[2009] AIRCFB 368

Download Word Document


AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

DECISION

Workplace Relations Act 1996
s.120—Appeal to Full Bench

University of Western Sydney
v
Prof Richard Fletcher
(C2009/2003)

Educational services

SENIOR DEPUTY PRESIDENT LACY
DEPUTY PRESIDENT IVES
COMMISSIONER ROBERTS

MELBOURNE, 3 JUNE 2009

Appeal against decision [2008] AIRC 895]] of Commissioner Raffaelli at Sydney on 19 December 2008 in matter number DR2008/1378 – right of appeal against an order under the Act – right of appeal against a decision under the Act – right of appeal conferred by dispute settlement process in Agreement – leave to appeal – dispute over application of Agreement – jurisdiction to make orders in determining a dispute over application of Agreement - meaning of “interpretation” of Agreement – meaning of “application” of Agreement – meaning of “operation” of Agreement – construction of Agreement – principles of construction

Introduction

[1] On 19 December 2008 Commissioner Raffaelli published reasons for decision in the matter of Fletcher v University of Western Sydney. 1 The Commissioner simultaneously made orders2 in favour of Professor Richard Fletcher (Prof Fletcher) and against the University of Western Sydney (University). By Notice lodged in the Registry on 7 January 2009 the University applied for leave to appeal against the decision and orders of the Commissioner. The application is made under paragraphs 120(1)(a) and (f) of the Workplace Relations Act 1996 (Act) and challenges the Commissioner’s decision to make orders and his construction of the terms of the University of Western Sydney Academic Staff Agreement 2006-20083 (Agreement).

[2] The issue before Commissioner Raffaelli was whether clause 22 of the Agreement had been correctly applied by the University in dealing with complaints against Prof Fletcher’s conduct in the workplace. The matter came to the Commission through the dispute resolution process under clause 5 of the Agreement and Division 5 of Part 13 of the Act. The Commissioner found in effect that the University, in dealing with the complaints against Prof Fletcher, had failed to correctly apply the provisions of clause 22 of the Agreement in four respects. Commissioner Raffaelli then proceeded to issue an instrument in the following terms as a means of resolving the dispute:

Appeals to Full Bench

[3] The University has applied pursuant to s.120(1)(a) and (f) of the Act for leave to appeal. Section 120(1)(a) makes provision for appeals to a Full Bench of the Commission by its leave against an order made by a member of the Commission. Section 120(1)(f) provides for appeals by leave against a decision of a member of the Commission that the member has jurisdiction or a refusal or failure to exercise jurisdiction. Alternatively, the University seeks leave to amend its Notice of Appeal to include clause 5(11) of the Agreement as a basis of its appeal. Clause 5(11) of the Agreement is in the following terms:

[4] The University lists 12 grounds of appeal which in substance raise two issues for our consideration. The first issue clearly is jurisdictional and that is whether the Commission has any power to make orders in resolving a dispute over the interpretation, application or operation of the Agreement. Effectively the second issue is whether and to the extent that the disciplinary process was flawed, as was found by Commissioner Raffaelli, was the University required to re-start the disciplinary process against Prof Fletcher from the beginning.

[5] As has been indicated the University did not seek to rely on clause 5(11) in its Notice of Appeal. Its primary position is that the Commissioner’s order was made without jurisdiction and ought to be quashed under s.120(7)(a) of the Act. If, as a result, paragraph [70] of the decision was taken to be a recommendation, the University submitted that it could not as such be taken to be an arbitrated decision binding on the parties. The University concedes that Commissioner Raffaelli in the course of his reasoning has made various decisions regarding the interpretation, application and operation of a provision of the Agreement. The findings so made may be characterised as an “arbitrated decision” and bind the parties subject to their rights of appeal as conferred by clause 5(11). In either event, the University contends, the appeal is competent subject only to a grant of leave to amend the Notice of Appeal to include clause 5(11) as a basis for it.

[6] Mr Britt of Counsel for Prof Fletcher submitted that the Commission has no general jurisdiction to hear an appeal in this matter pursuant to s.120(1)(a). He contended that clause 5(11) of the Agreement limits the rights of the parties on appeal to matters which are attended by significant error of fact or law. It was contended that for an appeal against a member of the Commission under the Agreement to be competent it must be shown first that there is an error of law and/or fact and secondly that the error is significant.

[7] In Victoria Police Force v Police Federation of Australia 4 a Full Bench of the Commission, considering an appeal against a decision made under the dispute settlement clause which provided for an appeal subject to leave being granted, said:

[8] We propose to adopt the same course in the instant case. We note however that the right of appeal conferred by clause 5(11) of the Agreement is not constrained or conditioned by a grant of leave. The right of appeal is nonetheless constrained by the Full Bench coming to a belief that there has been a significant error of fact or law in the first instance.

[9] It is evident from the issues raised in the grounds of appeal and the submissions of the parties that the decision under appeal is not entirely of a discretionary nature. In Craig v South Australia 6 the High Court defined jurisdictional error in the following terms:

[10] The University’s grounds of appeal include contentions that the Commissioner in construing the Agreement identified the wrong issues or asked itself the wrong questions or had regard to irrelevant material. Those are issues directly concerned with the Commission’s jurisdiction to arbitrate the dispute and the construction proper of the Agreement. In any event the Agreement confers a right of appeal subject to the existence of significant error of law or fact. We grant leave to the University to amend its Notice of Appeal to include clause 5(11) as a basis for the appeal and, to the extent necessary, we grant leave to appeal. We must therefore determine for ourselves the matters that were before the Commissioner.

Context of the dispute

[11] Prof Fletcher is Professor of Marketing and Head of School of Marketing and International Business, University of Western Sydney, a position he has held since 7 April 2003. On 19 July 2006, the Director of Human Resources wrote to Prof Fletcher informing him that the University was investigating Dr Mary Helou’s complaint against him alleging that she had been subjected to bullying, discrimination, harassment and victimisation. Attached to the letter was a schedule of the allegations. In a written response on 23 July, Prof Fletcher suggested that, as a matter of equity, the University should not proceed with the complaint because of the absence of supporting documentation for 78 of the 84 allegations.

[12] On 4 October 2006 Makinson & d’Apice, lawyers for Prof Fletcher (Lawyers), responded to the schedule of allegations. In their covering letter the Lawyers complained of:

The University responded to the Lawyers in writing noting that it was engaged in a preliminary investigation under clause 35(10) of the Agreement to determine whether the allegations warranted further action. If further action was to be taken Prof Fletcher would be invited to respond to the allegations as then formulated and the matter would proceed under subclauses 35(16) to 35(19).

[13] The University notified Prof Fletcher on 16 November 2006 that the allegations of misconduct or serious misconduct warranted further action and invited the Professor to respond to the allegations within 10 working days. There followed a protracted course of exchange of correspondence between the Lawyers and the University during which Prof Fletcher elected to have the matter formally investigated. On 28 February 2007 the University notified Prof Fletcher’s lawyers that it had appointed Danae Harvey to conduct a formal investigation. Over the course of the year that followed there was a flood of correspondence exchanged between the University and the Lawyers. During that period the University informed the Lawyers of the documents that had been provided to Ms Harvey, arrangements were made for Prof Fletcher to meet with Ms Harvey and the Lawyers had notified the University of the persons whom Prof Fletcher considered should be interviewed by Ms Harvey.

[14] Finally, on 18 February 2008, Ms Harvey furnished her report on the results of the formal investigation. In her report Ms Harvey made findings in respect of the allegations and concluded with a finding that Prof Fletcher had subjected Dr Helou to workplace bullying.

[15] On 25 February 2008 Prof Fletcher invoked the disputes procedure under clause 6(4) of the Agreement. The dispute concerned the formal investigation process, the particulars of which included:

[16] Meanwhile on 13 March 2008, Prof Fletcher made a detailed response to the investigator’s report. Apart from taking issue with the merits of the report the Professor contended that for reasons which he set out in his response the investigation process was fatally flawed. Among the particulars of issues raised were assertions that the investigator failed to give him a proper opportunity to meet the allegations against him, exceeded her brief in making findings and that she had failed to interview key witnesses.

[17] Prof Fletcher’s dispute was escalated through each step in the Agreement’s dispute settlement procedure to the Executive Dean for the College of Business. Following upon Prof Fletcher’s complaint and his initiation of the dispute resolution process the University requested that Ms Harvey conduct further interviews and provide an addendum to her report confining herself to issues of fact. A further issue then arose between the parties about the authority and source of power under the Agreement for Ms Harvey to pursue a further investigation and/or to produce a further report.

[18] By this stage Prof Fletcher concluded that he had exhausted all internal dispute resolution processes and, on 29 May 2008, he applied to the Commission to have a dispute resolution process conducted. In July 2008 Ms Harvey furnished a further report with amended annexures. On 4 August 2008 Prof Fletcher invoked the dispute resolution process again in respect of Ms Harvey’s capacity under the terms of the Agreement to prepare a supplementary report to the investigation she had conducted. The matter of Prof Fletcher’s dispute came before the Commission for conciliation on 4 August 2008 and then again on 10 November 2008 before being listed for arbitration on 11 November 2008. Meanwhile Ms Harvey continued interviewing staff over the objections of Prof Fletcher and, at the University’s request of 12 August 2008, she furnished her final report on 29 September 2008, including details of further consultation with nominated persons and confining her findings to those of fact.

[19] We turn now to consider the two primary issues raised on appeal, namely the Commission’s power to make orders and the construction of the Agreement.

Commission’s power to make orders under Division 5 of Part 13 of the Act

[20] The University contends that the Commission has no power to make orders in the conduct of a dispute resolution process under clause 5 of the Agreement and Division 5 of Part 13 of the Act. The jurisdictional bar is to be found in Division 5 of Part 13. So far as presently relevant that Division provides as follows:

[21] The Agreement does not empower the Commission to make orders in settlement of a dispute over its application. In any event it is clear that s.711(2) is an absolute bar to the Commission making an order. Clause 5 of the Agreement provides that either party to a dispute over the interpretation, application or operation of a provision of the Agreement may refer it to the Commission for conciliation and if necessary, arbitration. Clause 5(9) confers on the Commission the procedural powers in relation to hearings, witnesses, evidence, interim decisions and submissions which it deems necessary to make such dealings effective. Under clause 5(10) the Commission may permit a party to a dispute to be represented through the arbitration process and the parties agree to be bound by the arbitrated decision of the Commission in resolution of the dispute. Clause 5(11) is set out in paragraph [3] above. It provides that the arbitrated decision of the Commission will bind the parties to the dispute.

[22] In our view the Commission, in determining a dispute over the interpretation, application or operation of a provision of the Agreement, is required, in a reasoned decision, to pronounce the true meaning and effect of a provision of the Agreement, determine whether a provision has been applied in accordance with its true meaning and effect or determine the utility of, or the manner in which a provision of the Agreement operates.

[23] An interpretation, normally, is expressed in a general form having general application. An application for interpretation would normally be attended by undisputed facts and involve a construction of the provision about which the parties are in dispute. 8 The parties to the agreement would be bound by the interpretation.

[24] A dispute over the application of a provision of an agreement may involve disputed issues of fact and could raise issues of interpretation of the provision. It involves a process of ascertaining the facts and the application of the terms of the agreement to them. The dispute would necessarily relate to past events. In arbitrating such a dispute the Commission would be concerned with the actions and conduct of the parties involved in the dispute and whether the action and conduct accords with the terms of the provision of the agreement. In other words has the provision been applied according to its terms? In giving a decision in the dispute the Commission would express an opinion as to whether the actions or conduct accords with the provision of the Agreement and whether it has been applied in accordance with its terms. The parties to the dispute would be bound by the arbitrated decision.

[25] A dispute over the operation of a provision of an agreement would involve an issue about the function or utility of the provision; its process or manner of operating. Such a dispute would normally arise independently of any specific act or conduct in respect of the particular provision, but in the context of proposed action or conduct. An example might be the operation of a provision for redundancy in the context of the process of selection for retrenchment. In arbitrating such a dispute the Commission may be required to express opinions about the efficacy of competing programs or processes in terms of the operation of the provision of the Agreement.

[26] The application at first instance sought to have the Commission conciliate and/or arbitrate a dispute over the application of clause 22 of the Agreement. Attempts at conciliation having been unsuccessful the Commissioner, after hearing the parties to the dispute, issued a decision and an instrument titled “Order”.

[27] In the normal course a decision given in arbitration is for all intents and purposes an award. Alternatively it results in an award. There is no reason why an award made in contemplation of the power to arbitrate a dispute by agreement of the parties to be bound by it would not have the force of an order. So much seems to have been determined by a number of Full Bench decisions in the Commission. 9 In each of those cases the Commission was concerned with the question whether a decision of a member of the Commission constituted an order for the purposes of appeal processes. At this point we are not concerned with whether the decision at first instance is an order. The issue here is whether the instrument issued by the Commissioner which bears the heading “Order” is an order.

[28] In Meat & Allied Trades Federation of Australia v Australasian Meat Industry Employees Union 10 a Full Bench of the Commission observed that what constitutes an "order" as that word might appear in legislation “will doubtless vary and will depend upon the specific context in which it appears and the nature and function of the body empowered to make the order”. In Minister for Employment and Workplace Relations v CPSU11 the Full Bench noted that this observation was manifestly correct and adopted it for the purposes of the proceeding there in contemplation. The Full Bench was concerned with a review of the decision of a Commissioner on the application of the Minister under s.114(1) of the Act.

[29] Looked at in the context of Division 5 of Part 13 there can be no doubt in our view about the true character of the instrument that the Commissioner issued under the epithet “Order” - it is an order both in form and substance. And although Prof Fletcher was faintly heard to argue to the contrary he effectively conceded the point. We are satisfied that in making the order the Commissioner exceeded his jurisdiction and for that reason we will quash the order. It seems to us that the instrument cannot stand as a recommendation. None of the parties sought a recommendation and it is not contemplated by the Agreement. It remains for us to consider the issues associated with the Commissioner’s construction of the provision of the Agreement, its application and the effect generally of his decision and findings.

Construction issues

[30] The University advanced 13 numbered grounds of appeal. Leaving aside the overlap or duplication the issues before us are ones of construction and/or application of the Agreement. The first issue is principally one of construction and relates to the Commissioner’s interpretation of clause 22(5) and the extent to which it imposed any obligation on the University to informally resolve issues of possible misconduct before investigating allegations of misconduct and/or serious misconduct. This gives rise to a consideration of the scope and application of clause 22(5) of the Agreement in the context of clause 22(8).

[31] The second matter is an issue of construction and application and concerns the Commissioner’s finding that there was a breach of clause 22(20) by reason of the failure of the investigator to interview persons named by Prof Fletcher. The issues here are the extent to which the Commissioner purported to exercise judicial power in characterising the investigator’s failure as a “breach” of the Agreement and the consequences of that characterisation.

[32] The third issue is one of application and relates to the Commissioner’s finding that the investigator, at the urging of the University, had departed substantially from the process prescribed by clause 22. Finally, the University contended that the Commissioner erred in the interpretation and application of clause 22(9) of the Agreement in that it had no obligation to inform Prof Fletcher that it was relying on that clause to request further reports from the investigator. We consider these issues in turn.

Interpretation and application of clause 22(5)

[33] Clause 22 of the Agreement provides a detailed process for dealing with misconduct. There are 34 subclauses but we need refer to only 15 of them for present purposes:

[34] The matter in dispute before the Commission at first instance was the application of clause 22 of the Agreement. The University contended that the Commissioner erred in his interpretation and application of clause 22(5). Contrary to the Commissioner’s finding, clause 22(5), it was contended, does not require a supervisor to make all reasonable efforts to informally resolve instances of possible misconduct before an investigation into allegations of misconduct and/or serious misconduct. The University submitted that, rather than looking at the terms of clause 22(5) in isolation, it is a matter of identifying the overall purpose of the relevant provisions.

[35] In his decision the Commissioner noted that if an allegation of serious misconduct was made the matter was to be referred immediately to the Executive Dean or Director for preliminary investigation and that the provision for informal resolution was not then available. The Commissioner then found that the University had characterised the allegations against Prof Fletcher as amounting to misconduct or serious misconduct, but that no informal step occurred as envisaged by clause 22(5). The Commissioner formed the view that the University had accepted that there probably were allegations that fell into the category of misconduct and that in the absence of a clear characterisation that some identified allegations were of serious misconduct the informal resolution step ought to have occurred.

[36] The University submits that in construing clause 22(5) and (8) the following practical aspects of the provisions ought to be taken into consideration:

[37] It was argued that:

[38] Prof Fletcher submitted that the Commissioner’s construction and application of clause 22(5) and (6) were consistent with their terms and the terms of clause 22(1) and (2).

[39] The University submitted that the proper approach to construction of the Agreement is to look at the evident purposes of the provisions of it and to read them in a way that gives effect to that purpose. We think that principle dictates however that the starting point in the construction of instruments is the words themselves. The words must be construed according to their ordinary meaning in their immediate context and, having regard to the subject matter, in the context of the Agreement as a whole. 12 Accordingly, clause 22(5) and (8) must be construed in the context of clause 22 and in the context of the Agreement as a whole. Looked at in that context it is manifestly clear that action against an employee for misconduct or serious misconduct can only be taken under clause 22. Clause 22(1) merely reflects the intention of the parties to make provision for a process that is procedurally fair for dealing with both misconduct and serious misconduct. It does not of itself show an intention that misconduct and serious misconduct are to be treated differently.

[40] Clause 22(5) imposes an obligation on a supervisor to make all reasonable efforts to informally resolve instances of possible misconduct by the means specified therein. It neither creates any obligation in respect of actual misconduct nor does it expressly confer any corresponding right to an informal process to resolve instances of possible misconduct. Possible misconduct must mean behaviour or conduct that is capable of being or becoming misconduct. It is conduct or behaviour that may be susceptible to immediate supervisory actions, such as discussion or counselling. The connotation is that the relevant reported or observed conduct or behaviour is minor or petty in nature, or at least not clearly misconduct, but which, if not addressed by the perpetrator, may warrant the supervisor referring the matter to higher authority.

[41] Clause 22(6) imposes on a supervisor an obligation to refer unresolved instances of misconduct to the Executive Dean or Director for preliminary investigation. It seems that at this stage of the process the behaviour or conduct must be capable of being characterised as actual misconduct and not merely possible misconduct.

[42] Allegations of serious misconduct, as defined by clause 22(9), must be referred immediately to the Executive Dean or Director for preliminary investigation under clause 22(8). The clause does not admit of any scope for a matter of alleged serious misconduct to be resolved by informal means, at least in the initial stages.

[43] Commissioner Raffaelli found that allegations of serious misconduct must be referred immediately to the Executive Dean or Director and that informal resolution was not applicable to allegations of that kind. The Commissioner’s finding clearly accords with our construction of clause 22(5) and (8). The Commissioner’s view that the University accepted that some of the allegations fell into the category of misconduct was a view open to him and, in our view, it was plainly correct. The Commissioner’s finding that there was an absence of a clear characterisation that some identified allegations were of serious misconduct, in our view, is not open to challenge. The issue is whether the Commissioner was entitled to conclude from those findings that the informal resolution process should have occurred and that the failure to do so was a matter of substance. The University contends that it is the allegation as a whole that must amount to serious misconduct. We think the University’s major premise in this regard is correct and, to the extent that the Commissioner regarded the matter otherwise, we are satisfied that he fell into error.

[44] On its proper construction clause 22(8) of the Agreement only required that an allegation of serious misconduct be referred immediately to the Executive Dean or Director for a preliminary investigation. The schedule of 83 alleged incidents that was provided to Prof Fletcher as the “Schedule of Allegations” was provided under cover of a letter dated 19 July 2006 stating that the University was conducting an investigation. The alleged incidents included at least some behaviour that would constitute serious misconduct as defined by clause 22(9). The letter required Prof Fletcher to respond to the allegations within 21 days. The alleged incidents ranged over a period of two and a half years. That some of the alleged incidents amount to misconduct or possible misconduct did not require the matter or those matters to be processed separately under clause 22(5). It may well be that if the allegations of incidents occurring over two years earlier had been addressed at an early stage they could have been resolved informally. Unfortunately the alleged incidents were not addressed in their initial stages.

Commission’s power to determine a breach of agreement

[45] The University contended that the Commissioner asked the wrong question in determining that the investigator breached clause 22(20)(c) by failing to interview persons whom Prof Fletcher had named as people to be consulted. Whether there was a breach, the University contended, is a matter for the Court and not within the arbitral power or authority of the Commission.

[46] Clause 22(20)(c) is clearly mandatory and not directory in its terms. It stipulates that a formal investigation “will” consult any persons nominated by the employee. It is common ground that at the time the dispute was notified to the Commission all of the persons who Prof Fletcher nominated had not been consulted in the investigation. It seems to us that the Commissioner was entitled to form a view about the character of the omission in the investigation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power. 13 The University readily concedes that the investigator’s initial report did not comply with the terms of clause 22(20)(c). Its complaint however, apart from the characterisation of the omission as a breach, is that the Commissioner erred in his conclusions on what flowed from the omission in the investigation process.

Application of clause 22

[47] Commissioner Raffaelli held that the subsequent report of Ms Harvey at the University’s instigation was a departure of substance from the clause 22 process. The University contends that there is nothing in clause 22 that prohibited the course that was pursued by Ms Harvey as she was urged to do by the University. We respectfully disagree. While that course is not expressly prohibited it is implicitly denied. This is apparent from a composite reading of clause 22.

[48] The logic and the structure of clause 22 is not immediately obvious and some important aspects of the discipline process are implicit rather than express. Nonetheless we think the purpose and intent of the clause is clear enough. Under clause 22(8) an allegation of serious misconduct is referred to the Executive Dean or Director for the purpose of preliminary investigation. No express provision is made in relation to the process or the conduct of a preliminary investigation in clause 22. It is assumed. Clause 22(10) requires that if, following a preliminary investigation, the Executive Dean or Director believes any alleged misconduct or serious misconduct warrants further action, the employee is to be given a detailed notice in writing and allowed an opportunity to respond within 10 days.

[49] There then follows several clauses that deal with suspension from duty during a preliminary investigation and the process to be followed where the Executive Dean or Director decides, following a preliminary investigation, that there has been neither misconduct nor serious misconduct. Clause 22(18) deals with an admission of misconduct or serious misconduct and the range of penalties that may then be imposed by the University Executive member responsible for employment (Employment Executive member).

[50] Clause 22(19) requires that the Executive Dean or Director who believes there has been misconduct or serious misconduct, which has been denied (implicitly in the preliminary investigation), or to which there is no response, refer the matter to the Employment Executive member. The Employment Executive member is required to advise the employee of an intention to refer the matter to a Misconduct Committee unless the employee elects within five days of the advice to have the matter formally investigated.

[51] Clause 22(20) mandates the process to be followed in the conduct of a formal investigation. Importantly it provides that there be an opportunity for:

[52] Clause 22(21) is concerned with misconduct in research and although not directly relevant to the issue is incidental to the construction of clause 22 as a whole. Under clause 22(22) the Employment Executive member who, following a formal investigation, decides that there has been no misconduct or serious misconduct, is required to advise the employee of that fact. Clause 22(23) to 22(25) concerns misconduct committee proceedings and has no relevance to the current matter as Prof Fletcher elected to have the matter formally investigated.

[53] Although there is no express provision identifying who is to investigate the matter, or for the compilation of an investigation report, or the identity of the person to whom the report is to be directed, it is implicit in clause 22(22) and 22(27) that there is to be a report and that it is to go to the Employment Executive member. We come to deal with the issue of the investigator later in these reasons for decision.

[54] Clause 22(26) requires that the employee be given five working days to respond to the report of the formal investigation. Clause 22(27) requires that the Employment Executive member decide within 10 days of having considered the investigation report and the employee’s response whether there has or has not been misconduct or serious misconduct and the disciplinary action to be taken in the event that there has been. Disciplinary action may be one of censure, demotion or a recommendation to the Vice-Chancellor to terminate the employment.

[55] Clause 22(28) provides that if a recommendation is made to the Vice-Chancellor to terminate the employment of an employee for serious misconduct, the Vice-Chancellor after consideration of the matter may refer it back to the Employment Executive member for action or otherwise terminate the employment of the employee.

[56] Clause 22(29) stipulates that clause 22 does not in any way constrain the University from carrying out other or further investigations relating to the consequences of conduct of an employee or former employee when required in the public interest. Clause 22(30) and 22(31) are of no consequence in the present proceedings.

[57] In its submissions the University conceded that in asking Ms Harvey for further reports it had formed an opinion that her February 2008 report did not comply with the terms of clause 22(20). The University contends that clause 22 does not constrain further investigation and report following a report which does not meet the requirements of clause 22(20). It advances four reasons in support of that proposition. First, the University contends that clause 22(29) expressly provides for further investigations and therefore further reports. Secondly, it was submitted that it is inherent in the role of an investigator to attempt to take into account all relevant information in the matter and that the formal investigation is not complete until such time as each of the requirements in clause 22(20) has been met. Thirdly, even if the investigator is considered to be the decision maker there is nothing as a matter of law precluding a decision maker from remedying any defect in the process. Fourthly, the Employment Executive is not bound to accept all the findings of the investigator.

[58] We reject the University’s first proposition. Clearly clause 22(29) admits of other or further investigations. It does not however, admit of other or further formal investigations. A formal investigation is to be conducted in accordance with clause 22(20). Thereafter all references in clause 22 other than in clause 22(29) are to actions in respect of the “formal investigation”. In clause 22(29) the word “other” suggests something different or additional. “Further” can mean additional or to a greater extent. This suggests investigations other than or further to the formal investigation. Also the other or further investigations are conditioned by the words “relating to the consequences of conduct of an employee or former employee when required in the public interest”. The formal investigation is concerned with establishing the facts pertaining to the alleged misconduct and not the consequences of it. There has been no suggestion of any public interest in the consequences of the conduct of Prof Fletcher. We do not accept that clause 22(29) permitted the University or the investigator to remedy the defects associated with the requirements of clause 22(20) in the way that it purported to do so.

[59] The University’s next point is to the effect that as an investigator Ms Harvey was bound to complete the investigation. Her February report was premature. That was not, the University submitted, a bar to her completing her task by revisiting those aspects of the investigation that were still to be performed and/or removing from the investigation report matters that were beyond the scope of her authority. The answer to this proposition is to be found in the scope of the authority of Ms Harvey to conduct the investigation and her commissions and omissions at the time of her February report. We deal with those issue in answering the next two points that the University makes.

[60] It is next said that the investigator is not the decision maker and even if she were there is nothing in clause 22 that precludes her remedying any defect in the investigation. It is accepted that Ms Harvey was the investigator not the decision maker. The decision was to be made by the Employment Executive member after giving Prof Fletcher an opportunity to comment on the investigation report. Although the Employment Executive was not the investigator in this case there is nothing in the Agreement to preclude that possibility. In fact given the provision in clause 22(21) for the Research Executive member to nominate who should investigate an allegation of misconduct in research, and the absence of any express power of delegation in the Employment Executive’s function, it is implicit in clause 22 that the Employment Executive member has no power or authority to delegate the power to investigate allegations of misconduct or serious misconduct.

[61] The parties to the Agreement must have intended that the Employment Executive member would conduct the investigation her or himself. That is not to say that the Employment Executive could not, as a matter of necessity, authorise another to exercise the power for and on her or his behalf. 14 In the absence of any evidence or argument on the point we are prepared to accept that there is an implied authority. But the authorised investigator, in completing the investigation, was bound to act within the scope of her authority and that she did not do. The investigator did not provide an opportunity:

Furthermore the investigator, contrary to the authority conferred on her to conduct the investigation, made findings that Prof Fletcher had subjected Dr Helou to workplace bullying. In the premises the investigator compromised not only the investigation but also her capacity to conduct a fair investigation and the Employment Executive’s capacity to fairly decide in accordance with clause 22(22) whether there had been no misconduct or serious misconduct before referring the report to Prof Fletcher for a response.

[62] The requirements in clause 22 of the Agreement for a fair and equitable hearing in the investigation of an allegation of misconduct or serious misconduct are imposed on whoever conducts the formal investigation. If the investigator’s omissions and commissions had not involved such fundamental denials of procedural fairness it might have been appropriate to apply the principles enunciated in Minister for Immigration v Bhardwaj 15 and sanction the course that was adopted by the Employment Executive in having Ms Harvey complete the investigation and withdraw her finding of bullying. We consider the requirements of fairness in the investigation have not been fulfilled however, and any endeavour to remedy the situation by continuing the same investigation would be contrary to the purpose and intent of clause 22 of the Agreement.

[63] It is our considered opinion that, upon objections raised by Prof Fletcher about the defects in the investigation and the February 2008 report, clause 22, according to its proper construction and application, required that the Employment Executive assume responsibility himself for the conduct of an investigation into whether Prof Fletcher had engaged in misconduct or serious misconduct as alleged.

Conclusion

[64] We have determined that the Commissioner did not have jurisdiction to make an order in the subject matter that was before him. We have determined also that the Commissioner erred in his conclusion that clause 22(5) required that the allegations of misconduct or serious misconduct be dealt with informally before being referred for a preliminary investigation. Furthermore we are satisfied that the Commissioner’s decision cannot stand as a recommendation. We are satisfied however that the Commissioner reached the correct conclusion about the application of clause 22, albeit for different reasons. The true meaning and effect of clause 22(20) is that the Employment Executive member will conduct a fair and equitable investigation of allegations of misconduct or serious misconduct by providing an opportunity for:

[65] Clause 22 has not been applied according to its terms. In particular, the requirements of clause 22(20) have not been carried out.

[66] Section 120(7) of the Act relevantly provides that, on the hearing of an appeal, a Full Bench may confirm, quash or vary the act concerned. It may also make an order or decision dealing with the subject-matter of the decision or act concerned. We will allow the appeal in so far as it seeks to impeach the Commissioner’s order. An order to that effect will issue separately. We uphold the appeal against the Commissioner’s construction of clause 22(5) of the Agreement. We otherwise dismiss the appeal.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

P Kite SC with B Miles of Counsel for the University of Western Sydney.

A Britt of Counsel instructed by J Baxter for R Fletcher.

Hearing details:

2009.
Melbourne:
March 24.

 1   [2008] AIRC 895.

 2   PR984987.

 3   AG839465.

 4   [2009] AIRCFB 146.

 5   Ibid at [13].

 6   (1995) 184 CLR 163.

 7   Ibid at 179.

 8   See generally Master Builders Association of Victoria v Australian Building Construction Employees and Builders Labourers’ Federation (1981) 54 FLR 358.

 9   See Wright v Australian Customs Service (2002) 120 IR 346, at 351; Woolworths Ltd v Miller (2006) 151 IR 236 at 239; Minister for Employment and Workplace Relations v CPSU [2007] AIRFCB 476, [13]-[14] and cf ASU v Australian Taxation Office (2003) 121 IR 333.

 10   (1991) 39 IR 41.

 11   [2007] AIRFCB 476

 12   Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518; see also United Firefighters’ Union of Australia v Transfield Services Aust Pty Ltd (2007) 167 IR 252, [12].

 13   Re Cram; ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, at 149.

 14   See Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.

 15   (2002) 209 CLR 597.




Printed by authority of the Commonwealth Government Printer

<Price code B, PR986524>