FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALBY v MACQUARIE UNIVERSITY & ANOR | [2016] FCCA 3 |
| Catchwords: CONTRACT – Alleged breach of employment contract. CONSUMER PROTECTION – Alleged misrepresentation in relation to prospective employment. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 340, 341, 342, 343, 345, 351, 359, 360, 361, 372, 374 Trade Practices Act 1974 (Cth), ss.51A, 52, 53, 53B, 82 |
| Applicant: | MURRY LEWIS SALBY |
| First Respondent: | MACQUARIE UNIVERSITY |
| Second Respondent: | PAUL BEGGS |
| File Number: | SYG 1677 of 2013 |
| Judgment of: | Judge Driver |
| Hearing dates: | 18-22 May 2015 |
| Date of Last Submission: | 1 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2016 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr Y Shariff |
| Solicitors for the Respondents: | Johnson, Winter & Slattery |
ORDERS
The application filed on 23 July 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1677 of 2013
| MURRY SALBY |
Applicant
And
| MACQUARIE UNIVERSITY |
First Respondent
| PAUL BEGGS |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Dr Salby) brings these proceedings against Macquarie University (University) under the Trade Practices Act1974 (Cth) (Trade Practices Act) as it was at the relevant time, and the Fair Work Act 2009 (Cth) (Fair Work Act). The application arises from the University’s decision to terminate Dr Salby’s employment. Dr Salby had been appointed as a Professor of climate risk in what was then known as the Division of Environment and Life Sciences (Division) within the Faculty of Science (Faculty). The second respondent to these proceedings, Dr Beggs, was the acting Head of the Department of Environment and Geography (Department) at the time Dr Salby’s employment was terminated. The decision to terminate Dr Salby’s employment was ultimately taken by the Vice-Chancellor, Dr Dowton.
Dr Salby brings a number of claims to this Court. Broadly, Dr Salby claims that the University engaged in misleading and deceptive conduct in relation to various aspects of his employment such as representing to Dr Salby that his employment would be covered by an Australian Workplace Agreement (AWA); obstructing Dr Salby from recruiting and training research students; diverting Dr Salby from principal duties; breaching dispute resolution processes; demoting his role; failing to facilitate access to a Startup Fund; terminating his position notwithstanding proceedings before the Fair Work Commission; and failing to comply with an implied term of mutual trust and confidence.
Significantly, Dr Salby also brings an adverse action claim in which Dr Salby states that his termination was unlawful and taken because of his various complaints in the workplace and his political opinion in the workplace.
Dr Salby has also made a breach of contract claim.
Dr Salby was recruited from the University of Colorado in the United States of America in February 2008 as part of the University’s “Centre of Research Excellence” (CORE) recruitment strategy, which was a new strategy established by the then Vice-Chancellor, Dr Schwartz. The focus of the strategy was to promote the University as an international leader in research excellence. Dr Salby’s employment was intended to be governed by an AWA. However, a signed AWA was never registered by the University. The University claims it did not receive it from Dr Salby. Dr Salby alleges that he did sign and deliver an AWA, and it was ultimately found in the University’s records.
Dr Salby’s positon was advertised as carrying duties involving contribution to the supervision of post-graduate students, maintenance of an active research program; and contribution to teaching, administrative and outreach activities of relevance to the Department. On his appointment Dr Salby was also offered a Startup Fund of around $300,000 to carry out his research.
In March 2008 Dr Salby attempted to implement his Startup Fund by hiring a research assistant. Dr Salby was advised that this was not possible as a hiring freeze was in place throughout the University. Dr Salby was instead advised to teach undergraduate classes and supervise postgraduate students.
Also that year, with the Bureau of Meteorology (BOM) and the CSIRO, Dr Salby developed a national research and research training program. This program was to be run from the University and include other staff in its climate program. Dr Salby was given financial support from BOM and CSIRO who were to provide the venue and computing resources for a Summer Colloquium on Climate Research Training. Dr Salby also received funding from the University’s Research Office to develop research training.
Dr Salby developed recruitment material which was approved by the University’s Postgraduate and Marketing Offices. These materials were printed as a recruitment flyer and described the summer colloquium. This study program was to involve six postgraduate students from the University and also students from other universities who had expressed interest.
In 2009 Dr Salby was informed by Dr Beggs that he would not be permitted to devote teaching hours to these training activities and instead would have to teach undergraduate classes. Dr Salby was directed by Dr Beggs that any postgraduate training would have to be done in his own personal time. The then Head of the Department Dr Hesse directed that the above mentioned distribution of the recruitment flyers be halted. Subsequently, the recruitment flyer was ordered to be destroyed by the then Head of Department, Dr Howitt. This left Dr Salby without qualified postgraduate students to be trained in and to perform research, which Dr Salby believed were principal duties of his CORE appointment.
Dr Salby then developed a website to recruit undergraduate students to be trained for research. However this was deactivated by the then Head of Department. The website was then re-written by others in the Department but was never re-activated.
Dr Salby also experienced delay and frustration at his attempts to submit a research proposal to the University after he had secured co-sponsorship from Commonwealth agencies. This proposal was rejected by the University. Dr Salby claims that due to the uncooperative behaviour of the University in not allowing him to implement his research objectives, his publication output suffered and he produced only two publications in the five years he was employed at the University, along with a book titled Physics of the Atmosphere and Climate.
Dr Salby aired his complaints about the lack of resources he was given in his 2008 and 2009 Professional Development Review (PDR) submissions which were submitted to Dr Salby’s then supervisor Professor Gore. Dr Salby’s PDR was passed to Dr Poulsen who recommended that Dr Salby’s salary be reduced by 25 per cent. At the same time Dr Beggs sent an email to the University’s Vice-Chancellor/Provost, Professor Sachs outlining the issues the Department was having with Dr Salby. Dr Salby then lodged a complaint with executive management Deputy Vice-Chancellor Piper outlining his concerns and stated that the summer colloquium had to be cancelled. He also stated that his Startup Fund had not been delivered and that the production of his book and the research efforts of his PhD student had been frustrated.
On 9 July 2010 Dr Salby wrote to the Vice-Chancellor outlining his complaints. It was then determined by the University that Dr Salby was to spend his Startup Fund in full by 31 December 2012. On 22 July 2010 the Vice-Chancellor replied to Dr Salby stating that the University had resolved the issue. However Dr Salby claims that only the Startup Fund was considered, not any of his other complaints.
On 9 November 2010 Dr Salby met with Dr Poulsen and a Human Resources manager, Andrea Lerche. This meeting left many of his complaints unresolved. In December 2010 Dr Salby lodged a complaint with the Director of Human Resources, Tim Sprague.
In early 2011, the first research assistant was hired. In April that year Dr Salby discovered that his AWA had not been lodged and therefore his position was regulated under an Enterprise Agreement made in 2011 (2011 EBA). Later in 2011 Dr Salby began proceedings in what was then known as Fair Work Australia (now the Fair Work Commission) against the University.
In August 2011 Dr Salby presented new research on atmospheric carbon dioxide at both a scientific conference and then at an invited presentation at the Sydney Institute. A few weeks later Dr Salby was notified that he would be excluded from teaching climate and would be diverted to non-climate units.
In 2012, due to the internal hiring freeze and the time limitation of his Startup Fund, Dr Salby attempted to hire assistance through an external contract. However, these efforts were not approved by the University. In that same year Dr Salby employed a solicitor, Ms Simone Farrar, who wrote to the University outlining Dr Salby’s complaints and requesting a meeting with the University on 21 November 2012. This meeting was held for a short time with Dr Poulsen but the issues were not resolved. On 27 November 2012, Ms Farrar wrote to the University’s General Counsel. The University responded that there was no value in a further meeting.
On 19 December 2012 Dr Salby submitted travel forms to Dr Poulsen so that he could attend the 2013 European Geosciences Union General Assembly in Vienna and to present lectures at various universities in Paris, Cambridge, Oslo, and Stockholm. Dr Poulsen was retiring at the end of that year and passed the forms on to Dr Beggs who would be taking over as Acting Head of the Department in January 2013. Dr Beggs did not receive these forms until 17 January 2013 as he was away during the Christmas/New Year period. The travel forms were rejected by Dr Beggs on 18 January 2013 on the basis that Dr Salby had not made arrangements to cover teaching while he was away. On 31 January 2013 Dr Beggs issued a workload letter to Dr Salby. On 20 February 2013 Dr Salby objected to Dr Beggs’ letter and what he saw as a reduction of his role in teaching climate science and being ordered to do “menial tasks” such as mark papers for junior staff. In response to Dr Salby’s objection, Dr Beggs lodged a complaint with the Dean Dr Baldock.
On 27 February 2013 Dr Salby failed to attend to teach the first lecture for the subject code named ENV216. On 28 February 2013 the University suspended Dr Salby’s employment without salary on serious misconduct charges.
On 11 March 2013 Ms Farrar sent a letter to the University notifying them of the disputed nature of the issues. On 15 March 2013 Dr Beggs wrote to Dr Salby instructing him to cancel all travel arrangements made using his University corporate credit card and to provide evidence of such cancellation to Dr Beggs by 19 March 2013. Dr Salby did not follow this direction and continued to use the University credit card for his travel arrangements.
In April 2013 Dr Salby departed for the conferences in Europe. On 2 April 2013 Ms Farrar wrote to the University stating that a complete response to the University’s allegations would be dealt with when Dr Salby returned from overseas.
In accordance with the 2011 EBA the University held a Misconduct Investigation Committee (MIC). This was held in circumstances where an academic staff member denies any allegations of misconduct or serious misconduct in part or in full. On the basis of Dr Salby’s solicitor’s rejection of the teaching allegation contained in her letter of 22 March 2013 and her subsequent email on 2 April 2013, the University decided to proceed on the basis that Dr Salby had made a partial denial of the teaching allegation, rather than a failure to submit a written response, and referred the teaching allegation to the MIC.
On 11 April 2013 the University wrote to Dr Salby to advise him that the MIC would convene on 24 April 2013. The University also advised Dr Salby to attend the MIC on that date, in accordance with the 2011 EBA. Dr Salby did not attend the MIC as he was overseas.
On 24 April 2013 the MIC convened to consider the teaching allegation. The MIC made findings in respect to teaching, that Dr Salby had been given adequate notice of the teaching allegation and had had ample opportunity to respond. The MIC also determined that the 2011 EBA applied to Dr Salby’s employment and that the teaching direction issued by Dr Baldock to undertake teaching as part of Dr Salby’s duties was a lawful and reasonable direction. Finally, the MIC determined that Dr Salby had failed to comply with the teaching direction given to him as part of his duties.
The MIC deferred consideration of the credit card allegation to allow Dr Salby to prepare a response. The University wrote to Dr Salby to advise that the MIC would reconvene on 9 May 2013 to consider the credit card allegations and that Dr Salby would remain on suspension without pay, pending the outcome of the second MIC investigation. The University invited Dr Salby to attend on 9 May 2013. By 9 May 2013 Dr Salby had returned to Australia and sent a letter to the MIC Chairperson on 7 May 2013. However Dr Salby did not attend the second MIC hearing.
On 9 May 2013 the MIC reconvened and made findings that Dr Salby had been given adequate notice of the credit card allegations and had the opportunity to respond. The MIC also found that Dr Salby had breached the University’s travel policies when planning his travel overseas.
On 14 May 2013 the Deputy Vice-Chancellor/Provost, Professor Sachs was provided with the MIC’s findings. On 20 May 2013 Professor Sachs wrote to Dr Salby to advise that she had determined that his conduct amounted to serious misconduct and that the University proposed to take disciplinary action by terminating his employment. Professor Sachs invited Dr Salby to provide any further information to her by 27 May 2013. No response to this letter was provided by Dr Salby.
On 28 May 2013 the University terminated Dr Salby’s employment.
Pleadings and evidence
Dr Salby relies upon his application and supporting Form 2 filed on 23 July 2013. Points of Claim were filed on 22 November 2013. Further and Better Particulars were also filed on 20 January 2014. Dr Salby filed a reply on 19 December 2014. In addition I received two affidavits with annexures made by Dr Salby on 22 May and 18 December 2014, to which were also exhibited two substantial volumes of documents, including a short video presentation. He was cross-examined on his affidavits. Dr Salby also relied on an affidavit by Mr Thomas Parker made on 3 February 2015. Mr Parker was cross-examined on his affidavit.
The University relies upon its response filed on 11 September 2013, its points of defence filed on 31 March 2014 and the following evidence:
a)the affidavit of Nicholas John Crowley made on 18 July 2014;
b)the affidavit of Judith Margaret Sachs made on 18 July 2014;
c)the affidavit of Paul John Beggs made on 11 August 2014;
d)the affidavit of Stephen Bruce Dowton made on 22 August 2014;
e)the affidavit of Michael Frank Poulsen made on 22 August 2014;
f)the affidavit of Timothy James Sprague made on 17 July 2014; and
g)the affidavit of Andrea Suzanne Lerche made on 27 August 2014.
With the exception of Ms Lerche, all witnesses were required for cross-examination.
I also have before me the following exhibits tendered during the trial:
A1 Bundle of documents including a textbook by M Salby titled Physics of the Atmosphere and Climate published by Cambridge University Press in 2012; and
R1Court Documents filed in the US District Court for the District of Colorado.
Submissions
Both parties made written and oral submissions. Dr Salby’s submissions are based on seven claims outlined below.
Claim 1 – breaches and contraventions relating to the AWA
This claim alleges a contravention of ss.345 and 359 of the Fair Work Act and ss.342(1) and 401 of the Workplace Relations Act1996 (Cth) (Workplace Relations Act) and breach of Dr Salby’s employment contract.
Dr Salby essentially claims that the University misrepresented his employment as having regulatory oversight as governed by the AWA and the University’s refusal to abide by the dispute resolution procedures breached his contract of employment and reduced him to the status of an independent contractor. Had this regulatory oversight not been circumvented Dr Salby claims that his issues could have been resolved by the Fair Work Commission[1].
[1] See [74] of Points of Claim filed on 22 November 2013
The University states in relation to this claim that the reason the AWA was never lodged was because it never received a signed copy of the AWA from Dr Salby. In 2011 when the University discovered that the AWA had not been lodged, it was not possible for the University to sign the Unregistered AWA and then to lodge it as the enabling legislative provisions had been repealed. As a result, the University claims that the AWA was not approved within the meaning of s.342(1) of the Workplace Relations Act and therefore there was no contravention of that section.
The University further states that its application of the 2009 and 2011 EBAs to Dr Salby’s employment was correct and that these EBAs conferred upon Dr Salby equal or more beneficial terms in relation to workload allocation, dispute resolution and misconduct investigations which were largely similar to or not substantially different from the Unregistered AWA.
In relation to s.401(1) of the Workplace Relations Act the University states that Dr Salby’s claim appears to be that it made misleading statements to him that his employment would be covered by an AWA and that caused him to enter into an AWA. The University argues that it had every intention of entering into an AWA with Dr Salby. While the intention was not fulfilled, this was not the result of any false representation on the University’s part.
The University states that Dr Salby’s claims in relation to s.345 and s.359 of the Fair Work Act are unclear and misconceived and should be dismissed.
In relation to breach of contract the University states that, to the extent that Dr Salby contends that the University breached the Unregistered AWA in respect of its dispute resolution procedures, the evidence establishes that at all material times, the University did consider Dr Salby’s complaints but in the most part rejected these complaints. The University further states that just because these complaints were not resolved in Dr Salby’s favour that does not mean they were not considered by the University. The University argues that it participated in four conciliations at the Fair Work Commission and the fact that Dr Salby did not receive the outcome he wanted does not mean that the University did not participate in the relevant processes or that the University had “circumvented” or refused regulatory oversight.
The University also states that it never denied Dr Salby was a CORE appointee but that Dr Salby’s attempts to construe his position as mostly a research based role is incorrect and the fact is that Dr Salby knew he had to contribute to the teaching and administration of the University and admitted he had been given no guarantee of a reduced teaching workload[2]. The University denies prohibiting Dr Salby from teaching research material as part of his duties or teaching the subject of his appointment. The University further denies that it reduced his role to “menial support”. The University states that Dr Salby did not wish to undertake certain duties which all academics were required to undertake and in which respect he was treated no differently to any other academic in the Department.
[2] Transcript (T) - 18.5.15, page 30 at line 40; page 32 at lines 15-20; page 34 at line 5; page 118 at line 20
The University also states that, contrary to Dr Salby’s submissions, it did not obstruct Dr Salby’s performance of research, recruitment of students, development of strategic alliances, and communications of his research or ignore his repeated complaints about them. In relation to work load allocations and salary loading issues the University states that it made attempts to meet with Dr Salby and discuss these issues, however these attempts failed.
Claim 2 – Misleading and deceptive conduct
Dr Salby claims that the University breached s.52 and s.53B of the Trade Practices Act by engaging in misleading and deceptive conduct in representing to Dr Salby that his employment would be covered by an AWA.
The University argues that Dr Salby’s claim should be dismissed as he faces a number of insurmountable legal issues. In relation to s.52 of the Trade Practices Act, Dr Salby must first prove that these representations occurred “in” trade or commerce[3]. Secondly, Dr Salby must identify with precision the relevant representations that were made to him, who made them or how they were made and why they are misleading. The University argues that Dr Salby has failed to articulate his case with the precision required. Thirdly, the University argues that to the extent that Dr Salby relies on the representation that his employment would be governed by an AWA, the University is not liable if it had reasonable grounds for making its statements at the time and Dr Salby must prove why these statements were misleading or deceptive.
[3] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
The University states that the purpose of s.53B of the Trade Practices Act was to prohibit the publication of advertisements or the making of pre-employment representations which are likely to mislead prospective employees[4]. The University argues that in the present case there was nothing misleading about the University’s statements that it intended to enter into an AWA with Dr Salby and that his employment would be subject to an AWA. That this representation did not come to pass does not render the University’s conduct misleading or deceptive.
The University further contends that in accordance with s.82 of the Trade Practices Act an essential condition to recovering damages is proof of causation and reliance. Section 52 of the Trade Practices Act required that the loss and damage be caused “by” the contravening conduct[5]. The University states that in this case, when Dr Salby was negotiating his terms, the evidence establishes that his then employer the University of Colorado, had taken steps to preclude Dr Salby from performing any research work. The University states that Dr Salby’s career at the University of Colorado was essentially at an end and this was a reason why he took up employment with the University. He also wanted to move to Australia for the benefit of his son and not by reason of any inducement by or reliance upon the representations made by the University in relation to the AWA.
[5] see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525
The University also states that Dr Salby has failed to demonstrate that he suffered any damage as a result of the alleged misleading and deceptive conduct. The University states that Dr Salby has failed to present evidence of what prejudice or disadvantage he has suffered or what opportunity he lost as a consequence of allegedly relying upon the University’s representations about the AWA. The University contends that Dr Salby has not identified what would have been different had his employment been covered by the AWA.
Claim 3 – the Startup Fund
Dr Salby claims that the University withheld the Startup Fund initially and when it was re-approved in 2010, the University continued a pattern of obstruction through procrastination, sequestration of resources, and preventing the recruitment of research students, which prevented him from properly functioning in his role. He also claims that the Startup Fund was instrumental in inducing him to take the position at the University. Dr Salby claims that the University has contravened s.401 of the Workplace Relations Act and ss.52 and 53 of the Trade Practices Act and also that the University’s conduct amounted to a breach of contract.
The University counters that it told Dr Salby he would receive a Startup Fund and this in fact occurred. The fact that the Startup Fund was re-approved did not automatically or retrospectively make the earlier statements made by the University untrue.
The University further states that the Startup Fund was not a contractual promise. It was not part of the Letter of Offer, the Terms Sheet, the AWA or any of the enterprise agreements, and the University states that this was conceded by Dr Salby under cross-examination[6]. The University states that the Startup Fund was made available to Dr Salby in an email from the University on 1 February 2008 and was not included in any contractual documentation. The University states that Dr Salby signed the Letter of Offer on 5 February 2008 at a time when he knew that the Startup Fund was not part of the terms of his employment.
[6] T-18.5.15, page 32 at lines 10-15; page 34 at line 20
The University states that Dr Salby had a sense of entitlement and a disdain for his colleagues and University administration. The University required Dr Salby to follow regulatory procedures in order for the University to trigger spending the Startup Funds on Dr Salby’s behalf. Despite the University attempting to inform Dr Salby of this, Dr Salby refused to follow the University’s procedures and protocols.
The University argues that even if Dr Salby was to establish that the Startup Fund was a stand alone contract, by definition such an agreement was for a fixed period of time and the notion that a Startup Fund would remain active for five years is entirely inconsistent with the meaning of the words “start up”.
The University denies that it delayed its delivery of resources. The University states that Dr Salby did have access to the Startup Fund and did use it. He had a balance of approximately $140,000 but knew that he was required to spend those funds by 31 December 2012. When this time limit was conveyed to him, Dr Salby did not object[7].
[7] T-18.5.15, page 80 at lines 25-45; page 81 at lines 5-10; Salby Reply, page 445
In relation to travel leave, the University states that Dr Salby required the approval of the University to be absent for a period of five weeks from the University during a teaching semester. This leave was not approved and it was unprecedented for a senior academic to take a period of five weeks of travel leave during a teaching semester.
Claim 4 – Repudiation of employment contract and contravention of the Trade Practices Act
This claim has several parts as explained below.
Count 1
Dr Salby claims that the University obstructed his essential duties from recruiting and training research students, re-establishment of a research program, developing alliances with government research centres and research communication to achieve national and international recognition. Dr Salby claims these obstructions varied fundamental duties of his position.
The University responds that this count is without substance. There was no contractual express term to the effect that Dr Salby had the right to recruit and train research students at his own discretion. In any event, the University did not obstruct Dr Salby from recruiting research students. The University states that the true position is that Dr Salby failed to comply with University policy when recruiting these students.
Count 2
Dr Salby claims that the University diverted him from his principal duties to unrelated service without the required discussion and without compliance with agreed objectives.
The University responds that full time staff were required to have a work load broken up as 40 per cent teaching, 40 per cent research and 20 per cent community engagement and/or University service. Dr Salby was never required to teach more than a 40 per cent teaching load and was allocated nominal exam marking duties in Semester 1 of 2013 in line with the Dean’s direction to Dr Beggs that all academics were to be given a full 40 per cent teaching load.
The University further asserts that Dr Salby’s teaching duties were not uncommon and were no different to the position that any other academic at the University has been and would be subject to. The University also states that no part of Dr Salby’s contract guaranteed him the availability of research focused teaching and gave him the luxury to be excused from undertaking marking duties.
Count 3
Dr Salby claims that the University repudiated its contract by breaching provisions relating to defining his objectives and evaluating his performance in accordance with the PDR process.
The University responds that there was no breach or repudiation on behalf of the University on any of the PDRs submitted by the University. The University states it made all reasonable attempts to co-operate with Dr Salby in relation to the PDR process but he failed to comply.
Count 4
Dr Salby claims that the University breached its contract by denying him the opportunity to have his dispute resolved before the Fair Work Commission.
The University responds that Dr Salby’s claim is both factually and legally incorrect. The University asserts that Dr Salby had no contractual right to a dispute resolution procedure under the Unregistered AWA. Nor were there any contractual rights under the dispute resolution process in the 2009 and 2011 EBAs. The University participated in the conciliation process held by Fair Work Australia, and the University’s refusal to resolve Dr Salby’s concerns on his terms did not amount to a repudiation of the alleged terms of contract.
Count 5
Dr Salby claims that the University breached his employment contract by suspending his salary loading.
The University asserts that Dr Salby has suffered no loss as he was given notice of Dr Poulsen’s recommendation and had an opportunity to address it. Had he taken up that opportunity and presented his response he may well have had his salary loading reinstated. In the circumstances, the University states that there is no breach and no loss.
Count 6
Dr Salby claims that he was essentially demoted from his position.
The University responds that Dr Salby wanted to only to be assigned teaching duties to which he agreed, and that there was nothing improper or unreasonable about the subjects allocated to him to be taught in 2012 and 2013 by Dr Poulsen and Dr Beggs.
Count 7
Dr Salby claims that the suspension of his employment amounted to a repudiation of his contract.
The University responds that this is without foundation and that the decision to suspend was made pursuant to an express power in the 2011 EBA. The Vice-Chancellor made that decision based upon his assessment that a failure to teach a course by a senior academic was a serious matter and warranted suspension without pay.
Count 8
Dr Salby claims that the University terminated his employment whilst the Fair Work Commission proceedings were pending.
The University responds that this count has no merit and that Dr Salby had no contractual right to have his employment contract maintained whilst proceedings were pending before the Fair Work Commission pursuant to s.372 of the Fair Work Act.
Claim 5 – adverse action
Dr Salby claims that the University has engaged in adverse action by contravening s.340(1) and s.342(1)(a)-(c) of the Fair Work Act in various ways. These contraventions include obstructing Dr Salby’s essential duties, including the performance of research; demoting Dr Salby’s role; summarily discontinuing his salary; conducting disciplinary proceedings without having the opportunity to be heard; cancelling Dr Salby’s research travel; subjecting Dr Salby to the misconduct investigation; terminating Dr Salby’s employment and terminating his employment in circumstances where proceedings were pending before the Fair Work Commission.
In accordance with its obligations regarding the reverse onus of proof under s.360 of the Fair Work Act, the University argues that all the relevant decision makers have given evidence in this case, including Dr Dowton, Professor Sachs, Dr Beggs and Dr Poulsen. All gave evidence that they did not make any decisions adverse to Dr Salby because of any workplace rights or political opinions. The University and its decision makers acted by reason of Dr Salby’s conduct and not because of any workplace right that he claimed to have been exercising. Therefore no causal connection can be established between the workplace rights and the adverse action.
Claim 6 – further adverse action and coercion
Dr Salby claims that the University contravened s.343(1)(a) of the Fair Work Act because he had certain benefits and rights which he has been prevented from exercising, such as his right to be meaningfully heard; his ability to engage in research communication which was prevented by the cancellation of his travel arrangements; and his right to interact with his PhD student without intervention.
The University rejects these claims and contends that Dr Salby points to no workplace right he had to interact with his PhD student. Thus there was no workplace right that was actionable in relation to an adverse action. The University further submits that Dr Salby’s claim regarding the cancellation of his travel arrangements is without substance.
Claim 7 – adverse action based on political opinion
Dr Salby claims that the University contravened s.351 of the Fair Work Act by engaging in certain conduct by reason of his “political opinion”. This conduct includes the University obstructing research communication by sequestering travel resources; demoting Dr Salby’s role; sequestering Dr Salby’s research facilities; reducing his role; interfering with his right to interact with his research student; and finally his termination. Dr Salby claims that these actions were taken due to his political opinion. He claims that this opinion is more than a scientific view, but amounts to a political view as to policy consequences.
The University states that a mere disciplinary or scientific difference of opinion is not itself a political opinion[8]. The University states that Dr Salby has neither established what his political opinion is, nor that of other persons who made decisions that he claims amounted to adverse action. The University states Dr Salby’s travel was declined because he did not have authorisation and that this had no relation to his political opinion. The University denies that it demoted Dr Salby’s role or that it did this due to his political opinion.
Consideration
General issues of importance
The University has made submissions on several questions of general importance to the outcome of this case. I agree with those submissions and deal with them below.
The status of the Unregistered AWA
A fundamental issue that arises between the parties is the status of the Unregistered AWA[9]. Dr Salby contends that this Unregistered AWA was an “instrument” for the purposes of ss.12 and 341(1) of the Fair Work Act and that it was “made under” the Workplace Relations Act[10].
[9][10] See Salby’s Outline of Opening Submissions (Salby’s submissions), [8]-[11]
Several of Dr Salby’s claims in these proceedings depend on the premise that the Unregistered AWA was applicable to his employment, that it gave rise to a workplace right, and that in failing to apply its terms the University allegedly afforded him the inferior terms of the relevant enterprise agreements, and also that it engaged in adverse action against him and/or repudiated his contract[11].
[11] Salby’s Submissions, [19]-[49]
These contentions need to be considered in their factual context.
In about May 2007, the University placed an advertisement to recruit up to six academic staff (of varying levels) to different areas of the University, including the Division of Environment and Life Sciences, (as the Department was then known), within the Faculty, as part of the University’s CORE recruitment strategy (Advertisement)[12].
[12] Affidavit of Nicholas John Crowley (Crowley), [4]
The Advertisement stated that the duties of the successful applicants would include:
a)contribution to the supervision of post-graduate students;
b)maintenance of an active research program; and
c)contribution to the teaching, administrative and outreach activities of the relevant department and/or division[13].
[13] Points of Defence, [7]
The University submits that successful CORE appointees were not automatically entitled to any special conditions of employment with the University and each appointee’s contribution to teaching (as opposed to research or other activities) was expressly stated in the Advertisement to be subject to negotiation between each appointee and the relevant Head of Department[14]. Dr Salby conceded that the Advertisement made no guarantee of any reduced teaching load[15].
[14] Points of Defence, [7]-[8]
[15] T-18.5.15, page 30 at line 40
Dr Salby applied for a position with the University in response to the Advertisement. In January 2008, Nicholas Crowley, the University’s Employee Relations Manager (Mr Crowley), engaged in email correspondence with Dr Salby regarding the proposed terms of his employment with the University[16].
[16] Crowley, [7], Annexure ‘NJC-1’ (pages 1–4)
On 18 January 2008, Mr Crowley emailed Dr Salby to advise that he would provide a letter of offer and proposed an AWA which would be the same as AWAs that had previously been offered to other senior academics within the University[17]. Later that afternoon, Mr Crowley sent an email to Dr Salby attaching a Letter of Offer, Terms Sheet and the proposed AWA (the Offer Documents) for Dr Salby’s consideration[18].
[17] Crowley, [9] and [10], Annexure ‘NJC-2’ (page 5)
[18] Crowley, [11], Annexure ‘NJC-3’ (pages 6-16)
Between 18 and 22 January 2008, Dr Salby engaged in email correspondence with Mr Crowley, Timothy Sprague, the University’s Human Resources Director and Charlotte Simon, Manager, Staffing and Workforce Planning within the University’s Human Resources Department, in relation to the provisions of the Offer Documents[19]. During this period, Dr Salby raised queries in relation to the 25 per cent salary loading (Salary Loading), annual leave loading and general salary increases, performance criteria, rental assistance, suspension and unsatisfactory performance and misconduct provisions. The University notes that no representations, queries or negotiations were made regarding any reduced teaching or administrative loads. Following resolution of Dr Salby’s queries in respect of the Offer Documents, the University sent Dr Salby a revised Letter of Offer, Terms Sheet and proposed AWA for his further consideration, on around 25 January 2008 (Revised Offer Documentation)[20].
[19] Crowley, [12], Annexure ‘NJC-4’ (pages 17-21)
[20] Crowley, [13], Annexure ‘NJC5’ (pages 22–28)
On 6 February 2008, Dr Salby sent an email in which he indicated that he accepted the University’s offer of employment and confirmed that he would provide signed copies of the Revised Offer Documentation upon his arrival in Australia[21].
[21] Crowley, [14], Annexure ‘NJC-6’ (pages 29–30)
Dr Salby purportedly signed the proposed AWA on 9 February 2008[22]. There is no evidence before the Court as to when Dr Salby provided a signed copy of the proposed AWA to the University. Dr Salby’s email dated 6 February 2008 stated that he would provide the signed copy of the AWA when he arrived in Australia. There is no evidence about whether this occurred and if so, when it occurred or to whom the signed AWA was provided by Dr Salby. Nor is there any evidence that Dr Salby provided a signed copy of the proposed AWA within the 14 days after signing within which it was required to be lodged under the Workplace Relations Act. All that is known is that a version of the AWA was signed by Dr Salby which was located in the records of the University during early 2011. The AWA was not signed by the University.
[22] Lerche, Annexure ‘ASL-7’ (page 51)
The University asserts, and I accept that, at the time Dr Salby accepted the University’s offer of employment in early 2008, there were only two people within the University with authority to lodge an AWA online: Mr Crowley and Pamela Nilon[23]. Whilst it appears that Dr Salby signed the proposed AWA on or around 9 February 2008, it was not subsequently approved or lodged by the University (the Unregistered AWA)[24].
[23] Crowley, [21]
[24] Points of Defence, [8]
On around 10 January 2011, Andrea Lerche, the Faculty’s Human Resources Manager (Ms Lerche) obtained a copy the Unregistered AWA referred to in Dr Salby’s letter to Mr Sprague dated 22 December 2010. It was then realised that the Unregistered AWA had not been registered. This is likely to have occurred because it is not known when Dr Salby provided a signed copy of the Unregistered AWA to the University. In any event, it appears that the Unregistered AWA was not signed by the University and therefore had not been registered[25]. By the time that this was discovered in 2011, it was no longer possible to register AWAs.
[25] Lerche, [20]-[21], Annexure ‘ASL-7’ (pages 20–51)
As a result, the Unregistered AWA did not have force and Dr Salby’s employment was governed by the Macquarie University Academic Staff Enterprise Agreement 2006-2009 (2009 EBA) and the subsequent 2011 EBA.
Accordingly, I find that Dr Salby’s employment contract was comprised of:
a)the Letter of Offer; and
b)the Terms Sheet.
I find further, that Dr Salby’s employment was governed by the 2009 EBA and more relevantly, the 2011 EBA for the reasons set out below.
The application of the 2011 EBA
During 2011, the University informed Dr Salby that, as the Unregistered AWA had not been registered, the 2011 EBA applied to his employment. That information was correct.
Clause 2.2 of the 2011 EBA provides that it is binding on the University and each Academic Staff Member[26]. Although the 2011 EBA made provision for an “Exempt Staff Member”, such an employee is defined as meaning an “Academic Staff Member who is being paid a Base Salary (excluding loadings) in excess of 115 per cent of the salary of an Academic Level E, Step 2 as specified in Schedule 1” (see definition in clause 2.1)[27]. Schedule 1 prescribes that the rate of pay for an Academic Staff Member at Level E, Step 2 was $149,881 from 24 March 2011[28]. Dr Salby’s Base Salary (excluding loadings) was $130,581 (gross) which was below this level. Accordingly, he was not an “Exempt Staff Member” and was covered by the 2011 EBA.
[26] Sachs, [15], Annexure ‘JMS-8’ (page 52)
[27] Sachs, [15], Annexure ‘JMS-8’ (page 50)
[28] Sachs, [15], Annexure ‘JMS-8’ (page 110)
Dr Salby claims that he was entitled to the benefits of the Higher Education Industry – Academic Staff Award 2010 and its dispute resolution provisions (Modern Award)[29]. This is incorrect. Clause 2.4.1 of the 2011 EBA provided that:
This Agreement is a closed and comprehensive agreement and wholly displaces any awards and agreements, which but for the operation of this Agreement, would apply.
[29] Salby’s submissions, [54]-[57]
The result is that the 2011 EBA applied to Salby’s employment as a matter of law. He was advised of this fact on numerous occasions by the University[30]. Nevertheless, and probably because the University knew that it was a contested issue, the University had regard to the terms of the Unregistered AWA where applicable, especially in relation to the allocation of teaching workloads[31].
[30] T-18.5.15, page 35 at lines 20–45; page 36, lines 5-25
[31] Affidavit of Michael Frank Poulsen (Poulsen), [56]–[58]; Beggs [21]–[24], Annexure ‘PJB-9’ (pages 30-57)
The legal status of the Unregistered AWA
Dr Salby contends the Unregistered AWA had force as a common law contract of employment. Although the University accepts that, to the extent that its terms could be enforced, the Unregistered AWA could operate as a common law contract, the legal position is that the Unregistered AWA could not detract from the provisions of the 2011 EBA. Nor could it confer any jurisdiction upon the Fair Work Commission.
As a preliminary matter, it should be observed that an AWA was a particular form of statutory instrument that was distinct from (and potentially might entirely displace) a contract of employment[32].
In the present case, the Unregistered AWA was never registered. This meant that, as a matter of law, the University was bound to comply with the 2009 and 2011 EBAs.
The University contends, however, that Dr Salby was not disadvantaged in any way as a result. The terms of the 2011 EBA provided for similar conditions in most respects and more generous conditions to Dr Salby in some respects. In any event, where possible, the University had regard to and attempted to comply with the terms of the Unregistered AWA, especially in relation to workload allocations. In my opinion, nothing turns on those attempts.
Relevant terms of the 2011 EBA are substantially similar to the AWA
It is not necessary to make any finding of fault in relation to the fact that the Unregistered AWA was not signed or lodged. This is because Dr Salby’s Unregistered AWA and the 2009 and 2011 EBA were in many ways similar, and in some ways the 2009 and 2011 EBAs were more beneficial. For example, they contained similar provisions in respect of leave and redundancy entitlements, outside employment, intellectual property and the ability for an academic to progress a dispute to the Australian Industrial Relations Commission (AIRC) or the Fair Work Commission (as the case may be). The disciplinary procedures for unsatisfactory performance and misconduct in the Unregistered AWA were significantly less prescriptive, with the result that it is at least arguable that the disciplinary procedures set out in each of the 2009 EBA and the 2011 EBA were more beneficial to employees than those set out in the Unregistered AWA[33]. Clause 10 of the Unregistered AWA related to academic workload and provided that:
a)academic work may include a balance of teaching, scholarship and research, administration and service to the community;
b)workloads must be consistent with the Minimum Standards for Academic Levels (MSALs), (a classification system contained in both the 2009 EBA and the 2011 EBA setting out the responsibilities and functions of academics at various levels), reflect discipline profiles and take into account the skills, experience and recent performance development and review of each academic; and
c)the Head of Department and the academics were to discuss the academic’s annual workload pattern for the forthcoming year, with any dispute to be referred to the Dean; and
d)workload allocations were to be made in accordance with University practice[34].
[33] Crowley, [25]
[34] Beggs, [21]
During the proceedings, Dr Salby contended that the effect of clause 10.2 of the Unregistered AWA compelled the University to take into account the “most recent performance development and review”. Dr Salby contended that this compelled the University to determine workload allocations only via the PDR process, I do not accept that interpretation of clause 10.2. I prefer the University’s construction that the word “must” is attached to the words “be consistent with Minimum Standards for Academic Levels…” The word “must” does not attach to the words “take into account… most recent performance development and review.” Rather, clause 10.2 only requires that the most recent performance and development review be taken into account as one of a number of factors. These words also do not mean regard must be had to the PDR process, about which Dr Salby placed emphasis in the proceedings. The clause means that workload allocations should take into account an academic’s performance development and whatever review has been conducted. As Mr Sprague explained, any contrary view would result in an academic being able to dictate in a PDR process which duties they were willing to perform, which would make it unworkable for the University to allocate teaching duties without consent[35].
[35] T-21.5.15, page 454 at line 45
The MSALs (referred to in clause 10 of the Unregistered AWA), stated, among other things, that academics appointed to a particular level may be assigned and expected to undertake responsibilities and functions of any level up to, and including, the level to which they have been appointed or promoted[36]. Although Dr Salby argued the contrary, the Unregistered AWA contained no express term in relation to a reduced teaching period for him. Nor is there anything to this effect in any of the other documents including the Advertisement, the Letter of Offer, the Terms Sheet or the 2009 and 2011 EBAs. Dr Salby conceded this in his cross-examination[37]. The 2011 EBA made provision for very similar terms to clause 10 of the Unregistered AWA. Specifically, clauses 4.3.20-21 provided as follows[38]:
4.3.20an annual written workload allocation will be developed by the Head of Department for each Staff Member following Consultation between the Head of Department and the Staff Member. The written allocation will specify the workload that the Staff Member will undertake in the coming academic year;
4.3.21the allocation of workload shall take into account Staff Member preferences, individual ability and the teaching and administrative needs of the Department and Faculty, equity considerations, the Staff Member’s promotion and research plans, provide reasonable accommodation of a Staff Member’s carer responsibilities and any relevant disability.
[36] Beggs, [23]
[37] T-19.5.15), page 118 at line 20
[38] Sachs, [15], Annexure ‘JMS-8’ (page 84)
Further, clause 4.3.3 of the 2011 EBA[39] also provided that the workloads must be consistent with the MSALs.
[39] Sachs, [15], Annexure ‘JMS-8’ (page 83)
Whilst clause 10(4) of the Unregistered AWA referred to workload allocations being conducted in accordance with University practice, clause 4.3.7 of the 2011 EBA specified that the “normal pattern of academic workload is 40 per cent teaching, 40 per cent research and 20% community engagement and/or University service”[40]. Dr Salby accepted that this was the practice at the University, certainly by 2011[41].
[40] Sachs, [15], Annexure ‘JMS-8’ (page 83)
[41] T-19.5.15, page 109 at line 45
Importantly, clause 4.3.31 of the 2011 EBA provided that disputes about individual workload allocations would be resolved using the dispute resolution procedure in clause 4.9 of the 2011 EBA[42]. Dr Salby never invoked those procedures because of his view that the 2011 EBA did not apply to his employment and that he would only invoke the dispute resolution procedures of the Unregistered AWA or the Modern Award.
[42] Sachs, [15], Annexure ‘JMS-8’ (page 85)
Further, academic workloads under the 2011 EBA:
a)might include, but were not limited to teaching, educational development, research, teaching administration, leadership, community outreach, University service and administration;
b)were to be set within a nominal limit of 1,575 working hours per year (based on 45 weeks at 35 nominal hours per week) for full time academic staff;
c)comprised a normal pattern of engagement of 40 per cent teaching (Teaching Load), 40 per cent research and 20 per cent community engagement and/or University service;
d)included research expectations for academic staff which were proportionate to the research component of their allocated workload; and
e)were to take into account considerations as to staff preferences, individual ability and the teaching and administrative needs of the Department and Faculty[43].
[43] Beggs, [18]
In accordance with the provisions of each of the 2009 EBA and the 2011 EBA, the Faculty also adopted an academic “workload model”, which set out specific limits in respect of matters such as:
a)face-to-face contact hours;
b)hours of “repeat” or “basic” lectures;
c)hours of “developed” or “specialised” lectures;
d)total number of lecture hours, in any week, averaged over the teaching weeks;
e)expected hours of interaction with students in online units or components;
f)expected marking loads (taking into account exam timetables);
g)the number of research degree students and/or coursework research projects that a staff member supervises in any one teaching period; and
h)the number of units coordinated per semester, averaged over a year, the Faculty’s workload model (Workload Model)[44].
[44] Beggs, [19], Annexure ‘PJB-8’ (page 29)
The Faculty’s Workload Model was applied to academic staff consistently as a matter of University practice (which is what clause 10(4) of the Unregistered AWA required), regardless of whether their employment was subject to an AWA or the terms of the 2009 EBA or 2011 EBA[45].
[45] Crowley, [24]
As such, the requirements of the Faculty’s Workload Model, the 2011 EBA and Dr Salby’s Unregistered AWA were broadly consistent in respect of the requirements for academic workload allocations[46].
[46] Beggs, [24], Annexure ‘PJB-9’ (pages 30-57)
The University contends that both Dr Michael Poulsen, Dr Salby’s Head of Department between 2009 and 2012 (Dr Poulsen), and Dr Beggs embraced a consistent approach with Dr Salby’s workload allocations in 2011, 2012 and 2013 which conformed to the provisions of both the Unregistered AWA and the 2011 EBA. They took the approach that an annual written workload was to be developed following consultation between each academic staff member and the Head of Department. Dr Salby contends that under the Unregistered AWA, the University was compelled to prepare a workload allocation that took into account his most recent performance development and review and complains that his workload allocations were assigned to him in circumstances where his PDRs were incomplete or not discussed. I cannot accept that contention as it proceeds on an incorrect interpretation of clause 10(2) of the Unregistered AWA. In any event, the lack of communication was not just the fault of the University. Dr Salby refused to attend meetings and further failed to reply promptly or at all to emails, or did so weeks or months after he had been invited to respond[47]. In some cases, Dr Salby refused to meet for many months[48].
[47] See T-18.5.15, page 90 at line 5; T-19.5.15, page 114 at lines 15–45;[48] Poulsen, [36], [41]-[42], Annexures ‘MFP-15’ (pages [56]-[60]), ‘MFP-16’ (page 60)
Dr Salby also complains that his PDRs were not completed. For the 2011 year, Dr Salby was requested to provide his PDR by 22 February 2012 but failed to submit it until 31 March 2012, which was well after the PDRs were required to be submitted and therefore it could not be processed[49]. For the 2012 year, Dr Salby submitted an electronic PDR which was not accepted as, amongst other things, it contained objectives which were not considered appropriate[50]. Dr Salby was directed to resubmit this PDR, but he declined to do so. This then lead to Dr Poulsen making repeated attempts to meet with him to remedy this position, which culminated in Dr Poulsen delivering three directives in a meeting on 21 November 2012[51]. Having regard to these facts, Dr Salby’s complaint appears self serving. In any event, nothing turns upon this because Dr Salby was given the opportunity in early January 2013 to discuss his workload allocations with Dr Beggs, which, he failed to do.
[49] T-21.5.15, page 409, line 45 and page 410 at line 5; Poulsen, [93]
[50] T-21.5.15, page 421 at lines 30–35; Poulsen, [103], Annexure ‘MFP-51’ (pages 156–158)
[51] T-21.5.15, page 417, lines 35–45,; page 418, lines 5–15; Poulsen, [109]-[111], Annexure ‘MFP-56’ (page 165)
Dr Salby next contends that the 2011 EBA was inferior to the Unregistered AWA in relation to its dispute resolution procedures. Dr Salby’s contention appears to be that the dispute resolution procedure contained in clause 24 of the Unregistered AWA permitted him to have disputes referred to executive management (i.e., the Director of Human Resources) and not to “legacy staff” and that the procedure required a conference to occur within five working days. This contention is not strictly correct. Clause 24.1 of the Unregistered AWA provided that:
a)the parties would “attempt to resolve” disputes in the first instance between the officer and his or her immediate supervisor within five working days (clause 24.1.1),
b)if the matter was not resolved, the dispute was to be referred to the next level of management with an “attempt to resolve” within five working days (clause 24.1.2),
c)if the matter remained unresolved, then the matter was to be referred to the “Director, Human Resources (or nominee)” who was to meet and confer within five working days.
Clause 24.2 made provision for unresolved disputes to be referred to the then AIRC. Clause 24.2.2 provided that the AIRC’s powers would be exercised in accordance with s.699 and Part 13 of the Workplace Relations Act. However, the fact is that these provisions were long since repealed. Further, the AIRC, being a tribunal of limited jurisdiction, did not have any general power to exercise dispute resolution processes. At the time, s.699 of the Workplace Relations Act provided that:
(1) A person may apply to the Commission to have an alternative dispute resolution process conducted by the Commission under this Division in relation to a matter or matters in dispute if:
(a) the dispute is one that may (whether under an award, a workplace determination, a workplace agreement, a provision of this Act or otherwise) be resolved using the model dispute resolution process;…
As the Unregistered AWA was not an Award, a workplace determination or a workplace agreement within the meaning of the Workplace Relations Act, the AIRC had no jurisdiction or power to determine any disputes referred to it under the Unregistered AWA.
Importantly, the AIRC could not in any event make any binding orders. Section 701(4) of the Workplace Relations Act provided that:
(4) The Commission does not have power:
(a)to compel a person to do anything; or
(b)to arbitrate the matter, or matters, in dispute; or
(c)to otherwise determine the rights or obligations of a party to the dispute; or
(d)to make an award in relation to the matter, or matters, in dispute; or
(e)to make an order in relation to the matter, or matters, in dispute; or
(f)to appoint a board of reference.
As a result, the AIRC did not have the power to compel a person to do anything, arbitrate the matter or otherwise determine the rights or obligations of a party to the dispute.
In the present case, other than in late 2011, Dr Salby never invoked any dispute resolution process to commence proceedings in the AIRC or its successors. Dr Salby claims to have put matters into dispute in relation to the teaching directions that were given to him in early 2013, but he did not make any application to the AIRC or its successors in respect of that issue.
By contrast to the limitations contained in the Unregistered AWA, clause 4.9 of the 2011 EBA provided a more comprehensive and, in my opinion, effective, dispute settlement procedure[52]. Clause 4.9.2 provided that a member of staff could raise a dispute with the University in relation to the agreement or matters relating to a written policy of the University regarding employment. Clause 4.9.3 required an attempt to resolve the dispute between a staff member and his or her supervisor. Clause 4.9.4 provided that, where a dispute was unresolved under clause 4.9.3, at the written request of a party to the dispute, a Disputes Committee was to be convened within five working days of the receipt of such a request, unless agreed otherwise. The Disputes Committee was to consist of equal nominees of the parties to the dispute and did not preclude the involvement of executive management (such as the Director of Human Resources). If the Disputes Committee was unable to resolve the dispute within five working days, clauses 4.9.6 – 4.9.8 provided for referral of the dispute to Fair Work Australia for, amongst other things, mediation and, if that process was unsuccessful, arbitration. Dr Salby could have availed himself of that process. In order to do so, he would have had to have made a written request to the University to convene a Disputes Committee. He never did this. As a result, Dr Salby never invoked this process.
[52] Sachs, [15], Annexure ‘JMS-8’ (pages 89-90)
Dr Salby also drew attention to other internal grievance procedures and consultation policies of the University[53]. He has not articulated their relevance or whether they applied. The grievance procedure to which Dr Salby drew attention was in fact underpinned by the 2011 EBA. Dr Salby’s difficulty is that he did not invoke this procedure or any of the processes under the 2011 EBA.
[53] T-21.5.15, page 432, lines 30–40; Salby 1, Annexure ‘Z4.6’
In addition, Dr Salby has drawn attention to clause 4.9.9 of the 2011 EBA, which provided that work would continue as normal until the Disputes Committee had attempted to resolve the matter during a disputes process and that the University would not restructure the employee’s role. However, as noted above, Dr Salby never invoked this dispute resolution process and as such, this provision had no application. In any event, if this clause had applied, it would have required Dr Salby to continue working in the “normal manner” and as required by clause 4.9.9(a). This would have required Dr Salby to perform teaching duties during the first semester of 2013, which he did not do. Dr Salby also pointed to the equivalent clause of the Unregistered AWA (clause 24.3), but Dr Salby’s argument suffers from the same problems in this regard.
Dr Salby’s ultimate submission appears to be that the University was required to consult with him and attempt to resolve his disputes. The University submits that that was overwhelmingly done over a considerable period of time. Dr Salby may not have liked the outcomes, but there is no basis to suggest that the University did not attempt to resolve his concerns[54]. Dr Salby may well have perceived there to be a continuing dispute, but it is apparent that the University took the view that the dispute had been considered exhaustively and all reasonable attempts had been made to resolve it[55]. It is difficult to find fault with that approach by the University.
[54] T-21.5.15, page 451, lines 10–15
[55] T-21.5.15, page 451, lines 10–15; page 459, lines 30-45; page 460, line 5
While it is no doubt true that Dr Salby encountered unexpected bureaucratic obstacles to his plan of work at the University, it did not help that he cast himself in the role of Don Quixote, and spent much of his time tilting at windmills.
Dr Salby next contends that the Unregistered AWA was superior to the 2011 EBA because it made provision for a salary loading and measures for evaluation of his performance. It is correct that Schedule 1 of the Unregistered AWA appears to have conferred an entitlement to a salary loading, but nothing turns on that. This is because the salary loading was specified in clause 2 of the Letter of Offer[56] which provided that:
You will also be paid a non-superannuable salary loading of 25% of your base salary i.e., $32,645 gross per annum. The continuation and quantum of this loading will be assessed annually based on your performance against agreed performance criteria and in accordance with the University’s Salary Loading Policy.
[56] Salby 1, Annexure ‘C’
I accept that the Letter of Offer constitutes part of Dr Salby’s contract of employment. The real issue is not whether Dr Salby had a contractual entitlement to the Salary Loading, but whether the University was entitled to revoke that Salary Loading in 2010, having regard to its assessment of Dr Salby’s performance. Dr Salby was given an opportunity to respond to the University’s decision but did not take up that opportunity. I expolore this issue further below.
Alleged “workplace rights” and causal connection to the impugned decisions
A further fundamental issue in these proceedings is whether Dr Salby had the “workplace rights” as alleged by him and whether the University made the decisions which Dr Salby now impugns because, or for reasons including, Dr Salby’s exercise of, or proposed exercise of those rights, or to prevent them from being exercised.
As to the first question, s.341 of the Fair Work Act provides:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Dr Salby variously asserts that his workplace rights include the Unregistered AWA, the Modern Award, the Startup Fund and the letter of offer. He also apparently claims that the right to make complaints or seek dispute resolution under the Unregistered AWA and the Modern Award were workplace rights.
As is pointed out by the University, there are several simple answers to these claims. First, the Unregistered AWA is not a workplace right within the meaning of s.341 of the Fair Work Act because it is not a “workplace law, workplace instrument or order made by an industrial body”.
Secondly, even if the Unregistered AWA is regarded as a form of common law contract of employment, a contract of employment does not fall within the meaning of a “workplace right” for the purposes of s.341 of the Fair Work Act. In Barnett v Territory Insurance Office[57], Mansfield J held at [32] that:
The definition of “workplace law” refers to enactments of a particular character. The specified enactments may give particular legal significance to an instrument or to a role adopted under an instrument. It is the status of the instrument or of the activity under an instrument to which attention is drawn by the particular “workplace law”. The mere fact of the existence of a contract of employment does not enliven the relevant concept of recognition contained within the definition of “workplace instrument”. If it were simply the existence of a contract of employment on which the particular enactment operated, the expression of “made under or recognised by” would have been unnecessary. It would have been easy to have indicated that s 340(1)(a) includes a right under a contract of employment. It is also more consistent with the grouping of “workplace law”, “workplace instrument” and “order made by an industrial body” in s 341(1)(a) that the reference to recognition by a workplace law in the definition “workplace instrument” should refer to an instrument that is given legal effect or legal life by a provision of an enactment. Those three sources of the existence of a “workplace right” may be taken to have a common type of origin, or genus, in either an enactment or some formal process provided for by an enactment. That, too, is consistent with the genus in the “workplace law” definition, as (d) of that definition is confined to enactments as distinct from private contracts. That interpretation also avoids the potentially idiosyncratic outcome that a written contract of employment might contain a term which would give rise to a workplace right (if the argument for the appellant were accepted), whereas an oral contract of employment providing for the same term would not because it could not be an instrument.
[57] (2011) 196 FCR 116
Thirdly, as I have already noted, the Startup Fund does not have any contractual force. Even if the Startup Fund had any contractual force, it does not fall within the definition of a workplace right for the same reasons as stated above[58]. In his closing submissions, Dr Salby contends that the Startup Fund was a workplace instrument made under the Higher Education Legislation Amendment (Workplace Relations Requirements) Bill 2005 (Cth) (HELA Bill). That is contested by the University on the bases that the Startup Fund was not made under the HELA Bill and, in any event, a Bill cannot be a workplace law. I agree.
For the same reasons, the Letter of Offer also did not fall within the meaning of a “workplace right”.
Fourthly, Dr Salby was not “able” to make a complaint or inquiry under the Unregistered AWA or the Modern Award within the meaning of s.341(1)(c)(i)[59]. This is because the Unregistered AWA had no legal effect and the Modern Award did not apply to Dr Salby’s employment.
[59] c.f., Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [633]-[641]
In relation to the various other complaints that Dr Salby alleges he made during the course of his employment, it is possible that such complaints would fall within the meaning of “workplace rights” under s.341(1)(c)(ii)[60]. However, the University submits that it did not make any decision which amounted to adverse action within the meaning of s.340 of the Fair Work Act for the reason, or reasons including, the fact of any of these complaints that Dr Salby allegedly made over a period of five years. I explore that issue further below.
[60] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [633]-[641]
Fifthly, in Dr Salby’s submissions and during the course of the proceedings, a new claim has been made that was not pleaded or particularised by him that he had a workplace right by reason of proceedings that were apparently commenced by him on or about 22 May 2013[61]. Dr Salby claims that he had some right to have proceedings conducted before the Fair Work Commission and that the University acted to deprive him of those rights. On the face of the material that is available, it appears that Dr Salby commenced proceedings pursuant to s.372 of the Fair Work Act. This makes provision for a person who alleges a contravention of the general protections provisions of the Fair Work Act (Part 3-1) to apply to the Fair Work Commission to deal with a dispute. However, the Fair Work Commission has no power to hear, arbitrate or determine the matter. In fact, s.374(1)(b) makes it clear that the Fair Work Commission must conduct a conference only if the parties agree to deal with the dispute. However, if the parties do not agree to deal with a dispute, the Fair Work Commission has no power at all. Whilst s.372 of the Fair Work Act may be properly characterised as a workplace law, it is a workplace law that confers no substantive right or entitlement. In any event, there is no evidence before me that the University did not attend a conference which was scheduled for 12 June 2013 or that Dr Salby attended it. Moreover, Mr Sprague’s evidence was that he could not recall whether he was made aware of those proceedings before Professor Sachs had made her decision to terminate Dr Salby’s employment on 28 May 2013[62]. Similarly, Professor Sachs’ unchallenged evidence was that she was not aware of the proceedings when she made her decision to terminate[63]. By the University’s letter dated 20 May 2013, Dr Salby was made aware that the University intended to terminate his employment on 28 May 2013 unless he responded and showed cause as to why his employment should not be terminated[64]. He never responded to that letter or to any of the processes before the MIC, even though by his letter dated 7 May 2013, he claimed to be preparing a response[65].
[61] Salby’s submissions at [4]-[7]; Salby Reply, page 578
[62] T-21.05.15, page 469, line 45; page 470, line 5
[63] T-20.05.15, page 260, lines 5–45; page 261, lines 5–20; page 263, lines 25–40
[64] Sachs, [33], Annexure ‘JMS-13’ (pages 249- 250)
[65] Sachs, Annexure ‘JMS-14’ (page 251)
Sixthly, as discussed further below, Dr Salby has failed to establish the necessary causal connection that the University’s relevant decision makers engaged in any adverse action “because of”, or for reasons, including any of the abovementioned alleged “workplace rights”. Despite repeated requests from the University, Dr Salby has struggled to clearly articulate which decisions he impugns. At a general level, the primary decisions which are impugned are the decision to terminate and the decision to suspend. In relation to the decision to terminate, Professor Sachs’ has set out her purported reasons for the decision to terminate Dr Salby’s employment and has denied any impermissible reasons. In relation to the decision to suspend, the University’s Vice-Chancellor Professor Dowton (Professor Dowton) has also done likewise.
On closer analysis, Dr Salby also impugns various other decisions such as the decision to “demote” him in his employment and deny him access to the Startup Fund. The University complains that his case in relation to these other decisions is unspecified and not properly particularised. The University asserts prejudice from the consideration of those claims without them being properly articulated. I have nevertheless attempted to deal with them although there are evidentiary difficulties in doing so.
All of the relevant witnesses called by the University have given unchallenged evidence in their affidavits that they did not make any relevant decisions in relation to Dr Salby’s employment which were to his determent (as claimed by him) for the reasons, or for reasons including, the various workplace rights which Dr Salby alleges to have exercised or proposed to exercise. In particular the following evidence was unchallenged:
a)Judyth Sachs[66];
b)Michael Poulsen[67];
c)Paul Beggs[68];
d)Stephen Dowton[69];
e)Nicholas Crowley[70]; and
f)Timothy Sprague[71].
[66] Sachs, [44]
[67] Poulsen, [143]
[68] Beggs, [102]
[69] Dowton, [28]
[70] Crowley, [59]
[71] Sprague, [82]
Dr Salby should have put any propositions to them during cross examination. He failed to do this at critical points, even though at various times via objections made by counsel for the University and prompts given by me he was on notice that such propositions would need to be put.
Finally, Dr Salby asserts that various decisions were detrimental to him by reason of (or for reasons including) an alleged “political opinion”. Despite being prompted by me to clarify his position during his opening oral submissions, Dr Salby did not articulate whether the relevant political opinions were those held by him or those held by the various people he alleges made the impugned decisions. As explained in further detail below, Dr Salby has not established that his disciplinary/scientific view about human effects on climate change was in fact manifested as a political opinion. Nor has he established that any of the relevant decision makers had a view that was contrary to his. More importantly, he never put to any of the witnesses that they made any of the decisions which he attempts to impugn for the reason of, or for reasons including, either his alleged political opinion or theirs.
In his closing submissions, Dr Salby raises the proposition that the University came under a common law duty of care in relation to the terms and conditions of his employment. No claim in tort was pleaded apart from a brief reference at [74] of Dr Salby’s points of claim and the claim now raised is confusing. Further, the evidence does not support the contention that the University came under a duty of care to apply particular employment conditions. Even if such a duty of care arose there is no evidence of any breach.
Factual issues
There were many factual disputes in this case, and a great deal of time was taken up with interlocutory disputes which Dr Salby asserted were necessary to resolve in order for him to gain access to material to establish his claims. Not all of the factual issues ultimately raised are relevant to the resolution of the issues in dispute between the parties. I deal below with factual matters having a bearing on the resolution of the dispute or about which I wish to make some comment.
Dr Salby’s workload allocations
In summary, Dr Salby was given the following workload allocations for teaching during his employment:
a)in 2008, Dr Salby was allocated a minimal Teaching Load of around 9 per cent – that is, 9 per cent of the Teaching Load[72];
b)in 2009, Dr Salby was allocated a Teaching Load of 50 per cent[73];
c)in 2010, Dr Salby was initially allocated a Teaching Load of 100 per cent but this was reduced to 64 per cent[74];
d)in 2011, Dr Salby was allocated a Teaching Load of 88 per cent (but this was subsequently reduced)[75];
e)in 2012, Dr Salby was allocated a Teaching Load of 87 per cent (but was also subsequently reduced)[76]; and
f)in 2013, Dr Salby was allocated a Teaching Load of slightly less than the full Teaching Load[77].
[72] Poulsen, [124]
[73] Poulsen, [124]
[74] Salby Reply, page 548; Poulsen, [124]
[75] Poulsen, [124]
[76] Poulsen, [124]
[77] Beggs, [32]
Count 4 – Breach of the dispute resolution procedures
Dr Salby seems to claim that the University breached his contract by denying him the opportunity to have his dispute resolved before the Commission. This is both factually and legally incorrect.
Dr Salby’s claim is fundamentally misconceived. He had no contractual right to a dispute resolution procedure under the Unregistered AWA. As noted above, this dispute resolution procedure was not legally effective because an Unregistered AWA cannot confer jurisdiction upon the AIRC or its successors.
The dispute resolution process contained in the 2009 and 2011 EBAs cannot be contractual rights. These provisions are contained within an enterprise agreement and such provisions do not have any contractual force[304].
In relation to Dr Salby’s assertion that the grievance procedure that he identified to some of the witnesses gave rise to a contractual right, Dr Salby’s claim is again misconceived. These policies simply repeated provisions of the enterprise agreements. Those policies themselves could not confer jurisdiction on the Fair Work Commission. In any event, the University’s policies did not have any contractual force. This is because clause 7.2 of the Letter of Offer provided that:
any policies of the University do not form part of this agreement and are not intended to be contractual in nature.
It is well settled that employment policies can have no contractual force where contracts of employment include such clauses[305].
On or about 4 April 2011, Mr Sprague received an email from the Fair Work Ombudsman, indicating that Dr Salby had filed a complaint regarding an alleged breach of Dr Salby’s AWA in respect of the University’s cancellation of his Salary Loading[306].
[306] Sprague, [30], Annexure ‘TJS-14’ (pages 103–104)
Following receipt of the Fair Work Ombudsman’s email, Mr Sprague made enquiries through Mr Crowley regarding the status of Dr Salby’s AWA and was informed that, due to administrative oversight, it had not been approved or lodged by the University with the Workplace Authority and was therefore unregistered[307].
[307] Sprague, [31], Annexure ‘TJS-15’ (pages106-107)
On 28 April 2011, the Fair Work Ombudsman advised the University that it would not be taking further action in respect of the complaint lodged by Dr Salby on the basis that the Fair Work Ombudsman had concluded that it had no jurisdiction to deal with Dr Salby’s complaint, given that Dr Salby’s AWA was not registered[308].
[308] Crowley, [31], Annexure ‘NJC-11’ (page 78)
On or about 12 October 2011, Dr Salby filed an application to Fair Work Australia (as it was then known), regarding his complaints relating to his Startup Funding, cancellation of his Salary Loading, his professional duties and the reimbursement of certain research expenses and sought to have his application dealt with in accordance with the Higher Education Industry Academic Staff Award 2010 (the FWA Proceedings)[309].
[309] Crowley, [32]
Ms Lerche attended conciliation conferences at Fair Work Australia on behalf of the University on four separate occasions between November 2011 to March 2012, as the issues being agitated by Dr Salby in the proceedings included those set out in his Letter of Offer[310].
[310] Lerche, [70]-[71]
However, on around 16 April 2012, Fair Work Australia advised the University that the FWA Proceedings would be discontinued by Dr Salby[311].
[311] Crowley, [33], Annexure ‘NJC-12’ (pages 79-84)
The University participated in the conciliation proceedings. It was Dr Salby who discontinued the proceedings. It was open to him to seek dispute resolution under the EBAs, but he did not do so.
As noted above, Dr Salby desired resolution on his terms. The University’s refusal to resolve Dr Salby’s concerns on his terms did not amount to a repudiation of the alleged terms of the contract.
Count 5 –Summary termination of Dr Salby’s Salary Loading
Dr Salby claims that the University breached his employment contract by suspending his Salary Loading. This claim is without foundation.
As noted above, Dr Salby’s letter of appointment noted that he was entitled to a non-superannuable salary loading of 25 per cent, which would be reviewed in accordance with the Salary Loading Policy. In turn, the Salary Loading Policy provided as follows:
Review of Loadings
Salary loadings will be subject to annual review to determine the continued applicability and quantum of the loading.
In the case of performance loadings the continuation of a loading and the quantum payable will be determined by a staff member's performance over the preceding 12 months as informed by the University's Performance Development and Review process.
In the case of market loadings the review will take into account the market loading parameters, salary and market survey data and the staff member's performance over the preceding 12 months.
Supervisor
Submit a recommendation to the Dean/Head of Office for the continuation or cessation of the loading. The supervisor will provide supporting documentation outlining the rationale for the continuation or cessation of the loading.
Dean/Head of Division
Review all submissions for loadings from across the Division and make recommendations to the appropriate Deputy Vice-Chancellor for approval.
Director Human Resources
Provides advice to the Deputy Vice-Chancellor with respect to the Dean/Head of Division recommendation.
DVC
Approve salary loadings as appropriate.
This Salary Loading Policy required for the University to assess Dr Salby’s performance during the 2009 calendar year by reference to performance and for it to be “informed by” the performance and development review process. The Salary Loading Policy did not require the PDR process to be the sole criterion of assessing Dr Salby’s performance.
As set out above, Dr Salby’s Salary Loading had to be reviewed by March 2010 but due to a restructure within the Department, the responsibility for conducting that PDR fell to Dr Poulsen, who was not authorised to perform that process and who could not perform that process as he had not been Dr Salby’s supervisor in the preceding 12 months. Dr Poulsen sought the advice of the Dean, who advised Dr Poulsen to assess Dr Salby’s performance by reference to the CORE criteria and to take into account the matters recorded in Dr Salby’s 2009 PDR. This is what Dr Poulsen did. Of course, given that Dr Salby has during the course of the proceedings maintained the significance of him being a CORE appointee, he can hardly complain that his performance was assessed by reference to those criteria. Dr Poulsen’s memorandum to Dr Thurgate discloses that he assessed Dr Salby’s performance by reference to the CORE criteria and took into account the matters that Dr Salby reported in Dr Salby’s 2009 PDR.
Dr Poulsen’s memorandum expressly stated that Dr Salby should be given an opportunity to contradict the matters in his memorandum and to present his own response. Dr Thurgate then wrote to Dr Salby and presented him with Dr Poulsen’s materials and invited him to respond. Dr Salby did not take up that opportunity.
To the extent that any of these steps amounted to a deviation from what the Salary Loading Policy required, Dr Salby suffered no loss. This is because he had been given notice of the recommendation by Dr Poulsen and had been provided an opportunity to address it. Had he taken up that opportunity and presented his response, he may well have had his Salary Loading reinstated. But he did not do this. In those circumstances there is no breach and , in any event, no loss.
The manner in which the Salary Loading Policy operated meant that once the Salary Loading was revoked, Dr Salby had no further entitlement to it as part of any subsequent PDR review process.
Counts 6 – Alleged demotion of his role
Dr Salby appears to allege that he was demoted. It would appear Dr Salby’s claim is based upon the workload allocation assigned to him by Dr Poulsen for 2012 and by Dr Beggs for 2013.
In relation to the 2012 year, Dr Salby’s claim appears to be that Dr Poulsen assigned him to teach “ENV-304: Integrated Climate Science”, which he claimed was outside his area of expertise and therefore a demotion. This claim is factually incorrect. As Dr Poulsen explained, this course was well within Dr Salby’s area of expertise. Again, this claim appears to proceed on the premise that Dr Salby could only be assigned teaching duties to which he agreed. This contention is without substance for the reasons given above.
In relation to the 2013 year, Dr Salby’s claim appears to be that Dr Poulsen assigned him to teach “ENV-216” and allocated what he regarded as “menial” duties of marking assignments for courses that he was not teaching. However, Dr Salby had been teaching the “ENV-216” course for the previous two years and this could hardly have amounted to a demotion. In relation to the allocation of marking duties, as Dr Beggs and Mr Sprague had explained, there was nothing uncommon, unusual or outside the ordinary work for academics irrespective of the allocation of these duties. There was no repudiation and Dr Salby’s contentions are without substance.
As noted above, Dr Salby’s contention that he should not have been allocated these duties by Dr Poulen and Dr Beggs is inconsistent with well settled principles in respect of allocation of duties to academic staff[312].
[312] Miller v University of New South Wales AIRC Full Bench S3518 at [49], [54] and [68]
Count 7 – Suspension
Dr Salby claims that the suspension of his employment amounted to a repudiation of his contract. This claim has no foundation. The decision to suspend was made pursuant to an express power contained in the 2011 EBA. Professor Dowton made that decision based upon his assessment that a failure to teach a course by a senior academic was a serious matter and that the deliberate defiance of instructions from superiors warranted suspension without pay. The exercise of the power under the 2011 EBA could not give rise to repudiation of Dr Salby’s contract. The claim fails.
Count 8 – Terminating employment whilst Fair Work Commission proceedings pending
This claim is baseless. Dr Salby had no contractual right to have his employment contract maintained whilst proceedings were pending before the Fair Work Commission pursuant to s.372 of the Fair Work Act. As there was not contractual right, the question of repudiation does not arise.
In any event, the University did not make its decision to terminate Dr Salby’s employment by reason of those proceedings having been commenced. Nor did it deprive Dr Salby of having those proceedings proceed to a conciliation conference which is all that could have occurred in proceedings of that type.
Additional ground in Dr Salby’s submissions – governing instrument
Dr Salby claims that the University repudiated his contract by failing to adhere to the ‘governing instrument’ being the Unregistered AWA. This is a repetition of the claims addressed earlier.
Additional ground in Dr Salby’s submissions – Startup Fund
Dr Salby claims that the University repudiated his contract by allegedly failing to provide him with the Startup Fund. This is a repetition of the claims addressed earlier.
Additional ground in Dr Salby’s submissions – mutual trust and confidence
Dr Salby claims that the University repudiated his contract by allegedly breaching an implied term of mutual trust and confidence. In light of the decision of the High Court in Commonwealth v Barker[313], this claim cannot be maintained and fails.
[313] [2014] HCA 32
Claim 5 – adverse action
This claim also consists of a number of elements. Again, there is a pleading issue about which I make no adverse finding. In substance, Dr Salby claims that the University engaged in adverse action by contravening ss.340(1) and 342(1)(a)-(c) of the Fair Work Act by:
a)obstructing his essential duties including the performance of research, research communication and training research students;
b)demoting his role;
c)summarily discontinuing his salary;
d)conducting disciplinary proceedings without giving him an opportunity to be heard;
e)cancelling his research travel;
f)subjecting him to the misconduct investigation;
g)terminating his employment;
h)reduction of role by Dr Poulsen and then by Dr Beggs;
i)denial of an opportunity to be heard; and
j)termination in circumstances where proceedings were pending before the Fair Work Commission.
Meaning of adverse action
Other than the decision to terminate and suspend, Dr Salby has not articulated in clear terms how the other actions amount to adverse action and who the relevant decision makers were. In this regard, Dr Salby has failed to make a case[314].
Section 342 provides that adverse action is taken by an employer against an employee in circumstances where the employer:
a)dismisses the employee; or
b)injures the employee in his or her employment; or
c)alters the position of the employee to the employee’s prejudice[315].
[315] Fair Work Act, s.342(1)
Further, adverse action includes threatening to take the action set out above[316].
[316] Fair Work Act, s.342(2)
The phrase at [463.b] above covers “injury of any compensable kind”, and the phrase in [463.c] refers to a broad additional category which covers not only legal injury but any “adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”[317].
Further, prejudicial alteration of employment concerns:
a)conduct that results in a detrimental alteration to the employee’s position that is “real or substantial, rather than merely possible or hypothetical”[318]; and
b)an intentional act directed to an individual employee or prospective employee[319].
[318] Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at 187; Community and Public Sector Union v Telstra Corp Ltd (2001)107 FCR 93
[319] BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 97 IR 266 at 275
When assessing whether an employer has engaged in conduct that amounts to a prejudicial alteration of employment:
a)the employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements[320]; and
b)the employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct[321].
[321] BHP Iron Ore Ply Ltd v Australian Workers’ Union (2000) 102 FCR 97 at [35]-[37]. See also Klein v Metropolitan Fire and Emergency Services Board [2012] 208 FCR 178 at [88]
The causal connection and onus of proof
In order to establish a contravention of ss.341(1)(c)(ii) or 351, the Court must be satisfied that there was a causal connection between, on the one hand, Dr Salby’s exercise of a workplace right or political opinion and, on the other hand, the University’s decisions which Dr Salby seeks to impugn. The causal connection arises by reason of the word “because” as it appears in both ss.341 and 351 which calls for an examination into the reasons for the impugned action in question[322].
[322] see Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647 (Bendigo); see also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [7] and [89]–[90]
However, s.361 of the Fair Work Act applies to both of the abovementioned sections and requires the Court to focus its attention upon the actual reasons of the relevant decision-maker(s). The relevant legal tests regarding this issue of whether any alleged adverse action was taken “because” of a prohibited reason has been considered by the High Court of Australia. The High Court reinforced that it is the actual reasons of the relevant decision–maker(s) that must be the focus of enquiry in general protections proceedings[323]. In a concurring judgment, Heydon J held that “to search for a voluntary action is to search for the reasoning actually employed by the person who acted”[324]. This calls for an examination of the actual reasons of the decision-maker(s). Relevant actions amounting to adverse action will offend the relevant provisions if the reason for those actions are prohibited by ss.341 and 351 and they are substantial and operative reason for the action, even if there is more than one reason for that action being taken[325].
[323] Bendigo [2012] HCA 32; (2012) 290 ALR 647 [127] per Gummow and Hayne JJ
[324] Bendigo at [146]
[325] Bendigo at [62], [103] and [127]
What is important is whether the University can rebut the presumption cast by ss.360 and 361 of the Fair Work Act by establishing that Dr Salby’s alleged exercise of a workplace right or his political opinion was not a substantial and operative reason for the decisions it made in relation to the various complaints made by Dr Salby.
Dr Salby’s assertions seem to impute all the relevant decision-makers with knowledge of his alleged workplace rights and also impute a causal connection to their independent decisions irrespective of their actual evidence. All of the relevant decision makers have given evidence including Professor Dowton, Professor Sachs, Dr Beggs and Dr Poulsen. Their positive evidence is that they did not make any decisions adverse to Dr Salby because of any of his workplace rights or political opinions. As the facts set out above demonstrate, in respect of each of the alleged conduct, the University and its decision makers acted by reason of Dr Salby’s conduct and not because of any workplace right that he claimed to have been exercising. No casual connection has been established.
Adverse action – obstructing Dr Salby’s essential duties
Dr Salby appears to claim that the University engaged in adverse action by allegedly obstructing him from attending to his duties by preventing him from performing his research, engaging in research communications and training research students.
These claims seem to relate to Dr Salby’s ill-fated attempt to develop a post-graduate program and to recruit research students through that process, together with forming research alliances with external bodies. Dr Salby’s claim appears to be that the University obstructed these processes because of his exercise of one or more of the workplace rights alleged.
This claim is without foundation. Dr Salby has not established how this claim amounts “adverse action” within the meaning of the Fair Work Act and no workplace right is particularised. The evidence is that, notwithstanding disagreement over Dr Salby’s flyers, it was open to him to proceed with the flyers and website and to seek to recruit research students in accordance with University processes. Further, during his five years of employment at the University, it was within Dr Salby’s liberty to at any time undertake his research, recruit research students and engage in alliances with external bodies, which other academics were plainly able to do without the start up resources or additional funding which were made available to Dr Salby. That Dr Salby did not take up these opportunities or was not successful in them does not mean that the University has somehow in an unspecified and un-particularised way engaged in adverse action.
Further, Dr Salby has failed to establish the necessary causal connection. All of the objective evidence establishes that the University did not obstruct Dr Salby from undertaking these steps, but instead required him to comply with its policies and procedures. Dr Salby plainly saw that as obstruction but it was only an insistence upon procedural compliance.
Adverse action - demoting Dr Salby’s role and alleged reduction of role by Dr Poulsen and Dr Beggs
Dr Salby appears to claim that the University engaged in adverse action by demoting him. This claim is unclear. As noted above, it appears that Dr Salby is claiming that Dr Poulsen and Dr Beggs allegedly demoted him by requiring him to teach non-climate courses and, in Dr Beggs’ case, requiring Dr Salby to attend to marking duties. As noted above this conduct did not amount to any alleged demotion of Dr Salby’s role and was consistent with his contractual conditions which were in line with the 2009 and 2011 EBAs. There was no adverse action because what Dr Salby was being required to do was consistent with the conditions in his contractual arrangements and in the 2009 and 2011 EBAs. Performance of obligations in accordance with the relevant legal obligations cannot amount to adverse action.
In any event, Dr Salby has failed to establish the necessary causal connection. Any personal dislike was not material. Dr Poulsen and Dr Beggs categorically deny that they singled out Dr Salby for any differential treatment. In Dr Poulsen’s case, Dr Salby, like other academics during the 2012 academic year, was directed to perform duties outside his specialist climate area. He was treated no differently to the other academics. Likewise in Dr Beggs’ case, the allocation to Dr Salby of marking duties was consistent with duties he had allocated to other academics within the Department. As Mr Sprague explained, it may well have been the case that Dr Salby had not performed some or all of these duties in the past, but that likely meant that other academics had been undertaking that burden in previous years, and it certainly did not preclude the University from allocating such duties to Dr Salby then or anytime in the future. Mr Sprague’s persuasive evidence was that, ultimately, the University needed to be able to teach the courses in which students had enrolled and in large courses academics would need to assist their colleagues in attending to marking duties. There is nothing surprising about this. These were legitimate and bona fide reasons for Dr Salby’s workload allocations. They did not amount to adverse action.
Adverse action – suspension
Dr Salby alleges that the decision to suspend his employment amounted adverse action again by reason of his exercise of the various workplace rights identified above. This claim is without foundation. Professor Dowton made the decision to suspend on the basis of the objective facts he had available to him that Dr Salby had failed to teach despite being given directions to do so by the Head of the Department and the Dean to do so. Professor Dowton had no knowledge of Dr Salby’s alleged complaints during his employment. In view of Professor Dowton’s unchallenged and unshaken evidence, Dr Salby has failed to make out this claim.
Adverse action – conducting disciplinary proceedings without giving Dr Salby an opportunity to be heard.
Dr Salby appears to claim that he was subjected to adverse action by reason of the conduct of the disciplinary proceedings and additionally by being deprived of an opportunity to be meaningfully heard in those proceedings.
Dr Salby was told by Dr Baldock that a refusal to comply with the Teaching and Attendance Direction would lead to potential disciplinary action. Dr Salby with full knowledge decided to engage in deliberate defiance of those instructions. It is not surprising that in those circumstances the matter was referred to Mr Sprague as a disciplinary matter and that Mr Sprague made a decision to determine the matter as a misconduct matter under the 2011 EBA. Mr Sprague’s reasons for making this decision were the obvious ones, that Dr Salby had defied lawful and reasonable instructions. It stretches credulity to suggest that this amounted to adverse action, especially in circumstances where the very purpose of such an investigation would be to ascertain the facts and to give Dr Salby an opportunity to be heard. Further, Mr Sprague also permitted Dr Salby an extension of time so that he did have an opportunity to meaningfully respond.
Secondly, Dr Salby was given repeated opportunities by Mr Sprague, the MIC and Professor Sachs to provide responses to the allegations and subsequently the findings of the MIC and to show cause why his employment should not be terminated. In addition, the MIC also deferred its determination of the hearing of the second set of allegations to permit Dr Salby an opportunity to be heard. The facts show that Dr Salby was aware of these processes well before he departed to go overseas. In fact, the University reasonably expected that Dr Salby would not go overseas as this was a deliberate defiance of its directions to him not to undertake that travel. Dr Salby now complains that he was not given a meaningful opportunity during these investigative steps in circumstances where he voluntarily went overseas with full knowledge that he was the subject of a disciplinary process which involved him having an opportunity to be heard. In any event the claim fails because the relevant decision makers, Mr Sprague and Professor Sachs, did not deny Dr Salby any opportunity to be heard. The reason for their actions was that they were seeking to comply with the process prescribed in the 2011 EBA.
Even if there had been a failure of process in the disciplinary proceedings, it would not follow that this amounted to adverse action[326].
[326] See Dahler v Australian Capital Territory & Anor (No 2) [2015] FCCA 845 at [22]-[23]
Adverse action – cancelling research travel
Dr Salby claims that he was subjected to adverse action because his research travel was cancelled. Dr Salby made an application for approval to undertake travel leave, which was declined. It follows from this that Dr Salby did not have any authorisation to incur the credit card charges in respect of his travelling arrangements. He had no legal right to undertake that travel at University expense. As a result, and putting to one side the wisdom of the cancelation of Dr Salby’s return airline ticket, the cancellation of that travel was neither an injury in his employment or a prejudicial alteration to his employment.
In any event, the decision made by Dr Beggs to decline Dr Salby’s application to undertake the travel was properly based. As noted above, the overwhelming evidence from Dr Poulsen, Dr Beggs and Mr Sprague was that it was unprecedented for an academic to take a period of five weeks travel during a teaching semester. Dr Beggs denies that he made his decision for any impermissible reasons claimed by Dr Salby. It is evident that he made his decision in circumstances where he had formulated in his mind what was likely to be Dr Salby’s teaching load, after giving Dr Salby opportunities to meet with him and having met with the other 35 academics within the Department (other than those on annual leave at the time).
The claim is without substance.
Adverse action – termination
Dr Salby alleges that he was subjected to adverse action by reason of the termination of his employment. The respondents have clear unchallenged evidence of the decision maker, Professor Sachs, whose evidence establishes the reasons for termination of Dr Salby’s employment were based solely on his refusal to teach and to comply with lawful and reasonable directions and for no other reasons. Her evidence in this regard was unchallenged. This claim fails.
Adverse Action – proceedings pending
Dr Salby alleges that he was subject to adverse action because the University terminated his employment on 28 May 2013 in circumstances where proceedings were pending before the Fair Work Commission.
This claim is without substance. The decision maker, Professor Sachs, had no knowledge of the proceedings which Dr Salby had commenced without any prior notice to the University.
Mr Sprague’s evidence is that he cannot recall whether he knew about the FWA Proceedings at the time that Professor Sachs had made the decision to terminate. He did recall that the University obtained some advice about those proceedings, but could not recall when that occurred. In any event, Mr Sprague’s unchallenged evidence was that it was in no way inappropriate for the University to terminate Dr Salby’s employment in the circumstances. Mr Sprague’s view is, in my opinion, correct. On 22 May 2013, when Dr Salby appears to have commenced proceedings under s.372 of the Fair Work Act, Dr Salby well knew that there had been a disciplinary process which had been on foot since early March 2013. Dr Salby was also notified via the show cause letter of 20 May 2013 that his employment was to be terminated on 28 May 2013, subject to any response he might give. There is nothing within the Fair Work Act which prevented the University from proceeding to terminate Dr Salby’s employment in those circumstances. It would appear that Dr Salby engaged in such a process as a device to forestall the outcome of the disciplinary process. Dr Salby could have written to Professor Sachs and requested that he be given an opportunity to be heard and/or for the MIC to be reconvened. He did not take any of these steps.
Dr Salby’s claim fails fundamentally because the fact of the proceedings pending before the Fair Work Commission was not any part of the reasons for Professor Sach’s decision to terminate Dr Salby.
Claim 6 – further adverse action and coercion
Dr Salby claims that the University contravened s.343(1)(a) of the Fair Work Act because he had certain benefits and rights which he has been prevented from exercising. These appear to include:
a)his right to be meaningfully heard;
b)his ability to engage in research communication which was prevented by the cancellation of his travel arrangements; and
c)his right to interact with his student without intervention.
Each of these claims in sub-paragraphs (a) and (b) fails for the same reasons as given above.
The claim in sub-paragraph (c) is unclear. Dr Salby points to no workplace right he had to interact with his PhD student. Therefore there was no workplace right the breach of which was actionable as an adverse action. Even if he had such a right, the reason why he was unable to interact with his student as her supervisor was because his employment was suspended for the reasons outlined above. For the same reasons, Dr Salby’s additional claim of coercion pursuant to s.343 of the Fair Work Act also fails.
As to Dr Salby’s further claim that there was a contravention of s.343 of the Fair Work Act because the University allegedly coerced a third party travel provider to cancel his travel arrangements, this claim fails because the cancellation, though unwise and unhelpful, was not the removal of a workplace right.
Claim 7 – adverse action based on political opinion
a)Dr Salby claims that the University contravened s.351 of the Fair Work Act by engaging in certain conduct by reason of his “political opinion”. The alleged conduct appears to include:
b)obstructing research communication by sequestering travel resources;
c)demoting his role;
d)sequestering his research facilities;
e)a reduction of his role;
f)interfering with his right to interact with his research student; and
g)termination.
Dr Salby claims that the abovementioned actions were taken because of his political opinion. He claims that this opinion is more than a scientific view, but amounts to a political view as to policy consequences. However, a mere disciplinary or scientific difference of opinion is not itself a political opinion[327]. In the present case, Dr Salby has not established with precision what his political opinion is and that of the other persons who made decisions that he claims amounted to adverse action. For example, the political opinions of Professor Dowton and Professor Sachs were not established. For these reasons alone, Dr Salby’s claim fails.
[327] e.g., see Heathcote v University of Sydney [2014] FCCA 613 at [56]
Moreover, in relation to the matters in (a), the reason why Dr Salby’s travel was declined and cancelled was because he did not have authorisation. This had nothing to do with Dr Salby’s political opinion.
As to the matter in (b) and (d) above, the University denies that Dr Salby’s role was demoted. In any event, as noted above, the workload allocation assigned to Dr Salby had a proper basis, not infected by any impermissible reasons.
As to the matter in (c), it is hard to understand Dr Salby’s case. If this is intended to refer to the availability of the Startup Fund, the overwhelming evidence is that those funds were available to Dr Salby from 2008 onwards until 2012. If, however, this is intended to refer to Dr Beggs’ decision to refuse Dr Salby’s application for travel and later direction to cancel his travel charges, as noted above, Dr Beggs’ decision had a proper basis.
As to the matter in (e), as noted above Dr Salby’s inability to supervise his PhD student arose because of his suspension. The decision to suspend was properly based.
As to the matter in (f), as noted above, the decision to terminate Dr Salby’s employment was properly based.
Absence of genuine agreement
Dr Salby claims that his employment could not be subject to the 2009 and 2011 EBAs because he had failed to provide “genuine agreement”. He also claims that he should have been offered an opportunity to consider an amended Enterprise Agreement and participate in its bargaining. He further claims that he should have been offered an Individual Flexibility Agreement (IFA) that reflected the provisions in the Unregistered AWA.
All of these claims are misconceived and have not been properly pleaded, but only noted in Dr Salby’s opening Points of Claim filed on 22 May 2014.
The claim based on an absence of a genuine agreement and a missed opportunity to participate in its bargaining are misconceived. The concept of genuine agreement and bargaining relate to the preapproval steps in relation to the making of an enterprise agreement pursuant to Part 2-4 (Division 2 and 3) of the Fair Work Act. Once an agreement is made and approved by the Fair Work Commission, it binds all current and future employees to its terms as a matter law. There is no need to obtain a genuine agreement of an individual employee or to enable them to participate in bargaining in order for the agreement to apply to their employment.
The claim that Dr Salby should have been offered an IFA under the terms of the EBA is internally inconsistent with Dr Salby’s contention that his employment was not covered by the EBAs. In any event, there was no obligation upon the University to offer such an agreement. Further, such an agreement could not have been identical to the Unregistered AWA because it would then have, in some parts, been inconsistent with the 2009 and 2011 EBAs which would have prevailed over the terms of any such IFA. Finally, an IFA was not requested by Dr Salby and it would not have been permitted to deal with the matters Dr Salby claims under the 2011 EBA.
These belated claims fail.
Other matters - the claim against Dr Beggs
The claims against Dr Beggs are baseless. Dr Salby’s Points of Claim do not clearly articulate which of the various contraventions are ones to which Dr Beggs is alleged to have been an accessory in relation to s.545 of the Fair Work Act or its predecessor under s.665 of the Workplace Relations Act. Given that the proceedings against Dr Beggs are penal in nature, a failure to have properly pleaded these matters is fatal. Further Dr Salby did not make this case out during Dr Beggs’ cross-examination. In these circumstances, Dr Beggs should not be left to guess the case against him. The proceedings against him will therefore be dismissed.
In any event, Dr Salby has not come close to establishing the high threshold of the elements necessary to prove that Dr Beggs was an accessory to any contravention of the Workplace Relations Act or the Fair Work Act.
In Yorke v Lucas[328], Mason ACJ, Wilson Deane and Dawson JJ held at 670 that for a person to be “knowingly concerned in” a contravention, he or she must have “knowledge of the essential facts constituting the contravention” though it need not be proved that the person knew that the matters in question constituted a contravention[329]. It is the combination of accessorial conduct and accessorial knowledge which needs to be established. The knowledge in this regard must be actual, not constructive[330].
[328] (1985) 158 CLR 661
[329] see also Dowling v Kirk [2007] FMCA 2106
[330] Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5; Dowling v Kirk [2007] FMCA 2106 at [33]
In the present case, there has been a failure on Dr Salby’s part to establish he case against Dr Beggs. Dr Salby has not even established that Dr Beggs had knowledge of all of the various workplace rights which Dr Salby alleges or that Dr Beggs engaged in any form of adverse action because of those reasons.
Conclusion
I conclude that Dr Salby has failed to establish any of the elements of his case. It follows that his application should be dismissed and I will so order.
I will hear the parties as to any remaining issues.
I certify that the preceding five hundred and eleven (511) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 February 2016
Affidavit of Andrea Lerche (Lerche), [21]–[23], Annexure ‘ASL-7’ (pages 20-51);
Affidavit of Murry Salby (Salby 1), Annexure C (pages 13–28)
Beggs [6], [7], [27], [29] Annexure ‘PJB-3’ (pages 17-18), ‘PJB-4’ (page 19), ‘PJB-11’ (pages 60-61)
- AGLC
- Salby v Macquarie University & Anor [2016] FCCA 3
- Case
- [2016] FCCA 3
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the respondents had taken adverse action against Salby for making a complaint or inquiry in the course of his employment, and whether the disciplinary process and subsequent dismissal were a sham or pretext for unlawful adverse action. The Court was also required to consider the contractual and consumer protection claims.
Judge Driver found that Salby had not established that the respondents had taken adverse action against him for a proscribed reason under the *Fair Work Act*. The Court determined that the disciplinary process and dismissal were based on genuine concerns regarding Salby's conduct and performance, and that the timing of these events did not demonstrate a causal link to any complaints or inquiries made by Salby. The contractual and consumer protection claims were also dismissed.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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