Milam v University of Melbourne [2019] FCA 171

A suspended Professor has been allowed to return to work, after claiming her University employer failed to comply with its enterprise agreement when standing her down with pay while investigating allegations of misconduct.

The facts and decision

Allegations of misconduct were made against the Professor by two colleagues, and the University engaged an external adviser to investigate the allegations. Concerned that continued interactions between the Professor and the alleged victims would create a risk to health and safety, the University sought to suspend the Professor from work on full pay during the investigation.

The Professor applied to the Federal Court of Australia, arguing that the University’s investigation and her suspension from work breached the detailed disciplinary clause set out in its enterprise agreement.

The Court agreed that there was a serious question to be tried and granted the injunction to the Professor, allowing her to continue working during the investigation.

Lessons for employers

It is evident from the decision that the Court had concerns about whether the disciplinary process being followed by the University was compliant with what had been agreed in its enterprise agreement. Had the University strictly complied with the procedural requirements in the enterprise agreement, it is less likely the Professor’s application to return to work during the investigation would have been successful.

When negotiating new enterprise agreements, employers should seek to avoid disciplinary clauses that restrict their ability to effectively manage performance issues or workplace investigations.

However, many enterprise agreements already include highly prescriptive clauses. This case is a timely reminder that enterprise agreements must be strictly followed. Failure to do so creates the obvious risk that an employee has been unfairly dismissed, and also that the employer has potentially contravened the Fair Work Act 2009 (Cth). But more importantly, an employee threatened with suspension or dismissal may be able to obtain injunctive relief that restricts an employer’s ability to effectively manage its own staff.