Anning v Western Sydney University (No.2)
[2019] FCCA 1313
•21 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANNING v WESTERN SYDNEY UNIVERSITY (No.2) | [2019] FCCA 1313 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – inaction is not action. INDUSTRIAL LAW – Contract of employment – terms surviving end of contract – implication of terms. INDUSTRIAL LAW – Redundancy – circumstances amounting to redundancy. |
| Legislation: Fair Work 2009, ss.50, 340, 341, 342, 361, 539, 545, 546 Racial Discrimination Act 1975, s.9 Anti-Discrimination Act 1977 (NSW), s.14 Australian Human Rights Commission Act 1986, s.46PO Work Health and Safety Act 2011 (NSW) Workplace Relations Act 1996 |
| Anning v University of Western Sydney [2015] FCCA 2124 |
| Applicant: | BERICE ANNING |
| Respondent: | WESTERN SYDNEY UNIVERSITY |
| File Number: | SYG 1444 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 18-21, 24 and 26 July 2017, 7-8 August 2017 |
| Date of Last Submission: | 8 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr I. Taylor SC, Mr M. Seck |
| Solicitors for the Respondent: | Thomson Geer |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1444 of 2015
| BERICE ANNING |
Applicant
And
| WESTERN SYDNEY UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
ALLEGATIONS
Points of claim
Factual allegations]
Allegations of breach23]
Contraventions of the Fair Work Act – Adverse action24]
Contraventions of the Fair Work Act – Breach of enterprise agreements25]
Breach of the Dean Contract27]
Contraventions of the Racial Discrimination Act
..... Direct discrimiation29]
..... Indirect discrimination30]
Relief sought31]
DEFENCE32]
Adverse action claim]
Breach of enterprise agreements claim34]
Breach of contract claim35]
RELEVANT LEGISLATION AND INSTRUMENTS
Racial Discrimination Act37]
Fair Work Act38]
Enterprise Agreements and the Dean Contract41]
APPLICANT’S EVIDENCE
Berice Anning
Badanami Centre45]
Substantive Position46]
Director and Acting Dean50]
Dean of Badanami Centre52]
Supervision54]
Additional Duties56]
Allegations of misconduct – suspension64]
Return from suspension73]
Formal warning75]
Organisational change
McConkey review80]
First Proposal86]
Revised Change Proposal90]
Organisational Change Plan101]
Redundancy105]
Alternative position108]
Racial Discrimination Act
Discrimination113]
Vicarious liability115]
Lorraine Efeturk116]
RESPONDENT’S EVIDENCE
Karen Ardouin119]
Substantive Position120]
Allegations of serious misconduct123]
Rhonda Hawkins124]
Appointment to Dean’s position125]
Workload130]
Problems at the Badanami Centre137]
Allegations against Dr Anning140]
Restructure of the Badanami Centre143]
End of the Dean position147]
Return from suspension149]
Kerri-Lee Krause153]
Supervision of the Badanami Centre155]
Davis inquiry161]
Implementation of the Davis Report169]
Misconduct allegations and suspension170]
McConkey Report and change proposals173]
Kevin Holmes176]
Determination regarding allegations of serious misconduct177]
Organisational change179]
CONSIDERATION
Credit184]
Contraventions of the Fair Work Act – Adverse Action
Allegations186]
Discussion
Failing to return Dr Anning to the Substantive Position with its original duties and responsibilities following the end of the Dean Contract194]
Failing to extend the Dean Contract, or consider extending Dr Anning’s tenure as Dean199]
Maintaining disciplinary action against Dr Anning following her return from suspension on 1 May 2014203]
Failing to provide Dr Anning with the WorkDynamic report206]
Failing to provide Dr Anning with the opportunity to apply for, or be considered for, or to invite her to apply for, the role of Acting Associate Director (Administration and Student Services)207]
Issuing Dr Anning with the formal warning on 15 January 2015 and failing to take into consideration the evidence and submissions given by Dr Anning in response to the allegations of misconduct210]
Discontinuing the Substantive Position, causing the Substantive Position to become redundant212]
Failing to consult with Dr Anning prior to discontinuing the Substantive Position223]
Terminating Dr Anning’s employment226]
Reasons for adverse action229]
Breach of enterprise agreements
Allegations236]
Discussion – allegations of misconduct
Operation of the Dean Contract after 30 April 2014239]
Failure to follow procedure for conducting investigations248]
Time to respond to allegations250]
Misconduct committee251]
Termination of employment
Failed to consult before making position redundant252]
Failed to consider her for position for which she was qualified259]
Non-indigenous person appointed as acting Dean when Dr Anning could have continued in the role264]
No outplacement services267]
Contraventions of the Racial Discrimination Act
Direct discrimination270]
Discussion
..... Excessive work272]
..... Inferior reportling lines276]
..... Funding of Badanami Centre278]
Indirect discrimination284]
Discussion
..... Unreasonable requirement288]
..... Non-compliance with requirement294]
..... Purpose or effect of conduct295]
Breach of the Dean Contract296]
Workload and implied terms299]
Implied term against unpaid extra duties303]
Implied term requiring resources305]
Implied term requiring good faith307]
Workload and express term312]
Code of conduct, safe place of work and obligation to act in good faith316]
Implied terms – safe place of work and obligation to act in good faith318]
Incorporated provisions: University code of conduct323]
Reversion term325]
CONCLUSION326]
INTRODUCTION
The applicant, Dr Anning, is a former employee of the respondent, Western Sydney University, which was previously known as the University of Western Sydney (“University”).
On 13 May 2015 Dr Anning commenced a proceeding in this Court alleging contraventions by the University of the Fair Work 2009 (“FW Act”). On 26 May 2015 she commenced an additional proceeding, alleging contraventions by the University of the Racial Discrimination Act 1975 (“RD Act”). On 3 August 2015, for the reasons identified in Anning v University of Western Sydney [2015] FCCA 2124, I ordered the matters to be consolidated and that Dr Anning file points of claim incorporating all her allegations against the University. Points of claim were filed on 29 January 2016.
On the first day of hearing on 18 July 2017, I made the following orders:
1.The proceeding be conducted on the basis of the causes of actions pleaded in the points of claim filed on 29 January 2016.
2.For the avoidance of doubt, the proceeding not be conducted on the basis of any other causes of action, including those asserted or referred to in the applicant’s affidavits in reply.
3.With respect to the applicant’s evidence, the Court rejects those parts of the applicant’s evidence (including affidavits, annexures and exhibits) that are not relevant to the causes of action pleaded in the points of claim filed on 29 January 2016.
Those orders also contained the following notation:
1.Pursuant to s.136 of the Evidence Act 1995 (Cth), the Court will not use the applicant’s evidence to the extent that it:
a.relates to causes of action not pleaded in the points of claim; or
b.is no more than submission or assertion.
At the beginning of closing addresses on 7 August 2017, Dr Anning was granted leave to file a further amended points of claim to make corrections to her pleading.
ALLEGATIONS
Points of claim
Factual allegations
Dr Anning’s further amended points of claim are relevantly summarised below. It should be noted that not everything the document contained was relevant to the allegations of contractual and statutory breaches which were pleaded.
Dr Anning is a former Associate Professor who was employed by the University from August 2007 to 20 February 2015. During that period, she worked in the Badanami Centre for Indigenous Education (“Badanami Centre”), a specialist unit within the University which offered academic and support programs for Aboriginal and Torres Strait Islander students.
Dr Anning was initially employed as Co-ordinator of Academic Programs but in 2007 her title was changed to Associate Director (Academic) (“Substantive Position”).
On 1 February 2010 Dr Anning became the Director and Acting Dean of the Badanami Centre (“Acting Dean”) and on 1 May 2011, pursuant to a fixed term contract of three years (“Dean Contract”), she became Dean, Indigenous Education and Director of the Badanami Centre (“Dean”) Clause 2.2 of the Dean Contract stated that Dr Anning would return to her Substantive Position at the expiry of her three year term as Dean (“Reversion Term”).
Dr Anning alleged that save for the period when she was employed as Dean, at all material times her employment was covered by an enterprise agreement, as follows:
Period
Coverage
August 2007 to 31 December 2008
University of Western Sydney Academic Staff Agreement 2006 – 2008
19 July 2010 to 30 April 2011
University of Western Sydney Academic Staff Agreement 2009 – 2012 (“2009 Agreement”)
1 May 2011 to 30 April 2014
Dean Contract
1 May 2014 to 22 [sic] December 2014
2009 Agreement, which was extended to operate until 22 [sic] December 2014
12 December 2014 to 20 February 2015
University of Western Sydney Academic Staff Agreement 2014 (“2014 Agreement”)
Dr Anning alleged that while she was Acting Dean, the University did not recruit anyone to fill her Substantive Position and she performed the duties of that position as well as those of Acting Dean but without additional remuneration. She alleged that she made a number of complaints to the University about the workloads she was being required to assume, as well as the University’s failure to properly remunerate her.
Dr Anning also alleged that while she was Dean, various positions in the Badanami Centre were vacated and not replaced, including her own Substantive Position, and she had had to perform the duties associated with those positions (“Additional Duties”) as well as those of Dean, again without additional remuneration.
On 18 November 2013 Dr Anning was suspended with pay for about five months in connection with allegations of misconduct which had been made against her. The allegations were subjected to an external investigation conducted by WorkDynamic Australia (“Conduct Review”).
In early 2014, while Dr Anning was suspended, the University engaged Emeritus Professor Kevin McConkey of the University of Newcastle to conduct a review of the Badanami Centre. In March 2014 Professor McConkey provided a written report (“McConkey Report”).
On 1 May 2014 Dr Anning reverted to her Substantive Position but she was not, she alleged, given work of an appropriate level or significance and she remained under disciplinary protocols pending the finalisation of the Conduct Review.
The University did not extend the Dean Contract or consider continuing her in the role of Dean but gave the role to Professor Kerri-Lee Krause, Pro Vice-Chancellor (Education), who was not of indigenous descent.
On 4 June 2014 the University released for consultation its first plan for organisational change at the Badanami Centre. (According to the copy of the proposal reproduced in exhibit R3, the plan was based on the recommendations made in the McConkey Report and proposed a transfer of all the Badanami Centre’s academic staff, including Dr Anning, to other schools within the University.).[1] A revised plan was released on 12 January 2015 (“Revised Change Proposal”).
[1] Exhibit R3, pp.140-142
On or about 30 November 2014 the Badanami Centre’s senior management position of Associate Director (Administration and Student Services) became vacant. Dr Anning alleged that the position was an “identified” position for the purposes of recruitment under the Anti-Discrimination Act 1977 (NSW) but she was not considered for it and another person was appointed on an acting basis.
On 15 January 2015 the University issued Dr Anning with a formal warning as it was satisfied that she had engaged in misconduct and serious misconduct.
Dr Anning alleged that in issuing her with the formal warning following the WorkDynamic report, the University failed to take into consideration the evidence and submissions she gave in response to, and in connection with, the allegations made against her.
On 6 February 2015, following correspondence regarding the Revised Change Proposal, the University gave notice to Dr Anning of the termination of her employment, with effect from 20 February 2015, on the basis that the Substantive Position had been made redundant.
Dr Anning alleged that in contravention of the 2009 and 2014 Agreements the University had failed to consult with her before recommending the abolition of the Substantive Position and had failed to give her the opportunity to explore other employment opportunities within the University or to be supported with outplacement services.
On 20 February 2015 Dr Anning’s employment was terminated by reason of redundancy.
Allegations of breach
The details of Dr Anning’s allegations of statutory and contractual breaches are more usefully set out later in these reasons where those allegations are considered in detail. For present purposes, the following summary of those allegations is sufficient.
Contraventions of the Fair Work Act – Adverse action
In broad terms, Dr Anning alleged that by acting as alleged above, which she said injured her in her employment or alternatively altered her position to her detriment, the University had taken adverse action against her for reasons which contravened s.340 of the FW Act.
Contraventions of the Fair Work Act – Breach of enterprise agreements
Dr Anning alleged that the University breached the 2009 and 2014 Agreements by failing to follow the procedures set out in those agreements when addressing the allegations of misconduct and when terminating her employment.
Dr Anning alleged that by breaching the agreements, the University contravened s.50 of the FW Act.
Breach of the Dean Contract
Dr Anning alleged that the University breached the Dean Contract by requiring her to:
a)perform the Additional Duties and work excessive hours when the same was not required of other academics; and
b)report to the University’s executive instead of to the Vice-Chancellor, unlike other deans, and thus be deprived of the top level supervisory support enjoyed by other deans;
and by reducing the Badanami Centre’s funding relative to that of other schools.
Dr Anning also alleged that by failing to give her any real work upon her return to the Substantive Position following the end of the Dean Contract’s term, the University breached the Reversion Term.
Contraventions of the Racial Discrimination Act
Direct discrimination
Dr Anning alleged that in circumstances where its actions were motivated by her Aboriginal descent, the University was guilty of direct discrimination in contravention of s.9(1) of the RD Act by requiring her to:
a)perform the Additional Duties and work excessive hours when the same was not required of other academics;
b)report to the University’s executive instead of to the Vice-Chancellor, unlike other deans, and thus be deprived of the top level supervisory support enjoyed by other deans;
and by reducing the Badanami Centre’s funding relative to that of other schools.
Indirect discrimination
Dr Anning also alleged that the requirement that she perform the Additional Duties amounted to indirect racial discrimination of the sort described in s.9(1A) of the RD Act and so contravened s.9 of the RD Act.
Relief sought
Dr Anning sought:
a)compensation from the University under s.545 of the FW Act for the alleged adverse action;
b)the imposition of pecuniary penalties on the University under s.546(1) of the FW Act for the alleged breaches of the 2009 and 2014 Agreements;
c)damages from the University for the claimed breaches of contract;
d)damages from the University under s.46PO of the Australian Human Rights Commission Act 1986 (“AHRC Act”) as:
… reasonable remuneration for the Additional Duties performed throughout the course of her tenure as Dean, Badanami Centre, and damages for dislocation to life and stress and anxiety caused by the Respondent’s conduct.
DEFENCE
The University filed further amended points of defence on 18 July 2017. It denied the breaches alleged and also made the following allegations.
Adverse action claim
The University alleged that:
a)Dr Anning went on professional development leave from 1 May 2014 until about mid-August 2014 and so the University did not fail to return her to the original duties and responsibilities of the Substantive Position;
b)the University did not extend the Dean Contract because the contract was for a fixed term of three years which expired on 30 April 2014 and it was not appropriate to extend the contract in circumstances where Dr Anning was under investigation and where organisational change to the Badanami Centre was anticipated to occur in the near future;
c)the University maintained disciplinary action against Dr Anning following her return from suspension because, at the time, WorkDynamic was still conducting an investigation into the allegations of misconduct;
d)the University was not required to provide Dr Anning with a copy of the WorkDynamic report;
e)Dr Anning’s Substantive Positon was not identified by the Revised Change Proposal as a position to be discontinued. Further, the position of Associate Director (Administration and Student Services) was abolished on or about 2 December 2014 which had been anticipated as a result of expected, imminent changes to the structure of the Badanami Centre;
f)in issuing Dr Anning with a formal warning on 15 January 2015, the University took into account the material provided by her in response to the allegations of misconduct; and
g)the University discontinued the Substantive Position at Dr Anning’s suggestion and, in accordance with her wishes, offered her a voluntary redundancy which she elected to take.
Breach of enterprise agreements claim
The University alleged that the 2009 and 2014 Agreements did not apply to Dr Anning while her employment was governed by the Dean Contract although they did when it was not. The University alleged that it followed the procedures set out in the Dean Contract.
Breach of contract claim
The University alleged that the Dean Contract did not contain a position description outlining duties and responsibilities but did include an express term that that contract constituted the entire agreement between Dr Anning and the University and so, amongst other things, could not contain implied terms as she alleged. Relevantly, the Dean Contract provided that Dr Anning was required to work all reasonable additional hours as required without additional remuneration, that additional hours could be performed outside ordinary hours, and that upon its expiry Dr Anning would return to the Substantive Position.
The University alleged that its Code of Conduct was not incorporated into the Dean Contract as Dr Anning asserted.
RELEVANT LEGISLATION AND INSTRUMENTS
Racial Discrimination Act
Section 9 of the RD Act relevantly provides:
9 Racial discrimination to be unlawful
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
Fair Work Act
Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement.
Sections 340, 341 and 342 of the FW Act relevantly provide:
340 Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
…
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
…
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Sections 50 and 340(1) are civil remedy provisions breach of which can attract pecuniary penalties: s.539 of the FW Act. Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy provision.
Enterprise Agreements and the Dean Contract
The 2009 Agreement relevantly provided:
2. APPLICATION OF THE AGREEMENT
…
(2) The Agreement applies to and is binding according to its terms on all parties to the Agreement, with the exception of those Employees holding the positions of Vice-Chancellor, Deputy Vice-Chancellor, Pro Vice-Chancellor, Executive Dean, Dean, Deputy Dean and Head of School. …
…
45. MISCONDUCT OR SERIOUS MISCONDUCT
…
(12)If the Executive Dean, Director or Research Executive member believes an allegation of Misconduct or Serious Misconduct warrants further action, they will notify the employee in writing describing the alleged Misconduct or Serious Misconduct in sufficient detail to allow the employee to understand the allegation and give the employee an opportunity to respond in writing within 10 working days.
…
(21)If an employee denies allegations of Misconduct or Serious Misconduct in part or in full or does not respond to the allegations but the Executive Dean, Director or Research Executive member believes that there has been Misconduct or Serious Misconduct, then they will, within 10 working days of the denial or time for response advise the employee in writing that the matter will be referred to a Misconduct Committee unless the employee elects within 5 days of receipt of the advice to have the matter formally investigated.
…
50. REDEPLOYMENT AND REDUNDANCY
Displaced Employees
(1)A displaced academic employee is an academic employee who cannot be gainfully employed in the position in which they were engaged, due to factors including:
(a) the restructuring of an organisational unit;
…
(5)The University will fulfil its obligations to displaced employees under the relevant provisions of the Act. This includes mitigating the likelihood of retrenchment (where practicable) within the provisions of this Agreement and appropriate in relation to the employee’s stated wishes, the University will:
(a)discuss with a displaced employee the options to elect to be considered for redeployment or to elect redundancy; and
(b)pro-actively case manage and consult with the displaced employee.
(6)The University will provide the following support to displaced employees:
(a)professional assistance in applying for positions, interview techniques and career planning;
(b)professional counselling;
(c)job search and career transition management services (which may include relevant and specifically targeted short term training programs).
…
Redundancy
(8)Within 10 working days of receiving advice that they are displaced, an employee will advise the University whether they elect redundancy.
…
(11)A displaced employee who elects redundancy will cease to be employed 10 working days after advising the University of their election or at another date agreed between the employee and the University.
…
54.INDIGENOUS AUSTRALIAN EMPLOYMENT STRATEGY
…
(9)The University recognises that “Aboriginality” is a genuine occupational qualification and that an Indigenous Australian employee can most effectively provide relevant services to Indigenous Australians and advice about Indigenous Australian culture and people. Therefore, the University recognises that in certain circumstances it may be appropriate for Indigenous Australians to be employed by the University to provide specific services to other Aboriginal and Torres Strait Islander people. In these circumstances these positions requires an applicant to be an Indigenous Australian as a genuine occupational qualification as authorised by section 14 of the Anti-Discrimination Act 1977 (NSW).
The University will:
(a)identify positions that are established to recruit, support, educate and/or provide services to Indigenous Australian students and staff, and recruit Indigenous Australians into those positions;
(b)for the future take steps to provide for all positions in the Badanami Centre for Indigenous Education to be filled by Indigenous Australians within the term of the Agreement;
(c)maintain a Senior Staff position as Head of the Badanami Centre for Indigenous Education with overall responsibility for advice, coordination and management of Indigenous Australian education policy, Indigenous Australian students and educational matters. In implementing these actions the University will ensure that employees will not suffer disadvantage in relation to their employment; and
(d)maintain a Senior Staff position to facilitate the implementation of the Indigenous Australian Employment Strategy and related policies.
The 2014 Agreement relevantly provided:
4. APPLICATION OF THE AGREEMENT
…
4.2 The Agreement applies to and is binding according to its terms on all parties to this Agreement, with the exception of those Employees holding the positions of Vice-Chancellor, Deputy Vice-Chancellor, Pro Vice-Chancellor, Dean and Deputy Dean.
…
40. REDEPLOYMENT AND REDUNDANCY
Displaced Employees
40.1Organisational change made [sic] result in an ongoing Employee becoming a displaced employee because they are no longer to be gainfully employed in the type of work in which they were engaged provided that an Employee is not displaced if there are minor changes to the job or where there are changes to duties in accordance with the multi-skilling provisions contained in clause 24: Academic Career Development, Planning and Development.
…
40.5 The University will fulfil its obligations to displaced Employees under the relevant provisions of the Act, including mitigating the likelihood of retrenchment (where practicable) within the provisions of this Agreement and where appropriate in relation to the Employee’s stated wishes, the University will:
(a)discuss with a displaced Employee their options regarding redeployment or redundancy; and
(b)pro-actively case manage and consult with the displaced Employee.
40.6The University will provide the following support to displaced Employees:
(a)professional assistance in applying for positions, interview techniques and career planning;
(b)professional counselling;
(c)job search and career transition management services (which may include relevant and specifically targeted short term training programs).
…
Redundancy
40.8Within 10 working days of receiving advice that they are displaced, an Employee will advise the University whether they elect redundancy.
…
40.11A displaced Employee who elects redundancy will cease to be employed 10 working days after advising the University of their election or at another date agreed between the Employee and the University.
…
43. MISCONDUCT OR SERIOUS MISCONDUCT
…
Allegations
43.29If the University has determined that formal allegations of Misconduct or Serious Misconduct should be laid, the University will notify the Employee of the allegation(s) in writing and in sufficient detail to enable the Employee to understand, and respond to, the allegation(s), together with a copy of all parts of the investigator’s report relied upon by the University in making the allegation(s). Before providing the report or extracts from the report to the Employee, the University will remove any material it considers should be excluded if exceptional circumstances exist.
43.30The Employee will be given 10 working days (or longer period as agreed) to respond to the allegation(s).
…
Misconduct Committee
43.32Where a matter is referred to a Misconduct Committee, the Committee will be convened within 10 working days where possible. The Misconduct Committee will consist of 3 members as follows:
(a)an Employee of the University nominated by the University;
(b)a trained employee of the University who is nominated by the staff representatives on the Implementation Committee, and who is drawn from a pool of trained employees selected through an expression of interest process by the Implementation Committee; and
(c)an independent Chair selected by the Vice-Chancellor from a pool of Chairs and, where the employee is a Union member, by agreement with the relevant Union. Chairs appointed under this clause will have relevant experience and be independent.
43.33The role of the Misconduct Committee will be to provide a report to the University regarding any matters that the Misconduct Committee considers the University should take into account when making any decision regarding the allegation(s) and the Employee. In doing so, the Misconduct Committee will consider:
(a)the investigator’s report;
(b)the allegation(s) of Misconduct or Serious Misconduct made against the Employee;
(c)the Employee’s response to the allegations of Misconduct or Serious Misconduct;
(d)any additional submissions or material provided to, or sought by, the Misconduct Committee by/from the Employee in person or in writing in relation to the allegation(s);
(e)any mitigating circumstances;
(f)whether the procedures that were followed by the investigator under subclause 43.25 afforded procedural fairness to the Employee; and
(g)any other matters that may have a material relevance to any decision which may be made by the University regarding disciplinary action.
43.34The role of the Misconduct Committee will not be to reinvestigate the matter. The Misconduct Committee may, however, consider additional material evidence (whether from persons or documents) which was not available to the investigator.
43.35The Misconduct Committee will prepare any report as expeditiously and confidentially as possible.
…
58. ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES EMPLOYMENT STRATEGY
…
58.10 The University will:
…
(b)subject to the availability of suitably qualified people, take steps to provide for all positions in the Badanami Centre for Indigenous Education to be filled by Aboriginal and Torres Strait Islander Peoples within the term of this Agreement;
…
The Dean Contract relevantly provided:
5.2By signing this Agreement and/or accepting employment with the University, you acknowledge that you have read, understand and agree to comply with any duties, obligations and directions imposed on you under the University’s:
(a) Code of Conduct; and
(b) Workplace Surveillance Policy;
as in force, amended or replaced from time to time.
Section 14 of the Anti-Discrimination Act 1977 (NSW) provides:
14 Exception—genuine occupational qualification
Nothing in this Division applies to or in respect of any work or employment where that work or employment involves any one or more of the following:
…
(d) providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race.
APPLICANT’S EVIDENCE
Berice Anning
Badanami Centre
Dr Anning deposed that the Badanami Centre was based at each of the University’s five campuses: Hawkesbury, Campbelltown, Bankstown, Parramatta and Penrith-Kingswood.[2]
[2] Affidavit of Berice Anning 7 March 2017, [43]
Substantive Position
In August 2007 Dr Anning was appointed Co-ordinator of Academic Programs at the Badanami Centre as a “Level D” academic. In that role, she was responsible for the development, co-ordination and delivery of all the centre’s academic programs.[3] In December 2007 that position was retitled to Associate Director (Academic) (that is, the Substantive Position).[4]
[3] Transcript of Proceedings, p.68
[4] Affidavit of Berice Anning 7 March 2017, [11], [13], Annexure 1 p.48
Dr Anning deposed that in or about late 2009 the Substantive Position was reclassified to a senior manager’s position due to the increased duties and responsibilities of the role. She deposed that the position was reclassified as an “Academic, Level E/D”, with effect from around early 2010.[5] Dr Anning deposed that all documentation and correspondence relating to the approval of the reclassification of her position was sent to the University’s human resources office, however, the University later advised that no such documentation could be found on her personnel file.[6]
[5] Affidavit of Berice Anning 7 March 2017, [14]-[15]
[6] Affidavit of Berice Anning 7 March 2017, Annexure A p.451
Dr Anning deposed that her duties and responsibilities in the Substantive Position included:
a)developing and managing the centre’s academic programs;
b)providing advice on the inclusion of indigenous content across all of the University’s courses; and
c)acting as the centre’s nominee on the University’s academic committees as well as external committees as required.[7]
[7] Affidavit of Berice Anning 7 March 2017, [15]
She deposed that she was required and/or expected by the University to take a leadership role in performing these duties.
Director and Acting Dean
Dr Anning deposed that on 1 February 2010, following the resignation of the then-dean, she was appointed Acting Dean of the Badanami Centre.[8] She deposed that her race was a main condition for appointment to this position.[9] As Acting Dean, Dr Anning was responsible for the overall operation and supervision of the University’s Badanami Centres.[10]
[8] Affidavit of Berice Anning 7 March 2017, [16]
[9] Affidavit of Berice Anning 7 March 2017, Annexure E p.1338
[10] Affidavit of Berice Anning 7 March 2017, [18]
Dr Anning deposed that the University did not recruit a person to fill her Substantive Position. Consequently, whilst she was Acting Dean, she “was required” and in fact continued to perform the duties of the Substantive Position. She deposed that she was not remunerated for performing those duties, despite the University’s policy on higher duties.[11]
[11] Affidavit of Berice Anning 7 March 2017, [19]
Dean of Badanami Centre
Dr Anning deposed that on 1 May 2011 she was appointed Dean for a fixed term of three years.[12]
[12] Affidavit of Berice Anning 7 March 2017, [25]
Dr Anning deposed that she signed the Dean Contract after the University agreed that if her Substantive Position was not to be filled it would transfer the Aboriginal Rural Education Programs (“AREP”) course to the School of Education to reduce the centre’s workload and resourcing issues. However, the University did not follow through with the transfer of the AREP course and Dr Anning deposed that this left her working excessive hours whilst she performed the duties of multiple roles.[13]
[13] Affidavit of Berice Anning 7 March 2017, [25]
Supervision
Dr Anning deposed[14] that during her tenure as Dean she was supervised by various members of the University’s executive staff at the Pro Vice-Chancellor level or Deputy Vice-Chancellor level. Her supervisors were:
a)from May 2011 to December 2012 – Rhonda Hawkins, Deputy Vice-Chancellor (Corporate Services and Strategy); and
b)from January 2013 to 18 November 2013 (when she was suspended) – Professor Krause, Pro Vice-Chancellor (Education).
[14] Affidavit of Berice Anning 7 March 2017, [64]
Dr Anning deposed that unlike the deans of all of the University’s other nine schools, at no time during her tenure as Dean was she supervised by the Vice-Chancellor.[15]
[15] Affidavit of Berice Anning 7 March 2017, Annexure A p.453
Additional Duties
Dr Anning deposed that she made many complaints and enquiries, both orally and in writing, to various people at the University about her excessive workload and requested approval to conduct recruitment for the Substantive Position.[16] She also requested that funding be allocated for the filling of vacant positions.[17]
[16] Affidavit of Berice Anning 7 March 2017, [23]
[17] Affidavit of Berice Anning 7 March 2017, [20]
In her affidavit in chief Dr Anning referred to numerous complaints which she said she made in the period June 2010 to April 2011 (while she was negotiating the terms of the Dean Contract), including:[18]
[18] Affidavit of Berice Anning 7 March 2017, Annexure 7 p.89
a)email dated 3 June 2010 to Greg Hansen, Associate Director, HR Business Services:
The evaluation of my workload is that effectively I am undertaking all the tasks of my substantive role plus the increased duties/tasks added to the latter in 2008 (hence, the request for a reclassification of the position) plus the Dean’s role. (I am not trying to be superwoman!!!) … (emphasis included);[19]
[19] Affidavit of Berice Anning 7 March 2017, Annexure 7 p.89
b)email dated 7 November 2010 to Mr Hansen:
Regarding the remuneration issue: a further question relates to my substantive position. If, as the letter from the VC notes, the position of Associate Director (Academic) is not to be filled, then the majority of these duties will still be performed by myself. My preference however, is for the position to be filled, due to the level of growth taking place in Badanami Centre …;[20]
[20] Affidavit of Berice Anning 7 March 2017, Annexure 7 p.95
c)email to Professor Wayne McKenna, Deputy Vice-Chancellor, Academic and Research on 21 January 2011:
Other matters as per our meeting on 6 January that I have not heard back on includes:
…
- Consideration of salary, in that during the past 12 months I have not only acted/undertaken all the tasks related to the Dean/Director’s role but also performed all the duties of my substantive position, Associate Director (Academic).
- … if my substantive position is not filled in 2011 that consideration also be made to my salary component for the combined duties that I will be performing as per the latter comment.[21]
d)email to Mr Hansen dated 2 February 2011:
I have been thinking of a solution to the issue I raised that I have effectively worked 200% in both my substantive position and the Dean’s position.
I noted this week that finance removed the funds for my substantive position to $0 to cater for other funding areas in our 2011 budget. …
Hence, it is more than likely that I would be expected to work the same 200% workload in 2011. However, we know that this is not feasible, and particularly when I actually work all these extra hours and undertake the senior tasks of [illegible]/leadership role in indigenous education at UWS for a mere $500 extra a week on my substantive salary.
My solution is, therefore, that my substantive salary … be divided by 3 years so that in the new contract my overall salary is my current rate … plus one third … which will give me an annual salary that recognises the workload I have performed/no doubt will have to continue doing for a period of time.[22]
[21] Affidavit of Berice Anning 7 March 2017, Annexure 7 p.99
[22] Affidavit of Berice Anning 7 March 2017, Annexure 7 p.103
e)letter to Professor Janice Reid, Vice-Chancellor, dated 21 February 2011:
Thank you for your letter of 15 October 2010 in which you offered me a three year invited appointed to the position of Director and Dean …
I accept the appointment. …
The points I have raised in correspondence and in meetings with HR personnel, Professor McKenna and Rhonda Hawkins, include the following: -
…
(iii) An Allowance/Loading for maintaining a double workload since 1 February 2010 to current date. That is, for undertaking full duties of both the Dean/Director’s role as well as those of my substantive position. Effectively recognising the high performance required to sustain both position’s roles.
…
(v)Recruitment of a new Associate Director (Academic). There is no one staff member in Badanami who could take on the tasks of this position due to their high workload allocations.[23]
[23] Affidavit of Berice Anning 7 March 2017, Annexure 7 p.107
Dr Anning deposed that the University did not act in good faith because it was aware, through her various complaints, that she was undertaking the duties of two positions as well as those of other empty posts.[24]
[24] Affidavit of Berice Anning 7 March 2017, [24]
Dr Anning deposed that from about 2011 to 2013, the following positions at the Badanami Centre were vacated and not filled or not filled promptly:
a)Associate Director (Academic) – vacated in May 2011 when Dr Anning commenced the Dean Contract;
b)Head of Programs/Course Co-ordinator for the AREP course – vacated in mid-2011;
c)Associate Professor, Co-ordinator of the Indigenous Graduate Attribute Program – vacated in mid-July 2012 and vacant until about May 2013; and
d)Course Co-ordinator, Bachelor of Community and Social Development – vacated in about mid-July 2012 and vacant until about November 2013.[25]
[25] Affidavit of Berice Anning 7 March 2017, [46]
Dr Anning deposed that in addition to her duties and responsibilities as Dean, she was required to perform, forced to perform[26] or had no option but to perform, duties ordinarily performed by staff in these positions (that is, the Additional Duties).[27] As a consequence, between 2011 and 2013 she consistently worked in excess of her contracted 35 hours per week and outside the hours of 7am and 6pm as designated in the Dean Contract.[28]
[26] Affidavit of Berice Anning 7 March 2017, Annexure E pp.1338-1339
[27] Affidavit of Berice Anning 7 March 2017, [50]-[51]
[28] Affidavit of Berice Anning 7 March 2017, [53]
Dr Anning referred to numerous complaints which she said she had made to the University about her excessive workload and referred in this regard to the complaints she made whilst she was Acting Dean.[29] She also referred to additional complaints made in the period May 2011 to October 2013, including:
[29] Affidavit of Berice Anning 7 March 2017, [55]
a)email to Professor Krause dated 22 December 2012:
Having to continue with the employment of specific staff who undermine the very focus and goals of Badanami Centre for Indigenous Education and senior management, also impacts me. This, at a time, when I perform the duties of all the key academic positions that have been vacated/having staff on workcover stress leave, creates a serious risk to my health and wellbeing in the UWS/Badanami Centre workplace.
… I am also at work today with the plan to complete the research project I am doing in partnership with Deakin and Griffith Universities/Indigenous academics. Once again, though, I am diverted from other tasks in order to deal with work matters relating to Badanami staffing. In completing the research on this project, I work outside of my normal work hours and the extended hours of work across 6-7 days a week and up to 11-12pm most nights. My annual leave will now have to be used to complete the research project …;[30]
[30] Affidavit of Berice Anning 7 March 2017, Annexure 15 pp.310-311
b)letter to Professor Reid, Vice-Chancellor, date 17 June 2013:
Furthermore, since 2011 and in a recent email to Professor Krause, I have requested approval to commence recruitment to fill my substantive position of Associate Director (Academic Programs). I have not had any favourable response. This is despite the fact that I continue to advise my supervisor that I am working seven days week, averaging 14 hours a day. I advised Ed Davis that I am currently fulfilling the roles of:
(i)Dean …;
(ii)still performing my substantive duties as Associate Director (Academic);
(iii)since mid-July 2012, Acting Course Coordinator and Advisor for the full offering of the Bachelor of Community and Social Development course;
(iv)since July 2012 to 27 May 2013, Course Coordinating the Indigenous Australian Studies Major (IASM) …;
(v)maintaining active engagement in national and international Indigenous higher education development and research to maintain my own leadership knowledge; skills and networks; and
(vi)more recently, taking on the role of a HEW level 6 general staff who has refused to perform tasks in the workplace for the Alternative Entry Program when directed to.[31]
c)letter to Professor Reid dated 13 September 2013:
… I thank you for your concerns; noting your duty of care in putting forward the interim arrangements and support. Despite the fact that the alternative entry program will be removed to the portfolio of the PVC Students, this lesser responsibility does not detract from the academic workload that I have/continue to perform in the absence of academic staff and particularly the restrictions on recruiting fixed-term staff to fill vacant positions. …[32]
[31] Affidavit of Berice Anning 7 March 2017, Annexure 15 p.321
[32] Affidavit of Berice Anning 7 March 2017, Annexure 15 p.332
Dr Anning deposed that she was not remunerated or compensated in any way for performing the Additional Duties.[33]
[33] Affidavit of Berice Anning 7 March 2017, [62]
Dr Anning agreed that the University had taken steps to address some of her concerns about her workload.[34] For example, in 2011 Ms Hawkins agreed to defer the 2012 intake for one of the centre’s bachelor programs[35] and in December 2012 Professor Krause agreed to fill an associate professor position which had been vacant since July that year, although that role was not filled until May 2013.[36] Further, in September 2013 the University seconded an employee from another part of the University to fill in as the centre’s team leader at the Bankstown campus.[37] Dr Anning also agreed that at the end of 2013 the University accepted her recommendation to transfer two of the centre’s degree courses to other schools for the beginning of the 2014 academic year.[38] Nevertheless, Dr Anning said that these steps did not go to the “heart” of the academic workload problems she had been facing.[39]
[34] Transcript of Proceedings, p.128ff
[35] Transcript of Proceedings, p.129
[36] Transcript of Proceedings, p.130
[37] Transcript of Proceedings, p.130
[38] Transcript of Proceedings, pp.129, 134
[39] Transcript of Proceedings, p.132
Allegations of misconduct – suspension
It is apparent from the annexures to Dr Anning’s affidavits that in the period leading up to her suspension, internal staff conflict at the Badanami Centre was very high. Dr Anning said that the situation escalated in 2013 because, after Professor Krause came on board, certain staff members began taking their issues directly to Professor Krause and refused to follow directives issued by Badanami Centre management.[40] Dr Anning deposed that a series of “vexatious, false and misleading”[41] allegations were made against her by a number of Badanami Centre staff who were unhappy with her supervision and management of their performance.[42] In particular, complaints were made that Dr Anning had engaged in bullying and harassing behaviour as well as fraudulent and corrupt conduct.[43] Dr Anning deposed that various investigations by the University, and supposedly the Independent Commission Against Corruption (“ICAC”), ensued.[44]
[40] Transcript of Proceedings, p.42
[41] Affidavit of Berice Anning 7 March 2017, Annexure C p.962
[42] Affidavit of Berice Anning 7 March 2017, Annexure B p.529ff
[43] Affidavit of Berice Anning 7 March 2017, Annexure 15 pp.319-320, Annexure B p.615
[44] Affidavit of Berice Anning 7 March 2017, Annexure 15 pp.313-327, Annexure C p.962
On 18 November 2013 Dr Anning was suspended from her position on full pay[45] pending the outcome of the Conduct Review.[46] Many of the allegations related to Dr Anning’s apparent failure to declare a conflict of interest in relation to her sister, who was a student at the Badanami Centre. Other allegations were that she amended her sister’s marks and those of other students and that she misused funds by approving first class travel for her sister.[47] Dr Anning was alleged to have breached the Dean Contract, Commonwealth Government guidelines, and various of the University’s policies.
[45] Affidavit of Berice Anning 7 March 2017, Annexure A p.455
[46] Affidavit of Berice Anning 7 March 2017, Annexure A p.466
[47] Affidavit of Berice Anning 7 March 2017, Annexure C p.998 “Schedule of Allegations”
On 23 November 2013 Dr Anning lodged a complaint of racial discrimination with the Australian Human Rights Commission (“AHRC”)[48] (that complaint was terminated in March 2015, whereupon Dr Anning commenced the current proceedings.[49]
[48] Affidavit of Berice Anning 7 March 2017, Annexure D p.1088
[49] Affidavit of Berice Anning 7 March 2017, Annexure B p.634
In a letter dated 20 December 2013 Dr Anning advised the University that the allegations of serious misconduct relating to her sister’s first class travel had been based on falsified documentation provided by certain Badanami Centre staff.[50] Dr Anning requested, amongst other things, that the University conduct an immediate investigation into the “corrupt” actions of the staff responsible.
[50] Affidavit of Berice Anning 7 March 2017, Annexure B p.641
On 7 January 2014, and further to her letter of 20 December 2013, Dr Anning wrote to the University to highlight her continuing concerns about the actions of some Badanami Centre staff who, she alleged, had provided false and misleading information about her.[51] As before, Dr Anning requested an immediate investigation into their conduct.[52]
[51] Affidavit of Berice Anning 7 March 2017, Annexure B p.743
[52] Affidavit of Berice Anning 7 March 2017, Annexure B p.745
On 14 February 2014 the University advised Dr Anning that it had determined that it would be appropriate to refer the allegations of serious misconduct to an external party for formal investigation.[53] WorkDynamic were subsequently appointed.[54]
[53] Affidavit of Berice Anning 7 March 2017, Annexure B p.827
[54] Affidavit of Berice Anning 7 March 2017, Annexure A p.470
On 24 February 2014 Ms Hawkins responded to Dr Anning’s letters of 20 December 2013 and 7 January 2014[55] and relevantly advised her that:
… you will have recently received correspondence from Ms Tout advising you that the allegations against you and the material that you have provided in response to the allegations are being referred for formal investigation in accordance with your contract of employment. The findings of fact and any recommendations that are made as result of this investigation will, if necessary, inform any action that may be taken by the University in relation to any provision of false information by University staff; …[56]
[55] Affidavit of Berice Anning 7 March 2017, [67(b)]
[56] Affidavit of Berice Anning 7 March 2017, Annexure C p.1060
On 25 March 2014 the University advised Dr Anning that it did not intend to offer her a renewal of the Dean Contract which was due to expire on 30 April 2014 and so on 1 May 2014 she would revert to the Substantive Position as “Associate Professor, Academic Level D”.[57]
[57] Affidavit of Berice Anning 7 March 2017, Annexure A p.466,
In a letter dated 29 April 2014 the University advised Dr Anning that her suspension from work would be lifted with effect from 1 May 2014 but confirmed that disciplinary proceedings would remain on foot until the conclusion of the prescribed process.[58] In a further letter of the same date, Dr Anning was advised that her request for professional development leave had been approved and it would commence on 1 May 2014.
[58] Affidavit of Berice Anning 7 March 2017, Annexure A p.471
Return from suspension
Dr Anning’s suspension was lifted on 1 May 2014, at which time she commenced a period of professional development leave (although this research work was done at the centre.[59] She returned to work in mid-August 2014.[60]
[59] Transcript of Proceedings, p.73
[60] Affidavit of Berice Anning 7 March 2017, Annexure A pp.456, 459, 483-485
Dr Anning deposed that she was “more or less left to her own devices”[61] after she returned to work from her suspension. She deposed that she was not provided any of the normal duties and responsibilities of her Substantive Position (including supervision of staff and academic programs,[62] was not given any projects to manage and was not supervised in her work by either the Acting Dean (Professor Krause) or the interim Dean who was appointed afterwards (Professor Michele Simons).[63]
[61] Affidavit of Berice Anning 7 March 2017, Annexure A p.454
[62] Affidavit of Berice Anning 7 March 2017, Annexure A p.456
[63] Affidavit of Berice Anning 7 March 2017, Annexure A p.454
Formal warning
Dr Anning deposed that WorkDynamic provided the University with a report of its findings in December 2014.[64]
[64] Affidavit of Berice Anning 7 March 2017, Annexure D p.1099
On 2 and 9 December 2014 Dr Anning wrote to the University, first to Ms Hawkins copied to Professor Glover and secondly to Professor Glover copied to Professor Holmes, asking for an update on the WorkDynamic report and, in the second correspondence, enquiring whether her complaints that the allegations against her had been false had been referred to ICAC.[65]
[65] Affidavit of Berice Anning 7 March 2017, Annexure C pp.1062-1065
On 15 January 2015 Professor Holmes wrote to Dr Anning and advised her that the allegations of serious misconduct had been referred to him by the Vice-Chancellor for consideration and determination.[66] Relevantly, Professor Holmes found that Dr Anning’s conduct amounted in some respects to misconduct and to serious misconduct in relation to amending students’ marks. The letter was stated to be a formal written warning, a copy of which would be placed on Dr Anning’s personnel file.
[66] Affidavit of Berice Anning 7 March 2017, Annexure B p.748
Dr Anning deposed that she sought a copy of the WorkDynamic report in order to challenge the interviewees’ statements and evidence. However, despite numerous requests, the University did not provide her with a copy.[67]
[67] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1100-1102
On 20 January 2015 Dr Anning lodged a complaint with the Fair Work Commission (“FWC”) relating to the disciplinary process taken against her and the University’s failure to provide her with a copy of the WorkDynamic report.[68] However, the University objected to the application on the basis of s.734(1) of the FW Act, namely, that the conduct the subject of the FWC complaint was already the subject of an anti-discrimination complaint lodged by Dr Anning with the AHRC in November 2013.
Organisational change
[68] Affidavit of Berice Anning 7 March 2017, Annexure D p.1101
McConkey review
Dr Anning deposed that from late 2011 and throughout 2013 the University undertook a major review of Aboriginal and Torres Strait Islander education, with the last stage of the review scheduled to be completed in early 2014.[69]
[69] Affidavit of Berice Anning 7 March 2017, Annexure D p.1087
On 20 February 2014 the University emailed Badanami Centre staff and advised them that Professor McConkey had been commissioned to conduct a review of the Badanami Centre.[70] The email relevantly stated:
As you would be aware, Professor Mick Dodson recently visited UWS to speak with Badanami staff in an effort to address some of the staff concerns through mediation. Following Professor Dodson’s advice that Badanami staff do not wish to participate in mediation, the University has decided not [to] pursue that process. While the University respects the wishes of Badanami staff, it is very disappointed at this outcome.
The University is deeply committed to ensuring that the Badanami Centre is fully functional so that it can meet its obligations … The University cannot ignore some of the concerns or claims that Badanami Centre and its support functions are not working as they should be. Further, allegations of an unsafe workplace have been made and these must be addressed. The University will therefore continue to work with staff on strategies to address these issues. …
To that end, the University has appointed Professor Kevin McConkey to work closely with Badanami staff and with Professor Krause and the Office of People and Culture. Professor McConkey will consult with UWS Elders and will spend time meeting with staff to assess the current arrangements in Badanami. …
… Professor McConkey will advise the Vice Chancellor and senior Executive on the best way forward. …[71]
[70] Affidavit of Berice Anning 7 March 2017, Annexure D p.1089
[71] Affidavit of Berice Anning 7 March 2017, Annexure D p.1117
Dr Anning deposed that she was still under suspension at the time of the review and was not interviewed by Professor McConkey.[72] However, it appears that she declined to meet with Professor McConkey on the basis that the review did not relate to her suspension and in any event it would have been inappropriate.[73]
[72] Affidavit of Berice Anning 7 March 2017, Annexure D p.1105
[73] Affidavit of Berice Anning 7 March 2017, Annexure D p.1090
Professor McConkey finalised his report to the University in March 2014.[74] His report relevantly included a number of recommendations regarding the Badanami Centre.
[74] Affidavit of Berice Anning 7 March 2017, Annexure D p.1115
On 10 April 2014 the University determined that it would postpone until 2015 the completion of its periodic review of Aboriginal and Torres Strait Islander education to allow for the implementation of some of Professor McConkey’s recommendations.[75] Dr Anning deposed that the decision to suspend the formal two-year review in favour of a review which had been conducted in a period of about three weeks highlighted issues of institutionalised racism at the University[76] as the Badanami Centre was not treated in the same manner as all other areas of the University in relation to its policy on cyclical reviews.[77] She also deposed that Professor McConkey’s report had been based on the (false) allegations and complaints which had been made against her by staff and was used by the University to bring about organisational changes which caused her Substantive Position to be discontinued, the purpose of which was to prevent her from exercising her workplace rights.[78] She described the McConkey review and the organisational change process as a “sham” which had been designed to remove her from the centre and the University because of the complaints she had made.[79] She said that she had been targeted in this way because of her race.[80] She also said that because the Badanami Centre had been set up specifically to be about Aboriginal and Torres Strait Islander education and was based on race, the change proposals were therefore “all about race”.[81]She said that those processes were also a sham because they were in breach of the University’s own policies on reviews.[82]
[75] Affidavit of Berice Anning 7 March 2017, Annexure D p.1132
[76] Affidavit of Berice Anning 7 March 2017, Annexure D p.1106
[77] Affidavit of Berice Anning 7 March 2017, Annexure D p.1091
[78] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1091, 1106
[79] Affidavit of Berice Anning 7 July 2017 (Affidavit of 35 pages plus annexures), [2], [25], [44.1], [74]
[80] Transcript of Proceedings, pp.38, 39
[81] Transcript of Proceedings, pp.57-58
[82] Transcript of Proceedings, p.56
Dr Anning deposed that the McConkey review had been conducted to get rid of the management/leadership team at the Badanami Centre and that this action had been taken because she had exercised her workplace rights while Professor Krause was her supervisor from late November 2012 to October 2014.[83]
[83] Affidavit of Berice Anning 14 July 2017 (Affidavit of 21 pages plus annexures), [123]
First Proposal
An “Organisational Change Proposal” dated 27 May 2014 (“First Proposal”) was released by the University for consultation on 4 June 2014.[84] Relevantly, the First Proposal contemplated the discontinuance of a number of positions within the Badanami Centre, including the position of Associate Director (Administration and Student Services) (namely, the role for which Dr Anning alleged she should have been considered) and the abolition of the Dean’s position.[85] In relation to the Substantive Position, identified by position number 7003065[86] (listed in the First Proposal as “Associate Professor”,[87] it was proposed that it would be transferred to another school “to be determined after consultation with the affected staff member”.
[84] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1092, 1134
[85] Affidavit of Berice Anning 7 March 2017, Annexure D p.1141
[86] Affidavit of Berice Anning 7 March 2017, Annexure D p.1168
[87] Transcript of Proceedings, p.77; Affidavit of Berice Anning 7 March 2017, Exhibit R3 p.144
Dr Anning deposed that while her Substantive Position was not included in the list of positions proposed to be discontinued, she became aware sometime in June 2014, after the release of the First Proposal, that the University proposed to do that.[88]
[88] Affidavit of Berice Anning 7 July 2017 (Affidavit of 35 pages plus annexures), [1]
Pursuant to the consultation which followed,[89] on 9 July 2014 Dr Anning (together with Ms Lorraine Efeturk) provided a submission to the University in response to the First Proposal.[90]
[89] Affidavit of Berice Anning 7 March 2017, Annexure D p.1092
[90] Affidavit of Berice Anning 7 March 2017, Annexure D p.1148
On 31 October 2014 the University met with academic staff to discuss the First Proposal. Dr Anning deposed that she attended and participated in that meeting.[91]
[91] Affidavit of Berice Anning 7 March 2017, Annexure D p.1094
Revised Change Proposal
The Revised Change Proposal dated December 2014 was emailed to Badanami Centre staff on 12 January 2015.[92] The Revised Change Proposal proposed a change in the title of Dr Anning’s Substantive Position from “Associate Director (Academic)” to “Associate Professor”.[93]
[92] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1215, 1199
[93] Affidavit of Berice Anning 7 March 2017, Annexure D p.1207
On 14 January 2015 Badanami Centre staff, including Dr Anning, provided responses to the Revised Change Proposal.[94]
[94] Affidavit of Berice Anning 7 March 2017, Annexure D p.1094
On 23 January 2015 Dr Anning wrote to Professor Holmes regarding the proposed changes to her Substantive Position[95] and seeking amendment of the organisational change plan to reflect, what was in her view, the true nature of the situation, namely that her Substantive Positon was being discontinued. Relevantly, she stated:
My position, Associate Director (Academic), as noted on page 9 of 15 of the ‘Badanami Centre for Indigenous Education’s Revised Organisational Change Proposal’ (Proposal) has been substantially changed. That is, the Proposal document, received via email from the Office of the Acting DVC (Academic) on 12 January 2015, stated the following:
The Associate Director (Academic) will have its title changed to Associate Professor (7003065) and will continue as an Associate Professor position to be transferred to a School to be determined after consultation with the affected staff member to support Schools commitments to increase representation of senior Aboriginal academics.
[95] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1102, 1324
I, therefore, submit to you that:
1.My current substantive position is:
(i)discontinued, although not stated in the Proposal document;
(ii)being displaced from within the Badanami Centre for Indigenous Education;
(iii)‘proposed’ to be transferred to a UWS School.
2.The Proposal also evidences that the new roles and responsibilities of the position … when transferred are substantially different to my current substantive position.
I therefore submit, that as my current substantive position is being discontinued it should be stated as one of the discontinued positions and included in the list of other discontinued positions …[96]
Dr Anning deposed that her purpose in writing this letter had been to seek clarification of the status of her Substantive Position. She deposed that she had not been seeking redundancy[97] but had wanted the University to be transparent and honest about what they were doing to her Substantive Position.[98]
[96] Affidavit of Berice Anning 7 March 2017, Annexure D p.1324
[97] Affidavit of Berice Anning 7 July 2017 (Affidavit of 35 pages plus annexures), [94]ff
[98] Transcript of Proceedings, pp.107-8, 112
On 24 January 2015 a number of Badanami Centre staff, including Dr Anning, lodged an application with the FWC to deal with a dispute under s.739 of the FW Act.[99] The application concerned a number of issues relating to and arising out of the Revised Change Proposal. Dr Anning deposed that the application was discontinued on 30 January 2015.[100]
[99] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1094, 1217
[100] Affidavit of Berice Anning 7 March 2017, Annexure D p.1095
On 28 January 2015 Ken Hodson, Associate Director, Workplace Relations and Organisational Design in the Office of People and Culture, responded to Dr Anning’s letter of 23 January 2015, stating:
I left a message on your mobile yesterday and asked you to contact me regarding your letter to Scott Holmes where you put forward a case seeking the discontinuation of your position under the revised change proposal for the Badanami Centre.
If you would like to progress this matter please give me a call, otherwise ignore my email.[101]
[101] Affidavit of Berice Anning 7 March 2017, Annexure D p.1335
Dr Anning responded on 29 January 2015 as follows:
Just to advise that my letter to Professor Holmes was not to seek “the discontinuation of my position under the revised change proposal”.
The letter did submit, however, that as my position was actually discontinued (being substantially changed in all aspects except for the academic level of the positon) that it “should be stated as one of the discontinued positions and included in the list of other discontinued positions”.[102]
[102] Affidavit of Berice Anning 7 March 2017, Annexure D p.1334
In further correspondence to Mr Hodson on 2 February 2015, Dr Anning stated:
… I reiterate that through the Badanami Centre Change Proposal process, which is documented in the Revised Change Proposal received on 12 January 2015:
(i) my position title of Associate Director (Academic) has been discontinued;
(ii)my work unit has been changed from Badanami Centre to a School; and
(iii)my tasks and responsibilities have been completely changed.
As my position is discontinued, I expected that my position would be eligible for redundancy. Hence, my letter to Prof. Holmes. …[103]
[103] Affidavit of Berice Anning 7 March 2017, Annexure D p.1334
Later on 2 February 2015, Mr Hodson replied:
I refer to your letter to Professor Scott Holmes dated 23 January 2015 and also to your below emails.
As discussed last Friday, I am writing to you on Professor Holmes’ behalf to advise that at this point in time, the University is of the view that your position has not been discontinued. Your letter will, however, be forwarded to the Vice-Chancellor for consideration as part of his determination regarding the revised change proposal for the Badanami Centre. If the Vice-Chancellor accepts your submission and determines that your position has in fact been discontinued, it is my understanding from our discussion that you would seek a voluntary redundancy rather than redeployment. Please let me know if this is correct so that I may make representations on your behalf in this regard.[104]
[104] Affidavit of Berice Anning 7 March 2017, Annexure D p.1333
Dr Anning responded on 2 February 2015, stating:
Thank you for your response.
As my position, based on the Change Proposal, is effectively discontinued/substantially changed, I would be seeking redundancy and not redeployment.[105]
[105] Affidavit of Berice Anning 7 March 2017, Annexure D p.1333
On 5 February 2015 Mr Hodson wrote to Dr Anning as follows:
As agreed, I have spoken with Professor Holmes on your behalf to seek approval for the discontinuation of your position and the offer of a voluntary redundancy to be made.
I am pleased to advise that Professor Holmes has confirmed the University will agree to discontinuing your position and offering you a voluntary redundancy. Could you please confirm by way of return email that this is how you wish to proceed, in which case your employment with the University will cease ten working days from the date of your confirmation being provided. …[106]
[106] Affidavit of Berice Anning 7 March 2017, Annexure D p.1332
The following day, on 6 February 2015, Dr Anning responded:
… I have no other option but to take redundancy. …[107]
[107] Affidavit of Berice Anning 7 March 2017, Annexure D p.1332
Organisational Change Plan
On 13 February 2015 Badanami Centre staff were emailed a copy of the “Badanami Centre for Indigenous Education Organisational Change Plan” dated February 2015, which had been approved by the Vice-Chancellor for implementation.[108] Relevantly, the email stated:
Following feedback it has been determined to discontinue the existing Associate Director (Academic) position.
[108] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1266, 1268
The email also attached a document entitled “Management Response to Feedback to the Organisational Change Proposal for the Badanami Centre for Indigenous Education”, which summarised the issues raised in response to the proposed organisational changes.[109] Dr Anning deposed that the response was discriminatory and further victimised her as the University simply “cut and pasted” the submissions made during the consultation period and did not have regard to the main issues and concerns raised by staff.[110]
[109] Affidavit of Berice Anning 7 March 2017, Annexure D pp.1266, 1230
[110] Affidavit of Berice Anning 7 March 2017, Annexure D p.1107
On 16 February 2015 Mr Hodson emailed Dr Anning asking her to confirm her acceptance of the redundancy.[111] Dr Anning responded later that day, stating:
I confirmed on the 5th [sic] February 2015 that redundancy was the only option seeing my position had been discontinued.[112]
[111] Affidavit of Berice Anning 7 March 2017, Annexure D p.1330
[112] Affidavit of Berice Anning 7 March 2017, Annexure D p.1330
Dr Anning deposed that contrary to the “Academic Agreement”, no consultation occurred “with regards to the Applicant’s substantive position being changed to the Applicant’s detriment”.[113] She deposed that whilst discussions about her Substantive Position took place, those discussions related to her duties post-suspension and the reclassification of her role in 2010.She deposed that the University did not consult with her specifically or individually about the changes they proposed to make to her Substantive Position; rather, she was the one who raised issues about the impact of the proposed changes.[114]
[113] Affidavit of Berice Anning 7 March 2017, Annexure D p.1097
[114] Affidavit of Berice Anning 7 July 2017 (Affidavit of 35 pages plus annexures), [16.4], [26.2]
Redundancy
Dr Anning deposed that on 20 February 2015 her employment was terminated through redundancy, based on the abolition of her Substantive Position. She deposed that the redundancy was not a genuine redundancy as the Substantive Position was still required at the time it was discontinued. She also deposed that the redundancy had not been voluntary, as at no point did she indicate acceptance of it by signing the offer of voluntary redundancy form.[115]
[115] Affidavit of Berice Anning 7 March 2017, Annexure D p.1096
Dr Anning deposed that she had not been given the option to formally elect between redeployment and redundancy[116] but agreed that under the 2014 Agreement she could have elected either option once her position had been discontinued.[117] However, she said that she had had “no other option” but to take the redundancy because of the treatment and adverse actions she had been receiving, “particularly with the allegations and the determination outcome by Professor Holmes”. She said that she could not stay at the University because of the adverse actions taken against her.[118]
[116] Affidavit of Berice Anning 7 July 2017 (Affidavit of 35 pages plus annexures), [69]
[117] Transcript of Proceedings, pp.119-120
[118] Transcript of Proceedings, pp.61-63, 120
Dr Anning also said that she did not elect to be redeployed because she had not been consulted about that option.[119]
[119] Transcript of Proceedings, pp.61-62
Alternative position
On 3 December 2014, that is to say before the Revised Change Proposal was published, Professor Simons (who took on the role of Acting Dean and Director of the Badanami Centre from December 2014 after Professor Krause’s departure[120] emailed Dr Anning and others, advising that:
… Associate Professor Bronwyn Cole has agreed to act as my delegate in the position of Acting Associate Director of the Badanami Centre until arrangements can be made to fill the position on a more permanent basis. …[121]
[120] Affidavit of Berice Anning 7 March 2017, Annexure A, p.454
[121] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1446
Professor Simons further wrote to Dr Anning on 14 December 2014, stating:
This is an interim arrangement to assist with the administrative and operational management of the Badanami Centre following Lorraine Efeturk’s exit from the University on 1 December 2014. The Associate Director, Administration and Student Services is now vacant. To ensure continuity of support for professional staff in the Badanami Centre I have asked Associate Professor Bronwyn Cole to take on this responsibility as an Acting Associate Director, Administration and Student Services.[122]
[122] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1445
Dr Anning’s evidence was that the Associate Director (Administration and Student Services) position had the same classification as her Substantive Position[123] and was identified for an Indigenous/Aboriginal and Torres Strait Islander appointment.[124]
[123] Transcript of Proceedings, p.127
[124] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1373
On 15 December 2014 Dr Anning relevantly replied as follows:
Your email response raises a number of queries.
It is a concern that Bronwyn is external to the Badanami Centre and has been given the responsibility to act as the Associate Director (A&SS) for Badanami Centre.
As you are aware I have been Dean and Director of the Badanami Centre as well as Director of other Aboriginal and TSI Units in other universities. However as a senior staff member of Badanami Centre, with the title Associate Director (Academic) it should have been obvious that I am well suited to managing the administrative and student support functions of the Badanami Centre.
Could you please advise why I was not considered, particularly, when I am working from the Centre on a daily basis alongside the staff employed to undertake ISSO and administrative duties?[125]
[125] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1445
Professor Simons responded on 16 December 2014 as follows:
Thank you for your email.
I note your comments; however my decision regarding the appointment of Associate Professor Cole to take on the responsibility of Acting Associate Director, Administration and Student Services remains.[126]
Racial Discrimination Act
[126] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1445
Discrimination
Dr Anning relevantly deposed that the University discriminated against her:
a)by requiring her to perform, whilst she was Dean, all the duties and responsibilities of that role, in addition to the duties of the Substantive Position and other vacated positions, for no remuneration;[127] and
b)by providing less academic funding to the Badanami Centre than was provided to the University’s other schools and centres, in that it received less of its earned teaching funds than had been expected and less than the share allocated to “the Schools” which led to the Badanami Centre losing control and management of its budget to Professor Krause’s office.[128]
[127] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1340
[128] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1349
Dr Anning deposed that the above actions were discriminatory because other deans and senior managers were not subject to the same treatment. She deposed that she was treated differently and less favourably because of her Aboriginal race.
Vicarious liability
Dr Anning deposed that the University was vicariously liable pursuant to s.18E of the RD Act for the acts of discrimination, victimisation and harassment committed against her by its staff.[129]
[129] Affidavit of Berice Anning 7 March 2017, Annexure E, p.1382ff
Lorraine Efeturk
Ms Efeturk was employed by the University as an Associate Director in the Badanami Centre from January 2007 to December 2014.
Ms Efeturk contended that under Professor Krause’s leadership the Badanami Centre was allocated approximately 20% of its teaching income, which was significantly lower than the share of teaching income other schools in the University received.
Ms Efeturk deposed that Dr Anning had been forced to perform the duties of vacant academic positions, including her Substantive Position, whilst contracted to the position of Dean. She deposed that Dr Anning had been forced to work unrealistic hours as a result.
RESPONDENT’S EVIDENCE
Karen Ardouin
Ms Ardouin was the University’s Senior HR Partner and Team Leader.
Substantive Position
Ms Ardouin deposed that the University’s employee records in relation to Dr Anning relevantly revealed the following:
a)on 27 August 2007 Dr Anning commenced work at the University in the position of Co-ordinator, Academic Programs (i.e the Substantive Position) at the Badanami Centre;
b)on 12 December 2007 the title of Dr Anning’s Substantive Position was changed to “Associate Director (Academic)”. This change was backdated to 27 August 2007;[130]
c)Dr Anning accepted appointment to the Substantive Position as an Academic Level D classification;
d)effective 1 February 2010, Dr Anning was appointed Director and Acting Dean of the Badanami Centre. The terms and conditions of her appointment were set out in a contract of employment described as a “Senior Staff Employment Agreement”;[131]
e)on 1 May 2011 Dr Anning was appointed Dean of the Badanami Centre. As before, the terms and conditions of her appointment were set out in a contract of employment described as a “Senior Staff Employment Agreement”;[132] and
f)Dr Anning’s employment at the University ceased on 20 February 2015[133] at which point, based on payroll records annexed to Ms Ardouin’s affidavit, she received a sum which appears to have included redundancy pay.[134]
[130] Affidavit of Karen Ardouin 22 June 2017, [18]
[131] Affidavit of Karen Ardouin 22 June 2017, Exhibit KA-1 pp.13-54
[132] Affidavit of Karen Ardouin 22 June 2017, Exhibit KA-1 pp.55-72
[133] Affidavit of Karen Ardouin 22 June 2017, [35]
[134] Affidavit of Karen Ardouin 22 June 2017, p.Exhibit KA-1 p.447
Ms Ardouin deposed that “senior staff” positions were above either the academic classification structure or the professional staff classification structure. She deposed that these positions were usually subject to a contract of employment which specified that the position was a senior one. In such circumstances, the employee would not be covered by the relevant enterprise agreement which would otherwise have applied to their employment.
Ms Ardouin deposed that whilst there were periods when Dr Anning performed higher duties (for example, from 1 February 2010 to 30 April 2011 when she was Director and Acting Dean) or worked in a position “concurrent” with the Substantive Position (for example, from 1 May 2011 to 30 April 2014 when she was Dean), she remained appointed to the Substantive Position.
Allegations of serious misconduct
Ms Ardouin deposed that on 18 November 2013 she attended Dr Anning’s office at the Kingswood campus and served her with a copy of the University’s letter of suspension, as well as the schedule of allegations against her. Relevantly, the letter of suspension advised Dr Anning that she was required to provide a written response within fourteen days and that her suspension would remain in place until such time as the matter had concluded.[135]
[135] Affidavit of Karen Ardouin 22 June 2017, Exhibit KA-1 p.73
Rhonda Hawkins
Ms Hawkins was the University Provost and Deputy Vice-Chancellor (Corporate Strategy and Services) from 2005 until December 2014.
Dr Anning has also not demonstrated that there was an actual reduction in funding to the Badanami Centre or, if there had been, how that ought to be considered in light of the transfer of various of its functions and tasks to other parts of the University which she acknowledged had taken place. Moreover, even if there had been a reduction in the centre’s funding, the evidence of Professor Krause and Ms Hawkins satisfies me that it was unrelated to Dr Anning’s descent or genealogy and occurred for relevantly unexceptionable reasons and after a sophisticated evidence-based consideration of needs across the University and the resources available to be deployed.
Indirect discrimination
A requirement that a person comply with a term, condition or requirement which is unreasonable in the circumstances and with which that person does not or cannot comply, engages s.9(1A) of the RD Act if it has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same descent as the person, of any human right or fundamental freedom in public life. Conduct of that sort is treated as a breach of s.9(1) of the RD Act.
Dr Anning alleged that by requiring her to perform the Additional Duties for reasons based on her descent, the University imposed on her a term, condition, or requirement that was unreasonable in the circumstances. Those circumstances were said to be:
a)whilst she was Acting Dean, the University did not recruit a person to fill the Substantive Position with the consequence that she was required to perform both roles, and in circumstances where she had complained to the University about the excessive workload;
b)it was a term of the Dean Contract that her ordinary hours of work would be Monday to Friday, between 7am and 6pm, 35 hours per week, plus reasonable additional hours as required;
c)it was an implied term of the Dean Contract that she be provided with adequate resources for her to perform her duties, that she not be required to perform Additional Duties without reasonable compensation, that the University act in good faith in performing its obligations and exercising its rights under the contract, and that the University provide her with a safe place of work; and
d)she was required to perform Additional Duties in addition to her duties as Dean and, in doing so, constantly worked in excess of her weekly contracted hours of work, without additional compensation, and where she had made numerous complaints to the University about her excessive workloads.
Dr Anning alleged that she was not able to, and did not, comply with the requirement that she work Additional Duties.
Dr Anning alleged that the University therefore contravened s.9(1) of the RD Act, for the purpose of s.9(1A).
Discussion
Unreasonable requirement
Dr Anning’s allegations concerning the “unreasonable requirement” were discursive and unclear. I have no doubt that Dr Anning felt that she had more to do than was reasonable and I also accept that she worked hard. However, those circumstances do not, on their own, indicate that an unreasonable requirement had been imposed on her.
At no point did Dr Anning, in terms, identify any particular, unreasonable requirement or any occasion on which an unreasonable requirement had expressly been imposed on her by the University, preferring instead to point to the general circumstances of her employment as Dean and describe them as unreasonable. And although an unreasonable requirement need not be express, as there are many ways other than issuing an order to make a person feel that they must do something, it must nevertheless be an unreasonable requirement in fact, not simply the perception of one.
Dr Anning’s principal complaint in this ground concerned the fact that her Substantive Position remained unfilled while she was the Dean of the Badanami Centre. The evidence is clear that she complained about this more than once. I accept that Dr Anning’s work probably did involve tasks associated with the Dean position and tasks associated with the Substantive Position but the evidence of both Professor Krause and Ms Hawkins indicates that it was not unusual for the University’s senior staff to simply take on responsibilities additional to those of their principal roles, with or without extra pay,[183] and Ms Hawkins deposed in a comment whose substance was echoed in Professor Krause’s affidavit sworn 30 June 2017,[184] that since the departure of the founding Dean of the Badanami Centre, the workload did not justify the filling of both the Dean’s position and the Substantive Position. In circumstances where Dr Anning has not adduced any detailed evidence of the work she actually did and what it required of her, I am prepared to accept the evidence of Professor Krause and Ms Hawkins that it was not unreasonable of the University to expect that she would perform the functions of both roles or ensure that they were performed.
[183] Affidavit of Kerri-Lee Krause 30 June 2017, [15]; Affidavit of Rhonda Hawkins 30 June 2017, [61]; Transcript of Proceedings, pp.226-227, T287, T305-306
[184] Affidavit of Kerri-Lee Krause 30 June 2017, [31];
Dr Anning also alleged that the following additional vacancies had occurred during her term as Dean and that she had been required to do additional work associated with these roles as a consequence:
…
b) Head of Programs/Course Coordinator (AREP), vacated in mid-2011;
c) Associate Professor, Coordinator of the Indigenous Graduate Attribute Program, vacated in about mid-July 2012 and vacant until about May 2013;
d) Course Coordinator, Bachelor of Community and Social Development, vacated in about mid-July 2012 and vacant until about 18 November 2013.
The considerations which applied to that part of Dr Anning’s complaint concerning the Substantive Position apply equally to this part of her complaint concerning these positions. The lack of clear evidence on the duties Dr Anning said she performed is particularly significant as the situation was not static:
a)in relation to the role of AREP course co-ordinator, Ms Hawkins deposed that the course was suspended in 2012 because of Dr Anning’s concerns about staff resources;
b)the Associate Professor position was filled in May 2013; and
c)it was decided in October 2013 that the Bachelor of Community and Social Development course and the AREP program would be transferred to the Schools of Social Sciences and Psychology and Education respectively.[185]
[185] Affidavit of Rhonda Hawkins 30 June 2017, Exhibit RH-1 pp.153-4
According to Ms Hawkins, Dr Anning had shown difficulty in managing staff and delegating tasks, which added to her workload.[186] Revealingly, Dr Anning refused assistance and appears to have lacked insight into her managerial limitations. As Dr Anning has not adduced any detailed evidence of the work she actually did and what it required of her, and as it seems likely that her difficulties arose in part from her managerial approach, I am not persuaded that the University’s requirements of her have been shown to have been unreasonable in the circumstances.
Non-compliance with requirement
[186] Affidavit of Rhonda Hawkins 30 June 2017, [58]-[60]
In any event, it is far from clear that Dr Anning failed to discharge the entirety of her duties, whatever they were. It is significant that her complaint was principally about how much work she did and how she should have been paid more, which appears inconsistent with her allegation that she did not comply with the postulated unreasonable requirement. Specifically, she did not explain how and to what extent she failed to comply with the postulated unreasonable requirement or was incapable of doing so. Consequently, this criterion for the engagement of s.9(1A) has not been satisfied.
Purpose or effect of conduct
As a result of those findings, it is not necessary to consider the purpose or effect of the allegedly contravening conduct although it is difficult to see how this part of the test could be satisfied on the evidence.
Breach of the Dean Contract
Dr Anning alleged that by requiring her to perform Additional Duties and by requiring her to work in excess of her contracted hours, the University breached the following terms of the Dean Contract:
a)the implied term that the University would not require her to perform duties and responsibilities for any role in addition to the role of Dean without reasonable compensation; and
b)the implied term that the University would provide her, as Dean, with all resources reasonably necessary to enable her to perform her duties and responsibilities;
c)the implied term that the University would perform its obligations and exercise its rights under the Dean Contract in good faith, reasonably, and for the purpose of achieving the objects of the contract; and
d)the express term that her ordinary hours of work would be Monday to Friday, between 7am and 6pm, 35 hours per week, plus reasonable additional hours as required.
Dr Anning also alleged that by requiring her to perform Additional Duties and work excess hours, by requiring her to report to the University’s executive instead of to the Vice-Chancellor, and by reducing the funding of the Badanami Centre – in circumstances where other Deans and schools where not similarly required, expected or affected – the University breached the following terms of the Dean Contract:
a)cl.5.2, being the University’s Code of Conduct which was incorporated into the contract;
b)the implied term that the University would provide Dr Anning with a safe place of work; and
c)the implied term that the University would perform its obligations and exercise its rights under the Dean Contract in good faith, reasonably, and for the purpose of achieving the objects of the contract.
Dr Anning also alleged that by failing to give her any real work upon her return to the Substantive Position following the end of the Dean Contract’s term, the University breached the Reversion Term (see [8] above).
Workload and implied terms
The first part of Dr Anning’s allegations that the University breached the Dean Contract, which was limited to issues of her workload, alleged the existence and breach of three implied contractual terms. The implied terms alleged were:
a)a term that the University would not require Dr Anning to perform duties and responsibilities of any role additional to the role of Dean without reasonable compensation;
b)a term that the University would provide to Dr Anning, as Dean, all resources reasonably necessary to enable her to perform her duties and responsibilities; and;
c)a term that the University would perform its obligations and exercise its rights under the Dean Contract in good faith, reasonably and for the purpose of achieving the objects of the contract.
Dr Anning advanced no arguments concerning why the Dean Contract should include the implied terms that she alleged it contained.
The test for the implication of a contractual term was set out by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283:
… for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.
That test was adopted by the High Court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605–606 per Mason J, Gibbs and Stephen JJ agreeing at 599, Aickin J agreeing at 615.
In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 346-347, Mason J compared the implication of a term with rectification, saying:
The implication of a term is to be compared, and at the same time contrasted, with rectification of the contract. In each case the problem is caused by a deficiency in the expression of the consensual agreement. A term which should have been included has been omitted. The difference is that with rectification the term which has been omitted and should have been included was actually agreed upon; with implication the term is one which it is presumed that the parties would have agreed upon had they turned their minds to it - it is not a term that they have actually agreed upon. Thus, in the case of the implied term the deficiency in the expression of the consensual agreement is caused by the failure of the parties to direct their minds to a particular eventuality and to make explicit provision for it. Rectification ensures that the contract gives effect to the parties’ actual intention; the implication of a term is designed to give effect to the parties' presumed intention.
…
The basis on which the courts act in implying a term was expressed by MacKinnon LJ in Shirlaw v. Southern Foundries (1926) Ltd. in terms that have been universally accepted: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying … ” (reference omitted)
Implied term against unpaid extra duties
It will have been noted that one of the criteria for the implication of contractual terms identified in BP Refinery (Westernport) is that the term which it is argued should be implied does not contradict any of the contract’s express term. Dr Anning sought the implication of a term to the effect that the University would not require her to perform duties and responsibilities for any role in addition to the role of Dean without reasonable compensation. However, the Dean Contract relevantly provided expressly as follows:
5. YOUR DUTIES
5.1 In performing your duties, you will:
…
(b)perform the duties reasonably assigned to you from time to time by the University;
…
6. HOURS OF WORK
6.1Your ordinary hours of work are 35 hours per week in accordance with the UWS Academic Staff Agreement, averaged over a 12-month period, plus all reasonable additional hours as required, without additional remuneration. If you are asked to work additional hours, you will let the University know as soon as possible if for any reason you are unable to work those additional hours.
6.2Unless otherwise required, your ordinary hours of work will be between 7.00 am and 6.00 pm Monday to Friday. If required, ordinary and additional hours may be worked at any other times or days, including public holidays, without additional remuneration. If you are asked to work on a public holiday, you will let the University know as soon as possible if for any reason you are unable to work on that day.
The term for which Dr Anning contends would contradict the express cls.5 and 6 were it to be included in the contract. That is enough for the Court to find that it is not to be implied into the Dean Contract.
Implied term requiring resources
The next of the terms which Dr Anning alleged was to be included in the Dean Contract by implication was to the effect that the University would provide her with all the resources reasonably necessary for her to perform her duties and responsibilities. Relevantly, BP Refinery (Westernport) states that before a term may be included in a contract by implication, the term must be so obvious that “it goes without saying”. The proposed term does not satisfy that criterion.
The evidence of Ms Hawkins and Professor Krause indicates that decisions regarding the funds allocated to the University’s teaching units were made by the University’s finance committee which, I infer, had organisation-wide responsibilities and had to address demands for funding which were greater than available resources. The proposed term would tend to remove some financial authority from the finance committee and place it with the dean of a small teaching unit of the University with the purpose of supporting the work of that unit alone. The proposed term would restrict the capacity of the University to manage its limited resources for the benefit of all its stakeholders. I am not persuaded that such a term was so obviously part of the parties’ agreement that its absence from the express terms of the Dean Contract can be explained on the basis that it went without saying. I find that it should not be part of the contract.
Implied term requiring good faith
The third of the terms which Dr Anning alleged was implied in the Dean Contract was one which required the University to exercise its rights under the Dean Contract in good faith, reasonably and for the purpose of achieving the objects of the contract.
An obligation of good faith is not to be “implied indiscriminately into all commercial contracts”: Specialist Diagnostic Services Pty Ltd v Healthscope Ltd (2012) 41 VR 1 at 20 [86], although one may be implied if it meets the test for implication of terms set out in BP Refinery (Westernport): Specialist Diagnostic Services v Healthscope at 20 [90]; CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 at 704-705 [133]-[136]. It would seem that such a term is likely to be implied if, without it, the performance of the contract according to its express terms would deny one party much of the benefit or many of the rights for which they contracted: CGU v Garcia at 705 [136]; Specialist Diagnostic Services v Healthscope at 20 [87]-[89]; Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558 at 572 [177].
However, this is not such a case. Dr Anning was paid her salary throughout her tenure as Dean and, except when suspended during the period of investigation, performed in that role and, as a consequence, was not denied much of the benefits or rights for which she had contracted. That is not to say that everything was as Dr Anning might have wished it to be but she has not shown that her complaints were not capable of being addressed under the ordinary law of contract. In such circumstances the implication of a term imposing an obligation of good faith was not necessary to give business efficacy to the contract and the implication will not be made.
Similar considerations apply to the implication of a term requiring reasonableness in the operation of the contract. As used here, the nebulous concept of reasonableness seems to be good faith sailing under other colours but, even if not, no basis for its implication as a term of the Dean Contract has been identified. It is far from clear how the business efficacy of the contract would be enhanced by its presence or why its absence from the express terms of the contract was because it was so obvious it went without saying.
The final contention was that there was to be implied into the Dean Contract a term to the effect that the University had to exercise its rights under it for the purpose of achieving the objects of the contract. Those objects were not identified but, in any event, it is not necessary, in order to give business efficacy to a contract, to imply into it a term whose purpose is only to reiterate the promises of performance which are inherent in that contract.
Workload and express term
The first part of Dr Anning’s allegations that the University breached the Dean Contract because of issues related to her workload also alleged the existence and breach of an express term regarding her hours of work. Dr Anning alleged that by requiring her to perform Additional Duties and by requiring her to work in excess of her contracted hours, the University breached the Dean Contract’s express term that her ordinary hours of work would be Monday to Friday, between 7am and 6pm, 35 hours per week, plus reasonable additional hours as required.
The relevant terms of the Dean Contract were quoted earlier in the context of the first alleged implied term.
Given that the Dean Contract provided for Dr Anning to work “ordinary hours” plus such reasonable additional, unpaid, hours as might be required, the implication of the allegation is that at various times Dr Anning had had to work, beyond her ordinary hours, hours which were not reasonable and for which she was wrongfully not paid. As noted earlier, Dr Anning has not adduced evidence that the University required her to work such hours or even of the hours she worked more generally. Nor did the evidence indicate that, if Dr Anning did work additional hours which were not reasonable, that that work had been required, in the sense of necessary, and that it had been necessary for her to devote that time to that work. As noted earlier, it seems likely that Dr Anning’s difficulties partly arose from her managerial approach.
In light of the state of the evidence, I am not persuaded that Dr Anning did work hours, beyond her ordinary hours, which were unreasonable or, if she did, that such work was required, either because it was necessary or because the University had directed her to do it.
Code of conduct, safe place of work and obligation to act in good faith
Dr Anning alleged that by requiring her to perform the Additional Duties and work excess hours, by requiring her to report to the University’s executive instead of to the Vice-Chancellor, and by reducing the funding of the Badanami Centre – in circumstances where other deans and schools where not similarly required, expected or affected – the University breached the following terms of the Dean Contract:
a)cl.5.2, being the University’s Code of Conduct which was incorporated into the contract;
b)the implied term that the University would provide Dr Anning with a safe place of work; and
c)the implied term that the University would perform its obligations and exercise its rights under the Dean Contract in good faith, reasonably, and for the purpose of achieving the objects of the contract.
For the following reasons, none of those allegations has been made out.
Implied terms – safe place of work and obligation to act in good faith
I have already found that the Dean Contract did not include the implied good faith term for which Dr Anning has contended.
The allegation that the Dean Contract contained an implied safe workplace term was pleaded in the further amended points of claim as follows:
13. It was an implied term of the Dean Contract that:
…
(d)The Respondent provide the Applicant with a safe place of work …
This allegation was not particularised but in para.28(d) of her affidavit in chief Dr Anning expanded on this contention saying in relation to the alleged term that:
The Respondent was aware of their responsibility and compliance with their won [sic] policies; state and federal law; in this case the Work Health and Safety Act 2011; …
She went on in that paragraph to refer to an email from Ms Tout to “Managers and Supervisors” dated 21 January 2014 in which the following was relevantly said:
Dear Managers and Supervisors,
All staff have a responsibility to ensure that reasonable care is taken regarding health and safety in the workplace.
Managers, supervisors, senior officers and members of Executive have an additional responsibility to exercise due diligence to comply with duties and obligations under the Work Health and Safety (WHS) Act 2011.
Those who fail to meet due diligence requirements can be held personally liable. Under the Work Health and Safety Act 2011, penalties of up to $300,000 and five years imprisonment can apply to employees, and up to $600,000 and five years imprisonment can apply to Senior Officers and Executive.
Factsheets listing the WHS duties for employees (workers) and senior staff (officers) can be found at …
Please ensure that all staff in your team have completed the mandatory online WHS modules, which must be completed at least once every three years.
…
In her written submissions Dr Anning relevantly said:
139.The Applicant was entitled to the benefit of the Work Health and Safety Act 2011 (NSW) and for the Respondent to take reasonable and practical action to ensure the Applicant's health and safety in the work place, including psychological health and safety.
It appears from all of this that Dr Anning contended nothing more than that the University was obliged to comply with certain statutory obligations. On that basis, the term need not be implied because it is otiose. However, if I am incorrect in this conclusion there is nevertheless no evidentiary basis for a finding that the provision was breached.
Incorporated provisions: University code of conduct
Dr Anning relied on cl.5.2 of the Dean Contract to allege that the University’s Code of Conduct formed part of that contract. That sub-clause stated:
5. YOUR DUTIES
…
5.2By signing this Agreement and/or accepting employment with the University, you acknowledge that you have read, understand and agree to comply with any duties, obligations and directions imposed on you under the University’s:
(a) Code of Conduct; and
(b) Workplace Surveillance Policy,
as in force, amended or replaced from time to time.
It is plain from the terms of that sub-clause that the Code of Conduct was not incorporated into the Dean Contract. Its effect was that Dr Anning agreed to comply with the Code of Conduct, not that the Dean Contract imposed any enforceable obligations derived from the code on the University.
Reversion term
Dr Anning also alleged that by failing to give her any real work upon her return to the Substantive Position following the end of the Dean Contract, the University breached the Reversion Term. The allegation refers to conduct referred to in para.48 of the further amended points of claim but this appears to be a mistyped reference to para.46 of the claim. Whatever the case, this is a different version of the allegation of adverse action discussed above at [186(a)] and [194]-[198] mostly under the heading “Failing to return Dr Anning to the Substantive Position with its original duties and responsibilities following the end of the Dean Contract”. For the reasons given there, I am not persuaded that the duties Dr Anning performed following her return to the Substantive Position were so different from what she had done previously or so inconsistent with her role, that the University’s assumed expectation that she would perform them amounted to a breach of the Dean Contract.
CONCLUSION
Dr Anning has not made out her claims.
Consequently, the application will be dismissed.
I certify that the preceding three hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 21 May 2019
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