Nitya Karmakar v C Management Services Pty Ltd T/A CQ University Sydney
[2013] FWC 1692
•30 MAY 2013
[2013] FWC 1692 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nitya Karmakar
v
C Management Services Pty Ltd T/A CQ University Sydney
(U2012/7619)
COMMISSIONER ROBERTS | SYDNEY, 30 MAY 2013 |
Application for unfair dismissal remedy - alleged serious misconduct.
[1] This decision concerns an application lodged on 30 April 2012 by Dr Karmakar pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by C Management Services Pty Ltd T/A CQ University Sydney (CMS or the University).
[2] CMS initially raised a jurisdictional objection on the ground that the Applicant is not protected from unfair dismissal because he had not completed the minimum employment period. That objection was later withdrawn and the matter was set down for arbitration. Directions were issued for the filing of written submissions, witness statements and any supporting documents and both parties complied with those directions. The matter then came before me in Sydney on 10 December 2012 and 14 January 2013. Final submissions were in writing and the submission process ended on or about 25 March 2013.
[3] At the hearing Dr Karmakar represented himself and CMS was represented by Mr J Darams of Counsel with Ms J Smith of Middletons (both by permission). The applicant gave sworn evidence on his own behalf. Ms S Loomes (Campus Director), Ms J Brown (General Manager Human Resources) and Mr R Kelly (Lecturer) gave sworn evidence for the University. In November 2011, Mr Kelly held the position of Acting Associate Director Academic (ADA). It was in that role that Mr Kelly had dealings with Dr Karmakar’s case prior to the termination of Dr Karmakar’s employment.
Background
[4] The applicant commenced employment with CMS as a Casual Lecturer /Tutor/Foundation Studies Teacher on or about 6 March 2006. He entered into a new contract with the University prior to each term and continued to receive contracts until Term 3 2011.
[5] On 31 October 2011, Dr Karmakar advised his students that he would not teach his class scheduled for 7 November 2011. Dr Karmakar left Australia on 2 November 2011 to attend the Global Forum in Brussels. His attendance at the Forum was self-funded. Dr Karmakar has been a regular attendee at previous Global Forums.
[6] He did not inform the University by submitting a rescheduling form before proceeding overseas. When the University discovered that Dr Karmakar had not taught his scheduled class on 7 November 2011, it set in motion an investigation which culminated in the termination of Dr Karmakar’s employment on the ground of serious misconduct. Dr Karmakar denies misconducting himself and submits that he was unfairly dismissed. Dr Karmakar seeks reinstatement and compensation.
[7] Dr Karmakar’s employment by the University was governed by the C Management Services Pty Ltd Union Collective Agreement 2008 (the Agreement). His employment was also subject to a series of some 18 separate Contracts of Employment with the University. The last of those contracts was entered into between the parties on 26 October 2011. It provides for the appointment of Dr Karmakar as a Casual Lecturer/Tutor/Foundation Studies to commence on 31 October 2011 with a fixed termination date of 11 February 2012. A letter of offer of employment dated 27 September 2011 preceded the making of the contract. The contract states that it is to be read in conjunction with the Agreement.
Evidence
Dr Karmakar
[8] Dr Karmakar gave sworn evidence and submitted a witness statement 1. In summary, it was his witness statement that he was first employed by the University in 2006 and was last paid for teaching work for one day (31 October) in Week 1 of Term 3, 2011.
[9] Dr Karmakar said that the making of teaching offers in Foundation Studies subjects was in practice verbal and followed by a written offer.
[10] Dr Karmakar went on to say that he could not recall any discussion at the induction on 26 October 2011 relating to emails to students using their private addresses “let alone any discussion of consequences for doing so leading to serious misconduct ...” He also did not recall a discussion about filling out reschedule forms for Foundation Studies classes and that this had not been required in the past. “Until Term 3, 2011 Tim Hilton organised the scheduling classes were always organised by Tim Hilton, coordinator for Foundation Studies. A Foundation Studies teacher would inform Tim if he or she was absent or unable to take a class on a certain day, Tim would reschedule the class or find a replacement teacher.”
[11] Dr Karmakar said that he attended an academic meeting in America in November 2010 and that Mr Hilton had organised the rescheduling of classes for him. “When I indicated to students on my first day on 31 October that classes would be organised in some other time I meant Tim would organise it and I proposed to Tim on Monday, 31 October 2011 before informing students reschedule my missed classes in week 2 during Term break.”
[12] Dr Karmakar went on to say that he was aware of the appointment of Mr Kelly to the position of Acting ADA from 1 November 2011 but requested Mr Hilton to arrange the rescheduling for 7 November 2011.
[13] Dr Karmakar said that he emailed Ms Loomes and Mr Kelly on 4 November 2011 and emailed Mr Hilton on 14 November 2011 after returning from overseas. Dr Karmakar went on to say that the disciplinary process under the Agreement did not allow his suspension from teaching as set out in Ms Loomes’ email of 7 November 2011. “I was kept without pay from the 2nd week of Term 3, 2011 as a result of removing me from the class room which lacks procedural fairness and which is utterly unfair as I was denied natural justice.”
[14] Dr Karmakar said: “I did not receive any reply to my email of 10 November, so I did not find it logical or appropriate to organise any meeting with the CMS management as they created a hostile environment by removing me from the classroom without showing any reasons and allowing me to respond to it.” He was not informed of the purpose of the meeting on 24 January 2012 “but I accepted this offer in good faith and I seriously thought that he might be discussing my allocation of teaching in Term 1, 2012.”
[15] Dr Karmakar said that at the meeting of 24 January 2012, the primary point of discussion was his use of students’ private email addresses. “During the 24 January meeting there was no appreciation for my good work. I was screamed at throughout the meeting by the Campus Director along with the support of the Acting Associate Academic Director as if I was involved in a criminal activity. During the 24 January meeting I used the word ‘Apology’ several times in an attempt to diffuse her anger.”
[16] “At the 24 January meeting [I] was presented with two options: 1) If I didn’t wish to teach at CMS, no charge will be laid against me; or 2) if I continued to want to teach at CMS I would be charged with ‘serious misconduct’ on the matter of sending an e-mail to students at their private email addresses regarding the cancellation of the class ...”
[17] Dr Karmakar argued that if he were guilty of serious misconduct then the charge should have been brought against him much earlier than 20 February 2012. “The CMS management has exercised this section abnormally and irrationally with an aim to dismiss me as they consider me defenceless and vulnerable.”
[18] “The very superficial investigation. How can I be cleared of wrongdoing as the investigation performed by the very person who dismissed me? Only an independent person or panel cold look into the allegations ‘properly and thoroughly’. It is a case of overreaction and fabrication of nonevents for punishing an innocent person for not doing anything wrong. An independent investigation will surely find that who has behaved recklessly and irresponsibly.”
[19] Dr Karmakar further argued that the “continuous and unacceptable delay for over 5 months since removing me from the classroom on 7 November to bring an allegation of serious misconduct with an aim to allow me to suffer from severe economic loss and mental and psychological stress.” He believed that the University’s action in disconnecting him from the University’s email system caused him to lose access to vital information.
[20] “The meeting of 24th January 2012 is still haunting me and I realised that something very bad was awaiting me, but I had to wait far too long to receive an unexpected outcome. I believe they had no grounds to charge me with any allegation, but they have done it to hide their wrongdoing and also to deny me any teaching allocation in Terms 1 and 2, 2012 and now forever. I shall incur not only heavy financial loss if I am compelled to leave CMS prematurely as I intended to work there for a considerable period of time.”
[21] In cross-examination, Dr Karmakar said that he received an invitation to the Global Forum on or about 28 September 2011 and made a decision at the end of October 2011 to attend the event. 2 He went on to say that he did not decide until the end of October because he was self-funded and had to organise the financial costs involved.3 Dr Karmakar then said that he left Australia on 2 November 2011.4
[22] Dr Karmakar agreed that he attended a staff induction at the University on 26 October 2011 which was carried out by Mr Kelly and that he signed a contract of employment which he was given in that induction meeting. 5
[23] Dr Karmakar maintained his evidence that Mr Hilton had told him that he would inform Mr Kelly of Dr Karmakar’s unavailability to teach his class on 7 November 2011. 6 Dr Karmakar went on to say that if Mr Hilton had not agreed to the rescheduling of the 7 November 2011 class then he would have cancelled his attendance at the Global Forum.7
[24] Dr Karmakar said that he would not have used his students’ private email addresses had he realised such an action would give rise to a charge of serious misconduct. 8 Dr Karmakar stressed that his Foundation Studies class was small, sometimes consisting of only one student. This influenced his decision to use private email addresses.9
[25] Dr Karmakar went on to say that he returned to Australia on 14 November 2011 and agreed that nothing prevented him from going to the University after that date to meet with Mr Holliday. 10 He went on to say that he had been waiting for a response to his email as to why he was removed from teaching. “I waited for the reason because whenever they called a meeting I should have been prepared. But why are they calling meeting? And I think it’s a very serious issue because I was removed from the classroom to a person who is known internationally and doing nothing wrong, then the reason should be informed.”11 He further said that there was no other reason why he did not meet with Mr Holliday.12
[26] Dr Karmakar was asked: “Did you not think that that was the reason why they wanted to speak with you?” and said: “It is not a reason. It is shocking. It is unparalleled in academic history, that any staff who is teaching for the last six semester, from the start of that subject at CQ Sydney had been removed through email and without telling any reason. That is the reason I could not meet him.” 13
[27] Dr Karmakar did not accept the proposition that if he had attended the University on his return from overseas and met with Mr Holliday, he could have received an explanation as to why he had been removed from teaching a class. 14 Dr Karmakar went on to say that he did not think that the University had a reasonable concern for the students on 7 November 2011 because he had informed the students that he would be absent.15
Ms Loomes
[28] Ms Loomes gave sworn evidence and submitted a witness statement 16. In summary, it was her witness statement that she has been employed by the University since 2005, initially as Associate Director Administration before taking up her current position of Campus Director in October 2008. As Campus Manager Director, all academic, facilities and administrative staff report to her and she oversees the Executive Team of the University which deals with the day to day operations of the campus. She has worked in the Australian university sector for some 20 years.
[29] Ms Loomes went on to say that Dr Karmakar was a casual teacher working in the Foundation Studies program which is a bridging unit from high school to university involving some 26 weeks of study “designed to produce students who are equipped to successfully undertake study in a tertiary environment”. All such students are international students studying in Australia on student visas and the University is responsible for the teaching and monitoring of those international students pursuant to the Education Services for Overseas Students Act 2004 (the ESOS Act). The ESOS Act contains the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the Code) 17. The Code sets out 14 standards which the University must meet.
[30] Standard 11 of the Code requires the University to maintain attendance records for each student as each student must attend at least 80% of the scheduled course hours in order to achieve satisfactory attendance. Failure to adhere to the Code would risk the University being deregistered with regard to the teaching of overseas students.
[31] Ms Loomes continued by saying: “It is essential that these particular students in Foundation Studies are accounted for at all times, not only because of the University’s obligation to ensure they are meeting the 80% attendance requirement but because they are a typically younger cohort of students, and therefore especially vulnerable. Staff members sometimes perform ‘floor walks’ during class time to ensure that each class is going ahead as planned and that the students’ are where they are timetabled to be. The University cannot ultimately control their movements but it is important from a risk management point of view, both for them and the University, that the students’ general whereabouts are known to the University. This is a particularly sensitive issue and one that can have significant implications if the student is injured or goes missing while studying at the University.” In her view, the University was placed in loco parentis in relation to those young international students.
[32] Ms Loomes went on to say that the main channel of communications between students and staff is the student email system which is part of the University’s intranet portal. Students use this system to communicate with lecturers and tutors and to receive notifications about rescheduling of classes and room changes etc. Each academic attends an induction course at the commencement of their employment in which they are provided with documentation setting out “the requirement that email contact between the academics and their students is to be via their respective University email address.” “Dr Karmakar was employed by the University on separate casual contracts every three months and attended an induction for each period of casual employment over the course of his six years with the University.”
[33] Students are also advised that their “University email addresses are to be the official source of communication between University staff (including academics) and students.” An academic has discretion as to whether to use email as his or her point of contact with students but does not have the option of using a private email address instead of the University address.
[34] On 7 November 2011 Ms Loomes was told by Mr Kelly who had been informed by the Administrator of Foundation Studies (Ms P Wong) that the room intended to be occupied by Dr Karmakar and his students was empty. Enquiries were made and one of Dr Karmakar’s students forwarded an email that Dr Karmakar had sent to his students on 31 October 2011. The email stated:
“Dear students,
Please note that you will have no class next Monday, but I will take this class at some other day.
Your lecturer
Dr Nitya Karmakar” 18
[35] The above email had been sent to the private email addresses of the relevant students and this breached University protocol. In addition, Dr Karmakar’s email failed to specify a date on which the cancelled class was to be rescheduled. “Dr Karmakar’s cancellation of the class without re-scheduling a make-up class was both unprofessional and placed the students at risk, both in terms of their personal safety and of not meeting their 80% attendance requirement.”
[36] “I was also of the view that Dr Karmakar had breached University protocol about re-scheduling classes. In order to re-schedule a class, Dr Karmakar was required to submit a re-schedule form for approval by the Associate director Academic, which at the time was Mr Kelly. I made the decision to remove him from Foundation Studies until I had a chance to speak with him about his actions. I did not want him going before another class without meeting with me first, so I could find out what happened. With the information I had at the time, I could not believe that someone would be so irresponsible, and the fact that Dr Karmakar emailed the students via their personal email account and did not inform Mr Kelly, it appeared that something inappropriate and against policy had occurred.”
[37] Ms Loomes emailed Dr Karmakar later on 7 November 2011 in the following terms:
“Dear Nitya,
I need to speak to you as soon as you return. You have been removed from teaching the foundation program.”
Warm regards
Susan” 19
[38] Ms Loomes said that her email to Dr Karmakar was not intended to cause him distress and did not go into detail as she wished to do so face to face. “This is the approach which I have adopted in the past.” The email was not intended to be a formal ‘stand down’ pursuant to the Agreement. “I did not want Dr Karmakar returning to the classroom before I had spoken with him. That was the reason I advised that he was removed from Foundation Studies, so he would not return to class following his return to Australia without meeting with me first.”
[39] By 9 November 2011 Ms Loomes had not heard from Dr Karmakar and as she was due to go on leave on 14 November she sent an email to Dr Karmakar requesting that he meet with the Associate Director Administration and Finance (Mr Holliday) when Dr Karmakar returned to Australia. Mr Holliday was to act in Ms Loomes’ role whilst she was absent. The email states: “
“Dear Nitya,
I will be on annual leave from next Monday 14th November. Steven Holliday will be acting Campus Director, therefore when you return you will need to urgently make a time to meet with him.
Regards
Susan” 20
[40] Ms Loomes went on to say that she had not seen Dr Karmakar’s reply email of 10 November 2011 before proceeding on leave. On her return from leave on 25 November 2011, she was informed by Mr Holliday that no meeting with Dr Karmakar had occurred in her absence.
[41] Ms Loomes said that she discovered in early to mid-January 2012 that Dr Karmakar had returned to Australia and she asked Mr Kelly to arrange a meeting with him. That meeting took place on 24 January 2012 and involved Dr Karmakar, Mr Kelly and herself. This was the first occasion she had spoken to Dr Karmakar since discovering the cancellation of his class on 7 November 2011. The meeting was brief and involved words between her and Dr Karmakar to the following effect:
“Me: | ‘What did you think the students would be doing if they were not in class? Were you not concerned about their welfare?’ |
Dr Karmakar: | ‘I just didn’t think.’ |
Me: | ‘You just didn’t think? How can you not think about leaving students on their own? As far as I’m concerned this is serious misconduct. You will get a letter with allegations and you will have a right to respond to that. You’ve really got two choices. Because you’re a casual, if you just want to leave the University, that’s fine. Or you can stay and address the allegations and query what we’ve said is true - you’ve got the right to do that. So, it’s your choice.” |
[42] In response to Dr Karmakar’s witness statement, Ms Loomes denied that he used the word ‘apology’ at any time during the meeting. She also denied Dr Karmakar’s evidence that she or Mr Kelly screamed at Dr Karmakar during their meeting or treated him as if he was a criminal. “I was very firm in expressing my dissatisfaction with his conduct and in pointing out the risks of his behaviour, but the assertion that he was treated like a criminal is entirely incorrect.”
[43] After the meeting on 24 January 2012, she remained of the view that a disciplinary investigation should be commenced into Dr Karmakar’s behaviour and a few days later handed the matter over to the General Manager Human Resources (Ms Brown) for formal investigation. That resulted in a letter from Ms Brown being prepared in consultation with Ms Loomes and the letter was sent to Dr Karmakar on 20 February 2012. She had no further involvement in the matter from that point onwards.
[44] Ms Loomes went on to deny the evidence of Dr Karmakar that there was a “continuous and unacceptable delay” by the University after Ms Loomes’ email of 7 November 2011 or that any delay was designed to cause him harm. “On the contrary, the delay in progress of the matter was caused by Dr Karmakar refusing to meet with me or Mr Kelly as requested. If he had come and seen me when he arrived back in Australia or seen Mr Holliday while I was on annual leave, the matter may have been able to be resolved in a more timely way.”
[45] Ms Loomes also addressed the issue of possible reinstatement. She said: “I am opposed to him returning to the University. His actions put the University and its students at risk and I cannot trust that a similar situation would not occur in the future. The fact that he said to me in our meeting on 24 January 2012, that he ‘just didn’t think’ demonstrated to me that he does not have a high regard for student welfare and cannot be trusted to follow the policy and procedure that is well documented and articulated at the University. Form this discussion with him in January 2012, and his actions prior to that in not responding to my requests to meet with me or Mr Holliday, I am not convinced he understood the full potential ramifications of his actions. I would not trust that he would make sound decisions in respect of the University’s students if he were to return.”
[46] In cross-examination, Ms Loomes said that her email to Dr Karmakar on 7 November 2011 was based on the impression she had gained about events on the same day and she felt she could not allow Dr Karmakar to go back to teach Foundation Studies until they had spoken together. 21 Ms Loomes conceded that she did not personally check Dr Karmakar’s scheduled class.22
[47] Ms Loomes repeated her earlier evidence that she did not recall seeing an email from Dr Karmakar on 10 November 2011. 23 She relied on information supplied by Mr Kelly.24 Ms Loomes went on to deny that Dr Karmakar had used the word ‘apology’ at the meeting on 24 January 2012.25 Ms Loomes stressed that her primary consideration was the welfare of students.26
[48] Ms Loomes said that she formed a view that Dr Karmakar must have realised he had done something wrong in relation to his 7 November 2011 scheduled class and perhaps was not returning to the University. She surmised that this might be the reason that he had not met with Mr Holliday as requested. 27 Ms Loomes was asked: “But why didn’t you think before sending me an email on 7 November, you acted based on one side of the story to remove me from the classroom? You left me without any pay, without any income. But why did you not hear the other side of the story?” and said: “See, when I sent the email that wasn’t my intention. My intention was to make sure that you didn’t go back into the class without me having a conversation with you about what happened. As far as I was concerned, I believed that this situation put the students at risk. I didn’t want to put you back into the class until we had a conversation. That’s what I thought. That’s what I was thinking when I sent the email. That’s what I believe I was thinking.”28
Ms J Brown
[49] Ms Brown gave sworn evidence and submitted a witness statement 29 In summary, it was her witness statement that she has held her current position since September 2009 and has worked for CMS since May 2008 when she started as Human Resources Manager.
[50] Ms Brown’s statement goes on to provide detail about the Corporate structure of CMS and the role of international students in CMS’s operations. Her evidence concerning the Code was in line with that of Ms Loomes and Mr Kelly. In relation to Dr Karmakar’s terms of employment, Ms Brown stressed that his employment was always as a casual employee and was able to be terminated at the expiration of each three month contract of employment.
[51] I have also paid regard to material in Ms Brown’s statement concerning the nature and structure of Foundation Studies. That material was also consistent with the statements of Ms Loomes and Mr Kelly.
[52] After Ms Loomes and Mr Kelly met with Dr Karmakar on 24 January 2012, Ms Brown was telephoned by Ms Loomes and told: “that Dr Karmakar had been advised that he had the option of leaving the University without an investigation into formal allegations of serious misconduct being conducted ..., but that if he wanted to be considered for further teaching hours, a formal disciplinary investigation would be undertaken in to those events. Dr Karmakar had opted to have formal allegations prepared and for an investigation to be carried out.”
[53] Ms Brown’s evidence goes on to set out in some detail the disciplinary investigation into Dr Karmakar’s actions in November 2011. In brief, the investigation involved an examination of relevant documents and materials and the letter to Dr Karmakar setting out the allegations against him and then considering the Applicant’s response to those allegations. She also conducted interviews with Mr Kelly, Ms Loomes and Mr Holliday. Mr Kelly spoke with the Coordinator of Foundation Studies (Mr T Hilton) on Ms Brown’s behalf.
[54] The University wrote to Dr Karmakar in a letter dated 20 February 2012 setting out the allegations against him. That letter said:
“Dear Nitya,
The following elements with respect to your alleged behaviour as Casual Lecturer have been raised with the Management of CQUniversity Sydney Campus.
1. Rescheduling of a class on 7th November 2011 to travel overseas for a conference, failing to complete a request for reschedule form.
2. No date provided to students regarding a rescheduled class - this course has a minimum attendance for students of 80%.
3. Failing to request permission from the Associate Director Academic as requested by the former foundation studies coordinator, who advised you to do so on 1st November 2011.
4. Communicating with students via personal email addresses rather than CQUniversity email addresses as discussed during the casual induction you attended on 26th October 2011 and received the summary information for casual academics which also provides this information.
5. Failed to meet with the Campus Director as requested to discuss the above matter in email dated 7th November 2011 and a subsequent email request to meet with the Associate Director Administration and Finance in the Campus in the absence of the Campus Director sent on 9th November 2011.
In accordance with Section 32.2 of C Management Services Pty Ltd Union Collective Agreement 2008, this letter serves to formally advise you that the above if proven is seen as constituting Serious Misconduct.
As per section 32.4.3 of the above agreement, you have 10 working days to submit a written response to these allegations.
All correspondence and communications regarding this matter should be directed to Ms Joanna Brown, General Manager Human Resources.
Your Sincerely,
Susan Loomes
Nominee of Joanna Brown
General Manager Human Resources
C Management Services Pty Ltd”
[55] In relation to Allegation 1, Ms Brown said that she found the allegation to be proven, on the balance of probabilities. She did so after considering Dr Karmakar’s actions in the light of the University’s policy and protocol for academics wanting to reschedule a class. She also considered a file note by Mr Kelly concerning a conversation between Mr Hilton and Mr Kelly on 7 November 2011 wherein Mr Hilton noted a telephone conversation between him and Dr Karmakar on 1 November 2011 during which the Applicant advised Mr Hilton that he was intending to travel overseas and wanted to reschedule his class which was set down for 7 November 2011. Mr Hilton told Dr Karmakar of the requirement to contact Mr Kelly to formally arrange any rescheduling.
[56] Ms Brown went on to say that in the past Dr Karmakar had completed and submitted reschedule forms for Foundation Studies classes.
[57] “Taking this information into account, I found that Dr Karmakar had: (a) Failed to follow the required procedures for obtaining authorisation to move a class and to complete a request for reschedule form; and (b) Failed to follow a lawful and reasonable direction from Mr Hilton to contact Mr Kelly to reschedule the class. Accordingly, I found, on the balance of probabilities, this allegation proven.”
[58] In relation to Allegation 2, Ms Brown found the allegation to be proven, on the balance of probabilities. She did so after considering Dr Karmakar’s response which she considered to have failed to acknowledge that he was aware of the correct rescheduling protocol.
[59] “I considered the reason the class was not scheduled to another date was because Dr Karmakar did not follow the lawful and reasonable direction of Mr Hilton to contact Mr Kelly about his desire to reschedule the class. On the balance of probabilities, I found this allegation proven.”
[60] In relation to Allegation 3, Ms Brown said that she found the allegation to be proven, on the balance of probabilities. She did so after considering Dr Karmakar’s response and the record of conversation between Mr Kelly and Mr Hilton. She concluded that Dr Karmakar was aware of the need to inform Mr Kelly about his intention to travel overseas. “As I had already found that Dr Karmakar was aware of the University’s published procedures for re-scheduling a class, being that he must seek written approval in the specified form from Mr Kelly, I found that he had not officially informed all parties and that his response was not sufficient to discharge this allegation.”
[61] In relation to Allegation 4, Ms Brown said that she found the allegation to be proven, on the balance of probabilities. She did so after considering the University’s policy on this matter and Dr Karmakar’s response. “As a lecturer, it was Dr Karmakar’s responsibility to adhere strictly to the University’s policies in this regard and set the example to students about the use of University email. I considered that even if Dr Karmakar was provided with the private emails of his students, he was in breach of the policy by using those emails to communicate with students about University matters.”
[62] In relation to Allegation 5, Ms Brown said that she found the allegation to be proven, on the balance of probabilities. She did so after considering the emails sent by Ms Loomes dated 7 and 9 November 2011 to Dr Karmakar. She accepted a statement by Ms Loomes that Dr Karmakar did not reply to Ms Loomes’ email of 7 November 2011 and that Dr Karmakar did not come to see Mr Holliday while Ms Loomes was on leave.
[63] “Dr Karmakar sent an email reply on 10 November 2011, and an amended version of the reply on 13 November 2011, which did not copy in Mr Holliday or Mr Kelly as recipients despite the fact that Dr Karmakar had been informed that Ms Loomes would be on annual leave from Monday, 14 November 2011.”
[64] Ms Brown also considered Dr Karmakar’s response to this allegation. “I was and remain of the view that the emails of 7 and 9 November from Ms Loomes contained lawful and reasonable directions for Dr Karmakar to meet with her or, in her absence, Mr Holliday. Dr Karmakar ‘s response did not adequately address why he refused to carry out that directive.”
[65] Ms Brown went on to say that having found the allegations against Dr Karmakar to be proven she then found “that his conduct collectively amounted to serious misconduct. Furthermore, his conduct suggested a disregard for the relevant procedures of the University, and the lawful and reasonable directions given to him. As Dr Karmakar was a casual employee, my preliminary outcome was that the University should not engage his services in the future.”
[66] Ms Brown said that she prepared a draft report about her findings and the outcome of her investigation and sent it to Mr A Dawson, the Chief Executive Officer. It was Mr Dawson’s responsibility to make a final decision on behalf of the University about Dr Karmakar’s future.
[67] On 10 April 2012, she emailed Dr Karmakar inviting him to meet with her on 18 April 2012 so she could explain to him the outcome of her investigation. Dr Karmakar replied on 12 April asserting that Ms Brown was employing a ‘delaying tactic’. She replied to Dr Karmakar’s email on 13 April, again indicating her desire to meet with him and Dr Karmakar replied on 16 April indicating that he was not available and did not find it necessary or desirable to attend such a meeting.
[68] Ms Brown then contacted Mr Dawson to discuss his final decision and he indicated that Dr Karmakar’s employment would be terminated immediately on the ground of serious misconduct. “Ordinarily, I would have preferred to have sat down with Dr Karmakar to discuss the evidence, my findings and give him an opportunity to respond verbally before deciding on the outcome of the investigation. I would have liked to have done this in order to explain the context and talk through anything I might have missed. If Dr Karmakar had accepted my initial offer to meet to discuss the investigation, I would have considered giving him a first and final warning as opposed to not re-employing him due to serious misconduct. However, after receiving his email on 16 April 2012, it was clear Dr Karmakar did not desire such an opportunity.”
[69] Dr Karmakar was sent a copy of Ms Brown’s final investigation report on 18 April 2012. “I noted in my cover email to Dr Karmakar that I was sending the report by email because of his desire not to attend another meeting.”
[70] Ms Brown’s investigation report 30 read as follows:
“Investigation outcome
I refer to your email of 16 April2012 at 6.59 pm indicating that you are neither available this week nor find it necessary or desirable to attend another meeting.
As indicated to you in my email of 13 April2012, the meeting was arranged as part of an appropriate communication process to advise you of the outcome of the investigation. That process was to include providing you with a letter outlining the results of the investigation as well.
As you are not prepared to attend a meeting, this letter is to advise you of the investigation outcome.
I have taken into account the feedback provided by you in your email of 1 March 2012.
1. Rescheduling of a class on 7th November 2011 to travel overseas for a conference; failing to complete a request for reschedule·form
You attended an induction training session on 26 October 2011, 6 days before you informed anyone at the University of your overseas trip. At that
training session, all staff were provided with a document titled ‘Essential Information for Academics at CQUniversity - Sydney Campus’. This document included a note requesting staff to contact Andy Kelly, Acting Associate Director Academic, to organise a schedule of any missed classes. The note also indicated that no class may be moved without written and prior authorisation of Andy Kelly.
In addition, Tim Hilton has advised that he spoke with you on 1 November 2011, informing you that he would no longer be co-ordinating Foundation Studies and that you would need to contact Andy Kelly in order to reschedule the class that fell during your proposed overseas trip.
You have stated that you did not contact Andy Kelly, as requested, because you had ‘properly advised Mr Hilton’.
You have provided reschedule forms for the rescheduling of Foundation Studies classes in the past, during 2009. CMS has made the following findings:
(a) you failed to follow the required procedures for obtaining authorisation to move a class and to complete a request for reschedule form; and
(b) you failed to follow a lawful and reasonable instruction from Tim Hilton to contact Andy Kelly in order to reschedule the class.
2. No date provided to students regarding a rescheduled class- this course has a minimum attendance for students of 80%
Your response stating that ‘I left this issue with him [i.e. Tim Hilton] as I had properly advised Mr Hilton, informed all parties officially and verbally of my inability to take a class in the 2nd week of term 3’, is not acceptable.
CMS has concluded that your failure to follow both the required procedures outlined at number 1 above and the lawful and reasonable instruction of Tim Hilton is the reason that no date was provided to students regarding a rescheduled class.
Accordingly, CMS finds that you have failed to provide a date to students regarding a rescheduled class. This is an extremely significant issue, given that the course has a minimum attendance requirement for students of 80%.
3. Failing to request permission from the Associate Director Academic as requested by the former Foundation Studies Co-ordinator, who advised you to do so on 1st November 2011
This issue is covered in finding 1 above. CMS concludes that you have failed to follow a lawful and reasonable direction from Tim Hilton, as outlined above.
4. Communicating with students via personal email addresses rather than CQUniversity email addresses as discussed during the casual induction you attended on 26 October 2011 and received the summary information for casual academics which a/so provides this information
At the induction training session you attended on 26 October 2011, staff were informed that the private email addresses of students were not to be used.
CMS finds that you breached this request only a few days later, when you forwarded emails to the private addresses of students.
5. Failed to meet with Campus Director as requested to discuss the above matter in email dated 7th November 2011 and a subsequent email request to meet with the Associate Director Administration and Finance in the Campus in the absence of the Campus Director sent on 9th November 2011
You were forwarded an email on 7 November 2011 by Susan Loomes which indicated some urgency, stating that she needed to speak to you as soon as you return. The serious nature of the issue was emphasised by the additional sentence indicating that you had been removed from teaching the foundation program.
A subsequent email was sent to you by Susan Loomes on 9 November 2011, indicating that she will be on annual leave from next Monday, 14 November and requesting that you urgently contact the Acting Campus
Director, Steven Holliday on your return to make a time to meet with him. Both Steven Holliday and Andy Kelly were cc'd on that email.
You forwarded a reply email to Susan Loomes on 10 November 2011 plus an amended version of the reply, correcting spelling errors, on Sunday, 13 November 2011. ·Neither of your replies included Steven Holliday or Andy Kelly as cc recipients, despite the fact that you had been informed that Susan would be on annual leave from Monday, 14 November 2011. Subsequent to this, you failed to contact Steven Holliday as requested or to forward any additional email to him, when you knew that Susan Loomes was on annual leave.
CMS finds that you did fail to arrange the urgent meeting requested. This is significant, particularly as you had been advised of your removal from teaching the foundation program, thereby indicating the serious nature of the issues that the requested meeting was to address.
CMS also finds that this conduct amounts to a failure to follow a lawful and reasonable instruction. Had you been a permanent employee, then your failure to arrange this meeting or make any further contact with CQU for the remainder of 2011 would have constituted an abandonment of your employment.
In your email of 1 March 2012, you claim that you were insulted and threatened at a meeting with Susan Loomes and Andy Kelly on 24 January 2012. These allegations are denied.
Overall Finding
Taking into account all of the above issues, CMS finds that collectively your conduct amounts to serious misconduct. It has also been reckless and irresponsible. In order for the academic program to run smoothly, staff members have obligations and responsibilities that must be complied with. You have not done this. Furthermore, your conduct suggests a disregard for both relevant procedures and lawful and reasonable instructions given to you. If you had been a permanent employee, then the finding of serious misconduct would be sufficient for your instant dismissal.
As you are a casual employee, CMS advises you that it does not propose to engage your services in the future.”
[71] Finally, Ms Brown went on to deal with the issue of the possible reinstatement of Dr Karmakar. She said that the University is currently undergoing an academic staff restructure and it is unlikely that the University will continue with the Foundation Studies Program as there has been a significant decline in student numbers and the program is no longer profitable. In addition, the courses taught by Dr Karmakar have now been reallocated to full time academics to whom “the University has contractual obligations to offer a minimum number of hours.” “One of the reasons that Dr Karmakar was given courses in the Foundation Studies program was because there were limited undergraduate courses that he could teach. The University wanted to keep him on board so the Foundation Studies courses were the available option. This option will no longer exist in 2013 and this ultimately makes Dr Karmakar’s reinstatement at the University unfeasible.”
[72] In cross-examination, Ms Brown was questioned at length about the disciplinary procedures set out in the Agreement and their application in Dr Karmakar’s case.
[73] Ms Brown went on to say that the investigation conducted into Dr Karmakar’s actions concerning the 7 November 2011 class was conducted by her with “the assistance of the people that I spoke with but I did not make the final decision.” 31 She went on to say that Mr Hilton was not spoken to by her.32 Ms Brown was asked: “How did you come to the conclusion that it has also been reckless and irresponsible? What type of reckless thing I did? And what type of irresponsible thing I did?” and said: “The students that you teach for the foundation are high-risk students and there was no reschedule. Your response to them was that you would reschedule a class or you would take the class at some other time and that was irresponsible as far as our duty of care for the students.”33
[74] Ms Brown went on to say that she had been unable to arrange a meeting with Mr Hilton due to Mr Hilton’s unavailability. 34 Ms Brown maintained her earlier evidence concerning the practicability of reinstatement of Dr Karmakar.35
Mr Kelly
[75] Mr Kelly gave sworn evidence and submitted a witness statement 36. In summary, it was Mr Kelly’s statement that he has been employed by the University in various positions since 2004, including that of Campus Director. He is currently a lecturer at the University’s Sydney Campus and has held this role since 2007 except for a period in 2010 and part of 2011 when he held the position of Acting ADA while the University recruited for that position. “All lecturer, academic staff and Faculty personnel to that position.” As Acting ADA he was familiar with the process of assessing the suitability of academics for a particular course and rostering of academics to courses.
[76] Mr Kelly went on to say that student feedback is a key part of assessing an academic’s suitability for a particular course. In Dr Karmakar’s case, feedback from students during 2010 and 2011 “indicated an average to below average as compared to the University’s average rating”. Attached to the witness statement was a summary of Dr Karmakar’s student feedback in 2010 and 2011. 37
[77] In response to Dr Karmakar’s witness statement, Mr Kelly agreed that course offerings may have been made verbally but all academics were required to formally submit their availability. He went on to support the evidence of Ms Loomes in relation to the induction process and in particular, the requirement to utilise the University’s email system as the primary point of contact between academics staff and students. He witnessed Dr Karmakar attending induction on 26 October 2011. Attached to the witness statement was a copy of the attendance form for the 26 October 2011 induction signed by Dr Karmakar. 38 In addition, the University’s email communication policies are widely published on its intranet, to which Dr Karmakar had access. The witness statement goes on in some detail concerning student use of the intranet email system and I have paid regard to that material.
[78] Mr Kelly went on to say that on 7 November 2011 he noticed that the classroom scheduled to be occupied by Dr Karmakar and his class to be empty. He asked Ms Wong to check on the class later and she reported to him that the classroom was still empty. Dr Karmakar had not submitted a reschedule form. “If he had submitted a form, I would have been very reluctant to agree to Dr Karmakar going to a conference at that time of year. This would have been particularly so if no suitable arrangements had been made at that time for the conducting of a rescheduled class. If that had not been arranged, the University would have needed to find a suitable replacement. I also say that if Dr Karmakar had advised the University of his intention to go to the conference, it may have affected the decision to offer him a casual contract for that Term, and his allocation to the Foundation Studies program.”
[79] “If an academic wants to re-schedule a class, they are required to complete a reschedule form with the reasons for the change and submit it to the University’s Timetabler, Mr Leayr. Mr Leayr then sends the completed form to the ADA for approval. ... Following approval, Mr Leayr advises the academic and the students of the new date of the class. The form states that approval for a re-scheduling must be obtained by the ADA. From time to time previously in his employment, Dr Karmakar had followed this exact procedure.”
[80] Mr Kelly said that it was against University protocol and inappropriate for Dr Karmakar to email students at their private email addresses and also for Dr Karmakar not to give students information about when their class would be rescheduled. In this regard, Mr Kelly’s statement goes on to set out material relating to the visa conditions of the relevant international students, the nature of their studies and the University’s duties towards those students. That evidence was consistent with that of Ms Loomes and Ms Brown.
[81] In further response to Dr Karmakar, Mr Kelly said that Dr Karmakar was aware that Mr Kelly had taken over the management of Foundation Studies although no official document was issued concerning that matter.
[82] In relation to the 24 January 2012 meeting between Ms Loomes, Dr Karmakar and himself, Mr Kelly’s statement was consistent with that of Ms Loomes. Mr Kelly went on to deny Dr Karmakar’s evidence that anyone screamed at him during the 24 January 2012 meeting. “There is a tenor about the conversation that indicated it was a serious matter, but I completely deny that Dr Karmakar was ‘screamed at’.”
[83] In cross-examination, Mr Kelly said that the last class taught by Dr Karmakar was on 31 October 2011. 39 He went on to say that he took on the role of Acting ADA on 1 November 2011.40 He denied soliciting complaints from Mr Hilton against Dr Karmakar.41 Mr Kelly also denied that he ‘played a key role’ in initiating the termination of Dr Karmakar’s employment.42
[84] Mr Kelly said that the first time he knew that Dr Karmakar was participating in an overseas conference was when he found out that Dr Karmakar was not teaching his class on 7 November 2011. 43 Mr Kelly denied showing hostility towards Dr Karmakar after being appointed as Acting ADA.44 Mr Kelly went on to say that the process Dr Karmakar adopted to inform his students that he would not be present on 7 November 2011 was not transparent and did not follow University protocols regarding emails.45 Mr Kelly denied being engaged in a conspiracy against Dr Karmakar to remove him from the University.46 Mr Kelly said that another lecturer was recruited to teach the remainder of the semester previously being taught by Dr Karmakar.47
Outline of Applicant’s argument
[85] Dr Karmakar filed an outline of his argument prior to the arbitration 48
[86] In his written outline, Dr Karmakar relied in large part on his witness statement evidence. That material is summarised above in some detail and I will not set most of it out here again.
[87] The outline goes on to argue that he contacted Ms Loomes by email on 4 November 2011 whilst overseas and copied that email to Mr Kelly. Ms Loomes’ response was to place him in a de facto suspension of employment which continued for some months. That suspension was without pay and was in contravention of the terms of the Agreement. Further, the investigation carried out by the University was not done in a timely manner “and denied me the opportunity to afford me a support person present”.
[88] Dr Karmakar went on to say that he had never been warned about any conduct issue and his dismissal was again in contravention of the terms of the Agreement. “I will show in the misconduct investigation that CMS treated me unfairly and unreasonably by their gross failures to apply the applicable provision of the current Agreement.” The Applicant went on to say that his response to the allegations against him was not properly considered and his case was not referred to a review panel as provided for in the Agreement.
[89] “I will show that it was grossly unfair that the officer that conducted the investigation would also be involved in determining the outcome. I will show that the actions of CMS in regard to my dismissal do not meet the requirements of the Fair Work Act as there was not a valid reason for the dismissal. At the time that I was denied work I was not notified of the reason for the actions taken to deny me work.”
[90] Dr Karmakar submits that the actions of the University in suspending him from teaching denied him employment during Term 3 of 2011 and Term 1 of 2012. This has caused him significant financial loss.
[91] “If there would be any element of Serious Misconduct as stated in the CMS letter of 20 February, they would bring it immediately after removing me from the classroom not through an e-mail without waiting almost 4 months and it would not take another 1.5 months after I responded to the serious misconduct allegations on 1 March 2012.”
[92] “My responses to the grounds for the dismissal, as outlined in my letter of 1 March in particular, provided a reasonable explanation, which was not sufficiently taken into account or given sufficient weight. Although I was eventually offered an opportunity to respond to the allegations of misconduct, I contend that the conduct of the employer will demonstrate that their minds was already made up and that the principles of natural justice were not applied in arriving at the decision to dismiss me.”
[93] “It will be made clear from the records that the investigation failed to adequately take into account or give sufficient weight to the matters and explanations I put forward in my letter of 1 March 2012, and at other times. I will show that the CMS contentions that my actions were ‘not acceptable’, ‘reckless’ and ‘irresponsible’ were completely unsupported in the conduct of the investigation or in the records. Generally, the investigation does not give any objective reason why my alleged behaviour amounted to serious misconduct, particularly with respect to the impact upon the functioning or performance of my role or the operations of the employer. The classification of my alleged actions by the employer as serious misconduct is not reasonable having regard to the nature of the alleged actions and my explanations.”
[94] The Applicant went on to say that his dismissal was harsh because it was not proportionate to the seriousness of his alleged actions particularly in the light of his actions not being performed with any malice. “What the employer terms serious misconduct is more accurately some oversights of technicalities.”
[95] “During Staff Induction on 26 October 2011, I cannot remember any discussion concerning the e-mail to students using their private e-mail addresses and severe consequences for doing so leading to serious misconduct nor requirement for filling up the reschedule from in case of foundation studies classes also.”
[96] Dr Karmakar said that he was not aware when he took his first class on 31 October 2011 that there had been a change of authority from Mr Hilton to Mr Kelly. He was informed of that change by Mr Hilton on 1 November. “So I did neither abandon my employment nor missed classes without telling anybody.”
[97] “In summary, the Fair Work Australia will consider the fact that I have been treated unfairly and I should not have been removed from teaching at the first instance. If CMS Management would have any allegation against me, they should have resolved it without removing me from teaching and allowing me to suffer without any income. It is not easy to have an alternative teaching somewhere easily and again bad news spread rapidly. Due to this unpleasant situation over months I have even lost interest in looking for employment in other places so I have had little income since November 2011.”
Dr Karmakar’s closing submissions
[98] The Applicant’s closing submissions were submitted in writing. The closing submissions expanded on the outline summarised above and added supporting arguments.
[99] Dr Karmakar argued that he was denied protections afforded to him by the Agreement and the failure to afford him those protections meant that the disciplinary action taken against him had no force.
[100] Dr Karmakar went on to detail his responses to the evidence of the University’s witnesses and I have paid regard to that material.
[101] Dr Karmakar went on to say that the induction held on 26 October 2011 contained no mention of anything relating to the Foundation Studies Program. “… tragically my participation at this induction constituted one of the key reasons to bring serious misconduct against me.”
[102] In relation to his use of students’ private email addresses, Dr Karmakar said that he did so in good faith and had never been advised not to do so.
[103] Dr Karmakar said that his removal from teaching per Ms Loomes’ email of 7 November 2011, was intended to be temporary but became permanent. His disconnection from the University’s email system should not have occurred until his dispute with CMS was resolved.
[104] Dr Karmakar claims that the file note prepared by Mr Kelly concerning a conversation between him and Mr Hilton on 7 November 2011 (and referred to in the evidence of Ms Brown) was possibly constructed by Mr Kelly alone and therefore was not reliable.
[105] Dr Karmakar went on to say that his treatment by the University has caused him professional and personal harm. However, he maintained that he would be able to restore a relationship with CMS based on goodwill towards him shown by other staff and by students.
Outline of Respondent’s argument
[106] The University filed an outline of its argument prior to the arbitration 49.
[107] In its written outline, the University set out the terms and history of Dr Karmakar’s employment and details of the Foundation Studies course. As much of that material is contained elsewhere in this decision, I will not set out most of it here again.
[108] The outline goes on to set out both the events of 7 November 2011 and the events which followed. Again, that material is largely contained elsewhere in this decision and I will not repeat it here.
[109] The outline goes on to deal with the question of valid reason and argued that to constitute a valid reason for the termination of Dr Karmakar’s employment: “The circumstances do not need to be such that they amount to a repudiation of the employment contract by the employee for there to be a valid reason for termination. However, conduct that amounts to serious misconduct will provide a ‘sound, defensible or well founded’ reason to terminate employment. The refusal to obey a reasonable and lawful direction of an employer can constitute grounds which are sound, defensible or well founded; a valid reason for the dismissal.” [citations omitted]
[110] The outline goes on to set out the terms of the University’s letter to Dr Karmakar of 20 February 2012. “The delay between the events of 7 November 2011 and 20 February 2012 is explained by a combination of the Applicant’s failure to attend the University upon his return to Australia to explain his conduct and his request in about mid-January 2012 to be considered for further classes in Term 1 2012. The Applicant’s request in mid-January 2012 resulted in a meeting being held between him and the University’s Ms Loomes (Campus Director) and Mr Kelly on 24 January 2012. At that meeting, the Applicant was advised that if he wished to be considered for further classes he would have to answer allegations surrounding his conduct. The Applicant indicated that he wished to accept that course. The matter was then referred to the appropriate personnel in the University to deal with the investigation, Ms Brown.”
[111] The University argued that it attempted to schedule a meeting with Dr Karmakar to discuss the findings arising from its investigation of his actions in connection with the events of 7 November 2011 but Dr Karmakar refused an opportunity to meet with the University to discuss the findings. This led to him being advised of the outcome and the decision to terminate his employment in writing without him having an opportunity to put his side of the story.
[112] “The Respondent’s primary submissions on whether there was a valid reason are as follows: (a) The Applicant failed to follow the University’s policy with respect to the rescheduling of the classes on 7 November 2011 and contacting students via their personal email rather than via their University assigned email account. The failure to follow an employer’s policy can amount to a valid reason for the termination of employment. (b) The requirement for the Applicant to have the change in his class approved is expressly and clearly stated in the ‘Summary of Essential Information document’ handed to the Applicant at the induction on 26 October 2011. (c) The University’s email use policy was another policy which the Applicant was required to comply with. The policy was available to the Applicant on the University’s intranet. (d) It was a term of the Applicant’s contract of employment that he comply with the University’s polices. (e) The Applicant failed to follow a lawful direction to attend and discuss the circumstances surrounding the rescheduling of the classes in November 2011.”
[113] The University contends that its requirement for Dr Karmakar to comply with relevant policies was both lawful and reasonable, and Dr Karmakar’s failure to do so supported a valid reason for the termination of his employment.
[114] “The process which was adopted by the Respondent can leave no doubt that the Applicant was given a sufficient opportunity to respond to the allegations which had been made against him. He in fact participated in the ultimate investigation process.” It was Dr Karmakar’s decision at the meeting of 24 January 2012 that led to the commencement of the University’s investigation. The applicant’s written response of 1 March 2012 was considered by Ms Brown.
[115] “Once Ms Brown had concluded her investigation, on 10 April 2012 she invited the Applicant to a meeting. The Applicant however adopted an unfortunate and unhelpful position regarding a further meeting. His stance removed an opportunity for the Respondent to discuss its findings with him and, more specifically, an offer it was considering in respect of an appropriate sanction, being a written warning.”
[116] The University’s written outline goes on to argue that reinstatement would be impracticable as it is unlikely that the courses taught by Dr Karmakar will be offered in the future and further that his behaviour has shown that he “does not have sufficient trust and confidence in the Respondent in order to restore the employment relationship.”
The University’s closing submissions
[117] The University’s closing submissions were submitted in writing per Mr Darams. The closing submissions expanded on the outline summarised above. The closing submissions go on to add supporting arguments.
[118] The University argued that the reason a formal investigation into the events of 7 November 2011 did not commence until the latter part of January 2012 can be laid at the door of the Applicant. “The respondent did instruct the applicant to attend upon his return to Australia and meet with Ms Loomes (or her delegate in her absence). … The applicant agreed [in cross-examination] that there was nothing which prevented him from going to the University on 14 November 2011 to meet Mr Holliday.” It was only after Dr Karmakar indicated a desire to teach again in Term 1 2012 that Ms Loomes was aware of the Applicant’s return to Australia.
[119] The submissions go on to discuss the relevant terms of the Agreement and I have paid regard to that material. They go on to argue that the Applicant’s written submissions are not directly supported by the evidence in the case.
[120] The submissions go on to deal with Dr Karmakar’s submission that he should have been officially informed that Mr Hilton was no longer responsible for Foundation Studies and that role had transferred to Mr Kelly. The University argued that the documents provided to Dr Karmakar at the induction on 26 October 2011 “were sufficient notification of the proper procedures to follow in respect of the rescheduling of classes.” The submissions invite a finding “that the applicant in fact delayed telling anyone from the respondent about his involvement with the Global Forum event in 2011 so as to reduce the chance that his request for time off being denied. It is also open to conclude that the applicant simply organised his attendance at the Global Forum and then informed the respondent as a fait accompli just before he left for the trip.”
[121] The submissions go on to argue that “it was reasonable for the respondent to seek to have the applicant meet with it to discuss the circumstances of him being absent from the class. The applicant was employed to teach a class, and the students who he taught could be said to be ‘vulnerable’ due to their age, primarily being from overseas and also having certain attendance requirements. Ms Loomes expanded on that issue in her cross-examination. The respondent was entitled to know why the class which had been scheduled and was to be taught by the applicant was not being taught on that occasion.” [citations omitted]
[122] “The applicant was asked (directed) to attend upon his return to meet with the University. There was no justification, or at least a sufficient justification, for the applicant not to have met with the respondent on his return.”
[123] The submissions further argued that Dr Karmakar has not provided an explanation as to why he sent his 31 October 2011 email to the students’ personal email accounts.
[124] In relation to the question of possible reinstatement, the University argued that: “There is not a case of an employer merely submitting that it has no trust and confidence in an employee who has been dismissed. Whilst that evidence exists, it is the applicant who has demonstrated that he does not have a sufficient level of trust and confidence in the respondent necessary to re-establish the employment relationship.”
[125] I have also paid regard to the case law cited during proceedings and in written submissions.
Conclusions and Findings
[126] Section 385 of the Act provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[127] As the Applicant’s conduct on and in relation to 7 November 2011 and subsequently was the reason for the termination of his employment, I have to determine for myself whether the impugned conduct occurred and, if so, its nature and then, depending on the outcome of my determination of the earlier matters, whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 50:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[128] In Container Terminals Australia Limited v Toby 51, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”52
[129] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 53 said:
“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”
[130] In Qantas Airways Ltd v Cornwall 54, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
[131] In Edwards v Justice Giudice 55, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
[132] Dr Karmakar’s employment was terminated on or about 18 April 2012 at the initiative of CMS. For the termination, CMS relied upon Dr Karmakar’s alleged failure to follow University policy concerning the rescheduling of classes before absenting himself from his scheduled teaching assignment on 7 November 2011. It is not controversial that Dr Karmakar failed to teach his scheduled class on 7 November 2011. The University further relied on Dr Karmakar’s admitted action on 31 October 2011 advising students of his proposed absence on 7 November by way of their personal email accounts. That email is set out earlier in this decision. The University considered that action to be a serious breach of policy. Lastly, the University relied on Dr Karmakar’s alleged failure to follow a lawful direction to meet with Mr Holliday (Acting Campus Director) on Dr Karmakar’s return from overseas to explain his conduct and/or to participate in the ensuing investigation and disciplinary process.
[133] In the University’s view, the combination of these matters constituted serious misconduct and provided a valid reason for the termination of Dr Karmakar’s employment.
[134] Firstly I will consider the failure of Dr Karmakar to teach his scheduled class on 7 November 2011. As noted earlier, the University relied on Dr Karmakar’s failure to submit a rescheduling form in relation to that class as forming part of its valid reason for terminating his employment.
[135] Dr Karmakar maintains that he fulfilled his obligations to the University in that regard by verbally informing Mr Hilton on 31 October 2011 that he would not be teaching his next scheduled class. He asserts that, on previous occasions, Mr Hilton had organised class rescheduling or had found a replacement teacher for the relevant date. In his written statement, Dr Karmakar stated that he knew that Mr Kelly would take over the role of ADA on an acting basis from 1 November. Dr Karmakar further claims that rescheduling forms were not required in the past for Foundation Studies classes. The documentary evidence is to the contrary. 56
[136] I do not accept Dr Karmakar’s evidence about the circumstances surrounding his failure to teach his scheduled class on 7 November 2011. In this regard, I prefer the evidence of Mr Kelly, including that part of his evidence concerning his discussions with Mr Hilton and Ms Wong. I would have been greatly assisted if Mr Hilton had been called to give evidence but his absence does not assist Dr Karmakar.
[137] Dr Karmakar was a long term casual employee of the University and would have been, or should have been, fully conversant with University procedures in such matters. It is my considered belief that Dr Karmakar was determined to attend the Global Forum in Brussels and knew that if a request was to put to Mr Kelly to be excused from teaching duties from 7 November 2011, such request was likely to be refused. This is not surprising when considering that the 7 November class was only the second class of the Term. Dr Karmakar had previously submitted rescheduling forms 57 but chose not to do so on this occasion. Mr Hilton told Dr Karmakar that he would need to approach Mr Kelly and Dr Karmakar did not do so. Whether or not Mr Hilton had, in the past, taken a more informal approach about rescheduling classes is not relevant to my consideration.
[138] In fact, I do not only have to rely on Mr Kelly’s evidence concerning Mr Hilton’s role in this matter. In evidence is a series of emails between Mr Hilton and Mr Kelly, all dated 8 November 2011, in which Mr Hilton makes it clear that he told Dr Karmakar that Dr Karmakar would need to “get authority from you [Mr Kelly] from now on”. 58 Mr Hilton’s emails to Mr Kelly also stated that his conversation with Dr Karmakar occurred on 1 November 2011, not 31 October as alleged by Dr Karmakar. This is significant when noting that Dr Karmakar left Australia on 2 November 2011. It is not controversial that Dr Karmakar attended an induction on 26 October 2011, prior to commencing teaching. The documents from that induction59 contain an explicit instruction that Mr Kelly be contacted “during business hours urgently to organise a reschedule of the missed class/es.”
[139] I do not however agree that Dr Karmakar failed to follow a lawful direction from Mr Hilton. Mr Hilton appears to merely have referred Dr Karmakar to Mr Kelly as being the correct person to speak to about class re-scheduling. The lawful direction to Dr Karmakar, that he ignored, was the one given to him at induction on 26 October 2011 and I so find.
[140] In her evidence, Ms Loomes made much of the University’s responsibility in loco parentis and I don’t doubt the sincerity of her view. However, I am unable to see objectively that Dr Karmakar’s absence on 7 November 2011, given that he had told his students well in advance, would or could have led to any identifiable threat to the welfare of those students. I have therefore treated that particular factor as being neutral in my decision making. The effect of Dr Karmakar’s non-attendance on 7 November 2011, in the absence of a replacement academic, and its possible effect on the students’ visa requirement that they attend 80% classes is another matter altogether. That factor has been a negative one for Dr Karmakar in my consideration.
[141] It is my finding that Dr Karmakar’s actions concerning his non-attendance on 7 November 2011 certainly constituted serious misconduct, particularly because he acted in a manner which he must have known at the time was improper. On the balance of probabilities, I am satisfied that Dr Karmakar engaged in a course of action in relation to his contracted teaching responsibilities that showed considerable disregard for his responsibilities and obligations. He did so as part of a conscious design to attend the Brussels Forum when he knew that if he had followed correct procedures, approval to reschedule a class in order to attend the conference would most likely have been withheld.
[142] Secondly, I will consider Dr Karmakar’s action in using his students’ private email addresses to inform them that he would not be teaching his scheduled class on 7 November 2011. Whilst I accept the University’s evidence that the use of private email addresses for student/staff communication was contrary to University protocol, I do not consider Dr Karmakar’s action in this regard, and on this occasion, to have been a major infraction. The class Dr Karmakar taught was a very small one and I can understand a level of informality between teacher and students in such circumstances. On 31 October 2011, Dr Karmakar apparently verbally advised his students that his next class would be cancelled and then followed that advice up with an email. That email gave no indication as to when the missed class would be held. Importantly also, Dr Karmakar’s email was not copied to Mr Hilton, Mr Kelly or anyone else in the University’s administration. Accordingly, the use of students’ private email addresses by Dr Karmakar on or about 31 October 2011 was not, in my view, a species of misconduct but rather, an action that could have, on its own, been dealt with by some form of warning and the drawing of Dr Karmakar’s attention to the University email protocol. Dr Karmakar should have been well aware of the correct procedure. This issue has been negative to Dr Karmakar in my consideration but that view has not been determinative in the final outcome.
[143] I now come to the third issue relied upon by the University as part of being a valid reason for the termination of Dr Karmakar’s employment. The University alleges that Dr Karmakar’s failure to contact Mr Holiday or anybody else in the University’s administration after he returned to Australia on 14 November 2011, constituted part of the alleged valid reason for the termination of his employment.
[144] When considering this matter, the starting point must be Ms Loomes’ email to Dr Karmakar of 7 November 2011, which is set out earlier in this decision. That email clearly states that Dr Karmakar had been “removed from teaching the foundation program”. On the face of that email, Dr Karmakar was entitled to believe that he would no longer be teaching Foundation Studies during the remainder of Term 3 of 2011. In her evidence, Ms Loomes said that her intention was to not return Dr Karmakar to teaching his class until she had spoken with him. She went on to say: “That’s what I thought. That’s what I was thinking when I sent the email. That’s what I believe I was thinking.” 60 That response, in cross-examination, is not satisfactory in that Dr Karmakar could not have been expected to understand Ms Loomes’ intentions beyond the blunt wording of her email.
[145] Intriguingly, Dr Karmakar responded to Ms Loomes on 10 November 2011 (with an amended version being sent on 13 November), in which he said: “My sincere apology if my departure from Australia for a good cause might have caused any disadvantage to anybody.” 61 The email also says: “I am a bit surprised with your directive, but I shall respect as it is an executive decision.” That email appears to comprise both an apology and an acceptance by Dr Karmakar of the decision made by Ms Loomes as set out in her email to Dr Karmakar of 7 November 2011. The emails of 10 and 13 November were not copied to Mr Kelly and Ms Loomes proceeded on leave on 14 November.
[146] Dr Karmakar sent an earlier email to Ms Loomes (with a copy to Mr Kelly) on 4 November 2011 62 which said:
“I am sharing some information.
Please note that I am now in Chicago on my way to Brussels, Belgium to participate at the ‘Global Forum 2011: Vision for the Digital Future’ as attached. I shall return back to Sydney after brief stopover in Germany. I had a brilliant past working at Germany (DESY, Hamburg University) the USA (ANL, Chicago University) and Canada (Toronto University). Many international organisations still invite me and asks for my advice & feedback, but I could not meet all as I could meet as a full time staff.
I would welcome to have some lecturing responsibilities in T311 in any of the ug or pg courses again, but I have been allocated two tutorials under ‘NR’ for an undergraduate unit (COIS11011), but there is now remote possibility of opening any of these as T6 is now open before T4 & T5. If there is a surge in enrolment in other units today or in final week, you can consider me as I am available at other timeslots also.”
[147] The above email was sent at 8.18 am Chicago time on Friday 4 November 2011, i.e. it was sent on Saturday 5 November at 12.18 am Sydney time. Neither Ms Loomes nor Mr Kelly could recall receiving that email. The timing of the email would have been in any event of no assistance to the University in rescheduling the 7 November 2011 class. Attached to the email was a copy of the invitation to Dr Karmakar dated 28 September 2011 for him to attend the Global Forum. This was the first occasion on which the University had been supplied with a copy of the invitation. It is important in my view to note not only the timing of Dr Karmakar’s email but also that it was sent only after he had left Australia.
[148] It is Dr Karmakar’s contention that Ms Loomes’ email to him of 7 November 2011 together with a lack of response to his email of 10 November 2011, meant that there was no point in him attending the University to meet with Mr Holliday or anybody else. He also felt no need to inform the University when he returned to Australia on 14 November 2011. Mr Kelly’s evidence was that another lecturer was employed to teach Dr Karmakar’s remaining 2011 Term 3 classes.
[149] Dr Karmakar’s next contact with the University appears to have been made by way of an email to Mr Leayr on 9 December 2011 attached to which was a completed Casual Academic Availability Form relating to teaching during Term 1 of 2012. 63 Classes in Term 1 of 2012 were scheduled to commence on 27 February 2012. In his evidence, Mr Kelly asserted that Dr Karmakar submitted his availability form in early January 2012 and that this was around the same time Ms Loomes asked him to arrange a meeting with Dr Karmakar.64 On this point, I am prepared to accept that Dr Karmakar sent his email when he said he did. That email does not appear to have elicited any response from Mr Leayr. It is quite possible that it did not come to Mr Kelly’s attention until early January 2012. What is clear is that there was no offer by the University for Dr Karmakar to teach during Term 1 of 2012.
[150] In any event, Dr Karmakar’s renewed contact with the University led to the meeting of 24 January 2012 and the ensuing disciplinary investigation and resulting termination of employment. I have paid close attention the University’s actions post 24 January 2012 and Dr Karmakar’s submissions in that regard. My view is that although the investigation process was surprisingly lengthy, it took into consideration the written submissions made by Dr Karmakar and the process was substantially fair, if not perfect. It was Dr Karmakar’s own decision not to meet with the University during the investigation process.
[151] On the balance of probabilities, I broadly accept Dr Karmakar’s evidence and submissions as to why he did not meet with the University after returning to Australia on 14 November 2011. Accordingly, I am unable to make a determination that Dr Karmakar failed to follow a lawful direction to meet with Mr Holliday. That particular ground relied upon by the University to be serious misconduct has therefore been neutral in my consideration.
[152] All in all, and on the balance of probabilities, I am satisfied that there was a valid reason for the termination of Dr Karmakar’s employment by CMS based on and concerning the events on 7 November 2011.
[153] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[154] In Byrne v Australian Airlines 65, McHugh and Gummow JJ of the High Court said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[155] In Parmalat Food Products Pty Ltd v Wililo 66, the Full Bench held:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 67
[156] In Miller v University of New South Wales 68, the Full Bench held:
“The entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason: Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413. In Izdes Beazley J said:
‘In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct.’ (61 IR 439 at 451)
In considering the validity of the reason, “it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct”: see Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.” 69
[157] The question of valid reason is dealt with above.
[158] It is clear that Dr Karmakar was notified of the reasons for the termination of his employment by way of an email letter from Ms Brown sent on 18 April 2012 and I so find. That letter was set out earlier in this decision. It is further clear and I find that Dr Karmakar was given an opportunity to respond to the allegations against him before a decision was made to terminate his employment. Further, there is nothing before me to indicate that Dr Karmakar was not allowed to have a support person present to assist at any discussion relating to dismissal as he quite clearly refused to meet with the University after 24 January. Any issue of unsatisfactory performance does not relevantly arise in this case.
[159] The size of the employer enterprise is a factor which is likely to have impacted on the procedure followed in effecting the applicant’s dismissal. On what is before me, I conclude that the size of the University’s operations and its access to professional advice led to it conducting a largely procedurally fair process leading up to the dismissal and I so find.
[160] I have also taken into consideration a number of other factors. These include Dr Karmakar’s age, his qualifications and experience, his long association with the University as a casual academic, his future employment prospects and the economic and personal effects of the termination of employment on him.
[161] I have also paid regard to the relevant provisions of the agreement and Dr Karmakar’s contract to teach during Term 3 of 2011.
[162] All in all, I am unable to find that the termination of Dr Karmakar’s employment was harsh or unjust or unreasonable. Dr Karmakar embarked on a course of action relating to his teaching responsibilities on 7 November 2011 that led to him being dismissed. He was not dismissed as a result of some conspiracy against him led by Mr Kelly but rather because he put attendance at the Global Forum ahead of his responsibilities to the University and to his students.
[163] Dr Karmakar’s application for relief is therefore dismissed.
[164] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.
[165] An order reflecting this decision is in PR534952.
COMMISSIONER
Appearances:
N Karmakar, the Applicant.
J Darams of Counsel with J Smith for C e Services Pty Ltd T/A CQ University Sydney.
Hearing details:
2012.
Sydney:
December 10.
2013.
Sydney:
January 14.
Final written submissions:
25 March 2013.
1 Exhibit A1.
2 Transcript PN226.
3 Transcript PNs243-244.
4 Transcript PN255.
5 Transcript PNs263-266.
6 Transcript PNs321 and 326.
7 Transcript PN342.
8 Transcript PN403.
9 Transcript PN405.
10 Transcript PNs406 and 409.
11 Transcript PN411.
12 Transcript PN423.
13 Transcript PN425.
14 Transcript PN426.
15 Transcript PN438.
16 Exhibit R1.
17 See Attachment SL-2 to Exhibit R1.
18 See Attachment SL-5 to Exhibit R1.
19 See Attachment SL-6 to Exhibit R1.
20 See Attachment SL-7 to Exhibit R1.
21 Transcript PN624.
22 Transcript PN626.
23 Transcript PNs629-630.
24 Transcript PN657.
25 Transcript PN695.
26 Transcript PN708.
27 Transcript PN754.
28 Transcript PN758.
29 Exhibit R2.
30 Attachment JB-15 to Exhibit R2.
31 Transcript PN968.
32 Transcript PN969.
33 Transcript PN970.
34 Transcript PN1025.
35 Transcript PN1052.
36 Exhibit R3.
37 See Attachment RK-1 to Exhibit R3.
38 See Attachment RK-3 to Exhibit R3.
39 Transcript PNs1162-1164.
40 Transcript PN1189.
41 Transcript PN1201.
42 Transcript PN1211.
43 Transcript PN1233.
44 Transcript PN1239.
45 Transcript PNs1303-1304.
46 Transcript PNs1334-1337.
47 Transcript PN1359 and following.
48 Exhibit A3.
49 Exhibit R5.
50 Print S4213, 17 March 2000, per Ross VP, Williams SDP and Hingley C.
51 Print S8434, 24 July 2000, per Boulton J, Marsh SDP and Jones C.
52 Ibid at para 15.
53 (1995) 62 IR 371 at 373.
54 [1998] FCA 865.
55 [1999] FCA 1836.
56 See Attachment JB-8 to Exhibit R2, copies of two previous rescheduling forms.
57 See Attachment RK-9 to Exhibit R3.
58 See Attachment JB-6 to Exhibit R2.
59 See Attachment RK-2 to Exhibit R3.
60 Transcript PN758.
61 See Appendix 7 to Exhibit A1.
62 See Appendix 4 to Exhibit A1.
63 See Appendix 8 to Exhibit A1.
64 See paragraph 37 of Exhibit R3.
65 (1995) 185 CLR 410.
66 [2011] FWAFB 1166
67 Ibid at para 24.
68 PR910187, 11 October 2011, per Boulton J, Drake SDP and Larkin C.
69 Ibid at para 75.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR534951>
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