The University of Queensland v Mr Paul Frijters
[2016] FWCFB 6864
•26 SEPTEMBER 2016
| [2016] FWCFB 6864 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Paul Frijters
(C2016/4302)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 26 SEPTEMBER 2016 |
Appeal against decision [2016] FWC 2746 of Commissioner Bissett at Melbourne on 8 June 2016 in matter number C2015/2475; public interest not enlivened; permission to appeal refused.
[1] On 6 July 2016 the Fair Work Commission (the Commission) received an appeal from The University of Queensland (the Appellant) under s.604 of the Fair Work Act 2009 (the Act) against a decision of Commissioner Bissett issued on 8 June 2016 1 (the Decision). The Decision concerned an application by Professor Paul Frijters (the Respondent) for the Commission to deal with a dispute under s.739 of the Act in accordance with The University of Queensland Enterprise Agreement 2010-20132(the Agreement).
[2] The issue of permission to appeal and the appeal were heard on 6 September 2016. At the hearing, Mr Dan Williams, Solicitor appeared with permission for the Appellant, while Ms Katherine Hartigan of Counsel appeared with permission for the Respondent.
[3] For the reasons set out below, we are not persuaded that it is in the public interest to grant permission to appeal nor are we persuaded that there is any other basis for granting permission to appeal. Permission to appeal is therefore refused.
Background
[4] Arising from research undertaken in 2012 which involved Professor Frijters supervising a PhD student in a course of research, Professor Frijters was subject to an investigation regarding allegations of misconduct/serious misconduct under the provisions of Agreement and the Appellant’s research misconduct procedures. In late March 2015 the investigation concluded with the Senior Executive appointed under clause 39 – Misconduct/Serious Misconduct of the Agreement, i.e. the decision maker, determining that Professor Frijters had engaged in misconduct and proposing some disciplinary actions. Professor Frijters subsequently lodged his application under s.739 of the Act. In his application Professor Frijters contended that the Appellant had contravened a number of provisions of the Agreement. Among other things, Professor Frijters sought a discontinuance of the investigation undertaken by the Appellant, including a retraction of the abovementioned findings.
[5] In the proceedings before the Commissioner the Appellant raised a number of jurisdictional objections, including that Professor Frijters had not met the requirements of the dispute settlement procedure in the Agreement or its replacement, The University of Queensland Enterprise Agreement 2014-2017 3(the Replacement Agreement), with the consequence that the Commission did not have jurisdiction to deal with the dispute. The Commissioner was satisfied that Professor Frijters had properly engaged the dispute settlement procedure under the Agreement prior to the approval of the Replacement Agreement, that the Replacement Agreement operated to preserve the procedures of the dispute settlement procedure in the Agreement and that the Commission had jurisdiction to deal with the dispute. The Commissioner further determined that as a result there was no need for her to consider any other jurisdictional objections to the Commission dealing with Professor Frijters’ application raised by the Appellant.
[6] Beyond that, the Decision entailed a number of findings by the Commissioner, the gist of which are reflected in the concluding paragraphs of the Decision which are set out below:
“[374] I am satisfied that there were substantial flaws and a lack of procedural fairness in the process applied to Professor Frijters with respect to dealing with a complaint about the research.
[375] The specific findings are outlined in this decision and are not repeated in full here suffice it to say that there were processes in relation to the appointment of his supervisor and the conduct of the investigation that were not in accordance with the provisions of the 2010 Agreement or the research misconduct procedures.
[376] There were also matters that adversely impacted on the procedural fairness afforded to Professor Frijters.
[377] Finally there was a failure, in reaching a decision as to the findings and penalty, to take into account whether the procedures had been properly applied from early 2013 when the matter first came to the attention of the University.
[378] I am satisfied that the failures in the process, and hence the failure to apply the provisions of the 2010 Agreement properly are such and extend so far back that the entire process, including outcomes, is not reliable. There is no point in the process where it is possible to say that everything before that point in time was reasonable. The process was infected by error from so early on that the fairest thing would be to commence the process from the beginning again.”
The Grounds of Appeal
[7] In its Outline of Submissions, the Appellant characterised its grounds of appeal as falling into the following two broad categories:
(i) the Commissioner adopted erroneous constructions of various provisions of the Agreement and Replacement Agreement; and
(ii) the Commissioner failed to apply correct legal principles in evaluating the arguments and evidence which the Appellant advanced.
[8] More specifically, the Appellant contended inter alia that the Commissioner erred in finding that:
● Professor Frijters had invoked the dispute settlement procedure in the Agreement by sending an email complaining about the way in which the Appellant had followed its disciplinary processes but without formally referencing the dispute procedure itself;
● earlier procedural errors evidenced a failure to provide Professor Frijters with procedural fairness and were inconsistent with authority which required that procedural fairness be judged with regard to the totality of the process;
● the initial investigation had not been commissioned by Professor Frijters then supervisor;
● the Appellant’s research misconduct procedures required Professor Frijters’ supervisor to undertake the investigation;
● the Agreement did not allow for the Appellant to appoint a supervisor for an academic staff member for a limited purpose and without otherwise replacing the staff member’s academic supervisor; and
● the Senior Executive could not properly discharge her role as the decision maker without considering and resolving the procedural errors asserted by Professor Frijters.
Permission to appeal
[9] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. A person aggrieved by a decision may only appeal the decision with the permission of the Commission. There is no right to appeal. Section 604 of the Act provides:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[10] If we are satisfied that it is in the public interest to do so, we must grant permission to appeal.
[11] The test of assessing whether the public interest is enlivened is discretionary, involving a broad value judgement 4. In GlaxoSmithKline Australia Pty Ltd v Colin Makin5, the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[12] Otherwise, the grounds for granting permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused 6.
The Appellant’s case for permission to appeal
[13] In its Notice of Appeal the Appellant contended that it was in the public interest to grant permission to appeal for the following reasons:
● the Decision raised important issues concerning the jurisdiction of the Commission under dispute resolution procedures in enterprise agreements;
● the matter raises important issues in relation to the obligations of procedural fairness and natural justice to be afforded in the conduct of disciplinary proceedings;
● the Decision concerned the proper construction of the Agreement and had the capacity to significantly affect how the Appellant manages its operations;
● the Decision may create uncertainty in respect of past and current disciplinary processes under the Agreement and its predecessor and successor agreements;
● the Decision was unsatisfactory in the way it dealt with the issues raised in the dispute notification and which, unless reviewed, may result in the dispute between the parties remaining unresolved; and
● the Decision manifested a substantial injustice between the parties and was inconsistent with principle, particularly in relation to the approach the Commission should take when considering whether a disciplinary procedure had been conducted in a procedurally fair way.
[14] The Appellant further contended that the cumulative effect of the above considerations was that the Decision was attended by sufficient doubt to warrant reconsideration and that substantial injustice would result if permission to appeal were refused.
[15] At the hearing the Appellant submitted that it was difficult to discern any genuine unfairness, procedurally or otherwise, in relation to the outcome of the investigation regarding Professor Frijters, adding that, subject to the Commission accepting the Appellant’s submission that the Decision was attended by error, this was a relevant consideration regarding the issue of permission to appeal. The Appellant also submitted that the Commissioner’s view “that the fairest thing would be to commence the process from the beginning again” in circumstances where it contended that any new investigation would be an “arid and unsatisfactory process” 7 was another good reason as to why permission to appeal should be granted. Further, the Appellant contended that the question of who is a “supervisor” for the purposes of an investigation could arise under the Replacement Agreement, adding that this consideration also went to the issue of whether or not permission to appeal should be granted. Beyond this, the Appellant referred to the decision in National Tertiary Education Industry Union v Monash University8 which in part considered the issue of who is the supervisor for the purposes of the disciplinary and performance development provisions of the relevant enterprise agreement. That decision, the Appellant argued, indicated that some of the issues raised in the appeal affected other participants in the university sector and was therefore one reason why it was in the public interest to grant permission to appeal.
The Respondent’s case against permission to appeal
[16] The Respondent submitted permission to appeal should not be granted for a number of reasons, including that:
● the Appellant’s submissions lacked detail and failed to particularise with precision the basis upon which it argued that permission to appeal should be granted;
● the appeal did not raise issues of universal or general application concerning the jurisdiction of the Commission under dispute resolution procedures in enterprise agreements;
● as the Agreement ceased to operate in late 2014 there would be a limited number of, if any, other disciplinary proceedings affected by the Decision;
● the Appellant failed to identify both how the Decision manifested a substantial injustice between the parties and how it was inconsistent with relevant principles; and
● the appeal did not challenge all of the Commissioner’s findings or her final conclusion.
[17] At the hearing the Respondent largely reiterated the above reasons, adding there was no utility to the appeal proceeding. The Respondent highlighted that the matters of construction raised by the appeal only related to the Agreement which was no longer operational and that the differences between the relevant provisions of the Agreement and the Replacement Agreement meant that the construction of the Agreement in the Decision was not of ongoing application. The Respondent further highlighted that a number of the Commissioner’s findings are not challenged in the appeal and that these are significant matters which go to the bias of the decision makers and the apprehended bias of the Appellant in relation to the matter. As to the utility of the appeal, the Respondent noted that Professor Frijters had tendered his resignation and that it would take effect in January 2017. The Respondent also noted the Appellant’s submission that its research misconduct procedures could still apply to Professor Frijters after his employment had ceased, contending that this was inconsistent with the Appellant’s Outline of Submissions which stated that those procedures were not relevant to the proceedings. In addition, the Respondent submitted that were those procedures to be applied it would be a new course which fell outside the issues that were before the Commissioner.
[18] In response to a question from the Bench as to whether the possibility that the outcome of the appeal might affect the capacity of both the Respondent and Appellant to obtain research funding engaged the public interest, the Respondent submitted that the outcome of this case did not have general application because of the particular circumstances of the matter. The Respondent did however acknowledge that while the ultimate decision as to merit would have implications for the capacity of the Respondent and Appellant to secure research funding, issues concerning procedural deficiencies did not have any such implications.
Consideration of the issues
[19] The Decision turned on the provisions of the Agreement and the particular facts of the matter. Against that background, in circumstances where the Agreement ceased to operate in late October 2014 and given the differences between the relevant provisions of the Agreement and the Replacement Agreement we are not satisfied that the appeal raises important issues concerning the jurisdiction of the Commission under dispute resolution procedures in enterprise agreements more broadly. The fact that the dispute settlement procedure in Replacement Agreement excludes disputes concerning a determination made under the misconduct/serious misconduct provision of the Replacement Agreement 9 reinforces our view in this regard. As to the issue of academic supervision, we note that there are significant differences between the misconduct/serious misconduct provisions of the Agreement and the Replacement Agreement and how those agreements define the term “supervisor”. In our view, those differences significantly limit, if not remove, the precedent effect of the Decision. Similarly, given that the Agreement no longer operates, we are not satisfied that the Decision has the capacity to significantly affect how the Appellant manages its operations or that it will create uncertainty in respect of past and current disciplinary processes under the Agreement and its predecessor and successor agreements. Together these considerations do not point to it being in the public interest to grant permission to appeal.
[20] The Appellant contended that the Decision manifested a substantial injustice between the parties and was inconsistent with principle. The Appellant did not elaborate as to how the Decision manifested a substantial injustice. As to inconsistency with principle, in support of that contention the Appellant relied on several authorities including the decision in Ainsworth v Criminal Justice Commission (Ainsworth) 10 in which Mason CJ, Dawson J, Toohey J and Gaudron J stated:
“It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.” 11 (Citations not included)
[21] However, in circumstances where some aspects of the Decision relating to procedural fairness are not challenged on appeal, for example, the Commissioner’s finding that the Appellant expressed a concluded view as to the conduct of Professor Frijters to the Brisbane City Council without giving him an opportunity to be heard, it seems to us open to question whether the “decision-making process, viewed in its entirety, entails procedural fairness”. It seems to us that the Commissioner undertook an analysis of the decision making process in its entirety and concluded that it entailed procedural unfairness. We are not persuaded that her approach was inconsistent with principle.
[22] More specifically, coming to a view on that issue in this case entailed the Commissioner balancing any identified procedural flaws in the investigation against the overall opportunity for Professor Frijters to put his case. While individual members of the Bench may have possibly reached a different conclusion on some of the flaws identified by the Commissioner or their significance, this does not of itself mean that the Commissioner erred in making her determinations. In our view, the Commissioner’s finding that overall the procedural flaws she identified in the investigation process undermined the integrity of the outcome of the investigation was a finding reasonably open to her based on the particular circumstances of the matter. Again, this does not point to it being in the public interest to grant permission to appeal.
[23] As to the Appellant’s contention that the Decision, unless reviewed, may result in the dispute between the parties remaining unresolved, we note that the Commissioner determined “that the fairest thing would be to commence the process from the beginning again.” 12 Given that Professor Frijters’ resignation takes effect in January 2017 it was acknowledged at the hearing that any new investigation may not be concluded prior to that resignation taking effect, potentially leaving the issue of whether Professor Frijters’ conduct constituted misconduct/serious misconduct unresolved. We note however that this is does not follow from the Decision. Rather it is a consequence of developments unrelated to the Decision. The possibility that the dispute will remain unresolved for reasons unrelated to the Decision does not of itself enliven the public interest.
[24] For the reasons given we are not persuaded that it is in the public interest to grant permission to appeal. While it is open to the Commission to grant permission where the public interest is not enlivened we are not satisfied that the circumstances of this case warrant the Commission doing so. More specifically, we do not consider that the Decision is attended by sufficient doubt to warrant its reconsideration.
Conclusion
[25] We are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider there to be any other basis to grant permission.
Order
[26] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
D. Williams Solicitor forthe Appellant.
K. Hartigan of Counselfor the Respondent.
Hearing details:
2016.
Brisbane:
September 6.
1 [2016] FWC 2746.
2 AE884208.
3 AE410824.
4 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [6].
5 [2010] FWAFB 5343 at [27].
6 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [7].
7 Transcript at PN39.
8 [2016] FWC 5326.
9 Clause 15 of AE410824.
10 (1992) 175 CLR 564.
11 Ibid at 578.
12 [2016] FWC 2746 at [378].
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