Lim v Flinders University of South Australia (No 2)
[2021] FCCA 614
•31 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Lim v Flinders University of South Australia (No 2) [2021] FCCA 614
File number(s): ADG 155 of 2017 Judgment of: JUDGE HEFFERNAN Date of judgment: 31 March 2021 Catchwords: INDUSTRIAL LAW – contravention – adverse action – whether unlawful dismissal – whether applicant discriminated against in her employment – whether employer breached Enterprise Agreement – application dismissed Legislation: Fair Work Act 2009 (Cth), ss 50, 340, 341, 341(1), 342(1), 343, 343(1)(a) & (b), 345, 345(1)(a) & (b), 351, 361, 545, 550, 570 and 793 Cases cited: Tattsbet Ltd v Morrow (2015) 321 ALR 305
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Beasley v Australian National University [2011] FMCA 792
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341
Ramos v Good Samaritan Industries [2013] FCA 30
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
Australian Workers Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482
Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560
Hodkinson v The Commonwealth (2011) 248 FLR 409
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283
Construction, Forestry, Mining & Energy Union (CFMEU) v McConnell Dowell Constructors (Aust) Pty Ltd (2014) 285 FLR 389
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441
Ellis v Barker (1871) 40 LJ Ch 603
Short v Ambulance Victoria [2014] FCA 3
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132
Kucks v CSR Ltd (1996) 66 IR 182
Amcor Ltd v CFMEU (2005) 222 CLR 241; [2005] HCA 10
Number of paragraphs: 366 Date of last submission/s: 9 September 2019 Dates of hearing: 12 – 15 February 2019, 8, 9, 30 & 31 May 2019, 19 August 2019 Place: Adelaide Counsel for the Applicant: Ms Pangallo Solicitor for the Applicant: Bourne Lawyers Counsel for the Respondent: Mr S Prince SC and Ms M Makris Solicitor for the Respondent: HWL Ebsworth ORDERS
ADG 155 of 2017 BETWEEN: HAZEL LIM
Applicant
AND: FLINDERS UNIVERSITY OF SOUTH AUSTRALIA
First Respondent
ANAND GANESAN
Second Respondent
DEREK CHEW (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE HEFFERNAN
DATE OF ORDER:
31 MARCH 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The respondents have liberty to apply for costs under s 570 of the Fair Work Act 2009 (Cth) for the trial and their Application in a Case sealed on 30 July 2019.
REASONS FOR JUDGMENT
JUDGE HEFFERNAN
This is an application alleging numerous instances of adverse action and breaches of the Flinders University Enterprise Agreement 2014-2017 (‘FUEA’) which are said to amount to contraventions of the Fair Work Act 2009 (Cth) (‘the FW Act’). The applicant relied on her Amended Application filed on 12 November 2018 (‘the application’).
During the pre-trial phase of these proceedings, the applicant was for the most part unrepresented. She was unrepresented at the time of filing the Amended Application. Immediately prior to the trial, the applicant made an application for the matter to proceed on a bifurcated basis with the question of quantum to be adjourned to a later date pending the outcome of the liability phase of the trial. The applicant was represented at that time and counsel argued the bifurcation application on her behalf. I dismissed that application. The applicant then appeared unrepresented from the commencement of the trial until 8 May 2019 when she again became represented but with different counsel. The matter proceeded before me part-heard and over several days.
The parties
The applicant
Dr Lim was employed by the first respondent as a Research Fellow (Research Academic Level B between 19 December 2016 and 18 March 2017).
The first respondent
Flinders University of South Australia is a tertiary education institution based in Bedford Park, South Australia. It employed the applicant between 19 December 2016 and 18 March 2017.
The second respondent
Associate Professor Anand Ganesan is employed by the first respondent. At the time of swearing his trial affidavit, and at all relevant times, he was the Matthew Flinders Fellow in Electro Physiology, Hypertension and Cardiology. He supervised the applicant from the commencement of her employment with the first respondent until 1 March 2017.
The third respondent
Professor Derek Chew was at the time of swearing his trial affidavit, and all relevant times, a Professor of Cardiology and an Interventional Cardiologist employed by the first respondent. He supervised the applicant between 2 March 2017 and 18 March 2018 when her employment was terminated.
The fourth respondent
Steve Waltham was at the time of swearing his trial affidavit employed by the first respondent as its’ Associate Director of People and Culture.
The fifth respondent
Professor Bill Heddle was at the time of swearing his trial affidavit, and at all relevant times, a Professor of Medicine employed by the first respondent. At all relevant times for the purpose of these proceedings he held the position of Associate Dean and Head of Flinders South Adelaide Clinical School.
The sixth respondent
Professor Ross McKinnon was at the time of swearing his trial affidavit a Beat Cancer Professor and a Matthew Flinders Distinguished Professor employed by the first respondent. At all relevant times for the purpose of these proceedings, he held the dual role of Associate Dean (Research) for the Flinders University School of Medicine and as Research Integrity Officer with the Flinders University Faculty of Medicine, Nursing, and Health Sciences.
As will be seen, for the sake of concision and clarity, I have when referring to Dr Lim referred to her at all times as the applicant, except where quoting from the evidence, and with respect to the other parties and witnesses, I have referred to them by their surnames, omitting their academic titles and, except where necessary, their position descriptions. No disrespect is intended by my having done so.
THE FINAL AMENDED FORM 2 APPLICATION ALLEGING DISMISSAL IN CONTRAVENTION OF A WORKPLACE RIGHT
The applicant filed a number of amended Applications before the final version (‘the Application’) filed on 12 November 2018, on which she proceeded at trial. The Application is lengthy, minutely detailed, and confusing in its’ structure. Given the multiplicity of allegations made by the applicant, it is necessary to summarise at some length the exercise of workplace rights asserted, the adverse action alleged to have been taken, and the resulting contraventions alleged. Those matters are set out in the tables below in the order they appear in the application, citing the asserted relevant sections of the FW Act as they appear in the application. The failure to identify the contraventions by clearly numbering them, in favour of a discursive pleading across 138 paragraphs, has made this approach necessary. I have given each alleged contravention a number to which I have referred when considering the merits of the application.
Alleged exercising of workplace rights by applicant
The applicant asserts that she exercised a workplace right on the following occasions:
Asserted Exercise of Workplace Right (‘WPR’)
Date
Description
WPR1
10/1/17
Her request to Ganesan for further time to finish off university staff induction course. s 341(a)
WPR2
31/1/17
Her request to Ganesan to discuss and agree deliverables and professional development plan (Form A). s 341(a)
WPR3
31/1/17
Her complaint to Dawson-Howard about Ganesan refusal to complete Form A, unreasonable deadlines, bullying and unsafe workplace. s341(c)(i)-(ii)
WPR4
31/1/17
Her request to Dawson-Howard that deliverables and KPIs be put in a Form A. s341(1)(a)
WPR5
31/1/17
Her complaint to Dawson-Howard that she did not have access to a computer. s341(c)(i)-(ii)
WPR6
1/2/17
Her request to Ganesan that he set reasonable and realistic deadlines appropriate to her position and that he provide feedback support and training. S341(a)
WPR7
3/2/17
Her further requests to Ganesan that he set a reasonable workload and deadlines for her in accordance with the FUEA. s341(a)
WPR8
7/2/17
Her request to Ganesan that he discuss and agree on a Form A. s341(1)(a)
WPR9
16/2/17
Her complaint to Dawson-Howard that Ganesan was refusing to comply with the requirement for a performance review in accordance with the FUEA, unreasonable workloads and failure to provide a safe workplace free from bullying during her probation period. s341(1)(c)(i)-(ii)
WPR10
16/2/17
Her second complaint on this day to Dawson-Howard: about Ganesan, and the unrealistic requirement that she finish a Lancet article by 15 March, which was bullying. s341(1)(c)(i)-(ii)
WPR11
16/2/17
Her third complaint to Dawson-Howard on this day: that she had no stationery, no access to a kitchenette and no toilet facilities on her floor contrary to the FUEA. s341(1)(a),(c)(ii)
WPR12
21/2/17
Her request to Ganesan that he agree on the authorship of The Lancet paper by filling out an Authorship and Location of Data form and her further request for a Form A. s341(1)(a)
WPR13
21/2/17
Her request to Dawson-Howard to assist her in resolving her dispute with Ganesan about workloads, deadlines, authorship and his intimidating and taunting emails. s341(1)(c)(i)(ii)
WPR14
22/2/17
Her complaint that it was unreasonable and unfair to conduct a performance review at this time and her enquiry as to whether or not all of her previous complaints would be addressed at the meeting scheduled for that day. s341(1)(a),(c)(i)(ii)
WPR15
28/2/17
The complaint embodied in her email to Dawson Howard prior to their meeting on this day, confirming all of her previous complaints. s341(1)(c)(i)(ii)
WPR16
28/2/17
Her complaint to Dawson Howard at the performance review meeting that performance concerns about her were baseless and in the absence of any evidence amounted to bullying and her complaint about having to report to Ganesan as her supervisor given his work demands amounted to bullying. s341(1)(c)(ii)
WPR17
1/3/17
Her written complaints to Ganesan. s341(1)(c)(i)(ii)
WPR18
3/3/17
Her complaints to McKinnon that Ganesan was refusing to comply with various requirements under the FUEA. s341(1)(c)(i)(ii)
WPR19
6/3/17
Her complaints to SafeWork SA about bullying and harassment. s341(1)(c)(i)
WPR20
7/3/17
Her complaint to Dawson-Howard that the minutes of the meeting on the 28/2/17 were inaccurate and her response to the allegations of poor performance. s341(1)(c)(i)(ii)
WPR21
9/3/17
Her complaint to McKinnon refusing allegations made by Dawson Howard about her absence from work between 28/3/17 and 9/3/17. s341(1)(b)(c)(i)(ii)
WPR22
14/3/17
Her enquiry about agreement of authorship for The Lancet paper as per Flinders University’s authorship guidelines. s341(1(c)(i)
WPR23
16/3/17
The lodgement of her complaint with the Equal Opportunity Commission with respect to discrimination on the basis of her caring responsibilities and complaints made by her about bullying harassment exploitation discrimination and research misconduct. s341(b),(c)(i),(c)(ii)
WPR24
17/3/17
Her complaint to Chew, Waltham and McKinnon that Dawson Howard’s minutes of the 16/3/17 meeting were inaccurate and her provision of further information to Waltham at his request. s341(1)(c)(i)(ii)
Alleged Adverse Actions
The adverse action and corresponding contraventions alleged by the applicant are as follows:
Alleged Adverse Action (‘AA’)
Date
Description
AA1
31/1/17
Ganesan’s refusal to discuss Form A. s 342(1)(1)(b)(c)(d)
AA2
31/1/17
Criticism of applicant for being ‘culturally different’ s342(1)(1)(b)(d), s351(1)
AA3
31/1/17
Ganesan’s notification to Heddle of a ‘performance management concern’ with respect to the applicant. s 342 (1)(1)(b)(d)
AA4
2/2/17
Threat to applicant’s employment by Ganesan when he told her that the best chance of a sustainable career was to exceed deadlines in the Work Plan. s342(1)(1)(b)(c)(d)
AA5
3/2/17
Criticism by Ganesan that applicant had taken too much time off work. s342(1)(1)(b)(d)
AA6
7/2/17
Unreasonable requirement by Ganesan that applicant complete Lancet article by 15/3/17. s 342(1)(1)(b)(c)(d)
AA7
21/2/17
Intimidating and taunting e mails sent to applicant by Ganesan. s342(1)(1)(b)(d)
AA8
21/2/17
Notification by Ganesan to Gill and Dawson-Howard of his concern that applicant may not successfully complete probationary period. s342(1)(1)(b)(d)
AA9
22/2/17
Notification to applicant that she was required to attend a performance management meeting. s342(1)(1)(b)(d)
AA10
28/2/17
Requirement that applicant sign a memorandum recording performance concerns. s342(1)(1)(b)(c)(d)
AA11
9/3/17
Baseless allegation by Dawson-Howard that applicant had been absent from work without approval. s342(1)(1)(b)(d)
AA12
14/3/17
Refusal by Chew to look at applicant’s work, calling the situation an ‘impasse’ and failing to resolve the impasse. s342(1)(1)(b)(d)
AA13
14/3/17 – 16/3/17
False recording by Dawson-Howard matters relating to applicant in minutes of meeting on 14/3/17. s342(1)(1)(b)(d)
AA14
16/3/17
Ganesan and Chew recommending that applicant be dismissed. s342(1)(1)(a)(b)(d)
AA15
16/3/17-17/3/17
Flinders University and Waltham’s approval of Chews recommendation that applicant be dismissed. s342(1)(1)(a)(b)(d)
AA16
17/3/17
Decision by Flinders University to dismiss applicant. s342(1)(1)(a)(b)(d)
AA17
10/1/17-31/1/17
Ganesan’s repeated orders that applicant not read Flinders University guidelines because she was wasting her time. s342(1)(1)(b)(d)
AA18
31/1/17
Dawson-Howards’ question to applicant about whether the list of performance expectations should be on Form A. s 345(1)(a)(b) Misleading representation about applicant’s exercise of a workplace right.
AA19
22/2/17
Dawson-Howards threat to put performance management concerns in writing if applicant did not attend performance review meeting. s342(1)(1)(b)(d), s 343(1)(a)(b) Coercion
Alleged contraventions
The alleged contraventions in the table below are asserted to be made out because of a causal link between the asserted adverse action in the table above and the asserted exercise of the corresponding workplace right provided for in the corresponding terms of the FUEA. With the exception of the final alleged contravention, the numbering of the alleged contravention corresponds to the numbering of the adverse action said to give rise to the contravention and set out in the previous table. To avoid confusion about the numbering of the alleged contraventions and references to certain similarly numbered clauses of the FUEA, I have dealt with the alleged breaches of the FUEA at the end of the consideration section of these reasons.
Alleged contraventions
Date
Category
Corresponding exercise of workplace right (WPR)
Corresponding Term of Enterprise Agreement (FUEA)
C1
31/1/2017
Form A & Deadline Issues
(refusal to discuss Form A)
WPR 1-5 (inclusive)
10/1/17 - 31/1/17cls C6.4, A8.1, C10, c11, C12.3
C2
31/1/2017
Form A Issue
(culturally different)
WPR 1-5 (inclusive)
10/1/17 - 31/1/17cl A8.1
C3
31/1/2017
Performance Meeting Issue
(Ganesan tells Heddle of performance management concern)
WPR 1-5 (inclusive)
10/1/17 - 31/1/17cls C6.4, A8.1, C10, C11, C12.3
C4
2/2/2017
Deadline Issue
(threat to employment by Ganesan)
WPR 1-6 (inclusive)
10/1/17 - 1/2/17cls C6.4, A8.1, C10, C11, C12.3
C5
3/2/2017
Deadline Issue
(too much time off work)
WPR 1-6 (inclusive)
10/1/17 - 1/2/17cls A8.1
C6
7/2/2017
Deadline Issue
(Lancet Article)
WPR 1-8 (inclusive)
10/1/17 - 3/2/17cls 6.4, A8.1, C10,C11,C12.3
C7
21/2/2017
Form A & Authorship Issues
(taunting emails)
WPR 1-12 (inclusive)
10/1/17 - 21/2/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C8
21/2/2017
Performance Meeting Issue
(Ganesan concern re completion of probation)
WPR 1-12 (inclusive)
10/1/17 - 21/2/17cls C6.4, A8.1, A10.4, C10, C11, C12.3
C9
22/2/2017
Performance Meeting Issue
(requirement to attend meeting)
WPR 1-13 (inclusive)
10/1/17 - 21/2/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C10
28/2/2017
Performance Meeting & Form A Issues
(requirement to sign memorandum)
WPR 1-15 (inclusive)
10/1/17 - 28/2/17cls C6.4, A8.1, A10.4, A27, A31, C10, C11, C12.3
C11
9/3/2017
Performance Meeting Issue
(allegation of unauthorised absence from work)
WPR 1-20 (inclusive)
10/1/17 - 7/3/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C12
14/3/2017
Performance Meeting & Form A Issues
(Chew refused to look at Lim’s work)
WPR 1-22 (inclusive)
10/1/17 - 14/3/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C13
14/3/2017 – 16/3/2017
Performance Meeting & Impasse Issues
(falsely worded minutes to meeting)
WPR 1-22 (inclusive)
10/1/17 - 14/3/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C14
16/3/2017
Impasse Issue
(Ganesan and Chew recommend Lim’s dismissal)
WPR 1-24 (inclusive)
10/1/17 - 17/1/17cls C6.4, A8.1, C10, C11, C12.3
C15
16/3/2017 – 17/3/2017
Impasse Issue
(Flinders & Waltham approve Lim’s dismissal)
WPR 1-24 (inclusive)
10/1/17 - 17/3/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C16
17/3/2017
Impasse Issue
(Flinders decides to dismiss Lim)
WPR 1-24 (inclusive)
10/1/17 - 17/3/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C17
10/1/2017 – 31/7/2017
Unrealistic Deadlines & Form A & Performance Meeting Issues
(Ganesan tells Lim not to read University guidelines)
WPR 1 & 2
10/1/17 - 31/1/17cl C6.4, A27
C18
31/1/2017
Form A Issue
(Dawson-Howard ask him if she wanted expected deliverables on Form A)
WPR 1-5 (inclusive)
10/1/17 - 31/1/17cls C6.4, A8.1, C10, C11, C12.3
C19
22/2/2017
Performance Meeting Issue
(Dawson-Howard threat to put concerns in writing)
WPR 1-13 (inclusive)
10/1/17 - 21/2/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
C20
Pre 28/2/2017
Performance Meeting Issue
(Webb calls the meeting a ‘mediation’)WPR 1-13 (inclusive)
10/1/17 - 21/2/17cls C6.4, A8.1, A10.4, A31, C10, C11, C12.3
The applicant alleges various accessorial liability pursuant to s 550 of the FW Act on the part of the respondents for contraventions as pleaded in paragraphs 127-131 of the Application.
RELEVANT EXTRACTS FROM THE FLINDERS UNIVERSITY ENTERPRISE AGREEMENT 2014-2017 (‘FUEA’)[1]
[1] A copy of the FUEA appears as Annexure AG4 to Exhibit R14.
The clauses of the FUEA specifically pleaded by the applicant were as follows:
A8 EMPLOYER/EMPLOYEE OBLIGATIONS
A8.1 The University, as employer, has the duty to:
§provide a safe workplace and exercise a duty of care; and
§provide appropriate work and professional development while the staff member is employed; and
§provide fair and reasonable remuneration; and
§ensure staff have access to the facilities, policies and procedures necessary to perform their jobs; and
§respect the rights and welfare of all staff, students and other persons who use the University.
A10 INTELLECTUAL PROPERTY
A10.4The University will abide by the principle of moral rights by taking reasonable steps to ensure that:
A10.4.1the rights of originators to attribution of their work are respected; and
A10.4.2an originators right to disassociate herself or himself from the development or embodiment of intellectual property is respected.
A25 PERSONAL/CARER’S AND COMPASSIONATE LEAVE
A25.4[Taking paid personal/carers’ leave] A staff member may take paid personal/carer’s leave if the leave is taken:
A25.4.1because the staff member is not fit for work because of a personal illness or personal injury affecting her/him; or
A25.4.2to provide care or support to a member of the staff member’s family who requires care or support because of:
(i)a personal illness, or personal injury, affecting that person; or
(ii)an unexpected emergency affecting that person.
A25.11 [Notice and evidence requirements]
A25.11.1[Notifying the University] a staff member taking leave under this clause must give her/his supervisor notice as soon as possible (which may be at a time after the leave has commenced) and must indicate the period or expected period of the leave.
However, the expectation is that she/he will normally inform the University of her/his inability to attend for duty within 24 hours of normal commencement of duty.
A27 STAFF DEVELOPMENT AND TRAINING
Staff are required to participate in specific orientation and induction training as follows:
A27.1The Flinders Foundation of University Teaching for all new academic staff;
A27.1The Postgraduate Research Supervision Program for all academic staff new to the supervision of higher degree research students.
A27.2The Managing Work-Integrated Learning Workshops, for all staff involved in supervising, leading and managing Work-Integrated Learning including placements and non-placement activities.
A31 DISPUTE SETTLEMENT
A31.1[Application] A dispute arising from the interpretation, application or operation of any provision of this Agreement, or in relation to the National Employment Standards, may be raised by a staff member, relevant union or the University and will be dealt with in accordance with this clause. Parties to the dispute will agree to attempt to resolve matters in a cooperative and timely manner.
A31.2[Scope] This clause does not apply to any matter arising under this Agreement to the extent that there is an appeals or review process as specified in the Agreement.
A31.3[Initial step] In the first instance, where a dispute is raised by a staff member (and/or the staff members representative) or a relevant union, she/he/they will take the matter up in writing with the staff members supervisor or the relevant executive Dean/portfolio head. The supervisor/executive Dean/portfolio head will consider the matter with a view to resolution and will provide written advice as to the action taken/to be taken regarding the matter. The written advice will normally be provided within five (5) working days of the matter having been raised.
A31.4[Second step] Where a dispute is not resolved under A31.3 above, at the request of either party to the dispute, the Director Human Resources, or delegate will, within five (5) working days, unless agreed otherwise convene a meeting between the parties to the dispute in an attempt to conciliate the matter.
A31.5The Director, Human Resources, or delegate will attempt to resolve the matter within five (5) working days of the first meeting between the parties to the dispute. Any resolution will be in the form of a written agreement subject, if necessary, to ratification by either party.
A31.6[Referral of Dispute to Fair Work Commission] Should the dispute not be resolved by the processes referred to in A31.3 A31.4 and A31.7, or in exceptional circumstances, the matter may be referred by either party to the dispute to Fair Work Commission (FWC) for resolution.
FWC may deal with the dispute in two stages: FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and if FWC is unable to resolve the dispute at the first stage, FWC may then arbitrate the dispute and make a determination that it is binding on the parties. If FWC arbitrates the dispute it may also use the powers available to it under the Fair Work Act.
Subject to the University or the staff member or union exercising a right of appeal against the decision to the full bench of the FWC in accordance with the requirements of the fair work act 2009, a decision of the FWC is binding on the parties to the dispute. Subject to the University or staff member or union exercising a right of appeal or review against the decision to any other court where jurisdiction is granted, a decision of the Full Bench of the FWC is binding on the parties to the dispute.
A31.7[Referral of an unresolved dispute to another person or body] Alternatively, where a dispute has not been resolved by the processes referred to in A31.3 or A31.5, or in exceptional circumstances and if the parties to the dispute is so agreed during that period, the parties may agree to seek assistance from another person or body other than FWC.
Further, a staff member may also submit the same dispute to any other external agency that is competent to handle such matters. In this instance, the matter will be dealt with according to rules and procedures of the external agency concerned and the matter ceases to be a dispute in accordance with this Agreement.
A31.8[Action pending outcome]
A31.8.1 Until the internal procedures described in A31.3 to A31.5 have been exhausted;
§work will continue in the normal manner, except where the matter under dispute relates to a bone fide safety matter; and
§the University will not change work, staffing or the organisation of work which is the subject of the dispute, nor take any other action likely to exacerbate the dispute.
A31.8.2Where a matter has been referred to an external agency under A31.6 or A31.7, work will continue in accordance with the reasonable direction of the University provided that neither party to the dispute shall be prejudiced in the resolution of the dispute.
A31.9The University will use its best endeavours to ensure the timely conclusion of disputes. For the avoidance of doubt, the internal processes described inA31.3, A31.4 or A31.5 within this clause will lapse if the employee ceases to be employed by the University.
C6 PROBATION FOR ACADEMIC STAFF
C6.4[Supervisor support] During a probationary period, the University will ensure, through the designated supervisor, that appropriate feedback, support and training opportunities are provided to the staff member.
C6.5[Confirmation of employment] Confirmation of employment at the end of the probationary period will be subject to the authorising officer being satisfied, as at the time of consideration of the matter, that the staff member:
has met the qualification base of, and has demonstrated satisfactory performance relevant to the academic profile for the staff member’s level of appointment, taking into account what may be expected, given her/his years of service; and
has completed relevant orientation and induction training within the probationary period, unless agreed otherwise.
Poor performance in teaching or research may provide grounds for not confirming employment, notwithstanding satisfactory performance in other areas. Before determining that an appointment not be confirmed, the authorising officer will provide the staff member a reasonable opportunity to respond to concerns about her/his performance and/or conduct.
C10ACADEMIC WORKLOADS [This clause, which is lengthy, will not be reproduced in full. It generally requires the University to ensure that academic workloads are equitable, transparent and manageable with a workload scheme that takes into account previous research performance, using the research and creative activity outputs of comparable discipline areas in other universities as a benchmark to achieve expected outputs that are reasonable and appropriate for the level of academic appointment and role.]
C10.2.10The workload scheme within each School will be developed and applied by the Dean of the School in consultation with all staff and each of the schemes will be approved by the Executive Dean as being consistent with the above principles.
C10.2.11Deans of Schools will distribute each year to all academic members of their School a document setting out the details of the scheme referred to in clause 10.2.10 and the workload allocations for all of the academic staff within the School.
C10.2.13Where a staff member feels aggrieved about the application of the workload allocation scheme in respect of her or his own workload, the staff member should raise her or his concern with the Dean of the School in the first instance. If the matter is not resolved following consultation with the Dean of the School, the staff member should refer the matter to the executive Dean.
C11 ACADEMIC STAFF PERFORMANCE REVIEW
C11.1All academic staff (other than casual staff) will be required to undertake a performance review, normally on an annual basis, in accordance with the Academic Staff Performance Review Scheme.
C11.2The Academic Staff Performance Review Scheme is designed to review regularly the performance and the professional development of staff. There are separate procedures for reviewing and investigating in a formal manner unsatisfactory performance and misconduct, and these procedures are set out elsewhere in this Agreement.
The objectives of the Scheme are to:
§assist staff to develop academically and professionally and to provide them with reliable information on the University’s expectation of performance;
§assist the University and staff jointly to plan the work of staff to achieve desired goals; and
§assist supervisors in monitoring and assessing a staff member’s performance.
C11.3Documentation completed in the course of performance reviews will be collected and held in a manner consistent with the confidentiality and reporting provisions of the scheme as at the time of certification of this Agreement.
C11.4The performance of casual staff will be reviewed in accordance with the performance management guidelines for casual academic staff (Part-Time Teachers).
C12 ACADEMIC PROFILES
C12.3Academic Profiles provide the basis for the management of performance of academic staff including performance reviews, incremental progression, probation, promotion and recognition of exceptional performance.
REMEDIES SOUGHT - INJUNCTION, DAMAGES AND PENALTIES
Injunction
In ‘Part H – Remedy Sought’ of the Application, the applicant seeks an injunction for the following purpose:
To allow the Applicant to access the Steptathalon data, STATA software and laptop, for a certain period, so she could complete and publish the manuscript on the Impact of wearable activity tracker. The applicant will be allowed to state that she completed the manuscript as a Flinders University staff member (Dec 2016 to Mar 2017)
(Reproduced verbatim)
That matter was not addressed by the applicant in her Written Closing Submissions (‘AWCS’) and appears to have been abandoned. In any event, for the reasons identified by the respondents in their written closing submissions,[2] it was a remedy which I would not have been able to provide the applicant.
[2] Respondent’s Written Closing Submissions (‘RWCS’) [311]-[313].
Damages
In her application the applicant set out her claim as follows:
Economic Loss
Value of remaining contract: $88,344.00
Lost future wages and superannuation: $1,816,152.00Non-Economic Loss
Reputation loss/mental distress: $1,863,710.00
Counselling fees: $2,000.00TOTALLING $3,770,206
In the AWCS, the applicant varied that position. Her final position is that she seeks damages for economic loss for the alleged breach of contract entailed in her termination.
She alleges that she has attempted to obtain alternative employment since her termination but has had difficulty in doing so. The loss alleged from the date of termination to the end of the contract of employment is said to be $80,516. In her final written submissions, the applicant contended that as a result of termination, the applicant lost the opportunity to take up potential further employment with the benefit to her curriculum vitae of having published an article in peer reviewed journals. Her age and personal circumstances are said to place her at a disadvantage in comparison to similarly qualified persons. It was submitted that the likely economic loss flowing from her termination will be at least $420,516, in addition to which the applicant claims loss of superannuation at 9.5% on all economic loss.[3] The applicant also claims damages pursuant to s 545 of the FW Act for distress, hurt and humiliation, pain and suffering and loss of amenity and enjoyment of life as a result of the contraventions.[4]
[3] AWCS [200]-[214].
[4] Ibid [215]-[220].
With respect to each of the contraventions of civil remedy provisions identified above, the applicant pleads that they should be found to constitute serious contraventions for the purpose of the FW Act.[5]
[5] Application [133].
Penalties
In addition, the applicant submits that the Court should order civil penalties against each of the respondents for each instance of adverse action taken against her and for each proven breach of the FUEA. It was submitted that the Court should impose the maximum penalties prescribed under the FW Act for each proven contravention and that I should find that none of the alleged unlawful acts constitute part of a course of conduct for the purpose of the FW Act.[6]
[6] Ibid [221]-[222].
I accept the submission of the respondents that the contraventions can be divided into several categories and are best understood in that way. I have identified them by reference to the contravention (‘C’) number in the table at paragraph 14 above. The categories are as follows:
(a)The failure of the first respondent to have a Form A in place (‘the Form A issue’): C1, C2, C7, C10, C12, C17 and C18.[7]
(b)The failure of the respondents to complete the Authorship and Location of Data Form (‘the authorship form issue’): C7, C10 and C17.[8]
(c)The imposition on the applicant of unrealistic and unreasonable deadlines (‘the deadlines issue’): C1, C4, C5, C6 and C17.[9]
(d)The circumstances of a performance review meeting at which the applicant was asked to sign a memorandum containing baseless allegations about her performance and asking her to meet unreasonable key deliverables and requiring her to report to the second respondent (‘the performance meeting issue’): C3, C8, C9, C10, C11, C12, C13, C17, C19 and C20.[10]
(e)The categorization by the respondents of a meeting on 14 March 2017 as an ‘impasse’, the failure to fairly examine the applicants work output, and the subsequent dismissal (‘the impasse issue’): C12, C14, C15 and C16.
[7] These contraventions are articulated at paras [88], [90], [100], [105], [109], [119] and [121] of the Application.
[8] This allegation is articulated at paras [100], [105], [109] and [119] of the Application.
[9] These allegations are articulated at paras [88], [94], [96], [98] and [119] of the Application.
[10] These allegations are articulated at paras [92], [102], [103], [105], [107], [109], [111], [119], [123] and [125] of the Application.
It will be seen from the above that there is overlap between the categories. To be clear, whilst it has been convenient to group the alleged contraventions into the above categories for the purpose of my considerations, I have considered each of the contraventions separately with reference to the evidence directly related to that allegation. I have not approached them with a broad brush on the basis of the overall evidence with respect to the category into which they fall. The above categorisation does not account for all of the contraventions.
The respondents deny that most of the alleged incidents forming the basis of the allegations occurred as alleged, or that they involved any of the detrimental characteristics identified in s 342(1) of the FW Act.
The applicant was employed by the first respondent (‘Flinders University’) in the capacity of Research Associate/Research Fellow in late December 2016. She was tasked to work in assisting the second respondent (‘Ganesan’) in certain aspects of a research project he was in charge of in the course of his employment with Flinders University. Her job required her to do statistical analysis of data collected during the course of the project. Her contract was subject to a mandatory three-month probation period.
THE EVIDENCE
A feature of the applicant’s evidence, and the manner in which she presented her case, was an intense focus on various meetings she had with the respondents during the course of her employment, the nature of the tasks she asserts she was required to perform, and the minute detail of various things that were said and done. In summarising the evidence, I have included more detail than might ordinarily be the case in order to convey a sense of the manner and tone of things which occurred and are alleged to have occurred during the employment relationship.
Interview and recruitment
In October 2016, Flinders University began a recruitment process for the position of Research Associate/Research Fellow. Ganesan emailed the applicant for a meeting prior to the commencement of the interview process. In early November, the applicant met with Ganesan for a pre-interview meeting. The applicant contends that she was offered part-time employment during this meeting. The applicant attended an interview for the position on 17 November 2016. Ganesan says that the applicant described herself as an accomplished researcher and a high achiever in her studies in the Philippines. The interview panel collectively decided that the applicant was the preferred candidate. After referee checks, Ganesan emailed the applicant with respect to possible full-time employment with Flinders University. The applicant was sent a letter of offer of employment dated 6 December 2016. The letter said in part:
Terms and Mode of Appointment
This appointment is available on a fixed-term basis with effect from 19 December 2016 to 18 December 2017 or until such time as the grant is unable to fund the position, whichever is the earlier. This fixed-term appointment does not carry any entitlement to further employment.
Purpose of Appointment
This fixed term appointment has been established in accordance with clause 2.2 (Research-only) of schedule 9 of the prevailing enterprise agreement.[11]
[11] Exhibit R14, Affidavit Associate Professor Ganesan, Annexure ‘AG2’.
On 19 December 2016, the applicant commenced employment with Flinders University on a full-time fixed term basis for one year as a Research Fellow (Research Academic level B) in the Cardiology Department of the Flinders University School of Medicine. Level B is the highest classification level for a research fellow. The applicant’s terms and conditions were governed by the FUEA, a letter of offer dated 6 December 2016, and the Position Description for her job. Her employment was subject to a 3 month probation period to end on 19 March 2017.[12] The Position Description for the applicant’s employment included the following:
[12] Ibid [14.a].
Probation: It is standard university practice to apply a probationary period to all appointments.
…
Key Responsibilities
The key responsibilities and selection criteria identified for this position should be read in conjunction with the Flinders University Academic Profiles for the relevant academic classification level, …
The incumbent will:
§ Assist and contribute to current projects in clinical and preclinical cardiology and statistical analysis projects in the emerging fields of atrial fibrillation research and mobile health (mHealth) in cardiovascular medicine.
§ Work independently as well as collaboratively with staff and stakeholders of the research projects.
§ Contribute and prepare papers for peer-reviewed journals.
§ Use appropriate and statistical methodology to conduct study analyses describing, explaining and/or predicting relationships of interest in data acquired in large scale studies of mobile health (The Steptathalon Cardiovascular Health Study).
§ Contribute and assist in the preparation of manuscripts based on these data, as well as in grant and ethics preparation for future studies.
§ Monitor and report on progress against key performance indicators.
§ Undertake other duties as prescribed by the supervisor.
…
Supervision provided to others
This position has no supervisory responsibilities for either professional or academic staff.
…
University expectations
All staff are expected to:
§ contribute to the efficient and effective functioning of the team or work unit in order to meet organisational objectives. This includes demonstrating appropriate and professional workplace behaviours, providing assistance to team members if required and undertaking other key responsibilities or activities as directed by one's supervisor;
§ perform their responsibilities in a manner which reflects and responds to continuous improvement; and
§ familiarise themselves and comply with the University's work health and safety and equal opportunity policies.[13]
[13] Ibid, Annexure ‘AG3’.
In summary, the applicant’s duties required her to assist and contribute to work projects, work independently and collaboratively, contribute to and prepare papers, to use appropriate and statistical methodology to conduct an analysis of data required in large-scale studies of mobile health, and to monitor and report on her progress. Ganesan was her supervisor. The study involved looking into the performance of a wearable activity health tracking device which had been dubbed the ‘Steptathalon’. Neither the Position Description or the FUEA support any contention that she was entitled to be closely supervised at all times.
The commencement of the applicant’s employment and the meetings of January 2017
In the first few weeks of her employment, the applicant asserts that she provided copies of her professional qualifications to the Human Resources Department; applied for a staff parking permit; arranged for herself to be issued with a staff pass and access to the Flinders University intranet; submitted an application for leave without pay for the Christmas period; made arrangements to obtain a printer and photocopier; made arrangements to install a telephone in her office; removed detritus from her office; and supplied her own coffee machine.
Between the end of December and 20 February 2017, the applicant communicated with Ganesan via the ‘Slack’ internal messaging service and a document sharing platform called ‘Dropbox’. During that time the applicant asserts that she had discussions with Ganesan about the feasibility of her preparing a paper to be published in ‘The Lancet’. It was common ground between the parties that The Lancet is an extremely prestigious medical journal which has exacting publishing standards. By late December 2016, the applicant says that she had started thinking about the conceptual and analytical framework for the Steptathalon device study.
At some time in December 2016, Ganesan says he gave the applicant responsibility for statistical analysis of the Steptathalon data for three important studies (‘the key tasks’). The studies were:
·The Steptathalon Wearable Device Study;
·The Steptathalon Dietary Impact Study; and
·The Steptathalon Team Analysis Study
Ganesan says that the Steptathalon Data was provided to the applicant at about this time by Steptathalon Private Ltd (‘Steptathalon’) which owns the Steptathalon Data.
The applicant had a period of leave without pay over the Christmas and New Year period.
First meeting
It is agreed between the parties that in early January, the applicant had a meeting with Ganesan. The applicant says that it was her first meeting with him in 2017. At that meeting, the applicant provided Ganesan with some initial work relating to the Steptathalon Data. He was satisfied with the quality of that preliminary work. Ganesan or Lim says that he asked the applicant to prepare an entry for the Ralph Reader Award advising that if it was successful she could keep the prize money. At this meeting, the applicant told Ganesan that she had booked in to attend certain in-house training sessions. The applicant asserts that Ganesan told her that it was not necessary to attend these sessions because it would be wasting her time.
Second and third meetings
The applicant says that on 11 January 2017, she notified Ganesan about issues arising from implausible values identified within the Steptathalon Data. On 12 January 2017, the applicant had two meetings with Ganesan on the topic of ‘Stata coding’ and one of the Steptathalon papers. The applicant asserts that these were her second and third meetings with Ganesan for 2017. At this meeting, Ganesan gave updated Steptathalon Data to the applicant. The applicant says that she provided Ganesan with a diagnostic plot of the effectiveness of the statistical process she was using.
Fourth meeting
On 13 January 2017, the applicant says that she suggested to Ganesan that it would be necessary to change some variables on the basis of the available Steptathalon Data. On that occasion, Ganesan discussed problems he was having with his Stata code which were causing problems for his computer. On the applicant’s version of events, this was the fourth time she had met with Ganesan in 2017. She says that she helped Ganesan resolve his issue with the code on 15 January 2017 which was a Sunday.
On 16 January 2017, the applicant informed Ganesan about the work she was doing on the codes and that she needed to impute “time spent exercising”.
Fifth meeting
There was a further meeting between Ganesan and the applicant on 17 January 2017. Ganesan had emailed the applicant to discuss her eligibility to participate in the Discovery Early Career Research Award Scheme (‘DECRA’). Prior to that meeting, the applicant emailed Ganesan about wanting to discuss deliverables and KPIs. A meeting occurred between Ganesan, the applicant, and Ms Dharmaprani. The applicant says this was the fifth occasion on which she met with Ganesan that year. On her account she had continued to fine tune her coding modelling. Ganesan told her to register for the Steptathalon study.
Sixth meeting
On 18 January 2017, the applicant spoke with a grants officer employed by Flinders University about the DECRA scheme, advising Ganesan that she had done so. The applicant says that she met with Ganesan to discuss the DECRA scheme and inter alia his expectation that she completes two papers in 2017.
Seventh meeting
On 19 January 2017, the applicant had a meeting with Ms Dharmaprani and Mr Dixon with respect to the Steptathalon Data. She says that at this time she continued to work on the sequential imputation model and contacted Ganesan on this day about a possible topic for the DECRA scheme.
Eighth meeting
The applicant met with Ganesan on 20 January 2017. She says that he asked her to correct errors made by him and his doctoral student on a poster and that she was required to “teach the PhD student everything (she) knows when it comes to statistics”. The applicant was of the view that these tasks did not form part of her duties with Flinders University. On her case, she says that she discussed authorship of the nutrition study paper that she was working on (in conjunction with Dr Dickinson) with Ganesan. She says that Ganesan told her that she would be the equal first author on the paper with Dr Dickinson but that she believed Dr Dickinson might deserve to be the primary author.
On 21 January 2017, the applicant set up her Dropbox account. This was a Saturday.
Between 21 and 22 January 2017, the applicant asserts that she educated herself on multilevel modelling in an effort to equip herself to better assist Ms Dharmaprani.
On 23 January 2017, the applicant notified Ganesan that she was experiencing IT issues, informed him of the assistance she was providing to Ms Dharmaprani with whom she shared an office, and requested her own office key. Ganesan responded to her that this would not be a problem.
Ninth meeting
On 24 January 2017, the applicant sent initial Stata coding to Ganesan via Slack. The two of them met to discuss that initial coding result. The applicant says that after the meeting, Ganesan took her to meet the third respondent, Professor Derek Chew (‘Chew’). She says that Chew showed her a powerful computer, offering to allow her to use it, but that she declined because her laptop was sufficient.
Tenth meeting
On 25 January 2017, the applicant says that she prepared paperwork for the purchase of a printer to be used by her and Ms Dharmaprani. She says that she received an enquiry from Ganesan as to how her work was going. On her version of events, Ganesan asked her to provide him with her Stata codes which she regarded as being completely unreasonable. A meeting occurred between them where the applicant says Ganesan copied her Stata coding onto his computer to see if she was having any issues with the code.
Two days later, the applicant says that she attended at Ganesan’s office with her two laptops. She says that Ganesan then copied codes from her laptops onto his own laptops to perform a further check. The applicant says that she also emailed Ganesan on this day with respect to the DECRA scheme and that she continued to work on her modelling for the Steptathalon study.
Chew says that in approximately the week of 30 January 2017, Ganesan spoke to him about work output issues he believed he was experiencing with the applicant and his concerns that she may not be able to competently perform in the role for which she had been employed. The nature of the correspondence between them appears to have been courteous and unremarkable.[14]
[14] Exhibit R14, Annexure AG7.
On 30 January 2017, the applicant emailed Ganesan and asked that he formally define in a work plan what her role would be in the Steptathalon Dietary Impact Study. The applicant says that on this day she contacted the Flinders University Research Services Office and Office of Graduate Research with respect to supervisor requirements. It should be noted that Ganesan raised this concern before any of the asserted exercise of workplace rights embodied in WPR2-24 inclusive. At that stage, the only asserted workplace right which is said by the applicant to have been exercised was WPR1 relating to her request to Ganesan to be able to finish the induction course. It also pre-dates any of the asserted adverse action in AA1-16 inclusive and AA18 and AA19.
Events of 31 January 2017 & eleventh meeting
On 31 January 2017, the applicant made a request to Ganesan for reimbursement for expenses she had incurred on printing before being provided with a printer by her employer. She also requested further stationery supplies at that time and was informed to obtain anything she wanted to from Officeworks and to seek reimbursement. On this day, the applicant says that she unsuccessfully tried to connect Ms Dharmaprani’s laptop to Ganesan’s printer.
11.46am - Ganesan emailed the applicant, reminding her of a meeting with Chew scheduled for 3 February 2017 and requesting her to provide an update about her work on the Steptathalon data. It should be noted that notwithstanding the concerns he had expressed to Chew the day before, Ganesan's communication with the applicant about this matter was professional and courteous:
Hi Hazel,
We have got the chance to meet with Derek on Friday at 3.00pm. It would be good to present where things are up to in relation to this project … He will be interested as I am to see STATA code, so it would be good to have this ready.
Anand[15]
[15] Exhibit R14, Annexure AG8.
1.27pm - the applicant emailed Ganesan seeking his input on a proposed performance review and professional development plan which she sent to him via Dropbox. She also provided him with a copy of an Academic Staff Performance Review Form (‘Form A’). That correspondence appears to have been courteous.[16]
[16] Ibid, Annexure AG9.
2.00pm - Ganesan met with the applicant, he say, to have an informal discussion about her work. He says that whilst he had received the Dropbox materials from the applicant he had not had an opportunity to consider her Form A work plan prior to the meeting. Ganesan says that the applicant spoke to him in a heated manner about the nature of the work she was expected to perform and shouted at him.[17] The applicant asserted that deadlines set by Ganesan for various research papers were not reasonable. She complained about having to assist a biomedical student in the research team to which Ganesan responded that it was reasonable for her to assist other researchers. Ganesan says the applicant asked him to sign the Form A which she had completed, although she denies doing so. Ganesan says that he felt the applicant was trying to “railroad him into agreeing to and signing a written plan about her required work tasks and their timeframes, without being able to properly understand what she considered these tasks and timeframes should be and her reasons”.[18] The document was not signed by Ganesan. On Ganesan’s version, he told the applicant that her duties were limited to statistically analysing the Steptathalon data provided to her by him and that she was not required to do empirical research. He also told her that she was not required to supervise any other researchers and that the type of assistance required by the applicant’s position did not constitute academic supervision. The applicant says that Ganesan told her that they were culturally different and then stormed out of the room. On Ganesan’s version, he was upset by the applicant’s treatment of him, in particular her hostility.
[17] His evidence was that she “was very emotional, raised her voice and yelled angrily at me” and that she “shut the door to my office while she was yelling”. R 14 [29].
[18] Exhibit R14 [31].
4.00pm - the applicant had a meeting with Ms Heather Dawson-Howard (‘Dawson-Howard’). The applicant told Dawson-Howard that she was concerned with the meeting she had just had with Ganesan and that his performance expectations were unreasonable. Dawson-Howard says that the applicant told her that Ganesan wanted her to supervise his doctoral research student. Dawson-Howard says that she told the applicant that giving a bit of general guidance and mentoring to such a student did not amount to supervision for the purpose of additional duties or remuneration. Dawson-Howard says that she encouraged the applicant to discuss the matter with Chew or another senior person such as Professor Bill Heddle (‘Heddle’). Dawson-Howard says that she offered to facilitate such a consultation. She says that the applicant told her that she did not want to take her concerns any further at that time, made no formal complaints about Ganesan, and informed her that she did not want her to raise the matter with Ganesan, Chew, Heddle or anyone else from the School of medicine. Dawson-Howard did not do so at that time.
6.04pm - Ganesan emailed the applicant to clarify his expectations about the nature of statistical analysis he expected her to perform and provide to the other researchers on the team. In any context, that email seems to have been worded in a manner which was both professional and courteous:
Dear Hazel
I would also add in relation to today's meeting re-contribution to fellow research team members research. A key element of the Research Fellow role is to contribute to the research team as directed.
Providing statistical assistance for preclinical research is listed as part of your responsibilities and does not constitute a research supervision.
I am of the co-primary supervisor for Dhani, along with Prof Kenneth Pope.
Your role in Dhani's projects constitutes that of research collaborator in line with the expectations of your role.
Thank you again for the opportunity to clarify this issue.
Anand[19]
[19] Exhibit R14, Annexure AG10.
He sent a further email after a few minutes later which attached a project work plan which set out specific tasks and revised deadlines which he says was designed to accommodate the concerns raised by the applicant. That document appears to set out the project work timelines in a clear and concise manner. He advised that he would be happy to meet with her on a weekly basis to discuss progress.
8.32pm - Ganesan emailed Heddle expressing his concern that the applicant might not be likely to complete her probationary period successfully. That email was brief but its’ wording does not suggest that Ganesan was motivated by any particular personal animus against the applicant. It read as follows:
Dear Bill
I hope you are well. I just want to flag a performance management concern in relation to Dr Hazel Lim.
I have significant concerns that regrettably she may not be successful in completion of the probation period, which is a terrible shame, and extremely disappointing.
Would you have time to meet at some stage to discuss the progress of this situation briefly?[20]
[20] Exhibit R14, Annexure AG12.
Heddle does not recall reading that email. Heddle’s evidence is that he did not supervise the applicant at any stage during her employment with Flinders University but, due to his seniority, was kept informed by Ganesan about his concerns.
At some time in early 2017, the applicant spoke with Ms Kaukas, a solicitor who was known to her, about her belief that her employer was setting unrealistic requirements for her.
The events of February 2017
On 1 February 2017, the applicant sent an email to Ganesan at 3.29pm pointing out that the DECRA deadline was 17 February 2017. She expressed the view that she did not have a great deal of time to meet that deadline and asked if he wanted her to prioritise the DECRA work. She was of the view that she would not have any time to spend on other work up until 17 February. She also proposed to send him some suggested alterations to the work plan which he had sent her with alternative and “more realistic timelines including meetings with team members such as yourself and Derek”. Ganesan responded to that email in the following way:
Dear Hazel,
This is not a standard request.
All of us are required to manage applications concurrently with other research.
I think it is necessary to present the data and manuscripts as the primary priority as requested earlier.
I would expect that both should be managed concurrently.
Thanks,
Anand
Approximately one hour later the applicant sent a further lengthy email to Ganesan, reiterating her concern about timeframes being unreasonable and suggesting different work plan deadlines. The applicant sent a further email to Ganesan at 9.42pm on that day which said as follows:
PS I will review visit these suggested alterations because I may end up imposing unreasonable deadlines on myself as well.
I believe that it is wise to target industries best practice to 2 papers per year - I may be too naïve to think that I can deliver more than the guidelines/benchmarks followed by other universities. While I will do my best to deliver better than the benchmarks, I have to be mindful of the consequences on my health and well-being of delivering more than the targets that you yourself initially discussed with me - two papers per year. Balance should be struck between work and life.
I really need to knock off now - I have worked since 10 AM. This is a case in point, I have worked for almost 12 hours straight (not really healthy to be doing this all the time).[21]
[21] Exhibit R14, Annexure AG13.
On 2 February 2017, the applicant claims that she sent a text message to Ganesan asking to take a day of carer’s leave in order to care for her mother. She says that she received no response and accordingly attended for work in the afternoon. Ganesan emailed the applicant at 9.52am in response to her emails of the previous day. He wrote the following:
Dear Hazel,
Thank you for your email.
I have carefully considered your suggestions, but I do not think they are workable in the context of the requirements of the team unfortunately. The current external funding environment requires senior research academics such as yourself (Level B6) to be far more productive than what you are projecting for the year. I should remind you that you specifically requested appointment at the highest grade on the basis that you anticipated substantial academic productivity.
The suggested timeline and plan that I have discussed with you for research outputs is the minimum that would be considered acceptable in the context of the external pressures we all face. For you as an individual, it is pretty important that you meet these and do your best to exceed them, as this is your best chance to actually have a sustainable research career.
The timetable modifications you seem to be suggesting are not compatible with the contemporary funding environment, and thus in practice are not sustainable.
Tomorrow’s meeting with Prof Chew and myself will be a good opportunity for you to demonstrate your progress thus far.
It is a great opportunity for you to showcase your work. I believe there are fantastic opportunities in this field for investigators who are able to demonstrate productivity in terms of results, papers and grant income, as well as work cohesively with other members of the research team.
Thank you again, and I look forward to tomorrow’s meeting.
Best regards,
Anand
In the context of the correspondence and interaction which had passed between them, I do not regard the above email from Ganesan to have been threatening. The comment about the applicant’s ability to meet or exceed the deadlines set having a direct relationship with her ‘best chance’ to have a sustainable research career was obviously an exhortation to perform at the level he expected of her, but it also seems to have been a genuine observation on his part of the practical reality of the performance levels required in a competitive research environment. I am satisfied that in writing that email Ganesan believed himself to have been genuinely encouraging the applicant to perform at a level that would make her a functional and valued member of the research team.
Meeting of 3 February 2017
Ganesan and Chew met with the applicant to review her progress with the Steptathalon data. The applicant showed them her preliminary statistical analysis. On her case, this was the sixth example of output that she had provided to Ganesan. Ganesan’s evidence is that he and Chew were of the view that her work was “a good start” but that further work was required in order for it to be usable in the study. At this meeting, the applicant said that she would not be able to complete a research paper within a stipulated timeframe. She says that she was asked to focus on a single research paper and Chew directed her to prepare an outline for the research paper and send it to Ganesan. Chew agrees with that version. In Chew’s opinion, the applicant appeared at that time to be a competent statistician.
Chew’s evidence was that he did not recall Ganesan telling the applicant that she had to complete a research paper within 14 days. He says this was the only meeting at which he was present with both the applicant and Ganesan.
Thirteenth meeting 7 February 2017
Following the above meeting, on 7 February 2017, the applicant sent a preliminary draft of her research paper outline to Ganesan and Chew. The respondents say that this was the final item of work that the applicant provided to them during the period of her employment. That is disputed by the applicant who claims that she sent a ‘propensity score plot’ to Ganesan on that day. On this day, the applicant met with Ganesan and was told to complete a research paper for submission to The Lancet by 15 March 2017. She did not regard that deadline as feasible.
On 8 February 2017, the applicant says that Ganesan gave her positive feedback for the work she had done on the propensity score plot. The printout of the ‘Slack’ conversations between the applicant and Ganesan[22] show that in response to Ganesan’s query, “How hard is it to do ordinal logistic regression for step count variable …”, the applicant performed a task. When Ganesan reviewed that a few minutes later, he sent two Slack messages saying, “Looks good overlap” and “promising”. I have read the Slack communications between the applicant and Ganesan between 20 December and 20 February 2017.[23] Particularly in the early days of her employment, Ganesan appears to communicate with the applicant in a congenial and at times enthusiastic manner. He appears to have responded in a timely fashion. The applicant asserts that on 9 February 2017 she messaged Ganesan on six occasions seeking assistance in relation to the paper she was drafting and he failed to respond.[24] The Exhibit shows that the applicant messaged Ganesan nine times between 4.22pm and 10.43pm and there appear to be no responses. It is difficult to accord that matter much weight given the positive exchanges they had made on Slack the day prior. She says that she was on annual leave on the following day, a Friday, but is critical of Ganesan for making no reply to her queries. When she returned to work on Monday, 13 February, to continue working on the relevant code, there was still no reply to her queries on Slack. The lack of response by Ganesan must be considered in light of the fact that he had a meeting scheduled with the applicant for the 14 February 2017. A consideration of the Slack communications between Ganesan and the applicant does not demonstrate rudeness, bullying or even particularly demanding behaviour on his part. The majority of the contact via Slack is from the applicant to Ganesan. She says that on this day she made an alternative suggestion for the draft Lancet article. On 9 February 2017, the applicant says that she sought assistance from Ganesan six times but that he did not respond to her.
[22] Applicant’s Supplementary Affidavit, Annexure ‘HLSupp 8’.
[23] This was the messaging application used in house by Flinders University and was a form of communication used by the Applicant and Ganesan for day to day work related matters.
[24] Applicant’s Supplementary Affidavit [93].
On 14 February 2017, a meeting was held for the applicant to update the second respondent on her progress. On this date the applicant devised a draft Lancet paper entitled “Impact of using more advanced wearable activity tracker usage on participant’s physical activity in a large scale mobile health (mHealth) intervention”. The applicant draws a distinction between this title and the draft Lancet outline she had been tasked to prepare. Her printer arrived on this day.
The applicant says that she attended at Flinders University’s induction training session on 15 February 2017. On this day she says that she spoke with Ms Michelle Gill from the Flinders University Human Resources Department and alleged that Ganesan was micromanaging her which she regarded to be a form of bullying. It is difficult to see how that was a valid criticism on the basis of the emails and Slack communications up to that point. She says she sought assistance once again from Ganesan on two occasions on this day but received no assistance. From this point on, the applicant says that Ganesan no longer communicated with her on Slack.
Meeting with Dawson-Howard on 16 February 2017
On this day, the applicant says that she met with Dawson-Howard to express her concerns about the performance expectations which had been placed on her by Ganesan, which she believes to be so unreasonable as to amount to a form of bullying and harassment. Dawson-Howard told the applicant that it was open to her to meet with senior members of the School of Medicine with a view to a conciliation process which might address the concerns she had about Ganesan.[25] The applicant made no formal complaint about Ganesan and requested that Dawson-Howard not communicate her concerns to Ganesan, Chew, Heddle or anyone in the Flinders University School of Medicine. On the applicant’s case, she was told by Dawson-Howard that there were no problems with her performance. She says that she agreed with Dawson-Howard to have a further meeting on 22 February 2017. On this day, the applicant prepared and made her last modification to the appendix to the draft Lancet paper.
[25] Exhibit R9 [9].
On 17 February 2017, the applicant says that she enquired of Ganesan as to whether she should limit her analysis based on a specific age range but that he did not respond to her query. She says this was the ninth occasion on which he had failed to respond to her.
On 20 February 2017, the applicant says that she requested assistance from Ganesan so that she could make further progress on the draft Lancet paper but received no response.
The Authorship issue, 21 February 2017
On the applicant’s case, she made contact with the Flinders University Research Services Office to seek advice with respect to reaching a written agreement with Ganesan as to authorship of The Lancet paper. On this day, the applicant asserts that Ganesan attended at her office and looked at her computer monitor, scrolling through the manuscript she was working on for the Steptathalon study. She says that he did not seek her permission to do so.
A series of emails was sent between the applicant and Ganesan on this day.[26] Contrary to the applicant’s evidence that she met with Ganesan, he sent her an email at 3.42pm on 21 February 2021 politely noting that she may have missed a meeting and sending her another meeting request. The applicant emailed Ganesan requesting that he clarify his expectations about authorship on any research papers to which she contributed and advise that she was not comfortable about discussing her work in weekly meetings in the absence of a signed authorship form. She made it clear that she had not accidentally missed the meeting and had been present at work. Her non-attendance was a refusal to attend the meeting until her authorship concerns had been addressed. Ganesan responded briefly to that email. His response sent at 4.06pm simply pointed out that her queries had been addressed in the previous work plan which had been sent to her. The applicant responded to Ganesan’s email at 4.24pm with what seems to be a second refusal to attend a meeting with him unless her concerns were addressed first:
Dear Anand,
The work plan has to be agreed on. I have been asking you to clarify the expected deliverables and authorship (expected research role) so we can agree on them and then progress with the meetings.
Thanks for clarifying the authorship, now I can focus on the numbers which you require. The work is different from my understanding of our previous discussions that you wanted me to write the paper (initially two papers a year then one paper per month).
Can you please send me the expected milestones/deliverables.
Hazel
[26] Exhibit R14, Annexure AG16.
The reference in the above email to clarifying the authorship issue was in reference to a response she received from Ganesan at 3.44pm responding to an earlier separate email from the applicant sent to him at 3.22pm on that day at about the authorship issue. He told her that as the corresponding author on the paper he would file the University authorship form at the appropriate time. He indicated that this was typically done at about the time of manuscript submission.[27]
[27] Ibid, Annexure AG17.
Ganesan sent an email which noted that he had sent a further meeting request for the following day. He emailed the applicant again at 5.39pm on 21 February and addressed her reluctance to attend research meetings. He wrote the following:
Dear Dr Lim,
Your reluctance to attend research meetings is noted and requests to communicate purely by email are noted.
I noted that you did not answer the telephone today or respond to phone calls.
I would like to remind you that participation in research meetings are standard practice (sic) in the academic community.
If you wish to encode all communication via email, that is entirely unsatisfactory from the point of view of ongoing participation in our Department.
In the Department of Cardiovascular Medicine, we routinely communicate with meetings emails and group discussions to create a collaborative high-performance environment.
Your approach to the project thus far has been extremely disappointing, and I am writing to you to inform you that I thus far consider your attitude and performance are not consistent with the performance standard expected for a Research Fellow Level B6.
Best regards,
A/Prof Anand Ganesan[28]
[28] Ibid, Annexure AG18.
Ganesan sent a copy of that email to Dawson-Howard on the following day at 3.54pm. The tone of the email is formal and stern. Ganesan’s frustration is clear. In the circumstances it could not be said to be inappropriately worded. Nor, in the circumstances, could be regarded as bullying or rude. It gave clear notice to the applicant of a number of concerns Ganesan held. It made it clear that, as her supervisor, he held the view that her conduct had been unsatisfactory and that improvement was necessary.
In addition to the above chain of emails, a separate email chain was sent between the applicant and Ganesan on 21 February under the subject heading ‘Results Table’.[29] That email chain commenced at 3.17pm with a one line request from Ganesan for the applicant to provide an updated table “with the standardised mean difference between the groups”. After some unremarkable exchanges in which the applicant sought some clarification of the task, Ganesan responded at 4.45pm with the following:
Dear Hazel,
I think this is an entirely reasonable thing for you to figure out. I would remind you that you have been employed at Level B6.
Anand
[29] Applicant’s Supplementary Affidavit, Annexure HLSupp 21.
It will be noted that the above email was sent approximately one hour prior to the email referred to at paragraph 79 above. There is an obvious note of impatience in the communication. This email must be read in context with the other emails referred to above. What appears to have been occurring was email communication on the topic of the Results Table parallel with the email correspondence about the applicant’s failure to attend a scheduled meeting. It was sent about 20 minutes after the applicant had emailed Ganesan with her second refusal to attend at a meeting.
In her Supplementary Affidavit, the applicant describes the emails sent to her by Ganesan on 21 February as intimidating.[30] Whatever the applicant’s perception of them, I do not accept that they could be fairly characterised in that way.
[30] Applicant’s Supplementary Affidavit, [175]
The applicant says that she sent copies of Ganesan’s emails to Dawson-Howard who indicated that she would consider them. The applicant says no further response from Dawson-Howard was forthcoming. On the applicant’s case, her attempts to directly contact Dawson-Howard on 21 February were unsuccessful. She asserts that she contacted Flinders University’s Research Support Office who advised her to contact the sixth respondent, Ross McKinnon (‘McKinnon’). She says that she attended at Ganesan’s office and showed him work she had done on the draft Lancet paper directly from her computer.
Ganesan says that by late afternoon on this day he was pondering again the prospect that the applicant might not be able to successfully complete her probationary period with Flinders University. He emailed Gill from the Human Resources Office, expressed this view and asked whether there was any paperwork he needed to complete in that regard.[31] He raised the same issues in an email to Dawson-Howard and spoke with her about this matter on either this day or the following day. He then emailed Heddle to express the same concerns.
[31] Exhibit R14, Annexure ‘AG20’.
Dawson-Howard made efforts to schedule performance review meetings between herself, Ganesan and the applicant to enable the applicant to demonstrate work she had completed to that point and provide a pathway for improvement.
On 22 February 2017, the applicant was absent from work due to illness but says that she worked from home. She was telephoned by Dawson-Howard and Ms Helen Webb (‘Webb’) to arrange a performance review meeting once she had returned to work. That meeting ultimately took place on 28 February 2017.
Ganesan’s memorandum of 23 February and the first performance review meeting of 28 February 2017
Ganesan sent a memorandum to the applicant dealing with the concerns he had about her performance, providing examples of those matters, and informing her of further reviews which would take place during the course of her probationary period. In part, that memorandum read as follows:
Regrettably, I write to advise that I have a number of concerns with respect to your performance. My reasons for this include but are not limited to:
§ Failure to produce statistical analysis work in a timely manner;
§ Inadequate attendance research meetings;
§ Lack of progress on your components of publications;
§ Inability to meet research plan goals as directed by the supervisor; and
§ Inability to successfully work within the context of the research team.
Examples of the above include, but are not limited to:
§ Avoidance of research meetings, with communications set out in emails;
§ Avoidance of responses to emails requesting results;
§ Lack of availability by telephone, and avoidance of responses to telephone calls;
§ Multiple emails demanding various process related matters rather than actual project related matters; and
§ Delayed production of results of the wearable activity tracker paper.[32]
[32] Exhibit R14, Annexure ‘AG21’.
He advised the applicant that if her performance did not improve before the end of the probationary period, her employment might not be confirmed for the balance of the fixed term contract of employment. Ganesan specified in the memorandum certain key deliverables which he advised the applicant was required to meet. They were as follows:
In our meeting today we have confirmed the performance expectations of your position, and the following is an outline of your working arrangements and my expectations over the next four weeks:
§ data analyses and annotated STATA code as previously requested for publication on wearable activity tracker is to be submitted by 5/3/17;
§ draft statistical methods paragraph 4 wearable activity trackers paper by 1/3/17;
§ data analysis plan for food and nutrition study by 7/3/17;
§ attendance at all team meetings is mandatory;
§ assistance with other team members research requirements for quantitative analyses as directed; and
§ daily summary of new results and new STATA code produced each day by email.
If you believe you require any training or mentoring to assist you to achieve the outcomes listed above I strongly encourage you to ask for this assistance. Likewise, if there are any extenuating circumstances currently impacting on your ability to work at a satisfactory level, please raise this with me.[33]
[33] Ibid.
On this day, the applicant spoke to Dawson-Howard by telephone and informed her that she was reluctant to attend the performance review meeting scheduled for the following day due to the fact that she did not have a support person to attend with her. The meeting did not proceed on 24 February 2017. The applicant sent an email to Ganesan on that day informing him that she was unwell and unable to attend work. She advised that she was seeking a support person to enable the performance meeting to proceed. The applicant says that she worked on 26February 2017.
On 27 February 2017, Dawson-Howard sent an email to the applicant informing her that the performance review meeting was set for 28 February 2017. The applicant responded by advising that she was hopeful of having a support person in time for the scheduled meeting. Dawson-Howard emailed the applicant suggesting that Webb might be able to act as a support person for her and advising that if the meeting did not proceed face-to-face she would reduce the performance concerns to writing.
The applicant met with her support person, Margaret Mary Kaukas (‘Kaukas’), on the morning of 28 February 2017 to discuss matters relating to the meeting scheduled for later that day.
Approximately 90 minutes prior to the scheduled meeting, the applicant sent an email to Dawson-Howard which described at some length her concerns about the tasks and timeframes expected of her. Ganesan and Dawson-Howard were not able to discuss that email prior to the meeting. The meeting occurred as scheduled and those present were the applicant, Kaukas, Ganesan and Dawson-Howard.
The manner in which the meeting progressed is the subject of dispute between the parties. That may be because those present had different views as to the purpose of the meeting. The applicant believed it was to enable her to have her concerns about the perceived inappropriate behaviour of Ganesan formally addressed. A request made by or on behalf of the applicant to make an audio recording of the meeting was refused by Dawson-Howard. Notes were made on behalf of the applicant by Kaukas. Ganesan and Dawson-Howard perceived the applicant’s manner to be both aggressive and hostile towards them. On occasions she shouted at them and spoke over Ganesan. Dawson-Howard and Ganesan say that Kaukas asked the applicant on a number of occasions to calm down. During the meeting, the applicant was told about the concerns held with respect to her performance and was informed that those concerns were shared by Chew and Heddle. She was told that if the concerns could not be resolved satisfactorily, her employment could not be guaranteed after the expiration of the probation period.
During the meeting, the applicant raised her own concerns about the matters raised by Ganesan in his memorandum of 23 February 2017, that she should be recognised as the sole author of any research paper she produced, and that she would not acknowledge contributions of others such as Ganesan. She refused to sign a copy of the memorandum of 23 February. On the applicant’s case, this was the first time that any performance concerns had been raised with her. That is not the case. Ganesan’s email of 21 February at 5.39pm clearly raised performance issues.
The applicant relied on the evidence of the solicitor, Kaukas. Kaukas knows the applicant in a personal capacity. At the time of giving evidence she was not acting for the applicant. In her trial affidavit,[34] she stated that in January or February 2017 the applicant had advised her that she was experiencing difficulties in her employment at Flinders University. The applicant informed her that her supervisor was imposing unrealistic demands on her and that she was being subjected to bullying by him. In February 2017, the applicant asked if Kaukas would accompany her as a support person to a meeting she was required to attend with her employer. It was apparent to Kaukas that the applicant believed the purpose of the meeting was to discuss concerns she had raised with HR about those matters and that the meeting would be a form of ‘mediation’ with her supervisor. Kaukas was present at the meeting of 28 February 2017. The applicant showed Kaukas a copy of the email sent to her by Dawson-Howard on 27 February 2017. They discussed the purpose of the meeting in light of that email.
[34] Exhibit A4.
Once Kaukas had confirmed that she was attending at the meeting in her personal capacity, as opposed to professional capacity, she was permitted to be the support person for the applicant. Kaukas says that the meeting commenced at 2.54pm. Being of the view that the meeting was in all likelihood of a disciplinary nature, Kaukas had suggested to the applicant that she requested to make an audio recording. Dawson-Howard, Webb and Ganesan did not consent to being recorded and so no recording was made. Kaukas took notes during the course of the meeting. She attempted to make them verbatim but was not confident that they represent a complete record of what was said at the meeting as she had difficulty keeping up with what was said. Kaukas disagrees with the way in which Dawson-Howard and Ganesan characterised and described certain aspects of the meeting. In particular, she disagrees that the applicant shouted at Ganesan and Dawson-Howard. Her recollection is that the applicant did not shout or raise her voice at anyone during the meeting. Rather, she would describe the applicant as having spoken passionately when responding to certain allegations made about her performance by Ganesan and that she was clearly distressed at times. She believed that the applicant become distressed when it appeared to her that Ganesan and Dawson-Howard were dismissive of the issue she was trying to raise and her responses. Kaukas says that she intervened on a number of occasions during the meeting either by saying the applicant’s name and shaking her head at her or by reaching out and gently touching her arm. Her evidence is that she does not believe that she asked the applicant to calm down as asserted by Ganesan. She denies that she intervened on any occasion because the applicant was shouting or behaving appropriately. She says that she did so because the applicant was repeating things she had already said and becoming upset. Her observation was that Ganesan and Dawson-Howard were dismissive of the applicant’s responses or explanations. Her observation was that Ganesan appeared to be hostile towards the applicant and unwilling to make any concessions. Kaukas agrees that the applicant made it clear that a significant concern for her was ‘the authorship issue’. She disagrees that the applicant stated she wanted to be the sole author of any research paper she produced, rather her concern was the issue of authorship and accreditation should be agreed at the start of the process and be determined by way of recognised guidelines. The view put forward by the applicant was that authorship should be determined at the start of the writing process whilst Ganesan asserted that the question of authorship would be clarified at the draft stage. The applicant expressed the view that the number of papers which she had been directed to write or contribute to was unrealistic and unachievable. Dawson-Howard asserted that the applicant was not required to write papers or put a name to them but just to contribute to them, whereas the applicant felt she was being asked to make a significant contribution towards the papers warranting acknowledgement as an author in accordance with the relevant guidelines. Kaukas’ notes of the meeting were annexed to a Trial Affidavit.
In cross-examination, Kaukas stated that beyond her notes she had no independent recollection of the events of the meeting. She did have independent recollection of her impressions of the effect and tone of the meeting. She accepted that the only concession made by the applicant at the meeting was that she should have weekly meetings with Ganesan. She could not recall the number of papers the applicant claimed to have been instructed to prepare per year. All she could recall was that the number asserted by the applicant seemed to be excessive. She accepted that her only knowledge of the number of papers the applicant had been instructed to do came from the applicant herself. She was not able to agree or dispute that Dawson-Howard had advised that the applicant was only required to contribute to three papers per year. Her notes did refer to three papers per year and Dawson-Howard’s confirmation that the applicant was only being required to contribute to them. As to the concern about the applicant being attributed with authorship, Kaukas said the following:
… I certainly don’t recall it was suggested that her name never be on the papers. But the - I guess the issue of difference was the extent of the contribution Dr Lim was making or had to that date made, and when authorship would be decided and in what order authors would be recorded.[35]
[35] Transcript (‘TX’) 72, 41-44.
Later in her evidence she said:
Well, I think in relation to the specific paper they were talking about, there was a particular paper where she had done a lot of work on the data. She had to clean it up. I’m not quite sure what that means, but she said she had to clean it up. And my recollection is that her view was a contribution she had made was such that she should be one of the primary authors and not a secondary author.[36]
[36] Ibid, 36-41.
Kaukas was asked whether it was apparent that the applicant had formed the view that Ganesan required that he would be the first author on such a paper in all circumstances regardless of her work. The witness responded as follows:
I do think that’s the case. I’m not sure that we ever discussed it, but certainly it was the impression I had. And that was the impression I got from the professor himself.[37]
[37] Ibid, 45-47.
Kaukas said that in terms of the applicant’s expressed view as to authorship, what she was saying was that in terms of her being the first attributed author that would be consistent with the University guidelines given the level of contribution that she had made. It was not her impression that the applicant put an ultimatum to the University to the effect that unless her demands were met she would not produce a paper.[38] Her main issue was that the authorship needed to be agreed at the start of the process consistent with the University guidelines and not at the draft stage as was being suggested by Ganesan. She acknowledged that the matters referred to in this paragraph of the reasons were not recorded in her notes. In any event, she maintained that the discussion was not about the applicant’s insistence that she be the only author.
[38] TX 74, 45-46.
She acknowledged that the applicant was frustrated, upset and emotional during the meeting and had formed the view that Ganesan was insisting on being the primary author on the paper. She had not seen a copy of the email from the applicant in which the applicant expressed the view that she was entitled to know before she finalised her work and handed, “the results of my hard work” to Ganesan and how the authorship issue would be dealt with. She had never discussed that matter with the applicant, who had only given her a “snapshot” of the issues before the meeting.[39] The applicant did not show her anything in writing which confirmed she would be required to produce 12 papers per year.
[39] TX 80, 23.
The witnesses who gave evidence as to that meeting obviously had a different perception to the way some of the events unfolded. I am satisfied that none of the witnesses was attempting to exaggerate, downplay or fabricate any of the events on which they gave evidence.
In relation to printer access and stationary supplies, the applicant commenced employment on 19 December 2016 and was provided a printer on 14 February 2017. In the intervening period she had access to the University library printer and was reimbursed for any stationary and printing costs she incurred. There was also a Christmas/New Year break during that time.
I accept that the Agreement, when read as a whole, clearly aims to balance the need for business efficiency and flexibility with the need to ensure obligations to staff are met. With this in mind I make the additional observation that cl A8.2 contains duties owed by the applicant. These include, relevantly, the duty to comply with reasonable directions of the employer and undertake work in a manner which supports, enhances and does not detract from the University’s strategic goals and objectives and respect the rights and welfare of all other persons who use the University. I consider that requiring the applicant to make temporary workarounds and concessions while her workstation supplies and printer were being sourced was expected under the Agreement and reasonable and appropriate in all the circumstances, particularly in circumstances where a work space is being prepared for a new staff member.
No breach of cl A8.1 of the Enterprise Agreement is made out.
Clause A10.4 – Intellectual Property
The applicant alleges that her repeated requests to discuss and formalise authorship according to the University’s authorship guidelines were ignored amounting to a breach of clause A10.4 of the FUEA. The relevant wording of the clause states; “The University will abide by the principle of moral rights by taking reasonable steps to ensure that the rights of originators to attribution of their work are respected.”
According to Ms Kaukas the applicant’s complaint was in relation to the number and order of authors listed on a specific paper and that, from the applicant’s perspective, because of the work she had completed she should be named as the first or leading author.
The applicant explained in cross examination that it was not her position that Ganesan should have no authorship but that she wanted the authorship form in place in order to formalise the contributions that would be required of her and others.
Putting to one side the fact that policies and procedures do not form part of the FUEA in accordance with cl A5.2, the evidence of the Ganesan in both his affidavit as well as his oral evidence at trial explains, in what I accept to be a valid justification, why the applicant’s expectations in this regard were not acceptable.
Ganesan stated in his oral evidence that if the applicant had completed the tasks to a satisfactory standard she would have been the first author. However, authorship could not be allocated without him actually seeing the work produced. The applicant’s unwillingness to share her work in any meaningful way meant that it was inappropriate for the question of authorship to be pre-determined. I accept this to be a logical explanation as to why the form was not completed and further find the applicant’s expectations in this regard to be inappropriate and unreasonable.
Further, in his affidavit, he gave evidence in relation to the way in which authorship works and explained the following:
Ordinarily the authors for a paper will include a first or lead author, followed by a senior author who is the person who submits the research paper to the journal and also (usually) middle authors who have made a less substantial contribution. Ordinarily if the Applicant had written any research papers herself, she would have been listed as the first or lead author. I would have been listed as the senior author, given that as the Applicant’s supervisor I would have been responsible for undertaking a critical review of her research paper and submitting it to the relevant journal seeking publication.
Professor McKinnon also gave evidence, which corroborated that of Ganesan, as to the typical timing of determining authorship, explaining that it is not possible to determine prior to completion of a paper.
The applicant’s request for authorship rights to be determined at such an early stage, was unreasonable and not in line with the intentions of the FUEA provision.
There is nothing in the FUEA that obligates any of the respondents to pre-emptively determine the issue of authorship prior to the publication of works. The allegation that a breach somehow exists is premature and must be dismissed.
A25 – Personal/Carer’s and Compassionate Leave
Clause A25.4 provides for the circumstances under which staff are entitled to take paid person/carers leave and at clause A25.11.1 deals with notification requirements by staff to the University.
The applicant alleges that in early February 2017 she was criticised by Ganesan for having too many absences from work. She does not claim to have been denied the right to take carers leave and there is nothing in the evidence to suggest that any breach of this clause exists. I dismiss the applicant’s claim in this regard.
A27 - Staff Development and Training
Clause A27 states that staff are required to participate in specific orientation and induction training. The applicant alleges breach of this clause on the basis that Ganesan directed her not to participate in orientation and induction training because it would be “wasting” her time.
This allegation was denied by the second respondent and the applicant did complete the training in any event. No breach can be established on these facts.
I note also that cl C6.5 – Confirmation of Employment - states that confirmation of employment at the end of a probationary period is subject to a number of considerations that the authorising officer is to be satisfied of. The considerations mention the completion of relevant orientation and induction training within the probationary period, unless otherwise agreed. This wording tends to support a non-compulsory element.
A31 – Dispute Settlement
The applicant contends that cl A31 was breached on an ongoing basis to the date of termination by:
(a)Ms Dawson-Howard in her failure to assist in resolving the applicant’s complaints about the second respondent’s alleged bullying of her and his refusal to discuss and complete the authorship form; [113]
(b)Failure to discuss and address her complaints with respect to the second respondent raised at the February 18 meeting; [114] and
(c)The sixth respondent, Professor McKinnon in failing to take action to address issues raised and provide written advice of the actions within 5 days of her complaint made 3 March 2017. (Clause A31.3). [115]
[113] Applicant’s Closing Submissions [181]-[182].
[114] Applicant’s Closing Submissions [184].
[115] Applicant’s Closing Submissions [185].
Clause A31 sets out progressive steps that should be taken by staff and management in the event of a workplace dispute. The exact wording of the clause can be found in full toward the beginning of these reasons. In summary, the initial step at cl A31.1 states that the complainant is to take the matter up with the relevant staff members’ supervisor in writing and that the matter will be considered with a view to resolution with written advice normally provided within 5 working days.
In relation to complaints (a) and (b) above, Ms Dawson-Howard appears to have first become aware of the applicant’s complaints about the second respondent, Mr Ganesan on 31 January 2017, – I have outlined the event of the day, the discussions between the applicant and Dawson-Howard, and the actions taken by Dawson-Howard earlier in these reasons. To summarise, on this day the applicant had a meeting with Dawson-Howard almost directly after a heated discussion with Ganesan. At that time the applicant expressed her concerns that Ganesan’s expectations were unreasonable and Dawson-Howard listened to the applicant’s concerns and offered to facilitate a consultation between the applicant and another senior member in order to take the matter further. In so doing, Ms Dawson-Howard fulfilled her obligations under the FUEA’s initial step cl A31.3 which required her to “consider the matter with a view to resolution”. This offer was rejected by the applicant who expressed she did not wish her concerns to be shared at that time. No formal complaint was made and Dawson-Howard was under no additional obligation to take the matter further under such circumstances.
On 16 February 2017, the applicant again met with Dawson-Howard to discuss her concerns around Ganesan’s expectations which she considered amounted to a form of bullying and harassment. Dawson-Howard again advised the applicant that she should meet with more senior members of the School of Medicine and to consider a conciliation conference with Ganesan to help resolve her concerns. Again, this offer was rejected by the applicant and again Dawson-Howard was instructed not to share the complaints with others in the FUSA’s School of Medicine. Again, no complaint was put to writing nor made formal in any way. Ms Dawson-Howard’s actions met her obligations under these circumstances under cl A31.3. It is unclear what the applicant was hoping to achieve by her meetings with Dawson-Howard given she refused the remedies suggested to her which would have, from an objective standpoint, provided to her with opportunity to achieve some resolution.
On 28 February 2017, the applicant did put her concerns in writing to Dawson-Howard, approximately half an hour prior to her performance meeting in which both Ganesan and Dawson-Howard were present as well as the applicant’s support person Ms Webb. Again, on 1 March 2017, the applicant emailed Dawson-Howard and Ganesan, objecting to deliverables and stating her expectations in relation to authorship for research papers.
On 2 March, Dawson-Howard responded in writing to the concerns raised by both the applicant about Ganesan and Ganesan about the applicant. The significant resolution was that Ganesan would no longer supervise the applicant. In addition, expectations as to key deliverables were set out.
On 9 March, Dawson-Howard emailed the applicant advising her among other things that she had opportunity to make a formal bullying complaint against Ganesan if she wished to do so and that without a formal complaint, the FUSA would not be in a position to investigate her allegations further.
The various actions by Dawson-Howard demonstrate a clear compliance with cl A31.3 of the FUEA. The applicant’s contention that Dawson-Howard failed to assist in resolving her complaints and in so doing breached cl A31 are completely without foundation and I reject them.
In relation to the allegations that McKinnon breached his obligations under the FUEA, (outlined above), I agree with the submissions of the respondent that McKinnon was within his rights to conclude that the concerns raised did not fall within the scope of his remit. McKinnon was under no obligation to deal with the matter further after his discussions with Dawson-Howard confirmed to him that the applicant’s concerns were being handled by the appropriate staff members. His actions were reasonable in the circumstances. No breach is made out.
Clauses C6.4, C11 and C12.3
I will deal with the below listed clauses together as they are aligned in parts given the applicant’s performance review was undertaken during her probationary period and the allegations combine the three clauses. I note that both Ganeson and Chew were at different times the applicant’s relevant supervisor.
Clause C6.4 – Probation for Academic Staff
Clause C6.4 reads: “During a probationary period the University will ensure, through the designated supervisor, that the appropriate feedback, support and training opportunities are provided to the staff member.”
Clause C11 – Academic Staff Performance Review
Clause C11 outlines the performance review scheme and was designed for the purposes of a (normally) annual review. The Clause itself notes that separate procedures are to be followed for reviewing and investigating, in a formal manner, unsatisfactory performance and misconduct.
Clause C12.3 – Academic Profiles
Clause C12.3 explains that Academic Profiles provide the basis for performance management of academic staff. I remind myself that the applicant was employed as a Level B research academic. The minimum standards of this position are outlined at Schedule 11, cl 3.2 of the FUEA and reads as follows:
A Level B research academic will normally have experience in research of scholarly activities, which have resulted in publications in referred journals or other demonstrated scholarly activities.
A Level B research academic will carry out independent and/or team research. A Level B research academic may supervise postgraduate research students or projects and be involved in research training.
I will deal with the first two allegations jointly as some overlap exists between them.
Allegations 1 & 2
The second respondent’s refusal to sit down with the applicant and constructively agree a set of realistic expectations with respect to her workload and required deliverable [sic] constitute a breach of clauses C6.4 and C11 of the Flinders Enterprise Agreement. [116]
“The First (through Ms Dawson-Howard and Ms Webb) and Second Respondents’ failure to particularise the performance concerns raised with her in the meeting on 28 February 2017, and their failure to provide evidence supporting those concerns, constitutes a breach of clause C6.4, C11 and clause 12.3 of the Flinders Enterprise Agreement. [117]
[116] Applicant’s Closing Submissions [180].
[117] Applicant’s Closing Submissions [183].
The obligations under the FUEA cl C6.4 is to provide “appropriate feedback, support and training.”
The objectives of cl C11 are, in summary, designed to review staff performance, ensure staff have an understanding of their expectations and provide feedback and assistance.
I refer to my description of events outlined earlier in these reasons in which I have detailed the events leading up and including the performance management process of the applicant. There are a number of examples in these facts and in the evidence which demonstrate the respondents’ compliance with the FUEA in this regard.
During a period of less than three months, the applicant attended a number of meetings and received a multitude of emails which provided clear feedback and clarification as to what was expected of her. She was also offered support to give her the best chance of succeeding and invited to ask questions in the case that clarification as required.
To highlight some examples, on 31 January 2021, the applicant’s then supervisor Ganesan sent emails just after 6.00pm (outlined above) which were professional and courteous in tone and clearly sent for purposes of clarifying work expectations. He further advised that he would be happy to meet on a weekly basis to discuss progress. Another example is Ganesan’s 23 February memorandum, prior to the performance meeting on 28 February, which lists his concerns and provides examples of conduct and performance which did not meet expectations. He also specified key deliverables and expected deliverable dates were provided. This type of guidance and clarification of expectations, as well as providing the employee ongoing opportunities to seek assistance and improve performance is clearly in line with the intentions and obligations of the FUEA as set out in cls C6.4 and C11.
At all times was the communications received by the applicant clear and helpful so that she was able to take from it an understanding as to what was expected of her. The fact that the applicant clearly disagreed with the expectations does not amount to breach by the respondents.
As for the applicant’s claim that the FUEA was somehow breached because the respondents did not provide supporting evidence of their performance concerns, I say that the respondent’s concerns as to the applicant’s performance was well documented. Their efforts were complicated by the fact that the applicant was not willing to share her work in any meaningful way or to attend several work meetings. Her expectation that any concerns raised by her supervisors be supported by evidence above and beyond the detailed written advised she received on a number of occasions is not supported by the FUEA. The respondent’s communications were commendable and exceeded their obligations under the FUEA in respect to performance management responsibilities. Any allegation of failure to particularise or provide an evidential basis for their concerns is dismissed. The facts simply do not support this position.
I note further that the FUEA at cl C6.5 discusses the consideration of factors that an authorising officer will give consideration to when determining whether or not it is appropriate to confirm employment at the end of a probationary period. These include the consideration of satisfactory performance relative to the specific Academic Profile. Poor performance in research is one reason that might satisfy an authorising officer to not confirm employment. The respondents were within their capacity to take into account the myriad of expectations they had of the applicant’s performance both as a Level B researcher as well as a member of the team with whom they could work with collaboratively.
Allegation 3
The refusal by the First (through Ms Dawson-Howard and Ms Webb) and Second Respondents’ to discuss and address the Applicant’s complaints with respect to the Second Respondent at the meeting on 28 February 2017 constitutes a breach of clause C11 and A31 of the Flinders Enterprise Agreement.[118]
[118] Applicant’s Closing Submissions [184].
With respect to cl C11, the objective of this clause is not to provide the applicant with an opportunity to review the performance of her supervisor. In any event the respondent’s actions were found to be appropriate in relation to cl 31, discussed above, and no breach was found to exist.
Allegation 4
The Refusal of the Third Respondent to look at the electronic outputs of the Applicant to assess her progress on 14 March 2017 constitutes a breach of clauses C6.4 and C11 …
I agree with the respondents’ submission that the applicant’s unwillingness to provide evidence of her work, other than allowing viewing on her device and in her presence, contributed to the ‘impasse.’
Allegation 5
The Third Respondent not resolving the ‘impasse’ to facilitate review of the Applicants work and her requests to discuss and formalize authorship according to the Authorship guidelines is a breach of clauses A10.4, A27, C6.4, C11 and C12.3.
The issue of the Authorship form (cl A10.4 – Intellectual Property) has been dealt with above. It has been established that the respondents’ had no obligations under the FUEA that required them to concede to the applicant’s demands to have the form completed prematurely. The applicant was attempting to exercise a right which she simply did not have at that early stage according to the evidence.
Clause C10 – Academic Workloads
Various complaints were made in relation to breaches of cl C10 of the FUEA which sets out the principles governing Academic workloads. This is a lengthy clause which has already been provided in full earlier in these reasons.
Some notable passages include:
(a)At cl C10.1.1 “Workloads will be determined in accordance with workload measurements and allocation developed by the relevant School and in consultation with staff, consistent with the Academic Workload Equalisation Principles under cl 10.2.”
(b)A general expectation as to hours worked is provided over a 12 month period at cl C10.1.2.
(c)Clause C10.2.3 states that “Expected outputs will be reasonable and appropriate for the level of academic appointment and role.”
(d)Clause C10.2.13 states that where a staff member feels aggrieved about the application of the workload allocation scheme, the staff member should refer their concern to the Dean of the school in the first instance, and thereafter with the Executive Dean. I note that the Dean of the School at all relevant times was Professor Bill Heddle.
I accept that the applicant was genuinely concerned about the work load expectations to the point she considered it to be a form of bullying and harassment by Ganesan. However, there is simply no evidence that supports the position that the work load required amounted to a breach of the FUEA.
The facts relevant to cl 10 can be found at paragraphs earlier in this judgment. For example the applicant’s email to Ganesan on 1 February 2017 and her complaints to Dawson-Howard (discussed above under the heading ‘Dispute Settlement’).
Concerns around workload appeared to have surfaced between the applicant and Ganesan on 31 January 2017 during a discussion about the applicant’s work. It was at this meeting that the applicant first raised her concerns, and in an apparently heated manner, that the deadlines were unreasonable. (I note that Ganesan had previously raised his concerns about the applicant’s abilities with Chew) Ganesan’s evidence is that he took the opportunity during the January 31 meeting to clarify the applicant’s role in general terms. Later the same day the applicant relayed her concerns to Dawson-Howard who offered her the same clarification as to her role as Ganesan. Nothing, it appeared was unreasonable from Dawson-Howards perspective about the expectations, tasks or work load set by Ganeson. Later again the same day Ganesan sent two emails to the applicant in order to clarify his expectations and allay her concerns.
The following day the Ganesan again emailed the applicant reminding her of an upcoming deadline. Her response was to explain there was not enough time for her to meet the deadline and proposed a new work plan with what she called “more realistic timelines.”
I will not repeat the facts further other than to say that the evidence I have before me is that the expectations were relaxed in accordance with the applicant’s concerns by way of the project work plan emailed to the applicant on 31 January and relayed further in the February Memorandum.
I also agree with the respondents’ submission that the performance outputs did not need to be agreed to by the applicant. This is consistent with the wording of the FUEA and I find that the applicant’s insistence to have the respondent’s agree to expectations dictated by her was not in line with her own obligations under the FUEA.
There is nothing on the evidence that suggests the workload expected was over and above that determined under the FUEA guidelines.
I note further that the FUEA appears to support and encourage staff to exceed expectations, and provides for incremental progression, promotion and recognition of exceptional performance.
The applicant has not made out her claims.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding three hundred and sixty-six (366) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Heffernan. Associate:
Dated: 31 March 2021
SCHEDULE OF PARTIES
ADG 155 of 2017 Respondents
Fourth Respondent:
STEVE WALTHAM
Fifth Respondent:
BILL HEDDLE
Sixth Respondent:
ROSS MCKINNON
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