Dr Shamsun Nahar v Griffith University
[2023] FWC 1539
•27 JUNE 2023
| [2023] FWC 1539 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Dr Shamsun Nahar
v
Griffith University
(C2023/2636)
| COMMISSIONER SIMPSON | BRISBANE, 27 JUNE 2023 |
Application to deal with a dispute under an enterprise agreement
On 11 May 2023, Dr Shamsun Nahar (Dr Nahar / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. Griffith University is the Respondent in the matter (the Respondent / the University).
The matter was listed for a conference on 30 May 2023, and the parties agreed at the conclusion of the conference to a Recommendation being issued in order to assist in resolving the dispute.
The Dispute
The dispute is in relation to Clause 42 of the Griffith University Academic Staff Enterprise Agreement 2017-2021 (the Agreement).
The Applicant contends that the University has not dealt with her promotion application in accordance with its policies, procedures and guidelines, as required by clause 42 of the Agreement which provides that:
“Promotion will be undertaken in accordance with this clause and dealt with as set out in the University’s, policies, procedures and guidelines as amended from time to time.”
The Applicant submitted that the Group Promotions Committee has:
a)Failed to comply with the requirements of the Promotion of Academic Staff Procedures (Procedures) in its consideration of the Applicant’s promotion application in:
· Failing to contact the Applicant’s referees;
· Failing to have regard to the Applicant’s academic portfolio; and
· Failing to have regard to the summary pages from teaching experience surveys (SET and SEC) from the previous 3 semesters of teaching;
b)Failed to comply with procedural fairness requirements in its consideration of the Applicant’s promotion; and
c)Had regard to a criteria not specified in the Procedures namely the requirement to publish in ‘good quality outlets.’
Background
The Applicant is employed by the University as a Lecturer, Level B in the University's business school and was appointed to this position on 9 January 2017.
The Applicant lodged an application for promotion to Senior Lecturer Level C on the basis of merit on 21 July 2022.
The Applicant was subsequently notified that her application for promotion was not successful and was provided with an extract from the minutes of the Group Promotions Committee setting out its reasons.
The Applicant lodged an appeal against the decision on 9 January 2023 pursuant to clause 42.2 of the Agreement which provides that employees may lodge an appeal, on the basis of process only, in accordance with the University Procedure Appeals on Non-Promotion - Academic Staff. The Applicant received notice of the dismissal of that appeal on 16 February 2023.
The Applicant lodged a dispute notification with the University on 22 March 2023 concerning its failures to follow procedures in relation to her promotion application. On 5 April 2023, the Applicant received a letter from Dr Liebenberg advising that he did not consider the matters raised to constitute a formal grievance under clause 15 of the Agreement.
On 14 April 2023, the Applicant received an email from Dr Liebenberg advising that he had further considered the Applicant's dispute and considered that the University had interpreted, applied and implemented the relevant provisions of clause 42 correctly and appropriately.
Submissions
The Applicant submitted the Group Promotions Committee was required to follow the Promotion of Academic Staff Procedures policy in its decision making process. That Policy provides that the decision to promote an eligible staff member will be made on the basis of (relevantly) the criteria for promotion contained in Appendix 1 of the Procedures.
Contacting referees
It was submitted by the Applicant that Clause 3.3 of the Procedures requires that People and Wellbeing will contact the Applicant's referees as determined by the Dean/Pro Vice Chancellor on behalf of Promotions Committees. This did not occur in the case of the Applicant.
The University submits that Dr Nahar’s assertion that the Procedures require that the University contact her referees as part of the Promotion Application is misconceived.
Clause 3.3 of the Procedures is titled Role of the Group Pro Vice Chancellor, Supervisor, Head of School, and Dean. Clause 3.3 of the Procedures provides as follows:
“The relevant Dean…, will review the referees nominated and determine, in consultation with the relevant Head of School, referees to provide expert opinion on an application.
People and Wellbeing will contact the referees as determined by the Dean/Pro Vice Chancellor on behalf of Promotions Committees, providing referees with electronic access to the candidate’s full application. Applicants should not request their referees to provide comments.”
The University submitted that these provisions do not create any obligation on the University to contact referees, or consider their views, as part of the promotion assessment. In context, the terms in clause 3.3 deal with preliminary matters, and provide instruction on [if required] who will determine the referees [ie the Dean], and who will contact the referees to arrange for the referee reports [i.e. People and Wellbeing, and not the applicant].
Relevantly, the University submitted that clause 3.8 of the Procedures provides that when assessing applicants for promotion, the Committee will have regard to the relevant criteria in Appendix 1. This does not refer to clause 3.3, and the criteria in Appendix 1 does not require consideration of a report from a referee/s.
The University submitted Clause 3.9 sets out the Committee Procedures and includes that ‘The relevant Promotions Committee will meet to consider all applications received and any referee reports, if requested.’ This supports the position that referee reports are only considered if the Committee requires them.
The Respondent contended at its highest, clause 3.9 indicates that the Committee may be required to consider referee reports if it is not satisfied that it has sufficient evidence to proceed with the assessment. The Committee has the discretion to determine if it has sufficient evidence to proceed. The Respondent submitted that there is nothing to indicate that the Committee did not have sufficient evidence to proceed with the assessment. Therefore, there was no need for the Committee to contact the Applicant’s referees. In the circumstances, to do so would have been a futile exercise.
In practice, when considering a promotion application, the University submitted the Committee usually does not call for referees. It is typically only required if the Committee is considering promoting an applicant but is having a particular difficulty in determining the applicant’s standing or contribution to a discipline/field and they require further independent judgement on an application.
The University submitted an applicant is required to provide the details of relevant referees so that the Committee may contact them, if needed, to provide further information, or verify any information provided with the Promotion Application. The discretion for the Committee to contact referees is not inconsistent with the applicant’s obligation to provide the referee’s details, as asserted by the Applicant.
It was submitted by the University that in the 2022 promotion round a referee report was only requested for 4 out of the 56 applications considered.
The University submitted they have not failed to comply with the Procedures as it was not a requirement to contact Dr Nahar’s referees.
Having considered the respective submissions in relation to whether the Respondent was required to contact the Applicant’s referees, it is the opinion of the Commission that the Respondent was not required to do so, and it was a matter within the discretion of the Respondent. The Respondent has not acted in a way that is inconsistent with any policy or procedure referred to in clause 42 of the Agreement by not contacting the Applicant’s referees.
Failing to have regard to Dr Nahar’s academic portfolio
The Applicant submitted Clause 3.6(ii) of the Procedures requires that an application for promotion must include the provision of an academic portfolio. There was no facility provided by the University for the provision of the Applicant's academic portfolio.
The University submitted that Dr Nahar has asserted that there was no facility provided by the University for the provision of her academic portfolio in the Promotion Application. The University does not agree.
It was submitted by the University that Prior to 2022, applicants would complete a document known as the academic portfolio (which was a manual word document). The information in the academic portfolio was used for a number of purposes including promotion applications, academic studies program (sabbatical), and academic review of performance.
The University submitted academic portfolio has now been developed into a digital space and renamed the academic dashboard (Dashboard). Much of the information in the Dashboard is drawn from existing University systems so the information is more reliable than a manually completed form. An academic can amend or include new information in their Dashboard by contacting the relevant systems owner or directly in some fields. The substance of the academic portfolio is materially the same as the Dashboard.
The University contended the change from the academic portfolio to the Dashboard was extensively communicated prior to the promotion application deadline in 2022. This included the University providing the following information about the promotion process, including to Dr Nahar:
a)12 May 2022 email from the Provost announcing that the 2022 Promotion round was open, which included clear instructions to:
i.check the details in your Dashboard, and update in Symplectic Elements where necessary; and
ii.ensure you are using the new Application and Case for Promotion Form, available from the website.
b)16 May 2022 email from the Griffith Business School (GBS):
i.providing the GBS promotion timelines;
iii.confirming changes to the Case for Promotion and academic portfolio processes;
iv.providing a link to the relevant information on the Academic Promotion website, which provided further information about the documentation requirements, including a document with clear instructions titled How to Capture Academic Portfolio Information in Academic Dashboard;
c)23 May 2022 information session for GBS, which focused on the application process; and
d)1 June 2022 information session for academic women, which focuses on content.
The University submitted that Dr Nahar had ample opportunity to include any information in the Dashboard that she wanted the Committee to consider as part of the Promotions Application. On the Application Form, Dr Nahar ticked the box confirming that ‘I have updated relevant information for my Academic Dashboard (Via Symplectic Elements)’. In an email on 17 April 2023, Dr Nahar acknowledged that the procedures for promotion were published and extensively communicated in advance of the 2022 promotion round.
The University submitted the Promotion Application form includes four separate areas where applicants can provide additional information in free text (up to 4000 words in total) to support their application. This has been increased from the previous limitation, which was one page per area using minimum 10pt font (4 pages in total). The areas include:
a)case for promotion;
b)achievements in learning and teaching;
c)achievements in research or scholarship; and
d)achievements in service and engagement.
The University submitted the Applicant used each of these areas on the Promotion Application form as part of her application.
The University submitted the Dashboard (previously the portfolio) is not considered by the Committee in isolation. In assessing a promotion application, typically the Committee first carefully considers all of the information provided in the Promotion Application form. The other documents provided with the application, such as the Dashboard, are considered as supporting information to verify or support the case put forward by the applicant in the Promotion Application form.
Having considered the respective submissions in relation to whether the University did not satisfy Clause 3.6(ii) of the Procedures (and therefore clause 42 of the Agreement) because it failed to provide a facility for the provision of the Applicant’s academic portfolio, it is the opinion of the Commission that the academic dashboard arrangement implemented by the University, and other arrangements put in place by the University as set out above, make clear the Applicant did have an opportunity to provide her academic portfolio as part of her application. The University has not acted inconsistently with a policy or procedure referred to in clause 42 of the Agreement in respect to this issue.
Failing to have regard to Dr Nahar’s summary pages from teaching experience surveys (SET & SEC)
It was submitted by the Applicant that Clause 3.6(vi) of the Procedures requires that an application for promotion must include summary pages from teaching experience surveys (SET & SEC) from the previous 3 trimesters of teaching which may include students' open ended comments. There was no facility provided by the University for the provision of these documents. The University does not agree, and submitted that SET and SEC summaries and average scores are imported from the University’s student system directly to the Dashboard.
It was submitted by the University that the student open ended comments are not automatically included in the Dashboard. It was submitted the Applicant could have viewed the information on her Dashboard at any time, and observed that the summary of the student comments were not included. It was submitted these comments are not automatically included as they are often copious, out of context and can at times be very critical of an academic. The Applicant’s Promotion Application was submitted by email, and the Applicant could have included the student open ended comments if she wished to. The Applicant choose not to do this.
The University submitted it is noted that it is not for the Committee to search through lengthy supporting documents in an attempt to identify achievements or information that has not been included in the Promotion Application form. It is the responsibility of the applicant to highlight their achievements in their Promotion Application form. This is reiterated to academics in the promotion information sessions. Had the Applicant wanted the Committee to consider certain student comments, she could have included these in her Promotion Application form, and extracts with her Promotion Application.
I agree with the University that the process followed has not failed to meet the requirements of Clause 3.6(vi) of the Procedures and therefore clause 42 of the Agreement. The Applicant had an opportunity to provide view the summary of the student comments on the Dashboard and supplement those with further material including open ended comments from students if she wished to do so.
Failed to comply with procedural fairness
In the minute extract of the considerations of the Group Promotions Committee provided to the Applicant, it is noted that:
“The Committee … expressed concerns with ... some inconsistencies between the narrative provided and the evidence results from recorded SET/SEC results.
… the Committee noted that there is limited evidence of good quality publications and remarked some further inconsistencies between the narrative and the evidence reported in the dashboard. The Committee encouraged Dr Nahar to focus her publication strategy on good quality outlets, avoiding lower ranked journals.”
It was submitted by the Applicant that procedural fairness requires that the Applicant should have been given the opportunity to respond to any alleged inconsistencies before the reaching of adverse conclusions against her, and this did not occur.
The University submitted that Dr Nahar has asserted that the University has not complied with the Agreement, because the Committee has failed to provide her with procedural fairness by not seeking her response to its view that there were inconsistencies in her Promotion Application.
The University submitted there is no requirement in the Agreement, the Policy or the Procedures for the Committee to seek a response from an applicant on its proposed recommendation or its views prior to making a final decision about the recommendation. This would be highly unusual, and inequitable if other applicants were not provided with the same opportunity.
Firstly, the Respondent submits that the Committee’s recommendation was ethical and ensured fairness in decision making, and was otherwise in accordance with the principles in its Code of Conduct. The Respondent denies that there is any basis whatsoever for the Applicant to assert that the decision was not ethical or fair. The recommendation was made in a way that was consistent with other applications and was in accordance with the Procedures.
Secondly, the Respondent submits this dispute relates to the Respondent’s compliance with the clause 42 of the Agreement, and namely, whether the Promotion Policy and Procedures were complied with. This is not a dispute about whether the Respondent complied with its Code of Conduct, and there is no requirement under the Procedures or the Agreement for it to do so in relation to promotion recommendations or decisions.
The Respondent again denies that the Committee was required to provide the Applicant with an opportunity to respond to any alleged inconsistencies before making a decision to recommend not to promote the Applicant. The Respondent submitted there is no such requirement under the Agreement, the Policy or Procedures, and to impose such an obligation would be introducing a new step in the Procedure. No other applicant was provided with this opportunity.
Further, the Respondent submits that a decision not to promote the Applicant was not an adverse decision against her, as alleged by the Applicant. The decision did not impose any adverse outcome by way of reduction in the Applicant’s current terms and conditions. The Applicant remains in her current position and is not being disadvantaged by the decision (eg she has not been demoted or dismissed).
The Applicant submits she has not been afforded procedural fairness. It is sufficiently clear from the material that the Applicant was treated no differently to other Applicants in the procedure the University has followed, and that the University is not in the practice of providing an opportunity to respond to reasons given for not being successful in promotion applications. This ground does not support a conclusion that the University has failed to meet its requirements under any policies, procedures and guidelines or clause 42 of the Agreement.
Regard to criteria not specified in the Procedures
It was submitted by the Applicant that the Group Promotions Committee has relied on a criteria not contained in the Procedures, namely the publication by the Applicant of “good quality publications”.
Criteria Number 2 in Appendix 1 to the Procedures provides that the criteria for promotion for:
· meritorious research may include publication in peer refereed journals; and
· meritorious scholarship may include publishing papers related to professional and industry practice in peer-reviewed and/or non-refereed journals.
The Applicant submitted the criteria applied by the Group Promotions Committee did not comply with the above criteria. Procedural fairness required that the Applicant should have been given the opportunity to respond to any perceived deficiency in her publications which otherwise met the criteria in the Procedures before the reaching of an adverse conclusion against her. These issues are particularly significant given that:
· the Procedures require that consideration of research quality and impact must be relevant to each staff member's discipline; and
· the Committee was deprived of any view about these matters due to the failure to contact any referee and the absence of an accounting academic on the Committee.
The University submitted Dr Nahar has asserted that the Committee has relied on criteria not contained in the Procedures, being that Dr Nahar’s publication/s were not good quality publications. The University does not agree.
Appendix 1 of the Procedures sets out the criteria that the Committee will have regard to when assessing applicants for promotion. Appendix 1 includes:
a.Clause 1 (Introduction) The academic promotion policy seeks to recognise and reward academic work according to its quality and impact.
b.Clause 2 (Criteria), under the heading Research Promotion for meritorious research will be assessed according to research quality and impact, commensurate with a staff member’s individual work allocation. Quality and impact measures must be relevant and sensitive to each staff member’s discipline. These may include but are not limited to:
c.Publications in peer refereed journals
d.…..
The University submitted that as it understands the argument, Dr Nahar asserts that the Committee must only consider whether an applicant has published in a peer refereed journal, and is not entitled to consider the nature or quality of the journal. The University disagrees with this interpretation.
The University submitted that read in context with the other terms in Appendix 1, the Committee is required to take into account quality and impact as an overarching consideration, including when considering research and publications. Merely taking into account publication in a peer referred journal, without regard to the quality or relevance of the publication, would be inconsistent with the criteria in the Procedures.
The University noted that Dr Nahar’s work profile does not include scholarship and she did not apply for promotion on the basis of scholarship, therefore, despite the reference in the Form F10, the criteria in clause 2 under the heading scholarship is not relevant to this dispute.
The University submitted in accordance with the Appeals on Non-promotion of Academic and Research Only Academic Staff, the academic merits of the case for promotion and the judgement of the Committee or the decision maker is not open to an appeal. The University considers that the interpretation and weighting of one or more criteria specified in the Procedures is a matter of the Committee’s judgement and deliberation.
The Respondent also denies that it was required to provide the Applicant with an opportunity to respond to any perceived deficiency in her publications. There is no such requirement under the Agreement, the Policy or Procedures, and to impose such an obligation would be introducing a new step in the Procedures. No other applicant was provided with this opportunity.
As part of the assessment of the Promotion Application, the Respondent submitted the Committee has the discretion to determine, and take into account, the quality of the publications that an applicant has published in. This is a matter relevant to the merits of the decision not to recommend the Applicant for promotion. This dispute is limited to whether the Procedures were complied with and a consideration of the merits of the Committee’s decision goes beyond the matters that may be subject to this dispute.
Regardless, the University contended that the Applicant’s assertion that the Committee was not capable of considering the research quality and impact relevant to the Applicant’s discipline is rejected. The Griffith Business School Promotion Committee is made up of six academics, consisting of five Professors and one Senior Lecturer. The Committee positions include the Dean (Academic) as Chair, Dean (Learning and Teaching), Dean (Research), Dean (Engagement), an elected member from within the academic staff of the group, and a member nominated by the National Tertiary Education Union. This membership is consistent with the Committee Constitution and the requirement to have gender balance. These Committee members are sufficiently qualified to assess the quality of a publication within a business discipline such as accounting. Further, two of the Committee members previously held the position of Head of the Department of Accounting, Finance and Economics.
I do not accept the submission that the approach adopted by the Committee in relation to the Committees view about the quality of publications is inconsistent with the terms of the Agreement on procedural fairness grounds on the same basis as the same submissions has been rejected earlier.
I also agree with the University submission that the substance of the criticism made by the Applicant concerning the Committees commentary in relation to the quality of publications goes to the merit of the decision of the Committee, and that is not a matter that is within the jurisdiction of the Commission.
Opportunity to meet with the Chair of the Promotions Committee or Pro Vice Chancellor
The Applicant contends she was not provided with the opportunity to meet with the Chair of the Promotions Committee or the Pro Vice Chancellor to discuss the grounds for the decision and what activities she might undertake to endeavour to satisfy the criteria on a future occasion, as required by clause 3.9 of the Procedures.
The University submitted all applicants are personally contacted by the Chair of the Committee, or the Group Pro Vice Chancellor to inform them of the outcome. At that time, unsuccessful applicants are provided with the brief reasons that their application was unsuccessful and invited to meet at a later time to discuss in more detail and seek guidance on future applications. This opportunity to meet is confirmed in the formal outcome letter provided after the discussion.
The Applicant’s submission concerning clause 3.9 of the Procedures is not made out. To the extent that it may be suggested that a meeting is required before a decision is made, no such requirement exists. To the extent that it may be suggested no opportunity to meet has been provided, the University has explained how such an offer is made. In any event, in the course of the conference before the Commission the University was clear that it was willing to facilitate the process moving forward is the Applicant wished to take that opportunity.
Conclusion
The Commission is satisfied that in relation to the matters raised by the Applicant in this dispute, that the University has satisfied the requirements of clause 42 of the Agreement.
COMMISSIONER
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