Austin v Australian Broadcasting Corporation
[1996] IRCA 491
•15 Oct 1996
DECISION NO:491/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Inefficiency, termination on grounds of - Efficiency, assessment of pursuant to an Employer/Union Employment Agreement - Bias, whether bias or apprehended bias on the part of an assessor vitiated valid reason for termination
Industrial Relations Act 1988 ss.170D
CASES:
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
The State of Victoria v The Commonwealth of Australia (1996) 138 ALR 220
Livesey v New South Wales Bar Association (1983) 151 CLR 288
R v Commonwealth Conciliation and Arbitration Commission;ex parte Angliss Group (1969) 122 CLR 546
re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100
AWU-FIME v Acton (1994) 1 IRCR 529
ALAN GEOFFREY AUSTIN AND CPSU -v- AUSTRALIAN BROADCASTING CORPORATION
No. VI-4939 of 1995
Before: Ryan JR
Place: Melbourne
Date: 15 October 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4939 of 1995
B E T W E E N :
ALAN GEOFFREY AUSTIN & CPSU
Applicant
AND
AUSTRALIAN BROADCASTING CORPORATION
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 15 October 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4939 of 1995
B E T W E E N :
ALAN GEOFFREY AUSTIN
Applicant
AND
AUSTRALIAN BROADCASTING CORPORATION
Respondent
Before: Ryan JR
Place: Melbourne
Date: 15 October 1996
REASONS FOR JUDGMENT
THE CLAIM
Alan Austin (the Applicant) and the Community and Public Sector Union (the Union) claim unlawful termination of employment and seek Mr Austin’s reinstatement. He was employed as a broadcaster by the Respondent for seven years from 6 June 1988 to 11 September 1995.
THE TERMINATION
On 11 September 1995 the manager of Radio Victoria signed a notice of termination advising the Applicant that the acting head of ABC radio, Dr Ian Wolfe, had determined that his services be terminated at the close of business that day and that the termination had been made pursuant to Clause 8.17 (d) of the Australian Broadcasting Commission Community and Public Sector Union Employment Agreement 1994-1996 (the Employment Agreement).
The notice of termination stated it had been “specifically determined that (the Applicant) failed to attain or sustain the required level of work performance by the conclusion of (his) assessment period”. The notice of termination also indicated that the decision to dismiss:
followed “due consideration of an assessment of work performance arising out of Clause 8.15 of the Employment Agreement”
“took into account...the findings of the Work Standards and Performance Assessment” (the Performance Assessment)
“took into account...(the Applicant’s responses regarding the Performance Assessment”
“took into account...(his) comments on overall work performance”
The notice of termination advised the Applicant that he would receive payment of accrued recreation leave, accrued superannuation benefits treated on the basis of an involuntary retirement and six weeks salary in lieu of notice pursuant to Clause 8.10 of the Employment Agreement.
The termination payments made to the Applicant are in accordance with the Employment Agreement and, in that sense, they are not disputed.
THE APPLICANT’S POSITION
The Applicant’s position is straightforward. He claims that there was no valid reason for his termination and that the termination was unlawful and he wants his job back.
THE RESPONSE
The Respondent states that:
there was a valid reason for termination connected with the Applicant’s capacity
the Applicant was inefficient and disruptive and failed to obtain and sustain the required level of performance
the dismissal of the Applicant with six weeks payment in lieu of notice and with the appropriate benefits for leave and superannuation was not in breach of S170DE(1) of the Industrial Relations Act 1988 (the Act)
the dismissal was lawful and in accordance with Clause 8.17 of the Employment Agreement
THE CONDUCT OF THE HEARING
The Court was at times critical of the approach taken by the Applicant, the Union and the Respondent before and during the hearing. The Applicant and the Union sought discovery of and were provided with an enormous volume of documents especially an almost interminable exchange of electronic mail (E-mail) between the Applicant and his immediate supervisor, Ronald Nichols, editor of religious programs for ABC radio. Much of this E-mail between Messrs Austin and Nichols, and a lot of the E-mail liberally distributed with numerous copies throughout the Respondent’s radio network, was of little or marginal relevance. Some of the exchanges between Messrs Austin and Nichols reflected poorly on both of them.
The great volume of documentation sought by the union, and the initial claims by the union of an intention to call 26 witnesses, led to the Respondent countering with the possibility that a large number of witnesses might be called on behalf of the employer. The Court acceded to requests to conduct two days of evidence in Melbourne and two days in Sydney with final addresses concluded by video link between Melbourne and Sydney.
During the hearing the Court continually discouraged the representatives of the Applicant and the Respondent from calling evidence which appeared likely to be of little or no relevance and eventually the union called only 6 of a list of 26 witnesses which had been provided to the Respondent and the Court. The Respondent was required to lead evidence first and called 10 witnesses.
By and large, it was the approach taken by the union on behalf of the Applicant which prolonged the hearing. The Respondent could also have taken a more expeditious, efficient and briefer course but was restricted by the large and unnecessary volume of material to which the union sought and gained access and by the claims, which did not eventuate, that the Applicant and the union would call twelve ABC employees from Melbourne and Sydney and elsewhere and fourteen external witnesses from Melbourne, Sydney and elsewhere.
Mr Thomson, National Industrial Officer, CPSU, represented the Applicant and the union. Mr Jackson, National Manager, Employee Relations, ABC Radio, represented the Respondent.
While Mr Jackson initially objected to some aspects of the detailed discovery ordered at a Directions Hearing on 5 December 1995, he agreed to provide to the union a considerable volume of documents which he described as “beyond the discovery order” (see his letter of 16 March 1996 to Mr Thomson). Indeed, (in a response by letter dated 18 March 1996), Mr Thomson refers to “the four volumes (of documents) shown to me and Catherine Serventy on Friday (17 March).”
Early in the hearing, Mr Jackson tendered, without objection from Mr Thomson, a large volume of material, especially E-mail. In terms of volume, the bulk of this documentation comprises Exhibits R6C, R7B and R8D. It was clear that Mr Jackson, having objected to calling evidence first but being required by the Court to do so in accordance with the dicta of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, felt it necessary to produce and address some (and perhaps much) of the material which had been provided to the union and the Applicant. While the Court had doubts about the relevance of some of this material, in the absence of objection to it, most of the material was admitted. A detailed examination of the material prior to admission would have prolonged even further a trial which, in the Court’s view, should have taken two or two and a half days rather than four and a half days.
EVENTS LEADING UP TO THE TERMINATION
Some evidence was elicited during the hearing which related to the performance and conduct of the Applicant as early as 1990 and particularly in 1992. By way of example, the evidence of Dr Norman Swan dealt with his unfavourable assessment of the Applicant’s conduct of certain radio programs between 1990 and 1993.
The Court indicated during the hearing that no weight would be placed on this evidence. The Court has not assessed that evidence and has no reason to form any adverse conclusions in respect of the evidence. The employment of the applicant was terminated because he was assessed on 11 July 1995 to have failed to attain or sustain the required level of work performance by the conclusion of an assessment period which ran from 20 March 1995 to about 13 June 1995. Evidence of the Applicant’s performance, be it good or be it bad, and in the period leading up and following the assessment, and up to the date of dismissal, is clearly relevant. Evidence of the Applicant’s performance, good or bad, in a much earlier period, is not relevant to a termination of employment based on an assessment of performance between March and June 1995. At times during the hearing the Court refused to admit further evidence of this nature.
The Court has no doubt that prior to August 1994 the Applicant had been commended from time to time for his performance. The Court has no doubt that prior to August 1994 concerns had been expressed as to the Applicant’s performance. In determining this matter the Court has considered evidence of events from August 1994 to the termination of employment on 11 September 1995.
KEY EVENTS AND DATES IN 1994
On 5 August Ms Florence Spurling, Executive Producer, advised the Applicant that she could not accept the second verse of a poem scheduled for presentation at the end of an Encounter radio program entitled “Hibiscus in the Rain”. Ms Spurling referred to the second verse as “offensive to the Muslim speaker and off the track of the brief”.
On 21 August Ronald Nichols was appointed as Editor of Religious Programs, ABC radio.
On 8 September the Applicant communicated with Mr Nichols by E-mail with a copy of the E-mail also sent to Ms Spurling. The communication is aggressive and critical and was described by Ms Spurling in evidence as “the most damaging correspondence I have ever received”. This communication of 8 September 1994 is attachment 1 to the Applicant’s Efficiency Review of 9 August 1995 (Exhibit R6C). The following extracts indicate the tone and tenor of the communication:
“I strenuously object to the removal of the second verse of “Full Measure” from the Encounter HIBISCUS IN THE RAIN.
Florence (i.e. Ms Spurling) will quibble with material overtly affirming the Christian faith in Encounters assembled by some producers.
There is an apparent compulsion to excise from some Encounters even legitimate and reasonable reference to the Christian faith where that is felt to be positive or persuasive.
The only references to Jesus in the conversion stories were by the Moslem in his scathing denigration of the Christian church.
I was confident from beginning to end that HIBISCUS IN THE RAIN could not at any point be accused of promoting the Christian faith, an accusation some of us always anticipate. But even if it had, this should not have given rise to the sort of intrusive editing proposed, or the removal of the program.
To suggest that the Moslem might find Driscoll’s verse offensive is patronising and itself offensive.
One reason Encounter has been under attack in recent years from outside the ABC and within, ....is its increasing blandness. My recent Encounters have been as bland and inoffensive as I am prepared to go. I am extremely reluctant to make them any less colourful, or to co-operate with attempts to weaken their impact further.
We must fact the reality that our output is no longer acceptable. We are losing budget, losing personnel, losing audience, losing prime time, losing total air time and losing credibility within the ABC and outside. A major factor in this slide is our shying away from the provocative and the risky. We no longer lead the religious news. We rarely break national stories. Whistle-blowers no longer come to us first.
I am no longer prepared willingly to co-operate with wimpish editorial interference. And I am not prepared willingly to enfeeble the exuberance of Michael Driscoll.
The second backdrop issue is that some recent Encounters really have been dreadful: poorly conceived programs with substandard production values using lacklustre talent answering silly questions, and failing to address the real questions to the right talent. HIBISCUS IN THE RAIN is not one of them.
I regret that you, Ronald (Mr Nichols) and also Stephen Watkins (Broadcaster and witness for the Applicant) were enlisted to support Florence’s view after hearing only the last few minutes of the program. Having heard only that, your agreement “that there was a problem with a phrase in the poem” is understandable. The program heard as a whole, however, is quite okay as it is.
Thank you for reading this. Whatever you decide, having read this and talked again with Florence, I will implement.”
Soon after his appointment as Editor of Religious Programs Mr Nichols met the Applicant informally for coffee at Southbank and gave evidence that the Applicant’s general attitude and open criticism of his employer led him to the view that it was necessary to embark on a formal Efficiency Review pursuant to paragraph 8.15 of the Employment Agreement. Paragraph 8.15 provides that an employee whose work performance is considered by the ABC to be inefficient will be assessed over a period of up to three months. The employee is to be assessed by no less than two ABC employees one of whom may be the employee’s supervisor. One other will be another ABC employee who is familiar with the work to be performed and who is agreed between the ABC and the Union.
Because of representations from the Union no Efficiency Review took place at this stage. As an alternative, Mr Nichols drew up a work exercise plan on 25 October.
On 3 November 1994 (attachment 4 Exhibit R6C) Mr Bruce Jackson in his capacity as Radio IR Manager wrote to Ms Vivienne Colmer, then ABC National Officer, CPSU as follows:
“Re: Counselling and Work Performance Issues - Alan Austin
I wish to confirm our mutual understanding of current arrangements which Radio management is intending to put in place in an endeavour to assist Mr Alan Austin with his work performance.
Firstly, Editor Religious Programs, Mr Ronald Nichols will embark on a formal counselling exercise with Mr Austin pursuant to section 8.13 of the ABC-PSU Employment Agreement 1992 (the Agreement). In the course of this exercise Mr Nichols will explore with Mr Austin the possible need for training as well as modifying work duties and a transfer. Naturally, Mr Austin will be invited to have a CPSU representative in attendance during the counselling session.
Consistent with section 8.12 of the Agreement Mr Nichols will be re-tabling a statement of the standards of work Mr Austin is expected to sustain. I note that Mr Richard Fields (union delegate and witness for the Applicant) has acknowledged the statement in question, and has accepted it as appropriate.
I sincerely trust that the best efforts of all concerned will be applied to the situation at hand so that current difficulties can be constructively resolved. However, should the approach outlined above fail to effectively address concerns, it would then be necessary to review the situation and consider the need for a more formal assessment.
For your information Mr Nichols intends to organise the abovementioned counselling session for Thursday, 10 November 1994.”
On 10 November (Attachment 2 Exhibit R6C) Mr Nichols wrote to the Applicant and referred to a recent visit to Melbourne to discuss work performance and to a resolution to formally counsel the Applicant consistent with paragraph 8.13 of the Employment Agreement. The letter included what Mr Nichols described as “a clear statement of the standard of work that you are expected to sustain on an on-going basis”.
The letter listed a number of program activities which the Applicant was expected to complete by specified deadlines and concluded with certain daily reporting requirements which, at least to the Court, appear oppressive, unnecessary and petty.
In paragraph 5 of his letter Mr Nichols wrote:
“I expect you to E-mail me daily indicating by the time on the message header the time you arrive at work and the time you leave work.”
In paragraph 6 of his letter Mr Nichols wrote:
“I expect you to inform me by phone (direct or via a message left with Jan Schreck or Cath Andrews or Cecily Doig or Michael Taft) if and when you leave the office on duty, why you will be absent, how long you expect to be away, a further call to inform me (direct or via a message left with one of the above people) when you have returned.”
In the second paragraph of his letter Mr Nichols stated that the Applicant was expected to perform “at a highly advanced level” in presentation, production, research/writing, interviewing/reporting, communication/co-ordination and specialist knowledge and “at an accomplished level” in production administration.
The fourth paragraph of the letter incorrectly referred to the Applicant as:
“a level 5 Broadcaster (he was in fact level 4)”
and incorrectly stated:
“you will naturally be expected to submit work at a level consistent with level 3 work level standards.”
In fact, the Applicant was expected to submit work at a standard consistent with level 4. However, the Court is satisfied that the Applicant understood that he was required to submit work at level 4. Indeed the Applicant unsuccessfully sought assessment at level 5 and he understood and accepted that a level 4 Broadcaster standards were applied to him before and during the assessment.
On 17 November (Attachment 3, Exhibit R6C) Mr Nichols provided the Applicant with what he described as a:
“confidential counselling report - report on a formal counselling session 10 November 1994 in Melbourne convened by Ronald Nichols (Editor, Religious Programs) and attended by Alan Austin (Broadcaster, Religious, Victoria) with Richard Fields (PSU) and independent observer Ian Merry (Manager Human Resources Victoria).
Purpose:
1:to formally counsel Alan Austin in the light of concerns on Alan’s work efficiency. The basis used is the ABC-PSU Work Agreement section 8.13.
2:to re-table a letter previously tabled 25/10/94 in which a work exercise plan is set out - with deadlines amended.
3:to consider options.”
Mr Nichols states in the report that the Applicant was invited to make a statement in which he criticised the Religious Department and its leadership.
Mr Nichols listed “concerns” which in his view required formal counselling and referred to:
“the reluctance (of the Applicant) to follow the aims and objectives of the Religious Department”
“the failure (of the Applicant) to meet Encounter audition deadlines and to complete and deliver program support documentation and to attend work as expected”
“difficulty in relating to colleagues and in...interactive and team skills and in...ability to discuss program ideas and their development”
“the perception that (the Applicant) does not adequately keep abreast of theological developments and debate.”
The report concluded with some detail of remedial options considered under the headings of “Training, Modification of Work Duties, Transfer from Religious Department, Support needs identified by the Applicant”.
Mr Nichols signed the report on 17 November 1994. The Applicant declined to sign or accept the report. On 22 November (Attachment 5, Exhibit R6C) Mr Nichols issued a formal first warning of “misconduct pursuant to 8.21(a) of the Employment Agreement”.
The warning does not seem relevant to a dismissal based on a failure to overcome inefficiency except that Mr Nichols has stated in the second paragraph of the warning:
“I am issuing this warning as you have failed to perform your work requirements contained in the standards of work document I issued to you 10 November 1994.”
KEY EVENTS AND DATES IN 1995
On 2 March 1995 Mr Nichols advised the Applicant by E-mail that he intended instituting a three month Work Standard and Performance Assessment.
On 17 March Mr Nichols provided the Applicant with a detailed Efficiency Assessment Plan (Attachment 6, Exhibit R6C).
The Plan:
indicated assessment would begin 20 March 1995 with progress to be monitored on an on-going basis and in monthly counselling sessions
identified Mr Nichols and Mr Rodney Wetherell as assessors with Mr Wetherell approved in that role by the union
described the standard of work to be submitted as “Broadcaster level 4”
outlined Performance Indicators with special detail given of “co-ordination/communication requirements with members of the Religious Department”
set out a detailed work schedule with numerous deadlines.
THE ASSESSMENT
On 11 July 1995 (Attachment 8, Exhibit R6C) the assessors signed and delivered to the Applicant a Work Standard and Performance Assessment which:
indicated that the Applicant’s “on-the-job work performance...input into counselling sessions...and..written and verbal feedback” had been taken into account
described the Applicant’s “capacity to meet standards” as “largely constrained in the critical area of being receptive to advice and criticism”
linked this attitude to “advice and criticism” to performance indicators “that measure the requirement for Communications/Co-ordination” and assessed this requirement “as not even met at the relatively low standard of ‘Proficient’ let alone at the ‘Accomplished’ standard commensurate with...(the) substantive grading in the Broadcaster Structure of level 4” and further described the Co-ordination/Communication “criterion” as “particularly significant given the emphasis that was placed on...co-ordination and communication with fellow program makers”
rated the Applicant as having “failed to meet requirements” in standards of work required
alleged that the Applicant “demonstrated an unwillingness to produce the quantity of output commensurate with that of a full-time level 4 Broadcaster which became particularly apparent with... sometimes meagre contributions to Come Sunday”
conceded that the Applicant met the requirements in Work Scheduling
(vii)rated the Applicant as “failing to meet reporting requirements”
The Assessment was most critical in the area of Co-ordination/ Communication with members of the Religious Department. Before addressing this criticism, the Court notes that, while the written assessment of 11 July and the formal report and recommendation to the Acting General Manager on 9 August were signed by both assessors, Mr Nichols was the author of both reports. The written assessment of 11 July was addressed to the Applicant and contained some emotive, coloured and subjective terminology. Mr Wetherell has to accept some responsibility for signing a report which contained terms like
“truculence and defensiveness”
“reciprocated in double measure with criticism or outright condemnation”
“lauded...own broadcasting skills ad nauseum”
“continued in...reckless and apparently uncontrollable course of lashing out against the management”.
However, having:
observed Mr Wetherell in the witness box
assessed his evidence
noted his refusal to be rushed into signing the formal recommendation
noted his E-mail to Mr Nichols on 7 August 1995 expressing the importance of acknowledging certain good qualities in the Applicant’s work and the necessity to avoid an over emphasis on the “lack of (the Applicant’s) receptiveness to criticism”
I have concluded that the emotive, coloured and subjective elements of the assessment of 11 July must be attributed more to Mr Nichols than to Mr Wetherell. Even so, both must take responsibility. With that qualification and reservation the Court has concluded that the assessment of 11 July is generally accurate and notes that the final report and recommendation to the Acting General Manager is, for the most part, devoid of the subjective and emotive comments in the earlier assessment.
Turning now to the specific criticism of the Applicant’s attitude to co-operating with his colleagues, the Court notes that the advice of 11 July contained a detailed litany of the Applicant’s perceived failures. The criticism is couched in terms of the Applicant’s “unwillingness” to co-operate or work in a professional team environment. This “unwillingness” is stated to have become “particularly apparent during counselling sessions and through other feedback” and includes claims that the Applicant was unwilling to:
accept criticism
attend to broadcasting work as the top priority
discuss specific editorial problems
advise supervisors when problems were anticipated
refer problems upwards
co-operate, communicate and consult with supervisors and other colleagues
work within teams
work hours as rostered
advise colleagues of whereabouts
seek prior mutual agreement with supervisors for claimed additional hours
Given the excessive demands Mr Nichols placed upon the Applicant to report the exact time of his arrival at work each day and the length and reason for every absence and his return from any and every absence, the Court places no weight on the last two alleged failures. However, the Court has concluded that the assessors had good and valid grounds for the rest of their criticism.
On 26 July the Applicant and Mr Richard Fields, a Union Delegate, provided separate responses to the assessment of 11 July.
THE APPLICANT’S RESPONSE TO THE ASSESSMENT
The Applicant’s response covers ten pages in which he essentially rejects all unfavourable aspects of the assessment. He objects to his evaluation taking account of his input into the counselling sessions. He claims there is no evidence that his capacity to meet standards was constrained by his receptiveness to advice from criticism. He describes his alleged “unwillingness to produce a quantity of output commensurate with that of a full-time level 4 Broadcaster...as...highly problematic”. He describes his alleged “failure on a number of occasions to advise fellow program makers of difficulties...as blatantly untrue”. He uses words like “totally untrue”, “untrue” and “totally refuted” to reject the many criticisms of his communication with colleagues.
He claims:
“completion of all work to a high standard”
“volume exceeded”
“all work submitted...was completed on time”
“all communications with colleagues....attended to professionally and efficiently”
THE UNION RESPONSE
The union response through Mr Fields did not deal with any of the specific criticisms in the Efficiency Assessment. Mr Fields made a number of general observations. He suggested that the Applicant had a background as an investigative journalist and “tended to work as a bit of a lone wolf away from his desk in a manner which has led colleagues to assume that he is being slack”.
Mr Fields expressed the view that the Applicant “has moved successfully to rectify the problem...in relation to things like informing his colleagues of his whereabouts” ....and that... “the significance of this problem has been communicated to Alan (the Applicant) over the last 12 months, including through the process of the Inefficiency Review”.
Mr Fields stated:
“my feeling is that you have not paid sufficient respect to this improvment”
“there is clearly a major personality clash between Ronald (Nichols) and Alan”
“the handling of this case by Ronald has seen a level of pressure applied to Alan which has gone beyond what was warranted. I have previously said that this appears to be a case of harassment and I still hold this opinion”
THE RECOMMENDATION OF DISMISSAL
On 9 August 1995 Messrs Nichols and Wetherell signed the confidential memorandum to the Acting General Manager, Radio National which comprised the formal assessment and a recommendation pursuant to Clause 8.17 of the Employment Agreement that the Applicant be dismissed in accordance with Section 8.10 of the Employment Agreement.
The report dealt with:
the counselling of the Applicant on 10 November 1994
the Efficiency Assessment Plan of 17 March 1995
the structure of the Work Standard and Performance Assessment undertaken between 20 March and 13 June 1995
an overview of that Assessment
the findings of the assessors including their finding that the Applicant had failed to meet requirements in respect of standards at work, reporting requirements and co-ordination and communication requirements
the formal recommendation that the Applicant be dismissed.
Two key paragraphs of the Assessment and Report contained the following statements:
“In an overview sense, while many of the items required were completed on time, Mr Austin had difficulties at times in meeting all aspects of required work performance. However, it is without any doubt that his most pronounced area of inadequacy was his inability to work in a co-operative and communicative manner. This serious shortfall in a critical requirement of program-making was evident in his on-the-job work performance, his unwarranted criticisms of editorial management and fellow program makers, but also in a most telling way, the negative attitudes he expressed during counselling sessions.
In summary, the report by the Assessors Rodney Wetherell and Ronald Nichols 11 July, 1995 remains clear confirmation that Mr Austin has failed to attain and sustain the required level of work performance. This finding has been substantiated during the course of the review by observation of the assessors, comments of members of the staff of the Religious Department and moreover Mr Austin’s clearly stated attitudes towards members of the Religious Department and his obvious inability to be a properly functioning member of that team.”
THE ENDORSEMENT OF THE RECOMMENDATION OF DISMISSAL
The Court notes that the Federal head of Radio Human Resources, Mr Gary Withyman then seems to have held the report from 9 August to 5 September when he signed a somewhat weak and qualified endorsement of the recommendation to dismiss. Mr Withyman appears to be stating that he endorses the recommendation to dismiss the Applicant because “I accept that it does not particularly follow that in this case any other option is acceptable to management other than the one recommended by the reviewers, Ronald Nichols and Rodney Wetherell”.
On 11 September Ms Sarah Benjamin, Acting General Manager, Radio National supported the recommendation in a much firmer manner stating:
“After reading the report prepared by Ronald Nichols and Rodney Wetherell, I endorse the recommendation to terminate Alan Austin’s employment. Gary Withyman and Steven Alward have looked at the report in detail and are in agreement.
I have given considerable thought to the recommendation and conclude that no other options available under the Employment Agreement would result in a workable outcome.”
Mr Withyman signed this stronger statement and endorsement of recommendation on 11 September and Dr Ian Wolfe, Acting Head Radio also signed on 11 September in his capacity as the person approving of and indeed activating the dismissal of the Applicant pursuant to Clause 8.17 of the Employment Agreement.
Dr Wolfe and Ms Benjamin gave evidence of their consideration of the Nichols/Wetherell Assessment of 9 August 1995, the Nichols/Wetherell advice or report to the Applicant on 11 July 1995, the responses of the Applicant and the union on 26 July, the Nichols counselling report of 17 November 1994, the Assessment Plan of 17 March 1995 and the voluminous material (Attachments 11 and 12 of Exhibit R6C) which contain complaints and adverse assessments of the Applicant’s work and attitude in March, April and May 1995.
Ms Benjamin stated in evidence that she
went through the Inefficiency Review in the light of the Employment Agreement
considered the issues raised in the counselling sessions
noted that the Applicant had not signed the Nichols Counselling Report of 17 November 1994 but had been given ample opportunity to provide “extensive feedback into the process”
noted the inconsistencies between the Nichols/Wetherell Report of 11 July and the Applicant’s response of 26 July
discussed the report with Mr Wetherell who “had no reservations that the counselling sessions had not been fruitful” (this seems to be a roundabout way of saying that Mr Wetherell was adament that the counselling sessions had failed to remedy the problems perceived in respect of the Applicant’s attitude, behaviour and efficiency)
discussed the process and the details of the documentation with Messrs Nichols and Withyman and with Steven Alward, Radio National Supervisor, and Lisa Fowkes, the head of the Community Public Sector Union
noted the concern expressed by Ms Fowkes that the process had not accorded the Applicant natural justice
express the view that she “was convinced” that the Applicant had been given every opportunity to respond to the assessment made of him because, in her view, “the issues had all been raised in the counselling sessions”
came to the conclusion that the Applicant should be dismissed and took into account only the material contained in Exhibit R6C which was the only material referred to her at the time she made her recommendation to Dr Wolfe
THE TERMINATION
Dr Wolfe stated in evidence that he
read Exhibit R6C in detail
considered the Employment Agreement and especially Part 8 Termination of Employment
discussed the matter with Ms Benjamin and Mr Withyman
concluded that the problems of the Applicant’s communication and co-operation were fundamental
Dr Wolfe also stated in evidence:
“I have no doubt in my mind it (the dismissal of the Applicant) was the proper course to follow.”
GENERAL COMMENTS ON EVIDENCE GIVEN AT THE HEARING
The Court has considered the evidence given by the ten witnesses for the Respondent and the six witnesses for the Applicant. The most significant evidence in support of a valid reason for termination pursuant to S170DE(1) and connected with the Applicant’s capacity and conduct and the operational requirements of the ABC came from Messrs Nichols and Wetherell, Dr Wolfe, Ms Spurling and Ms Benjamin. The evidence of Father Godley, Ms Gallacher and Mr Ferguson was of less significance and the evidence of Drs Kohn and Swann was not really relevant at all in terms of the period in which the Applicant was assessed as inefficient.
Of course, the evidence of the Applicant was of great importance. The evidence of Michael Mullins, Marketing Department, Stephen John Watkins, Broadcaster and John Charles Cleary, Broadcaster was of no great assistance. Ms Colmer and Mr Fields gave evidence from a union perspective. It is clear from the evidence of Mr Fields that the union approved of Mr Wetherell as an assessor. Other than that, the evidence of Mr Fields does not assist.
Ms Colmer expressed the view that it was inappropriate for Mr Nichols to be appointed as an assessor but Clause 8.15 of the Employment Agreement states that one of the assessors may be the employee’s supervisor. Mr Nichols was the Applicant’s professional supervisor albeit from Sydney with the Applicant based in Melbourne.
The relationship between Mr Nichols and the Applicant was such that it may have been preferable if an assessor with a less subjective approach had been appointed in lieu of Mr Nichols but his appointment was consistent with Clause 8.15. In any event, Mr Wetherell endorsed and was part of the adverse assessment. The Court is satisfied he took an objective approach.
VALID REASON FOR TERMINATION
The Applicant’s attack on the validity of the termination can be summarised in the following assertions made by Mr Thomson in his final address.
Mr Nichols was biased because of his past and continuing relationship of disagreement with the Applicant and because the Applicant was critical in a professional and artistic climate in which debate and criticism were to be expected and indeed encouraged
the criticism of the Applicant was “properly motivated” and was criticism “by a dedicated responsible broadcaster”
when Mr Nichols and the Applicant met informally for coffee at Southbank the Applicant was not informed that the meeting was designed to assess his performance and the Applicant would have been more restrained in his criticism if he had known his performance was under review
the Applicant was given inadequate feedback during the assessment process
the Nichols/Weatherell assessment lacked specificity
The allegations that the report lacked specificity and that the Applicant was given inadequate feedback cannot be sustained. The report and the supporting documentation provided considerable detail of complaints about the Applicant’s performance and especially about his critical and unco-operative attitude to peers and supervisors.
There is no evidence to support the claim that the meeting over coffee in Southbank was designed to entrap the Applicant. Even if the meeting was intended by Mr Nichols as the beginning of an assessment process he could not have known in advance what criticisms the Applicant would make and, in any event, he was under no obligation to warn the Applicant that continued criticism at the meeting or thereafter might not be in the Applicant’s long term interest.
There is no doubt in the body of evidence both documented and given on oath in the hearing that the Applicant reacted in an extreme, aggressive and critical fashion to legitimate supervision and criticism.
The major thrust of the Applicant’s case is that the termination was not for valid reason and was motivated by the bias and bad faith of Mr Nichols. The Court does not accept that this is so but, assuming for the moment, that a certain lack of objectivity on the part of Mr Nichols amounted to bias on his part, the Court notes:
Mr Weatherell was an important member of the two man assessment team
his position as an independent assessor with the knowledge of the relevant work area was supported by the union
while the initial recommendation to dismiss came from Messrs Nichols and Weatherell, and no doubt was driven by Mr Nichols, the recommendation was supported by more senior officers in Ms Benjamin and Mr Withyman and most particularly by the former
the formal recommendation to dismiss was made by Ms Benjamin and Mr Withyman
the decision was made by Dr Wolfe and was taken after careful consideration and consultation and after examination of all the material in Exhibit R6C
Mr Thomson, in alleging bias, on the part of Mr Nichols, and in citing cases on bias, seemed to suggest that the allegation of bias was not only an attack on a valid reason for termination under S170DE(1) but was also an adequate ground for concluding that the termination was unlawful because harsh, unjust and unreasonable under S170DE(2). Of course, on 4 September, the High Court in the State of Victoria v The Commonwealth of Australia (1996) 138 ALR 220 struck down S170DE(2). Moreover, in respect of S170DE(1) and the alleged adverse effect of bias on valid reason, it must be said that the Applicant and his union are misconceived in assuming that bias cases are authority for the proposition that a biased assessor (assuming for the moment that Mr Nichols was biased), in an Efficiency Assessment under Clause 8.17 of the Employment Agreement would, by dent of such bias, invalidate a reason for termination otherwise sound, defensible and well founded: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
The bias cases, of which Livesey v New South Wales Bar Association (1983) 151 CLR 288 is best known, are not authority for such a proposition. The relevant legal principles concerning bias and apprehended bias have been enunciated in Livesey and in several other decisions of the High Court including R v Commonwealth Conciliation and Arbitration Commission;ex parte Angliss Group (1969) 122 CLR 546; re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 and R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100. The principles were canvassed by a Full Court of this Court in AWU-FIME v Acton (1994) 1 IRCR 529 at 536 and 537.
The cases deal with bias or apprehended bias in a court or tribunal when a person required to act in a judicial or quasi-judicial capacity has so acted that he or she cannot be expected fairly to discharge the judicial or quasi-judicial duties. The cases are authority for the principle outlined in Liversey at 293-294 in relation to which a judge might be impartial and unprejudiced:
“a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it”
Mr Nichols was not acting as a judge or quasi-judicial officer. He was not making a decision or determination affecting the Applicant’s rights. He was acting as an assessor. He was one of two assessors. They made a recommendation to dismiss. They did not make a decision to dismiss. They did not even make the final formal recommendation to dismiss. Ms Benjamin and Mr Withyman made the final recommendation and Dr Wolfe made the decision. There is no suggestion that Dr Wolfe was biased. For that matter there is no suggestion Ms Benjamin or Messrs Withyman and Wetherell were biased. Even if Mr Nichols was biased, his bias could not and did not vitiate valid reasons for the termination of the Applicant.
FINDINGS
The Court is satisfied, as previously recorded, that the assessment of the Respondent was generally accurate and there was a valid reason for termination.
The Court does not accept the Applicant’s claims, and the claims of the union, that the process was biased against the Applicant. Mr Nichols could have been more objective and more reasonable and less demanding but the Court has concluded there were valid reasons for the termination of the Applicant’s employment and is reinforced in that conclusion by the attitude and approach taken by the Applicant when giving evidence in the hearing.
The Applicant was given ample opportunity to respond to the allegations made against him.
The Court finds that the termination was for valid reason and that the application under S170EA should be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 18 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 15 October 1996
Mr Graeme Thomson, National Industrial Officer, CPSU for the Applicant.
Mr Bruce Jackson, National Manager, Employee Relations, ABC for the Respondent.
Date of hearing: Melbourne 20 March 1996
and 21 March 1996
Sydney 28 March 1996
and 29 March 1996
Melbourne (video link to Sydney) 15 April 1996
Date of judgment: 15 October 1996
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