Fereshteh Khani-Esfanabadi v University of Melbourne

[1996] IRCA 62

DECISION NO:   62/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination for the prohibited reason of RACE - whether PROCEDURAL FAIRNESS

Industrial Relations Act 1988, ss 170EA, 170DC

FERESHTEH KHANI-ESFANDABADI v UNIVERSITY OF MELBOURNE
VI 3651 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  22 FEBRUARY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3651 of 1995

B E T W E E N:

Fereshteh KHANI - ESFANDABADI
Applicant

A N D

UNIVERSITY OF MELBOURNE
Respondent

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application is dismissed.

NOTE:   Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3651 of 1995

B E T W E E N:

Fereshteh KHANI - ESFANDABADI
Applicant

A N D

UNIVERSITY OF MELBOURNE
Respondent

REASONS FOR DECISION
(delivered ex tempore)

22 February 1996  PARKINSON JR
This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant alleges that her employment was terminated by the respondent because of her race and religion. The applicant submitted that she had been the subject of a conspiracy devised by various employees, particularly those of Jewish ethnicity, with a view to damaging and ultimately bringing about the termination of her employment.

The respondent submitted that the termination occurred as a result of the misconduct of the applicant, involving a persistent failure to follow instructions from supervisors, the making of false allegations against supervisors and other staff members, and aggressive and initimidatory behaviour.

The history of the employment is that the applicant was originally employed in the Central Registry in a base grade administrative position after having completed work experience at the university. Her permanency was confirmed on 9 December 1988. The applicant experienced some difficulties in her relationships with persons in that area after an application she made for a position was unsuccessful, and a complaint she made of race discrimination to the university’s equal opportunity officer was not upheld.  She was seconded to a special project for a short time between 22 July 1991 and 31 October 1992.

At the conclusion of available work for the applicant on that project she was transferred to the records management area of the Central Records Department. Whilst this transfer occurred on 24 February 1992, the applicant continued to receive payment at the level provided for in the secondment until the end of the stated period for the secondment. In the Central Records area the applicant was subject to the supervision of Ms Grady, and the ultimate direction of Ms Davidson, who was the Centre Manager.

During the course of 1992 a number of workplace issues arose between the applicant and her supervisor in the department,  Ms Grady.  Ms Grady ultimately asked that she be removed from direct line supervision of the applicant because she was unable to get the applicant to follow her directions.  This occurred and Ms Davidson became the applicant’s direct supervisor.   At about this time the applicant’s claim for a reclassification was refused by an independent panel. The evidence is that the applicant became increasingly hostile towards her supervisors and colleagues in the department and increasingly reluctant to follow instructions in relation to the performance of her duties. 

I heard the evidence of Ms Grady and Ms Davidson in this regard and, having regard to the material provided by the applicant in relation to the work performance issues, I am satisfied that there were genuine and valid complaints at that time in relation to her work performance.  In addition, there were genuine and valid complaints by other employees, arising from the applicant’s conduct towards her supervisor and other personnel of the university.  A number of the matters of concern were documented by Ms Davidson and Ms Grady in a document which was exhibit R2.  Some of the incidents of concern date back to 1993. On  14 May 1994 an incident occurred wherein there was an exchange between the applicant and Ms Davidson, where the applicant behaved aggressively and in a threatening manner towards Ms Davidson.  I am satisfied that, on the evidence before me in this matter, this was the case, and that the applicant acted on that occasion in a manner which was at best rude and insubordinate, and at worst aggressive and intimidatory. 

During the course of this incident and in subsequent discussions,  the supervisor was accused of preference to friends and relations and persons of Jewish and Anglo-saxon background.  This is and continues to be a persistent allegation in these proceedings. The applicant also maintains this invective against persons of Jewish ethnicity. Her complaint in the proceedings was that Jewish people were preferred over her because she was not Jewish and was Muslim.   Such accusations were published widely by the applicant during the course of her employment with the university and extended to accusing the Vice- Chancellor and other senior managers of policy preference directed towards Jewish persons, and their own friends and relations.  There is no evidence to substantiate such an allegation.  The evidence of the respondent is to the contrary and I so find.

A number of documents were tendered in these proceedings wherein the applicant repeats such allegations against many and varying persons in the university, and the applicant repeated the allegations in the course of the proceedings.   Those documents are included in exhibits R3, R6, A22, A23, A25 and A27.

As a result of the incident on 14 May 1994 an inquiry was held and an independent person, Dr Emmerson, was appointed to inquire into allegations of misconduct against the applicant.  As a consequence of this inquiry the Vice-Chancellor found that misconduct allegations against the applicant had been proved and issued a reprimand.  The applicant was formally advised of the outcome of the enquiry in a letter dated 30 June 1994 (exhibit R5).  She was further advised in that letter of the appropriate processes to follow in relation to allegations or complaints as to the conduct of other members of staff, and was instructed that in future she was to use the proper internal inquiry system or the relevant external tribunal.

It was decided to take steps to offer the applicant a fresh start by transferring her to another department in the university.  She was transferred to the School of Graduate Studies, to be supervised by Dr Irvine, who had only recently come to the university, in an entirely new department of the university. Despite the instructions in exhibit R5, the applicant that day by way of  the E-mail system published further accusations in relation to her treatment and the discrimination she alleged. The evidence was that the university decided to take no action, with a view to allowing the situation to settle down.

I am satisfied that the applicant was given every opportunity by Dr Irvine to develop her employment in the School of Graduate Studies. Dr Irvine took a number of steps to improve the applicant’s enjoyment of her position, and authorised study leave.  The applicant participated in a working hours arrangement which was structured to accommodate the department and her needs.  A proposal was circulated for a working system within the department to all staff, however the applicant treated that memorandum from Dr Irvine as being in some way directed towards intimidating or checking up on her. She responded with an abrupt and aggressive memorandum challenging Dr Irvine (exhibit R6 - document dated 8 December 1994).  Despite this incident and others, Dr Irvine and the university continued to attempt to involve and encourage the applicant in the course of her employment.  The applicant had expressed views about seeking more interesting or challenging positions and Dr Irvine attempted to encourage her in those ambitions.  The consequence was that the applicant perceived Dr Irvine as trying to get rid of her from the department or the university. During this period the applicant continued to respond to situations inappropriately by abuse or invective directed mainly in memorandum or documentary form to her supervisors, and published to higher officials in the university. 

In 1995 Ms White became the manager of the School of Graduate Studies and she too experienced similar difficulties with the applicant to those experienced by her previous supervisors. The applicant was absent from her workplace without explanation on the afternoon of 25 January 1995 and, when asked for an explanation by her supervisor, responded in a rude and aggressive manner  (exhibit A25).  The matter came to a head when the applicant, having been refused a rostered day off because of staffing limitations, absented herself from work on 27 January 1995 without explanation to her supervisor.  The applicant did not provide a doctor’s certificate for that absence.   Ms White then wrote to the director of personnel services in relation to the conduct of the applicant (exhibit R7).  The documentation provided with that complaint identifies a general concern amongst the staff of the department in relation to the applicant’s conduct and attitude.   As a result of this and other complaints, including the fact that the applicant was persisting in making unsubstantiated allegations of racism, unprofessionalism and dishonesty against other employees, a decision to investigate the matter by way of the award disciplinary procedures was taken.

The applicant was notified by telephone of a request to attend an interview with Ms Bare` and such interview was adjourned on 2 February 1995 to enable the applicant the opportunity to bring a friend.  Arrangements were in place to tape any meeting which occurred. This was at the request of the applicant.   Despite numerous attempts to arrange the meeting, no further meeting to discuss the disciplinary allegations against the applicant could be arranged. The applicant was fully informed on 2 February what the intention was in holding the meeting.  Correspondence delivered by mail and courier to the applicant on 24 March and 3 April 1995 in relation to the disciplinary matters and interview remained unanswered, yet other correspondence delivered on 6 March 1995 in respect of sick leave entitlements was the subject of extensive correspondence by the applicant.  I do not accept the applicant’s explanation that she was too ill to respond in any manner to the university correspondence in exhibits R8 and R10. 

I am satisfied on the basis of the evidence put before me in this case that the respondent did not have as one of its reasons for the termination of the applicant’s employment the religion, race or ethnicity of the applicant. The employment was terminated solely as a result of the applicant’s poor work performance and inability to accept direction or supervision or to follow instructions as to proper procedures.

I am satisfied that the applicant wrongly perceived that there was a conspiracy against her in the workplace, and in particular it should be stated that her allegation that she was the victim of a conspiracy of Jewish or Anglo-saxon people is ridiculous and offensive. The applicant in the course of her employment was a continuous source of disruption to the workplace, and the respondent acted properly and fairly in its dealings with her during the entire employment. 

The termination of the employment on 10 April 1995 was for valid reason and was not harsh, unjust or unreasonable. The respondent in the procedure it adopted complied with s170DC of the Act.

The application is dismissed.

I certify that this and the preceding six (6) pages
are a true copy of the reasons for decison of
Judicial Registrar Parkinson.

Associate:
Date: 22 February 1996

APPEARANCES

Applicant in person
Solicitor appearing for the respondent:                 Mr D Shelton

Date of hearing:  22 February 1996