Procedural Unfairness

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The recent 2016 Fair Work Commission decision of Paul Frijters v The University of Queensland [2016] FWC 2746 highlights the necessity for employers to observe procedural fairness in employee misconduct investigations. Commissioner Bissett held that an investigation by the University of Queensland into alleged misconduct by an economics professor was so “infected by error from so early on [in the investigation] that the fairest thing would be to commence the process from beginning again” [at 378]. The case provides a number of lessons that instructs employers on how to maintain the integrity in misconduct investigations so as to avoid allegations of procedural unfairness.

Facts of the Case

Economics professor, Paul Frijters, was demoted to Associate Professor and reprimanded for a controversial research publication which explored racism on Brisbane city busses. The research paper published in March 2013 and titled ‘Still Not Allowed on the Bus: It Matters if you’re Black or White!’ involved subjects attempting to board Brisbane busses without credit on their Go Cards. The subjects were from various ethnic backgrounds. It was found that 72% of white subjects were allowed to board the bus, whereas only 36% of ethnic subjects were afforded the same reprieve.

Controversy followed the day after publication. Translink made an official complaint and Fairfax Media pulled the piece shortly after.

The University of Queensland (“the University”), the employer of Paul Frijters, issued an apology and subsequently launched a research misconduct investigation. It alleged that Professor Frijters had not obtained ethical clearance pursuant to the University’s internal procedures, and if he had done so the research would not have been approved.

Professor Frijters alleged that there had been numerous instances of procedural unfairness in the University’s misconduct investigation which spanned over three years in length. For this reason he appealed to the Fair Work Commission.

The Issue Before the Commissioner

The issue before Commissioner Bissett was whether procedural unfairness had tainted the investigation into Professor Frijters’ research misconduct investigation so as to render it unreliable.

Findings of the Commission

In a 52 page judgment Commissioner Bissett referred to numerous elements of the University’s investigation. She held that, overall, the investigation had procedural deficiencies that were too significant to ignore and as such required the investigation process to be started again.

Commissioner Bissett found that:

  • Conversations with witnesses for the purpose of finalising the Investigation Report were not disclosed to Professor Frijters. This prevented Professor Frijters from being able to respond to such witness statements and, as such, was procedurally unfair;
  • Professor Frijters was appointed a new supervisor halfway through the investigation without notice. The new supervisor was the dean of the school. This was procedurally unfair and in breach of the University of Queensland Enterprise Agreement 2010 (“the 2010 Agreement”). The 2010 Agreement stipulated that Professor Frijters was to have only one academic supervisor at a time and that changes to this required written notification. Commissioner Bissett commented that a lawful and reasonable change of supervisor midway through the investigation would not be “fatal to the process or a breach of the 2010 Agreement.” The University, however, did not have reasonable or lawful justification and therefore were in breach of the relevant clauses under the 2010 Agreement;
  • Conversations throughout the investigation were not disclosed to Professor Frijters;
  • There were delays in the investigation process;
  • The University “expressed a concluded view with respect to the conduct of Professor Frijters to the Brisbane City Council without giving Professor Frijters an opportunity to be heard.”

Commissioner Bissett stated that these were not minor matters which could be “swept aside”.

Commissioner Bissett was also critical that Professor Frijters’ complaints of the procedural unfairness “just weren’t considered and were not included in any of the reports or decisions.” The Senior Executive, Professor Wright, who concluded that misconduct had been made out from the investigation did not take into account all of the circumstances for this reason. Instead she treated the allegations separately from the procedural deficiencies, and referred Professor Frijters complaints to the Vice Chancellor. At 370 -371, Commissioner Bissett commented that the investigation was unreliable for this reason.

“The separation of the allegations and related findings from the procedural deficiencies means that a decision was not made in respect of all of the circumstances leading to that point in time… This is, in my opinion, a major procedural flaw and one which severely effects whether or not the process was carried out in accordance with the requirements of the 2010 Agreement. It raises legitimate questions as to the final conclusion reached by Professor Wright.”

Lessons

After a three year long misconduct investigation, the Commissioner ordered that a new investigation be restarted due to procedural unfairness – a frustrating outcome for both parties. The case highlights that an employer should strictly observe company investigatory procedures when treating alleged misconduct. If procedural unfairness is alleged during the internal investigation, this also needs to be addressed within the investigation’s findings.

If employers do not ensure the above they risk tainting an entire investigation, as is what happened in Paul Frijters v The University of Queensland.