DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Frank Will
v
Deakin University
(U2014/13077)

COMMISSIONER BISSETT

MELBOURNE, 20 MAY 2015

Application for relief from unfair dismissal – serious misconduct – failure to comply with lawful and reasonable direction – engagement in outside work without approval - conflict of interest – dismissal not harsh, unjust or unreasonable – no unfair dismissal

[1] Doctor Frank Will (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Dr Will commenced on-going employment with Deakin University (the University or Respondent) on 16 March 2009 as a Senior Lecturer. His employment was terminated on 22 September 2014.

[2] Dr Will is also the CEO of a company called Ino8 Pty Ltd (Ino8).

[3] Dr Will’s employment was terminated by the University because he:

Inappropriately sought to promote his own private business activities during the course of his employment in breach of a lawful and reasonable direction issued to him; and

He engaged in outside work without seeking prior approval of the University. 1

[4] Pursuant to my decision 2 issued on 13 February 2015 permission was granted for Mr Rinaldi of Counsel to represent the University. Dr Will represented himself in the matter.

[5] Evidence for Dr Will was given by himself, Mr Mounir Kiwan, Mr Debnath Guharoy and Mr Julian Charles.

[6] Evidence for the University was given by:

● Professor Gary Smith, Deputy Vice-Chancellor (Global Engagement);
● Professor Guy Littlefair, Head of School, School of Engineering, Faculty of Science, Engineering and Built Environment;
● Professor Aleksandar Stojcevski, Deputy Head of School, School of Engineering, Faculty of Science, Engineering and Built Environment;
● Professor Trevor Day, Pro Vice-Chancellor, Faculty of Science, Engineering and Built Environment; and
● Professor Kanagaratnam Baskaran, Associate Dean (International)/Chair in Civil Engineering Faculty of Science, Engineering and Built Environment.

Background and direction given to Dr Will

[7] In 2013 there were numerous emails received by Dr Will from Prof Littlefair 3 (and others) in respect to Dr Will’s private business activities. These include:

An email on 18 February 2013 advising that Deakin Commercial saw no commercial value in working with Dr Will to commercialise his technologies for a number of reasons including that the intellectual property (IP) was not clear. The email expressed some concern as to whether the University’s resources were being used to pursue the inventions. 4

An email to Dr Will from Prof Littlefair on 6 June 2013 that said: ‘I thought I had made it clear…The school is unable to provide any support to you for developing your own ideas or patents.’ The email also made it clear that ‘no [University] resources including students’ were to be used to support the work. 5

On 12 September 2013 Prof Littlefair sent an email to Dr Will in which he said: ‘Can I please have an assurance that the proposed work has not relationship to your own external business interests and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 3130
Decision Date: 20 MAY 2015

CaseChat Overview and Summary

In the case of Dr Frank Will against Deakin University, the applicant sought relief from his dismissal on the grounds of unfair dismissal. Dr Will was a senior academic at Deakin University, and his employment was terminated due to alleged serious misconduct, specifically his failure to comply with lawful and reasonable direction, engagement in outside work without approval, and conflict of interest. The dispute was heard and determined by the Fair Work Commission (FWC), an Australian federal statutory tribunal with jurisdiction over employment disputes.

The central legal issues before the FWC were whether Dr Will's dismissal was harsh, unjust, or unreasonable and whether there was a valid reason for his termination. Dr Will argued that his dismissal was unfair because it was not proportionate to his misconduct and that there were mitigating factors. Deakin University contended that Dr Will's actions constituted serious misconduct warranting dismissal and that his dismissal was fair and reasonable under the circumstances.

The FWC found that Dr Will's actions indeed constituted serious misconduct as they involved a breach of trust, conflict of interest, and failure to adhere to university policies. The tribunal held that Dr Will's dismissal was not harsh, unjust, or unreasonable, given the severity of his misconduct and the university's need to maintain high standards of integrity and professional conduct. The FWC also noted that Deakin University had followed a fair process in investigating the allegations and making the decision to dismiss Dr Will. Consequently, the application for relief from unfair dismissal was dismissed, and no unfair dismissal was found to have occurred.

Orders