Jesse Sheng Jin v University of Newcastle
[2013] FWCFB 3369
•14 OCTOBER 2013
[2013] FWCFB 3369 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
University of Newcastle
(C2013/3468)
University of Newcastle
v
Jesse Sheng Jin
(C2013/3620, C2013/3708)
VICE PRESIDENT WATSON | SYDNEY, 14 OCTOBER 2013 |
Appeals against decision [2013] FWC 418 of Deputy President Smith at Melbourne on 18 January 2013, supplementary decision [2013] FWC 1049 of Deputy President Smith at Melbourne on 15 February 2013 and order PR534506 of Deputy President Smith at Sydney on 7 March 2013 - application for an unfair dismissal remedy - appeal against finding dismissal was harsh - appeal against finding that reinstatement not appropriate remedy - discretionary decision - whether significant error of fact - permission to appeal - Fair Work Act 2009 - ss. 400, 604.
Decision of Vice President Watson and Deputy President Sams
Introduction
[1] This decision concerns applications for permission to appeal by Dr Jin and the University of Newcastle (the University). The appeals arise from proceedings before Deputy President Smith in relation to an application by Dr Jin for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) and an application pursuant to s.739 of the Act to deal with a dispute under the University of Newcastle Academic Staff Enterprise Agreement 2010 (the Agreement). The Deputy President found that the termination of Dr Jin’s employment by the University was harsh, and that reinstatement was not appropriate in the circumstances. A consideration of alternative remedies is deferred pending the outcome of these appeals.
[2] Dr Jin’s application for permission to appeal challenges the Deputy President’s finding that reinstatement was not an appropriate remedy. 1 The University’s applications for permission to appeal challenge the finding of Deputy President Smith that the termination of Dr Jin’s employment was harsh2 and challenge an order of the Deputy President on 7 March 20133 to set aside directions issued in respect of material to be filed regarding remedy (the Procedural Appeal).
[3] The appeals were heard concurrently in Sydney on 27 and 28 May 2013. At the hearing Mr A Slevin, of counsel, appeared on behalf of Dr Jin and Mr R Warren, of counsel, appeared on behalf of the University.
Background and decisions under appeal
[4] The Deputy President set out the background in his decision of 18 January 2013 4 (the merits decision) as follows:
“[43] The matters over which the University decided to terminate the employment of Professor Jin related to his use of grant funds. Professor Jin is a respected researcher and was described by Professor Calford as the most successful person in his School for obtaining research grants. There was no issue that Professor Jin enhanced the reputation of the University with his research and attracted students to the University. Against this background, it is appropriate to recite some of the history of the process leading to the termination of Professor Jin’s employment. Parts of this history are mentioned in the earlier matter contained in this decision, but it is convenient to deal with those facts as they impact upon the termination of employment.
[44] The basic facts are these:
- On or about 6 September 2010, the Director of Human Resource Services met with Ms Anne Siegers - Associate Director Risk and Assurance for the University and asked her to conduct a preliminary investigation into the work practices of Professor Jin.
- On 28 October 2011 following a brief review of the documentation and approval from Dr Gould, Ms Siegers referred the matter for external investigation to an organisation known as the RISQ Group.
- On 19 November 2010 the RISQ Group wrote back to Ms Siegers with the following Executive Summary:
- The information contained in the files supplied to us by the UoN suggests, prima facie, the person of interest engaged in a pattern of misleading and deceptive conduct over the relevant period.
- The conduct included, but was not limited to, non-compliance with internal policy, entering legally binding agreements without UoN authority to do so, providing false and misleading information, mismanagement of research grants and grants funding including possible non-compliance with ARC funding arrangements, failure to notify the ARC of material changes to the status of the Linkage Projects, mismanaging his teaching commitments, and making claims not in compliance with policy.
- The information is based on a preliminary assessment of the information supplied to us by UoN and is indicative only. To ensure objectivity, and natural justice for the person of interest, further investigation is required to corroborate, or refute, these findings prior to any formal action.
- On 13 December 2010 the Vice-Chancellor wrote to the Independent Commission Against Corruption advising that preliminary information led him to the view that he had reporting obligations under the Independent Commission Against Corruption Act 1988 (NSW) in relation to Professor Jin.
- On 7 February 2011, Ms Siegers wrote to Professor Jin bringing to his notice transactions which the university considered not to be in compliance with legal obligations and policies, and without justification, may constitute corrupt or criminal conduct. Ms Siegers added that it may also constitute misconduct or serious misconduct.
- Professor Jin responded on 13 February 2011 with an explanation of the transactions.
- On 24 February 2011 Dr Gould suspended Professor Jin from his employment with the University without pay.
- On 11 April 2011 the Deputy Vice-Chancellor (Research) Professor Calford wrote to Professor Jin setting out the allegations in accordance with Clause 11.4 of the Agreement. Professor Calford required a written response to the allegations within 10 working days.
- On 19 April Lawyers acting for Professor Jin advised the University that they required certain documents and that the timeframe for a response was, in its view, “impossible to meet and unreasonable”. From that time, there was a considerable number of exchanges between the University and lawyers acting for Professor Jin together with conferences in the Commission.
- On 4 July 2011, Professor Jin was advised by Mr Ian Pike that Professor Calford had, in light of the denials by Professor Jin, (in accordance with Clause 11.8 of the Agreement) referred the matter to a Committee of Inquiry as provided for in Clause 49 of the Agreement.
- The Committee of Inquiry reported on 9 January 2012
- Calford gave consideration to the report and decided to terminate the employment of Professor Jin on 22 February 2012. This was conveyed to Mr Ian Pike who wrote to Professor Jin on the same day advising of the termination of his employment and attaching the decision of Professor Calford” (References omitted)
[5] The Deputy President went on to consider the findings of the Committee of Inquiry. 5 He then considered the factors in s.387 of the Act:
“[85] Just for completeness, and whilst it is stating the obvious, the University is not a small business. I now turn to each of the matters which the Commission 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);
[86] This has been a difficult matter to consider. I am satisfied that Professor Jin was aware that the University had concerns about the proper use of grant funds. However, Professor Jin, both during his employment and in the proceedings, did not believe that he was spending those funds in any way other than that approved by the Grant.
[87] The ARC can and should expect that its funds are spent for a proper purpose. Many of the items claimed by Professor Jin could not reasonably be seen as associated with research. I accept that this is not the view held by Professor Jin, but any assessment must be objectively based. The fact that the University has reimbursed the ARC is telling.
[88] The two reasons given; namely “travel and maintenance” and “academic independence” are not persuasive. However, when looked at contemporaneously there was little raised with Professor Jin about the nature of his expenditure. The Committee was also of the view that given his austerity, his actions did not represent a strong desire to benefit personally. Whilst this may go to remedy, I am not persuaded that the expenditures were appropriate.
[89] Given the matters before the Committee of Inquiry and the conclusions of Professor Calford I find that there was a valid reason.
(b) whether the person was notified of that reason;
[90] Professor Jin was notified of the reason.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[91] Professor Jin was given an opportunity to present all the material to the Committee of Inquiry; however, I am concerned that before taking the final decision Professor Calford did not provide Professor Jin the opportunity to put any matters to him directly.
(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;
[92] Given the terms of the Enterprise Agreement and the way in which the matter progressed, I cannot be satisfied that, in the result, the University unreasonably refused Professor Jin to have a support person. I make this decision on balance, as the University used a person not employed by the University, whilst at the same time denying Professor Jin the opportunity to use a person of his choice in the manner proposed by Professor Jin. In the end I am satisfied that Professor Jin was able to bring to the notice of the Committee all relevant material and to have his position understood. The University may have taken a technical approach to the operation of the Agreement which may not be successful in circumstances where a staff member is clearly on an unequal footing.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[93] For the purpose of considering this aspect of the matters which must be taken into account, I shall treat as performance, Professor Jin’s failure to perform properly as a Chief Investigator. Being a Chief Investigator carries with it substantial responsibility. As has been demonstrated in this case, the administrative action which followed from Professor Jin’s claims was routine and those responsible did not see themselves as second guessing the Chief Investigator. This presents some problems for the University. As the Committee observed, Professor Jin assumed that all was in accordance with the grant rules, because the considerable volume of material now presented to him in this investigation, largely lay dormant until it was collected through independent investigation. The Committee expressed some views about the “SpendVision” system.
(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
[94] This is a well resourced employer and nothing arises which would be in favour of the employer in the event that errors in process are evident.
(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
[95] There is no absence of a dedicated human resource management.
(h) any other matters that the FWC considers relevant.
[96] I will take into account the matters raised by the Committee which are said to be in mitigation and referred to earlier.” (References omitted)
[6] The Deputy President found that there was a valid reason for the dismissal. He also found that given the history of the matter and the mitigation factors raised by the Committee of Inquiry, the finding that Dr Jin’s conduct amounted to serious misconduct was harsh. He expressed those conclusions as follows:
“[106] I accept Professor Calford’s finding that the breaches are serious in nature but I cannot agree that the conduct of Professor Jin constituted serious misconduct. Serious misconduct has a quality about it which goes beyond basic grounds for bringing to an end an employment relationship and some guidance can be obtained from the Agreement. The provisions of the Agreement in large measure reflect that contained in the Fair Work Regulations 2009. With the possible exception of the trip to China I cannot conclude that Professor Jin engaged in wilful and deliberate behaviour contrary to the lawful and reasonable direction of the University. In relation to the trip to China, this was specifically rejected by Professor Calford but there is doubt about whether or not this was subsequently resolved.
[107] I find given the history of the matter, the factors in mitigation raised by the Committee of Inquiry (including the views expressed about SpendVision) and the impact upon an academic of a finding that she or he has been guilty of serious misconduct, that such a finding by Professor Calford was harsh.” (References omitted)
[7] As to remedy, the Deputy President considered the terms of the Agreement in the context of his conclusion that the conduct of Dr Jin was misconduct and not serious misconduct. He determined that whilst there were strong reasons as to why he would not order reinstatement it was necessary for him to hear further from Dr Jin and the University on the relevance or otherwise of the Agreement. 6
[8] Further proceedings resulted in the Deputy President finding that it was inappropriate to reinstate Dr Jin and directions were made for the parties to file material in relation to the question of what, if any, compensation should be awarded to Dr Jin. 7 The directions were vacated by order dated 7 March 2013.8
[9] The Deputy President’s reasoning on the question of reinstatement was as follows:
“[11] Professor Jin was rightly proud of his research, the beneficial impact upon funding arrangements for the University from the grants he received, as well as the number of PhD students he attracted. At the time of his recruitment he was the Chief Investigator for nine Australian Research Council grants.
[12] It appears to me that being a Chief Investigator was important to being a leading researcher and being recognised as such with peers and funding bodies. There is no doubt that the Chief Investigator has the intellectual carriage of the project and that there can be more than one Chief Investigator. In this connection, however, I accept the evidence of Professor Calford about the workability of any other approach. It follows, that if reinstatement was to be ordered, then consideration would have to be given to the key aspects of Professor Jin’s employment and to what position was he being reinstated. With reputation being so important, any order of reinstatement would have to encompass an availability for the role of Chief Investigator otherwise it would not be to the position he was employed immediately prior to his dismissal or to a comparable position.
[13] It would seem absurd to reinstate Professor Jin as the Chair of an area but in the knowledge that he could not take the lead role in research activities and be excluded from any financial decision. As I stated earlier, I accept the evidence of Professor Calford where he said it would be a bizarre situation. Reinstatement cannot be limited to just salary but it must comprehend the full scope of the position previously held. That is why in the alternative, reinstatement can occur on terms and conditions no less favourable. In my view, given the nature of beneficial legislation, this section of the Act should not be read narrowly.
[14] It is the tension between the Agreement and the facts as presented to me about the nature of the reinstatement which must be balanced in the exercise of discretion. These are peculiar circumstances. Taking all those matters into account I find that it would be inappropriate to reinstate Professor Jin to the position he was employed immediately before his dismissal and that there is no comparable position which comprehends his terms and conditions of employment.” (References omitted)
The University’s appeal against the finding that the termination was harsh
[10] The appeal by the University against the merits decision was lodged more than 21 days after the decision was handed down. The University submits that an extension of time should be granted for the following reasons:
● Dr Jin has appealed against the supplementary decision not to reinstate him prior to a decision as to remedy being made;
● If Dr Jin’s appeal is determined in his favour the University would be denied the opportunity to consider the effect of final orders in the context of the original decision and the finding that Dr Jin’s conduct did not amount to serious misconduct;
● The decisions handed down by the Deputy President have not dealt with all issues required to be dealt with to finalise Dr Jin’s application and final orders have not been made in the matter;
● The University considered it appropriate to wait until final orders were made before assessing whether or not it was appropriate to lodge an appeal against the Deputy President’s decisions and any consequent orders;
● The appeal by Dr Jin raises the issue of serious misconduct and harshness as grounds of appeal, until such time as Dr Jin’s notice of appeal was received by the University it did not know that such issues would be raised;
● It required time following receipt of the notice of appeal filed by Dr Jin to consider its position and seek advice.
[11] The University submits that the Deputy President erred in the following respects:
● in finding that the definition of serious misconduct under the Agreement was largely reflective of the definition of serious misconduct under the Fair Work Regulations 2009 (the Regulations), it submits that the Agreement definition differs to that in the Regulations;
● in finding the conduct was not serious misconduct as defined in the Agreement;
● in finding that the dismissal of Dr Jin was harsh.
[12] In respect of public interest considerations, the University submits that the definition of serious misconduct at clause 11.1.2 of the Agreement appears in a number of other universities’ enterprise agreements and the misinterpretation of the provision will have an adverse impact across the sector. It submits that the Agreement does not require behaviour to be wilful in order to be serious misconduct.
[13] The University’s appeal centres on the Deputy President’s finding that he could not conclude the conduct of Dr Jin to be wilful and deliberate in nature as noted at [106] of the merits decision set out above.
[14] The University submits that in applying a test of “wilful and deliberate” behaviour as a prerequisite for a finding of serious misconduct he has misinterpreted the words contained in the Agreement and the disjunction of the words “serious” or “wilful” as expressed in both the Agreement and the Regulations.
[15] The University submits that in concluding that the conduct of Dr Jin required proof of wilful and deliberate conduct the Deputy President failed to properly exercise his jurisdiction by misdirecting himself as to the definition of serious misconduct in the Agreement. It submits that the Deputy President fell into further error by finding that the conduct of Dr Jin did not fall within the definition of serious misconduct as defined in the Agreement.
[16] Counsel for Dr Jin opposes the granting of an extension of time and the granting of permission to appeal on the basis that there is no appealable error identified by the University.
[17] Counsel for Dr Jin submits that in determining an application for an unfair dismissal remedy, the test the Commission is required to apply is whether or not the termination was harsh, unjust or unreasonable taking into account the matters in s.387 of the Act. It is submitted that the Deputy President considered the factors in s.387 and came to the conclusion that the dismissal was harsh.
[18] Counsel for Dr Jin submits the University’s focus on the use of the expression “deliberate and wilful” at [106] of the decision construes the decision minutely and finely with an eye keenly attuned to a perception of error. It is submitted that the Deputy President concluded that the conduct of Dr Jin was not wilful and not deliberate and it was open to the Deputy President to make that finding. Counsel submits that, read as a whole, the Deputy President neither insists nor applies a test that conduct must be “wilful and deliberate” to be considered serious misconduct under the Agreement.
[19] Given the history of this matter and the availability of an appeal against the ultimate decision of the Deputy President we are prepared to extend the time for filing the University’s appeal.
[20] A conclusion that a dismissal is harsh is a discretionary decision. In this case it was based on an assessment of the seriousness of the conduct that was the reason for the dismissal. In order to reach that conclusion the Deputy President considered the evidence of inappropriate conduct. In the passage set out above he found that the misconduct constituted a valid reason for dismissal.
[21] This conclusion arose from a consideration of the eight allegations considered by the Committee of Inquiry set up by the University. The Committee found that most of the allegations were sustained. In some respects, Dr Jin’s explanations were accepted. In other respects the Committee was unable to reach a conclusion. The Deputy President considered arguments raised on behalf of Dr Jin that the expenditure items were reasonably associated with his research. The Deputy President’s conclusion was that the expenditures were not appropriate. However, he considered that the seriousness of the conduct was not such as to amount to serious misconduct warranting summary dismissal.
[22] The concept of serious misconduct has been considered on many occasions. In this case it was one of the factors that led to the finding that the termination of Dr Jin was harsh. The definition of serious misconduct in the Agreement is as follows:
“11.1.2 “Serious Misconduct” means:
(i) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member’s duties or to a staff member’s colleagues carrying out their duties;
(ii) serious dereliction of the duties required of the staff member’s office;
(iii) conviction by a court of an offence which constitutes a serious impediment of the kind referred to in (i) above.
11.1.3 Serious misconduct shall include:
(i) wilful or deliberate behaviour by a staff member that is inconsistent with the continuation of the contract of employment;
(ii) conduct that causes serious and imminent risk to the health or safety of a person;
(iii) the staff member, in the course of the staff member’s employment, engaging in:
(a) serious theft; or
(b) fraud; or
(c) assault.
(iv) the staff member being intoxicated at work such that, the staff member’s faculties are, by reason of the staff member being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the staff member is unfit to be entrusted with the staff member’s duties or with any duty that the staff member may be called upon to perform;
(v) serious and/or repeated bullying or harassment, including sexual harassment.”
[23] The Act defines serious misconduct by reference to a definition in the Regulations which in turn provides that the term has its ordinary meaning. Judge Lucev of the Federal Circuit Court has recently summarised this meaning as follows: 9
“97. To define “serious misconduct” by reference to its “ordinary meaning” as is done in reg.1.07(1) of Div.2 of Part 1-2 of Ch.1 of the FW Regulations is not of particular assistance in determining whether or not the conduct for which the employee has been terminated is serious misconduct disentitling an employee to the minimum period of notice prescribed under the NES. That is because, both historically and in more modern times, courts have been wary of defining the extent of “misconduct” which justifies dismissal, and where they have attempted the task have made it clear that the misconduct must be sufficiently “serious” as to warrant non-continuation of the contract between employer and employee. Thus, the “ordinary meaning” definition of “serious misconduct” adds little, if anything, to the content of the meaning of “serious misconduct”.
98. In Clouston & Co Limited v Corry it was observed that there “is no fixed rule of law defining the degree of misconduct which would justify dismissal”.
99. In Laws v London Chronicle (Indicator Newspapers) Ltd it was observed that:
... if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.
... one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.
100. In North v Television Corporation Ltd the Australian Industrial Court was called upon to consider the word “misconduct” as used in an industrial award covering journalists. In the joint judgment in North it was observed that:
It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.
This situation would arise if there were conduct inconsistent with the fulfillment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.
101. It was also observed in North by a single judge that although the conduct of the journalist concerned was “reprehensible” it fell short of misconduct justifying summary dismissal because it was an isolated incident which occurred “under [the] considerable strain” of preparing for a nightly news bulletin.
102. In Gera v Commonwealth Bank of Australia Ltd the employee’s Australian Workplace Agreement provided for termination without pay in lieu of notice for misconduct if the misconduct was serious. In that case it was observed that:
The use of the adjective “serious” imposes an additional requirement before the Bank can terminate employment without notice. Something more than mere misconduct is required.
103. In Gera the Court went on to find that there was no doubt that the sexual or indecent assault of a fellow employee was serious misconduct warranting summary termination without payment in lieu of notice, as it constituted a fundamental breach of an employee’s duty, particularly where the employee was a senior employee and mentor to the employee who had been assaulted.” (References omitted)
[24] The Committee of Enquiry report into Dr Jin’s conduct runs to some 172 pages. It draws no conclusions as to the assessment of Dr Jin’s conduct. Rather it sought to establish the facts in relation to the allegations made against Dr Jin. Professor Calford considered this report and issued a determination. His summary of that determination was as follows: 10
“Summary
Having considered the report prepared by the Committee of Inquiry, and the facts presented in relation to each allegation, I am satisfied that Professor Jin has breached a number of policies and obligations in respect of the nature of reimbursements claimed against the ARC grants for which he had direct responsibility as the first named Chief Investigator. Whilst I am not satisfied that there is fact to uphold Allegation 5.3; Allegation 6 or Allegation 8 as breaches of policy, I am satisfied that all other allegations as presented to the Committee of Inquiry (for the vast majority of transactions) can be found to be breaches of policy and therefore be upheld.
These breaches are of a serious nature when considered against the standards of conduct expected by an academic staff member. As noted by the Committee of Inquiry in the report, the University passes considerable latitude in the operation of research grants to its academic staff. This is the preferred mode of operation of academic staff, who value their freedom from overburdening administrative control. However, with this freedom comes the responsibility to operate research grants within a policy framework. Based on the facts presented by the Committee of Inquiry, it is evident to me that Professor Jin has operated outside of these policies and has shown no regard for their application. I am satisfied that he has claimed reimbursement from research grants for numerous items of a personal nature.
I conclude that Professor Jin’s behaviour constitutes serious misconduct.”
[25] Professor Calford then considered the penalty to be imposed in relation to this conduct. In that regard he also considered the mitigating factors found by the Committee of Inquiry in its report. His determination was as follows: 11
“Deputy Vice-Chancellor (Research)’s Determination on Penalty
Having reviewed the report of the Committee of Inquiry into the conduct of Professor Jesse Jin, I have concluded that Professor Jin’s behaviour constitutes serious misconduct.
In determining the appropriate penalty I have reviewed the University’s files concerning Professor Jin and investigations into allegations of research misconduct (Letter to Professor Jin, 20/10/05) and into the management of his research grant accounts (Letter to Professor Jin, 21/08/09). The very presence of those previous investigations assures me that the personal responsibility to operate research grants according to University policies and in line with funding rules of the granting agencies has been brought to the attention of Professor Jin on many occasions - some formally. This knowledge negates any possible mitigation of his actions due to Professor Jin having an idiosyncratic view of his responsibilities which may sanction his actions. As an example, in mid-2009 he was instructed to “ensure that you are familiar with and that you comply with all the Newcastle policies regarding research and any Funding Agreements governing your research”. Also in that letter he was told that his request to fund travel to China from grant LP0669645 is not approved. A number of inappropriate transactions took place after this date including expenses from a trip to China charged to LP0669645.
In view of the finding of serious misconduct in relation to grant expenditure over a considerable period, and evidence that adherence to policy concerning grants management had been formally drawn to Professor Jin’s attention, I cannot foresee that the University could agree to his submission of future grant applications. As the conduct of research is a fundamental aspect of the duties of Professor Jin and as the trust placed in him by the University has been so fundamentally undermined by his serious misconduct, I therefore determine that Professor Jin’s employment with the University be terminated with immediate effect.
As a consequence of my determination in relation to the management of ARC research grants the University will refund to the ARC the amounts of reimbursements that were inappropriately claimed against ARC research grants by Professor Jin.”
[26] We consider that the Deputy President was well placed to make the assessment as to whether the misconduct was serious and there is no error in his approach to the matter. The criticisms by the University of the expressions used in this part of his decision do not involve a fair reading of the decision. The Deputy President correctly identified the need for an additional degree of seriousness to warrant the description of serious misconduct. He was mindful of the definition in the Agreement. He was also mindful that this case did not involve a single isolated incident. He considered Dr Jin’s employment history and he considered the various findings of the Committee of Inquiry and the determinations by Professor Calford. He assessed the conduct as not incorporating the additional element of seriousness. For our part we consider that the conduct could well be described as serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of his duties and we understand the University’s basis for describing it as such. However, given the broad assessment that must be made in such matters, we do not believe that the Deputy President erred in his approach or in reaching his conclusion.
[27] Although the notion of serious misconduct is a feature of university enterprise agreements, the decision under appeal is very much the exercise of discretion on the specific facts and in the circumstances involving Dr Jin. We decline to grant permission to appeal in this matter as we are not satisfied that it is in the public interest to do so.
Dr Jin’s appeal against the decision that reinstatement not appropriate
[28] The Deputy President’s reasoning on this issue is set out above. Counsel for Dr Jin submits that the Deputy President erred on three principle grounds:
● that the decision failed to give adequate weight to a number of matters central to Dr Jin’s case;
● that the Deputy President made a significant error of fact in the manner in which he dealt with the role of Chief Investigator under the Australian Research Council Grant rules which led to the Deputy President’s conclusion that Dr Jin could not be reinstated;
● that the decision failed to give effect to the purpose of part 3-2 of the Act which emphasises reinstatement and the principle that reinstatement orders ensure that employees who have been unfairly dismissed are placed in the status quo ante.
[29] Counsel for Dr Jin submits that the error in the Deputy President’s reasoning process is evident at [110] to [112] of the merits decision. It is submitted that in confining the question of remedy to only two issues, the terms of clause 12 of the Agreement and whether Dr Jin could be reinstated to his position and continue in the role of Chief Investigator, the Deputy President has failed to consider other issues relevant to remedy.
[30] Counsel for Dr Jin submits that the second error of Deputy President Smith on remedy is the treatment of the role of Chief Investigator. It is submitted that the Deputy President’s treatment of the role of Chief Investigator involved a significant error of fact. Counsel for Dr Jin submits that the error was significant as it led to the Deputy President’s conclusion that reinstatement was not an appropriate remedy.
[31] It is submitted that there was evidence before the Deputy President that Dr Jin could be a Chief Investigator without being project leader or first Chief Investigator with responsibility for finances. It is submitted that the evidence of Dr Jin that he was willing to be involved in research projects as Chief Investigator, and the evidence of Professor Dou that it was common for senior academics to be in the role of Chief Investigator was not considered by the Deputy President, who instead accepted the opinion of Professor Calford that it would be unworkable for Dr Jin to be other than Chief Investigator.
[32] The third broad ground of appeal relied upon by Dr Jin is that the Deputy President failed to give effect to the purpose of the Act, the object of Part 3-2 is set out at s.381 of the Act:
“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.”
[33] Counsel for Dr Jin submits that the Deputy President failed to consider his evidence that he was willing to change practices in relation to claiming expenses. Counsel for Dr Jin also submits that the Deputy President failed to consider the mechanisms for performance management available under the Agreement. It is submitted that the difficulties perceived by the Deputy President associated with funding arrangements were not insurmountable.
[34] The University contests each of these submissions. It submits that the Deputy President gave proper consideration to each of the matters and properly exercised his discretion.
[35] The determination of whether reinstatement is appropriate is of course a discretionary decision. The first alleged error is that the Deputy President failed to have regard to relevant considerations. In our view this contention does not properly reflect the Deputy President’s decision. In raising the issues of the terms of the Agreement and the role of Chief Investigator, the Deputy President was raising the dilemma that he wished the parties to address further. The import of the terms of the Agreement was that dismissal would not have been appropriate in the absence of serious misconduct so reinstatement is the best way to cure the finding of harshness. This was succinctly putting the most favourable factor in support of Dr Jin’s reinstatement. The other factor was the main counterbalance of the dilemma. If correct, reinstatement could not be practically achieved. In highlighting these two issues the Deputy President was inviting the parties to address the question directly. We do not read his analysis as confining the considerations to those two matters.
[36] The second alleged error concerns the assessment of the evidence on the practicality of reinstatement. We do not consider that the Deputy President misinterpreted the evidence. Although other witnesses addressed the situation, the Deputy President accepted the evidence of Professor Calford who stated that the proposition of Dr Jin being reinstated but not to assume the role as Chief Investigator was unworkable. Professor Calford was the Deputy Vice Chancellor (Research) of the University and was responsible for the oversight and approval of processes relating to the safe and ethical conduct of research at the University.
[37] We also note Professor Calford’s determination on penalty extracted above. In our view this is a considered view of the practicalities of ongoing employment. He said that in the light of the findings he cannot foresee that the University could agree to his submission of future grant applications and the conduct of research is a fundamental aspect of the duties of Dr Jin. As the findings as to Dr Jin’s conduct have not been disturbed through these proceedings, these are important findings that in our view carry considerable weight in the determination of the practicality of reinstatement.
[38] We have considered the evidence in the matter and conclude that the Deputy President made no mistake of fact. He properly considered the evidence in the matter, balanced the competing considerations and reached a decision in the proper exercise of his discretion.
[39] The third challenge to this decision is not made out. It is clear from a fair reading of his decision that the Deputy President was aware of his obligations and the provisions of the Act. The objects are not a compelling ground for reinstatement in every case. They are a relevant consideration. The Deputy President’s attention was drawn to them and we have no doubt from his decision that he had regard to them.
[40] It is important to correctly identify the task the Deputy President was performing and our role in considering this appeal. The original proceedings and the appeals were conducted on the basis of the unfair dismissal provisions of the Act. This was not simply a matter of determining whether the termination was justified under the Agreement. Nevertheless, that question was highly relevant to the question of whether the termination was harsh - but it was not the only consideration. It is also highly relevant to the consideration of remedy and whether reinstatement is inappropriate, but again, it was not the only consideration. It was clearly required to be taken into account but could not have compelled a conclusion absent a consideration of all of the other circumstances.
[41] Different decision-makers might have reasonably reached a different conclusion to the Deputy President on these questions, but it is not our role to determine how we would have exercised the discretion if it was reposed in us. We can only interfere in the exercise of a discretionary decision if an error of the requisite kind is established.
[42] In all the circumstances we do not consider that the Deputy President’s discretion miscarried in relation to reinstatement. He clearly considered all relevant considerations and made an overall judgment based on the competing considerations. We grant permission to appeal because of the importance of the terms of the University’s enterprise agreement to the question of remedy but we dismiss the appeal.
The University’s procedural appeal
[43] Counsel for the University submits that in setting aside the directions made at paragraph [15] of the supplementary decision the Deputy President erred. He submits that the Deputy President should have finally determined the matter. He submits that in doing so the Deputy President has failed to fulfil the responsibilities of the Fair Work Commission under the Act leading to the University being unable to consider its position and properly assess its available course of action within the time constraints permitted under the Act.
[44] Counsel for Dr Jin submits that the decision to vacate the directions was made by the Deputy President following the appeal by Dr Jin. Counsel submits that the decision was unexceptional and allows the appeal proceedings to be determined prior to any further steps being taken in the proceedings. Counsel for Dr Jin submits that the Procedural Appeal should be dismissed.
[45] Procedural decisions are not lightly overturned on appeal. No sound case exists to do so in this case. The Deputy President has adopted an approach of sequentially determining the various aspects of the case. Given this approach it is entirely reasonable to await a final position on the preceding elements of the matter before turning to assess compensation, if indeed that step is ultimately relevant. As a result of our decision it is appropriate for the Deputy President to now return to this question. We decline to grant permission to appeal in this matter.
Conclusions
[46] We decline to grant permission to appeal on each of the University’s appeals.
[47] With respect to Dr Jin’s appeal we grant permission to appeal but dismiss the appeal.
VICE PRESIDENT WATSON
Decision of Commissioner Riordan
[48] I have read the decision of the majority, and I agree with their summary of the facts. The only point on which I respectfully disagree with the opinion of the majority is the question of remedy.
[49] The key finding of the Deputy President in relation to valid reason in this case was “that many of Professor Jin’s claims were for personal use and an inappropriate use of grant funds when viewed objectively.” 12
[50] The Deputy President made it plain that this was not a case where there were findings that Professor Jin had acted corruptly or fraudulently:
“[103] Notwithstanding earlier suggestions that Professor Jin’s activities may constitute corrupt or criminal conduct, no such finding (with one qualifier in relation toAllegation 7) has been made by Professor Calford. Professor Calford found that Professor Jin had breached policies of the University and standard employment practices. Importantly, Professor Calford made no findings in relation to Allegations 6 or 8. The tenor of the Committee’s report is that Professor Jin genuinely believed that what he was doing was consistent with grant funding arrangements. I am unable to see where it is said that Professor Jin made claims knowing them to be improper and without foundation. ...”
[51] Indeed, the Deputy President found that Professor Jin believed that he had acted within what was he was permitted to do when he incurred the expenses in question.
“[86] This has been a difficult matter to consider. I am satisfied that Professor Jin was aware that the University had concerns about the proper use of grant funds. However, Professor Jin, both during his employment and in the proceedings, did not believe that he was spending those funds in any way other than that approved by the Grant.
(my emphasis)
[87] The ARC can and should expect that its funds are spent for a proper purpose. Many of the items claimed by Professor Jin could not reasonably be seen as associated with research. I accept that this is not the view held by Professor Jin, but any assessment must be objectively based. The fact that the University has reimbursed the ARC is telling.
[88] ... However, when looked at contemporaneously there was little raised with Professor Jin about the nature of his expenditure. The Committee was also of the view that given his austerity, his actions did not represent a strong desire to benefit personally. Whilst this may go to remedy, I am not persuaded that the expenditures were appropriate.”
[52] The Deputy President was satisfied that Professor Jin’s conduct constitutes breaches of obligation and policies that were “serious in nature” when viewed objectively, notwithstanding that Professor Jin “did not believe that he was spending those funds in any way other than that approved by the Grant”:
“[105] The summary of Professor Calford’s conclusions is contained in the appendix to the letter of termination and is worth repeating here:
Having considered the report prepared by the committee of enquiry, and the facts presented in relation to which allegation, I am satisfied that Prof Jin has breached a number of policies and obligations in respect of the nature of reimbursements claimed against a RC grants for which he had direct responsibility as the first named chief investigator. Whilst I’m not satisfied that there is fact to uphold allegations 5.3; allegations six or allegation eight as breaches of policy, I am satisfied that the other allegations as presented to the committee of enquiry (the vast majority of transactions) can be found to be breaches of policy and therefore be upheld.
These breaches are of a serious nature when considered against the standards of conduct expected by an academic staff member. As noted by the committee of enquiry in the report, the University passes considerable latitude in the operation of research grants to its academic staff. This is the preferred mode of operation of academic staff, who value their freedom from overburdening administrative control. However, with this freedom comes a responsibility to operate research grants within a policy framework. Based on the facts presented by the committee of enquiry, it is evident to me that Prof Jin has operated outside these policies and has shown no regard to the application. I am satisfied that he has claimed reimbursement from research grants for numerous items of a personal nature.
[106] I accept Professor Calford’s finding that the breaches are serious in nature but I cannot agree that the conduct of Professor Jin constituted serious misconduct.”
(my emphasis)
[53] This finding that the conduct did not constitute “serious misconduct” was an important finding because, under the Agreement, the University was not entitled to dismiss Professor Jin for misconduct. It could only terminate him under the Agreement if it constituted “serious misconduct”, as defined in the Agreement.
“Clause 12.2 The decision to take disciplinary action is made by the Vice-Chancellor or appropriate Deputy Chancellor. Disciplinary action means any one or combination of the following:
(i) counselling; and or/
(ii) further training and development; and/or
(iii) formal censure; and/or
(iv) loss of increment(s); and/or
(v) demotion; or
(vi) termination alone.
Clause 12.3 In cases involving misconduct not amounting to serious misconduct, disciplinary action will be limited to the scope of Clause 12.2(i)-(v).”
[54] One of Professor Jin’s central complaints on appeal is that the Deputy President erred in refusing reinstatement because this enabled the University to achieve what it was not entitled to achieve under the Agreement – the termination of his employment. The Deputy President also noted that termination would likely have serious adverse effects on Professor Jin:
“[98] In this connection and with respect, I agree with the observations of Madgwick J in Rice v University of Queensland where he stated:
More than ordinarily serious economic and occupational consequences may attend the dismissal of an academic: universities offer virtually the only avenues of employment in some disciplines, and the world wide communication between university academics in particular fields is often the norm.”
[55] The Deputy President was conscious that the limitation in the Agreement preventing termination for misconduct that was not “serious misconduct” was a significant issue:
“[111] It is apparent that the process taken was not one of unsatisfactory performance but rather Misconduct/Serious Misconduct. The Agreement of the parties limits the scope of the action that can be taken against an academic staff member where serious misconduct is not found. Misconduct under the Agreement does not bring with it the sanction of termination of employment.
[112] This presents a dilemma. Professor Jin was the Chief Investigator and it would be inappropriate to reinstate him in a role where he would again become the Chief Investigator given his failure to appreciate the inappropriateness of many of his expenses.”
[56] The finding that it would be “inappropriate to reinstate” Professor Jin was provisional and the Deputy President heard further argument on the issue of remedy and whether reinstatement should be ordered.
[57] Sections 381 and 391 of the Fair Work Act 2009 (the Act) relevantly provide:
“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.”
“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.”
[58] The Deputy President’s essential reason for finally determining that reinstatement was not appropriate related to the impracticability and inappropriateness of Professor Jin continuing in the role of “Chief Investigator”:
“[10] Section 391(1)(a) and (b) are the relevant provisions. An order of reinstatement has to be to the same position or another position which is no less favourable. There is no jurisdiction to simply reappoint to any position at whatever terms are considered appropriate. There is no doubt that the evidence showed that Professor Jin’s research, that led to funding, meant that he was mostly the Chief Investigator. Professor Calford expressed the view that it would be very difficult for someone to maintain a reputation as a leading researcher if they were not the principal Chief Investigator. His evidence, under cross-examination by Mr Slevin, was:
---I think it would be a very difficult position for someone to maintain their reputation as a leading researcher if they were second, third or fourth chief investigator behind another investigator, and passed on their responsibilities to run those grants to that first-named chief investigator. I mean, essentially that means you’re pulling someone on for their good CV to backup someone else’s proposal. You know, those people holding those grants as first-named CI would want to have the responsibility and want to set the direction of those, I can’t imagine a researcher wanting to have someone else behind your name down the list, but who was really doing the work, but they were taking the responsibility. That’s a bizarre situation.
I’m asking you whether it allays your concern about approving grants in which Prof Jin would be the CI. I’m not asking you to give an opinion as to whether Prof Jin would accept a second CI position. Do you understand that, professor? ---You’re asking me whether it allays my concerns that Prof Jin could be a CI but not senior CI. Is that what you’re saying?
In which case you wouldn’t have to approve any grant applications. That should allay your concern, professor, shouldn’t it?---Well, if I can say, I think this is an unworkable situation. I just can’t see that working.
[11] Professor Jin was rightly proud of his research, the beneficial impact upon funding arrangements for the University from the grants he received, as well as the number of PhD students he attracted. At the time of his recruitment he was the Chief Investigator for nine Australian Research Council grants.
[12] It appears to me that being a Chief Investigator was important to being a leading researcher and being recognised as such with peers and funding bodies. There is no doubt that the Chief Investigator has the intellectual carriage of the project and that there can be more than one Chief Investigator. In this connection, however, I accept the evidence of Professor Calford about the workability of any other approach. It follows, that if reinstatement was to be ordered, then consideration would have to be given to the key aspects of Professor Jin’s employment and to what position was he being reinstated. With reputation being so important, any order of reinstatement would have to encompass an availability for the role of Chief Investigator otherwise it would not be to the position he was employed immediately prior to his dismissal or to a comparable position.
[13] It would seem absurd to reinstate Professor Jin as the Chair of an area but in the knowledge that he could not take the lead role in research activities and be excluded from any financial decision. As I stated earlier, I accept the evidence of Professor Calford where he said it would be a bizarre situation. Reinstatement cannot be limited to just salary but it must comprehend the full scope of the position previously held. That is why in the alternative, reinstatement can occur on terms and conditions no less favourable. In my view, given the nature of beneficial legislation, this section of the Act should not be read narrowly.
[14] It is the tension between the Agreement and the facts as presented to me about the nature of the reinstatement which must be balanced in the exercise of discretion. These are peculiar circumstances. Taking all those matters into account I find that it would be inappropriate to reinstate Professor Jin to the position he was employed immediately before his dismissal and that there is no comparable position which comprehends his terms and conditions of employment.”
[59] With respect the Deputy President erred in his application of s.391 because the role of Chief Investigator was not Professor Jin’s “position” within the meaning of s.391. Professor Jin’s “position” was that of “Professor” as “Chair of Information Technology in the School of Design, Communications and Information Technology, Faculty of Science and Information Technology at the University”. 13 “Chief Investigator” was a role that Professor performed in relation to research grants. It was not a “position”. An order for reinstatement did not require that Professor Jin continue in the role of “Chief Investigator” in relation to research grants. While it would ordinarily be the case that someone in Professor Jin’s position would perform the role of Chief Investigator in relation to his research, it was not absolutely necessary – another member of the research team could have that role. The Deputy President’s error lay in approaching the matter on the basis that he was considering whether he should reinstate Professor Jin to the position of Chief Investigator when the FW Act required him to consider whether reinstatement to the position of Professor, Chair of Information Technology was inappropriate.
[60] Professor Jin testified to his readiness to accept such a role, a role that Professor Calford described as “bizarre”. With respect, the adverse reputational flow on effects of such a position relate to the reputation of Professor Jin, not the University.
[61] Even accepting the Deputy President’s apparent conclusion that it was inappropriate for Professor Jin to continue having responsibility for approving expenditure of grant money, this did not prevent reinstatement to his “position” as Professor. There was no evidence that it was necessary or essential for the University to have Professor Jin perform the role of Chief Investigator in relation to his research grants. It seems plain that it was not. It did not prevent Professor Jin from undertaking the actual research, teaching students or performing all the other functions of the Professor and Chair of Information Technology. There is no suggestion that the misconduct found by the Deputy President would prevent or impede the proper performance of those functions.
[62] The authorities dictate that, when considering whether reinstatement is appropriate, care must be taken in assigning determinative weight to expressions of loss of confidence in employees by the employer. In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:
"...we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits."
[63] Professor Calford’s attitudes to Professor Jin reflect his conclusion that Professor Jin had engaged in serious misconduct, contrary to the findings of the Deputy President. His views on Professor Jin must be considered cautiously. For the reasons that have been given, Professor Calford’s views as to the inappropriateness of Professor Jin continuing as Chief Investigator in relation to research grants do not have a major bearing because reinstatement does not prevent the University from assigning the role of Chief Investigator to another researcher.
[64] I am satisfied that, to the extent that the Deputy President’s analysis of Professor Jin’s “position” for the purposes of reinstatement involved an error of fact, it was a significant error of fact within the meaning of s.400(2).
[65] I am satisfied that the decision is affected by error coming within the boundaries of House v R [1936] HCA 40 and that permission to appeal must be granted pursuant to ss.604(1) and (2).
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matter to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[66] I respectfully agree that the dismissal was harsh, unjust and unreasonable for the reasons given by the Deputy President. The mitigating factors identified by the Deputy President weigh strongly in favour of reinstatement as an appropriate remedy. The misconduct found by the Deputy President was not serious misconduct. It did not involve dishonest intent. The adverse consequences for Professor Jin if he is not reinstated are substantial. Further, significant weight should be given to the term of the Agreement that prevented the University from terminating Professor Jin unless he was guilty of misconduct. When it is appreciated that Professor Jin’s role as Chief Investigator in relation to research grants is not the impediment to reinstatement perceived by the Deputy President, it is plainly appropriate that Professor Jin should be reinstated.
[67] There is a further error that the appellant has made out. The Deputy President had two applications – an application for an unfair dismissal remedy and an application for the Commission to conduct a dispute resolution process over the application of the Agreement (the Dispute Resolution Application). The Deputy President correctly found that the Agreement prevented the University from terminating Professor Jin for misconduct that did not constitute “serious misconduct”. Professor Jin challenged the validity of the termination decision on this basis and sought an arbitral determination to address the breach of agreement. The Deputy President failed to make an arbitral determination of the Dispute Resolution Application. This involved a failure to properly exercise the jurisdiction conferred on the Tribunal.
[68] That error constitutes a separate and additional basis on which I would grant permission to appeal. For the same reasons that bear upon my conclusion that reinstatement is appropriate on the unfair dismissal application, I am satisfied that Professor Jin is entitled to an arbitral determination that requires the University to give effect to the terms of the Agreement. Reinstatement is the remedy that is required to ensure that the University observes the terms of the Agreement in relation to Professor Jin. I would make a determination requiring the University to reinstate Professor Jin. It remains open for the University to then deal with Professor Jin in accordance with the terms of the Agreement.
[69] Professor Jin has not been afforded a “fair go” in accordance with the Act. For the reasons given, I would allow the appeal, quash the decisions and order of the Deputy President and make an order and determination requiring the University to reinstate Professor Jin with continuity.
COMMISSIONER
Appearances:
A. Slevin, of counsel, for Dr Jin.
R. Warren, of counsel, for the University of Newcastle.
Hearing details:
2013.
Sydney.
May, 28, 29.
1 [2013] FWC 1049.
2 [2013] FWC 418.
3 PR534506.
4 [2013] FWC 418.
5 [2013] FWC 418 at [56] to [82].
6 [2013] FWC 418 at [114].
7 [2013] FWC1049 at [15].
8 PR534506.
9 Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694.
10 Dr Jin Appeal Book pg 1168-1169.
11 Dr Jin Appeal Book pg 1170.
12 [2013] FWC 418 at [104].
13 [2013] FWC 418 at [1].
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