Dr Olasupo Owoeye v University of South Australia
[2016] FWCFB 8715
•7 DECEMBER 2016
| [2016] FWCFB 8715 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
University of South Australia
(C2016/5836)
VICE PRESIDENT WATSON | MELBOURNE, 7 DECEMBER 2016 |
Appeal against decision on transcript in matter C2016/5531 of Commissioner Platt at Adelaide on 27 September 2016 – Dispute arising under an enterprise agreement –Fair Work Act 2009 ss.604, 340.
Introduction
[1] This decision concerns an application by Dr Olasupo Owoeye for permission to appeal and an appeal against the decision of Commissioner Platt handed down on transcript on 27 September 2016 in Adelaide. The decision of the Commissioner arose from a dispute over the application of the provisions of the University of South Australia Enterprise Agreement 2014 (the Agreement).
[2] The issue determined by the Commissioner concerned a claim by Dr Owoeye that he had a personal grievance within the meaning of clauses 49.1 and 49.2 of the Agreement with his employer, the University of South Australia (the University). The grievance related to a dispute regarding a decision of the University to withdraw funding for attending two overseas conferences after Dr Owoeye resigned from his employment, and the application of the National Employment Standards (the NES) contained in the Fair Work Act 2009 (the Act).
[3] On 26 September 2016 the Commission convened a conference to resolve the dispute by conciliation. An agreed resolution was not reached. The parties did not object to the Commission arbitrating the matter under the disputes procedure of the Agreement. The matter was heard on 27 September 2016. Commissioner Platt dismissed the application. Dr Owoeye lodged a notice of appeal against the Commissioner’s decision.
[4] In the hearing of the appeal in this matter Dr Owoeye appeared on his own behalf. Mr A Short of counsel appeared on behalf of the University.
Background
[5] Dr Owoeye commenced his employment with the University as a law lecturer on 11 January 2016. His duties involved teaching, research and professional activities. The conditions of Dr Owoeye’s employment were regulated by the Agreement and an employment agreement dated 30 March 2015.
[6] On 30 August 2016 Dr Owoeye advised the University of his intention to resign from employment with the University effective from 13 January 2017. It was alleged that on the following day, 31 August 2016, the University informed Dr Owoeye that his employment would be terminated from 30 November 2016.
[7] At this time, it was alleged, the University revoked prior approval and funding for Dr Owoeye to attend three international conferences between September and November to present his research. Approval and funding for one of these conferences was restored following negotiations. These negotiations also resulted in a revised date of termination being 13 January 2017. Dr Owoeye accepted this revised date.
[8] Additionally, Dr Owoeye alleged that he was directed to take his accrued annual leave prior to the original termination date of 30 November 2016 in breach of the NES.
The Decision under Appeal
[9] Commissioner Platt handed down his decision at the conclusion of the 27 September 2016 hearing. The Commissioner determined the dispute by dismissing Dr Owoeye’s application for payment on the basis that the University’s decision with respect to the funding was an exercise of its managerial prerogative in line with the University’s policies and a decision with which the Commission had no proper basis to interfere. Further, the Commissioner found that there was no breach by the University of the NES. 1
[10] The Commissioner also noted that Dr Owoeye had originally made an allegation that the University had taken adverse action in the terms of s.340 of the Act against him. This claim was withdrawn during the hearing. 2
[11] The Commissioner made these findings on the basis that first, the University’s decision to revoke funding of the conferences was not unjust or unreasonable and should not be interfered with. He was satisfied that the decision was reviewed on a sound commercial basis in line with the guiding principles of the University’s professional development fund guidelines. 3 The Commissioner found there to be no denial of natural justice.4
[12] Second, in relation to the alleged breach of the NES, the Commissioner was not satisfied that the University had required Dr Owoeye to take leave. There was no evidence of any threat or coercion to do so. Dr Owoeye was able to utilise his leave to attend the conferences in his own time or continue to work. 5
Grounds of Appeal
[13] Dr Owoeye sought permission to appeal against the decision on a number of grounds. Specifically, he alleged that the Commissioner erred by:
● holding that the principles of natural justice do not apply to the decision of the University;
● holding that cl.49.9 of the Agreement does not require the involvement of ‘appropriate representative(s)’ other than the parties to the dispute at stage 2 of the dispute settlement process;
● failing to consider Dr Owoeye’s claim that the decision of the University would have adverse effects on his employment;
● declining jurisdiction over the claim that Dr Owoeye’s personal grievance related to an action of the University that had an adverse effect on his employment and that action constituted adverse action within the meaning of the words in s.340 of the Act;
● holding that the withdrawal of approval to attend the conferences unless leave was taken for that purpose did not amount to coercion or undue influence under the Act;
● holding that the University’s position on attendance at the conferences and the taking of leave was not in breach of the NES;
● holding that the action of the University was not punitive or vindictive; and
● holding that the action of the University was unjust and unreasonable.
Permission to Appeal
[14] Dr Owoeye submitted that it was in the public interest for permission to appeal to be granted. He submitted that it was in the public interest to ensure that:
● employers do not coerce or exercise undue pressure on employees to make arrangements under the NES;
● employers do not take actions that have an adverse effect on the employment of an employee simply because the employee has chosen to exercise a workplace right;
● employers comply with the NES; and
● the principles of procedural propriety are observed in making administrative decisions.
[15] The decision of the Commissioner was the exercise of private arbitration under the dispute settlement clause of the Agreement. Under the terms of the agreement an appeal is available in accordance with the requirements of the Act. Permission to appeal must be granted if the Commission is satisfied that it is in the public interest to grant permission. Permission may nevertheless be granted if there is sufficient doubt about the decision to warrant its reconsideration or an injustice may arise if permission is not granted.
[16] The decision of the Commissioner, delivered at the conclusion of the hearing, addressed the relevant concerns that had been raised by Dr Owoeye. The Commissioner accurately summarised the relevant events. His basic conclusion was that the University was entitled to withdraw funding and it did so for sound commercial reasons. He found that by permitting Dr Owoeye to take annual leave to attend the conferences at his own expense there was no breach of the NES.
[17] The grounds of appeal appear to us to be an attempt to re-argue the case put before the Commissioner. Decisions of the University regarding funding or taking of leave are matters within the discretion of the University. If, in making such decisions, the University contravenes a provision of legislation or otherwise acts unfairly or unreasonably, it would be appropriate for the Commission to determine the dispute in a manner designed to remedy the breach or unfairness. Multiple arguments were advanced before the Commissioner which were found to fall short of demonstrating a case for modifying the University’s decision.
[18] In our view the Commissioner was correct in the conclusion he reached. We are not satisfied that the appeal grounds have substance or that there is any other basis to grant permission to appeal. We decline to grant permission to appeal. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Dr O Owoeye, Applicant.
Mr A Short of counsel on behalf of the University of South Australia.
Hearing details:
2016.
Melbourne.
15 November.
Final written submissions:
Dr Owoeye on 9 November 2016.
The University of South Australia on 9 November 2016.
1 PN823.
2 PN811.
3 PN820.
4 PN819.
5 PN822.
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