Graham v University of Wollongong

[1997] IRCA 60

DECISION NO:60/97

CATCHWORDS

CONTRACT - whether fixed term contract - variation of original term
PROBATION - whether determined in advance - whether retrospective in operation - reason for - whether applicant ready to be assessed

Industrial Relations Act 1988, Section 170 DE (1), 170 DF (1) (F), 170 EDA (2), Regulation 30 B (1) (a)




Byrne & Frew -v- Australia Airlines (1995) 131 ALR 422
B.P. Refinery (Westernport) P/LV. Shire of Hastings (1997) 180 CLR 266
Grout -v- Gunnedaa Shire Council (1995) 62 IR 150
Mohabazab -v- Dick Smith Electronics (1995) 62 IR 200
Anderson -v- Umbakumba Community Council (1994) 126 ALR 121

GRAHAM -V- UNIVERSITY OF WOLLONGONG
NI95/2278


Before:  WALKER JR JR
Place:  SYDNEY
Date/s of hearing:     16, 17, 18, 19 OCTOBER 1995
  11, 12 MARCH 1996, 6 JUNE 1996
Date of judgment:     10 MARCH 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI95/2278

BETWEEN:

Gail GRAHAM
Applicant

AND

UNIVERSITY OF WOLLONGONG
Respondent

BEFORE:     WALKER JR
PLACE:        SYDNEY
DATE:           10 MARCH 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The Respondent pay to the applicant the maximum amount of compensation allowed under the Act.

2. If the parties are unable to agree to this amount the applicant has leave to re-list the matter for determination.

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
NEW SOUTH WALES DISTRICT REGISTRY

NI95/2278

BETWEEN:

Gail GRAHAM
Applicant

AND

UNIVERSITY OF WOLLONGONG
Respondent

REASONS FOR DECISION

 

Dr Gail Graham was appointed to the position of Lecturer  in the Department of Management at Wollongong University on the 27 February 1990 and took up that position on the 3 July 1990. Her contract of employment was for a fixed term of 4 years and her conditions of employment were to be in accordance with the Australian Universities Academic Staff Conditions of Employment Award 1988 and the agreement relating to the Second Tier Settlement for Academic Staff in Higher Education institutions. The letter of offer of the 27 February 1990 sets out the conditions of appointment and includes the following term:

“Your appointment is limited to the period stated above and there is no      provision for it to be converted to one with permancy or tenure. However,    acceptance of this offer does not preclude you from making an      application for any vacant position advertised in the University.  The         conditions of            appointment as set out in this letter and attachments cannot   be varied other than by variation to Industrial Awards and Agreements, or     by written advice from me.”

On the 26 May 1993, the Manager of  Personnel Services for the university sent Dr Graham the following letter,

“Dear Ms Graham,

On 7 May 1993 the allocating committee met to consider the future of a      large   number of academic positions using a set of procedures that had            been agreed with the Academic Staff Association.   Its meeting was part of       the implementation of National changes to Academic conditions of        employment. In particular, the University was looking to ways in which it   might increase the number of academic staff holding a continuing appointment.

The position you hold was one position considered under this procedure.

Following a decision made by the Allocating Committee, I am pleased to     offer  you a variation to your appointment.  Your appointment has been            changed into a Continuing Appointment on Probation.   This means that         you will be eligible to apply to the Academic Promotions and            Continuing    Appointments Committee for a Continuing Appointment,  subject to the       relevant procedural    conditions.

If you wish to obtain a continuing appointment, you must lodge your          application within the remaining term of your contract.   I would          encourage you to discuss with your Head of Unit and/or Dean the       appropriate time for your application to be lodged.

The next meeting of the Academic Promotions and Continuing         Appointments Committee is in the middle of this year, but, as you may   be aware,  meetings            are held twice a year.”

Dr Graham subsequently made an application for “confirmation in a continuing appointment” to the Committee and this application was considered and rejected at the meeting of the 12 August 1994. She then appealed to the Appeals against Procedures Committee and was advise by letter of the 22 February 1995 that her appeal had been  disallowed.

Dr Graham now brings a claim before the Court on the basis that there has been a termination of her employment and that the termination was not for a valid reason. She also claims that the respondent is in breach of s 170 DF (1) (f) and s 170 DC of the Industrial Relations Act 1988.

In defence to the claim the respondent argued that Dr Graham was a probationary employee and is excluded from the operation of the Act pursuant to Regulation 30B (1)(c).  It was also argued that Dr Graham was on a fixed term contract entered into before 16 November 1994 and is therefore excluded pursuant to Regulation 30B (1)(a).

Background

Dr Graham has a B.A , an M.A. and a PhD from the University of Melbourne. Before undertaking a career as a lecturer she  had worked in the field of journalism and is an author with several of her books receiving international acclaim. It appears from the evidence that she has a particular expertise in cross culture management and has a strong interest and connection with China and Asia generally and  speaks fluent Mandarin. 

Dr Graham is the sole provider for her son who was severely brain damaged as a result of a motor vehicle accident in Queensland in 1983. At the time she commenced her employment with Wollongong University her son was in the care of a custodial institution at Ryde which she regarded as inappropriate. In March 1992 he was moved to a nursing home in Ashfield which Dr Graham said relieved a great deal of stress and worry as he was now able to receive physiotherapy and other treatment and Dr Graham was able to assist. This situation was noted by Professor John Steinke on Dr Graham’s annual evaluation for the first year of her employment when as Dean he made the following comments,

“Ms Graham has been under extreme stress in 1991/92. Nonetheless she has carried her full share of the teaching load and has been actively involved in Dept. decision making.  She has made a beginning on research projects.”

In her own evaluation form Dr Graham, in answer to the question, “Could you be more effective in your work? What prevents you?”  replied, at page 26 Exhibit R1,

“Working conditions are excellent, and the support and friendship of colleagues has done much to help me remain effective in the face of daunting legal and medical problems affecting my brain damaged son. It is the stress and exhaustion engendered by this situation that sometimes prevents me from achieving all that I would like to achieve.”

In her evidence Dr Graham expanded on this problem in the following way,   

“What I really would have liked to have done and what I think I probably would  have done had the circumstances of my life not been what they are, is I think I have the capability and the intellectual ability to be a senior lecturer and an associate professor, even a professor.   I feel I could do these things.  I feel I could achieve these things and to do these things, most people spend, you know, all their weekends and much of their spare time doing research and putting in 60 or 70 hours sometimes.  At that point in time with my son in a totally inappropriate care, I wasn’t able to put in 60 or 70 hours a week doing research.  I think Paul Patterson, who evaluated that, understood that.”

In January 1992 Professor Gill Palmer took over as head of the Department of Management, becoming Dr Graham’s supervisor. From this time on the applicant claims that there was an increase in pressure of work and stress. Dr Graham said that Professor Palmer had warned her that there had been a number of letters of complaints from students that would be referred upstairs and she had heard that people were unhappy with her teaching.       

The first complaint concerning her teaching was brought to the notice of Dr Graham in about September of 1992. Dr Graham’s evidence was as follows,

“I was asked by the then department secretary to attend a meeting with      Gill Palmer. I had no idea what the subject of the meeting was, I wasn’t        told. I actually assumed it had something, perhaps, to do with the ethics            subjects.  When I turned up at the meeting Gill said that there had been a            letter sent,  I  believe it was to the Dean of Studies, of complaint about me, that this was a very serious matter, that she had been telephoned over the            weekend, that these were terribly serious allegations, that this was    incredibly worrisome, that it really upset her that the highest levels were            aware of the fact of my problems and the student said who was the student            and she said it was a student name John Kopetko, ‘Here he is’, and    at        that point he walked into the meeting........ John Kopetko proceeded to abuse me, he said I was incompetent,  he said I was racist, he said that        I was very much disliked by all the students.....He concluded with that         if he wasn’t satisfied with my teaching he warned Gill - and he       referred  to her throughout as “Gill” that there would            be a violent   outburst, or an outburst of violence.”

Dr Graham said Professor Palmer just sat there and said nothing and that she then asked Kepetko what was the nature of his complaints.  Her evidence was that,

“...he said I used racist language, and I said , well what did I say.  He          didn’t answer; he couldn’t think of what I said.  Then he said I had          humiliated him in class, and again I said, “Well, could you explain how I      humiliated you in class?, and that turned out to be that at one point in the            lecture, when ...I asked  everyone to please put down their pencils and        not to write..”

As a result of this meeting Dr Graham said,

“I was very shocked and I was very  frightened. It wasn’t - it was what he    said;  it was also the tone of his voice and the savagery of the attack.  I’ve   never been called incompetent and I’ve never had anyone say, “I feel   sorry for you, you have people like this in this department”, and I was        amazed that     Professor Palmer just sat there and let this go on and didn’t say anything.  I was distressed - it came out of nowhere as far as I was        concerned, and I was shocked and distressed.” 

Mr Keptko it appears had failed an assignment in Dr Grahams class prior to this incident and this work was later re-marked by Professor Palmer.  The Professor’s memo of the 7 September, 1992 to Dr Graham with regard to this assignment says,

“This assignment is poor and does not take seriously the need to identify   the  specific organisations or pressure groups involved........ . I see this as a         borderline fail.”

Following this incident there were no apparent problems according to Dr Graham, except with certain overseas students who had difficulty with English language skills. This problem prompted Dr Graham to send a memo to Professor Gill Palmer on the 10 May 1993 in the following terms,

“Memo to Gill Palmer
           From Gail Graham
            MGMT 979

I have 7 M. Comm students currently enrolled in this subject, and am          concerned  that 6 of them are failing badly. (the 7th, who has already         failed 979 once, has been getting extra help from me, and will probably         make it this time) The students about whom I am concerned are:........ ..

Mostly the problem seems to be English - language comprehension,            although Ms Ritboonyakorn seems to have other problems as well.”

There is a letter tendered in this matter signed by eight overseas students dated the 30 June 1993.  Dr Graham said she was made aware of this letter during the marking procedures as these students had failed.   The letter is as follows,

“We are all students of MGMT979: Decision Analysis Session 1993 and     the  lecturer is Dr Graham.   All of us confront many problems with this   subject.   The lecturer is quite racism and the mark is not standard for   overseas students.   As you know English is a second language for all         overseas students, so, when we consult with her.  Her explanation        makes more confusing and complicated because her explanation style is   very muddle and vague.  Then we have not gotten the idea what she            wants.   She does not give the suitable mark for            overseas students such as   in presentation if the members of the group are all  overseas students     the mark will be lower than an half the total.

Furthermore, we think that the objective of this subject is to prove the        student with an overview of the various qualitative decision making     methods and  techniques.  However in practice, she wants all of student think and do the same way as her and it is not exactly the subject      purpose.  For example the assignment she gave the case study and then      students had to identify the           problem  and use the decision making methods      and techniques to analyse that case. If we did not identify everything like         her mind we would fail.
           However all of us try hard to prove ourselves to pass this subject.    Moreover another assignment and presentation, we try many ways to get         better such as  consulting with her and working on group.   In class, she   corrects the identification of case study’s problems in presentation of         every group before            going presentation but we still fail.

Her comment, she still complain particularly overseas students group, that           the identification of problems is wrong, such as Charley, Panda or Jess.            Especially, members of Panda’s group consist of all Asian students.  They          feel so worried to fail, so they had met her many times in order to get high mark and make sure that everything is right, But, after presentation    they still fail  and she gives the  comment that everything is wrong.  Then      Panda’s member cannot understand the reason why they fail again. (4/10) Comparing with the last group he only present his experience and he can   get 6/10 As the result, the lecturer is not fair to evaluate the marks for   every student.

And also, we heard that this serious situation occurred many  times with    this lecturer.  Therefore we think this lecturer should change to be         another person.   We hope that our letter would be considered.”

Dr Graham was asked by her counsel of her opinion as to the standard of the letter and she replied that  their ability to express themselves would not be the standard expected of someone who had a MBA. When further asked was this the standard you were receiving in your assignments from certain students, she replied, “No, actually, this is much much better.”

Following the double-marking of these students papers by Professor Palmer they were confirmed as failures.  Surprisingly these students were then allowed by the Dean to attempt another subject in lieu of the failed subject which was a core subject in the MBA degree.

Around this time Dr Graham received a note delivered by hand at her home address, made u p out of magazine clippings in similar vein to a ransom note, as set out below,

“OVERSEASTUDENTS HATE YOU SO MUCH BETTER YOU
            GO TO OTHER SCHOOL NOW”

On the 19 July 1993 Dr Graham wrote to the Vice Chancellor, Professor Kenneth McKinnon in the following terms,

“Dear Vice Chancellor,

The growing number of full-fee-paying “international” students within the Department of Management has created an environment in which degrees are being purchased, rather than earned.  Because I oppose this approach and refuse to award passing grades to students merely because they are full-fee-paying “customers” I find myself the target of continual harassment from both student and fellow members of staff.

Many of the currently enrolled “international” students are admitted on      the basis of “overseas qualifications” which do not seem adequate      preparation for the subjects which these students subsequently attempt.         I enclose  (document 1) a copy of the examination paper submitted by         one of the international students in one of my post graduate classes.       Given that this was a three hour paper, I  suggest to you that this   particular student did not have the skills and background  necessary            even    to attempt this subject, much less to pass it.

Even more seriously, increasingly few of these students possess the English- language skills necessary for study at a tertiary level in an       institution where English is the language of instruction.  This means that       many subjects must be reworked and simplified so that the students can     learn them by rote.  The level of discourse becomes that of a secondary   school, rather than that of a university.

So far as these students themselves are concerned, they have paid their      money and are entitled to a degree.   On one occasion, a student who    failed a piece of assessment tried to persuade me to change the     grade on the basis of the fact that he had, indeed, paid his fees.   He            even    brought along receipts.  This is also the approach taken by the            Department of Management, which considers this body of students as its      “customers” for whom “service providers” such as myself deliver the     “product”, or degree on time and as promised.

The subjects I teach are qualitative rather than quantitative, involving       words rather than numbers, and conceptual rather than analytical           thinking.  As our international “customers” dislike these subjects, the    Department is obligingly eliminating most of them.   But in the meantime,   the unwritten rule is that all (or most) international students must pass.   I        find this position  incredibly stressful.   The performance of most of these      students is grossly inferior to that of Australian students and to pretend         otherwise and award both with identical degrees is, in my opinion,   morally and ethically wrong.

Over the past 18 months, I have been subjected to continual pressure and
            harassment both from members of the Department of Management and
            from the “customers” themselves.   Yesterday, I found the enclosed note     (of  which I’ve attached a photocopy --Document 2) in my letter-box at   home.  Crude and childish as it appears, it is worrying to me that anyone        would            go to all the trouble to find out my home address in Sydney and put            such a thing in my letter box. I am a widow, and living alone.   It is    unnerving to realise that any group of people might “hate” me to this extent.

This is not the first unpleasant incident.   A few years ago, a part time         tutor within the Department initiated what has been developed into a veritable dossier of unsubstantiated accusations and complaints about me.              This tutor’s activities (which the Head of Department Professor Gill            Palmer  sanguinely informed me were supported by many other members   of staff) were escalated until they constituted harassment and distressed          me so much that I had to seek psychological counselling in order to be able to continue  working.

I am frequently treated with open scorn and derision by certain senior      members of staff.   For example, last week at a department function      Professor Michael Hough told a long and quite distasteful “joke” about            massive brain damage, knowing full well that my own son sustained            precisely this sort of massive brain damage in a car accident.     As another     consequence of that tragic accident was my husband’s death.   Incidents like this are incredible stressful and painful for me.

It is my firm belief that it is morally wrong to sell degrees to people who     are not academically qualified to hold them.   If this state of affairs is           allowed to continue, a degree from the University of Wollongong will eventually become a national -if not an international --joke.   This is          grossly unfair to all of the legitimate students (Australian and non-   Australian) who have honestly earned degrees from the University of      Wollongong.   The current “market model” of education not only has the      potential to permanently damage the University of Wollongong’s     reputation in Asia, but may also ultimately reflect badly on all          Australian Universities.   In most Asian cultures, education and            learning are things to be acquired through great effort and application,     not mere commodities to be bought and sold in the marketplace.

I have remained at the University of Wollongong because I need the           money to pay for the therapy for my son.   But the stress of being       ridiculed and  professionally maligned because I am unwilling to act in a            way that I believe is immoral and unethical has ended up making me            physically ill, and I am now  under a doctor’s care.

Some months ago, I approached my union’s Acting President Henri Jeanjean in an effort to resolve some of these problems.   When I            consulted him over the latest difficulties, he suggested that I write this        letter, as he felt that these issues would be of genuine concern to you.”

Dr Graham took two weeks off on stress  leave in about the last two weeks of July 1993 and after returning briefly to work suffered a massive recurrence of the problem and was then off on Workers Compensation until about mid-November 1993.

On 30 March 1994 Dr Graham appeared on SBS television in a program where she made certain allegations about overseas students being able to buy their MBA degrees at Wollongong University.

Probation

It is the respondents contention that the applicant is excluded from bringing this claim as she was serving a period of probation, pursuant to Regulation 30(B) (1) (c).This regulation excludes employee’s from the operation of the Act, if the employee is serving a period of probation or a qualifying period of employment, if the duration of which or the maximum duration is, as the case requires:

(i) is determined in advance; and
(ii) is reasonable, having regard to the circumstances of the employment.

It is essential that the period is determined at the commencement of the employment or  at least at such a time that would put the employee on notice that they are subject to scrutiny over a future period of their employment. The reasoning for this is of course to allow both the employer and the employee a chance to evaluate whether the working relationship is suitable. It also allows an element of fairness to the employee in that he or she can demonstrate to the employer that they have all the necessary skills to cope with the position. The second leg of the regulation provides that the period of probation be of a reasonable duration having regard to the type of position but is governed buy the requirement that it be in advance. Such a period for an unskilled job would of course be of short duration when compared with that of a highly skilled position or one that required the employee to carry out a varied range of duties over a long period of time.

In Dr Graham’s case the period of probation was made retrospective. She had already been employed in the position of lecturer for almost three years when on 26 May 1993 she received notice informing her that there was a variation of her appointment, to a Continuing Appointment on Probation.  Her contract was due to expire on 2 July 1994, but there was no time determined for the length of her probationary period. She was also informed that she would be required to make application for conversion to a continuing appointment within the remaining term of her contract.

In dealing with the issue of probation the applicant tendered various documents which were collectively marked as exhibit 1. At tab 1 of this exhibit there is a proposed agreement between the Australian Higher Education Industrial Association, the Teachers Union, the Federated Australian University Staff Association and the Union of Australian College Academics as to academic award restructuring pursuant to the structural efficiency principle of the August 1989 National Wage Case Decision. Part 6 of that document concerns probation and is as follows:

“PART 6 - PROBATION

A probation period of up to five years should become standard within the industry for continuing employees at Level A in their first tenurable position. Institutions would have the scope to shorten such requirements or waive probation in the light of prior service qualifications and experience of the employee (on a case by case basis). It is intended to provide arrangements for a period of secure employment with the opportunity to be offered continuing employment. Probation offers a period of mutual testing during which decisions about continuing employment can be made and should be of sufficient length to allow these judgments to be made in each case.
At time of probationary appointment, the criteria and objectives to be met for an offer of continuing employment should be clearly stated.” (emphasis added)

Annexure G to exhibit 1 at page 24 under the heading 2 and 4 deals with academics on level B, which relates to Dr Graham and is as follows:

“2 LEVEL B and above
The parties agree that for staff at level B and above in their first continuing appointment a probationary period of up to three years shall become standard within the industry. Annual extensions up to five years will be possible. Probation procedures and criteria shall provide for:

(I) Waiver of probation by the institution or a shorter probation period with regard to established practice at the institution, any prior service or period of probation undergone by the employee and qualifications and experience of the employee.
(ii) A review before the end of the third year, which will determine whether the staff member will:

(a) be offered continuing employment to the institution’s retiring age, or

(b) separate from employment with a minimum notice period of 6 months or payment in lieu by mutual agreement,

(c) have the period of probation extended for a maximum of two periods of one year, subject to review for grant of continuing employment in each one year period.

(iii) In exceptional circumstances, the period of probation may be extended beyond 5 years.

4. COUNSELLING AND STAFF DEVELOPMENT

All probationary staff should be subject to formal assessment and be provided with constructive supervision on a continuing basis with periodic counselling to confirm progress or identify difficulties and develop strategies for their resolution. They should participate in a staff development program to develop and refine their teaching and/or research skills, as appropriate, in addition to pursuing further postgraduate studies as desirable.

It was argued in submissions by the respondent that the applicant had control over her probationary period because she was subject to transitional arrangements. Also that she clearly understood the terms of the change and acted upon her understanding at all times, as her letter of the 28 December states. I cannot agree with this proposition. The evidence in this case suggest that there was a great deal of confusion with regard to the status of the applicants contract and indeed to all the parties concerned. Professor Palmer queried the applicants standing on 29 March 1994 when she sent the following memorandum to Ms Robyn Weekes, set out at page 116 of exhibit

“Dear Robyn,

I intend to sent your circular on the procedure for gaining continuing appointment to Dr Graham with the attached letter. Am I right in thinking that the period from 2 June 1993 to the time of the Allocation Committee meeting will be regarded as the period of probation?  If this is so, and Dr Gail applies for continuing appointment, then it will presumably be for the committee to judge whether or not she has successfully completed her probation . In the letter I assume her original starting date of 7 July 1990 would still be relevant as the base date, from which we would discuss whether she has passed probation and moves onto a continuing appointment.
I would appreciate clarification on the probationary period and the date of possible permeance or end of contract. I believe she is the only one of the management departments staff who was put on probation when contracts were varied in June 1993.”

Ms Robyn Weekes replied to this memo on 30 March 1994 as set out below,

“Gill

The probationary period will end from Gail’s commencement at the University on 3 July 1990. The end of her contract is 2 July 1994. She should really have applied for conversion at the end of last year as the results of the next round will not go to Council until after her contract ends and a period of notice should also be given if her probation is not confirmed.

She must apply for conversion in the current round. You need to talk to her about an extension. The minimum would need to be 3 months and the maximum 12 months.

All other assumptions in your message are correct.”

There was no evidence to suggest that the applicants contract was in fact extended, certainly not by Professor Palmer and certainly not by any agreement between the parties.

It was further said that the document marked  at tab 4 of exhibit 1 does not apply to the applicant as this was not issued until September 1993, however it does make the position clear as to the criteria and procedure for conversion to a continuing appointment. Paragraph 1.1.2. is as follows:

“1.2 Confirmation of a Continuing Appointment will normally be considered once only during the probationary period, normally at a point not earlier than during the third year of appointment. The onus will rest on the member of staff to provide evidence of satisfactory performance based on the criteria. In exceptional circumstances a case may be presented earlier than the third year; the onus will be on the Dean to justify an early submission. (emphasis added)”

Despite the respondents argument that this criteria and procedure was not relevant at the time the applicant sought confirmation it is still clear from the agreement reached back in 1989 and set out above that, probation offers a period of mutual testing.......should be of sufficient length to allow these judgments to be made and  at the time of probationary appointment, the criteria and objectives to be met for an offer of continuing employment should be clearly stated. Of course in Dr Graham’s case the period was made retrospective or at least commenced from the letter of the 26 May 1993 when her contract was varied to a continuing contract on probation to the meeting of the Committee on the 12 August 1994, a period of one year three months.  This period certainly did not comply with the award provisions in that it was not for a period of three years and at the time the probationary period commenced the applicant was not notified of the criteria and objectives to be met.

Of particular importance was the fact that the applicant was not put on notice that one of the main criteria to be considered would be research and scholarship. This was the “coup de grace” for Dr Graham when the Committee met to consider her application. All witnesses that gave evidence from the Committee were unanimous on this point. For the probationary period to be accepted as being reasonable it would have to have been of a sufficient duration to allow Dr Graham to demonstrate her obvious ability in the research field.

The reality is that the applicant was not ready to be assessed at that period of time and allowance should have been made to accommodate her unique position. It was common knowledge at the University that Dr Graham had a brain damaged son and that he took up a  considerable amount of her time. She had in fact made this know when she took up her position with the University and commented on it at her first evaluation set out above. Added to this was the court case in America which had only recently been resolved and had taken much of her spare time.  She had also been under considerable stress for a long period of time.  As a result of this it had been necessary for her to take three months off work on stress leave due to threats made against her. Dr Graham was clearly not in a position to be assessed as a person on probation.

This is further confirmed within the evaluation forms on pages 136 to 144 of  exhibit R1. In her own evaluation on the 4 May 1994, Dr Graham makes the following comments on page 137:

“the biggest constraint that I face at the moment is the enormous drain upon my mental, physical and emotional resources that is the result of being the sole support person for my severely disabled, head - injured son.
However, three is the possibility that within the year, my son will receive a sum of money that will enable us to hire carers to take over many of the things that I must now do myself. If this comes to pass, I will be able to achieve and attempt far more than I am able to achieve & attempt now.”

Professor Palmer in her evaluation of the 16 May 1994 confirms Dr Graham’s conclusion when she writes:

“The biggest constraint on Gail’s activities are the “enormous drain on my mental, physical and emotional resources that is the result of my being the sole support person for my severely disabled head - injured son.” This requires attendance at physiotherapy twice a week and continuing litigation in the USA. The economic and emotional pressure that this puts on Dr Graham are very considerable. She has written 100,000 words for the court case. This absorbs much of her energy. She hopes the trial on July 11/12 will resolve the financial problems.

The research output is achievable given time - date etc collected & analysis started. Book and article both possible.....”

The Dean’s comments after the initial interview on the evaluation, are, dated the 19 May 1994 and are,

“Situation needs to be reviewed within 6 months”

The assessment by the head of the academic unit form completed by Professor Palmer and signed by her on the 20 July 1994 has provision for her to delete 4 phrases where applicable. One of these is, # I believe that consideration of this case at this time is premature. Professor Palmer has not deleted this option. Professor Palmer also made this observation clear to Robyn Weekes by way of a undated memorandum on page 186 of exhibit R1, saying that she believed the Committee should not confirm Dr Graham’s appointment at this stage.       

It should be also noted that the 1989 agreement foreshadowed that all probationary staff should be subject to formal assessment and be provided with constructive supervision on a continuing basis with periodic counselling to confirm progress or identify difficulties and develop strategies for their resolution. No such procedure was offered to the applicant.

For the above reasons I find that the applicant, although a probationary employee, is not excluded from the operation of the Act as there was no compliance by the respondent with sub sections (i) and (ii) of regulation 30B (1) (c).

Fixed term contract?

The respondent’s second argument is that the applicant is excluded under regulation 30B (1) (a) as she was an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994. The basis for this argument is that the letter sent to Dr Graham on 26 May 1993 was only a variation of the name of the contract and that because she was informed that she would be required to apply for confirmation within the existing term of her contract it would thereby end on 2 July 1994. This argument must fail as the effect of the variation of Dr Graham’s contract would not bring about this result. That is unless she failed to make application for a continuation. By making application for continuation, her contract was then subject to consideration by the Committee at the end of her probationary period, a time which was not set in compliance with the agreement of 1989 or the Industrial Relations Act.

In fact Dr Graham did not make her application for continuation within the period of her original contract which was due to end on the 2 July 1994 . Robyn Weekes, from personnel sent the following letter to Dr Graham on 1 August 1994,

“Dear Dr Graham,

I wish to confirm your understanding of your future employment with the University. Your case for confirmation of a continuing appointment will be considered by the Promotions and Continuing Appointments committee tomorrow.

If your application is successful your tenure will become continuing which means an appointment until retirement. If your application is unsuccessful, your appointment will be extended for six months to meet notice of termination requirements.

The end date of your current appointment is 2 July 1994. Given this date has already passed, I thought it prudent to provide this information in advance of an outcome of tomorrow’s proceedings.”

The applicant’s contract could not therefore be regarded as a fixed term contract entered into before the 16 November 1994 as the date required to extinguish the contract by the effluxion of time had since passed and there appears to be no formal, or verbal extension of the contract. It would appear that the parties regarded the contract to have been varied on the 26 May 1993 to a Continuing contract on probation. That meant the date it would end was therefore indeterminable and subject to a possible review process or possibly a further period of probation after initial consideration by the Committee. This would make the duration of the contract uncertain and neither side  would know when the contract would end. (see Andersen v. Umbakumba Community Council (1994) 126 ALR 121.)

In cross - examination the applicant agreed that she had been told that there would be no problem in extending her contract. She also agreed that she had been told that if she failed to pass the Committee she would be given six months to find another job. Later on she was asked to agree that she had been offered six months further, to which she replied, yes. This evidence is certainly ambiguous as to whether her contract was extended or whether she would receive a six months extension after the Committee had refused her application. This confusion can be clarified by consideration of the letter of Ms Robyn Weekes  sent to the applicant on the 1 August 1994 as set out above. It clearly states that if she was unsuccessful in her application for a continuation of her employment she would then be extended a further six months. In fact Dr Graham confirms this at page 63 of the transcript when she is cross examined as to the meeting between Professor Palmer and herself on the 27 July 1994:

“Q. She indicated that she would support a 6 month extension to your contract while you were looking for work?

A. No No. That has already, as you pointed out, that was part of the - if the application was not successful, there was an additional 6 months. That’s nothing to do with her.”

From the evidence presented in this matter I am of the understanding that the applicant regarded her contract of employment as not for a fixed term but rather a continuing contract on probation, that would either be confirmed by the Committee at some date following the 26 May 1993 when her fixed term contract was converted or that if not confirmed she would be terminated automatically six months later.  There was no evidence to suggest the applicant was given an extension of her fixed term contract by anyone at the university. Professor Palmer was unsure of the applicants contract of employment. This is evident by the  memorandum of Professor Palmer set out above to Robyn Weekes on  29/3/94 at page 116 of exhibit 2 . Ms Robyn Weekes, in her reply to Professor Palmer on 30/3/94 informs the Professor that she needs to talk to Dr Graham about an extension of the contract and indicates that the minimum would be three months and the maximum twelve months. The evidence suggests however that Professor Palmer never discussed any extension of the applicants contract and no time limit was ever set.

Dr Graham in her letter of 28 December 1994 to the Manager of Personnel Services concerning her appeal sets out her understanding of the position in the following way,

“It was my understanding that following the conversion of my position, my status became that of Continuing Appointment (Probationary) rather than that of a Contract Employee. It was also my understanding that if my application for a continuing appointment was unsuccessful, my employment would terminate six months thereafter.......”

It is therefore clear in Dr Graham’s mind as at the 28 December 1994 that she did not regard herself as a fixed term Contract Employee but rather as a continuing employee on probation.

Was there a termination at the initiative of the employer?

Following Dr Graham’s application to the Committee for confirmation of her position her application was rejected. She then appealed this decision to the Appeals against Procedure Committee and was again unsuccessful. It is not necessary to consider the reasons for these determinations other than to say that Dr Graham was not accepted because she had not demonstrated a sufficient research and publication component to satisfy the selection Committee. As far as the appeals Committee was concerned they were only interested in whether the applicant was afforded due process, and that meant a fair hearing. The substance of her claim was not a matter that was considered by the appeal process.

Dr Graham was of the opinion that she was being rejected on the basis of a conspiracy because of her exposing the university alleged practice of passing overseas students by allowing them to sit easier exams.

The simple fact is that Dr Graham was on a continuing contract and serving a probationary period. This period was not determined in advance and appeared to be partially retrospective and cannot therefore comply with Regulation 30 B of the Industrial Relations Act. The original fixed term contract had been varied to a continuing contract and would not end by the effluxion of time. The decision of the Committee was the act that brought about the end of Dr Graham’s employment. The fact she was allowed a further six months before this was to occur is irrelevant as this period is the minimum notice period as per the award.

The applicant’s contract was not ended by the effluxion of time but came to and end when the Committee decided not to continue her employment.  It was this act that brought about the end to the employment relationship.  It does not matter whether the contract of employment comes to an end by the actions of the respondent but rather if the employment relationship comes to an end. This position has been confirmed by the Full Court in Grout v. Gunnedah Shire Council (1995) 62 IR 150 at 156 and in  Mohabazab v. Dick Smith Electronics (1995) 62 IR 200.

What was the contract of employment at the time of termination?

The evidence in this matter suggests that the University itself was unsure of the contractual position regarding the applicant. The applicant appears to be under the impression that her contract was continuing subject to confirmation at some future date by the Committee. Certainly her letter of 28 February 1994 gives this impression of her understanding.

There is no real evidence that Professor Palmer ever spoke to the applicant about an extension to her original contractual period despite Ms Weekes advise to her that she should. Ms Weekes suggested there should be a minimum of three months and a maximum of one year. The reality of course was that Professor Palmer and the applicant were no actually communicating because of the television interview on 30 March 1994.  There is just no evidence that suggests the applicant was properly consulted about her contractual position.

There is certainly evidence that she was advised that she should make application for a continuation during the remaining period of her contract but she did not do this. Her inaction in this regard strongly suggests she was not aware that she needed any extension to her continuing contract and none was given.

The requirement that the applicant should apply for confirmation during the existing term of her original contract appears in the “Special Round Arrangement” marked as attachment 2 to exhibit 1. At 6.2 it says,

“6.2 The staff member may then submit his/herself for special consideration at the mid 1993 round of the Academic Promotions an Continuing Appointments Committee or wait until some later round (provided that they must submit themselves for consideration within the term of their original contract and within the time limits determined by the award).”

This requirement is contradictory as the award requires probationary periods to be determined in advance, however it becomes even more confused in Mr Grange’s letter of 26 May 1993. On the one hand he says that he is pleased to advise that the contract has, “been changed into a continuing Appointment on Probation,” and later that, “you must lodge your application within the remaining term of your contract...” The next letter concerning the contract is from Professor Palmer, dated 31 March 1994 the day the Professor clarified her understanding of the contract with Ms Weekes. This letter now indicates that Dr Graham’s contract ends on the 2 July 1994 and that she should apply for an extension..

It is my opinion that the requirement under 6.2 of the agreement was not a term of the applicants contract or an implied term of her contract. The relevant award containing the special round arrangement was not attached to Mr Grange’s letter and there is no evidence to suggest the applicant was ever made aware of the requirements.  The High Court in Byrne & Frew v. Australian Airlines (1995) 131 ALR 422 has now made it clear that the terms of awards are not automatically imported into employment contracts, the parties have to agree to their inclusion. To have been an implied term of the contract it would have had to have met the conditions as set out by the Privy Council in B.P. Refinery  (Westernport) Pty Limited  v. Shire of Hastings (1977) 180 CLR 266 at 283:

“......for a term to be implied, the following conditions (which may overlap) must be satisfied:
(1) it must be reasonable and equitable;
(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(3) it must be so obvious that “it goes without saying”;
(4) it must be capable of clear expression;
(5) it must not contradict any express term of the contract.”

These conditions were certainly not met in this case.

The contract was one that was uncertain as to it terms and certainly was unfair to the applicant by virtue of the way the respondent interpreted it. The basis for rejecting the applicants continuation was that she had not demonstrated sufficient research and publication during her time at the university. This decision was based on the period of her probation which under the award was to be for three years.  To have served this the period had to be made retrospective which covered the time when the applicant was prevented from this work by demands made on her by her son’s condition. This situation was well known the university and of course was brought to the attention of the Committee during their deliberations of Dr Graham’s application.

What should have occurred in Dr Graham’s case in all fairness was that the university should have deferred determining Dr Graham’s application for continuation for a period which would have allowed her to demonstrate that she could continue to carry out research and further publication. This period of probation could have been for a period of up to three years or less but she should have been informed of the length of the period and the fact she would be required to demonstrate sufficiency in the area of research and publication.

I therefore find that the applicants continuing contract, not being a probationary contract as per Regulation 30 B, was terminated and that in the circumstances the termination was not justified . As it was not justified the reason for termination was not a valid reason and is in contravention of section 170 DE(1).

The applicant has also raised an allegation that the respondent is in breach of section 170 DF (1) (F) in that the applicant was terminated because of family responsibilities. Where such an allegation is made there is a requirement under section 170 EDA (2) that the onus of proof falls to the employer to prove that the termination was not for that reason. The onus in this matter has not been met and I therefore find that the respondent is in breach of section 170 DF (1) (F).

Remedy

In the circumstances of this matter re-instatement is not practical and compensation will be the remedy. I find that in all the circumstances the appropriate amount of compensation should be the statutory maximum. If the parties are unable to agree as to this amount I give leave to the applicant to approach the court for the matter to be determined.

I certify that this and the preceding (27) twenty seven pages
are a true copy of the reasons for decision of
Judicial Registrar Walker JR as recorded in the transcript
and revised by the Judicial Registrar.




Associate: Catherine O'Connor
Dated: 10 March 1997



APPEARANCES

Applicant

Counsel:

Mr. Taylor

Instructed by:

National Tertiary Education Union 608 - 614 Harris Street
Ultimo NSW 2007

Respondent

Counsel:

Ms. Ronalds

Instructed by:

Hansons Solicitors
DX 5152
Wollongong

Dates of hearing:

16, 17, 18, 19 October 1995
11, 12 March 1996, 6 June 1996