Formal Proceedings

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After being certified by the Fair Work Commission, the matter was transferred to Federal Circuit Court,

then to Australian Federal Court. In defense of its chronic pattern of administrative failures, Macquarie claimed ignorance -

an epidemic of amnesia.

 

And how did Australian courts treat Macquarie's conduct? In short, they gave it their Blue Ribbon Stamp of Approval.

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Governing Statutes

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Australian law purportedly protects employment:

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• The Higher Education Legislation Amendment (HELA) required Macquarie to provide:

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                    "direct consultation with employees on HR  matters"   and  "fair and transparent.. performance management".

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• The Fair Work (FW) and Workplace Relations (WR) Acts:

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         (1) Required Macquarie to register an approved AWA

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         (2) Prohibited Macquarie from altering the position of an employee to the employee’s prejudice, from discriminating between

              an employee and others, or from dismissing an employee - because the employee (i) had or exercised a workplace right

              or (ii) made a complaint or inquiry about his employment or (iii) because of the employee's political opinion

              (viz opinion on governance and public affairs).

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         (3) Reversed onus of proof: The claimed adverse actions are presumed to have been prohibited, unless proven otherwise.

              In making this determination, the court was required to meet the following standards:

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                  “The task of the court is to determine, on the balance of probabilities, why the employer took adverse action."

                  "This is a question of fact, which must be answered in light of all of the facts."

             

The proceedings failed these standards, conspicuously. Among their defects was surprise, which, although prohibited,

Macquarie exercised while sequestering opposing evidence.

 

Sequestration of Evidence

 

My research files and office property were seized by Macquarie in 2013, when Macquarie blocked access. Included were records

of my interactions with Macquarie that I had maintained. During the legal proceedings, Macquarie denied access to that property,

which was necessary to be heard on the issues. It was the same tactic Macquarie employed during its misconduct proceedings.

My records falsified claims by Macquarie. To complete my evidence in reply I had to seek access through subpoena

- of my own property. Macquarie objected, eventually claiming that the contents of my office, almost all of which

I had brought from the US (hundreds of books, journals, files, computer eqpt, and dozens of volumes of handwritten equations

that I had assembled during my 30-year career) were now Macquarie's property. It was not the first such claim by Macquarie.

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I notified the court of concerns over due process:

            “If Respondents are permitted to discriminate which interactions between the parties are heard,

              while Applicant is prohibited from presenting the rest, how will the court judge the basis for adverse action?”

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To my concern over access, the court simply responded: "You're in the wrong court."

 

If I wanted access to my records to be heard on the issues before this court, I would have to commence a separate action in another court.

I advised the court that opening a separate action to be heard on this one would render the two inextricably intertwined. Nevertheless,

the court set aside the subpoena, ordering limited access: Cartons in which the records were thought to have been packed by Macquarie

were ordered to be transferred to the court Registry, where both parties were to have "supervised  access". 

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I notified Macquarie that I would be overseas during March 2015 to fulfill professional commitments. When I departed,

Macquarie sought and was granted an order for me to have access to my office property on one day - a day when

Macquarie knew that I would be overseas.

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Upon returning in April, I discovered the events and notified the court of Macquarie's devious action - but the latest.

The court did not correct the matter. After Macquarie continued to refuse access, I had to seek access through another subpoena.

Macquarie again objected.

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Macquarie's latest objection was heard only days before the final hearing. The court then ordered major submissions for that hearing.

I notified the court that, because of Macquarie's deception, I still had not been provided access to my records, which were necessary

for my evidence in reply - material which had been subpoenaed 6 months earlier and access to which had been ordered.

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                         “How can I file submissions, when I haven’t been permitted to complete my evidence in reply? "

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 The court simply responded: “I am ordering that now”, leaving the untimely hearing in place.

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"Now" was was 3:30 PM, just 3 business days before the week-long hearing. I promptly went to the Registry, which was preparing to close.

The Registry could not even find the cartons from my office.

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I eventually located the material, which falsified Macquarie's representations. It was included in my evidence in reply and filed along with

my submissions in reply. Macquarie objected to the completion of my evidence. I notified the court that the delay was created entirely

by Macquarie - through its obstruction and devious request for me to have access on a day when Macquarie knew that I would be overseas. The court obliged Macquarie's request: It excluded my completed evidence. The treatment protected Macquarie's representations  against challenge. It mirrored Macquarie's handling of its misconduct proceedings.

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Erroneous Findings

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Findings of the Federal Circuit Court were, in major part, simply a copy of Macquarie's written submissions - much of it verbatim.

Its rationalizations for endorsing Macquarie's conduct are falsified here and here. The court's uncritical adoption of Macquarie's submissions reproduced misrepresentations and errors, which are contradicted by the record.

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Fundamental was the Employment Contract, which the court failed to determine correctly.  The court found that,

because Macquarie did not register the AWA, my appointment was governed by the 2007 Enterprise Agreement.

This finding was central, underpinning much of the court's analysis and treatment of the issues. It was equally impossible.

 

I was exempt from the EA, as Macquarie notified me during recruitment:

 

                         “You are not covered by the Enterprise Agreement. The Agreement has an exemption..
                           It does not apply to staff who earn in excess of 15% above the maximum salary for a professor,
                           which obviously includes you.”

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The EA could not even apply to me. It could hardly supplant terms of the AWA that formed the foundation of the Employment Contract.

As Solicitor recognized in her letter to Macquarie:

                        “The matter is one of simple contract law. The fact that the AWA was not registered
                           is irrelevant to the extent that its terms still form part of my client’s employment contract.”

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As the finding of what comprised the Employment Contract was incorrect, so too were findings of its Breach and Adverse action,

issues that were predicated upon it. It's noteworthy that this central finding legitimized the removal of 90% of the Employment Contract,

to which the parties had agreed, and virtually all of the employment protections. Derived from Macquarie's failure to register the AWA,

it violated a precept of English law. The Rule of Construction requires that "a party may not benefit from its own wrongdoing."

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Similarly, the court parroted Macquarie's representation of the Startup Package, (1) disregarding the technical resources that Macquarie pledged in writing to provide, (2) disregarding the hiring freeze which was in place when Macquarie pledged that technical support

but which Macquarie did not disclose and would prevent that support from being acquired - until I was either retired or dead,

and (3) disregarding Macquarie's retroactive alteration of the Startup Package Agreement and then its subversion by withholding

the approved travel support - until it could be withdawn. Macquarie was again permitted to benefit from its wrongdoing.

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The court disregarded protections in the Higher Education Legislation Amendment by likewise parroting Macquarie's representation -

that the HELA was only "a bill"and therefore not law. Yet the record showed that the HELA was enacted by Parliament in November 2005.

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Macquarie's neglegence to register the AWA just happened to circumvent a fundamental protection that Macquarie had offered:

Regulatory oversight by an independent third party. The court found that the failure to fulfill this responsibility

wasn't Macquarie's fault. It must have been Salby's fault. Salby must not have given Macquarie the signed AWA.

​The finding is contradicted by the record. Regardless, the court's finding transferred the responsibility from the Australian employer

to a foreign resident - a party who was ignorant of Australian employment law and was not even governed by it.

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The court permitted Macquarie to sequester and then exclude my evidence. Consequently, the court could not have made

a proper determination of the reversed onus of proof: 

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                                       "To determine, on the balance of probabilities, why the employer took adverse action

                                           -a question of fact, which must be answered in light of all of the facts".

 

On the "balance of probabilities", the record already made clear that discharging the reversed onus was prohibited.

Macquarie had numerous avenues that would have averted adverse action - conspicuously, to simply engage in discussion.

Had Macquarie not disregarded every one of those required avenues of dispute resolution, then its excuse for termination

would have disintegrated. It follows that, on the balance of probabilities:

        
              (1) Macquarie's explanations for termination and the adverse actions which precipitated it
                   reduce to a set of probability zero : virtually impossible. The reversed onus of proof must stand.
 

             (2) The chain of adverse actions could only have been taken because Macquarie wished
                   to no longer be bound by the Employment Contract and Startup Package Agreement.

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The Circuit Court's erroneous finding of what comprised the Employment Contract was fatal. It invalidated the court's treatment

of other issues. Along with others, this erroneous finding was reviewed by Federal Court - not by a 3-judge panel, but by a justice.

The justice was unconcerned that the court's error would render Australian employment contracts discredited.

To eliminate the record contradictions of this central finding (a failure admitted even by Macquarie),

the justice rewrote the record. He invented new language. The justice could then argue that

Salby’s employment was governed, not by terms of the AWA, to which the parties had agreed and Macquarie breached,

but by the EA, which the parties had agreed to exclude.

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The justice's treatment was tantamount to rewriting the Employment Contract, as well as the EA.
In fact, Macquarie's notice (above) makes it clear that even Macquarie understood that I was exempt from the EA.

The revision invented by the appeal justice wasn't even possible.
 

There is no ambiguity on what comprised the Employment Contract. Even if there was, it must be resolved according to

a fundamental principle of contract law: Contra proferentem requires such ambiguity to be resolved in favor of the party

who did not introduce the ambiguity.

As the finding of what comprised the Employment Contract was incorrect, so too were findings predicated upon it,

notably, concerning its Breach and Adverse Action.

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Other findings  were either likewise contradicted by the record or simply not considered. Noteworthy was Macquarie's improper

reduction of my salary - without the required PDR, in disregard of the "agreed performance criteria", and while Macquarie withheld

the startup resources it had pledged to enable me to function professionally. As it significantly reduced my salary from that at which

I had been recruited, this breach was fundamental - It repudiated of the Employment Contract. The justice simply ignored it.

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                                                           Implications

 

To protect the Australian employer, Australian courts simply disregarded the record.

When even that proved insufficient, they then altered the record. 

 

The courts' endorsement of Macquarie's conduct, even if it required rewriting the record, makes the significance of an Australian Employment Contract and underpinning legal protections clear. An Australian Employment Contract means whatever an Australian employer wants it to mean at any given moment. A foreign recruit can enter into a binding contract with an Australian employer but,               after relocating, find that the employer has simply disregarded its responsibilities to activate the underpinning protections

- responsibilities of which the foreign recruit has neither knowledge nor control. The Australian employer can then fail to honor

the Employment Contract as well as other written agreements, can refuse to even discuss the ensuing issues, and can then

disregard the most basic employment protections, even confiscate the employee's records of the employer's conduct -

because, as this precedent establishes, the Australian employer will not be held accountable.

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                                                             Epilogue

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Macquarie's International Standing

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I joined Macquarie on the premise of its proclaimed new direction - to become internationally recognized in research.

When I joined Macquarie, it was ranked in the bottom third of world universities. Its ranking when it terminated my appointment

(after chronic obstruction of research and research teaching) appears here. Macquarie remains in the bottom third of world universities.

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• What Macquarie rejected is Here.

• What Macquarie practices can be found Here.

 

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The Research Student

 

And what became of that bright student from Europe - the one who sacrificed her PhD candidacy and scholarship at a well-regarded university to join me at Macquarie? She was left rudderless. The student eventually completed a thesis, without competent supervision, without technical resources that underpinned her research plan, without even financial support that ended. Yet Macquarie did not

graduate her. The student's degree was held hostage. It was eventually released - but only shortly before the final hearing on this matter.

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Her experience at Macquarie blighted this bright student's career - irreparably. An individual of great promise,

she did not continue in atmospheric science. If fact, she left science altogether.

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Rewards of Management

 

And to achieve these standards of excellence, while entrusted with development of students and the nation's future, how are Macquarie administrators rewarded - parties who could not meet statutory responsibilities of operating an academic appointment, who could not respond to a formal complaint (required contractually) or complaints over attendant damage to a research student, who could not even

be relied upon to receive formal correspondence over legal concerns - how are those administrators rewarded?

The answer is a matter of public record.​

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Legal Costs

 

Australian employment law prohibits the assignment of legal costs in such matters. Short of accepting charity, which I declined,                        the circumstances left little alternative. Had my engagement of legal representation continued, Macquarie would have won this struggle     by TKO: In a matter of weeks, it would have exhausted my resources. That handicap would have been obvious when Macquarie failed          to register the AWA, which circumvented the regulatory oversight that Macquarie had represented, then rejected arbitration by the             Fair Work Commission on the grounds that, because Macquarie did not register the AWA, the Commission lacked jurisdiction,                         and when, subsequently, Macquarie refused to honor other representations by rejecting requests for discussion of the mounting issues:

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                                                          "MQ's handling of this matter is astounding."

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Had I maintained legal representation and been awarded damages, the latter would have been erased by legal costs

that could not have been recovered. Accordingly, I had no practical alternative in the proceedings but to represent myself.

That recourse would not have been anticipated by Macquarie when it circumvented regulatory oversight and then rejected arbitration,

one of the benefits it had represented. At an intermediate stage, only through Federal Circuit Court, the cumulative legal costs

incurred by the parties were as follows:

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                                                              Salby                                               Macquarie

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                                                           ~ $10 K                                             > $0.5 M

 

Subsequent proceedings in Federal Court involved numerous additional submissions and appearances, with commensurate legal costs.

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Confiscation of Research and Office Property

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The contents of my office, almost all of which I brought from the US, were seized by Macquarie in 2013 when it blocked access.

During the proceedings, Macquarie continued to deny access to that property. Its objections to access, in fact, accounted for

a major part of Macquarie's legals costs. In the process, Macquarie claimed that physical and intellectual property was now its property.

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To release my office property, Macquarie required numerous conditions. One was entirely unacceptable. Along with my research records, computer models and equipment (the fruit of my 30-year career in research) remain in Macquarie's possession.

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My experiene with Macquarie's management was not the first such occurrence.

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                                     "An investigation by the New South Wales Information Commissioner into Macquarie university

                                       reveals some extraordinary aspects of its administration… The Commissioner stopped short

                                       of finding that employment had been terminated for this reason - probably a criminal offense”.

 

Macquarie's conduct should leave Australians glowing with pride. After all, they're paying for it.

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                                                                                                                                                                        Detailed Development is Here.