Mainsbridge v Murdoch University
[1998] IRCA 5
•13 Feb 1998
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - motion to dismiss application made pursuant to s 170EA Workplace Relations Act 1996 (Cth) - meaning of “conduct” - discussion of Sangwin v Imogen Pty Ltd - meaning of “connected with” - whether an employee’s alleged misconduct justifies dismissal requires objective assessment
Workplace Relations Act1996 (Cth), s 170DE(1)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, applied
Byrne v Australian Airlines Ltd (1992) 45 IR 178, considered
Cosco Holdings Pty Ltd v Van Do & Others (FCA, Full Court, 4/12/97, unreported), followed
Cowell Electric Supply Company Ltd v Collector of Customs (1995) 127 ALR 257, applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, compared
Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314, applied
Sangwin v Imogen Pty Ltd (IRCA, 8 March 1996, unreported), discussed
BRUCE MAINSBRIDGE v MURDOCH UNIVERSITY
WI 2115 of 1995
MADGWICK J
SYDNEY (HEARD IN PERTH)
13 FEBRUARY 1998
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2115 of 1995
BETWEEN:
BRUCE MAINSBRIDGE
APPLICANTAND:
MURDOCH UNIVERSITY
RESPONDENTJUDGE(S):
MADGWICK
DATE OF ORDER:
13 FEBRUARY 1998
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
The Notice of Motion is dismissed.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2115 of 1995
BETWEEN:
BRUCE MAINSBRIDGE
APPLICANTAND:
MURDOCH UNIVERSITY
RESPONDENT
JUDGE(S):
MADGWICK
DATE:
13 FEBRUARY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR:
Background
The respondent (“the University”) applied at the end of the applicant’s case to dismiss these proceedings on the basis that the applicant could not succeed. It was conceived that there was a short point that might bring lengthy proceedings to speedy finality.
The applicant, Professor Mainsbridge (as he was and as I find it convenient to refer to him) had been employed by the University as a Professor of Physics since 1974. In December 1994, the University advised Professor Mainsbridge that allegations of serious misconduct had been made against him. A Committee of Inquiry was convened on 27 February 1995 to investigate those allegations, pursuant to the procedures set out in clause 9 of the Australian Universities Academic Staff (Conditions of Employment) Award 1988 (“the Award”). The text of the clause is set out in the Appendix hereto.
On 9 August 1995 the Committee found Professor Mainsbridge guilty of serious misconduct, and recommended that he be dismissed. In due course, the University Senate ratified that recommendation on 9 June 1995 (as it was bound to do under the Award: cl 9(o)), and on 7 September 1995 the University summarily terminated Professor Mainsbridge’s employment.
Professor Mainsbridge brought an action against the University in the Industrial Relations Court, seeking reinstatement and compensation on the ground that the termination of his employment was unlawful, contrary to s 170DE(1) of the (then) Industrial Relations Act 1988 (Cth). Section 170DE(1) is in the following terms:
“An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”
It is enough to say of the subject matter of the allegations that there is some material to support most of them; in respect of nearly all of them, there are disputes as to what actually occurred and in what context, and as to how seriously any default by Professor Mainsbridge might reasonably be viewed. My present impression is that there are arguments of substance available to each of the parties. At the end of the applicant’s case, the University filed the Notice of Motion to dismiss Professor Mainsbridge’s application, which is the subject of this decision.
The parties desired that I decide the questions raised by the Notice of Motion finally, rather than on the narrow basis of mere arguability of the applicant’s case sufficing to defeat the respondent’s application, c.f. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
The competing submissions
The respondent submits that, following the decision in Cosco Holdings Pty Ltd v Van Do & Others (Federal Court of Australia, Full Court, 4 December 1997, unreported), the applicant must fail. The argument is that, accepting that the phrase “connected with” in s 170DE(1) means having a “real and substantial” connection with: Cowell Electric Supply Company Ltd v Collector of Customs (1995) 127 ALR 257 at 266, it is established, from facts not in dispute, that Professor Mainsbridge’s employment was terminated for reasons connected with his conduct. It is perfectly clear that the responsible organs of the University acted, as they were bound to do under the Award, upon the report of the Committee of Inquiry on the very subject of allegations about Professor Mainsbridge’s conduct. Thus there was plainly a real and substantial connection between the reason for the termination of Professor Mainsbridge’s employment and his conduct. The requirement that the reason be “valid” is a requirement at most that the reason for termination be lawful (apart from the operation of s 170DE) and that the connection with the conduct be genuine: Cosco. Manifestly, this is not a case of merely colourable reference by an employer to reasons of conduct; the Award not only legally sanctions dismissal for serious misconduct, but requires it if a Committee of Inquiry so recommends. All that is required is that there be a genuine connection with conduct of the employee; that was said to posit a less onerous test for an employer than if, say, the statutory and Convention requirement had been (as it is for “operational requirements”) that the reason for termination be “based on” conduct.
The applicant responds that it is inherent in Cosco that, in a case where operational requirements are said to be the basis of the reasons for termination, there should truly be such operational requirements. It must logically also be that, where conduct is relied upon as being “connected with” the reasons for termination, there should in reality (and not merely in the opinion of the employer or his/her agents or advisers) have been conduct which was such a connecting factor. Accordingly, whether or not there was such conduct is necessarily for the Court to determine. There are two aspects to the question whether such conduct existed: did the conduct that is said to have occurred actually occur, and was it of a kind which could reasonably be the source of a reason to terminate the employment of the employee in question - in substance, was it truly “serious misconduct”? Indeed, the argument for the objective existence of such (mis)conduct is stronger than for the objective existence of “operational requirements” where these are relied upon: a “requirement” is necessarily in the end no more than somebody’s belief that something is requisite; but “conduct” is not only a matter of opinion or belief.
It was further argued that Professor Mainsbridge had subsisting contractual rights not to be dismissed except for serious and actual misconduct. These rights were said to subsist despite Cl 3(c) of the Award because of the logic of the reasoning in Byrne v Australian Airlines Ltd (1992) 45 IR 178.
Conclusions
Attractive as they are at first sight, the submissions of the respondent must, in my opinion, fail.
Application of Cosco
While it has not been explored whether, in this Court, I am technically bound by Cosco, it is unthinkable that I should not follow it and, counsel for the applicant having chosen not to make any formal submission that it was wrongly decided, this is no occasion for a discussion of its correctness, except to say that, in my respectful view, it plainly calls for reconsideration: among other matters, a number of relevant decisions of single judges of the Industrial Relations Court of Australia were apparently not brought to the Court’s attention.
The conclusion of Lindgren and Lehane JJ in the major judgment was that:
“[i]n the statutory context with which we are concerned, the primary work of ‘valid’ is to exclude the reasons listed in s 170DF(1). If there are other reasons for which an employer may not lawfully dismiss an employee, then equally, no doubt, such a reason will not be a ‘valid’ reason. Additionally, perhaps, the word ‘valid’ may serve to emphasise that the reason must be genuinely connected with the employee’s capacity or conduct or genuinely based on operational requirements.”
However, Lindgren and Lehane JJ had earlier pointed out that:
“To say, as the section does, in addition that the reason must be ‘valid’ is, no doubt, to add a further element to that requirement of a genuine foundation..."
Their Honours had also earlier held that the words “based on” (without resort to “valid reason”) required that the foundation of the reason for termination be “real and not specious”. With respect, such a construction is plainly called for. As counsel’s submissions acknowledged, “connected with” must likewise be construed as meaning really and substantially, that is to say (perhaps among other things) genuinely, connected with.
The plain meaning of “conduct” is clear
One turns then to the subject matter of the connection, which is “the...conduct of the employee”. In its ordinary meaning this is a clear expression which fastens attention on an employee’s actual conduct. In my opinion, there is no warrant for, in effect, substituting for it, some other expression, such as “the conduct of the employee as honestly and reasonably perceived by the employer after sufficient inquiry” (see Imogen v Sangwin Pty Ltd, considered below).
Remedial legislation
The relevant provisions of the Act and the Convention on which those provisions were based were evidently conceived as remedial instruments for the benefit of employees at large, including those with few resources and subject to unscrupulous employers, as well as those more blessed. The Act should be beneficially construed in favour of employees if ambiguity arises, which, as I have just indicated, in my view, it does not. Neither is there anything absurd or unworkable about the operation of the section according to what seems to me to be its plain meaning, such as might justify some such limitation thereon. The tripartite framers of the Convention, to adapt the language of Burchett J in a case about another Convention (the Convention relating to the Status of Refugees), “chose broad expressions which it is not the Court’s task to constrict...Exegesis will bring help in the application of the provision but should not be permitted to replace it with a narrower formulation”: Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317.
Sangwin v Imogen Pty Ltd
In Sangwin v Imogen Pty Ltd (Industrial Relations Court of Australia, 8 March 1996, unreported) von Doussa J expressed a contrary view. His Honour began by observing that the provisions of the Convention and Div 3 of Part VIA of the Act were:
“intended to operate in the practical arena of commercial activity, and that in the endeavour to achieve industrial fairness it is necessary to balance the interests and well being of an individual employee against the interests of the employer, and also to have regard to matters of wider public interest which may be involved. The construction of the Act [and, I would observe, of the Convention] is not to be considered only from the viewpoint of the employee.”
With those observations I respectfully agree, but the legislation was nevertheless remedial in the interests of employees.
His Honour went on to give examples: of an operator of dangerous equipment reasonably and fairly but mistakenly thought to have a medical condition that might impair the operator’s capacity; a provider of care for the sick or children likewise thought to have physically abused one of his/her charges; and cases of serious risk of property damage or financial loss if employees thought guilty of unsafe practices or dishonesty were kept on. His Honour concluded:
“In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct a valid ground within the meaning of s 170DE(1) exists for terminating the employment of the employee.”
However, in my respectful view, his Honour’s premises - the general considerations about a proper approach to construction of the legislation quoted above, and the practical implications of his Honour’s examples - do not justify the conclusion his Honour reached. In each of the kinds of cases instanced by von Doussa J, the matter is not simply one of past conduct. Each is a case where there is an unacceptable risk of serious future harm of some kind, unless the employee’s services are terminated. In reality, such cases are likely to be unusual: as von Doussa J envisaged, in many cases, steps other than termination of the employment will be reasonably open to the employer; obvious examples are transfer of the employee until the risk is shown no longer to exist, and change of the work system to remove the risk of the harm. But, where other palliatives cannot be availed of, the fact that the continuance of the particular employee’s employment presents an unacceptable risk necessarily implies an “operational requirement...of the undertaking” within the meaning of s 170DE(1). That, it seems to me, is so even though, in that phrase, the significance of the notion of an actual “requirement” should not be underestimated, as I sought to show in Hozack v Church of Jesus Christ of Latter-Day Saints (Federal Court of Australia, 27 November 1997, unreported). In such a case, it is clearly necessary for the continued functioning of the enterprise in a practically acceptable way that there be no such risk. In such unusual cases, the employee will, in my view, so far as the Act and the Convention are concerned, simply have to go. Hard as that may be on an employee who is truly blameless, many another employee dismissed for reasons based on other kinds of “operational requirements” is quite without fault, and as Cosco holds, there is no element of justice or fairness involved in the concept of a “valid” reason postulated by the legislation. If termination in such cases is justified by “operational requirements”, there is no necessity to read “conduct” down in the way proposed by his Honour.
I appreciate, of course, that other examples than those given by his Honour might occur or be proposed, but, for myself, I am unable to think of another that would invalidate the analysis just offered. Hence, I agree with von Doussa J in the ultimate result in such cases, but I arrive at our common conclusion by a different process of reasoning. The difference is significant in the present case, because it is not submitted that there was a reason for the applicant’s termination founded on “operational requirements”.
“connected with”
It will be appreciated that, in the view I take, little turns upon the width of the meaning to be assigned to the phrase “connected with”: if the applicant’s conduct was not as alleged by the respondent, either in its incidents or its character, then the reason for the termination of his employment was, ex hypothesi, not connected with his conduct.
In any case it is not clear to me that, as submitted, domestic rules of statutory interpretation which might prima facie require that the phrase “connected with” be given a meaning different from “based on” should necessarily be applied to that phrase, with the possible result that it would connote that any mere, if real, connection would suffice: the subject statutory terms retain their Convention meanings (s 170CB). Treaties are not necessarily to be interpreted as if they were domestic statutes: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 per Brennan J at 332 , see also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 413. Among other things, they were not made in a context of our domestic law of statutory interpretation. The equally authoritative French text of the Convention (Art. 4) gives “lié a” for “connected with”. The French translates idiomatically as “bound up with”; that is also a meaning which comfortably fits within the range of possible ordinary meanings of the English phrase and which suits the subject matter and context of the statute and the Convention. There is scant, if any, relevant difference between such a notion and that of “based on”. There is, in my view, no consideration of practicability or justice that would make sensible a construction that a reason for termination having to do with conduct should be less firmly tied to its criterion than a reason having to do with operational requirements. The existence of s 170DC implicitly supports that notion.
Possible extant common law rights
These submissions raise interesting and difficult questions including some of novelty founded upon doctrines expressed in Byrne. I doubt that the terms and effect of the Award leave any room for practical operation of Professor Mainsbridge’s contractual rights (see e.g. Chambers v James Cook University No. 1 (1995) 61 IR 121 at 137 per Spender J) but, having regard to the views I have already expressed, it is unnecessary for me to express any concluded view on these matters.
Order proposed
For these reasons the Notice of Motion will be dismissed.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick
Associate:
Dated: 4 February 1998
Counsel for the Applicant: P Nisbet Solicitor for the Applicant: Ilbery Barblett Counsel for the Respondent: A Lucev Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 10 December 1997 Date of Judgment: 13 February 1998
ANNEXURE
“ 9 - PROCEDURES IN RESPECT OF SERIOUS MISCONDUCT
(a) In the context of these procedures serious misconduct shall mean:
(i)serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of the member’s duties or to other members carrying out their duties; or
(ii)serious dereliction of the duties required of the member’s office; or
(iii)conviction by a court of competent jurisdiction of an offence of a kind which constitutes a serious impediment to the carrying out of the member’s duties or to other members carrying out their duties.
(b)Where there is any question that a staff member may have been guilty of serious misconduct, the matter shall be investigated and reported on solely in accordance with these procedures, notwithstanding anything to the contrary in the staff member’s terms of employment or any of the procedure(s) that may currently be in operation at any university.
(c)All allegations of serious misconduct shall be investigated in the first instance by the chief executive officer.
(d)(i) Where the chief executive officer believes that an allegation of serious misconduct by a staff member warrants further investigation, he or she shall:
(1)notify the staff member in writing of the nature of the act or acts or omission or omissions which constitute the alleged serious misconduct in sufficient detail to enable the staff member to know the precise nature of the allegations and to properly consider and to properly respond to the allegations; and
(2)require the staff member within 30 days to submit a written response.
(ii)Provided that:
(1)the chief executive officer may, at the time the allegations are conveyed to the staff member, if he or she considers it necessary and in the best interests of the university, suspend the staff member from duty, with pay, and exclude him or her from the university; and
(2)a staff member who is suspended and excluded from the university shall be permitted reasonable access to the university for the preparation of his or her response to the allegation and to collect books, papers and other personal property.
(e)If the allegation is admitted in full by the staff member, and the chief executive officer is of the opinion that the conduct of the staff member amounts to serious misconduct, the chief executive may:
(i)counsel the staff member; or
(ii)censure the staff member; or
(iii)(1) withhold an increment of salary, where applicable, for a period of not more than twelve months; or
(2)demote the staff member and give the staff member a warning that any repetition of the conduct may lead to dismissal; or
(iv)dismiss the staff member from the employment of the university.
(f)If the allegation is denied in part or in full by the staff member, and the chief executive officer decides that the staff member is not guilty of any misconduct at all, the chief executive officer shall make a formal finding to that effect which shall be communicated to the staff member.
(g)If the allegation is denied in part or in full by the staff member, or if the staff member fails to submit a written reply pursuant to paragraph 9(d)(i) hereof, and the chief executive officer decides that the staff member is not guilty of serious misconduct but has nonetheless engaged in conduct that is unsatisfactory, the chief executive officer may:
(i)counsel the staff member; or
(ii)censure the staff member; or
(iii)give the staff member a warning that any repetition of the conduct may be regarded as serious misconduct.
(h)If the allegation is denied in part or in full by the staff member, or if the staff member fails to submit a written reply pursuant to paragraph 9(d)(i) hereof and the chief executive officer decides that a prima facie case for serious misconduct exists, or if the allegation has been admitted in full pursuant to subclause 9(e) hereof but the penalty is disputed by the staff member, the chief executive officer shall proceed to refer the matter to a committee of investigation (hereinafter referred to as the committee).
(i)The committee shall exist of:
(i)a senior member of the legal profession or a person with appropriate experience in industrial relations appointed by agreement between the chief executive officer and the president of the local branch of the union, and who shall chair the committee;
(ii)a nominee of the chief executive officer; and
(iii)a nominee of the president of the local branch of the union;
provided that the parties shall have no longer than fourteen days to agree in terms of 9(i)(i) above, starting from the date upon which either of the parties notifies in writing to the other a name or names in connection with an agreed appointment to the position.
(j)The function of the committee shall be to investigate any case referred to it by the chief executive officer pursuant to subclause (h) hereof.
(k)(i) The committee shall hold its first hearing promptly after the receipt by its chairperson from the chief executive officer of the allegation(s) of serious misconduct.
(ii)The chief executive officer shall appoint a person who is a staff member of the institution (provided that the person concerned is not a currently practising barrister or solicitor) or an officer or staff member of the Australian Higher Education Industrial Association to present on behalf of the institution the case to the committee. This person may call witnesses in support of the case and may cross-examine any persons appearing as witnesses in support of the case of the staff member (including the staff member if he or she appears as a witness).
(iii)The staff member shall have the right to be present at all hearings of the committee provided that the committee may deliberate on its findings and on its report in private.
(iv)The staff member shall be entitled to be assisted or represented at all hearings of the committee by an agent of his or her own choice who is a staff member of the institution (provided that the agent concerned is not a currently practising solicitor or barrister) or a staff member officer of the union and may personally or by member or officer of the union, and may personally, or by his or her agent, call witnesses in support of his or her case and may cross-examine persons called on behalf of the institution.
(v)The committee shall give each party reasonable notice of the time and place at which the initial and subsequent hearings shall take place. The committee may at any time adjourn the proceedings to another time and place.
(vi)The committee shall, subject to this subclause, determine its own procedures, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the consideration of the matter before it
(vii)The committee may take evidence on oath or affirmation. Any evidence given on oath or affirmation shall be tape recorded, and a Committee may decide that any other oral evidence be tape-recorded. A copy of any tape-recordings shall be provided to the staff member and the university upon request.
(viii)All proceedings of the committee shall be held in camera. No persons except the members of the committee and any person providing secretarial assistance to the Committee shall be present during its deliberations after the evidence has been presented and all submissions have been completed. The members of the committee shall treat the proceedings as confidential. None of the parties to the proceedings or witnesses thereto shall make public statements commenting on the proceedings for their duration.
(ix)In the event that the staff member does not attend either personally or by his or her agent after reasonable notice of the committee’s intention to meet has been given to the member of staff or his or her agent, the committee may proceed and may determine the matter in his or her absence.
(l)The committee shall, after hearing and considering the evidence adduced and submissions made before it, promptly report in writing to the chief executive officer on:
(i)whether it is satisfied that each of the facts or matters alleged has been proven;
(ii)whether the facts as proven constitute serious misconduct on the part of the staff member; and
(iii)its recommendation as to whether the chief executive officer should exercise any of the powers referred to in sub-clause (e) hereof, together with the reasons for its findings, provided that where the committee has investigated a matter in which the facts are not disputed but the penalty imposed is disputed, the committee shall report only in accordance with paragraphs (ii) and (iii) hereof.
(m)The committee shall, when it furnishes its report to the chief executive officer forward to the staff member a copy of the same report.
(n)The chief executive officer shall, after receiving the report of the committee, act on its finding by proceeding forthwith to exercise one or more of the following powers, namely to:
(i)dismiss the case and remove any suspension previously placed upon the staff member; or
(ii)censure the staff member, withhold an increment of salary for a period not exceeding twelve months, demote the staff member, or dismiss the staff member from the employment of the university.
(o)The decision of the chief executive officer shall be final, except where current rules, practices, legislation or orders of any governor in council of state require that a recommendation or decision to demote or dismiss a staff member be ratified by the governing body of the university, and subject to the jurisdiction of any competent external authority. Any recommendation or decision of the chief executive officer required to be ratified by the governing body of the university shall take effect only from the date of such ratification, provided that that the governing body shall make its decision on the basis of the reasons for decision provided by the chief executive officer or committee of investigation as the case may be and not otherwise.
(p)In the case of:
(i)a decision to dismiss, the dismissal shall take place with immediate effect on the day of the decision of the chief executive officer or the governing body as the case may be;
(ii)a decision to withhold an increment from the staff member, this shall take place on and from the date on which an increment is next due;
(iii)a decision to demote the staff member, this shall take effect on and from the beginning of the next pay period commencing on or after the date of the decision.
(q)If the staff member offers his or her resignation or accepts an offer of early retirement with immediate effect during the operation of these procedures, the resignation shall forthwith be accepted by the chief executive officer and the proceedings shall thereupon cease.”
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