Dr Marc Antony Gladman v The University of Adelaide
[2023] FWC 2623
•29 DECEMBER 2023
| [2023] FWC 2623 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Marc Antony Gladman
v
The University of Adelaide
(U2023/7385)
| COMMISSIONER PLATT | ADELAIDE, 29 DECEMBER 2023 |
Application for an unfair dismissal remedy – whether Applicant dismissed – held no dismissal – application dismissed
On 9 August 2023, Dr Marc Antony Gladman (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer, The University of Adelaide (the Respondent or the University). Dr Gladman’s employment ceased on 19 July 2023.
On 29 August 2023, the University filed a Form F3 Employer Response which a raised a jurisdictional objection that Dr Gladman was not dismissed, and that the employment ceased by way of resignation.
A conciliation conference was conducted by a staff conciliator on 11 September 2023 but did not resolve. The matter was then allocated to my Chambers.
On 19 September 2023 Directions were issued for the filing of material and determination of the jurisdictional objection.
The material received was collated into a Digital Court Book (DCB) and distributed to parties prior to the Hearing.
The Hearing was conducted on 19 October 2023 by video conference owing to Dr Gladman being located overseas. Dr Gladman was self-represented. The University was represented by Mr Chris Morey (Legal Counsel (Employment and Industrial Relations).
The DCB was received into evidence (with appropriate weight being afforded based on its relevance, hearsay and the like). The DCB included the application forms and responses from two prior related matters C2022/2661 & SO2022/218 (general protections application not involving dismissal & application for an order to stop bullying) involving the parties. I have referred to these proceedings as ‘the previous proceedings’. The previous proceedings were the subject of a confidential settlement agreement entered into on 14 June 2023.
Dr Gladman submitted a witness statement (with supporting documents) and gave evidence. The University of Adelaide submitted a statement (with supporting documents) from Mr Andrew Zannettino (Executive Dean of the Faculty of Health and Medical Sciences) who also gave evidence.
No credit issues arose from the evidence.
EVIDENCE
The Applicant’s relevant evidence is summarised as follows:
·Dr Gladman commenced employment with the University in January 2017. At the time of his cessation of employment, his substantive role was that of Associate Professor[1], and he had been seconded to the fixed term position of Director Medical Degree Programs since June 2019.[2]
·Dr Gladman resigned in writing by letter dated 17 July 2023[3] which was sent by email and received by Professor Van Den Heuvel on 19 July 2023. The letter was drafted over a 24 hour period. The University was not advised resignation was being contemplated by Dr Gladman and he was not requested to resign. The letter advised that Dr Gladman felt that he was left with no choice but to resign in light of his recent experiences involving a fundamental breach of contract and of trust and confidence that occurred on a continuous and repetitive basis. The letter provided further detail in relation to ‘unwarranted, inappropriate and excessive scrutiny of his professional and academic activities’, repeated instances of ‘adverse action’, and victimisation and exclusion from workplace activities.[4] The letter also referred to Dr Gladman’s attempt to resolve the issues through a s.372 General Protections claim and Stop Bullying application made to the Commission in 2022. Dr Gladman asserted that he continued to be subject to inappropriate treatment and his complaints were not adequately investigated and his concerns not genuinely considered.
·Dr Gladman contended that the course of conduct that led him to resigning included:
· Excessive workload allocation in breach of the University of Adelaide Enterprise Agreement 2017-2021.
· His removal from senior leadership positions of Chair of the Adelaide Medical School Programs Board, Chair of the BMS-MD Curriculum Development, Chair of the Year 1-3 and 4-6 MBBS Committees and Year 1-3 Anatomy Lead for the MBBS, in breach of the University of Adelaide Enterprise Agreement 2017-2021.
· A failure by the University to investigate a grievance in that he was unsuccessful in his application to appointment to the Wood Jones Professorial Chair in Anatomy.
· Detrimental changes to his employment where he was not afforded opportunities to coordinate courses or conduct duties commensurate with a Level D academic, and his activities within the School of Biomedicine were curtained to course/lecture delivery rather than course leadership and coordination, and his exclusion from contribution to the development of curriculum in the new Medical Degree Program that was being developed between 2019 and 2021.
· Restrictions on his capacity to practice a discipline outside of the University.
· The taking of adverse action against him by the issuance of a written warning on 18 June 2021.
· The University failed to adhere to its policies and processes in respect of a meeting conducted on 4 August 2021.
· Increased scrutiny and micro-management in the period May 2022-July 2022.
· Dr Gladman advised that the ‘last straw’ was the reduced support for a course he was to deliver in Semester 2, 2023, as advised to him in an email from Professor van den Heuvel on 6 July 2023.
The University submitted evidence through Mr Andrew Zannettino (Executive Dean of the Faculty of Health and Medical Sciences) who provided a statement[5] and gave evidence.
Mr Zannettino’s relevant evidence is summarised as follows;
·Dr Gladman’s resignation was received and accepted on 19 July 2023.
·With respect to the reasons proffered by Dr Gladman for his resignation the University contended:
· Dr Gladman’s concerns regarding his removal from Senior Leadership positions were raised and resolved in the previous proceedings.
· Dr Gladman’s concerns regarding excessive workload allocation were discussed with him and he was asked to provide additional information about his workload. No clarity was provided by Dr Gladman and he failed to engage with his then Supervisor to clarify his day to day activities to allow a proper assessment.
· The allegation that the University failed to investigate grievances was addressed and resolved in the previous proceedings.
· The use of academic title check was a reasonable enquiry by the University.
· The practice of a discipline outside of the University was addressed and resolved in the previous proceedings.
· The conduct of research was a normal check undertaken by the University after a concern had been raised and no adverse action was taken against Dr Gladman.
· Teaching Activities – Despite a commitment given by Dr Gladman in the previous proceedings, Dr Gladman failed or refused to conduct teaching sessions in accordance with the method and instruction directed by the University. This matter was managed as part of the regular performance meetings with Dr Gladman.
With respect to the level of Casual Teaching support provided to the course Dr Gladman coordinated, the University contended that student enrolments had reduced significantly but despite this, Dr Gladman sought increases in funding and practical demonstrators. On 6 July 2023 the Head of School responded to Dr Gladman’s concerns but no response was received prior to Dr Gladman’s resignation letter which was received 13 days later.
Matters C2022/2661 & SO2022/218
It is necessary to discuss the previous proceedings in more detail.
On 2 May 2022, Dr Gladman, through his (then) legal representative lodged a Form F8C which alleged that the University had breached s.372 of the Fair Work Act.[6] The particulars of the alleged conduct were detailed at paragraph 3 of that Application. The alleged conduct included concerns over Dr Gladman’s ability to practice medicine outside of his employment with the University, inadequate resourcing of projects, removal from various senior leadership positions, his unsuccessful application for appointment to the Wood Jones Professorial Chair in Anatomy, the issuing of a warning to Dr Gladman on 18 June 2021, being placed on a performance management plan, and the failure of the University to follow its policies and procedures and its obligations under the University of Adelaide Enterprise Agreement 2017-2021. The University filed a Form F8A Employer Response (undated) denying that it had taken adverse action against Dr Gladman.[7]
On 2 May 2022 Dr Gladman also lodged a From F72 Application to Stop Bullying.[8] The factual matrix largely mirrored that contained in his s.372 complaint. On 12 May 2022 the University lodged a Form F73 Employer Response denying that Dr Gladman had been subject to Bullying and that it had engaged in reasonable management action.
The s.372 Application and Stop Bullying Application were allocated to my Chambers. A confidential conference was conducted on 20 May 2023 and adjourned to allow the parties to have further discussions.
On or about 14 June 2022 my Chambers was advised that Dr Gladman, the University and Mr Kite, had reached agreement on the settlement of Dr Gladman’s complaints on the terms described in pages 242-243 of the Digital Court Book. The applications were subsequently withdrawn.
Post 14 June 2022 Conduct
I now turn to the evidence of the conduct that occurred after the settlement of Dr Gladman’s General Protections and Stop Bullying application on 14 June 2022. In line with Dr Gladman’s submissions, the conduct has been separated into four topics – Workload, Teaching Activities, an Unsuccessful Application for appointment to the Wood Jones Professorial Chair in Anatomy, and Casual Teaching Support.
Workload
In August 2022, Dr Gladman and Acting Professor Turner corresponded concerning a suggestion that Dr Gladman’s contribution was poor and Dr Gladman asserting that his current activity exceeded the recommended hours for his single FTE role. On 30 August 2022, Acting Professor Turner accepted that the University’s workload model was not perfect and advised that it was being reviewed. Acting Professor Turner sought more information from Dr Gladman about his workload.
There was much correspondence between the parties on this topic.[9] On 23 September 2022 Acting Professor Turner in an email advised Dr Gladman ‘’….To be straight forward and candid, your email communication highlights once again your failure to directly answer questions relating to your teaching activity. For example, I have specifically asked you to elaborate further and specify the courses that represent the 132 hours of allocated workload. The specific breakdown of your lecture, tutorial and practical/resource load access the courses you contribute to is essential in order to fully understand the extent of your teaching activities and therefore workload….” It appears that was the last communication on the matter.
Mr Zannettino gave evidence that as part of the settlement of the previous proceedings, Dr Gladman agreed to comply with the Academic Role Statement and focussed performance outcomes provided to him and to also engage in regular performance meetings. This is supported by a review of the Settlement Agreement. As part of that process, Acting Professor Turner sought additional information from Dr Gladman about his workload. Mr Zannettino contends that Dr Gladman’s failure to respond to Acting Professor Turner’s email of 23 September 2022 was a failure by Dr Gladman to provide clarity as to his workload.[10] I note the lengthy period of time between this conduct and the resignation.
Teaching Activities
On 20 May 2022 Dr Gladman received an email[11] from Acting Professor Turner in relation to the teaching deliverables for the Foundation of Medicine course content. On 11 July 2022 Acting Professor Tyrner again emailed[12] Dr Gladman. The email appears to confirm previously agreed action items, and included issues that appear to have been raised in Dr Gladman’s previous applications. In my view, neither the content or the tone of the email are objectionable. It appears that no internal or external complaint was lodged by Dr Gladman is respect of Acting Professor Turners conduct post 14 June 2022.
Unsuccessful Application for Wood Jones Professorial Chair in Anatomy
Dr Gladman advised that despite his extensive qualifications and experience he was not shortlisted for the position of Wood Jones Professorial Chair in Anatomy. The award of this position appears to be a matter of discretion for the University and subject to a competitive selection process. It appears that no internal or external complaint was lodged by Dr Gladman is respect of the University’s decision. Whilst I understand Dr Gladman may have been disappointed that he was not short listed, I do not believe this conduct could form a basis for Dr Gladman to reasonably contend that his resignation was forced as a result.
Casual Teaching Support
The last straw for Dr Gladman was the University’s decision to reduce casual teaching support for a topic to be taught by him in Semester 2, 2023.
On 6 July 20203 Dr Gladman emailed[13] Professor Van Den Heuvel concerning casual teaching support for Applied Clinical Anatomy which was to be taught in Semester 2. Later that day Professor Van Den Heuval replied to Dr Gladman and advised that the budget for supporting resources for one of his teaching courses was to be significantly reduced and no additional support would be provided as a result of reduced student numbers and reduced numbers of practical participants. Professor Van Den Heuval had consulted with Mr Rainer to determine appropriate demonstrator/student ratios. Dr Gladman did not respond to this correspondence.
Mr Zannettino gave evidence that casual teaching support was based on enrolment numbers. In 2022 there were 74 student enrolments and the casual support budget was $10.6K, in 2021 there were 101 enrolments and the budget was $26.2K (noting that COVID 19 impacted teaching delivery), in 2022 there were 73 enrolments and a budget of $19.5K. In 2023 the enrolments were 43 and Dr Gladman sought a budget of $25.4K with an increase in the number of practical demonstrators.
There was no further correspondence between the parties after 6 July 2023.
On 19 July 2023 Dr Gladman resigned. Dr Gladman judged that there was a high change of further discipline and a real possibility of dismissal if he raised any further complaints. Dr Gladman felt he had no other option but to resign rather than be dismissed from it with the associated ramifications on his future career.
Dr Gladman did not advise the University of his intention to resign.
Dr Gladman contended that the substantial reduction in the budget for casual teaching support resources and the withdrawal of marketing support in conjunction with the excess workload represented the last straw in unreasonable conduct by the University. Dr Gladman stated that on account of the University’s unwillingness to acknowledge, investigate or resolve his enquiries and complaints in accordance with their own policies and the Enterprise Agreement, there were no avenues of potential resolution available to him.
It appears that no further internal or external complaint was lodged by Dr Gladman in respect of the intended reductions in casual teaching support. Dr Gladman may have also had the option of seeking injunctive relief in respect to his suggestion that the provisions of the Enterprise Agreement had been breached. No such application was made, and no satisfactory reason as to why the other options available were not explored has been proffered.
SUBMISSIONS
Both parties provided written submissions (and in Dr Gladman’s case submissions in reply).
Dr Gladman submitted that the University:
·Breached ss.5.4.3.3 of the University of Adelaide Enterprise Agreement 2017-2021 which concerns maximum annual allocated hours.
·Had failed to resolve his concerns about excessive workload allocation.
·Removed and prevented him from being appointed to leadership roles.
·Failed to adequately investigate his grievances.
·Made detrimental changes to his employment by moving him to the School of Biomedicine.
·Attempted to prevent and/or obstruct his practicing as a medical practitioner in breach of his Contract of Employment.
·Took adverse action against him.
·Reprimanded and issued a written warning to him.
·Engaged in unreasonable conduct.
·Reduced supporting resources for his principal teaching course; and
·The University has ‘gaslighted’ his concerns.
The University submits that Dr Gladman was not dismissed. The University submitted that the primary reasons alleged were that Dr Gladman’s workload was excessive, and that he was not provided adequate levels of casual teaching support. The University contends that Dr Gladman’s position is contrary to the evidence and that the Applicant did not provide details of the specifics of his workload when requested and he was offered a level of casual teaching support commensurate with the level of student enrolment.
The University contended that Dr Gladman’s complaints concerning strict and excessive instruction regarding his teaching, being asked to change his academic title on the University's website and being contacted by a research admin officer to confirm a research ethics issue were all reasonable actions of the University.
The University also contended that the remaining reasons alleged by Dr Gladman that led to his resignation were previously addressed and resolved in previous Fair Work Commission proceedings C2022/2662 and SO2922/218 and are not relevant to this Application.
Overall, the University contended that Dr Gladman had failed to substantiate that he was dismissed from his employment as defined in section 386 of the Act, and the Application should be dismissed.
LEGISLATION
Section 386 of the Act states:
Meaning of dismissed
(1)A person has been dismissed if:
(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2)However, a person has not been dismissed if:
(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b)the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3)Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
CONSIDERATION
Dr Gladman contends he was dismissed within the meaning of s.386(1)(b) of the Act, in that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by the Respondent.
The onus is on Dr Gladman to prove that he did not resign voluntarily. He must establish that the Respondent forced his resignation.[14]
In Sovereign House Security Services Ltd v Savage[15] Justice May said:
“….generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned.”
The foundational case for ‘forced resignation’ matters was that of Mohazab v Dick Smith Electronic (No 2)[16]. In discussing the concept of forced resignation in that case it was stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” (emphasis added)
In O’Meara v Stanley Works Pty Ltd,[17] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:
“[23]…It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”…In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (emphasis added)
In the matter of Kwik-Fit (GB) Ltd v Lineham [18] Justice Wood said:
“Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where “special circumstances” arise it may be unreasonable for an employer to assume a resignation and accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether such resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk.”
From the evidence it appears the majority of the concerns raised by Dr Gladman about the University’s conduct occurred more than 12 months before the provision of his resignation letter. The ‘last straw’ occurred 13 days prior to the resignation letter being sent, it having been drafted over a 24 hour period. In my view the facts support a conclusion that the resignation did not occur in the heat of the moment.
I note that the factual basis summarised in the previous applications substantially mirror the basis upon which Dr Gladman says his dismissal was unfair in Paragraph 3.2 of his Form F2 lodged on 8 August 2023.
In the previous application, Dr Gladman availed himself of the Commission’s General Protections and Stop Bullying jurisdiction. I accept that at this time he was represented by counsel and that Dr Gladman now represents himself. Dr Gladman is a well educated and mature person and I observed that he has an understanding of the operation of the Commission’s jurisdiction.
The bulk of Dr Gladman’s complaints were resolved between the parties in the previous proceedings and the basis of the resolution documented in a settlement agreement on 14 June 2022[19]. As the settlement agreement contains a confidentiality provision, I do not propose to repeat the detail of the basis upon which Dr Gladman’s concerns were resolved.
I am cognizant that the underlying issues, and making and resolution of those complaints may have had a residual effect on Dr Gladman. The complaints were resolved on an agreed basis, which appeared to include some concessions on both sides and included an action plan moving forward. In my view, this outcome does not permit those issues to be used as foundation for Dr Gladman’s contention that his resignation was forced upon him some 12 months later.
I turn now to considering the impact of the post 14 June 2022 conduct.
In my view the Dr Gladman’s workload concerns discussed above at paragraphs [20]-[22] does not of itself provide a foundation for Dr Gladman’s contention that he was forced to resign. It appears that Dr Gladman determined to not engage in a detailed discussion of the issue such as to allow a proper consideration of his position. In addition, Dr Gladman had the option of lodging a s.739 dispute and/or seeking injunctive relief in respect of his claim that the provisions of the Enterprise Agreement had been breached. I also note the lengthy period of time between this conduct and the resignation.
With respect to Dr Gladman’s concerns with teaching deliverables for the Foundation of Medicine course content, the email[20] sent by Acting Professor Turner appears to summarise some of the matters detailed in the settlement agreement made on 14 June 2022. Viewed objectively the email does not appear to be objectionable. It also appears that no internal or external complaint in respect of this communication was raised by Dr Gladman. In my view Acting Professor Turner’s communications as to Dr Gladman’s Teaching Activities does not of itself provide a foundation for Dr Gladman’s contention that he was forced to resign.
As stated earlier, in my view the University’s decision not to short list Dr Gladman for the Wood Jones Professorial Chair in Anatomy does not of itself provide a foundation for Dr Gladman’s contention that he was forced to resign.
In my view the University’s changes to casual teaching support discussed at [25] - [32] and/or the changes to practical manning levels relied upon by Dr Gladman do not provide a foundation for Dr Gladman’s contention that he was forced to resign. In addition, Dr Gladman had other review options that he could have pursued.
I have also considered if the post 14 June 2022 conduct considered collectively would provide a foundation for a determination that Dr Gladman was forced to resign. Whilst I accept that there were significant issues with the employment relationship from both parties, I do not accept that the collective conduct viewed objectively was such that Dr Gladman was forced to resigned. He had a range of options available to him, which could have been exercised whilst the employment remained in foot, some of which he had accessed previously and could have done so again.
I have also considered the post 14 June 2022 conduct together with any residual impact of the conduct that led to the previous Commission proceedings and the settlement agreement, but my view remains the same, I do not accept that the totality of the conduct viewed objectively was such that Dr Gladman was forced to resign, and he continued to have access to options other than resigning.
CONCLUSION
As a result of these findings, I must find there has not been a dismissal within the meaning of s.386 of the Act, and accordingly Dr Gladman’s s.394 application must be dismissed.
COMMISSIONER
Appearances:
Dr Gladman as the Applicant
Mr Morey for the Respondent
Hearing details:
2023
Adelaide
19 October
[1] Page 29 of the Digital Court Book (DCB).
[2] Page 31 of the DCB.
[3] Pages 240-241 of the DCB.
[4] Page 33-34 of the DCB.
[5] Page 227 of the DCB.
[6] Page 353 of the DCB.
[7] Page 366 of the DCB.
[8] Page 388 of the DCB
[9] Pages 270-277 of the DCB.
[10] Pages 270-277 of the DCB.
[11] Page 207 of the DCB.
[12] Page 210 of the DCB.
[13] Pages 213-214 of the DCB.
[14] Australian Hearing v Peary [2009] AIRCFB 680, [30].
[15] Sovereign House Security Services Ltd v Savage [1989] IRLR 115.
[16] Mohazab v Dick Smith Electronic (No 2) (1995) 62 IR 200.
[17] O’Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006).
[18] Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183.
[19] Page 242-243 of the DCB.
[20] Page 207 of the DCB.
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