Heathcote v University of Sydney
[2014] FCCA 613
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEATHCOTE v UNIVERSITY OF SYDNEY | [2014] FCCA 613 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – whether the termination was unlawful as a consequence of the exercise of a workplace right considered – whether the termination was related to the expression of political opinions by the applicant considered. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 360, 361 |
| Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Community and Public Sector Union and Another v Telstra Corporation Ltd (2001) 107 FCR 93 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 |
| Applicant: | ADRIAN HEATHCOTE |
| Respondent: | UNIVERSITY OF SYDNEY |
| File Number: | SYG 117 of 2013 |
| Judgment of: | Judge Driver |
| Hearing dates: | 24-27 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2014 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr Y Shariff |
| Solicitors for the Respondent: | Seyfarth Shaw Australia LLP |
ORDERS
The application filed on 22 January 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 117 of 2013
| ADRIAN HEATHCOTE |
Applicant
And
| UNIVERSITY OF SYDNEY |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Dr Heathcote) brings these proceedings against the University of Sydney (the University) under the Fair Work Act 2009 (Cth) (Fair Work Act). The application arises from the University’s decision to make Dr Heathcote’s position redundant. He had been a Senior Lecturer in the Philosophy Department of the Faculty of Arts and Social Sciences. The decision was taken by the Vice-Chancellor of the University, Dr Spence as part of a broad redundancy process. Dr Heathcote claims that the redundancy constituted adverse action and was taken due to:
a)a workplace right to make a complaint which was made in 2004;
b)his political opinions in the workplace.
Dr Heathcote had made a number of other allegations, including breach of contract, a tort claim of negligence and defamation, however these were abandoned at the trial.
In 1987 Dr Heathcote was first employed by the University as a tutor. Dr Heathcote accepted a permanent position at the University in the Department of Traditional and Modern Philosophy in 1992. In 2001 that Department was merged with the Department of General Philosophy. It is from this point onwards that Dr Heathcote claims he experienced bullying and harassment in the workplace by his colleagues. In 2004 Dr Heathcote filed a complaint against the then Dean of Arts Stephen Garton and others on account of bullying, harassment and misconduct that he claimed to have experienced. This complaint was investigated by the University and ultimately dismissed.
In 2011 the University experienced financial difficulties due to a downturn in revenue from student fees and a decline in international student enrolments. As a result, the University decided to cut the number of academic staff across the University, with a target reduction of 105 full time academic positions. Under the relevant Enterprise Agreement for 2009-2012, clause 260 regulated the introduction of changes that were likely to impact staff within the University. It provided that when a situational assessment by management led to a proposal for change affecting more than one staff member, management was to develop a draft proposal for change. The University released a document titled “Draft Change Proposal” on 21 November 2011 setting out a proposed strategy for reducing expenditure on a university wide basis. The University then undertook an extensive consultation process with affected staff and their unions regarding the Draft Change Proposal. On 3 February 2012 the University issued a Formal Change Proposal and on 17 February 2012 the University issued a Final Change Plan. These three documents were together referred to as the Change Proposals.
On 6 March 2012, the National Tertiary Education Union (NTEU) applied to Fair Work Australia seeking conciliation and/or arbitration in accordance with the dispute resolution process set out in the Enterprise Agreement. The settlement of those proceedings required the University to engage in further consultation with affected staff which took place in April 2012. On 4 May 2012 the Final Change Plan was updated to include details of that additional consultation. The amended Final Change Plan confirmed that the University did not consider that there was any viable alternative to the proposals.
In order to select those academics who would be eligible for redundancy, the University chose to use the criterion of “research output” as prescribed under the Excellence in Research for Australia (ERA) guidelines. The criterion applied required four ERA approved publications, or equivalent research output, during the period from 1 January 2009 to 4 November 2011.
All academics who did not meet the prescribed number of publications were initially screened for redundancy. Faculty Assessment Panels were convened and any academics who could be determined as standing in exception to the rule of redundancy under the ERA criterion were removed from the redundancy list. Relevant considerations included an academic’s personal circumstances and their teaching load. Dr Heathcote was identified as an academic who did not meet the ERA criterion and did not have exceptional circumstances supporting his removal from the list of academics eligible for redundancy.
Those academics that remained on the list for redundancy were then considered by a Central Assessment Panel. This Panel further investigated the records and invited the academics affected to make submissions. The Central Assessment Panel reviewed submissions and additional material and then made recommendations to the Vice-Chancellor. The Vice-Chancellor either accepted or rejected the recommendations. Academics still eligible for redundancy after the Vice-Chancellor had agreed to the Central Assessment Panel’s recommendation were allowed a right of review.
Dr Heathcote was identified as one of the academics eligible for redundancy by the Central Assessment Panel, and the Vice-Chancellor agreed to this recommendation. Dr Heathcote chose to challenge this recommendation and was interviewed by a Review Panel. Dr Heathcote was assisted at the Review stage by a legal representative from the NTEU. The Review Panel confirmed the Vice-Chancellor’s recommendation and subsequently Dr Heathcote was informed by letter from the Vice-Chancellor that his position had been made redundant.
Attempts were made to redeploy Dr Heathcote within various departments such as maths or physics. Those attempts were unsuccessful.
On 31 December 2012 Dr Heathcote’s position was terminated.
Pleadings and evidence
Dr Heathcote relies upon his application and supporting Form 2 filed on 22 January 2013. Further and Better Particulars were also filed on 22 March 2013 by Dr Heathcote and are relied on. In addition, Dr Heathcote relies on four affidavits made by him on 31 May 2013, 3 June 2013, 12 June 2013 and 30 July 2013. He was cross-examined on his affidavits.
The University relies upon its response filed on 22 March 2013 and the following:
a)the affidavit of Associate Professor Janette Bobis made on 4 July 2013;
b)the affidavit of Dr Gerard Sullivan made on 9 July 2013;
c)the affidavit of Professor Gabrielle Meagher made on 10 July 2013;
d)the affidavit of Professor Jeffrey Kenneth Riegal made on 3 July 2013;
e)the affidavit of Professor Margaret Harris made on 4 July 2013;
f)the affidavit of Professor Warwick Britton made on 11 July 2013;
g)the affidavit of Emeritus Professor Jules Mitchell Guss made on 4 July 2013;
h)the affidavit of Professor Barbara Caine made on 9 July 2013;
i)the affidavit of Kerry Rehn made on 10 July 2013;
j)the affidavit of Dr Michael Spence made on 10 July 2013;
k)the affidavit of Anne Carmel Niland made on 11 July 2013;
l)the affidavit of Professor Belinda Bennett made on 11 July 2013;
m)the affidavit of Professor Stephen Garton made on 16 July 2013;
n)the affidavit of Professor Duncan Mackenzie Ivison made on 16 July 2013;
o)the affidavit of Honorary Associate Professor Lindsey Napier made on 12 February 2014.
Only certain witnesses were required for cross-examination. These were Professor Harris, Ms Rehn, Dr Spence, Professor Garton, Professor Ivison and Honorary Associate Professor Napier.
I also have before me the following exhibits:
a)A1- Table of authored works by Dr Heathcote;
b)R1 – Bundle of documents in Cross-Examination Folder;
c)R2 – Correspondence email between M Wilkinson and A Heathcote, dated 1 August 2012;
d)R3 – Draft Change Proposal 2012 Budget Strategy, dated 21 November 2011;
e)R4 – Terms of Settlement in Fair Work Australia matter.
Submissions
Both parties made written and oral submissions. It is Dr Heathcote’s case that the University has breached s.340(1)(a)(ii) of the Fair Work Act by making his position redundant after he exercised a workplace right under s.341(1)(c)(ii) to make a complaint or inquiry in relation to his employment. This complaint was made against various senior academics, including Professor Garton on 5 July 2004. Dr Heathcote further claims that the University took adverse action against him because of his complaint as a consequence of Professor Garton placing him on the redundancy list, failing to remove him from the redundancy list and blocking an application made by Dr Heathcote for the Vice-Chancellor’s Teaching Award in 2005.
Dr Heathcote made a series of complaints between 2003-2006 regarding some of his colleagues in the Philosophy Department and Professor Garton as Dean of Arts. The first complaint made on 26 June 2003 concerned Dr Rick Benitez, the then Chair of Philosophy. Dr Heathcote asserted that Dr Benitez had given him an unfairly low score for research relating to the number of publications credited to an academic. This complaint was handled by Professor Garton as Dean of Arts. Dr Heathcote asserts that on this occasion Professor Garton affirmed Dr Beneitez’s decision.[1] However the University contends that Professor Garton did indeed adjust the research score and upheld that part of the complaint.[2] The University also states that Professor Garton agreed that Dr Benitez should not continue as Dr Heathcote’s supervisor but found overall that there was not enough evidence to support a claim of misconduct against Dr Benitez. The University contends that Professor Garton’s approach to this complaint was neutral and objective, and was not coloured with any bias unfavourable to Dr Heathcote. Thus the University further submits that the source of the relevant “animus” which Dr Heathcote attributes to Professor Garton has no evidentiary basis.
[1] at [3b)] of the affidavit of Dr Heathcote dated 3 June 2013
[2] at [21] of the affidavit of Professor Garton dated 16 July 2013
On 4 July 2004 Dr Heathcote made another complaint against Professor Garton and others and asserted that Professor Garton had mishandled a previous complaint made by Dr Heathcote regarding another staff member, Professor Richard Waterhouse. This previous complaint related to the way Professor Waterhouse had conducted a Performance Management and Development (PM&D) Review concerning Dr Heathcote. Dr Heathcote complained that Professor Garton had failed to investigate what Dr Heathcote alleged were serious issues relating to the cross-referencing of a particular course. This complaint was handled by the then Deputy Vice Chancellor John Hearn and investigated over a seven month period. Professor Hearn overturned the negative PM&D and all the publications that were not acknowledged. However Professor Hearn found that no further action was required against Professor Garton or any other member of staff.
Dr Heathcote alleges that the investigation by Professor Hearn was flawed. Dr Heathcote asserts that as a consequence of the bullying and harassment he experienced his health, personal life and career suffered.[3] He further claims that his complaint in 2004 was “effectively swept under the carpet”.[4] The University asserts that, in so far as the 2004 complaint related to Professor Garton, there was no allegation that Professor Garton had personally harassed or bullied Dr Heathcote. Rather, the complaint was that Professor Garton had written a “dismissive” letter and failed to investigate Dr Heathcote’s complaint properly.
[3] at [4] of the “Summary” in Form 2 filed by Dr Heathcote
[4] at [1] of the “Detail on Adverse Action” in Form 2 filed by Dr Heathcote
In 2005 Dr Heathcote applied for a Vice-Chancellor Outstanding Teaching Award and asserts that he was effectively blocked from receiving this award due to the actions of Professor Garton.[5] Dr Heathcote contends that Professor Garton was the person who made the decision and that Professor Garton refused to submit the application. However Professor Garton states that the application was submitted and the award was considered by a selection panel and not by him. Professor Garton also states that he recalls preparing and sending to the selection panel, a 500 word citation as Dean that was necessary to support the application.[6] Professor Garton was unable to locate this document.
[5] at [3c)] of the affidavit of Dr Heathcote dated 3 June 2013
[6] at [33]-[36] of the affidavit of Professor Garton dated 16 July 2013
The second part of Dr Heathcote’s case relates to a claim under s.351 of the Fair Work Act and relates to his alleged political opinion. It is Dr Heathcote’s case that the University took adverse action against him because of his political opinion as a consequence of Professor Garton (Provost and Deputy Vice Chancellor) and Professor Ivison (Dean of the Faculty of Arts and Social Sciences) placing him on the redundancy list and not removing him from that list, which led to his position being terminated.
The University contends that this claim is not actionable, but it nevertheless engaged with the substance of it. It is not in dispute that the Philosophy Department at the University has had a colourful past, with political and ideological divisions within its staff leading to a split within the Department in the mid-1970s. This split created a General Philosophy Department which was associated with continental styles of philosophy and a Traditional and Modern Philosophy Department, more connected to analytical philosophy.
Dr Heathcote was placed in the Department of Traditional and Modern Philosophy. Dr Heathcote asserts that his political opinion is an “anti-extreme left and anti-extreme right wing view”.[7] Dr Heathcote claims that relations between the two Departments were mostly antagonistic leading to bitter divisions between staff members. Dr Heathcote further asserts that a culture of bullying, harassment and intimidation was cultivated during the split between the two Departments.[8]
[7] at [8] of the Further and Better Particulars filed by Dr Heathcote
[8] at [1]-[2] of the “Detail on Political Discrimination” in Form 2 filed by Dr Heathcote
Professor Duncan Ivison was appointed to the University in 1999 and was a member of the General Philosophy Department. In 2001 Dr Heathcote and Professor Ivison were teaching a philosophy course together. Dr Heathcote claims that during this course Professor Ivison, motivated by a difference in political opinion relating particularly to arguments on autonomy and responsibility, delayed posting material on a student internet web page.[9] Dr Heathcote claims that this disadvantaged the students enrolled in that course and led him to stop teaching that particular component of the course.[10] Professor Ivison does not recall such an incident.[11] Professor Ivison claims that he did not, and does not, currently consider any “political” views of Dr Heathcote’s to be a source of tension between Dr Heathcote and himself.[12]
[9] at [1i)]–[(iii)] of the affidavit of Dr Heathcote dated 3 June 2013
[10] at [1i)] of the affidavit of Dr Heathcote dated 3 June 2013 and see [1]-[3] of the affidavit of Dr Heathcote dated 30 July 2013
[11] at [69] of the affidavit of Professor Ivison dated 16 July 2013
[12] at [69] of the affidavit of Professor Ivison dated 16 July 2013
Professor Ivison claims that the way Dr Heathcote describes the difference between the two Departments is incorrect. Professor Ivison states that the difference arose from a disciplinary distinction and not from political division.[13] The University further submits that the distinction between the “analytical” and “continental” styles of philosophy as represented by the two Departments is not a “political opinion” for the purposes of the Fair Work Act.
[13] at [6] of the affidavit of Professor Ivison dated 16 July 2013
Dr Heathcote claims that it was against this backdrop of animosity between himself and Professors Garton and Ivison that he was placed on the redundancy list (primarily by Professor Garton) and not removed from the list (by Professor Ivison or Professor Garton). The University counters that the process to place Dr Heathcote on the list was neutral and objective, being from a computer generated source that indicated any academic who did not meet the ERA publication requirement.
Dr Heathcote’s case regarding his redundancy can be summarised as follows:
a)the redundancy process was flawed in the sense that it did not use fair and objective criteria to select those who would be eligible for redundancy;
b)the way these criteria were applied to Dr Heathcote was unfair in relation to the assessment of the number of his publications. The process was particularly biased at the Central Assessment Panel level in the way that Professor Garton was involved and chaired this Panel. Further, Dr Heathcote was not offered a teaching focused position despite evidence of his teaching load and abilities;
c)there was a failure on the part of the Review Committee and ultimately the Vice Chancellor to ensure there was no bias in the assessment process by conducting their own enquiries.
Dr Heathcote claims that the criterion to select those for redundancy was not fair because it was not the case that all academics have the same access to publishing opportunities. Dr Heathcote alleges that publishing opportunities vary across faculties and within faculties according to an academic’s area of expertise. Publishing within the sciences is quite different to publishing in the humanities for example. Dr Heathcote also claims that the opportunity to publish varies for academics due to their teaching load, with some having high teaching responsibilities and some not doing teaching at all. Dr Heathcote asserts that unless equality of opportunity is established the publishing criterion cannot be justified as fair.
Dr Heathcote further claims that the criteria were not objective because the University controlled what publications were counted in the census and thus the process contained an inherently subjective element. Thus the person who made the decision could be subject to pressure. Additionally, Dr Heathcote claims that academics are not in control of whether a paper is accepted or not, and when a paper will appear in a publication. Therefore a certain number of papers published in a particular time period are not an objective measure of productivity.
Dr Heathcote also claims that counting and comparing the number of publications was obviously intended to be a productivity criterion. Dr Heathcote asserts that productivity of an individual in a position is irrelevant to the ongoing viability and existence of the position itself.
The University counters Dr Heathcote’s assertions regarding the criteria for redundancy by stating that the ERA guidelines were the most fair and objective criteria that could be used in the circumstances where the University had no way of measuring teaching quality across faculties. The Vice Chancellor gave evidence that the University had budgetary concerns and decided to have a redundancy process on the basis of relative contribution.[14] The University could have chosen other paths to reduce the budget such as closing down the Department of French[15] or calling for voluntary redundancies.[16] The Vice Chancellor stressed that this was not a process, as alleged by Dr Heathcote, to remove any “dead wood” from the University and arose from a genuine budgetary issue.[17]
[14] Transcript (T) 124:7-8
[15] T 123:42
[16] T 124:1
[17] T 124:15-19
The University submits that, as the University is a research intensive university, academics were required to spend 40% of their time on research activity and the four publications required were the minimum amount to be considered research active. Additionally, the University states that the Enterprise Agreement for the relevant period of 2009-2012 allowed the University to engage in a redundancy process and there was nothing in that Enterprise Agreement that required the University generally to use fair and objective criteria. The reference to “fair and objective” criteria in clause 284 of the Enterprise Agreement applied at the Review Committee stage of the process and it was up to the University to determine how it managed those criteria at the Review Committee.
The University contends that, irrespective of whether Dr Heathcote may consider that different or additional criteria should have been used, he must show that the assessment of the criteria as they applied to him was “because of” a prohibited reason in accordance with the statutory provisions of s.341 and s.351 of the Fair Work Act. The University submits that Dr Heathcote has failed to provide any objective evidence to establish the foundation of this assertion.
Dr Heathcote submits that the way the criteria applied to him was biased on the part of the persons involved in the decision-making process because of the complaint made in 2004 and his alleged political opinion. Dr Heathcote does not dispute that he did not meet the ERA criterion of four publications in the relevant period. However Dr Heathcote believes that he was placed on the redundancy list at the discretion of Professor Ivison at the Faculty Assessment Panel level, and kept on that list by Professor Garton at the Central Assessment Panel level.
It is Dr Heathcote’s submission that he should have been treated as a special case, and taken off the redundancy list. Professor Garton gave evidence that from 600 academics originally on the computer generated list the University reduced the number of potential redundancies to 160 after the others were removed due to explanations such as fractional appointments, which meant that their publication outputs were to be assessed on a pro rata basis. Professor Garton also cited those removed from the list because of illness, disability or carer’s responsibilities. Lastly, Professor Garton identified those who were removed from the list due to teaching focused positions.[18] Dr Heathcote submits that what distinguished him from the other academics left on the redundancy list were his complaint in 2004 and his alleged political opinion.
[18] T 83:27-34
Dr Heathcote asserts that the Central Assessment Panel was the critical part of the process and where the critical problem in assessing him arose.[19] Dr Heathcote presented to the Central Assessment Panel evidence of significant works in progress. It is Dr Heathcote’s case that the Panel could not have known how to assess his work titled A Primer of Knowledge accurately as either a work in progress or as a textbook when no one on the Panel specialised in philosophy. Dr Heathcote cross examined both Professor Garton and Professor Margaret Harris on this issue (who were both members of the Central Assessment Panel) and was essentially stating that it would be very difficult for an academic to make a judgement on the progress of any particular work outside their own discipline.[20] Professor Garton gave evidence that the Central Assessment Panel referred all publications to the University’s research office which had expertise in how to assess whether a publication was ERA eligible.[21] Therefore the University was making it as fair and objective as possible when assessing the ERA eligibility of an academic’s publication. The University further submits that all academics being assessed were in the same position as Dr Heathcote and none of them had the benefit of their work being assessed by academics knowledgeable in the academic’s own discipline.[22]
[19] T 279:11-26
[20] T 74:35-40, and see T 155:40-45
[21] T 75:1-5
[22] T 296:4-8
Another issue addressed by Dr Heathcote was that it was not clearly communicated to staff that it was not enough to simply provide evidence, as he did, of significant works in progress to the Central Assessment Panel. The University countered that the criterion was not whether an academic had been working on any substantial work for publication in any given time period, but rather if they had been working on a substantial work in the relevant three year time period. Professor Garton gave evidence that the University communicated extensively with staff regarding the change proposals for the redundancy process, informing academics that there needed to be evidence presented of substantial work in progress in the relevant period. This was done through three separate change proposal documents that were distributed to staff progressively and that were also available on a dedicated intranet site, and also that there were websites, public presentations and further faculty level question and answer sessions.[23]
[23] T 81:36-44
Dr Heathcote states that he submitted a manuscript titled The Central Knot to the Central Assessment Panel and said that he had been working on this in the relevant assessment period, however the Central Assessment Panel determined that no progress had been made on this work in the relevant time period. When questioned about this Professor Garton stated that Dr Heathcote produced no supplementary evidence to show what work had been undertaken on this manuscript in the relevant period.[24] When asked whether there was an onus on those assessing to alert the person submitting the work that something further was required to demonstrate that it had been worked on within the relevant time period, Professor Garton stated that it was conceivably possible that the panel could have asked Dr Heathcote for more information. However, Professor Garton also stated that there were plenty of other stages in the process which could have rectified this issue. Additionally, Professor Garton noted that the manuscript was not close to publication, which he said was a key criterion for assessing ERA eligibility, and that this was clearly communicated in the change proposal documents.[25] Professor Garton also stated that even in the case of someone who was submitting a manuscript they had been working on for a considerable period of time such as 10 to 15 years, the University would still expect evidence of other publications in the three year assessment period to meet the research minimum.[26]
[24] T 79:19-20
[25] T 79:39-43 and T 80:5-15
[26] T 83:17-22
In relation to the alleged animosity between Dr Heathcote and Professor Garton, Dr Heathcote asserts that Professor Garton should have recused himself when considering his case. This would have cured any bias, either actual or perceived, from the process of assessment. Dr Heathcote gave evidence in cross-examination and made submissions on events surrounding both himself and Professor Garton being on an episode of Lateline on ABC television where he stated they were presented as adversaries in a presentation about the redundancy process being implemented by the University.[27] Dr Heathcote states that this presentation took place in February 2012, and pre-dated his written submission of 2 March 2012 to the Central Assessment Panel. Dr Heathcote asserts that he believed Professor Garton felt aggrieved at the way he came across on the program.[28] Dr Heathcote states that it was after this interview, that he became concerned about the issue of bias on the part of both Professors Garton and Ivison.[29]
[27] T 43:1
[28] T 42:40-41
[29] T 281:45-46
The University submits that Professors Garton and Ivison had no probative reason to recuse themselves from the redundancy assessment process as it affected Dr Heathcote. The University states that there is not enough evidence to prove any substance to Dr Heathcote’s allegations, and instead Dr Heathcote’s case on the animus between himself and Professors Garton and Ivison rests on surmise, speculation and innuendo.[30] The University states that Professor Garton rectified the problem identified by Dr Heathcote by removing Dr Benitez[31] as supervisor and adjusting Dr Heathcote’s research score. The University further states that Professor Garton was identified in the 2004 complaint through one sentence alone, while Dr Heathcote took issue with many other academics. When read in this context, coupled with the fact that the provost of the University was dealing with thousands of complaints, the University states that it was understandable for Professor Garton to be dismissive of Dr Heathcote’s accusation against him and not have seen the need to recuse himself because of a complaint that had been lodged eight years before the assessment process.[32] The University cites as further evidence that Dr Heathcote was not being singled out for mistreatment that from 2004-2012 he remained uninterrupted in the Department of Philosophy without complaint and was free to teach whatever course he wanted and express any political opinion he wanted.[33]
[30] T 290:14-18
[31] See [17] where I have outlined the history of the complaint made against Dr Benitez in 2003
[32] T 290:41-45
[33] T 291:41-43
In regard to Professor Ivison and the alleged animosity, the University submits that there is a degree of commonality between Professor Ivison and Dr Heathcote regarding their political opinions with both men sharing a liberal tradition based on the individual.[34] The University concedes that there would be points of disciplinary difference between the two men, but for this to then be converted into animus as a positive reason for action is based on mere speculation in this case.[35] The University further submits that, in addition to there being no evidentiary foundation for the bias on a political level, because both men share similar ideals at a core level, there was also no temporal basis for it because Professor Ivison was not in the Department after 2003. The University also points out that Dr Heathcote made no formal complaint about the incident alleged to have occurred in 2001 where Professor Ivison failed to upload material on a website, about which Professor Ivison had no recall.
[34] T 298:32-36
[35] T 299:42-43
Dr Heathcote states that at the Review Committee he presented further evidence of the progress of works for the assessment period 2009–2011. This involved a talk given in the Philosophy Department which related to one of the chapters in the manuscript The Central Knot and also the considerable amount of teaching he had done in the Department which influenced his writing in Primer of Knowledge.[36] Both these were acknowledged by the Review Committee. Dr Heathcote also states that at the Review Committee he argued that Professors Ivison and Garton should have recused themselves. Essentially, Dr Heathcote argues that the Review Committee was an advocate for the University’s position and did not act impartially.[37] When presented with the issue of bias by Dr Heathcote the Review Committee failed to adequately consider the issue and simply rejected it. Therefore Dr Heathcote argues he was denied procedural fairness by the Review Committee.[38] Dr Heathcote sought to explain this denial through the fact that two out of three of the people on the Review Committee panel were from inside the University and were thus derived from a small and closed community in which one’s future could be at stake.[39]
[36] T 280:13-23
[37] T 284:30-34
[38] T 287:9-12
[39] T 281:40-41
In terms of the role of the Vice-Chancellor, Dr Spence, who oversaw the whole redundancy process, Dr Heathcote argues that the Vice-Chancellor could have been more proactive and could have sought to investigate Dr Heathcote’s case, in relation to the allegation of bias against both Professors Ivison and Garton. In the absence of this investigation, Dr Heathcote submits that the Vice-Chancellor’s position in the process was essentially formal, rather than being an active participant. When cross-examined on this, the Vice-Chancellor explained that he did not believe that this was a case where the whole process had been contaminated by bias on the part of Professor Ivison and Professor Garton.[40] The Vice-Chancellor stated further that university complaints and particularly allegations of bias are extremely common[41] and, as he had no more than the fact of a letter of complaint which had been made some eight years before, there was no basis for the belief that this complaint was enough to contaminate the objectivity of Professor Garton in the application of particular criteria and certainly no basis that this contamination had spread throughout the whole process, even those in which Professor Garton had no role such as the Review Committee.[42] In summary Dr Spence stated that he was not intimidated by having to consider an allegation of bias and nor was he ignoring the serious nature of the bias allegation, he simply did not believe that there was sufficient evidence to justify the investigation of the bias complaint in this case.[43]
[40] T 112:20-29
[41] T 122:1-9
[42] T 116:13-28
[43] T 122:23-26
Consideration
Dr Heathcote’s claims are confined to the general protection provisions in Division 3 titled Workplace rights under the Fair Work Act. Dr Heathcote makes two assertions under the Fair Work Act. The first involves a claim of adverse action due to a workplace complaint under s.340 of the Fair Work Act. The second involves a claim of adverse action due to discrimination on grounds of political opinion under s.351 of the Fair Work Act.
The relevant legislative provisions are set out below.
Section 340(1) provides that:
A person must not take adverse action against another person:
(a) because the other person:
(i)has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
A “workplace right” is defined in s.341(1) of the Fair Work Act as:
A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Section 342 of the Fair Work Act defines adverse action by an employer against an employee as action in which the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee other employees of the employer.
Section 360 relevantly states that “a person takes action for a particular reason if the reasons for the action include that reason”.
Section 361(1) provides that:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Section 351 of the Fair Work Act relevantly provides that:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken…
(3) Each of the following is an anti-discrimination law :
(aa) the Age Discrimination Act 2004 ;
(ab) the Disability Discrimination Act 1992 ;
(ac) the Racial Discrimination Act 1975 ;
(ad) the Sex Discrimination Act 1984 ;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
Dr Heathcote must establish that he exercised a workplace right in accordance with s.341 of the Fair Work Act. Dr Heathcote argues that he satisfies s.341 by the complaint made in 2004. The University argues that this complaint, insofar as it related to Professor Garton, did not directly concern Dr Heathcote’s employment. The complaint merely related to the way Professor Garton had dealt with a previous complaint, and did not directly implicate Professor Garton in any bullying or harassment allegation.
In Shea v TRUenergy Services Pty Ltd (No 6)[44] Dodds-Streeton J considered the scope of s.341 of the Fair Work Act and found the following:
[44] [2014] FCA 271
[29] … in the context of s 341(1)(c)(ii) of the Act:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e) a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f) a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g) a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3)[45] Katzmann J found that the relationship between the complaint and the employee’s employment may “be direct or indirect” and the words should be interpreted broadly consistently with the nature and purpose of the legislation.
[45] [2012] FCA 697
In my view Dr Heathcote’s 2004 letter, in so far as it concerned Professor Garton, could be seen as indirectly connected to his employment. Dr Heathcote was clearly expressing a grievance he had experienced in relation to harassment and was implicating the inadequacy of Professor Garton’s actions in the resolution of his grievance. The University argues that Professor Garton was not the main individual being complained about, however, as Dean of Arts at that time, he did have a role in overseeing the way the complaint was investigated. Therefore, I find that Dr Heathcote’s complaint was the exercise of a workplace right for the purposes of s.341(1)(c)(ii) of the Fair Work Act.
In relation to the allegation of adverse action on grounds of political opinion in accordance with s.351 of the Fair Work Act, the University submits that Dr Heathcote’s characterisation of the two streams of philosophy, both the General and the Traditional and Modern stream, is not a political division and is more a disciplinary distinction. In my opinion, both propositions are true. There was a disciplinary distinction between the two streams of philosophy at the University but the reasons for the split in the 1970s were political, and reflected intense ideological divisions between academics at the time. Given his long tenure at the University, Dr Heathcote is entitled to put his own political allegiance forward as a reason for adverse action being taken against him.
Dr Heathcote must then prove that he was subjected to adverse action in accordance with s.342 of the Fair Work Act. For the purposes of this section, adverse action may constitute “injury of any compensable kind”[46] and covers not only legal injury but any “adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”.[47] Additionally, prejudicial alteration of employment covers conduct that results in a detrimental alteration to the employee’s position that is “real or substantial, rather than merely possible or hypothetical”.[48] When assessing whether an employer has engaged in conduct that amounts to a prejudicial alteration of employment the employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements.[49]
[46] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 18
[47] Ibid
[48] Community and Public Sector Union and Another v Telstra Corporation Ltd (2001) 107 FCR 93 at [17] to [19]; see also Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at 187
[49] Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23]
In this case the alleged adverse action claimed by Dr Heathcote is the University’s conduct in placing Dr Heathcote on the redundancy list, failing to remove him from that list, and subsequently terminating his employment. Adverse action is also alleged regarding the blocking of a teaching award by Professor Garton.
The University argues that in the context of a restructure, being subject to a redundancy process where employees are assessed on objective criteria, does not of itself constitute an injury or alteration to Dr Heathcote’s prejudice. The University submits that, at this stage of the process, its conduct was indirect and consequential having only caused “possible or hypothetical” detrimental alteration to Dr Heathcote’s employment. Dr Heathcote was placed on the redundancy list due to a computer generated list of his and other’s research output, and the University submits that there was no guarantee that Dr Heathcote would remain on this list and suffer loss or diminution of security of employment after he was subjected to future recommendations being made by the Central Assessment Panel, the Vice-Chancellor and the Review Committee. The University states further that at this stage of consideration there was the possibility that Dr Heathcote’s position would not be made redundant at all or that alternative arrangements such as a teaching focused position could have been possible.
I accept that there is some force in the submissions of the University with regard to Dr Heathcote being placed on and not removed from the redundancy list. However, the University does concede that the termination of Dr Heathcote’s employment constituted adverse action. It could hardly do otherwise. In my opinion the redundancy decision ultimately taken cannot be divorced from the redundancy process which preceded it. It is necessary, in my view, to consider the whole process of redundancy in order to deal with Dr Heathcote’s claims.
The reasons for the adverse action and s.361 of the Fair Work Act
In accordance with s.361, the Court must now consider the actual reasons of the relevant decision makers who were instrumental in the eventual decision to terminate Dr Heathcote’s employment.
The necessary approach to the operation of s.361 was set out by their Honours French CJ and Crennan J in the High Court decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay[50] (Bendigo) where their Honours stated at [44] – [45]:
44. … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains " why was the adverse action taken?”.
45. This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(Footnotes omitted)
[50] [2012] HCA 32
Their Honours Gummow and Hayne JJ further stated in Bendigo that it is the actual reasons of the relevant decision-makers that must be the focus of the enquiry in general protection proceedings.[51] Additionally, Heydon J stated in Bendigo that whether a particular reason was an operative or immediate reason for an action “calls for an inquiry into the mental processes of the person responsible for that action”.[52]
[51] at [127]
[52] at [140]
In the present case it is for the University to rebut the presumption in s.361 of the Fair Work Act by establishing that Dr Heathcote’s exercise of a workplace right or political opinion was not a substantial and operative reason for his being placed on and not removed from the redundancy list and for the subsequent termination of his employment. The University argues that each of the relevant persons who were involved in the decision making process have given sworn testimony as to their actual reasons for their conduct and denied that they were motivated by the reasons alleged by Dr Heathcote. The University submits that many of the relevant witnesses had no knowledge of the 2004 complaint and Dr Heathcote’s alleged political opinion. Therefore, logically these persons could not be influenced by the alleged prohibited reasons.
The witnesses who were potentially aware of the 2004 complaint and the expression of the alleged political opinion were Professor Ivison, Professor Garton, the members of the Review Committee and the Vice-Chancellor. In summary the University submits that in this respect:
a)Professor Ivison did not have regard to any disciplinary differences between Dr Heathcote and himself when he was involved in the deliberations of the Faculty Assessment Panel;
b)Professor Garton had little or no recall of the fact of the 2004 complaint when he was involved in the deliberations of the Central Assessment Panel and the fact of the complaint did not influence his decision making on this panel;
c)the Review Committee was made aware of these matters by Dr Heathcote and his representatives before that Committee. However, the Review Committee decided that these matters should not be given any weight. Instead the Review Committee stated positive reasons that were not connected to the complaint or the alleged political opinion as to why Dr Heathcote’s position ought to be made redundant. Each of the three decision-makers on the Review Committee gave evidence to this effect. Their evidence was unchallenged by Dr Heathcote;
d)the Vice-Chancellor, Dr Spence, relied on the positive reasons of the Review Committee and could see no evidence that a fair and objective process had not been applied to Dr Heathcote, especially in circumstances where 12 independent academics had all reached the same conclusion. Dr Spence could detect no convincing evidence of bias contaminating the entire process and saw it as inappropriate to make further enquiries himself in this case.
I will consider each of these witnesses’ evidence below, together with Dr Heathcote’s claims.
Criteria chosen to select academics for redundancy
Dr Heathcote claims that the criteria used to select academics for redundancy was unfair. The University submits in answer to this that the criterion of four ERA publications within the assessment period was the most fair and objective criterion to measure the relative contributions of academics across the University. The University further states that the relevant Enterprise Agreement of 2009-2012 confers power on the University to engage in a redundancy process and there is nothing in the Enterprise Agreement that requires the University to use “fair and reasonable” criteria when implementing this process. The only reference to “fair and reasonable” criteria in the Enterprise Agreement relates to the Review Committee at clause 284. At the trial, counsel for the University expanded on this and submitted that the University was not legally required to engage in Faculty Assessment Panels or a Central Assessment Panel, however the Vice-Chancellor decided that this was the most effective method of making the process as accountable, transparent and consistent across the University as possible.[53] Dr Heathcote counters that there was a veneer of fairness to the redundancy process through the two panels but in reality the process was subjective and purely a formality.
[53] See both T 306:30-33 and T 310:41-45
The University further submits that in any event what is significant is that Dr Heathcote must prove that the assessment process as it applied to him was “because of” a prohibited reason. While that is so Dr Heathcote cannot know what was in the minds of those responsible for the process. That is the point of s.361 of the Fair Work Act. I will now consider the application of the process to Dr Heathcote.
Application of criteria to Dr Heathcote
Dr Heathcote concedes that he did not meet the hard criterion of four ERA publications in the relevant time period. On this criterion he had one ERA publication, a book chapter titled Hume’s Master Argument.[54]
[54] There was some contest over Dr Heathcote’s chapter entitled Reply to my Bounteous Critics which was not treated as ERA eligible as it was merely an extension of original research
Faculty Assessment Panel
The Faculty Assessment Panel formed for the Faculty of Arts and Social Sciences was comprised of Professor Ivison, Professor Caine, Honorary Associate Professor Napier, Professor Riegal and Associate Professor Bobis. Once Dr Heathcote was identified on the list for redundancy the Faculty Assessment Panel considered whether there were any exceptional circumstances for removing him from the list. This occurred during November 2011. These circumstances could have related to sickness, absence, essential teaching or some other special circumstances such as research grants. Professor Ivison, who chaired the Faculty Assessment Panel, gave evidence that there were originally 155 names on the redundancy list[55] for the Faculty of Arts and that he held a meeting with staff who were concerned that they would be caught up in the process.[56]
[55] T 219:6-8
[56] T 223:30-36 and T 224:4-6
The Faculty Assessment Panel could find no exceptional circumstances in Dr Heathcote’s case, and thus Dr Heathcote remained on the list, along with 37 other staff in the Faculty of Arts.[57] This list was sent to Professor Garton as the Chair of the Central Assessment Panel on 29 November 2011. At the trial Dr Heathcote questioned Professor Ivison on the issue of whether there was an inherent bias in the process towards those who were known by heads of department to have particular productivity and could therefore be removed from the list. Professor Ivison responded in the negative to this question and stated that the Faculty Assessment Panel was bound by the criteria set out by the draft change proposal and that this was tested by the Central Assessment Panel by asking for further evidence to substantiate the recommendation.[58] Professor Ivison emphasised that the process was undertaken with care and concern and it was not a matter of having a head of school arguing your case.[59] Dr Heathcote disputed this point and emphasised that during 2011, the year the change proposal was released, he was on leave and the then head of school for Philosophy Professor Caine had no familiarity with him or his work.[60] Dr Heathcote asserts that this disadvantaged his chances of being removed from the redundancy list.
[57] T 233:16-18
[58] T 227:23-31
[59] T 228:37-38
[60] T 230:5-9
Honorary Associate Professor Napier gave evidence that the process at the Faculty Panel stage was careful and considered, and there was an obligation that adequate time and attention would be given to each person on the list.[61] Professor Napier further stated that this was a process of colleagues looking at colleagues[62] and there was an expectation on all members of the panel to actively inquire, comment, observe and raise questions.[63] Professor Napier described the process as being “exhaustive” where all possible efforts were made to consider a staff member’s contributions and interests. I have no reason to believe that this method of close scrutiny of the facts and circumstances was not followed in Dr Heathcote’s case.
[61] T 131:44
[62] T 132:8
[63] T 131:46-47
Dr Heathcote also questioned Professor Ivison about seven academics being taken off the list due to teaching focused roles and also, at least in one case, an academic being removed from the list due to being the recipient of a research grant.[64] Dr Heathcote cited these removals from the list as part of the discretion exercised by the Faculty Assessment Panel.
[64] T 237:26-42
I accept that there was a certain amount of discretion or professional judgement used at the Faculty Assessment stage, and that in so far as Dr Heathcote asserts a procedural fairness issue at this level, where political allegiances within faculties and between colleagues played even a small part in the removal of academics from the redundancy list, this may not have been procedurally fair to those academics like Dr Heathcote who remained on the list. However, as Professor Ivison pointed out, his task was to make recommendations not decisions for redundancy, and the process was multi-staged so that any defect within this first level of the process could have been cured at subsequent levels.
In terms of any animosity underlying the retention of Dr Heathcote on the list, Professor Ivison completely denied that any conflict existed between the two men. Professor Ivison stated:[65]
There was no conflict of interest. There was no history of formal complaint or formal dispute between us. The kinds of things that you claim we disagree about, although I believe they are probably not correct, I don’t believe are grounds for recusal. In a diverse university with large numbers of staff there are going to be all kinds of differences of opinion and philosophical views about things, and that’s – I don’t think that’s grounds for recusing myself from that process.
[65] T 251:30-36
Dr Heathcote claimed that Professor Ivison was being deliberately deceptive in his testimony and that the animus caused Professor Ivison to fail to look carefully at any excusing circumstances that he might have otherwise seen.[66] I found the evidence given by Professor Ivison to be unrehearsed and, for the most part, internally consistent. I have considered the philosophical differences between the two men in my consideration of Dr Heathcote’s claims of adverse action based on political opinion. However, I make the observation here that Dr Heathcote did not have any convincing evidentiary basis to support his claim that Professor Ivison should have recused himself from the Faculty Assessment Panel on account of bias. The other observation I make is that this stage of the process seemed the most informal, and therefore the least difficult to explain why an academic should be removed from the redundancy list. Therefore, as Dr Heathcote progressed in the redundancy process, it became more difficult to be excluded from the process. It was unfortunate that Dr Heathcote was on leave in 2011. As Dr Heathcote was on leave, he was not aware of the Faculty Assessment Panel and therefore did not put submissions to it.[67]
[66] T 264:44-47
[67] T 267:24-25
Central Assessment Panel
Dr Heathcote was first informed that his position had been identified as potentially redundant by way of a letter from Professor Garton dated 20 February 2012. Dr Heathcote replied to this letter on 2 March 2012 and claimed that he should have been removed from the list on the basis of:
a)other works that ought to have been taken into account as significant works in progress;
b)his personal circumstances; and
c)his contribution as an effective teacher.
Dr Heathcote presented the above submissions to the Central Assessment Panel which was chaired by Professor Garton, who was one of four members of this Panel. The other members of this Panel were Professor Harris, Professor Britton and Professor Guss. The process of the Central Assessment Panel was to check the accuracy of the publication data underpinning the decision to place the academic on the list, consider the Faculty Assessment panel advice and consider whether there were any other factors that would substantiate a removal from the list.
On 9 March 2012 the Central Assessment Panel reviewed and considered Dr Heathcote’s submissions. All the works submitted by Dr Heathcote were considered by a Research Office, a body delegated to gather, check, assess and review all publications in the University in respect of ERA eligibility. The Central Assessment Panel relied on the information given by the Research Office in assessing Dr Heathcote’s works. In Dr Heathcote’s case, the Research Office advised that none of the works submitted were ERA eligible.
Dr Heathcote submitted a number of works in progress to the Central Assessment Panel. These works included but were not limited to:
a)a book titled A Primer of Knowledge;
b)two books of poetry titled Yseult’s Dream and The Eternities;
c)a manuscript titled The Central Knot.
At the trial, Dr Heathcote disputed the way all the works he submitted had been treated by the Central Assessment Panel. He questioned Professor Garton and Professor Harris on how someone who did not come from the discipline of philosophy could know how to accurately classify his works. In particular he focused on the way A Primer of Knowledge had been treated as a textbook rather than an original work containing additional research. The witnesses stressed that as A Primer of Knowledge had been published within the University as part of course materials disseminated in a first year course and not outside the University by a commercial publisher it did not count as ERA eligible. Additionally, this work lacked the temporal requirement for the redundancy process as there was no evidence that there had been any substantial revision to the work since 2008. Professor Harris, who has considerable experience in reviewing works for research bodies and councils, stated that A Primer of Knowledge could not qualify as ERA eligible as it did not contain a significant amount of original research.[68] Professor Harris denied that an independent analysis was necessary in order to determine whether this work would be ERA eligible.
[68] T 154:39-41
Dr Heathcote also questioned Professor Garton on poetry he submitted. Professor Garton stated that the Research Office did not consider the poetry ERA eligible and the Panel classified the poetry as a hobby and not tied to Dr Heathcote’s employment and arising out of research from that employment, as specified in the change proposal criteria.[69] I put it to both Professor Garton and Professor Harris that it was possible to philosophise in verse. Professor Harris conceded that it was possible[70] but did not accept that that was what Dr Heathcote was doing.
[69] T 78:11-15
[70] T 157:34-36
In relation to The Central Knot Dr Heathcote questioned Professor Garton as to how the Panel was able to make an assessment that no progress had been made on that manuscript from 2009 to 2011. Professor Garton answered that as Dr Heathcote had not supplied any evidence supporting this assertion to the Panel, the Panel was unable to assess that progress had been made on this work in the time period in question. Professor Garton conceded that perhaps the Panel could have asked for this information, but further emphasised that there were other stages in the process to test that information. Professor Garton also stated that the manuscript was not ready for publication which was an important part of the criterion.[71] When asked by me whether the Panel considered if an academic was writing a significant manuscript such as their opus maximus that took a considerable amount of time to write Professor Garton replied as follows:[72]
So we expect – and there are many examples of members of staff who might take 10, 15, 20 years to work on a manuscript – but they would also be publishing other things at the same time, some of those things arising out of the research for the book and, therefore, not an unreasonable expectation that even for someone working on a manuscript, to also meet the research minimum of an average of three publications across a three year period.
[71] T 79:41-43
[72] T 83:17-22
Dr Heathcote also took issue generally with what and how the University communicated to academics concerning the criteria of the redundancy process. Professor Garton stated that the change proposals were properly communicated to staff through three distributed separate documents, an intranet site, Q &A sessions and “Town Hall” meetings. Counsel for the University stated that the importance of having a certain time period as a measure of academic research output was to ensure that the process was fair and did not allow academics to submit works that may have been started or completed many years before the redundancy process was implemented. In my opinion, the way the change proposals were communicated to staff was reasonable and proactive. It was also reasonable to have a contained time period to assess staff on research output.
Dr Heathcote also took issue with the reliability of the ERA process and questioned Professor Harris on this subject. Essentially, Dr Heathcote advanced the proposition that assessing a work as ERA eligible was a subjective issue in which minds may differ. Professor Harris denied that the process was fatally flawed and denied that the criteria were inherently unreliable.[73]
[73] T 165:33-39
In my opinion, taking into account all the evidence presented, the way Dr Heathcote’s works were assessed by the Central Assessment Panel was as rational and objective as possible. There were slight inconsistencies in the way the witnesses defined the ERA criteria, but I can detect no fatal flaw in that process. Dr Heathcote claims that the members of the Central Assessment Panel were not qualified in philosophy and that an independent assessor should have been called to give their opinion on the nature of his works in progress. I reject the contention that Dr Heathcote suffered a particular disadvantage. There were numerous staff that were also going through the process of redundancy at the Central Assessment Panel stage, and none of them had the advantage of such a benefit. Dr Heathcote claims that what made his case different from the other candidates on the redundancy list was the alleged animus between Professor Garton and himself, and therefore his case should have been considered in an even more stringent and isolated manner. I address that issue below.
Dr Heathcote claimed that Professor Garton should have recused himself from the Central Assessment Panel based on the workplace right he exercised in the form of a complaint, and subsequent animus that existed between the two men. The University contends that there is not enough evidence to support this claim and thus the claim rests on speculation. Dr Heathcote was cross-examined on this subject as follows: [74]
[74] T 41:36-47 and T 42:1-21
Mr Shariff: The relevant conduct as at March 2012 that you say was the source of any bias on the part of Professor Garton had occurred in 2003 and 2004; correct?
Dr Heathcote: Correct.
Mr Shariff: We were now some eight years post event; correct?
Dr Heathcote: Correct.
Mr Shariff: And are you seriously suggesting to his Honour that you expected Professor Garton who by now was the Provost, to recall something that had occurred eight years ago? Is that your serious suggestion to the court?
Dr Heathcote: My suggestion is that not only did he remember it, it was very easy to – it was very easy to believe that he was a man who held a grudge.
Mr Shariff: Do you have – that assertion you’ve just made, do you have any evidentiary basis yourself to make such a very serious assertion against the Provost?
Dr Heathcote: What do you mean by “evidentiary”?
Mr Shariff: Well what’s the basis of your assertion? You say that he held a grudge which you would accept, wouldn’t you, is a very serious accusation to make against a senior academic at the university?
Dr Heathcote: I don’t know that it’s a serious accusation. I don’t think it’s – it’s a human failing. People hold grudges. I don’t know that one would – I think one would be rather surprised to learn of an individual who didn’t hold a grudge when a serious accusation is made against them. I mean, even if – suppose that the accusation was taken to be something which was unfounded, you would still feel as though it was a stain on your reputation, an imputation against your character. It would be human to feel – to hold a grudge in that circumstance.
His Honour: The question is, Dr Heathcote, what is there apart from the fact of your complaint that makes you think he held a grudge against you?
Dr Heathcote: As of the time of putting that, I simply believe that he did. I had seen him around the university. We – our eyes had met. And like everyone, I’m able to form opinions about exactly what I think.
Dr Heathcote also stated that he believed Professor Garton’s bias towards him had been enlivened by a Lateline appearance by both men on ABC television in a report about the redundancy process at the University, where he stated they were presented as adversaries.[75] Dr Heathcote claimed that this Lateline appearance pre-dated his submissions to the Central Assessment Panel on 2 March 2012, but that he chose not to request that Professor Garton recuse himself at this point of the redundancy process.[76]
[75] T 43:39-44
[76] T 43:15-17
The University denies that Professor Garton could have influenced all the other members of the Panel, who were independently making their own assessments about the candidates for redundancy. In fact, the University states that all the other members of the Panel denied having any knowledge of the complaint. The University further submits that complaints by academics in a university are routine, and that given the role of Professor Garton as Dean of Arts at that time, a complaint of this nature was not a significant issue. Indeed, Professor Garton has given evidence that he only faintly remembered the 2004 complaint at the time of the Central Assessment Panel. It was only afterwards, at the Review Committee stage that the complaint was clearly brought to his attention, when Dr Heathcote raised it in his submissions to the Review Committee.
On the evidence presented of the alleged animus, I find that it does not support the assertion advanced by Dr Heathcote. The evidence shows that Professor Garton in 2004, was cleared of any improper conduct by Professor Hearn. Likewise the evidence does not support the allegation that Professor Garton held a grudge against Dr Heathcote for making his complaint, and that this grudge would have manifested itself eight years later when he chaired the Central Assessment Panel. In saying this, I do not rule out the possibility of Professor Garton harbouring ill–will towards Dr Heathcote. Rather, any allegation of animus between the two men remains speculative. The Lateline episode was not in evidence and Dr Heathcote’s assertions about it are bare assertions. I observe that if Dr Heathcote felt so strongly about an existing animus between himself and Professor Garton, perhaps he should have raised the issue of recusal in his submissions to the Central Assessment Panel rather than first mentioning the issue at the Review Committee stage.
In relation to teaching, the Central Assessment Panel decided that Dr Heathcote’s teaching was not critical to the teaching of his particular discipline. Dr Heathcote emphasised his excellence as a teacher and questioned various witnesses about the role that teaching played in his ability to be excluded from the list. However all the witnesses, including Dr Spence and Professor Garton, made it clear that there was no objective measure to assess the quality of teaching, and that teaching was not a criterion of the change proposals. I accept that evidence. In Dr Heathcote’s case, the Faculty had made no claim that his teaching was essential to the curriculum and that Dr Heathcote should therefore receive an offer of a Teaching Focused Role.[77] There was a report prepared by the head of philosophy Professor Caine to the Central Assessment Panel.[78] Professor Caine’s report stated that while it would be difficult to lose Dr Heathcote for the second semester of 2012 she did not make any such assertions regarding 2013 onwards. Thus the Central Assessment Panel determined that Dr Heathcote’s redundancy could be delayed by one semester to 31 December 2012. The University asserts that as Professor Caine was not called for cross-examination, her evidence must be accepted. I do accept it.
[77] See [5 b)] of affidavit of Professor Caine dated 9 July 2013
[78] See Annexure 18 to affidavit of Professor Garton dated 16 July 2013
While sympathetic to Dr Heathcote’s personal circumstances, the University also submits that the Central Assessment Panel could not find substantial weight in Dr Heathcote’s personal circumstances regarding his divorce and the death of his mother which impacted on his research output in 2008 and 2009. I accept that submission.
Review Committee
On 7 May 2012 Dr Heathcote received a letter from the Vice-Chancellor that his position had been identified as redundant and was given the option of accepting voluntary redundancy, seeking redeployment or requesting a review of the decision of redundancy. In accordance with clause 283 of the Enterprise Agreement Dr Heathcote chose to have the redundancy decision reviewed.
The Enterprise Agreement relevantly provides:
Review of redundancy decision
283 A staff member who receives notice in accordance with clause 268 may apply to the Delegated Officer (Staffing) for a review of the decision that their position is redundant, and the University will convene a Review Committee within ten working days of receiving such a request.
284 The Review Committee will review the decision to declare the staff members position redundant and prepare a report for the Delegated Officer (Staffing) within ten working days (or such longer period as may be reasonable necessary for it to complete its review) in relation to:
(a) whether the staff member’s position was genuinely redundant;
(b) whether fair and objective criteria were used to select the staff member for redundancy;
(c) whether the consultation requirements in clauses 257 to 263 were followed, and, if not, whether any unfairness resulted from a failure to follow those requirements; and
(d) whether adequate consideration was given to measures to avert or mitigate the adverse effects of redundancy, and if not, whether there were alternative measures available.
At the Review Committee meeting on 18 July 2012 Dr Heathcote was supported by a representative from the NTEU, Mr Joshua Gava. Ms Rehn, a Senior Solicitor from the Office of General Counsel of the University was also present representing the Vice-Chancellor. The Review Committee was comprised of Professor Bennett, Dr Sullivan and Professor Meagher.
Dr Heathcote asserts that the Review Committee acted partially and was basically an advocate for the University’s position.[79] At the trial, I put to Dr Heathcote that as the Review Panel did not have Professors Garton or Ivison on it, how could it have been affected with the same bias that he asserted occurred at both the Faculty Assessment and Central Assessment Panels? Dr Heathcote replied that universities are small and closed communities where people are dependent on others for promotion, travel grants or permission to have time away from teaching for a particular purpose.[80] Essentially Dr Heathcote disputes the independence of the Review Committee members when they considered his issue of bias on the part of Professors Ivison and Garton.
[79] T 284:31-32
[80] T 281:20-24
Professor Bennett, who chaired the Review Committee and was not called for cross-examination, refuted Dr Heathcote’s assertion that the Review Committee acted as a “rubber stamp” for the University’s redundancy process.[81] Professor Bennett further stated that the Review Committee carefully considered and tested all of the evidence put before it. The Committee also felt it needed post-hearing information and sought further evidence from the parties and from the Research Office. Professor Bennett also stated that the Committee members did not receive any directions from University management or otherwise regarding what decision to make on any individual’s case, and that the Review Committee’s conclusions were based entirely on each member’s own independent assessment of the relevant evidence.
[81] At [26] of the affidavit of Professor Bennett dated 11 July 2013
The University submits that Dr Heathcote’s assertions regarding the consideration of his allegation of bias are misconceived and misunderstand the process undertaken by the Review Committee. As stipulated by the Enterprise Agreement, the task of the Review Committee was to take a fresh look at the entire process. It was not within the scope of the Review Committee’s instructions to make specific findings regarding allegations of bias – rather the Review Committee would examine the relevant evidence to make findings on the four points dictated by the Enterprise Agreement in clause 284. If this process was properly conducted, the process would bring to light any bias or improper conduct during the process of both the Faculty Assessment and Central Assessment Panels. I agree with those submissions.
In my opinion the Review Committee properly conducted its task in accordance with the criteria outlined above in clause 284 of the Enterprise Agreement. The issue of bias was considered, but the Review Committee concluded that there was not enough evidentiary weight to support a finding of bias. I have read and considered the report prepared by the Review Committee[82] and find that the Committee gave detailed and cogent reasons for its decision to retain Dr Heathcote on the redundancy list. In terms of its independence I have no reason to doubt the testimony given by Professor Bennett in her affidavit. Ms Rehn gave evidence that ten academics chose to have their case considered by the Review Committee and in two cases the Review Committee overturned the previous decision and removed these academics from the list.[83] This is evidence of a Committee that is not blindly following the information that is presented to it from the previous two Panel’s recommendations, but is undertaking its own investigations and coming to its own conclusions.
[82] At Tab 10 of R1
[83] T 213:1-5
Final decision of the Vice-Chancellor
On 19 September 2012 Dr Spence received a copy of the Report from the Review Committee. It was Dr Spence’s evidence that after careful consideration of all the views expressed in the Report he decided to proceed with the decision to declare Dr Heathcote’s position redundant. Dr Spence gave evidence at the trial that he made it a point not to become involved in any individual’s case before a recommendation came to him[84] and that he trusted the process and that the recommendations he had were made in good faith. Dr Heathcote questioned Dr Spence as to why he made no further inquiries as to the nature of his allegation of bias: [85]
[84] T 107:24-25
[85]T 116:2-28
Dr Heathcote: You didn’t inquire as to whether it was a serious complaint made against Stephen Garton. You didn’t inquire as to whether it was a serious complaint or whether it was not a serious complaint. You didn’t inquire – you didn’t for example ask to meet me and ask me for my views on the matter, so you had nothing on my side as to evidence as to whether I was trustworthy or whether I was telling the truth or anything of the kind?
Dr Spence: Okay, can I distinguish two stages here. First of all you have suggested that there was some kind of nonfeasance in my failing to know that at the time of the original recommendation about the issues that you claim bias, either Professor Garton or Professor Ivison.
The whole reason for having the review process is precisely to give people the opportunity to present issues that they don’t think had been taken into account. You did raise those issues. To suggest that at this stage of the recommendation, I ought to conduct in relation to every complaint investigations of potentially limitless scope about whether or not there is some external grounds for believing that the recommendations may or may not be contaminated in some way is rather peculiar. When we get to the review committee, I have all the things that I have talked about that have – that, as it were, weigh up to suggest that there’s been no contamination.
What I have on the other side is a letter from you, the veracity of which I had absolutely no reason to doubt and which I completely accepted, affirming that there had been a complaint. Not actually saying that this complaint of the subsequent almost decade has led to a pattern of decision making by Professor Garton. I just had the fact of a complaint. And university complaints are made all the time.
…
So no reason to think necessarily that Professor Garton‘s participation had been contaminated and even if it had been, absolutely no reason to suggest that that contamination had spread, as it were, to all those parts of the process, even those in which Professor Garton had had no role.
Dr Spence stated further that there was simply not enough evidence that a contamination of bias had occurred and survived right throughout the process. I accept his evidence. In my opinion the University engaged in a sound procedure of checks and balances to the recommendations made determining Dr Heathcote’s redundancy. Certainly the Review Committee considered the issue of bias in an impartial way where any improper conduct would have come to light.
I compare and contrast this case to National Tertiary Education Union v Royal Melbourne Institute of Technology[86] where unlawful adverse action was found. When considering the appropriate penalties his Honour Justice Gray stated at [141]:
The contravention of s 340(1)(a) of the Fair Work Act must be regarded as very serious. In effect, RMIT made use of its redundancy processes to rid itself of an employee, who was considered to be troublesome, at least partly because she was prepared to exercise her workplace rights by making complaints about the behaviour of her immediate supervisor. The process was conducted unfairly, with an attempt to narrow the focus of consideration to a financial situation which was alleged to exist, but not established by a rigorous process and not in accordance with reality. Attempts to introduce into the redundancy process objective criteria, by reference to which Professor Bessant might have been able to justify retaining her position, were resisted. The contravening reasons for Professor Bessant’s dismissal were kept secret. Even in Court, they were not addressed by Professor Gardner, and others who could have shed light on them were not called to give evidence.
[86] [2013] FCA 451
In contrast to that case, objective criteria in this case were used in the University’s redundancy process and all relevant witnesses gave evidence as to the reasons for Dr Heathcote’s employment being made redundant. I could detect no secrecy or layers of concealment as to why Dr Heathcote was kept on the redundancy list. Also, in contrast to the above case where Gray J found that financial reasons were used untruthfully as a motive for the redundancy, and that redundancy only impacted on one individual who had made complaints about her supervisor, in this case there was a university wide redundancy process based on financial constraints where many academics where made redundant. I can find no evidentiary basis for the proposition that Dr Heathcote was in some way targeted through this process more than the other academics who were all caught by the change proposal criteria.
The University submits that the decision to have a redundancy process as part of a budgetary issue was a matter of its own managerial prerogative and there was a genuine need to make positions redundant in 2012. It states that both Dr Spence and Professor Garton’s evidence in this regard was unchallenged and accordingly should be accepted. It also states that ultimately Dr Heathcote did not pursue the argument that the redundancy process was a performance management process in disguise. The University addressed Dr Heathcote’s assertion that new appointments had been made in the Philosophy Department by stating that these appointments, as indicated by Professor Garton, had been made at a lower level, in accordance with budgetary requirements. I accept that submission.
During the course of argument at the trial, Dr Heathcote suggested that the redundancy of his position was not genuine because subsequently the University had made new appointments to the Philosophy Department. On that issue I accept Professor Garton’s evidence that, while there was no prohibition on individual departments offering roles similar to those made redundant, they needed to be at a lower level, thus changing the nature of the positions offered.
Connection between political opinion and adverse action
As noted earlier, Dr Heathcote’s other claim of adverse action relates to political opinion in accordance with s.351 of the Fair Work Act. Dr Heathcote claimed that due to the acrimonious history of the Philosophy Department and the political division between Dr Ivison and himself, Dr Ivison should have recused himself from the Faculty Assessment Panel. I have discussed that claim at various points above, and here I provide my conclusions about it.
The University’s primary submission is that Dr Heathcote is unable to bring a claim for political opinion discrimination due to the operation of s.351(1) and (2) of the Fair Work Act and further, that Dr Heathcote has not identified a “political opinion” for the purpose of the Fair Work Act. It would be a mistake, in my view, to give the reference to “political opinion” in s.351(1) of the Fair Work Act a narrow definition. Section 351(1) of the Fair Work Act does not incorporate or otherwise interact with any definition of “discrimination” in Commonwealth or State anti-discrimination legislation. [87] Further, in my view Dr Heathcote has with sufficient clarity identified a political opinion related to the split in the Philosophy Department at the University many years ago. However, Dr Heathcote’s political opinion, in my view, played no part in the adverse action taken against him.
[87] See Hodkinson v Commonwealth (2011) 248 FLR 409
I could detect no deception in Professor Ivison’s testimony to the Court under cross-examination. In contrast to what was put by Dr Heathcote of a difference in the way the two men considered politics and philosophy I find there was a degree of commonality between the two. Both subscribed to a liberal view involving individual freedom. Professor Ivison conceded a difference on the finer points, but did not believe this would affect his interpersonal relationships with colleagues. Under cross-examination Professor Ivison stated:[88]
[88] T 246:43-47 and T 247:1-9
Professor Ivison: …I would classify myself as a liberal political philosopher. Most of my published work is connected to the language of rights, individual freedom and, in particular, the work of John Rawls, who’s considered to be one of the most important liberal political philosophers of the 20th century.
…
His Honour: So would you put yourself in the same philosophical camp, in broad terms, as Dr Heathcote?
Professor Ivison: Yes. That’s what I’m suggesting. On – your Honour, on those general points. No doubt there are important points of difference between us in relation to other things.
In relation to the issue of recusal Dr Heathcote questioned Professor Ivison as follows:[89]
Dr Heathcote: There was a history which was understood not just within the university, but widely across the philosophical world. Do you accept that?
Professor Ivison: There was certainly a history understood, I guess, in the university. Yes, to be sure, yes.
Dr Heathcote: And that disagreement, that opposition, that antagonism was rather a famous matter in the academic world in philosophy…would it not have been appropriate under these circumstances to recuse yourself so that someone like me would not have had the feeling that there is a possibility of all of this being manifest in your decision..?
Professor Ivison: No, I don’t accept that because, as I said, I wasn’t party to the original disagreement. That split the departments and kept them apart in the 70’s and 80’s. My experience of the department when I arrived was of, essentially of a single department with the normal philosophical disputes within them. And as I said there was no conflict of interest or, in my view, perceived or real potential for bias, not only from my perspective as Dean, but in terms of the way the process, the overall change management process was designed. So no, I don’t agree with you.
[89] T 252:4-23
I accept that decades ago there were bitter divisions within the Philosophy Department of the University that split it, however the material point is that Dr Heathcote’s evidence of animus lacks foundation. First, and importantly, Professor Ivison was not a party to those divisions. He arrived much later. Secondly, no formal complaint was made about an incident in 2001 where Professor Ivison failed to upload course materials on to a website. Professor Ivison denied having any recall of this incident. The University submits that this incident, which occurred over a decade ago, does not demonstrate evidence of Professor Ivison exercising animosity towards Dr Heathcote because of an alleged political view. I agree.
Conclusion
I conclude that the redundancy process, in so far as it applied to Dr Heathcote and led to the Vice-Chancellor’s decision to make his position redundant, was not undertaken for a prohibited reason. To the extent necessary, the University has discharged its onus in accordance with s.361 of the Fair Work Act. I am convinced that there was no link between Dr Heathcote’s political opinion and the alleged incidents of animus and the adverse action.
I will hear the parties as to any issue of costs.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 November 2014
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