Integrity of an Australian Employment Contract :

 

Salby v Macquarie university

*

___________________________

Documentation extracted from the public record of the Federal Court and Circuit Court of Australia: SYG  1677/2013; NSD 357/2016.

*

Breaking Silence  
 
Following queries from the public in 2013, I released a cursory disclosure of events concerning my termination by Macquarie university. Since then, I maintained a position of silence - to avoid compromising formal proceedings to correct Macquarie's conduct. I did so  because I believed, naively, that a matter between a foreign recruit and an Australian employer would be treated impartially.
                           Chronology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . .  1
                                 Recruitment + Terms of Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
                                 What I Found After Relocating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
                                 Obstruction of Duties + Administrative Failures: Attempts at Resolution . . . . . . . . . . . . . . . . . . . . . . .1                                 
                                 Presentation of Climate Research followed by Reduction of Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
                                 Objection + Accusation of Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
 
                           Formal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . 2
                                 Governing Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
                                 Sequestration of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
                                 Erroneous Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
                           Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                           Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                                 Macquarie's International Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                                 The Research Student . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                                 Rewards of Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2                                
                                 Legal Costs. . . . . .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                                 Confiscation of Research and Office Property. . . . .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

                                                                         Chronology

 

 Recruitment + Terms of Appointment

  • June 2007: Macquarie advertised for a Professor of Climate in its so-called "Concentration of Research Excellence" (CORE).            The premise of this chair, whose focus was on research and research training, was to achieve Macquarie's new mission:                               to play in the big leagueto become internationally recognized in research.

 

       These terms of the appointment were articulated in the Letter of Offer, Terms Sheet, and an Australian Workplace Agreement (AWA)

       which, together, formed the Employment Contract:

                  The terms and conditions of your employment will be as set out in this letter, the attached terms sheet and AWA.

                          

The Australian Workplace Agreement (AWA) was an individual agreement with me. It was the foundation of the Employment Contract,   providing nearly all of the employment protections. Notable was regulatory oversight by an independent third party: a government agency. Macquarie advised:

                        "There is a workplace Ombudsman to assist employees and ensure that employers meet their obligations."

 

The Employment Contract excluded the collective agreement of the teachers union, the so-called Enterprise Agreement (EA).

The EA itself excluded me - because my salary exceeded the salary cap of the EA. During recruitment, Macquarie notified me of just that:

                                                        "You are not covered by the Enterprise Agreement".

 

Along with the Employment Contract, Macquarie also offered a Startup Package of technical resources - to enable me to rebuild                 my research program and function professionally in Australia. Offered and approved in writing, the Startup Package included                         two research assistants over 3 years to convert my atmospheric models to operate in Australia, as well as international research travel

for scientific conferences and collaboration. Macquarie offered further that, if I accepted its chair, I would

develop new postgraduate coursework to train students for research.

What I Found After Relocating

  • March 2008: Just 2 months after Macquarie offered the Startup Package, I attempted to hire the first of the two research assistants.         I was then turned away, with the disclosure that a hiring freeze was in place. When Macquarie terminated my appointment,                       after 5 years and countless attempts to acquire the pledged startup resources, the hiring freeze was still in place.

Macquarie's legacy program was qualitative, devoid of rigor and quantitative skill that underpin modern research on climate.

I found that students who were about to graduate lacked even a conceptual understanding of the subject. Why soon became clear.

Raising the standard was opposed by legacy academics, who zealously protected the status quo: educational tourism.

 

To achieve Macquarie's new mission, I organized with Australia's Bureau of Meteorology (BOM) and Commonwealth Scientific and Industrial Research Organization (CSIRO) a national climate research and training program. Together with postgraduate teaching

and a summer colloquium, the national climate program attracted interest from other universities who sought participation.

I developed, with administrative approval, recruitment media to attract students for postgraduate training and quantitative research. Macquarie's legacy academics had it destroyed. Recruitment of qualified undergraduates met a similar fate. The obstructions were

even imposed on the postgraduate class which, during my recruitment, I had been offered to develop.

 

Complaints over the obstructions were lodged with Macquarie administration. They were ignored. The ongoing pattern

of obstruction forced repeated postponement of the national program in climate research and training.The chronic delay

became an increasing concern of BOM, CSIRO, and interested universities. Due to internal obstructions and administrative neglect,

the national program had to be cancelled. It's noteworthy that the internal failures which forced the cancellation of the

national program were by an enterprise that markets itself as "Australia's Innovative University".

 

After years of me being led around in circles, the Startup Package which Macquarie had pledged to rebuild my research program

continued to be withheld. The default on Macquarie's pledge left me professionally incapacitated - without the tools of my research. Eventually Macquarie lost even a record of the Startup Package Agreement.

 

During the gyrations, a bright young student from Europe sought to work with me towards a PhD. At that time, she held a scholarship

from a well-regarded European university - one home to Nobel laureates in physics. To work with me, Macquarie required the student

to relinquish her PhD scholarship and withdraw from her European university. Her research, which Macquarie approved,

required my computational tools and, hence, the same startup resources Macquarie had pledged to rebuild my research program.

Obstruction of Duties + Administrative Failures: Attempts at Resolution

 

Complaints over the withholding of those pledged resources and obstructions to research training were registered in

the 2009 PDR form, an exercise that was required to address those failures.

  • March 2010: Instead of conducting the PDR, Macquarie notified me that my salary loading was being summarily terminated.                 The administrative action reduced my salary by 25% from that at which I had been recruited. The PDR, which was required  contractually to evaluate loading, was not conducted.  The "agreed performance criteria", likewise required contractually                       to evaluate loading, were simply disregarded. And, notably, of the startup resources which had been pledged                                        to enable me to function professionally, Macquarie had not provided even the first major component.

What was Macquarie’s excuse for summarily reducing my salary? According to the legacy-academic manager, I was not performing.

Yet, because he failed to conduct the PDR and failed even to follow the "agreed performance criteria", the legacy-academic manager

was oblivious of the circumstances - even of the  700 pp research mongraph/postgraduate text that I produced.

But, as he did not conduct the PDR nor comply with the "agreed performance criteria", as required, how could he know?

Later, the legacy-academic manager revealed that he wasn't even aware that conducting the PDR was his responsibility.

 

Macquarie withheld the startup resources it had pledged to enable me to function professionally. It then used its default

on that commitment as a pretext to significantly reduce the salary from that at which it had recruited me from the US.

I complained to executive management. My complaint met the same fate as predecessors: It was ignored. At my initiative,

the Faculty Manager sought the release of my Startup Package from executive management. His efforts were likewise ignored.

  • July 2010: Eventually, I complained to the Vice Chancellor (VC). The Faculty Manager was then finally given an audience.                     My Startup Package was re-approved. But Macquarie then restricted the 3 years of technical support it had pledged to 2.5 years.          Even then, the Startup Package continued to be withheld. The first year of the first research assistant was not provided                           for another half year, leaving only 2 of the 3 years pledged. In fact, beyond the first year of the first assistant,                                        the rest of the pledged technical support was never provided.

       Other concerns I raised with the VC (eg, improper reduction of salary) were simply ignored.

  • December 2010:  I lodged a formal complaint with the Director of HR, a  protection of my Employment Contract.                                    He was contractually required to respond within 5 days.  He did not. In fact, he admitted that he did not even issue a response - ever

  • March 2011: I then lodged a complaint with the Fair Work Ombudsman, who was supposed to exercise regulatory oversight                   of my appointment. The Ombudsman notified me that Macquarie had not even registered my AWA, the statutory instrument             of my Employment Contract. Macquarie's neglegence just happened to circumvent the Ombudsman's jurisdiction                              - the regulatory oversight which, during my recruitment, Macquarie represented would protect my appointment.

Presentation of Climate Research followed by Reduction of Role

While my Startup Package was withheld, I undertook the production of a new book - all that I could do without the resources that had

been pledged to rebuild my research program. In the course of preparing Physics of the Atmosphere & Climate, I explored uncertainty surrounding the increase of atmospheric CO2. My research revealed that evidence for increased CO2 being of human origin

was a house of cards. Under scientific scrutiny, it quickly collapsed.

 

  • August 2011: The results were presented at a scientific conference and later in an invited lecture at the Sydney Institute.                      The new results undermined the ideological dogma of global warming, a dogma vaunted by Macquarie academics                              to leverage research funding and political influence.

The significance of the new results was widely recognized, attracting interest internationally. Consequently, the results also attracted

the ire of Macquarie academics, whose research funding depended upon their ideological dogma and the climate of fear it generated.

  • September 2011: Just weeks later, Macquarie notified me that my role was being altered: I would be excluded from teaching climate     - the subject of my appointment. Instead, I would be required to support junior staff, who just happened to push the political dogma:
     

                    "The climate group has requested different staffing.

                      You will be assigned teaching/tutoring/marking/fieldwork in non-climate units.
                      We will be moving you to a situation where your teaching will be to help others (ie, general support)."

 

       I was the only full Professor of climate with teaching duties. Climate was, in fact, the subject of my appointment.                    

       Yet, under its administrative edict, Macquarie notified me that this was to be

                                                                   "your new teaching role".

My teaching is highly regarded. I notified Macquarie where it could position my "new teaching role". Concurrently,

I offered to teach any of half a dozen classes in the subject of my appointment - the same classes taught by my peers.

  • October 2012: After my concerns and contractual protections continued to be ignored, I engaged legal support. To resolve the issues, which involved contractual and statutory breaches, Solicitor sought discussion with the responsible manager - the legacy academic  who improperly reduced my salary and then prohibited me from teaching climate. Solicitor's request for discussion was refused. Solicitor then demanded discussion of the issues, including discussion of my prospective teaching -  required by my Contract.

  • November 2012: A meeting was convened with the manager. When Solicitor and I attempted to discuss the issues (notably,                   my prospective teaching that was required to be "as agreed with your manager"), the manager got up and walked out.

  • December-January 2012: Solicitor then placed half a dozen requests for discussion with higher levels of Macquarie administration.          They met the same fate, as chronicled in a subsequent letter to the VC:

                                                         "MQ's handling of this matter is astounding.

                                                           I had incorrectly thought MQ would be willing to work with Professor Salby

                                                           to resolve his employment concerns.. as the law requires."

During the same period, I filed travel forms to present new research on CO2 at an international scientific conference and a lecture series that had been scheduled by major research centers in Europe. The presentations were an implementation of the international travel               that Macquarie had pledged. The new research, however, did not comport with the political dogma of Macquarie academics.                   On the contrary, it undermined their leverage. Unlike prior travel, these travel forms were sequestered. Despite notices from me,

even from the HR manager, the forms simply vanished - until, that is, Macquarie's retroactive deadline for accessing that travel support

in the Startup Package had passed. Acting on the travel forms was the responsibility of one Paul Beggs, a legacy-academic in the                   so-called "climate group" and advocate of Australia's Carbon Tax. Beggs routinely advised the legacy manager, serving as his deputy

and eventually succeeding him. Beggs' improper treatment of research travel was a subversion of the Startup package Agreement.

And, notably, it was conducted while Macquarie ignored Solicitor's repeated requests for discussion of those very issues.

To comply with Macquarie's  retroactive deadline, the travel was booked on the credit card attached to my Startup Package,

wherein that travel had been approved. This was, in fact, the operating procedure - identical to bookings of earlier travel.

  • February 2013: Paul Beggs , now Head of department and my manager, rejected the research travel. His excuse? Salby had not       made arrangements to cover his teaching. In fact, Salby's teaching had not even been defined. The PDR, which was Beggs' responsibility, was required to define teaching through discussion and agreement. The PDR had not even been conducted - again. And, concurrently, Solicitor's repeated requests to discuss Salby's teaching continued to be ignored.

 

The period of research travel was almost entirely during term break - when classes are not even held. Moreover, the class which Beggs alleged would conflict with my research travel was co-taught by several academics. Setting the days when individual academics teach

was the authority of the Class Convenor - not a manager ignorant of the material. The Class Convenor notified Beggs unequivocally:

                                   "I and Murry have not yet discussed the course schedule for this year yet."

Beggs’ untimely rejection of my research travel was groundless and invalid. His prohibition of research travel

- even when classes are not held - was contradicted by Macquarie's own travel policy. Notice: Beggs' rationalization

would have prevented me from ever presenting my research on climate, research that just happened to contradict

Beggs’ advocacy for a carbon tax.

Objection + Accusation of Misconduct

 

I objected to Beggs` rejection of my research travel, notifying Beggs that I would be overseas during April to implement the

approved startup resources and fulfill the principal duties of my appointment. Beggs was then required to hold discussion

to resolve the disputed matter. My complaint met the same fate as requests for discussion by Solicitor. It was ignored.

  • January-February 2013: Beggs then issued his assignment of my teaching. In disregard of the required PDR,                                          even of repeated requests for discussion of my teaching, the assignment was plainly not "as agreed with your manager".  

      And what were the teaching duties to which Beggs assigned me? The Professor of climate was virtually excluded from

      teaching climate. Instead, he was diverted to undergraduate non-climate classes. There, he was to provide hundreds of hours

      of menial support - to junior academics (viz marking their students' papers). While prohibiting the Professor of climate

      from communicating research on climate, from developing strategic alliances with international research centers on climate,

      and from teaching climate, the Professor of climate was required to sit at his desk to mark student papers for junior academics

      -  even during term break, when classes are not held.

Beggs' assignment violated contractual protections, even institutional policy governing disputed issues:

                                  "The university shall not change work, staffing, or the organization of work,
                                     if such is the subject of the dispute..
nor take any other action likely to exacerbate the dispute."

 

The reduction of role was unprecedented - meted out exclusively to Salby. It was tantamount to "constructive dismissal".

Had I accepted Beggs' alteration of my role, I would have waived principal benefits of my appointment as Professor of climate.

I objected to the material alteration of role:

                        "The teaching duties you have designated are in contravention of my appointment. They are not acceptable."

 

Beggs was again required to conduct discussion to resolve the disputed matter. He did not.

Instead, Beggs  promptly filed a complaint with the Dean, alleging that I refused to teach.

The Dean was then required to conduct discussion, which had long since been requested.

He did not. Instead, he demanded summary compliance with Beggs' edict of improper duties.

Meanwhile, the teaching which Beggs invoked to reject my research travel had never been properly set - not through discussion,

which was refused, nor through the Class Convenor, whose authority was preempted by Beggs' proclamation.

  • February 2013: Beggs filed a formal complaint, accusing me of "serious misconduct" - that I had refused to teach.                         Macquarie staff then deliberately misinformed executive management of the circumstances                                                                            - decision makers from whom they sought my suspension and then termination:

 

                                       "the matter of Professor Salby's refusal to teach"

                                       "He says he doesn't have to teach because of  research commitments"

 

They lied. In fact, Salby wanted to teach - (1) having offered to teach any of half a dozen classes and (2) having sought

discussion of teaching (required contractually) in the meeting with Solicitor and the legacy-academic manager,

the meeting wherein that manager refused such discussion and then got up and walked out.

I was then suspended without pay, locked out of my office, and accused of "serious misconduct" - because I objected to

Beggs' reduction of my role and exacerbation of an issue that was in dispute - a benefit of my employment which Macquarie

was contractually and legally required to respect by engaging in discussion. My research files were promptly confiscated,

along with other office property.

Later, the decision makers testified that they had been kept in the dark on the true circumstances: They were (i) oblivious to the fact            that assignment of my teaching was an issue in dispute and  (ii) oblivious to repeated requests for discussion to resolve that issue and, pursuant to contractual requirements, to develop my teaching through discussion and agreement. It's noteworthy that Solicitor's letters were sent to every level of Macquarie management - including those who misinformed the decision makers. Eventually,

they were sent directly to those decision makers - parties who later denied receiving the letters.

 

Once I was suspended, my student, the one whom Macquarie required to abandon her PhD scholarship in Europe,

was prohibited from speaking with me - even to publish our research on CO2:

 

                        "According to them, I shouldn’t even contact you.. even to discuss publishing our results (?!)."

 

The student was isolated - left rudderless. Macquarie's competence in atmospheric dynamics and ozone

(the focus of her approved research) was even more vacuous than Macquarie's competence in the science of climate.

  • March 2013: Solicitor wrote the VC, chronicling Macquarie's repeated refusals to discuss the issues, including my forthcoming duties, matters which Macquarie then invoked as a pretext to accuse me of misconduct:

 

                 "MQ's actions are unreasonable, incorrect at law, and constitute a breach of contract and procedural fairness."

                  "MQ's unilateral variation of  Professor Salby's employment contract, without his consent,

                   to significantly alter the duties for which he was employed, constitutes a breach of his

                   employment contract resulting in constructive dismissal."

                  "The MQ Enterprise Agreement does not govern my client's employment.

                     MQ's refusal to engage in dialogue has resulted in my client

                                        ●   being placed on leave without pay for refusing to perform duties which

                                             are contrary to his employment contract and his role of Professor and

                                        ●   being investigated for gross misconduct under an enterprise agreement which does not even apply to him."

Solicitor also notified Macquarie that, following my return to Australia, a full response to Beggs' allegations would be submitted.

Later, the VC claimed that he had not received the letter.

  • April 2013: Following my lecture series in Europe, I arrived at the airport in Paris for my return to Australia.                                                    I was then informed that my return ticket had been cancelled. Instructions for its cancellation were issued by Macquarie. 

       They were  issued shortly before my scheduled return to Australia - in desperation:

 

                                                                                  "URGENT!!!!!"

The ticket that Macquarie cancelled was non-refundable.

 

Macquarie's impromptu cancellation of my return ticket left me stranded in Europe, without lodging or return travel.

When I eventually did return to Australia, I found a letter from Macquarie that, despite repeated notices,

Macquarie had held its misconduct proceedings precisely when it knew that I would be overseas, issued findings,

and the proceedings would be concluded in 48 hrs. My scheduled return, which Macquarie cancelled,

would have caught the end of those proceedings.

 

I notified Macquarie that, despite its obstruction, I had managed to return to Australia and reiterated my intention

to assemble a detailed response to Beggs' allegations. I notified Macquarie further that, owing to Macquarie's obstruction,

assembling a detailed response in 48 hrs was impossible - especially since Macquarie blocked access to records in my office,

material  needed for my response. Macquarie disregarded that notice as well. It  promptly concluded its misconduct proceedings, 

excluding input from me.

 

Macquarie's treatment of the proceedings ensured that I would not be heard, protecting Beggs' misconduct allegations against challenge.

It violated a fundamental protection of the Employment Contract. Unsurprisingly, the resulting report was rife with falsehood.

  • May 2013: I filed a complaint with the Fair Work Commission, under federal protections of academic employees.                       Macquarie received a notice and summons. It then preempted those proceedings by terminating my appointment.

Later, the Director of HR testified:

 

                                           "I cannot recall whether I knew about the Fair Work proceedings."

 

Macquarie took this preemptive action pursuant to the EA, which was more restrictive than protections in my Employment Contract.

In allegations of misconduct, the Employment Contract required that I

                                           "be given an opportunity to respond and seek assistance."

Instead, Macquarie (i) blocked access to my records, which were needed to defend against Beggs' allegations, (ii) held its misconduct proceedings when it knew I would be overseas, (iii) cancelled my return to Australia, ensuring that I would not be heard, (iv) after being notified that, despite its obstruction, I had returned to Australia and intended to assemble a detailed response to Beggs' allegations, Macquarie promptly concluded its misconduct proceedings - preempting input from me, and (v) when I then sought assistance from

the Fair Work Commission, Macquarie preempted those proceedings by terminating the employment relationship.

  • June 2013: I was notified by the public of claims by Wil Steffen, a commissioner on the now-defunct Australian Climate Commission        - and author of a report that I had debunked in The Australian newspaper. When confronted with the new research I had presented      in Europe, Steffen defended his evocative claims on global warming with:

                                                                    "Salby has been discredited and sacked."


      When Steffen issued this declaration, I had disclosed to no one the state of affairs at Macquarie. Steffen’s remarks

      could have derived only from Macquarie staff, who joined Steffen on the Climate Commission.

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