Kweifio-Okai v RMIT
[1997] IRCA 233
•25 July 1997
DECISION NO:233/97
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
VALID REASON - whether OPERATIONAL REQUIREMENT - whether failure to comply with lawful and reasonable direction of location transfer - OPPORTUNITY TO RESPOND - whether applicant given opportunity to be heard in relation to selection for transfer - REMEDY - consideration of applicant’s conduct in refusing transfer - whether REINSTATEMENT impracticable - possibility of re-establishment of satisfactory working relationship - COMPENSATION - likelihood of applicant’s employment to have continued -
Workplace Relations Act 1996 ss170DC, 170DE, 170EA, 170EE
Universities and Post Compulsory Academic Conditions Award 1995
KWEIFIO-OKAI -V- RMIT
VI 2661 of 1996
PARKINSON JR
MELBOURNE
25 JULY 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) VI 2661 of 1996
VICTORIA DISTRICT REGISTRY )
B E T W E E N: George KWEIFIO-OKAI
Applicant
AND: RMIT
Respondent
JUDICIAL REGISTRAR : PARKINSON
PLACE : MELBOURNE
DATED : 25 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application pursuant to Section 170EA of the Workplace Relations Act, 1996, be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) VI 2661 of 1996
VICTORIA DISTRICT REGISTRY )
B E T W E E N: George KWEIFIO-OKAI
Applicant
AND: RMIT
Respondent
JUDICIAL REGISTRAR : PARKINSON
PLACE : MELBOURNE
DATED : 25 JULY 1997
REASONS FOR JUDGMENT
This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996, (‘the Act’). The applicant was employed by the Royal Melbourne Institute of Technology, at its Latrobe Campus, as a Senior Lecturer in the Anatomy and Physiology Department. He commenced employment on 15 December, 1986, as a casual tutor and was appointed to the position of Senior Lecturer on 11 July, 1994. His duties and responsibilities in the position included both the teaching and supervision of graduate students and research. The research component of his work was of significant importance and it was acknowledged that the applicant’s research undertakings were extremely valuable to the respondent and the community. The applicant’s employment was terminated by the respondent on 14 October, 1996. The respondent contends that it had valid reason for the termination, as a consequence of the applicant’s failure to obey its direction to commence working at the City Campus. The respondent contends that its direction to transfer location was a reasonable direction in the circumstances, and that such a direction was in accordance with the terms of the Universities and Post Compulsory Academic Conditions Award 1995, (‘the Award’), and the applicant’s contract of employment and was lawful. It further contends that the transfer arose as a result of the operational requirements of the respondent and whilst related to matters arising from the applicant’s relations with other employees, was not a disciplinary or penalty measure.
The applicant contends that the transfer was unreasonable and not in accord with the terms of the Award or the contract, and was as a consequence of the respondent implementing disciplinary measures, without regard to the provisions of the Award. The applicant contends that there was no operational requirement and that the transfer was motivated by disciplinary considerations. It is appropriate to set out the background to this matter and I now do so, together with my findings on the evidence.
Between 1992 and 1996 difficulties arose between the applicant and other employees of the respondent. These difficulties were fundamentally personality difficulties, although described by the applicant as being as a consequence of his instructions not being carried out by various administrative employees and motivated by discriminatory behaviour, based upon race. It appears from the evidence that there was a gradual deterioration in the relations between the applicant and in particular the technical and administrative staff of the respondent, which manifested in an identifiable way in about 1991. Prior to that time there appears to have been no significant difficulties in relationships and the evidence is that the applicant enjoyed a close and friendly working relationship with the secretarial employees in the department. I do not intend to set out all of the matters evidenced, but now proceed to identify the principal and more significant events which identify a process of deterioration in relations.
In 1991 the applicant corresponded with the Laboratory Manager of the department as to matters involving his use of the photocopier. In 1992 he corresponded with the Head of the Department, Professor Reichenbach, as to allegations of racist behaviour directed towards himself. He circulated this correspondence throughout the department. In that correspondence the applicant indicated that he did not wish any to discuss the allegations of racism any further. In 1994 the applicant was appointed to the position of senior lecturer which involved permanent tenure. On 19 May, 1995, the applicant entered into correspondence in relation to his criticism of the Faculty Research and Higher Degrees Committee procedures and in the course of that correspondence, utilised what might be described as unreasonable and rather harsh language towards the intended recipient of the letter, the Chairperson of that Committee, Associate Professor Lawry. In that letter the applicant concluded by advising:
(Exhibit R1 Document 7)
“ Since you have played a major role in the present rules governing postgraduate applications - at the faculty and university levels you, will need to fuck off completely from the committee to enable the needed reforms. ”.
The letter was endorsed “ respectfully presented ” and signed by the applicant. This correspondence was sent also to the head of the anatomy and physiology department.
On 26 May, 1995 the applicant sent a memorandum to the department secretary, Ms Jennifer Szwede, an administrative and clerical employee, advising that he no longer required her secretarial services, because of her collusion with others in the department against him over the previous 2 years. (Exhibit R1 Document 8) A reference was made in that correspondence to the recipient’s emotional state. This correspondence was also sent by the applicant to the Department Head, with a notation indicating that he did not think that any discussion of the matter would be necessary.
On 5 June, 1995, the applicant circulated a notice in the department alleging racist conduct on the part of a staff member and identifying various other matters of friction in the department. In that correspondence the applicant advised:
(Exhibit R1 Document 9)
“ I will remain restrained so long as there are no further developments. ”.
The applicant was advised by the department head that it was necessary for discussions to occur in relation to the allegations of racial discrimination and his method of communicating with staff. The applicant declined to meet with the department head, on the basis that the allegations of discrimination could not be investigated by the university and that he had not identified any particular person. The necessity for a meeting was pressed by Professor Reichenbach and in the course of the meeting the applicant was informed of the need to address his concerns in a more appropriate manner and to moderate his form of speaking to and of people.
In November, 1995, relations between the applicant and the non academic staff in the department significantly deteriorated. This is evidenced by correspondence and conversations from the applicant to the technical and secretarial staff and other administrative staff. In December, 1995, the applicant posted a notice, to Ms Szwede, one of the secretarial staff in the following terms:
(Exhibit R1 Document 16)
“ Why the fuck is the attached not on every notice board in the department, Madam Secretary ? ”
The notice in question related to a faculty research forum to be held at the Swanston Street Campus of the respondent. Ms. Szwede’s evidence was that she was shocked and distressed by the contents of the note and by the hostility of its tone. On 20 December, 1996, Ms. Mitchell, after having complained to the Department Head of the applicant’s attitude towards her and at the latter’s suggestion, approached the applicant with a view to resolving the difficulties between them, explaining that she didn’t wish to upset him and that she wanted to be of assistance to him. The applicant rejected the approach and Ms. Mitchell’s evidence and note of the event, (Exhibit R1 Document 17), was that the applicant advised her that he would not discuss the matter with her and said:
“ ...that he would use physical and verbal abuse on people in this university next year. ”
This was the cause of some distress to Ms Mitchell who reported the content of the conversation to the Department Head.
On 21 December, 1995, the Department Head wrote to the applicant expressing his concern as to the breakdown of relations between the applicant and other staff over the period. (Exhibit R1 Document 18) In that letter the applicant was instructed to make an appointment early in the new year to discuss the respondent’s concern. The applicant responded in a letter dated 2 January, 1996, in which he attacked various members of staff and referred to various matters of personal concern to those employees. (Exhibit R1 Document 19) The contents of the letter focused principally upon issues which bore no relevance or relation to the workplace concerns of the respondent.
There continued to be further correspondence from the applicant to other members of staff during this time, together with various incidents of conversations in which the applicant behaved erratically.
However there was a more alarming aspect to the correspondence which had developed in the period and that was a tendency for the applicant to express himself in more explicit threatening terms. This had occurred first in the discussion with Ms Mitchell and in a veiled manner in the earlier correspondence above with Mr Smith.
However in January, 1996, in response to a relatively mild letter addressing the issue of use of the shared laptop computers, the applicant addressed himself in the following terms to Mr Smith, the department Technical Manager:
(Exhibit R1 Document 21)
“ I have just finished reading your rather interesting response to my previous letter. The reason for your previous letter was to stop you coming back to me with your moral righteousness as in ‘ the spare Powerbooks are for all to share.’ I anticipated well. Now who the fucking poofter are you to demand that ‘‘I’ may keep the Powerbook until Monday 4 March.’ I reiterate the point of the previous letter - I will not be returning the Powerbook in the nearest future. Even a dickhead like you should get it this time!
George. ”
The letter was completed with a handwritten Post Script by the applicant in the following terms:
“If you verbally approach me on this topic I could be violent. That was my resolution for 1996 .”
In the course of all of these events it is apparent that the relevant authorities in the university had been at pains to attempt to resolve the difficulties by way of discussion and counselling. There were numerous occasions where the Department Head spoke to the applicant with a view to resolving the difficulties between him and the other staff. It is clear from the evidence that significant allowance was being made for the applicant’s conduct by both the university authorities and the other staff, both academic and non academic, on account of what was initially tolerated as eccentricity on the part of an extremely clever and dedicated academic.
However, from the evidence of Ms Mitchell, Ms Szwede and Mr Smith, which is accepted by the Court, it is clear that they were afraid for their own physical safety by March, 1996, and their evidence of the demeanour of the applicant, during the course of their conversations and interaction with him at this time and in the preceding few months, satisfies me that their concerns were not unreasonable.
The evidence in these proceedings is principally of a documentary form and the applicant does not in his evidence dispute the conduct which is alleged against him. His evidence was that the interpretation given to the conduct by the employees and the university authorities was incorrect and that there was an overreaction to the references to violence, which the applicant described as only being in jest. I do not accept that the nature of the references to violence or their context can reasonably be attributed to a joke or jest, nor can they be explained by reference to an inability on the part of the applicant to place such references into the proper language context as a consequence of English being his second language. Nor could the responses of the applicant be judged in any sense as reasonable or understandable responses to the events or circumstances to which he was replying. The circumstances which are the subject of the most vitriolic or threatening responses were minor instances of administrative inconvenience to the applicant. Whilst the applicant explained his references to violence in the correspondence as being in response to threatened violent acts against him, there was no evidence of any such threats.
Similarly, whilst the applicant alleged racial vilification against him, I am satisfied that there is no evidence in these proceedings of such allegations. I did not find the applicant to be a satisfactory witness and I prefer the evidence of Ms Mitchell, Ms Szwede and Mr Smith, as to the events and incidents in the workplace.
As a consequence of the increasingly threatening tenor of the applicant’s conversations and correspondence, the Department Head raised the issue of the applicant’s conduct and relations with other staff with the Dean, Professor Story. By way of a memorandum dated 6 March, 1996, a meeting was scheduled to take place between Professor Reichenbach and the applicant on Thursday 7 March, 1996. (Exhibit R1 Document 24) In response to that memorandum, the applicant replied on 7 March, as follows:
(Exhibit R1 Document 25)
“ I respond to yours dated 6/3/96 by saying simply that the situation between me and certain staff has reached a stage where I am ready to use legitimate violence, physical and verbal, to have peace of mind in the department. For regress into a ‘primitive African state’ to defend myself. Therefore things being under your proposed meeting on Thursday 7/3 may not be necessary.
I am in the process of completing the typing of two grant applications (both due on 23/3/96). It will be nice if I have them on Tues 12 March, to get comments from fellow workers. Therefore unless you think the meeting is necessary, I prefer that we postpone or cancel it.
Many Thanks
George ”
A meeting took place on 7 March, 1996, in the course of which the applicant was informed that his threats of violence were unacceptable and that the matter had been referred to the Dean, Professor Story. The applicant was invited to produce to the Dean any evidence of racial or personal vilification which the applicant alleged to have been directed against him. Subsequently the matters of concern were brought to the attention of the University Vice Chancellor, Dr. Peter Frost. In this period members of the staff complained to their union about their concerns as to their safety and well being. The union raised the issue with the respondent. Professor Story’s evidence was that he felt, upon speaking to the applicant and reviewing all of the correspondence, that there was sufficient basis to be concerned as to the applicant’s potential for violence and that he decided the applicant ought remain absent from the campus. He invited the applicant not to attend at the campus for a week.
On 20 March, 1996, Dr. Frost, on the advice of Professor Story, formally advised the applicant that he was being suspended from duties immediately in accordance with the Award disciplinary provisions. The grounds for the suspension and the allegations of misconduct were specifically based upon the correspondence set out herein and in particular the threats of violence made by the applicant. The applicant was advised of his entitlements pursuant to the disciplinary procedure and that a misconduct investigation committee was to be convened.
On 20 March, 1996, the inquiry was commenced in relation to the applicant’s conduct. The inquiry was constituted under the provisions of the Award and in the event that a finding negative to the applicant was made, various disciplinary measures were available, including fines, demotion, transfer from one campus to another, or the imposition of a reprimand. The applicant made a submission to the inquiry dated 1 April, 1996. There was a finding of misconduct against Dr. Kweifio-Okai and the penalty determined to be imposed was that of a reprimand and counselling. The applicant was informed verbally of the outcome of the inquiry and then in writing of this decision on 27 May, 1996. (Exhibit R1 Document 40) The written advice was contained in a letter wherein the applicant was also advised that the respondent was intending to undertake a departmental review. The applicant was advised of this fact at a meeting held that day.
It is apparent from the evidence of Professor Story and Mr Raymond, which I accept without reservation, that despite the progression of the disciplinary inquiry, there continued to be serious concerns held by the respondent as to the proper functioning of the Anatomy and Physiology Department, as a result of all of the matters which had arisen between the staff of that department, including Dr Kweifio-Okai. The respondent engaged a consultant to review the workplace and to make recommendations in relation to overcoming any difficulties in staff relations which may be identified as existing. Whilst the consultant’s brief was not to revisit the disciplinary charges of misconduct against the applicant, nevertheless the brief was to ascertain the basis for the problems in the department and to make recommendations as to how those problems could best be resolved. In the course of this review all employees were spoken to, including the applicant, and had an opportunity to put submissions to the review.
It is clear on the evidence in these proceedings that the problems which existed in the department arose directly from the deterioration in the relations between the applicant and other staff members, and in particular the manner in which the applicant had written of his concerns and expressed his hostility. This conclusion was also reached by the consultants together with other conclusions as to the manner of conflict resolution within the department. To this extent the review considered the same matters as the disciplinary proceeding and ultimately reached a conclusion as to recommendations which involved transferring the applicant from his employment location. The outcome of the review was that recommendations were made that the applicant be moved in his employment to the City Campus of the respondent and that various changes be made to the manner in which communication occurred and conflict resolved in the department.
The recommendations were adopted by the Vice Chancellor and the applicant was advised on 11 July, 1996, of the respondent’s intention to relocate him to the City Campus. The respondent sought to initiate discussions with the applicant as to how his research and teaching requirements could be accommodated upon the transfer. On 15 July, 1996, the applicant objected to the proposed move on the grounds that it would interfere with his supervision of students and with the conduct of his research. (Exhibit R1 Document 55) The applicant refused to accept the transfer and declined to meet with the respondent to identify any requirements of facilities he may have. He also refused to attend for work at the City Campus of the respondent. The applicant maintained his refusal to attend for work in the period 19 July, 1996 to the date of the constituting of the misconduct inquiry by the respondent. He declined to constructively discuss the issue with the respondent’s officers or to enter into any sensible or bona fide negotiations or discussions as to the matter.
As a consequence of this refusal, on 19 August, 1996, the applicant was charged with serious misconduct, pursuant to the Award disciplinary procedures, and after the conclusion of a hearing on 13 September, 1996, the disciplinary body decided that the applicant had unreasonably refused to relocate the employment and that there were no mitigating circumstances as to why he refused. (Exhibit R1 Document 72) These findings were the subject of recommendations to terminate the applicant’s employment made by the respondent’s human resources group to the Acting Vice Chancellor on 24 September, 1996, which recommendations were accepted by the Acting Vice Chancellor, Ms Dunkin. The applicant was advised in writing on 14 October, 1996, of the decision of the respondent to terminate his employment. (Exhibit R1 Document 80)
In this case it is contended on behalf of the applicant, that when the respondent did not achieve the disciplinary result it sought out of the disciplinary procedures, it simply substituted the relocation provisions and proceeded to obtain the transfer result that way. It is contended that it was not open to the respondent to take such a step and that in doing so it misapplied the provisions of the Award and is in breach of the terms of the contrac of employment relating to transfer. Whilst there is some merit in the submission that the Award provision for transfer by way of relocation expenses, is not a disciplinary procedure and should not be used as such, I am not satisfied in this case that the respondent took such a course.
The evidence satisfies me that there were significant operational problems in the department which, irrespective of the outcome of the disciplinary proceedings, the respondent had a duty to address. The respondent’s duty in this regard arose out of its obligations to its students to ensure that the study and research environment operated as efficiently and effectively as possible and also out of its responsibility to ensure a congenial, safe and healthy workplace for its employees. In the circumstances of this case I am not satisfied that the operational review was anything less than a bona fide attempt on the part of the respondent to meet its obligations in all of these respects. I am also satisfied that the provisions of the Award and the provisions of the employment contract contemplate a situation where transfer is necessary as a result of a breakdown of relations between employees at a worksite, irrespective of who is at fault for the breakdown of relations. However implicit in those provisions is an obligation upon the respondent to ensure that in determining who is to be moved, there is a reasonable and rational basis for the selection of any particular person. In this case I am satisfied that the selection of the applicant resulted in part from his own blameworthy conduct, but also as a consequence of the practicability of relocating him rather than a large group of other employees. I am satisfied that the respondent properly exercised its capacity to make the selection and decision to transfer. I am satisfied that the decision to transfer the applicant was both a lawful and reasonable decision in the circumstances.
I am satisfied that the respondent had valid reason to terminate the employment of the applicant based upon its operational requirements and the conduct of the applicant in refusing to attend for work as directed lawfully and reasonably, in accordance with the Award and the terms of the employment contract. In my view the respondent acted reasonably at all times in attempting to resolve the difficulties in staff relations, which in my view arose principally from the applicant’s conduct. I am satisfied that there has been no contravention of ss170DE(1) of the Act.I turn now to consider the operation of s170DC.
The applicant contends that the respondent, contrary to its obligations pursuant to s170DC of the Act, failed to accord him the opportunity to be heard in relation to the allegations made against him. Whilst it is clear that the ultimate decision maker did not hear directly from the applicant in relation to the allegations against him, I am satisfied that the appointment by the respondent of a disciplinary committee, pursuant to the Award provisions, satisfies the obligations of the respondent in relation to the primary aspect of according the employee an opportunity to be heard. However there is another aspect to the operation of s170DC, which must be met. That is the obligation to accord the applicant a full and proper opportunity to put those matters of relevance to the applicant’s defence of the allegations against him.
One aspect of the conduct of the proceeding, which was not in my view satisfactory, was the failure of the body to allow the applicant an opportunity to be heard in relation to the matters of merit relating to his selection for transfer. Whilst it is true that the body was not hearing charges relating to the applicant’s conduct in the workplace, nevertheless those matters were in the consideration of the respondent in making the decision to transfer him and the applicant was entitled to be heard in relation to those matters. This is because those matters directly influenced the decision of the respondent to select the applicant for transfer. The internal tribunal, in conducting an investigation and hearing on behalf of the respondent into the applicant’s alleged misconduct, as a result of the refusal to transfer, determined that the direction to transfer was lawful and appropriate, without considering the issues motivating the transfer, such as the interpersonal and staff relations issues in the department which motivated the transfer. It did not suffiiciently consider the basis or reason for the direction to transfer. The applicant sought to address these issues and in particular the issue of interpersonal relations in the department and he was refused the opportunity to do so by a ruling of the disciplinary committee. In so refusing, the committee deprived the applicant of an opportunity to both address his reason for the failure to transfer and to be heard as to his explanation of his conduct, which resulted in the transfer.
In so far as this disciplinary inquiry was a new and separate inquiry to anything that had gone before and is relied upon by the respondent as establishing its obligations pursuant to s170DC, a full consideration of all issues the applicant sought to raise in his own defence was required, irrespective of whether in other forums on previous occasions those matters had already been brought to the attention of the respondent. In my view, in this respect, the applicant was not in the course of that hearing, accorded adequate opportunity to be heard in relation to the allegations made against him as to his conduct. Given that there were additional documents containing recommendations created by the Human Resources Group and considered by the ultimate decision maker without further reference to the applicant for a response the matters to which I have referred are significant and ought to have been heard. Consequently there has been a failure by the respondent to comply with the requirements of s170DC of the Act.
However, for reasons to which I now turn, I am satisfied that in the circumstances of this case it is not appropriate to order any remedy pursuant to s170EE as a consequence of this contravention.
In particular I have formed the view, having regard to the applicant’s evidence and demeanour, that the applicant neither accepts nor recognises any responsibility on his own account for the events which took place. Nor is there any recognition on his part of the impact or seriousness of the threats of violence he made during the course of the employment. Further I accept the evidence of the witness, Ms Szwede, as to her recognition of the applicant’s voice on the telephone on 8 October, 1996, wherein the applicant embarked upon a further threatening and abusive conversation against her and other university employees. I consider that this is an appropriate characterisation of the tenor of the telephone conversation. In considering the exercise of the discretion, pursuant to s170EE(1) of the Act, I have also taken into account the conduct of the respondent in the course of the employment in tolerating the conduct of the applicant over such an extensive period of time and attempting by a number of means to resolve the issue in a manner least damaging to the applicant. The applicant’s own conduct in refusing the transfer was the principle factor in any losses sustained by him and consequently in the circumstances it is not appropriate to make any order as to remedy pursuant to s170EE of the Act.
Whilst the above conclusion will result in an order that the application be dismissed, it is however appropriate to set out my conclusions as to the remedies available pursuant to ss170EE(2) and ss170EE(3) of the Act. The matters discussed in relation to the exercise of the initial discretion in ss170EE(1) apply equally to a consideration of the question of practicability of a reinstatement order, to either the Bundoora Campus or the alternative campus at Melbourne. In addition I am satisfied that an order for reinstatement would be impracticable. Having regard to my findings in these proceedings as to the applicant’s conduct and the disruption in relations in the workplace at the Bundoora Campus, I am satisfied that there is no possibility of re establishing a satisfactory working relationship between the applicant and the respondent, and that any order for reinstatement would result in continuing antagonism and disruption to the operations of the respondent, at either the Bundoora or Melbourne Campuses.
As to the issue of compensation, the applicant’s conduct subsequent to the termination of the employment in telephoning Ms Szwede confirms my view that it was unlikely that the applicant’s employment would have continued for any significant time beyond the date of the termination of the employment. Any compensation order which might have been made would consequently have been relatively minor.
As stated above, having regard to the matters set out earlier herein, I am satisfied, notwithstanding the contravention of sl70DC of the Act, that in all the circumstances of this case, no order pursuant to s170EE of the Act ought be made. The Order of the Court will be that the application be dismissed.
I certify that this and the preceding sixteen (16) pages
are a true copy of the Reasons for Judgment of
Judicial Registrar Parkinson.
Associate :
Dated : 25 July 1997
APPEARANCES
Counsel for the Applicant : Mr. W. Friend
Solicitors for the Applicant : Holding Redlich
Counsel for the Respondent : Mr. R.A. Millar
Solicitors for the Respondent : Mallesons Stephen Jaques
Dates of hearing : 23 & 24 April, 2 May 1997
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