent leadership for the School, especially at this crucial moment of the flagged restructure. I also urge you to reinstate the rule of law, as opposed to the jungle of administrative bullying, intimidation and misconduct, and finally provide the School of Physical and Chemical Sciences with a strong, proper, and fair representation by a respectable and independent person (see my email of 1 June 2008). Without these urgent measures, any attempts of restructuring and finding “the most appropriate organisational bases for Physics and Chemistry” are likely to be doomed to a serious and damaging failure.” 9
November 2008 complaint to Major-General Arnison and subsequent report
[29] In November 2008, the Applicant wrote to Major-General Arnison, setting out a detailed complaint (“the November 2008 complaint”) in relation to the above series of events. 10 The Applicant requested Major-General Arnison undertake “adequate measures to reinstate and guarantee the rule of law and respect to persons at this University, including radical and adequate rectification and compensation for the major inflicted damage to any staff members that might have suffered loss and damages...I strongly believe that any resolution of this situation should also involve the full-scale personal responsibility of the involved members...” Accordingly, Major-General Arnison referred the complaint for external review by Mr Andrew See (Barrister).
[30] There was disagreement between the Applicant and the Respondent about the nature of the brief to Mr See for the purposes of the report. The Applicant stated that Mr See’s report was commissioned by the Chancellor in order to determine whether there was a prima facie concern to be put to University Council; it was not an investigation per se. The Respondent saw the brief as determining whether the allegations about the staff the Applicant complained of were substantiated.
[31] Mr See produced a report 11 and it was provided to the Applicant and the Respondent. Mr See concluded:
“Based on the documentation that has been provided:-
• There is no evidence of persistent or gross neglect in the discharge of the Vice Chancellor’s duties, nor is there evidence of misconduct on the part of the Vice Chancellor, which would be detrimental to QUT.
• The documentation does not contain information warranting further investigation of misconduct or serious misconduct against any other officers of the University.
• There is no evidence of reprisal conduct arising from any complaints being made, nor is there any evidence of unlawful conduct on behalf of any University staff member.
• While I have concluded that I do believe that there are aspects of the way in which these administrative issues have been dealt with by the university, that indicate elements of unfair treatment, there is no sign of misconduct or any weightier charge, that emerges from out of the conduct of the University staff.”
[32] The Respondent viewed the report (according to the Council’s meeting minutes 12) as concluding there was no evidence that the Respondent had acted in an unlawful manner toward the Applicant, there was deemed to be no evidence of misconduct on the behalf of QUT senior management, and therefore, the Respondent took no further action in relation to the complaint.
The emails
[33] The correspondence central to this matter is identified, described and summarised as follows, in chronological order. The email exchanges, and the content therein is not in dispute between the parties. The intention and conclusions drawn from the emails, however, are in dispute, therefore relevant detail of the events surrounding the emails is also presented in summary form.
[34] Email from the Applicant to the QUT Council and employees of the School, dated 2 March 2009 (“the 2 March email”): 13 this email set out the Applicant’s concerns regarding Professor Ayoko’s inability to perform the role of Head of School; and urged that QUT appoint a person permanently to that position. Relevantly the email stated:
“Under these circumstances, this is my direct responsibility as an academic staff member at this University and in this School to inform you about my major concerns in relation to the well-being of the School. I also believe that this is my essential duty as a human being to ensure that what has happened to me and what I have endured and suffered during the recent years will never be repeated with anyone else in the School, especially under the continuing (so far) leadership of A/Prof. G. Ayoko.
…
In conclusion, I would like to repeat that I strongly believe that the current Acting Head of School, A/Prof. G. Ayoko, should be replaced by another person, and urgent steps should be undertaken to finally and properly fill in the long-existing vacancy of the Head of School of Physical and Chemical Sciences.”
[35] The Applicant stated that he sent this email because he felt obliged to alert staff members of his concerns and complaints, and to inform them that the Respondent had either denied or ignored his concerns and complaints and to make staff aware of what had happened to him so they would not suffer the same treatment. 14
[36] Professor Bowman received the 2 March email. He viewed the email as highly inappropriate, as it was strongly critical of Associate Professor Ayoko. 15
[37] At around the same time as 2 March email, Professor Bowman stated that he had been discussing Mr See’s report with Professor Kaplan (who had undertaken to address the report with the Applicant and to assist him to move forward). Professor Bowman stated Professor Kaplan was managing the issues with the Applicant because Professor Kaplan was Associate Professor Ayoko’s immediate supervisor. 16
[38] On 4 March 2009, Professor Kaplan and the Applicant had a meeting.
[39] Correspondence from Professor Kaplan to the Applicant, dated 5 March 2009 (“the 5 March letter”): 17 this correspondence constituted a warning against unacceptable conduct, and was provided to the Applicant following the meeting. In this correspondence Professor Kaplan directed the Applicant not to send emails such as the 2 March email. He also referred to the requirement to comply with the QUT’s Code of Conduct (Code) “in all respects”, specifically section 8.1.4(a), which is a requirement to comply with the law. Professor Kaplan stated that “You must not engage in debate or criticism of current affairs (including University affairs) in a defamatory or potentially defamatory manner.” Additionally, the Applicant was referred to section 8.1.5(a) of the Code, which is the requirement to be responsive and courteous to colleagues and others in the University community. Professor Kaplan stated “You must act towards and communicate with your colleagues and others in the University community in a respectful and courteous manner.” Finally, the Applicant was referred to section 8.1.5(e) of the Code which is a “requirement to deal with differing opinion by rational debate”. He stated “You must not communicate with colleagues in a manner which may publicly vilify others or which maybe offensive or humiliating to others.”
[40] Professor Kaplan also expressly directed the Applicant to comply with the Email policy F/1.5.2, and cited it as follows:
“• QUT recognises that email may be used for incidental personal purposes but stipulates that such use must not [amongst other things]: interfere with the user’s employment or other obligations to the University;
• Infringe any other condition of employment or University policies and procedures.”
[41] Furthermore, Professor Kaplan arranged for the Applicant’s performance reviews to be conducted by someone other than Professor Ayoko, following the concerns and complaints raised by the Applicant in relation to Professor Ayoko. It was confirmed in the letter that this arrangement would be reviewed at the end of the year.
[42] Professor Kaplan also confirmed that Dr. Galina Gramotnev did not have any association with QUT, as a QUT employee, honorary appointment, visiting fellow, volunteer or in any other capacity, and therefore, she should not have access to QUT resources. The letter concluded:
“These are all reasonable expectations of a staff member and reasonable management directions. I wish to advise you that failure to follow them will result in formal processes being initiated by the University with potential consequences for you.
I wish to confirm that I believe that the email sent by you on Monday 2 March 2009 to all staff of the School of Physical and Chemical Sciences and to internal QUT Council members making allegations regarding the leadership of Associate Professor Ayoko and calling for steps to be taken to remove him from this role is unacceptable conduct, is potentially a breach of the Code Of Conduct and should not be repeated.
Associate Professor Ayoko has my full support in the role of Acting Head of School and I will not tolerate public attacks of this nature on the leadership and integrity of any Head of School within this Faculty.
Finally, I wish to thank you for the positive spirit in which you engaged in the meeting with me. We value your contributions as a teacher and researcher, and I sincerely hope that you will choose to engage with me to find an alternate path forward from the current situation.” 18
[43] Email from the Applicant to Professor Kaplan, dated 6 March 2009 (“the 6 March email”): 19 this email set out the Applicant’s views regarding the 4 March 2009 meeting with Professor Kaplan and confirmed that he did not believe the matter was resolved; reserved his rights in relation to sending emails in the future to any QUT staff; and set out that he viewed that there existed a culture of bullying, harassment, intimidation and administrative misconduct. The Applicant stated in this email:
“Secondly, I strongly believe that all people should act and behave in accordance with their consciousness, fairness, existing law, and on the basis of what is right and what is wrong...
In particular, as I indicated to you at the meeting, I will pursue A/Prof. G. Ayoko with all available lawful means and capabilities until the level of disciplinary actions against him by the University is adequate to his serious misconduct. Similarly, I will continue pursuing the Deputy Vice-Chancellor (Academic), Prof. D. Gardiner, and the Vice-Chancellor, Prof. P. Coaldrake, until they feel the adequate personal responsibility for their misconduct and mistreatment of staff, and until the current unacceptable situation is adequately rectified.
As I also explained to you at the meeting, I am fighting for my dignity, self-esteem and the respectful attitude to me from other people, especially my superiors. I want my life back and I will get it back whatever it takes...” [underlining added]
[44] The Applicant did not provide any evidence specifically in relation to his motivation for sending the 6 March email, however, it is clear from the email itself that he was recording with Professor Kaplan his initial observations of the 4 March meeting.
[45] Email from the Applicant to Professor Kaplan, dated 12 March 2009 (“the 12 March email”): 20 this email constituted the more formal response from the Applicant to the 5 March letter from Professor Kaplan. In this correspondence, the Applicant stated that he refuted he had breached the Respondent’s Code of Conduct; claimed that QUT officials, including Professor Ayoko, Professor Gardiner, and Professor Coaldrake had breached the Code of Conduct; identified that he viewed the 5 March letter as another act of bullying, set out a response in relation to the issue raised in respect of Dr. Galina Gramotnev, and confirmed that he would continue to raise public debate where he saw appropriate. Extracts from this email are as follows:
“Unfortunately, the somewhat different tone and spirit of your letter dated 5 March 2009, compared to the meeting on 4 March 2009, have suggested to me that the University and Faculty administrations [sic] have decided to step up the direct threats of further reprisals, as well as bullying and intimidation with respect to me and my legitimate efforts related to my major concerns about the well-being of QUT and ridding of the existing culture of bullying, harassment, intimidation, and impediment of the essential contractual duties of staff at this University (see also my previous email of 6 March 2009).
...
As indicated above, I have never violated any of these or other clauses and conditions of the Code of Conduct, and intend to follow this Code in the future.
To my deepest regret, these are the senior management figures, including A/Prof. G. Ayoko, Prof. D. Gardiner, and Prof. P. Coaldrake, who have committed (unlike me) numerous and most serious breaches of all of these Code clauses. Only as just a few examples are the repeated bullying, intimidation and impediment campaigns (in 2007-2008) against me and my wife by the Acting Head of School, A/Prof. G. Ayoko, repeated unfair actions by Prof. D. Gardiner including his campaign (in 2007) to vilify and victimise me (repeatedly ignoring his own admitted in writing conflict of interests) for complaining against the misconduct of Prof. M. Britz. Prof. P. Coaldrake was at least an observer (with the full knowledge of the events) in all these campaigns.
...
Based on the above arguments, I do not regard your directions as reasonable management, but rather further attempts to bully, intimidate and confuse me, which results in further major stress and suffering for me.
...
Unfortunately, I do not think that it would be appropriate for me to tolerate any attempts by the administration to deprive me or any other staff member from our natural democratic rights in accordance with the law and QUT Code of Conduct to raise an [sic] get involved in debates and justified discussions (including public debates and discussions) in relation to the integrity of any administrative figure in the School, Faculty and University.
...
In conclusion, I completely reject any kind of allegations and/or implications of breaches of the QUT Code of Conduct related to my email of 2 March 2009, or to any other my emails, letters, statements and/or actions. Therefore (sorry for repeating this again) I regard your directions to me groundless and unjustified, causing major further stress and sufferings for me, and as such constituting bullying and intimidation that are in breach of the QUT Code of Conduct, and may also lead to breaching, for example, the government health and safety regulations in the workplace.
..
Under the circumstances, I will put my life on the line to ensure that Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere. [underlining added]”
[46] Again, the Applicant did not provide specific evidence in relation to the intent behind this email, however, it can be adduced from the email that he sought to provide his formal response and position in relation to Professor Kaplan’s 5 March letter to him.
[47] Letter from Professor Kaplan to the Applicant, dated 24 March 2009 (“the 24 March letter”): 21 this letter is a response to the Applicant’s 12 March email. Professor Kaplan identified that he was concerned the Applicant was going to continue to breach the Code, despite the Applicant’s denial of such; that the external report (Mr See’s report) confirmed QUT’s belief the matter had been appropriately reviewed; and that the principle of academic freedom did not justify actions that breached the Code. The letter identified the statement “I will put my life on the line...” as a breach of the Code. The correspondence also further specified that Dr. Galina Gramotnev was not to be involved with QUT activities; and alerted the Applicant to the QUT Employee Assistance Plan.
[48] The Applicant stated that Professor Kaplan’s 24 March letter concerned, frustrated and disappointed him, as he felt it was a further demonstration of bullying and intimidation towards him. He also “felt” that the issues raised by him in the 12 March email had not been addressed, and to some extent ignored. 22
[49] Email from the Applicant to Professor Kaplan, dated 30 March 2009 (“the 30 March email”): 23 the Applicant responded to the 24 March letter, specifying that he referred to his previous emails; set out a number of questions in relation to Dr. Galina Gramotnev’s involvement with the Respondent and stated that in his view, the 24 March letter also constituted bullying and intimidation. In relation to the “I will put my life on the line...” statement, the Applicant wrote:
“My statement “I will put my life on the line[...]” is not a threat - it is a statement (and I fully stand by it). Why would Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko be threatened or intimidated by this statement if they, as you are trying to suggest, do not have any case to answer and they do not intend to destroy “another single life or career neither at QUT nor elsewhere?” Or may be [sic] they nevertheless do have a huge case to answer, and they (especially, Prof. P. Coaldrake) are desperately trying to intimidate me into silence...”
[50] On 3 April 2009, the Applicant wrote (“the 3 April complaint”) 24 to the Chancellor, Major-General Arnison setting out his concerns in relation to bullying and intimidation by Professor Kaplan. In part, he stated:
“I regret to say that, under these circumstances, you are now also responsible for their outrageous actions, especially in the light of this new bullying, discrimination and impediment campaign...
I believe that, in accordance with QUT MOPP, this is one of your major duties as the QUT Chancellor to protect the well-being of staff and this University, especially in the case when the senior administrative figures (including the Vice-Chancellor, Prof. P. Coaldrake, Prof. D. Gardiner, A/Prof. G. Ayoko, and now Prof. S. Kaplan) continue with their major serious misconduct and mistreatment of staff (clearly misusing their empowered positions at this University) in the attempts to cover-up for their earlier serious misconduct.”
[51] It is the Applicant’s evidence that he never received a response to these allegations. 25
[52] On 11 April 2009 (“Dr. Galina Gramotnev’s email”), an email was sent, that was signed by the Applicant’s wife, Dr. Galina Gramotnev, addressed to ‘Academic Staff Members’. The email was sent to a number of recipients. The subject line of this email is “concerns about the research culture in the Faculty” 26 which provides an adequate description of the content of this email. This email in part stated:
“I would like to share with you my major concerns about the unacceptable culture with respect to research and research collaborative activities in the School of Physical and Chemical Sciences and the Faculty. I strongly believe that my current situation presents a major interest for the academic staff members in this Faculty, as it is directly related to the attitude of the administration to people undertaking research in this Faculty, including their major external and international collaborations.”
[53] It was alleged by the Respondent that the Applicant had authored and sent this email. He denied this.
Involvement of Professor Bowman
[54] Professor Bowman did not have direct involvement with the 5 March letter, 6 March email, 12 March email, 24 March letter or 30 March email. However, he did state that he had had discussions with Professor Kaplan about the matter, who informed Professor Bowman that things had not been progressing with the Applicant. 27
[55] Professor Bowman became directly involved with the Applicant’s matter on 6 May 2009, when Professor Coaldrake, as Vice-Chancellor formally appointed him as delegate under the Agreement. The appointment letter stated: “I formally delegate you to act as the Vice-Chancellor’s nominee in relation to any allegations of misconduct about the academic staff member, Dr Dmitri Gramotnev”. 28 Professor Bowman stated that while the usual approach was for the Vice-Chancellor to deal with disciplinary issues, the delegation was made as the Applicant had made allegations against the Vice-Chancellor himself, so it was appropriate to recuse himself; and further, it was considered appropriate to select Professor Bowman because of his position and relative distance from the Applicant.29
[56] Professor Bowman stated that he took advice, throughout the process, from Ms Jane Banney and Dr Carol Dickenson in relation to disciplinary procedures. 30 He stated that he did not take any particular steps to inform himself in relation to any historical events between the Applicant and the Respondent, and that in considering whether to take disciplinary action, he referred specifically to the 2 March email, the 6 March email, the 12 March email, the 30 March email (collectively, “the emails”) and Dr. Galina Gramotnev’s email. Professor Bowman formed a view that potentially Dr. Galina Gramotnev’s email was written by the Applicant.31
[57] Professor Bowman stated that he had formed a preliminary view that the Applicant’s conduct in sending the emails constituted serious misconduct. However, he stated that even if the Applicant had sent the emails, that it was possible at that stage, not to terminate the Applicant’s employment, if the Applicant agreed to discontinue sending correspondence “of this nature”. 32
[58] On 8 May 2009 Professor Bowman wrote to the Applicant (“the 8 May letter”). 33 The 8 May letter specified that he (Professor Bowman) had been appointed to determine whether the Applicant had engaged in conduct amounting to misconduct or serious misconduct, and if so, whether disciplinary action would be taken, pursuant to cl.44 of the Agreement. Clause 44.2 states:
“Before the Vice Chancellor takes Disciplinary Action against a staff member for conduct amounting to Misconduct or Serious Misconduct, the Vice-Chancellor must take the steps in this Clause, except that, where a matter which may involve Misconduct or Serious Misconduct has been dealt with in good faith as if it were a case of unsatisfactory performance under Clause 43 the procedures in this Clause are not required.”
[59] Professor Bowman referred directly to the 2 March email; and to Dr. Galina Gramotnev’s email, stating “the correspondence may in fact have been from you or at least written or authorised by you.”
[60] Professor Bowman’s 8 May letter required the Applicant to respond to allegations that he had authored and sent the 2 March email, the 6 March email, the 12 March email, and the 30 March email. There was an additional allegation that he had authored the email purportedly sent by his wife on 11 April and that the email was sent from an email address which appeared to be owned by the Applicant. The 8 May letter stated in part:
“I only require a response in relation to the specific presumptions and allegations about the authorship and sending of the emails. The correspondence speaks for itself.”
[61] Professor Bowman also set out his concerns in relation to the Applicant’s correspondence as follows:
“It is appropriate for me to explain the nature of my concerns so that you can understand in particular why I am seeking undertakings from you that you will not continue with the conduct.
In summary, my concerns are:
(a) The correspondence suggests that you have embarked on a deliberate, public campaign against the leadership of Professor Ayoko, Professor Simon Kaplan, Deputy Vice-Chancellor (Academic) Professor Gardiner and the Vice-Chancellor, Professor Coaldrake.
(b) In pursuance of this campaign, you have sent, and you have stated that you will continue to send, correspondence containing serious allegations against these members of staff to a wide range of university recipients, including within the School of Physical and Chemical Sciences and beyond.
(c) You have indicated an intention to continue with this course of action against Associate Professor Ayoko until Associate Professor Ayoko has received disciplinary action from the university which you regard as adequate for his serious misconduct.
(d) You have indicated an intention to continue pursuing the Deputy Vice-Chancellor (Academic) and the Vice-Chancellor until they feel adequate personal responsibility for their misconduct and treatment of staff and until the current situation is adequately rectified.
Assuming the correspondence was in fact authored and sent by you (which I will assume unless advised otherwise ...), then unless I receive an undertaking from you that the correspondence will not be repeated and the foreshadowed campaigns will not be pursued, I would have to consider whether your employment should be continued.
I draw your attention in particular to the following extracts from the correspondence:
(a) Your email to a number of recipients dated 2 March 2009 contained strong criticisms of Associate Professor Ayoko including the following statement:
‘In conclusion, I would like to repeat that I strongly believe that the current Acting Head of School, A/Prof. G. Ayoko, should be replaced by another person, and urgent steps should be undertaken to finally and properly fill in the long-existing vacancy of the Head of School of Physical and Chemical Sciences.’
(b) In your letter by email to Professor Simon Kaplan dated 6 March 2009, the following extracts appear:
‘First is a comprehensive settlement between myself and the university administration. Such a settlement should necessarily involve simultaneous and fair resolution of all the aspects of this complex situation and that has only been escalating for the last four years. The second of the two possible ways is to continue this fight with all available lawful means in order to rid this university of the existing culture of bullying, harassment, intimidation and administrative misconduct which has unfortunately spread up to the very top of the QUT senior management.’
‘In particular, as I indicated to you at the meeting, I will pursue A/Prof. G. Ayoko with all available lawful means and capabilities until the level of disciplinary actions against him by the university is adequate to his serious misconduct. Similarly, I will continue pursuing the Deputy Vice-Chancellor (Academic), Prof. D. Gardiner, and the Vice-Chancellor, Prof. P. Coaldrake, until they feel the adequate personal responsibility for their misconduct and mistreatment of staff and until the current unacceptable situation is adequately rectified.’
‘You told me that you had been asked to tell me not to send any more emails to the Chancellor and Vice-Chancellor, and indicated that they will no longer respond to me. In this regard, I reserve my natural right to send emails to any administrative person at the university or outside whenever I deem necessary and appropriate, including the Chancellor and Vice-Chancellor and I will continue doing so in the future. I also reserve my full rights to send appropriate true information and made [sic] public interest disclosures to staff members to any other audience, especially when the administration neglect their direct duties and responsibilities.’
(c) Your email to Professor Simon Kaplan dated 12 March 2009, responding to Professor Kaplan’s letter to you dated 5 March 2009:
(i) made it clear that despite Professor Kaplan’s indication to you that he regarded your email sent on 2 March 2009 as inappropriate, you rejected that advice;
(ii) rejected Professor Kaplan’s direction to you not to communicate other than as set out in Professor Kaplan’s letter of 5 March 2009;
(iii) contained the following statement:
‘Under the circumstances, I will put my life on the line to ensure that Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko will not be able to destroy another single life or career at QUT nor elsewhere.’
(d) In response to Professor Kaplan’s letter to you dated 24 March 2009 (which advised that he considered the comment above as one which could be regarded as a threat in breach of the Code of Conduct) you referred to your earlier correspondence (6 March 2009, 12 March 2009 and 16 March 2009) as a clear explanation of your position and views, and also said the following:
‘My statement ‘I will put my life on the line to ensure that Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere’ is not a threat - it is a statement (and I fully stand by it).’
(e) The email sent from the email address [withheld] on 11 April 2009 (under the stated authorship of Dr Galina Gramotnev) was sent to a broad list of recipients within the School of Physical and Chemical Sciences as well as to a number of other recipients. The correspondence was, broadly, critical of particular actions of senior members of academic staff, including Dr Ayoko and included extracts from some of the above correspondence.
I wish to assure you that I understand these extracts exist in the context of the correspondence as a whole, and I also understand that the correspondence itself rests within a broader context. My purpose in extracting particular parts of the correspondence is to give you a fair understanding of my particular concerns about the correspondence.
I am also aware that you are not satisfied with the outcome of a recent investigation into allegations made by you concerning senior members of university staff, and that the correspondence may be prompted in part by that disappointment. However, as advised to you, the university regards those allegations as having been appropriately and independently investigated. The university has also been advised by the Crime and Misconduct Commission that it has no further requirements of the university concerning the matter, and I understand that you have also been advised accordingly.”
[62] Professor Bowman’s letter sought two undertakings from the Applicant; that he adopt the communication protocol that was identified in Professor Kaplan’s 5 March letter and that he (the Applicant) “refrain from any further correspondence, particularly of a broadcast nature, which is critical of any member of academic staff.” (“the Undertakings”). The letter also stated that the Applicant was to “take no action of any kind which is in the nature of a ‘pursuit’ of any member of QUT staff” and was invited to respond. This correspondence required him to respond to Professor Bowman within 10 working days.
[63] The Applicant did not respond as required to Professor Bowman but forwarded his response to the 8 May letter to the Chancellor. 34 On 11 May 2009, Professor Bowman wrote to the Applicant advising that it is necessary for the Applicant to respond to him, being the nominated delegate.35
[64] The Applicant stated that at this stage, he felt that QUT’s responses to his complaints were unfair, and that he felt increasingly concerned and disappointed by their responses to his complaints, and QUT’s conduct. As each further event that unfolded was related to the previous event, the Applicant stated that, it did not seem to matter how he complained or to whom he complained, that nothing was ever done about the specific issues of his complaints. 36
[65] On 15 May 2009, the Applicant again wrote a lengthy letter to the Chancellor, Major-General Arnison setting out a formal complaint in relation to the “inappropriate actions, further misconduct, reprisal actions and direct threats of reprisal actions” by Professor Coaldrake and Professor Bowman (“the 15 May complaint”). 37
[66] The 15 May complaint set out the Applicant’s concerns in relation to Professor Bowman’s appointment as delegate, referred to clause 44 of the Agreement and that he had not been specifically notified of the allegations against him, identified that the Applicant had concerns that Professor Bowman held a conflict of interest, and questioned why the disciplinary action was being taken when Professor Kaplan had informed him QUT would not take any formal disciplinary action against him. He also referred to the 3 April complaint to Major-General Arnison and highlighted he had not received a response. The Applicant stated in the letter:
“As a result, unfortunately, I have to say that in the event of any further breaches of the QUT Code of Conduct and procedural fairness by the QUT Vice-Chancellor, Prof. P. Coaldrake, or any of his subordinates (including Prof. S. Kaplan and Prof. K. Bowman), and continuing reprisal and bullying actions against me in relation to this matter, I will be left with no choice other than to regard you personally responsible for any such actions and breaches.”
[67] On 17 May 2009 (the 17 May letter), the Applicant wrote to the Chancellor again, setting out his concerns in relation to his perceived barriers to his being granted a promotion commensurate with his level of skill and responsibility and that as a consequence he would not apply for promotion to any level of Lecturer. 38 Further in his 17 May letter the Applicant concluded as a result of the unresolved issues he was holding the Respondent accountable for a range of potential future losses. He stated as follows:
“Therefore, the University will be liable for further financial losses in the form of lost salaries, career opportunities, detrimental major stress, and moral losses, resulting from the absence of a suitable resolution of this grossly unfair situation and administrative unfairness, which clearly prevent me from applying for personal promotion in 2009 (the closing date for which is tomorrow, 18 May 2009).”
[68] The Major-General forwarded both the 15 May complaint and the 17 May letter to Professor Bowman, and informed the Professor he had not responded to the Applicant. 39
[69] In response to the Applicant, Professor Bowman wrote to the Applicant on 19 May 2009 again specifying that communication be directed to him, and that he was free to apply for a promotion.
[70] On 21 May 2009 (the 21 May letter), the Applicant responded to 8 May letter. 40 The letter stated, in similar terms to the 15 May complaint, that the Applicant did not accept Professor Bowman’s appointment as Acting Vice-Chancellor, as Professor Coaldrake had appointed him and thus created a conflict of interest as the Applicant had outstanding complaints against Professor Coaldrake. He also referred to the complaint of 3 April to the Chancellor, stating that nothing had been done in relation to this.
[71] He refuted the allegations, specifically “Being an author of some emails is not an allegation”, and that this failure to specify the allegations was inconsistent with cl.44 of the Agreement. The letter stated that he denied authoring the 11 April email from Dr. Galina Gramotnev, and described the 2 March email which he forwarded to all staff and complained of Professor Ayoko’s conduct, as ‘whistleblowing’. The letter stated he would not make the undertakings requested, and re-asserted his perceived ability to continue to send such emails. The 21 May letter stated:
“Under the circumstances, I have to most clearly confirm my previous statements that I will pursue by all available lawful means the QUT administration and, in particular, the Vice-Chancellor, Prof. P. Coaldrake, Deputy Vice-Chancellor (Academic), Prof. D. Gardiner, Acting Head of School of Physical and Chemical Sciences, A/Prof. G. Ayoko, and, now, the Executive Dean of the Faculty of Science and Technology, Prof. S. Kaplan, for their continuing misconduct, continuing reprisal actions and threats of reprisal actions, most severe bullying, intimidation, severe stress, and extraordinary financial, professional, personal and moral damages and losses to me and my family for more than 4 years (!).”
The decision to terminate the Applicant’s employment
[72] Professor Bowman stated that in the absence of direct evidence of the Applicant sending Dr. Galina Gramotnev’s email and the Applicant’s denial of the allegation, he could not make a finding that the Applicant sent that email, and therefore discontinued that allegation as a consideration for termination.
[73] He stated that he believed it was clear that the Applicant did not accept it was inappropriate for him to continue to send such correspondence, and that the Applicant had confirmed his intention to continue to do so. 41
[74] Professor Bowman sought advice from “QUT’s legal advisors” in relation to disciplining the Applicant. Attached to his statement was a copy of a document provided by an undisclosed ‘legal advisor’ with the heading “Matters To Be Considered By Professor Bowman in Deciding Appropriate Disciplinary Action for Dr Gramotnev” (“the Advice”).
[75] The advice was provided under the following headings: the nature of the conduct; the impact on other staff; the impact on the University; the availability of alternatives to the proposed disciplinary action; the impact on the Applicant of the proposed disciplinary action and the fairness of the process. 42 He stated that his consideration of the type of disciplinary action to be taken centred on these matters.
[76] Professor Bowman stated that his primary concern was the impact of the Applicant’s conduct on other staff, particularly Associate Professor Ayoko and Professor Kaplan. He stated that he spoke directly to both of them, and although they did not expressly indicate they were intimidated, Professor Bowman concluded that they were feeling the strain of the situation. He said that he formed the view that the Applicant’s conduct had the potential to place “the personal health and wellbeing of some QUT staff members at risk.” 43
[77] He also stated:
“I thought that Dr Gramotnev’s actions had the potential to seriously affect QUT. Apart from the negative impact on relationships within his school and the possible personal impact on critical members of University staff, I was concerned about the prospect that Dr Gramotnev’s correspondence could find its way into the public arena. His email of 2 March 2009 had been sent very broadly, and it is obviously an easy matter for emails to be passed on outside of the University. I thought there was potential for damage to QUT’s reputation if this occurred.” 44
[78] He further stated:
“I was also concerned that if QUT did not take action to prevent Dr Gramotnev’s pursuit of his superiors, other QUT staff may feel that this was an appropriate means by which to air their grievances...” 45
…
“I also had no way of predicting what else Dr Gramotnev might do if he did not receive an outcome acceptable to him...I had no way of knowing or predicting what Dr Gramotnev would view as ‘justice’ or what Dr Gramotnev might do in pursuit of what he saw as ‘justice’.” 46
[79] Professor Bowman stated that he considered there was no alternative to the termination of the Applicant’s employment. He stated that despite different attempts to manage the Applicant’s conduct (Mr See’s report, Professor Kaplan’s 4 March meeting, Professor Bowman’s own involvement), the response from the Applicant was allegations of misconduct against each further person that became involved.
[80] He stated that he concluded the Applicant’s working relationship had broken down, and that the Applicant no longer trusted or had confidence in his superiors. The Professor stated that “the breakdown of the employment relationship could not be improved unless Dr Gramotnev’s complaints were resolved in his favour. Given that Dr Gramotnev’s complaints had already been investigated, I saw no way that this could occur.” 47
[81] Professor Bowman also stated that he accepted that the decision to dismiss the Applicant would result in personal hardship for the Applicant, and it was this that led to him to making an ex-gratia payment.
[82] However, Professor Bowman stated that “with the prospect of termination of his employment imminent, Dr Gramotnev might change his approach to the matter” and that if the Applicant provided him with assurances, he could consider alternatives to termination.
The process of termination of employment
[83] On 16 June 2009, Professor Bowman provided to the Applicant a show-cause letter (“the show-cause letter”). 48 The show-cause letter advised that the allegation of authoring and sending emails was substantiated, and constituted serious misconduct, and that the appropriate disciplinary action was to terminate the Applicant’s employment. The allegation with respect to Dr Galina Gramotnev’s email was discontinued. The letter sought a response a week later.
[84] The show-cause letter specified that:
“In this regard, I draw your attention to the particular concerns described in my letter of 8 May 2009. I can also provide the following additional explanation of my conclusions:
(a) Threatening behaviour can itself amount to serious misconduct, and I have concluded that there are threats in your correspondence which are in this category.
(b) In particular, the correspondence contains threats of adverse action by you against senior university executives, including Associate Professor Ayoko, Professor Kaplan, Deputy Vice-Chancellor (Academic) Professor Gardiner and the Vice-Chancellor, Professor Coaldrake. These threats include threats of conduct amounting to a public campaign and other unspecified actions designed to challenge the leadership of these senior executives.
(c) The email sent by you on 2 March 2009 (described in item (a) of my letter) is an example of a specific action by you in pursuance of your stated campaign against the individuals named in that email.
(d) You have stated on a number of occasions that your actions will be carried out within the law. That is relevant, however actions which are deliberately threatening of other employees, or which are likely to be intimidating of other employees is unacceptable and inconsistent with the University’s standards of conduct, irrespective of whether it is also unlawful.”
[85] Instead of responding to Professor Bowman, the Applicant wrote to Major-General Arnison on 22 June 2009. 49 In this letter, the Applicant identified that Major-General Arnison had forwarded the 15 May complaint to Professor Bowman, and therefore questioned Professor Bowman’s ability to conclude, objectively, whether his employment should be terminated as Professor Bowman had been made aware that the Applicant had made a complaint against him.
[86] The Applicant stated in the letter that making the Undertakings (as sought in the 8 May letter) would:
“lose my ability to pursue my complaints and grievances against “any member of QUT staff” including those who have already bullied, harassed, intimidated me, and impeded my essential contractual duties at this University for several years. In my view, such actions by...Prof. Bowman, should be regarded not just as ordinary threats and bullying, but rather as psychological terror and racket.”
[87] In this letter the Applicant demanded that Professor Bowman be suspended and subsequently dismissed. He further demanded that the disciplinary procedures against him be stopped immediately and reiterated that his own complaints of 3 April, 14 May and 17 May had not been investigated or even acknowledged by the Chancellor. He further demanded adequate compensation “for the severe suffering, stress, productivity losses, and career damages during the escalating campaign of bullying, intimidation, direct threats and reprisals in 2009 by the QUT administration.” And that “a full and comprehensive investigation of the inappropriate actions and serious misconduct” of Professor Coaldrake, Professor Gardiner, Professor Bowman, Professor Kaplan and Associate Professor Ayoko. He demanded particularly the resignation or dismissal of Professors Coaldrake and Bowman.
[88] The Applicant later sent a complaint to the QUT Council on 24 June 2009 which set out his concerns again. 50 This letter concluded:
“On the basis of the consistent, major and rapidly growing demonstrated inability and/or unwillingness of the QUT Vice-Chancellor, Prof. P. Coaldrake, to comply with the Code of Conduct and the accepted standards of behaviour at an Australian academic institution, the on-going reprisal actions against a QUT staff member (amounting to official misconduct), inability to properly manage this University and eradicate the existing administrative culture of misconduct, bullying, intimidation and harassment of staff, I demand resignation or dismissal of the QUT Vice-Chancellor, Prof. P. Coaldrake.
It is my expectation that the detailed investigation of the QUT administration (including the Vice-Chancellor, Prof. P. Coaldrake) should be conducted in accordance with my current complaint to the Council and the previous complaints from me and my wife, Dr. Galina Gramotnev, to the QUT Chancellor, Major-General P. Arnison, dated 17 November 2008 (two separate complaints), 3 April 2009, 14 May 2009, 17 May 2009, 22 June 2009, and my letter to Prof. K Bowman dated 21 May 2009.
I expect that the Council and the University will undertake urgent, decisive and adequate disciplinary actions against the involved individuals (whose actions were complained about in the listed complaints) to ensure the compliance of the University administration with the Code of Conduct, procedural fairness, fair justice, democratic principles, and to eradicate the existing culture of bullying, intimidation and harassment of staff at QUT.”
[89] Professor Bowman stated that having regard to the Applicant’s response to the show-cause letter, that the Applicant had forwarded to the Chancellor, he saw no reason to change his preliminary view to terminate the Applicant’s employment.
[90] On 3 July 2009, Professor Bowman, through his secretary, attempted to arrange a meeting with the Applicant to discuss his decision. 51 The Applicant declined. However, the Applicant provided evidence that he arrived home from work at approximately 6.30 pm and discovered a termination letter of even date from Professor Bowman.52 The termination letter stated:
“I have not received a response from you directly. However, I have received copies of your correspondence to the University Chancellor, Major General Peter Arnison dated 23 June 2009, as well as your letter to QUT Council members dated 24 June 2009. This correspondence is to an extent responsive to the issues in my letter. I have now considered all of this correspondence.
Having considered this correspondence, as well as other relevant correspondence, my decision is to terminate your employment.
I am greatly saddened to make this decision, which I appreciate has very significant consequences for you. It is a most unfortunate conclusion to your career with the University.
...
I understand and accept that you remain genuinely disappointed by the University’s response to your earlier allegations, which were investigated by an independent investigator, Mr Andrew See, on behalf of the University. I believe it is likely that your disappointment has contributed to your actions which are now of particular concern to me.
...
Accordingly, pursuant to clauses 44.2.6, 6.16 and 6.7 of the QUT Enterprise Bargaining Agreement (Academic Staff) 2005-2008, I wish to advise you that your employment with the University is terminated effective today, 3 July 2009.
In the case of serious misconduct and consistent with clause 6.7 of the Enterprise Agreement, the University may terminate employment without notice. However, in recognition of your contribution to the University over a number of years and the significant personal impact which this decision is likely to have for you, I will terminate your employment with four months payment...”
[91] The Applicant sent a final email to the Chancellor that same day, asking for the decision to terminate his employment to be overruled urgently. In this email, the Applicant stated:
“I regard this further action of the QUT administration, committed in clear breach of Academic EBA, as the ultimate reprisal act for my previous complaints, whistleblowing disclosures and concerns about the unacceptable administrative situation at this University. I also have to regard this act by Prof. K. Bowman and Prof. P. Coaldrake as their attempt to cover-up for the previous numerous procedural breaches, unfairness and mistreatment that I have suffered at the hands of the QUT administration starting from 2004 (see the provided documents). Unfortunately, my earlier complaints and whistleblowing disclosures about the administrative misconduct, maladministration and on-going procedural breaches at QUT (including my major concerns about the well-being of this School, Faculty and the University) have been ignored, not investigated properly, and not even acknowledged recently.
To my deepest regret, this situation, appalling mistreatment for a number of years, on-going intimidation and threats, psychological terror, and the ultimate reprisal action by the QUT administration in the form of the unjustified and unlawful termination of my employment have resulted in a major prolonged stress and serious damage to my well-being, the destruction of my career and the extraordinary damage to me personally and professionally inflicted by the QUT Vice-Chancellor, Prof. P. Coaldrake, Acting Deputy Vice-Chancellor (Academic), Prof. K. Bowman, and the other previously indicated senior members of the QUT administration.”
[92] It is agreed that the Applicant gave his evidence in an honest and consistent manner, however his aggressive statements with regard to pursuing his claims even if returned to the workplace constituted ‘a significant impediment’ to a continuing employment relationship.
Consideration
[93] As previously set out, FWA is required to consider certain factors in s.387 of the Act in determining whether a dismissal was harsh, unjust or unreasonable.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[94] Central to the determination of this matter is whether a valid reason existed for the termination of the Applicant’s employment. Further to that, whether the Applicant was properly notified of that reason. In this matter it is determined that there was a valid reason for the dismissal but that the manner in which the termination was effected had procedural flaws in regard to the limited nature of the Applicant’s ability to respond. These procedural flaws were not fatal to the overall procedure engaged in and as such did not disrupt the valid reason for the dismissal.
[95] It was submitted that the Respondent’s reason for termination was serious misconduct. The only allegations that were presented to the Applicant for his response was whether he authored and sent the particular emails. He denied being the author of the email attributed to Dr. Galina Gramotnev, but confirmed authoring and sending the others. The allegation relating to Dr. Galina Gramotnev’s email was not pursued by the Respondent.
[96] The letter of termination stated “your conduct, the subject of the allegation, constituted serious misconduct”. It referred to the show-cause letter which also stated that the preliminary finding was serious misconduct. The show-cause letter referred also to the 8 May letter which also referred to serious misconduct. That correspondence set out the allegations that the Applicant authored and sent the emails. The correspondence also confirmed the Respondent’s concerns with the content of the emails.
[97] I concur with the Respondent’s submission that the Applicant’s conduct meets the Agreement’s definition of serious misconduct, as follows:
“Serious Misconduct is misconduct of a serious and wilful nature and is normally limited to:
...
(iii) conduct of a kind which constitutes a significant impediment to the carrying out of a staff member’s duties or to the staff member’s colleagues carrying out their duties;” 53
[98] The Respondent also submitted that, the conduct would satisfy the common law definition of serious misconduct. Specifically, the Respondent relied on the decision of Curr v Australian Taxation Office 54and submitted that threatening and harassing behaviour can be deemed to be misconduct irrespective of the medium used to convey the threats.
[99] It was further submitted by the Respondent that a failure to treat colleagues with respect and courtesy, in breach of a published standard of behaviour within a workplace can amount to a valid reason for termination. 55 The Applicant distinguished the facts in the matter of Curr with his circumstances, stating that the only allegations put to him were those of authoring and sending emails.56 The Respondent also relied on the inappropriate content of the emails.
[100] The Applicant also submitted that there was a delay of two months between his conduct of sending the 2 March email and the first correspondence from the Respondent on 8 May (formally addressing such) and therefore argued the conduct could not have formed a genuine concern for the Respondent about the alleged threats and intimidation toward staff members or indicate that the Applicant had engaged in serious misconduct. 57 The Applicant submitted that if the conduct was seen as serious misconduct, then the Applicant would have been summarily terminated immediately or soon after sending that email.58
[101] The Applicant referred to the decision of Judd J in Howard v Pilkington (Australia) Ltd 59as authority for the scenario where an employer condones an employee’s alleged misconduct it is then unable to rely on the conduct to justify dismissal. The Applicant’s criticism of the Respondent that the delay in addressing the misconduct represented their acceptance of his conduct was misplaced. To the contrary this is not a case where there was an absence of response by the Employer. The Respondent was actively involved in attending to the Applicant’s continued correspondence. The actions of the Employer can be interpreted as deliberately preserving an employment relationship, where the employee was a long term, respected academic; but the employment relationship was problematic and finally became unworkable.
[102] The Applicant submitted that the real reason for the termination was “to silence him from agitating his unresolved concerns and complaints with the Respondent.” 60 Professor Bowman did confirm this proposition in cross-examination to the extent that the Respondent took the view that the complaints were already resolved (by virtue of the review of the matters by Mr See, the Council and the Crime and Misconduct Commission) and that the Applicant’s focus on further pursuit of his claims was incongruent with ongoing employment.61
[103] It is concluded, on the basis of the evidence, that the reason for the termination was serious misconduct related to the Applicant’s conduct; the associated authoring and sending of the emails including the content of the emails. It is acknowledged that the allegations that were put to the Applicant from as early as 8 May were only the specific allegations about authoring and sending the emails. The Respondent relied on the wider implications of the content and audience of the emails against the Code of Conduct. These wider concerns whilst set out by the Respondent in their correspondence were not clearly put as allegations for response to the Applicant. However, the Applicant had been made aware of the Respondent’s concern regarding the content of the emails and the conduct in forwarding such, in the 8 May correspondence, the show-cause letter and the termination advice.
[104] It was primarily submitted on behalf of the Applicant that authoring and sending the emails could not constitute a valid reason for dismissal. 62 The Respondent referred to clause 6.16 of the Agreement to demonstrate how the conduct was serious misconduct. The conduct was consistent with the definition.
[105] The Respondent submitted that the reason for the termination was specifically the sending of the emails and that this was a valid conclusion because the 2 March email “ma[de] a series of highly defamatory and unreasonable comments in relation to [Professor Ayoko’s] leadership.” Furthermore, the Respondent submitted that the 6 March email constituted at least misconduct, in that it presented an ultimatum to the Respondent. The ultimatum was in the form that unless an undisclosed sum of money was paid to him (“a comprehensive settlement”), then he would continue with his approach against senior management. 63
[106] The Applicant submitted that all of these allegations were never put to the Applicant for his response; that the only allegations put to him were whether or not he authored and sent the emails. The Applicant also described these allegations regarding the emails as scandalous, groundless, untrue and fallacious. 64 He further denied that the reference to “a comprehensive settlement” in the emails meant monetary compensation.65
[107] However the Respondent submitted that the emails were threatening and intimidating and pointed to the extraordinary phrase used “I will put my life on the line”. The Applicant’s representative submitted that this could have been appropriately responded to and was explicable in the context of the Applicant’s ill-health. 66
[108] The Respondent denied the Applicant’s submission that the correspondence was not threatening or intimidating, but did agree that there was no express threat of violence. However, the Respondent viewed the Applicants threats of reprisal against his supervisors as threats that were objectively serious and intimidatory. 67
[109] No evidence was led by the Respondent as to whether Professors Coaldrake, Gardiner and Kaplan and Associate Professor Ayoko did feel intimidated or threatened. In fact, the 6 March email and 12 March email were not sent to Associate Professor Ayoko, Professor Gardiner or Professor Coaldrake. These emails were only sent to Professor Kaplan and Major-General Arnison. It was submitted that they could not be intimidated or threatened if they were not in receipt of those emails. 68 However, the Respondent was at liberty to make a judgement on the conduct of the threats in the emails. Further the Applicant’s evidence vindicated the Respondent’s stance, as the Applicant dramatically pledged in further evidence to put his life on the line if reinstated to continue to pursue these employees, until he received what he considered to be an appropriate resolution.
[110] The Respondent submitted:
“Dr Gramotnev, in his correspondence, had also made it clear that he did not accept Andrew See’s report findings, did not accept QUT’s decision to take no disciplinary action, continued to call for the dismissal or removal of specified members of QUT’s senior management, indicated that he would personally do his utmost to ensure that this occurred (and they felt ‘adequate personal responsibility’ for their actions), and refused to accept any of the reasonable directions given to him by Professor Kaplan.
Dr Gramotnev had assumed for himself the de facto role of disciplining senior members of QUT staff despite the fact that University procedures had already been exhausted in relation to his allegations, and they had not been established. Ironically, despite his insistence on due process for himself, his demands for disciplinary action against others paid no heed to these requirements.” 69
[111] The Respondent viewed the Applicant’s correspondence as equivalent to ‘asking for a fight’, 70 and referred to an employer’s responsibility to prevent fights from occurring in the workplace for the safety of all workers. In this respect, the Respondent referred to the decision of Whelan C in Rogerson v Unilever Australia Limited71and McCarthy DP in John Galante v Majestic Plumbing Pty Ltd72in support of this argument. It was submitted on behalf of the Applicant that it is unfair and groundless to compare his own conduct with those of employees who made actual threats against their colleagues.
[112] The Applicant also submitted that his refusal of the Respondent’s request for the undertakings, as sought by Professor Bowman could also not amount to serious misconduct, because the undertakings sought would force the Applicant to abandon his legal rights, and thus could not constitute a valid reason for dismissal. 73 I have concluded that the Respondent’s interpretation of the Applicant’s statements in the emails and the requests made to the Applicant were open to the Respondent and reasonable in the circumstances such that there was a valid reason for the dismissal.
(b) whether the person was notified of that reason;
[113] The basis for the Applicant’s dismissal was behaviour amounting to serious misconduct, including, authoring and sending the emails and the content of such. The Respondent gave notice of the conduct in the 8 May letter, of the allegations were which admitted by the Applicant and confirmed in the termination letter. 74 I have concluded that the Applicant was notified of the reason for his dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[114] The Applicant pointed to the 8 May letter which did not expressly refer to cl.6.16 of the Agreement (the definition of serious misconduct) or the Code of Conduct generally, that it was not compliant with cl. 44.2.2 of the Agreement which required the allegations to be precise to ensure proper consideration could be given to them. The Applicant had given evidence that he was unsure, throughout the entire process, what the nature of the serious misconduct that he was alleged to have committed was. 75 On this basis, the Applicant submitted that there was no proper and fair opportunity to respond to the allegations.
[115] The Applicant submitted that at no point did Professor Bowman seek to clarify and understand the Applicant’s explanation for use of the phrases such as ‘pursue’ and ‘adequate personal responsibility’. The Applicant stated that what he meant by those words was that he intended to continue to raise his legitimate concerns and complaints until he concluded they had been fairly addressed by QUT. 76 The Applicant also pointed out that in each email he sent, he was particular in explaining that he would always act within the law and policies of QUT.77
[116] The Respondent submitted that the Applicant was advised of the allegations, and given an opportunity to respond, which he did on 22 June 2009. 78
[117] The Applicant submitted that he was never provided with an opportunity to respond to anything except the allegation of authoring and sending emails, and the proposed disciplinary action. 79
[118] In Professor Bowman’s correspondence of 8 May to the Applicant, he clearly set out his concerns regarding the Applicant’s conduct and yet he limited the Applicant’s ability to respond to these concerns, instead only requesting him to confirm whether he had authored and forwarded the emails. This represented a denial of procedural fairness. The Applicant referred to the controlled nature of the allegations he was expected to respond to in his 21 May response.
[119] The Respondent had a clear opportunity to put to the Applicant the alleged breaches of their Code of Conduct (and the email policy) as detailed in Professor Bowman’s concerns in his correspondence and to clearly seek the Applicant’s response and to specifically state how the disciplinary policy would be applied.
[120] There was a clear need to restore order to these workplace relations, the escalation of the matter in the series of correspondence by both parties was simply exacerbating the developing animosity between them.
[121] In addition, there was the further opportunity for the Respondent in the show-cause letter to act in accordance with clause 44 of the Agreement. That is, to specifically put to the Applicant the particular deficiencies in his conduct against the Code of Conduct. Accordingly I have determined that he was not provided with an appropriate opportunity to respond to the allegations.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
[122] On the material provided by the parties, it appears that this consideration does not require further examination. There was no refusal or procedure deficiency arising from the circumstances.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[123] The termination of the Applicant’s dismissal did not relate to unsatisfactory performance of his work, but pertained to the manner in which he conducted his employment relationship with the Respondent. He was warned to stop sending the offending emails but continued to do so.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
[124] In relation to s.387(f) and (g), the Respondent as a significantly large employer with dedicated human resources personnel. The Respondent also has access to industrial relations and legal advice. Accordingly, the manner in which the termination was effected has been examined against a standard where these resources and advice were available.
[125] The termination process that was adopted (as identified) was procedurally flawed. This is not a matter however where such flaws were clearly aimed at denying the Applicant ‘a fair go’ or fast-tracking a termination to the prejudice of the Applicant’s ability to be involved in the process. The Respondent here has endeavoured to maintain the employment relationship and engage with the Applicant.
(h) any other matters that FWA considers relevant.
[126] The Respondent submitted that Professor Bowman was open to considering alternatives to terminating the Applicant’s employment; however this was conditional upon the Applicant agreeing to cease sending the offending emails. 80 The Respondent’s submissions in this regard were as follows:
“In all of these circumstances, Dr Gramotnev’s dismissal was not only a reasonable response to his conduct, it was an inevitable response. It is impossible to contemplate any future for the relationship other than its termination on 3 July 2009.
Accordingly, Dr Gramotnev should not be granted any remedy. However even if some unfairness could be detected, reinstatement would be unthinkable. The relationship has not simply broken down; it has been annihilated.” 81
[127] Serious consideration has been afforded to the hardship the dismissal visits upon the Applicant. The Applicant had been employed by the Respondent for 14 years, and that in this period he had an exemplary record of performance and achievement. He had exhibited dedication to his work, and the respect for him by staff, students, and academic peers, was also considered. 82 The age, nature of the Applicant’s work and the fact he is also suffering from a medical condition, as well as the impact of the dismissal have been taken into account in weighing whether the dismissal was disproportionate to his conduct.83
[128] The Applicant also submitted that the apprehended bias of the decision maker should be taken into account as the decision to terminate his employment was made by a person or persons who were subject to a conflict of interest in making the decision. 84 Part of the basis for this submission by the Applicant was that at the time of Professor Bowman’s appointment as delegate, he already had knowledge of the matter and he had not informed Professor Coaldrake that he had formed a view about the inappropriateness of the emails sent by the Applicant.
[129] The Respondent submitted that there is no basis for this speculation and that Professor Bowman was chosen as decision maker, as he had not been directly involved with the history of the matter, and had only incidental knowledge of it. 85 It was submitted by the Respondent that the selection of and approach of Professor Bowman was orthodox in that he was an independent senior manager, appointed to manage a disciplinary process.86
[130] However it is recognised that once the Applicant had included Professor Bowman in his complaints, it could have triggered an alternative response from the Respondent, in the same way Professor Coaldrake removed himself, and put the delegation into someone else’s hands. Alternatively, the establishment of a separate Misconduct Investigation Committee to review the matter as envisaged by the Agreement may have removed any doubt from the Applicant’s mind regarding the alleged conflict of interest. Having stated this, the Respondent had no obligation under the Agreement to convene this Committee as the Applicant had agreed to the allegation. 87 Further, a conflict of interest had been alleged by the Applicant with all of the other personnel and processes (Mr See’s Report). It is unlikely that convening a Committee of agreeable composition to the Applicant would have been able to be formed or that any outcomes of such, contrary to the Applicant’s expected resolution would have been acceptable to the Applicant. That is, it is unlikely that an alternative strategy of examination of the matter by such a Committee would have averted the course with the Applicant. It may have remedied the allegations of conflict of interest, but not overcome the fact that the termination for misconduct was able to be substantiated or that the employment relationship was unable to be suitably re-established. Further the Applicant had simply added each person to whom the Respondent delegated responsibility for dealing with his complaint to the list of persons against whom those complaints were directed.
[131] In fact, the Applicant’s conduct in not responding to Professor Bowman (as the assigned delegate) on the issues in the show-cause letter but instead writing to Major-General Arnison and complaining about Professor Bowman being inappropriate to conduct the process; was manipulative and actively designed to exclude Professor Bowman (yet another of his superiors) from the process.
[132] The Applicant complained about each of the Respondent’s representatives (apart from Professor Langton) that was introduced to the process and whatever process was adopted. The Applicant’s distrust of the representatives was clear in the correspondence and his evidence. His inability to resolve any of the issues or mend any of the work relationships was also obvious. In particular, Professor Kaplan and Professor Bowman tried to re-establish the relationship with the Applicant.
[133] The Applicant’s evidence regarding his continued focus on the agitation of the matters confirmed that his attitude of retribution was incongruent with being able to return to his position. He spoke of a commitment to a resolution of his issues ultimately in his favour that was incompatible with a reasonable ongoing employment relationship. The relationship by virtue of his continued attacks and his goal to sustain his aim to undermine these colleagues demonstrated that the employment relationship was irretrievable.
[134] The Applicant submitted that the Respondent failed to follow the requirements of clause 44 of the Agreement in the process of terminating the Applicant’s employment, including, failing to refer any allegation to a Misconduct Investigation Committee for investigation. 88 In response, the Respondent correctly submitted that because the Applicant had admitted to all but one of the allegations, there was no requirement (in accordance with the Agreement) to refer the matter to a Misconduct Investigation Committee.89 I accept the Respondent’s submission on this point.
Conclusion
[135] The Respondent’s continued responses to the Applicant’s allegations demonstrated a restraint commensurate with endeavouring to preserve the employment relationship and a conservative approach. The Applicant’s correspondence was continually hostile and his failure to follow the requested line of response was insubordinate. It is understood that from the Applicant’s perspective he had endured detrimental treatment from unfairly failing to be promoted, resulting in financial and professional penalty and that this caused him significant frustration. Further it is recognised that he considered the ongoing inability to have the matter appropriately addressed compounded his frustration. He also concluded that each of those appointed to deal with the issues, held a conflict of interest, and this exacerbated the inadequate manner he felt his issues were being dealt with.
[136] The Applicant’s emails demonstrated a tone of aggression, unreasonable persistence and an inflammatory attitude inconsistent with ongoing employment. It is acknowledged that he felt genuinely aggrieved; however his grievances were not reasonably based and he continually refused to address his concerns in a reasonable manner, despite being warned of the ramifications of such continued conduct. Further his manner of insistence on pursuing his senior colleagues and making serious, damaging and unsubstantiated allegations against them made the continued employment relationship unworkable.
[137] After the closure of the case, the Respondent’s representative sought the re-opening of the matter to provide further materials regarding an associated claim filed by the Applicant in the Supreme Court. The Applicant objected to the re-opening on this basis. On the basis of materials filed it was determined that this additional matter was not relevant to the consideration of the s.394 application and therefore it was not deemed necessary to re-open the matter.
[138] Taking into account all of the circumstances of this application as set out, I do not find that the Applicant’s dismissal was harsh or unjust or unreasonable. The procedural flaws associated with the termination have been taken into account. The Applicant was paid four months remuneration at the time of termination. I do not consider the termination was harsh, unjust or unreasonable. In line with this conclusion, I dismiss the Applicant’s application pursuant to s.394 of the Act. I Order accordingly.
COMMISSIONER
Appearances:
Mr John Merrell, Counsel, instructed by Mr Adrian Hallewell of Clifford Gouldson
Mr Dan Williams, of Minter Ellison, instructed by Jane Banney of the Respondent
1 Exhibit 1, Statement of Dr Gramotnev, paragraph [75].
2 Attachment DG2, Exhibit 1, Statement of Dr Gramotnev.
3 Attachment DG13, Exhibit 1, Statement of Dr Gramotnev.
4 Exhibit 1, Statement of Dr Gramotnev, paragraphs [126]-[142].
5 Exhibit 1, Statement of Dr Gramotnev, paragraph [136]-[137].
6 Exhibit 1, Statement of Dr Gramotnev, paragraph [257]-[261].
7 Attachment DG24, Exhibit 1, Statement of Dr Gramotnev.
8 Attachment DG24, Exhibit 1, Statement of Dr Gramotnev.
9 Exhibit 1, Statement of Dr Gramotnev, Attachment DG30.
10 Exhibit 1, Statement of Dr Gramotnev, Attachment DG31.
11 Exhibit 1, Statement of Dr Gramotnev, Attachment DG33.
12 Exhibit 3, Statement of Professor Bowman, paragraph [18].
13 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14. It is noted that there were in fact 3 emails sent on 2 March, the second two containing additional documents.
14 Exhibit 1, Statement of Dr Gramotnev, paragraph [350].
15 Exhibit 3, Statement of Professor Bowman, paragraph [21].
16 Exhibit 3, Statement of Professor Bowman, paragraph [22].
17 Exhibit 1, Statement of Dr Gramotnev, Attachment DG36.
18 Exhibit 1, Statement of Dr Gramotnev, Attachment DG36.
19 Exhibit 1, Statement of Dr Gramotnev, Attachment DG36.
20 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
21 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
22 Exhibit 1, Statement of Dr Gramotnev, paragraph [377].
23 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
24 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
25 Exhibit 1, Statement of Dr Gramotnev, paragraph [386].
26 Exhibit 3, Statement of Professor Bowman, Attachment KB15.
27 Exhibit 3, Statement of Professor Bowman, paragraph [24].
28 Exhibit 3, Statement of Professor Bowman, Attachment KB13.
29 Exhibit 3, Statement of Professor Bowman, paragraphs [27]-[28].
30 Exhibit 3, Statement of Professor Bowman, paragraph [32].
31 Exhibit 3, Statement of Professor Bowman, paragraph [25].
32 Exhibit 3, Statement of Professor Bowman, paragraph [35]-[38].
33 Exhibit 3, Statement of Professor Bowman, Attachment KB15.
34 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
35 Exhibit 3, Statement of Professor Bowman, Attachment KB17.
36 Exhibit 1, Statement of Dr Gramotnev, paragraphs [391]-[398].
37 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
38 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
39 Exhibit 3, Statement of Professor Bowman, Attachment KB18.
40 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
41 Exhibit 3, Statement of Professor Bowman, paragraph [48].
42 Exhibit 3, Statement of Professor Bowman, KB-21.
43 Exhibit 3, Statement of Professor Bowman, paragraphs [61]-[63].
44 Exhibit 3, Statement of Professor Bowman, paragraphs [64].
45 Exhibit 3, Statement of Professor Bowman, paragraphs [65].
46 Exhibit 3, Statement of Professor Bowman, paragraphs [66].
47 Exhibit 3, Statement of Professor Bowman, paragraphs [68]-[72].
48 Exhibit 3, Statement of Professor Bowman, KB-22.
49 Exhibit 3, Statement of Professor Bowman, KB-23.
50 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
51 Exhibit 1, Statement of Dr Gramotnev, Attachment DG14.
52 Exhibit 3, Statement of Professor Bowman, KB-24.
53 Professor Bowman’s equivocal evidence on matching the conduct to the examples in the definition has been taken into account. (Applicant’s Submissions in Reply To the Respondent’s Submissions and Material).
54 [2004] AIRC 1102, Commissioner Bacon.
55 Respondent’s Outline of Submissions For Hearing.
56 Applicant’s Submissions In Reply To the Respondent’s Submissions and Material.
57 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
58 Applicant’s Final Written Submissions.
59 [2008] VSC 491 (20 November 2008).
60 Applicant’s Final Written Submissions.
61 PN1485, Transcript of Proceedings.
62 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
63 Respondent’s Outline of Submissions For Hearing.
64 Applicant’s Submissions In Reply To the Respondent’s Submissions and Material Filed 21 January 2010.
65 Exhibit 2, Supplementary Statement of Dr Dimtri Gramotnev, paragraph [8].
66 Applicant’s Final Written Submissions.
67 Respondent’s Outline of Submissions For Hearing.
68 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
69 Respondent’s Outline of Submissions For Hearing.
70 Respondent’s Outline of Submissions For Hearing.
71 [2003] AIRC 755.
72 [2003] AIRC 589.
73 Applicant’s Final Written Submissions.
74 Respondent’s Outline of Submissions For Hearing.
75 PN250-335, Transcript of Proceedings.
76 Exhibit 2, Supplementary Statement of Dr Dimtri Gramotnev, paragraph [11].
77 Applicant’s Submissions In Reply To the Respondent’s Submissions and Material Filed 21 January 2010.
78 Respondent’s Outline of Submissions For Hearing.
79 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
80 Respondent’s Outline of Submissions for Hearing.
81 Respondent’s Outline of Submissions for Hearing.
82 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
83 Applicant’s Final Written Submissions.
84 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
85 Respondent’s Outline of Submissions for Hearing, paragraphs [4]-[5].
86 Respondent’s Closing Submissions
87 Clause 44.2.6 of the Agreement only requires such a Committee where the allegations are not agreed to.
88 Applicant’s Submissions Outlining the Application and the Grounds on Which it is Made.
89 Respondent’s Outline of Submissions For Hearing.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR500566>
0