Indra Abeysekera v Charles Darwin University
[2024] FWC 2628
•14 NOVEMBER 2024
| [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 Policy
· Australian Code
· CSFP Guidelines and CSFP TOR/ Proposal
· The University Code of Conduct Staff (specifically Integrity and Professionalism, Accountability, and Values-based leadership)
· The Charles Darwin University and Union Enterprise Agreement 2022; Clause 59; Conduct in the Workplace
and, in accordance with clauses 59.3 and 59.4 of the Agreement, this may be considered to be Serious Misconduct.
This is a serious matter, and while no final decision has been taken at this stage, I must make you aware that if the allegations are substantiated and the Vice-Chancellor is of a view that conduct amounts to serious misconduct, you may be subject to Disciplinary Action which may extend to the termination of your employment.
…
Yours sincerely
Professor Ruth Wallace
Pro Vice-Chancellor
Faculty of the Arts & Society”
The Applicant provided a lengthy response on 8 April 2024, and a further response on 11 April 2024.
On 30 April 2024, the Applicant was issued a Show Cause Letter:
“Dear Professor Abeysekera,
RE: REQUEST TO SHOW CAUSE
I am writing to you regarding the Notice of Allegations – Conduct in the Workplace provided to you on 12 March 2024 in accordance with Clause 59(10) of the Charles Darwin University and Union Enterprise Agreement 2022 (The Agreement) (copy attached for your convenience).
In accordance with Clause 59.11 of The Agreement, People and Culture have reviewed your response and are in the process of making a recommendation to the Vice-Chancellor in regard to an appropriate outcome. Before this recommendation is made however, we wish to share with you our initial findings, and provide you with an opportunity to present any new evidence that you have not yet provided that you may seek to rely on as mitigating circumstances or other matters in your defence.
Initial Findings
Allegation 1
In your response dated 08 April 2024, you denied this allegation by stating the email correspondence on 18 March 2022 could not be considered as acceptance of handing over the grant and believed you were the Primary Investigator (PI), part of the research team, and hence incurred expenses. Furthermore you stated that you did not consent to hand over the grant to Professor David Low.
However, after reviewing the evidence available, it is established that as an experienced researcher, you would have reasonably been aware that you were removed as PI from the grant.
On a balance of probabilities, this allegation is substantiated.
Allegation 2
Your response explained as to why the said expenses were claimed and a lengthy explanation of the publications mentioned in the Mid-year review report 2023. However, your response failed to address the allegation that the expenses you claimed were relevant to the grant. No link between the expenses and the grant was established. The CSFP grant had specific guidelines as to how the funds should be spent. Expenditure on purchasing books is associated with their personal and professional development and should not be characterized as research expenditure. Therefore, your explanation is not accepted.
On a balance of probabilities, this allegation is substantiated.
Allegation 3
In your response you denied this allegation by stating that you did not accept the said publications are not relevant and that you as the PI had the responsibility/ Duty of care to change the scope of the project. In your response you have explained in a lengthy manner whether any CSFP funds were used for the said publications. However you fail to address that this allegation is regarding the relevance of the publications listed in the report 2023 and not whether any CSFP funds were used. Furthermore you have extensively described/ explained the quality ranking each publication received, again failing to address the allegation.
On a balance of probabilities, this allegation is substantiated.
Allegation 4
It is noted that in your response you stated that no ethics approval was required as you used publicly available secondary data. While acknowledging that this is correct, it is established that ethics approval was required for the purposes of the research project. Professor Low has obtained the ethics approval once they were named the PI. In your response, you further state that if Professor Low was the PI it is his responsibility. Throughout your response, you claim you were the PI and in this instance, you deny that you were the PI contradicting your own response.
On a balance of probabilities, this allegation partially substantiated.
Allegation 5
We are not progressing with this allegation as it is established that you were not the PI of the CSFP grant effective March 2022.
Opportunity to Respond to Initial Findings
Please note that four (4) of the five (5) allegations have been substantiated above. It is established that you have breached the Code of Conduct- Employees as well as several policies and procedures of the University specifically:
- Fraud and Corruption Policy
- Research Policy
- Code of Conduct – Employees
- Conflicts of Interest Policy
Our initial finding in relation to Allegation 2 constitutes Serious Misconduct. Misuse of University Funds, specifically in this instance, misuse of research funds/ use of University funds for personal gain, could be considered fraud/ theft and corruption as defined under the Fraud and Corruption Policy. Serious Misconduct may lead to termination of your employment.
The transactions alleged for misuse as detailed below again for your reference:· Purchasing books on research methods/techniques ($ 170.39)
· Purchase of Nigerian Stock exchange details. ($184.69)
· Manuscript submission fee to European Financial Management Journal ($1009.46)
· Open access and Article processing charge ($2796.28)
These purchases were not expenditures included within the guidelines of the grant. Therefore, using University grants for personal agenda/ misuse of funds is considered as fraud and theft which constitutes serious misconduct as defined in Clause 59.4.1(a) and (b) of The Agreement. Furthermore, misuse of research funds can cause serious harm to the reputation and viability of the University.
This conduct may also require a report to the Independent Commission Against Corruption (ICAC). Additionally, we are concerned that your response does not appear you have reflected on your behaviour.
As such, under Clause 59.11 of The Agreement, I am considering making a recommendation to the Vice Chancellor for the termination of your employment.
Prior to making this recommendation, we wish to provide you with an opportunity to provide any further evidence or mitigating circumstances as to why this recommendation should not be made or, in the event that a recommendation for termination is made to the Vice-Chancellor, why the Vice-Chancellor should not endorse this outcome.
Please provide me with your written response within five (5) working days, that is, by close of business on 08 May 2024.
I will then make my final recommendation to the Vice-Chancellor following consideration of your response.
Please send your response to either myself directly at [redacted] or to Christeen Fernando, People Partner at [redacted].
Support
I take this opportunity to remind you of the Employee Assistance Program available to employees for confidential counselling. The University uses EASA to provide this service, which can be contacted on [redacted].Should you have any queries, please get in touch with Christeen Fernando, People Partner [redacted].
Yours sincerely,
Peta Preo
Director, People and Culture”
The Applicant provided a response to the Show Cause Letter, via his legal representative, on 3 May 2024:
“Dear Christeen
Response to show cause letter
1. We continue to act for Professor Indra Abeysekera.
2. We refer to your letter of 30 April 2024. We are instructed to respond as follows:
a. Allegation 1:
i. You refer to “evidence available”. This indicates that CDU has available to it evidence other than what was submitted by Professor Abeysekera. In line with basic principles of natural justice and procedural fairness, we demand that this “evidence” be provided to us and that Professor Abeysekera be given a reasonable opportunity to respond.
ii. Curiously, you have not responded at all to points raised in our initial response regarding the preliminary investigation by CDU into this matter. Noting that your conclusions differ significantly from the conclusions of the preliminary investigation – it is incumbent on you to explain this difference (and again allow Professor Abeysekera an opportunity to respond). Absent a reasonable response supported by evidence, the Fair Work Commission may infer an ulterior motive (if this matter proceeds to an unfair dismissal application).
iii. We remind you that for an allegation to be “substantiated”, the decision maker must base this decision on evidence (rather than simply a subjective opinion on what they consider an experienced researcher would have been aware of). Ie this is a question of fact as to what Professor Abeysekera was actually aware of.
b. Allegation 2
i. You have indicated that the response failed to address the allegation that the expenses claimed “were relevant to the grant” (we assume you mean not relevant to the grant). You have said “no link between the expenses and the grant was established”. This is strange conclusion noting that the responses to allegation 2 asserted that there was a link and that was relevant (with explanations given). See responses at 2.1, 2.2, 2.3, and 2.5. The response re 2.4 indicated that Professor Abeysekera was unsure if this expenditure came within the CSFP grant so he requested approval.
ii. Noting the above, it would appear that you have not properly considered the response to Allegation 2. We invite you to do so.
iii. In any event, while Professor Abeysekera does not accept that this expenditure was unrelated to the grant and was merely “personal and professional development”, we are instructed that Professor Abeysekera agrees to repay CDU out of his own funds for this expenditure as a show of good faith.
c. Allegation 3
i. We repeat the responses to Allegation 2 in relation to Allegation 3.
ii. You say “However you fail to address that this allegation is regarding the relevance of the publications listed in the report 2023 and not whether any CSFP funds were used”. We do not understand this sentence. With respect, it appears to have a number of errors in it. Can you please explain what you mean/rephrase this?
d. Allegation 4
i. You have said that “It is noted that in your response you stated that no ethics approval was required as you used publicly available secondary data. While acknowledging that this is correct, it is established that ethics approval was required for the purposes of the research project.” On its face this does not make sense logically (ie how can this be correct and you also consider ethics approval was required?). Please also explain the basis for your conclusion that ethics approval was required so that Professor Abeysekera can have an opportunity to respond.
ii. You then allege that Professor Abeysekera’s response was
contradictory. With respect, this is a misguided interpretation. In
summary, Professor Abeysekera’s response was:1. He used secondary data that did not require ethics approval;
2. In any event, the conclusion of the preliminary investigation was that all necessary approvals were in place at the commencement of the research;
3. In the alternative, if it is determined that Professor Low was in fact the PI for this project, Professor Low (not Professor Abeysekera) was responsible for any failure to obtain ethics approval
This leaves a clear logic issue for your conclusions in that you cannot determine that Professor Low was the PI at the relevant time but that Professor Abeysekera was responsible for ethics approval for the same project at the same time.
iii. Noting the above, there does not appear to be any basis for this allegation to be “partially substantiated” (and in any event you haven’t explained what part you consider was substantiated).
e. Allegation 5
i. Noted
f. Opportunity to respond to initial findings
i. We note that your conclusion that 4 of the 5 allegations have been substantiated is plainly false (ie your letter actually indicates that 3 are substantiated and 1 is “partially substantiated”);
ii. We note that you have concluded that Professor Abeysekera has “breached the Code of Conduct- Employees as well as several policies and procedures of the University” – but you have not explained how you came to this conclusion (what facts you rely on and what part of the code/policies you rely on). This is particularly concerning noting that we raised this issue in the previous response.
iii. You do say that your initial finding in relation to Allegation to constitutes “Serious Misconduct”. You appear to be suggesting that there was a misuse of CDU funds for “personal gain”. This is a very serious allegation which is not accompanied by any supporting evidence (at least not that you have put to our client). It is very concerning that you have come to this conclusion noting that:
1. You did not make any allegation of misuse for personal gain in the initial allegations letter;
2. Your conclusion in your show cause letter itself (under Allegation 2) does not actually make the finding that there was misuse of
funds for personal gain
3. You have not explained how you came to the conclusion that our
client personally gained anything from the expenditure;
4. You have not provided any evidence to support your conclusion.
iv. If you cannot prove that our client obtained “personal gain” from this expenditure, but you can prove that the expenditure (or part of it) should not have been reconciled against this particular grant (and that this was our
client’s fault), this will not amount to serious misconduct as defined in section 59.3 of the EBA (which mirrors the definition in the Fair Work Act). Further, we do not consider that this would amount to a valid reason for dismissal (especially noting the contradictory conclusions in the preliminary investigation).v. It appears that your logic is that if expenditure was not for the grant, it therefore must be fraud/theft. Plainly this is false. It is very well understood that fraud/theft requires an intent to deprive another person of their property. We strongly suggest you obtain expert advice in relation to this matter.
vi. You have indicated that “misuse of research funds can cause serious harm to the reputation and viability of the University.” – but you have not actually alleged (or provided evidence) to suggest that the alleged misuse of funds (which is denied) actually did cause serious harm to the reputation and viability of the University. If you have such evidence, please provide it to us so that our client can provide a response.
vii. For the avoidance of doubt, our client denies obtaining any personal financial benefit from the expenditure in issue. Despite this, as above, our client is willing to repay CDU the total of the 4 items mentioned as a show of good faith.
viii. We remind you that there can be serious consequences for making serious allegations such as fraud without any reasonable basis. For example, it may expose CDU to liability for defamation. We strongly suggest you obtain your own expert personal legal advice on this issue and seek guidance from any professional association of which you are a member.
g. You have threatened to report Professor Abeysekera’s conduct to ICAC. Noting our comments above about your allegation of fraud without any reasonable basis, we strongly suggest you obtain expert legal advice before making this referral.
h. We note that you have said “Additionally, we are concerned that your response does not appear you have reflected on your behaviour.” This is a highly unusual comment for a show cause letter that is better suited to a comment from a Principal to a student, or a parent to a child. It could lead to a number of inferences if Professor Abeysekera is dismissed as a result of this process. We invite you to withdraw this comment.
3. Noting all of the above, it is clear to us that there have been serious issues in the way in which this investigation has taken place. If you proceed to terminate as threatened, we are instructed to commence an unfair dismissal application in the Fair Work Commission. We will rely on the comments above to establish that:
a. the process has been unfair; and
b. there was no valid reason for dismissal.
4. If we are successful in establishing that either the process was unfair, or that there was no valid reason for dismissal, we will be seeking reinstatement plus backpay. We will file this letter (and your response to it) as evidence in such an application.
5. Separately, we note that clauses 59.20 to 59.29 of the EBA set out a process for an internal independent review in circumstances where termination of employment is recommended by CDU. We are formally instructed to request a review on the grounds of procedural unfairness on the grounds set out above. It is not clear to us on the drafting of the EBA whether this application should be made at the show cause stage, or at the termination stage. In the event that CDU’s interpretation is that it can only be made at the termination stage, we simply indicate our client’s intent.
Regards
Cozens Johansen LawyersPatrick Cozens
Partner”
The Applicant was issued a Termination Letter on 21 May 2024:
“Dear Professor Abeysekera,
RE: DISCIPLINARY ACTION – SERIOUS MICONDUCT – TERMINATION
I am writing to you regarding the Notice of Allegations presented to you on 12 March 2024 which alleged the following:
Allegation 1
You have 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.· Your email to Professor David Low of 18 March 2022 requesting to hand over the grant
· Professor Low’s email confirming acceptance of this request
· Professor Steven Greenland’s email of 29 September 2022, in which he advised that he believed Professor Low was the Principal Investigator (PI) for this grant and suggested you contact Professor Low to check
· You continued to submit expenses against this grant between 18 March 2022 and 06 September 2023
Findings
You have denied this allegation in your response dated 08 April 2024. Within this response, you stated that the email conversations that took place on 18 March 2022 between yourself, Dr Kutubi and Professor Low could not be considered as acceptance of handing over the grant. You state that you were put under psychological pressure to hand over the Principal Investigator role (PI), however, you did not report this to People and Culture to be investigated.People and Culture acknowledges that there was no direct written communication from the University categorically stating you were now formally removed as the PI. However, you failed to follow up with Professor Low, or anyone within ORI despite being instructed multiple times by others to do so, which was a reasonable expectation of someone in a professorial-level position.
Additionally, in your responses, you indicated you were of the opinion and belief that the PI status was handed to Dr Kutubi, not Professor Low. Whilst this is not accurate, it further demonstrated to the University that you had knowledge of your being removed as the PI. You further stated that you did not consent to hand over the Grant to Professor Low. Your consent to the change or to who will be appointed as the new PI is irrelevant to the allegation.
In addition to the above, based on the evidence available, it is established that you ceased to be part of the research team once the PI status was removed and, therefore, you were not permitted to submit expenses. As an experienced researcher and senior academic, the University believes that it is reasonable to make the determination that you would be aware of this fact and such, your response to this allegation is not accepted. Furthermore questioning Professor Low’s qualifications and integrity holds no value in determining your conduct or if the allegation is substantiated or not.
Therefore on the balance of probabilities, this allegation is substantiated.
This is a breach of:
Code of Conduct Employees, specifically:
(9) the code is informed by our values. The code of conduct embodies our ethos, underpinning the decisions we make, from the way we interact, to how we conduct ourselves, our business and who we partner with.
(15) Employees are expected to conduct themselves to the highest professional standard that can be reasonably expected.
(16) University employees will:a) behave objectively, impartially, professionally, and with integrity;
d) be responsible and accountable for their own actions and decision
f) ensure their behaviors and actions are in compliance with the Agreement, the code and university governance documents.
(20) d) Not misuse resources gained in their official capacity for their own or for others personal benefit or gain
Allegation 2
You claimed expenses between 21 June 2021 and September 2023 against the CSFP Grant for research conducted that was not relevant to the grant.
This is evidenced by the following;· Manuscript Submission fee to European Financial Management Journal ($1,009.46)
· Partial Least Squares book from Fishpond.com.au ($79.65)
· Pre order advanced issue in partial Least Squares from Booktopia.com.au. ($90.74)
· Purchase of Nigerian stock exchange ($184.69)
· Public Library of Science, Open Access and Article Processing charge ($2,796.28)
Findings
In your response, you provided a lengthy explanation as to how, in your opinion, the expenses are linked to the grant. However, your response failed to actually and factually establish how the expenses you claimed are related to the grant and within the limits of the guidelines. The CSFP Grant had specific guidelines as to how the funds should be spent, which was attached to your original allegations. All researchers were to spend within the scope of these guidelines, or seek appropriate approvals to expand the scope. Purchasing books on research methods does not fall within the guidelines, nor have you provided any evidence of seeking approval to expand the scope of the project.It is established you gained a personal benefit by claiming the above-mentioned expenses as purchasing books on research methods is associated with your personal and professional development. Your stated opinion that by purchasing these books, you produced quality research output and therefore is of benefit to the CSFP Project is not accepted. Therefore, your explanation is not accepted.
Furthermore, you state that you purchased Nigerian stock market details in the hope of assisting a PhD student with their research but were again unable to establish or prove how the University benefitted from this act or how it was linked to the CSFP Grant. Your response that you were not sure as to whether that is related or not is not accepted. As an experienced researcher and senior academic who was the PI of the CSFP Grant for a time, you would be well aware of the research scope of the project.
I am of the opinion you acted dishonestly, and this is a deliberate misuse of CDU funds to a value greater than $3,000 and is Serious Misconduct.
I find this allegation is substantiated.
This is a breach of:
· Code of Conduct Employees, specifically:
(9) the code is informed by our values. The code of conduct embodies our ethos, underpinning the decisions we make, from the way we interact, to how we conduct ourselves, our business and who we partner with.
(15) employees are expected to conduct themselves to the highest professional standard that can be reasonably expected.
(16) University employees will:a) behave objectively, impartially, professionally, and with integrity;
d) be responsible and accountable for their own actions and decision
f) ensure their behaviours and actions are in compliance with the Agreement, the code and university governance documents.
g) treat other members of the University community with respect, professionalism and kindness, as an employee and when engaged in position of leadership.
(20) d) At all times, employees must:
d) Not misuse resources gained in their official capacity for their own or for others personal benefit or gain
(28) In accordance with clause 59 of the Agreement, behaviours that are not in compliance with the university values, this code, or university governance documents may result in an issue of misconduct or serious misconduct.
(30) Serious Misconduct is deemed to be:b) The reputation, viability, or profitability of the University.
· CSFP TOR/ Proposal: Budget guidelines and descriptions of charges
· The University’s Research Policy
· Fraud and Corruption Policy
· Conflicts of Interest Policy
Allegation 3
In a report drafted by you on 30 June 2023 you claimed you completed publications as part of your progress against CSFP grant that were not relevant to the CSFP grant proposal.
This is evidenced by the following;· Financial reporting quality of ESG firms listed in China PLoS ONE Vol18 No. 6,e0284684
· Technology Adoption in Australian universities. Frontiers in Psychology, Vol 14, 1168955
· Sensemaking of family enterprise business model Journal of Open Innovation Technology, Market, and complexity, Vol 9 No 3, 100115
· Accounting for Environmental Awareness on Green Purchase
intension and behaviour Evidence from the Philippines Sustainability Vol 14 No19,12565
· Framework for sustainability reporting.
Sustainability Accounting, management and Policy journal, vol 13 No 6, p 1386-1409
· Underlying profits and Financial Reporting quality in Australia
International journal of Business information Systems, Vol. 40, No 1,p .1.23
· Role of service quality, price,and firm image on customer satisfaction in Philippine.
Journal of Risk and Financial management, Vol 15 No 2
· Accounting for Cultural Capital—Sustainability Agenda of Charities Serving the First Nations People towards Self-Determination—
Evidence from the Northern Territory, Australia. Sustainability Vol. 14, No. 2, Article 949.
· The Coronavirus as a disrupter of a sustainable small early childhood family business in Vietnam.
Sustainability Vol. 13, No. 19, Article 10692.
· Intellectual Capital and Sustainable Economic Performance in the Public Sector: The Context of the New Public Management in Malaysia. Sustainability, Vol. 13, No. 14, Article 7885.
· Auditor judgements after withdrawal of the materiality accounting standard in Australia.
Journal of Risk and Financial Management, Vol. 14, No. 6, Article 268.
· Capital and Knowledge Management Research towards Value Creation. From the Past to the Future. Journal of Risk and Financial Management, Vol. 14, No. 6, pp. 1-20. article 238.
· Financial disclosure quality and sustainability disclosure quality.
A case in China. PLoS ONE, Vol. 16, No. 5, Article e0250884.
· Comparing accounting students' instructional preferences: Australia and Zimbabwe. Journal of International Education in Business, Vol. 14, No. 1, pp. 1-19
You admitted that these publications were not relevant to the CSFP grant in your email dated 29 September 2023 (Attachment 10) and in your statement of 28 September 2023 (Attachment 11).
Findings
In your response, you denied this allegation. This contradicts the information you previously provided on 28 and 29 September where you admitted the publications were not relevant to the project.In your response, you described the quality of the publications listed in the Mid-year report 2023 and stated whether or not grant funds have been used for the publications in question. This allegation was not requesting confirmation of funds used, nor questioned the quality of the research. You further stated that you genuinely believed the scope of the project had been expanded but failed to provide any evidence to support the scope had been expanded or explain the reasoning for your belief that this had occurred.
As an experienced researcher and senior academic, you are aware of the process and approvals required to expand the scope, granted specifically by the Deputy Vice-Chancellor, Research and Innovation, Professor Steve Rogers. In your response, you fail to address that this allegation is regarding the relevance of the publications listed in the report 2023 and not whether any CSFP funds were used.
It is established the majority of the publications listed in the report by you were not within the scope of the research project and that some were published even before the grant was approved. You have therefore provided misleading information to the University regarding the progress of the project. Additionally, I am concerned that you have continued to act dishonestly in your response to this allegation.
I find this allegation is substantiated.
This is in breach of:
· Code of Conduct Employees
(9) the code is informed by our values. The code of conduct embodies our ethos, underpinning the decisions we make, from the way we interact, to how we conduct ourselves, our business and who we partner with.
(15) Employees are expected to conduct themselves to the highest professional standard that can be reasonably expected.
(16) University employees will:a) behave objectively, impartially, professionally, and with integrity;
d) be responsible and accountable for their own actions and decision
f) ensure their behaviours and actions are in compliance with the Agreement, the code and university governance documents.
g) treat other members of the University community with respect, professionalism and kindness, as an employee and when engaged in position of leadership.
(20) At all times, employees must:
d) Not misuse resources gained in their official capacity for their own or for others personal benefit or gain.
(28) In accordance with clause 59 of the Agreement, behaviours that are not in compliance with the university values, this code, or university governance documents may result in an issue of misconduct or serious misconduct.
(30) Serious Misconduct is deemed to be:b) The reputation, viability, or profitability of the University.
· CSFP TOR/ Proposal: Proposals must relate to research in one of three categories
· The University’s Research Policy
Allegation 4
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.
This is evidenced by the following;· The Ethics committee approval was obtained by Professor David Low who replaced you as the PI. (Attachment 12)
· Professor Low in their statement confirmed that no Ethics approval was sought by you regarding the CSFP project.
Findings
In your response, you stated that no ethics approval was required as you used publicly available secondary data. While acknowledging that this is correct for your individual and personal research undertaken, it is established that ethics approval was required for the purposes of the research project as a whole, and at the commencement of the project, you were the PI and had the responsibility to obtain this approval however during the period you held PI status you made no attempt to do so.The requirement and necessity of ethics approval for the whole project is further evidenced by Professor Low obtaining the ethics approval once they were named the PI.
I find this allegation is substantiated.
This is in breach of
· Code of Conduct Employees
· The University’s Research Policy
Allegation 5
You did not fulfil 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 Cost Code owner of the CSFP grant.
This is evidenced by;· Your lack of challenging the email sent by Min Chu stating you were the owner of the cost centre following her email of 28 September 2023
· Your lack of checking with Professor Low as to your status as Principal Investigator following Professor Greenland’s email of 29 September 2023
Findings
I have found this allegation unsubstantiated.Additional comments
I am of the opinion that four (4) of the five (5) allegations are substantiated as detailed above. Furthermore, it is established that you have breached the Code of Conduct Employees as well as several policies and procedures of the University, specifically:· Fraud and Corruption Policy
· Research Policy
· Conflicts of Interest Policy
Although allegations 1, 3 and 4 are of serious concern to the University, and I am of the view this would amount to disciplinary action no less than a first and final warning, allegation 2 and the misuse of University funds is Serious Misconduct and of a significantly concerning matter. You have misused University funds of a value greater than $3,000.
I am of the view that the purchased items are not related to the grant, and you have failed to provide satisfactory evidence or explanation to convince me how these link to the grant. As you have deliberately spent funds from a grant, this, in my opinion, is wilful and deliberate misuse of University funds. Additionally, I am of the opinion that some of the items you purchased with the grant funds were for your own personal benefit.
Determination
In accordance with clause 59. of the Charles Darwin University and Union Enterprise Agreement 2022 (the Agreement), I have considered your response together with the evidence, and I am not satisfied that your responses justify your repeated behaviours, nor do they present any reflection or accountability for the issues that have occurred.Having reviewed the Allegations against you and the Agreement, I have formed a view that your conduct, as outlined and substantiated, amounts to Serious Misconduct.
Serious Misconduct is defined in the Agreement as:
59.3.1 wilful or deliberate behaviour by an Employee that is inconsistent with the continuation of the contract of employment;
59.3.2 conduct that causes serious and imminent risk to:a. the health or safety of a person; or
b. the reputation, viability or profitability of the University.
59.4 Conduct that is Serious Misconduct includes each of the following:
59.4.1 the Employee, in the course of the Employee’s employment, engaging in:
a. theft; or
b. fraud; or
c. assault; or
d. sexual harassment;
59.4.2 the Employee being intoxicated at work;
59.4.3 serious research misconduct;
59.4.4 breaches of the University’s Code of Conduct- Staff and/or University policies;
59.4.5 repeated Misconduct of the same nature; and
59.4.6 the Employee refusing to carry out a lawful and reasonable instruction that is consistent with the Employee’s contract of employment.
Disciplinary action
I am of the view that your conduct is of serious nature. I consider that your actions constitute Serious Misconduct warranting Termination of Employment.Your termination of employment will be effective from close of business today.
The University is committed to ensuring procedural fairness with respect to all decisions made on the taking of Disciplinary Action. My decision is in accordance with the Agreement, and I am satisfied that the procedure under the Agreement has been followed. However, in accordance with clause 59.21 of the Agreement I want to make you aware that you are entitled to seek a review within five (5) working days of this decision on the grounds of procedural unfairness. Your application will need to be submitted in writing to the Director of People and Culture via email, clearly stating where you believe procedural fairness has not been applied and providing sufficient detail to identify one or more demonstrable errors in the process. You may make this request in writing to either [redacted].
Finally, I ask that you liaise with Pro Vice-Chancellor, Professor Ruth Wallace on [redacted] to arrange the collection of any personal items and return of any University equipment that may be in your possession.
A copy of this letter has been placed on your employee file, securely stored with People and Culture.
Should you have any queries, please contact Nicollette Inkley, Manager Employee Relations on [redacted].
Yours sincerely
Professor Reuben Bolt
Acting Vice-Chancellor and President”
The matter was Heard in Darwin on 23 September 2024. The Applicant was granted leave pursuant to s.596 of the FW Act to be represented at the Hearing by Ms Ellis and Mr Cozens of Cozens Johansen Lawyers. The Respondent was represented by Mr Carr of the Australian Higher Education Industrial Association (AHEIA).
The Applicant gave evidence on his own behalf at the Hearing.
The following persons gave evidence for the Respondent at the Hearing:
Ms Nicolette Farris, Employee Relations Manager;
Professor Steve Rogers, Deputy Vice-Chancellor Research & Innovation; and
Professor David Low, Professor at Charles Darwin University and former College Dean Faculty of Arts & Society.
Statutory Provisions
The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:(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:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) 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 regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
see section 388.
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.”
Regulation 1.07 of the Fair Work Regulations 2009 provides the meaning of ‘serious misconduct’ as follows:
“1.07 Meaning of serious misconduct
(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
Examples of serious misconduct—employees
(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:
(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business;
(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;
(d) being intoxicated at work;
(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
Applicant’s Submissions
The Applicant submitted that he was employed by the Respondent on 3 October 2017 in the role of Professor of Accounting. The Applicant submitted that on 14 February 2018, his initial fixed term contract was converted into a continuous appointment.
The Applicant submitted that he was generally well regarded at the University, and is recognised globally as one of the top 2% of researchers in his field.
The COVID Supplementary Fund (CSFP) Grant
The Applicant submitted that on 10 November 2021, Ms Elizabeth Bird, College Manager of the then Asia Pacific Business and Law College, wrote an email stating he had received $40,137.60 in grant funds.
The Applicant submitted that the ‘CSFP Principal…Investigator’s (PI) Role and Responsibilities’ were as follows:
“The PI is responsible and accountable for project success, which is determined by timely Q1 outputs in appropriate fields of research (FoR). The PI is therefore in charge of the project and decision making relating to the research team composition, the research process, associated timelines and project outputs. Where appropriate the PI may designate PI responsibilities to team members but maintains overall project ownership.”
The Applicant submitted that he was ultimately dismissed due to matters relating to this grant funding.
The Applicant submitted that despite his extensive professional career, he had not been a PI prior to his appointment to that role on the CSFP Grant, therefore, he was not familiar with the PI role or its requirements. The Applicant submitted that aside from providing CSFP project guidelines on 3 February 2022, the Respondent did not take any other steps to assist in familiarising the Applicant in this new role, or in administering the CSFP grant throughout the project term.
The Preliminary Investigation
The Applicant submitted that on 28 September 2023, he met with Dawn Bailey and Christeen Fernando from CDU’s People and Culture department regarding a complaint that he had “knowingly used funds which he was no longer part of”. The Applicant understood that this related to the grant funding. The Applicant submitted that there was no offer of a support person for this meeting.
The Applicant submitted that on 17 October 2023, Professor Ruth Wallace emailed him stating:
“I am writing to confirm that the CFSP grant that was led by you and was subsequently lead by David Low is not to be accessed for your research expenses. After the current investigation is complete we will update on the outcome and any implications for the funding allocation”.
The Applicant submitted that on 10 November 2023, he was sent a letter providing an update on the preliminary investigation and indicating “an issue of ethics has been identified in the investigation”.
The Applicant submitted that on 9 January 2024, Professor Tara Brabazon sent him an email informing him of the outcome of the investigation. Importantly, there were findings that:
“a. there was a failure by CDU to communicate with the Applicant regarding the Applicant’s removal as PI on the grant;
b. these failures on the part of CDU resulted in ambiguity, including specifically for the Applicant in terms of managing grants; and
c. recommendation of no disciplinary action”.
(My emphasis)
The Subsequent Investigation
The Applicant submitted that on 11 March 2024, he received an Allegation Letter – alleging potential misconduct or serious misconduct.
On 30 April 2024, the Applicant received a Show Cause Letter, which the Applicant provided his response to on 3 May 2024.
The Applicant submitted that on 9 May 2024, the Respondent sent him a response to his Response to the Show Cause Letter. The Applicant provided a further response on 13 May 2024.
Dismissal
The Applicant submitted that on 21 May 2024, he was summarily dismissed without notice or payment in lieu. The Applicant acknowledged that the letter of termination set out the grounds for termination by reference to the allegations that had been made against him, noting that Allegation 5 was found to be ‘unsubstantiated’. The Applicant understood that Allegation 5, therefore, did not form a ground for his dismissal.
The Applicant submitted that on 28 May 2024, he sent an appeal to the termination in accordance with the Respondent’s Enterprise Agreement.
The Applicant submitted that he received a Separation Letter from the Respondent on 5 June 2024.
The Applicant submitted that on 7 June 2024, the received notice of the outcome of the review, which confirmed the determination. The Applicant submitted that he then submitted his unfair dismissal application with the Commission.
Criteria for Harshness
The Applicant submitted that, in summary, his position is that his dismissal was unfair because:
“a. There was no valid reason for the dismissal;
b. CDU’s process was flawed, procedurally unfair and unreasonable”.
Valid Reason
Allegation 1
The Applicant submitted that, as to Allegation 1, the allegation essentially appears to be that the Applicant submitted grant expenditure as PI for this grant when the Applicant was not in fact the PI for this grant.
The Applicant submitted that the Respondent determined that he was not in fact the PI at the relevant times but did not make any determination as to when the Applicant in fact ceased to be the PI. The Applicant submitted that the facts regarding this can be summarized as follows:
“i. On 10 November 2021, Elizabeth Bird, College Manager of the then Asia Pacific Business and Law College wrote an email stating the Applicant had received $40,137.60 (Account number:0450-6019; Account name: 2021 CSFP – Indra Abeysekera).
ii. On 18 March 2022, the Applicant offered the grant to Dr Shawgat Kutubi, a team member of the CSFP project, to become principal investigator (PI). In that email, the Applicant wrote to Shawgat: “If this is acceptable to you, I can then approach David to pursue a way to transfer the grant to you .” Shawgat replied as follows: Dear Indra, Thanks for your email. I appreciate your offer and it is acceptable to me. On the same date, the Applicant wrote to David: Dear David, Shawgat has accepted my invitation, and I have decided to hand over the COVID grant to Shawgat if possible. Please explore the possibility. Thanks.
iii. On 18 March 2022, David Low wrote an email to Shawgat and the Applicant: Many thanks, Indra and Shawgat. I will approach Steve Rodgers, and we will also need to have a new lead with a Q1 track record. I will speak to Steve Ro gers Monday – so please leave it to me to organise. All the best, and have a great weekend, David.”
iv. The Applicant did ‘leave it with’ Professor Low, who did not ever come back to the Applicant, in writing or otherwise, to advise of any change to his PI status on the CSFP grant.
On 28 September 2022, Min Chu from the CDU’s Finance Office confirmed via email to the Applicant, that CSFP grant funds were available for the Applicant to use (as PI).
On 29 September 2022, the Applicant also contacted Rifka Sibarani and Hasitha Mendis at the research office to confirm this position around the CSFP grant funds. On 29 September 2022, Hassie Mendis replied in an email, again confirming the CSFP grant funds were in and linked to the Applicant’s name on the CSFP project.
v. On 29 September 2022, Steven Greenland replied to the email chain stating: (I was thought David was now the PI for Indra’s CSFP project, so Indra please follow up for clarification/discussion with David –cc. However this email was not copied to David Low.
vi. On 30 September 2022, Professor Greenland then forwarded the chain of emails to Professor Low: “Hi David You were meant to be ccd in, since this fund use query from Indra also relates to the CSFP project that I thought you’d taken on as PI. Cheers Steve.”
vii. It would have been clear to Professor Low from the content Applicant’s emails in the above chain in September 2022, that the Applicant understood the CSFP grant funds were available for him to use for research.
viii. Professor Low did not contact the Applicant about this. The Applicant did not contact Professor Low about this. The Applicant considered it was Professor Low’s role (as his boss) to follow up re this, and that he would have done so if it was necessary.
ix. On 22 June 2023, the Applicant was emailed by CDU, in an email with subject line “Covid Supplementary Fund Program”, requesting a progress report on the CSFP grant. The excel attachment attached to this email had an annotation in the row next to the Applicant’s name and the CSFP grant detail, indicating that the funding was ‘given’ to a Professor Elizabeth Spencer.. The Applicant only noticed this discrepancy later when he was asked to respond to allegations.
x. On 26 June 2023, Dr Maneka Jayasinghe, Head of the Discipline of Business and Accounting, wrote as the Applicant’s supervisor to inquire about CSFP grants and whether they belong to the Applicant. Michael Connell of the University Finance Department confirmed that the funds are under the Applicant’s name.
xi. Between 26 and 28 June 2023, the Head of Business and Accounting at CDU corresponded with the Applicant with specific reference to the grant being under the Applicant’s name.
xii. On 15 September 2023, The discipline head of CDU (business and accounting) emailed parties (including the Applicant) to suggest using the remaining CSFP grant funds as research leave, as instructed by the Pro Vice- Chancellor of the Faculty of Arts and Society, Prof Ruth Wallace. The Applicant did not do this as he considered that this was a breach of the grant.”
The Applicant submitted that there is no evidence that the Respondent told him that he had ceased to be PI at any point, or who the new PI was. The Applicant submitted that this issue could have been avoided if the Respondent had properly communicated, in writing, any apparent decision for the change of PI. The Applicant submitted that this much was made clear in the Preliminary Investigation.
The Applicant submitted that, given this lack of clarity caused by the Respondent, it is clear that the Respondent cannot then properly or fairly use this as a basis for disciplinary action, much less a termination, against him. The Applicant submitted that this position is consistent with the views expressed in the conclusion of the Preliminary Investigation.
Further, the Applicant submitted that there are errors in the Respondent’s conclusions regarding this allegation. For example:
“…The termination letter states “you indicated you were of the opinion and belief that the PI status was handed to Dr Kutubi, not Professor Low”. This is not an accurate summary of the interview of the Applicant as shown in the transcript in [evidence document 10, Attachment 11]. The transcript makes it clear that the Applicant “offered” the PI status to “Shawgat” but he couldn’t or otherwise didn’t become the PI.”
As to Allegation 2, the Applicant submitted that this allegation relates to:
“• Manuscript Submission fee to European Financial Management Journal ($1,009.46)
· Partial Least Squares book from Fishpond.com.au ($79.65)
· Pre-order advanced issue in partial Least Squares from Booktopia.com.au. ($90.74)
· Purchase of Nigerian stock exchange ($184.69)
· Public Library of Science, Open Access and Article Processing charge ($2,796.28)”
The Applicant submitted that the Respondent found he had acted dishonestly and deliberately misused University funds, and that this constituted serious misconduct. However, the Applicant submitted that this was not a valid reason for dismissal because:
“• The expenditure was relevant to the grant;
· (in the alternative):
1. The Applicant did not act dishonestly or otherwise deliberately misuse grant funds;
2. If there was any technical lack of compliance with the CSFP grant terms by the Applicant in submitting these reimbursement requests, it was:
a. Caused or contributed to by the Applicant’s lack of
experience in a PI role; and / or
b. Caused or contributed to by the Applicant’s belief that the scope of the CSFP project had been expanded to include those items he claimed; and / or
c. Caused or contributed to by the Respondent’s failure to
conduct any or sufficient research integrity training of its researchers (an issue identified in the Preliminary Investigation findings…); and/or
d. Caused or contributed to by the failures in the Respondent’s grant administration processes (an issue identified in the Preliminary Investigation findings…); and/or
e. Caused or contributed to by the failures in the Respondent’s financial approvals processes, in circumstances where the Applicant had duly submitted each of the 3 Reimbursement claims, with evidence, and the Respondent had approved and paid them before later changing its position (the former issue identified in the Preliminary Investigation findings…).
3. The Applicant offered to repay the amounts from his own funds prior to the decision to dismiss him.
4. The conduct was not serious misconduct justifying summary dismissal”.
The Applicant submitted that the reimbursement claims were for items relevant to the grant. The Applicant submitted that the CSFP project guidelines state that:
“The PI is responsible and accountable for project success, which is determined by timely Q1 outputs in appropriate fields of research (FoR). The PI is, therefore, in charge of the project and decision-making relating to the research team composition, the research process, associated timelines and project outputs. Where appropriate, the PI may designate PI responsibilities to team members but maintain overall project ownership.”
The Applicant submitted that, given the lack of communication from the Respondent as to any change of the PI status, and the various communications from the Respondent that positively confirmed the Applicant was PI at the relevant times, the Applicant reasonably believed he was the PI during the relevant period.
The Applicant submitted that, as PI, he focused on generating timely Q1 outputs in the appropriate Fields Of Research (FOR). The Applicant submitted that the FOR noted in the original CSFP grant application is ‘3501: Accounting, Auditing, and Accountability’. The Applicant submitted that relevant expenditure was related to this focus, more specifically:
“• Manuscript Submission fee to European Financial Management Journal ($1,009.46)
1. The CSFP grant application stated, under the Project Objectives section of the application's first paragraph said: “This research will examine the COVID-19impact on cashflow and financial activities of businesses located in Northern Territory (NT) and Victoria. The two jurisdictions may have adopted different strategies for survival during the economic downturn. Research on the impact of economic downturn on indigenous people is sparse, however, there is a need to understand the implication as indigenous communities engage in business with a different motive and appreciate indigenous cultural values of economic survival.”
2. The journal manuscript directly meets the project objectives. The paper entitled "Impact of Gender and Revenue Diversity in Charities for Sustainable Development and First Nations People’s Cultural Capital.“ The reviewers' comments on the manuscript and the manuscript abstract make it evident that the manuscript has investigated the Northern Territory of Australia.
3. The Journal submission details show the manuscript was credited to CDU. The reviewer's comments received from the journal show that the study investigated the Northern Territory Charity organisation's contributions to First Nations People’s cultural development.
· Partial Least Squares book from Fishpond.com.au ($79.65) and Pre -order advanced issue in partial Least Squares from Booktopia.com.au. ($90.74)
1. These two books provided research methodology to test the conceptual paper that the Applicant proposed model in the manuscript titled “Abeysekera, I. 2024, Integrating First Nations peoples’ cultural capital in sustainable development. Sustainable Development, Vol. 32, No. 1, pp. 43-56. The Applicant considered that the Partial Least Square technique was appropriate for understanding First Nations peoples' cultural capital. The Applicant purchased the first book ($79.65) on 22 June 2023, and he pre-ordered an additional book that shows the advanced application of the same technique on 6 September 2023 ($90.74). The project period was to end on 31 December 2023. [all in affidavit]
3. The Applicant viewed these research grant projects as having a longer horizon for research contribution in terms of output, where research concepts begin when CSFP grant funds are vested, and its fruition research outputs as Scimago Journal Ranking System Q1 publication can take place after that defined period.
· Purchase of Nigerian stock exchange ($184.69)
1. The purpose of this expenditure was to help a CDU student placement project. Full details of this were provided to CDU...
2. Professor Ruth Wallace, the Pro Vice Chancellor of the Faculty of Arts and Society, approved the expenditure. (Document 12, Allegation 2 Refutation). Professor Wallace was an application approval Assessment Commitment member for CSFP grants.
3. The expenditure was ultimately approved by CDU for reimbursement.
· Public Library of Science, Open Access and Article Processing charge ($2,796.28)
1. This journal manuscript publication falls under the Scimago Journal ranking system Q1 output. It met the output expectations of CSFP grant funds. It contributed to Field of Research code 3501: Accounting, Auditing and Accountability.
2. The research publication increased CDU's image and reputation. This is reiterated by evidence that CDU media promoted this article to the broader public, and other media outlets also published it. The CDU media article identified the student as a PhD applicant.
3. The research project conducted by the student was from a bachelor of honours in accounting course, and she intended to pursue the PhD program (Document 12, Allegation 2 Refutation). The CSFP grant guideline seeks to prioritise such students whose impact was adversely affected by COVID-19.
4. The journal article is credited to the CDU with the student name as the first author and the Applicant’s name as the second author...”
The Applicant submitted that he did not act dishonestly or otherwise deliberately misuse the funds. The Applicant submitted that the expenditure was through the Respondent’s usual approval process. The Applicant submitted that on 14 June 2023, the incurred expenditure was submitted for reimbursement approval to the Head of the Discipline of Business and Accounting, to whom the Applicant directly reported. The Applicant submitted that the expenditure was ultimately approved by the Respondent.
The Applicant submitted that he had been upfront in relation to all of the expenditure. In particular, regarding the Nigerian stock exchange matter, the Applicant submitted that the reimbursement request details clearly show that it was to assist a student with their research. The Applicant submitted that this was approved by the Respondent. The Applicant submitted that any ‘beneficiaries’ of this expenditure were the University and the relevant student, not the Applicant himself.
Further, the Applicant submitted that he had offered to repay all amounts specified in Allegation 2, prior to his dismissal. However, the Applicant submitted that the Respondent did not respond to this offer. The Applicant submitted that this matter is relevant because, if it is determined that there was a misuse of the funding, the Applicant’s offer to repay all amounts means that this misuse of funding would be fully remedied from a solely financial point of view. The Applicant submitted that it follows that the termination would only be justified if the Respondent could prove serious dishonesty on the part of the Applicant.
Conduct was not serious misconduct justifying summary dismissal
The Applicant submitted that where serious misconduct is alleged, the test for a valid reason for dismissal does not change. The test remains whether the reason was ‘sound, defensible or well founded’.[1]
The Applicant submitted that where an employee has been dismissed without notice for serious misconduct, the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.[2]
The Applicant submitted that where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw may be relevant:
“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”.[3]
The Applicant acknowledged that a substantial and willful breach of a policy will often, if not usually, constitute a valid reason for dismissal. However, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Applicant submitted that in each case all of the circumstances must be taken into account.[4]
The Applicant submitted that the alleged conduct, if it was properly substantiated, which the Applicant says it was not, and also viewed in the worst light, was not a valid reason for dismissal for serious misconduct. The Applicant submitted this is primarily so, because there is no evidence of dishonesty. The Applicant submitted that he explained why he believed the reimbursement claims were relevant to the CSFP grant. The Applicant submitted that the Respondent did not accept this, however, that it does not follow that the Applicant was therefore dishonest. The Applicant submitted that this is particularly important given that the Respondent reviewed and approved all 3 reimbursement claims as part of its own processes.
The Applicant submitted that the Respondent’s decision appears to rest in part on its subjective view that the employee ‘should have known’ that he was not the PI at the time. However, the Applicant submitted that there was no written, or unwritten, direction from the Respondent confirming this at the time or prior. The Applicant submitted that it cannot be said that he failed to comply with any lawful or reasonable direction.
The Applicant submitted that the Respondent faces a further difficulty in that the Applicant sought approval for all of the relevant expenditure in accordance with the Respondent’s processes. The Applicant submitted that this is relevant because:
“• It clearly reduces any culpability of the Applicant;
· It shows that the Applicant never sought to hide the expenditure or mislead the CDU;
· It shows that the Applicant has been treated differently to others who were involved in this matter (such as those who actually approved the expenditure)…”
The Applicant submitted that this matter is analogous in some respects to McKerrow v Sarina Leagues Club incorporated T/A Sarina Leagues Club[2012] FWA 1251, where an employee was dismissed for misappropriation of club funds and fraud. In that decision, it was found that the employee was guilty of an error of judgment in paying an amount to another organization, however it was done for a purpose consistent with the objects of the employer and the employee held a reasonable belief that the amount would be repaid. Therefore, there was found to be no valid reason for dismissal. The Applicant submitted that in the present case, he held a reasonable belief that he was permitted to lodge expenditure for the grant. The Applicant submitted that he also had, and still has, a reasonable belief that the expenditure was for a permitted use. Further, he again noted that he has indicated his willingness to repay all of the approved expenditure if necessary.
As to Allegation 3, the Applicant submitted that this allegation was not a valid reason for dismissal, because:
“• The conclusion of CDU was not reasonable based on the evidence available; and
· (in the alternative) the conduct was not dishonest and did not justify summary dismissal”.
The Applicant submitted that he did not provide contradictory evidence as alleged in the termination letter. The Applicant submitted that in his 28 and 29 September 2023 responses, he explained whether or not he had used CSFP grant funds to pay for the open access charges for journal publications. The Applicant submitted that all of those journal publications listed in the report were credited to the Respondent as the author-affiliated institutional name.
The Applicant submitted that he genuinely believed the scope of the CSFP grant project was expanded. The Applicant submitted that this is evidenced by the email he sent to the Respondent’s research office on 28 September 2022. The Applicant submitted that he had to communicate with someone at the Respondent’s research office and not any specific person. The Applicant submitted that email was shared with Rifka Sibarani and Hasitha Mendis, staff members at the research office on 28 September 2022, to confirm it. In that email, the Applicant inquired about obtaining reimbursement for a journal article (Framework for sustainability reporting Sustainability Accounting, management and Policy journal, vol 13 No 6, p 1386-1409) open access fee that exceeded the scope of the original CSFP grant objectives. The Applicant submitted that Min Chu from the University’s Finance Office confirmed that CSFP grant funds were available for the Applicant to use.
The Applicant submitted that the publications listed on the progress report were not misleading. The Applicant submitted it was reported by him with the intention of showing publications produced from 2021 to the reporting date, as, in his mind, the research time he allocated was attributable to the CSFP grant funds period.
The Applicant submitted that his conduct in this regard was not dishonest and did not justify summary dismissal. The Applicant submitted that there is no evidence to suggest he sought to act or did act dishonestly. The Applicant submitted that, at worst, his conduct could be seen as a ‘mistake’, and a ‘mistake’ that was not serious enough to justify summary dismissal.
Further, the Applicant submitted that it is clear on the documentary evidence alone that any mistake by him was contributed to by the Respondent’s messaging around administrating the CSFP grant.
As to Allegation 4, the Applicant submitted that this was not a valid reason for dismissal because it is inconsistent with the factual findings that the Applicant was not the PI for the project at the relevant time.
The Applicant submitted that it is not open to the Respondent to find both that:
“• The Applicant was not the PI during the relevant period for this project and thus erred in submitting funding expenditure as PI for this project (ie Allegation 1); and
· The Applicant was the PI during the relevant period and thus, as PI should have obtained ethics approval for the research under the project (ie Allegation 4).”
The Applicant submitted that in his responses of 8 and 22 April 2024, he had explained that, due to the type of research he did, no ethics approval was required. The Applicant submitted that in its response of 30 April 2024, the Respondent admitted that that was correct, that ethics approval was not required for what the Applicant did, and what he claimed by way of reimbursement.
The Applicant submitted that, as set out in the Respondent’s preliminary investigation findings:
“• there was a failure by CDU to communicate with the Applicant regarding the Applicant’s removal as PI on the grant; and
· these failures on the part of CDU resulted in ambiguity, including specifically for the Applicant in terms of managing grants”.
The Applicant submitted that in these circumstances, it was plainly unfair to take disciplinary action against the Applicant for a failure as PI to obtain ethics approval for this research.
The Applicant submitted that in any event, the Respondent has indicated that Professor Low obtained ethics approval for the project once he was named PI, therefore, the Respondent has not suffered any loss as a result of the Allegation 4.
Unfair process
The Applicant submitted that the process used to dismiss him was unfair for a number of reasons.
In summary, the Applicant submitted that:
· The Respondent failed to give him an opportunity to review and respond to evidence relied on by the Respondent in making its decision. The Applicant submitted that he had requested copies of statements relied on by the Respondent, however, he did not receive any response to this request;
· The matter had already been investigated by the Respondent previously, with no disciplinary action taken against the Applicant;
· The finding of serious misconduct in Allegation 2 relied on a conclusion in that he had misused research funds for personal gain/benefit, which was not based on any evidence. The Applicant submitted that he had sought evidence to support any conclusion that his conduct affected ‘the reputation, viability or profitability of the University’, but did not receive any substantive response;
· The Respondent’s investigation finding that he did transfer the PI and yet was responsible for ethics approval because he was PI “is obviously internally inconsistent”;
· Allegation 4 was stated to be ‘partially substantiated’ in the Show Cause Letter, but was found to be ‘substantiated’ in the Termination Letter. The Applicant submitted that if there was additional information available to the decision maker in “making this change”, he was not given an opportunity to comment on it;
· The Applicant was treated differently to others in similar circumstances. The Applicant provided two examples in this regard:
“Firstly, as set out above, the Applicant submitted all of the relevant expenditure [related to Allegation 2] to CDU for approval through the usual processes. This expenditure was approved by relevant persons in CDU. If it is determined that this expenditure was wrongfully submitted by the Applicant, it follows that it was wrongfully approved by relevant persons at CDU. Despite this, the Applicant is not aware of any disciplinary action being taken against any other person in relation to this matter.
Secondly, based on documents in evidence, it would appear that CSFP grant funds may have been used for “research leave” by other CDU employees despite being clearly outside of the funding guidelines. Despite this, the Applicant is not aware of any other employee being disciplined by CDU for misuse of research funds in this way for this grant.”
· The ‘decision’ was made before the investigation was concluded, and the ‘show cause’ process was therefore not genuine;
· The Applicant was subject to ‘bullying’ and threats by the Respondent throughout the investigation process; and
· “Objectively [there was] no basis for conclusion of serious misconduct”, noting that the legal threshold for serious misconduct is “very high”.
Compensation
As to the criteria set out in s.392 of the FW Act in relation to calculating quantum of compensation, the Applicant relevantly submitted as follows:
“a. the effect of the order on the viability of the employer's enterprise; and
i. In this case, given the size of CDU, this cannot be a negative factor.
b. the length of the person's service with the employer; and
i. In this case, the employee was employed for approximately 6 .6 years
c. the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
i. In this case, the employee would have received his annual salary of
$185,441 plus 17% Superannuation of $31,524.97 (total remuneration of
$216,965.97) had he not been dismissed.
d. the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
i. The Applicant has taken active steps to mitigate his loss and has obtained a position as a casual lecturer and tutor at the Canterbury Institute of Management from 10 June 2024. Unfortunately as this is a casual position, the overall payments received to 4 August 2024 was $5,558 pre tax (as compared to what the Applicant would have earned with the Respondent from 21 May 2024 summary termination date to Fair Work Commission hearing date of approximately 18 weeks is $75,103.61 (18 weeks * ($216,965.97/52 weeks)) (Document 33).
e. the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
i. As above
f. the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
i. As above the Applicant may continue to get casual work but this is uncertain
and is on lower conditions (based on 6 weeks alone it is the equivalent of
$22,232 per annum).
ii.
g. any other matter that the FWC considers relevant
i. The Applicant, having been employed for 6.6 years was approaching 7 years service (after which liability for Long Service Leave applies to CDU employees (see clause 47.1 of the EBA). The rate is 9.1 calendar days per annum per year of service. The Applicant would have completed that 7 years of continuing service by 04 October 2024.
ii. The applicant had planned on continuing to work at the CDU for at least
another 5 years (affidavit).
iii. If the Applicant had remained at CDU he would have been guaranteed pay increases under the Enterprise Agreement. (Document 33].
h. Misconduct
i. In this case, we submit that there has been no misconduct. However, in the alternative, and such misconduct must be seen to be at the lower end of the scale. Accordingly, there should be no negative adjustment under this heading.”
The Applicant acknowledged the compensation cap as contained in the FW Act.
Reinstatement
Further to the above submissions, the Applicant submitted that he is seeking:
“a. Reinstatement to the same or a similar position (in either Darwin or Sydney) on the same conditions;
b. Orders relating to continuity of employment; and
c. lost wages/damages.”
While the Applicant acknowledged that the Respondent would claim that reinstatement is impractical due to a loss of trust and confidence, the Applicant made submissions in support of his reinstatement which relevantly included the following:
· The Respondent is a very large employer with numerous campuses. The Applicant submitted that while it is possible that some of the Respondent’s employees may feel uncomfortable working with him going forward, this does not amount to a loss of trust and confidence;
· Even if it is determined that there is evidence of misconduct, this does not mean that reinstatement is inappropriate;[5]
RRS funds can be used for any research related activity, including research related hardware, research travel and conferences. I thought these carried over to next year but will check with Steve Rogers.
Hope that helps
Steve
PS good luck Hassie in your new role
Professor Steven Greenland
Associate Dean Research”
(My emphasis)
Clearly, Professor Low was not copied into this email, however, Professor Greenland corrected this error the following day:
“Hi David
You were meant to be cc’d in, since this fund use query from Indra also relates to the CSFP project that I thought you’d taken on as PI.
Cheers
Steve”
I have taken these emails into account.
I find the Applicant’s response, that he did not reach out to Professor Low as requested because Professor Low was not copied into the email, to be bizarre. It is acknowledged that the Applicant is a highly intelligent man, however, there are inconsistencies in relation to his evidence. The Applicant has asked the Commission to believe that he was able to substantially change the scope of this projects via a telephone conversation with an Executive Assistant, yet he would not follow a written direction because the person he was directed to contact was not included in the email correspondence. I have taken this into account.
I would assume that the phrase “please follow up for clarification/discussion with David – cc’d” means that Professor Low had been copied into this email, yet that did not occur. As identified above, Professor Greenland sent an email to Professor Low the following day, acknowledging that he was supposed to be copied into the email querying whether the Applicant was the PI for the Project. Unbelievably, Professor Low did not reach out to the Applicant to clarify that he was in fact now the PI for the CSFP Project. Further, if Professor Low was waiting for the Applicant to contact him in relation to this project, it beggars belief that Professor Low did not, after an appropriate period of time had elapsed, inform the Applicant of his standing. It should have been obvious to Professor Low, at this point in time, that the Applicant still believed that he was the PI for the Project. I have taken these issues into account.
I note that Rifka Sibarani and Min Chu were copied into the email from Professor Greenland which questioned the Applicant’s PI status. On the basis that the Respondent should have operated with a modicum of appropriate governance, the finance department should have made enquiries as to the capacity, or the PI status, of the Applicant before it reimbursed his expenses. If he was not the PI, then his claim would not have been paid and he would not have been dismissed. I have taken this into account.
I am satisfied that the Applicant did not utilise the grant money for his own personal benefit. The expenditure in relation to China and Nigeria was to assist post-graduate students. The Applicant claims that the book he purchased was to assist in the writing of research projects, including this project. I have taken this into account.
It is not in dispute that the Applicant was asked to submit a progress report on the Project in June 2023 or that his expenditure was approved by relevant managers throughout the period:
“Monday, June 26, 2023…
…
Dear FAS Ops team
Happy to approve this claim. The cost to be covered from Indra’s CSFP grant.
@Michael Connell, as Indra’s supervisor who approves the budgets, can I please have a budget balance update of Indra’s CSFP grants 0450.6019.318.01 cost code (grant category 0450.6019.2021 CSFP).
Thanks
ManekaDr Maneka Jayasinghe
Head - Business and Accounting
Senior Lecturer in Economics”
…
“Hi Indra,
As discussed, please find attached a copy of a transaction listing and funds available for the CSFP Grant 0405.6019.
Please note that since the restructure, the Area cost code has since been remapped from 0450 to 0405.
Thanks,
Michael”
I have taken these emails into account.
Further, whilst under investigation, the Applicant received a glowing commendation from the Vice Chancellor of the Respondent and Professor Rogers, which said:-
“Dear Indra,
Congratulations on being recognised in Stanford University's prestigious list of the World's Top 2% Scientists in 2023. This remarkable achievement is a testament to your outstanding contributions to the field of research.
At Charles Darwin University, we take immense pride in the accomplishments of our researchers, and your inclusion in this list demonstrates the exceptional quality of research being conducted by the people who make up our institution. This year, you are among a group of twenty-eight outstanding researchers across Charles Darwin University and Menzies School of Health Research to be included. This is an exceptional result for a small, remote university. We remain deeply committed to fostering world-class research in areas critical to our region and supporting global research leaders like yourself. Your dedication and expertise exemplify our values of courage, innovation and leadership and we are passionate about the real-world impact your research makes on the resilience and vitality of our communities, locally, nationally and internationally.
It is an immense privilege to have you as part of our university, and we are excited to continue supporting your endeavours as you continue to make invaluable contributions to your field.
Once again, congratulations on this exceptional achievement.
Regards
Scott and Steve
Professor Scott Bowman AO he/him
Vice-Chancellor and President”
I have taken these emails into account.
In response to the proposition that the expenditure was outside the scope of the Project, the Applicant testified:-
“I think using Australian Government funds intended to assess the impact of COVID-19 of Australian jurisdictions should have been used to assess Australian data. That's my first proposition. Do you have an answer to that?‑‑‑Yes, I do have answer in the project proposal. It says that you should – that these funds could be directed towards the university strategy priorities and admission.
Sure. Within the scope?‑‑‑Within – so – one of the visionary items of the university is to become the most connected – Australia's most connected university. And the university encourages a global footprint.”[16]
I have taken this into account.
In response to a question from me, Professor Rogers agreed that the Applicant should have been advised that he was no longer the PI for the Project:-
“Would you accept that there was a breakdown in communication?‑‑‑In terms of my understanding, it's actually in the exhibits where Professor Low wrote to me and informed me that they wished to change the project leader. I gave my permission for that project leader to be changed. As far as I was concerned that change had taken place.
Would you have expected Professor Low to then advise the members of the team of that situation?‑‑‑Well, I would have expected to, yes. It's certainly not my role to do that.”[17]
I have taken this into account.
In response to a question from me, Professor Low testified:-
“I'm just wondering how Mr Abeysekera could have been able to claim against the project when – it's suggested that he resigned in or around March 2022 yet made claims in August/September 2023? My understanding is they didn't update the records to show that he was no longer the PI in the financial area of the university.
…
It wasn't the fault of the applicant in this matter?‑‑‑No.”[18]
I have taken this into account.
The Applicant initially used his own money to purchase the goods for which he sought reimbursement. The amount expended was not significant, nor was the expenditure inappropriate for a university. The expenditure was for the attainment of academic growth and expertise and not for an inappropriate purpose such as entertainment, food, alcohol or personal expenses. This expenditure would have been claimable by the Applicant on his annual tax return if the Respondent had rejected his reimbursement claim. I have taken this into account.
The unchallenged evidence is that the Applicant was a leading researcher in his specialised field. The Applicant displayed the attributes of a specialised academic by being very stubborn and perhaps a little arrogant whilst being cross-examined. However, such behaviour is not uncommon in this sector. I have taken this into account.
Conclusion
I am satisfied and find that the Applicant was not the PI for the Covid Supplementary Funding Pool Project when he submitted his reimbursement claim.
I am also satisfied and find that the Respondent made a mistake by not informing the Applicant, either in writing or verbally, that he was no longer the PI for the Covid Supplementary Funding Pool Project.
I am satisfied and find that the Respondent made a mistake in not correcting its records in relation to who was the PI for some 18 months.
I am satisfied and find that the Respondent made a mistake in paying the Applicant before checking whether he was actually the PI after Professor Greenland’s email.
I am satisfied and find that the Respondent made a mistake by informing the Applicant that he could use the money in the Covid Supplementary Funding Pool Project in June 2023.
I am satisfied that the decision of the Full Court in Cornwall is of relevance in this matter. The Applicant would not have been dismissed if his reimbursement claim had been rejected. The Applicant’s claim was approved because of a compilation of errors and mistakes identified above. Therefore, I find that the Respondent must take responsibility for the error in paying the Applicant.
Further, taking into account the decision in Byrne, the personal consequences for the Applicant in being dismissed are disproportionate to the gravity of the Applicant’s conduct. I am satisfied and find that the termination of the Applicant would destroy his reputation on the global stage. Such an outcome is harsh when the Respondent’s actions, or in fact their lack of appropriate governance, resulted in the Applicant being reimbursed.
The Applicant was entitled to a ‘fair go’. I am satisfied and find that the Applicant did not receive this statutory entitlement.
For the above reasons, I find that the Applicant’s termination was harsh.
Whilst I have previously found that the Respondent had a valid reason to terminate the Applicant, I find that the Applicant was unfairly dismissed.
Remedy
Having found that the Applicant was unfairly dismissed, I now turn to the issue of an appropriate remedy.
The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:
“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.”
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
The Applicant seeks reinstatement and compensation for lost wages.
I am not satisfied that the necessary trust and confidence can be re-established to allow for the Applicant to be reinstated. This scenario is not one where re-employment might be a little embarrassing for the Respondent as per the obiter in Nguyen v Vietnamese Community in Australia.[19]
Unsurprisingly, the Respondent has lost trust in the Applicant due to his behaviour. It is not appropriate to change the scope of a Commonwealth Government funded project by way of a telephone call. Such a significant decision needs a paper trail. Further, the Applicant’s arrogance and the contempt he showed for his superior in not contacting Professor Low when requested, behaviour which the Applicant still tries to justify, identifies an employee who does not want to work as part of that team.
I am satisfied and find that reinstatement is not an appropriate remedy in this circumstance.
Compensation
I now turn to the factors to be considered in relation to any award of compensation.
Section 392(2)(a) – effect of order on employer’s viability
I am satisfied that my order will not affect the viability of the Respondent. I have taken this into account.
Section 392(2)(b) – length of service
I have taken into account that the Applicant had worked for the Respondent for approximately 6 and a half years.
Section 392(2)(c) – remuneration received if not dismissed
Based on the comments of the Vice Chancellor (see above at paragraph [147]), I am satisfied and find that the Applicant would have continued to be employed until the end of 2024. The Applicant would have continued to receive his annual salary of $3,566.17 per week. From the date of his dismissal on 21 May 2024 until the end of the year, that would be 32 weeks x $3,566.17 = $114,117.44. I have taken this into account.
Section 392(2)(d) – effort to mitigate loss
The Applicant has been successful in gaining a casual lecturing role at Canterbury Institute of Management from 10 June 2024. Making an estimation from the information provided by the Applicant, he has earned around $1,000 per week in this new role. From 10 June 2024, this is about $22,000 in casual earnings (22 weeks x $1,000). I also note that the Respondent is the only University in Darwin, so lecturing opportunities with the Applicant’s skillset are very limited. I have taken this into account.
Section 392(2)(e) – amount of remuneration received by the Applicant
As outlined above, the Applicant earns around $1,000 a week for this casual role. I have taken this into account.
Section 392(2)(f) – amount likely to be earned
I have taken into account the information identified above.
Section 392(2)(g) – any other matter
In calculating the appropriate level of compensation, I am cognisant of the method identified in Sprigg v Paul’s Licensed Festival Supermarket,[20] which involves the following steps:-
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
In Hanson Construction Materials v Pericich,[21] a Full Bench of the Commission held that:
“[39]...Sprigg is a useful servant, but is not to be applied in a rigid determinative manner. In deciding the amount of a compensation order the Act directs that the Commission ‘must take into account all of the circumstances of the case’ including the particular matters set out at s.392(2)(a)to(g).”
I have taken this into account.
Applying the four steps of the Sprigg Formula, I have determined as follows.
I am satisfied that the Applicant would have been employed until the end of 2024.
I have deducted contingencies of 33.33%.
The ordered amount is to be taxed in accordance with Australian Law.
I note that the amount ordered is below the legislated compensation cap.
Conclusion
Based on the calculation above:-
$114,117.44
- $22,000
= $92,117.44
$92,117.44
x .6666
= $61,405.49
I order that the Respondent pay the Applicant $61,405.49 plus superannuation.
I so Order.
COMMISSIONER
[1] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]).
[2] Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at [55].
[3] Briginshaw v Briginshaw [1938] HCA 34] ibid., [(1938) 60 CLR 336] at pp. 362‒3.
[4] B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 (Lawler VP, Hamberger SDP, Cribb C, 28 August 2013) at [48].
[5] Regional Express Holdings Ltd T/A Rex Airlines v Richards[2010] FWAFB 8753.
[6] Balfours Bakery v Cooper[2011] FWAFB 8032.
[7] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
[8] [2010] FWA 831.
[9] Johnston v Woodpile Investments T/A Hog’s Breath Café - Mindarie[2012] FWA 2 (Williams C, 6 January 2012) at [58].
[10] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) at [45]; Sookanathan v Victoria Police[2019] FWC 8309 (Gregory C, 13 December 2019) at [136].
[11] (1995) 185 CLR 410.
[12] (1998) 84 IR 1.
[13] [2000] AIRC 1019.
[14] (1995) 62 IR 371.
[15] (1998) 84 FCR 483.
[16] Transcript at PN668-669.
[17] Transcript at PN916-917.
[18] Transcript at PN974, 977.
[19] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at [27]; citing Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15 (7 February 1997), [(1997) 72 IR 186, 191].
[20] (1998) 88 IR 21.
[21] [2018] FWCFB 5960.
Printed by authority of the Commonwealth Government Printer
<PR779548>
0
0
0