Macquarie's operation of my appointment raised issues of common law as well as Australian employment law.

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

(hitherto Federal Magistrate's Court) and then to Australian Federal Court.

 

How did Australian courts treat Macquarie's conduct?

In short, they gave it their Blue Ribbon Stamp of Approval.

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The Employment Contract and Startup Package Agreement were made under workplace laws.

Notable was the Higher Education Legislation Amendment (HELA), which 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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These protections (which are echoed in the national standard for academics) were therefore inherent in those

contractual agreements.

 

The Fair Work (FW) Act and its predecessor, the Workplace Relations (WR) Act, also provide employment protections. 

Notable are the following:

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• Employer is required to register an approved AWA (WR Act [s.342]). The AWA was approved when Macquarie offered it           as the foundation of the Employment Contract and Salby then accepted that Contract.

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• Employer is prohibited from taking adverse action against an employee (eg, dismisses the employee,
  alters the position of the employee to the employee’s prejudice, or discriminates between the employee                                 and other employees) because (i) the employee has or exercises a workplace right (viz is entitled to a benefit                             of his employment made under a workplace law) or (ii) is able to make a complaint or inquiry about his employment;                FW Act ss.340-342.

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                      Note: (1) Any communication from an employee to an employer that reflects a complaint or inquiry

                                     constitutes a complaint. Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207

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                                 (2) "Altering the position to an employee's prejudice" covers any adverse affection of
                                       or deterioration in the advantages enjoyed by the employee before the conduct in question.
                                       Patrick Stevedores Operations No 2 Pty Ltd v MUA (No 3) [1998] HCA 30; (1998) 195 CLR 1

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• Employer is prohibited from taking adverse action against an employee because of the employee's political opinion             (FW Act s.351). Note: "political" refers to a matter concerning governance or public affairs (Oxford Dictionary).

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• Reversed onus of proof: Adverse action is presumed to have been prohibited, unless proven otherwise (FW Act s.361).

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                      Note: In regard to dismissing the reversed onus of proof (ie, absolving the employer of guilt),

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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.

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                                  Mere declarations of an innocent reason.. may not satisfy the onus..
                                  if contrary inferences are available.”

                                       Board of Bendigo Regional Inst of Tech and Further Education v Barclay [2012] HCA 32

 

The proceedings failed these standards conspicuously.

 

                                              Sequestration of Evidence

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My office contents 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. This was an encore performance of Macquarie's tactic

during its misconduct proceedings.

 

I had to seek access through subpoena - of  my own property. Almost all of it had been brought from the US.

The court set aside the subpoena, ordering limited access to my records. Even that was not followed.

The records which I then identified in my file system were seized by Macquarie. They were then discriminated

by Macquarie - who released only those records that Macquarie held  were relevant. The conduct raised                            fundamental issues of due process. I advised the court, along with its duty to hear from both sides:

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                     “Does Applicant have the right to assemble his case, including his reply to Respondents’ evidence,

                       from Applicant’s own records of the events?”

 

In its defense against the complaint, Macquarie then advanced numerous falsehoods. Like the report of the misconduct proceedings, Macquarie's representations were contradicted by my records, which Macquarie had confiscated.

Consequently, those records were necessary for my evidence in reply. When I sought access, Macquarie again refused.

It argued then that the contents of my office (hundreds of books, journals, files, and dozens of volumes of handwritten equations that I had assembled during my 30-year career), material which Macquarie had packaged into some 60 cartons,

was (except for 3 cartons that Macquarie had returned) property that now belonged to Macquarie. The material again

had to be subpoenaed. When Macquarie objected to the subpoena, the court asked Macquarie: "Whose property is this?" Macquarie claimed that it was Macquarie's property. I contested Macquarie's claim, reiterating concern 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 to my office property, 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. The court again 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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To streamline the process, I offered Macquarie three alternatives that would avoid having to transfer the material

to the Registry. Every one was refused. I then notified Macquarie that I would be overseas during March 2015

to fulfill professional commitments.

 

When I departed, Macquarie sought and was granted an order in chambers (wherein only Macquarie was represented)

for me to be granted access to my office property on one day - a day when Macquarie knew that I would be overseas.

The court promptly granted Macquarie's request, issuing that order.

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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 issue another subpoena

to access my property. Macquarie again objected.

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Macquarie's latest objection to access 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?

                           I still have not had access to my personal effects”.

 

To my concern, the court simply responded: “I am ordering that now”. The untimely hearing schedule was left 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

to locate the records required for my evidence in reply. The Registry was preparing to close for the day.

It could not find even the cartons from my office.

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The Registry was 5-6 hours of travel from my residence. With only 3 business days to prepare for the week-long hearing,

returning was impossible. I did not have another opportunity to return to the Registry until after the hearing,

shortly before filing submissions in reply. The material located then 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 of an order for me to have access on a day when Macquarie knew that I would be overseas. The court disregarded the obstruction, obliging 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 wholesale adoption of Macquarie's submissions reproduced misrepresentations and errors,

which are contradicted by the record.

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Employment Contract

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Fundamental was the Employment Contract, which, owing to its uncritical adoption of Macquarie's submissions,

the court failed to determine correctly. The court found that, because Macquarie did not register the AWA,

my appointment was governed, not by terms of the AWA to which the parties had agreed, but by the 2007

Enterprise Agreement, which the parties had agreed to exclude. This finding was central,

underpinning much of the court's analysis and treatment of the issues. It was also impossible.

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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.”

 

The Employment Contract was offered unambiguously:
 

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

          “This letter of offer, the attached Terms Sheet and AWA constitutes the entire agreement between the parties”

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 The offered Employment Contract was then accepted unambiguously – indeed, in Macquarie’s own language:
 

          “I.. accept the offer made in this letter, the Terms Sheet and attached AWA.”
 

The offer and acceptance circumscribed all three components, which then formed the Employment Contract.       

 

The Employment Contract expressly excluded the EA:
 

           “The terms of this agreement apply instead of, and to the exclusion of.. the Macquarie University
             Enterprise Agreement 2006-2009 (the EA) and any other collective agreement”.

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In fact, the EA itself excluded Salby:

            “Exempt Staff Member means.. (d) an Academic Staff Member who commences employment…
              on a salary in excess of 115% of the salary for an Academic Level E Step 2”.

The Employment Contract specified Salby's commencement salary: 125% of that of Level E Step 2.

Salby was exempt.

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In fact, Macquarie had notified Salby of just that:
 

                              “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 did not govern my  employment - if for no other reason, because it could not. The EA could hardly replace

terms of the AWA, which represented the foundation of the Employment Contract that the parties had formed.

 

The court's determination of the Employment Contract was incorrect. So too then were its determinations

of Breach and Adverse Action, which rested upon the Employment Contract.
 

The erroneous finding relied upon Macquarie's failure to register the AWA. It legitimized the removal

of 90% of the Employment Contract - virtually all of the employment protections to which the parties had agreed.

Accordingly, the treatment 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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Startup Package Agreement
 

The Startup Package of technical resources which Macquarie had pledged to provide, to enable me

to rebuild my research program and function professionally in Australia, was chronically withheld.

Through Macquarie's retroactive alteration of the Agreement after I relocated to Australia,

the Startup Packcage was then withdrawn.

 

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 which would prevent that support from being acquired -

until I was either retired or dead,  and (3) disregarding Macquarie's subsequent alteration of the Startup Package Agreement

and then its subversion by withholding the travel support that Macquarie had pledged and approved.

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             "Misrepresentation, directly or by silence, damages a prospective employee through loss of opportunity."

               Moss v Lowe Hunt & Partners Pty Ltd [2010] FCA 1181

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When I was offered and accepted Macquarie's chair, I was holding a tenured appoinment in the US

and was being considered for positions elsewhere.

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Workplace Laws

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Notable was the Higher Education Legislation Amendment (HELA), under which the Employment Contract and

Startup Package Agreement were made. The court parroted Macquarie's representation, that the HELA was only "a bill"

and therefore not law. One would expect that, before issuing such a finding, a federal court would confirm

Macquarie's representation by reference to the enacted federal statues. This finding was likewise incorrect.

The record showed that the HELA, which provided employment protections,

was enacted by Parliament on 13 November 2005.

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Failure to Register the AWA

 

This failure by Macquarie just happened to [circumvent] a fundamental protection of the appointment that Macquarie

had offered: Regulatory oversight by an independent third party. The court found that the failure to register the AWA,

a statutory responsibility, wasn't Macquarie's fault. It must have been Salby's fault.

Salby must not have given Macquarie the signed AWA.

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The finding was contradicted by the record. Regardless, it was the statutory responsibility of the Australian employer

to process the required paperwork and to register the AWA with the appropriate government agency.

The court's finding reversed that onus: It 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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Discharge of the Reversed Onus of Proof

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The court permitted Macquarie to sequester and then exclude my evidence, records which falsified Macquarie's representations on why it took adverse action. Consequently, the court could not have made a proper determination  of this

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                            "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. Instead, Macquarie:

 

         Refused to discuss the issues, requested by Salby and Solicitor and required by contract and statute.

 

         Sequestered Salby’s travel forms, until the pledged startup resources could be withdrawn.
 

         Belatedly rejected Salby’s research travel on grounds that were  invalid.

         Excluded Salby from teaching climate and then summarily reduced his role to menial support of others.
 

         Ignored Salby’s offer to teach any of half a dozen classes in his subject area - the same classes taught by his peers,
 

         Refused to discuss Salby’s teaching and his objection to the reduction of his role.

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         Deliberately misinformed its decision makers on the true circumstances,

         withholding Solicitor's correspondence directly to those parties.

 

         Conducted their misconduct proceedings when they knew Salby would be overseas

         and took other measures to ensure that Salby would not be heard.

 

         Pre-empted the authority of the Fair Work Commission, to whom Macquarie's treatment of

         the disputed issues had been referred, pursuant to protections in the Employment Contract -

         inherent even in the national standard for academics.

Had Macquarie not disregarded every one  of these required avenues of dispute resolution,

then Macquarie's excuse for termination would have disintegrated. It follows that, on the "balance of probabilities":

        
              (1) Macquarie's excuse 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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                                                                    Review by Federal Court

 

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

It undermined the court's treatment of other issues. The failure of this central finding is intrinsic to the record.

 

Along with others, the erroneous finding was reviewed by Federal Court - not by a full bench of judges,

not even by a single judge. It was assigned to a justice [(the lowest rung on the judicial ladder)].

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 Federal Court justice had to re-write the record. He invented new language. The justice argued that,

although the exemption in the EA explicitly refers to ”salary”:

 

            “Exempt Staff Member means.. (d) an Academic Staff Member who commences employment…
              on a salary in excess of 115% of the salary for an Academic Level E Step 2”,

 

what it intended to state was “base salary”. The justice could then claim that Salby’s employment was governed,

not by terms of the AWA, to which the parties had agreed, but by the EA, which the parties had agreed to exclude.

The justice's treatment is tantamount to rewriting the Employment Contract, as well as the EA.

His rationalization is ethereal, unsupported by the EA. The Enterprise Agreement presents numerous definitions.
Not one is presented to distinguish “salary” from its conventional meaning, let alone to restrict it to “base salary”.
In fact, even Macquarie understood that “salary” in the exemption of the EA did not mean “base salary”.

When Macquarie offered the Employment Contract, it notified Salby that he was exempt from the EA:
 

                  “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.”
 

There is no ambiguity on what comprised the Employment Contract. Even if there was ambiguity,

it must be resolved according 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,

in particular, concerning its Breach and Adverse Action.

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Other findings of the Federal Court justice were either likewise contradicted by the record or simply not considered.

Noteworthy was Macquarie's improper reduction of my salary (taken without the required PDR and in disregard of

the "agreed performance criteria"). As it improperly reduced my salary by 25% from that at which I had been recruited,

this  breach was fundamental - It repudiated of the Employment Contract.

The Federal Court justice simply ignored it.

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                                                                                Implications

 

The courts' endorsement of Macquarie's conduct, even if it required re-writing the record, makes the significance

of an Australian Employment Contract and underpinning legal protections clear. 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 legal 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

even the most basic employment protections - because, as this precedent establishes, the Australian employer

will not be held accountable.

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Refs: Submissions in Reply

         Submissions Paricularized

         Form 23 HCA/NOA_2

         Respondents' Closing Submissions

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CONDUCT NOT ISOLATD OCCURRENCE - PRIOR

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