National Tertiary Education Industry Union v Central Queensland University
[2009] FWA 780
•28 OCTOBER 2009
[2009] FWA 780 |
|
DECISION |
Fair Work Act 2009
s.772 (2) - Application for orders by Commission about operation of Part 15
v
Central Queensland University
(RE2009/32)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 28 OCTOBER 2009 |
Summary – right of entry – whether reasonable grounds for suspicion of breach – existence of facts to incite a state of mind - whether orders should be made – scope of documents able to be sought under s. 483 of the Fair Work Act compared to provisions under the Workplace Relations Act.
[1] This matter concerns an application by the National Tertiary Education Union (“NTEU”) under s.772 of the Workplace Relations Act 1996 (“the WR Act”).
[2] The Respondent is the Central Queensland University (“the University”).
[3] The background to this matter involves (at its initial point) some concerns the University believed were of a serious nature relating to the improper conduct of one of its academics, referred to in this decision as Academic Z (whose identity is preserved for reasons of ensuring anonymity at this juncture) in relation to number of work colleagues (both male and female).
[4] The application under s.772 of the WR Act arose by way of a notice given by Mr Dan Coughlan of the NTEU to the University on 19 June 2009. The notice was an Entry Notice provided for under s.738 of the WR Act, and was stated to operate on Tuesday, 23 June 2009.
[5] The entry was sought for the stated purpose of investigating a breach pursuant to s.747 of the WR Act. Section 747 of the WR Act and s.749 of the WR Act which sets conditions in respect of a notice under s.747, and s.754 of the WR Act which bears on the s.749 of the WR Act, reads as follows:
“747 Right of entry to investigate breach
Right of entry for breach of Commonwealth industrial law etc.
(1) If a permit holder for an organisation suspects, on reasonable grounds, that a breach has occurred, or is occurring, of:
(a) this Act; or
(b) an ITEA; or
(c) an award or collective agreement or an order of the Commission under this Act, being an award, collective agreement or order that is binding on the permit holder’s organisation; or
(d) an employee collective agreement, or an employer greenfields agreement, that is binding on an employee who is a member of the permit holder’s organisation;
then, for the purpose of investigating the suspected breach, the permit holder may, during working hours, enter premises if:
(e) work is being carried out on the premises by one or more employees who are members of the permit holder’s organisation; and
(f) the suspected breach relates to, or affects, that work or any of those employees.
No right to investigate ITEA breach unless employee requests
(2) Paragraph (1)(b) does not apply unless the employee who is a party to the ITEA makes a written request to the organisation to investigate the breach.
749 Limitation on rights—entry notice or exemption certificate
(1) Section 747 does not authorise entry to premises unless:
(a) the conditions in subsection (2) of this section are satisfied; or
(b) the conditions in subsection (3) of this section are satisfied.
(2) The conditions are:
(a) the permit holder gave an entry notice to the occupier of the premises and gave the notice during working hours at least 24 hours, but not more than 14 days, before the entry; and
(b) the entry notice specifies section 747 as the section that authorises the entry; and
(c) the entry notice specifies particulars of the suspected breach or breaches; and
(d) the entry is on a day specified in the entry notice.
(3) The conditions are:
(a) the entry is on a day specified in an exemption certificate under section 750 and the premises are the premises specified in the exemption certificate; and
(b) the permit holder gave a copy of the exemption certificate to the occupier of the premises not more than 14 days before the entry.
(4) Conduct after entry is not authorised by section 748 unless the conduct is for the purpose of investigating a suspected breach identified in the permit holder’s authority documents.
754 Burden of proving reasonable grounds for suspecting breach
Whenever it is relevant to determine whether a permit holder had reasonable grounds for suspecting a breach, as mentioned in section 747, the burden of proving the existence of reasonable grounds lies on the person asserting the existence of those grounds.”
[6] Fair Work Australia (“FWA”) may determine such a dispute for reasons of the operation of s.7 of Schedule 14 of Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FWCTA Act”), which reads:
“7 Continued application of WR Act
(1) An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2.
(2) Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act.
(3) Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by FWA under section 505 of the FW Act.
(4) For the purposes of subitem (3), section 505 of the FW Act applies:
(a) as if the reference in subsection (1) of that section to “this Part” (being Part 3-4 of the FW Act) were a reference to Part 15 of the WR Act; and
(b) in a similar way to the way in which it applies for the purposes of the FW Act.”
[7] Because of the operation of s.7(3) and s.7(4) of the FWCTAAct, FWA may only deal with the dispute which is the subject of this application through s.505 of the Fair Work Act 2009 (“the FW Act”).
[8] Section 505 of the FW Act reads as follows:
“505 FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.
(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) FWA may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.
(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.”
[9] In effect, the dispute is heard by FWA as if it were a dispute under s.505 of the FW Act, though FWA deals with the dispute under the terms of the WR Act.
[10] This is a potentially important conclusion, particularly in cases, like this, where the applicant is seeking the production of documents of various kinds. This is because the provisions under the FW Act are different from those under the WR Act.
[11] The FW Act refers to a permit holder accessing a “record or document that is directly relevant to the suspected contravention”. The FW Act states in this regard:
“482 Rights that may be exercised while on premises
Rights that may be exercised while on premises
(1) While on the premises, the permit holder may do the following:
[…]
(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that:
(i) is kept on the premises; or
(ii) is accessible from a computer that is kept on the premises.
[…]
483 Later access to record or document
Later access to record or document
(1) The permit holder may, by written notice, require an affected employer to produce, or provide access to, a record or document (other than a non-member record or document) that is directly relevant to the suspected contravention on a later day or days specified in the notice.
[…]” (my emphasis)
[12] Whereas in the WR Act refers to “records relevant to the suspected breach” 1:
“748 Rights of permit holder after entering premises
[…]
Inspection of records while on the premises
(4) While on the premises, the permit holder may, for the purpose of investigating the suspected breach, require an affected employer to allow the permit holder, during working hours, to inspect and make copies of, any records relevant to the suspected breach (other than non-member records) that:
(a) are kept on the premises by the employer; or
(b) are accessible from a computer that is kept on the premises by the employer.
Inspection of records at later time
(5) The permit holder may, for the purpose of investigating the suspected breach, by notice in writing, require an affected employer, on a later day or days specified in the notice:
(a) to produce, or allow access to, all records, or particular records, relevant to the suspected breach (other than non-member records), either at the premises or at another place that is agreed between the permit holder and the employer; and
(b) to allow the permit holder, during working hours, to inspect and make copies of, any of those records.
[…]” (my emphasis)
[13] The Macquarie Dictionary’s definition of “directly” which is “absolutely; exactly; precisely”.
[14] In my view, it appears the scope of documents that may be accessed by a permit holder under the FW Act has been constrained to those that are “directly relevant” to the suspected breach. This qualifying requirement (that the documents sought be “directly” relevant) may have the effect of narrowing the scope of documents that may be accessed compared with the provisions under the former Act.
[15] I note also that the Supplementary Explanatory Memorandum at Item 201 bears on these matters in so far as it provides guidance as to Parliament’s intent in making the amendment:
“Paragraph 482(1)(c) and subclause 483(1) of the Bill allow permit holders to require occupiers or employers to produce records or documents relevant to a suspected breach while the permit holder is on the premises or at a later time. These amendments make it clear that only documents that are directly relevant to the suspected contravention can be inspected or copied. This ensures that permit holders only collect information that is closely aligned to, and directly achieves, the intended purpose of the collection.”
[16] In view of these observations, if this application had been constituted under the terms of the FW Act, then the scope of the order as sought by the NTEU may have fallen into contest, particularly as far as those orders seek “relevant” amongst “related” information, emails, documents and correspondence including marginal notations (marginalia). Arguably, certain documents sought by the NTEU may not be absolutely, exactly or precisely related to the suspected contravention. The scope of the order sought by the NTEU is set out in full at paragraph 19 below.
[17] In the present matter, the suspected breach which arose for the purpose of s.481 of the WR Act was in relation to the following matter:
“That by her letter of 12 June 2009, to our member, [Academic Z][…], Deputy Vice-Chancellor Angela Delves imposed a suspension on [Academic Z], contrary to the requirements and limitations specified for such an action by Clause 18 (of the Central Queensland University Union Collective Agreement (Academic Employees) 2007).” 2
[18] There is no dispute that Mr Coughlan is a permit holder under the WR Act.
[19] Clause 18 of the Central Queensland University Union Collective Agreement (Academic Employees) 2007 Agreement (“the Agreement”) to which the Notice of Entry referred reads as follows:
“18. Misconduct or Serious Misconduct
(This clause does not apply to Senior Staff except as provided for in subclause 4.4.3 of clause 4 Operation of Agreement)
18.1 Application
No disciplinary action, as defined in Schedule 3 of this Agreement, for misconduct or serious misconduct can be taken against an employee other than through the process and terms of this clause.
18.2 Procedures
18.2.1 Statement of allegations
Allegations of misconduct or serious misconduct must be made in writing to the employee and signed by the Deputy Vice-Chancellor. The allegations must be in sufficient detail to enable the employee to understand their precise nature and to properly consider and respond to them.
18.2.2 Suspension with or without pay
At the time of notifying of allegations of misconduct or serious misconduct, the Deputy Vice-Chancellor or nominee may suspend an employee on full pay or suspend without pay if the Deputy Vice-Chancellor or nominee is of the view that the alleged conduct amounts to conduct of a kind envisaged in Section 661 of the Workplace Relations Act 1996 and Part 12, Division 4, Regulation 12.10 of the Workplace Relations Regulations 2006, and is such that other than for this clause, it would be unreasonable to require the University to continue employment during a period of notice.
If the suspended employee is on pre-approved paid leave of absence, then the period of suspension without pay will take effect subsequent to the period of paid leave. A suspended employee may be excluded from the campus, provided that they will be permitted reasonable access for the preparation of their case and to collect personal property.
Where a suspension without pay has been imposed and the matter is subsequently referred to a Review Committee (clause 53 Review Committees), the Review Committee at its first meeting will recommend to the Deputy Vice-Chancellor or nominee whether suspension without pay should be revoked or continue.
If the original allegations of misconduct or serious misconduct are not upheld, any lost income because of the suspension will be reimbursed.
18.2.3 Employee’s Response
The employee will be required to submit a written response to the allegations of misconduct or serious misconduct within ten (10) working days and can either admit the allegations or deny them in full or in part.
18.2.4 Action open to the Deputy Vice-Chancellor
(a) Where the employee admits the allegations in full, the Deputy Vice-Chancellor may take disciplinary action.
(b) If the allegations are denied in part or in full, the Deputy Vice-Chancellor shall give due consideration to the response of the employee and determine either that there has been no misconduct or serious misconduct or direct that the matter be referred to a Review Committee (clause 53 Review Committees).
18.2.5 Review
The purpose of the Review Committee (clause 53 Review Committees) is to report to the Deputy Vice-Chancellor:
• the facts, as found by the Review Committee, relating to the alleged misconduct or serious misconduct;
• whether, in the Review Committee’s opinion, the alleged conduct comprised either misconduct or serious misconduct; and
• taking any mitigating circumstances into account, to recommend what disciplinary action, if any, should be taken.
18.2.6 Action by the Deputy Vice-Chancellor
The Deputy Vice-Chancellor will consider the report of the Review Committee and will have five (5) working days in which to determine what disciplinary action, if any, should be taken. Such determination will be communicated in writing by the Deputy Vice-Chancellor to the employee.
18.3 Other Matters
18.3.1 The action of the Deputy Vice-Chancellor under subclause 18.2.6 shall be final, except that nothing in this clause shall be construed as excluding the jurisdiction of any external court or tribunal which, but for this subclause, would be competent to deal with this matter.
18.3.2 In determining questions of procedural fairness or due process under this clause, the parties to the procedure will be guided by the principle of a “fair go all around” as mentioned in Section 635 of the Workplace Relations Act 1996.
18.3.3 If the Deputy Vice-Chancellor or nominee is of the view that there has been no misconduct or serious misconduct, he/she will forthwith advise the employee in writing, and may by agreement with the employee, publish the advice in an appropriate manner.”
[20] Appended to Mr Coughlan’s Entry Notice 3 was a request for materials, which read:
“To investigate this suspected breach [of Clause 18 of the Agreement] I would like any and all documents (including emails) that are either directly to or from Professor Delves, Professor Elizabeth Taylor, or the Department of Human Resources and including any material to which such persons were “copied in” regarding or related to the decision to suspend (or exclude) […] [Academic Z].
In addition, if any of these requested materials (as mentioned above) refer to or are based upon other documents or emails, I wish to see those materials as well.
My search includes material:
• whether or not it precedes the date of the letter to […] [Academic Z];
• whether or not the officers mentioned have personal possession at the moment (as long as they are in control of the University); and
• even if the relevant information is marginalia.”
[21] The letter of 12 June 2009, from Deputy Vice Chancellor, Professor Angela Delves as directed to Academic Z (which had excited the Entry Notice) was to the following effect:
- she (Professor Delves) had been advised by the Pro-Vice Chancellor and Executive Dean, Professor Elizabeth Taylor that there were “concerns” that Academic Z had possibly breached the University’s Code of Conduct (in relation to “Respect for the Inherent Dignity of the Individual”).
- an independent external investigation had been launched into the suspected breach;
- the investigator’s report would “assist” Professor Delves “to form as view as to the validity or otherwise of these possible breaches of the Code of Conduct”;
- the “possible breaches” were “so serious they cause physical and\or mental harm, and place at risk the safety and workplace enjoyment of all” 4 and may impact upon the University ‘s obligations under the Workplace Health and Safety Act;
- that because of this it was necessary to “exclude” Academic Z from the University and have him work from home until the investigation was complete; and
- Professor Taylor would oversee the allocation of work to Academic Z and associated logistical issues for this period. 5
[22] On 22 June 2009 the University, through Dr David Swan, Director of Human Resources, wrote in reply to Mr Coughlan’s Entry Notice of 19 June 2009 stating, in effect:
- contrary to the NTEU’s claim, there had been no suspension for purposes of clause 18 of the Agreement;
- Academic Z was working from home and otherwise only excluded from attendance at the University;
- the University had not reached a prima facie case of misconduct or serious misconduct under Clause 18 of the Agreement;
- Academic Z would be advised if any such possible breaches of the University’s Code of Conduct after the independent external investigation had concluded and reported; and
- as a consequence, the University would not be providing the documentation as requested. 6
[23] When Mr Coughlan of the NTEU presented on 23 June 2009 for entry and inspection, he was not provided access to the documents as sought in his Notice of Entry of 19 June 2009.
[24] Academic Z remained subject to the above conditions for the duration.
[25] By correspondence to Academic Z on 27 August 2009, the University brought to the attention of Academic Z the relevant suite of misconduct allegations that arose by way of the external investigator’s report and made express reference to the commencement of procedures under Clause 18 of the Agreement. 7
[26] The alleged misconduct, referred to in passing above, concerned an alleged pattern of behaviour in which Academic Z acted aggressively and\or in an intimidating, belittling and unprofessional manner to his workplace colleagues and, at times, in the company of students.
CONSIDERATION
[27] What is required for the purpose of exercise of a permit holder’s right under s.747 of the Act is a suspicion of a relevant breach.
[28] If the matter of the s.747 Notice falls into dispute, as it has here, it falls to FWA to determine whether the suspicion entertained by the NTEU and as relevantly particularised in the Notice for purposes of s.749 of the Act, was reasonably founded, for the purpose of s.754 of the Act. The Full Bench in Appeal by Australian Municipal, Administrative, Clerical and Services Union against a decision [2007] AIRC 578] issued by Spencer C on 9 November 2007.[2008] AIRCFB 96 (8 February 2008) at paragraphs 17 and 18 stated:
“[17] In our view an occasion on which it will be relevant to determine whether the permit holder had reasonable grounds will be whenever either party initiates a dispute in the Commission over the application of s.747 and in which it is contended that a permit holder did not have reasonable grounds for suspecting a breach of any relevant instrument. Alternatively, it may be relevant to determine whether a permit holder had reasonable grounds for suspecting a breach, e.g. in a prosecution for hindering an employer or for delaying or hindering the permit holder exercising or seeking to exercise rights under s.747. In those circumstances it may be relevant for the Commission or the Court, as the case may be, to determine whether the permit holder had reasonable grounds for suspecting a breach.
[18] In the proceedings at first instance the permit holder’s state of mind was in issue before the Commission, as was the nature of the suspected breaches. It follows from what we have said in the preceding paragraph that Commissioner Spencer did not err in determining that in the proceedings before the Commission the ASU had an obligation under s.754 to prove that the permit holder had reasonable grounds for his suspicion.”
What is a reasonable ground for a suspicion of a breach?
[29] The Full Bench in [2008] AIRCFB 96 went on to hold at paragraphs 27 to 29:
“[27] The seminal case in this area is in fact George v Rocket and it is worth repeating what the High Court had to say on the issue:
When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v. Anderson [citations omitted]. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, eg. Attorney-General v. Reynolds.
[28] More important for present purposes is what the High Court had to say as regards the facts to be established to support reasonable grounds for suspicion, the Court said:
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, `in its ordinary meaning is a state of conjecture or surmise where proof is lacking: `I suspect but I cannot prove.’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. V. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, `was unable to pay [its] debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to `a slight opinion, but without sufficient evidence', as Chamber's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which `reason to suspect' expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.
[29] The statutory context of right of entry provisions and search warrants is different in some respects. For example the purpose and objects of the various police forces seeking search warrants relate to the public interest of preserving the peace. The objects of registered organisations seeking right of entry to an employer’s workplace are concerned with securing and maintaining the integrity of awards, agreements and certain legislative protections for employees. By definition they relate to the furtherance of the interests of employees, not of employers or of both, although there is a common interest of both in the proper application of the WR Act, agreements and awards. Taking account of the difference in statutory context however, a cautious approach needs to be taken and, with that caution in mind, we consider that there is sufficient similarity in the statutory search warrant principles as applied in George v. Rockett to enable us to apply those principles to the right of entry provisions.”
[30] The situation before me is somewhat novel. This is not a case in which there was an allegation of underpayment or non-compliance of an entitlement to an allowance or overtime, and so forth. In the current circumstances, I need to determine whether the NTEU had reasonable grounds to suspect a breach of Clause 18 of the Agreement, which is a matter that extends to issues of construction.
Did the NTEU have reasonable grounds for suspicion of a breach of Clause 18 of the Agreement?
[31] Mr Coughlan, the permit holder referred to above, gave evidence following effect:
- the letter of 12 June 2009 “was written in the context of allegations of misconduct” 8
- it appeared to him to him that Clause 18 of the Agreement is “a complete code” in relation to allegations of wrong doing on the part of academic staff. This is because Clause 18 in part reads:
“18.1 Application
No disciplinary action, as defined in Schedule 3 of this Agreement, for misconduct or serious misconduct can be taken against an employee other than through the process and terms of this clause.” 9
- the effect of the “exclusion” was to “suspend” many of the duties of Academic Z would be required to perform under Clause 27 of the Agreement 10, and that this extended to not being able to conduct lectures11;
- the further effect of the exclusion was to cause Academic Z to be unable to fulfil his wider obligations under the Agreement, such as in relation to Clause 35 of the Agreement states in part that:
“A full-time academic employee is engaged to work and attend the University ... and to perform their assigned duties in the interests of maintaining the efficient operation of the University”
- the exclusion (as it was constructed to be) was inconsistent with Clause 18 of the Agreement in so far as it took effect before such time as any particulars had been provided to Academic Z; 12
- the exclusion was suspected therefore to be a “improper suspension” under Clause 18 of the Agreement;
- it suspected consequently that Academic Z would be denied the benefits of that clause in the event he were exonerated and the procedural fairness rights it also afforded; 13
- That “although we felt that the so-called “exclusion” was contrary to the terms of the Agreement it seemed prudent to attempt to ensure that we were in possession of all the relevant evidence in the matter before deciding whether or not to pursue the matter [whether that be] through the dispute mechanism of the Agreement or in the Court.” 14
[32] The University for its part contends that the claim made by the NTEU of a breach was without substance in that the NTEU had misapplied Clause 18, and more particularly sub clause 18.2.2 of the Agreement.
[33] The University’s reasoning in this regard was that the direction given to Academic Z was not a “suspension” from the campus for the purpose of sub clause 18.2.2 of the Agreement. The reason for this was that Academic Z had not been informed of any allegations of misconduct for purposes of Clause 18 of the Agreement, and he been excluded from the campus, not suspended.
[34] The exclusion, it follows, was not a form of suspension for misconduct under clause 18 of the Agreement for reason that none of the concerns noted in the correspondence of 12 June 2009 were at this point capable of being sufficiently characterised as allegations (in advance of the external investigator’s report).
[35] Further, Dr Swan’s correspondence of 22 June 2009, cited above, made clear to the NTEU that the University considered that it had not suspended Academic Z for purposes of Clause 18 of the Agreement, and no allegations of misconduct (if they were indeed warranted) would be put to him until the University had received the external investigator’s report. 15
[36] Clause 18 of the Agreement therefore had not yet begin to apply to Academic Z as no allegations had been put to him and none were capable of being put to him in the manner contemplated by Clause 18 of the Agreement
[37] The University also submitted that there was no genuine reason for the Right of Entry to be exercised as all the relevant facts had been disclosed to the NTEU by the University by way of the correspondence of 12 June 2009 and 22 June 2009. 16
[38] The University therefore contended that the “logical corollary of s.767(3) of the Act” was that in such circumstances a permit holder may be refused entry.
[39] The University also argued:
- that if the NTEU genuinely believed that there had been a breach of the Agreement it could have sought a civil remedy by direct appeal to the Court under s.769 of the Act. It did not do so, and this tells against the genuineness of the belief held by the NTEU 17; and
- there is no statutory or common law right of an employee to attend a workplace and perform work on a particular day as a matter of discretion, and an employer is entitled to exercise reasonable directions that might affect an employee in any of these respects. 18 In this sense, the NTEU was wrong to conclude that the University’s actions were taken in respect of Clause 18 of the Agreement.
[40] Both parties accede, it appears, to the guidance of the relevant authorities which suggest that for purposes of determining whether there were (in retrospect – s.754 of the Act) reasonable grounds for suspecting a breach, the NTEU must have relied upon “certain facts which were sufficient to induce that state of mind in a reasonable person.” 19
[41] In the current context, the issue was succinctly put by the University as follows:
“[...] the test that must be applied [...] is not the state of mind of Mr Coughlan, the permit holder, but that of the “reasonable person”.” 20
[42] To this I would add that the state of mind may also have arisen in an organisational sense, on the part of the NTEU itself, and not just in the mind of the permit holder as such.
[43] Indeed, given Mr Coughlan’s evidence, it would appear the state of mind that emerged in respect of the suspicion of a breach was held in an organisationally collective sense, and was shared by Mr Coughlan himself. This was confirmed by Mr Coughlan’s viva voce evidence.
[44] Little though turns on this distinction in the current circumstances, as the task before me is to determine whether it was reasonable to hold the suspicion that there had been a breach of the Clause 18 of the Agreement, at the relevant time.
[45] Clause 18.2.2 of the Agreement states in part that “a suspended employee may be excluded from the campus”. Academic Z was excluded from “attendance on campus”. This was made clear in the correspondence on 12 June 2009.
[46] The correspondence of 12 June 2009 as directed to Academic Z further indicated that the Deputy Vice Chancellor was acting to exclude Academic Z from campus on the basis of other correspondence not sighted by Academic Z but in the Deputy Vice Chancellor’s possession that detailed concerns into possible breaches of the University’s Code of Conduct.
[47] The correspondence informed Academic Z that an external report was to be initiated for purposes of assisting the Deputy Vice Chancellor “form a view as to the validity or otherwise of these possible breaches of the Code of Conduct”. That is, the Deputy Vice Chancellor had stated that the external report was to be used as a means of forming a view as to whether the concerns detailed in another undisclosed item of correspondence may represent potential breaches of the Code of Conduct.
[48] Clause 18 of the Agreement sets out procedures for dealing with allegations of misconduct by an employee of the University.
[49] Sub clause 18.1 of the Agreement states that:
“no disciplinary action, as defined in Schedule 3 of the Agreement, for misconduct or serious misconduct can be taken against an employee other than through the process and terms of this clause.”
[50] Sub clause 18.2.1 of the Agreement requires the University to detail allegations of misconduct in writing to the employee at the time of the suspension of an employee.
[51] Sub clause 18.2.3requires the relevant employee to respond to these detailed allegations within 10 days.
[52] A suspension of an employee may be on a paid or an unpaid basis, and it may or may not involve an exclusion from the campus. 21
[53] An employee who is suspended and excluded from the campus has a right to reasonable access to the campus to prepare his case in reply and to collect personal property. 22
[54] Clause 18 of the Agreement is silent as to whether an employee who is suspended and excluded from the University, but who is paid, can perform a range of duties from home during this period.
[55] In my view, the circumstantial matrix on 12 June 2009 was as follows:
- Academic Z was “excluded” from the University on grounds of concerns about potential allegations of misconduct which had been detailed to the Deputy Vice Chancellor (but not to Academic Z);
- Academic Z’s “exclusion” from the campus (whilst being paid and whilst other duties as far as practicable were performed in modified ways from home) was explained at the time (as cited in the correspondence of 22 June 2009) as being a precautionary action on the part of the University to manage its various risks in relation to those “concerns”, and was not motivated otherwise by a decision to suspend Academic Z for misconduct under Clause 18 of the Agreement;
- that the Deputy Vice Chancellor would instigate an external investigation by which she would form a view as to the potential validity or otherwise of the concerns (but made no reference to Academic Z’s rights of reply in relation to the decision to exclude him from the campus on the terms set out above); and
- the correspondence of 12 June 2009 had made no reference to or sought to distinguish the process in respect of an action taken under Clause 18 of the Agreement.
[56] It appears to me that, on balance, there was sufficient information in existence on 12 June 2009 that demonstrated that the University was not motivated to exclude Academic Z from the campus on grounds of misconduct.
[57] The exclusion on the terms as set out in the correspondence does not have the character of a disciplinary action akin to suspension. This is particularly evident in so far as the University sought to manage logistical issues in the terms envisaged by Clause 18 of the Agreement allowing for the performance of ordinary duties as much as practicable and by so doing, in effect, sought to tread as lightly as possible upon Academic Z’s standing and status.
[58] I think it is tolerably clear from the correspondence of 12 June 2009 that the University was prompted to act quickly and to direct the performance of work in a different manner for reasons of necessity in relation to potential workplace health and safety issues.
[59] This is not an unusual action on the part of an employer when faced with an emergent workplace problem of some consequence for internal relationships, and which is of some undefined scope and\or is not capable of immediate resolution . In such situations, acting at the direction of the employer, an employee might be stood down temporarily (on short notice) and on pay pending an investigation, after which they might be required to address specific allegations (if any should emerge).
[60] In the case before me, more was done still: the employee was able to continue to perform their duties as best they could be managed from home, with the logistical support of another academic.
[61] I see no alternative to managing the variety of legal and other real risks that might emerge in the workplace other than by such reasonable directions on the part of an employer.
[62] I think such action on the part of the University as I have described is sufficiently distinguishable on its face from an action in relation to an action take by the University in relation to misconduct under Clause 18 of the Agreement. It appears to me to have been an action of the kind described immediately above.
[63] It also appears to me that the requirements under Clause 18 of the Agreement requires the University to provide, in misconduct contexts, detailed allegations to any employee upon the suspension or exclusion for misconduct, and to set a 10 day timeframe within which to reply to such detailed allegations. These were not actions that were contemplated within the correspondence of 12 June 2009 for reason that the exclusion was not a suspension for reasons of allegations of misconduct that would be put to Academic Z.
[64] This is not because the clause was breached, in my view, but because the situation in which the University found itself related to, at best, “concerns” or proto-allegations. And as such, they required further investigation (through an external investigator) before they could take the form of detailed allegations that could be put to Academic Z (and such that he could reply meaningfully to them within a defined timeframe).
[65] In effect, therefore, there was no suggestion in the correspondence of 12 June 2009 that the exclusion from the University campus was for reason of allegations of prima facie misconduct (as none had crystallized at that juncture).
[66] On the basis of this construction, which I have found to be tolerably clear from the primary document (that being the correspondence of 12 June 2009), the NTEU could not have been seized of certain facts that could have induced a suspicion that Clause 18 of the Agreement had been breached, or otherwise have reached a view as a reasonable person.
[67] It is another matter to be seized of genuine concern for the procedural fairness to be afforded to and the public and professional reputation of one of its members. In this regard, the NTEU acted properly in its member’s interests in relation to these matters and agitated its concerns with the University, which is its proper function as a registered organization.
[68] This reasonable reaction to the bona fide concerns set out above, however, should not be confused with or give rise to a suspicion of a breach of Clause 18 of the Agreement, which, for the reasons I have given above, is a different matter.
[69] I note, and no more, that by 22 June 2009, the University had explained (by way of correspondence from Dr Swann cited above) in more detail the precise interaction of the actions taken in relation to the correspondence of 12 June 2009 and Clause 18 of the Agreement. This correspondence was discussed above.
[70] By 27 August 2009, with the external investigation complete, a range of detailed allegations of misconduct was put to Academic Z in accordance with Clause 18 of the Agreement, and the wider process under Clause 18 of the Agreement, as set out above, commenced. It is still ongoing to my knowledge.
[71] I take the matter no further, and the application under s.772 of the WR Act is dismissed for the reasons given above.
SENIOR DEPUTY PRESIDENT
Appearances:
W Danby for the National Tertiary Education Industry UnionD Wedgewood of the Australian Higher Education Industrial Association for the Central Queensland University
Hearing details:
2009.
Brisbane:
21, October.
1 Section 748(4) and (5) of the WR Act
2 Attachment A to the Witness Statement of Mr D Coughlan dated 27 August 2009
3 Attachment B to the Witness Statement of Mr D Coughlan dated 27 August 2009
4 Letter from the Deputy Vice-Chancellor to Academic 2 dated 12 June 2009 and the CQUniversity Code of Conduct at page 5
5 Attachment C to the Witness Statement of Mr D Coughlan dated 27 August 2009
6 Attachment D to the Witness Statement of Mr D Coughlan dated 27 August 2009
7 Appendix 1 to Attachment 1 of the University’s submissions dated 19 September 2009
8 Witness Statement of Mr D Coughlan dated 27 August 2009 at paragraph 12
9 Submissions by the NTEU filed on 28 August 2009 and Witness Statement of Mr D Coughlan dated 27 August 2009 at paragraph 13
10 Witness Statement of Mr D Coughlan dated 27 August 2009 at paragraph 16
11 Transcript of Proceedings on 16 October 2009 at PN88 to PN99
12 Witness Statement of Mr D Coughlan dated 27 August 2009 at paragraph 22
13 Witness Statement of Mr D Coughlan dated 27 August 2009 at paragraph 18 and 19
14 Witness Statement of Mr D Coughlan dated 27 August 2009 at paragraph 23
15 University’s submissions dated 19 September 2009 at paragraph 29
16 University’s submissions dated 19 September 2009 at paragraph 31
17 University’s submissions dated 19 September 2009 at paragraph 38
18 University’s submissions dated 19 September 2009 at paragraphs 40-42
19 George v Rockett (1990) 170 CLR 104 at 112
20 University’s submissions dated 19 September 2009 at paragraph 37
21 See sub clause 18.2.2 of the Agreement
22 See sub clause 18.2.2 of the Agreement
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR990150>
1
1
0