Dr nor Masri Bin Sahri v Edith Cowan University
[2022] FWC 247
•8 FEBRUARY 2021
| [2022] FWC 247 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dr Nor Masri Bin Sahri
v
Edith Cowan University
(U2021/5730)
DEPUTY PRESIDENT BINET | PERTH, 8 FEBUARY 2021 |
Application for an unfair dismissal remedy
[1] On 30 June 2021, Dr Nor Masri Bin Sahri (Dr Bin Sahri) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Edith Cowan University (ECU).
[2] On 8 July 2021, ECU filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[3] The matter was listed for conference on 23 August 2021, however, Dr Bin Sahri was unable to attend and the matter was listed for arbitration.
[1] Taking into account the parties wishes and circumstances I determined that a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Determinative Conference in Perth on 11 November 2021 (Determinative Conference).
[2] Directions for the filing of materials in advance of the Determinative Conference were issued to the parties on 19 August 2021 (Directions).
Permission to be represented
[3] The Directions invited the parties to make submissions as to whether the FWC should grant permission to be represented. A determination of this issue is necessary to ensure that the manner in which the Hearing is conducted is fair and just.1
[4] Dr Bin Sahri sought permission to be represented at the Determinative Conference by a Paid Agent. Having considered the submissions of the parties, I exercised my discretion to grant Dr Bin Shari leave to be represented by a paid agent because I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[5] At the Hearing Dr Bin Sahri was represented by Mr Mullally of Workclaims Australia and ECU were represented by Ms Rance who is an officer of the Australian Higher Education Industrial Association.
Evidence
[6] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
[7] In accordance with the Directions Dr Bin Sahri filed a witness statement setting out his evidence in chief. Dr Bin Sahri is currently a resident in Malaysia and due to covid restrictions was unable to attend the Determinative Conference in person. During the Determinative Conference he gave further oral evidence and was cross examined by Ms Rance by video link.
[8] In accordance with the Directions ECU filed witness statements from the following witnesses:
a. Professor Arshad Omari (Professor Omari);
b. Professor Andrew Woodward (Professor Woodward); and
c. Ms Susan Hancy (Ms Hancy)
[9] Professor Omari is the Senior Deputy Vice Chancellor of ECU. In the role of Senior Deputy Vice-Chancellor he is responsible for a number of portfolios including human resources and was the decision maker in relation to the termination of Dr Bin Sahri’s employment. 2
[10] Professor Woodward is the Executive Dean School of Sciences. In the role of Executive Dean, he is responsible for overall strategic and operational leadership of the School of Sciences and member of the ECU executive team. 3 He was acting in the role of Dr Bin Sahri’s line manager at the time Dr Bin Sahri’s employment was terminated.
[11] Ms Hancy is a Senior Employment Relations Advisor with ECU who provided specialist employee relations advice in relation to Dr Bin Sahri’s dismissal. 4
[12] During the Determinative Conference each of the ECU witnesses gave further oral evidence and were cross examined by Mr Mullally.
[13] The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties. The Digital Court Book was admitted at the Determinative Conference as an exhibit and marked DCB1. At the Hearing Ms Rance tendered links to two locations on the website of the Universiti Teknologi MARA (UiTM) in Malaysia. The first link is the staff directory for the Faculty of Computer and Mathematical Sciences which was marked Exhibit R1 and at the second link is a profile of Dr Bin Sahri which was marked Exhibit R2.
[14] Final written submissions were filed on behalf of Dr Bin Sahri on 2 December 2021. Final written submissions were filed by ECU on 16 December 2021.
[15] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
[16] ECU is a public university located in Perth, Western Australia. It was granted university status in 1991 and was formed from an amalgamation of teachers’ colleges with a history dating back to 1902. ECU has campuses in Mount Lawley, Joondalup and Bunbury.
[17] Sometime before April 2019 various industry, academic and government partners (including ECU) established a research collaboration known as the Cyber Security Cooperative Research Centre (CSCRC) operated by Cyber Security Research Centre Limited. The CSCRC is hosted at ECU Joondalup campus. The relationship between the participants is documented in a contract known as the Participants Agreement. Only clause 22 of the Participants agreement was tendered as evidence. Clause 22 provides for the termination of the Participants Agreement in certain circumstances.
[18] ECU and the Cyber Security Research Centre Limited agreed that the CSCRC would fund the engagement by ECU of post-doctoral research fellows to perform specified research tasks (or themes) for CSCRC pursuant to contracts between ECU and the Cyber Research Centre Limited. These contracts were described as Theme Agreement – Post Doctoral Employment Agreements.
[19] Dr Bin Sahri is a Cyber Security Scientist and holds a PhD in Cyber Security from Kyushu University in Japan. 5 Prior to his appointment to ECU he was a senior lecturer in computer science at the Universiti Teknologi MARA (UiTM) in Malaysia.6
[20] By way of letter dated 11 April 2019, Dr Bin Sahri was offered employment with ECU in the role of Cyber Security CRC Post-Doctoral Researcher on a three year fixed term contract, expiring on 1 September 2022. 7
[21] The Letter of Offer identifies the Department in which he would be employed as the ECU Security Research Institute and indicates that he will report to the Director, ECU Security Institute (a position held by Professor Craig Valli (Professor Valli)).
[22] The body of the Letter of Offer relevantly contains the following term: 8
“An employee’s contract may be terminated by the University as set out in the applicable industrial instrument.”
[23] The Schedule to the Letter of Offer relevantly contains the following terms: 9
“Contract Type – Fixed term employment. As the position is offered for a fixed term, your employment will end on the date specified.
Fixed Term Type – Specific task or project.
Probationary Period Applicable – You will be required to complete a period of probationary employment before your employment is confirmed. Your probationary period will be for 12 months, from commencement of employment.”
[24] The Letter of Offer provided for a commencement date of 1 July 2019, but by agreement this was amended to 2 September 2019 to allow Dr Bin Sahri to arrange his resignation from Universiti Teknologi MARA (UiTM) in Malaysia before his commencement at ECU. 10
[25] Dr Bin Sahri was eligible to work in Australia by virtue of a section 484 visa obtained for him by ECU. 11
[26] In his employment with ECU Dr Bin Sahri was covered by the Edith Cowan University Enterprise Agreement 2017 (EBA). 12
[27] On 15 November 2019 ECU entered into a Theme Agreement – Post Doctoral Employment Agreement to fund the research project undertaken by Dr Bin Sahri (Theme Agreement). 13 The commencement date and completion date of the Theme Agreement correspondent with the start and end dates were set out in Dr Bin Sahri’s fixed term contract of employment.14
[28] Dr Bin Sahri’s research work is described in the Theme Agreement as ‘Theme Related Activities’.
[29] Clause 14 of the Theme Agreement provides as follows: 15
“14. TERMINATION
Without limitation to the Company's right to terminate the Theme Related Activities and this Agreement, mutatis mutandis, in accordance with PA Clause 22, this Agreement will terminate:
(a) on the Completion Dale, unless otherwise agreed by the Parties; or
(b) If the Company does not require the Postdoc to undertake the Theme Related Activities, the Company will consult with University. If the decision to no longer require the Postdoc is made solely by the Company then the Company will subject to having sufficient Centre Funds, reimburse the University for its expenses reasonably incurred or legally incurred but not yet paid, as a result of the Company’s decision. The total amount reimbursed will not exceed the total that would have otherwise been payable under this Agreement. For the avoidance of doubt the University is not entitled to replace the Postdoc without the prior written approval of the Company, and the University and the Company agrees that this agreement may be terminated with immediate effect if the employee ceases performance of the Theme Related Activities and the Company and University are unable to agree (within 14 days of discussions commencing) to the appointment of a replacement person to perform the Theme Related Activities.”
[30] On 8 June 2021 Ms Rachel Falks, the Chief Executive Officer of CSCRC wrote to ECU requesting the termination of the Theme Agreement pursuant to clause 14(b) of the Theme Agreement due to concerns about the quality and academic integrity of a recent presentation delivered by Dr Bin Sahri. The email provided as follows: 16
“Dear Caroline,
I am writing to you to request the termination of contract R_24_000_19_0020 for Dr Nor Masri Sahri under clause 14(b) of the contract. Based on a recent presentation made available to us by A/Prof Paul Haskell-Dowland and Prof Craig Valli the CSCRC is concerned about the quality of the work undertaken by the post-doc and the academdic integrity of the work. After reviewing the presentation recording and ourrecords the following points are in particular pertinent to our decision:
i. This public presentation was not approved through the CSCRC publication or media processes.
ii. This presentation misrepresents the activities and nature of the CSCRC and potentially brings the CSCRC into disrepute.
iii. The nature and extent of his involvement in the presented research is misleading or inaccurate and is not reflecting the reality of his contributions.
iv. The presentation included detail of research that we are potentially still seeking to protect and that is not fully in the public domain (e.g. Smartshield)
v. The presentation associated the CSCRC with companies such as Darktrace and others, that the CSCRC has no association with.
vi. The use of company logos and statements about >taking things from the internet for this talk< is potentially breaching copy rights and trademark restrictions and is presented as work of the CSCRC and ECU.
vii. The overall quality of the presentation is poor and likely to reflect unfavourably on our organisations and also raised questions about the academic integrity of the member of staff and the presented work.”
Regarding the last point we want to emphasise that we are keen to improve and help develop your academic staff and are offering training to his end. So while this point is not decisive for our decision making, it is, in the context of the preceding points, an aggravating factor.
I understand that you may wish to consult internally within ECU and look forward hearing from you or your representative within the next 14 days, after which we consider this contract is terminated.
Our research director Helge Janicke (cc) is available to answer any questions you may have regarding this decision in the meantime”
[31] On 9 June 2021 Ms Hancy met with Professor Valli who informed her that the CSCRC had requested the termination of the Theme Agreement which provided the funding for Dr Bin Sahri’s employment. At the same meeting Professor Valli told her that he had checked and was unable to locate any alternative suitable positions for Dr Bin Sahri.
[32] On 11 June 2021 Professor Valli prepared a memorandum to Professor Omari seeking his approval to terminate the employment of Dr Bin Sahri on the grounds that CSCRC had exercised a contractual right to terminate the Theme Agreement resulting in the funding for Dr Bin Sahri’s employment being withdrawn and there was no alternative position to which Dr Bin Sahri could be redeployed. 17 The memo was endorsed by Professor Woodward and Ms Jenny Robertson the Director of Human Resources.
[33] Both Professor Omari and Professor Woodward conceded in cross examination that they made no independent inquiry as to why CSCRC proposed to terminate the Theme Agreement or whether the Theme Agreement permitted such termination.
[34] Shortly afterwards Professor Valli commenced annual leave and Professor Woodward began acting in the role of Dr Bin Sahri’s supervisor. 18
[35] On 18 June 2021 Professor Woodward invited Dr Bin Sahri to a meeting on 22 June 2021. 19 The invitation to the meeting did not identify the purpose of the meeting.
[36] On 22 June 2021 Dr Bin Sahri met with Ms Hancy and Professor Woodward. At the meeting Professor Woodward handed a letter to Dr Bin Sahri dated 22 June 2021 (Termination Letter). Consistent with the content of the Termination Letter Professor Woodward informed Dr Bin Sahri that CSCRC had decided to terminate the Theme Agreement specific to the research Dr Bin Sahri had been employed to perform. Professor Woodward went on to tell Dr Bin Sahri that, as a consequence of the termination of the Theme Agreement, funding of his research would cease and, given the absence of an alternative role to which Dr Bin Sahri could be deployed, his employment with ECU would be terminated effective immediately. 20
[37] Upon the termination of his employment Dr Bin Sahri was paid six months salary.
[38] Dr Bin Sahri says that he was never informed that his employment was dependent upon funding and if he was aware he would not have accepted the offer of employment with ECU. 21
[39] On 23 June 2021 Dr Bin Sahri sent an email to Deputy Vice Chancellor Caroline Finch (DVC Finch) regarding the termination of his employment and explaining that consequence of which was that he and his family would have to leave Australia within 60 days. Dr Bin Sahri says that he met with the Vice Chancellor the following day. He says that she was unaware of the circumstances surrounding the termination of his employment and offered to contact Professor Woodward to find out more. Dr Bin Sahri says that DVC Finch subsequently sent him an email informing him that she had met with Professor Woodward and that she had asked him to provide feedback to Dr Bin Sahri. 22
[40] On 25 June 2021 DVC Finch wrote to Ms Janicke and said that she was aware that there had been changes to the research themes being supported by the CSCRC and requested that Ms Janicke clarify the potential implications for ECU staff and students. 23
[41] On 30 June 2021 Dr Bin Sahri met with Professsor Woodward. He says that during this meeting that he was told for the first time that the termination of the research funding was in response to an alleged breach by him of a publication policy. 24
[42] Dr Bin Sahri asserts that he was never: 25
a. provided with a copy of the policy,
b. informed of the alleged breach,
c. given an opportunity to respond to the alleged breach.
[43] Dr Bin Sahri denies breaching his employment contract with ECU. 26
[44] Due to his visa status, as a consequence of the termination of his employment, Dr Bin Sahri had to leave Australia.
[45] ECU paid all of the expenses involved in Dr Bin Sahri and his family returning to Malaysia including covid testing and mandatory quarantining. 27
[46] On 30 June 2021 Dr Bin Sahri filed the Application with the FWC.
[47] Dr Bin Sahri says that he has been unable to find alternative employment and seeks an order that he be reinstated with back pay and with continuity of service. 28
Is Dr Bin Sahri protected from unfair dismissal?
[48] An order for reinstatement or compensation may only be issued if Dr Bin Sahri was unfairly dismissed and Dr Bin Sahri was protected from unfair dismissal at the time of his dismissal.
[49] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
• a modern award covers the person;
• an enterprise agreement applies to the person in relation to the employment;
• the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations (Cth) 2009 (FW Regulations), is less than the high income threshold.
[50] Dr Bin Sahri commenced employment as a national system employee with ECU, who is a national system employer, on 2 September 2019 and was dismissed on 22 June 2021.29 It was not contested, and I find that Dr Bin Sahri had completed the minimum employment period for the purposes of section 382 of the FW Act.
[51] An enterprise agreement applied to Dr Bin Sahri during his employment with ECU. 30
[52] Consequently, I am satisfied that Dr Bin Sahri was protected from unfair dismissal.
Was Dr Bin Sahri unfairly dismissed?
[53] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
Was Dr Bin Sahri dismissed?
[54] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[55] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[56] There was no dispute, and I find, that Dr Bin Sahri’s employment with ECU was terminated at the initiative of ECU.31
[57] I am therefore satisfied that Dr Bin Sahri has been dismissed within the meaning of section 385 of the FW Act.
Was Dr Bin Sahri’s dismissal a case of genuine redundancy?
[58] The meaning of ‘genuine redundancy’ for the purposes of section 385 of the FW Act is defined in section 389 of the FW Act as follows:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[29] In the absence of consultation in accordance with the Agreement, Dr Bin Sahri’s dismissal can not be a case of genuine redundancy.
Was Dr Bin Sahri’s dismissal consistent with the SBFD Code?
[59] Section 388 of the FW Act provides that a person’s dismissal was consistent with the SBFD Code if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b. the employer complied with the SBFD Code in relation to the dismissal.
[60] According to its Form F3 – Employer Response to unfair dismissal application ECU employed in excess of 3,500 employees as at the date Dr Bin Sahri was dismissed. 32 It was not in dispute, and I find, that ECU was not a small business employer within the meaning of section 23 of the FW Act, as at the relevant time having in excess of 14 employees.
[61] As ECU is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Dr Bin Sahri’s dismissal.
Was the Application made within the period required?
[62] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
[63] Section 394(2) of the FW Act requires that an application be made within 21 days after the dismissal took effect.
[64] It is not disputed, and I find, that Dr Bin Sahri was dismissed from his employment on 22 June 2021 33 and made the Application on 30 June 2021.34 I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
Was the dismissal harsh, unjust or unreasonable?
[65] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. 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.”
[66] Section 387 of the FW Act provides: that, 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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.
[67] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.35
Was there a valid reason for the dismissal related to Dr Bin Sahri’s capacity or conduct?
[68] An employer must have a valid reason for the dismissal of employee, although it need not be the reason given to the employee at the time of the dismissal. 36 The reasons should be “sound, defensible and well founded”37 and should not be “capricious, fanciful, spiteful or prejudiced.”38 However, the FWC will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer.39
[69] The test is not whether employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 40
[70] Dr Bin Sahri says that there was no valid reason for his dismissal because no performance or conduct issues were raised with him nor was he given an opportunity to respond to any performance or conduct issues prior to his dismissal. In particular, Dr Bin Sahri asserts that he was never:41
a. provided with a copy of the policy he was alleged to have breached;
b. informed of the alleged breach prior to termination of his employment; or
c. given an opportunity to respond to the alleged breach.
[71] ECU deny that Dr Bin Sahri was dismissed for reasons related to his capacity or conduct. Rather ECU submit that Dr Bin Sahri was dismissed by ECU because the funding for his role with withdrawn and there were no suitable alternative positions to which Dr Bin Sahri could be redeployed.
[72] ECU rely on the decision of SDP O’Callaghan in Kostenko v Flinders University. 42 The factual matrix in that decision is similar to the facts in this matter:
a. Ms Kostenko was engaged by Flinders University in a position provided for under a Secondment Agreement with Ninti One who were not an associated entity of Flinders University.
b. The Secondment Agreement that Ms Kostenko was engaged under provided for the totality of the funding for Ms Kostenko's position.
c. The Secondment Agreement was terminated by Ninti One, consequently terminating the funding for Ms Kostenko's position.
d. Ninti One held concerns about Ms Kostenko’s performance.
[73] SDP O'Callaghan found that the termination of Ms Kostenko's employment occurred because Ninti One provided formal notice of the termination of the Secondment Agreement which funded her employment. He accepted that no alternative roles existed at Flinders University that she could be redeployed to. SDP O’Callaghan found that on this basis there was a valid reason for the termination of her employment.
[74] Relevantly SDP O’Callaghan was satisfied that while there were performance concerns relating to Ms Kostenko’s behaviour it was changes in the project structure and resourcing unrelated to her capacity and conduct which was the catalyst for Ninti One’s decision to cease funding her position rather than the concerns about her performance.
“[66] Whilst Ms Kostenko’s conduct and performance may have been considered by Ninti One and were being addressed by Flinders University, I have concluded that these factors did not result in the termination of her employment.”
[75] At [57] of his decision SDP O’Callaghan noted that:
“[57] I have concluded that Ninti One had serious concerns about Ms Kostenko’s behaviour. Had those concerns formed the sole basis for the termination of the Secondment Agreement, there may well have been an obligation on the Flinders University to challenge Ninti One’s decision to terminate the Secondment Agreement on the basis that Ninti One was not complying with its obligations under that agreement.”
[76] The obligations referred to by SDP O’Callaghan above were provisions in the Secondment Agreement which set out a process for the resolution of concerns about the performance and/or conduct of Ms Kostenko. The evidence before SDP O’Callaghan was that these provisions had not been complied with at the time the decision to terminate the Secondment Agreement was made because the decision to termination the Second Agreement had been made for reasons unrelated to her performance or conduct.
[77] In Dr Bin Sahri’s case, CSCRC terminated its arrangement with ECU solely because of concerns about Dr Bin Sahri’s performance. Mr Bin Sahri submits that the reference to consultation in clause 14 of the Theme Agreement is comparable to the performance management provisions considered by SDP O’Callaghan in Kostenko v Flinders University 43and outcome in this case should be differentiated from the outcome in that case on those grounds. ECU submit that the Theme Agreement contains no comparable performance management provisions.
[78] Dr Bin Sahri submits that Clause 14 of the Theme Agreement does not grant CSCRC a unilateral right to terminate the Theme Agreement. He submits that CSCRC’s right to terminate the Theme Agreement is subject to consultation with ECU. Further he says that the obligation to conduct consultation gives ECU a right to challenge CSRC’s reasons for its decision to terminate the Theme Agreement. He says the reason for his dismissal was ECU’s failure to challenge CSRC’s reasons for terminating the Theme Agreement rather than CSRC’s termination of the Theme Agreement.
[79] Clause 14 of the Theme Agreement provides that:
“If the Company does not require the Postdoc to undertake the Theme Related Activities, the Company will consult with University. If the decision to no longer require the Postdoc is made solely by the Company then the Company will subject to having sufficient Centre Funds, reimburse the University for its expenses reasonably incurred or legally incurred but not yet paid, as a result of the Company’s decision. The total amount reimbursed will not exceed the total that would have otherwise been payable under this Agreement. For the avoidance of doubt the University is not entitled to replace the Postdoc without the prior written approval of the Company, and the University and the Company agrees that this agreement may be terminated with immediate effect if the employee ceases performance of the Theme Related Activities and the Company and University are unable to agree (within 14 days of discussions commencing) to the appointment of a replacement person to perform the Theme Related Activities.”
[80] In my view the words “If the decision to no longer require the Postdoc is made solely by the Company …” combined with what is in effect arrangements for ‘liquidated damages’ clearly contemplates CSCRC having the right to unilaterally terminate the Theme Agreement.
[81] When clause 14 is read as a whole, the extent of the CSCRC’s contractual obligation to consult appears to be limited to consultation with ECU as to the identity of a replacement researcher in the event that the CSCRC determines that no longer requires the Postdoc to perform the work or if ECU propose an alternative Postdoc to perform the work.
[82] This interpretation of the Clause 14 appears to be consistent with the parties understanding of the intent of the clause as evidenced by their conduct.
[83] In accordance with the Theme Agreement the CEO of CSCRC provided notice to ECU that it proposed to terminate the Theme Agreement and the reasons for that decision by way of the email on 8 June 2021.
[84] The email of 8 June 2021 is expressed in definitive terms:
“After reviewing the presentation recording and our records the following points are in particular pertinent to our decision:
…
So while this point is not decisive for our decision making, it is, in the context of the preceding points, an aggravating factor.
…
Our research director Helge Janicke (cc) is available to answer any questions you may have regarding this decision in the meantime”
[85] ECU accepted this notice without challenge. 44
[86] The Theme Agreement reserves the right for the CSCR to unilaterally decide that it no longer wished Dr Bin Sahri to perform his duties and terminate the Theme Agreement. CSCR exercised that right in accordance with the Theme Agreement. Once that right was exercised Dr Bin Sahri’s employment became unfunded. The evidence is that ECU explored alternative roles for Dr Bin Sahri however there is no evidence to suggest that any alternative roles existed for Dr Bin Sahari within ECU or any related entity. There is no evidence that in conducting the search for alternative employment that ECU took into account the allegations of poor performance raised by CSCRC in relation to Dr Bin Sahri. Nor did ECU rely on the allegations of poor performance raised by CSCRC in relation to Dr Bin Sahri as a reason for his dismissal.
[87] Dr Bin Sahri was not dismissed because of the decision by CSCRC to terminate the Theme Agreement. Dr Bin Sahri was dismissed because no alternative positions existed for his redeployment within ECU or any related entity.
[88] Circumstances where the contractual arrangements surrounding employment permit a party other than the employer to act to bring about the dismissal of an employee have been considered by the FWC in a number of cases. 45
[89] In Kool v Adecco Industrial Pty Ltd T/A Adecco [2016] FWC 925 at [49], Deputy President Asbury made the following comments in relation to contractual arrangements in which the actions of a host employer might be relied on by a labour hire company to prevent an employee of the labour hire company from accessing a remedy under the FW Act for unfair dismissal.
“However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and the consequences for an employee would be found to be unfair of carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by third party to the employment relationship. If the Commission considers a dismissal is unfair in all the circumstances, it can be no defence that the employer was complying with the direction of another entity in affecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal.”
[90] In Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243 at [40] the Full Bench noted that:
“The factual situation before the Deputy President was somewhat different to Mr Pettifer’s circumstances. In that case, the Deputy President did not have the terms of the contractual relationship between the labour hire company and the host employer in evidence before her. Some of her comments in that context might well be considered to be, at their highest, a general statement of principle. That principle is that, in the context of labour hire arrangements, the actions of an employer who dismisses an employee following the exercise of a host employer’s contractual right to have the employee removed from the host site cannot rely exclusively on the actions of that third party as their defence to a claim of unfair dismissal. A discretion remains with the FWC to decide whether a particular dismissal is unfair in all the circumstances.”
[91] In Kool v Adecco Industrial Pty Ltd T/A Adecco 46Deputy President Asbury found that a failure on behalf of the applicant’s employer to explore redeployment opportunities for the applicant constituted an element of unfairness in the circumstances of the applicant’s dismissal. The factual matrix differs in this matter in two important ways. In this case, the relevant contractual arrangement between the applicant’s direct employer and the host employer is available to the decision maker. In this case there is no contest that ECU explored redeployment opportunities for Dr Bin Sahri.
[92] In Pettifer v MODEC Management Services Pty Ltd 47the applicant was hired exclusively to perform work for his host employer BHP. A safety incident occurred which led BHP to withdraw his access to their sites. His direct employer MODEC did not agree that Mr Pettifer’s conduct justified the disciplinary action imposed by BHPB, but nevertheless removed Mr Pettifer from the BHPB site in accordance with its contractual obligations and endeavoured to find an alternative placement for Mr Pettifer. MODEC was unable to find an appropriate position for Mr Pettifer and consequently terminated his employment.
[93] Mr Pettifer’s inability to access BHP sites meant he was unable to perform the inherent duties of his employment. In those circumstances the Full Bench found that his capacity was a reason for his dismissal in the same manner that the loss of licence of a pilot might be. The Full Bench determined that the Member at first instance erred in deciding that the question of whether the reason for his dismissal was valid under section 387(a) of the FW Act did not arise. The Full Bench therefore turned its mind to whether a valid reason for Mr Pettifer’s dismissal relating to his conduct existed find as follows: 48
“MODEC was therefore contractually obliged to remove Mr Pettifer from the BHPB Site if instructed to do so. This was the role which Mr Pettifer was employed to perform. 11 No longer capable of performing the inherent functions of this role, MODEC sought to find alternative employment for Mr Pettifer. Only after exhausting these inquiries did MODEC rely on this reason to terminate Mr Pettifer’s employment.12 In these circumstances the Full Bench is satisfied that MODEC had a valid reason relating to Mr Pettifer’s capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable alternative employment for him.”
[94] In Dr Bin Sahri’s case his position title describes him as Cyber security CRC Post-Doctoral Researcher 49 and the Schedule to his contract states that it is a fixed term contract for a “specific task or project”.50 The advertisement for the role states that:51
“Edith Cowan University (ECU) is one of only two federal government recognized Academic Centres of Cyber Security Excellence; and, is the home to the Cyber Security Cooperative Research Centre (CyberCRC) that was recently established with academic, government and industry partners attracting around $140m of funding. Our Computing and Security courses are informed by an active research program, with much of the related research aligned to the ECU Security Research Institute (ECUSRI), an internationally recognized leader in multidisciplinary security science research, housed in a purpose bailt world class cyber security research and training facility. An exciting opportunity exists for post-doctoral researchers to become part of the partnership between ECU and the CyberCR.
…
ECU is recruiting a Post-Doctoral researcher to work one or both of two CyberCRC research themes”
[95] As with Mr Petiffer it appears that Dr Bin Sahri was employed to work exclusively for a particular host employer. However, there is no direct evidence before me that CSCRC banned Dr Bin Sahri from entering their facility in the manner in which BHP banned Mr Petiffer. In these circumstances the capacity to draw a comparison with a loss of licence situation as the Full Bench did in Mr Petiffer’s case becomes more problematic.
[96] For this reason I am inclined to the view that the reason for Dr Bin Sahri’s dismissal was that no roles existed to which he could be redeployed rather than as a consequence of his capacity or conduct. If the reason for his dismissal was unrelated to his capacity or conduct the question whether the reason for his dismissal is valid does not arise under section 387(a) and the matters set out in sections 387(b),(c) and (d) of the FW Act would not require consideration.
[97] However, as a matter of caution I will characterize the reason for Dr Bin Sahri’s dismissal as his capacity to perform the inherent duties of his employment and consider the matters set out in section 387(a) and (b).
[98] The Theme Agreement reserves the right for the CSCR to unilaterally decide that it no longer wished Dr Bin Sahri to perform his duties and terminate the Theme Agreement. CSCR exercised that right in accordance with the Theme Agreement. Once that right was exercised Dr Bin Sahri’s employment became unfunded. There is no evidence to suggest that ECU colluded with CSCRC to remove Dr Bin Sahri from his work pursuant to the Theme Agreement
[99] There is no evidence that ECU simply ‘acquiese’ to CSCRs assertions that Dr Bin Sahri’s performance was inadequate. Rather the evidence is that ECU explored alternative roles for Dr Bin Sahri. There is no evidence that in conducting the search for alternative employment that ECU took into account the allegations of poor performance raised by CSCRC in relation to Dr Bin Sahri.
[100] There is no evidence to suggest that any alternative roles existed for Dr Bin Sahari within ECU or any related entity.
[101] In these circumstances I am satisfied that a valid reason exists for Dr Bin Sahri’s dismissal.
Was Dr Bin Sahri notified of the valid reason?
[102] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,52 and done so in explicit,53 plain and clear terms.54
[103] In Crozier v Palazzo Corporation Pty Ltd,55 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 (Cth) stated the following:56
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[104] On 22 June 2021, Dr Bin Sahri was notified of the reasons for his termination in explicit, plain and clear terms, verbally by Professor Woodward and in writing, in the Termination Letter. The evidence is that the decision to terminate his employment was made by Professor Omari on prior to the meeting of 22 June 2021.
[105] I am satisfied that Dr Bin Sahri was notified of the reasons for his dismissal however this occurred after the decision to terminate his employment had already been made.
Was Dr Bin Sahri given an opportunity to respond to any valid reason related to his capacity or conduct?
[106] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.57
[107] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.58 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.59
[108] The evidence is that at the meeting held on 22 June 2021 Dr Bin Sahri was not provided with an opportunity to respond to the reasons for his dismissal and was simply informed that the decision to terminate his employment had been made.
Did ECU unreasonably refuse to allow Dr Bin Sahri to have a support person present to assist at discussions relating to the dismissal?
[109] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[110] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:60
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
[111] Dr Bin Sahri says that he was unaware of the reason for the meeting held on 22 June 2021 and therefore denied the opportunity to have a support person present. ECU do not contest that he was unaware of the reason for the meeting. Nor did ECU invite him to bring a support person with him.
[112] However, as noted by the Full Bench in Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835 at [84]
“…[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present, though that matter may be relevant and taken into account under s.387(h).”
[113] I am satisfied that ECU did not unreasonably refuse to allow Dr Bin Sahri to have a support person present at discussions relating to his dismissal however I consider the failure to identify the reason for the meeting on 22 June 2021 and/or to invite Dr Bin Sahri to bring a support person with him to the meeting on 22 June 2021 is matter that is relevant and should be taken into account under section 387(h) of the FW Act.
Was Dr Bin Sahri warned about unsatisfactory performance before the dismissal?
[114] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 61
[115] Dr Bin Sahri was not informed about the concerns about his performance until after his employment with ECU had come to an end.
[116] For the reasons set out earlier my decision I am satisfied that the reasons for his dismissal were not related to his performance and therefore I have treated this factor as neutral.
To what degree would the size of ECU’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[117] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.62
[118] ECU is a large business with a dedicated human resource department. Not withstanding this Ms Hancy conceded that Dr Bin Sahri was denied procedural fairness. She provided no explanation as to how the size of ECU’s enterprise might provide an explanation for the denial of procedural fairness.
To what degree would the absence of dedicated human resource management specialists or expertise in Cleanaway’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[119] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees ‘even when implementing something as difficult and unpleasant as the termination of a person’s employment’.63
[120] ECU has a dedicated human resource management group. A member of the human resources team had oversight of the dismissal process.
[121] I therefore consider this factor is a neutral consideration in determining whether the dismissal was harsh, unjust or unreasonable.
What other matters are relevant?
[122] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant to the determination of whether the dismissal of Dr Bin Sahri was harsh, unjust or unreasonable:
[123] Dr Bin Sahri submits that the following factors should be taken into account: 64
a. He had an expectation of three years of employment.
b. As a consequence of the termination of his employment and his visa status he was required to repatriate his family to Malaysia on short notice.
c. The loss of the opportunity to complete his research has significant impact on his academic and professional standing and progression.
[124] I have also taken into account:
a. ECU’s failure to verify the allegations.
b. ECU’s failure to provide any response to CSCRS during the ‘consultation’ period.
c. ECU’s failure to inform Dr Bin Sahri of the purpose of the meeting on 22 June 2021 or to invite him to bring a support person with him given the purpose of the meeting.
d. ECU offered to assist Dr Bin Sahri obtain an alternative visa to remain in Australia.
e. ECU arranged the repatriate of Dr Bin Sahri and his dependents to Malaysia.
f. ECU paid Dr Bin Sahri six months salary upon the termination of his employment. This payment is the maximum amount of compensation which might be awarded as an alternative to reinstatement.
[125] ECU was granted university status in 1991 but has a history dating back to 1902. It is large employer with access to internal human resource advice. It is bound by enterprise agreements which encapsulate obligations of procedural fairness. It is a University that delivers tertiary training including post graduate studies in human resources.
[126] On the landing page of ECU’s website the Vice Chancellor says that “At ECU we are guided by our values of integrity, respect, rational inquiry …” It is difficult to see how those values were applied in the management of Dr Bin Sahri’s departure from the University.
[127] The University was aware that Dr Bin Sahri was a foreign national who had relocated to Australia to perform his contract. All university employees are familiar with the contraction in employment opportunities within universities in recent years which has been accentuated by the Covid Pandemics impact on student numbers. The most probable consequence of his removal from the Theme Agreement would be a loss of employment. In the prevailing circumstances the University should have urgently sought Dr Bin Sahri’s response to the concerns and proactively explored with CSRCS the validity of those concerns.
[128] It elected to do nothing. Perhaps because they believed to be indemnified by clause 14 for the cost of a potential unfair dismissal claim.
[129] At the Hearing the University chose not to call any witness from the CSRCS to give evidence that it would have not been dissuaded from its decision to terminate the Theme Agreement. The inference which might be drawn from that decision is that the evidence would be adverse to the University’s case.
[130] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Dr Bin Sahri was harsh and unjust and unreasonable. Accordingly, I find Dr Bin Sahri’s dismissal was unfair.
Remedy
[131] Dr Bin Sahri seeks an order that he be reinstated with continuity of service and be compensated the remuneration lost between the date of his dismissal and his reinstatement.
[132] Section 390 of the FW Act sets out the circumstances in which an order for reinstatement or compensation may be made:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[133] I am satisfied that Dr Bin Sahri was protected from unfair dismissal pursuant to section 382 of the FW Act and was dismissed unfairly.
[134] Reinstatement is the FW Act’s primary remedy for unfair dismissal and must be ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not appropriate.
[135] In DP World Sydney Limited v Lambley [2013] FWCFB 9230 at [138], the Full Bench of the FWC said:
“The language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”
[136] ECU submits reinstatement would be inappropriate because:
a. The CSCRC made a decision to terminate the Theme Agreement consistent with its terms, being the unlimited contractual right for the CSCRC to terminate the Theme Agreement and remove Dr Bin Sahari from their workplace, meaning that the Dr Bin Sahri is incapable of performing the role.
b. The position which Dr Bin Sahri was employed to undertake no longer exists and ECU does not have available funding nor need to re-create the position.
c. There are no other positions available with ECU that would be considered as suitable alternative employment.
d. Dr Bin Sahri does not currently hold a visa or any other legal document/instrument which enables him to work in Australia.
[137] Neither ECU nor Dr Bin Sahri chose to call any witnesses from CSCRC. There is therefore no evidence before as to whether CSCRC would consider reinstating Dr Bin Sahri if they were satisfied that their concerns about his performance were misplaced.
[138] ECU tendered evidence that no available alternative positions exist. Dr Bin Sahri did not identify any suitable alternative roles which existed prior to his dismissal or since that date.
[139] The Western Australian Government has recently announced further delays in the reopening of Western Australian borders. A new hard border was introduced on 5 February 2021 which provides for very limited exemptions for entry into Western Australia from elsewhere in Australia and overseas. There is no indication at this stage when adjustments will be made to these settings. There is no evidence before me to indicate that Dr Bin Sahri falls within any of the current categories of exemption.
[140] There is no evidence before me that Dr Bin Sahri holds the necessary visa’s to work in Australia.
[141] In all of the circumstances I consider that an order for the reinstatement of Dr Bin Sahri is inappropriate.
[142] Section 390(3)(b) provides I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.
[143] Dr Bin Sahri has already been paid the maximum compensation.
[144] Both ECU and Dr Bin Sahri agree that an order for compensation is inappropriate in the circumstances.
Conclusion
[145] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Dr Bin Sahri was harsh, unjust or unreasonable. Accordingly, I find Dr Bin Sahri’s dismissal was unfair.
[146] However, I am satisfied that in the circumstance it is inappropriate to make an order for reinstatement or compensation.
DEPUTY PRESIDENT
Appearances:
Mr P Mullally, for the Applicant.
Ms B Rance, for the Respondent.
Hearing details:
2021
Perth
11 November
Final written submissions:
Applicant’s Closing Submission 2 December 2021.
Respondent’s Closing Submissions 16 December 2021.
Printed by authority of the Commonwealth Government Printer
<PR738114>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book (DCB), 70.
3 Ibid, 74.
4 Ibid, 76.
5 Ibid, 85.
6 Ibid, 19.
7 Ibid, 24-25.
8 Ibid, 24.
9 Ibid, 25.
10 Ibid, 28.
11 Ibid 85, 51.
12 Ibid, 85.
13 Ibid.
14 Ibid, 66, 25.
15 Ibid, 63-64.
16 Ibid, 88.
17 Ibid, 72.
18 Ibid, 20.
19 Ibid.
20 Ibid, 85, 29.
21 Ibid, 21.
22 Ibid.
23 Ibid, 30.
24 Ibid, 21.
25 Ibid.
26 Ibid, 85.
27 Ibid, 85, 31.
28 Ibid, 22.
29 Ibid, 4.
30 Ibid, 85.
31 Ibid 3.
32 Ibid, 9.
33 Ibid, 85.
34 Ibid, 5.
35 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
36 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373 (Starke J), 377-378 (Dixon J).
37 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
38 Ibid.
39 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
40 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 150 [62].
41 DCB, 21.
42 [2013] FWC 7675.
43 Ibid.
44 There is no evidence that ECU took any steps to substantiate the misconduct allegations which formed the reasons for the termination of the agreement or took the opportunity provided by the obligation to ‘consult’ to advocate on Dr Bin Sahri’s behalf. I have dealt with ECU’s failure to verify the allegations or actively participate in the ‘consultation’ phase elsewhere in this decision.
45 See for example Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243; Kool v Adecco Industrial Pty Ltd T/A Adecco[2016] FWC 925; Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee 266 IR 253; DA v Baptist Care SA[2020] FWCFB 6046.
46 [2016] FWC 925.
47 [2016] FWCFB 5243.
48 Ibid [37].
49 Ibid, 28.
50 Ibid, 25.
51 Ibid, 38.
52 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].
53 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
54 Ibid.
55 (2000) 98 IR 137.
56 Ibid 98 IR 137, 151 [73].
57 Ibid [75].
58 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
59 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
60 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
61 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
62 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
63 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
64 DCB, 17.
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16
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