Kweifio-Okai v Australian College of Natural Medicine (No 2)

[2014] FCA 1124

FEDERAL COURT OF AUSTRALIA

Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124

Citation:	Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124
Parties:	GEORGE KWEIFIO-OKAI v AUSTRALIAN COLLEGE OF NATURAL MEDICINE PTY LTD TRADING AS ENDEAVOUR COLLEGE OF NATURAL HEALTH
File number:	VID 305 of 2014
Judge:	TRACEY J
Date of judgment:	21 October 2014
Catchwords:	INDUSTRIAL LAW – applicant’s employment suspended and contract not renewed – whether adverse action taken because the applicant exercised a workplace right by making a complaint in relation to his employment – whether respondent contravened the standards prescribed pursuant to the Tertiary Education Quality and Standards Agency Act 2011 (Cth)
Legislation:	Fair Work Act 2009 (Cth) ss 58, 340, 341, 342, 360, 361 Tertiary Education Quality and Standards Agency Act 2011 (Cth) ss 58, 59, 98, 99, 101, 184, 185, 187, Pt 7, Pt 10
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) (2012) 248 CLR 500 – cited Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 – cited Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 – cited Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal (2005) 87 ALD 1 – cited Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 – considered
Date of hearing:	20 and 21 October 2014
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr M J Follett
Solicitors for the Respondent:	Maddocks

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 305 of 2014

BETWEEN:	GEORGE KWEIFIO-OKAI Applicant
AND:	AUSTRALIAN COLLEGE OF NATURAL MEDICINE PTY LTD TRADING AS ENDEAVOUR COLLEGE OF NATURAL HEALTH Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	21 OCTOBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.If the respondent wishes to pursue an application for costs it should file and serve short written submissions on or before 5 November 2014.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 305 of 2014

BETWEEN:	GEORGE KWEIFIO-OKAI Applicant
AND:	AUSTRALIAN COLLEGE OF NATURAL MEDICINE PTY LTD TRADING AS ENDEAVOUR COLLEGE OF NATURAL HEALTH Respondent

JUDGE:	TRACEY J
DATE:	21 OCTOBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant was employed by the respondent as a Program Leader pursuant to a fixed term contract of employment which commenced on 16 May 2011 and expired on 15 May 2014.  In the latter part of 2013 and the early part of this year disputes arose between the applicant and Dr Seroya Crouch, the respondent’s Director of Education and the applicant’s supervisor, relating to the performance of the applicant’s duties.  This dispute gave rise to allegations of misconduct on the part of the applicant.  The applicant was advised of these allegations by letter dated 14 February 2014.  He was informed that the respondent proposed to investigate the allegations and he was suspended on full pay pending the outcome of the investigation.  The respondent engaged an independent external investigator to conduct the investigation.

2. On 14 April 2014 the investigator reported.  Some, but not all, of the allegations were found to have been established.  The Chief Executive Officer of the respondent, Ms Carolyn Barker, accepted the adverse findings on a provisional basis.  The applicant was so advised in writing on 24 April 2014.  The adverse findings included a failure to observe a lawful and reasonable direction given to him by his supervisor, inappropriate and unprofessional behaviour and instructing an employee not to comply with a management direction.  The applicant was provided with an opportunity to make written submissions relating to the findings.  He provided a short written response which did not address any of the specific allegations and findings.  The applicant was also directed to attend a meeting on 2 May 2014 at which he was to have the opportunity of responding to the allegations and findings.  He was advised that he could be accompanied by a “support person”.  The applicant declined to attend the meeting. 

3. Having considered the external investigator’s findings and the applicant’s responses Ms Barker confirmed the preliminary findings and advised the applicant that the respondent had “elected not to renew [his] contract.”  The applicant was so advised by letter dated 9 May 2014. 

4. The applicant filed an originating application in the Court on 5 June 2014.  He filed an amended application on 30 June 2014. 

5. The amended application was not happily worded.  It lacked clarity and sought some relief which the Court was not empowered to grant.  Making due allowance for the disabilities under which the applicant laboured it is possible to discern three arguable causes of action which he might have.  Two of them relate to his suspension and the respondent’s failure to reappoint him to his position once his contract had expired.  These steps were alleged to have constituted adverse action which, he claimed, was taken, contrary to the Fair Work Act 2009 (Cth) (“the Act”), because of complaints which he had made during the currency of his dispute with his supervisor. His third claim related to alleged contraventions, by the respondent, of standards prescribed pursuant to the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (“the TEQSA Act”).  The trial was conducted on the understanding that these were the claims pressed by the applicant against the respondent.

6. The applicant represented himself.  He relied on four affidavits which he had sworn in the proceeding and an additional affidavit which he had sworn in support of an application for leave to appeal from an interlocutory decision.  The respondent took formal objection to many passages in these affidavits.  The affidavits were admitted subject to these objections.  For reasons which will become apparent it was not necessary to rule on any of the objections.

7. The respondent called evidence from its Chief Executive Officer who had made the decisions to suspend and not to re-engage the applicant.  She had sworn two affidavits in which she explained her reasons for her decisions relating to the applicant and specifically denied having taken the action because of any complaint made by him.

8. Both witnesses were cross-examined shortly and in respect to peripheral matters. 

   ADVERSE ACTION

9. The applicant’s case was that his suspension and the refusal by the respondent to renew his contract of employment both constituted adverse action within the meaning of s 342 of the Act. He further complained that these steps had been taken because he had made internal complaints about academic standards and procedures within the College.

10. The respondent accepted that the suspension and failure to re-engage the applicant both constituted adverse action within the meaning of the Act. It also conceded that some, but not all, of the communications relied on by the applicant constituted “complaints” within the meaning of the Act. It maintained, however, that the adverse action had not been taken “because” of the making of the complaints but rather because of the conduct of the applicant.

11. Both concessions were properly made.

12. The decision to suspend the applicant altered his position to his prejudice and the refusal to re-engage him amounted to a refusal to employ a prospective employee. Both steps, as the applicant contended and the respondent conceded, constituted adverse action as defined by s 342(1) of the Act.

13. The applicant referred, in his written submissions, to having made a considerable number of internal complaints about the manner in which changes had and had not been made to the bio‑science curriculum.  Some of the documents to which he referred plainly contained no complaints by him.  Appraisals of his performance by others fall into this category.  On the other hand two e-mails from him to Dr Crouch, one on 15 December 2013 and another on 11 February 2014 did contain complaints by him.  In the former he objected to Dr Crouch having commissioned other staff members to rewrite the course content of certain subjects without first consulting him.  He also objected to the reduction of skills assessments and the shifting of one subject from one department to another.  In the latter (to which further reference will be made) the applicant alleged that Dr Crouch had interrupted and put obstacles in the way of quality reviews of all the bio-science subjects.

14. Section 340 of the Act provides that an employer must not take adverse action against an employee ‘because’ the employee has exercised “a workplace right”. A “workplace right” is defined in s 341(1)(c)(ii) to mean, among other things, that an employee is able to make a complaint in relation to his or her employment. In Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Dodds-Streeton J noted that the Act did not contain a definition of the word “complaint.” Having reviewed the authorities she held that a complaint could be treated as having been made if the “relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”: see at [626] and, generally, at [576]-[631]. Her Honour also held that the source of the employee’s ability to make such a complaint could be founded in his or her contract of employment. Such a contract could incorporate policies, such as grievance policies, which conferred rights and imposed duties on employees and employers: see at [633]-[641]. The respondent had in place a grievance policy to which the applicant was entitled to have resort. Given the respondent’s concession that relevant complaints had been made, it is not necessary to examine this policy further.

15. Section 360 of the Act contemplates that there might be multiple reasons for the taking of adverse action. In that event, it provides that, if one of the reasons is a proscribed reason, there will have been a contravention of the Act. Section 361 provides that, if an applicant alleges that his or her employer took adverse action for a proscribed reason, it will be presumed that the action was taken for that reason unless the employer proves otherwise.

16. Ms Barker gave evidence that the respondent is a private educational institution in the complementary medicine sector.  It offers seven Bachelor level degrees.  As Program Leader, the applicant was responsible for the implementation of the bio-sciences curriculum, the quality of assessments, the employment of staff and the timetabling of bio-science subjects.  He reported to Dr Crouch.  Dr Crouch, as Director of Education, was responsible for determining the College’s subject offerings and curriculum and course materials.

17. The catalyst for Ms Barker’s decision to institute an enquiry into the conduct of the applicant and to suspend him pending the outcome of the enquiry was the content of e-mails which had been sent by the applicant on 10 and 11 February 2014.

18. The first of these e-mails was sent by the applicant to Ms Jenny Yeeles and was copied to Dr Crouch.  Ms Yeeles reported to the applicant.  The e-mail read, in part:

    ‘Dear Jenny

    I read below an instruction from my line manager DOE Dr Seroya Crouch to abandon the changes to BIOH122 as has been agreed between us over review of the subject in the past three months.

    I wish to clarify a few legal issues

    1.        Your current Position Description and contract of employment indicate that you report to me as your only line manager.  Therefore you are not obliged to comply with any direction to you from any quarter which is contrary to my instructions especially if the one offering the contrary instructions is of the knowledge that the instruction to you is contrary to what I may have given.

    2.        In Kweifio-Okai vs. RMIT University, the High Court of Australia ruled that an employee is not obliged to carry out directives from an employer which are deemed to be unlawful and unreasonable.  On one reading, the directive from my manager to you to refrain from making changes to the subject outline and content of BIOH122 is both unlawful and unreasonable.  On one hand is the regulatory requirement to uphold the sanctity of the accreditation process i.e. to teach to materials as accredited.  On the other, is the requirement for continuous quality review and update of course materials in tune with emerging best practices.  In an academic rather than a military environment the latter would always prevail, not in isolation but in deference to the former.

    3.        There is a further legal matter you may like to consider.  The point is made that the TLC has rejected the proposed BIOH122 changes.  I state categorically that the TLC ruling was illegal, not least because there was no one, you nor I, to defend our case, i.e. to be heard.

    On the basis of the above, I would instruct you not to proceed with reinstating the biology project until I have sought further advice in the next 48 hours.”

19. On the following day the applicant wrote an e-mail to Dr Crouch.  In that e-mail the applicant told Dr Crouch that:  “If you block the changes to the BIOH122, I would make a formal complaint to the US ambassador to Australia.”

20. Ms Barker was concerned about the applicant’s refusal to follow instructions from Dr Crouch and his instructing his sub-ordinates to do the same.  Ms Barker deposed that:

    “16.      … I decided that an independent investigation into the Applicant’s conduct was necessary and appropriate.  I made this decision because I considered that the Applicant’s conduct as reported to me and as was apparent from the emails, was potential misconduct, and I also considered that the relationship between Dr Crouch and the Applicant, who was a direct report of Dr Crouch, was untenable.

    17.      I did not consider that the Applicant was showing any inclination to comply with management directions, and I considered that the Applicant’s conduct suggested that he was likely to continue to create discord and dissent between staff within the biosciences department, and persons in managerial positions (such as Dr Crouch).

    18.      These were my only reasons for deciding to commence an investigation, and these were also my only reasons for determining that the Applicant should be stood down from his employment, on full pay, whilst the independent investigation was being undertaken.”

21. The independent investigation was severely critical of the applicant’s conduct.  It found that the 10 February 2014 e-mail to Ms Yeeles undermined Dr Crouch and contained material which was intimidating and “particularly unprofessional”.  His direction to Ms Yeeles not to comply with Dr Crouch’s instructions involved a lack of understanding or deliberate lack of recognition that he was obliged to act in accordance with Dr Crouch’s directions and was not entitled to direct a sub-ordinate to act otherwise.

22. The investigator found that the 11 February 2014 e-mail to Dr Crouch was threatening, inappropriate and unprofessional. 

23. The enquiry also found that the applicant had acted inappropriately and unprofessionally in other dealings he had had with Dr Crouch prior to these events.

24. Having considered the investigator’s report and the applicant’s response to it Ms Barker determined that she would not offer the applicant a further contract of employment.  She deposed that this decision was based exclusively on the facts, as found by the external investigator.  She said that she so determined for three reasons.  They were that:

    “(a)     [T]he findings demonstrated conduct inconsistent with the Respondent’s Code of Conduct and inconsistent with the ordinary behaviours I expected of a senior academic at the Applicant’s level of seniority;

    (b)       I considered that the relationship of trust between the Applicant and the Respondent had broken down, and as the Respondent [sic] had showed no contrition or remorse, or demonstrated any ability to self-assess and accept the advice and instructions of his superiors (irrespective of his own personal views), I did not consider there to be any way to rebuild the relationship of trust.  On the basis of the findings, I could not trust that the Applicant would follow organisational directions with respect to resource allocation, strategy and direction in the future; and

    (c)       [T]he substantiated allegations and particulars demonstrated to me that the Applicant was not the appropriate candidate to lead the department going forward, as he was not willing to work in accordance with the strategic direction of the Respondent and in accordance with the instructions and directions of his superiors.”

25. Ms Barker expressly deposed that her decision had not been made because of any complaint made by the applicant.  She was unaware of most of the communications which the applicant contended contained complaints relating to his employment.  To the extent that she was aware of the contents of some of these communications they played no part in her decision.

26. When the applicant cross-examined Ms Barker he did not seek to suggest that she had acted for any reason other than those to which she had deposed.  Nor did he challenge in any way her denial that she had acted against him because he had made complaints about the manner in which Dr Crouch and other employees of the respondent had performed their duties.

27. In the short time that Ms Barker was in the witness box she answered questions in a confident and responsive manner.  I had no reason to doubt the veracity of any of her answers.  I accept her evidence.

28. I have also examined the evidence relating to the circumstances surrounding the making of the two impugned decisions.  There is nothing in that evidence which is inconsistent with Ms Barker’s account of her reasons for taking the adverse action against the applicant.  On the contrary, the terms of the e-mails which led Ms Barker to suspend the applicant and the investigator’s report on which she acted in determining not to re-engage him are suggestive of conduct which would justify, independently of any other considerations, the taking of the relevant adverse action.

29. The question which I am called on to decide is whether one or more of the operative and immediate reasons for Ms Barker having taken adverse action against the applicant was his exercise of the workplace right to make a complaint in relation to his employment:  Board of Bendigo Regional Institute of Technical and Further Education v Barclay(No 1) (2012) 248 CLR 500 at 517, 542, 544 and 546; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [7] and [89]-[90]. The acceptance by me of Ms Barker’s unchallenged evidence means that the presumption created by s 361 of the Act has been displaced. The question must be answered in the negative.

30. The applicant sought to take issue with the merits of the two decisions taken by Ms Barker. He obviously considered that she had made the wrong decisions. Although, with hindsight, he conceded that some of his actions might reasonably have been regarded as being “inflammatory”, he thought that, had Ms Barker been better informed about the circumstances in which he had found himself in dealing with Dr Crouch, she would have neither suspended him nor determined not to re-engage him. In a case such as the present it is not the role of the Court to pass upon the merits of the decisions which give rise to adverse action. What the Court is required to do is to decide whether the respondent has contravened the Act in the manner alleged. For the reasons I have given I do not consider that the respondent has done so.

1. The two “adverse action” allegations have not been made out.

   THE STANDARDS

2. In his amended application the applicant sought declarations that the respondent had:

   “a.       Contravened Provider Course Accreditation Standards 6.1 in the Commonwealth of Australia.  Tertiary Education Quality Standards Agency Act 2011, Higher Education Standards Framework (Threshold Standards) 2011 which states ‘The higher education provider ensures the course of study is systematically updated, through internal revision and external reviews, and that its coherence is maintained’.  And as well

   b.        Contravened Provider Course Accreditation Standards 1.3 in the Commonwealth of Australia.  Tertiary Education Quality Standards Agency Act 2011, in Higher Education Standards Framework (Threshold Standards) 2011 which states ‘the content of the course of study is drawn from a substantial, coherent and current body of knowledge and scholarship in one or more academic disciplines and includes the study of relevant theoretical frameworks and research findings’.

   c.        Contravened Provider Registration Standards 5.1 in the Commonwealth of Australia.  Tertiary Education Quality and Standards Agency Act 2011, Higher Education Standards Framework (Threshold Standards) 2011 which states ‘The higher education provider has sufficient appropriately qualified personnel to manage and to provide academic leadership for the higher education provider’s higher education operations’ in that Respondent’s Director of Education (DOE) was not sufficiently qualified to provide academic leadership and manage compliance with the Provider Course Accreditation standards with respect to Bioscience subjects.”

3. The standards which the respondent is alleged to have contravened have been made under the TEQSA Act. The Higher Education Standards Framework (Threshold Standards) 2011 were made by the Minister under s 58 of that Act. Paragraph 5.1 of the Provider Registration Standards provides that:

   “The higher education provider has sufficient appropriately qualified personnel to manage and to provide academic leadership for the higher education provider’s higher education operations.”

   Paragraph 1.3 of the Provider Course Accreditation Standards provides that:

   “The content of the course of study is drawn from a substantial, coherent and current body of knowledge and scholarship in one or more academic disciplines and includes the study of relevant theoretical frameworks and research findings.”

   Paragraph 6.1 of the Provider Course Accreditation Standards provides that:

   “The higher education provider ensures the course of study is systematically updated, through internal revision and external reviews, and that its coherence is maintained.”

4. Under s 59 of the TEQSA Act, the Agency may review or examine any aspect of a provider’s operations to assess whether the provider continues to meet the standards.  If the provider fails to do so the Agency may take action under Part 7 of the TEQSA Act.  That action may include cancellation of the provider’s registration or cancellation of the accreditation of a particular course of study: see ss 98, 99 and 101. If accreditation or registration is cancelled by the agency Part 10 provides for a review process. It commences with an application for internal review (ss 184 and 185) and, if this is unsuccessful, further review by the Administrative Appeals Tribunal (s 187).

5. The respondent objected to the granting of any form of declaratory or other relief in relation to these alleged contraventions of the standards.  It contended that there was no relevant “matter” upon which the Court could adjudicate.  It also submitted that, in any event, the applicant lacks standing to seek such declarations.  There is force in both these submissions.  It is not, however, necessary to pursue them in any detail.

6. This is because the applicant has failed to adduce any or any sufficient evidence which would warrant the making of the proposed declarations.  The applicant has made a series of unsubstantiated assertions relating to the operations of the respondent.  None of them, however, constitute evidence of a relevant contravention.  No expert evidence was called.

7. Even had I been persuaded otherwise I would not have been prepared, as a matter of discretion, to grant the relief sought.  The standards are expressed in broad and general terms.  A determination of whether or not a provider had complied with them will, almost always, involve the need for value judgments to be made by people with the necessary expertise.  Under the TEQSA Act that task, initially, at least, is placed in the hands of the Agency.  Provision is made for internal review and then, if need be, a further decision on the merits by the Administrative Appeals Tribunal.  These entities are much better placed than the Court to make the necessary judgments and assessments:  cf:  Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal (2005) 87 ALD 1 at 3; Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 at 34. A further consideration which tends against the grant of relief (even if otherwise available) is the fact that the applicant has not referred any of his complaints to the Agency.

8. No case for the making of declarations relating to alleged contravention of the standards has been made out.

   DISPOSITION

9. The applicant’s application must be dismissed.  If the respondent desires to press any application for costs it should file and serve short written submissions within 14 days.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        21 October 2014