Fisher v Edith Cowan University
[1996] IRCA 417
•05 September 1996
DECISION NO: 417/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - academic employed on series of contiguous fixed term contracts - ongoing position subject to merit selection at regular intervals - selection process - whether VALID REASON FOR TERMINATION - REINSTATEMENT
Industrial Relations Act 1988 (C'th) ss 170DC, 170DE, 170EA
Industrial Relations Court Rules Order 20, rule 2(1)(a)
Brodie-Hanns v MTV Publishing Ltd, Marshall J, IRCA 585/95, 31 October 1995, unreported.
Denavi v John Stephens Catering Equipment Pty Ltd, 6 June 1995, IRCA 243/95, Parkinson JR, unreported.
Hunt v Steggles Ltd, 9 August 1995, Parkinson JR, IRCA 358/95, unreported.
Hunter Valley Developments Pty Ltd v Cowan (1984) 3 FCR 344.
Michael Turner v K & J Trucks, Coffs Harbour Pty Ltd, Beazley J, IRCA 360/95, 10 August 1995, unreported.
Nelson v Scholle Industries (1995) 64 IR 9.
Transport Workers Union of Australia v National Dairies Ltd No.2 (1994) 57 IR 186.
NATIONAL TERTIARY EDUCATION INDUSTRY UNION ON BEHALF OF MS LYNN FISHER v EDITH COWAN UNIVERSITY - WI 1061 of 1996
Before: BOON JR
Place: PERTH
Date: 5 SEPTEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1061 of 1996
B E T W E E N:
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
ON BEHALF OF MS LYNN FISHER
Applicant
A N D:
EDITH COWAN UNIVERSITY
Respondent
MINUTE OF ORDERS
5 September 1996 BOON JR
THE COURT ORDERS THAT:
Edith Cowan University reinstate Ms Fisher by appointing her to a position on terms and conditions no less favourable than those on which she was employed immediately before the termination within 14 days of the date of this order.
Ms Fisher's employment for all purposes be treated as having been continuous from the date of termination until the date of reinstatement.
Edith Cowan University pay to Ms Fisher the remuneration lost by her because of the termination within 28 days of the date of this order, such remuneration lost being calculated on the basis that Ms Fisher has received a gross income of $500 per week since the date on which she commenced working as a director for Protex Pty Ltd.
If the parties cannot agree on a figure for the remuneration lost within 21 days of the date of this order, there be liberty to apply at short notice before me for a determination of that matter.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1061 of 1996
B E T W E E N:
LYNN FISHER
1st Applicant
AND
NATIONAL TERTIARY EDUCATION INDUSTRY UNION - ECU BRANCH
2nd Applicant
A N D:
EDITH COWAN UNIVERSITY
Respondent
REASONS FOR JUDGMENT
5 SEPTEMBER 1996 BOON JR
INTRODUCTION
This is an application under section 170EA of the Industrial Relations Act 1988 (C'th) ("the Act"). The applicant seeks compensation and reinstatement arising out of the alleged termination of her employment by the respondent.
By notice of motion dated 4 July 1996, the respondent moved for orders as follows:
"1.The proceeding be dismissed pursuant to Order 20 rule 2(1)(a).
2.Such further orders as this Honourable Court sees fit."
The affidavit supporting the notice of motion alleged that there had been no "termination of employment at the initiative of the employer".
That matter was listed before Judicial Registrar Ritter on 9 July 1996. On 16 July 1996 Ritter JR made orders as follows:
"1.The notice of motion of the respondent, filed on 4 July 1996, is dismissed.
2.The further hearing of this application be held at such time and in such manner as directed by the Court."
On 25 July 1996, District Registrar Richardson made an order that the matter be listed for hearing on 22 and 23 August 1996 before Ritter JR.
The respondent filed a further notice of motion dated 19 August 1996, seeking orders as follows:
"1.That the hearing dates be vacated, and the proceeding be subsequently relisted before a judicial registrar other than Judicial Registrar Ritter.
2.That the period of notice required for the making of this application under Order 19 rule 3 be abridged."
The grounds upon which that application was made were that Judicial Registrar Ritter's sister, Ms Nicola Ritter, a former employee of Edith Cowan University, had filed an application in this Court alleging unlawful termination of her employment.
The notice of motion was heard by Judicial Registrar Ritter on 22 August 1996. On 23 August 1996, Ritter JR made the following orders:
"1.The period of notice required for the making of this application under Order 19 rule 3 be abridged;
2.The balance of the hearing of the application under section 170EA of the Act is adjourned for hearing before another judicial registrar on 26 August 1996 at 10.00 am."
Ritter JR came to the conclusion that either the respondent or a well informed or reasonable member of the public could form the impression that he may not, if he continued to hear the matter, bring an impartial mind to bear upon the questions at issue.
District Registrar Richardson assigned the matter to me for hearing on 26 and 27 August 1996. I was unable to sit on 26 August 1996 because I was ill. I asked District Registrar Richardson, however, to inform the parties on that day that my brother is an employee of Edith Cowan University. At that stage, I was unaware of the status of my brother's employment.
When the parties came before me on 27 August 1996, I stated in open court that my brother was employed by the respondent. The parties had had sufficient time to investigate my brother's status at the university. I am informed that my brother is on a fixed term contract. However, neither party had any objection to my hearing the matter. My brother's situation differs from that of Ms Ritter, in that he does not have any application before this Court. In these circumstances, I was satisfied that it was appropriate for me to hear the matter.
THE ISSUES
Ms Fisher was represented by Mr W Claydon and Mr N Hodgson of the National Tertiary Education Industry Union. The respondent was represented by a barrister, Mr R Millar.
Mr Hodgson and Mr Claydon indicated that the applicant alleged that the provisions of the Industrial Relations Act had been breached in a number of ways. In the first place, it was said that there was no valid reason for the termination, as required by the provisions of s 170DE(1). Secondly, it was said that the termination was, in any event, harsh, unjust or unreasonable within the meaning of those words in s 170DE(2). Further, the applicants alleged that the applicant was not given an opportunity to respond to any allegations against her performance or conduct, as required by the provision of s 170DC.
The respondent's position was that as it had never had any concerns relating to Ms Fisher's conduct or performance, the provisions of s 170DC do not apply. The respondent further states that there was a valid reason for the termination in that its operational requirements required it to advertise the position formerly held by Ms Fisher. Ms Fisher was one of two candidates for the position, and was interviewed, along with the successful candidate. A selection committee consisting of eight people had considered each application and had come to the conclusion that the present incumbent of the position was the superior candidate. Ms Fisher had been employed under a series of fixed term contracts. The respondent argued that in these circumstances it was not harsh, unjust or unreasonable to terminate Ms Fisher's employment.
The respondent further raises two jurisdictional issues. In the first place, notwithstanding Judicial Registrar Ritter's decision of 16 July 1996, the respondent still says that this Court as presently constituted must satisfy itself that the application is properly before it. By the end of this hearing, the respondent still took the view that it was arguable that there had been no termination at the initiative of the employer.
The second jurisdictional point was that as Judicial Registrar Ritter held on 16 July 1996 that the act of termination occurred on 31 October 1995, and as the application in this Court was not filed until 12 January 1996, the application is out of time.
The applicant's argument in relation to that question was that a letter from the respondent to Ms Fisher dated 31 October 1995 did not constitute a written notice of termination. In these circumstances, the application was not out of time. If this Court were to hold that the application was out of time, however, the applicant submitted that it is just and equitable in all the circumstances for an extension of time to be granted for the filing of the substantive application.
TERMINATION AT THE INITIATIVE OF THE EMPLOYER
At the start of the hearing of this matter, I raised with the parties the question of the jurisdictional issue of whether or not there had been a termination at the initiative of the employer. This jurisdictional issue was first raised by a notice of motion, brought pursuant to Order 20, rule 2(1)(a) of the Industrial Relations Court Rules. That sub-rule states as follows:
2(1)[Court may order stay or dismissal of proceeding]
Where, in any proceeding, it appears to the Court that in relation to the proceeding generally, or in relation to any claim for relief in the proceeding:
(a) No reasonable cause of action is disclosed . . .
The Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding."
I indicated to the parties that my first thought was that the issue to be decided under that sub-rule, namely, whether no reasonable cause of action was disclosed, might be different from the issue of whether or not, on the balance of probabilities, there had been a termination at the initiative of the employer. However, upon reading Judicial Registrar Ritter's decision of 16 July 1996, it appears that the parties agreed before him on 9 July 1996 that the question of whether or not there had been a termination at the initiative of the employer was to be heard and determined as a preliminary issue in relation to the substantive proceedings. At page 2 of his decision, Ritter JR states as follows:
"The notice of motion was returnable at 10.00 am on 8 July 1996. By agreement between the parties, the notice of motion was, in effect, heard as a preliminary issue."
On page 7 of his decision, Ritter JR refers to the respondent's assertion that "this is not a case where the Court has jurisdiction under section 170EA(1) of the Act". At pages 53 to 54, Ritter JR states:
"It follows from what I have set out earlier in this judgment that I do not accept the respondent's submission that there is no reasonable cause of action disclosed by the summary of facts filed by the applicant, amplified by the affidavit of Ms Fisher, and taking into account the affidavit and oral evidence of Dr Gibbs and the submissions of the respondent.
This means that the Court has jurisdiction to hear the application under s 170EA of the Act. This does not, of course, mean or indicate in any way that the applicant has any particular prospect of success with the application under s 170EA. All that this judgment does is determine that the Court has jurisdiction to hear the application under s 170EA.
Whether or not the termination of the employment relationship by the respondent was lawful is a separate matter. This will, of course, depend on whether there has been a breach of any particular section of the Act, including ss 170DC and 170DE. These are not matters on which I have, as yet, considered any evidence."
When I raised this matter with the parties, they agreed that the matter was to proceed on the basis that that particular jurisdictional question had already been determined.
Evidence was heard on behalf of the applicant on that day. The case for the applicant was closed, and some evidence was heard on behalf of the respondent.
On the following morning, 28 August 1996, counsel for the respondent, Mr Millar, indicated that he had sought instructions overnight in relation to the issue raised by me at the outset of the hearing. His instructions were that there had been no agreement that the question of whether or not there was a termination at the initiative of the employer be disposed of by Judicial Registrar Ritter at the earlier hearing.
It was submitted by Mr Millar that the issue was still a live one and, although the respondent did not wish to make further detailed submissions in relation to the matter, it did not accept that there had been a termination at the initiative of the employer. I indicated my surprise that this matter was brought up well after the applicant's case had been closed, and after the parties had initially agreed that the matter had already been determined. Mr Millar argued that this Court as presently constituted must still satisfy itself that it has jurisdiction and that the matter is properly before it. I indicated that I was not prepared to re-open the issue, in view of what the parties had agreed on the previous morning. The hearing had proceeded on the basis that I was bound by Ritter JR's determination of that issue. I indicated that in any event, I had read Ritter JR's reasons for decision dated 16 July 1996, and I was satisfied that the matter was properly before me.
THE EVIDENCE
Ms Fisher was the only person to give evidence on behalf of the applicants. Ms Fisher's evidence was contained in an affidavit sworn 5 July 1996, and she also gave evidence verbally.
Ms Fisher's evidence was that she had been employed by Edith Cowan University on contiguous, one year contracts from 1 January 1993 until 31 December 1995 as a Lecturer, Level B in Academic Dance Studies in the Academy of Performing Arts. The Academy of Performing Arts is part of the Edith Cowan University. The terms of Ms Fisher's employment with Edith Cowan University were summarised in offers of appointment from the Director of the Academy of Performing Arts. Those offers were dated 23 December 1992, 19 November 1993 and 27 October 1994.
On or about 23 June 1995, Ms Fisher was advised in writing by Duncan Ord, Dean of the School of Dramatic Arts, that her position as a lecturer in dance studies would be readvertised for a further period of three years. That advice was set out in a memorandum dated 23 June 1995. In that memorandum, Mr Ord stated to Ms Fisher: ". . . obviously, I would strongly encourage you to apply. At that time, it was unknown to Ms Fisher that Mr Ord was acting according to the university's policy known as Advance Notice of Contract Renewal.
Dr Gregory Cant, the Assistant Director of Human Resources at the Edith Cowan University, gave evidence that the policy related to the university's academic staff, and involved the university in a two-step process; firstly, to decide whether or not the position was ongoing and secondly, sending a reminder to the incumbent of the position that the contractual period was coming to an end. The reminder was sent out at least six months in advance. The policy states that the Dean of the faculty, in consultation with the head of the school and chairperson of the department, will determine whether the position is ongoing. If the position is ongoing, a recommendation is made to the Vice-Chancellor about whether the incumbent will be offered a further contract or the position be advertised externally. However, when an academic staff member is employed on a contract for one year or less, those provisions do not apply.
Dr Geoffrey Gibbs, the Director of the WA Academy of Performing Arts, gave evidence that prior to 1995 a committee could decide whether or not a contract would be rolled over without the position being advertised. This caused some discontent amongst those staff members whose positions had been advertised instead of having been rolled over. A decision was made in the course of 1995 in relation to all contracts for 12 months or less that the position would be advertised and a merit selection process would be undertaken. This is what happened to Ms Fisher's position, as her contracts had each always been for a period of 12 months only.
On or about 16 September 1995, Ms Fisher's position was advertised in the newspaper. The advertisement stated that the position was as "Lecturer-Dance (Classical)" and stated:
"The appointee will be responsible for teaching classical dance in bachelor of arts, diploma and certificate courses and will have had successful teaching experience at a recognised institution for the training of the professional dancer or choreographer and/or a career as a professional company-based dancer/choreographer."
Ms Fisher said that she was surprised but not concerned or worried about her position being advertised. Her position had always been rolled over in the past. At the time, she did not think much about the fact that her job was being advertised. Ms Fisher sought and obtained copies of the selection criteria and duty statement for the position. The selection criteria are as follows:
"1.QUALIFICATIONS
1.1 Appropriate qualifications in Dance History, Criticism or Analysis
(DESIRABLE)
2.EXPERIENCE
2.1 Experience as a teacher in a major tertiary dance teaching institution
(ESSENTIAL)
3.SKILLS/ABILITIES
3.1 Capacity to contribute to the administration of the department
(ESSENTIAL)
4.KNOWLEDGE
4.1 Extensive knowledge of the Australian dance profession and capacity to assist in the placement of graduates
(ESSENTIAL)
5.OTHER
5.1 Outstanding record as a dancer, dance administrator or critic
(ESSENTIAL)
5.2 Understanding of and commitment to the Academy wide arts training curriculum
(DESIRABLE)"
The duty statement states as follows:
"The appointee will be responsible to the Director of the Western Australian Academy of Performing Arts through the Dean of the School of Dramatic Arts and the Head of Department for Dance for :
1.Coordinating the Dance Department's academic programme in Degree and Diploma and Certificate courses.
2.Teaching Dance History, Dance Criticism and Analysis.
3.Assisting the Head of Department with timetabling and other administrative matters within the Department of Dance.
4.Liaising with dance teaching institutions nationally and internationally to ensure the Dance Department keeps abreast of world developments in dance curriculum.
5.Maintaining professional contact and/or academic qualifications.
6.Contribution to the wider arts training offered within the academy."
Ms Fisher formally applied for the position. She received a letter from Dr Gibbs, advising that she had been short-listed for interview.
On Monday, 30 October 1995, Ms Fisher attended the selection committee for an interview. The selection committee comprised eight people, four of whom (including Dr Gibbs, Nanette Hassell and Duncan Ord) were from the academy itself. There was another person, Mr Shane Colquhoun, who represented the dance industry; and Ron Oliver, who represented the Vice-Chancellor. It appears that Mr Oliver was from another faculty entirely and had no particular experience in dance. The other two members of the selection committee were Linley Lord, representing the equal employment opportunity and Christine Cameron, representing human resource management. Ms Lord and Ms Cameron were not entitled to vote, although they were entitled to participate in the discussions of the committee. They were there to ensure that the process was fair and complied with equal opportunity policies and human resource management policies.
There were only two applicants for the position, Ms Fisher and the person who was eventually appointed. The successful applicant was resident in London, and was interviewed by telephone.
Ms Fisher received a letter from Dr Gibbs dated 31 October 1995, advising her that she was unsuccessful in securing the position. Ms Fisher's evidence was that she was shocked and angry upon receiving the letter. She felt that Dr Gibbs' letter was curt. This was the first official comment she had received from the selection committee. After the interview, Nanette Hassell had said to Ms Fisher, "You gave the most fantastic interview." Ms Fisher said she could not believe she had been treated in this way. Her evidence was that she had always been led to believe that she was part of a team, and she felt she had been "led down the garden path". Ms Fisher's evidence was that it was absolutely devastating, especially as she had always been told what an excellent job she was doing.
After receiving the letter dated 31 October 1995, Ms Fisher sought post-interview counselling on 1 November 1995. At first, she met with Nanette Hassell and then at 1 pm, she met with Duncan Ord. Nanette Hassell advised Ms Fisher who the successful candidate had been. Ms Fisher said that she knew her. According to Ms Fisher, Ms Hassell asked what Ms Fisher thought of the successful candidate. Ms Fisher raised some concerns in relation to an alleged medical condition suffered by the successful candidate. According to Ms Fisher, Ms Hassell was very worried and said she would look into it. Ms Fisher said that she asked Ms Hassell why she did not get the job and Ms Hassell said that Ms Fisher had beaten the other candidate on all selection criteria but that it was felt by the selection panel that there was a perceived need that the university have an international perspective. Ms Hassell did not give evidence, and I accept Ms Fisher's evidence in this regard. Ms Fisher became concerned because there had been nothing in the selection criteria about "an international point of view".
Ms Fisher's next meeting was with Duncan Ord, and she asked him what had happened. According to Ms Fisher, Mr Ord said that the successful candidate had told a wonderful story, they had all been carried away, and the forces were against Ms Fisher. Mr Ord also did not give evidence, and I accept Ms Fisher's evidence in this regard.
On November 1, Ms Fisher then had a meeting with Dr Gibbs. According to Ms Fisher, by that point in time Nanette Hassell and Duncan Ord had passed her comments on to Dr Gibbs. According to Ms Fisher, Dr Gibbs indicated that they had made enquiries in London and said that it seemed that the points raised by Ms Fisher in relation to the successful candidate's medical condition had some substance. According to Ms Fisher, Dr Gibbs said that they were still working on it, and that they were going to try to have the offer to the successful candidate withdrawn on the basis that she had misrepresented herself. Ms Fisher's evidence was that Dr Gibbs said, "If we can get out of this one, will you take the job back?" The meeting ended there.
Dr Gibbs' version of the interview of 1 November 1995 was that Ms Fisher came in and said that she was upset and that his letter to her had been cold and impartial. Dr Gibbs said that it had been a difficult letter to write. According to Dr Gibbs, Ms Fisher asked him who got the job and when he told her, she behaved in an extraordinary manner. Ms Fisher said that the successful candidate had serious problems and that the university had made a mistake. Dr Gibbs said that he told Ms Fisher that none of this had surfaced in the interview and, if the allegations were true, the university may be in a position that they would have to talk to Ms Fisher again. Dr Gibbs said that he could not base the decision on gossip or rumour. Dr Gibbs said that he checked out the allegations about the successful candidate and he found "no substance to the allegations in regard to the discharge of her duties at the school". The successful candidate's medical condition was not such as to make her not able to discharge her duties properly.
I infer from this evidence that the successful candidate might indeed suffer from the medical condition alleged by Ms Fisher, but that her English employers had not told Dr Gibbs that it had affected her ability to do her work. When he was asked whether he recollected saying to Ms Fisher that the allegation had substance, Dr Gibbs said that he could not recollect. He said that the allegation may have been appropriate in terms of her medical condition. He said that, "in terms of equal opportunity, however, you cannot refuse someone a job if the condition does not impede on their ability to do their work." Dr Gibbs said he told Ms Fisher that if it proved to be that what she was saying was accurate, the university may be in a position to talk to her later. He asked if Ms Fisher would be interested in that event.
The versions of the meeting of 1 November 1995 given by Ms Fisher and Dr Gibbs do not differ greatly. I accept Ms Fisher's evidence that she only raised her concerns about the successful candidate's medical condition when asked by Ms Hassell what her opinion of the successful candidate was. Although Dr Gibbs felt that Ms Fisher behaved in an extraordinary manner, it appears that there was some substance to the allegations. Ms Fisher did not raise it until she was asked her opinion, and this must all be seen in the light of her being very distressed at being unsuccessful in her application.
By letter dated 6 November 1995, Ms Fisher wrote to Professor Leonie Still, Deputy Vice-Chancellor (Staffing), concerning the selection processes and the outcome for the position in academic dance studies. This was a lengthy letter. In particular, Ms Fisher stated in her letter that "I collected feedback from the heads of department, schools and faculty on my lack of success in winning the position, and I believe that the decision was not made according to the selection criteria". Further on, Ms Fisher states, "If the academy had followed proper procedures, and had offered the position to a candidate who was better qualified according to the selection criteria, I would graciously accept the outcome. This is not the case." Ms Fisher indicated that the successful candidate was an applicant for a job in the Academy in the previous year and, as Ms Fisher had been on the selection panel, she was familiar with her CV. In her letter to Professor Still, Ms Fisher went through the selection criteria and stated for each criterion what her qualifications were, what she believed the successful candidate's qualifications were, and why she considered that she herself was the superior candidate.
Dr Gibbs gave evidence on behalf of the respondent in relation to what happened at the selection committee interview. Dr Gibbs stated that he was the person who had drafted the selection criteria, and he drafted the questions to be asked at the interview. Each candidate was asked the same questions. He said that the selection criteria were important for the selection panel. The selection panel was chosen according to university policy. At the end of the session in which the panel members asked the interviewee the questions, the applicant was asked if he or she wanted to ask any questions, or if he or she wanted to raise anything.
Dr Gibbs gave evidence that the selection panel members discussed each candidate in relation to each criterion, and assessed their relative merits. He was able to remember the results of the committee decision in relation to each criterion in that he could remember whether the committee ranked Ms Fisher or the other candidate higher or equal in relation to each criterion, but he was unable to remember details of the relative merits of each candidate or why the selection panel arrived at the rankings. Dr Gibbs said that if he was to have the successful candidate's written application before him, he would be able to remember those details. Counsel for the respondent, Mr Millar, indicated that the written application of the successful candidate was not present in Court.
I offered to adjourn the matter until the following day, particularly in light of the fact that this Court was sitting late in an attempt to finish the evidence of Dr Gibbs. Mr Millar indicated that he did not wish the matter adjourned and that he would call another member of the selection panel the following day and make the application referred to available to that witness, in order to explain the decision-making process. Dr Gibbs' view was that the selection panel discussed each criterion fairly, and made a decision based on the written applications, the verbal interviews and other materials such as referees' reports. Ms Fisher maintains that the selection criteria were not applied properly.
As I have already indicated, in her letter to Professor Still, Ms Fisher sets out each criterion and assesses the relative merits of the other candidate and herself. For example, in relation to the first criterion, "1.1, Appropriate qualifications in dance history, criticism or analysis (desirable)", Ms Fisher referred to the fact that her formal qualifications are as follows: Master of Arts from the University of Western Australia, 1992, with a thesis on the topic "Dance Class - A History of Professional Dance and Dance Training in Western Australia from 1885 to 1940"; Master of Education, University of Alberta, 1976, with a thesis on the topic, "The Effects of Creative Dance Experiences on Selected Aspects of Creative Writing"; a Bachelor of Education, University of Alberta, 1973; and substantial progress on her PhD in the area of dance history.
Dr Gibbs stated that the committee ranked the other candidate superior on the qualifications criterion. He could not remember the successful candidate's qualifications. The formal application which was tendered on the following day, however, shows that the successful candidate holds a Bachelor of Arts with first class Honours in English literature from the University of New Brunswick, Canada; a Diploma in Theatre Production from the Royal Academy of Dramatic Art, London, UK; teaching accreditation from the Ministry of Education, UK; and some MA studies in drama, television and in journalism. It appears that the successful candidate does not hold any degree higher than a Bachelor degree.
When asked to explain why Ms Fisher was ranked lower when she had two Masters degrees and substantial progress towards a PhD, Dr Gibbs stated that a Masters degree may have little bearing on the ability to teach dance history, criticism or analysis. Earlier in his evidence, he said that the panel looks at qualifications and compares them with experience - for example, 15 years in the Australian Ballet would equal a Masters degree. Although the successful candidate has substantial experience in journalism, broadcasting on radio and TV and some teaching, some of which relates to dance and most of which relates to the performing arts, it is difficult for me to see why the committee would have ranked the successful candidate as having higher qualifications for the position than Ms Fisher, who has Masters degrees in education and history, both specialising in dance history, plus substantial progress towards a PhD. Dr Gibbs' evidence was not particularly helpful in this regard.
Dr Gibbs said that the appropriate academic qualifications were anything from a PhD to a diploma in dance, but that the important thing was that the training and qualifications empowered the lecturer in the field to be taught.
I do not intend to criticise Dr Gibbs, as a considerable period of time has elapsed since the committee sat. However, as Director of the WA Academy of Performing Arts, chairperson of the selection panel and in view of the concerns raised all along by Ms Fisher in relation to the selection process, of which Dr Gibbs admitted he was aware, it is difficult to see why there was apparently no attempt made to refresh the memory of Dr Gibbs in relation to these matters.
I do not intend to go through each selection criterion with a fine-toothed comb to try to assess the relative merits of each candidate. I do, however, have some concerns about the decisions made by the committee which, on the face of the material provided to me, would seem difficult to justify. For example, as to criterion 4, "extensive knowledge of the Australian dance profession and capacity to assist in the placement of graduates", the successful candidate was ranked as superior to Ms Fisher. This is despite the fact that the successful candidate has resided overseas for the past 25 years and only makes occasional flying visits to Australia. Ms Fisher herself has resided in this country for many years and has been actively involved in the Australian dance industry, and has researched it, for a considerable period of time.
Dr Gibbs' explanation was that the other candidate in her interview proved that her knowledge of Australian dance was comprehensive and equal to that of Ms Fisher. It was felt that her capacity to assist in the placement of graduates was superior to Ms Fisher's, as an important part of the placement of graduates is to have training in the international arena. The successful candidate had many contacts overseas, and was seen to have the potential to assist in placement of graduates overseas.
Dr Gibbs said that he had been a great supporter of Ms Fisher's growth as a critic and dance historian over the years, but that the school's demands were now beyond what Ms Fisher could provide. Dr Gibbs seemed to relate that comment to the introduction of the Honours and Masters programs at the Academy of Performing Arts. Ms Fisher's evidence was that she had, at the request of the management, devised and written the Academy's Masters and Honours programs during 1995. Dr Gibbs said that the committee felt that the successful candidate was in a better position to develop those programs, and could take them beyond Ms Fisher's capabilities. Dr Gibbs said that the successful candidate could take the school beyond what Ms Fisher could achieve. Dr Gibbs, in his evidence, made several references to the successful applicant's international experience and contacts. It appears that this was seen to be important by the committee. There was, however, nothing in the selection criteria to indicate this and, in fact, the selection criteria emphasised knowledge of the Australian dance scene.
There was no written selection panel report in relation to the applicants, other than a one-page memorandum from Dr Gibbs, setting out the outcome in that the other candidate was the preferred candidate. It did not set out the reasons for that outcome. A memorandum dated 20 November 1995 from Linley Lord, Manager of Equal Opportunities, to the Director of Human Resources, states in part, "The final decision to offer the contract to the other person was on the basis of the person's international reputation in the area." All correspondence from the university to Ms Fisher indicated that in its opinion, the university observed due process. At no stage was any attempt made to discuss in detail the concerns raised by Ms Fisher.
On Wednesday, 28 August 1996 when the hearing in this matter resumed, Mr Millar for the respondents indicated that Duncan Ord was unavailable to give evidence on that day. I indicated that I had checked with the District Registrar and I was available for the rest of the week, if necessary, and offered to have the matter stood over until the next day so that Mr Ord could be called. That offer was declined. Further, Linley Lord was apparently unavailable. The only other witness called on behalf of the respondent was Dr Cant, who has only been employed by Edith Cowan University since March of 1996. He produced the university's file in relation to the applications for the position of Lecturer, Dance Studies. He produced the written application received by the university from the present incumbent of the position. Dr Cant was, of course, unable to provide any further details in relation to the decision-making process which occurred before he commenced work at Edith Cowan University.
The evidence was that the lecturing position was advertised in the West Australian newspaper on 3 August 1996. The closing date for applications was 30 August 1996. The present incumbent's contract will expire by the end of this year.
WAS THERE A WRITTEN NOTICE OF TERMINATION?
The respondent relies, in part, on the decision of Judicial Registrar Ritter of 16 July 1996 in support of its allegation that there was a written notice of termination dated 31 October 1995. At page 51 of his decision, Ritter JR stated:
"If she was the successful applicant, she would have commenced a one-year to three-year contract in January 1996. Ms Fisher was not the successful applicant. Dr Gibbs wrote to Ms Fisher on 31 October 1995 and advised her of that. If Ms Fisher had been the successful applicant, the employment relationship would have continued, albeit with a different contract of employment, on 1 January 1996 and following. It was the respondent's earlier decision, made on 31 October 1995, that meant that this did not occur.
(4)It was, therefore, the decision of the respondent not to appoint Ms Fisher to the position for which she applied and which commenced on 1 January 1996 which led to the termination of the employment relationship. This decision, and hence the termination of the employment relationship, was clearly that of the employer.
(5)The decision by the employer was an act done by the employer which brought the employment relationship to an end."
By letter dated 31 October 1995, Dr Gibbs wrote to Ms Fisher in the following terms:
"Dear Lynn,
Thank you for participating in the interview process for the position of Lecturer in Dance (Academic Studies).
I am sorry to advise you that your application on this occasion has not been successful. The selection panel was very impressed with the quality of your application and the supporting documentation you provided.
We see the academy as being a growth area and are optimistic that, in the not too distant future, a further position would be available. We sincerely hope that if and when that is advertised, you will be prepared to consider a further application.
We thank you once again for your interest in the Western Australian Academy of Performing Arts."
The parties referred to the case of Nelson v Scholle Industries (1995) 64 IR 9, a decision of von Doussa J. His Honour referred to two documents received by the applicant in that matter, both of which referred in their terms to the termination of the employment of the applicant. His Honour stated at page 11 of his decision,
"In my view, the document came into the possession of the applicant, although only briefly. The document was in writing. It stated unequivocally that the employment was being terminated and it stated the date of the termination. Moreover, it stated the reason for termination. Whilst I do not think that the reason is a necessary requirement, I agree with the Judicial Registrar that it is desirable that the notice state the reason. The document, on being placed in the hands of the applicant, achieved the legislative intention. It put in his hands a statement in writing giving unequivocal advice that his employment had been terminated."
His Honour also referred to a Department of Social Security Employment Separation Certificate, received by the applicant. His Honour held that although that document held a dual purpose, the separation certificate stated the employee's details, including the applicant's name, his full address, the date when he commenced work and the date when he last worked, and the reason for termination of employment. That notice was also held to be a notice of termination within the meaning of the Act.
In the case of Denavi v John Stephens Catering Equipment Pty Ltd, 6 June 1995, IRCA 243/95, unreported, Parkinson JR considered the authorities relating to the interpretation of the term "written notice of termination". Parkinson JR stated, at page 5:
"The use of the word 'written' and 'notice', in my view, require that the fact of the decision made by the employer to terminate the employment, together with the basis upon which the termination is made, ie, with or without notice, and the date of its effect, be clearly spelt out in any document which purports to be a written notice of termination for the purposes of section 170EA(3) of the Act."
Millane JR accepted Parkinson JR's analysis of the requirements of notice in the case of Hunt v Steggles Ltd, 9 August 1995, IRCA 358/95, unreported.
It is my view that in the present case, the letter from Dr Gibbs dated 31 October 1995 to Ms Fisher does not satisfy the requirements for "written notice" of termination of employment, as set out in the cases I have just referred to. The letter does not advise the applicant in clear and specific terms that her employment is to cease, and the date upon which her employment would cease. Of course, Ms Fisher must have inferred from that letter that there was a distinct possibility that after her then-current contract expired on 31 December 1995, she would have no further employment available to her with the respondent. The question is left open, however, because in his letter Dr Gibbs expressed an optimism that another position would be made available in the near future.
The respondent also relies on a memorandum from Duncan Ord to Ms Fisher, dated 23 June 1995, as constituting a written notice of termination of her employment. That memorandum reads as follows:
"You will be aware that your one-year contract will expire at the end of 1995, and it is the decision of the school to formally advertise a three year appointment, now that we have had the opportunity of consolidating the dance department's staff structure.
It is university and academy policy that all positions be advertised, but obviously I strongly encourage you to apply.
The selection criteria, and duties and responsibilities for the position will be prepared by August/September, with the selection process being undertaken throughout October. I will advise you when the advertisement for the position is to be placed before the public."
I am similarly of the view that this memorandum does not constitute a written notice of termination within the meaning of those words in section 170EA(3) of the Act. That memorandum does not state in unequivocal terms that Ms Fisher's employment will terminate on 31 December 1995.
Ms Fisher's application was filed on 12 January 1996. She came under the provisions of the Act before the amendments which came into effect on 15 January 1996 applied. Section 170EA, as it then stood, was in the following terms:
"170EA(1) [Employee may make application]
A person ("the employee") may apply to the Court for a remedy in respect of termination of his or her employment . . .
170EA(3) [Conditions of application]
An application must be made:
(a) within 14 days after the employee receives written notice of the termination; or
(b) within such further period as the Court allows on an application made during or after those 14 days."
As it is my view that there was no written notice of termination within the meaning of section 170EA(3), it follows that Ms Fisher's application was within time.
THE APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPLY
An application was made on behalf of Ms Fisher that she be allowed to apply out of time if this Court should hold that there was a written notice of termination received by Ms Fisher on or before 31 October 1995.
If I am wrong about my interpretation of the letter of 31 October 1995 and the memorandum of 23 June 1995, I would still have been satisfied that it was appropriate in any event that Ms Fisher be given leave to apply out of time. The parties referred to the case of Brodie-Hanns v MTV Publishing Ltd, 31 October 1995, IRCA 585/95, unreported. In that case, Marshall J set out the principles to be applied for granting an extension of time. In that case, his Honour referred to the decisions of Keely J in Transport Workers Union of Australia v National Dairies LtdNo.2 (1994) 57 IR 186 and Beazley J in Michael Turner v K & J Trucks, Coffs Harbour Pty Ltd, IRCA 360/95, 10 August 1995. In each case, the Court applied the test referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cowan (1984) 3 FCR 344.
It is unnecessary for me to set out those principles in full. In this case, the parties have, throughout the action to date operated on the basis that there was no termination of employment until 31 December 1995.
The respondent was put on notice from very early on that Ms Fisher contested the decision-making process which eventually led to the termination of her employment. Although there is always some prejudice suffered by a party due to the delay of another party in instituting action, the prejudice in this case is, in my view, minor. This case has had a long and torturous process in this Court for various reasons, and it would, in my view, be inequitable to now deprive the applicant of any remedy she may have in this Court.
WAS THERE A VALID REASON FOR THE TERMINATION?
Ms Fisher alleges that there was no valid reason for the termination of her employment. From the beginning, she has challenged the validity of the selection committee's decision-making process, when it decided to appoint another candidate in preference to herself.
The respondent states that the decision to terminate Ms Fisher's employment was based on its operational requirement to have the best person in the job, and this is why the merit selection process occurred.
It is the respondent's position that a properly constituted selection committee found that both applicants for the position were appointable. It was submitted that that decision to appoint the other candidate was open to the selection committee. It was said that this Court should not take lightly the decision of the selection committee, and that this hearing was not an appeal. It was submitted that this Court should not substitute its own opinion for that of the selection committee. It was said that the members of the selection committee were eminent scholars and had a detailed knowledge of the requirements of the position. The committee had before it a lot of information which was not before this Court. The selection committees were veiled in secrecy and any attempt by this Court to enquire into the decision-making process invaded the sanctity of what had gone on. The respondent's position was simple. The selection committee had made a finding, and had made a decision on the basis of all the material in front of it. It was simply a matter of who was preferred. It was said that this cannot be objectively determined in the same way by this Court.
It is my view that in many instances in which there has been a merit selection process for a particular position and it is seen that the selection committee appointed a suitably qualified person to that position, this Court should be reluctant to go behind that decision. The case before me, however, contains some elements which cause me to have serious doubts about the validity of the decision-making process, when the selection committee decided to appoint the other candidate in preference to Ms Fisher.
It was Ms Fisher's position from the start that the committee had not followed the selection criteria. She was strengthened in this view by the statement made to her by a member of the selection committee that Ms Fisher had been judged superior to the successful candidate on the selection criteria but it had been felt by the selection committee that the successful candidate's international reputation was to take precedence.
The respondent did not call the member of the selection panel who made the statement to Ms Fisher to rebut this evidence. Dr Gibbs gave evidence that this was not so. However, I have already said that I found the evidence of Dr Gibbs to be not particularly helpful in enlightening me as to the reasons for the decision made by the selection panel, and the decision-making process. He simply could not remember. Every opportunity was given to the respondent to enable it to provide further witnesses to prove the validity of the decision-making process. This was not done. The only inference I can draw is that their evidence would not assist the respondent. I have been asked by the respondent to accept on face value Dr Gibbs' statement that the decision-making process was fair. I have already indicated that, from the limited amount of information provided to me, it is difficult to see how the selection panel has judged the successful candidate as being superior to Ms Fisher in some areas. In these circumstances, I am of the view that on the balance of probabilities, the respondent has not proved that there was a valid reason for the termination of Ms Fisher.
Each case before this Court must be judged on its own merits. As I have already indicated, I might be reluctant to go behind the decision of a selection panel in other cases. This is not a case in which I have chosen to substitute my own decision for that of the selection panel. As Ms Fisher has indicated, she was challenging the decision-making process, rather than the outcome itself. I have significant doubts about whether the selection criteria were properly applied by the selection committee in this case. Further, there appears to have been an element of procedural unfairness in that this selection committee made a decision about Ms Fisher's capacity to extend the position to masters and honours levels. Her past performance in this area appears to have been taken into account, on Dr Gibbs' evidence, in arriving at the decision to judge the other candidate to be superior to Ms Fisher in this regard. Any doubts the selection panel had in relation to Ms Fisher's capacity were not apparently put to Ms Fisher.
The respondent has not discharged its burden of proof.
For these reasons, I am of the view that Ms Fisher should succeed in her application before this Court.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
In view of my decision relating to the validity of the reason for termination, it is not necessary for me to decide whether the termination was, in all the circumstances, harsh, unjust or unreasonable. The respondent refers to the fact that Ms Fisher was at all times aware that she was not guaranteed employment beyond the expiration of her fixed term contract. This was admitted by Ms Fisher at the hearing. It was also clear from the evidence that Ms Fisher had every reason to be optimistic about the future of her employment with the respondent because her contracts had, in the past, been rolled over, and her performance had always been praised.
It was submitted on behalf of Ms Fisher that as there was some procedural unfairness (to which I have already referred) in the decision-making process, the decision to terminate Ms Fisher's employment was harsh, unjust or unreasonable.
Further, the letters from Edith Cowan University to Ms Fisher prior to the termination of her employment indicated that the respondent strongly encouraged her to apply for her position. Strong representations were made to her. The practice in the past had been for the contracts to be rolled over.
In my view, a combination of these factors make it harsh, unjust or unreasonable for the respondent to terminate Ms Fisher's employment.
WAS THERE A BREACH OF SECTION 170DC?
It was alleged on behalf of Ms Fisher that she was not given an opportunity to respond to any allegations against her performance or conduct, prior to the termination of her employment. The respondent says that the termination of her employment was not based on Ms Fisher's performance or conduct, but rather on the respondent's operational requirements and, to a lesser extent, on her capacity. It was put to this Court that "capacity" implies some future element relating to her ability to do the job, whereas "performance" relates to how she has performed in the position in the past.
On behalf of the applicant, it was said that it was clear from the evidence of Dr Gibbs that the apparent incapacity of Ms Fisher to teach Honours or Masters courses was taken into account by the decision-making panel. It had never been suggested to Ms Fisher in the past that there was any problem relating to her performance in this regard.
Although I have some misgivings, I am not satisfied that Ms Fisher had discharged her onus of proof in relation to this matter. I accept the respondent's position that the decision to terminate Ms Fisher's employment occurred because of the university's operational requirement or policy that the position be advertised. Ms Fisher's employment was not terminated on the basis of any allegations against her conduct or performance within the usual meaning of those words in section 170DC. I am not convinced that that section applies.
REMEDY
Ms Fisher is seeking compensation and reinstatement. The question of whether or not reinstatement was impracticable was not argued before me. Although the position is currently occupied by another person, and will be so occupied until the end of this year, Edith Cowan University is a large organisation and there are other opportunities for the employment of either the present incumbent of the position or Ms Fisher. Reinstatement is clearly intended to be the primary remedy available under the Act. I am not satisfied that it would be impracticable to order reinstatement in this case. I make the following orders:
That Edith Cowan University reinstate Ms Fisher by appointing her to a position on terms and conditions no less favourable than those on which she was employed immediately before the termination within 14 days of the date of this order.
That Ms Fisher's employment for all purposes be treated as having been continuous from the date of termination until the date of reinstatement.
That Edith Cowan University pay to Ms Fisher the remuneration lost by her because of the termination within 28 days of the date of this order, such remuneration lost being calculated on the basis that Ms Fisher has received a gross income of $500 per week since the date on which she commenced working as a director for Protex Pty Ltd.
If the parties cannot agree on a figure for the remuneration lost within 21 days of the date of this order, there be liberty to apply at short notice before me for a determination of that matter.
I certify that this and the preceding 28 pages are a true copy of the reasons for decision of Judicial Registrar Boon.
Associate :
Dated : 5 September 1996
APPEARANCES
Representatives for the Applicant: Mr N Hodgson
Mr W Claydon
Organisation for the Applicant: National Tertiary Education Industry Union - ECU Branch
Counsel for the Respondent: Mr R Millar
Solicitors for the Respondent: Mallesons Stephen Jaques
Dates of Hearing : 27 and 28 August 1996
Date of Judgment : 5 September 1996
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