Marco Giovanni Casarotto v Australian National University
[2022] FWC 1392
•20 JUNE 2022
| [2022] FWC 1392 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marco Giovanni Casarotto
v
Australian National University
(U2021/10092)
| COMMISSIONER MCKENNA | SYDNEY, 20 JUNE 2022 |
Application for an unfair dismissal remedy
Marco Casarotto (“applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”) in which he seeks an unfair dismissal remedy in relation to his termination of employment by the Australian National University (“respondent”, “university” or “ANU”).
Preliminary matters
Section 396 of the Act specifies that the Commission must decide certain matters relating to an application for an unfair dismissal remedy before considering the merits of the application. As to the matters set out in ss.396(a), (b) and (c), there was no issue, and I otherwise find, that the application was made within time; the applicant is a person who was protected from unfair dismissal; and the respondent is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise. As to the s.396(d) criterion, the respondent raised a jurisdictional objection to the applicant’s application, relevantly contending that the termination of employment was a genuine redundancy.
Section 389 of the Act provides the following meaning of genuine redundancy for the purposes of an application for an unfair dismissal remedy:
“Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Consideration of the initial matter
Given the standard practice within the Commission in relation to unfair dismissal applications involving a genuine redundancy jurisdictional objection, the usual double directions were issued in connection with this matter – being directions dealing with both jurisdiction and merits. As is common in connection with university-related matters, each party adduced a significant amount of written and oral evidence and submissions. In a distilled form, a relevant evidentiary background included the following matters.
The applicant’s evidence: The applicant commenced employment with the respondent in 1996. In 2012, the respondent appointed the applicant to the role of Associate Professor (Level D). The work undertaken by the applicant in his employment with the respondent focussed on structural biology and drug design, principally involving research into structural biology to design drugs to treat various diseases including cancers, viral infections, inflammation, heart conditions and muscle weakness. The applicant’s evidence was that, since 2000, he had a major role in attracting competitive research grants from external government agencies and private organisations for research into structural biology and drug design – including grants from the National Health and Medical Research Council (“NHMRC”) and the Australian Research Council (“ARC”). The grantee under all such grants was and is, in the case of current grants, the respondent; and all money under the grants has been paid to the respondent by the grantor.
Until 2020, the applicant’s employment, from an administrative perspective, was located/placed within the Australian Cancer Research Foundation Department of Cancer, Biology and Therapeutics (“Cancer Department”) within the John Curtin School of Medical Research (“JCSMR”). The JCSMR is part of the respondent’s College of Health and Medicine (“CHM”). By an agreement made between the applicant and the respondent in 2020, the administrative location of the applicant’s work changed from the Cancer Department to the Eccles Institute of Neuroscience (“Eccles Institute”). The Cancer Department and the Eccles Institute are both physically located within the JSCMR building on the respondent’s main campus. They are both part of the JCSMR, which is part of the CHM. The applicant’s evidence set out some of the detail of matters around how/why those arrangements came about, which are unnecessary to summarise. Relevantly, the applicant continued undertaking the same duties following the change, from the same office in the JCSMR building, using the same laboratory in the JCSMR building to do research into structural biology and drug design, and to supervise PhD students and employed post-doctoral fellows (“post-docs”) of the respondent.
As to the processes which eventually culminated in the termination of the applicant’s employment, the following is a chronological summary largely derived from the applicant’s evidence:
· on 19 May 2021, the applicant received correspondence informing him “that, from that date, I was surplus to requirements” and further indicating he was to be made redundant unless he was redeployed during a 12-weeks redeployment period beginning on 27 May 2021;
· on 18 August 2021, the applicant received correspondence informing him that his redeployment period had spanned 26 May to 17 August 2021, without any position being found into which he could be redeployed;
· the applicant appealed the redundancy to the ANU Review Committee, which upheld the redundancy; and
· the applicant was notified of both the ANU Review Committee’s decision and of his dismissal by the respondent on the ground of redundancy, with immediate effect on 27 October 2021.
A summary of the findings of the Review Committee Report, as referred to in the applicant’s evidence, was as follows:
“The Review Committee reviewed all of the documentation and information provided and gave consideration to the relevant provisions of the ANU Enterprise Agreement and related policies and procedures. The Review Committee made the following findings and recommendations in accordance with the terms of reference and principles of review (Clause 73.3 and 73.4) of the Agreement:
a. the University followed the procedures which were applicable to the original decision (namely redundancy)
The Review Committee unanimously agreed that the University followed the procedures that were applicable to the original decision.
b. there is sufficient evidence to support the original finding and/or decision;
The Review Committee unanimously agreed that there was sufficient evidence to support the original decision made.
c. and, where relevant;
i. whether any proposed disciplinary action was in proportion to the findings of the original decision making process
The Review Committee unanimously agreed this was irrelevant to the decision being reviewed.
ii. whether discrimination or victimisation influenced the original decision making process
The Review Committee unanimously agreed there was no presented evidence that discrimination or victimisation influenced the original decision making process.
iii. in the case of redundancies, whether the University used fair and objective criteria to determine which position(s) was/were declared excess to requirements.
The Review Committee acknowledged the difficult and protracted nature of a Change Management process and whilst sympathetic it was unanimously agreed that the University applied fair and objective criteria in determining that the Level D academic position held by Associate Professor Casarotto was surplus to requirements.”
The applicant’s evidence in the proceedings (written and oral) elaborated points of disagreement or contention about what was “allegedly a result of the restructuring of the CHM”. Those points of disagreement referred to matters including, but not limited to: priorities identified in the respondent’s restructuring documentation; the fields of research undertaken; and the administrative delineation of the relevant units apropos work-related considerations. The applicant also adverted to his understanding that five persons were engaged to fill certain continuing positions, being positions the applicant considered would have been suitable for his redeployment. The applicant was unaware of the advertisement for such position/s until after the termination of employment on 27 October 2021, notwithstanding earlier discussions to canvass the possibility of redeployment to the respondent’s Research School of Biology (“RSB”).
The applicant referred to a post-termination development. That is, in November 2021, the respondent received a research grant from the NHMRC. The applicant and another employee of the respondent, Dr Anselm Enders, had been instrumental in making the application for the grant – being a grant, when made, which referred to the applicant and Dr Anders personally as chief investigators. The grant money has been paid to the respondent, namely, approximately $1.4m for the four-year life of the grant to fund the research. The grant was operatively effective from January 2022. The applicant described the payment of the grant as being conditional on his presence and participation as the nominated chief investigator.
On 22 December 2021, the applicant and the respondent confirmed agreed arrangements concerning the applicant’s appointment to an honorary position at the university. As to the applicant’s appointment to a post-termination honorary position at the university, the applicant’s evidence was that he accepted the honorary position on the basis that the respondent’s position was that the only way the grant could be accepted by it was if he agreed to accept the position (with the only other way that the grant could have been accepted was for the applicant to obtain a position at another Australian university and for that university to obtain agreement from the NHMRC to transfer the grant). The NHMRC grant funds the employment by the respondent of three post-doctoral fellow positions and a graduate assistant. Although the grant does not provide funds for the payment of salary or wages to the PhD students who are working on the research to which the grant relates, the supporting research costs awarded under it will have a substantial impact on the progression of each such PhD student’s research; the applicant outlined why that “materially benefits” the respondent. Having regard to exigencies associated with the grant, the applicant considered that he could not, in conscience, decline the offer made to him by the respondent of an honorary position.
The applicant referred to a number of other matters concerning his honorary role, such as the administrative location of his former employment and the unchanged nature of his functions, duties and responsibilities, and area of research while he was still an employee (i.e., in changing from the Cancer Department to the Eccles Institute). The applicant also referred to a range of matters relevant to, for example, the supervision of the PhD students in the completion of their dissertations and the students’ involvement in conducting research. Other matters were the subject of description in the applicant’s evidence (albeit the relevance of some of those matters to the determination of this case was not entirely clear), such as the respondent having retained certain rights in relation to any drugs or technologies the applicant designed or discoveries he made while employed by the respondent, including rights to take an interest in biotech companies that were founded to commercialise technology, drugs or discoveries in which he had been involved.
Compendiously, the applicant’s evidence was that there have been no changes to his functions, duties and responsibilities after his “alleged redundancy” on 27 October 2021, other than those that relate to lecturing. As the applicant’s submissions put matters: “The University continued to require [the applicant’s] job to be performed and there was no change in its operational requirements so far as he was concerned.” The applicant further submitted: “On and from ‘day one’ after his dismissal on 27 October 2021 [the applicant] has, to the University’s knowledge and with its consent, indeed encouragement, continued to perform the same duties (or essentially the same duties), for the same amount of hours, from the same location as he was the day before. Nothing in any of the evidence of any of the University’s witnesses received by the Commission sought to counteract that fact.”
That is, the applicant’s evidence was that, from 28 October 2021, he attended work at the same time he normally had and, as exampled in his evidence, did the same things he normally did, with the exception of lecturing - and has continued to do so to around the time of his evidence in these proceedings. The applicant considers there are no alternative supervisors at the university with the specialist knowledge and skill-set required to mentor, advise and supervise certain students on their respective areas of research - described by the applicant as being “within the confines of the overall research that I, and I alone at the CHM, have been doing in structural biology and drug design.” The applicant detailed various other matters concerning payments and grants, including a now-expired grant, that he continued working on “unabated” from 28 October 2021 to 31 December 2021. There was still further reference to the supervision of post-docs who are employed by the respondent in positions to work on the research to which certain grants relate, including the future of one individual’s “research career and the success of all NHMRC grants that I am the [chief investigator] for relies on his involvement in the research I lead.” The applicant’s evidence as to other matters included: “There is no-one else at the ANU who knows anything like as much as I do about the SPR facility, and we are talking about a $500,000 piece of equipment. Its use is also important to the work that is being done by the PhD and post-grads that I am supervising and to the proper performance of the existing grants that I refer to in this statement. The SPR facility is physically moving from the JCSMR building to the building that the RSB is located in, so that I can return to maintaining it and supervising its use.” The applicant added:
“To the extent that my post 27 October 2021 work is at my discretion and not supervised ‘in real life’, it is consistent with my prior experience as a research scientist leading a group of PhD students and post-docs and no different from any other research scientist of my level of experience and knowledge who is employed by the University. … As a matter of practical reality in order to properly perform the research under the grants and to properly supervise the PhD students and post-docs that are working on areas relating to the grants, I still have to work the same number of hours - which exceed 38 hours per week - doing the research and undertaking the supervision that I was doing up to 27 October [2021]. That has been the case since ‘day zero,’ Thursday 28 October [2021]. …To summarise, my PhD supervision, my post-doc supervision, my SPR facility supervision [subject to a qualification], and my research have all continued in the same manner, to the same extent, for the same number of hours, from the same location as was the case up to 27 October [2021]. I have also been asked whether I would continue lecturing as prior to my alleged redundancy.”
The applicant encapsulated matters in the following way. His evidence was that:
“… other than lecturing, which I am presently not doing, I am doing, unpaid, precisely the same kind of work that I did when I was paid.
Due to the grants that I hold, and my supervision of PhD students and post-grads, the ANU receives revenue and makes profit from my unpaid work at the ANU.
I do not consider that I have a real choice other than to do this unpaid work. The above-mentioned PhD students and post-docs would be left entirely in the lurch had I not continued to do so, as would the University as the [grantee] under the grants in question.
As I see it, all that has changed on and from 28 October 2021 is that the ANU continues to profit from my work to the same (or essentially the same) extent but now does not pay me.”
Evidence was advanced in the applicant’s case from a number of witnesses which was largely supportive of the applicant’s various contentions about the matters upon which he relied. It is unnecessary to provide an overview of the other witnesses’ evidence in such respects; and their evidence was not the subject of any substantive challenge that is relevant to my determination of the application.
Separately from the applicant’s evidence as outlined above, the evidence in the respondent’s case indicated that following the redeployment period and the additional time when a review was being conducted, the applicant’s payments on termination of employment comprised 78 weeks’ redundancy pay (plus the payment of accrued, but untaken, leave entitlements).
The respondent’s evidence: Drawing principally from the description in evidence led in the respondent’s case from Professor Graham Mann (Professor and Director, JCSMR), the following is the background to the decision to terminate the applicant’s employment. It should be noted, however, that Belinda Farrelly, the respondent’s Associate Director (Organisational Change, Human Resources) detailed information in her evidence about the more process-focussed matters than are outlined in an overarching way in the decision concerning the evidence of Professor Mann - as did Dr Nadine White, the respondent’s Chief People Officer. Similarly, Donelle Claudianos, the respondent’s General Manager of the CHM, gave evidence about matters including the financial circumstances and decision-making relevant to the restructure that resulted in the decision to terminate the applicant’s employment.
Commencing in 2020, to address various external factors that adversely impacted the respondent, including adverse financial impacts of COVID-19 and other atypical circumstances, all the respondent’s colleges and schools were required to review their activities to achieve significant savings to be financially sustainable. The background to those matters and the reasons for changes in the CHM, including the impacts on the JCSMR, were set out in documentary evidence in the proceedings. Following the release of the respondent’s Recovery Plan, which identified the requirement for multi-million dollars in ongoing reductions in expenditure over a number of upcoming years (including a reduction of 15 per cent in the budget for the CHM), the decision-makers’ task was to produce relevant changes as outlined in, and for the reasons described in, the evidence. Professor Mann outlined the consultation that ensued, including with the applicant and other staff – against the background of the “financial imperative.” Professor Mann’s evidence also included reference to the feedback that was received from various sources, including from the applicant.
In the end, the respondent determined to disestablish the applicant’s position (among many other positions). Following the release on 12 May 2021 of the CHM Implementation Plan, discussions were held with the applicant to advise him that disestablishment of his position had been confirmed. Professor Mann’s evidence in such respects included the following:
“34. I am aware that following the disestablishment of [the applicant’s] position, he was placed on the redeployment list and the ANU’s Organisational Change Team, headed by Ms Belinda Farrelly, oversaw the redeployment process for him and other staff and made efforts to identify possible suitable alternative positions.
35. To my knowledge, there were no vacant positions within the CHM into which [the applicant] could have been redeployed having regard to his area of expertise and the positions in the College. I had no recurrently funded employment options to offer him, and I had no available recurrent funding to create a new position for him.
36. Similarly, I was aware that the Directors of the other CHM Schools had been in the same process of reducing their workforces, to make savings whilst positioning their Schools for future success. I was not aware of any available positions within other CHM Schools to which he could be redeployed.
37. Once the CHM Implementation Plan was released, affected staff were encouraged to commence looking for other opportunities within the ANU. I also alerted the ANU Research School of Biology (RSB, which sits within the ANU College of Science) of the CHM Implementation Plan and advised them of the names of affected staff they may hear from. Professor Craig Moritz, the Director of the RSB, was therefore aware that [the applicant’s] position was being disestablished within the CHM. He was open to assisting him where possible, but did not have an available position, as I understand it.
38. I am aware that [the applicant] also approached Professor Moritz to see if his position could be transferred into the RSB, but that this did not eventuate. …
39. Following the end of [the applicant’s] 12 week redeployment period and after the ANU was unable to redeploy [the applicant], I am aware that his employment was terminated on redundancy grounds.”
The honorary appointment
Professor Mann’s evidence described other matters that arose after the CHM Change Proposal was released and specific positions were proposed to be disestablished. Professor Mann conveyed to those affected staff members, including the applicant, that should they wish to stay connected with the respondent as honorary appointees, he would support them in making these arrangements. This potential option was available to all seven of the affected academic staff members of the JCSMR. The applicant sought and accepted an honorary appointment with the RSB in December 2021. The appointment was facilitated by Professor Mann once it was clear the applicant wished to take up such an appointment with the RSB. As to that, Professor Mann explained: “An honorary appointment enables an academic to have a connection with the University, access its systems and conveys an academic honorary title. One key difference is that any research or other activities undertaken by an honorary is because the honorary wishes to undertake them not because the University requires the honorary to undertake them.” Evidence to similar effect was given by Professor Moritz (Professor and Director, The Research School of Biology, ANU College of Science): “Honorary appointments are a common component of the higher education sector. The RSB currently has 20 honorary group leaders who are undertaking research and executing research grants. We do not ask or direct honorary appointees to perform any duties or activities like we would to paid employees, and we have no teaching expectations from them.”
The applicant characterised matters about his job as an employee and his role/s after 27 October 2021 with submissions including the following (references not reproduced):
“10. … the salary that an employer pays for the performance of a job (that is, the performance of the functions and duties that are ‘the job’) is not part of the job; it is the value placed on performing the job by the employer.
10a. This is unquestionably a case where the employer still wanted the person to do the duties - that is ‘the job’ - that he was doing before they were purportedly dismissed; it just [did not] want to pay him to do them. Moreover, it encouraged that person to continue to do the duties and took no steps in terms of possible relocation of those duties to someone else or the cessation of those duties at any time.
11. [The applicant’s] situation is not akin to either that of an Emeritus Professor or an Honorary Appointee who has taken a ‘voluntary redundancy’ (or a ‘voluntary separation’ to use the words of [the enterprise agreement]. In the former case, the employee has retired from the workforce, is (almost certainly, if not certainly) accessing their superannuation and does not want to continue paid employment: they must have ‘retired’ in order to obtain the appointment. In the latter case, the employee voluntarily accepts their dismissal (if it be that as opposed to, in truth, it being a termination by agreement), so no question arises as to whether the termination was a ‘genuine redundancy’. Nor is the situation akin to that of, say, a distinguished lawyer in government or private practice, who accepts an honorary professorship (or associate professorship). In that case, the lawyer has outside employment, no prior employment with the University and agrees to take on the appointment for any number of reasons – for example, to ‘give back to the law’, because it looks good on the CV, etc.
12. In [the applicant’s] case, we have a forced ‘redundancy’. Hence, the questions posed by section 389 [of the Fair Work Act] arise.
…12p. [The applicant] continued to undertake the same functions, duties, and responsibilities after 27 October 2021 as he had been entrusted with up to that date.
12q. There was no change in the University’s operational requirements after that date so far as [the applicant] was concerned: it still had him as the primary supervisor of the same doctoral students, the supervisor of the same post-doctoral fellow, and the or a Primary Investigator on the existing relevant grants and on the ones ‘in the pipeline’.”
Matters were further addressed in the respondent’s submissions, being submissions that I accept in preference to those for the applicant, as follows (references not reproduced):
“The Applicant’s submission fails to mention or take into account in any way the unique circumstances in higher education, including the well-established element of academia under which persons may seek and be accepted to hold an honorary appointment. Such appointments provide an honorary academic title, access to certain University facilities and facilitates them voluntarily performing a range of activities that they wish to collaborate on or pursue. The concept of an honorary appointment is well-established and it is clearly distinct from an employment relationship or job with the University. The activities undertaken by [the applicant] under the honorary appointment are not a job ‘required’ by the University within the meaning of s 389(1)(a) of the [Fair Work] Act. The only reason the Applicant continues to engage in any activities is because he decided to voluntarily undertake them as part of an honorary appointment which he sought and accepted. Such an honorary appointment in the College of Science is fundamentally distinct from his job as continuing Associate Professor Level D in the JCSMR and does not mean that his termination of employment was not for reasons of genuine redundancy.”
Whatever may apply generally, the respondent has its own policy setting-out the principles that underpin the conferring of academic titles to individuals who contribute their professional standing and specialist expertise to the research, academic and service activities of the university, or whose sustained and eminent contribution to the university warrants recognition in the roles of “Honorary appointees, Honorary (Clinical) appointees, Visiting Fellows, Visitors and Emeritus Professors.” The policy makes it plain, as to offer an acceptance thereto, “A conferred academic title is an unpaid appointment. The conferral of an academic title by ANU does not establish any employment relationship between the University and the recipient, nor does it alter any existing employment relationship with another organisation or institution. The conferral of an academic title does not entitle the recipient to any salary payments or alter any existing salary payments from their home institution.”
Consideration
I am satisfied, on a consideration of the evidence and submissions in both parties’ cases, that the applicant's employment was terminated, as the respondent’s submissions succinctly put it, “for reasons of redundancy as part of a significant reduction in the number of staff across the University … including 44 staff in CHM and approximately 470 staff across the University altogether”; and that despite “significant measures to reduce its costs and mitigate against staffing loss, the University was required to reduce its expenditure by a further approximately $103 million per annum from 2021 in order to remain financially sustainable and identified that in addition to a large number of voluntary separations that had occurred, a reduction of a further approximately 215 positions was likely required from across the University.” The evidence of Ms Farrelly identified various across-the-board measures to address the financial issues other than those in relation to the reduction of employee numbers, e.g., deferring pay rises, travel savings, recruitment pauses and borrowing measures. Specifically, the CHM Managing Change Proposal outlined what was proposed, including: (a) narrowing its areas of research; (b) reduced funding of continuing academic positions (and professional positions); and (c) the disestablishment of up to eleven continuing academic staff positions and up to twelve continuing professional staff positions. That is, in 2020, the respondent had suffered a significant decline in revenue due to the adverse impacts inflicted by the Covid-19 pandemic, local and natural disasters, international and national border closures, and campus closures. In all, more than 450 employees of the respondent either accepted voluntary redundancy or were involuntarily retrenched.
Following consultation of various types, the respondent determined to proceed with a restructure of the CHM as well as across other arms of its operations. The ensuing restructure resulted in the disestablishment of fifteen positions across the CHM, including seven positions within the JCSMR. Relevantly to the application before the Commission, the applicant’s position was among that number. The applicant’s position was not within another area of prioritised research focus for the CHM relative to other staff and his position was identified for disestablishment. Again, as matters were put in the respondent’s submissions: “It was not a reflection of the Applicant’s performance, but rather an exercise of relative prioritising retention of a reduced number of continuing academic staff and areas of research that had the greatest revenue-generating potential and that aligned with other research areas across the College and the University. … That judgment was made by the Dean and Academic members of the College Executive, including the Heads of Schools as part of the planning and decision making process.” Put another way, the selection of the applicant’s position for disestablishment as part of a broad-ranging restructure involved the exercise of managerial prerogatives contextualised by the relevant operational considerations. I accept that part of the respondent’s submissions which read:
“Whilst the Applicant considers that his expertise and research contributions were very significant and warranted the College maintaining his continuing Level D position or transferring him to a new continuing Level D position, rather than retaining other academic staff, that was not the view of the College leadership team in the context of the required staffing reductions. Whilst the contributions and research of the Applicant can be acknowledged, the College leadership had to make decisions about relative priorities and which current positions it was able to continue with the reduction in recurrent budget. Whilst the Applicant may disagree with that decision, the College was entitled to make those decisions and nothing raised by the Applicant suggests any impropriety in the College’s decisions about the restructure.”
As the applicant’s detailed evidence and submissions made plain, the applicant disagreed with the ultimate decision that was made about the restructure as it related to his own ongoing role or position within the university. That the applicant disagreed with the outcome of the restructure as it concerned his own ongoing role or position does not detract from the fact that the respondent no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise.
The applicant’s case cavilled with the proposition that the respondent no longer required his job to be performed by anyone because of changes in the university’s operational requirements. Many matters were advanced in the applicant’s case as to why: (a) his former position should not have been disestablished in the restructure; and (b) the respondent needed to retain not only the position held by the applicant (perhaps even if in some reconfigured way, or located within a different work unit, under the post-restructure arrangements) but also retain the applicant personally as one of its employees. I do not accept the applicant’s contentions in such respects and, in that regard, I note the evidence of Professor Mann which was to the effect that if the applicant had not pursued or accepted his honorary appointment, the respondent would have put measures in place to either cease those activities or reallocate them to a number of existing staff (and the respondent was aware of, and accepted, those potential impacts in making the decision to terminate the applicant’s employment). For example, the question of the supervision of certain students was the subject of focus in the applicant’s case. Professor Mann addressed the supervision matter in the following way:
“27. [… the applicant] asserts:
(a) his supervision of his PhD students is essential to their completion of their PhDs;
(b) there are no alternative supervisors at the University to take over his supervisory role;
(c) his PhD and post-docs would be left in the lurch if he did not continue to supervise them; and
(d) because of this, his supervisory duties continue to be required by the University and are required to be performed by him.
28. I disagree with the assertions that [the applicant’s] supervisory duties remain required by the University, that he has no choice but to continue supervising these students, and that there are no alternative supervisors in the University for his students and post-docs. These are difficult issues the University regularly deals with and the College was actively managing through the change implementation process.
29. Students at ANU are the responsibility of the University. When an academic staff member leaves the University, arrangements or contingency measures must be put in place to protect the interests of any research students that were being supervised by that staff member, and to ensure that we are fulfilling our duty of care to those students. For a student enrolled for a research-based degree this includes ensuring that they have the opportunity to complete a research program sufficient to support award of that degree. However this obligation does not mean that the program cannot change, nor that completion of the degree requires completion of the original program.
30. Each PhD student has a supervisory panel consisting of primary and associate supervisors. If an academic supervisor leaves the University, the panel would engage and work with the student to reach a suitable and acceptable alternative supervision arrangement. At the time of the CHM change management process, I am aware that [the applicant] was supervising two PhD students. The HDR Coordinator … was in contact with them through the change process so they would be aware of how changes to their candidacy would be managed, if required.
31. Final resolution of the supervision arrangements and project content for these students is a matter for their supervisory panels. At this stage, with the implementation of [the applicant’s] honorary appointment at RSB, there is expected to be minimal change because one PhD student was co-supervised by A/P Enders (who is expected to assume the role of primary supervisor and who is also this student’s operational line manager) and the other PhD student is nearing completion. If [the applicant] had not been available for the first PhD student, then the options would have been:
(a) alternative supervision, involving other academics at the University or by arrangement elsewhere, as supervisors can be external to ANU; or
(b) agreed changes to the projects, sufficient to allow completion with the resources at hand.
32. The post-doctoral fellows at the ANU are staff members and the responsibility of the University, not of any particular supervisor. [Details concerning two named individuals’ circumstances, including if the applicant did not supervise them]”
I accept the respondent’s submissions which read: “… the fact that aspects of the Applicant’s duties or activities would need to be reallocated (or otherwise managed) after his dismissal did not mean that his ‘job’ was still required.” As the respondent further put matters, again being submissions that I accept:
“12. The Applicant purports to ‘reverse engineer’ the University’s willingness to facilitate the Applicant’s desire to continue performing research and supervising students by way of an honorary appointment in the [RSB] into an argument that the University still ‘requires’ his job to be performed.
13.This is plainly misconceived and must be rejected upon the recognition that in the context of universities honorary appointments are common and are not commensurate with a continuing appointment as an academic employee.”
Separately, it may be noted that the evidence and submissions in the respondent’s case indicated that of 143 academics who left the university over 2020-2021 as part of the head count reduction process, 109 had subsequently taken-up a visitor or honorary appointment with the university.
The post-termination research grant
While there was evidence in both parties’ cases about various grants-related matters, the question of an approximately $1.4m NHMRC grant was the subject of much reference in the case - so it is necessary particularly to consider some of the evidence around it. The evidence indicated that there are research grant application rounds with the NHMRC and ARC every year with hundreds of grant applications submitted. In the case of the grant which was referenced mostly in this case:
· at the time of the termination of employment on 27 October 2021, the applicant was named in a pending research grant application to the NHMRC - which was submitted while the CHM change management process was underway;
· the research grant was awarded by the NHMRC in November 2021, after the applicant’s employment with the respondent had terminated;
· the research grant of $1.4m over four years can be expended only in accordance with the grant conditions and, relevantly, cannot be used to fund the employment of the applicant (or the other named investigator).
Professor Mann noted that the termination of the applicant’s employment is a material change to the grant, requiring notification to the NHMRC and possible administrative review to confirm whether the respondent could still hold the grant. However, given the honorary appointment the applicant now holds, and on conclusion of the transfer of certain equipment, the applicant can continue to be listed as an active member of the research team. Professor Mann’s evidence (as of 1 March 2022) was that the respondent will notify the NHMRC of the change of the applicant’s status, but he did not expect the NHMRC would require any changes to the funding agreement. Professor Mann further indicated that if the applicant’s honorary appointment had not eventuated and the applicant had not sought to participate in the project the respondent would have notified the NHMRC of this change and how it would have been addressed for their consideration. He suggested that steps could have included: (a) identifying an alternative supervisor for the component of the work that was proposed to be conducted under the applicant’s supervision, whether at ANU or elsewhere; or (b) modifying the scope of the project in line with available resources. It would then be the decision of the NHMRC whether to accept the proposal/s or to modify the funding agreement.
It is relevant to highlight that the grant did not actually fund a position for the applicant. Moreover, the grant money to the respondent was transferrable. For example, the applicant described in his evidence that he held informal discussions with another university as follows:
“68. I have been an academic specialising in my particular area for my entire working life. The only places of employment for me in Canberra to continue doing what I am doing are at the ANU and the University of Canberra (UC).
69. …
70. Towards the end of 2021, I had informal discussions with representatives of UC about the possibility of me relocating my research, post-docs and the PhD students that I supervise to the UC. However, the UC indicated to me that it did not want to progress the idea.”
Having particular regard to the reply evidence given by Professor Mann, I find that, had it not been for the applicant’s own choice to continue working in the manner described in his evidence following his retrenchment:
· consistently with its obligations as a university, the respondent would have had to determine responsibly what arrangements to effect in connection with its students following the cessation of the applicant’s employment;
· consistently with its obligations as an employer, the respondent would have had to determine responsibly what arrangements to effect in connection with its other employees following the cessation of the applicant’s employment; and
· consistently with its obligations as a grant recipient, the respondent would have been bound to act in accordance with rights and obligations under the terms of the grant (presumptively including the potential surrender or return of the grant money if the funding body was dissatisfied with the respondent’s proposals given the applicant’s employment terminated on 27 October 2021 and the specifications within the grant in its references to the applicant personally). (I observe, in passing, that it is surprising that - it at least appears - the NHMRC had not yet been advised around March 2022 of the change in the applicant’s status.)
The need to deal with such matters was obviated given the work the applicant determined to continue to undertake in an honorary capacity. Having regard to the foregoing, I accept the respondent’s submissions which read (references not reproduced):
“The decision was made to disestablish the Applicant’s position as Associate Professor, Level D in JCSMR. The University had determined that it no longer required the Applicant’s job to be performed and would (as it does with all academic staff who are retrenched) implement any necessary steps to reflect that cessation of employment and including that the duties previously performed would either be undertaken by a number of other employees, would be modified or would cease, including:
(a) lecturing activities undertaken by the Applicant would be undertaken by other employees;
(b) in relation to research activities where those activities related to grant funded research funded by an external funding body, to assess whether those activities could continue to be undertaken by other persons involved in the research projects, to review that research and if necessary to seek a variation with the relevant grant funding body (such as the NHMRC) or potentially to hand back or transfer the grant;
(c) for any PhD student supervised by the Applicant to have other academic supervisors appointed; and
(d) for any other duties performed by the Applicant, including any administrative responsibilities or other activities, to cease.”
It is unclear how it came to pass, as the applicant contended, that he continued to work in an effectively unchanged way at the university in the period 28 October 2021 to the date of the formal appointment to an honorary role on 22 December 2021. For example, evidence in the respondent’s case indicated that on 28 October 2021 the applicant’s card access to the JCSMR building ceased following the termination of employment and was re-activated once the applicant accepted his honorary appointment and could be an authorised visitor to the JCSMR (albeit the applicant had been advised that he would have ANU email access for 21 days following the termination of employment). An email dated Tuesday, 2 November 2021 from the applicant to Ms Farrelly was in evidence, which relevantly read:
“In line with our previous discussions, I wish to take up an honorary position at RSB and intend to relocate my group there. I have consulted with the remaining members of my group (PhD students and academics) and they have expressed a wish to accompany me.
Can you please make the necessary arrangements to facilitate this move in terms of grants, financial accounts and future supervisory arrangements.”
The applicant’s own decisions to apply for the (unpaid) honorary position and then to continue substantially to perform in an honorary capacity the role he had performed previously as an employee of the respondent were matters involving the exercise of the applicant’s own prerogatives. The applicant was under no obligation whatsoever to assume the work at the university that he described as having been undertaken in the time following the termination of his employment. The work the applicant undertook (and continues to undertake) at the respondent’s premises was (and is) self-selected by the applicant; the applicant has no obligation to perform any duties for the respondent.
The work undertaken by the applicant in his honorary capacity did not arise from any direction or instruction from the respondent because the applicant was no longer an employee of the respondent after 27 October 2021. True it is that the respondent had the benefit of the applicant performing ongoing work in an unpaid capacity that was essentially on all fours with the work the applicant performed previously in the capacity as a paid employee, but the work the applicant determined to undertake with the consent of the respondent was a matter entirely of the applicant’s own choosing. Had the applicant not made the decisions he made in connection with post-termination work, the respondent would have had to turn its corporate mind to the types of matters outlined above concerning its own obligations to students, staff and the funding body. However, the applicant’s decision to continue to work in an honorary capacity obviated, or at least deferred, any imperative/s for the respondent to determine what should be done in connection with those obligations to students, staff and the funding body. The fact the applicant successfully applied for an honorary appointment does not alter the fact that the applicant’s job in the CHM was disestablished and has not been replaced with any new employee. In the higher education sector, appointment in an honorary position is not an employment engagement or an employment relationship. Moreover, as Professor Mann noted in relation to matters in the applicant’s evidence about continuing to contribute to activities: “… how active or inactive an honorary appointee is, is entirely the choice of the honorary. They do not have duties they are obliged to fulfil, they may choose to not attend at any time they wish or cease their appointment, do not hold staffing delegations and they are under no obligation to provide notice.”
In relation to the first limb of s.389(1) of the Act concerning “the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer's enterprise”, I find the respondent no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise. I make this finding notwithstanding the fact the applicant self-determined to perform (much of) the work of his former position in an unpaid, honorary non-employee capacity following the termination of employment in connection with the restructure.
Consultation
I turn next to the second limb of s.389(1) of the Act, namely, consideration of whether “the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy”.
The employment relationship between the applicant and relevant employees, including the applicant, was subject to the consultation obligations in The Australian National University Enterprise Agreement 2017-2021, as varied by Re Australian National University Enterprise Agreement 2017-2021[2020] FWCA 3514.
The applicant does not to appear to contend that the respondent failed to comply with the obligations in the enterprise agreement to consult about the redundancy. In any event, I find the evidence squarely indicated that, consistently with its obligations in the enterprise agreement, consultation was undertaken by the respondent in relation to the restructure and redundancy. This consultation was undertaken with employees and their representatives generally, and with the applicant specifically. Aspects of unchallenged evidence of Ms Farrelly about the consideration given to the circumstances of the applicant and his position, and the consultation around such matters both in writing and through discussions, speaks for itself concerning adherence to enterprise agreement-specified consultation obligations. For instance, matters extended to consultation around alternatives to redundancy such as various differently configured pre-retirement options (which the applicant, for his own largely financially based reasons, was not interested in pursuing).
Redeployment
Section 389(2) of the Act creates a qualification in relation to the cumulative criteria in s.389(1)(a) and s.389(1)(b). That is, s.389(2) of the Act specifies that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer.
I will deal first (in reverse statutory order) with s.389(2)(b), because the answer is short. There was no evidence of an associated entity of the university, so consideration of redeployment to any other such entity does not arise as a relevant consideration.
As to s.389(2)(a), the applicant’s case contended it would have been reasonable in all the circumstances for him to be redeployed within the university. The applicant’s submissions noted that, in the period immediately preceding the dismissal, jobs were advertised at the RSB. The applicant’s submissions contended that he could have performed such jobs (leaving aside, the applicant’s submissions further contended, the fact that the applicant: (a) continued to be deployed doing the same things, from the same place after the dismissal; and (b) is in the process of being moved to the RSB to continue doing those same things). The applicant’s evidence addressed the matter of the advertised vacancies in the following way:
“25. An advertisement for a number of continuing faculty positions, including at my level (Level D - Associate Professor), was placed online by the ANU Research School of Biology (the RSB). The deadline for responding to the advertisements was 8 August 2021. The RSB is a school within the ANU’s College of Science, which is a separate administrative unit to the CHM. …
26. The advertisement listed no conditions on the kind of research that had to be conducted by the holder of the position, beyond the obvious fact that the positions were administratively and physically located within the RSB.
27. It is my understanding that five persons were engaged to fill these continuing positions.
28. I consider that it would have been reasonable for me to have been redeployed in one of these positions.
29. I was unaware of the advertisement until after my dismissal on 27 October 2021. This is despite the fact that I met the Director of the RSB, Professor Craig Moritz, in or around late May or early June 2021 to discuss the possibility of redeployment to the RSB. Professor Moritz subsequently informed me that such redeployment was not possible …”
The respondent’s evidence and submissions contended for a contrary conclusion to that advanced by the applicant, as to the redeployment within the university. For example, Ms Farrelly’s evidence included the following:
“During the subsequent redeployment and notice periods for [the applicant] (17 May-5 October 2021), all available positions were considered. However there were no vacant alternative positions to which [the applicant] could be redeployed, particularly given the overall reduction in positions across the University as part of the ANU Recovery Plans. In effect [the applicant] was seeking that the University create an additional continuing recurrently funded level D position and to then transfer him to that position, when such position was not part of the structure decided by the College or available elsewhere within the University.”
Professor Moritz, who is referenced in paragraph 29 in the preceding extract of the applicant’s evidence, gave his own evidence about matters in relation to the possibility of redeployment to the RSB. He explained matters in the following way:
· In early-June 2021, the applicant approached him to discuss whether the RSB could offer him a continuing academic Level D position and move his group to the RSB.
· The RSB did not have any existing vacant Level D positions available. Similarly to the CHM, the College of Science (“COS”) had a significantly reduced budget involving the disestablishment of a number of positions to meet the required savings.
· During the change management planning and process, the COS (including the RSB) had adopted a clear strategy to rebuild that involved recruiting junior and mid-career staff at Levels B to D who were eligible to seek and secure ARC Future Fellowships (with one of those eligibility requirements imposed by the ARC Fellowship funding rules being that the individual must have completed a PhD in the last 15 years (allowing for interruptions)).
· The COS had already accommodated the transfer of two continuing positions from the CHM and had also already been asked by the ANU Medical School (which sits within the CHM) whether the RSB could take on one of its Level D Associate Professors. This Medical School request could not be accommodated, due to budgetary constraints.
· In the COS strategic context and in an environment where the RSB did not have any vacant positions, the RSB could not offer the applicant a continuing academic position. This was advised to the applicant by Professor Moritz in writing on 14 June 2021 (together with his encouragement to the applicant to discuss opportunities for honorary appointments within the school).
As to the advertising of the positions within the RSB, as referred to in the applicant’s case as being suitable redeployment positions for him, the positions were relevantly advertised as follows with reference to multiple academic positions in biological sciences:
“To sustain and grow the Research School of Biology’s program of research and teaching, we are seeking to appoint up to three new continuing faculty members at Academic Levels B, C or D (equivalent to Assistant or Associate Professor).
· To address goals for gender equity, two positions are identified positions for applicants who identify as women.
Position one – photosynthetic biology,
Position two – host-microbe biology or membrane biology.
· The third position is open to all applicants and will be appointed in any area consistent with the research and teaching priorities for the RSB.
· Applicants for all three positions should have received their PhDs within the last 15 years, allowing for career interruptions.”
The effect of the evidence of Professor Moritz was that the advertised positions were not suitable positions for the redeployment of the applicant. That is: (a) two of the positions were “identified positions” specifically designated for job applicants who identified as women, to address gender imbalance within the RSB; and (b) the criteria for all positions required the appointees to have received their PhD within the last 15 years (which was not the case with the applicant), being positions for junior and mid-career staff at Levels B to D who were eligible to seek and secure ARC Future Fellowships (i.e., as noted earlier, one of the eligibility requirements imposed by the ARC funding rules is completion of a PhD in the last 15 years, allowing for interruptions - which was not the case with the applicant). Moreover, the appointees for the non-identified positions were all appointed to the respondent’s Division of Ecology and Evolution (whereas the applicant’s research focus does not align with the ecology and evolution disciplines). Last, the arrangements for the starting dates for appointment for the non-identified positions were, broadly speaking, phased over mid-2022 to 2025, rather than commencing immediately around the date of the applicant’s termination of employment in 2021.
In the circumstances, it would not have been reasonable in all the circumstances for the applicant to be redeployed within the employer’s enterprise to the positions to which reference was made in the applicant’s case. Moreover, there was no evidence or identification of any other suitable, available redeployment opportunities.
Other matters
The applicant’s submissions referred to a range of matters including the operation of the University’s own rules in contending that the applicant should never have been dismissed in the first place. As to those submissions and, for example, the submissions concerning the proper construction or operation of the enterprise agreement, I have before me an application for an unfair dismissal remedy. It would not be apposite for me to purport to pass on the proper construction or operation of the relevant provisions to which reference was made. I am relevantly concerned with the legislatively-specified initial matter that must be considered, namely, whether the dismissal was a case of genuine redundancy.
While it is unnecessary to consider the question of remedy, given my findings on the threshold jurisdictional question, I nonetheless propose to note that the applicant submitted the Commission should, by way of an order for an unfair dismissal remedy, order reinstatement, the maintenance of continuity and the restoration of lost pay on and from 28 October 2021. The applicant’s submissions continued: “In ordering the restoration of lost pay, the Commission should not take into account any of the redundancy payment moneys paid by the University under the [enterprise agreement] to [the applicant] upon his dismissal. [The applicant] was dismissed through no fault of his own. He should be paid for the work that he has done on and from 28 October 2021. If the University says that retention of the redundancy payment would unjustly enrich [the applicant], then that is a separate matter in respect of which it has its remedies.” Hence, had the matter come to the point of remedy, the applicant seeks reinstatement (albeit his position was abolished) and continuity of service - and the restoration of lost wages without taking account of the 78 weeks’ retrenchment pay he received. The applicant’s case on remedy also contends he should have been “paid for the work” he performed on and after 28 October 2021, seemingly conflating an alleged underpayment claim for work he undertook of his own volition following the termination of his employment including following the implementation of the honorary appointment. Even if the applicant had established a case for an unfair dismissal remedy, the proposed remedy would not be consistent with the tenets of a “fair go all round” in the surprisingly ambitious suggestion of a retention of continuity of service, the payment of lost wages and the retention of the redundancy payment.
Conclusion in relation to the initial matter
I find that the termination of the applicant’s employment by the respondent was a genuine redundancy, as conditioned by the meaning in s.389 of the Act. Given my finding in relation to this initial matter (which must, by operation of s.396, be decided before considering the merits of the application), there is no basis upon which to consider the other components of the case alleging unfair dismissal.
An order dismissing the application will issue in conjunction with these reasons.
The proceedings are concluded.
COMMISSIONER
Appearances:
J Wilson of BAL Lawyers for the applicant.
P Bindon of counsel for the respondent.
Hearing details:
2022.
Sydney/Canberra (by Teams video)
March 8, 9.
May 3.
Printed by authority of the Commonwealth Government Printer
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