Dr Frank Will v Deakin University

[2015] FWC 3130

[2015] FWC 3130

FAIR WORK COMMISSION

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 does not relate to patents or inventions you are or are intending to exploit as an individual…’ (sic) 6

[8] On 30 November 2013 Prof Day, sent an email to Dr Will in which he said:

I have received a copy of the email (below) that you have sent to a number of senior Deakin staff this week, and a copy of the associated submission to the Productivity Commission.

I note that your submission to the Productivity Commission is described as being a personal view. I further note that the submission refers to your private company, Ino8 Pty Ltd…But at the same time your submission also makes mention of your employment at Deakin, and even lists your Deakin email address as your primary contact point.

Frank, as you know the Faculty continues to be concerned about a blurring of the lines between your private commercial interests and your work as an employee of the University. Despite robust discussion with you about this concern it is not clear that you have yet to come to understand our position. It is my view that your email and submission to the Productivity Commission represent a continuation of this pattern. This will require further discussion and I shall arrange a time for us to meet next week. 7

[9] On 13 December 2013 Dr Will had a meeting with Prof Day, Prof Littlefair and Kate Messenger of Human Resources. Dr Will had a support person with him. Arising from that meeting Prof Day sent a letter to Dr Will dated 16 December 2013 (the direction). The letter says, in part:

I confirm that we have given consideration to your intellectual property (IP) and private research activities and have concluded that they do not align with the University’s current interests. As such, any activity associated with your IP and/or private research do not form part of your employment with Deakin.

Accordingly, you must adhere to the following:

1. That you will not allow, direct, propose or facilitate Deakin University staff or students to undertake any activities associated with your own private research…
2. Ensure that Deakin University resources including facilities, students and/or equipment are not used for undertaking your own private research activity.

The University is concerned that your own personal interests and/or research activities cause an actual or perceived conflict of interest with your responsibilities as a Senior Lecturer. It is inappropriate to allow a student of the School to work on projects related to your IP. Such conduct creates a relationship between you and the student from which you would directly benefit. This would be a misuse of your position and you must not engage in this activity.

As discussed and explained at the meeting, I confirm that you should:

• Take all reasonable steps to remedy any current issues, including specifically:

● Review all proposed and current undergraduate and postgraduate projects…
● Cease any research, consultancy or development activity for third parties where Deakin resources are being or are being planned to be used;
● Disclose all agreements currently in place or being negotiated where there could be a perceived or real conflict of interest;

• Ensure there is no repeat of these actions in future;



• Ensure you do not utilise any University resources to assist you with the development of you private inventions/research;



• …



• Read and ensure you fully carefully understand the Code of Conduct, the University’s Conflict of Interest procedure and the University’s Outside Work procedure…



• Going forward, seek approval in writing for your PPR Supervisor and/or your Head of School before conducting any new interests/inventions/research/projects that may have or could be perceived to have a conflict of interest, so that it can be assessed prior to any work being performed. This will include, but is not limited to, any automotive related research, consultancy or development work such as: cross over vehicles, energy saving devices, suspension systems, power and drive train systems, engine componentry, vehicle steering and control, etc

…

I confirm that any future breaches of the Code of Conduct or other Deakin policies and procedures may lead to misconduct or disciplinary action in accordance with the Deakin University Enterprise Agreement 2013. 8

[underlining removed]

[10] A further matter arose on 17 December 2013 when Prof Littlefair advised Dr Will that he was not prepared to agree to Dr Will proceeding with some specified work utilising University resources as it was clearly linked to Dr Will’s personal IP. 9

[11] In March 2014 Dr Will went on sick leave and returned to work on 5 May 2014. On 25 May 2014 he gave a presentation on behalf of the University to a visiting Indonesian Inbound Automotive Trade Mission 10 (the trade mission).

[12] On 25 May 2014, arising from the trade mission presentation, Dr Will was advised that he had breached the direction given to him on 16 December 2013 along with a number of policies in that he presented on his private business interests to the trade mission. 11

[13] Following a newspaper report on Dr Will’s work in June 2014 (not related to the trade mission) Dr Will was advised on 12 June 2014 that he had again breached the direction of 16 December 2013, his contract of employment and a number of University policies by undertaking work outside the university.

[14] Both matters notified to Dr Will were investigated and dealt with in accordance with clause 22 of the Deakin University Enterprise Agreement 2013 (the Enterprise Agreement) and the allegations upheld and found to constitute serious misconduct. Dr Will was advised that his employment was to be terminated as a result. Dr Will then sought an internal review of the decision which was finalised in September 2014. His employment was then terminated.

[15] Dr Will says that the letter of 16 December 2013 was not a direction and, if it was, it was not reasonable. He also says that he did not present his private interests to the trade mission and that he did not undertake outside work in breach of University policy as he did not receive any payment for the work.

Was the letter of 16 December 2013 a lawful and reasonable direction?

[16] Dr Will submits that the letter of 16 December 2014 was not a direction and that it was in such conflict with other policies of the University (in respect to academic freedom, intellectual property (IP) and the code of conduct) and his position description, that he could not comply with the requirements of the letter without breaching those policies and the requirements of his position.

[17] Dr Will was employed pursuant to a contract of employment. 12 That contract required that Dr Will ‘use [his] best endeavours at all times to assist Deakin, to promote the interest and welfare of Deakin and to develop the business of Deakin’ and to ‘perform [his] duties in accordance with statutes, regulations, policies and procedures of Deakin…’13 His contract says that he is ‘subject to Deakin’s policies and procedures as they exist from time to time…For the avoidance of any doubt, if there is any inconsistency between Deakin’s policies and procedures and the Contract, this Contract shall prevail to the exclusion of the policy and/or procedure, unless otherwise specified in this Contract.’14

[18] Dr Will’s duties in his position description included that he provide ‘leadership in teaching, research, consulting, industry partnerships and professional activity’ and that he ‘make a significant contribution to research and scholarly publications.’ 15

[19] Dr Will’s pursuit of the requirements of his position description is clearly fettered by the requirements of his contract of employment.

[20] There is nothing in Dr Will’s contract or his position description that would operate to stop the University issuing him with a lawful and reasonable direction. Further, there is nothing in the direction that conflicts with his contract of employment or his position description.

[21] The University policy on academic freedom, in force at the time of the letter, states in part:

1. Academic freedom includes the right of all academic staff to:

a. Exercise the right of academic freedom without fear of harassment, bullying, intimidation or unfair treatment
b. Speak, write and publish, or perform, create and exhibit without being subject to University sanction, censorship or discipline
c. Express unpopular or controversial views… 16

[22] Dr Will says that the requirements in the letter of 16 December 2013 that he ‘seek approval in writing from [his] PPR Supervisor and/or Head of School before conducting any new interests/inventions/research/projects that may or could be perceived to have a conflict of interest, so that it can be assessed prior to work being performed’ is in direct conflict with the academic freedom policy. He says that the evidence of Prof Littlefair that ‘research generally starts with the gathering of information etc’ is evidence of this conflict.

[23] I think that the requirement in the letter is clear. All it requires of Dr Will is that prior to embarking on new interests he should discuss this with the appropriate person. It cannot be taken literally to mean that he is not allowed to muse over new ideas, talk about potential areas of research or jot notes. What it says is that if he intends to embark on these new areas – that is devote time in which he is employed by the University to these ideas – then he should have some discussion to sort through conflict of interest matters. The legitimate concern of the University is that Dr Will put his efforts at work into those areas the University has employed him to work on.

[24] There is nothing in the academic freedom policy to suggest that Dr Will should, in his employment by the University, be allowed to follow any area of research he so choses without any reference back to his position description, contract of employment or the relevant enterprise agreement.

[25] The University Intellectual Property procedure, in force at the time of the letter of 16 December 2013, requires the disclosure of new inventions to Deakin Research Commercial. Dr Will submits that the requirements that he ‘seek approval in writing…before conducting any new interests/inventions/research/projects’ is in breach of this procedure although fails to articulate how this breach is manifest.

[26] Dr Will says that the letter is also in conflict with the Code of Conduct. In particular he submits that the Code of Conduct requires that staff ‘refrain from behaviour that may harm the reputation or careers of other staff [and]…not engage in unlawful discrimination.’ Dr Will has not pointed to any evidence before the Commission to show that the letter conflicts with this policy. Whilst I accept that Dr Will believes that he has been punished for the violation of policy and procedures in circumstances where he does not believe there has been such a breach, this does not demonstrate any conflict between the direction given to him and the Code of Conduct.

[27] I see no conflict between the letter of 16 December 2013 and the Academic Freedom policy, Intellectual Property procedure or the Code of Conduct.

[28] Dr Will also submits that the letter conflicts with Enterprise Agreement, in particular clause 71.2 which recognises intellectual freedom. For the reason given above I see no conflict between the letter and Agreement

[29] Dr Will submits that the letter was not a direction. He submits that it ‘was more of an advice or recommendation.’ In support of this he says that the letter was ‘written in the subjunctive form, for example by using the verb “should” in the 5^th paragraph’ He submits that such a term is commonly used to express a circumstance which is desired, or recommended, but not directed. He says that the use of the term ‘should’ often causes misunderstandings between Australian and American speakers. In this respect he says he worked for Ford Motor Company, an American company, for 18 years (although I note that this was in Germany and Australia).

[30] Similarly he says that he interprets the word “must” as meaning should where the letter states that he ‘must adhere to the following…’ For this he relies on what he says is the Australian use of the word ‘must’ to indicate some future desired event – e.g. “I must go and see that movie one day”.

[31] He says that his non-english speaking background (German is his first language) means that he did not understand the direction as it is now being put.

[32] Further, he submits that Prof Littlefair saw the letter as advice and not a direction. In an email (not tabled in proceedings but quoted in Dr Will’s submission), Prof Littlefair said that ‘allowing you to conduct research would be contrary to the advice provided to you by Professor Trevor Day…’ [emphasis in submission] This email was not in evidence and its contents not put to Prof Littlefair. For the reasons given below I consider the terms of the letter to be clear. The wording of this email does not change my conclusion with respect to the letter.

[33] Dr Will easily selects individual words from the letter and dissects them without considering context or the intent of the letter as a whole. Even if I accept that Dr Will is entitled to read ‘should’ as non-directive on the basis of the Americanisation of his grammar, I am not convinced he can then also say that he has Australianised the use of the word ‘must’ as some indication of possible future activity. I find his reliance on American or Australian language distinctions convenient to his cause but not convincing of any misunderstanding.

[34] If Dr Will was unclear as to the language of the letter the proper course of action for him was to raise these uncertainties with Prof Day to have them clarified. In fact Dr Will did seek clarification by email of some of the language used in the letter, but not the language he now relies on.

[35] The directive intent of the letter is clear. It ‘confirms’ advice given in the meeting; it says Dr Will ‘must’ adhere to a number of requirements; it ‘confirms’ he should do and not do certain things. Deconstructing 3 or 4 individual words in an almost two page letter and taking these out of context to suggest the letter is merely an advice is a simplistic attempt to down play the seriousness of the matters raised with, and the direction given to, Dr Will.

[36] For these reasons I find that the letter, read as a whole, was a direction to Dr Will.

[37] I am also satisfied that the letter of 16 December 2013 was a reasonable and lawful direction to Dr Will.

Did Dr Will breach the direction?

[38] In May 2014 Dr Will made a presentation on behalf of the University to the trade mission. The presentation referenced OVER7™ Energy Recovery technology and ‘Tomorrow’s car’. Dr Will and/or his company, Ino8, own the patents related to substantial parts of the technology of OVER7™ and ‘Tomorrow’s Car’. 17 The slides used also said ‘seeking collaboration partners’ and included Dr Will’s private mobile phone number.

[39] The University says that, in his presentation, Dr Will promoted his own private interests and as the presentation was a University presentation, Dr Will used the University resources to promote his private interests and hence breached the direction given to him on 16 December 2013.

[40] Dr Will’s evidence is that in making the presentation to the trade mission he did not promote his private interests. In response to questions from the Bench Dr Will gave the following evidence:

What were you wanting to collaborate about?---Yes. Collaborate on the research related to technologies that would be beneficial for such vehicles, like, for example, manufacturing processes or safety investigations, or certain kind of system components that are not related to the balance control but are related to other components of such a vehicle.

What would the ownership of the outcomes of such collaboration be? Who would own it?---For what the university would do that would be the university would own it, and for the collaboration the university typically has specific collaboration contracts with collaboration partners, and they vary from the industry partner, like, in this case, it would be the trade mission delegate partners to own some of it or maybe all of it, and the university has access to it for research and for publication and for teaching, so these are the typical arrangements. But it’s up to the university to decide, I think. It’s to be negotiated with the collaboration partner. 18

…If some collaboration had come out of this presentation that you made to the trade mission, would your company have benefited from that?
---Not necessarily.

Might not necessarily have, but would it have?---It could. 19

[41] Dr Will also says his position description required him to seek collaboration partners. 20 He agrees that he did mention at the presentation that he has his own company21 but in the context of providing his general background to the audience.

[42] Prof Baskaran was asked by Prof Day to attend the presentation to the trade mission. He says he was not given any specific direction by Prof Day in attending. 22

[43] Prof Baskaran made notes of the presentation early the next day 23 which he emailed to Prof Day. These notes state:

Here is the brief about the Indonesian delegation visit to Deakin:

● Saeid gave a 2 minute introduction…
● Alex gave a brief introduction about the School followed by Frank’s [Dr Will] presentation about Engineering research for a few minutes.
● Frank followed up with his company’s research and innovation and looking for industry partners. Australian-Indonesian Business Council chairman, who was leading the delegate requested Frank to have one-to-one discussion with Ministry of Industry reps so that they could organise a forum in Jakarta to further explore his company’s capabilities to the sector. (I thought it was pre-planned).
● Mathais Weiss from IFM gave a presentation… 24

[44] Prof Baskaran rejected a suggestion that he had rephrased his notes sent to Prof Day in making his witness statement for these proceedings. 25

[45] Professor Day’s evidence is that he asked Prof Baskaran to ‘pay attention’ in the presentation made by Dr Will because of past concerns about Dr Will properly differentiating his role as an employee of the University and as an owner of a private company. 26 Prof Day specifically denied in his evidence that he purposefully sent Prof Baskaran to the presentation to ‘spy’ for the purposes of setting Dr Will up.

[46] Mr Mounir Kiwan is the General Manager, Federation of Automotive Products Manufacturers (FAPM). Mr Kiwan was responsible for organising the trade mission visit to the University in May 2014.

[47] Mr Kiwan’s evidence is that he knows Dr Will from several outbound trade missions where Dr Will has represented his company, Ino8.

[48] Mr Kiwan does not remember Dr Will mentioning his company or that he had a business venture and does not recall Dr Will speaking of seeking collaboration partners during the presentation. He agrees however that the two slides presented by Dr Will relate to technologies that Dr Will has promoted in the past on outbound trade missions where he has represented his private company. 27

[49] Mr Debnath Guharoy is involved with the Australian Indonesian Business Council. In this regard he played a role in organising the visit of the trade mission to Deakin University.

[50] His evidence is that Dr Will gave a presentation to the trade mission that went for about 30 minutes. He says that Dr Will did not mention his company Ino8. 28 Dr Will talked about his capacity at the University but also made it clear he had a private company. Mr Guharoy did not think the audience distinguished between the two.29 At the conclusion of the session he says that Dr Will handed out his business card which had Ino8 on it although later said he could not recall when he received Dr Will’s business card. His evidence is that the audience was very impressed with Dr Will’s presentation and that he had invented something went down very well.

[51] I do not doubt that the presentation of Dr Will was generally well received by the trade mission. This however does not answer the question of whether or not Dr Will promoted his own company and/or sought collaboration partners for work of his own company in a presentation he made for, and in relation to, the University.

[52] I appreciate that Dr Will and/or Ino8 own some or all of the IP for OVER7™, even though the trademark may be owned by the University. I also accept that Dr Will owns some or all of the IP for Tomorrow’s Car, again even though the trademark may be owned by the University. I also accept that Dr Will and/or Ino8 have registered patents related to the technologies.

[53] I have considered all of the evidence of the presentation made by Dr Will. I accept the evidence of Prof Baskaran as to what occurred at the presentation – and in particular the evidence from his notes made the day following the presentation – that Dr Will did speak of his company’s research and that he was looking for industry partners. Prof Baskaran’s notes present the ‘best evidence’ of what occurred. The direct evidence of Prof Baskaran is not contradicted by others who were present. Dr Will’s attempts to tarnish the evidence of Prof Baskaran by questioning where he sat during the presentation or his knowledge of Dr Will’s company does not diminish the compelling nature of the notes.

[54] Dr Will’s evidence, in conjunction with that of Mr Kiwan, strongly suggests that Dr Will was seeking collaboration on technologies on which he and/or Ino8 owned the patents. That is, he was promoting and seeking to further his own private interests.

[55] Dr Will was given a specific direction to not use University resources to promote his own private interests just five months prior to the presentation to the trade mission. Even if it was part of Dr Will’s position description that he should seek collaboration partners this could only be in the context of the work he was required to do by the University.

[56] I am satisfied that, on the balance of probabilities, Dr Will did seek to promote his private interests and, in doing so, did not comply with the direction of the University in that he used the resources of the University (a presentation to a visiting trade mission), to further his private interests.

Did Dr Will breach the outside work policy?

[57] The University has an Outside Work policy. That policy ‘recognises that research and professional work undertaken by academic staff outside the University results in various benefits to the University’. Outside work is defined as work ‘undertaken for a person or organisation other than the University, for which the [academic staff member] receives some sort of payment, recompense or other consideration from the person or organisation…Unpaid work…is regarded as voluntary work undertaken in a purely personal capacity…’ 30

[58] The related Outside Work Procedure sets out the conditions for approval of outside work. 31

[59] Dr Will’s contract of employment with the University was signed in 2009. It says, at clause 9:

9.1 Work Outside the University

9.1 You shall not undertake any other paid work outside Deakin University without the written consent of your nominated supervisor and in accordance with Deakin’s policies and procedures. You shall ensure that any work agreed to by the supervisor, shall not create any conflict of interest to either your responsibilities within Deakin or for Deakin itself.

[60] On 10 June 2014 an article was published in the Geelong Advertiser newspaper which indicated that Dr Will ‘was under contract to a big European carmaker to test’ an earlier version of his latest invention ‘in one of its models’. 32

[61] Dr Will, in response to the notice of allegations of 12 June 2014, said:

I can assure you that I am not under contract to any carmaker, and that I did not breach those Deakin policies and procedures that you refer to…

My company Ino8 had a contract with Volkswagen to test my invention that I made before I started at Deakin. The project was formally finished in December 2012.

Volkswagen did not pay me any salary as part of the contract, the contract included 3 lump sum payments to Ino8. Ino8 contracted out most of the work including many emissions tests to Ford… 33

[62] The University submits that in undertaking work for Volkswagen Dr Will was in breach of his contract of employment in that he did not, during the course of his employment seek formal approval to engage in outside work. By engaging in such work the University also says that Dr Will was in breach of the Code of Conduct and Conflict of Interest procedure.

[63] Dr Will’s evidence is that Prof Littlefair was aware of the work his company undertook for Volkswagen by virtue of an email dated 22 January 2013. 34 This email however indicates that Prof Day was advised that Dr Will’s company, Ino8, received funding of $153,000 through Commercialisation Australia. There is no evidence that Prof Littlefair was aware of this email or that, even if he saw the entire email, he was aware that Volkswagen was involved in the matter. Volkswagen is not mentioned in the email.

[64] Dr Will says that he did not receive any payment for the work undertaken by Ino8 for Volkswagen. He therefore seeks to categorise his work as ‘voluntary’ and hence not subject to the restrictions of the policy with respect to outside work. 35

[65] Dr Will, in his submissions, says that he was provided with a copy of the Outside Work policy and related procedures along with his contract of employment. He says he made himself familiar with these documents.

[66] The Volkswagen contract may have been with Ino8 but it is Dr Will who was responsible for ensuring the contract was carried out. This is as much admitted by Dr Will when he seeks to categorise the work done as ‘voluntary’. If what he did was ‘voluntary’ work then it was still work.

[67] Dr Will’s attempts to characterise his relationship with Ino8 as being one of a ‘volunteer’ is fanciful. He was not a volunteer in any sense of the word. He is the CEO of Ino8. He cannot be CEO and a volunteer at the same time. Dr Will seeks to deconstruct reality to find a new norm that suits his purpose. Even if he received no monetary payment there is, inevitably, some ‘recompense’ that accrues to him as the CEO of Ino8.

[68] I am satisfied that, if Dr Will engaged in outside work, he was also in breach of the Conflict of Interest policy. That policy requires, in relation to ‘outside employment, activity or practice’ that a full time staff member complete an authority form and fully disclose, in writing, any potential conflict of interest. A failure to disclose a conflict may result in disciplinary action.

[69] Dr Will did not notify any actual or potential conflict of interest that he had until December 2013. Even if there was, as he says, a synergy between the work of his company and his duties at the University 36 this does not preclude there being a real or potential conflict of interest between his private and University pursuits. A failure by the University to respond to his conflict of interest declaration in December 2013 does not mean the conflict could not exist or had not existed up until that point. That Prof Littlefair may not have followed through with the appropriate actions once he received the conflict declaration from Dr Will does not absolve Dr Will of the obligation on him.

[70] Dr Will does not appear to understand or accept what might constitute a conflict of interest. That he saw synergies between the work of his company and his University work is an obvious area for conflict. If he was undertaking research for whose benefit was he doing that work – his company or his employer? If he had research students undertaking work he was potentially conflicted in how he should direct those students if one direction could benefit his company and another the University. That Dr Will could not comprehend the potential conflict is astounding.

[71] The evidence in respect of Dr Will’s outside work, regardless of who knew about his company and when, is unequivocal. Dr Will owns Ino8 and is its CEO. Ino8 entered into a contract with Volkswagen that concluded in 2012. Dr Will and Ino8 are, for all intents, indistinguishable. Dr Will did not seek permission to engage in outside employment nor did he ensure that the work did not create a conflict or potential conflict of interest.

[72] I am satisfied that Dr Will did engage in outside work without the approval of the University in breach of his contract of employment. Further I am satisfied that Dr Will, through his ownership of Ino8, had a real or potential conflict of interest with his duty to the University. That he did not declare the conflict until 2013 is inexcusable and is in breach of University policy. Further, in engaging in outside work Dr Will failed to comply with the terms of his contract of employment in that he did not have permission to engage in such work.

Was there a conspiracy between seven managers

[73] Dr Will says that there is a conspiracy between seven named employees of the University. These include Prof Day, Prof Littlefair, Prof Stojcevski, and Prof Baskaran.

[74] The alleged conspiracy dates back to a request by Dr Will in late 2012 or early 2013 for a reconsideration of a promotion denied to him. The conspiracy also relates to a grievance and bullying complaint made by Dr Will and lies he says were told by some of the named conspirators.

[75] I cannot find any evidence to support Dr Will’s claim of a conspiracy. That Dr Will may have perceived that each of the named conspirators at some time did not support or agree with him does not mean that they joined together for the purpose of inflicting some harm on his employment with the University.

Did the University processes comply with Enterprise Agreement?

[76] Dr Will suggests that the procedures in clause 21 – Unsatisfactory Performance of the Enterprise Agreement were not followed. In particular Dr Will says the meeting on 13 December 2013 was conducted like a formal counselling session, which he says amounts to disciplinary action under clause 21.20 of the Enterprise Agreement, but the 18 steps preceding this in clause 21 had not been followed.

[77] The discussion with Dr Will on 13 December 2013 was a precursor to the direction given to him on 16 December 2013. It was not put to Dr Will as a counselling session and I do not consider it as such.

[78] I do not consider this a relevant issue. Dr Will’s employment was terminated for misconduct, not poor performance. It was properly dealt with under clause 22 of the Enterprise Agreement.

Was Dr Will unfairly dismissed?

[79] I am satisfied that I have jurisdiction to deal with this matter. Dr Will has been dismissed, his dismissal was not a matter of genuine redundancy and the Small Business Fair Dismissal Code does not apply (s.385(a), (c) and (d)).

[80] In deciding if Dr Will was unfairly dismissed the matter to determine is if Dr Will’s dismissal was harsh, unjust or unreasonable.

[81] Section 387 of the Act states that:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.

A valid reason (s.387(a))

[82] The misconduct relied on for the dismissal of Dr Will is that he:

• Failed to comply with a reasonable and lawful direction given to him on 16 December 2013;



• Failed to seek written approval before engaging in outside work in breach of clause 9 of his contract of employment; and



• Failed to comply with University policies and procedures set out in the Code of Conduct, Conflict of Interest and Outside Work.

[83] I am satisfied that the direction given to Dr Will on 16 December 2013 was a lawful and reasonable direction. I reject Dr Will’s argument that he could not comply with the direction and the relevant policies of the University at the same time. I also reject Dr Will’s argument that the direction was no more than ‘advice’. This attempt to deconstruct the plain language of the direction must be rejected.

[84] In making the presentation to the trade mission in the terms he did Dr Will did use University resources (in the form of a University presentation to a visiting trade mission) to promote the work of his company and to solicit partners for that work.

[85] Dr Will did not advise the University that he had engaged in outside employment at the time that Ino8 held the Volkswagen contract. He was, at that time, under a positive obligation to not engage in outside work without written permission. He did not seek or gain such permission.

[86] I am satisfied that Dr Will did not identify a conflict or potential conflict of interest in respect of Ino8 or contracts it held or advise the University of this at the time he commenced employment, or at any time during his employment, prior to December 2013.

[87] Dr Will’s breach of policy, his contract, and his failure to comply with the direction of 16 December 2013 cannot be considered as minor matters.

[88] The University had sought to address issues associated with the conflict or potential conflict between Dr Will’s private interests and the requirements of the University throughout 2013. That Dr Will did not appear to understand what was being asked of him in terms of the separation of his private and University work lead to the direction 16 December 2013. The direction was specific and clear. Dr Will’s actions at the presentation were a direct breach of that direction.

[89] Whilst the breach of the Outside Work policy and his contract of employment appear to have occurred in 2011/2012, Dr Will has not denied that he did such work or that the breach occurred. Rather, he tries to disguise the work by suggesting that he was a ‘volunteer’ in the company for which he was CEO and hence suggest the outside work procedures do not apply. Alternatively he suggests that the inclusion of mention of his company and a grant it received in an application for promotion somehow meets the requirements for notification. This can in no way be seen to meet the requirements of his contract and policy and procedures of the University that he seeks approval for outside work. This breach occurred in circumstances where Dr Will was aware, from the time he commenced with the University, of the terms of his contract and the outside work requirements. That the outside work concluded in 2012 does not diminish the seriousness of the breach.

[90] Dr Will’s refusal to recognise that he may have a conflict of interest or there may be apperception of a conflict of interest is inexplicable and can only be understood as been deliberate for the purpose of allowing him to pursue his own private interests through his employment with the University. There is no other logical explanation put forward for it.

[91] A breach of policy alone will not automatically provide a valid reason for termination of employment. Dr Will however was well aware of the policies and from at least early 2013 was aware or should have been aware of the concerns of the University in respect of the ‘blurring of the lines between [his] private commercial interests and [his] work as an employee of the University.’ In his actions he chose to ignore the policies, his contract and the direction given to him. These are serious matters.

[92] I am therefore satisfied that there is a valid reason for the dismissal of Dr Will related to his conduct.

Whether the person was notified of that reason (s.387(b))

[93] Dr Will was advised on 23 May 2014 and 12 June 2014 of the allegations against him. This was done in the context of the process set out in the Enterprise Agreement for dealing with misconduct or serious misconduct matters.

[94] In each of these letters Dr Will was invited to provide his response to the allegations, which he did.

[95] On review of his responses Dr Will was advised of the preliminary decision of Prof Smith that the allegations had been substantiated and that they warranted dismissal.

[96] I am therefore satisfied that the applicant was notified of the reason for his dismissal. Further, he was advised of this prior to the decision being taken to terminate his employment.

Opportunity to respond (s.387(c))

[97] Dr Will was given an opportunity to respond to the allegations and to seek a review of and make submissions on the preliminary decision to terminate his employment prior to the decision to terminate his employment being made.

[98] I am therefore satisfied that he had an opportunity to respond.

Any unreasonable refusal to allow a support person (s.387(d))

[99] Dr Will had a support person with him in all relevant meetings, including the meeting of 13 December 2013.

Warnings in respect of unsatisfactory performance (s.387(e))

[100] Dr Will’s employment was not terminated for reasons related to performance. This criterion is therefore not relevant.

Size of the employer and its access to human resources expertise (s.387(f) & (g))

[101] The University accepts that it is a large employer with specialist human resource expertise.

Other matters (s.387(h))

Serious misconduct

[102] Dr Will says that his conduct does not amount to serious misconduct under the Fair Work Regulations 2009. The University says that his conduct does amount to serious misconduct at common law, under the Regulations and in accordance with the Agreement.

[103] Dr Will has failed to comply with a reasonable and lawful direction in that he used University resources to promote his own interests and he breached a term of his contract and University policy by engaging in outside work in circumstances where he was well aware of the Outside Work policy.

[104] When confronted with these areas of misconduct Dr Will has consistently attempted to deconstruct and reconstruct the language of the policies and the direction of 16 December 2013 in an effort to deflect all responsibility from himself for his conduct.

[105] By his actions Dr Will has shown a total disregard for the policies of the University and for the lawful and reasonable direction given to him by his manager. By his conduct he has shown an unwillingness to accept that the University, as his employer, has some rights as to the work he should or should not undertake in circumstances where Dr Will’s private interests and those of the University did not align.

[106] I am satisfied that Dr Will’s conduct amounts to serious misconduct. His conduct was deliberate and his disregard for the direction given to him and the policies of his employer was wilful. Further he had a conflict of interest or at least there could be a perception of a conflict that he continues to fail to recognise. These matters made the continuation of his employment impossible.

[107] I am therefore satisfied that Dr Will’s conduct amounts to serious misconduct.

Material on University website regarding Dr Will’s achievements

[108] Dr Will submits that the University is content to publicise his achievements – whether they are associated directly with the University or not – on the University website. Further he submits that Prof den Hollander (Vice-Chancellor) praised his ability to straddle the divide between researcher and innovator in her reference for Dr Will for the 2013 Eureka Prize. 37

[109] Dr Will makes a legitimate point. The University cannot accrue the accolades that flow from Dr Will’s private work and at the same time direct him to properly distance his private work from his University work. If the University does not want an employee’s private work to encroach on University requirements it would appear contradictory to publicise those private matters on its website as if it had some hand in the achievement or seek to gain some benefit from it.

[110] That the University did publicise Dr Will’s private achievements however does not fully explain Dr Will’s conduct.

[111] The actions of the University in this respect warrant some internal review.

Enterprise Agreement process

[112] I am satisfied the process for dealing with misconduct matters under clause 22 of the Agreement has been followed.

Conspiracy

[113] There is no basis on which to conclude that there was any conspiracy between those named by Dr Will or any subset of those named.

Harsh, unjust or unreasonable

[114] In Byrne v Australian Airlines Ltd 38 the High Court held that:

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

[115] I have taken into account Dr Will’s conduct. I have considered the actions taken by the University through 2013 in an effort to apprise Dr Will of its position with respect to his outside interests, and the need for him to properly separate his private interests from his obligations to the University leading up to and including the written direction of 16 December 2013. I have also taken into account my findings with respect to his outside work.

[116] On the basis of all of my findings I am satisfied that the decision to dismiss Dr Will is not harsh, unjust or unreasonable.

[117] Dr Will has therefore not been unfairly dismissed. His application for relief from unfair dismissal is dismissed and an order to this effect will issue with this decision.

COMMISSIONER

Appearances:

F. Will for himself.

M. Rinaldi of Counsel for the Respondent.

Hearing details:

2015.

Melbourne:

February 18, 19, 20.

Final written submissions:

Applicant, 20 March and 24 April 2015.

Respondent, 10 April 2015.

 1   Exhibit A1, attachment X2.

 2   [2015] FWC 1069.

 3   Exhibit R2, attachment GL-6.

 4   Ibid.

 5   Ibid.

 6   Ibid.

 7   Exhibit R6, attachment TD-2.

 8   Exhibit R6, attachment TD3; exhibit A1, attachment O8.

 9   Exhibit R2, attachment GL-6.

 10   Exhibit A1, Attachment U3.

 11   Exhibit R2, attachment GL-1.

 12   Exhibit R1.

 13   Ibid, clause 2.3 of contract of employment.

 14   Ibid, clause 6 of the contract of employment.

 15   Exhibit A1, attachment A1.

 16   Ibid, attachment L.

 17   Transcript PN204.

 18   Transcript PN211-212.

 19   Transcript PN215-216.

 20   Transcript PN544.

 21   Transcript PN810.

 22   Transcript PN1699-1700.

 23   Transcript PN1738.

 24   Exhibit R4, annexure KB1.

 25   Transcript PN1732.

 26   Transcript PN2629, 2637.

 27   Transcript PN1285.

 28   Transcript PN1130.

 29   Transcript PN1131.

 30   Exhibit A1, attachment A2.

 31   Exhibit A1, attachment A3.

 32   Exhibit R3, attachment AS-1 (annexure 5).

 33   Exhibit R3, attachment AS-2.

 34   Exhibit R5.

 35   Exhibit A1, paragraph 11.

 36   Ibid, paragraph 11(d).

 37   Exhibit A1, attachment F1.

 38 (1995) 185 CLR 410.

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