Mr Jesse Sheng Jin v University of Newcastle

[2013] FWC 1049

Note: Appeals pursuant to s.604 (C2013/3468 and C2013/3620) were lodged against this decision - refer to Full Bench decision dated 14 October 2013 [[2013] FWCFB 3369] for result of appeal.

[2013] FWC 1049

FAIR WORK COMMISSION

SUPPLEMENTARY DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Mr Jesse Sheng Jin
v
University of Newcastle
(C2011/3787)

s.394—Application for unfair dismissal remedy

Mr Jesse Sheng Jin
v
University of Newcastle
(U2012/5801)

DEPUTY PRESIDENT SMITH MELBOURNE, 15 FEBRUARY 2013

Supplementary decision.

[1] On 18 January 2013 I published a decision 1 in relation to an application made by Professor Jin alleging that he was dismissed harshly, unjustly and unreasonably from his employment with The University of Newcastle (the University). In that decision I found that the University had a valid reason for terminating the employment of Professor Jin2 but that the dismissal was harsh.3

[2] In turning to remedy, I observed that I faced a dilemma and posited that, as Professor Jin was a leading researcher and Chief Investigator, it would be inappropriate to reinstate him “in a role where he would again become the Chief Investigator”. 4 However, I also drew attention to the provisions of the University of Newcastle Academic Staff Enterprise Agreement 2010 (the Agreement) which dealt with disciplinary action following findings of either misconduct or serious misconduct. Clause 12 of the Agreement provides:

12.0 DISCIPLINARY ACTION

12.1 Decisions to discipline a staff member may result from:

(i) Unsatisfactory Performance-Clause 10; or

(ii) Misconduct / Serious Misconduct-Clause 11.

12.2 The decision to take disciplinary action is made by the Vice-Chancellor or appropriate Deputy Vice-Chancellor. Disciplinary action means any one or combination of the following:

(i) counselling; and/or

(ii) further training and development; and/or

(iii) formal censure; and/or

(iv) loss of increment(s); and/or

(v) demotion; or

(vi) termination alone.

12.3 In cases involving misconduct not amounting to serious misconduct, disciplinary action will be limited to the scope of Clause 12.2(i)–(v).

[3] It can be seen that under the Agreement (of the parties), that a person is only subject to dismissal in the event of serious misconduct. The dilemma was obvious: I had found that Professor Jin was not guilty of serious misconduct, but misconduct. If Professor Calford had made a similar finding, then the University would not have dismissed him. However, I had also expressed the provisional view that reinstatement was inappropriate in his previous role.

[4] Against that background, I invited the parties to address me further on how the Agreement provisions might impact upon my final decision on remedy. In this connection a further hearing was held on 31 January 2013.

[5] At that time, Mr Slevin emphasised the nature of academic employment having regard to the decisions referred to in my earlier decision. He argued that the Agreement gave weight to the nature of that employment by limiting termination of employment to serious misconduct. He argued that the term of the Agreement should be persuasive in the exercise of discretion about whether or not to reinstate Professor Jin. Simply put, if the Agreement had been applied to the findings made, the University would not have terminated the employment of Professor Jin and therefore he should be reinstated. Mr Slevin argued that Professor Jin did not have to be a Chief Investigator if he was returned to employment with the University.

[6] Mr Slevin drew attention to the objects of that Part of the Fair Work Act 2009 (the Act) dealing with remedies in relation to unfair dismissal and the view expressed by a Full Bench that reinstatement is the presumptive remedy. 5 Mr Slevin argued that if Professor Jin was reinstated, he didn’t need to be a Chief Investigator and that his job was Chair of Information Technology in the Faculty of Science and Technology.

[7] Mr Warren argued that a finding had been made that reinstatement was inappropriate and the terms of the Agreement, whilst relevant to the exercise of discretion, are not binding. Mr Warren submitted the University is not facing an application for breach of the Agreement but an unfair dismissal application where the employer had already made a decision.

[8] There is no doubt that the decision, as to whether or not to reinstate, is an exercise of discretion having regard to the fact that reinstatement is the first matter to which attention is given. It is only if that is found to be inappropriate that consideration can be given to compensation. There is an emphasis given to reinstatement in the the Act.

[9] Against that background it is appropriate to examine the terms of the Act. Section 391 provides:

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

[10] Section 391(1)(a) and (b) are the relevant provisions. An order of reinstatement has to be to the same position or another position which is no less favourable. There is no jurisdiction to simply reappoint to any position at whatever terms are considered appropriate. There is no doubt that the evidence showed that Professor Jin’s research, that led to funding, meant that he was mostly the Chief Investigator. Professor Calford expressed the view that it would be very difficult for someone to maintain a reputation as a leading researcher if they were not the principal Chief Investigator. His evidence, under cross-examination by Mr Slevin, was:

---I think it would be a very difficult position for someone to maintain their reputation as a leading researcher if they were second, third or fourth chief investigator behind another investigator, and passed on their responsibilities to run those grants to that first-named chief investigator. I mean, essentially that means you’re pulling someone on for their good CV to backup someone else’s proposal. You know, those people holding those grants as first-named CI would want to have the responsibility and want to set the direction of those, I can’t imagine a researcher wanting to have someone else behind your name down the list, but who was really doing the work, but they were taking the responsibility. That’s a bizarre situation.

I’m asking you whether it allays your concern about approving grants in which Prof Jin would be the CI. I’m not asking you to give an opinion as to whether Prof Jin would accept a second CI position. Do you understand that, professor? ---You’re asking me whether it allays my concerns that Prof Jin could be a CI but not senior CI. Is that what you’re saying?

In which case you wouldn’t have to approve any grant applications. That should allay your concern, professor, shouldn’t it?---Well, if I can say, I think this is an unworkable situation. I just can’t see that working. 6

[11] Professor Jin was rightly proud of his research, the beneficial impact upon funding arrangements for the University from the grants he received, as well as the number of PhD students he attracted. At the time of his recruitment he was the Chief Investigator for nine Australian Research Council grants. 7

[12] It appears to me that being a Chief Investigator was important to being a leading researcher and being recognised as such with peers and funding bodies. There is no doubt that the Chief Investigator has the intellectual carriage of the project and that there can be more than one Chief Investigator. In this connection, however, I accept the evidence of Professor Calford about the workability of any other approach. It follows, that if reinstatement was to be ordered, then consideration would have to be given to the key aspects of Professor Jin’s employment and to what position was he being reinstated. With reputation being so important, any order of reinstatement would have to encompass an availability for the role of Chief Investigator otherwise it would not be to the position he was employed immediately prior to his dismissal or to a comparable position.

[13] It would seem absurd to reinstate Professor Jin as the Chair of an area but in the knowledge that he could not take the lead role in research activities and be excluded from any financial decision. As I stated earlier, I accept the evidence of Professor Calford where he said it would be a bizarre situation. Reinstatement cannot be limited to just salary but it must comprehend the full scope of the position previously held. That is why in the alternative, reinstatement can occur on terms and conditions no less favourable. In my view, given the nature of beneficial legislation, this section of the Act should not be read narrowly.

[14] It is the tension between the Agreement and the facts as presented to me about the nature of the reinstatement which must be balanced in the exercise of discretion. These are peculiar circumstances. Taking all those matters into account I find that it would be inappropriate to reinstate Professor Jin to the position he was employed immediately before his dismissal and that there is no comparable position which comprehends his terms and conditions of employment.

[15] That now leads to a consideration of what compensation, if any, should be awarded. I direct that Professor Jin file and serve his submission by close of business 1 March 2013 and that the University file and serve its response by 15 March 2013. Professor Jin may then have 7 working days to reply. I should add that I am of the preliminary view that the terms of Clause 12 of the Agreement are a relevant consideration when assessing compensation and I would welcome the views of Counsel on that point.

DEPUTY PRESIDENT

Appearances:

T. Slevin of Counsel on behalf of Professor Jesse Sheng Jin.

R. Warren of Counsel on behalf of University of Newcastle.

Hearing details:

2013.

Melbourne/Sydney:

January, 31

 1   [2013] FWC 418

 2   Ibid, Paragraph 89

 3   Ibid, Paragraph 106

 4   Ibid, Paragraph 112

 5   [2010] FWAFB 8753

 6   Transcript PN3882-3884

 7   Exhibit S2, paragraphs 15-19

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