19 June 2007
Key Points:
McAleer emphasised the importance of providing procedural fairness to those being investigated for allegations of sexual harassment or other serious misconduct.
In the recent decision in McAleer v The University of Western Australia [2007] FCA 52 (2 February 2007), the Federal Court of Australia imposed a substantial fine on the employer for failing to provide adequate particulars of the allegations of sexual harassment that had been made against the applicant, Mr McAleer.
The case focused on the breach of a specific provision of the applicable certified agreement, which required detailed particulars to be provided to an employee under investigation for misconduct. The case also however has implications when there is no express requirement on the employer to provide details of allegations made.
Background
Mr McAleer is a tenured professor in the Department of Economics at the University of Western Australia.
On 8 December 2005, Mr McAleer was handed a letter by the University setting out allegations of sexual harassment made against him and advising him that the University intended to commence an investigation. On 6 January 2006, the University sent a letter to Mr McAleer advising him that he was suspended without pay pending the outcome of the investigation.
At the time of those letters, the University was party to a certified agreement under the Workplace Relations Act 1996 (Cth) known as "The University of Western Australia Academic Staff Agreement 2004". The terms of the 2004 Agreement applied to the academic staff of the University, including Mr McAleer.
Schedule D of the 2004 Agreement dealt with the process to be adopted where allegations of misconduct were made against a member of the academic staff. It provided that the employee subject to investigation must be notified "in writing and in sufficient detail to enable the employee to understand the precise nature of the allegations(s), and to properly consider and respond to them."
The letters of both 8 December 2005 and 6 January 2006 contained the same allegations. The letters included the following level of detail:
"The allegations of serious misconduct cover the following alleged behaviours by you:
Two female members of the Department of Economics were interviewed as part of the investigation and affidavits were made containing their accounts of conversations and events that occurred over the course of a number of years. Copies of the affidavits were provided to Mr McAleer's solicitors.
Mr McAleer complained to the University that it had failed to set out in sufficient detail the particulars of the allegations made against him and, accordingly, the University was in breach of Schedule D of the 2004 Agreement.
In response to Mr McAleer's complaint, the University sent Mr McAleer a further document on 2 March 2006, which linked each of the allegations to numbered paragraphs in the affidavits of the two interviewees. For example, the document stated:
"Graphically discussing a range of sexual practices: Para 9; Para 27; Para 29; Para 33; Para 37…"
Mr McAleer continued to complain that the provision of the particulars failed to include adequate detail.
Notwithstanding the further complaints, the University did not provide any further details and continued with hearings by a Misconduct Investigation Committee, which was established in February 2006.
The complaint
Mr McAleer commenced proceedings in the Federal Court, seeking a declaration relating to the proper interpretation of Schedule D of the 2004 Agreement and the imposition of a penalty upon the University.
In addition to breaching Schedule D of the 2004 Agreement, Mr McAleer submitted that the failure to provide proper particulars of the allegations was also a breach of the implied obligations of the University under its contract of employment with Mr McAleer to do nothing to undermine mutual trust or confidence between the parties to the contract and to co-operate with Mr McAleer in giving effect to the contract of employment.
The decision
The Court declared that the University breached Schedule D of the 2004 Agreement by failing to provide particulars of the allegations made against Mr McAleer in sufficient detail to enable him to understand the precise nature of the allegations and to properly consider and respond to them.
In relation to Mr McAleer's submission that the University's failure to provide proper particulars also breached its implied obligations, the Court referred to Clause 60 of the 2004 Agreement, which states that the termination of employment at the instance of the University is to be "exhaustively governed" by Schedule D of the 2004 Agreement. It held that Clause 60 operated as an express exclusion to the implied terms contended by Mr McAleer.
The University was ordered to pay $20,000 to Mr McAleer. The fine was imposed pursuant to section 178 of the Workplace Relations Act (the Court applied the provisions of the Act as they were on 17 March 2006 when the proceedings commenced; section 719 now includes the similar provision).
The maximum fine that could have been imposed was $33,000.
When referring to the basis for deciding an appropriate penalty, the Court stated:
"It is a fundamental element of procedural fairness that a party should know the case which has been made against him or her, so that the person may have a fair opportunity to defend himself or herself. The failure by the University to provide the applicant with adequate particulars of the allegations was a serious breach."
The Court further stated that another factor in favour of the imposition of the penalty was deterrence, noting that reputation is particularly cherished in the academic world and that the importance of the need for the University to act in accordance with the agreed disciplinary procedure should be reflected in the quantum of the penalty.
Implications
While the facts of the case relate to an express provision of an applicable certified agreement, it nevertheless raises issues regarding the general duties of employers to provide details of allegations where there is investigation into sexual harassment or other serious misconduct.
The Court's comments regarding the "fundamental element of procedural fairness that a party should know the case which has been made against him or her" indicate its support for the provision of full details of allegations to an employee under investigation for alleged serious misconduct including sexual harassment or other serious misconduct.
Further, it is clear that the Court found the approach of simply summarising the allegations and cross-referring to statements made by witnesses as insufficient to satisfy employers' obligations when putting serious allegations to employees.
Although the imposition of a penalty on the employer under section 719 of the Workplace Relations Act only applies where there is a breach of a provision of an "applicable provision" as defined in section 717 (including a term of an AWA, an award or a collective agreement), failure to provide adequate detail of allegations could be used to support an employee's claim that a termination of his employment is harsh, unjust or unreasonable. There is also the potential for employees to rely on this case to attack the adequacy of equal opportunity investigations in the future.
Thanks to Anna Casellas and Amy Toohey for their help with this article.
For further information, please contact Glen Bartlett.
