Indra Abeysekera v Charles Darwin University - [2024] FWC 2628

[2024] FWC 2628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Indra Abeysekera
v

Charles Darwin University

(U2024/6480)

COMMISSIONER RIORDAN

SYDNEY, 14 NOVEMBER 2024

Application for an unfair dismissal remedy

On 6 June 2024, Mr Indra Abeysekera (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by Charles Darwin University (the Respondent) on 21 May 2024.

Background

I have deliberately abbreviated a number of the pieces of correspondence that were sent between the parties leading up to the Applicant’s termination. I have attempted to identify the relevant provisions, however, this summary obviously effects the context of the correspondence.

On 11 March 2024, the Applicant was issued with a ‘Notice of Allegation’ letter as follows:

“Dear Professor Abeysekera,
RE: NOTICE OF ALLEGATION – POTENTIAL MISCONDUCT OR SERIOUS MISCONDUCT
I write to notify you that allegations have been made against you relating to Misconduct or Serious Misconduct and alleged breaches of the CSFP Guidelines, the University’s Research Policy (Attachment 1 &2), and the University’s Code of Conduct – Staff (Attachment 3).
The allegations that have been raised are set out below and I now offer you an opportunity to respond as follows:
Allegation 1
It is alleged that you knowingly used funds for research expenses from the Covid Supplementary Funding Pool (CSFP) Grant despite requesting to hand over the grant to Dr. Shawgat Kutubi on 18 March 2022.

…

Allegation 2
It is alleged that you claimed expenses between 21 June 2021 and 06 September 2023 against the CSFP Grant for research conducted that was not relevant to the Grant.
…

Allegation 3
It is alleged that in a report dated 30 June 2023 you claimed that you had completed publications as part of your progress against the CSFP grant that were not relevant to the CSFP grant proposal:
…

Allegation 4
It is alleged that you did not apply for the required ethics approvals to conduct research relating to First Nations people, which was required as part of the scope of the CSFP Research Proposal.
…

Allegation 5
It is alleged that you did not fulfill your duties as Principal Investigator of the CSFP Grant by questioning the Finance team and checking with Professor Low as to why you were still listed as Principal Investigator and the Cost Code owner of the CSFP grant.
…

In accordance with clause 59.10 of Charles Darwin University and Union Enterprise Agreement 2022 (the Agreement), you are now provided with ten (10) working days, until close of business Tuesday 26 March 2024, to submit a written response to this notice of allegations to me. Your response will then be provided to the Vice-Chancellor for determination.
If these allegations are substantiated, it could be considered that you have breached;
· The University’s Research…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] FWC 2628
Decision Date: 14 NOVEMBER 2024

CaseChat Overview and Summary

Indra Abeysekera filed an application with the Fair Work Commission for a remedy for unfair dismissal under the Fair Work Act 2009 after being dismissed by Charles Darwin University. The Applicant had been employed by the Respondent since 2017. The Applicant was a Professor of Accounting at the Respondent and was appointed Principal Investigator (PI) of the Covid Supplementary Funding Pool (CSFP) Project. The Applicant was dismissed for, amongst other things, claiming reimbursement for expenses that were not relevant to the Project. The Applicant argued that the expenses claimed were relevant to the Project and that there was no valid reason for his dismissal. The Applicant also argued that the process that led to his dismissal was unfair. The Respondent argued that the Applicant’s dismissal was justified and that the process was fair. The Commission found that the Applicant was not the PI for the CSFP Project when he submitted his reimbursement claim and that the Respondent made a series of errors that led to the Applicant being reimbursed. The Commission found that the Applicant’s termination was harsh, unjust and unreasonable. The Commission did not order reinstatement as the necessary trust and confidence could not be re-established. The Commission ordered the Respondent to pay the Applicant $61,405.49 plus superannuation.

Orders