Jesse Sheng Jin v University of Newcastle
[2013] FWC 418
•18 JANUARY 2013
Note: Appeals pursuant to s.604 (C2013/3708, C2013/3620 and C2013/3468) were lodged against this decision - refer to Full Bench decision dated 14 October 2013 [[2013] FWCFB 3369] for result of appeal.
[2013] FWC 418 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Jesse Sheng Jin
v
University of Newcastle
(C2011/3787, U2012/5801)
DEPUTY PRESIDENT SMITH | MELBOURNE, 18 JANUARY 2013 |
Dispute about disciplinary proceedings and the process of investigations into alleged fraudulent claims against research grants under the enterprise agreement- unfair dismissal - misconduct - serious misconduct.
Introduction.
[1] This decision involves applications made by Professor Jesse Sheng Jin. Professor Jin was summarily dismissed in his employment by the University of Newcastle (the University) on 22 February 2012 by letter signed by Mr Ian Pike, Director Human Resource Services. At the time of his termination of employment Professor Jin was the Chair of Information Technology in the School of Design, Communications and Information Technology, Faculty of Science and Information Technology at the University. Professor Jin’s field of expertise was in biomedical imaging and multimedia systems.
[2] Professor Jin was the Chief Investigator for nine Australian Research Council (ARC) grants. It was his evidence that he had developed collaborative arrangements with universities in China, Singapore, Hong Kong and the United States. His evidence was that he managed seven staff and had over 20 postgraduate students.
[3] The two applications before the Commission are:
- An application pursuant to s739 of the Act seeking that the Commission deal with a dispute under clause 50 of the University of Newcastle Academic Staff Enterprise Agreement 2010 (the Agreement), and
- An application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy.
[4] I shall deal with each of these matters separately at this stage, although it is submitted by Professor Jin that the failure to follow the agreement underpins the submissions in the unfair dismissal application.
Section 739 - Application to Deal with a Dispute.
[5] The matter originally came before Senior Deputy President Drake on 7 October 2011, where a resolution of a dispute arising over the operation of clause 49 of the Agreement was sought, either through conciliation or arbitration. The determinations sought were that the process of investigating allegations against Professor Jin of fraudulent claims against research grant monies be abandoned, and that any attempt to take disciplinary action against Professor Jin, either immediately or in the future, be prohibited. 1 Her Honour adjourned the matter into conference.
[6] Subsequently, the application was heard by Vice President Lawler on 31 October 2011. At this time, Professor Jin sought interim relief to prevent a Committee of Inquiry established pursuant to Clause 49 of the Agreement from commencing proceedings and hearings. His Honour considered the matter on that day and announced his decision refusing the application for interim relief. His Honour published his decision on 4 November 2011. His Honour found:
“For those reasons I was unable to conclude that the correct construction was to interpret the expression “the matter” in clause 50.7 in the narrow way for which Counsel for the Applicant contended. Rather, I was satisfied that the intent of subclause 50.7, objectively determined, is to exempt the whole of the clause 48 and clause 49 processes in relation a “matter” from the dispute resolution procedure and, for that reason, the application for interim relief was rejected.” 2
[7] The effect of His Honour’s decision was to permit the process under the Agreement to continue but it did not mean that, once completed, a dispute arising under the Agreement could not be revisited.
[8] The matter was subsequently reallocated to me and hearings took place in Newcastle. Professor Jin was represented by Mr Slevin of counsel and the University was represented by Mr Warren of counsel. The matter which falls for determination before me arises from the University’s application of clause 11 of the Agreement and using that clause to suspend Professor Jin from duty without pay. Professor Jin characterises the dispute as the University failing to follow the requirements of the Agreement and a denial of procedural fairness.
[9] To begin, it is appropriate to examine the basis upon which the Commission is empowered to deal with a dispute arising under the Agreement. Clause 50 of the Agreement provides:
“50.0 DISPUTE RESOLUTION PROCEDURE
50.1 Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed.
50.2 A dispute arising under this clause will in the first instance be discussed by the staff member(s) and their supervisor in an effort to resolve the matter promptly. The staff member(s) may seek the assistance of the relevant Union or other support person (being a staff member) in which case the supervisor may also have a support person.
50.3 Where the steps in Clause 50.2 are unsuccessful, or where the Union raises a dispute, a representative of the relevant Union(s) and a representative of the University will discuss the dispute and attempt to reach an agreement.
50.4 Where the dispute is not resolved under Clause 50.3, at the request of either party a Disputes Committee will be convened within five (5) working days, unless agreed otherwise. The Disputes Committee will consist of two (2) nominees of the University and two (2) nominees of the Union.
50.5 If there is no resolution of the dispute the matter may be referred to Fair Work Australia, or to a person who is a member of the Industrial Relations Commission of New South Wales in accordance with S146B of the New South Wales Industrial Relations Act. In dealing with the dispute the relevant body may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make such dealing effective.
50.6 Should Fair Work Australia or the Industrial Relations Commission of New South Wales proceed with the matter, it will then:
(i) seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation and/or conciliation of the matter in dispute. If these options are unsuccessful, Fair Work Australia or the Commission may arbitrate the matter. The parties to the dispute may be represented by a person(s) of their choice;
(ii) make a recommendation to the parties to the dispute or, if the matter is arbitrated, make a determination. The parties to the dispute will consider any recommendation made. Any determination made will be binding on the parties, subject to a party to the dispute exercising a right of appeal under the Fair Work Act.
50.7 This dispute resolution procedure does not apply where the matter is being dealt with in accordance with the Inquiry Officer – Clause 48 or Committee of Inquiry – Clause 49 process.
50.8 Until the procedures in this clause have been exhausted, work will continue and no industrial action or any other action likely to exacerbate the dispute will be taken by any party to the dispute.”
[10] No party has argued that the Commission cannot deal with the controversy which is raised.
[11] The background facts may be simply stated.
[12] In September 2010, an investigation had begun into the work practices of Professor Jin by Ms A Siegers, the Associate Director of Risk and Assurance for the University. The investigation arose from a request from Mr Ian Pike, the Director of Human Resource Services. A specialist external fraud investigation unit was commissioned to undertake the work.
[13] Upon receiving the preliminary assessment, Ms Siegers believed that the University’s reporting obligations under the Independent Commission Against Corruption Act 1988 (NSW) had been activated.
[14] On 7 February 2011, Ms A Siegers wrote to Professor Jin advising that a number of cash expenses that Professor Jin had processed were, following a preliminary assessment, considered not to be in compliance with legal obligations and policies. The letter went on to state that these transactions may constitute corrupt or criminal conduct and may also constitute serious misconduct. 3
[15] Professor Jin replied on 13 February 2011 welcoming the enquiry and provided a spreadsheet with explanations. As Ms Siegers was not happy with the response of Professor Jin the matter was referred to Mr Pike. Mr Greg Kerr, Associate Director, Employee Relations, dealt with the matter and on 24 February 2011 wrote to Dr Gould recommending that Professor Jin be suspended without pay 4. The letter went on to note:
- The allegations, if proven, would constitute serious misconduct
- Formal allegations could not be formulated against Professor Jin for at least a period of 4 weeks
- The Agreement required the staff member be served with the allegations or be otherwise made aware of the allegations before the power to suspend may be invoked
- That the Deputy Vice-Chancellor could be reasonably satisfied that the conduct alleged constitutes serious misconduct, and
- That Professor Jin be excluded from the University during the period of suspension.
[16] By letter dated 24 February 2011, The Deputy Vice-Chancellor (Services), Dr S Gould wrote to Professor Jin 5 advising that her office had received allegations which, if proven, could constitute misconduct or serious misconduct under clause 11 of the Agreement. Dr Gould advised that she had decided, in accordance with clause 11.5 of the Agreement to suspend “your employment without pay pending the finalisation of the investigation and any consequent action under clause 11.” Dr Gould went on to state: “In making this decision I have formed the view that the alleged conduct amounts to serious misconduct such that it would be unreasonable to require the University to continue your employment during the period of notice.” Finally Dr Gould stated: “Your suspension and the above directions will be reviewed no later than 25 March 2011, by which time it is anticipated that the investigation will be finalised and you will have been notified of any allegations of misconduct/serious misconduct arising from the investigation”
[17] Professor Jin’s suspension was not reviewed in March but he began using his Long Service Leave until late September 2011 and was then placed on full pay until the termination of his employment. His employment was terminated on 22 February 2012 nearly twelve months later. It was submitted that he suffered no loss of salary during his suspension.
[18] Clause 11 of the Agreement provides:
11.0 MISCONDUCT/SERIOUS MISCONDUCT
11.1 For the purpose of this clause:
11.1.1 “Misconduct” means conduct which is not serious misconduct but which is nonetheless conduct which is unsatisfactory.
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.
11.2 Where a matter which may involve misconduct or serious misconduct has been dealt with as if it were a case of Unsatisfactory Performance - Clause 10, it cannot be dealt with under this clause.
11.3 Wherever possible, a staff member’s supervisor will attempt to resolve instances of possible misconduct through guidance, counselling and appropriate staff development or work allocation and/or formal written notification of the University’s expectations.
11.4 Any allegation of misconduct or serious misconduct will be considered by the appropriate Deputy Vice-Chancellor. If the Deputy Vice-Chancellor believes such allegations warrant further investigation they will:
(i) notify the staff member of the allegations in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegations and to properly consider and respond to them; and require the staff member to submit a written response within 10 working days unless, where required, the matter has been referred to an external body; or
(ii) where required, refer the matter to an external body with the appropriate jurisdiction to deal with the matter and in such cases, inform the staff member in writing at the time of such referral.
11.5 At any time after an allegation of misconduct/serious misconduct has been received by the appropriate Deputy Vice-Chancellor, the Deputy Vice-Chancellor may suspend the staff member on full pay, or may suspend the staff member without pay if the Deputy Vice-Chancellor is of the view that the alleged conduct amounts to serious misconduct such that it would be unreasonable to require the University to continue employment during a period of notice. Provided that:
(i) where the suspension without pay occurs at a time when the staff member is on paid leave of absence, the staff member will continue to receive salary for the period of leave of absence;
(ii) the staff member may engage in paid employment or draw on any annual leave or long service leave credits for the duration of the suspension without pay;
(iii) the Deputy Vice-Chancellor may at any time direct that salary be paid on the ground of hardship;
(iv) any lost salary and other entitlements will be reimbursed if it is ultimately determined that dismissal is not warranted.
11.6 During any period of suspension the staff member may be excluded from the University, provided that they shall be permitted reasonable access to the University for the preparation of their case and to collect personal property.
11.7 If the allegations are admitted in full by the staff member, or if the staff member has not responded to the allegations, and the appropriate Deputy Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, the Deputy Vice-Chancellor may decide to take disciplinary action and, if so, will advise the staff member in writing of the decision and the operative date of the disciplinary action.
11.8 If the allegation is denied in part or in full, the appropriate Deputy Vice-Chancellor will refer the matter to a Committee of Inquiry under Clause 49, unless they decide to take no further action, or may counsel or censure the staff member for unsatisfactory behaviour and take no other action.
11.9 Any Committee of Inquiry report or findings of an external body in accordance with Clause 11.4 (ii) will be considered by the Deputy Vice-Chancellor, who will determine:
(i) there is no misconduct/serious misconduct and take appropriate action; or
(ii) to counsel or censure the staff member; or
(iii) that misconduct/serious misconduct has occurred and advise the staff member of the disciplinary action to be taken in accordance with Disciplinary Action - Clause 12
[19] It is argued by Professor Jin that the suspension was not authorised by the Agreement because:
- The subclause only permits suspension after the allegation has been notified to the staff member in writing and must be in sufficient detail to enable the staff member to understand the precise nature of the allegations and to properly consider and respond to them (clause 11.4(i))
- Dr Gould gave no indication in her letter that she had formed the requisite view that the alleged conduct amounted to serious misconduct such that it would be unreasonable to require the University to continue employment during a period of notice. To the extent that Dr Gould formed such a view no reasons were given.
[20] It followed in the submission of Professor Jin that the suspension was contrary to the Agreement.
[21] The University argued that it sought advice from the Australian Higher Education Industrial Association as to the operation of the clause and was advised that it was permitted to suspend a staff member prior to formal allegations being laid against the person. This was said to be consistent with the language of the Agreement which provided that “At any time after the allegation of misconduct/serious misconduct has been received by the appropriate Deputy Vice-Chancellor, the Deputy Vice-Chancellor may suspend…”
[22] It was argued that there were allegations of serious misconduct and as soon as the Vice-Chancellor became aware of these allegations, the power to suspend under clause 121.5 was enlivened. It was argued that a proper construction of the word “allegation” is any allegation and it does not have to be a formal allegation served in writing.
[23] It is now appropriate to turn to the basis upon which the Commission considers the application of certified agreements.
[24] In this connection I refer to the often quoted decision of Justice Madgwick in Kucks v CSR Limited. 6 His Honour was there considering the approach that should be taken when interpreting an award. However, this same approach has been subsequently adopted when consideration is to be given to the terms of a certified agreement. His Honour summarised the principles involved in these terms:
“Legal principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 7
[25] Subsequently this approach was adopted by a Full Court of the Federal Court of Australia in United Firefighters’ Union of Australia and Another v Metropolitan Fire and Emergency Services Board. 8 Their Honours said:
“51 The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.
52 A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon”; see Kucks at 184.
53 Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement; Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made.” 9
[26] The reference above to Short v FW Hercus Pty Ltd is to an extract of the decision ofJustice Burchett. In that case His Honour said:
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.” 10
[27] In a similar vein Neaves J. in Meat and Allied Trades Federation of Australia v. The Australasian Meat Industry Employees’ Union concluded:
“..The true meaning and effect of the award must be ascertained not by construing the language used in isolation but by construing that language in its setting and context and in light of all the relevant surrounding circumstances.” 11
[28] Additionally, the comments made by Justice Mason in the decision of the High Court of Australia in Codelfa Construction Pty Ltd v State Rail Authority of NSW 12 are often cited as an authority. Although that judgment concerned the approach to be taken to the interpretation of the terms of a commercial contract and the circumstances in which a term may be implied, extracts from it are relied upon as relevant to the interpretation of industrial agreements.
[29] Some years later, Justice Mason in K and S Lake City Freighters Pty Ltd v Gordon & Gotch stated:
“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. 13
[30] Against that background, I now turn to consider the submissions, evidence and proper construction of Clause 11.4 and 11.5 of the Agreement. A number of facts are uncontroversial. They are that, firstly, Professor Jin was not notified in writing by the Deputy Vice-Chancellor of the allegations in sufficient detail to enable him to properly consider and respond prior to his suspension without pay. Secondly, the allegations had not been finalised at the time of the suspension of Professor Jin as evidenced by the fact that the University was not in a position to formally put the allegations to Professor Jin until 11 April when Professor Calford then wrote to Professor Jin outlining the allegations and concluded that they warranted further investigation. 14
[31] It appears that the question is, whether or not the operation of the clauses 11.4 and 11.5 are sequential or can operate independently of each other? Professor Jin supports the sequential operation and the University argues for the independent operation of the clauses.
[32] I prefer the view that, in large measure, the clauses operate sequentially. It appears to me that the key to the operation of the clause is the existence of an allegation. If one exists then clause 11.4 casts a duty upon the Deputy Vice-Chancellor to take a view as to whether or not that allegation/s warrants further investigation. If it does, the clause mandates that the staff member be notified in writing of the allegation/s in sufficient detail to enable the staff member to understand the precise nature of the allegations and to properly consider and respond to them. Without clarity in relation to allegations of misconduct or serious misconduct, it is difficult to see how a decision could be made to suspend a staff member, particularly without pay.
[33] Whilst the University had serious concerns, those concerns were not properly articulated until 11 April 2011 when Professor Calford itemised the misconduct that Professor Jin was said to have committed. There is no doubt that a number of matters were raised with Professor Jin, but they were at different times differently characterised. Professor Jin was entitled to know, from the person designated by the Agreement, the precise terms of what was alleged against him.
[34] It is also clear that 11.5 does not require a completion of the processes envisaged by clause 11.4 as it begins with the words “At any time after an allegation of misconduct has been received by the appropriate Deputy Vice-Chancellor...” The better construction is, that once all the facts are known to the Deputy Vice-Chancellor in sufficient detail so as to notify the staff member under the clause, then she or he can form a view that the alleged misconduct amounts to serious misconduct such that it would be unreasonably to require the University to continue employment during a period of notice. The language “during a period of notice” in my view is referable to the notice required to be given to the staff member under clause 11.4(i).
[35] I am also of the view that in the context and setting of a University, the better construction is to read the clause so that the Deputy Vice-Chancellor is in possession of all of the detail and facts upon which any decision could be made that was adverse to the interests of a member of staff.
[36] In accordance with clause 50 of the Agreement, I find that before a staff member may be suspended with or without pay for serious misconduct, any allegations to that effect must be notified to the staff member in accordance with clause 11.4(i). However, I also find that once having notified the staff member in accordance with that clause, the Deputy Vice-Chancellor may suspend, with or without pay, the staff member provided that the requisite satisfaction is reached and that it would be unreasonable to require the University to continue the employment during a period of notice.
[37] In the present matter, the operation of clause 11.4 was not brought into operation until 11 April 2011 and it follows that clause 11.5 could not be accessed until that time.
Section 394 - Application for an Unfair Dismissal Remedy.
[38] On 6 March 2012 Professor Jin lodged an application pursuant to s.394 of the Act, alleging that the University had unfairly dismissed him from his employment within the meaning of s 385 of the Act. Again, the matter originally came before Her Honour SDP Drake on 7 May 2012 and subsequently the file was allocated to me. It was listed for Conference/Hearing in Newcastle.
[39] In accordance with ss 398 and 399 of the Act I raised with the parties the most appropriate way to deal with the matter. In light of the history of the matter, it was considered that a hearing would be the most effective and efficient way to resolve the matter. It is also appropriate to note that Professor Jin is a person protected from unfair dismissal.
[40] Professor Jin argues that his dismissal was unfair because:
a. There was no valid reason for his dismissal
b. He was not given an opportunity to respond to the reasons for dismissal
c. The University is a large employer with sufficient resources. The procedures to be followed in dismissing academic staff are prescribed in the Agreement. The employer failed to follow those procedures, and
d. As a well respected academic, the dismissal has had an adverse impact on his reputation and has disrupted important research work. Professor Jin’s research work is specialised, is of significant public benefit and there are few opportunities to pursue that work elsewhere. 15
[41] Professor Jin seeks reinstatement to the position he held immediately prior to his dismissal together with an order maintaining continuity of service.
[42] The University seeks that the application be dismissed.
[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. 16 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 17.
- 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:
- 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. 19
- 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. 20
- Professor Jin responded on 13 February 2011 with an explanation of the transactions. 21
- On 24 February 2011 Dr Gould suspended Professor Jin from his employment with the University without pay. 22
- 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. 23
- 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 24
- Professor Calford gave consideration to the report 25 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 Calford26
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. 18
[45] I now turn to the evidence and submissions.
[46] Evidence was given by:
- Professor Jin, the applicant.
- Professor P Gillard, a conjoint Professor in the School of Design, Communication and Information Technology 27 who gave evidence in support of Professor Jin
- Dr Richard D Herbert, senior lecturer in information technology gave evidence of his experience before the Committee of Inquiry.
- Mr Yu Peng, who was a PhD candidate being supervised by Professor Jin. His evidence was in support of Professor Jin remaining his supervisor.
- Mr Lei Jiang, who was a PhD candidate being supervised by Professor Jin. His evidence was in support of Professor Jin remaining his supervisor
- Professor Shi Xue Dou, an Australian Professorial Fellow and Director of the Institute for Superconducting and Electronic Materials at the University of Wollongong.
- Professor Dou’s evidence supported Professor Jin as an outstanding and productive scientist.
- Mr G A Kerr, Senior Employee Relations Advisor for the University.
- Dr A A Llewellyn, Head of School, Design Communication and Information Technology.
- Ms A Siegers, Associate Director Risk and Assurance.
- Ms J Alexander, Associate Director, Research Grants and Infrastructure, Research Services
- Professor M B Calford, Deputy Vice-Chancellor (Research)
[47] There were a number of issues raised with Professor Jin at various times. Indeed the letter toIndependent Commission Against Corruption (ICAC) demonstrated the seriousness of the matters which were thought to be apparent. Much of the lead up to the letter of Professor Calford on 11 April appeared to raise various issues and some of them appeared to be overstated. However, in my view, the correct starting point for and examination of, the application by Professor Jin, is the formal allegations set out in the letter of 11 April. There were some alterations to Professor Calford’s letter the next day by Mr Kerr 28 to change timeframes.
[48] From there began a series of interactions between the solicitors representing Professor Jin and the University seeking further and better particulars. 29 There were also a series of interactions between the parties and Her Honour Senior Deputy President Drake30
[49] By June 2011, the Committee of Inquiry was established pursuant to Clause 49 of the Agreement and it sat for 6 days during November 2011. It is worth noting at this stage some observations of the Committee in its final report:
In this case, the issues are complex, multifaceted, and diverse in character: and involve a large number of financial transactions. Metaphorically the Committee of Inquiry has been given a bowl of spaghetti to unravel in working to establish and explore the facts of the case so as to provide a basis, as required in the University of Newcastle Enterprise Agreement 2006-2008, upon which the reviewing officer may deliberate prior to deciding what action the University may wish to take in relation to these allegations 31
[50] From my consideration of the case I accept the Committee’s observations about the nature of the matter are accurate. The Committee of Inquiry was not charged with the responsibility of determining whether or not there had been serious misconduct, but to reach conclusions on the facts which could then be presented to Professor Calford.
[51] Professor Jin argues that a number of procedural steps with the establishment and conduct of the Committee of Inquiry were inconsistent with the Agreement. To begin, Professor Jin submits that whilst he acknowledged the provisions of Clause 46.2 in relation to representation, he did not believe that that University had given reasonable consideration to his request (clause 46.3) to be represented by his solicitor. Professor Jin wrote to Mr Kerr 32 expressing his concern at the decision, particularly given that the University was represented by an officer of the University’s employer organisation.
[52] On 30 September 2011, the University again wrote to Professor Jin after receiving correspondence from Drake SDP about Professor Jin having access to a person with legal training. This was agreed subject to some conditions 33
[53] Further correspondence and activity occurred between the University and Professor Jin which also included the matter which came before His Honour Vice President Lawler 34.
[54] The approach by the University was, in my view, consistent with its obligations under the Agreement. Whilst there may have been disputes along the way, I am satisfied that Professor Jin put all the material to the Committee that was necessary for them to make findings. Professor Jin was legally represented and there was a careful watch on the proceedings in seeking to protect the interests of Professor Jin.
[55] Therefore, it is appropriate to consider what was before Professor Calford and the facts upon which he decided that Professor Jin was guilty of serious misconduct. This is a two stage process. The first stage is to examine the matters upon which relevant findings were made and to consider any criticism of those findings. Secondly, to examine the decision of Professor Calford and to consider whether or not the conclusions reached by Professor Calford were harsh, unjust or unreasonable.
[56] I turn firstly to the findings of the Committee of Inquiry.
Allegation 1
“It is alleged that between 1 January and 31 December 2010 you engaged in misconduct in that, in breach of the following policies of the University of Newcastle: Responsible Conduct of Research Policy (Policy document 873) and the Compliance Policy (Policy document 838), and in breach of the terms of the Australian Research Council Funding Rules for Discovery Projects Commencing in 2007 and the terms of the Funding Agreement in respect of Research Council Grant DP0773584, you charged certain expenditure against grant DP0773584, in respect of which you were the Chief Investigator, which expenditure was not permitted under the terms of the Grant” 35
[57] The specifics of the allegation were said to be that between 1 January and 31 December 2010, Professor Jin obtained reimbursement through the University’s “SpendVision” 36 system for the expenses he charged against a specific research grant where those items were not permissible items of expenditure in respect of that grant.
[58] To begin, the allegation covered some expenditure on a number of items: visa, adaptors, cough mixture, internet subscription in China and a gift. On these items the Committee found that there was no sanction for the items purchased.
[59] Where these matters assume additional importance is that Professor Jin did not, at one stage, have China included in his research grant application for which these expenses were incurred. Professor Jin had sought funding to go to the United States.
Allegation 2
“It is alleged that between 1 January and 31 March 2008 you engaged in misconduct or serious misconduct in that, in breach of the following policies of the University of Newcastle: Responsible Conduct of Research Policy (Policy document 873) and the Compliance Policy (Policy document 838), and in breach of the terms of the Australian Research Council Funding Rules for Discovery Projects Commencing in 2005 and the terms of the Funding Agreement in respect of Research Council Grant DP0559647, you charged certain expenditures against Grant DP0559647, in respect of which you were the Chief Investigator, which expenditure was not permitted under the terms of the Grant” 37
[60] The specifics of the allegations were that between 1 January and 31 March 2008 Professor Jin obtained reimbursement through the University’s SpendVision system for the expenses charged against the Research Grant DP0559647, which expenditure was not permitted under the terms of the grant.
[61] These items included meals; car rental and fuel for travelling with colleagues to Charles Sturt University at Bathurst. On these items the Committee found that there was no sanction for the items purchased.
Allegation 3
“It is alleged that between one January 2007 and 31 December 2008 you engaged in misconduct or serious misconduct in that, in breach of the following policies of the University of Newcastle: Responsible Conduct of Research Policy (Policy document 873) and the Compliance Policy (Policy document 838), and in breach of the terms of the Australian Research Council Funding Rules for Linkage Project Commencing in 2003 and the terms of the Funding Agreement in respect of Research Council Grant LP0347156, you charged certain expenditures against Grant LP0347156, in respect of which you were the Chief Investigator, which expenditure was not permitted under the terms of the grant.” 38
[62] The specifics of the allegations were that between 1 January 2007 and 31 December 2008, Professor Jin obtained reimbursement through the University’s SpendVision system for the expenses charged against the Research Grant LP0347156, which expenditure was not permitted under the terms of the grant.
[63] The items purchased under this item included: tourists attraction tickets, digital camera accessories, alterations to airfare bookings, winter clothes, wine, noodle maker, stationery, travel insurance, cosmetics, visa’s, airfares, train tickets, car rental, speaker systems, groceries, bedding and personal items. On these items the Committee found that there was no sanction for the items purchased.
[64] It is important at this stage to note that some of the items may have been legitimate costs under his Outside Studies Program (OSPRO) which is special leave given to academics, but was not legitimate for claiming against ARC grants. I shall return later to the OSPRO leave that was approved for Professor Jin and the constraints that were said to apply to that leave. It is said that the use of ARC funding whilst on OSPRO leave is proscribed.
Allegation 4
“It is alleged that between 1 January 2008 and 31 December 2010 you engaged in misconduct or serious misconduct in that, in breach of the following policies of the University of Newcastle: Responsible Conduct of Research Policy (Policy document 873) and the Compliance Policy (Policy document 838), and in breach of the terms of the Australian Research Council Funding Rules for Linkage Projects Commencing in 2006 and the terms of the Funding Agreement in respect of Research Council Grant LP0669645, you charged certain expenditure against Grant LP0669645, in respect of which you were the Chief Investigator, which expenditure was not permitted under the terms of the grant” 39.
[65] The specifics of the allegation are that between 1 January 2008 and 31 December 2010 Professor Jin obtained reimbursement through the University’s SpendVision system for expenses against the research grant LP0669645, for which expenditure was not permitted under the terms of the grant.
[66] The items purchased included: airfares, telephone installation, wine, internet connection in China, computer notebook, massage and reflexology (Professor Jin argued that this was necessary for his back problem as a result of the long flight) shoes, meals, groceries, ice creams, hat, sunscreen, small camera, wine, restaurant expenses, fuel, Tom Tom GPS machine, personal toiletries, tourist attraction tickets, electric razor, tablecloths (Professor Jin says for use in the workshops) and office stationery at the silk market. On these items the Committee found that there was no sanction for most of the items purchased.
Allegation 5
“It is alleged that between 1 August 2007 and 31 January 2008 you engaged in misconduct or serious misconduct in that, in breach of the University of Newcastle Outside Studies Program Policy (OSPRO) issued to 30 September 1988 (as amended), you obtained reimbursement in respect of expenses you claimed had been occurred in connection with your approved Outside Study Program, which expenditure was not permitted under the terms of the policy.” 40
[67] The particulars of this allegation were divided into three subheadings and dealt with the interaction between his claiming expenses under grant funds whilst on Outside Study Programs.
[68] The particulars were largely identical to allegation 4 and dealt with many of the expenditures but in addition included tourist entry tickets, a camera, wine, stationery, cosmetics, train tickets, car rental, air fares for his spouse and clothes. Whilst the committee noted that some of the expenses may have conformed with University policy, the basis of the charging the expenses, the approval process and the clear business purpose for the expenditure needed examination. The Committee concluded that Professor Jin (notwithstanding what might have been his sincere understanding) was not entitled to use ARC grant funds whilst on OSPRO. In addition, some of the funds used where not appropriate or authorised.
Allegation 6
“It is alleged that between 1 January 2007 and 31 December 2010 you engaged in misconduct or serious misconduct in that, in breach of the University of Newcastle Hospitality Expenditure – Authority to Incur Procedure (Policy document 482) you obtained reimbursement for the purchase of alcohol for hospitality purposes or for the presentation as gifts to associates in China and Australia” 41
[69] The particulars are that during that period Professor Jin obtained reimbursement through the University’s SpendVision system for the purchase of the items mentioned and was not permitted under the terms of the policy.
[70] The Committee examined the terms of the various grants and the University Policy and with one exception was not able to establish that the purchases were permissible.
Allegation 7
“It is alleged that between 1 January 2007 and 31 December 2010 you engaged in misconduct or serious misconduct in that, in breach of the University of Newcastle Fraud and Corruption Prevention Policy (policy document 472) and in breach of your contract of employment, you obtained reimbursement for personal expenses by falsely claiming that such expenditure was incurred in connection with the performance of your duties for the University.” 42
[71] The particulars of this matter referred to expenditure previously mentioned. However under this allegation the distinction was drawn between an item not coming within the terms of any grant, to claims which were knowingly outside policy and with no foundation.
[72] Professor Jin’s responses were that he was on University business and that some of the items (medicines and clothes) were to deal with his medical condition.
[73] The Committee concluded that many of the items were of a personal nature or gifts and did not constitute employment related expenses.
Allegation 8
It is alleged that between 1 January 2007 and 31 December 2010 you engaged in misconduct or serious misconduct in that, in breach of your contract of employment, you dishonestly obtained reimbursement for expenses allegedly occurred and in respect of which you had already claimed reimbursement.
[74] In relation to this allegation, the Committee of Inquiry was not able to reach a conclusion on most of the University’s claims until records were checked. Following further investigation, the committee decided that no conclusion could be drawn in relation to the majority of items contained in the allegation and the Committee noted or accepted Professor Jin’s explanation in relation to other matters.
[75] At the conclusion of its report the Committee noted possible mitigating factors. They were:
- Professor Jin’s health at the time of the OSPRO
- The East Asian concept of “Face” may have been a factor in the context of Professor Jin’s work
- SpendVision presents a significant challenge. This was referred to in the context that claims were approved over many years presumably signalling that there were no problems
- Notwithstanding the number, diversity and range of expenditures made by Professor Jin, the austerity that he often exhibited does not point to a strong desire to seek significant benefit or major gain from his actions. A proportion of the claims may have been claimed against other grants or through the Australian Taxation system.
[76] When the report was given to Professor Calford he carefully considered its contents. He considered the role and responsibility of the Chief Investigator (Professor Jin); the terms of the study program available to academics; the previous interaction with Professor Jin and the weight to be given to some of the material. As to this later point, there were some items which Professor Calford did not take into consideration, as he considered material where there was not an exactness of proof of the allegations made. In this connection it was argued that he applied a standard of proof within the Briginshaw v Bringinshaw 43 approach.
[77] The evidence of Professor Calford was that he believed that findings contained in the report of the Committee of Inquiry constituted serious misconduct within the meaning of Clause 11.1.2 (i) of the Agreement. Professor Calford was of the view that the way in which Professor Jin ran his research grants and did not manage the finances correctly, was a serious impediment to him carrying out his duties. 44
[78] There was one issue which was highlighted in the proceedings. That was a trip to China taken by Professor Jin, when his original application sought funding for a trip to the United States. Professor Calford had specifically advised Professor Jin not to go to China using funds from a particular grant but this occurred. In the view of Professor Jin this was permitted so long as the expenditure was referrable to the research being conducted for which the grant was awarded. In addition, it was stated that the matter had been subsequently resolved. Professor Calford was firm on this matter and gave evidence that a variation in the grant application was needed to justify the change 45.
[79] Professor Calford reflected on a meeting in 2009, where there were concerns expressed about Professor Jin’s alignment of staff to grants. At that time it was the evidence of Professor Calford that Professor Jin’s grants were frozen and that was something he rarely did 46
[80] In dealing with the original claims that Professor Jin had misspent an amount in excess of $100,000, Professor Calford advised that the University would be repaying about $55,000 to the ARC 47
[81] A key difference between the evidence of Professor Jin and that of Professor Calford (drawing upon the evidence of other University witnesses) was that Professor Jin genuinely believed that he was entitled to spend the money he did for a number of reasons. Firstly, he believed that many of the expenses were consistent with the Travel and Maintenance heading in grant approvals and secondly, the discretion in the way he spent the money was consistent with the exercise of academic freedom. On this last point the Committee of Inquiry commented:
“He has claimed that intellectual freedom gives him licence to use his research funds unhindered. He has argued that the grants are one line budgets from which one may seek reimbursement for almost anything that “broadly supports” the research project. “ 48
[82] Professor Calford disagreed with both of those propositions.
[83] I now turn to statutory consideration which the Commission must take into account when considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable.
[84] Section 387 provides:
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.
[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.
[97] Against the background of the matters which the Commission must take into account, I now turn to determine whether the termination of employment of Professor Jin for serious misconduct was harsh, unjust or unreasonable.
[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. 49
[99] In Byrne and Frew v Australian Airlines Ltd McHugh and Gummow JJ said in relation to the predecessor of this provision that:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 50“
[100] Professor Jin has been employed by the University since 31 May 2004. It is acknowledged that he was a leader in his field of research, attracted important research funding to the University as well as post graduate students. There is nothing in the review of the evidence which in any way undermines the academic competence of Professor Jin and his contribution in his field of research. Professor Jin does engage in significant international contact as evidenced by the material presented in this case.
[101] The serious misconduct definition upon which the University relies is contained in clause 11 of the Agreement and relevantly provides:
11.1.2 (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
[102] This must be seen in the context of the other examples contained in the Agreement:
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.
[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. In relation to travel it is said that provided the research undertaken is consistent with the broad scope of the project and no additional expenditure is incurred, such changes to travel destinations may occur.
[104] As to the characterisation of the claimed items, Professor Calford was satisfied, and so am I, that many of Professor Jin’s claims were for personal use and an inappropriate use of grant funds when viewed objectively.
[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. 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. 51
[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.
[108] I now turn to remedy. Section 390 of the Act provides:
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.
[109] The Act makes clear that the Commission must not order the payment of compensation unless the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances of the case.
[110] Having found that the conduct of Professor Jin did not constitute serious misconduct I am drawn back to the Agreement. Clause 12 of the Agreement provides:
12.0 DISCIPLINARY ACTION
12.1 Decisions to discipline a staff member may result from:
(i) Unsatisfactory Performance - Clause 10; or
(ii) Misconduct / Serious Misconduct - Clause 11.
12.2 The decision to take disciplinary action is made by the Vice-Chancellor or appropriate Deputy Vice-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.
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).
[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. In this connection I agree with Professor Calford. The University could not be confident that he would exercise the considerable discretion afforded to the Chief Investigator in a proper way.
[113] This is not a situation where trust and confidence is broadly used as a shield from which to resist reinstatement, but one where there are practical difficulties in having someone else responsible for financial matters when Professor Jin carries the main intellectual control of the research and is the person with whom such a responsibility would normally be entrusted.
[114] There are strong reasons why I would not reinstate Professor Jin and consider some compensation, but in light of the terms of the Agreement I have decided that it is necessary to hear further from the parties as to the relevance or otherwise of the Agreement, as it appears this possible outcome was not fully addressed. To this end the matter will be relisted via video conference to Sydney next Thursday 31 January at 4.30pm.
DEPUTY PRESIDENT
Appearances:
Mr Slevin of counsel on behalf of Professor Jesse Sheng Jin
Mr Warren of counsel on behalf of University of Newcastle
Hearing details:
2012.
Before Smith DP
Newcastle:
August, 21 - 23,
August, 28 - 29,
Sydney:
September, 26.
Final written submissions:
2012.
21 September
Appearances:
Mr Slevin of Counsel on behalf of the applicant, Mr Jesse Sheng Jin
Mr Warren of Counsel on behalf of University of Newcastle
1 Transcript before Drake SDP , 7 October 2011 @ PN8
2 Lawler VP [2011] FWA 7615 @ paragraph 12
3 Exhibit S2 Document 9.
4 Exhibit W8 attachment P
5 Exhibit S2 Document 11.
6 (1996) 66 (IR) 182
7 Ibid @ 184
8 (2006) FCAFC 18
9 Ibid @ 26
10 (1993) 40 FCR 511 @ 518
11 (1984) 2 FCR 419 @ 426
12 (1982)HCA 24
13 (1985) 157 CLR 309 @ 315
14 Exhibit S2 document 16
15 Final Submissions of Professor Jin @ paragraph 5
16 Transcript PN3419 - 3428
17 Exhibit W13 @ paragraph 4.
18 Ibid @ attachment E
19 Ibid @attachment G
20 Exhibit S2 document 9
21 Ibid @document 10
22 Ibid @ document 11
23 Ibid @document 16
24 Exhibit W 15 Attachment Q
25 see paragraphs 45 -32
26 Exhibit W 15 attachment S
27 Professor Gillard’s evidence was that she had worked for 5 Universities, held senior management and board positions, had been a consultant to the Australian National Audit Office, the National Library of Australia, the Queensland Government and held a Fulbright Award at the Smithsonian Institution, Washington DC.
28 Exhibit S2 Document 17
29 See final submission of Professor Jin @ paragraph 88
30 Ibid paragraph 90.
31 Report of the Committee of Inquiry @ page 5
32 Exhibit S2 Document 43
33 Ibid Document 58 & 61
34 Lawler VP [2011] FWA 7615
35 Report of Committee of Inquiry @ page 41
36 This is the system whereby university employees can claim expenses incurred.
37 Report of Committee of Inquiry @ page 52
38 Ibid @ page 61
39 Ibid @ page 83
40 Ibid @ page 103
41 Ibid @page 132
42 Ibid @ page 141
43 (1938) 60 CLR 336
44 See PN 3440 - 3441
45 PN3482 -3489
46 PN3893
47 PN3836
48 Report of Committee of Inquiry @ page 166/7
49 Rice v University of Queensland [1998] IRCA 9 (13 March 1998)
50 (1995) 185 CLR 410 at 465
51 Transcript PN 3666
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