What the FWC DECISION on Frijters v University of Queensland can teach us

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In the wake of the recent academic-freedom cases involving Safe Schools co-founder and academic Roz Ward (here, here, and here) and the journalism academic Martin Hirst, comes the decision that the Fair Work Commission (FWC) posted yesterday in the case of Frijters v University of Queensland.

As you may recall I wrote about this deplorable situation more than a year ago here on CET  (for a refined version, see here) and suggested that UQ’s attempt to charge Professor Frijters — the 2009 winner of the bi-annual Young Economist Award of the Economic Society of Australia — with (serious) research misconduct and to suppress his, and his former student’s, research on racial discrimination on Brisbane public transportation, was ill-considered and that at that point already the University’s ongoing and drawn-out attempts to hang on Frijters those charges were at the minimum disproportionate to the facts then known and also apparently unduly influenced by Brisbane bus company Translink.

The University administration under VC Peter Hoj decided — for what now looks like poorly veiled punitive reasons –- to push on, finding in a March 25 2015 report by one Professor Wright that Frijters was guilty of misconduct and that disciplinary actions were warranted. This led Frijters on 13 April 2015 to make his application for the Fair Work Commission to deal with the dispute.

The DECISION that commissioner Bissett posted yesterday is a pointed slapdown for UQ and some of its top administrators. While couched in typical legalese, the commissioner does not mince many words given the restraint that her office and position require. On more than 50 dense pages, and no less than 379 detailled statements of fact, assessments, and decisions, she makes it very clear that the University systematically, and through-out the three-year saga, violated its own Enterprise Bargaining Agreement, and that these violations were substantial and in several cases prejudiced.

To wit,

“[239] For the University to suggest that these are not fatal errors is to not give proper weight to the words of the agreement it has entered into with staff or a set of procedures it developed.”

Says the Commissioner, concluding:

“[374] I am satisfied that there were substantial flaws and a lack of procedural fairness in the process applied to Professor Frijters with respect to dealing with a complaint about the research.

[378] I am satisfied that the failures in the process, and hence the failure to apply the provisions of the 2010 Agreement properly are such and extend so far back that the entire process, including outcomes, is not reliable. There is no point in the process where it is possible to say that everything before that point in time was reasonable. The process was infected by error from so early on that the fairest thing would be to commence the process from the beginning again.”

The whole document makes for depressing reading and shows key admin players at the University have lost whatever compass, moral or of proportionality, one could and should reasonably expect. The document presents administrative arrogance of the kind that many academics here in Australia unfortunately have come to expect too often.

Again Commissioner Bissett does not beat around the bush (here and in many other places):

“[200] The 2010 Agreement and the research misconduct procedures have set out clearly how an investigation is to come about and how it is to be conducted. That the process and requirement may appear inconvenient or even if they are not fully fit for purpose in the particular circumstances does not give the University the right to alter those procedures. The procedures provide staff members with understanding and confidence in what is to take place. To vary from them so markedly is to undermine the importance of the 2010 Agreement entered into by the University freely with its employees. This is not something to be lightly put aside.”

I urge my fellow academics to read this document; who-dunnits and morality plays do not get much better.

What can we learn from the Frijters v University of Queensland saga?

First, discovery procedures such as FWC hearings are a beautiful thing.

Second, universities – even in the G8 – have more than their fair share of unscrupulous people who believe that under the cover of hierarchy and bureaucratic procedures they can act out any way they see fit. (I know, for many a reader here that is hardly a surprise.)

Third, for a leadership team that has been so clearly unmasked as being in contempt of its own agreements, it seems impossible to regain rapport with its staff members under the best of circumstances (such as an honest apology). The honourable thing to do seems to accept the finding (and for key players to take their hat).

Fourth, in [379] Commissioner Bissett notes that “It is not for the Commission to indicate the fairness or otherwise of Professor Frijters being put through the process again. That was always a likely outcome of the instigation of these proceedings.” It is to be hoped that the Commissioner is incorrect in that assessment and that those responsible for the ordeal they inflicted on Professor Frijters are not allowed give it another shot.

Fifth, Professor Frijters – at considerable costs to his health and also straight out-of-pocket and opportunity costs to himself – has provided us with a public good of considerable value. We should appreciate it. And learn from it. It seems about time to start a FIRE in Australia.

Sixth, every academic should be glad, and grateful, that an entity such as the FWC exists.

 

25 Responses to "What the FWC DECISION on Frijters v University of Queensland can teach us"
  1. This is an important decision of the Fair Work Commission not only for Paul Frijters but for the whole academic community. As Andreas says, this Decision should be read not only by academics but also by the “Managers” of universities.

  2. I can’t see why the university shouldn’t reimburse Paul for his costs here given they are clearly wrong and have violated their own EBA on any number of occasions. This means in any court challenge they would lose.

  3. It’s definitely worth reading the decision, available here: https://www.fwc.gov.au/documents/decisionssigned/html/2016FWC2746.htm. It certainly outlines some important errors made by the University, specifically:
    – repeatedly failing to follow the required procedures for appointing Frijters’s ‘supervisor’ for the purpose of the misconduct procedure (and also failing to notify him on one of those appointments)
    – failing to tell Frijters about a conversation with the RHD co-ordinator (which may well have been about a key issue – the ‘lack of clarity on the need for ethics clearance within the economics department’
    – the Pro Vice Chancellor (Research & international) writing a letter to the Brisbane City Council stating that the research should have been ethics reviewed and wouldn’t have been allowed to proceed in the form it did if it had, even though he was (and had to be) the Designated Person for the purposes of the misconduct procedure.
    As the Commission rightly said, ‘These are not minor matters and cannot and should not be swept aside.’

    On the other hand, apart from the failure to tell Frijters about the conversation with the RHD co-ordinator, the Commission had nothing negative to say about the Professor who was eventually appointed as Frijters’s supervisor. To the contrary, ‘Putting aside the validity of the appointment of Professor Derrington as supervisor, I am satisfied that the report to the CEO was appropriately completed and, as to its content, complied with the requirements of clause 6.7 of the research misconduct procedures.’ Moreover, “there is no criticism of how Professor Derrington went about the task that was assigned to her. Her approach was diligent and cognisant of the requirements of the research misconduct and misconduct/serious misconduct procedures.” As well, the Commission rejected a large number of other complaints Frijters made about the process, including claims about a deficient notice of investigation, claimed misleading statements at interviews, omitted attachments from the report, alleged changes to the allegations, claimed unreasonable delays, bias arising from the decision to bar publication or dissemination of the research until the issue is resolved, and a claim of bias by the CEO after allegedly seeing the letter to the Brisbane City Council.

    There’s no doubt that the decision roundly condemns UQ in both its processes and its implementation of those processes. But whether UQ’s failures fit Andreas’s description of ‘systematic’ violations, ‘prejudiced’ violations and that it ‘shows key admin players at the University have lost whatever compass, moral or of proportionality, one could and should reasonably expect’ is another matter, and people should read the decision for themselves rather than taking Andreas’s word for that. As well, Andreas’s statements that G8 universities have ‘unscrupulous’ bureaucrats (implying that some at UQ, specifically those involved in this proceeding, are unscrupulous) and that the VC’s decision to proceed depends on what ‘now looks like poorly veiled punitive reasons’ seem to be risky ones to make from the point of view of defamation law, I couldn’t see any negative findings in the Commission report about anyone’s motives or morals.

    The decision is definitely required reading for anyone who wants to know about the crappiness of University procedures and to get an insight into what went wrong in this case. However, the main interest in the decision for me is what light it casts on the original controversy. When this issue broke, many of us vigorously debated whether or not the study required ethics approval and also whether it involved criminal offences. The flawed process addressed in this Commission made findings against Frijters on both points. Now that the process has been quashed (pending an appeal), the issues remain unresolved. The Commission ruled on the process, not the substance. And it didn’t find that a good process couldn’t be followed in future. Given that, I personally don’t see why ‘[t]he honourable thing to do seems to accept the finding and for key players to take their hat.’. That would leave these important questions unresolved in the future, and the study’s dissemination in limbo. And it would leave Frijters with no resolution on these points. Surely, it would be better for the matter to start again with a proper process, so we can all get sensible answers to the important ethical and legal questions at stake.

  4. Looks as if the response function does not work properly.
    Re conrad’s comment: Agree. That would be one remedy.
    Re Jeremy’s comment: Agree, people should read the whole document and make up their own mind. I think I made it very clear that all comments refer to this saga. Of course, having gone on for three years and having involved multiple actors, it acts as an important signal because presumably their is some behavioral constancy in people. The Commissioner suggests that much.
    You say, “Surely, it would be better for the matter to start again with a proper process, so we can all get sensible answers to the important ethical and legal questions at stake.” I agree that there are important ethical and legal issues at stake here. But it seems that even The Commissioner doubts whether re-starting the process from the beginning would be a procedurally adequate thing to do. See [379]. We should not expect for Frijters to go through another drawn-out procedure to satisfy our curiosity.

  5. If that were to happen poor Paul Frijters would have to go through another “trial”. That would be incredibly trying for him. Yes, it would be good to have got a decision which not only argued that the procedure was incorrect but that the charges were without foundation.

  6. I would like you to declare any conflicts of interests here, Jeremy: have you in the past ever worked for university management and/or are you looking for their business in the future? You see, you have now on many occasions and in many fora left your calling-card for university hierarchies wrt my case and it would be appropriate if you declared any conflict of interest here. Indeed, I am tempted to demand a slice of any business you have gotten from commenting on my case in the particular way that you have!

    Your willingness to overlook 3 years of identified and systematic breaches of the EBA by management shocks me. You seem to want to give the same people another go. The decision makes it clear they already had 2 goes. Your inability to see why the university administrators should face consequences for their many breaches of university procedures (which is what I was accused of!) is a bit like saying that a torturer who has not gotten a confession after 3 years should not be held responsible for his actions, but instead given another 2 years to get the confession he wants. Astounding that a legal man like yourself should be so one-sided in terms of who should be accountable for what.

    And the decision certainly does support Andreas’ statements wrt to punitive issues and your veiled threat to him (defamation) is a bad look IMO. Perhaps you need to read it again more carefully.

    There has already been an independent investigation, by A/Professor Andrew Crowden. He was quite clear that if there was any failure, then it lay with UQ policies and procedures (ie UQ was vicariously responsible). The ruling and the supporting documents make it clear his advice was roundly ignored and frequently unread by the decision makers. There is nothing to prevent you from asking Andrew again though as to what he found so as to satisfy your curiosity about the ‘important ethical issues at stake’. Soon his report might be publicly available.

  7. Just read Julie Hare’s piece in The Australian. Interesting to see how journalism in Australia works. I sent Julie a draft of the CET piece yesterday early evening (Prague time), asking whether The Australian might be interested in me writing some such piece as a follow-up to my comment from one year ago. Without checking with me, she quoted extensively from the draft for her own piece. (Still have not seen the Wired piece she wrote since it is behind a paywall.) Hmmmh. Anyways, if you want to hear from the horse’s mouth what I have to say in this matter, rather than what The Australian attributes, see above.

  8. My conflicts of interest? I was on my faculty’s ethics advisory group for a few years, and chaired it briefly, but I haven’t done that for eight years now. I apply for ethics review myself (or with a PhD student) very occasionally. My brother is an economist who did his degrees at UQ. I grew up in Queensland and went to the Shonell cinema on occasion. I’m on faculty (law) in a G8 uni (Melbourne) and have been promoted as far as I’m ever likely to be. I have never worked for University management and (I predict, and so would my Dean) never will, in part because I am a repeated critic of university procedures on most things and don’t exactly hide my opinions (and, at least at my uni, this doesn’t endear to management.) I’m unaware of any ‘business [I] have gotten’ for my comments. Indeed, I have no idea what you might even be referring to. Is there money in making comments on blog posts? Who do I bill?

    My (non-conflicted) interest in all of this? I’m interested in bias and ethics and and in law, especially criminal law, and your case ticks all of those boxes. I think the study you were involved in was a very interesting and important one. But I also believe in independent ethics scrutiny of all human research, especially ones that potentially involve non-consenting subjects, especially when there’s an arguable breach of the criminal law, so I’m sad that your study seemingly didn’t get prior independent approval. The criminal law issue interests me because I research criminal law, especially the kind of regulations at stake in public transport cases. I know you and Gigi Foster think that there’s no criminal law issue raised by your study. I disagree.

    Beats me why you describe me as overlooking all the university fuckups in your matter. Personally (and based on the limited information that has been published about this case), I’d put the primary blame on what happened to you on your own department (and, perhaps, given the tenor of some of the commentary from economic academics, your field) for not having a culture of independent ethics review, and subsequent blame on your university for completely fucking up the misconduct procedure against you (though I’m more inclined to read it as stupidity than conspiracy, university management lackey that I am.) A big failure of process, as you say, and heads should roll. But, no, I don’t think any of that clears you all blame, though I’m certainly sad that you’ve had to go through years of shitty process because of it (and even sadder for your PhD student.) I’m also frustrated that the process has (it seems) kept you from comprehensively putting your side in the public domain, and has also denied us of any useful independent findings to date. Repeating the uni process (with new people, of course – that’s standard in this situation) is one way to clear things up and I’m not sure there’s a better way. I’m not sure why you would let things sit where they are. I certainly look forward to reading Andrew Crowdon’s report once it’s published – I don’t know what you mean by me asking him ‘again’. I don’t know him and have never heard of this report. Do you have me mixed up with someone else? – but the criminal lawyer in me has to point out that ‘vicarious responsibility’ is a doctrine that spreads responsibility, not shifts it.

    Happy to be corrected on where the FWC decision supports Andreas’s claim about ‘punitiveness’. Which paragraph? My remark about defamation was neither ‘veiled’ (it was express!) nor a ‘threat’ (by who? me? Again, are you mixing me up with someone else?) It was a genuine warning about possible litigation (from UQ, naturally) which you, of all people, should appreciate.

  9. @ Jeremy: “Personally … , I’d put the primary blame on what happened to you on your own department (and, perhaps, given the tenor of some of the commentary from economic academics, your field) for not having a culture of independent ethics review, and subsequent blame on your university for completely fucking up the misconduct procedure against you ( … .) A big failure of process, as you say, and heads should roll. … I’m certainly sad that you’ve had to go through years of shitty process because of it (and even sadder for your PhD student.)” Glad we established all that. My reading of the Commissoner’s Decision is that Paul’s department cannot be faulted.

  10. Where does the FWC decision say that Paul’s department cannot be faulted? The FWC decision is about the misconduct process, not the department’s approach to ethics approval.

  11. See the various items that deal with who should have made the determination of misconduct in the first place and also the discussion of assignment of a supervisor only for that procedure (starting at [85]… ).I understand that your comment was to some extent directed towards the question whether the procedures that were in place at that point were appropriate. Good question – see Paul’s comment above on that issue and also my article in The Australian from last year. I agree with you that there are important ethical and legal issues to be discussed here but I do not think they are relevant in the present context. In the present context, the only relevant question is whether procedure that was in place then — as problematic as it might have been — was followed when the research was started and signed off on.

  12. I’m not sure that’s the only relevant question, but I agree that it’s important. But that’s the question that hasn’t yet been determined. All we know is that the process that was used to determine that question to date is a flawed one. Paul’s comment (largely about my secret plan to become a university bigwig, but I guess you mean the last para) tells us there’s an unpublished report that exonerates him. Cool, but why not publish it? Your article says: “Did Frijters, by all measures one of Australia’s most productive economists, follow the ethics procedures then in place at UQ? If no deception was involved, then he apparently did. Was it fare evasion? No. The bus drivers could decline the request for a free ride. Were bus drivers entitled to let people who had insufficiently funded fare cards ride free? They apparently did, as persuasively argued by Rabee Tourky in Core Economics. He says that in the wake of the Daniel Morcombe murder in 2003, Brisbane bus drivers were instructed to use judgment when such requests were made.” But surely you realise that not everyone agrees with you on these things. Maybe the UQ economics department’s approach was to let every individual academic decide for themselves what is an is not deceptive or criminal. In that case, Frijters is in the clear, but his department sure isn’t.

  13. “I’m not sure that’s the only relevant question, but I agree that it’s important. But that’s the question that hasn’t yet been determined. All we know is that the process that was used to determine that question to date is a flawed one.” Agree. Substantially flawed [374], to be precise. “Infected by error” … from the very beginning … [378]. Says the Commissioner.
    “But surely you realise that not everyone agrees with you on these things. Maybe the UQ economics department’s approach was to let every individual academic decide for themselves what is an is not deceptive or criminal. In that case, Frijters is in the clear, but his department sure isn’t.” You would think that departmental procedures are approved somewhere higher up especially when it comes to that kind of research. I actually did not realize that what I wrote was controversial when I wrote it; I did find the discussion that ensued educational. And I think I made clear that with the benefit of hindsight some independent ethics review would have been a good thing. Fact is, that seems not to have been a requirement then. Or that is my understanding. Would love to read the report that Crowden wrote.

  14. I don’t even see the problem as one of an ethics violation. Sure, this was wrong but if I audited all the ethics applications where I work there would be thousands of violations. Are people really keeping all records for 7 years, keeping the data encrypted on a locked computer for 7 years and then deleting it etc . despite moving office 6 times and having 4 computer changes? I’m willing to bet the answer is no (most people wouldn’t even have the physical space after 30 projects with honors students, and there is no free storage for data), and indeed where I work management violate our ethics as they go into our locked offices at night now and then to distribute their propaganda about our EBA etc. (and then lose in the federal court).

    We had one recent case where we wrote on our ethics applications a neurologist paid by our university would look over MRIs we took and contact people in case tumours etc. were found. So people ran studies after getting ethics saying this and the ethics board accepted them. But then the neurologist left and the university didn’t want to pay for a new one. So hundreds of MRIs went unchecked for over two years even though it was a clear cut case of university management violating an ethics agreement. I had one participant that was lucky not to die when if management kept to their agreement her problem would have been spotted and acted upon vastly earlier. Yet no-one was even reprimanded as far as I’m aware (clearly management don’t need it) and nor did anyone apologize to the participants for breaking the agreement even when they could have died.

    So clearly the violation in Paul’s case is so trivial that it should have been dealt with from an email from the ethics office asking for this not to happen again. It’s basically an almost insignificant part of the saga compared to other transgressions that occur commonly including in this case (bullying, contract violations etc.).

  15. Conrad, you may well be right. But one difference in this case is that the failure to seek ethics approval seemingly meant that a PhD student was unable to publish his research (something that can happen if ethics approval wasn’t sought and subsequent retrospective ethics approval isn’t granted, for example because the research as performed failed ethical standards.) In that case, the student’s supervisors (potentially including Frijters) have arguably failed in their responsibilities as supervisors. A further difference in this case is that the research may have involved the researcher and those hired to do the research (and, perhaps, subjects of the research) in criminal offences. Again, university staff who cause or permit others in their charge or employ to be involved in criminal offences may be guilty of some form of misconduct. At least to my mind, those are the issues that need to be resolved.

  16. Interesting question there: Have those that dragged Fritjers through three years of a “substantially flawed” process that was “infected by error” from the very beginning failed their responsibility as supervisors? What says you, Jeremy? And what does it factually mean for academics if every time you face a dispute of that kind you have to fear to get dragged through that kind of kafkaesque process?

    • What say me? I’ve already said it: ‘heads should roll’, because the misconduct process was fucked up royally. But, like I’ve also said repeatedly, that doesn’t exonerate Frijters or provide redress for his student (or other employed researchers or research subjects) in relation to any errors he made. Maybe there’s an analogy between the relationship between professor and PhD student (and other researchers employed by them) and the relationship between university bureaucrats and professors, but there are differences too.

      Surely, no-one here thinks that misconduct proceedings that are flawed, even seriously flawed, should never ever be restarted. And surely no-one thinks that it’s fair to a PhD student who cannot publish his research (or to a third party who as complained about that research) to say that the status of his research can never be resolved because uni bureaucrats fucked up in a misconduct procedure. I get that you all love Paul Frijters, who is clearly a really terrific person. But surely you aren’t opposed to misconduct procedures for all economists, or star economists, or whatever, and surely you don’t think procedural flaws in a misconduct process are always a complete answer to a claim of misconduct ? What say you, Andreas?

      And what say you, economists? Should a flawed misconduct process always mean the permanent end of that process?

  17. If UQ want the research to be published, I don’t see why they can’t give ethics even though it has been done (they could use their legal team to examine your statements here to help determine the seriousness). I also don’t see how failing to act as a good supervisor as something any universities can take seriously — for example, most secondary supervisors at places I have worked do almost nothing — this is not surprising for some since they are on many students panel — for example, I find it hard to see how anyone could supervise 10 students properly with a full teaching load, but universities are happy to rubber stamp that. We also have people supervising that have never published anything, yet they act as research supervisors. In fact, apart from harassment etc. it is very hard for me to think of the lowest level you would need to go to fall prey of inadequate supervision. So the main relevant comments here are your latter ones.

    You can look at the flipside here too. In terms of workplace bullying, you are obliged to treat cases of similar severity similarly, so if this turns out to be slightly worse than a mild case of ethical violation (there was deception involved so this makes it more serious than nothing) then they need to persecute every other person with a similar level violation similarly to be fair (without running into other bullying problems).

  18. @conrad: It is my understanding that there was no deception involved; I discussed that in The Australian piece last year.

  19. Not per se, Jeremy. Agree. But the admin had already two shots and apparently cannot, or does not want to, get it right, at very high cost to Frijters. So after three years of inflicting damage on him health-wise and financially (out-of-pocket and through reduced productivity), it’s time to put and end to it. There are also considerations of fairness and proportionality that ought to apply.

  20. Gigi Foster has an excellent contribution at The Conversation today, adding lots of interesting perspective and context to the case. Some of the commentary to her piece is also rather interesting (and some of it rather depressing;says one commentator: “Thank you for this highly topical and important article. Thank you for the courage to write and publish this. Many academics who experience similar pressures that you mentioned are too scared to speak up.”).

    Anyways, a good read: https://theconversation.com/the-public-should-be-concerned-when-academics-must-battle-bureaucrats-for-academic-freedom-54039

  21. Thanks Andreas for the link to The Conversation piece. My mileage varies on the excellence of Gigi Foster’s contribution, e.g. “Human subjects in research projects are protected by the National Statement on Ethical Conduct in Human Research (which, UQ’s claims notwithstanding, was in no way violated by the Frijters/Mujcic racism study). What about the researchers who work with those human subjects in order to uncover truths, including inconvenient ones, in order to benefit all of society? Who defends their right to speak? Institutions like university ombuds and the NTEU do not play this role, and were interestingly peripheral in the present case.” So, Frijters and Mujcic were ‘working with’ the bus drivers? And the UQ ombudsman and the NTEU are part of the conspiracy to protect bus companies too?

    But the piece is full of interesting links, including a letter to the editor from the UQ VC: https://www.uq.edu.au/news/article/2016/06/uq-responds-inaccurate-media-reports. (I can see now why Paul Frijters thinks I’m a uni stooge, Hoj and I read the FWC decision much the same way.) And more quotes in media articles from the Crowden review. That review really ought to be published in full.

  22. Yes, very curious it has not yet been published. To think that it could have ended this whole mess within weeks one way or another, allowed the substantial question (about racial discrimination on Brisbane public busses) to be addressed, and for the substantially flawed process that was infected by error from the very beginning never to have taken off …

  23. Glad to see that the University makes no comment in relation to my “reported comments” because, yes, the reporting standards in The Australian leave something to desire. As mentioned above in the string of commentary, my relevant comments are to be found above and I leave it for the reader to judge their merits. In particular those readers who care to read the decision in full. I don’t really care about what readers think who do not read the decision. It’s good to know that we all agree that those interested in what happened here, ought to read it. How you can aspire to the highest standards when this particular process has been found to be substantially flawed and infected by error from the very beginning beats me.

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