Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2014] FWC 2176 of Vice President Watson at Sydney on 5 May 2014 in matter number DR2008/1166.

Introduction

[1] On 17 January 2008 the appellant in this matter, Dr Fawzy Soliman, made an application to the Australian Industrial Relations Commission (AIRC) under s.709 of the Workplace Relations Act 1996 (WR Act) for the conduct of a dispute resolution process pursuant to clause 10 of the University of Technology, Sydney Academic Staff Agreement 2006 (the Agreement). The dispute in question concerned the decision of the Acting Vice Chancellor of the University of Technology, Sydney (University), Professor Booth, to take disciplinary action against Dr Soliman, who was employed by the University, by way of demoting him from the classification of Senior Lecturer to Lecturer, formally censuring him, and requiring him to be counselled. This disciplinary action was in response to a finding made by a Misconduct Investigation Committee established by the University that Dr Soliman had provided questions and answers to his students which subsequently appeared in an examination which he set for those students.

[2] There was a lengthy adjournment of Dr Soliman’s application after he commenced proceedings in the Federal Court to challenge the validity of the establishment and conduct of the Misconduct Investigation Committee. Those proceedings were unsuccessful. His application was eventually heard in 2010. By this time, the WR Act had been replaced by the Fair Work Act 2009. However by virtue of Schedule 19 of the Fair Work (Transitional and Consequential Amendments) Act 2009, the WR Act continued to apply to his application, with the relevant functions and powers under the WR Act to be exercised by Fair Work Australia (renamed the Fair Work Commission effective from 1 January 2013). Consequently, Dr Soliman’s application was heard by Fair Work Australia, constituted by Vice President Watson.

[3] After disposing of a jurisdictional objection in an interlocutory decision 1, Vice President Watson issued his decision concerning Dr Soliman’s application on 12 November 2010 (First Decision)2. The First Decision contained, in brief summary, the following findings:

• The University’s Misconduct Investigation Committee was entitled to make the findings that it did concerning Dr Soliman’s conduct. 3
• Professor Booth was entitled to reach the conclusions he did concerning Dr Soliman’s misconduct and the disciplinary action to be taken. 4
• Dr Soliman had failed to establish that the actions of the University were inconsistent with the Agreement or were unfair or inappropriate. 5

[4] Dr Soliman then appealed the First Decision under s.120(1)(f) of the WR Act to a Full Bench of Fair Work Australia. The Full Bench (Giudice J, President, Cartwright SDP and McDonald C) issued its decision on 4 March 2011 (Appeal Decision). 6 It found that because the First Decision was not affected by any error indicating a refusal or failure to exercise jurisdiction, or indeed any error at all, no appeal lay under s.120(1)(f) of the WR Act.

[5] Next, Dr Soliman instituted proceedings in the Federal Court seeking judicial review of the First Decision and the Appeal Decision. The Federal Court Full Court (Graham, Logan and Flick JJ) issued its decision with respect to Dr Soliman’s application on 24 October 2012 (Federal Court Decision) 7. The Full Court rejected Dr Soliman’s contentions that there was no evidence to support the findings made in the First Decision concerning his conduct and that even if such conduct had occurred it was not misconduct for the purposes of clause 46.2 of the Agreement. However the Full Court did accept a third argument advanced by Dr Soliman, namely that Vice President Watson had not dealt with a major aspect of his case, which was that the disciplinary action which Professor Booth had decided should be taken against him was harsh and disproportionate to the misconduct he had been found to have engaged in. The conclusion reached by the Full Court concerning this argument was as follows:

“[55] Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error: cf. WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319. Lee, Carr and Tamberlin JJ there concluded:

[21] However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].


[56] In the present proceeding it is concluded that the failure to refer to the submissions relating to mitigating circumstances and the reasonableness of the decision of the Acting Vice-Chancellor is properly to be characterised as a failure on the part of the Vice President to resolve, in accordance with law, the application that had been made.

[57] Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case. Two factors, in particular, dictate the conclusion that the reasons of the Vice President fail to give any real consideration to the submissions advanced on behalf of Dr Soliman as to mitigating circumstances, namely:

● the fact that the findings and reasons provided were written by an experienced, senior member of Fair Work Australia with legal qualifications and a person who had the considerable benefit of written submissions filed by experienced legal practitioners: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [36], [2012] FCA 764; 290 ALR 326 at 337; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37] per Lander, Flick and Jagot JJ;

and, irrespective of any consideration being given to the qualifications and experience of the person who prepared those findings and reasons:

● the fact that any reading of the findings and reasons of the Vice President disclose no real attempt to engage with the submissions being advanced on behalf of Dr Soliman.

The submissions advanced on behalf of Dr Soliman as to mitigating circumstances were not considered by the Vice President. The decision of the Full Bench gives no greater consideration to those submissions. Both the decision of the Vice President and the decision of the Full Bench, it is concluded, should be quashed.”

[6] The order made by the Full Court to give effect to its decision set aside the First Decision and the Appeal Decision, and then provided that “The application be remitted to Fair Work Australia to hear and determine whether the Appellant’s demotion by the Acting Vice-Chancellor was reasonable in the circumstances”.

[7] In accordance with the Full Court’s order, the matter then returned to Vice President Watson. Somewhat surprisingly, although apparently by consent, orders were made permitting the parties to file new evidence and submissions. This resulted in an extensive amount of evidentiary material being placed before the Commission (as it now was) that had not been before it at the first hearing in 2010, as well as submissions that raised arguments that had not been made in the first hearing in 2010, and were therefore not among the arguments which were identified in the Federal Court Decision as not having been dealt with by Vice President Watson in the First Decision. The matter was then re-heard on 26-28 February 2014 (second hearing).

[8] Vice President Watson issued his further decision in the matter (Second Decision) on 5 May 2014. 8 The Second Decision is the subject of this appeal.

The decision under appeal

[9] In the Second Decision, after setting out the history of the matter and summarising the evidence, Vice President Watson summarised the submissions made by the parties in the following way:

“[27] Dr Soliman submits that in all the circumstances the Commission should find that the penalty of demotion was disproportionate to the conduct as found. He described the decision to demote as irrational and unfair. In particular he relies on the contentions made on his behalf in relation to the following:

• The absence of any clear University policy on the issue;

• The permitted discretion allowed to academics with respect to assessment and revision;

• The divergent assessment practices throughout the University;

• The existence of similar practices in other units by other academic staff;

• The previous absence of any interference by the University in relation to assessment and revision practices;

• The lack of any communication or guidance provided to Dr Soliman by the School of Management in relation to the setting of exams and revision classes;

• The lack of any disadvantage to any student;

• His significant employment history and distinguished career;

• The absence of any prior allegations of this nature;

• The discretion given to the University as to penalties;

• The harsh effect of the demotion.

[28] The University submits that the penalty of demotion was reasonable having regard to the severity of the misconduct. In particular it relies on the following considerations:

• The misconduct was of such severity that it brought the University’s reputation and integrity into issue by undermining the examination process;

• The conduct constituted a significant breach of standards expected of a Senior Lecturer;

• Dr Soliman failed to raise any mitigating factors supporting an alternative penalty;

• Dr Soliman does not understand the distinction between revision of concepts and giving students multiple choice questions and answers to be used in a final exam;

• Having regard to the penalties available, the penalty imposed was appropriate and reasonable.”

[10] Vice President Watson then stated his conclusions concerning the matter as follows:

“[29] Reasonableness, as cases of unfair dismissal make clear, is not a technical term. It is intended to apply to a wide range of circumstances. It has been held to be undesirable to redefine or paraphrase the word. Counsel for Dr Soliman accepted the relevance of comments in unfair dismissal cases that the task of assessing the reasonableness of disciplinary action is an objective one and that the tribunal determining the question should not put itself into the shoes of the employer and determine what it would have done in the circumstances. English unfair dismissal cases provide more guidance of the concept to be applied in a corresponding context. For example, in Rolls Royce Ltd v Walpole, the Employment Appeals Tribunal said:

“In a given set of circumstances, it is possible for two perfectly reasonable employers to take a different course of action in relation to an employee. Frequently, there is a range of responses to the conduct or capacity of an employee on the part of the employer, from and including summary dismissal downwards to a mere informal warning, which can be said to be reasonable. It is precisely because this range of possible responses does exist in many cases that is neither for the EAT, nor for an industrial tribunal on the original hearing, to substitute its respective views for those of the particular employer concerned.”

[30] I have had particular regard to the evidence of academics as to the seriousness of the misconduct engaged in by Dr Soliman. I regard the evidence of Professor Booth and Professor Lynch as authoritative and balanced. Both had responsibility for upholding the academic standards of the University. I regarded their analysis of the seriousness of the misconduct as rational, responsible and fair. The detailed evidence of Professor Booth as to the considerations he applied in reaching his decision was not subject to any legitimate criticism.

[31] There can be no doubt that the consequences of the demotion for Dr Soliman were significant. But the notion of an appropriate sanction involves many more considerations and necessarily contemplates personal loss to an appropriate degree. Professor Booth properly considered all of these matters. The assessment process is integral to the teaching and accreditation functions of a University. To damage the confidence in the integrity and rigour of that process strikes at the heart of a University’s reputation and standing. In my view Dr Soliman’s challenge to the gravity of the penalty continues to be heavily influenced by his belief that he is innocent of the charge of misconduct. His view is not consistent with the University’s conclusions or the facts as I have found them. In all of the circumstances I do not believe that the sanctions decided upon by the University were disproportionate to the misconduct found to have occurred or were in any way unreasonable.”

The appeal grounds and s.120(1)(f) of the WR Act

[11] Dr Soliman’s appeal is brought under s.120(1)(f) of the WR Act, which provides:

(1)  Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:

…

(f)  a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act.

[12] In Victoria Police Force v Police Federation of Australia 9 a Full Bench of the AIRC stated that “In our view the terms of s.120(1)(f) indicate an intention on the part of the legislature that an appeal should be available from any decision which involves jurisdictional error”.

[13] The notice of appeal contained 15 grounds of appeal, which we set out in full in the annexure to this decision. During the course of the hearing of the appeal, we invited counsel for Dr Soliman to identify which of the grounds raised a jurisdictional issue in relation to which an appeal could properly lie under s.120(1)(f) of the WR Act. In response to this, it was conceded, firstly, that grounds 13-15 did not involve any contention of jurisdictional error. That was an appropriate concession. It will not therefore be necessary for us to consider those grounds of appeal.

[14] It was further conceded that grounds 7-9 were effectively repetitive of grounds 4-6. Again we consider that to be a proper concession and accordingly we will not give separate or specific consideration to grounds 7-9.

[15] The remaining nine grounds of appeal essentially raise three issues, each of which is dealt with in three grounds of appeal. Grounds 1-3 concern a submission made by Dr Soliman at the second hearing that Professor Booth had misconstrued clause 46.4 as specifying the only types of disciplinary action it was open to him to impose upon Dr Soliman, when on its proper interpretation it was to be read non-exhaustively so that it was open to impose other types of disciplinary action not specified, such as (for example) a time-limited demotion. This meant, it was submitted at the second hearing, Professor Booth’s decision was unreasonable in the sense of being irrational. Ground 1 contends that Vice President Watson erred in not determining that the decision was unreasonable for this reason, ground 2 that his Honour failed to provide procedural fairness by failing to consider the submission, and ground 3 that procedural fairness was denied because of a failure to give adequate reasons.

[16] Of these three grounds, we consider that only ground 2 involves a contention of jurisdictional error. As was stated in the passage from the Federal Court Decision earlier quoted, a failure to consider a submission of central relevance to a matter may amount to jurisdictional error. Ground 1 merely involves a contention that Vice President erred in not accepting the submission referred to. Because the submission did not itself go to a question of jurisdiction, any rejection of the submission could not amount to jurisdictional error. In relation to ground 3, a failure to provide reasons in respect to a particular aspect of a case does not, simpliciter, amount to jurisdictional error. In the Federal Court Decision, the Full Court said:

“[50] A failure to comply with a statutory obligation to provide reasons may constitute an error of law but it does not follow that a failure to do so constitutes jurisdictional error sufficient to warrant setting a decision aside either in whole or in part: Kennedy v Australian Fisheries Management Authority [2009] FCA 1485, 182 FCR 411. See also: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 at [45]- [49], [2009] FCAFC 137; 179 FCR 554 at 562-563 per Bennett, Flick and McKerracher JJ; Sherlock v Lloyd [2008] VSC 450 per Kyrou J.

[51] In circumstances such as the present, where there is no statutory requirement to provide either reasons or findings of fact, it would be difficult to conclude that a failure to do so constitutes jurisdictional error such as to warrant the decision of the Vice President being set aside. A similar reservation was expressed in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [21], [2012] FCAFC 99; 289 ALR 541 at 548 per Flick and Jagot JJ.”

[17] A failure to provide reasons in relation to a particular submission may amount to jurisdictional error if it founds the conclusion that the submission was not considered or addressed. 10 However, to the extent that ground 3 seeks to advance this proposition, it is merely repetitive of ground 2.

[18] Grounds 4-6 concern a submission advanced in the second hearing that the decision to demote Dr Soliman was unreasonable because it did not involve any concomitant alteration to his duties, functions or responsibilities. Grounds 4-6 are structured in the same way as grounds 1-3. We consider that only ground 5 raises a contention of jurisdictional error in that it alleges that Vice President Watson failed to consider and address this submission.

[19] Grounds 10-12 concern a submission made at the second hearing that the demotion decision was unreasonable because, in making that decision, Professor Booth had operated under the misapprehension that the Misconduct Investigation Committee had determined as a matter of fact that Dr Soliman had told his students that the questions and answers he provided would be those in the exam, when in fact the Misconduct Investigation Committee had not made such a finding. Grounds 10-12 are again structured in the same way as grounds 1-3, and for the reasons already stated we consider that only ground 11, which alleges that Vice President Watson failed to consider and address this submission, involves a contention of jurisdictional error.

[20] Accordingly we will proceed on the basis that a competent appeal under s.120(1)(f) of the WR Act only lies with respect to appeal grounds 2, 5 and 11.

Submissions

[21] In respect of appeal grounds 2, 5 and 11, Dr Soliman submitted that Vice President Watson fell into jurisdictional error by failing to consider three submissions he had made in the course of the second hearing. The first submission was that Professor Booth had misconstrued clause 46.4 of the Agreement in a way which meant that he acted upon an erroneous understanding of what disciplinary action he was entitled to take against Dr Soliman. Professor Booth had wrongly read clause 46.4 as setting out an exhaustive rather than a permissive list of the penalties he could impose. This meant, for example, that he proceeded on the basis that if he ordered demotion, it could only be a permanent demotion and not one limited by time. Because he misconceived the nature of the powers available to him under the Agreement, it was submitted, the decision to demote Dr Soliman was unreasonable in the sense that it was irrational.

[22] The second submission was, as earlier stated, that Professor Booth’s decision was unreasonable because, in demoting Dr Soliman from the classification of Senior Lecturer to the lower paid and lower status classification of Lecturer, no change was made to Dr Soliman’s duties, functions or responsibilities consistent with this demotion. Schedule E to the Agreement prescribed the duties, functions or responsibilities attaching to each classification, with there being distinct differences between those of Senior Lecturer and those of Lecturer, but Dr Soliman was demoted without there being any change to his duties. This was exemplified, it was submitted, by the fact that he had performed the highly responsible role of course coordinator before his demotion, and continued to do so after his demotion. In effect, it was submitted, Dr Soliman has since January 2008 been required to do the work of a Senior Lecturer without receiving the commensurate status and level of remuneration.

[23] The third submission, as earlier stated, was that in determining the penalty to be imposed upon Dr Soliman, Professor Booth proceeded upon a wrong understanding of the findings of the Misconduct Investigation Committee. Professor Booth said in his evidence that it had been found that Dr Soliman had told his students that the questions he had provided to them would be in their examination, when in fact the Misconduct Investigation Committee had accepted that this did not occur.

[24] These three submissions, Dr Soliman submitted, justified the Commission substituting its own decision as to the disciplinary action to be taken against him for that of Professor Booth. The non-consideration of these submissions meant that Dr Soliman was denied procedural fairness and that the jurisdiction was not exercised.

[25] The University submitted generally that because the assessment of whether the demotion decision was reasonable involved an evaluative judgment, a detailed articulation as to how specified and conflicting factors had been weighed in the balance was not required. Specifically in respect of the submission referred to in appeal ground 2, it was submitted that the transcript of the hearing showed that in the course of the hearing Vice President Watson had engaged with and thereby considered this submission, even if it was not specifically referred to in the Second Decision. The University submitted that in any event Professor Booth’s interpretation of clause 46.4 of the Agreement was correct. In relation to the submission referred to in appeal ground 5, the University similarly submitted that Vice President Watson had engaged with and considered the submission; alternatively there was no requirement that the University alter Dr Soliman’s duties, functions or responsibilities upon demoting him, and there was no requirement that a subject coordinator had to be a Senior Lecturer. In relation to appeal ground 11, the University submitted that the submission was beyond the scope of the remittal from the Federal Court, and was in any event irrelevant since Dr Soliman was demoted on the basis that he gave students the questions and answers which appeared in the examination.

Consideration

[26] The central question which arises for determination is whether any failure by Vice President Watson to specifically consider and address the submissions referred to in appeal grounds 2, 5 and 11 constituted jurisdictional error.

[27] It is not the case that a failure to refer to every submission advanced in support of a party’s case constitutes a failure to exercise jurisdiction. In the Federal Court Full Court decision in Linfox Australia Pty Ltd v Fair Work Commission, the Court (Dowsett, Flick and Griffiths JJ) said:

“[47] First, it is not necessary for those making a decision to refer to “every piece of evidence and every contention” made by a party: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ; Reece v Webber [2011] FCAFC 33 at [67], 192 FCR 254 at 277 per Jacobson, Flick and Reeves JJ. Although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), more may be expected of experienced and legally qualified members of Fair Work Australia who have had the benefit of written submissions filed by experienced legal practitioners: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], 207 FCR 277 at 295-296 per Marshall, North and Flick JJ. But there remains no unqualified and universally applicable legal requirement to refer to every submission advanced. Much depends upon the importance of the submission to the claims being made. A failure to address a submission which is “significant” and which touches upon the “core duty” being discharged (Fox v Australian Industrial Relations Commission [2007] FCAFC 150 at [39] per Marshall, Tracey and Buchanan JJ) or which is “centrally relevant” to the decision being made (WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [55] to [56], 207 FCR 277 at 295) may in some circumstances found a conclusion that it has not been taken into account and may thereby expose jurisdictional error.”

[28] There is no doubt that in the Second Decision Vice President Watson dealt with the matter that had been remitted to him by the Federal Court, namely whether the decision to demote Dr Soliman was unreasonable in the sense of being harsh and disproportionate to the conduct he had found to be engaged in. Dr Soliman’s written outline of submissions in the second hearing advanced nine contentions (lettered (a)-(i)) as to why Dr Soliman’s demotion was unreasonable. 11 These submissions were filed in advance of the hearing and served the purpose of identifying the case which Dr Soliman intended to present. It is apparent from these submissions that Dr Soliman was advancing a multi-factor case as to the unreasonableness of his demotion at the second hearing. That Vice President Watson understood that that was the nature of the case being presented is demonstrated by the fact that those contentions are repeated verbatim in paragraph [27] of the Second Decision.

[29] In reaching the conclusion that the demotion of Dr Soliman was not unreasonable, Vice President Watson made a number of critical findings:

● Professor Booth’s and Professor Lynch’s analysis of the seriousness of Dr Soliman’s misconduct was “rational, responsible and fair”. 12
● Professor Booth’s evidence concerning the considerations he applied in reaching his decision “was not subject to any legitimate criticism”. 13
● The consequences of the demotion of Dr Soliman were significant. 14
● Professor Booth “properly considered” all of the matters relevant to “the notion of an appropriate sanction” including that of the “personal loss” to Dr Soliman. 15
● The assessment process was integral to the teaching and accreditation functions of the University, and damage to confidence in the integrity and rigour of that process struck at the heart of the University’s reputation and standing. 16
● Dr Soliman’s challenge to his demotion was heavily influenced by the belief that he was “innocent of the charge of misconduct”. 17
● In all of the circumstances he did not believe that the sanctions determined by the University “were disproportionate to the misconduct found to have occurred or were in any way unreasonable”. 18

[30] These findings demonstrate that Vice President Watson balanced the seriousness of Dr Soliman’s conduct as found by the Misconduct Investigation Committee against the personal consequences for Dr Soliman of his demotion. That consideration was consistent with the test for harshness of a dismissal enunciated by McHugh and Gummow JJ in Byrne v Australian Airlines 19, namely whether it was “harsh in its consequences for the personal and economic situation of the employee or ... it is disproportionate to the gravity of the misconduct in respect of which the employer acted”. We therefore consider that the central point of Dr Soliman’s case was properly considered.

[31] The submissions referred to in appeal grounds 2, 5 and 11 were not specifically considered in the Second Decision. However it cannot be said that those submissions were central to the determination of his Dr Soliman’s case at the second hearing. The submission that Professor Booth misconstrued clause 46.4 of the Agreement referred to in appeal ground 2 appeared in Dr Soliman’s written outline of submissions in the second hearing as a secondary argument to support his eighth contention concerning the discretion given to the University as to the penalties to be imposed. The same submission was expanded upon somewhat in the oral closing submissions. 20 The submissions referred to in appeal grounds 5 and 11 cannot readily be discerned in Dr Soliman’s written outline of submissions. They appear to have been advanced in the oral closing submissions for the first time.21 They were all raised as sub-factors supporting the single proposition that the demotion decision was not reasonable. We accept the University’s submission that, in making the broad evaluative judgment he was required to make concerning the reasonableness of the demotion decision, Vice President Watson was not required to refer to all of the various and often competing considerations that were necessary to be weighed in the balance. In those circumstances Vice President Watson did not make any jurisdictional error by not addressing those arguments specifically in the Second Decision.

[32] In any event, we do not consider that these submissions had any significant merit in that they could not reasonably have founded a conclusion that the decision to demote Dr Soliman was unreasonable. The submission referred to in appeal ground 2 turned upon the proper interpretation of clause 46.4 of the Agreement, which provided as follows:

“46.4 ‘Disciplinary action’ means any action by the University to discipline a staff member for misconduct or serious misconduct and may include one or more of the following:

(a) formal censure

(b) formal counselling

(c) demotion by one or more classification levels or increments

(d) withholding of an increment

(e) suspension with or without pay; and

(f) termination of employment.

In cases of misconduct, disciplinary action will not include termination of employment.”

[33] Dr Soliman’s submission at the second hearing was that clause 46.4 of the Agreement should be interpreted so that the list of disciplinary penalties in paragraphs (a)-(f) was non-exhaustive in nature. We are far from persuaded that that is the correct interpretation. It is unlikely that the parties intended that the University be entirely at large as to the choice of penalties it could impose in relation to the misconduct of an academic staff member; it is more likely to be the case that the list of disciplinary penalties, which constitutes a conventional range of available employment actions in the public sector context, was intended to define prescriptively what could be done in response to any such misconduct. On this approach, the words “may include one or more of the following” in clause 46.4 are to be read as meaning “may only include”. This was the way in which Professor Booth read the clause.

[34] Even if Professor Booth was wrong to read clause 46.4 this way, it does not follow that his decision to demote Dr Soliman was unreasonable, for two reasons. Firstly, on any view of clause 46.4, a permanent demotion was a form of disciplinary action which was available to the University to take under clause 46.4, so that there could be no question that Dr Soliman’s demotion was authorised by the Agreement. Secondly, there is no support in the evidence for the proposition that, had Professor Booth interpreted clause 46.4 in the way contended for by Dr Soliman, he would have considered any lesser penalty than permanent demotion (such as a time-limited demotion). Professor Booth’s evidence was that he considered Dr Soliman’s conduct constituted a “serious and significant breach of [his] core academic responsibilities” and that his actions “did not accord with the standards required for Senior Lecturer”. 22 Professor Booth also made it clear that he regarded a lesser form of disciplinary action which only involved a “financial penalty” as being insufficient.23 In summary, the effect of Professor Booth’s evidence was that he considered Dr Soliman unfit to hold the position of Senior Lecturer. The only alternative disciplinary action which he considered was that of dismissal. He ultimately did not take this course because there had been no earlier pattern of misconduct.24 Accordingly, we do not consider that Professor Booth’s interpretation of clause 46.4, even if incorrect, had any consequence for the decision-making process.

[35] The submission referred to in appeal ground 5 we consider to be misconceived. A decision to demote an employee under clause 46.9.5 of the Agreement did not require any associated action to alter the employee’s duties. If an employee is placed in a lower classification because of a demotion decision, the provisions of the Agreement which set out what work the employee may be required to perform at that classification level operate of their own effect. The duties and responsibilities of the Lecturer classification to which Dr Soliman was demoted (Level B) are set out in Schedule E to the Agreement. No separate decision was required on the part of Professor Booth to make those duties and responsibilities applicable to Dr Soliman.

[36] We are not satisfied that it has been demonstrated by Dr Soliman that he has been required to perform any duties or carry any responsibilities that go beyond what is required for the Level B Lecturer classification. At the hearing, there was a focus on the fact that Dr Soliman has been required from time to time to continue to perform course coordination duties, as he was before his demotion. The “coordination of an award program for the institution” is one of the duties which a Level B Lecturer may be required to perform, so we do not think this complaint has much substance. But more importantly if persons with managerial responsibility at the University have, in the more than 6½ years since Dr Soliman was demoted, made decisions requiring him to perform duties beyond those of the Level B Lecturer, they are separate decisions made subsequent to the demotion which may be challenged by Dr Soliman if he considers them to constitute a breach of the Agreement. They cannot operate to render the earlier demotion decision unreasonable.

[37] This point is illustrated by the evidence concerning Dr Soliman’s appointment as subject coordinator for the Global Strategic Management course in January 2008, very shortly after he was demoted. As the evidence made clear, the decision to appoint Dr Soliman to this role was a separate one made by his Head of School, and one in which Professor Booth was not involved. The conclusion that the demotion decision was unreasonable because of this separate and later decision is simply not available.

[38] Finally, we consider that the submission referred to in appeal ground 11 raises a point that is more semantic than substantive. The Misconduct Investigation Committee found in its majority report as follows:

“[69] While the Committee accepts that Dr Soliman did not directly state to the students “...this is the exam”, the Committee is satisfied on the weight of the evidence that students clearly inferred and understood that the displayed material was to be included in the forthcoming examination, and that Dr Soliman intended that it be so.”

[39] It is tolerably clear from this finding that while Dr Soliman did not, in express words, tell his students that the questions he was showing them were going to be in the examination, he nonetheless managed to communicate this message to them in indirect terms and did so deliberately.

[40] Dr Soliman contrasted the terms of the Misconduct Investigation Committee’s finding with Professor Booth’s evidence at the second hearing (given many years after he actually made the disciplinary decision) in which he referred to Dr Soliman having “told” the students that the questions would be in the examination. Although it may not literally be correct that he told this to them, the fact that he deliberately communicated this to them makes this, in terms of the gravity of Dr Soliman’s misconduct, a distinction without a difference.

[41] Section 120(1) of the WR Act provides that an appeal to a Full Bench only lies with the leave of the Full Bench. Section 120(2) provides that leave must be granted if, in the Full Bench’s opinion, the matter is of such importance that, in the public interest, leave should be granted. For the reasons given above, we do not consider that any jurisdictional error in the Second Decision has been identified by Dr Soliman. Accordingly, we do not consider that the public interest is attracted in this matter such as to require the grant of leave to appeal, nor do we consider that there is a proper discretionary basis to support the grant of such leave.

Conclusion

[42] Leave to appeal is refused.

VICE PRESIDENT

Appearances:

J. Pearce of counsel with Y. Lee solicitor for Dr Soliman

A. Britt of counsel with S. Sykes solicitor for the University of Technology, Sydney

Hearing details:

2014.

Sydney:

22 August.

Annexure

Dr Soliman’s grounds of appeal:

1. The Vice President erred in that he should have determined that the demotion decision was unreasonable because the Agreement had not been complied with by the decision-maker because the decision-maker had misconstrued clause 46.4 of the Agreement as providing no option for the decision-maker to make a decision to reduce the pay of the appellant for a limited period and/or to demote the appellant for a limited period.

2. The Vice President has failed to provide procedural fairness to the appellant by failing to consider and/or have regard to and/or give any weight to submissions for the appellant below set out in ground 1 above.

3. The Vice President has failed to provide procedural fairness to the appellant by failing to provide adequate reasons or any reasons for decision for concluding that the demotion was not unreasonable because the Agreement had not been complied with by the decision-maker because the decision-maker had misconstrued clause 46.4 of the Agreement as providing no option for the decision-maker to make a decision to reduce the pay of the appellant for a limited period and/or to demote the appellant for a limited period.

4. The Vice President erred in that he should have determined that the demotion was unreasonable because the Agreement had not be complied with by the decision-maker because the decision-maker did not apply the provisions of the Agreement concerning classification levels (Schedule 3) when making the decision to demote the appellant from senior lecturer to lecturer. In particular;

a) The decision-maker made no decision altering the duties or functions or responsibilities that were required to be performed by the appellant;

b) The decision-maker made no decision altering the degree of autonomy that was required to be exercised by the appellant;

c) The decision-maker made no decision altering the leadership requirements that were required to be performed by the appellant.

5. The Vice President has failed to provide procedural fairness to the appellant by failing to consider and/or have regard to and/or give any weight to submissions for the appellant set out at ground 4 above.

6. The Vice President has failed to provide procedural fairness to the appellant by failing to provide adequate reasons or any reasons for decision for concluding that the demotion was not unreasonable because the Agreement had not be complied with by the decision-maker because the decision-maker did not apply the provisions of the Agreement concerning classification levels (Schedule 3) when making the decision to demote the appellant from senior lecturer to lecturer. In particular;

a) The decision-maker made no decision altering the duties or functions or responsibilities that were required to be performed by the appellant;

b) The decision-maker made no decision altering the degree of autonomy that was required to be exercised by the appellant;

c) The decision-maker made no decision altering the leadership requirements that were required to be performed by the appellant.

7. The Vice President erred in that he should have determined that the demotion decision was unreasonable because the appellant had been required to continue performing the duties a senior lecturer notwithstanding the demotion decision.

8. The Vice President has failed to provide procedural fairness to the appellant by failing to consider and/or have regard to and/or give any weight to submissions for the appellant below set out in ground 7 above.

9. The Vice President has failed to provide procedural fairness to the appellant by failing to provide adequate reasons or any reasons for decision for concluding that the demotion was not unreasonable because the appellant had been required to continue performing the duties a senior lecturer notwithstanding the demotion decision .

10. The Vice President erred in that he should have determined that the demotion decision was unreasonable because the Agreement had not been complied with by the decision-maker because the decision-maker had operated under a misapprehension of that discipline committee had determined as a matter of fact that the appellant had told the students that the questions and answers provided would be the questions in the exam and this was not the situation.

11. The Vice President has failed to provide procedural fairness to the appellant by failing to consider and/or have regard to and/or give any weight to submissions for the appellant below set out in ground 10 above.

12. The Vice President has failed to provide procedural fairness to the appellant by failing to provide adequate reasons or any reasons for decision for concluding that the demotion was not unreasonable because the Agreement had not been complied with by the decision-maker because the decision-maker had operated under a misapprehension of that discipline committee had determined as a matter of fact that the appellant had told the students that the questions and answers provided would be the questions in the exam and this was not the situation.

13. Because the Vice President erred in that he should have determined that the demotion decision was unreasonable for the reasons set out in grounds 1, 4, 7 and 10 above the Vice President applied the wrong test to determining the question of whether the demotion decision should have been quashed as an unreasonable decision.

14. The Vice President should have determined that the demotion decision was unreasonable and therefore should be quashed because:

a) The Agreement had not been complied with by the decision-maker because the decision­ maker had misconstrued clause 46.4 of the Agreement as providing no option for the decision-maker to make a decision to reduce the pay of the appellant for a limited period and/or to demote the appellant for a limited period;

b) The Agreement had not be complied with by the decision-maker because the decision­ maker did not apply the provisions of the Agreement concerning classification levels (Schedule 3) when making the decision to demote the appellant from senior lecturer to lecturer;

c) The appellant had been required to continue performing the duties a senior lecturer notwithstanding the demotion decision;

d) The Agreement had not been complied with by the decision-maker because the decision maker had operated under a misapprehension of that discipline committee had determined as a matter of fact that the appellant had told the students that the questions and answers provided would be the questions in the exam and this was not the situation;

e) The decision has led to the imposition of a financial penalty on the appellant of more than $ 110,000 including salary and foregone superannuation.

15. The Vice President should have determined that the demotion decision was unreasonable and disproportionate to the misconduct and therefore should be quashed because:

a) There was an absence of any clear university policy on the question and a wide discretion was permitted to academics in the question of;

b) The divergent assessment practices throughout the University and the existence of similar practices in other units of the University by other academic staff;

c) The previous absence of any interference by the University in relation to assessment and revision practices;

d) The lack of communication or guidance provided to Dr Soliman by the School of Management supervisor in relation to setting examinations and revision classes;

e) The lack of disadvantage to any students;

f) The appellant’s significant employment history and distinguished career where no allegations of this type had been raised before;

g) The harshness of the demotion decision having regard to the appellant's particular circumstances.

 1   [2010] FWA 7684

 2   [2010] FWA 8639

 3   First Decision at [43]

 4   First Decision at [43]

 5   First Decision at [44]

 6   [2011] FWAFB 1427

 7   [2012] FCAFC 146, 207 FCR 277

 8   [2014] FWC 2176

 9   [2009] AIRCFB 146 at [11]

 10   Federal Court Decision at [53]

 11   Appeal Book p.727

 12   Second Decision at [30]

 13   Second Decision at [30]

 14   Second Decision at [31]

 15   Second Decision at [31]

 16   Second Decision at [31]

 17   Second Decision at [31]

 18   Second Decision at [31]

 19   (1995) 185 CLR 410 at 465

 20   Transcript PNs 2427-2442

 21   Transcript at PNs 2448-2512 and PNs 2532-2534 respectively.

 22   Statement of Professor Peter James Booth, paragraphs 63-64

 23   Ibid paragraph 63

 24   Ibid paragraph 59

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