PR942401 AG809294 PR942401 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute (certification of agreement) National Tertiary Education Industry Union and Southern Cross University (C2003/3898) SOUTHERN CROSS UNIVERSITY ENTERPRISE BARGAINING AGREEMENT 2000 (ODN C2003/3130) [AG809294 PR906972 ] Educational services SENIOR DEPUTY PRESIDENT DUNCAN SYDNEY, 2 January 2004 Disciplinary action - misconduct - procedure - s.170LW proceedings - nature of Commissions involvement pursuant to s.170LW of the Act [1] This is a matter which has been on foot since 30 May 2003. In a decision issued on 6 August 2003 1 I dealt with a number of issues and, at the commencement I outlined the course of the matter to that date. I reproduce that: "[1] On 30 May 2003 the National Tertiary Education Industry Union (NTEU) gave notice under clause 56 of the Southern Cross University Enterprise Bargaining Agreement 2000 (the agreement) of a dispute said to be over an alleged failure by Southern Cross University (SCU) to properly apply clause 35 of the agreement. Clause 35 concerns "Disciplinary action for Misconduct". Clause 56 sets out a dispute settling procedure. [2] The alleged dispute concerned action taken against Academic A by the Vice-Chancellor of SCU. The action was the result of a complaint by Academic B of sexual harassment by Academic A. That was denied by Academic A. The action included a finding by the Vice-Chancellor that Academic A was guilty of serious misconduct (the harassment), the Vice-Chancellor censured him, issued a final warning and removed him from the position of Head of School. Academic A was also advised that his office would be physically relocated and his access to the School building was restricted. All this came by way of three letters. [3] There is no great debate about the facts of the matter except, of course, the harassment issue. At this stage I have no direct concern with that. However I do set down the chronology of the matter. [4] On 11 February 2003 the Vice-Chancellor wrote to Academic A - advising him that he had been accused of sexual harassment and bullying by Academic B in a letter of complaint of 5 February (which was forwarded to Academic A). The Vice-Chancellor advised he was acting under clause 35, that Academic A had 10 working days to provide a written response and that he was suspended on pay pending the outcome of the investigation. [5] By letter of 13 February 2003 Academic A was advised that the Vice-Chancellor had established a Misconduct Investigation Committee pursuant to clause 35.4 of the agreement. [6] On 19 February 2003 Academic A forwarded a written response denying the allegations. [7] The Committee sat on 7 April and 29 April. Academic A was represented by Ms Mullins of the NTEU and Mr D. Wedgwood of the Australian Higher Education Industrial Association (AHEIA) acted as the Vice-Chancellor's representative on the Committee. On 7 May Academic A was advised that the Committee proceedings were complete and he was supplied with a copy of the Committee's report. On 9 May the Acting Head of School advised staff that the Committees work was complete and that the Vice-Chancellor would make a decision by the end of the month. Shortly after, Academic A asked another member of the SCU academic staff who had been acting as the academic friend provided for in the agreement, to inquire what was the situation and to seek a meeting with the Vice-Chancellor as soon as possible. Academic A was advised about 16 May that the Vice-Chancellor could not meet him until 27 May at 2pm. [8] On 26 May Academic A received three letters whose contents are summarised in paragraph [2] above. In addition to what is noted in that summary Academic A was directed to return to work (on the new terms) on 10 June. [9] The meeting of 27 May took place. By this time the NTEU was closely involved in the matter and the notification to the Commission was lodged on 30 May as already noted. [10] It is appropriate at this stage to set out the Committee's report which has been anonymised: `1. This Misconduct Investigation Committee was appointed by the Vice-Chancellor on 13 March 2003 in accordance with the Southern Cross University Enterprise Bargaining Agreement 2000. 2. Pursuant to clause 35.5.1: `The terms of reference of the Committee are to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.' The proceedings are to be conducted as a Committee of Enquiry (Clause 35.5.2). 3. On 7 April 2003 the Committee met and heard evidence and/or submissions from the Complainant, Academic B; the employee concerned, Associate Academic A; and the Vice-Chancellor. 4. It was decided by the Committee at the end of the proceedings on 7 April to meet again on 29 April 2003 to consider the matter and to hear further evidence. 5. The Committee hereby reports on its findings on the facts relating to the misconduct charge brought against Academic A. This charge was brought about by the allegations made by the Complainant of sexual harassment and bullying by Academic A. It should be noted that all of the evidence received by this Committee was unsworn and that there was a total lack of corroborative evidence to support any of the allegations. 6. The Committee has determined that a meeting took place one Sunday in May between the Complainant and Academic A to finalise the Complainant's PhD thesis. The meeting lasted approximately 5 hours and was terminated by a phone call from Academic A's son. 7. The Complainant alleges an incident of sexual harassment occurred during that meeting as detailed in her statement. Academic A completely denied that anything particular took place as is detailed in his statement. 8. After the meeting the Complainant told her husband that night the details of the alleged sexual harassment. The next morning she told the details of the alleged sexual harassment to ... 9. What the Complainant told her husband and ..., according to their statements, was largely consistent with what she put in her statement. 10. No official complaint of sexual harassment or bullying was made by the Complainant against Academic A until February 2003. 11. Following the alleged harassment in May, the Complainant reported three subsequent alleged sexual harassment incidents by Academic A in her official complaint to the University. Two of these incidents were reported to her husband and one of those two was reported to .... The reporting of this incident to both parties was consistent. 12. Academic A completely denied all of these allegations. 13. As to the allegations of bullying the Committee could not find any facts to support the Complainant's allegations. 14. The Complainant alleged the May incident resulted in serious emotional trauma, revulsion of Academic A and chronic physical illnesses for the subsequent 9 month period and ever since. In spite of this, her behaviour and interactions with Academic A were, from any external party's perception, unchanged based on the evidence offered. That no behavioural change occurred is corroborated by a number of other persons within the school. 15. .... statement noted that in December 2002, the Complainant made a complaint to ... of not being valued in her job in the School. ... offered her an equivalent position in a different School. The Complainant declined the offer. 16. On two occasions where the Complainant made allegations there was clear evidence that could clarify the situation. On both of these occasions (the meeting with Academic A on 3 January; and whether the office door was open or shut during the incident on 21 January) the evidence did not support the details of her allegations. 17. A copy of the documentation available to the Committee is attached to this report.' [11] After the notice referred to in paragraph [1] was given the NTEU sought orders under s.127 of the Workplace Relations Act 1996 (the Act) in relation to the same matter. That was unsuccessful. [12] The hearing of the present matter commenced on 20 June. At the close of proceedings on that day I requested the advocates for the parties to identify the issues which the Commission should be considering. They did this and their document, exhibit A1, tendered in further proceedings on 10 July, sets out the issues as follows: The disputes between the parties to be resolved are: `1. Whether it is possible to have a dispute under clause 56.1 or 56.2 (dispute settling procedures) of the Agreement and section 17OLW of the Act, about a) the Vice-Chancellor's decision under clause 35.5.5 of the agreement, and/or b) the application of clause 35.5.5 of the agreement, or whether clause 35.7.2 of the Agreement prevents such a dispute being considered: whether such a dispute currently exists, and if so, to proceed to a hearing (at a later date) to resolve such dispute. Clause 35.5.5 provides: On receipt of the report of the Committee, and having considered all its findings on the facts related to the alleged misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action. Clause 35.7.2 provides: The action of the Vice-Chancellor under this clause will be final. However, this clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter. The NTEU disputes regarding 35.5.5 are whether or not: a. The Vice Chancellor considered the findings of fact related to the alleged misconduct or serious misconduct in the report b. It was reasonably open to the Vice Chancellor to find Academic A guilty of serious misconduct based on the findings of fact in the report c. The Vice Chancellor was able to consider not just the report of the Misconduct Investigation committee but could consider some or all of the papers that went to the Committee, the transcript or record of the Committee hearings and/or comments and investigations of other people regarding the allegations and the committee report. d. the Vice Chancellor was bound by natural justice requirements and the test of Briginshaw vs Briginshaw as terms implied by law in the agreement. 2. Whether, as the NTEU asserts, there is a dispute under clause 56 of the agreement and section 17OLW about the application of clause 35.3.6, if so, whether the matter must be referred back to the relevant step in clause 56, or whether the Commission should now determine the dispute. In the alternative, the University is prepared to have this issue considered, on the University's own application, under section 170MD(6)(a). However, this would be on the basis that the outcome of the Commission's deliberations shall apply in the future, If the decision is against the University, then the University's view is that the NTEU would have a case for seeking redress for a breach of this provision of the Agreement in another jurisdiction. The dispute is whether the Vice Chancellor was obliged to comply with clause 35.3.6 after receiving the Misconduct Investigation Report and before deciding to take disciplinary action other than termination or whether this requirement only applies as a subset of clause 35.3.5 in cases where an employee admits the allegations in full. 3. Whether it is possible to have a dispute under clause 56.1 or 56.2 (dispute settling procedures) of the Agreement and section 17OLW of the Act, about the following matter, whether such a dispute currently exists, if so, whether the matter must be referred back to the relevant step in clause 56, or whether the Commission should now determine the dispute. The dispute is whether the University was able to remove the role of Head of School from Academic A following its finding of serious misconduct and the censure for that serious misconduct, given the limits on discipline in 35.2.3 and the nature of Academic A terms of employment (Document 1) and given that the Misconduct Investigation Committee did not recommend any specific disciplinary action. 4. If the matter proceeds to a further hearing of a dispute under clause 56 of the agreement and section 17OLW whether the Commission can and will approve the issuing of a summons under section 111 (1)(s) and Rule 64 of the Act which will be sought by the NTEU for the Vice Chancellor to produce documents and to appear at the hearing as a witness. 5. If yes to 1, 2, or 3, whether there is a dispute under clause 56 of the agreement and section 17OLW about the application of clause 56.5, in terms of what action the University was able to take or not, following the alleged notification of the dispute, if so, whether the matter must be referred back to the relevant step in clause 56, or whether the Commission should now determine the dispute.' These are referred to in what follows as Questions 1, 2, 3, 4 and 5. [13] References are made in exhibit A1 to clause 35 or parts thereof. It is necessary to refer to a number of parts of the clause and I set it out in full: ` 35 DISCIPLINARY ACTION FOR MISCONDUCT 35.1 Application This clause does not apply to casual staff. 35.1.1 Line Supervisors (including Heads of Academic Units) have a responsibility to discuss work conduct with employees under their administration, and to ensure employees have a clear understanding of the conduct expected of them. Disciplinary action should normally be initiated as a last resort. 35.1.2 Formal procedures for dealing with misconduct or serious misconduct do not replace a supervisor's responsibility outlined in 35.1.1. However, when there is evidence that a conduct problem has not been remedied through normal supervisor-employee discussions, the formal procedures of this clause should be utilised. 35.1.3 The University's Code of Conduct contains approved appropriate standards of conduct in relation to a range of 'general matters affecting the University as a corporate entity. 35.2 Definitions 35.2.1 "Misconduct" includes, but is not limited to, behaviour that is unsatisfactory. 35.2.2 "Serious misconduct" includes, but is not limited to: 35.2.2(a) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member's duties or to a staff member's colleagues carrying out their duties; 35.2.2(b) conviction by a Court of competent jurisdiction of an offence of a kind that may be reasonably regarded as constituting a serious impediment to the discharge by the staff member of his or her functions or duties, or to the staff member's colleagues carrying out their functions or duties; 35.2.2(c) serious dereliction of duties; 35.2.2(d) examples of "serious misconduct" in the course of employment include: theft; fraud; misappropriation of funds; assault; serious harassment (including sexual harassment); a serious breach of the University's policies or regulations; or repeated actions of misconduct. 35.2.3 "Disciplinary action" means any action by the Vice-Chancellor to discipline an employee for misconduct or serious misconduct and is limited to one or more of the following, except that in cases involving misconduct, disciplinary action will not constitute termination of employment: 35.2.3(a) formal censure; 35.2.3(b) counselling; 35.2.3(c) demotion by one or more classification levels or increments; 35.2.3(d) withholding of an increment; 35.2.3(e) suspension with or without pay; 35.2.3(f) termination of employment; and 35.2.3(g) any other appropriate action as recommended by the Investigation Committee. 35.3 Procedures 35.3.1 The Vice-Chancellor must follow the procedures of this clause before taking disciplinary action against an employee for misconduct or serious misconduct. However, where a matter that may involve misconduct or serious misconduct has been dealt with in good faith as if it were a case of unsatisfactory performance under Clause 30 the procedures of this clause are not required. 35.3.2 The Vice-Chancellor will consider any allegation/s of misconduct and/or serious misconduct. If the Vice-Chancellor believes the allegation/s warrant further investigation then the Vice-Chancellor will: 35.3.2(a) notify the employee in writing and in sufficient detail to enable the employee to understand the precise nature of the allegation/s, and to properly consider and respond to then; and 35.3.2(b) require the employee to submit a written response within ten working days. 35.3.3 If the employee denies in part or full the allegation/s, the Vice-Chancellor will: 35.3.3(a) refer the matter to a Misconduct Investigation Committee; or 35.3.3(b) counsel and/or censure the employee for unsatisfactory behaviour and take no other action; or 35.3.3(c) take no further action. 35.3.4 If the employee fails to submit any written response to the allegations, the Vice-Chancellor will: 35.3.4(a) refer the matter to a Misconduct Investigation Committee; or 35.3.4(b) counsel and/or censure the employee for unsatisfactory behaviour and take no other action; or 35.3.4(c) take no further action; or 35.3.4(d) take appropriate disciplinary action if the Vice-Chancellor is persuaded by the weight of evidence provided that the employee is guilty of serious misconduct for taking the actions described in the allegation. In such a case the Vice-Chancellor's decision is final, except that nothing in this clause will be construed as excluding the jurisdiction of any external court or tribunal which, but for this clause, would be competent to deal with the matter. 35.3.5 If the employee admits in full the allegation/s, and the Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, then the Vice-Chancellor may take disciplinary action, subject to following the procedure described in Subclause 35.3.5. 35.3.6 Except in cases of termination of employment, the Vice-Chancellor win, before deciding to take disciplinary action: 35.3.6(a) invite the employee to advise within five working days, in writing, any matters that they may wish the Vice-Chancellor to take into account at the time a decision as to disciplinary action is considered; 35.3.6(b) have regard to any such matters brought to attention by the employee when deciding whether any disciplinary action should be taken. 35.3.7 Once the decision is taken, the Vice-Chancellor will advise the employee of that decision and of the operative date of any disciplinary action to be taken. 35.3.8 Where the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct and decides to take no further action under 35.3.3, the Vice-Chancellor will advise the employee in writing and may, by agreement with the staff member, publish the advice in an appropriate manner. 35.4 Establishment of Misconduct Investigation Committee 35.4.1 Where a matter is referred to a Misconduct Investigation Committee the Vice-Chancellor will convene the Committee within 20 working days where practicable. 35.4.2 The Committee will consist of three members, chosen as follows: 35.4.2(a) A person appointed by the Vice-Chancellor from a list of chairpersons agreed between the University and the presiding officers of the two institutional union branches. 35.4.2(b) a person from within the University agreed by the presiding officers of the two institutional union branches; and 35.4.2(c) a person from within the University chosen by the Vice-Chancellor. 35.5 Terms of reference and procedures of the Committee 35.5.1 The terms of reference of the Committee are to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident. 35.5.2 The Committee will conduct its proceedings as a Committee of Inquiry and will: 35.5.2(a) meet in camera, unless the employee and the Vice-Chancellor agree otherwise; 35.5.2(b) allow the employee and the Vice-Chancellor to be assisted or represented by a person of their choice who may be one of: 35.5.2(b)(i) an employee of the University (but not if such person is currently a practising solicitor or barrister); or 35.5.3(b)(ii) an officer of a relevant employer or employee association; 35.5.2(c) provide an opportunity for the employee to be interviews by it and ensure that they have adequate opportunity to answer allegations of misconduct or serious misconduct and put their case; 35.5.2(d) interview any person it thinks fit to establish the merits or facts of the particular case; 35.5.2(e) provide an opportunity for the employee (or the person selected by the employee under 30.5.2(b)) and the Vice-Chancellor (or the Vice-Chancellor's representative) to be present during the conduct of interviews; 35.5.2(f) ensure that the employee (or the person selected by the employee under 30.5.2(b)) and the Vice-Chancellor (or the Vice-Chancellor's representative) have the right and opportunity to ask questions of interviewees, and to make submissions. They also will have the right to present and challenge evidence; 35.5.2(g) conduct proceedings as expeditiously as possible consistent with the need for fairness; 35.5.2(h) take into account other material it believes appropriate to the case; 35.5.2(i) keep an audio tape recording of the proceedings (but not its own deliberations), which will be available to either party on request. 35.5.3 The Committee will provide a report to the Vice-Chancellor and the employee as soon as is practicable following the conclusion of its proceedings. 35.5.4 In circumstances where the employee is unable to attend, the Committee may proceed or elect to reconvene. 35.5.5 On receipt of the report of the Committee, and having considered all its findings on the facts related to the alleged misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action. 35.5.6 If, having considered the Committee's findings on the facts, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct the Vice-Chancellor will advise the employee in writing. The Vice-Chancellor may, by agreement with the employee, publish the advice in an appropriate manner. 35.6 Suspension 35.6.1 The Vice-Chancellor may suspend an employee with pay, or without pay if the Vice-Chancellor is of the view that the alleged conduct amounts to conduct of a kind envisaged in section 170CM(1)(c) of the Workplace Relations Act 1996 so that it would be unreasonable to continue the staff member's attendance at work pending further investigation. 35.6.2 Any such suspension will be subject to the following conditions: 35.6.2(a) where suspension without pay occurs at a time when the employee is on paid leave of absence the staff member will continue to receive a salary for the period of leave of absence; 35.6.2(b) the employee may engage in paid employment or draw on any recreation leave or long service leave credits for the duration of the suspension without pay; 35.6.2(c) the Vice-Chancellor may at any time direct that salary be paid on the ground of hardship; and 35.6.2(d) where a suspension without pay has been imposed and the matter is subsequently referred to a Misconduct Investigation Committee, the Vice-Chancellor will ensure that the Committee at its first meeting determine whether suspension without pay should continue. 35.6.3 During any period of suspension the employee may be excluded from the University, however, they will be permitted reasonable access to the University for the preparation of their case and to collect personal property. 35.6.4 Where an employee has been suspended without pay pending the decision of the Vice-Chancellor, then any pay withheld will be reimbursed if it is determined that there was no misconduct or serious misconduct. This reimbursement will include the University making the appropriate payment to the relevant superannuation scheme. 35.6.5 A decision taken by the Vice-Chancellor's discretion not to dismiss or impose another penalty will not be construed as an admission that there was no conduct justifying suspension without pay. 35.7 Other Matters 35.7.1 This clause in no way constrains 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, eg inquiring into the truth of research results. 35.7.2 The action of the Vice-Chancellor under this clause will be final. However, this clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter.' [14] Clause 56 which is also relevant is as follows: "PART 14: DISPUTE RESOLUTION PROCEDURES 56 DISPUTE SETTLING PROCEDURES 56.1 Where any dispute arises as to the procedural requirements established by this Agreement: 56.1.1 In the first instance the dispute will be reported to the Vice-Chancellor by an appropriate Management representative or an agent of the employee's choice who is a staff member of the University (not being a current practicing solicitor or barrister) or by an officer of a relevant employee association. 56.1.2 If the Vice-Chancellor believes the dispute is of a serious nature, the dispute resolutions should proceed in accordance with Clause 56.4. 56.1.3 If the dispute is of a less than serious nature but still significant, the following procedure will be carried out: 56.1.3(a) An employee agent and appropriate representative(s) of management will discuss the dispute and attempt to reach written agreement, subject to ratification by each party. 56.1.3(b) Where a dispute is not resolved under Clause 56.1.3(a), at the request of either party, a Disputes Committee will be convened within one working week, unless agreed otherwise. The Disputes Committee will be advisory to the Vice-Chancellor and will consist of. · two nominees of management who are employees of the University or members of an employer association; · two nominees of the employee associations who are either paid or honorary officials of the associations; · a chairperson appointed by the Vice-Chancellor from a list of chairpersons agreed between the University and the presiding officers of the two institutional branches. 56.2 Where any kind of industrial grievance or dispute, other than of a kind identified in Clause 56, arises or is considered by either party to be threatened, impending or probable, then the steps set out below will be followed: Step 1 The matter giving rise to the grievance or dispute will be discussed between the employee(s) and the supervisor involved within five days of notification. If the matter remains unresolved, Step 2 will be invoked. Step 2 The matter will be discussed between the employee(s), an employee representative, the supervisor, and an appropriate person designated by the Vice-Chancellor within five days of the commencement of Step 2. If the matter remains unresolved, Step 3 will be invoked. Step 3 The matter will be discussed between employee representatives and the University management within ten days of the commencement of Step 3. 56.3 Where the grievance or dispute does not relate to a particular employee, or to a specific group of employees within an organisational sub-unit, either party may seek to initiate the discussions at Step 3. 56.4 Should the dispute not be resolved by the processes referred to in Clauses 56.1 and 56.2, the matter may be referred to the Australian Industrial Relations Commission by either party. A decision or recommendation of the commission will be accepted by the parties as final and will be implemented. 56.5 Until the procedures described in Clauses 56.1, 56.2, 56.3 and 56.4 above have been completed: 56.5.1 work will continue in the normal manner; 56.5.2 no industrial action will be taken by management or the unions; and 56.5.3 management and/or the unions or employee organisations will not change work, staffing or the organisation of work if such is the subject of the dispute, or take any other action likely to exacerbate the dispute.' [2] The questions were answered as follows: Question 1 [64] I am satisfied that the action taken by the Vice-Chancellor was disciplinary action for the purposes of clause 35.5.5 and that the definition of "disciplinary action" in clause 35.2.3 requires this conclusion. It was argued with conviction that removal as Head of School was not disciplinary action for the purposes of the agreement but that it was administrative action. That can not succeed: disciplinary action means any action by the Vice-Chancellor to discipline an employee for misconduct (see definition). The correspondence of 26 May makes it clear that all the action taken against Academic A was because of the misconduct which the Vice-Chancellor accepted had taken place. True it is that the specific action of removal as Head of School was an administrative action. It was justified (it was claimed) by the loss of confidence which was the direct result of the misconduct. Without that misconduct there would have been no occasion for the action. [65] There is an argument that only the actions listed in clause 35.2.3 are disciplinary for the purposes of the subclause. This could mean that removal as Head of School was simply not contemplated by the agreement and was therefore not susceptible to the creation of a dispute about the application of the agreement. The converse is the argument put by Ms Mullins that because removal as Head of School was not listed in 35.2.3 such a removal was not permissible unilaterally. This argument is given added force by the existence of subclause (g) "any other appropriate action as recommended by the Investigation Committee". The Committee could have recommended removal as Head of School but did not. [66] I hold that there is a dispute about the application of clause 35.5.5 that being a dispute as to whether the Vice-Chancellor could remove Academic A as Head of School in the absence of a recommendation from the Committee for such action pursuant to clause 35.2.3(g). The proposition that 35.3.6 only arose if there were a full admission is rejected. The argument that that limitation is justified by the full admission situation is the only one where there has been no provision for, for example, mitigating circumstances is too tenuous. A clear statement of intent is necessary if the other situations contemplated by the agreement are to be excluded from 35.3.5. [67] In all of this it must not be overlooked that the Vice-Chancellor was proceeding under clause 35 [see document 3 attached to the witness statement of Academic A, exhibit NTEU 1 which is a letter dated 11 February 2003 from the Vice-Chancellor to Academic A and which states, among other things: `In accordance with clause 35.3.2 (of the agreement) . . . A copy of clause 35, Disciplinary Action for Misconduct from the Enterprise Agreement is attached for your information.' The further letter of 13 March [document 5] also refers to action taken pursuant to the agreement. [68] There is nothing before the Commission to suggest that Academic A was ever advised that further, independent action such as removal from the position of Head of School was contemplated until the decision for removal was conveyed in the letter dated 23 June but delivered on 23 May. It may be inferred that the separate letter was issued to ensure that the decision was not caught up in clause 35 procedure but, if that was the case it was too late. The record of conduct on behalf of SCU to that date infers that the university's action was under the agreement. [69] I have postponed consideration of the effect of clause 35.7.2 as it was necessary to satisfy myself that there was a dispute arising from the agreement before considering the finality of the Vice-Chancellor's decision as prescribed in the subclause. On that matter I have set out the arguments for the opposing positions adopted by SCU and NTEU. The former says, in short, that subject only to the qualification the decision is final and that this matter is not covered by the qualification. NTEU, on the other hand, relies on the history of the clause to argue that the subclause does not prevent the Commission dealing with or considering a dispute about the Vice-Chancellor's decision. [70] I commence by recording that "action" in 35.7.2 includes "decision". Without adopting Ms Mullin's history of the clause as determining the issue that history certainly justifies my view of the breadth of "action". I conclude from the arguments before me that, in keeping with Gorczyca, the Vice-Chancellor's decision is final subject only to the qualification concerning external tribunals. [71] That conclusion means that for the Commission to be able to entertain the dispute which I have found exists the circumstances of the present matter must fall within the qualification. I find that it does. This is because, at bottom, the Commission's involvement is statutory. Section 170LW permits the Commission, if it approves, to accept the empowerment of the Commission to settle disputes over the application of the agreement. That is a form of jurisdiction albeit conferred by the parties to an agreement. [72] This is consistent with the view of the nature of the Commission's role in dispute settling procedures expressed by the High Court in Construction, Forestry, Mining And Energy Union v. Australian Industrial Relations Commission [(2001) 203 CLR 645] where, at p.657, the Court stated: `What was said in Hegarty applies, but with some modification, to an agreement by parties to an industrial situation. As already indicated, it is incidental to the conciliation and arbitration power for the Parliament to permit parties to an industrial situation to agree on the terms on which they will settle the matters in issue between them conditional upon their agreement having the same legal effect as an award. So, too, it is incidental to that power for the Parliament to give legal effect to agreed procedures for maintaining a settlement of that kind and, also, for it to authorise the Commission to participate in those procedures.' [73] It must be accepted that the Commission is an "external tribunal" contemplated by 35.7.2. [74] For these reasons I hold that 35.7.2 does not preclude the Commission from entertaining a dispute between parties to the agreement which, among other aspects, concerns a decision of the Vice-Chancellor pursuant to clause 35. [75] Having reached that conclusion it is not strictly necessary to go further. However I note that if that part of SCU's position that the Head of School action is beyond 35 then clause 56.2 may well be relevant. In that situation the argument that 35.7.2 prevents the Vice-Chancellor's decision being challenged does not arise. [76] More importantly I have considered the arguments over what the Vice-Chancellor should consider. I do not accept the NTEU's argument that he is constrained by the findings of the Committee. As Mr Wedgwood pointed out the Vice-Chancellor prior to receipt of the Committee's report had necessary access to other material. The Committee is itself constrained and it would not be appropriate if the Vice-Chancellor were doubly restrained, once by the Committee's brief and then by its report. The limit, if any, on what is relevant is the only constraint. [77] If there were no ability in the Commission (or any other nominated party) to entertain disputes about the Vice-Chancellor's action or decision there would be doubt whether the agreement complied with s.170LT(8) of the Act which requires an agreement being considered for certification to include (must) procedures for preventing and settling disputes about matters arising under the agreement. [78] While I make no reflection on the report as far as it goes I do agree with what the Vice-Chancellor has alleged (in notes taken by Academic A) to have said at the meeting of 27 May that he (the Vice-Chancellor) could not make a decision on the basis of the report ". . . the file on the investigation reflected a book in length whereas the Committee's report was two pages in length". The NTEU's critique of the process whereby the Vice-Chancellor reached his decision is, apart from the note just referred to, speculative. [79] For the purposes of issues the parties formulated by the parties the Commission holds that it is possible to have a dispute under clause 56.1 or 56.2 (dispute settling procedures) of the Agreement and s.170LW of the Act about: (a) the Vice-Chancellor's decision under clause 35.5.5 of the agreement, and or (b) the application of clause 35.5.5 of the agreement, or whether clause 35.7.2 of the Agreement prevents such a dispute being considered and such dispute currently exists. [80] It will be appropriate to proceed to a hearing at a later date of the actual dispute which is outlined earlier in this decision. Question 2 [81] The NTEU satisfactorily summarised this issue as `whether clause 35.3.6 applies after a Misconduct Committee report is submitted to the Vice-Chancellor or only applies as a subset of clause 35.3.5 where an academic has admitted the allegations in full'. [82] This is without question a matter about the application of the agreement and is cognisable under clause 56. It is sufficient to restate the issue to establish that: are the provisions of 35.3.6 to be applied in the present case? As the parties are contending vigorously on the matter and as its resolution requires the application of clause 56 it is not appropriate to take a practical view and proceed to determine the dispute. It is appropriate to require the parties to comply with clause 56 and follow the procedure laid down in the clause. [83] It is inherent in this finding on Question 2 that the conclusion to Question 1 is in favour of the NTEU. Question 3 The response to this question is determined by reference to the decision of the majority of the High Court in Re Cram; ex p. Newcastle Wallsend Coal Co Pty Ltd [(1987) 163 CLR 140 at 149: `The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries; The Queen v. The Commonwealth Industrial Court; Ex parte The Australian Coal and Shale Employees' Federation (1960) 103 CLR 171, at p 174; Key Meats, at pp 596-597. Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries, at p.44. Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.' [84] It may be that deciding whether a dispute exists or not is not one which can be determined absolutely by the Commission but the passage quoted immediately above supports the view I have formed that for present purposes the Commission can determine whether or not there is a dispute cognisable by clause 56. [85] I do not consider that the decision in National Tertiary Education Industry Union v. Australian Catholic University [Print PR933127 ] affects the present case. That decision introduces finality to the decision of the Commission whether or not there is a dispute under the agreement. I do not hold that in the present case although I do hold that for the purpose of deciding whether or not to proceed further I must make a determination of the same nature as those discussed in Cram. [86] It is inappropriate at this stage to make a final decision on the question whether or not the material before the Vice-Chancellor required one decision (on the alleged misconduct) or another. Question 4 [87] The Commission can issue a summons if the hearing of this matter proceeds further. [88] The power to issue a summons is conferred by s.111 (1)(s). That subsection provides: `Subject to this Act, the Commission may, in relation to an industrial dispute; . . . (s) summon before it the parties to the industrial dispute, the witnesses, and any other persons whose presence the Commission considers would help in the hearing or determination of the industrial dispute, and compel the production before it of documents and other things for the purpose of reference to such entries or matters only as relate to the industrial dispute' [89] Section s.111 (2) provides: `Unless the context otherwise requires, a reference in this section (except subsection (1AA)) to an industrial dispute includes a reference to any other proceeding before the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise).' [90] The only question is whether the current proceedings are proceedings under the Act. I believe they are. The Commission is involved with the matter because of s.170LW combined with the agreement of the parties. Because s.170LW makes provision for the parties to empower the Commission to settle certain disputes there is a statutory basis to the Commission's involvement and, accordingly, the proceedings so initiated are proceedings before the Commission for the purpose of s.111 (2). There is nothing in the context of s.170LW dictating another view. Further, the recent amendment to the section has a clear reference to "or otherwise". Those words are to be interpreted broadly. Finally, if unnecessarily, it would be odd if the Commission did not have the powers conferred by s.111 (1) in the circumstances. Not only could it not issue summons but it could not exercise the other powers in the subsection. It would, in fact, be impractical to act at all. [91] The question whether a summons should be issued in a particular case will be addressed when a summons is sought. Question 5 [92] There is a dispute under clause 56 about the application of clause 56.5. Consistent with the earlier determination the matter should be referred back to the relevant step in clause 56. DISPOSAL [93] The matter will be relisted for mention to determine its future course." [3] Following the release of the decision Australian Higher Education Industrial Association (AHEIA) on behalf of Southern Cross University (SCU) lodged an appeal against the determination that the Commission had power to issue a summons to give witness or produce documents. Following the handing down of the decision of a Full Bench in Qantas Flight Catering Limited v. Australian Municipal, Administrative, Clerical and Services Union 2 ,which held that the Commission had such powers in circumstances not dissimilar to the present, the appeal was withdrawn. [4] On 6 November 2003 the NTEU sought the issue of two summonses. The first was to be directed to Mr Malcolm Marshall, Executive Director and Vice President (Corporate Services) of SCU and the second to the Vice Chancellor, Professor John Rickard. Having heard argument I determined as follows: "PN1803 The NTEU seeks the issue of two summonses to give evidence in this case. The first to the Vice Chancellor of Southern Cross University, the second to an officer of the University. It is noted that the Commission has the power to issue the summons and that the power is a discretionary one. Ms Mullins for the NTEU submits both proposed witnesses have relevant evidence to give on the issues in this case. Mr Wedgwood says they have not insofar as the documents and other evidence in the case establish all that is relevant to the issues. PN1804 Bearing in mind the context in which the request for a summons directed to the Vice Chancellor arises a factor said to be relevant in the 1975 National Wage Case Decision, see [(1975) 167 CAR page 18 at page 22], I am satisfied that I should exercise my discretion against issuing a summons to the Vice Chancellor. The context I refer to is that the Vice Chancellor is called on to make a decision following a procedure laid down in the certified agreement. The decisions relied on by the parties are concerned with bodies which are not called on to give evidence when their decision is challenged and I am of the opinion that the Vice Chancellor's role in this particular matter is more akin to that than to the role of the employer in an unfair dismissal situation. PN1805 Furthermore, I am of the view that there is an element of fishing involved in the attempt to summons the Vice Chancellor. It cannot be said as Munro J did in re Clerk's Alcoa of Australia Mining & Refining Consolidated Award 1983, print H2892, that the demand is fishing in a sense that the application is an endeavour to obtain evidence to discover whether there is a case at all. PN1806 There is in this case other evidence which denies that conclusion bit it's fishing in the sense that the union is not able to put before me anything which leads me to conclude that the Vice Chancellor's evidence will assist me to determine the case. I will not issue a summons to the Vice Chancellor. PN1807 As for Academic B (scil., Mr Marshall) I am satisfied that he can give evidence that is relevant to the considerations which arise in this case. I refer to the documentation in which he was involved and the opinions he has expressed. I will issue a summons as requested by the NTEU. I will now go off record to discuss with the parties procedural matters for the further hearing of the case." Subsequently a summons was issued requiring Mr Marshall to give evidence on behalf of the NTEU and he did. EVIDENCE [5] The material before the Commission is substantial. There are a number of written submissions, notes of meetings, emails and witness statements. Academic A gave substantial oral evidence, so did Mr Marshall and also, for SCU, Ms P. Waters who is Director, Human Resources at SCU. [6] Mr Marshall's evidence was given in unusual circumstances. He stated that he had prepared a statement which was unsigned but subsequently tendered as exhibit NTEU 8. He was rather uncomfortable about it and after a meeting with the Vice-Chancellor he withdrew the statement. He confirmed that everything in it was true. [7] He said that in his position he met the Vice-Chancellor regularly and provided him with advice. On this occasion the Vice Chancellor asked him to go through all the papers. He had experience dealing with disciplinary matters. He respected Academic A's academic standing but had had a few run-ins with him through enterprise bargaining. [8] The witness said he had become very familiar with the papers in the case and he had concerns with the process. He did not believe there were enough facts to enable a conclusion that Academic A was guilty of serious misconduct through either bullying or sexual harassment. When Mr Marshall expressed his views to the Vice-Chancellor, Professor Rickard thanked him for that but recognised (as did Mr Marshall) that he had to make the decision. [9] In cross-examination by Mr Wedgwood Mr Marshall said the Vice-Chancellor did not ask him to withdraw the statement. It was his own decision to attempt that, although in re-examination the witness said the Vice-Chancellor had told him the statement did not help the University's case. As a result of pressure from members of the University's Council he tried to get a meeting between Academic A and the Vice-Chancellor to try to resolve the matter. He referred to a complaint about breach of confidentiality which was made by Academic A's partner and which he investigated. He agreed there was no breach proven. He also agreed that the documents in the case were not sufficient to prove the matter beyond reasonable doubt. [10] Academic A gave evidence of the preparation of his notes of the meeting of 27 May 2003 - they were written on the evening of the day of the meeting after he returned home. These notes indicated that the Vice-Chancellor said it (the conclusion he reached on the facts) came down to him being "more inclined to believe" (the complainant). [11] Academic A outlined the difficulties created by the protocols introduced by SCU to separate Academic A and the complainant. [12] In cross-examination he said he had no knowledge that the Vice-Chancellor considered any irrelevant or improper material nor did he have knowledge that the Vice-Chancellor in fact read all the material that was provided to him. He reiterated his view that the facts reported by the Misconduct Investigation Committee in paragraphs [6] to [12] of its report were not sufficient to justify a finding of misconduct. [13] Ms Waters 3 , as already noted at paragraph [5] is the Director Human Resources SCU. She gave evidence on the meeting of 27 May 2003. Attached to her statement were notes she took at the meeting. She agreed with Ms Mullins that they were generally very similar to the notes prepared by Academic A. [14] In cross-examination the witness agreed that a diagram produced in September 2003 had not been available to Academic A and his advisers during the proceedings of the Misconduct Investigation Committee. It had been available to the Vice-Chancellor. SUBMISSIONS [15] Mr Wedgwood submitted in accordance with s.111 (1)(f) that I should revoke my decision of 6 August 2003 on certain points going to jurisdiction. The principal one was the effect of 35.7.2 which states that the action of the Vice-Chancellor under that clause shall be final although this does not exclude the jurisdiction of any external tribunal. Mr Wedgwood cited a number of decisions which he said supported his case. [16] It was said that the subclause be read in the context of the agreement. I have considered what was put in the written submission 4 but am not moved to change the view I formed in the earlier proceedings, which arose from a consideration of the subclause in the context of the agreement, and which is expressed at paragraphs [70] to [74] of the decision of 6 August 2003. I will not revoke that decision which, in short, held that 35.7.2 does not preclude the Commission from entertaining a dispute which concerns the Vice-Chancellor's decision pursuant to clause 35. The decisions referred to on this occasion do not affect that decision. [17] I turn to the submissions on the matter as it stands after the decision of 6 August. [18] Miss Mullins for the NTEU noted that the parties had agreed to the delineation of the five disputes or questions which are set out earlier in this decision. Question four had been settled by the issue of a summons and the refusal to issue another. The remaining disputes are those identified as questions one, two, three and five as originally expressed in exhibit A1. It was noted that as a result of the Commission's decision of 6 August 2003 two of these, three and five, were referred back through the disputes settling procedure of the enterprise agreement but without resolution. [19] The Commission has already made a number of determinations in the decision of 6 August and these would not be revisited but the Commission should progress to determine the appropriate action for each dispute. [20] The remedies sought by the NTEU in response to all of the disputes are: 1. Head of School removal (a) Academic A to be reinstated as Head of School until he resigns from that role or his term ends on 30 June 2005. (b) The $4,500 per annum allowance should be back dated to the date of removal from that role. (c) Any future appointments should be in accordance with normal procedures for the appointment for Head of School and there should be no barrier to Academic A in this regard. 2. Academic A should be cleared of a finding of serious misconduct for sexual harassment and all actions taken as a result of that finding be rescinded. 3. Alternative to 2: (a) That the finding of serious misconduct against Academic A be withdrawn and any disciplinary action taken as a result of that finding be reversed. (b) That the report of the Misconduct Investigation Committee be referred to the Chancellor or Deputy Chancellor for determination on the basis of the findings of fact in that report of whether there was serious misconduct or not and if so what disciplinary action to take if any. (c) That a determination of the matter be made no later than 15 working days from the date of the decision of the Commission. (d) That if the process results in disciplinary action being considered other than termination of employment the provisions of 35.3.6 shall be complied with within that time frame. 4. That any staff who has been advised of misconduct actions against Academic A shall be advised of the decision and the outcome of the determination in paragraph [2] or [3] (whichever is applicable). 5. Noting Academic A and Academic B's desire not to work with or have contact with each other, that Academic A meet with his supervisor to arrange a mutually agreed outcome regarding his office location and to negotiate a fair protocol for avoiding contact in the school which may involve changes for either parties and which will not impinge on the reasonable working environment of either party. If such a protocol can not be resolved the matter be relisted for conciliation and failing that swift arbitration by the Commission. Or such other decision or recommendation as the Commission deems appropriate and fair. [21] The NTEU made further submissions on the Commission's powers and the remedies available because of the existence of s.170LW of the Act. Reference was made to the decision of the High Court in Construction, Forestry, Mining and Energy Union v. Australian Industrial Relations Commission 5 and a number of Commission decisions said to illustrate the breadth of the remedies available. [22] The first dispute concerned 35.5.5 of the agreement. As a result of the previous decision of the Commission of 6 August 2003 it had already been determined that it is possible to have a dispute about 35.5.5 6 , 35.7.2 does not prevent such a dispute being considered 7 and such a dispute currently exists 8 . While the jurisdictional issues have been resolved the issue that is before the Commission is the dispute about the substance of 35.5.5. It is said that this dispute involved: (a) The Vice-Chancellor could not have considered the `findings on the facts related to the alleged misconduct or serious misconduct' and then found Academic A guilty of serious misconduct for sexual harassment. (b) It was not reasonably open to the Vice-Chancellor to find Academic A guilty of serious misconduct for sexual harassment. (c) The Vice-Chancellor considered more than just the report of the Misconduct Investigation Committee but did not fairly consider all of the relevant material and may have considered irrelevant material. (d) The Vice-Chancellor did not comply with natural justice requirements and the test of Briginshaw v. Briginshaw 9 being terms implied by law into 35.5.5 of the enterprise agreement. (e) The Vice-Chancellor's decision was not a valid decision. [23] It was noted that as a result of the previous decision the Commission has already determined that 35.3.6 did not only apply as a subset of 35.3.5 but in fact applied as a requirement in this case. 10 There was no dispute between the parties that the Vice-Chancellor did not meet the requirements of 35.3.6 which required that before taking disciplinary action the Vice-Chancellor invite the employee to advise any matter they may wish the Vice-Chancellor to take into account at the time a decision as to disciplinary action is considered. [24] The NTEU submitted that a decision made after failing to follow a mandatory step is not valid. The requirement in 35.3.6 was not a trivial or insignificant matter. Given the harm that Academic A has already suffered and that the Vice-Chancellor had clearly predetermined the matter having on several occasions indicated that his decision was final it would be inappropriate to simply refer the matter back to the Vice-Chancellor for him to now comply with 35.3.6. The alternative was to permanently overturn the finding of serious misconduct and disciplinary action of censure and removal as Head of School and refer the report of Mr Marshall and other documents to another senior decision maker who has not been involved in the process and for that decision maker to read all the material to comply with clause 35.3.6 and to make a fresh decision. [25] As a result of the previous decision of the Commission it has already been determined that the removal of the Head of School role from Academic A was disciplinary action. 11 [26] It was stated that 35.2.3 limits the forms of disciplinary action the Vice-Chancellor can take in response to misconduct and serious misconduct. It did not include the right to remove a Head of School unless it was recommended by the Committee under 35.2.3 and the Committee made no such recommendation. The removal as Head of School had resulted in the most public and detrimental form of discipline against Academic A and not only meant a reduction of income of $4,500 per annum it also resulted in the very public forced removal from a role that would have otherwise continued until at least 30 June 2005. [27] The issue is what is an appropriate response to the illegitimate removal as Head of School in breach of 35.2.3 under the disputes settling procedure and the power of private arbitration conferred by 56.4 of the agreement. The remedy is what has been outlined earlier in this decision. [28] The NTEU said that the Commission has decided issues 1, 2 and 3 in favour of the NTEU and had also decided in paragraph [92] of the decision of 6 August 2003 that: "There is a dispute under clause 56 about the application of clause 56.5." [29] The NTEU further submits that following the dispute being raised on 27 May 2003 SCU did not allow work to continue in the normal manner, changed work, staffing and organisations of work that were subject to the dispute and took action likely to exacerbate the dispute. Action which had been taken which was in breach of 56.5 was: (a) Academic A did not continue as Head of School, and access was denied to his normal office, to the school building, to his normal work and to his normal as an academic. (b) The Dean advised staff in the school that Academic A would be returning to work but not in the capacity as Head of School. (c) Since the suspension and for several months after lifting of that suspension Academic A was left without: access to his original office or any other office; access to a photocopier or facsimile machine; access to mail. Academic A still has no access to a facsimile machine other than a shared one to which he has no access after normal working hours. During June 2003 the Dean rearranged normal work and organisation of work for Academic A and this resulted in a number of alterations to his position. [30] Ms Mullins submitted that the SCU had not complied with the provisions of 56.5 and that the appropriate response is to acknowledge the impact on Academic A and to take that into account in determining the overall remedies for the dispute. [31] The NTEU position that was summarised by Ms Mullins is as follows: "PN3186 . . . we say that the Vice Chancellor's decision was tainted by failure to comply with 35.3.6. It was tainted by a failure to comp ly with the limits on disciplinary action when you remove the role of Head of School and that failed to comply with 35.2.3(g) of the agreement. We also say that it was tainted by failure to comply with 35.5.5 which I will come to in detail because that is probably the biggest clause in terms of looking at the implications of it. PN3187 Then following that decision the university then failed to comply with clause 56.5 which involved not exacerbating the dispute. So there's a number of ways in which we say the decision was tainted and then the actions of the university afterwards did not comply with their obligations. Looking at the biggest area of 35.5.5, it is our submission that that clause must mean more than just an obligation for a Vice Chancellor to say: well, I've read the misconduct investigation committee report and now I can make any decision I like. PN3188 We say that under that clause the decision of the Vice Chancellor must be reasonable and that reasonableness is based on the weight of the actual evidence, the proven facts, the facts that are before him. It shouldn't be based on inexact proofs, indefinite testimony, indirect inferences or hearsay. We say the decision must take into account the standard that is required to be reasonably satisfied of the facts that is outlined in Briginshaw v Briginshaw. In this case, given the seriousness of the allegation, we essentially have, as the complainant's husband called it, an allegation that amounted to sexual assault, indecent assault." [32] Mr Wedgwood on behalf of SCU discussed first the broad question of whether an order of the Commission was justified by the facts. The dispute was fundamentally about a phase which goes from the receipt of the Misconduct Investigation Committee's report to the Vice-Chancellor's decision. The consideration therefore hinges on the Misconduct Investigation Committee report. [33] He said that the overall position was that which had been put forward by Ms Mullins: "P r ovided the Vice-Chancellor directed himself in accordance with the law, within his powers, in accordance with natural justice, and that his decision could have been reasonably reached taking into account the principle for such decision making as outlined in the Briginshaw case then the decision is `final'. It was submitted that those tests were met. He said that appropriately the Vice-Chancellor had made no finding in relation to the bullying allegation in light of the Misconduct Investigation Committee report on that topic which was that there were no facts found to support the complainant's allegations. [34] Reliance was placed on the cumulative affect of paragraphs [6] to [12] of the Misconduct Investigation Committee's report. These findings were summarised. The Committee had fulfilled its role under the certified agreement and provided a report on the facts as they determined them to the Vice-Chancellor. The Vice-Chancellor had before him the entirety of the documents that had been provided to the Committee. [35] Mr Marshall had done no more than provide the Vice-Chancellor with a guide to what was available for consideration in the matter. At no stage did the Vice-Chancellor ask Mr Marshall for a view although it was clear that Mr Marshall had proffered his view. The Vice-Chancellor sought other advice including some from officers of AHEIA but there was nothing to suggest that that was in any way improper. Whatever the background the Vice-Chancellor had been left with only two decisions to choose from. [36] The first, that Academic A was not guilty of misconduct or serious misconduct, the second to accept the complainant's version of events. Each had different versions of the relevant events. In coming to his decision that there was serious misconduct the Vice-Chancellor had complied with all of the procedural requirements of the agreement although the issue about 35.3.6 was acknowledged. It was within the Vice-Chancellor's power to make the decision and he was required to make it. There was no option not to decide. [37] The natural justice test was met because of the fact that the misconduct procedures took place. The test to be applied was whether the decision could have been reasonably reached taking into account the principles of decision making outlined in the Briginshaw case. [38] Mr Wedgwood turned to the notes prepared by Academic A and by Ms Waters of the meeting of 27 May 2003. It was pointed out that there was not a great disagreement in those records one with the other. It was noted that at that meeting the Vice-Chancellor said in discussion that if he was required to meet the criminal standard of proof then he would not be satisfied. This had in fact been the basis of Mr Marshall's advice. That, however, was not the standard. [39] The complainant and the two people that she told subsequently of the first incident and three in another were contemporaneous witnesses and their evidence was consistent with what the complainant had said about what had happened. At no point in any of the proceedings was the veracity of these people questioned. It was noted that Academic B's partner was an officer in the police force and because of the requirements of that position his evidence could be guaranteed. On the aspect of credibility and relevance reliance was placed on the proposition that if the version of complainant B is not accepted then there would need to be some motive for the complainant to make false allegations against Academic A. The fact that the report of the first incident was not made for a significant period of time, approximately eight months, should not diminish the credibility of the person who made the complaint. A reference was made to a number of decisions in which judges had warned the jury that such delay (in harrassment cases) does not necessarily mean a false allegation. The legislative direction was said to be that it was not only not appropriate for the delay argument to be put against the complainant but in fact it has been effected by statute that in judicial proceedings a warning is to be given that that conclusion should not be lightly reached. 12 [40] It was suggested that on the complainant obtaining her Ph.D she was in a more secure position. Mr Wedgwood also gave his opinion that in general individuals seek to ignore events of this type; to pretend they did not happen in circumstances where physical effects are forthcoming. The conversations with Ms Cox were referred to and relied on for the submissions that before the formal complaint was made some interaction with a counsellor from the University had occurred. The submission noted that no external parties perceived that Academic B's attitude to Academic A had changed. It was submitted that the behaviour noted or perhaps the absence of a change in behaviour was typical of responses in such situations as Academic B found herself in. In any event one of the witnesses before the Misconduct Investigation Committee had said that he had stayed back at the request of Academic B because she was concerned about Academic A. He said he stayed back just in case she felt uncomfortable. [41] A significant particular feature was the question whether or not the office door was open or shut during the first incident. The Committee found that the evidence did not support the details of Academic B's allegation. Mr Wedgwood said that the fact that one of the parties was unsure about a particular date is evidence neither one way or the other that one has to believe a particular version. The difference was explained by the normal decline in memory over a fairly lengthy period of time. What was not in dispute was that there was a heated discussion on that day. What was said and what initiated that is disagreed and whether or not the door was open or shut is a point of detail. While the Committee found that Dr Gilleard's evidence about an open door was acceptable there was no doubt there was a significant confrontation or interaction between the parties. [42] Some reference was made to the preparation of a diagram of Academic A's room at the time of the incident of 21 January 2003. The principal complaint by the NTEU against this document was that it had not been produced to Academic A and his advisors before the hearing before the Commission. Mr Wedgwood claimed that this omission was a trivial matter. There was no inference possible that because this document was not provided others were also suppressed. [43] It was submitted that the Vice-Chancellor as the chief executive officer of the University had to decide in relation to the matter one way or the other. The practical effect of that decision was that he believed one and not the other. It was noted that the Vice-Chancellor indicated a general comprehension of what might be called the Briginshaw test. He accepted that he was not convinced beyond reasonable doubt but that there was sufficient evidence available to him and that some was contemporaneous. The conclusions the Vice-Chancellor drew were not unreasonable. As the Misconduct Investigation Committee had not found bullying established the Vice-Chancellor made no finding in relation to that. Mr Marshall gave evidence that on the balance of probability issue one could come to a view that it may or may not have happened he said that his personal view was that it did not happen but he accepted that someone else might come to a different view and on that basis it was submitted that the Vice-Chancellor's decision was a reasonable one. Having reached that conclusion the only matter for consideration is the penalty to be imposed for the serious misconduct. [44] An argument was anticipated that an opportunity should be given at the stage of penalty for submissions on that matter. It was said that was pushing the envelope beyond reason. The plain reading of 35.3.6 is that if the Vice-Chancellor is of the view that the conduct amounts to misconduct then the Vice-Chancellor may take disciplinary action subject to following the procedure in 35.3.6 and this arises only in the case where the allegations are admitted in full. Even there the only type of submission that can be made is what goes to character and good conduct or personal issues. There was no evidence before the Commission that Academic A would, if provided with an opportunity, have informed the Vice-Chancellor of any mitigating circumstances or any other matters in addition to those already provided to the Misconduct Investigation Committee. The Commission was taken to exhibit NTEU 6 which referred to the material provided by the NTEU in relation to the issue about 35.6 and document 6 of exhibit NTEU 1. This sort of material would have been raised by the reference to "his lengthy years of excellent service". The Vice-Chancellor could not but have been aware of that type of information. At the point of decision on penalty the relevance of the Briginshaw rule is past. [45] At this point Mr Wedgwood canvassed the earlier decision that removal from position of Head of School was a disciplinary action. He acknowledge that I had a different view. He reasserted that the removal was a legitimate decision within the general administration or authority of the University. Even if my earlier decision were accepted it was submitted that the action was justified. He referred in this respect to the Full Bench decision in Gorczyca v. Royal Melbourne Institute of Technology University 13 and a Federal Court decision of Moshirian v. University of New South Wales . 14 [46] Of more current significance was the submission that in view of the lapse of time since the Vice-Chancellor's decision, the necessary and valid separation of the two academics involved, and the necessary requirement for good governance of the University, the restoration of Academic A to Head of School was not now a practical proposition. [47] It was submitted that there was no obligation under 56.5 because Academic A has continued his academic work as an associate professor and chair of the Academic Board. Further the NTEU, on the most generous interpretation, notified the dispute to the University on 29 May 2003 and that was after the decision was made by the Vice-Chancellor so no action had been taken subsequent to that which would contravene 56.5.3. It was noted that on 16 June 2003 I had determined that the physical relocation and related aspects were legitimate administrative action by the University in dealing with the need to separate the protagonists. In those circumstances SCU submitted that the Commission should, in exercising any discretion it determines it has, again adopt a practical approach and decline to issue any order in relation to the particular matter. [48] The response to the NTEU's reliance on the decision of the Commission in National Tertiary Education Industry Union v. Bankstown Students Association 15 was that it was not relevant to the current proceedings. That decision was concerned with a situation where it was accepted that all procedures required in the misconduct process were not followed. In relation to National Tertiary Education Industry Union v. Macquarie University 16 it was submitted that all that was provided there was a right to reply to have a position converted. Whether or not that position was converted there was a separate consideration in relation to the person. Shop, Distributive and Allied Employees Association v Big W Discount Department Stores 17 is about the application of a specific clause of the relevant agreement which imposed an obligation on each of the parties to deal with occupational health and safety matters. This did not arise in the present case. In relation to the National Tertiary Education Industry Union v. Victorian College of the Arts 18 the Commission considered whether some additional payments should be given there being little notice issued and in fact there was no overturning of the college's original decision. That was concerned with an appropriate payment in circumstances in which reinstatement was denied by the Commission (Smith C). It was nothing higher than that and it was unclear what ultimate decision was made if indeed any was made. In relation to The Australasian Meat Industry Employees Union v. George Western Foods 19 that also dealt with the question of reinstatement. It simply said that there had been a decision which was in one view contrary to the requirements of the certified agreement. That certified agreement sought to insert provisions of s.170CE of the Act into the agreement itself and to repeat the provisions of the Act. Whatever else might be said about the decision it was not one in which the Commission sought to expand its authority. The decision in Community and Public Sector Union v. Airservices Australia 20 was not relevant because again it applied to the terms of a particular agreement. The decision was complicated by the practise of appending previous certified agreements to the next certified agreement. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v. Telstra Corporation Ltd 21 was concerned with the determination of classification at the time of the transmission of business and the matter decided in affect that whether a particular classification went with the individual who moved from one employer to another and whether that was allowed for or provided for within s.89A (2) of the Act. [49] The point was made that were the matter to be reheard the Chancellor, one of the persons suggested by the NTEU, was not the alternative decision maker to the Vice-Chancellor. The certified agreement made it absolutely clear that the decision maker in this matter is the Vice-Chancellor and for better or worse it is only the Vice-Chancellor. He is not empowered to delegate the authority to someone else to make it on his behalf. His decision is the one that the parties are obliged to abide by. It is quite inappropriate for an order to be made to suggest that a party not really charged with any of the responsibilities be now made an alternative decision maker. There was no clear indication in any event that Academic A would accept a decision made by an alternative decision maker. [50] It was further submitted that if it is proposed, as it is, that the Vice-Chancellor's finding of serious misconduct and subsequent decision from that be undone, that is, a return to the status quo prior to that decision, then clearly Academic A's suspension from duty recurs. That is, whilst his position is reviewed by the new decision maker Academic A would be reinstated to the position that he was in prior to the decision: suspended. CONSIDERATION [51] The task before the Commission now may be shortly stated. It is to consider what to do to resolve the dispute occasioned by the Vice-Chancellors decision in respect of the claim or complaint brought against Academic A by Academic B. [52] It is necessary to recapitulate the positions reached. First, I have decided there is a dispute under clause 56.1 or 56.2 about the Vice-Chancellors decision under 35.5.5 and further the agreement does not, by virtue of 35.7.2, prevent such a dispute being considered by the Commission 22 . Second, there is a dispute about the application of 35.3.6 which is cognisable under 56 and the parties have now complied with the disputes procedure. Third, in keeping with the decision in re Cram: exp. Newcastle and Wallsend Coal Co Pty Ltd 23 the Commission can consider the existing rights of the parties under the agreement in order to determine whether or not there is a dispute cognisable by 56. 24 Fourth, 25 I held that there was a dispute under clause 56 about the application of 56.5. [53] The conclusion reached on these is that, given the answers to the questions, the next step is to consider whether the agreement was properly applied. [54] I agree with Mr Wedgwood, the dispute is about a phase in the matter which goes from the receipt of the Misconduct Investigation Committee's report to the Vice-Chancellor's decision. I do not agree that consideration hinges on the Misconduct Investigation Committee Report: it hinges on what the Vice-Chancellor did after he received the report. The quotation from Ms Mullins' submission which Mr Wedgwood adopted 26 is in my opinion a correct statement of the position. Certainly there was no option not to decide although whether the Vice-Chancellor could have sent the report back to the committee is moot. [55] This is not an appeal in any of the senses that is normally understood. It is not something covered by the analysis of appeals in Coal & Allied Operation P/L v AIRC & Ors. 27 It is a dispute about the application of the agreement: it is not for nothing that the application by the NTEU to the Commission is described as pursuant to s.170LW of the Act. [56] In these circumstances what has to be considered is whether the Vice-Chancellor, who is clearly required to act in accordance with the agreement, has done so. That action or actions may be one or many and opinions on the action, even on the reasons for such action, may differ but as long as the action is in accordance with the agreement it is beyond this Commission's duty, or power or inclination to interfere with it. [57] That is so, even where there is a requirement in the agreement to find misconduct has occurred as a basis for further action. Because this is not an appeal in the circumstances referred to in Coal & Allied there is no requirement that the Commission be satisfied that there was misconduct. It is enough if the decision of the Vice-Chancellor on the finding of misconduct was sufficiently reasonable as to be capable of being found to be consistent with the agreement. The observations in Briginshaw are relevant - the degree of satisfaction for a finding must be measured by the seriousness of the matters or, as Dixon J. said in Briginshaw: 28 "At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden on proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded. ... In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says: - "In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary. It is said to be that state of mind in which there is felt to be a `preponderance of evidence' in favour of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases - `satisfied,' `convinced,' and the like - have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort" (Wigmore on Evidence, 2nd ed. (1923), vol. v., sec. 2498). It is evident that Professor Wigmore countenances as much flexibility in the statement and application of the civil requirement as did Mr. Starkie. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently or the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect references." While this is not an appeal, the observations of Dixon J are relevant. [58] I apply these principles to the actual case. The Vice-Chancellor had before him: 1. The report of the Misconduct Committee. 2. The statements of the principal participants. 3. The evidence of persons who had been in the presence of or otherwise involved with the principal participants. 4. The views of Mr Marshall, he having reviewed the evidence. [59] In considering what to do it is necessary to bear in mind that s.170LW of the Act enables the parties to an agreement to empower the Commission, relevantly in this case, to settle disputes over the application of the agreement, not to settle a dispute over something other than the application of the agreement. The agreement in this cases poses two situations. 56.1 refers specifically to a dispute over procedures under the agreement and thus quite clearly comprehends the present dispute. The significance of this is underscored by the conclusions I have already reached that the action taken by the Vice-Chancellor was pursuant to clause 35 of the agreement. 29 56.2 provides for a much larger congeries of disputes. It is not necessary in this instance to contemplate the breadth of 56.2 and the extent of any private arbitration power conferred by the parties on the Commission as those powers are referred to in CFMEU v AIRC (the Private Arbitration Case ) 30 because the dispute is clearly covered by 56.1 This is the conclusion I reached earlier. 31 [60] While the criminal standard may well not have been reached the body of evidence itemised by Mr Wedgwood at paragraphs [39] and [40] above was substantial. In circumstances where the Vice-Chancellor correctly noted that it came down to who he believed that body of evidence brought the matter within Dixon J's structures in Briginshaw. For more abundant caution I note that I have not been swayed by Mr Wedgwood's general observations based on his experience. At the opposite end of the spectrum I have noted the submission that there is evidence of interraction by Academic B with a counsellor. On another matter of detail the question whether the office door was open or shut is not of much assistance in considering whether the Vice-Chancellor was within Briginshaw in making his decision but there is sufficient evidence to conclude that there was a heated discussion on the day in question. Further the absence of the diagram of Academic A's room from the material available to him and his advisors was not fatal to the Vice-Chancellor's consideration. [61] I accept that by 29 May 2003, the action which is relied on as breach of 56.5.3 (to take no action to exacerbate the dispute), was already taken. The various alterations to administrative matters which may have been taken after notification of the dispute were necessary and not in breach. [62] To determine that the matter should be referred back to someone (or some position) other than the person or position contemplated by the agreement would not be applying the agreement. It would be making a different arrangement which it is not apparent the Commission can do. [63] In keeping with the conclusion that the Commission is to correctly apply the agreement I accept Mr Wedgwood's submission that the referral of the dispute to someone other than the Vice-Chancellor is not appropriate. [64] I have concluded that the decision taken by the Vice-Chancellor is not a decision taken in accord with the provisions of clause 35. In particular, the Vice-Chancellor should have complied with 35.3.6. His failure to do so meant that to correctly apply the agreement the decision must be set aside. The opportunity afforded by 35.3.6 prior to the Vice-Chancellor making a decision and, it follows, what is forthcoming as a result of compliance with 35.3.6, must be taken into account. [65] The argument was put that the requirement of 35.3.6, which it was acknowledged was omitted, was, in short, of little consequence. I disagree, the agreement is dealing at that point with misconduct. A clear requirement, for such I have found it, must be treated seriously. I also reject the proposition that 35.3.6 was inferentially satisfied by the NTEU's own reference to lengthy years of excellent service. [66] It is a consequence of the commission's determination that Academic A be reinstated as Head of School at this point. The conclusion of the Commission is that without a recommendation from the Misconduct Investigation Committee the agreement provides no basis for removal as Head of School and; further, that step is implicitly excluded by 35.2.3. [67] Having considered this - that the material available was considered is not an improper assumption - the Vice-Chancellor found that the misconduct alleged had occurred. As was said by the advocate for SCU the Vice-Chancellor in the end, had to choose between two accounts. He chose one over the other. I am satisfied that that choice was open to him, that it did not infringe on the Briginshaw principles and, in short, that it was within the limits imposed by the requirements that it be a genuine application of the agreement. [68] That leaves the requirements of 35.3.6 which I find was not observed. What is to be done about that. [69] In approaching that I bear in mind the following: The decision by the Vice-Chancellor that there had been misconduct was reasonable. That decision meant a penalty (or none) had to be considered, ie. the Vice-Chancellor had to decide what to do. The penalty of removal as Head of School was not open in light of the Misconduct Investigation Committee's omission of it. The decision on penalty was taken without recourse to 35.3.6 and it should not have been. The Commission's role is simply to ensure that the parties correctly apply the agreement. It will be apparent from this that I determine that the dispute over the proper application of the agreement should be settled by SCU in the person of the Vice-Chancellor inviting Academic A to submit matters which he wishes the Vice-Chancellor to take into account at the time a decision on disciplinary action is taken. [70] As a matter of procedure, pending the result of that, Academic A should revert to receipt of the allowance of Head of School (from today) for the period from the termination of his position as Head of School. There is to be no other change and there is to be no recurrence of the suspension. Bearing in mind the time of year I direct that the invitation be issued no later than 16 January 2004 and the response of Academic A be supplied no later than 30 January 2004. A decision on penalty is to be made not later than 14 days after receipt of the response of Academic A. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: T. Mullins for the National Tertiary Education Industry Union. D. Wedgwood for the Australian Higher Education Industrial Association. Hearing details: 2003. Sydney: August 29; November 6, 13, 14. Printed by authority of the Commonwealth Government Printer <Price code H> 1 Print PR935798. 2 Print PR939695. 3 As noted at paragraph [5] above. 4 Exhibit SCU 4 paragraphs [8] to [30]. 5 (2001) 75 ALJR 670. 6 Paragraph [79] of the earlier decision. 7 Paragraph [74] of the earlier decision. 8 Paragraph [79] of the earlier decision. 9 [1938] 60 CLR 336. Hereafter referred to as Briginshaw. 10 Paragraph [66] of the earlier decision. 11 Paragraphs [64] to [66] of the earlier decision. 12 See, generally, `Less Than Equal: Women and the Australian Legal System', Patricia Easteal, Butterworths, Australia, 2001. 13 Print PR922414. 14 [2002] FCA 179 of 1 March 2002. 15 Print PR933176. 16 Print PR923932. 17 Print PR924554. 18 Print S0096. 19 Print PR924011. 20 Print R5773. 21 Print S0111. 22 See paragraphs [64] to [80] of the earlier decision. 23 [1987] CLR 140 at 149. 24 Paragraphs [83] and [84] of the earlier decision. 25 Originally this point appears as question 5. 26 See paragraph [33] above. 27 [2000] 203 CLR 194 at 200 per Gleeson C.J, Gaudron and Hayne JJ. Hereafter referred to as Coal & Allied. 28 See note 9 at p.360-2. 29 See paragraphs [65] to [67] of my earlier decision which are set out on p.13 of this decision. 30 [2000] 203 CLR 645. 31 See paragraph [75] of the earlier decision set out at p.15 of this decision.