Sheikholeslami v University of NSW (No.3)
[2008] FMCA 35
•25 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHEIKHOLESLAMI v UNIVERSITY OF NSW (No.3) | [2008] FMCA 35 |
| INDUSTRIAL LAW – Unlawful termination – University suspended and terminated employment of tenured senior lecturer without notice – refusal to accept new undergraduate teaching allocations – serious misconduct justifying immediate dismissal – complaints of harassment, discrimination and victimisation – no ground of unlawful termination found – complaints were not a reason for termination – application dismissed. |
| Federal Magistrates Act 1999 (Cth), ss.14, 18 Sex Discrimination Act 1984 (Cth), s.28A Workplace Relations Act 1996 (Cth), ss.170CK, 170CM, 170CP, 170CQ, 170CR Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Workplace Relations Regulations 1996 (Cth), reg.30CA |
| Ansari v Commonwealth Bank of Australia Ltd [2007] FCA 1908 Attorney-General for NSW v Perpetual Trustee Company (Ltd) (1951) 85 CLR 237 Australian Iron & Steel Pty Ltd v Banovic (1987) 168 CLR 165 Bahonko v Moorfields Community [2005] FCAFC 116 Bahonko v Sterjov [2007] FCA 1244 Brackenridge v Toyota Motor Corp Aust Ltd (1996) 142 ALR 99 Byrnes v Treloar (1997) 77 IR 332 Concut Pty Ltd Worrell (2000) 176 ALR 693 He v Lewin (2004) 137 FCR 266 Kennelly v Incitec Ltd [1998] 1470 FCA Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 North v Television Corporation Ltd (1976) 11 ALR 599 Okere v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 112 Orr v The University of Tasmania (1956) 100 CLR 526 Pepper v Webb [1969] 2 All ER 216 Purvis v State of NSW (2003) 217 CLR 92 Sapula v ResMed Ltd [2007] FCA 438 Travel Compensation Fund v Tambree (2005) 224 CLR 627 University of Wollongong v National Tertiary Education Industry Union [2002] FCAFC 85 Vines v Djordjevitch (1955) 91 CLR 512 Wang v University of NSW [2005] FCA 1040 Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99 |
| Applicant: | ROYA SHEIKHOLESLAMI |
| Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| File Number: | SYG 1404 of 2006 |
| Judgment of: | Smith FM |
| Hearing dates: | 3-7, 10-14 December 2007 |
| Date of Last Submission: | 10 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr A B Gotting |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
ORDERS
The application is dismissed.
Any application by either party in respect of the costs of the substantive application or of any interlocutory application in the proceeding must be made by way of application in a case, supported by affidavit and/or written submissions, which must be filed and served no later than 14 March 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1404 of 2006
| ROYA SHEIKHOLESLAMI |
Applicant
And
| UNIVERSITY OF NEW SOUTH WALES |
Respondent
REASONS FOR JUDGMENT
Dr Sheikholeslami, with justification, regards herself as a person of high distinction in the field of chemical engineering. She also “expected from other people the same opinions and feelings as her own, and she judged of their motives by the immediate effect of their actions on herself.”[i] These, and other personal qualities, produced tensions in her employment as a Senior Lecturer in the School of Chemical Engineering and Industrial Chemistry at the University of NSW. Her ambitions were frustrated when she did not receive accelerated salary increments and promotion to Associate Professorship, which she felt she deserved. She came to believe that she was being bullied, harassed, discriminated against, and victimised by her Head of School and by the Dean of the Faculty of Engineering.
In January 2004, she announced that she would no longer accept allocations of new undergraduate teaching, contrary to a longstanding policy of her School that all academics should combine such teaching with their more prestigious activities of research and postgraduate teaching. She maintained this position through many months, during which the University authorities indicated to her the seriousness of her action, and then brought disciplinary proceedings against her. Eventually, the Deputy Vice-Chancellor suspended her without pay on 27 July 2004, and the Vice-Chancellor terminated her employment on 8 November 2004 with immediate effect.
In her present application under s.170CP of the Workplace Relations Act 1996 (Cth), Dr Sheikholeslami challenges the lawfulness of her suspension and termination, and seeks relief under s.170C.[ii] The fairness of terminating her employment, and of the procedures which were followed, are not matters which arise for my decision. Rather, the following issues must be addressed:
a)Whether Dr Sheikholeslami’s employment was terminated on 8 November 2004 for reasons that did not include “the filing of a complaint” or “the participation in proceedings” against the University involving “alleged violation of laws or regulations or recourse to competent authorities”, nor “recourse to competent administrative authorities”, contrary to s.170CK(2)(e) read with s.170CQ. In particular, by reason of Dr Sheikholeslami raising her concerns within the University or lodging a complaint with the Human Rights and Equal Opportunity Commission.
b)Whether Dr Sheikholeslami’s employment was terminated on 8 November 2004 for reasons that did not include “race, … sex, … mental disability, marital status, family responsibilities, … religion, national extraction or social origin”, contrary to s.170CK(2)(f) read with s.170CQ.
c)If neither a) nor b) are established, what relief should be given to Dr Sheikholeslami under s.170CR(1).
d)Whether Dr Sheikholeslami was on 8 November 2004 guilty of “misconduct of such a nature that it would be unreasonable to require the (University) to continue (her) employment” for an additional 5 weeks, within s.170CM(1)(c).
e)Whether Dr Sheikholeslami was guilty of “wilful, or deliberate, behaviour … that is inconsistent with the continuation of the contract of employment” within Workplace Relations Regulations 1996 (Cth), reg.30CA(1)(a).
f)Whether Dr Sheikholeslami refused “to carry out a lawful and reasonable instruction that was consistent with her contract of employment”, and she has not shown that her conduct was “not conduct that made employment in the period of notice unreasonable”, within reg.30CA(2)(c) read with reg.30CA(3).
g)If neither d) nor e) nor f) are established, what relief should be given to Dr Sheikholeslami under s.170CR(4).
h)Whether, regardless of the above issues, Dr Sheikholeslami’s suspension without pay on 27 July 2004 was a breach of her contract of employment for which she is entitled to relief in this proceeding.
The employment of Dr Sheikholeslami
Dr Sheikholeslami gained her higher qualifications and teaching experience at the University of British Columbia, before applying for a position advertised for ‘Lecturer/Senior Lecturer’ in the School of Chemical Engineering and Industrial Chemistry at the University of NSW. She was initially appointed in June 1996 as a lecturer without tenure, but she accepted an offer of tenure on 16 April 1999, and was promoted to senior lecturer on 1 July 2000. The terms of her employment are to be found in the University’s general terms and conditions of employment, and in relevant industrial instruments which preceded and were replaced by the UNSW (Academic Staff) Enterprise Agreement 2003.
Dr Sheikholeslami has suggested from time to time that, while she was willing to work cooperatively with her academic colleagues in the School and the University, she was free to determine her own workloads in areas of undergraduate and postgraduate teaching, research and scholarly activity, administration and University governance, and associated professional work. However, when pressed in the course of her submissions, she accepted that she was always subject to the lawful directions of her supervising Head of School and his superiors in the performance of her duties. It is undoubted, in my opinion, that ‘an obligation of obedience’ to her appointed supervisors was an essential element in her contract of employment.[iii] In particular, I find that her Head of School was given the authority by the University to give reasonable directions as to the undertaking by Dr Sheikholeslami of teaching activities in relation to undergraduate courses and research. The Head of School was also given authority to delegate rostering and class allocation in relation to such work, and the evidence shows that it was the practice in the School for such allocation to be performed by its Director of Teaching and Learning.
Dr Sheikholeslami’s contractual obligation to undertake a reasonable amount of undergraduate teaching when so directed by the Head of School and his delegates is reflected in key documents which the parties accepted as evidence of, or reflective of, the terms of her employment. Thus:
·The advertised position indicated that “the successful applicant will teach at the undergraduate level and will be expected to develop areas of postgraduate research”.
·The University’s general conditions of appointment when she took up her position described her duties as: “the appointee must undertake such teaching, research, supervisory and other duties, including those of an administrative nature, as may be required by the head of school or the person acting as such for the time being.” [iv]
·A University ‘academic workloads’ policy approved by the Deputy Vice-Chancellor (Academic) on 9 February 2000, listed the various elements included within the work of academic staff, and provided “guiding principles [which] should be recognised by academic supervisors when developing processes for discussing and determining equitable and reasonable workloads”. The policy affirmed “the role of the Head of School as the principal person to deal with workload issues including the allocation of workloads”, while requiring methods for assessing workloads to be developed in consultation with academic staff. The policy suggested that an academic could request a review by the Head of School of a decision affecting their workload, and “if the affected individual remains aggrieved she/he may request that the Dean of the Faculty review the Head of School’s decision”.
·The 2003 Enterprise Agreement described the duties of a senior lecturer generally as: “A Level C academic is expected to make significant contributions to the teaching effort of a department, school, faculty or other organisational unit or an interdisciplinary area. An academic at this level is also expected to play a major role in scholarship, research and/or professional activities.” [v] It defined an academic’s ‘supervisor’ as: “the Head of an academic unit in which the employee is employed, provided that the Vice-Chancellor may delegate in writing, another academic classified at Level C or above to be the supervisor of one or more employees.” [vi]
The evidence of witnesses was that different practices in relation to the allocation of undergraduate teaching were adopted within the University, but that in Dr Sheikholeslami’s School it was the established practice for all academics, at all ranks, to participate in undergraduate teaching. Only unique exceptions had been accepted by the University, such as where an eminent researcher had ‘bought out’ his salary, or where a member of the School assumed University responsibilities outside the School. This evidence included opinions, which I accept, which emphasised the importance of undergraduate teaching in the duties of the academic staff of the School, including Dr Sheikholeslami. Thus:
·Emeritus Professor Wainwright had been a member of the School during a long career at the University, which included the positions of Head of the Departments of Industrial Chemistry and Chemical Engineering, Dean of the Faculty of Engineering, Pro Vice-Chancellor (Research), and Vice-Chancellor. He held the last of these positions from July 2004, and made the decision to terminate Dr Sheikholeslami’s employment. In his affidavit, he said: “I have always regarded one of the primary roles of a Senior Lecturer as lecturing or teaching students (including undergraduate students). Additionally, whilst I was associated with the Faculty, I always regarded it as one of the roles of a Senior Lecturer in the Faculty to supervise the projects of final year undergraduate students.”[vii]
·Professor King had held positions within the Faculty of Biological Sciences, including Head of the School of Biological Science. He held the position of Deputy Vice-Chancellor (Academic) during 2004, and in that capacity supervised the disciplinary procedures concerning Dr Sheikholeslami, including by suspending her employment without pay, appointing an investigation officer, and recommending the termination of her employment to the Vice-Chancellor. In his affidavit, when referring to his opinions upon receiving a complaint from the Dean in March 2004, he said:[viii]
I regarded it as one of the prime roles of an academic to teach undergraduate courses allocated by a faculty or school and that her refusal to undertake any undergraduate teaching for Semester 1 of 2004 was a refusal to perform one of her prime roles. I noted that the Applicant did not have a “research only” position. I regarded the refusal by the Applicant to perform one of her prime roles as a serious matter and as a form of refusing to follow an instruction of the Head of School. I also regarded it as one of the roles of an academic to supervise students completing their Honours year and that her refusal to supervise any [new] students undertaking their Honours year was a refusal to perform one of the roles.
·Professor Parker had been Dean of Engineering at the University of Wollongong, and was Dean of the Faculty of Engineering at UNSW from January 2002. It was his complaint which initiated the disciplinary procedures against Dr Sheikholeslami during 2004. In his affidavit, referring to Dr Sheikholeslami’s letter of 30 January 2004 which I shall describe below, he said:[ix]
I regarded this as a refusal by the Applicant to teach her undergraduate courses. In my view, in her letter of 30 January 2004, the Applicant was seeking to exchange her required workload, such as teaching undergraduate courses, for her voluntary workload, including supervision of postgraduate students and involvement in external bodies. In my view, the Applicant was not entitled to demand such an exchange, let alone proceed on the basis of such an exchange.
·Emeritus Professor Prince was appointed as the investigation officer in relation to the complaint against Dr Sheikholeslami. He had been Head of the Chemical Engineering Department at Sydney University for more than 20 years, and had retired after a distinguished career in Dr Sheikholeslami’s own discipline. His report dated 10 September 2004 contained the conclusion:
I consider that the allegations made against Dr Sheikholeslami which relate to her refusal to undertake undergraduate teaching are proved. I believe that the instruction to undertake undergraduate teaching was a reasonable one, and that Dr Sheikholeslami has presented no substantive reasons not to do the teaching. The wording of the advertisement makes it clear, and indeed it is general Australian universities’ practice, that undergraduate teaching is a core element of an academic’s work. A university unit, in this case the CEIC School, cannot properly function in an environment where academic staff pick and choose what duties they will perform. Dr Sheikholeslami’s actions in this case threaten to undermine the teaching obligations of the School and the authority of the Head of School.
I shall discuss further below the course of the 2004 disciplinary complaint against Dr Sheikholeslami. It sought to implement the procedures of cl.14.2 of the 2003 Enterprise Agreement “for dealing with allegations of misconduct or serious misconduct”. Dr Sheikholeslami does not dispute that these procedures were applicable in relation to her employment, nor that her employment was terminable under cl.14.3(h) “if the Vice-Chancellor determines that the conduct of the employee amounts to serious misconduct”. Termination under disciplinary procedures had previously been provided under the relevant Award. The University’s ‘terms and conditions’ upon which Dr Sheikholeslami had been granted tenured appointment themselves contained the qualification: “appointments with tenure continue, subject to satisfactory performance of duties, until retirement.” It is therefore not claimed by Dr Sheikholeslami that her tenure precluded early termination.[x] Nor is it claimed by the University that it was not bound to follow the disciplinary procedures set out in the Enterprise Agreement before terminating her employment without notice in reliance upon s.170CM(1)(c) of the Workplace Relations Act.[xi]
Before completing this consideration of the relevant terms of Dr Sheikholeslami’s employment, I note that they also provided avenues by which an employee could raise workplace grievances with appropriate authorities within the University, including on a confidential basis. Dr Sheikholeslami was well aware of these, including her right to ask the Dean of her Faculty, and then the Deputy Vice-Chancellor (Academic), to review decisions of her Head of School under a published “staff grievance policy and procedures”. This policy was administered by the University’s Human Resources Department. A separate “staff discrimination and harassment grievance policy and procedures” was administered by a Director of Equity and Diversity, a position held at relevant times by Ms Stoddart, whose evidence impressed me with her commitment to the ideals of that policy. This encouraged staff “to come forward with their grievances in the knowledge that the responsible supervisors will take prompt and effective action to address complaints of discrimination and harassment”. It promised confidential procedures to ensure that grievances were addressed properly, if necessary by referral to the Deputy Vice-Chancellor. Dr Sheikholeslami was reminded of these avenues at various times during her employment, and frequently sought to involve senior officers of the University informally in her concerns. However, she never made any particularised or formal complaint about the discrimination or harassment which she now alleges rendered her dismissal unlawful and justified her refusal to accept new teaching allocations.[xii] I am not persuaded that this was because of a fear of victimisation, particularly taking into account her capacity for personal confrontation which is demonstrated in the evidence before me. Her failure ever to present a particularised complaint under one of these policies supports my doubts as to the credibility of the allegations she has made in this proceeding.
Allegations of sexual harassment in 1999
Dr Sheikholeslami’s affidavit sworn on 30 March 2005 in support of the present application essentially complained about the procedures and merits of the University’s disciplinary proceedings against her during 2004. It gave no particulars of discriminatory reasons which she alleged affected the proceedings, and these allegations emerged in an unsatisfactory manner in her affidavit sworn on 16 October 2006. This impugned the disciplinary proceeding on the ground that it was initiated and informed by the person who became her Head of School in July 2000, Associate Professor Brungs, whose conduct towards her at every point in their dealings was influenced, she claimed, by unlawful discrimination and personal animosity.
In particular, Dr Sheikholeslami attempted to trace the commencement of, and a significant reason for, his animosity to events involving sexual harassment which she claimed occurred in 1999. In her submissions, she suggested that he had been complicit in the sexual harassment, and that his subsequent conduct was designed to remove her from the School as a result of her harassment complaints. Moreover, she sought to implicate all of the other persons involved in the disciplinary proceeding, including the Vice-Chancellor, as participants in this conduct, and thereby to trace an unlawful reason for her termination within s.170CK(2)(f) of the Workplace Relations Act.
She alleged that the sexual harassment came from a senior member of the School who had been assigned as her ‘academic mentor’. His alleged actions were never explained in her affidavit, beyond the statement: “In or about 1999, (the mentor) started to make sexual advances towards me. The sexual advances were both of verbal and physical nature. I found the treatment by (the mentor) unacceptable.” She then “tried to distance myself” from the mentor, and requested the Head of School at that time, Professor Fane, to assign a different person as her mentor. She said that Professor Maria Skyllas-Kazacos then became her academic mentor.
On Dr Sheikholeslami’s own evidence, I would not be satisfied that any actions of the former mentor did occur which could be characterised as improper or unlawful “sexual harassment”, whether according to generally prevailing standards of workplace conduct or according to a definition such as is found in s.28A of the Sex Discrimination Act 1984 (Cth). That definition requires not only that there be an unwelcome sexual advance, but that it should occur “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated”. Dr Sheikholeslami has led no evidence which allows me to form any judgment as to this. On my assessment of her character, it is quite possible that Dr Sheikholeslami misunderstood or overreacted to conduct which was not improper. Her decision at the time of the events, and subsequently, not to make any complaint concerning her former mentor, her failure to detail the alleged conduct in her evidence to the Court, and her inability to give any substance to her present allegation of a ‘cover-up’ of known impropriety, leaves me highly dubious that any sexual harassment by the mentor actually occurred. Rather, it appears to me that Dr Sheikholeslami has found the allegation of sexual harassment one which was convenient to hint at, without proper formulation or foundation, in response to later attempts by University authorities to criticise her own conduct as an employee.
No evidence was presented by Dr Sheikholeslami in her affidavit to show that she gave any information to Professor Fane, or anyone else in the School or University, about the former mentor’s conduct at the time of the alleged events. She presented no sworn evidence from herself nor any other witness to establish that anyone in the School or otherwise connected to the University, whether at that time or subsequently, was ever made aware of particular conduct by her former mentor explaining the change in her mentorship, whether amounting to sexual harassment or otherwise. As I shall indicate, there is evidence that she later gave hints of impropriety to several people, including the Deputy Vice-Chancellor and Vice-Chancellor, but in the circumstances of these communications it was reasonable for the recipients of these hints to treat them as lacking any substance.
In an unsworn statement made to the Human Rights and Equal Opportunity Commission at around the time of her dismissal, and which she attached to her affidavit, she said that her mentor “made sexual advances towards me” after “his girlfriend left him”. Her statement continued:
I tried to keep my distance from him. I asked a very senior female colleague of mine whether she would be willing to become my academic mentor and she accepted. Finally, I decided to formally request a change of mentorship. Early 2000, I approached the Head of the School at the time and indicated to him simply that the senior male mentor “had confused mentorship with something else and that I wanted to formally change mentorship, and instead have the lady colleague as my mentor”. The HOS at the time agreed to do that but suggested that I should keep the matters quiet and hush-hush which I did.
Assuming the truth of this version of events, it seems improbable that Associate Professor Brungs, who was not the Head of School at the time, or any other member of the School or University, was ever given information which might have caused them to believe that there was a scandalous background to Dr Sheikholeslami’s change of mentor. In circumstances where it is clear that Dr Sheikholeslami was notoriously[xiii] prone to strained personal relationships within the School and University, the change of mentorship itself carried no such implication. Moreover, there is no evidence that Professor Fane ever was privy to the details of why Dr Sheikholeslami wanted a change of mentor, nor that he ever communicated his confidential knowledge to anyone, nor that he had any influence or participation in subsequent events leading to Dr Sheikholeslami’s dismissal. He seems to have kept her confidence, since she obtained several academic references from him, and she chose him to speak in her support in 2002 when seeking promotion to associate professor.
There is no suggestion in any of the evidence before me that Professor Fane, or the former mentor himself, had any involvement in, or influence over, the course of events or proceedings leading to the termination of Dr Sheikholeslami’s employment in 2004.
On Dr Sheikholeslami’s own evidence, I find it improbable that any person with involvement in the 2004 disciplinary proceedings had any direct or indirect knowledge of an allegation of sexual harassment against her former mentor which might have influenced their participation or determinations in those proceedings. Moreover, I accept the sworn evidence as to the absence of such knowledge, given by Associate Professor Brungs, Professor Parker, Professor King and Professor Wainwright, and by the witnesses from the University’s Human Resources Department who provided advice and assistance to those persons.
Dr Sheikholeslami sought to elicit reasons for disbelieving their evidence from voluminous correspondence and a multitude of events occurring during her employment between 1999 and 2004. However, she failed to persuade me by any of her points. Indeed, I was left with the strong impression that her case for implicating sexual harassment as a reason for her termination was an artifice of her imagination, without any basis in truth. Thus, dealing with her key allegations:
The teaching assignments for 2000
Dr Sheikholeslami complains that in early 2000 Associate Professor Brungs, who became Director of Teaching and Learning in the School in late 1999, assigned her a teaching load which included undergraduate laboratory supervision in a course co-ordinated by her former mentor, CHEN 3080. In her affidavit, she complained that he did so, notwithstanding that she had told him that she wished to distance herself from the former mentor. In her 2004 complaint to HREOC, she claimed: “Mike Brungs “colluded” in a sexual harassment and insisted and assigned me to work in a vulnerable position as tutor for that senior individual who had sexual interests in me”. She said that when she refused to accept this teaching assignment, “Mike Brungs punished me and put a complaint against me and he was over-ruled at that time but I was told that I had to keep the matter hush-hush”.
In his affidavit, Associate Professor Brungs denied that he was aware that Dr Sheikholeslami wished to distance herself from her former mentor and of the reasons for this. He explained how he had arrived at his teaching assignments for session 1 of 2000 upon an unexceptionable basis, and after allowing consultation. This included assigning to Dr Sheikholeslami some teaching in a course previously conducted by a colleague, Associate Professor Chen, who was due to take maternity leave with twins. He recalled a conversation in which Dr Sheikholeslami objected to her teaching load, and that she attempted to negotiate his assignment of CHEN 3080 so that it would be shared with Associate Professor Chen. She then refused to take any teaching in that course, and he was forced to re-assign the teaching. He said that, when he complained to Professor Fane, he was told that “it’s best to let sleeping dogs lie and go on, because the class has already been allocated and there is no longer a real problem”.
Associate Professor Brungs’ letter of complaint to Professor Fane is dated 8 March 2000, and was responded to by letter of Dr Sheikholeslami dated 15 March 2000. This correspondence confirms his account of events, rather than Dr Sheikholeslami’s present recollections. It is clear that their difference of opinions concerned their respective assessments of their colleagues’ workloads, and that Dr Sheikholeslami sought to justify her refusal to teach solely on the basis that she thought that hers was excessive. There is no suggestion in Dr Sheikholeslami’s letter to Professor Fane that she was objecting to teaching CHEN 3080 upon grounds of sexual harassment, or thought that Associate Professor Brungs was “colluding” in this at the request of the former mentor. Her stated objection was that he had insisted upon his authority to assign teaching, and she complained: “I don’t find Mike’s tone of letter collegial. We are, in my opinion, a group of colleagues working together and taking our share of responsibilities for the mutual goal of advancing the School, the University, and our profession.” Her refusal to acknowledge the authority of a delegate of her supervisor is ominously similar to her later conduct which led to her dismissal in 2004, but it lends no support to her claims that in 2000 Associate Professor Brungs was improperly motivated or influenced when invoking his then responsibilities.
Moreover, Dr Sheikholeslami’s account of a conversation with Associate Professor Brungs in which he overrode her concern about sexual harassment by her former mentor, is also inconsistent with her other evidence suggesting that she had, at most, conveyed a concern about her former mentor only to Professor Fane. On her evidence, when Associate Professor Brungs took up his position as Director of Teaching in late 1999, he “was an Industrial Chemist and prior to that time he had very limited contact with me as I was part of the Chemical Engineering Academics and Chemical Engineering Department”. I consider it improbable that, if Dr Sheikholeslami had been subject to unwelcome sexual advances as she claims, she would have even hinted at this to Associate Professor Brungs at that time.
As with later instances of Dr Sheikholeslami refusing to accept teaching allocations, it is difficult to form a clear conclusion as to her real reasons for her actions in early 2000. These are clouded by her rationalisations of positions which were, I think, largely taken and persisted with for emotional reasons. It is possible to perceive a developing incompatibility with Associate Professor Brungs arising from her intolerance of his authority, which later became acute after he was appointed as the Head of School in July 2000, and after Associate Professor Chen became Director of Teaching. However, I am entirely unpersuaded that anything in the 2000 incident provides evidence implicating sexual harassment, or any other form of unlawful discrimination, in her 2004 dismissal. I accept the evidence of Associate Professor Brungs concerning these events.
The relocated office in 2002
Dr Sheikholeslami submitted that further evidence of Associate Professor Brungs’ complicity in sexual harassment occurred in January 2002, when he notified her that she was required to vacate her office, and to move to a less convenient room on another floor. This rearrangement occurred as a result of the University entering into a special arrangement to provide research facilities to the applicant’s former mentor. Dr Sheikholeslami suggested that she was given unfavourable accommodation because she refused to give way to his sexual harassment, and that Associate Professor Brungs was complicit in this. She provided no evidence to support this serious allegation, but she attempted in cross-examination[xiv] to give a sinister implication to his recollection of a conversation, which he narrated:
She said: “Mike, why should I be forced out of my office?”
I said: “It is up to [the former mentor]. You should talk to him and resolve it with him. If you can do a deal with [him] to change the plans, fine with me. It’s not my position to do that.”
She said: “I can’t ask [him]. [He] is trying to get me to move. Why is [another staff member]’s office to remain and not mine?”
I said: [The other member’s] office was not needed in the development but yours is. According to the plans, you have to go. If you can come up with an alternative option with [the former mentor] then you can work it out.”
I accept Associate Professor Brungs’ evidence, which explained what he meant by “if you can do a deal” in an obvious and innocent way. I accept that the relocation of Dr Sheikholeslami was not a matter over which he had control, and that he took reasonable steps to mitigate the disruption and inconvenience which was suffered by her.
The evidence about the office relocation illustrates, as does the evidence about many other incidents in which Dr Sheikholeslami felt she suffered harassment at the hands of Associate Professor Brungs and other people in the University, that she was frequently incapable of attributing a disinterested motive to any person who did anything contrary to her wishes or interests. The evidence concerning her new office does not, in my opinion, provide support for a conclusion that Dr Sheikholeslami suffered at this time, or at any other time, by reason of sexual harassment or any other unlawful discrimination.
The workplace conflict in 2003
Dr Sheikholeslami relied upon passages in her correspondence during 2004 with the Deputy Vice-Chancellor, Professor King, in support of her suggestion that he was also complicit in suppressing a complaint of sexual harassment, and that this motive provided an unlawful reason for his support for the termination of her employment. She sought to attach notice of her complaint to Professor King, by reason of his supervision of the members of the Human Resources Department who had been involved in a workplace conflict between Dr Sheikholeslami and Associate Professor Brungs in late 2003, and who later assisted Professor Prince in his investigation of the complaints against her in 2004.
Dr Sheikholeslami was on sabbatical leave in session 1 of 2003. At the commencement of session 2, Associate Professor Brungs attempted to arrange a meeting with her, to be attended by the Dean, Professor Parker, and Associate Dean, Professor Hesketh, to discuss her teaching of an undergraduate course in heat transfer, after he had received significant complaints from students of another School. He also wished to discuss her refusal to accept teaching and marking duties given to her by Associate Professor Chen for session 2 of 2003. Dr Sheikholeslami avoided a meeting, and complained to the Dean that he was harassing and defaming her.[xv]
Professor Parker then arranged for her to meet Mr Morris, the Director of Human Resources for the University. She met him on 27 August 2003, in the presence, at her request, of Ms Stoddart. At the meeting, she referred to her past disagreements about teaching assignments, accommodation, promotions, and administrative matters in the School, as providing a history of “harassment”. She suggested that Associate Professor Brungs’s recent attempt to discuss her teaching was another example of harassment. She made no suggestion relating to sexual harassment nor unlawful discrimination, but after Mr Morris left the meeting she referred in conversation with Ms Stoddart to having a “falling out” with a former mentor which she did not want to discuss.[xvi] Ms Stoddart thought that she might have been alluding to sexual harassment, and made attempts at that meeting and subsequently to elicit information or a complaint coming within her responsibilities. However, Dr Sheikholeslami declined to give details or make a complaint, and requested that Ms Stoddart should not “discuss the issue on the other individual that I mentioned to you even with the HR Director”.[xvii] She also declined Mr Morris’s invitations in correspondence to make a complaint under the Universities grievance and discrimination procedures.[xviii]
On their part, Associate Professor Brungs and Professor Parker took no immediate action in relation to their concerns about her teaching and behaviour. These matters then came to a head in 2004.
The correspondence with Professor King in 2004
Professor King’s correspondence with Dr Sheikholeslami during 2004 may be understood against the above background of involvement of his Human Resources Department in 2003. He received a formal complaint from the Dean dated 22 March 2004, that Dr Sheikholeslami was persisting in her refusal to accept new undergraduate teaching in session 1 of 2004. The Dean, Professor Parker, also made other complaints about her teaching and behaviour which he had raised with her. After receiving in May 2004 further information as to teaching loads within the School, Professor King wrote to Dr Sheikholeslami on 29 June 2004, putting the principal complaint to her, and also another complaint that she had travelled overseas from 27 May 2004 to 6 June 2004 without the approval of her Head of School.
Dr Sheikholeslami responded on 6 July 2004, with a ten page, closely typed, defence of her actions. This repeated a general assertion, previously given to the Dean, that she had been “subjected to repeated bullying, harassments, gang-ups, unfair treatments and indeed have felt victimized by this School.” Near the beginning of the letter, she said: “Last year, some communications’ records were cc-ed to the HR and you kindly could access if you wish. There are also other issues that I have kept confidential!” At its end, she said: “Finally, this has been a long letter with many attachments which shows only a glimpse of the misery I have endured. As I mentioned, many things I have tolerated at this School and some of which I have indeed kept confidential. If I want to say or write, there will be volumes!”
On 9 July 2004 Professor King warned her that he considered that the allegations against her were extremely serious, and that they could warrant termination of employment. Before writing this letter, it is possible that he had received advice from within his Human Resources Department that Ms Stoddart thought that she had been alluding to sexual harassment.[xix] In any event, his letter invited clarification. It said:
I note from your response that you deny all of the serious allegations made against you. I also note that you allude to other issues that you have decided to keep confidential at this time. If you have any further information that you believe would assist you in your response to the series of serious allegations against you then I would urge you against withholding such information. By disclosing that information to me you will ensure that it can be considered by me, but kept confidential.”
However, Dr Sheikholeslami’s four page closely typed response dated 15 July 2004 was far from informative. It said only:
There has been enough evidence of harassment, bullying, ganging up, victimization, etc. at this School against me and indeed the faculty should be able to testify to that as any objective person would do. As such there should be no need for me to disclose confidential matters that are very disturbing to me to obtain leniency. However, since you kindly asked and assured me of its confidentiality, I would assert that indeed I have been subject to “many types” of harassments at this School. I certainly do not wish to discuss in writing but I believe that you could surmise the “nature” of what some “other” possible types of harassments might have been. To give you some indication of the type, please kindly note that I had briefly discussed that with the Director of Equity and Diversity Unit and I had requested the matter to be kept strictly confidential. I am respectfully requesting you to please keep that strictly confidential.
Professor King on 27 July 2004 notified Dr Sheikholeslami that she was suspended without pay, and that he had appointed Professor Prince to investigate the complaint further. In the course of that investigation, Professor Prince received written and oral responses from Dr Sheikholeslami, including a document which became ‘attachment 13’ to his report, and which she prepared when requested for details of her alleged harassment. It commenced:
Some examples of harassment and unlawful treatments at the School
Chain emails on a given issue; constant unreasonable and unconstructive criticism; systematic rating down on the basis of personal dislike, lifestyle, ethnicity/origin/racial, religion, gender, marital status, and status as a carer; adverse propaganda; inequitable allocation of resources; victimization because of me expressing dissatisfaction on HOS/School’s practices to the faculty and the university; not following the open reporting policy; defamatory comments; bullying and abuse of power instead of reasoning; threatening gestures; demeaning remarks; unreasonably ignoring the employee; repeated refusal of requests for trips and activities without adequate explanation and suggestion of alternatives; undermining supervision and encouraging ganging up; intentionally excluding me from meetings and committees; sabotaging my intellectual property; undermining my work (supervision, teaching, research, and scholarly) activities; subjecting me to unacceptable practices to get rid of me.
There then followed a narrative of numerous events in the School of which she complained. None of them involved sexual harassment, nor differential treatment of Dr Sheikholeslami on any overt or implicit ground of unlawful discrimination. There was one reference to her former mentor in relation to events of early 2000: “I had reasons not to tutor in a course coordinated by (the name of her former mentor)”. However, this was meaningless to the persons conducting the disciplinary proceedings.[xx]
In my opinion, Professor Prince’s general characterisation of her complaints was correct on the material before him, and I arrive at the same characterisation of them after reviewing the much more extensive material which is now in evidence before me. He said:
These really come down to such things as the different parties having different views as to what was appropriate, acceptable, possible or required in particular instances; or to different assessments of claims. They would in many cases have been exacerbated by her mode of communication as put by the Dean [referring to defects in her communication skills]. A number of these, I understand, have been reviewed formally in the University, but not supported; none would seem to me to be in the nature of harassment against her. They then do not represent any reply to the allegations made: indeed, as said earlier, they would support allegation 3 above, specifically aspect (a) as stated in section B [referring to concerns over her behaviour in the workplace].
Professor Prince reported to Professor King his opinion that the allegations against Dr Sheikholeslami “appear to me fully supported, and there has been no effective reply by Dr Sheikholeslami which would deny any, wholly or in part. The allegations are then in my view proven.”
Dr Sheikholeslami’s response to Professor Prince’s report was dated 17 September 2004. It did not advance any new information about her alleged harassment. After considering it, Professor King recommended on 8 October 2004 that the Vice-Chancellor should terminate her employment, and gave reasons which prima facie addressed the relevant issues in a persuasive manner. He said that he had considered Dr Sheikholeslami’s complaints of harassment given to Professor Prince, and concluded that they “do not raise any issue that would cause me to believe that a requirement to undertake undergraduate teaching or to obtain the Head of School’s approval to travel is unreasonable”.
Professor King had taken up his appointment at the University in March 2004, and there is no evidence of his having any association with any of the members of Dr Sheikholeslami’s School. He has no recollection of ever having met her. He performed his responsibilities under the disciplinary provisions of the Enterprise Agreement with apparent conscientiousness, showing a concern that his decisions were properly informed, and that Dr Sheikholeslami should be able to put forward her case – including on her harassment claims. I have found no evidence that he had knowledge of the claim of sexual harassment which she has now presented to the Court.
Although Dr Sheikholeslami made numerous criticisms of the procedure followed by Professor King, the members of his Human Resources Department, and Professor Prince, these had little substance. In my opinion, they provided no evidence of a secret design to avoid, or cover-up, or retaliate against, her allegations of harassment, as she submitted. In particular, I do not accept her criticism of the selection of Professor Prince as investigator. It was reasonable and appropriate to find an eminent academic who was very experienced in Dr Sheikholeslami’s discipline to conduct the investigation, and to accept his assurance that he was not disqualified by reason of having been a member of a professional committee with her. I note that Dr Sheikholeslami had the opportunity to have the matter fully re-examined by a Review Committee under cl.14.4 of the Enterprise Agreement, but elected not to exercise that right.
I find to be completely without foundation, her submission that Professor King’s actions and determinations taken in the course of the disciplinary proceeding were influenced adversely to Dr Sheikholeslami by the existence of a sexual harassment claim, or by a concern to avoid receiving such a claim.
The correspondence with Professor Wainwright in 2004
Dr Sheikholeslami sought to attach notice of her complaint of sexual harassment to the Vice-Chancellor, Professor Wainwright by reason of his having a long association with her School and acquaintance with her former mentor. She alleged that he deliberately ignored her complaints of harassment which were in the documents which he considered when deciding to terminate her employment, and that his decision was improperly influenced by this association and by a desire to protect her former mentor.
These were serious allegations which were never squarely put to the Professor or the University. They have no foundation in the evidence before me.
I have above found no reason to conclude that anyone associated with the School in 1999, other (possibly) than its then Head, had any knowledge that Dr Sheikholeslami claimed to have been sexually harassed by her former mentor. I accept Professor Wainwright’s evidence that he had no such knowledge.[xxi] Dr Sheikholeslami’s evidence does not persuade me that at any time she, or anyone else, gave him that knowledge.[xxii] On all the evidence before me, she had respect for him, and confidence in his professional support and even friendship, until he was called upon to make the decision which has given rise to this proceeding. She sought his informal advice in 2001 when seeking more laboratory space, and again in late 2002 after being disappointed in her attempts to accelerate her career.
After receiving Professor King’s recommendation, Professor Wainwright held a personal meeting with Dr Sheikholeslami on 8 November 2004, and gave her the opportunity to resign, rather than face termination. I can find nothing in his actions in relation to the decision to terminate her employment which lends any support to an allegation that he was improperly influenced by a concern to avoid an investigation into a sexual harassment claim, or by any other consideration arising from his association with her former mentor.
Dr Sheikholeslami sought to persuade me to reach contrary conclusions, by referring to a statement in her letter to Professor Wainwright dated 21 October 2004, which responded to his letter of 14 October 2004. His letter requested her to elect whether she wished to request that the allegations of serious misconduct be referred to a Review Committee under cl.14.3(d) of the Enterprise Agreement, before they were considered by him. In response, she made no such election, but gave him an eight page closely typed defence of her actions. This contained another recitation of the long history of events in the School which had previously been put to Professor Parker, Professor King, and Professor Prince, and a response to the reasons of Professor King. It commenced:
I have received no support from the School since arriving at UNSW in 1996. I have contributed immensely to teaching, administrative and research activities of the School without even a simple acknowledgement and/or encouragement. I was assigned an academic mentor who had confused mentorship with something else (I do not need to spell these for you, do I?). When it became clear to me, I distanced myself from that person and subsequently I requested change of mentorship which of course did not suit that individual. In the last 4.5 years, I have been subject to most denigrating behaviours and it has been in fact 4.5 years of torture and working under duress which started in early 2000 with Mike Brungs (MB) colluding in a sexual harassment and expecting me to operate in a vulnerable position to an individual who had non-professional interests in me. MB wanted me to replace an individual whom he had exempted for teaching for 11 months with full-pay and allocated her courses to me. I did accept to do all but the one course which was putting me as a tutor in a lab and in a vulnerable position to the person who was coordinating the lab and had non-professional interests in me. Although I had a heavy teaching load and had found a replacement for me to do the lab, MB insisted in me “personally” doing the lab and upon my resistance filed a complaint to the Head of School (HOS) at the time and called is as a “first ultimatum” to me when he did not have any jurisdiction over me. MB was over-ruled by the HOS at the time and that set the scene for my future misery when MB became the HOS in July 2000. …
It was suggested by Dr Sheikholeslami that Professor Wainwright deliberately ignored a complaint of sexual harassment contained in this paragraph, and that he proceeded to terminate her employment for improper reasons which made him also complicit in the harassment. However, I accept Professor Wainwright’s evidence that he did not understand the references to “confused mentorship with something else” and “colluding in a sexual harassment” at the time that he read her letter.[xxiii]
In my opinion, it is understandable that the Vice-Chancellor, when called upon to make a decision on bulky documentation at the end of the process of investigation and report which was shown in the documents before him, would not have dwelt on these parts of Dr Sheikholeslami’s letter, but would have been more concerned to consider her responses to the points made by the Deputy Vice-Chancellor. Ultimately, Dr Sheikholeslami’s conduct appeared to Professor Wainwright[xxiv], as it now appears to me, to amount simply to a clearly unjustified refusal to accept new undergraduate teaching and the authority of her appointed supervisor in relation to teaching allocations. I therefore would not draw any inferences from the fact that he did not more closely examine whether this part of Dr Sheikholeslami’s letter gave information about a sexual harassment claim which she had not previously presented.
After closely observing both Dr Sheikholeslami and Professor Wainwright in the witness box, and after considering all the evidence before me, I am entirely unpersuaded that, in fact, Professor Wainwright was in any way influenced as a result of reading this part of Dr Sheikholeslami’s letter, or as a result of any other knowledge about her allegations of harassment, discrimination or victimisation, when making his decision to terminate her employment. I find positively that he was not so influenced.
Other allegations of unlawful discrimination
Both Professors King and Wainwright gave evidence denying that their actions were influenced by any consideration of Dr Sheikholeslami’s race, colour, sex, religion, marital status, family responsibilities, political opinion, national extraction or social origin. Professor King said he had no knowledge of any of her characteristics in these respects, and could not recall ever meeting her. Professor Wainwright said that he knew she was of Iranian origin and understood that she was unmarried, but denied that he had taken these characteristics into consideration. Neither of these witnesses were challenged in relation to this evidence, and I accept it.
Except in relation to the sexual harassment allegation which I have addressed above, Dr Sheikholeslami did not seek to show that the decision to terminate her employment was made by the relevant decision-maker, nor that it was recommended by his advisors, by conscious or unconscious reference to one of the characteristics referred to in s.170CK(2)(f). Nor did she seek to establish that the disciplinary procedure followed by them, or the termination itself, had a discriminatory operation or effect on her by reason of one of these characteristics. I can find no evidence which would have given any substance to such a case.
Rather, Dr Sheikholeslami sought to relate the initiation of the disciplinary procedure, and therefore its eventual adverse outcome, to the discriminatory prejudices and actions of one person, her Head of School, Associate Professor Brungs over the years prior to 2004. Although it was never clearly articulated, her case was that his prior discriminatory actions explained his responses to her 30 January 2004 letter and her subsequent conduct. She suggested that his unlawful discriminatory prejudices, evidenced in his earlier actions and in some statements to her, led him to initiate and support the disciplinary process, so that the process itself and its outcome are attributable to them. She suggested that her own conduct giving rise to the disciplinary process was attributable to his earlier actions, because it was her response under “duress” as a result of his earlier unlawfully discriminatory actions against her and his prejudiced statements to her.
I consider that there are significant difficulties facing these arguments. Significantly, they do not, in my opinion, survive the test of causation raised by s.170CK(2)(f). As I shall explain further below, Dr Sheikholeslami’s dismissal occurred by reason of her own voluntary and considered actions, and by reason of the independent judgments upon them formed by persons other than Associate Professor Brungs. His involvement in the disciplinary proceedings was too remote to provide anything which could be regarded as a “reason” for Professor Wainwright’s decision to terminate her employment by the University, and a fortiori in relation to any of his dealings with Dr Sheikholeslami in earlier years in relation to other matters.
Moreover, I also find to be factually without foundation, Dr Sheikholeslami’s attempts to attribute unlawful discriminatory reasons to Associate Professor Brungs’ actions which upset her over the years leading to 2004, and to attribute to him general prejudices against her by reason of one or more of the characteristics identified in s.170CK(2)(f). I shall attempt to explain my reasons for this conclusion briefly.
Other than the sexual harassment allegations which I have addressed above, Dr Sheikholeslami’s affidavit of 16 October 2006 contains the following allegations of adverse conduct by Associate Professor Brungs for an unlawful reason.
The 2000 teaching allocation
In relation to Associate Professor Brungs’ 2000 session 1 teaching allocation which I have discussed above, Dr Sheikholeslami alleges a discriminatory reason additional to his complicity in sexual harassment. She now recalls a conversation at that time, in which she objected to “Vicki Chen’s load being transferred to me” on the ground that this gave unfairly advantageous treatment to a married person. She claims that he said: “You can teach more courses, you have no children, no family and no family responsibilities. You have more time. Vicki is pregnant with twins. I know how difficult it is to have twins as my wife had twins.”[xxv]
There is some evidence that Dr Sheikholeslami felt aggrieved about the lighter teaching allocation to Associate Professor Chen in 2000, since her 15 March 2000 letter to Professor Fane contains a reference to “Vicki Chen … being treated especially by Mike Brungs”. There is also evidence that Dr Sheikholeslami was generally hostile to positive discrimination favouring working mothers in relation to maternity leave.[xxvi] However, I can find no support in the contemporaneous correspondence for the suggestion that Associate Professor Brungs was generally predisposed to give more work to unmarried academics of either sex without children. I prefer Associate Professor Brungs’s denial,[xxvii] particularly in the light of the fact that he eventually allocated the teaching declined by Dr Sheikholeslami to a married person with children. As I found above, I prefer generally his account of this event.
Accelerated salary increments
Dr Sheikholeslami recalls conversations in the middle of 2001 concerning her application for Associate Professor Brungs’s recommendation, as Head of School, to her receiving accelerated salary increments:
MB: I have not given accelerated progression to anyone in your rank.
RS: Has anyone in my rank performed as highly as I did? Worked as much as I did and accomplished as much as I did?
MB: You have more time than others, you are not married and have no children and family responsibilities and could work more and produce more than others. Of course you should do more work because you don’t have kids and family.
RS: But Mike, what does not being married and having family have to do with my work and remuneration?
MB: Of course it does. Of course unmarried people have more time and should do more work. Of course people who have no family and kids don’t need as much salary and pay as married people do.[xxviii]
This evidence has an unpersuasive tone of reconstruction. I prefer Associate Professor Brungs’s evidence concerning his likely conversations with Dr Sheikholeslami concerning her applications for accelerated progression in 2001 and in later years.[xxix] I consider it generally improbable that he took into account any irrelevant characteristics of Dr Sheikholeslami. In fact, after consulting the Acting Dean, he recommended on 18 May 2001 that she be given two salary increments. He gave evidence, which I accept, that he was generally reluctant to approve accelerated progression for any academic, and the exceptional nature of this within the University was confirmed in evidence from other witnesses which I accept. It is significant that although Dr Sheikholeslami made known her displeasure at his stated reluctance, and at his later refusal to make such recommendations in 2002 and 2003, she did not at these times allege any unlawful discriminatory reason, and in particular did not allege that his refusal related to her gender or marital status or family responsibilities.
Her contemporaneous complaints about not getting accelerated salary increments, and about not being promoted to associate professor in 2002, were that her achievements as an academic were being overlooked or wrongly assessed. Although she ascribed the adverse decisions of the responsible committees to personal animosity by Associate Professor Brungs and Professor Parker, she did not suggest that they were motivated by any of the discriminatory grounds listed in s.170CK(2)(f). Moreover, on all the evidence before me, I find that these decisions were formed by reference only to relevant considerations by the persons authorised to make them. In relation to his decisions about accelerated progression, Associate Professor Brungs had the support of his Dean and general University practice. The refusal of Dr Sheikholeslami’s 2002 application for promotion to associate professor was made by an independent University committee, upon recommendations of the Faculty promotions committee, in a process which at no stage involved Associate Professor Brungs. Dr Sheikholeslami’s suggestion that he had a sinister influence on the judgments of all these people is absurd.
Allegations of racism
Unrelated to any particular event adversely affecting Dr Sheikholeslami, she claims to recall racist statements by Associate Professor Brungs made in late 2001 and early 2002, concerning Muslims and persons with a Middle Eastern background, and she suggests that this influenced his behaviour towards her generally.[xxx]
Associate Professor Brungs denies all such remarks, and that he has any prejudices against Dr Sheikholeslami by reason of her background characteristics.[xxxi] He points to the fact that his School has many people with diverse religious and racial backgrounds on its staff and as students. He states that he was unaware that Dr Sheikholeslami was a Muslim.
There is no evidence of any contemporaneous objections being taken by Dr Sheikholeslami to any language of Associate Professor Brungs revealing the prejudices now attributed to him, notwithstanding her very fully documented propensity to voice her concerns in letters and emails to him and other persons in the University. She presents no independent corroboration of her claims of racial and religious prejudices.
I accept the evidence of Associate Professor Brungs in response to all these allegations. On all the evidence, I have arrived at an assessment of Associate Professor Brungs’s character which accords with the opinion of Professor Wainwright, that he is a man who “is highly principled, straightforward and fair.”[xxxii] I consider that her evidence in support of these allegations is a construction of Dr Sheikholeslami’s imagination when faced with the need in this proceeding to establish discriminatory treatment having the distinct grounds listed in s.170CK(2)(f).
Imputed mental disability
Dr Sheikholeslami complains in this proceeding that Associate Professor Brungs made remarks to her and to other people which imputed her with mental illness, and suggests that his conduct generally towards her was influenced adversely by that belief.[xxxiii] When opening her case at the commencement of the hearing, she relied upon an allegation of breach of s.170CK(f) in relation to imputed “mental disability” but not “physical disability”.[xxxiv]
There is a documented email exchange with Associate Professor Brungs after a conversation in the Common Room in October 2002, in which Dr Sheikholeslami complained that “you indicated to me that I am sick and I need medical treatment”. She demanded that he should “stop insulting and harassing me”. Associate Professor Brungs responded:
In our discussion yesterday you expressed the belief that I am not treating you fairly and am in fact picking on you and that you are being victimised. This is so far from what I perceive to be the situation that I expressed the opinion that you should seek counselling. I am sorry that I have offended you. My goal is and always has been to work with you to help you achieve your full potential in our school.[xxxv]
In his affidavit, he said:
I did not ever say to the Applicant that she needed ‘psychiatric assessment’. I had said to the Applicant words to the effect that ‘I’m not willing to talk to you alone because you become too emotional. I don’t think it’s an effective means of communication.’ I formed the view that the communication I had with the Applicant was ‘emotional’ in the sense that it was based on broad statements rather than fact and this approach of the Applicant frustrated me.[xxxvi]
Dr Sheikholeslami said in her affidavit: “In order to protect myself, if possible, I tried to restrict my communications with Michael Brungs to email correspondence”. Associate Professor Brungs replied in his affidavit: “Given the Applicant’s attitude, I also tried to restrict communications with the Applicant to email correspondence. I formed the view that it became impossible to have a constructive conversation with the Applicant”.[xxxvii]
There is no doubt that by the end of 2002, and after Dr Sheikholeslami had returned from her sabbatical in July 2003, her personal relations with her Head of School had notoriously[xxxviii] become very poor. However, reading Dr Sheikholeslami’s long letters of complaint about harassment, and her other correspondence which is in evidence, it is possible to understand Associate Professor Brungs’s position without attributing to him the unlawful prejudices which are alleged by Dr Sheikholeslami. It is also easy to understand why he revealed a hope that Dr Sheikholeslami might be contemplating “moving on”, at the end of the events in 2003 involving the Human Resources Department which I have sketched above.[xxxix] However, on my assessment of the situation which had developed, I would not draw the inferences of unlawful discrimination nor personal vindictiveness on the part of Associate Professor Brungs throughout her employment, which Dr Sheikholeslami now invites me to draw.
I also would not find support for the allegation of unlawful discrimination in the response of Associate Professor Brungs in February 2004 to a query from an employee of the Human Resources Department, who was advising the Dean on how to deal with new complaints about Dr Sheikholeslami. The employee said: “I also need you to consider whether her behaviour is of sufficient concern that we need to consider directing her to attend for a psychiatric assessment.” Associate Professor Brungs responded: “I do believe that Roya needs psychiatric assessment”.[xl] In fact, no such assessment was ever requested by the University, and I do not accept that Dr Sheikholeslami was at any time treated less favourably by any person within the University, including Associate Professor Brungs, on the ground that she was perceived, whether correctly or incorrectly, to suffer from a mental disability.[xli] I have considered all the evidence listed in paragraph 132(e) of Dr Sheikholeslami’s written submission in reply, which shows that various people in the University had concerns at times about her emotional and abrasive behaviour, but do not accept that this imputed a disability to her, nor that it reflected an irrelevant or discriminatory consideration in relation to their actions.[xlii]
Refusal to accept new undergraduate teaching during 2004
It is now necessary more closely to identify Dr Sheikholeslami’s conduct during 2004 which the University presents to the Court as providing the sole reasons for the termination of her employment, and as justifying a termination having immediate effect.
Despite equivocations which surrounded her initial announcement in her letter of 30 January 2004, and which were maintained in Dr Sheikholeslami’s evidence and submissions to the Court, it was very clear by November 2004 that she had refused to accept any new assignments of undergraduate teaching whatsoever prior to her suspension in July 2004. After that date, and indeed in the Court proceeding, she maintained a position taken in January 2004, which repudiated the terms of her employment which required her to accept assigments. I shall briefly trace the evidence supporting these conclusions, and indicate the many opportunities she had to reconsider her position, and to show a willingness to comply with the lawful directions of her supervisors.
Associate Professor Chen, as the School’s Director of Teaching and Learning sent an email to Dr Sheikholeslami on 8 January 2004, setting out her undergraduate and postgraduate teaching allocations for classes in 2004. Some modifications to this were notified to her on 2 February 2004, and all members of the School were sent an email on 6 February 2004 telling them that “the current teaching allocation is available for your perusal at the bottom of the classlist page” on the School’s internet site. They were invited to notify errors, and told that there could be further changes depending upon the appointment of a new lecturer and unforeseen circumstances.
On 30 January 2004, Dr Sheikholeslami sent a long letter to Associate Professor Brungs, with copies to the Dean, Associate Dean, three Deputy Vice-Chancellors, and the then Vice-Chancellor, Professor Hume. This was headed “Undergraduate Teaching Responsibilities”. Over four closely typed pages, it accused Associate Professor Brungs of never acknowledging her past contributions to teaching and to research. It condemned his refusal to recommend accelerated progression, and criticised his complaint to Professor Fane in February 2000. It suggested that her application for promotion in 2002 had failed because it was not supported by him. It criticised the School because it “has a history of high turn-around” for academics with overseas qualifications and experience, such as herself. Its concluding three paragraphs were:
Furthermore, within this School I have been subjected to harassment of various types, have been victimised, my supervision has been undermined, the progress of my research has been undermined, I have been accused and unfairly treated and subjected to various bullying behaviours; these are just to name a few. As acknowledged by many others, it is truly remarkable that I have been able to perform and produce as much as I have for this university and professional and scientific community despite all the adversities and personal animosities at this School; it certainly confirms my strength of character and resourcefulness.
I have to advise you that my postgraduate teaching and research workload is currently very high and as such I cannot possibly further contribute to the undergraduate teaching of the School as of Session 1, 2004. I am teaching my own postgraduate students, offering postgraduate courses and administering the postgraduate coursework program in addition to carrying out research, writing research proposals, refereed papers and other research activities which include currently having 4 ARC Linkage grants, 1 ARC Discovery grant and 2 internationally competitive grants. To insure that you clearly appreciate my financial contribution and annual dividend to UNSW in return for the meagre annual remuneration of $77,247 that I am currently receiving, I have attached an assessment of the financial contribution of over $300,000 dividend/year from my postgraduate teaching, refereed publications (please see their summary based on category in a table on Page 5 of this letter and their complete list in my attached CV), research workload and contributions to UNSW without any EFTSU income from undergraduate teaching. My attached financial assessment does not even take into account the two new postgraduate students who will be working with me. It does not include the EFTSU income brought in by postgraduate coursework students, and I have not included the research grants in this dividend annual income either. Please refer to the attached spreadsheet on Page 5.
I trust this arrangement should be satisfactory to you. Otherwise, I invite you to please address the matter in writing through formal university and HR channels.
On 19 February 2004, the Vice-Chancellor forwarded the letter to Professor King as ‘Deputy Vice-Chancellor (Academic) – Elect’. He said: “It appears that Dr Sheikholeslami is in continuing dispute with her Head of Department about her contributions to teaching in the Department. I would prefer that such matters are dealt with at the Faculty level, but ask you to maintain a watching brief”. Contrary to Dr Sheikholeslami’s written submissions in reply, I would not read Professor Hume’s letter as suggesting any procedure to be followed, nor as suggesting that Dr Sheikholeslami’s letter did not raise disciplinary concerns.
Meanwhile, Dr Sheikholeslami had refused to confirm with Associate Professor Chen whether she would accept, and teach, any of the allocated undergraduate courses in 2004. She also refused to confirm with the School’s co-ordinator of undergraduate research students that she would accept her assignment of 3 students for that year. She told these people that they should “discuss the matter with the HOS. I have communicated my position with him”. However, she refused to clarify her 30 January letter, when so requested by Associate Professor Brungs in several emails. He ultimately requested, in an email on 6 February 2004: “could you state whether you are unwilling to undertake any teaching beyond a normal teaching load or whether you are unwilling to contribute to the school’s undergraduate teaching program”. She responded on the same day:
I am unable to make things clearer than what I have already written in my letter. Please carefully refer to my letter and the previous email correspondence.
Unfortunately I will not be able to reply further to your emails with this regard as I am unable to add anything further and make things clearer than what is already written in my letter. You are sending me repetitive emails regarding a matter that I have already and clearly addressed in writing to the best of my ability; I have no option but not to reply to your future emails regarding this matter and make sure that I am utilizing my time efficiently for the university.
Please understand that I am sending you this last reply for the very last time with regard to this matter. I appreciate and expect that my common courtesy is reciprocated.
She took the same position in another email sent on 11 February 2004 to Associate Professor Brungs, which she copied to the Dean, the Deputy Vice-Chancellors and the Vice-Chancellor. This responded to a warning by Associate Professor Brungs that he would have no alternative but to seek advice in relation to disciplinary action under the Enterprise Agreement, unless she accepted the allocation of three new 4th year undergraduate honours students. He then transferred the further conduct of the matter to his Dean, as advised by the University’s Human Resources Department.
The Dean of the Faculty, Professor Parker, wrote to Dr Sheikholeslami on 23 February 2004, referring to a number of concerns, including her “apparent refusal” to accept new undergraduate teaching allocations. He said “I urge you to immediately advise your Head of School that you are available for undergraduate teaching and honours supervision in 2004.” He appointed a meeting with her on 1 March 2004 to discuss these issues.
Dr Sheikholeslami’s written[xliii] and oral responses at the meeting were that she was “unable” to “add anything further” to her letter of 30 January 2004.
On 1 March 2004 Dr Sheikholeslami failed to attend to teach her assigned class on the first day of session 1, and Associate Professor Chen took it without notice. Professor Parker noted this in a letter dated 15 March 2004, and told her that he took her earlier communications to be “tantamount to a refusal to undertake teaching duties and supervision of students that are integral to your position of Senior Lecturer”. He referred her to the provisions of cl.14 of the Enterprise Agreement in relation to ‘serious misconduct’, which he had given her, and concluded:
I would ask that you reply by the close of business on Friday 19th March 2004 to my instruction that I put to you once more:
1. That you agree as from 22 March 2004 to teach undergraduate students as allocated to you and as required as part of your duties of Senior Lecturer.
2. That you agree as from 22 March 2004 to supervise the honours students as allocated to you and as required as part of your duties of Senior Lecturer.
Dr Sheikholeslami’s seven page response is dated 19 March 2004. Essentially, she maintained that “my position was final as set out in my letter of Jan 30th”, and complained that the way Associate Professor Brungs had responded was “distracting me from carrying out my UNSW duties”.
In my opinion, she was correctly regarded by Professor Parker as having refused to give the commitments which he had required. He therefore wrote to the Deputy Vice-Chancellor (Academic), Professor King, and made a formal complaint under cl.14.2(c) of the Enterprise Agreement. He noted that Dr Sheikholeslami was not undertaking any of her assigned undergraduate teaching duties nor supervising any new Honours students, and gave his opinion that her behaviour was serious misconduct. He said:
I believe Dr Sheikholeslami to be an excellent Engineer but she has had a number of problems with regard to supervision and teaching in the past. In view of Dr Sheikholeslami’s refusal to work as directed, she leaves me with no choice but to refer the matter to you. An academic staff member’s refusal to undertake a reasonable request to perform teaching simply breaks down the fabric of the Faculty.[xliv]
The carriage of the matter then passed into the hands of Professor King. Some delays occurred while he informed himself as to workload policies and workloads within the School. This information was provided by Associate Professor Brungs in a letter dated 3 May 2004. Although Dr Sheikholeslami criticised aspects of his letter and its enclosures as providing incomplete or inaccurate information, I am not persuaded that it had any material errors. I consider that it supported the judgments which were subsequently made by Professor King, Professor Prince and Professor Wainwright, that the undergraduate teaching which had been assigned to Dr Sheikholeslami at the beginning of 2004 was not unreasonable nor disproportionate in relation to other members of the School.
I find that the undergraduate teaching assigned to Dr Sheikholeslami in 2004 was not unreasonable nor disproportionate nor beyond the terms of her employment, particularly when it is appreciated that it was within Dr Sheikholeslami’s control to limit the amount of her postgraduate teaching and research work. The fallacy in Dr Sheikholeslami’s arguments in paragraph 105(h), (i), (u), and (v) of her written submissions, even if their calculations are correct, is that they incorrectly assume that she was required by the University to undertake all the postgraduate teaching and research work which she preferred to pursue.[xlv] Ultimately, the underlying reason and justification for terminating Dr Sheikholeslami’s employment was that she refused to give undertakings to perform undergraduate teaching, not just that she refused directions to undertake a particular teaching assignment.
Before Dr Sheikholeslami received any notification of the outcome of Professor Parker’s referral to Professor King, she again came into conflict with Associate Professor Brungs, when he refused to sign the usual forms for approval of her travel to a conference in Morocco in late May 2004. She complained about this to Professor Parker, forwarded the forms to him, and requested that “you approve my upcoming travel”.[xlvi] In a letter dated 18 May 2004, he said:
It is my clear understanding that you are not undertaking some of the duties assigned to you, namely teaching duties.
I believe therefore it is appropriate that the Head of School decline permission to travel. It seems strange that you have time to travel but not to teach. My understanding is that you have already undertaken international travel once this session.
I do not believe that you can sustain an allegation of harassment when the Head of School is only acting as he is expected to in the allocation of duties.
May I suggest that if you resume the duties assigned to you then your various request might be processed otherwise matters will take their (slow) course through the Human Resources mechanism.
However, Dr Sheikholeslami maintained that her position in relation to teaching “is and has been clear, firm and unchanged since my letter of January 30, 2004”[xlvii] She ignored Professor Parker’s clear endorsement of the refusal of travel permission by the Head of School, and she travelled to the Morocco conference without the approval of either her Head of School or her Dean. This conduct subsequently became a second ground of serious misconduct which, as I have indicated, was raised by Professor Parker,[xlviii] put to her by Professor King, investigated and upheld by Professor Prince, and accepted by Professor Wainwright as a subordinate ground for termination.
Proscribed discriminatory reasons
I have above identified and made findings on Dr Sheikholeslami’s allegations that her race, sex, imputed mental disability, marital status, family responsibilities, religion, national extraction, or social origin, provided a reason for the termination of her employment, contrary to s.170CK(2)(f). For the reasons given above, I do not accept that at any time throughout her employment Dr Sheikholeslami was treated unfavourably for any such reason by Associate Professor Brungs, nor by any other person who was involved in initiating, conducting, or determining the allegations of serious misconduct against her in 2004. In particular, I do not accept that her gender played any part in bringing about the disciplinary proceeding or their outcome. On my consideration of the evidence, I reject her contention that a past incident of sexual harassment, or any awareness of that incident, or a desire to avoid an awareness of such an incident, played any such part.
I accept that before January 2004 a breakdown had occurred in Dr Sheikholeslami’s personal relationship with the Head of her School, and that many other people in the University probably also had become critical of aspects of her behaviour in the course of her employment. I find it improbable that this was based upon, or influenced at all, by any of her characteristics listed in s.170CK(2)(f), or upon any person having general prejudices against people with any of those characteristics. On my assessment of the evidence, other reasons for the breakdown are manifest, including Dr Sheikholeslami’s personality, her defective communication skills, her intolerance of authority, and her misconceptions as to the terms of her employment.
Moreover, even if any unlawfully discriminatory conduct played a part in the breakdown of Dr Sheikholeslami’s relationship with her School, its effects were remote from the reasons for the termination of her employment. Dr Sheikholeslami’s serious misconduct in denying the authority of her academic supervisors’ directions as to new undergraduate teaching was considered, voluntary, and persistent. I do not accept that she acted under any compulsion or ‘duress’. She is a person of strong character, great intelligence, and wide experience. She made a conscious decision in 2004 to defy her supervisors’ directions when pursuing a workload of her own choosing, taking a gamble that the University would not pursue its disciplinary procedures against her. The procedures were designed, and in her case operated, to exclude irrelevant and extraneous influences on a proper assessment of her conduct. The outcome of the disciplinary proceeding occurred by reason of her own actions only.
I therefore find that the termination of Dr Sheikholeslami’s employment did not occur for a reason proscribed under s.170CK, and I am not satisfied that the University contravened that section.
She is therefore not entitled to any relief under s.170CR(1), and issue c) does not need to be further addressed.
Issues d), e) and f) – misconduct justifying immediate termination
These issues address whether Dr Sheikholeslami’s employment was terminated in breach of s.170CM of the Workplace Relations Act, which is designed to ensure that employees are given a statutory period of notice before their employment is terminated, or are given compensation in lieu thereof. It is agreed in her case that the statutory period was five weeks and that she has not received compensation in lieu. The section allows these requirements to have been foregone, if the employer establishes that the employee was guilty of serious misconduct as defined in the section and the regulations.[lvi] The court itself determines the existence of such misconduct, and is not restrained by the extent to which the employer was aware of the conduct or relied upon it when terminating the employment.[lvii]
The relevant parts of s.170CM and Workplace Relations Regulation 30CA are:
170CM Employer to give notice of termination
(1)Subject to subsection (8), an employer must not terminate an employee’s employment unless:
(a)the employee has been given the required period of notice (see subsections (2) and (3)); or
(b)the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or
(c)the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice (see subsection (7)).
…
(7)Without limiting the generality of the reference to serious misconduct in paragraph (1)(c), the regulations may identify:
(a) particular conduct; or
(b) conduct in particular circumstances;
that falls within that reference.
…
30CA Required period of notice – exception for serious misconduct
(1)For paragraph 170CM (1) (c) of the Act, serious misconduct includes:
(a)wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
(b) …
(2)For subregulation (1), conduct that is serious misconduct includes:
(a) …
(b) …, or
(c)the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(3)Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(4) …
I find that the University has established that Dr Sheikholeslami was guilty of serious misconduct falling within the description in s.170CM(1)(c). This provision reflects the common law, by which an employer is entitled to dismiss an employee without notice, if the employee disregarded or repudiated an essential condition of the contract of services.[lviii] I have found above that it was an essential condition of Dr Sheikholeslami’s employment that she should undertake such teaching, including undergraduate teaching, as was reasonably directed by her academic supervisors. In my opinion, her conduct during 2004, which I have described above, showed unequivocally that she declined to accept and comply with this condition. In the circumstances, I consider that it would have been unreasonable to have required the University to have continued her employment after the decision to terminate it was made.
Dr Sheikholeslami’s attempted justification of her conduct reflected serious misapprehensions as to the terms of her employment. In my opinion, the terms did permit her academic supervisors to make undergraduate teaching mandatory. The terms did permit them to direct her to attend the workplace for this purpose. They did not allow her to decline to observe reasonable policies and procedures established by her Head of School to assign the teaching of undergraduates to members of the academic staff, including herself. They gave her no right to do this, even where she wished to raise complaints or concerns about the administration of the School or about her workload with higher authorities in the University. They gave her no right to ignore the directives of the Dean of the Faculty, and of the Deputy Vice-Chancellor (Academic), that she should make herself available for new undergraduate teaching assigned to her by her School.
Dr Sheikholeslami attempted to find such rights in some of the provisions of cl.22 of the 2003 Enterprise Agreement. This stated in cl.22.3 that “the allocation of teaching contact hours to an employee will be consistent with a workloads weighting formula as determined by each Academic Unit”. In fact, it seems that no such “weighting formula” had been arrived at in Dr Sheikholeslami’s School for 2004. However, cl.22 does not carry the absurd implication that, in the absence of such a determination, an employee was at liberty to pick and choose what “teaching contact hours” she would accept. At most, the implication is that, until a weighting formula was determined, an employee would not be directed to accept an unreasonable allocation of teaching contact hours. In the present case, I accept the evidence of the University, that none of the commitments in relation to teaching undergraduates, nor in relation to her overall teaching and academic work, which were requested of Dr Sheikholeslami, required her to accept unreasonable teaching contact hours during 2004.
Clause 22.4 of the Enterprise Agreement provided:
An employee may seek to have his/her workload reviewed by raising the matter first through normal University channels and, if unresolved, the matter can be further reviewed by a committee comprising the President, Academic Board or nominee, the Deputy Vice-Chancellor or nominee and the President, UNSW NTEU Branch or nominee.
Dr Sheikholeslami’s reliance on this provision was, in my opinion, misconceived. I cannot read her letter of 30 January 2004, nor any of her subsequent letters, as containing a request for a workload review under the procedures of this clause. Rather, her position was that the workload which she unilaterally decided to adopt for 2004 was manifestly appropriate, and that she would presume that “this arrangement should be satisfactory” to her Head of School. Such a position cannot be reconciled with the procedure suggested in cl.22.4. The provision of a review procedure in relation to workload, or in relation to any other employee concern, must be construed as implying that the employee would continue to work under existing workplace arrangements and in accordance with lawful directions, until and unless they were changed by the employee’s academic supervisors. The position in relation to her workload adopted by Dr Sheikholeslami during 2004 repudiated any such procedure. It did not ‘maintain the status quo’.[lix] It was a position which, as the Vice-Chancellor concluded, was incompatible with the orderly management of the University’s undergraduate teaching responsibilities. It was not justified by cl.22.4 of the Enterprise Agreement.
My above reasoning would also produce findings of ‘serious misconduct’ in terms of reg.30CA(1)(a) read with (2)(c) and (3). There was, on my above findings, a “wilful or deliberate” refusal by Dr Sheikholeslami to comply with any of the instructions given to her during 2004 by her academic supervisors in relation to accepting new undergraduate teaching in both Sessions 1 and 2 of 2004. Those instructions were “consistent with” her contract of employment, and her behaviour was “inconsistent with the continuation” of a contract obliging her to accept such instructions. As with the gardener who refused to plant fuchsias and geraniums when directed, Dr Sheikholeslami’s refusal to accept directions to teach undergraduates was impliedly or expressly a repudiation of fundamental terms of her contract.[lx] In the circumstances, she has not satisfied me that her refusal to comply with the instructions, in particular of Professor Parker on 15 March 2004 and of Professor King on 29 June 2004 and 9 July 2004, was “not conduct that made employment in the period of notice unreasonable”.
I therefore find that the termination of Dr Sheikholeslami’s employment did not involve a contravention of s.170CM.
She is therefore not entitled to any relief under s.170CR(4), and issue g) does not need to be further addressed.
In her written submissions in reply to the University’s written and oral submissions, Dr Sheikholeslami for the first time also sought relief in relation to her termination on 8 November 2004, upon the basis that it involved a breach of the 2003 Enterprise Agreement contrary to s.178 of the Workplace Relations Act (as it then stood), and that it was in breach of her ‘common law contract of employment’. The written submission conceded that relief on these bases had never previously been sought in the proceeding, and suggested that leave to amend should be given. No application for amendment was made in proper form, and there was no affidavit in support which explained the belated raising of these claims. No additional evidence was sought to be led in the substantive proceeding. The written submission suggested that Dr Sheikholeslami’s procedural failings should be overlooked because she has been representing herself. However, she has in the past employed a solicitor in the proceeding, and counsel who settled her written submission has previously appeared for her.
The University opposed any leave to amend being given. It submitted that Dr Sheikholeslami had previously confined her case to the issues which I formulated above in her pleadings, particulars and affidavits, when opening her case at the commencement of the hearing, at the conclusion of evidence eight days later, and in her oral submissions in chief and in reply. It said that it would have wanted to lead further evidence and submissions if leave were granted.
There are many procedural reasons why it is now too late for Dr Sheikholeslami to seek to extend the claims for relief which she has made in this proceeding. However, my short reason for declining to entertain the foreshadowed application for amendments, is that it must fail on its merits. On my findings on the evidence which I have set out above, there was no breach of cl.14 of the Enterprise Agreement, because Dr Sheikholeslami was guilty of “serious misconduct”, as defined in cl.14.0(c)(i) and (ii), justifying termination without notice under that provision. The termination was also justified at common law, since Dr Sheikholeslami’s conduct during 2004 repudiated an essential condition of her employment, requiring her to accept the authority of her academic supervisors to give directions which allocated teaching work which she was required to perform. It would therefore be futile for me to entertain and grant the amendments which are now sought.
Issue h) – no remedy for suspension without pay
Dr Sheikholeslami’s application and amended application sought relief by way of “wages and benefits for the period of “unlawful” suspension “without pay” between July 27, 2004 and November 8, 2004”. The University has contested whether this relief is available in the proceedings, once it has been held that she has not made out any ground of relief available under s.170CR of the Workplace Relations Act. This contention was not developed in the University’s submissions, and I am inclined to consider that a common law claim for breach of contract in relation to the suspension without pay is sufficiently within the ambit of the matter to come within this Court’s ‘accrued and associated’ jurisdictions under ss.14 and 18 of the Federal Magistrates Act 1999 (Cth). I therefore propose to address this claim on the assumption that I have jurisdiction.
Dr Sheikholeslami contends that her suspension without pay was in breach of conditions of her employment arising under the code of disciplinary procedure in the Enterprise Agreement for dealing with allegations of serious misconduct under cl.14.2. The University did not contest that compliance with this procedure was a condition of her employment, nor that an invalid suspension of pay pending termination under that procedure could give rise to relief by way of damages.
Under cl.14.2(b) and (c) an employee’s supervisor may submit a written report of misconduct or serious misconduct to the Deputy Vice-Chancellor after seeking to resolve it “through guidance, counselling, or other appropriate action”. I am satisfied that this occurred in the present case, before Professor Parker made his report of 22 March 2004. Professor Parker had met Dr Sheikholeslami, and had orally and in writing sought to induce her to accept her undergraduate teaching assignments.
Clause 14.2(d) then required the Deputy Vice-Chancellor to consider “whether the allegation is serious and warrants further investigation”. If he did not refer the matter back to the supervisor (as in the present case), he “may initiate the procedures which commence with subclause 14.2.2 below (including subclause 14.2.1 if relevant)”.
Subclause 14.2.1 gave the Deputy Vice-Chancellor a power to suspend the employee:
14.2.1 Suspension with or without pay.
(a) Anytime after an allegation of misconduct or serious misconduct has been received by the Deputy Vice-Chancellor, the Deputy Vice-Chancellor may suspend the employee. Such suspension will be on full pay unless the Deputy Vice-Chancellor considers that there is the possibility of an imminent and serious risk to another person or to the University’s property arising out of the alleged act of misconduct or serious misconduct, or if the Deputy Vice-Chancellor considers that the alleged misconduct or serious misconduct is sufficiently serious to justify dismissal in accordance with subclause 14.6(b).
(b) Where an employee is suspended without pay the following will apply:
(i) where the suspension without pay occurs at a time when the employee is on paid leave of absence the employee will continue to receive salary for the period of leave of absence;
(ii) the employee may engage in paid employment or draw on any recreation leave or long service leave credits for the duration of the suspension without pay;
(iii) the Deputy Vice-Chancellor may at any time direct that salary be paid on the ground of hardship;
(iv) the employee may request that the decision to suspend without pay be reviewed. The review would be conducted by a person chosen by the University from the panel of Chairs who will make a final determination.
(v) any lost salary and other entitlements will be reimbursed if it is ultimately determined that dismissal is not warranted.
(c) During any period of suspension the employee may be excluded from the University, provided that he or she will be permitted reasonable access to the University for the preparation of his or her case and to collect personal property.
The procedure commencing with cl.14.2.2 involved the Deputy Vice-Chancellor putting the allegations to the employee, considering the response, and taking appropriate action, including the referral of the allegation “to a misconduct investigation” by an appointed investigation officer. After considering a report from an investigation officer, the Deputy Vice-Chancellor might himself take limited disciplinary action under cl.14.3(a), or might recommend that the Vice-Chancellor take serious disciplinary action, including termination of employment under cl.14.3(b) to (h). If such a recommendation were made, then the employee had the right to elect to have the allegations fully reviewed by a Review Committee constituted with an independent chair and nominees of the University and the Union, before the Vice-Chancellor made a decision.
In the present case, I have described above how this procedure was followed between March and November 2004. It involved preliminary inquiries by Professor King, the putting of allegations to Dr Sheikholeslami, his determination on 9 July 2004 to appoint Professor Prince as an investigation officer, consideration by him of Professor Prince’s report after receiving further submissions from Dr Sheikholeslami, and his determination on 8 October 2004 to recommend that her employment be terminated by the Vice-Chancellor. Dr Sheikholeslami was then given the option of seeking a full re-hearing by a Review Committee, which she declined, before the Vice-Chancellor made his decision under cl.14.3(h) on 8 November 2004 after receiving her further written and oral submissions.
Meanwhile, the Deputy Vice-Chancellor had purported on 27 July 2004 to exercise his power under cl.14.2.1 to suspend Dr Sheikholeslami without pay. He subsequently made several further decisions declining to alter his suspension. His decision was upheld on 11 November 2004 by an independent Chair, after a review under cl.14.2.1(b)(iv) in a proceeding in which Dr Sheikholeslami was represented by a solicitor.
Dr Sheikholeslami now repeats a contention unsuccessfully made to the independent Chair, that it was not open to the Deputy Vice-Chancellor to have concluded on 27 July 2004 that “the alleged misconduct or serious misconduct is sufficiently serious to justify dismissal in accordance with subclause 14.6(b).”
Clause 14.6(a) required that normally a period of notice must be given “where a decision has been taken to terminate the employment of an employee for … serious misconduct following the procedures outlined in clauses 14.1 to 14.5 of this Agreement”. However, this was qualified by cl.14.6(b):
“(b) The University may terminate without notice the employment of an employee found to have engaged in conduct of a kind envisaged in section 170CM(1)(c) of the Act such that it would be unreasonable to require the University to continue employment during a notice period. In order for such a finding to be made the University must have first followed the procedures outlined in subclause 14.2 to 14.5 of this Agreement.”
Dr Sheikholeslami submits that the reference to cl.14.6(b) in cl.14.2.1(a) picks up the requirement in the second sentence of cl.14.6(b), so that a suspension without pay cannot be imposed before the full disciplinary procedures have been followed.
In my opinion, this construction is clearly not intended under the Enterprise Agreement. The object of the power to suspend without pay is to allow this to occur before the full procedure has been followed, not after it has been completed. This intention is also revealed in the positioning of the power in cl.14.2.1 in the procedural code, in the reference to “including subclause 14.2.1 if relevant” in cl.14.2(d), in the opening words of cl.14.2.1(a): “anytime after …”, and in the terms of the reference to cl.14.6(b). In my opinion, the words “the alleged misconduct or serious misconduct is sufficiently serious to justify dismissal in accordance with subclause 14.6(b)” pick up only the test of seriousness identified in the opening sentence of cl.14.6(b). They make clear that the Deputy Vice-Chancellor can only suspend without pay once his own inquiries have produced sufficient information to allow him to make a preliminary and provisional finding of misconduct justifying termination without notice. However, they do not otherwise confine him procedurally as to any point of time when he is authorised to arrive at that judgment.
I therefore do not accept that Professor King was not authorised under the Enterprise Agreement to consider suspending Dr Sheikholeslami without pay on 27 July 2004.
Nor do I accept that the information before him at that time did not allow him to arrive at a preliminary conclusion that she was guilty of conduct sufficiently serious to justify dismissal without notice. At that date, Professor King had before him the evidence of Dr Sheikholeslami’s disregard of his own direction to her on 29 June 2004 that she accept undergraduate teaching allocations for Session 2 of 2004. This was conduct which she had persisted in despite his reminder to her on 9 July 2004, that her failure to confirm her acceptance “will also result in a decision by me to immediately suspend you without pay in accordance with subclause 14.2.1(a) of the Agreement”. As my reasoning above in relation to the application of s.170CM explains, this conduct was sufficiently serious to justify dismissal without notice. In my opinion, it was well open to Professor King on the material before him on 27 July 2004 to have arrived at his decision to suspend Dr Sheikholeslami without pay.
I am not satisfied that Dr Sheikholeslami has established any entitlement to damages based on breach of the terms of her employment relating to the authority of her employer to suspend her without pay.
Since I have rejected all of Dr Sheikholeslami’s claims for relief, her application must be dismissed.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 25 January 2008
[i] From Jane Austen’s description of Marianne Dashwood in Sense and Sensibility.
[ii] Referring to the numbering and provisions of that Act prior to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth).
[iii] Cf. Attorney-General for NSW v Perpetual Trustee Company (Ltd) (1951) 85 CLR 237 at 249, 269, 299-301.
[iv] ‘General Conditions of Appointment – Associate Lecturers, Lecturers and Senior Lecturers (as at March 1996)’, page 1.
[v] See page 70, in Schedule 4 ‘UNSW Position Classification Standards’.
[vi] Cl.3 at page 2.
[vii] Affidavit sworn 5 December 2006, paragraphs 15, 16.
[viii] Affidavit sworn 5 December 2006, paragraph 21.
[ix] Affidavit sworn 20 December 2006, paragraph 59, see also his evidence on 10.12.07 p.99 line 10-24.
[x] Cf. Orr v The University of Tasmania (1956) 100 CLR 526 at 530.
[xi] Cf. University of Wollongong v National Tertiary Education Industry Union [2002] FCAFC 85, and note c.14.6(b) of the Enterprise Agreement.
[xii] For example, in a ‘private and confidential’ letter to the then Vice-Chancellor, Professor Hume dated 11 February 2003, she made a general assertion: “in the last 2.5 years I have been victimized and the School has undermined all my activities and adversely affected my research”. Her letter expressly said: “this is not a complaint letter and I am not sending this letter for the purposes of conflict resolution.” It made no suggestion of sexual harassment or unlawful discrimination. Dr Sheikholeslami’s account of her subsequent meeting with Professor Hume, in which he reminded her of the proper complaints processes of the University, is in her affidavit of 16 October 2006 at paragraph 95.
[xiii] In support of this finding, having reviewed the evidence relating to Dr Sheikholeslami’s claims of “harassment” by numerous persons on a multitude of occasions which were presented by her to Professor Prince, I find myself in agreement with his conclusions as to her workplace behaviour and relationships under the headings “concerns about her conduct in the workplace” and “harassment claims”. I discuss these findings further below.
[xiv] Transcript 5.12.07 p.61-63, and 6.12.07 p.3-4.
[xv] Her email dated 22 August 2003 at 1.14pm.
[xvi] I prefer the evidence of Ms Stoddart and of Mr Morris as to this meeting, where there are differences with Dr Sheikholeslami’s evidence. It is supported by their notes and the subsequent correspondence and events.
[xvii] Her email to Ms Stoddart of 4 September 2003 at 5pm.
[xviii] Her letters to Mr Morris are dated 10 September 2003, and 14 October 2003.
[xix] This is unclear: compare paragraph 30 of Ms Stoddart’s affidavit of 20 December 2006, and paragraphs 24 and 25 of Mr Morris’ affidavit of 6 February 2007. Ms Stoddart’s note on an email from Mr Morris dated 29 June 2004 tends to confirm her evidence, and see transcript 12.12.07 p.17.
[xx] There is in evidence a document entitled “Response to Prof .Prince’s Statement in Preparation for Meeting on August 25, 2004”, which explained her refusal to teach in 2000 partly because “the lab was being coordinated by an individual who had sexual interest in me and I did not want to work in conjunction with him”. However, on Dr Sheikholeslami’s evidence, this was prepared for her solicitor’s information only, and there is no evidence that it ever came to the notice of Professor Prince, Professor King, or Professor Wainwright (see her affidavit of 16 October 2006, paragraph 187, and exhibit RS48 p.830).
[xxi] His affidavit paragraph 23.
[xxii] In her affidavit in reply of 16 April 2007 paragraph 3, she claims only to have told him at one time that her former mentor “confused mentorship with something else”. This was hardly informative, and was denied.
[xxiii] Transcript 7.12.07 p.66.
[xxiv] Transcript 7.12.07 p.85, and see my discussion below, on the reasons for the termination.
[xxv] Affidavit of 16 October 2006, paragraph 18.
[xxvi] Transcript 12.12.07 p.2 line 45, also p.7 line 40.
[xxvii] His affidavit of 21 December 2006 paragraph 19(l).
[xxviii] Her affidavit paragraph 31.
[xxix] His affidavit paragraph 32(d), and 54-58.
[xxx] Her affidavit paragraphs 42, 55.
[xxxi] His affidavit paragraphs 42, 43, 51.
[xxxii] Professor Wainwright’s affidavit of 5 December 2006 paragraph 20.
[xxxiii] See her affidavit paragraphs 67 and 68.
[xxxiv] The contention in [132] of her written submissions in reply that she also alleges a breach of s.170CK(f) in relation to ‘physical disability’ has no support in the pleadings, particulars, affidavits, or other evidence. She presented in support of her application no evidence that she suffered at the relevant time from any physical disability, nor that this was known or imputed to her by anyone at the University, nor that this was a reason for her termination. The only suggestion that she may have suffered from a physical impairment while employed at the University is in an unverified statement given to NRMA Insurance dated 19 February 2007, which was admitted on the tender of the University, over objection and subject to relevance in relation to damages.
[xxxv] Email of 31 October 2002 at 5.27 pm “re insult”.
[xxxvi] His affidavit paragraph 59(g).
[xxxvii] His affidavit paragraph 68.
[xxxviii] Cf. the noted existence of unspecified “conflicts between the candidate and the present Head of School” in the minutes of the University’s Qualifications Committee, 25 July 2002, which addressed her application for promotion.
[xxxix] His email to Mr Morris dated 28 October 2003.
[xl] Email to Petra O’Neill on 17 February 2004 at 2.38pm.
[xli] My reasoning assumes that s.170CK(2)(f) should be read as encompassing “incorrectly perceived mental disability” as well as “actually suffered mental disability”, although I note that the University submitted to the contrary.
[xlii] Cf. Purvis v State of NSW (2003) 217 CLR 92 at [11]-[14], [224]-[231], [271].
[xliii] In a letter to Professor Parker dated 27 February 2004.
[xliv] Professor Parker to Professor King, dated 22 March 2004.
[xlv] See Professor Parker’s evidence 10.12.07 p.99-100, and Professor Wainwright 7.12.07 p.83.
[xlvi] Her letter is incorrectly dated 19 May 2004, and her letter of 20 May 2004 claims that it was sent on 14 May.
[xlvii] In her letter to Professor Parker dated 20 May 2004.
[xlviii] In an email to Professor King dated 31 May 2004 at 1.32pm, and by letter to Dr Sheikholeslami dated 18 June 2004, to which she responded on 23 June 2004.
[xlix] Other parts of this letter were referred to above. The same statements were made in a letter to Mr Morris also dated 15 July 2004.
[l] Affidavit sworn 5 December 2006 paragraph 67, see also transcript 7.12.07 p.85.
[li] See Bahonko v Sterjov [2007] FCA 1244 at [95]-[103].
[lii] Cf. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515, applied in relation to the “reason” for persecution for the purposes of the definition of “refugee” by Branson J in Okere v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 112 at 117-118. Cf. also Travel Compensation Fund v Tambree (2005) 224 CLR 627 at [55]-[56], and [79]-[81].
[liii] (1987) 168 CLR 165 at 176, also Dawson J at 184.
[liv] As has been held in He v Lewin (2004) 137 FCR 266 at [44] and [70], followed in Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99 at [23]. See also Bahonko v Moorfields Community [2005] FCAFC 116 at [22], Wang v University of NSW [2005] FCA 1040 at [8], Ansari v Commonwealth Bank of Australia Ltd [2007] FCA 1908 at [36], and Sapula v ResMed Ltd [2007] FCA 438.
[lv] Zhang (supra) at [31].
[lvi] The onus of proof on the employer was accepted by the University: see North v Television Corporation Ltd (1976) 11 ALR 599 at 603, and Kennelly v Incitec Ltd [1998] 1470 FCA (Spender J, 29 October 1998), citing Vines v Djordjevitch (1955) 91 CLR 512.
[lvii] Cf. Concut Pty Ltd Worrell (2000) 176 ALR 693 at [27]-[29], [42], [51](5).
[lviii] North v Television Corp (1976) 11 ALR 599 at 609, 616; Brackenridge v Toyota Motor Corp Aust Ltd (1996) 142 ALR 99 at 106-107
[lix] As submitted in Dr Sheikholeslami’s written submissions in reply at [102].
[lx] See Pepper v Webb [1969] 2 All ER 216 at 218 and cf. Byrnes v Treloar (1997) 77 IR 332, and the other authorities cited in Dr Sheikholeslami’s written submission in reply at paragraphs [42] to [64]. Compare the general principles identified in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 at [44].
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