Dr Ann Lawless v Charles Sturt University

[2015] FWC 8859

[2015] FWC 8859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Ann Lawless
v
Charles Sturt University
(U2015/5148)

DEPUTY PRESIDENT BOOTH SYDNEY, 22 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Dr Ann Lawless was employed by Charles Sturt University (CSU) in Wagga Wagga as the Academic Literacy, Learning and Numeracy (ALLaN) Faculty Liaison Team Leader (Business) from 13 October 2014 until her dismissal on 10 April 2015. Prior to this role she was employed by Charles Sturt University in Bathurst as a Transition Coordinator in the Faculty of Business from 17 February 2014.

[2] Dr Lawless made an unfair dismissal application to the Fair Work Commission on 29 April 2015. Charles Sturt University objected to the application on the ground that Dr Lawless had not served the minimum employment period of 6 months that was required for a person to be protected from unfair dismissal. 1

[3] On 26 August 2015 I dismissed the University’s jurisdictional objection 2 finding that Dr Lawless was employed by Charles Sturt University from 17 February 2014 to 10 April 2015 and had therefore served the relevant minimum employment period.

[4] In the light of this decision, and the provisions of s.396 of the Act presenting no other impediments, I heard Dr Lawless’s application on the merits of her case on 4 November 2015 in Wagga Wagga with closing written submissions being provided on behalf of Dr Lawless and CSU on 25 November and 2 December respectively. Dr Lawless was represented by Ms Talmacs, National Tertiary Education Union (NTEU) and CSU was represented by Mr Wedgewood Employee Relations Officer, CSU.

[5] Dr Lawless gave evidence. Evidence was also given for Dr Lawless by Ms Battersby, Student Support Officer and Chair of the Cases Committee for the CSU NTEU Branch Executive Committee and Dr Harper Senior Lecturer in Plant Science & Microbiology in the School of Agriculture and Wine Sciences. Evidence was given for CSU by Mr Crowl, Manager Employee Relations and Policy, Human Resources Division and Ms Smith, Director, Academic Success in the Office for Students.

[6] It is common ground between the parties that Dr Lawless was subject to the standard probationary period for continuing professional/general staff positions, namely 6 months, contained in clause 22.9 of the Charles Sturt University Agreement 2013-2016 (the Agreement). 3 It is also agreed that on 9 April 2015 Ms Smith, who held the appropriate delegation at the time, decided not to confirm Dr Lawless’s appointment and CSU terminated her employment under clause 22 Probation of the Agreement.4 The NTEU on behalf of Dr Lawless contended that it was the position that was probationary, not the employment, and once it had been established that Dr Lawless had served the minimum employment period any performance concerns should have been addressed pursuant to clause 37 Unsatisfactory Performance of the Agreement.

[7] Both cases however were conducted on the basis that Division 2, Protection from Unfair Dismissal of the Act was applicable. The NTEU urged me to find that Dr Lawless had been unfairly dismissed and CSU urged me to find the opposite. I asked the advocates the question 5 and neither submitted that her probationary status meant that the provisions of the Act did not apply or were to be read down in any way. Neither suggested that I must do anything other than decide whether Dr Lawless’s dismissal was unfair in accordance with the Act and I conclude that I do not need to make a finding concerning the application of clause 37 Unsatisfactory Performance of the Agreement.6

[8] For the reasons outlined below I have decided that Dr Lawless was unfairly dismissed and I have ordered that she be reinstated in accordance with s.390 and 391 of the Act to the position in which she was employed immediately before the dismissal or to another position on terms and conditions no less favourable than those on which she was employed immediately before the dismissal.

What was the reason for Dr Lawless’s dismissal?

[9] The first question to be considered in applying subsection (a) of s.387 of the Act is what was the reason for Dr Lawless’s dismissal?

[10] The letter that ended Dr Lawless’s employment followed what could be described as a “show cause” meeting on 30 March 2015 and the provision by Dr Lawless and her representative, the NTEU, of a response dated 8 April 2015, to matters raised at that meeting and in a subsequent email. CSU cited “non-performance in your position ALLaN Faculty Liaison” as the reason for the decision to “annul your appointment in accordance with clause 22 Probation of the Charles Sturt University Enterprise Agreement 2013-2016”. 7

[11] The submissions made by CSU and the evidence, particularly that of Ms Smith who was the decision maker, lead me to conclude that the non-performance referred to in the letter was that Dr Lawless was not demonstrating progress to the satisfaction of the Faculty of Business in the completion of a task given to her by them. The task was to review 12 Faculty of Business Subject Outlines and to propose any changes in their wording for the consideration of the owners of the outlines. As Ms Smith put it in her evidence “….to assess the language used, the assessment design and basically ensuring that it was plain English and (be) able to be understood easily by a student”. 8

[12] Dr Lawless offered an alternative motivation as follows:

“PN485 - I believe was terminated for three reasons. My employment was terminated because I blew the whistle on a long term bully, I had also during the bully report and having blown the whistle on the incident, I was continuously giving them feedback that they were mismanaging the situation. They placed myself and my staff at risk. I made that very clear to them, there were numerous written reports in which I documented it.

PN486 - I reported it to my union which is where I first came in contact with Jane Battersby and with my case officer at the time, Dr Alek Zander. I believe I was dismissed because there was an aggressive relationship as Ruth Durose and as Liz Smith pointed out to me, there was an aggressive relationship between the Faculty of Business and the office of students and its sub unit 9 as academic success. I believe I was used as target practice for an aggressive relationship between people working at senior levels of those two places, and I believe I was sacked because I’m union and proud to be union.”  9

[13] It is common ground that Dr Lawless had made a complaint about a person’s behaviour towards others and that this complaint had been dealt with between Dr Lawless, her NTEU representatives and CSU. However in the absence of any corroborating evidence that CSU dismissed her because of this bullying complaint and her union membership I cannot conclude that this was the reason she was dismissed.

Was this reason a valid reason?

[14] In addressing this question I am guided by the principle that a valid reason is one that is sound, defensible or well founded in the context of the employee’s capacity or conduct based upon the operational requirements of the employer’s business. 10

[15] I also note that the Act requires an examination of whether there was a valid reason for dismissal, not whether the reason/s given to the employee for the dismissal were valid. 11

[16] The reason given by CSU for not confirming Dr Lawless in her role and dismissing her was related to her performance, or in the words of the Act, her capacity. 12

[17] I note that in Crozier v Palazzo Corporation Pty Ltd the Full Benchsaid “…an employee’s performance is an incident of his or her capacity”. I find that the reason given for Dr Lawless’s dismissal was related to her performance not to her conduct.

[18] The Subject Outline task was given to Dr Lawless some time before February 2015 with a completion date in April. There was some confusion as to the actual completion date.

[19] On 24 March Dr Lawless wrote a report headed “Project end date mid-April”. 13

[20] In her response to the show cause meeting she referred to the project being due in early April”. 14

[21] Ms Smith agreed with Ms Talmacs in cross examination that “it was due in two week’s time”. 15

[22] However it was common ground that the completion date for the task had not been reached before Dr Lawless was asked to, in effect, show cause why she should not be dismissed.

[23] The reason given for dismissal was not that the task had not been completed to the satisfaction of the Faculty of Business but that the Executive Dean of the Faculty of Business was not satisfied with the progress being made.

[24] Evidence of this lack of satisfaction referred to by Ms Smith in her evidence was an email from Lesley White Executive Dean to Julia Lynch Sub Dean Learning and Teaching on 27 March 2015 referring to the progress report given by Dr Lawless on 25 March 2015 as follows:

“As discussed …activity but very few tangible outcomes.”

[25] Ms Smith agreed with this conclusion and said so in cross-examination by Ms Talmacs as follows:

“Is it possible that the outcome hadn’t been achieved because the date hadn’t been – it hadn’t yet hit the due date. So she was actually just telling you – giving you a progress report as to where she was up to with these particular outlines?  -No, I wouldn’t agree. The task wasn’t that extensive, and by that point in time there should have been far more significant progress made”. 16

[26] An examination of the progress report itself provided as an annexure to Dr Lawless’s Statement 17 lists each Subject Outline and notes activities that have been undertaken, such as meetings had with individuals, or planned.

[27] Her response to the show cause meeting and email contain similar reports. 18

[28] In answer to a question from her representative about how long it would have taken her to complete the work she said:

“The task in one sense was quite simple. I had already - there were numerous subject outlines when I worked in the Faculty of Business, I had worked very closely with a colleague who I was also to work with in my next session with (indistinct), and we had gone through subject outlines together a number of times. There was a lot of - I had a fairly good knowledge of it. The work isn’t onerous. It’s quite simple. It’s a matter simply of reading the document through, offering a language check and offering comments on the content.” 19

Was the lack of satisfaction that Dr Lawless was demonstrating progress to the satisfaction of the Faculty of Business in the completion of this task a valid reason for her dismissal?

[29] In answering this question the place of this task in the role being performed by Dr Lawless is worthwhile considering.

[30] Dr Lawless reported to Ms Ruth Durose who in turn reported to Ms Smith.

[31] Dr Lawless described her own role as follows:

“PN474 The job involved quite extensive negotiation and development. I was on various committees and so on within the faculty, and this was a very minor part of that role.

PN475 What other work did you perform in your role (indistinct)?  -Some of them are in my statement but the work included professional consultations with members of staff in the Faculty of Business. So for example, one thing I did to illustrate that was that knowing of my expertise in handling the subject outlines, they asked me to coach a number of their staff. So I provided professional advice to a colleague called Alissa Brabin of the faculty about how to conduct the subject outline review and the sorts of background knowledge to keep in mind as you reviewed a subject outline. There was - I think I sat on about six committees and was regularly attending meetings. There were regular reporting requirements that are quite extensive in a number of genre. I did consultants with subject coordinators about two things; the subject outlines but also about how to embed the newly designed ALLaN services into the delivery of their subjects and courses.” 20

[32] She also described the role in her Statement as follows:

“My ALLaNs appointment had two roles – a Faculty-facing Liaison role on behalf of ALLaNs (with the Faculty of Business), and a role as Team Leader of the Wagga Wagga campus.” 21

[33] It was suggested that Position Description was attached to the letter of Offer submitted, but I could not locate it.

[34] Ms Ruth Durose completed a six week probationary report concerning Dr Lawless in which Ms Crowl said in evidence he would expect objectives to be set. 22 This report was not available. He said that the 12 Subject Outlines were a major performance objective.23

[35] Ms Durose met with Dr Lawless to discuss her probationary review on 19 March and again on 27 March, when she provided Dr Lawless with an unsigned copy of her report in which she recommended to Ms Smith that Dr Lawless be confirmed in her appointment, with regular contact with her line manager. 24 The context of this remark was that Ms Durose, who had been Dr Lawless’s line manager was due to leave her employment at CSU that day.

[36] Ms Smith said in her evidence that apart from the 12 Subject Outlines she had no performance concerns with Dr Lawless. 25

[37] I must consider whether the failure to satisfy the Faculty of Business and Ms Smith that she was making sufficient progress with 12 Subject Outlines that were not due until, at the earliest, 1 week later, was a valid reason for her dismissal. Considering the breadth of her role, and the place of the 12 Subject Outlines in the context of this role, I am not satisfied that it was. I don’t think that the reason for Dr Lawless’s dismissal was sound, defensible or well founded in the context of her capacity based upon the operational requirements of the CSU.

Was Dr Lawless notified of the reason for her dismissal and given an opportunity to respond to this reason?

[38] Next I must consider whether Dr Lawless was notified of the reason for her dismissal and given an opportunity to respond to this reason pursuant to s.387(b) and (c).

[39] The meeting held on 30 March 2015 was the first occasion on which it could be said that Dr Lawless was provided a reason for dismissal. I have said that the meeting could be described as a “show cause” meeting. Ms Talmacs asked Dr Lawless:

“When were you told that your employment was threatened - was in threat due to your performance?” 26

She replied:

“On 30 March, I was preparing for a meeting with Ms Smith. I had written my notes out to give her a verbal report on progress on the subject outlines and I noticed that the meeting - we have an electronic calendar system, something called Calendar with a capital C. I noticed in there that the progress report had been changed and it must have been only at her end, telling me that the meeting was going to be extended. It would be about probation issues and that someone from HR was going to be present, a person called Dane Hegvold. I was startled because I had spent the weekend celebrating passing my probation.” 27

[40] Ms Smith followed this meeting with an email sent on the same day requesting Dr Lawless’s response by 7 April, subsequently extended to 8 April 2015 after the intervention of her union representative Ms Battersby.

[41] I conclude that Dr Lawless was notified of the reason for her dismissal and given an opportunity to respond to this reason.

Was there was any unreasonable refusal by CSU to allow Dr Lawless to have a support person present to assist at any discussions relating to dismissal?

[42] Next I must examine whether there was any unreasonable refusal by CSU to allow Dr Lawless to have a support person present to assist at any discussions relating to dismissal pursuant to s.387(d).

[43] Dr Lawless was accompanied by a support person on 30 March when she met with Ms Smith. Mr Crowl attempted to arrange a meeting with her on 9 April but when it was not possible to have a support person attend the meeting it was abandoned. Mr Crowl attended Dr Lawless’s home the next day, 10 April 2015 to deliver the termination letter. The NTEU contend that this uninvited, and as the evidence goes to some length to describe, unwanted visit did not afford Dr Lawless the opportunity to have a support person present.

[44] I would not characterise this occasion as a discussion relating to dismissal since the decision to terminate Dr Lawless’s employment had been made on 9 April and Mr Crowl was delivering the letter rather than affording the opportunity for a discussion.

[45] I find that there was no unreasonable refusal by CSU to allow Dr Lawless to have a support person present to assist at any discussions relating to dismissal.

Was Dr Lawless warned about unsatisfactory performance?

[46] Dr Lawless’s dismissal was related to unsatisfactory performance so it is also appropriate to consider whether she had been warned about that unsatisfactory performance before the dismissal pursuant to s.387(e).

[47] Dr Lawless attended a number of meetings from the commencement of the project to her dismissal. Only one of these could reasonably be described as a warning about unsatisfactory performance and that was the meeting I have described as the show cause meeting on 30 March 2015. The other meetings were to track progress and provide coaching on the conduct of the task. The meeting on 30 March was not remedial and although there is no evidence to substantiate the allegation by the NTEU that the decision had already been made to dismiss Dr Lawless I conclude that it was a step towards that outcome rather than an opportunity for Mr Lawless to improve her performance and retain her role.

Did the size or human resource management expertise of CSU affect the procedures they followed?

[48] CSU is a large higher education institution with a number of campuses and a number of dedicated human resource professionals who are also defending the university in these proceedings. I conclude that the size and Human Resourse management expertise of CSU is not relevant to my consideration.

Are there any other relevant considerations?

[49] Other than the considerations already outlined there are other matters that I consider relevant to Dr Lawless’s dismissal. Dr Lawless is a mature woman who has relocated her residence to take up the role from which she has been dismissed. She did so at the invitation of the university, in particular the Faculty of Business. She is well qualified having a Bachelor of Arts, a Graduate Diploma of Education, and a PhD through her work in the ethnography of Australian Higher Education. She is passionate about contributing to the education of the students of CSU. I think that CSU moved to dismiss her with undue haste due to the expiration of her minimum employment period. The evidence of Mr Crowl 28 was that it was this period coming to an end that motivated the delivery of the letter to her home on 10 April 2015. It can be reasonably inferred (because they made a jurisdictional objection to her application) that CSU believed that she was not a person protected from unfair dismissal. If there had been a valid reason for her dismissal this may not weigh on my mind but I am concerned that CSU failed to take the measured and appropriate steps to genuinely assess Dr Lawless’s capacity to perform the role because of the pressure of time.

[50] A reasonable response to the concerns raised by the Faculty of Business about Dr Lawless’s failure to satisfy them that she was not making progress with the task would have been a direct meeting with the internal customer and then the opportunity to meet the deadline set and evaluation of the quality of the work thereafter.

[51] I have found that there was no valid reason for the dismissal of Dr Lawless. I find that her dismissal was harsh, unreasonable and unjust and therefore unfair.

What remedy should apply in the circumstances?

[52] Dr Lawless seeks reinstatement with continuity of service and reimbursement of lost wages for the period from dismissal until reinstatement. This is the primary remedy in the Act and only if I am persuaded that Dr Lawless should not be reinstated should I consider the alternative remedy, compensation.

[53] Dr Lawless gave evidence that her desire to be reinstated was motivated by a love of CSU and what it does. She has been engaged in two casual roles since her dismissal and says that she is doing pro bono work to support the academic success of students.

[54] CSU on the other hand oppose reinstatement and say that her role has been filled, a restructure is underway reducing the number of faculties and there are no appropriate academic roles available. Therefore there is no role for her to return to.

[55] CSU is a large higher education institution with a number of faculties. In the circumstances I am not satisfied that reinstatement of Dr Lawless is inappropriate and consequently, pursuant to s.390(3) I must not order payment of compensation.

[56] In accordance with s.391(1) I order that Dr Lawless be reinstated to CSU by reappointing her to the position in which she was employed immediately before the dismissal or appointing her to another position on terms and conditions no less favourable than those on which she was employed immediately before the dismissal, with continuity of service pursuant to s.390(2). To accommodate the planning that will be required by CSU to effect this order and the holiday season the order will require Dr Lawless to be reinstated no later than 1 February 2016.

[57] In accordance with to s.390(3) and (4) I order that CSU pay her an amount for the remuneration lost because of the dismissal being her gross wages less appropriate taxation for the period from her dismissal to the date of reinstatement less any notice paid in lieu and amounts earned from casual teaching at CSU during that period.

[58] An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

T Talmacs, National Tertiary Education Union, for Dr Ann Lawless.

D Wedgewood, Employee Relations Officer of Charles Sturt University.

Hearing details:

2015.

Telephone

26 August;

Wagga Wagga

4 November.

Final written submissions:

Applicant Closing Submissions, 25 November and 11 December 2015.

Respondent Closing Submissions, 2 December 2015.

 1 Section 384 Fair Work Act 2009.

 2   PN375 Transcript 26 August 2015.

 3   Agreed Statement of Facts at [3] and [4].

 4   Agreed Statement of Facts at [30] and [33].

 5   PN429 to PN434 Transcript 4 November 2015.

 6 Section 387 Fair Work Act 2009.

 7   Letter of Termination dated 9 April 2015.

 8   PN1071 Transcript 4 November 2015

 9   PN485 to PN486 Transcript 4 November 2015.

 10   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

 11   S8106.

 12 Section 387(a) Fair Work Act 2009.

 13   Exhibit T1 - Statement of Anne Lawless, Attachment J.

 14   Exhibit T1 - Statement of Anne Lawless, Attachment G.

 15   PN1027 Transcript 4 November 2015.

 16   PN1025 Transcript 4 November 2015.

 17   Exhibit T1 - Statement of Anne Lawless, Attachment J.

 18   Exhibit T1 - Statement of Anne Lawless, Attachment G.

 19   PN473 Transcript 4 November 2015.

 20   PN474 to PN475 Transcript 4 November 2015.

 21   Exhibit T1 - Statement of Anne Lawless, Attachment G.

 22   PN854 and PN859 Transcript 4 November 2015.

 23   PN855 Transcript 4 November 2015.

 24   Agreed Statement of Facts at [17] to [19].

 25   PN967 Transcript 4 November 2015.

 26   PN483 Transcript 4 November 2015.

 27   PN483 Transcript 4 November 2015.

 28   PN730Transcript 4 November 2015.

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