Paul Frijters v The University of Queensland
[2016] FWC 2746
•8 JUNE 2016
| [2016] FWC 2746 [Note: An appeal pursuant to s.604 (C2016/4302) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Paul Frijters
v
The University of Queensland
(C2015/2475)
COMMISSIONER BISSETT | MELBOURNE, 8 JUNE 2016 |
Application to deal with a dispute – Jurisdiction – Saving provisions – Whether misconduct procedures properly followed – Procedural fairness – Applicant not afforded procedural fairness – Supervisor not appointed in accordance with the relevant Agreement – Decision to impose disciplinary outcome.
Introduction
[1] Professor Paul Frijters is a Professor of Economics at the University of Queensland (the University) in the School of Economics, Faculty of Business, Economics and Law. He has been at the University since 2010. The Head of School was, at the relevant time, Professor Falvio Menezes.
[2] In 2012 Professor Frijters was involved in supervising a PhD student in a course of research. The research proceeded and resulted in a discussion paper ‘Still Not Allowed on the Bus: It Matters if you’re Black or White!’ published in March 2013 (the research) co-authored by Professor Frijters and the student.
[3] Arising from matters associated with the research, Professor Frijters was subject to an investigation and subsequently allegations of misconduct/serious misconduct under the provisions of The University of Queensland Enterprise Agreement 2010-2013 (the 2010 Agreement) and the University research misconduct procedures.
[4] Professor Frijters says that, in the processes, the University was in breach of the following clauses of the 2010 Agreement:
Clause 40 Research misconduct
Clause 36.1 Disciplinary action should be used as a last resort…
Clause 36.3 The principles of procedural fairness will be observed…
Clause 39.2 Misconduct/serious misconduct – Commencement of process
Clause 39.3 Misconduct/serious misconduct – Action by relevant Senior Executive on referral
Clause 63.1 Each academic shall have a nominated supervisor…
[5] Professor Frijters seeks the following relief:
1. A declaration that the University contravened the terms of The University of Queensland Enterprise Agreement 2010-2013 in accordance with sections 50, 539 (item 4) and 545 of the Fair Work Act 2009 (the Act).
2. Discontinuance of the investigation process by the University including retracting the findings of Professor Wright dated 26 March 2015.
BACKGROUND
[6] It is agreed that the misconduct/serious misconduct procedures of the 2010 Agreement continue to apply to Professor Frijters by virtue of clause 12 of The University of Queensland Enterprise Agreement 2014-2017 (the 2014 Agreement).
[7] The specific provisions of the 2010 Agreement that apply in cases of misconduct/serious misconduct are at Appendix A to this decision.
[8] Clause 40 of the 2010 Agreement states:
40. SERIOUS RESEARCH MISCONDUCT
40.1 During the life of this Agreement the University will develop appropriate guidelines in relation to Serious Research Misconduct reflecting the protocols contained in the Australian Code for the Responsible Conduct of Research.
40.2 The guidelines will be subject to agreement with the ASCC and PSCC provided that agreement will not be unreasonably withheld.
[9] It is agreed that, pursuant to this provision of the 2010 Agreement, research misconduct procedures were developed.
[10] The relevant section from the research misconduct procedures is at Appendix B to this decision.
Research misconduct
[11] On 20 March 2013 Professor Frijters received an email from Professor Alan Lawson, Pro-Vice Chancellor (Research & International) as the Designated Person (DP) 1 under the research misconduct procedures in which he raised an issue with respect to whether ethical clearance had been obtained for the research. Professor Lawson indicated that the response he received from Professor Frijters would assist him in ‘forming a view as to whether or not this matter should proceed to an investigation under Research Misconduct Procedures.’2
[12] On 21 March 2013 Professor Frijters received an email from Professor Deborah Terry, Senior Deputy Vice-Chancellor. She advised that it had come to the University’s attention that Professor Frijters did not have ethical clearance for some research, that the research required such clearance to comply with the Code, the National Statement on Ethical Conduct in Human Research and with University Policy. She indicated that the research was not to be disseminated further ‘unless an investigation reveals that ethical clearance was not necessary.’ 3 Professor Frijters provided a response to this email on 25 March 2013.4
[13] On 7 May 2013 Professor Frijters received a Notice of Investigation (NoI) from Professor Menezes. 5 That notice indicated that an investigation would be conducted by Professor Lawson and Mr David Lavell, Associate Director, Investigations Unit and that:
The preliminary investigation will seek to establish whether there is any case to answer on research misconduct with respect to any failure to comply with the relevant University policy and procedures…
…
You should be aware that substantiated allegation(s) of research misconduct are to be considered as misconduct/serious misconduct in accordance with section 39 of the [2010 Agreement]…
[14] On 24 May 2013 Professor Frijters attended an investigation interview conducted by Professor Lawson and Mr Lavell.
[15] A final Investigation Report was provided to Professor Iain Watson on 10 October 2013. 6 That report indicated on its cover sheet that it was prepared by Mr Lavell.
Misconduct/serious misconduct
[16] On 11 December 2013 Professor Frijters received an email from Professor Watson inviting him to a meeting with himself and Mr Richard Bannister, Senior Employee Relations Consultant. The meeting was held on or about 13 December 2013 when Professor Frijters was presented with a Notice of Allegations (2013 NoA). Professor Watson advised Professor Frijters that the investigation conducted pursuant to the NoI had found ‘that there is a case to answer in relation to certain allegations and I remain of the view that misconduct or serious misconduct may have occurred.’ 7
[17] The 2013 NoA indicated that Professor Frijters may have breached a number of policies of the University including research misconduct. It provided him with 10 days to provide his response to the allegations.
[18] The 2013 NoA said, in part:
I refer to the ‘Notice of Investigation’ letter I sent to you dated 7 May 2013 and wish to advise you that the investigation into allegations of misconduct/serious misconduct has now concluded. The investigation found that there is a case to answer in relation to certain allegations and I remain of the view that misconduct or serious misconduct may have occurred.
A full copy of clause 39 of the Enterprise Agreement was previously provided to you…
Copies of the report following the investigations into allegations made against you in accordance with clause 39.2(e) of the Enterprise Agreement (Investigation Reports) are attached to this Notice. 8
[19] The 2013 NoA then detailed five separate allegations and the process to be followed from that point on.
[20] On 6 January 2014 Professor Frijters provided a written response to the 2013 NoA.
[21] On 4 February 2014, following a meeting with Ms Jane Banney, Director Human Resources (Director HR), Professor Watson referred the outcome of the investigation to Professor Alan Rix 9 as the Senior Executive, by letter:
I write in accordance with clause 39.2(f) of The University of Queensland Enterprise Agreement 2010 – 2013 (Enterprise Agreement) and wish to report that I consider the behaviour of Professor Paul Frijters may constitute misconduct or serious misconduct….
In consultation with Jane Banney, Director, Human Resources and taking full and due account of Professor Frijters response I consider that his behaviour may constitute misconduct or serious misconduct and ask that you consider this matter in accordance with clause 39.3 and 39.4 of Enterprise Agreement… 10
[22] On 18 February 2014 Professor Frijters received a letter from Professor Rix. The letter indicated that he had received a report from Professor Watson in relation to allegations of misconduct/serious misconduct made against Professor Frijters in the 2013 NoA. The letter invited Professor Frijters to provide any further response by 25 February 2014. 11
[23] On 3 March 2014 Professor Frijters received a letter from Professor Rix in which he said:
I write in relation to the allegations of misconduct/serious misconduct made against you and outlined in the Notice of Allegations, dated 13 December 2013…
Within 10 working days of receiving the report from the supervisor (which was 17 February 2014), I must form a view about whether the allegations(s) have been substantiated and, if so, the appropriate disciplinary action.
In reaching my decision, I have considered all relevant material. Professor Watson’s report to me of 14 February 2014 included the Final Investigation Report of 10 October 2013, the Notice of Allegations to you of 13 December 2013 and your response to Professor Watson of 6 January 2013 (sic). I have also received your email of 24 February 2014.
Furthermore, I requested and received from the School of Economics several documents relating to the School’s ethical approvals and RHD funding processes… 12
[24] The letter concluded that each of the allegations against Professor Frijters was substantiated and that Professor Frijters had committed misconduct (but not serious misconduct).
[25] On 17 March 2014 Professor Frijters sent an email to Mr Bannister asking where the report of his supervisor (whom he considered to be Professor Menezes) was and if he could be provided with a copy. Mr Bannister responded that Professor Watson had ‘acted in that capacity [of supervisor]’ in the process. Professor Frijters replied querying who his supervisor had been for the research misconduct procedures and misconduct/serious misconduct procedures, when it had changed and why he was not alerted to the change. Mr Bannister responded on 19 March 2014 and said, in part:
Carriage of the misconduct matter passed to Professor Watson…in late 2013, due to the then absence for the University of Professor Menezes. For reasons of procedural continuity, Professor Watson continued to hold carriage of the process until he referred the matter to Professor Rix for a determination in February 2014.
[26] Professor Frijters replied that his procedural questions had not been addressed.
[27] On 2 May 2014, Professor Alistair McEwan sent a letter to the Brisbane City Council on behalf of the University in relation to the research. 13 The purpose of the letter was to ‘provide information concerning the ‘research ethics aspects’’ of the research into Brisbane bus drivers. The letter went on to say:
Research of this kind involving participants is…required to be reviewed and approved by an ethics committee…As part of the University’s investigation of the matter, it became known that the Brisbane Bus Project has not been submitted for such an ethical review.
Had it been reviewed according to the required procedures and guidelines, the University’s ethics committee would have enforced the usual standards of voluntary informed consent from each participant (in this case, the bus drivers…).
The University considers the events that transpired to be unacceptable and to have compromised best practice models that our ethics framework set out to uphold: We regret and sincerely apologise for any offence that may have been caused to the bus drivers and the Council as a result of the manner in which the research was conducted, and then disseminated through the media…
[28] As a result of correspondence between Professor Frijters lawyers and the University and its lawyers, including in relation to the Committee of Review process, the University advised on 25 July 2014 that:
In light of matters raised by your client, the University will do the following in respect of the process:
1. Discharge the Committee of Review.
2. Withdraw the findings and determination dated 3 March 2014.
3. Step back the process to the stage at which the preliminary investigation was
finalised (by report dated 11 October 2013).
4. To ensure the process recommences without any possibility of prejudgement
based on past process, designate Professor Sara Dolnicar as Professor Frijters' supervisor for the process of this matter, pursuant to Clause 1.23 of the Agreement.
5. Request that the current Designated Person (Acting Pro-Vice Chancellor
(Research and International), Professor Alistair McEwan), in consultation with Professor Dolnicar, review the preliminary investigation report and decide whether a prima facie case of research misconduct exists. 14
[29] The process arising from this letter is referred to as the ‘stepped back’ process in this decision.
[30] On 5 August 2014 the University advised Professor Frijters that Professor Sarah Derrington would be appointed as his supervisor in Professor Dolnicar’s place.
[31] Professor Frijters advised that he did not consider Professor Derrington as a suitable supervisor as she had a conflict of interest in that her own direct supervisor was involved in a flawed process and she had previously worked for MinterEllison who now acted for the University. Further, he said she had no knowledge of the ‘norms of economics’. 15
[32] On 12 August 2014 Professor Frijters received a formal letter from Professor Max Lu, Provost and Senior Vice-President of the University advising that he had:
…designated Professor Sarah Derrington as your supervisor for the purposes of this matter, pursuant to clause 1.23 of the University of Queensland Enterprise Agreement 2010-2013 (Enterprise Agreement).
This letter serves as a formal notification of that appointment.
For the avoidance of doubt, I confirm that your Academic Supervisor, as contemplated by clause 63 of the Enterprise Agreement remains unchanged. 16
[33] On 1 December 2014 Professor Frijters received a Notice of Allegations signed by Professor Derrington (the 2014 NoA). In that letter Professor Derrington indicated that she was writing to Professor Frijters as his supervisor for the purpose of carrying out the process under the Research Misconduct Procedures. The letter said that she, along with Professor McEwan (the then DP) had reviewed the Investigation Report, further submissions of Professor Frijters and discussed the matter with Professor KK Tang. She also advised that, in accordance with the research misconduct procedures Professor Anton Middelberg had been notified and determined that neither an internal nor external inquiry was necessary. She advised that a decision had been made that the matter now proceed in accordance with the misconduct/serious misconduct provisions of the 2010 Agreement. 17
[34] On 12 February 2015 Professor Derrington provided a report to Professor Joanne Wright, Deputy Vice Chancellor (Academic) in her role as the Senor Executive, in accordance with clause 39.2(f) of the 2010 Agreement. Professor Derrington advised Professor Frijters of this step.
[35] On 13 February 2015, in accordance with clause 39.3 of the 2010 Agreement, Professor Wright wrote to Professor Frijters and, amongst other things, invited him to provide any further response before she made her determination.
[36] Professor Frijters provided his response on 6 March 2015.
[37] On 25 March 2015 Professor Wright issued her report and findings. In that report Professor Wright said:
Professor Frijters has raised a number of procedural issues, both in his submission to Professor Derrington dated 16 December 2014 (and in earlier submissions) and also in his response to me dated 6 March 2015.
Professor Frijters contends that, as a result of these procedural deficiencies, I should discontinue the proceedings.
To the extent that Professor Frijters asserts procedural deficiencies, each of these asserted deficiencies preceded my involvement in the matter, and I do not believe I am in a position to make a finding one way or another I relation to these matters, which appear to involve legal and factual issues which have not been referred to me for decision.
I have referred these matters to the Vice Chancellor…I have confined by consideration to the substantive matters referred to me…
[38] Professor Wright concluded that Professor Frijters was guilty of misconduct and proposed some disciplinary actions.
JURISDICTION
[39] Professor Frijters made his application for the Fair Work Commission (the Commission) to deal with the dispute on 13 April 2015. He made the application pursuant to the provisions of s.739 of the Act in accordance with the dispute settlement procedure of the 2010 Agreement. The application indicated the clauses to which the dispute relate and detailed what the dispute was about.
[40] At the time of making his application to the Commission the 2010 Agreement had ceased to operate in accordance with s.54 of the Act as the 2014 Agreement commenced operation on 31 October 2014.
[41] The University makes three jurisdictional objections to the Commission being able to deal with the application. These are:
1. At the time of making the application Professor Frijters was not covered by the 2010 Agreement as it had ceased to operate;
2. Clause 15.3 of the 2014 Agreement states:
Where a determination is made by the Relevant Senior Executive, Provost or Vice-Chancellor and President following the proper application of the clauses listed below, that determination cannot be the subject of a dispute under the Dispute Settlement Procedure:
(a) Clause 38 ‘Misconduct/Serious Misconduct’;
(b) Clause 39 ‘Unsatisfactory Performance’;
(c) Clause 42 ‘Medical Conditions Affecting Performance’;
(d) Clause 47 ‘Restructuring, Redeployment and Redundancy’.
The dispute therefore cannot be brought in accordance with the dispute settlement procedure of the 2014 Agreement because clause 15.3 prohibits a dispute in relation to misconduct/serious misconduct proceedings.
3. Professor Frijters has not met the requirements of the dispute settlement procedure in the 2010 or 2014 Agreements such that he could notify a dispute under either of those procedures to the Commission.
[42] I deal with these objections below.
Submissions with respect to the jurisdictional objection
1. Professor Frijters is not covered by the 2010 Agreement
[43] The University submits that the 2010 Agreement ceased to operate on 31 October 2014 when the 2014 Agreement commenced. Professor Frijters’ application was made to the Commission after this date. In order to bring a dispute to the Commission pursuant to a dispute settlement procedure a person must be covered by the enterprise agreement under which the application is made. As the 2010 Agreement had ceased to operate by the time the dispute was notified Professor Frijters could not have been covered by it. For this reason it says that the Commission cannot deal with the dispute.
[44] The University submits that Professor Frijters had the opportunity to notify a dispute pursuant to the 2014 Agreement or amend his existing application to make it clear it proceeded under the 2014 Agreement. It submits that as he refused to do so his application should be dismissed.
[45] The University accepts that clause 12 of the 2014 Agreement has the effect that the University could continue to deal with the misconduct proceedings against Professor Frijters in accordance with the 2010 Agreement even though it is no longer operational. However, it says that clause 12 does not have the effect of preserving the operation of the dispute settlement procedure under the 2010 Agreement as there was no dispute commenced under the 2010 Agreement to preserve because Professor Frijters did not notify his dispute until after the 2010 Agreement had ceased to operate.
[46] The University relies on the decision in Stephenson v Senator the Honourable Eric Abetz 18(Stephenson) which it says makes clear that the Commission no longer has jurisdiction to exercise power pursuant to an agreement once that agreement has ceased to operate.
[47] Further, it says that the reliance by Professor Frijters on the decision in The Association of Professional Engineers, Scientists and Managers, Australia v Jemena Asset Management Pty Ltd 19 is misconceived.
[48] Professor Frijters submits that clause 12 of the 2014 Agreement is a savings provision.
[49] Professor Frijters argues that the effect of this clause is that it keeps on foot any processes commenced under the 2010 Agreement and provides the Commission with jurisdiction to deal with the dispute. In the present case he submits that it has the effect of saving the disciplinary processes commenced against him under the 2010 Agreement and the dispute settlement procedure invoked by him.
[50] Professor Frijters says that the current dispute can be distinguished from that in Stephenson because of the existence of clause 12 of the 2014 Agreement which operates to preserve the dispute he commenced under the 2010 Agreement.
2. The 2014 Agreement does not allow a dispute to be notified in respect of Misconduct/Serious Misconduct matters
[51] The University submits that clause 15.3 of the 2014 Agreement prevents Professor Frijters bringing a dispute about misconduct/serious misconduct to the Commission.
[52] The University agrees that it continued to apply the 2010 Agreement misconduct/serious misconduct process to Professor Frijters in accordance with clause 12 of the 2014 Agreement. However, it says that clause 15.3 of the 2014 Agreement makes it clear that a dispute cannot be brought in response to a misconduct/serious misconduct matter. Professor Frijters therefore cannot notify a dispute pursuant to the 2014 Agreement. Further, it submits that the Committee of Review process, as specified in the misconduct/serious misconduct procedure is the appropriate means of dealing with an objection to a determination made pursuant to that process.
[53] Professor Frijters submits that the University has at all times relied on and applied the processes outlined in the 2010 Agreement in respect to misconduct/serious misconduct in reliance on the savings provisions of clause 12 of the 2014 Agreement. He submits that the 2014 Agreement is not relevant to the dispute before the Commission.
3. Professor Frijters has not meet the requirements of the dispute settlement procedure
[54] The University submits that, while Professor Frijters had previously ‘raised issues’, he has never indicated directly, or through his lawyers, that he considered there to be a dispute with the University under either the 2010 or 2014 Agreement. It says that, had he done so, it would have initiated steps one and two under the dispute settlement procedure.
[55] The University says that step one of the dispute settlement procedure under either the 2010 or 2014 Agreement requires the parties to the dispute attempt to reach a written agreement on the resolution of the matters in dispute within five working days. Whilst it accepts that Professor Frijters may have been able to bypass this step of the procedure, step two requires that the Director Human Resources refer the dispute to the relevant Senior Executive who will convene a conference of the parties. It submits that the relevant Senior Executive did not convene such a conference because there was no notification of a dispute to the Director Human Resources.
[56] The University submits that the Commission does not have jurisdiction to arbitrate the dispute as notified by Professor Frijters unless the requirements of the procedure are met under clause 15.8.1 of the 2014 Agreement or clause 15.6.1 of the 2010 Agreement.
[57] The University says the decisions in Shields & Anor v Alfred Health 20 and Seiffert v Patrick Projects Pty Ltd21(upheld on appeal) support its contention that it is only where the pre-conditions of a dispute settlement procedure have been met that the Commission is able to hear and determine a dispute. Professor Frijters has failed, it says, to meet the threshold required to enable the Commission to arbitrate the dispute.
[58] In the alternative, it says that Professor Frijters’ tactical use of the dispute settlement procedure is reason to deny him any relief.
[59] The University says that Professor Frijters was legally represented by lawyers experienced in industrial matters and that if he intended to raise a dispute he would have done so.
[60] Professor Frijters does not seek to rely on the dispute settlement procedure in the 2014 Agreement to ground his dispute.
[61] Professor Frijters says that the dispute settlement procedure of the 2010 Agreement does not specifically require that a staff member specify that the issue raised is a ‘dispute’ under the dispute settlement procedure in order to have it dealt with under the procedures. He submits that step one of the dispute settlement procedure only requires that a staff member ‘raise the issue with the relevant senior management.’
[62] Professor Frijters submits that he did, on numerous occasions, raise issues about the proper application of the procedures in the 2010 Agreement, including on 12 December 2013 in correspondence to Professor Menezes, and in correspondence with Professor Watson on 13 December 2013 and again on 6 January 2014.
[63] Further, Professor Frijters says that, in accordance with step two of the of the dispute settlement procedure, he referred matters associated with a breach of the procedures in the 2010 Agreement to Ms Banney, Director HR on 20 March 2014. He says Ms Banney failed to ensure that the relevant Senior Executive (Professor Rix) convened a conference of the parties. Professor Frijters again wrote to Ms Banney about his concerns about the application of the procedures on 27 March 2014. Ms Banney did not respond to this email.
[64] Professor Frijters’ says that his issues were then raised by his lawyers directly with Professor Rix by letter on 14 April 2014. Professor Rix referred the matter to the University’s lawyers who responded on 29 April 2014.
[65] In making his submissions to the Committee of Review established in accordance with the misconduct/serious misconduct procedures of the 2010 Agreement, Professor Frijters again raised his concerns regarding the application of clauses 39 and 63 of the 2010 Agreement.
[66] Following the process being ‘stepped back’ in mid-2014 Professor Frijters again referred issues regarding the application of the 2010 Agreement to Ms Banney on 11 August 2014. No response was received or action taken by Ms Banney although a response was received from the University’s lawyers on 19 August 2014.
[67] Alternatively, Professor Frijters submits that, in accordance with clause 15.6.6 of the 2010 Agreement, genuine discussions between the parties have been unreasonably hindered or delayed beyond the timeframes set in the dispute settlement procedure. For this reason, he says it is reasonably open to him to notify the dispute to the Commission in accordance with the provisions of the Act.
[68] Professor Frijters submits that, in light of the circumstances set out above, it was open to him to notify the dispute in accordance with clause 15.6.1 of the 2010 Agreement in circumstances where he had raised the dispute with the relevant senior manager, the Director Human Resources and the Senior Executive and the dispute remained unresolved.
Consideration of jurisdictional objections
[69] It is necessary to determine if the Commission has jurisdiction to deal with the dispute prior to the consideration of the merits of the application.
The savings provision in the 2014 Agreement
[70] The 2014 Agreement contains the following relevant provision:
12. CONTINUITY OF PROCESSES AND ARRANGEMENTS
12.1 Processes (including their applicable procedures) including but not limited to misconduct/serious misconduct; organisational change; restructuring; unsatisfactory performance; medical conditions affecting performance; and classification of Professional staff positions that commenced prior to the approval by the Fair Work Commission of this Agreement will continue in accordance with the procedures in place at the time of commencement of the relevant process.
12.2 This Agreement will not render void any local arrangement or agreement that was in place at the time of approval by the Fair Work Commission except to the extent of any inconsistency with entitlements contained in this Agreement.
[emphasis added]
[71] Before considering if Professor Frijters properly complied with the dispute settlement procedure in the 2010 Agreement it is appropriate to understand the effect of clause 12 of the 2014 Agreement.
[72] The purpose of clause 12 is apparent. Firstly it acts to preserve any process commenced under the 2010 Agreement. This much is clear from the phrase ‘including but not limited to’ immediately preceding named processes. This indicates that it is more than the named provisions that are preserved had they commenced under the 2010 Agreement.
[73] Second, clause 12 preserves the totality of the process already commenced and allows that process to come to its natural conclusion as if the 2014 Agreement had not replaced it. This is clear from the phrase ‘will continue in accordance with the processes at the time of commencement of the relevant process.’ That is, clause 12 shields processes commenced under the 2010 Agreement from any changes that may have been made by the 2014 Agreement and, importantly, it keeps those processes valid.
[74] The effect of this clause is that the misconduct/serious misconduct process commenced under the 2010 Agreement will continue to apply to Professor Frijters regardless of any changes made to it by virtue of the 2014 Agreement. The process will continue until it comes to its natural conclusion in accordance with how it was to operate under the 2010 Agreement.
[75] The effect of clause 12 must also be that if Professor Frijters did invoke the dispute settlement procedure under the 2010 Agreement then that is the process that must continue to apply through to its natural conclusion as if the restriction in the 2014 Agreement does not exist.
[76] I am satisfied that, by virtue of the operation of clause 12 of the 2014 Agreement the misconduct/serious misconduct provisions of the 2010 Agreement continue to apply to Professor Frijters. The provisions of the dispute settlement procedure of the 2010 Agreement also apply, but only in circumstances where Professor Frijters properly invoked those procedures prior to the approval of the 2014 Agreement.
[77] For these reasons the principals in Stephenson do not apply to the matter before me.
[78] I am therefore satisfied that the misconduct/serious misconduct provisions of the 2010 Agreement continue to apply to Professor Frijters and, if he did enliven them, the dispute settlement procedure of the 2010 Agreement also applies in its entirety.
Did Professor Frijters raise a dispute under the dispute settlement procedure in the 2010 Agreement?
[79] Professor Frijters can only notify a dispute to the Commission in accordance with step three of the dispute settlement procedure in the 2010 Agreement (preserved) if he raised the dispute prior to 24 October 2014, 22 the date of approval of the 2014 Agreement.
[80] Before considering if Professor Frijters did so it should first be said that a failure of the University to respond to ‘issues’ raised by Professor Frijters in accordance with the dispute settlement procedure is not evidence that Professor Frijters did not raise any matters in accordance with the procedure. To suggest otherwise is mischievous and, if it was accepted, would hand to the employer control of whether a matter had ever been raised pursuant to a dispute settlement procedure.
[81] Whether Professor Frijters did raise a dispute is a matter of fact to be determined objectively by a consideration of actions taken by him and any response from the University.
[82] The dispute settlement procedure in the 2010 Agreement
15. DISPUTE SETTLEMENT PROCEDURE
15.1 It is agreed that the University and all its staff have an interest in the proper application of this Agreement and in minimising disputes about the proper application of the Agreement.
15.2 The matters to be dealt with in this procedure shall include all disputes between a staff member and the University and/or the Unions and the University in respect to any matter arising under this Agreement or the National Employment Standards. These procedures shall apply to a single staff member or to any number of staff members.
15.3 A staff member who is a party to the dispute may be represented by their Union at any time throughout this procedure or by another representative of their choice. The Unions covered by this Agreement may also, on behalf of a member or members, raise matters which require resolution through this disputes procedure.
15.4 Step One
15.4.1 In the event of a staff member(s) and/or Union(s) covered by this Agreement having a dispute, the staff member and/or their Union or another representative of the staff member’s choice shall in the first instance raise the issue with the relevant senior manager. The parties to the dispute will attempt to reach written agreement on the resolution of the matter within five (5) working days. Where the dispute concerns alleged actions of the relevant senior manager, the staff member(s) may bypass this level in the procedure and report the matter to the Director, Human Resources.
15.4.2 Where the dispute is being raised by the University, in the first instance, the matter is to be raised by the relevant senior manager with the staff member or members concerned and the relevant Union/s or another representative of the staff member’s choice.
15.5 Step Two
15.5.1 If the dispute is not resolved within ten (10) working days, the staff member, their union or another representative of the staff member’s choice or the relevant manager shall refer the matter to the Director, Human Resources who will ensure that the relevant Senior Executive convenes a conference of the parties to the dispute, including the relevant Union(s) or representative(s) of the staff member’s choice at their discretion. Such conference shall take place within five (5) working days, unless otherwise agreed.
15.6 Step Three
15.6.1 If the dispute remains unresolved after the parties to the dispute have genuinely attempted to achieve a settlement thereof, then notification of the existence of the dispute is to be given to Fair Work Australia.
15.6.2 Fair Work Australia may deal with the dispute in two (2) stages:
(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
15.6.3 Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.
15.6.4 Until the procedures described in this clause, including those procedures involving Fair Work Australia, have been exhausted, the status quo that existed prior to the actions which gave rise to the dispute shall be maintained and the parties to the dispute shall not change work, staffing or the organisation of work if such is the subject of a dispute, and not take any other action likely to exacerbate the dispute. Further, in accordance with the General Protections as outlined in the Fair Work Act 2009 (Cth) the University shall not terminate a staff member, or allow the termination of a staff member, where one of the issues in dispute related to that termination.
15.6.5 All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by Fair Work Australia with a view to the prompt settlement of the dispute.
15.6.6 Discussions at any stage of the procedure shall not be unreasonably delayed by any party to the dispute, subject to acceptance that some matters may be of such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are unreasonably delayed or hindered beyond the timeframes prescribed in this clause, it shall be open to any party to the dispute to give notification of the dispute in accordance with the provisions of the Fair Work Act.
[83] Professor Frijters says he first raised the issue he had with the application of the 2010 Agreement with Professor Menezes in correspondence on 12 December 2013.
[84] The 12 December 2013 email to Professor Menezes followed an initial email exchange between Professor Frijters and Professor Watson. 23 Professor Frijters’ email to Professor Menezes starts:
See below the Dean’s response on the main procedural matter surrounding tomorrow’s meeting…
[85] The preceding email exchange between Professor Frijters and Professor Watson (the Dean) starts with an invitation to Professor Frijters from Professor Watson to attend a meeting for the purpose of providing a formal Notice of Allegations. Following a reply from Professor Frijters, Professor Watson provides more detail as to the genesis of the meeting. Professor Frijters replies to Professor Watson on 11 December 2014 and says:
Thanks for the clarification on the subject matter. I will be there on Friday.
In the meantime, can you confirm who has been acting as my Supervisor for the purpose of deciding on the Preliminary Investigation and now this Notice of Investigation? My reading of the Enterprise Bargaining Agreement and the Procedures is that both the decision to have a preliminary investigation and the decision to actually investigate…have to be taken by my Supervisor. After the investigation the decision again would be the Supervisor’s whether or not to escalate further.
I am hence a little confused about the involvement of the Executive Dean at this point: I thought that my Supervisor would normally be Professor Flavio Menezes, but in his official absence, would now be Professor Simon Grant who acts in his stead? Clarification would be appreciated… 24
[86] In reply, Professor Watson indicated he had become the ‘senior staff member designated by the University’ on 12 December 2013.
[87] On 12 December 2013 Professor Frijters forwarded this email exchange to Professor Menezes and said:
…it appears that the dean is now my supervisor on this role. Were you informed that he was going to take over the supervisor role? I certainly was not informed in writing of the change in supervisors, which the Enterprise bargaining Agreement (article 63) clearly stipulates should have happened…
My current understanding…is…that you, as my official supervisor
2. Did not define the preliminary investigation.
2. That you have not in writing agreed to delegate your role as supervisor…
3. That you have not been given the preliminary investigation report…
4. That you have not decided, nor been involved in the decision, to go from preliminary investigation to a Notice of Allegations.
These points matter in the sense that they make both preliminary investigation in March-May and the current Notice of Allegations unprocedural. Simply put, by bypassing you as my supervisor, they contravene Sections 39 and 63 of the Enterprise Bargaining Agreement. Consequences flowing from them should then most likely not hold up in court.
Apart from my current situation, of course, these apparent contraventions of the Enterprise Bargaining Agreement affect your role as head of School. (sic)
[emphasis added]
[88] Whilst there is no specific mention in this email that the matters mentioned were being raised in the context of the dispute settlement procedure, Professor Frijters clearly identified a contravention he saw of the 2010 Agreement. I note however, that Professor Frijters did not specifically ask Professor Menezes to do anything about the matter. He did not request the issues be discussed nor did he suggest that the process could not go any further until the issue had been resolved.
[89] Professor Menezes responded that he had not taken part in the decision to issue the Notice of Allegation but did not respond to other matters canvassed in the email.
[90] On 16 December 2013, Professor Frijters responded to Professor Menezes and outlined his intended ‘response’ to the Notice of Allegations. He asked Professor Menezes for any edits and improvements he might envisage and recommend. That is, the follow up email from Professor Frijters to the email in which he says he raised the dispute with Professor Menezes does not deal with that thing he said he was in dispute with the University about.
[91] In his correspondence to Professor Watson on 13 December 2013 Professor Frijters again specifically mentioned his concerns that what had occurred was not in accordance with the requirements of the 2010 Agreement. Of the appointment of his supervisor he said:
My understanding of the Enterprise Agreement, clause 39 and 63, are that this is not in accordance with UQ Procedures…
…I have not been notified in writing by the Senor Deputy Vice-Chancellor about a change in whom my Supervisor is… 25(sic)
[92] It is apparent that, at this stage, Professor Frijters had raised issues with the application of the provisions of the 2010 Agreement with his supervisors. It appears however, that in not specifically mentioning the dispute settlement procedure of the 2010 Agreement, it was not acknowledged by his supervisors as a dispute in accordance with the 2010 Agreement.
[93] If Professor Frijters did raise an issue in dispute pursuant to the dispute settlement procedure with Professor Menezes and/or Professor Watson in accordance with Step 1 of the dispute settlement procedure then I am not convinced that his correspondence with Ms Banney could be characterised as referring that dispute to the Director Human Resources.
[94] In his email of 20 March 2014 to Ms Banney, Professor Frijters opens with the line ‘I seek clarification on two procedural matters related to the ‘racism on the bus’ misconduct case that concerns parts of the Final Investigation report involving you.’ 26
[95] He then raised an issue with respect to a request made of the Central Ethics Committee and a further issue about an apparent confusion of the misconduct and research misconduct procedures.
[96] Whilst in this correspondence he did not specifically raise the issues raised with Professor Menezes and Professor Watson, he did raise issues of concern with a number of procedural aspects of what was occurring and whether it was in accordance with the required procedures.
[97] On 25 March 2014 Ms Banney responded to the matters raised in Professor Frijters’ email in the context of how he raised those matters with her.
[98] Professor Frijters’ reply to Ms Banney on 27 March 2014 again does not mention that he had specifically raised issues with Professor Menezes and/or Professor Watson to which he received no satisfactory reply. In fact his correspondence does not even mention Professor Menezes and Professor Watson. It does however reiterate his concern with procedural issues which he considered serious:
Other mandated steps also seem not to have been followed. Is there a papertrail to prove that all steps actually have been followed and that motivated and recorded decision have been made by the appropriate persons at the appropriate time? And, if so, why was I not notified? Until such paper trail emerges, I must presume that the Research misconduct procedures have not been followed and that the Final Decision of Alan Rix on March 3rd 2014 in fact is not consistent with UQ procedures. 27
[99] There can be no doubt that Professor Frijters raised issues with Ms Banney with respect to the procedure adopted in his case. He is clear in his view that the procedures have not been followed.
[100] Ms Banney, in her evidence, agrees that Professor Frijters, in this correspondence, did raise procedural issues with her and he did not accept her email of 25 March 2014 as resolving his issues. 28
[101] Although Professor Frijters did not, in this correspondence with Ms Banney, specifically raise those matters (clauses 39 and 63) raised with Professor Menezes and Professor Watson he clearly raised a failure to comply with procedures with Ms Banney. If it is accepted (and the University do concede this) that step one of the dispute settlement procedure may be bypassed by Professor Frijters, it is readily apparent that Professor Frijters, in this correspondence to Ms Banney, did identify a dispute (albeit obliquely) he had with the University as to its compliance with the procedures set out in the 2010 Agreement for dealing with misconduct/serious misconduct matters.
[102] That Ms Banney did not refer the matter to the relevant Senior Executive does not cancel out the steps taken by Professor Frijters.
[103] On 14 April 2014 Professor Frijters instructed his lawyers, Holding Redlich to write to Professor Rix, Pro-Vice Chancellor, identifying a number of alleged breaches of the 2010 Agreement, including the failure to follow specific procedures in relation to the appointment of Professor Frijters’ supervisor. 29 I note that the key message of the letter was the possibility that Professor Frijters might seek declaratory and injunctive relief in the Supreme Court.
[104] This correspondence drew a response from the University’s lawyers (MinterEllison) in which it said it would ensure that the requirements of the 2010 Agreement were met in relation to proceedings against Professor Frijters. 30
[105] Professor Frijters further responded on 26 June 2014 to the University (both through lawyers) advising that he intended to apply to the Supreme Court for a declaration. The grounds he intended to rely on included non-compliance with specific provisions of the 2010 Agreement. 31
[106] On 25 July 2014 the University responded and indicated that, in light of the matters raised by Professor Frijters it intended to:
● Discharge the Committee of Review;
● Withdraw findings made on 3 March 2014;
● Step back the process to the stage the preliminary investigation was finalised;
● Designate a supervisor for Professor Frijters;
● Require a reconsideration of whether, prima facie, a case of research misconduct existed. 32
[107] In correspondence to the University on 29 July 2014, Professor Frijters clearly indicated that he did not agree that the steps taken by the University to resolve the issues he had raised with respect to the application of the 2010 Agreement had resolved the matter. 33 The University responded on 5 August 2014 that it did not believe any ‘procedural irregularity has occurred which would not be cured’ by its proposal to ‘step back’ the process as outlined in its letter of 25 July 2014.
[108] It further specifically responded to issues of concern raised by Professor Frijters in relation to the designation of his supervisor for the process. 34
[109] If it was not clear in his correspondence to Ms Banney, it must have been abundantly clear to the University, through the correspondence between the respective lawyers, that there was a dispute over the application of misconduct procedures in the 2010 Agreement. The University took steps it believed would overcome any procedural irregularity. It can only be presumed that it did this because ‘issues’ with compliance with the Agreement had been raised and needed to be resolved.
[110] The University proposed to step back the process and Professor Frijters rejected this as resolving his issues. He sought that the process be re-commenced and the University rejected such a suggestion.
[111] Whilst it is not clear why Holding Redlich, in its correspondence on behalf of Professor Frijters with the University, never clearly put that Professor Frijters was in dispute with the University in accordance with clause 15 of the 2010 Agreement, it is apparent from the correspondence that the parties were clearly aware there was a dispute between them about the application of the 2010 Agreement. Even if not explicitly acknowledged it is implicit in the correspondence.
[112] Whilst I do not expect that an employee acting alone should have to use precise legal language to initiate a dispute pursuant to a dispute settlement procedure, lawyers experienced in industrial relations should be more careful for no better reason than the consequences that flow from whether or not a dispute is properly raised.
[113] However, in circumstances where it is apparent from the correspondence between the lawyers that they knew there was a dispute, where the University took steps it considered would resolve the dispute (or issues) and where these steps were rejected by Professor Frijters, I am satisfied that Professor Frijters did raise a dispute in accordance with the dispute settlement procedure of the 2010 Agreement.
[114] I am satisfied that the correspondence from Professor Frijters to Professor Rix on 14 April 2014 was a consequence of his lack of satisfaction with the reply he received to the issues he raised from Ms Banney on 25 March 2014.
[115] I do not apportion blame to Ms Banney for a failure to refer the matters raised by Professor Frijters to the relevant Senior Executive as required under the dispute settlement procedure as Professor Frijters was oblique at best that he raised the issues in the context of the dispute settlement procedure. By the same token some latitude should be given to Professor Frijters who was in the midst of a complex process and who, whilst clearly a highly accomplished academic, is perhaps not well versed in industrial relations and related legal processes.
[116] At least by April 2014 the ‘dispute’ had been taken out of the hands of the local practitioners. Ms Banney could not have referred the matter to Professor Rix as she was no longer in the loop of correspondence between Professor Frijters and the University. At this stage however, the matter had been referred to the ‘Senior Executive’ as stated in step two of the dispute settling procedure, albeit by Professor Frijters and not by the Director Human Resources.
[117] I would note, in addition, that it appears from the words of the dispute settlement procedure that as long as a genuine attempt has been made to resolve the issue in dispute the matter may be referred to the Commission. The dispute settlement procedure is not prescriptive in that each step in the procedure must be taken in the way prescribed by the procedure before a dispute can be notified to the Commission. Rather, there must be genuine attempts to resolve it. This appears to give some latitude as to how the dispute is resolved.
[118] I am satisfied that Professor Frijters did invoke the dispute settlement procedure of the 2010 Agreement and that he did so by his correspondence to Ms Banney on 20 March 2014. Even if it is accepted that the dispute was not raised until the letter was sent to Professor Rix on 9 April 2014, this was well before the approval of the 2014 Agreement.
[119] Having properly raised a dispute under the 2010 Agreement, by virtue of clause 12 of the 2014 Agreement, Professor Frijters is entitled to have the dispute settlement procedure under the 2010 Agreement ‘continue in accordance with the procedures in place at the time of commencement of the relevant process.’
[120] The procedures in place at the time of commencement of the process required that any dispute be notified to the Commission in accordance with clause 15.6 of the 2010 Agreement. This is what Professor Frijters did. His dispute is therefore properly notified to the Commission.
[121] I am therefore satisfied that Professor Frijters instigated the dispute settlement procedure under the 2010 Agreement prior to the approval of the 2014 Agreement. Clause 12 of the 2014 Agreement operates to preserve the procedures of the dispute settlement procedure in the 2010 Agreement. It is under this process that the dispute must be, and was, notified.
[122] I am therefore satisfied that I have a dispute properly before the Commission. The dispute relates to a matter arising under the 2010 Agreement as preserved by the 2014 Agreement. I am therefore satisfied that I have jurisdiction to deal with the matter.
[123] Having found that I have jurisdiction there is no need to consider any other jurisdictional objections to the Commission dealing with the application.
ARE THE RESEARCH MISCONDUCT PROCEDURES INCORPORATED INTO THE 2010 AGREEMENT?
[124] In accordance with clause 40 of the 2010 Agreement (see [8] above) a research misconduct policy and procedure were developed. Professor Frijters says that the research misconduct policy was incorporated into the 2010 Agreement by virtue of the operation of the clause 5 of the 2010 Agreement. This is so because, pursuant to clause 5 of the 2010 Agreement, the policies which do not form part of the 2010 Agreement were set out at Schedule A to the 2010 Agreement. This Schedule remained unchanged for the life of the Agreement. The policy developed pursuant to clause 40 is not listed in Schedule A and therefore is not excluded from 2010 Agreement and must be included.
[125] Professor Frijters also submits that clause 36 of the 2010 Agreement provides support for his submission on this matter.
[126] Clause 36.1 of the 2010 Agreement states that where ‘the University believes that disciplinary action is required to be taken for misconduct, serious misconduct, serious research misconduct or unsatisfactory performance the University will act through clauses 39, 40 and 41 respectively.’
[127] Clause 36.4 states that the ‘timelines referred to in clauses 39, 40 and 41 may be varied by mutual agreement…’ and clause 36.5 provides that clause 36 ‘and clauses 39, 40 and 41 shall have no application to casual staff.’
[128] Professor Frijters submits that these clauses make no sense if what is being referred to is the precise wording of clause 40 and not the procedures developed in pursuance of that clause. That is, if the research misconduct procedures developed in accordance with clause 40 are not incorporated into the Agreement then the reference to clause 40 in clause 36 has no meaning.
[129] The University submits that on a plain reading of clause 40 the procedures developed pursuant to that clause are clearly not incorporated into the Agreement. That a policy is not in Schedule A does not mean that it is incorporated into the Agreement.
[130] Further, the University submits that clause 5 and Schedule A only reference policies and not procedures and it is a breach of the procedures that Professor Frijters argues.
Conclusion as to incorporation of the research misconduct procedures
[131] Clause 5 of the 2010 Agreement states:
5. UNIVERSITY POLICIES
5.1 The parties to this Agreement acknowledge that it is established custom and practice within the University that consultation on staff matters take place with staff, including through the relevant staff consultative committee(s).
5.2 The policies referred to in Schedule A of this Agreement shall be read in conjunction with this Agreement but do not form part of the Agreement.
5.3 No additions, deletions or any other changes (that have the effect of changing employment conditions) will be made to the policies referred to in Schedule A without reasonable notice to and prior consultation with the relevant staff consultative committee(s) and affected staff.
[132] There is nothing in the words of the 2010 Agreement that would allow a conclusion that the terms of the research misconduct procedure, developed in accordance with clause 40 of the 2010 Agreement, is incorporated into the 2010 Agreement.
[133] I have reached this conclusion for a number of reasons. Firstly, nothing is clause 5 allows a conclusion that any policy not listed in Schedule A is otherwise incorporated into the 2010 Agreement but this is the effect I would have to give to the clause if I was to accept Professor Frijters construction of the Agreement.
[134] Second, I do not consider that the reference to clause 40 in clause 36.1 or 36.4 is definitive of the issue. Given that the research misconduct procedure did not exist at the time the 2010 Agreement was made the parties could not have known what was in the proposed procedure such that the reference to timelines (clause 36.1) could have had meaning (and in any event there are no specified timelines in the research misconduct procedure) and all clause 36.5 does is say that research misconduct will not apply to casual employees.
[135] Third, that the research misconduct procedures subsequently developed refer back to the misconduct/serious misconduct procedures of the 2010 Agreement itself cannot mean that research misconduct procedures are part of the misconduct/serious misconduct procedures. There is nothing in context that could encourage such a conclusion.
[136] Last, clause 5.3 refers to ‘additions, deletions or other changes…to the policies referred to in Schedule A…’ That is, clause 5.3 would appear to do no more than protect the named policies in Schedule A from changes without notice and consultation. It does not protect the list of policies but rather the content of those policies.
[137] What clause 5.3 does is provide special protection to the policies listed in Schedule A. Clause 5 cannot be read to mean every unnamed policy forms part of the Agreement.
[138] For these reasons I am not satisfied that the effect of clause 5 and 40 of the 2010 Agreement is to incorporate the research misconduct procedures into the 2010 Agreement.
PROCEDURES FOR THE APPOINTMENT OF A SUPERVISOR
[139] Before considering if the steps set out in the 2010 Agreement or the research misconduct procedures were followed in Professor Frijters’ case it is necessary to determine who his supervisor was at the relevant time. This is necessary as the supervisor plays a critical role in the process.
[140] ‘Supervisor’ is not defined in the research misconduct procedures. I accept that it is therefore reasonable to assume that, where it is used in those procedures, it refers to a staff member’s supervisor as determined in accordance with the 2010 Agreement.
[141] Chapter I to the 2010 Agreement is ‘applicable to all staff members’. Clause 1 in Chapter I is headed ‘Definitions’. Clause 1.23 states:
1.23 “Supervisor” means the Head of the organisational unit or other senior staff member so designated by the University.
[142] Chapter II of the Agreement is titled ‘Academic Staff’. It says the ‘The provisions of this Chapter are intended only to apply to Academic Staff’. The Chapter contains clauses on academic freedom, career development for casual academic staff, criteria for academic performance, salary movement within an academic level, academic staff workloads, staff appraisal and academic staff supervision at clause 63. Clause 63.1 is in Chapter II and states:
63. ACADEMIC STAFF SUPERVISION
63.1 Each academic shall have a nominated supervisor, and shall be advised in writing of the name and position of the nominated supervisor. Academic staff may request the nomination of an alternative supervisor.
63.2 Supervisors shall provide academic and administrative leadership and are responsible for monitoring the performance of academics and for providing assistance to academics whose performance is assessed as requiring improvement. Wherever possible supervisors shall be competent in the areas of expertise of the academics for whom they are responsible.
63.3 The supervisor shall be the head of the academic unit in which the academic is employed, provided that the Senior Deputy Vice Chancellor may delegate in writing another academic staff member classified at Level C or above to be the supervisor of one or more academics or group of academics...
[143] In this case there are two provisions in the Agreement in relation to who a supervisor may be. Clause 1.23 defines a supervisor as the person ‘so designated by the University’. It is, in fact, not a process for appointing a supervisor but the definition of a supervisor. This much is clear as Clause 1 of the Agreement is headed ‘definitions’.
[144] Professor Frijters says that clause 63 applies to the appointment of his supervisor to the exclusion of clause 1.23.
[145] The University says that clause 63 only applies to the appointment of a supervisor for academic purposes and not more generally. It says that more general appointment of a supervisor in relation to an academic staff member is governed by clause 1.23. It submits that it would be absurd to suggest that the University could not lawfully change supervisors during misconduct proceedings and that clause 1.23 of the 2010 Agreement allows the University to designate a supervisor for the purpose of such procedures.
[146] There is nothing in the 2010 Agreement that suggests an employee could have more than one supervisor, yet this is the result of acceptance of the submission of the University. Clause 1.23 defines ‘supervisor’. It does not define ‘supervisor for a particular purpose’ or suggest there may be more than one at any time.
[147] Clause 63 does not appear to allow for the appointment of more than one supervisor at any one time. I do note however that it does contemplate circumstances where the supervisor may not be from the same field as the staff member being supervised.
[148] I reject the submissions of the University that clause 63 only relates to the appointment of supervisor for academic purposes. Clause 63, on its face, relates to the supervision of academic staff as opposed to the academic supervision of staff. They are distinctly different concepts. I also reject the submission of the University that it can designate a supervisor under clause 1.23 of the 2010 Agreement who is different to the person, and who performs a different role, to the supervisor under clause 63. There is nothing in the 2010 Agreement that suggest this to be so.
[149] There is nothing in the misconduct/serious misconduct procedures or the research misconduct procedures that suggest that a supervisor cannot change part way through the process. Whereas consistency in decision making suggests that the supervisor should remain the same, there are many reasons why a supervisor may need to change – including a conflict of interest, unavailability due to extended leave, vacating the position and so on. As long as the reasons for changing supervisor are lawful and reasonable I am not convinced that doing so part way through the misconduct procedures generally is fatal to the process or a breach of the 2010 Agreement.
[150] Having rejected the University’s submission that an academic staff member could have two supervisors I am satisfied that the specific provisions of clause 63 are the mechanism by which a supervisor must be designated for an academic staff member. The appointment of Professor Frijters’ supervisor must therefore be done in accordance with clause 63 of the 2010 Agreement and he can only have one supervisor.
[151] Clause 63 provides a detailed process (and restrictions) on the appointment of a supervisor to an academic staff member. The person so appointed must be the person ‘so designated by the University’ in the definition of a supervisor in clause 1.23. Otherwise clause 63 would be meaningless. To this extent the advice to Professor Frijters that someone has been appointed his supervisor in accordance with clause 1.23 may not be wrong as long as that person was appointed in accordance with the process in clause 63.
[152] If the specificity in clause 63 could be overridden by the generality in clause 1.23 it would make clause 63 meaningless. Clause 63 is in the 2010 Agreement is in that part that applies specifically to academic staff and it must have work to do.
[153] Clause 63.3 says that Professor Frijters supervisor is the head of his academic unit unless otherwise advised in writing by the Senior Deputy Vice Chancellor. The head of Professor Frijters’ academic unit, at the time the misconduct/serious misconduct process commenced in 2013, was Professor Menezes.
[154] The only time Professor Frijters was advised in writing of an alternative supervisor was following the decision to ‘step back’ the process on 24 July 2014. On 12 August 2014, Professor Frijters was advised in writing by Professor Lu that Professor Derrington was nominated as his supervisor. However, the appointment was not made pursuant to clause 63 but rather clause 1.23 of the 2010 Agreement, and purported to appoint her as a second supervisor, and was therefore invalid.
[155] Professor Frijters was never advised in writing that Professor Watson was his supervisor.
HOW DO THE MISCONDUCT/SERIOUS MISCONDUCT AND RESEARCH MISCONDUCT PROCEDURES INTERACT?
[156] Where the misconduct being considered under clause 39 of the 2010 Agreement (see Appendix A) involves research misconduct, the research misconduct procedures seem to interpose into the misconduct/serious misconduct process additional steps and further put some additional players into the process. That is, some additional steps need to be taken after a notice of investigation is issued and before a notice of allegations can be given. These additional steps do not replace the requirements of the misconduct/serious misconduct procedures but add to it.
[157] The research misconduct procedures (see Appendix B), on a textual reading, provide a number of steps that must be taken with respect to research misconduct before the misconduct/serious misconduct process can be continued.
[158] The misconduct/serious misconduct process at clause 39 of the 2010 Agreement provides for definitions (clause 39.1) and, at clause 39.2, sets out the commencement of the misconduct/serious misconduct process.
[159] Clause 39.2(b) says that where there is a complaint or the supervisor otherwise forms a view that a staff member’s behaviour could constitute misconduct or serious misconduct the supervisor may conduct an investigation.
[160] The research misconduct procedures do not disturb this first ‘active’ step of the 2010 Agreement. Rather, it appears that where the complaint is of research misconduct the research misconduct procedures are engaged. This affects the investigation process otherwise provided at clause 39.2(b) of the 2010 Agreement. This much is clear from clause 6.5 of the research misconduct procedures. The research misconduct procedures place restrictions on how the investigation may be conducted such that the supervisor and DP are responsible for it.
[161] The research misconduct procedure then places a further (optional) step in the process at clause 6.7 – the commission of an internal or external inquiry – before the process reverts to that in the 2010 Agreement.
[162] Given the engagement of the research misconduct procedures within the misconduct/serious misconduct procedures of the 2010 Agreement, a failure to properly fulfil the requirements of the research misconduct procedures may influence whether the requirements of the misconduct/research misconduct procedures have been met. That is, if the University fails to properly conduct those steps in the research misconduct procedures and proceeds, with this failure, to make decisions pursuant to the misconduct/serious misconduct procedure of the 2010 Agreement then those decisions may be rendered null and void. I say ‘may’ because it will depend on the type of failure and seriousness of that failure.
[163] Given this analysis, the process required to be undertaken (subject to further discussion of the specifics of some steps below), where the misconduct is research misconduct would appear be:
Step in process | Source | |
1. | Supervisor receives a complaint – in this case an allegation of research misconduct | 2010 Agreement – clause 39.2(b) Research misconduct procedures – clause 6.2 |
2. | Supervisor must inform the staff member and Director, HR in writing of the nature of the allegation and that an investigation is to occur | 2010 Agreement – clause 39.2(d) Research misconduct procedures – clause 6.5 |
3. | Investigation is conducted by supervisor and DP if research misconduct | Research misconduct procedures – clause 6.6 |
4. | Supervisor and DP decide if prima facie case of research misconduct | Research misconduct procedures – clause 6.7 |
5. | If prima facie case of research misconduct exists DP must notify the Deputy Vice-Chancellor (Research) (the CEO), the Director Research Strategy & Management and the Director HR | Research misconduct procedures – clause 6.7 |
6. | The CEO may commission an internal or external inquiry | Research misconduct procedures – clause 6.7 |
7. | The inquiry provides a report to the CEO, the supervisor and the Director HR who must consider the finding and determine if misconduct/serious misconduct proceedings under clause 39.2(e) of the 2010 Agreement should continue. | Research misconduct procedures – clause 6.8 |
8. | If, after the investigation, the supervisor still holds the view the misconduct or serious misconduct occurred, the staff member must be provided with a Written Notice of Allegations | 2010 Agreement – clause 39.2(e) |
9. | Remaining procedures under the 2010 Agreement continue |
THE INVESTIGATION
Who was the supervisor at the time of the investigation?
[164] At the time the complaint was made and the investigation initiated, Professor Menezes was Professor Frijters’ supervisor. Professor Menezes issued the NoI to Professor Frijters in May 2013.
[165] From the University’s perspective Professor Watson took over the role of supervisor sometime later in 2013.
[166] I am satisfied that, at the time the investigation commenced Professor Menezes was Professor Frijters’ supervisor.
Receipt and advice of complaint
[167] On 20 March 2013 Professor Lawson (as DP) advised Professor Frijters that he had received a complaint with respect to ethical approval of the research. 35 Professor Menezes was copied into that email.
[168] Professor Menezes was also copied into the email from Professor Terry to Professor Frijters of 21 March 2013.
[169] I am therefore satisfied that Professor Menezes and Professor Lawson were in receipt of the complaint.
[170] Information was sought from Professor Frijters by both Professor Terry and Professor Lawson. After this Professor Menezes informed Professor Frijters of the allegations in a NoI dated 7 May 2013 36 in accordance with clause 39.2(b) of the 201 Agreement.
[171] I am satisfied that Professor Menezes received notification of the complaint in relation to misconduct against Professor Frijters either by way of the emails or by virtue of the discussion he had with University staff in the lead up to the issue of the NoI.
[172] I do not consider that there was any undue delay in Professor Menezes advising Professor Frijters of the allegation pursuant to the 2010 Agreement. Professor Frijters provided a response to the query of Professor Lawson on 25 March 2013. He was formally provided with the NoI approximately six weeks later. It would have been preferable that this had occurred sooner. However, given the need for Professor Lawson to form a view and advise Professor Menezes then have the allegations formulated before sending the NoI I am satisfied, viewed objectively, that there was no undue delay.
[173] Further, I am satisfied that the allegations were properly put to Professor Frijters by Professor Menezes in the NoI.
Who commissioned the investigation?
[174] The NoI was issued to Professor Frijters by Professor Menezes. In that letter Professor Menezes said:
The Investigation will be conducted by Professor Alan Lawson, Pro-Vice Chancellor (Research & International) and David Lavell, Associate Director, Investigations unit who will contact you in due course to arrange an interview.
[175] There is no correspondence from Professor Menezes to suggest that he commissioned the investigation that he refers to in the NoI. Ms Banney, Director HR gave evidence that the investigation was not commissioned by Professor Menezes. 37
[176] Professor Terry however ‘signed a Terms of Reference addressed to Professor Lawson and Associate Director David Lavell providing instructions to investigate and report on the circumstances of the research project….’ 38 on 26 April 2013.
[177] On this basis I am satisfied that Professor Terry commissioned the investigation conducted by Professor Lawson and Mr Lavell and that it was not commissioned by Professor Frijters’ supervisor.
[178] If the commission of the investigation is assessed against the 2010 Agreement the process was contrary to clause 39.2(b), as the investigation was not commissioned by Professor Menezes. Although Professor Menezes considered that it was sensible to have someone outside the School undertake the investigation, 39 he did not positively delegate the task to Mr Lavell40 nor did he ask Mr Lavell to undertake the investigation.41
[179] A plain reading of the text of the research misconduct procedures requires that the supervisor and DP carry out the investigation (clause 6.6). Professor Lawson and Mr Lavell were commissioned to, and did, conduct the preliminary investigation. Clearly neither of those persons was Professor Frijters’ supervisor. The investigation was undertaken on the instructions of Professor Terry.
[180] The University says that the research misconduct procedures do not prescribe that the supervisor must personally carry out the investigation and that the Flowchart, which by virtue of clause 6.1 of the research misconduct procedures is the procedure, allows the supervisor to commission the investigation.
[181] The research misconduct procedures state, at clause 6.1:
The procedure for dealing will allegations of research misconduct…at or on behalf of the University, is outlined in Flowchart 1.
[emphasis added]
[182] Flowchart 1 is attached to the research misconduct procedures and diagrammatically sets out the procedure to be followed. It says, at the third substantive step of the procedure that:
Designated Person & Supervisor may conduct or commission an investigation
[emphasis added]
[183] The research misconduct procedures says, at clause 6.6, that
The DP and supervisor will conduct a preliminary investigation…
[emphasis added]
[184] Clearly there is a conflict between the written procedure and the flowchart. One says the DP and supervisor will conduct the investigation while the other allows them to commission (ie delegate the conduct of) the investigation.
[185] While it is true that clause 6.1 says the procedure is outlined in the flowchart, an ‘outline’ must be accepted as just that. It cannot displace the words of the process expressed as a whole. It is, by necessity an abbreviated step by step guide to the process but the procedures themselves must be the written words. I cannot accept, as was put by the University, that a conflict between the words of the research misconduct procedure and the flowchart should be decided in favour of the flowchart. Nothing in the research misconduct procedure says that the flowchart is the procedure, but rather that it outlines the procedure.
[186] The University also says that it was not appropriate that Professor Menezes conduct the investigation because of a potential conflict of interest. While this may well be the case I note that neither Professor Frijters nor Professor Menezes were told that this was the reason either Professor Terry commissioned the investigation or why Professor Menezes did not conduct the investigation. Whilst the potential for conflict of interest was real, the University took no steps to advise Professor Menezes or Professor Frijters of this or to put in place any alternative arrangements in consultation with Professor Menezes and Professor Frijters.
[187] Even if the University is correct with respect to the Flowchart, Professor Menezes and Professor Lawson did not commission the investigation.
[188] Professor Lawson’s evidence is that he made the decision in consultation with HR that he and Mr Lavell would conduct the investigation. He also says that it is common practice that the supervisor not be involved in the day to day investigation. 42
[189] If I accept that this is, in fact, what occurred I do not see where or how this sits within the research misconduct procedures or the misconduct/serious misconduct procedures of the 2010 Agreement.
[190] For these reasons I am satisfied that the investigation was not commissioned in accordance with clause 39.2(b) of the misconduct/serious misconduct procedures of the 2010 Agreement in that it was not commissioned by Professor Menezes.
[191] Further, I am satisfied, on the evidence that the investigation was not conducted in accordance with clause 6.6 of the research misconduct procedure as it was not conducted by Professor Frijters’ supervisor who was, at that time, Professor Menezes.
The Investigation Report
[192] The Investigation Report finalised on 10 October 2010, which concluded that there was a prima facie case of research misconduct, names Mr Lavell as the author of the report on its front page and is only signed by Mr Lavell.
[193] Professor Lawson gave evidence that Mr Lavell did a draft of the report that then went through a couple of iterations that he contributed to and that there are sections of the report he wrote himself. He says that the final version of the report in evidence before the Commission is the final version that he contributed to and that he had seen the final version of the report and agreed with the contents of the report. 43
[194] Professor Lawson says that he approved the final version of the report. 44 He could not explain why his name and signature (which he agrees could have been added electronically) did not appear on the Investigation Report.
[195] I accept Professor Lawson’s evidence that he did contribute to the Investigation Report.
[196] However, a person receiving a report such as this, particularly given its potential consequences, has a right to know who the author/s of the report are. That it was an ‘oversight’ that Professor Lawson was not named on and did not sign the report as a co-author is not an adequate explanation.
[197] This criticism however is not enough to have the report discarded. I am satisfied that Professor Lawson was properly engaged in the investigation with Mr Lavell and that he co-authored the report and I accept his evidence under oath that he supports the report. That the writing of a report such as this might be divided up between the investigators is not amiss.
[198] I find that Professor Lawson was properly engaged in the investigation and completion of the investigation report.
Conclusion with respect to the investigation
[199] In summary, whilst I am satisfied that the complaint was properly received and put to Professor Frijters, I am not satisfied that the commissioning of the investigation nor the investigation itself was carried out in accordance with the requirements of the research misconduct procedures or the misconduct/serious misconduct procedures of the 2010 Agreement. I am however satisfied that those who did carry out the investigation were both engaged in writing the Investigation Report and both signed off on it although this was not indicated in the Investigation Report itself.
[200] The 2010 Agreement and the research misconduct procedures have set out clearly how an investigation is to come about and how it is to be conducted. That the process and requirement may appear inconvenient or even if they are not fully fit for purpose in the particular circumstances does not give the University the right to alter those procedures. The procedures provide staff members with understanding and confidence in what is to take place. To vary from them so markedly is to undermine the importance of the 2010 Agreement entered into by the University freely with its employees. This is not something to be lightly put aside.
ALLEGATION OF MISCONDCUT/SERIOUS MISCONDCUT
[201] The Investigation Report was completed on 10 October 2013. It was just prior to or around this time (apparently) that it was determined that Professor Watson should become the supervisor of Professor Frijters, though seemingly only in relation the misconduct matters. It remains unclear who made this decision and the basis for it. I also note that Professor Frijters was not advised of this change in supervisor at this time.
[367] Professor Wright’s conclusion was that she was satisfied that the allegations were made out and constituted misconduct. With respect to the procedural issues Professor Wright said in the report of 26 March 2014:
To the extent that Professor Frijters asserts procedural deficiencies, each of these asserted deficiencies preceded my involvement in the matter, and I do not believe I am in a position to make a finding one way or another in relation to these matters, which appear to involve legal and factual issues which have not been referred to me for decision.
I have referred these matters to the Vice Chancellor…I have confined my consideration to the substantive matters referred to me…
[368] I am satisfied that Professor Wright did consider the procedural issues. Her report to this extent is clear. She determined that she was not in a position to make findings one way or another on those matters. As a result she referred them, separately, to the Vice Chancellor.
[369] Procedural deficiencies can render an outcome a nonsense or unfair or unreliable such that it should no longer stand. Were it not otherwise then the ends would justify the means and deficiencies in process would be given no weight in deciding if the result was sustainable under scrutiny.
[370] The separation of the allegations and related findings from the procedural deficiencies means that a decision was not made in respect of all of the circumstances leading to that point in time. It is not unusual that, where a final decision maker comes late to a lengthy process, the procedural issues will have pre-dated their involvement, but this is no reason not to deal with those deficiencies. The final decision cannot be made devoid of context.
[371] In this respect, it would have been fairer to have a report prepared on the procedural deficiencies and this be taken into account in reaching a final decision. This had to be done at some point in the process but appears to have been left to the side.
[372] This is, in my opinion, a major procedural flaw and one which severely effects whether or not the process was carried out in accordance with the requirements of the 2010 Agreement. It raises legitimate questions as to the final conclusion reached by Professor Wright.
The appointments of Professor Watson and Professor Derrington as supervisor did not comply with clause 63.2
[373] I have dealt with this matter above and do not repeat it here.
CONCLUSION
[374] I am satisfied that there were substantial flaws and a lack of procedural fairness in the process applied to Professor Frijters with respect to dealing with a complaint about the research.
[375] The specific findings are outlined in this decision and are not repeated in full here suffice it to say that there were processes in relation to the appointment of his supervisor and the conduct of the investigation that were not in accordance with the provisions of the 2010 Agreement or the research misconduct procedures.
[376] There were also matters that adversely impacted on the procedural fairness afforded to Professor Frijters.
[377] Finally there was a failure, in reaching a decision as to the findings and penalty, to take into account whether the procedures had been properly applied from early 2013 when the matter first came to the attention of the University.
[378] I am satisfied that the failures in the process, and hence the failure to apply the provisions of the 2010 Agreement properly are such and extend so far back that the entire process, including outcomes, is not reliable. There is no point in the process where it is possible to say that everything before that point in time was reasonable. The process was infected by error from so early on that the fairest thing would be to commence the process from the beginning again.
[379] It is not for the Commission to indicate the fairness or otherwise of Professor Frijters being put through the process again. That was always a likely outcome of the instigation of these proceedings.
COMMISSIONER
Appearances:
C Hertigan of Counsel for the applicant.
D Williams and K Pennicott for the respondent.
Hearing details:
2016.
Brisbane:
February 8, 9, 10.
March 30.
Appendix A
39. MISCONDUCT/SERIOUS MISCONDUCT
39.1 Procedural and Other matters
For the purposes of this Clause:
(a) “Misconduct” is conduct which is not serious misconduct but is nonetheless dereliction of duty or conduct which is unsatisfactory and which constitutes an impediment to the carrying out of the staff member’s duties or to other staff carrying out their duties.
(b) “Serious Misconduct” is a serious dereliction of the duties required of a staff member or wilful or deliberate behaviour which demonstrates that the staff member is not willing or is unable to carry out his or her duties or which constitutes a serious impediment to the carrying out of a staff member’s duties or to a staff member’s colleagues carrying out their duties. Serious misconduct can be represented by a pattern of behaviour or a single occurrence.
(c) A staff member who has their employment terminated due to serious misconduct is not entitled to notice of termination of employment.
(d) The relevant “Senior Executive” for:
(i) TESOL Language Teacher Staff – is the Deputy Vice-Chancellor (International) or another officer nominated by the University;
(ii) Professional Staff – is the Executive Director (Operations) or another officer nominated by the University;
(iii) Academic Staff – is the Pro-Vice-Chancellor or another officer nominated by the University.
(a) When dealing with misconduct and / or serious misconduct a decision-maker must decide, to the reasonable satisfaction of the decision-maker, whether the staff member has committed an act or acts of misconduct and / or serious misconduct.
(b) If at any time during the operation of these procedures the staff member offers to resign with immediate effect, the resignation shall forthwith be accepted by the relevant Senior Executive and the proceedings shall cease immediately subject to any legislative reporting requirements.
39.2 Commencement of process:
(a) The staff member must be provided with a copy of this clause and the relevant guidelines and informed at each stage of the formal nature of the process and their entitlement to be represented in accordance with this Agreement.
(b) Where a supervisor receives a complaint or complaints against a staff member or otherwise forms the view that a staff member’s behaviour could constitute misconduct (which may include research misconduct), or serious misconduct, the supervisor may conduct or commission an investigation. The investigation will be conducted under the guidance of the Director Human Resources.
(c) The staff member may request that the investigation not be undertaken by the supervisor but by an independent third party appointed by Director of Human Resources.
(d) The supervisor must inform the staff member and the Director Human Resources in writing of the nature of the allegation and that an investigation is to occur. The staff member is under no obligation to respond but may do so if they choose.
(e) If, after an investigation which would include an interview with the staff member, a supervisor continues to hold the view that misconduct or serious misconduct may have occurred, the staff member must be provided with a written Notice of Allegation and a request to respond to the notice within ten (10) working days of the date of the Notice. The Notice must be in sufficient detail to enable the staff member to understand the precise nature of the allegations, and to properly consider and respond to them.
(f) The supervisor in consultation with the Director Human Resources, taking full and due account of the staff member’s response, must either discontinue the proceeding or report to the relevant Senior Executive that they consider that the behaviour may constitute misconduct or serious misconduct. If the supervisor decides to discontinue the proceeding documentation relating to the proceedings will be destroyed as far as is permitted by the relevant laws at the time.
39.3 Action by relevant Senior Executive upon referral
(a) Upon referral of behaviour that may constitute misconduct or serious misconduct the relevant Senior Executive must:
(i) consider all the information gathered in the initial investigation, including the staff member’s response and any other relevant material.
(ii) provide the staff member with the opportunity in writing to answer the allegations and to challenge evidence, irrespective of whether or not the staff member has previously answered the allegations in full or in part.
(iii) allow the staff member to be assisted by the relevant union or other representative if he/she so chooses.
(b) Within ten (10) working days of receiving the report from the supervisor, the relevant Senior Executive must form a view as to whether:
(i) the allegation has been substantiated and, if so, determine the appropriate disciplinary action; or
(ii) there is no serious misconduct or misconduct for the purposes of this Agreement and that no further action is taken.
(c) The staff member will be informed in writing of the determination made by the relevant Senior Executive.
(d) The relevant Senior Executive will consider any response provided by the staff member prior to making a final decision on whether termination of employment is appropriate.
(e) Should the staff member deny the allegation, the decision-maker must determine whether the evidence establishes that the misconduct and / or serious misconduct occurred. In misconduct and / or serious misconduct proceedings, the standard of proof is whether the decision-maker, after evaluating the evidence presented, is reasonably satisfied taking into account all the circumstances that the case against a staff member has been proven. Using this standard, it is sufficient if a fact is proved to the reasonable satisfaction of the decision maker evaluating the evidence, and taking account of the serious nature of a finding of misconduct and / or serious misconduct.
39.4 Disciplinary Action – Misconduct/Serious Misconduct
(a) The disciplinary action that may be applied for misconduct or serious misconduct include one, or any combination, of the following:
(i) formal censure or counselling;
(ii) training or retraining;
(iii) redeployment to another position with demotion by one classification level;
(iv) redeployment to another position without demotion or loss of salary;
(v) demotion by one classification level;
(vi) withholding of an increment for one year;
(vii) termination of employment provided that termination can only occur on the grounds of serious misconduct.
39.5 Suspension at the time of the notice of allegations
(a) At the time of the Notice of Allegation being issued, the relevant Senior Executive may suspend the employee with or without pay:
(i) if they form the view that prima facie allegations amount to misconduct or serious misconduct; or
(ii) if it is in the interests of ensuring that procedural fairness is afforded to the staff member, or
(iii) if it is in the interests of ensuring the safety of the staff member and/or co- workers or other staff, and/or in the interests of protecting University property and/or assets.
(b) During any period of suspension the staff member may be excluded from the University provided that he or she shall be permitted reasonable access to the University for the preparation of his or her case and to collect personal property, except where there are concerns about safety to persons or property.
(c) Where a staff member is suspended without pay:
(i) if suspension without pay occurs at a time when the staff member is on paid leave of absence, the staff member shall continue to receive salary for the period of leave of absence;
(ii) the staff member may engage in paid employment or take recreation leave or long service leave for the duration of a suspension without pay;
(iii) the relevant Senior Executive may at any time direct that salary be paid on the grounds of hardship;
(iv) if the conduct is later determined not to be misconduct or serious misconduct, the staff member will be reimbursed for the period of suspension without pay.
39.6 Committee of review
(a) If the staff member does not accept the view and proposed penalty, the relevant Senior Executive will refer the matter to a Committee of Review, which will meet to deal with the matter as soon as is practicable. The Committee of Review will be constituted and operate according to clause 39.7 and will report to the relevant Senior Executive on:
(i) whether it is satisfied that each of the facts or matters alleged has been proven;
(ii) whether the facts as proven constitute misconduct or serious misconduct on the part of the staff member; and
(iii) its recommendation as to whether the Senior Executive should exercise any of the powers, including imposition of penalties, together with reasons for its findings.
(b) A Committee member or members may make a dissenting Report.
(c) The Committee must report the results of the review and any recommendations to the relevant Senior Executive within 5 working days of their final meeting.
(d) Within 5 working days of receiving the Committee’s report, and any dissenting Report(s)the relevant Senior Executive shall decide:
(i) that no further action should be taken in which case he/she will advise the staff member and by agreement with the staff member publish the decision in an appropriate manner; or
(ii) that the penalty recommended by the Committee or relevant Senior Executive should be implemented; or
(iii) to impose another penalty from those listed in clause 39.4(a).
(e) The relevant Senior Executive will inform the member of staff, in writing, of the decision which is final.
39.7 Procedures for the Committee of Review
(a) A Committee of Review shall consist of:
(i) A Chair of the Committee appointed by the relevant Senior Executive agreed between the relevant Senior Executive and the members of the relevant Staff Consultative Committee other than those representing management; and
(ii) A staff member nominated by the relevant Senior Executive; and
(iii) A staff member nominated by the members of the relevant Staff Consultative Committee other than those representing management.
(b) The staff member may be assisted by a relevant Union representative or another representative if he/she so chooses and the University shall be represented by a staff member appointed by the relevant Senior Executive provided that neither of these persons is a practising barrister or solicitor.
(c) The Committee of Review shall:
(i) Determine its own procedures, which must be consistent with this clause, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the consideration of the matter before it permits;
(ii) Complete its deliberations and make its report within 20 working days except where a longer period is recommended or agreed by the chairperson;
(iii) Provide the staff member an opportunity to answer the allegations, irrespective of whether or not the staff member has previously answered the allegations in full or in part. The Committee shall consider any representations made either orally or in writing by the staff member, who may make the representations in person or through a colleague who is a member of the staff of the University or an officer of the Union. The Senior Executive may subsequently require the supervisor to respond to the matters raised by the staff member.
(iv) Hold proceedings in camera provided that the staff member and their representative will be permitted to be present at all hearings of evidence (but not during the Committee’s own deliberations)
(v) Treat the proceedings, report and all matters relating thereto as confidential;
(vi) Ensure the staff member and University management and their representatives have the right to ask questions of interviewees, have access to all records of evidence, make submissions and to present and challenge evidence;
(vii) Keep an audio recording of the proceedings (but not of the Committee’s own deliberations) and ensure this is available to the parties.
Appendix B
6. Procedure for Managing Allegations of Research Misconduct
6.1 The procedure for dealing with allegations of research misconduct against staff, visiting fellows, adjuncts and academic title holders of the University who conduct research including SOTL at or on behalf of the University, is outlined in Flowchart 1.
6.2 An allegation of suspected research misconduct against staff, visiting fellows, adjuncts and academic title holders of the University who conduct research including SOTL at or on behalf of the University, whether or not it has occurred within the University, is to be made as soon as practicable to the DP and the supervisor of the person/s against whom the allegation is made. The allegation must be made in writing. The Director, Human Resources should be informed upon receipt of any allegation.
6.3 The complainant should provide all available information relevant to the allegation in their correspondence. Where appropriate, the DP may seek advice from the chair of the relevant ethics committee regarding the validity of the allegation.
6.4 Depending on the nature of the disclosure, the complainant may be offered protection under PPL 1.60.03a Public Interest Disclosure.
6.5 Upon receipt of the allegation of research misconduct, the supervisor must inform the respondent and the Director, Human Resources that an investigation is to occur in accordance with the Code and the EA. A copy of clause 39 of the EA and relevant guidelines will be included with the correspondence to the respondent.
6.6 The DP and supervisor will conduct preliminary investigation to establish whether a prima facie case of research misconduct exists. The preliminary investigation will include an interview with the respondent.
6.7 If, in the opinion of the DP and supervisor, there is prima facie case of research misconduct, the DP must notify the CEO, Director Research Strategy & Management, and Director, Human Resources. The CEO may then commission an Internal or External Inquiry to further investigate the allegations.
6.8 The Inquiry provides a written report of the findings of fact to the CEO, supervisor, and Director, Human Resources. The CEO and supervisor must consider the findings in consultation with the Director, Human Resources and determine if misconduct/serious misconduct proceedings contained in section 39.2 (e) of the EA should continue.
6.9 At the conclusion of the proceedings, the Relevant Senior Executive must inform the supervisor, CEO and Director Research Strategy & Management, of the outcome.
6.10 Subject to the requirements of privacy legislation, if a case for consideration of research misconduct is found to exist, advice of this must be given to the secretary of any funding agency directly supporting the person involved, in accordance with the notification rules of the agency.
1 The Designated Person in relation to research misconduct is defined as the Pro-Vice Chancellor (Research & International).In this respect the DP is responsible for reviewing any allegation with respect to the ethical conduct of research at the University (exhibit R12, paragraph 13).
2 Exhibit A1, annexure PF-5.
3 Exhibit A1, annexure PF-7.
4 Exhibit A1, annexure PF-8
5 Exhibit A1, annexure PF-9.
6 Exhibit A1, annexure PF-11.
7 Exhibit A1, paragraph 70.
8 Exhibit A1, annexure PF-13.
9 Exhibit R14, paragraph 16.
10 Exhibit A1, annexure PF-17 (see paragraph 87 of Exhibit A1).
11 Exhibit A1, annexure PF-19.
12 Exhibit A1, annexure PF-21.
13 Exhibit R10, annexure AM-2.
14 Exhibit A1, annexure PF-37.
15 Exhibit A1, annexure PF-43.
16 Exhibit A1, annexure PF-46.
17 Exhibit A1, annexure PF-47.
18 (2004) AIRC, PR952743.
19 [2013] FWC 5617.
20 [2012] FWA 162.
21 [2014] FWC 7019.
22 The savings clause in the 2014 Agreement requires that a matter be commenced prior to the approval of the 2014 Agreement. An agreement approved by the Commission does not commence to operate until 7 days after the approval.
23 Exhibit R11, annexure FM-7.
24 Ibid.
25 Exhibit A1, annexure PF-14.
26 Exhibit R6, annexure JB-14.
27 Exhibit R6, annexure JB-16.
28 Transcript PN934-6.
29 Exhibit A1, annexure PF-26.
30 Exhibit A1, annexure PF-27.
31 Exhibit A1, annexure PF-36.
32 Exhibit A1, annexure PF-37.
33 Exhibit A1, annexure PF-39.
34 Exhibit A1, annexure PF-40.
35 Ex A1, annexure PF-5.
36 Exhibit R11, annexure FM-5.
37 Transcript PN856-60.
38 Exhibit R13, annexure DL-6, paragraph 3.3.
39 Transcript PN1629.
40 Transcript PN1637.
41 Transcript PN1639.
42 Exhibit R12, paragraph 42.
43 Transcript PN1753.
44 Transcript PN1757.
45 Exhibit R14, paragraphs 10-11.
46 Exhibit A1, annexure PF-37.
47 Exhibit A1, annexure PF-40.
48 Exhibit A1, annexure PF-46.
49 Exhibit A1, annexure PF-42.
50 Exhibit A1, annexure PF-46.
51 Exhibit R15, annexure AM-2.
52 Exhibit R15, annexure AM-3.
53 The investigation was commissioned by Professor Terry on 26 April 2013 (see paragraph 3.3 of the Investigation report – exhibit R13, annexure DL-6) but the notice of investigation was not delivered to Prof Frijters until 7 May 2013 (exhibit R13, annexure DL-2).
54 Exhibit R14, paragraph 8.
55 Exhibit R13, paragraph 31.
56 Exhibit R6, paragraphs 29-31.
57 Exhibit A1, annexure FM-7.
58 Transcript PN1700.
59 Exhibit A1, annexure PF9.
60 Exhibit R13, annexure DL-4, attachment 3, paragraph 28.
61 Exhibit R13, annexure DL-4, attachment 3,paragraph 338 and 340.
62 Exhibit R13, annexure DL-4, attachment 3, paragraph 342.
63 Exhibit R13, annexure DL-4, attachment 3, paragraph 362 and 364.
64 Exhibit R13, annexure DL-6, section 4.1, page 5 of 27.
65 See transcript PN558-61 and exhibit R13, annexure DL-4, paragraph 28.
66 Transcript PN2064.
67 Transcript PN2584-5.
68 Exhibit R12, annexure AL-1.
69 Exhibit R7, annexure SD-2.
70 Exhibit R6, annexure JB-20.
71 Exhibit A1, annexure PF-9.
72 Exhibit R7, annexure SD-2.
73 Exhibit A1, annexure PF-47.
74 Clause 39.2(e).
75 Exhibit A1, annexure PF-49.
76 Exhibit R14, paragraph 7.
77 Exhibit R13, paragraph 24.
78 Exhibit A1, annexure PF-7.
79 Exhibit R10, paragraph 27.
80 Gould v Isis Club Inc 2015 QSC 253 at[72].
81 2010 Agreement, clause 39.3(a)(i).
82 Exhibit R8, paragraph 22.
83 See Exhibit A1, annexure PF-56.
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