FEDERAL COURT OF AUSTRALIA
Miller v Australian Industrial Relations Commission [2001] FCA 486
INDUSTRIAL – termination of employment - where appellant dismissed for serious misconduct and failure to follow lawful and reasonable direction – whether termination was harsh, just or unreasonable – whether a valid reason for the termination existed - nature of Full Bench of the Industrial Relations Commission’s power to grant, or refuse, leave to appeal – whether a decision under s 170CE is properly described as “discretionary”.
Workplace Relations Act 1996 (Cth)
House v The King (1936) 55 CLR 499 applied
Norbis v Norbis (1986) 161 CLR 513 distinguished
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 (CA) cited
Gregory v Phillip Morris Ltd (1988) 80 ALR 455 cited
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd (1983) 2 AC 803 cited
Edwards v Giudice (1999) 94 FCR 561 cited
Hope v Bathurst City Council (1980) 144 CLR 1 cited
The Queen v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 cited
Re Coldham; Ex parte Brideson (1989) 166 CLR 338 cited
Re Coldham; Ex parte Brideson (No. 2) (1990) 170 CLR 267 cited
Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 cited
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351 cited
Sammartino v Foggo (1999) 93 IR 52 cited
Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 cited
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 cited
Franklins Ltd v Webb (1996) 72 IR 257 cited
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 cited
Darling Island Stevedoring & Lighterage Co Pty Ltd v Jacobsen (1945) 70 CLR 635 cited
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 followed
Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 cited
Victoria v The Commonwealth (1990) 187 CLR 416 followed
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 followed
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 followedDAVID MILLER V A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND UNIVERSITY OF NEW SOUTH WALES
NO. N 801 OF 2000
JUDGES: BEAUMONT ACJ, RYAN & MADGWICK JJ
DATE: 4 MAY 2001
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 801 OF 2000
BETWEEN:
DAVID MILLER
APPLICANTAND:
A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTUNIVERSITY OF NEW SOUTH WALES
SECOND RESPONDENTJUDGE:
BEAUMONT ACJ, RYAN & MADGWICK JJ
DATE OF ORDER:
4 MAY 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.That a writ of certiorari issue to the first respondent removing into this Court, and quashing, the decision of the Full Bench of the first respondent on 7 March 2000 in matter U No. 20312 of 1998, being an application by the applicant for leave to appeal against the decision…
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Details
- Case
- [2001] FCA 486
- Decision Date
CaseChat Overview and Summary
In Miller v Australian Industrial Relations Commission, the applicant, an Associate Professor at the University of New South Wales, challenged the decision of the Full Bench of the Australian Industrial Relations Commission (AIRC), which had dismissed his application for leave to appeal against a decision of the Senior Deputy President. The Senior Deputy President had dismissed the applicant's claim that his dismissal was harsh, unjust, or unreasonable under section 170CE of the Workplace Relations Act 1996 (Cth). The applicant had been dismissed from his position as an Associate Professor after he refused to accept the role of First Year Laboratory Director, a position that involved overseeing laboratory programs and ensuring quality teaching.
The legal issues the court was required to decide were whether the AIRC had correctly exercised its discretion in dismissing the applicant's appeal, and whether the AIRC had followed the law in its decision-making process. The court found that the AIRC had not adequately considered the applicant's arguments and had failed to properly address the merits of his case. The court held that the AIRC had not correctly exercised its discretion in dismissing the applicant's appeal, and that the decision of the AIRC was quashed.
The court's reasoning was based on the fact that the AIRC had not provided adequate reasons for dismissing the applicant's appeal, and had failed to properly consider the applicant's arguments. The court held that the AIRC had not followed the law in its decision-making process, and that the decision of the AIRC was therefore quashed. The court further held that the matter should be remitted to the AIRC for reconsideration in accordance with law.
The final orders of the court were that a writ of certiorari issue to the AIRC removing into the court, and quashing, the decision of the Full Bench of the AIRC on 7 March 2000 in matter U No. 20312 of 1998, being an application by the applicant for leave to appeal against the decision of Senior Deputy President Harrison given on 29 October 1999. The court also ordered that a writ of mandamus issue to the AIRC directing it to hear and determine matter U No. 20312 of 1998 in accordance with law, and that the matter be remitted to the AIRC accordingly.
The legal issues the court was required to decide were whether the AIRC had correctly exercised its discretion in dismissing the applicant's appeal, and whether the AIRC had followed the law in its decision-making process. The court found that the AIRC had not adequately considered the applicant's arguments and had failed to properly address the merits of his case. The court held that the AIRC had not correctly exercised its discretion in dismissing the applicant's appeal, and that the decision of the AIRC was quashed.
The court's reasoning was based on the fact that the AIRC had not provided adequate reasons for dismissing the applicant's appeal, and had failed to properly consider the applicant's arguments. The court held that the AIRC had not followed the law in its decision-making process, and that the decision of the AIRC was therefore quashed. The court further held that the matter should be remitted to the AIRC for reconsideration in accordance with law.
The final orders of the court were that a writ of certiorari issue to the AIRC removing into the court, and quashing, the decision of the Full Bench of the AIRC on 7 March 2000 in matter U No. 20312 of 1998, being an application by the applicant for leave to appeal against the decision of Senior Deputy President Harrison given on 29 October 1999. The court also ordered that a writ of mandamus issue to the AIRC directing it to hear and determine matter U No. 20312 of 1998 in accordance with law, and that the matter be remitted to the AIRC accordingly.
Orders
Orders of the court
1. That a writ of certiorari issue to the first respondent removing into this Court, and quashing, the decision of the Full Bench of the first respondent on 7 March 2000 in matter U No. 20312 of 1998, being an application by the applicant for leave to appeal against the decision of Senior Deputy President Harrison given on 29 October 1999 (Print S0551).
2. That a writ of mandamus issue to the first respondent directing it to hear and determine matter U No. 20312 of 1998 in accordance with law.
3. That the matter be remitted to the first respondent accordingly.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The reasons for this decision were lengthy, but her essential reasons for dismissing the application under s 170CE for an order of reinstatement on the ground that the dismissal of the applicant was harsh, unjust or unreasonable may be summarised, as follows:(a) Summary of evidence The Senior Deputy President described the evidence before her thus:·The applicant commenced employment with the second respondent in 1977 as a professional officer. He was subsequently appointed to more senior positions. At the time of his dismissal in March 1998, he was an Associate Professor, having been promoted to this position in January 1990. He was then working in the Department of Condensed Matter Physics within the School of Physics (“the School”), in the Faculty of Science and Technology (“the Faculty”).·The terms and conditions of academic staff of the second respondent were regulated, relevantly, by the Universities and Post Compulsory Academic Conditions Award 1995 (“the Award”); and by the University of New South Wales (Academic Staff) Enterprise Agreement 1997-98 (“the EBA”).·Within the School there is a position known as First Year Laboratory Director (“FYLD”), an important “job” (“the job”) (although not referred to by that name in any award or the EBA) which is allocated to a member of the academic staff by the Head of School (Professor Oitmaa). Students enrolled in courses requiring them to spend time in the First Year Laboratory (“FYL”) come not only from the Faculty but also from other Faculties. Much of the School’s budget reflects “earnings” for providing this teaching to students of other faculties.·Over the previous twenty years, the job has been performed by one particular member of the academic staff, but, by 1997, Professor Oitmaa had formed the view that it was time for a change in the way the job was done and the FYL operated. In February 1997, Professor Oitmaa asked the applicant whether he would be interested in being FYLD, as the position was becoming vacant later in the year, when the incumbent would move to another position. The applicant declined.·In August 1997, Professor Oitmaa asked any member of staff interested in taking on the position of FYLD to contact him. There were no volunteers.·Professor Oitmaa then decided that the applicant was the best person for the job, for the following reasons: his experience; his stated interest in teaching and curriculum development; the fact that he had not undertaken significant administrative duties since 1992; he had only supervised one PhD student; and he did not have a research output sufficient to prevent him undertaking the job.·In September 1997, Professor Oitmaa wrote to the applicant asking him to take on the position of FYLD from 1 December 1997, stating that no one had volunteered and that the job “needs to be done”, and giving, in essence, the reasons mentioned above why the applicant had been approached.·The applicant responded in late September 1997, stating that the FYLD would have little, if any, time for research and that he had already filled two positions which had taken research time – Second Year Laboratory Director (1982 – 88) and Post-Graduate Director (1989 – 1992).·The applicant and Professor Oitmaa met later in September 1997. The applicant expressed his reasons for not wishing to undertake the job. Professor Oitmaa offered to appoint additional staff to take on some aspects of the job. This offer was repeated by Professor Oitmaa in a memorandum to the applicant dated 30 September 1997, in which Professor Oitmaa also expressed his belief that, as FYLD, the applicant would still have the equivalent of two days per week for research.·By memorandum dated 29 October 1997, the applicant informed Professor Oitmaa that he declined to accept the job.·Professor Oitmaa replied by memorandum to the applicant dated 5 November 1997, indicating that the applicant’s conduct constituted a “clear refusal to accept a legitimate assignment of teaching and administrative duties …”.·By letter dated 10 November 1997, the University’s Vice-Chancellor wrote to the applicant in this connection and referred to cl 14.2(b) of the EBA. Clause 14.2 deals with disciplinary action for misconduct/serious misconduct. By cl 14.2(b), the Vice-Chancellor is to consider any such allegation and, if he/she believes it warrants further investigation, the Vice-Chancellor shall notify the academic and require a written response. The applicant was required to respond to the allegation that, on at least four separate occasions and without reasonable excuse, he refused to carry out the lawfully given instructions of his supervisor, Professor Oitmaa, to undertake the responsibility of FYLD.·In his written response dated 26 November 1997, the applicant denied the allegation on several grounds, including his claim that the instruction was unreasonable, unjust and oppressive, as it was effectively a demotion, because the job’s responsibilities were inconsistent with the Position Classification Standards (“PCS”) in the EBA, and involved lower level administrative duties.·The Vice-Chancellor replied by letter dated 28 November 1997, informing the applicant that the matter would be referred under cl 14.2(f) to a Misconduct Investigation Committee (“MIC”) in accordance with the terms of reference in cl 14.3.2, that is, to report on the facts and on any mitigating circumstances.·In its report dated 23 February 1998, the MIC noted that there was a real issue about whether the allegation, in the light of the alleged facts and circumstances, might give rise to a finding of misconduct; that the duties of FYLD were extensive and lent credence to the claim that there would be insufficient time left for an average of two days per week for research; that the previous FYLD had been a tutor, then a lecturer, and the position had not before been filled by an Associate Professor; and that there were mitigating circumstances which deserved consideration.·Upon receipt of the report, by letter dated 4 March 1998, the Vice-Chancellor notified the applicant of a determination that the applicant had been found guilty of serious misconduct, and that, although disciplinary action could be taken, the Vice-Chancellor had decided to address two of the applicant’s concerns and to give the applicant a final opportunity to accept the job; but that, if not accepted, the Vice-Chancellor would proceed to disciplinary and other action. With respect to the first area of concern (research time) the Vice-Chancellor said that Professor Oitmaa was confident that the applicant would have two days per week for this, averaged over the academic year and that the role of FYLD would, in the case of the applicant, be for a term of three years maximum. Secondly, the job did not involve a demotion: it was not a full-time academic position, but rather a component which made up a full-time academic position. The letter continued:“I understand that the importance of the role of First Year Laboratory Director to the School of Physics is not at issue. Rather your concerns about taking on the role are based on your observations of how the previous incumbent performed the role. Professor Oitmaa does not envisage a similar role for you as First Year Laboratory Director. In his memo to you of 10 September 1997 Professor Oitmaa indicated that he thought you had both the capacity and ability necessary to undertake the role of First Year Laboratory Director. He says in his memo, (referred to at page 3 of the Committee’s report): ‘I am approaching you for a number of reasons. Firstly I am convinced of the essential nature of the laboratory program and the pivotal role it must continue to play in educating both physics majors and servicing students. Therefore it is essential that the laboratory be overseen by someone with sound educational views and a commitment to quality teaching. Secondly, it requires a capacity and willingness to work hard and you have demonstrated these qualities over the years. Finally, it needs, I believe, someone with an experimental approach to physics. I have given serious consideration to all of the School’s current academic staff and I believe you are the best person for the position. Professor Oitmaa went on in his memo to describe the role envisaged and said that (at page 3 of the Committee’s report),‘… the laboratory had been drifting for the last few years and some urgent revitalization is needed.’The exact duties of the role and the level of support staff assigned to assist the Director should be discussed and clarified with Professor Oitmaa and Professor Sutherland. I have instructed Professor Oitmaa that once you have accepted the role of First Year Laboratory Director that he and Professor Sutherland should meet with you to discuss the two issues I have referred to above, to clearly define the expectations of all parties in you taking on the role of First Year Laboratory Director over the next three years. I have also discussed with Professor Oitmaa and the Dean my view that the Dean should have an ongoing role to ensure that the issues referred to in this letter are monitored during the period that you undertake the role of First Year Laboratory Director.You should however be aware that the discussions will only commence on the basis that you agree to accept the responsibility of First Year Laboratory Director. The role is an academic function which is able to be performed by an Associate professor and which you have been properly directed to take up.You will need to respond to me in writing by the close of business Monday 9 March 1998 indicating, without qualification, your acceptance of the role. If you fail to accept the role within the time frame indicated, I will proceed to take disciplinary action against you and consider the options available to me under the UNSW (Academic Staff) Enterprise Agreement 1997-98, including demotion or termination of your employment at this University.”·The applicant responded by letter dated 9 March 1998, disputing that he was guilty of serious misconduct, reiterating his earlier reasons. On 12 March, the applicant indicated that he would not accept the role of FYLD.·By letter dated 13 March 1998, the Vice-Chancellor summarily dismissed the applicant for his refusal to obey the Head of School’s instructions.(b) Was the termination of employment harsh, unjust or unreasonable within s 170CG(3)?
Decision
Reasons for decision
In order to understand the issues in the application, it will be necessary to refer to the reasons of the Senior Deputy President, and those of the Full Bench, in some detail.THE DECISION OF THE SENIOR DEPUTY PRESIDENT The reasons for this decision were lengthy, but her essential reasons for dismissing the application under s 170CE for an order of reinstatement on the ground that the dismissal of the applicant was harsh, unjust or unreasonable may be summarised, as follows:(a) Summary of evidence The Senior Deputy President described the evidence before her thus:·The applicant commenced employment with the second respondent in 1977 as a professional officer. He was subsequently appointed to more senior positions. At the time of his dismissal in March 1998, he was an Associate Professor, having been promoted to this position in January 1990. He was then working in the Department of Condensed Matter Physics within the School of Physics (“the School”), in the Faculty of Science and Technology (“the Faculty”).·The terms and conditions of academic staff of the second respondent were regulated, relevantly, by the Universities and Post Compulsory Academic Conditions Award 1995 (“the Award”); and by the University of New South Wales (Academic Staff) Enterprise Agreement 1997-98 (“the EBA”).·Within the School there is a position known as First Year Laboratory Director (“FYLD”), an important “job” (“the job”) (although not referred to by that name in any award or the EBA) which is allocated to a member of the academic staff by the Head of School (Professor Oitmaa). Students enrolled in courses requiring them to spend time in the First Year Laboratory (“FYL”) come not only from the Faculty but also from other Faculties. Much of the School’s budget reflects “earnings” for providing this teaching to students of other faculties.·Over the previous twenty years, the job has been performed by one particular member of the academic staff, but, by 1997, Professor Oitmaa had formed the view that it was time for a change in the way the job was done and the FYL operated. In February 1997, Professor Oitmaa asked the applicant whether he would be interested in being FYLD, as the position was becoming vacant later in the year, when the incumbent would move to another position. The applicant declined.·In August 1997, Professor Oitmaa asked any member of staff interested in taking on the position of FYLD to contact him. There were no volunteers.·Professor Oitmaa then decided that the applicant was the best person for the job, for the following reasons: his experience; his stated interest in teaching and curriculum development; the fact that he had not undertaken significant administrative duties since 1992; he had only supervised one PhD student; and he did not have a research output sufficient to prevent him undertaking the job.·In September 1997, Professor Oitmaa wrote to the applicant asking him to take on the position of FYLD from 1 December 1997, stating that no one had volunteered and that the job “needs to be done”, and giving, in essence, the reasons mentioned above why the applicant had been approached.·The applicant responded in late September 1997, stating that the FYLD would have little, if any, time for research and that he had already filled two positions which had taken research time – Second Year Laboratory Director (1982 – 88) and Post-Graduate Director (1989 – 1992).·The applicant and Professor Oitmaa met later in September 1997. The applicant expressed his reasons for not wishing to undertake the job. Professor Oitmaa offered to appoint additional staff to take on some aspects of the job. This offer was repeated by Professor Oitmaa in a memorandum to the applicant dated 30 September 1997, in which Professor Oitmaa also expressed his belief that, as FYLD, the applicant would still have the equivalent of two days per week for research.·By memorandum dated 29 October 1997, the applicant informed Professor Oitmaa that he declined to accept the job.·Professor Oitmaa replied by memorandum to the applicant dated 5 November 1997, indicating that the applicant’s conduct constituted a “clear refusal to accept a legitimate assignment of teaching and administrative duties …”.·By letter dated 10 November 1997, the University’s Vice-Chancellor wrote to the applicant in this connection and referred to cl 14.2(b) of the EBA. Clause 14.2 deals with disciplinary action for misconduct/serious misconduct. By cl 14.2(b), the Vice-Chancellor is to consider any such allegation and, if he/she believes it warrants further investigation, the Vice-Chancellor shall notify the academic and require a written response. The applicant was required to respond to the allegation that, on at least four separate occasions and without reasonable excuse, he refused to carry out the lawfully given instructions of his supervisor, Professor Oitmaa, to undertake the responsibility of FYLD.·In his written response dated 26 November 1997, the applicant denied the allegation on several grounds, including his claim that the instruction was unreasonable, unjust and oppressive, as it was effectively a demotion, because the job’s responsibilities were inconsistent with the Position Classification Standards (“PCS”) in the EBA, and involved lower level administrative duties.·The Vice-Chancellor replied by letter dated 28 November 1997, informing the applicant that the matter would be referred under cl 14.2(f) to a Misconduct Investigation Committee (“MIC”) in accordance with the terms of reference in cl 14.3.2, that is, to report on the facts and on any mitigating circumstances.·In its report dated 23 February 1998, the MIC noted that there was a real issue about whether the allegation, in the light of the alleged facts and circumstances, might give rise to a finding of misconduct; that the duties of FYLD were extensive and lent credence to the claim that there would be insufficient time left for an average of two days per week for research; that the previous FYLD had been a tutor, then a lecturer, and the position had not before been filled by an Associate Professor; and that there were mitigating circumstances which deserved consideration.·Upon receipt of the report, by letter dated 4 March 1998, the Vice-Chancellor notified the applicant of a determination that the applicant had been found guilty of serious misconduct, and that, although disciplinary action could be taken, the Vice-Chancellor had decided to address two of the applicant’s concerns and to give the applicant a final opportunity to accept the job; but that, if not accepted, the Vice-Chancellor would proceed to disciplinary and other action. With respect to the first area of concern (research time) the Vice-Chancellor said that Professor Oitmaa was confident that the applicant would have two days per week for this, averaged over the academic year and that the role of FYLD would, in the case of the applicant, be for a term of three years maximum. Secondly, the job did not involve a demotion: it was not a full-time academic position, but rather a component which made up a full-time academic position. The letter continued:“I understand that the importance of the role of First Year Laboratory Director to the School of Physics is not at issue. Rather your concerns about taking on the role are based on your observations of how the previous incumbent performed the role. Professor Oitmaa does not envisage a similar role for you as First Year Laboratory Director. In his memo to you of 10 September 1997 Professor Oitmaa indicated that he thought you had both the capacity and ability necessary to undertake the role of First Year Laboratory Director. He says in his memo, (referred to at page 3 of the Committee’s report): ‘I am approaching you for a number of reasons. Firstly I am convinced of the essential nature of the laboratory program and the pivotal role it must continue to play in educating both physics majors and servicing students. Therefore it is essential that the laboratory be overseen by someone with sound educational views and a commitment to quality teaching. Secondly, it requires a capacity and willingness to work hard and you have demonstrated these qualities over the years. Finally, it needs, I believe, someone with an experimental approach to physics. I have given serious consideration to all of the School’s current academic staff and I believe you are the best person for the position. Professor Oitmaa went on in his memo to describe the role envisaged and said that (at page 3 of the Committee’s report),‘… the laboratory had been drifting for the last few years and some urgent revitalization is needed.’The exact duties of the role and the level of support staff assigned to assist the Director should be discussed and clarified with Professor Oitmaa and Professor Sutherland. I have instructed Professor Oitmaa that once you have accepted the role of First Year Laboratory Director that he and Professor Sutherland should meet with you to discuss the two issues I have referred to above, to clearly define the expectations of all parties in you taking on the role of First Year Laboratory Director over the next three years. I have also discussed with Professor Oitmaa and the Dean my view that the Dean should have an ongoing role to ensure that the issues referred to in this letter are monitored during the period that you undertake the role of First Year Laboratory Director.You should however be aware that the discussions will only commence on the basis that you agree to accept the responsibility of First Year Laboratory Director. The role is an academic function which is able to be performed by an Associate professor and which you have been properly directed to take up.You will need to respond to me in writing by the close of business Monday 9 March 1998 indicating, without qualification, your acceptance of the role. If you fail to accept the role within the time frame indicated, I will proceed to take disciplinary action against you and consider the options available to me under the UNSW (Academic Staff) Enterprise Agreement 1997-98, including demotion or termination of your employment at this University.”·The applicant responded by letter dated 9 March 1998, disputing that he was guilty of serious misconduct, reiterating his earlier reasons. On 12 March, the applicant indicated that he would not accept the role of FYLD.·By letter dated 13 March 1998, the Vice-Chancellor summarily dismissed the applicant for his refusal to obey the Head of School’s instructions.(b) Was the termination of employment harsh, unjust or unreasonable within s 170CG(3)?
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.