Linnane v Monash University
[1996] IRCA 6
•1 Feb 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No VI 95/4689
B E T W E E N :
ANTHONY LINNANE
Applicant
AND
MONASH UNIVERSITY
Respondent
JUDGE: North J
PLACE: Melbourne
DATE: 2 January 1996
EX TEMPORE REASONS FOR JUDGMENT
THE FACTS
It is appropriate in this matter to start with a short description of the background facts. The applicant, Professor Anthony Linnane commenced employment at Monash University (“the University”) in 1962 as a reader in biochemistry. In 1965 he became a Professor of Biochemistry, a position which he held until 1994. In 1991, he became the Head of the Department of Biochemistry (“the Department”) at the University.
In mid-1994, when Professor Linnane was the Head of the Department, a review was conducted of its operations. At that time, Professor Linnane was both Head of the Department and also Director of the Centre for Molecular Biology and Medicine (“the Centre”). It was a recommendation of the review that the two positions be separated for the proper functioning of both.
As a consequence of the recommendations of the review, Professor Linnane agreed to step down as head of the Department. At around that time an agreement was made between Professor Linnane and the University, apparently on the authority of the Vice Chancellor, Professor Logan. The agreement was recorded in a letter dated 19 August 1994, which provided that Professor Linnane would resign as Head of the Department on 31 August 1994 but continue as Director of the Centre from 1 September 1994 and continue as a Professor of the University. That situation was to remain until 31 December 1995. The letter of 19 August 1994 also indicates an agreement for the period from 1 January 1996 until 31 December 1998 during which Professor Linnane was to be employed by the University as a Director of the Centre. For that second period he agreed to accept a reduction in his salary and conditions. That was the purpose of the distinction between the first and the second period.
Shortly after the agreement, on 21 November 1994 an incident occurred, during the implementation of the departmental review, involving Professor Linnane in the course of the transfer of some property and functions from the Department to the Centre. That incident gave rise to an allegation of serious misconduct against Professor Linnane and was the subject of a Committee of Investigation (“the Committee”) which ultimately reported to the Vice Chancellor on 15 December 1994. I will return to the contents of the Committee's report in due course.
In the middle of 1995, the policy and legal counsel of Monash University, Susan Bath, wrote a number of letters to Professor Linnane, one on 19 July and one on 25 July, which put the position that the agreement between Professor Linnane and the University was to come to an end on 31 December 1995. This was seen by Professor Linnane as contrary to the agreement reached in August 1994 to the effect that he would remain employed as Director of the Centre until the end of December 1998.
For reasons which are presently unimportant, it was only on 7 September 1995 that Professor Linnane filed an application alleging an unlawful termination of his employment by the University. That application was restricted to the statutory causes of action under the Industrial Relations Act 1988 (“the Act”).
On 13 December 1995, Judicial Registrar Murphy heard and dismissed a motion brought by the University under order 20 rule 2 of the Industrial Relations Court Rules seeking that the application filed on 7 September 1995 be struck out as failing to disclose a cause of action.
NOTICE OF MOTION
On 20 December 1995, after some correspondence between the solicitors for the parties concerning undertakings of continued employment of Professor Linnane, Professor Linnane filed a notice of motion which sought three things. First, it sought an order extending the time for the bringing of the application under the Act until 7 September 1995, the date upon which the application was actually filed. Second, it sought leave to amend such application to raise a number of causes of action in the court's associated jurisdiction. The causes of action included an action for breach of the contract said to have been made in August 1994 and a cause of action based on estoppel. Third, it sought an injunction pending the hearing and determination of the proceeding in effect preventing the University from treating Professor Linnane as no longer employed by the University.
A number of the issues raised by the notice of motion were dealt with by either agreement or non opposition in the course of the hearing. For this I commend the parties, and particularly the University. The University did not oppose an extension of time for the bringing of the application under the Act to 7 September 1995, but in so doing reserved any rights to challenge the validity of that application. Furthermore, the University did not oppose leave to Professor Linnane to amend his application to bring the associated jurisdiction claims. Again, that non opposition was put on the basis that the University reserved all rights to argue that the application is without jurisdiction. In the light of the University's attitude to those two matters, I will in due course make orders reflecting the position of the parties.
INTERLOCUTORY RELIEF
In relation to interlocutory relief, it was accepted by the University that the injunction was sought in respect of the associated jurisdiction claims and that the relevant issues for determination were, first, whether there was on the material a serious issue to be tried on the contract, estoppel, and other causes of action raised in the associated jurisdiction and second, whether the balance of convenience favoured the grant of an injunction.
Again, in my view, very properly on the state of the evidence, the University did not seek to argue that the material did not raise a serious issue to be tried on the associated jurisdiction claims.
Balance of convenience
That leaves for determination the question of the balance of convenience. Professor Linnane filed an affidavit on 20 December 1995 that goes in large part to questions of the balance of convenience. It is a comprehensive document carefully prepared with the requisite detail to establish the following matters relevant to balance of convenience. It establishes that the Centre requires funding external to the University to support a staff of approximately 26, most of whom are scientists. The University apparently funds Professor Linnane's salary and the salary of his secretarial assistant. A major part of Professor Linnane's function is to obtain funding for the ongoing work of the Centre. The affidavit also demonstrates that Professor Linnane is himself personally involved in a number of ongoing research projects conducted by the Centre. It shows that he has a program of addressing international conferences in the area of his scientific specialties going through until late August 1996 and that in order to do so, he requires preparation time and resources at the Centre.
He also holds the position of editor in chief of a leading international scientific journal. To continue his function he requires the facilities of the Centre. Similarly he holds office as the honorary treasurer of a major scientific union called the International Union of Biochemistry and Molecular Biology and requires the facilities of the Centre to fulfil this role. Professor Linnane has been employed by Monash University since 1962 and his affidavit sets out a most substantial scientific achievement over very many years. It shows a person who has reached the highest levels in scientific achievement, and international recognition for that achievement and additional contribution by way of participation in international scientific bodies.
He asserts, from the wealth of the material in his affidavit, that his reputation as an outstanding scientist would suffer irreparably at the national and international level if he was removed from his position as director after 31 December, 1995.
In response to that material the Vice Chancellor of the University, Professor Logan, swore an affidavit on 21 December, 1995. The complete material in opposition to the allegations concerning balance of convenience were contained in paragraph 6, which reads as follows:
“Monash University is not prepared to employ the said Professor Linnane beyond 31 December 1995 particularly in view of Professor Linnane's conduct, which was the subject of the said investigation. Any continued employment of Professor Linnane would be completely unacceptable and unconscionable in academic and administrative terms and would have a totally disruptive impact particularly in the areas closely associated with him, including the Department of Biochemistry and Molecular Biology and the Centre for Molecular Biology and Medicine.”
A number of observations can be made about Professor Logan's response. The first is that it does not attempt to grapple in any way with the detailed material put forward in support of the application by Professor Linnane. It seems to me, in those circumstances, that I am bound to take the view that the material going to balance of convenience, and relating to the achievements of Professor Linnane, his commitments in 1996, his role in the ongoing funding of the research of the Centre, and his role in the international scientific organisations, and his assessment that a refusal of the injunction would cause him irreparable damage, must be regarded as uncontested.
The second observation I make about Professor Logan's affidavit is that it entirely comprises assertions, or conclusions without descending to the basis for those assertions save in one respect. The one respect is a reference to the conduct which was the subject of the report of the Committee. In those circumstances I am unable to place any weight on the unsubstantiated assertions such as, that it would be completely unconscionable in administrative terms, and would have a totally disruptive impact on the Department and the Centre. In my view the material placed before the Court by the University is utterly inadequate to demonstrate any harm to the University from the continuance of Professor Linnane’s employment.
If assertions such as those made by Professor Logan are to be made, they must be made with reasons given so that the Court can assess why it is said, for instance, that the continued employment of Professor Linnane is completely unacceptable. The best one can make of Professor Logan's affidavit is that he is suggesting, albeit in an elliptical and indirect way, as is common in cases such as this, that the relationship between the parties has broken down to such a degree that an ongoing employment relationship is untenable.
Apparently in expectation of some such argument Professor Linnane filed in Court this morning, without opposition from the University, a further affidavit, which seeks to answer a number of issues including the assertions made by Professor Logan in paragraph 6 of his affidavit. Whilst, of course, such material was no doubt filed out of an abundance of caution, in my view the original contents of paragraph 6, being as insubstantial as they are, did not call for a response. Nonetheless Professor Linnane, in a series of paragraphs in his latest affidavit, disputes that his continued employment would be disruptive on the Centre and the Department and sets out the reasons why that is so. He says, for instance, that he as Director of the Centre reports directly to the Dean of the Faculty of Medicine, Professor Porter, with whom he says he has always had, and continues to have, a positive and healthy working relationship. He says further that he does not need to, nor does he, have contact with the members of the Department of Biochemistry and Molecular Biology, including those persons involved in the incident on 21 November, 1994.
The Committee of Investigation
It is necessary, in the light of Professor Logan's reference to the conduct referred to by the Committee, to look briefly at the conclusions at which the Committee arrived. The entire report of the Committee is exhibited to Professor Linnane's first affidavit. My brief reference cannot do justice to what is a careful investigation into one incident and a surrounding period of Professor Linnane's employment history. But indicative of its contents, and sufficient for the purposes of these proceedings, are the conclusions which the Committee reached commencing on page 55. This is part of the material which Professor Logan regarded as being of particular relevance to the reason that Professor Linnane's employment should not continue. The committee was comprised of Mr Magee, QC of the Victorian Bar and Professor Brian Smith and Professor Francis Trindade. On 15 December they recommended as follows:
“Much was made by the University and its witnesses of Professor Linnane's alleged autocratic, despotic and non-democratic behaviour as Head of Department and Director of the Centre over many years. It was contended that this behaviour should be taken into account in determining what recommendations the Committee should make to the Chief Executive Officer regarding the exercise of any of the powers conferred in section 9(l) and 9(e) of the Award. It was contended that when taken into account it should persuade the Committee to recommend Professor Linnane's dismissal as Professor of the University and as Director of the Centre.
If Professor Linnane's behaviour was, as alleged, that behaviour was well known to the University long before 1994 and it took no steps to curb it. It knew the full extent of Professor Linnane's alleged administrative style, undemocratic ways and the hostility to him by members of the Department when in August 1994 it offered him the position of a Professor of the University and Director of the Centre. In December 1994 Professor Linnane's salary was increased by the University merit loading his salary. Such merit loadings at Monash are determined by the Chancellor, the Vice Chancellor and the General Manager. Professor Linnane has never before been the subject of disciplinary proceedings by the University during the whole period of his thirty years employment. It was contended by the University that notwithstanding the fact that Professor Linnane was offered a new contract in August 1994, the events of 21 November 1994 ‘revived’ previous acts of misconduct. We were not asked to investigate previous acts of misconduct. In any event there is no evidence that the conduct that occurred prior to August 1994 was seen by the University as misconduct. It was not the function of this committee to investigate Professor Linnane's alleged previous misconduct as the Head of the Department and the Director of the Centre over his period of employment.
We observed Professor Linnane's demeanour in giving evidence and during the conduct of the proceedings. It might well be that Professor Linnane could be seen by some as prone to be belligerent, dictatorial and overbearing in his dealings with equals and subordinates. But that is only one part of the picture. Professor Linnane is on any view a brilliant and eminent scientist who has given long and honourable service to Monash University and to science. He has brought the University and the department esteem and prestige in the scientific community. He has exposed students to his mind. The Centre is largely his creation and he has administered it with great skill to the benefit of the University, the students and the scientific community.
Whilst many witnesses gave evidence against Professor Linnane, there were witnesses, and there was a considerable body of evidence that demonstrated Professor Linnane has the goodwill and esteem of Professors of the University and of honourable men and women in the scientific and wider community. Having heard Professor Linnane we are satisfied that he regrets what occurred.
The allegation of serious misconduct was based wholly on the events of 21 November 1994 and he should only be dealt with for those events. The events of 21 November 1994, whilst serious, are not the most serious type of dereliction.
Taking all matters into account we recommend that Professor Linnane be censured. It will weigh very heavily on Professor Linnane to be censured towards the end of his illustrious career.”
Those recommendations of the Committee were obviously part of what Professor Logan had in mind when he said that it was particularly because of the conduct that was investigated by the Committee that he had come to the view that Professor Linnane should not be permitted to remain employed after 31 December 1995. I find the submission based on Professor Logan's said assertion quite unpersuasive. I do so because having considered the very conduct to which Professor Logan refers the Committee was of the view that Professor Linnane should not be dismissed from the University by reason of that conduct. Indeed, of the four levels of disciplinary procedure available to the Committee for the purposes of recommendation, it chose the second lowest, whilst dismissal was the highest.
It seems to me that the very evidence upon which the University relies is persuasive against the argument it puts. Far from demonstrating a breakdown in the relationship between the University and its staff on one hand and Professor Linnane on the other, the passage from the report of the Committee points in the opposite direction. That is not to say that Professor Linnane is not without his detractors, but no doubt few of us in this world are not in that position.
Respondent’s further submissions
Mr Shaw put a series of further submissions on the balance of convenience to which I should, for the sake of completeness, briefly refer. He first said that it was inappropriate to take account at all of matters which went to the loss possibly experienced by the University itself from the absence of Professor Linnane after 31 December 1995. He submitted that it was for the University to look after itself and that if the University was to suffer from not having a person of such eminence, then that was a decision it had made. In my view this misunderstands the way in which Professor Linnane put the material in relation to his own reputation and activities. It, of course, has an aspect of social benefit and benefit to the University but it cannot be overlooked that the satisfaction and completion of an illustrious career in a satisfactory way is an important matter for Professor Linnane himself. He contended that his termination at this stage would irreparably damage his standing and reputation. While there might be debate about the proposition that third party rights can be taken into account in assessing balance of convenience, I do not rely on the evidence for that purpose.
Next Mr Shaw put that the Court should take into account that Professor Linnane knew of the University's attitude as early as March 1995 and he should have adjusted his behaviour in some way to take account of the fact that the University was intent upon his employment finishing at the end of 1995. Doing the best I can, I cannot see what consequence should flow in the consideration of the balance of convenience from the fact that Professor Linnane did know in March 1995 that the University, in his view, was taking a course which was contrary to an agreement reached in August 1994.
Mr Shaw then submitted that it was obvious from paragraph 6 of Professor Logan's affidavit that the University did not desire Professor Linnane to represent it in the international scientific fora throughout 1996. This was put as an argument against the material deposed to by Professor Linnane as to his commitments throughout 1996. It was said that the University in effect had a right to choose who would represent it and it had made its choice. This was said to be in some sense an argument to counter the material about Professor Linnane's involvement in international fora throughout 1996. I regard the material in relation to international participation as uncontested. I do so because had the University's position been that it had reason for Professor Linnane not to conduct himself as a member of the University Professor Logan could have and would have said it directly. There is no express reference in paragraph 6 to the subject. One can only conclude that that aspect of Professor Linnane's activity was not seen to be in any way prejudicial to the University. On the evidence of Professor Linnane’s scientific reputation and standing, it is not open to me to find that the University would suffer any harm from Professor Linnane speaking on scientific subjects in 1996 as the Director of the Centre and funded by the University.
Mr Shaw then submitted that the Court should not exercise a power to grant interlocutory relief in the associated jurisdiction where the basis of the claim is the same as in the statutory claim. He relied on a decision of Moore J in Henman v Westpac Banking Corporation (17 March 1995, Industrial Relations Court of Australia, unreported). In my view the basis of the statutory claim in this case and the associated jurisdiction claims are not, for relevant purposes, the same. It is true that both claims seek a reinstatement or continuation of the employment relationship. In relation to the statutory claim the interest being protected is against termination contrary to the Industrial Relations Act; in relation to the contract and estoppel claims the basis is quite different. In the case of the contract claim the interest being protected is based on an agreement between the parties. In the estoppel claim the interest being protected is against conduct giving rise to reliance and producing detriment to the person asserting the estoppel. Even if it is a proper principle that the court should hesitate to grant an interlocutory injunction where the basis of the statutory and associated jurisdiction claim is the same, and that is a matter which I do not decide, this is a case in which the interests protected are quite different.
Finally, Mr Shaw contended that a relevant factor to be taken into account in assessing the balance of convenience was the existence of the statutory remedy of reinstatement. He relied on Henman for the proposition that a successful statutory claim would result in a reinstatement of the applicant and payment of compensation for the intervening period and thereby avoid any loss to the applicant.
I have a number of difficulties with this proposition. Fundamentally it seemed to me that Mr Shaw was relying on Henman simply as a case in which an interlocutory injunction had been refused. He was not able to point to any similarity in the circumstances between Henman and the present case. Henman involved a bank manager aged 40 whose employment had been terminated. It may well be that on the facts a reinstatement of such a person and compensation would place him in the same position as if his employment had continued. In the case of the current applicant that is obviously not the case. Professor Linnane attests in his affidavit to the fact that his reputation as an outstanding scientist would be irreparably damaged if his employment were terminated and he was unable to fulfil the obligations of 1996. Reinstatement and compensation would not rectify the harm which is deposed to in this case.
CONCLUSION
For those reasons, I have formed the very clear view that the applicant, Professor Linnane, is entitled to interlocutory relief in the terms sought and I intend to make orders to that effect.
The question of an undertaking as to damages has been canvassed by the parties. In the end, the University does not press its position to have an undertaking as to damages from Professor Linnane. It does that in the knowledge, so I am told by Mr Shaw, that the University is free in the event that it becomes necessary, to bring an application to dissolve the injunction that I propose to grant today.
I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment of his Honour Justice North.
Associate:
Dated: 9 December 1995
Solicitors for the applicant: Slater & Gordon
Counsel for the applicant: Mr R Hinkley & Ms M Young
Counsel for the respondents: Mr B Shaw
Date of hearing: 2 January 1996
Date of judgment: 2 January 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No VI 95/4689
B E T W E E N :
ANTHONY LINNANE
Applicant
AND
MONASH UNIVERSITY
Respondent
ORDER
JUDGE: North J
PLACE: Melbourne
DATE: 2 January 1996
THE COURT ORDERS THAT:
The time for making the application under the Industrial Relations Act 1988 be extended to 7 September 1995.
The said application be amended by addition of claims in the associated jurisdiction of the court as set out in the statement of claim filed on 20 December 1995.
Until the hearing and determination of this proceeding, or until further order, the respondent by itself or by its servants or agents be restrained from giving any effect or continuing to give effect to its decision not to continue to employ Professor Anthony Linnane in the position of Director of the Centre for Molecular Biology and Medicine at Monash University.
And I direct as follows:
(a) The respondent file and serve a defence by 16 February 1996;
(b)Each of the parties file and serve a verified list of documents by 23 February 1996;
(c)The applicant file and serve any reply, any affidavits on which he will seek to rely, and contentions of fact and law, by 3 May 1996;
(d)The respondent file and serve any affidavits on which it will seek to rely and its contentions of fact and law by 14 June 1996;
(e)The applicant file and serve any affidavits in reply on which he will seek to rely by 12 July 1996.
(f)That paragraph 2 of the order of Judicial Registrar Murphy made 13 December 1995 be set aside and in lieu thereof direct that the directions hearing herein be adjourned to 15 July 1996.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
C A T C H W O R D S
INDUSTRIAL LAW - INTERLOCUTORY INJUNCTION in ASSOCIATED JURISDICTION - balance of convenience - different interests protected in statutory and associated jurisdiction claim
Industrial Relations Act 1988 s. 170EA
Henman v Westpac Banking Corporation (17 March 1995, Industrial Relations Court of Australia, Moore J, unreported)
ANTHONY LINNANE -v- MONASH UNIVERSITY
No. VI 95/4689
Before: North J
Place: Melbourne
Date: 2 January 1996
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