National Tertiary Education Industry Union v Griffith University

[2017] FWC 6570

[2017] FWC 6570

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

National Tertiary Education Industry Union
v
Griffith University
(C2017/4028)

COMMISSIONER SIMPSON BRISBANE, 13 DECEMBER 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 21 July 2017 an application was filed by the National Tertiary Education Industry Union (NTEU) in the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the dispute settlement procedure in the Griffith University Academic Staff Enterprise Agreement 2012-2016 (the Agreement).

[2] The NTEU brought the application on behalf of Professor Ralf Buckley, an employee of Griffith University within the Sciences Group, and had advocated for Professor Buckley at prior steps to the application being lodged with the Commission.

[3] The dispute application sought relief as follows;

i) A finding that the assessment process undertaken by the University via Professor Frid and the Senior Staff Committee failed to afford procedural fairness.
ii) An order that the finding of unsatisfactory performance in Professor Buckley’s assessment for the assessment year 2015/2016 be withdrawn.
iii) An order that a new assessment of Professor Buckley’s performance for the 2015/2016 be undertaken.
iv) An order that the new assessment of Professor Buckley’s performance be undertaken by a person external to the Sciences Group.

[4] Clause 16.4.3 of the disputes avoidance and settlement procedure reads as follows;

“16.4.3 If the dispute is still not resolved through the steps above, or if either party to the dispute refuses to engage in these steps, the matter may be referred by either party to the dispute to the Fair Work Commission (FWC).

FWA may settle the dispute by mediation, conciliation or expressing an opinion or making a recommendation. All efforts will be undertaken to resolve the dispute at this stage, with the parties having regard to any recommendation or opinion presented by FWC.”

[5] The matter was listed for conference before the Commission on 4 September 2017, at which it was agreed that the Commission provide a written recommendation to the parties, on the basis of written submissions that would be provided, to assist in resolving the matters in dispute between them. Written submissions were subsequently provided as agreed.

Background

[6] Professor Buckley was subject to annual performance assessment and his assessment was conducted by an academic supervisor against the Griffith Sciences Group Guidelines. In the financial years 1 July 2014—30 June 2015 and 1 July 2015—30 June 2016, the supervisor assessed Professor Buckley’s performance as ‘Needs Improvement Overall’.

[7] After a series of informal meetings between the supervisor Professor Chris Frid and Professor Buckley in the second half of 2016, a formal performance review meeting was scheduled for 21 February 2017. The review was conducted by Professor Frid and was attended by Professor Buckley, his nominated representative from the NTEU Ms Noeline Rudland, and a Human Resources representative Ms Ailsa Sutton.

[8] The assessment for 1 July 2015—30 June 2016 was confirmed as ‘Needs Improvement Overall’ and this led to a finding that Professor Buckley’s performance was unsatisfactory. Following this, a Senior Staff Committee was convened on 23 March 2017, which confirmed the academic supervisor’s findings that the performance had been unsatisfactory, and whose recommendation was subsequently approved by the Deputy Vice Chancellor (Academic).

[9] A meeting between the Head of School and Professor Buckley was held on 10 May 2017 to discuss the issues arising out of the assessment and a plan for development of the Academic Staff Review and Plan (ASRP).

[10] The NTEU made two separate requests for an Academic Staff Consultative Committee to be convened to consider a dispute under Clause 16 of the Agreement. The University refused the requests and in doing so referred the NTEU to the dispute resolution procedure set out in Clause 36.2.

[11] The NTEU requested the convening of an Academic Staff Consultative Committee in accordance with clause 16 of the Agreement to deal with the disputed assessment of his performance, however the University has not agreed to this. The dispute application made to the Commission is in relation to the decisions of both Professor Frid and the Senior Staff Committee in relation to the 2015/16 ASRP.

[12] The relevant clauses of the Agreement are as follows:

“35. ACADEMIC STAFF REVIEW

35.1 Academic Staff Review will be conducted in accordance with this clause and the Academic Staff Review Policies and Procedures. These Policy and Procedures will not be changed without consultation with staff and the NTEU.

35.2 Academic Staff Review applies to full time and part time continuing and fixed term academic staff with the exception of academic management positions (Heads of School, Deans, Pro and Deputy Vice Chancellors, Provosts, Directors of Centres) who are covered by the Performance Management for Academic Managers Policy.

35.3. The Academic Staff Review will assess performance; encourage high levels of performance; set goals and review work allocations; provide developmental opportunities for academic staff; and discuss plan leave options including study leave options.

35.4 The Academic Staff Review is based on the assumption that academic staff will have a fair and reasonable work allocation.

35.5 Review

35.5.1 The staff member will have a nominated supervisor who will normally be the Head of School/Department or Research Centre Director. The staff member will be advised in writing of the supervisor’s name/position. The staff member has the right to request a different supervisor in accordance with the Policy and Procedures. All supervisors will undertake training in a timely manner in all aspects of performance review and staff development, to maximise the benefits of the review process for all involved.

35.5.2 The supervisor will evaluate the staff member’s performance for the 12 month period from 1 July of the previous year and on the basis of the Academic Staff Review and Plan (ASRP), discuss performance objectives and work allocation expectations for the next review period, and discuss proposed leave plans and provide academic and career development guidance.

35.5.3 The Academic Staff Review will take place annually.

35.5.4 Academic staff will be reviewed in relation to the appropriate Position Classification Standards in Schedules 1 and 2 of this Agreement, taking into consideration the areas of academic emphasis over the previous 12 month period. In reaching a decision about a staff member’s performance, the following must be taken into account:

•  whether the work allocation of the staff member is fair and reasonable;

•  the existence of non-traditional career paths;

•  the Universities equity and diversity policies; and

•  mitigating circumstances.

35.5.5 Where the supervisor assesses that the staff member’s performance is unsatisfactory or unacceptable, this will be addressed in accordance with clause 36 Unsatisfactory Performance and the Academic Staff Review Policy and Procedures.

36. UNSATISFACTORY PERFORMANCE

Managing unsatisfactory performance of staff will be undertaken in accordance with this clause and the Academic Staff Review Policy and Procedures. This Policy and Procedures will not be changed without prior consultation with staff and the NTEU. At all stages of this process the principles of natural justice and the Code of Conduct will apply.

Should concerns of a staff member’s performance be based on student complaints, then the supervisor and/or staff committee must ensure that the staff member was made aware of the complaints at the time and has sufficient detail as to the nature and content of these complaints so as to be afforded natural justice and be able to adequately respond to such complaints.

For the purposes of this clause, Staff Committee will be as defined in subclause 34.1.1.

36.1 Unsatisfactory Performance

Where a staff member is considered to be unsatisfactory in either their agreed academic area of emphasis or, if undertaking a balanced work allocation, considered to be unsatisfactory in either teaching or research, then overall performance must be deemed to be unsatisfactory.

The supervisor will make an initial judgement on whether the staff member’s performance is satisfactory or unsatisfactory. If, on the basis of the ASRP and other evidence, the supervisor considers the staff member’s performance to be unsatisfactory, the supervisor will arrange a meeting with the staff member to discuss performance and the reasons for the assessment. The supervisor must advise the staff member that the meeting is to discuss an assessment of unsatisfactory performance and the specific areas of performance under discussion. The staff member is entitled to be represented at this meeting by a nominated representative.

Any recommendation of assessment of unsatisfactory performance by a supervisor of a staff member will be reviewed by the relevant Staff Committee. The supervisor will provide the staff member with a copy of this report and inform them of the opportunity directly assess concerns expressed by the Supervisor in a submission, in writing to the Chair of Staff Committee within ten days of being notified formally by the supervisor. In this submission, the staff member may also raise mitigating circumstances or procedural concerns. This review by the Staff Committee will normally occur within 4 weeks of the staff member being notified of the recommendation. The Staff Committee may seek evidence of performance from other sources.

Where concerns are based on student complaints, the Committee must satisfy itself that the staff member was made aware of the complaints at the time and in sufficient detail as to the nature of these complaints to be afforded natural justice so as to be able to adequately respond to such complaints. Where the Committee is not satisfied that this is the case, the material cannot be relied upon to establish a case of unsatisfactory performance and the matter should be referred back to the supervisor.

Where the Committee ratifies the supervisor’s recommendation, the Chair of the Staff Committee will, in conjunction with the supervisor and the staff member, complete a Part 3 of the ASRP. This should occur within 4 weeks of the Committee’s decision. This ASRP will clearly identify the following:

• Areas of unsatisfactory performance;
• Objectives to be achieved for performance to be considered to be unsatisfactory; and
• Any organisation, staffing or resource implications which may be necessary in reaching the agreed objectives.

The relevant Pro Vice Chancellor will be informed of such outcomes and be supplied with the material on which the endorsement is based.

If the supervisor’s recommendation is not ratified by the committee, Part 3 of the ASRP will be developed with the staff member and the supervisor and approved by the Chair.

…………………………”

Applicant’s submissions

[13] The NTEU submitted that during this process Professor Buckley was not afforded procedural fairness, and that their requests for steps towards resolution to be taken in accordance with the Agreement were refused.

[14] The NTEU submitted that clause 35 of the Agreement provides for an Academic Staff Review each twelve months, and in circumstances where a supervisor determines that the relevant staff member’s performance is unsatisfactory, the provisions of clause 36 – Managing Unsatisfactory Performance will come into effect.

[15] The NTEU submission sets out that clause 36.1 provides that where a supervisor has made an initial judgement that the staff member’s performance is unsatisfactory, a recommendation of unsatisfactory performance is to be reviewed by the relevant Staff Committee.

[16] Clause 36.1 requires that where the Staff Committee ratify the supervisor’s recommendation, the Chair of the Committee, the supervisor and the staff member together complete Part 3 of the ASRP. Part 3 is the forward plan for the next 12 month review period.

[17] Clause 36.2 pertains to “Unacceptable Performance” and relevantly one of the triggers for a finding of “Unacceptable Performance” is 3 consecutive assessments of unsatisfactory performance.

[18] The NTEU submitted that the Academic Staff Review and Procedures set out a number of items relevant to the matter. Procedural matters included;

(a) The supervisor’s role in the academic review is to evaluate the staff member’s performance on the basis of the evidence contained in the Academic Staff Review and Plan (ASRP) and supporting documentation, and the evidence of overall performance in the context of the requirements of the position classification standards……, work allocation, work profile, and level, and previously established objectives.

(b) The Review Standards for assessment are those set out in the Position Classification Standards in the Enterprise Agreement which are also set out in Appendix 7 of the Policy and Procedures.

[19] Performance Review Outcomes are contained in Appendices 2 – 6 of the Policy and Procedure. It was submitted Appendix 3 is important as it includes the following in relation to a “Needs Improvement” assessment;

“this assessment rating would normally only be used once, with an assessment of either commended/satisfactory or unsatisfactory/unacceptable the following year as assessed against objectives in part 3 of the ASRP and the inherent requirements of the position and level.”

[20] Further it states;

“the supervisor and staff member, complete Part 3 of the ASRP, which should clearly identify the following:

•  areas of performance which require improvement; and

•  objectives to be achieved for performance to be considered to be satisfactory in a sustainable manner; and ……”

[21] The NTEU referred to Appendix 5 requiring a Staff Committee review of the assessment. In the event the Staff Committee ratifies the recommendation, the Chair of the Committee, the supervisor and the staff member together will complete Part 3 of the ASRP. Part 3 must relevantly identify the areas of unsatisfactory performance; and objectives to be achieved for performance to be considered satisfactory.

[22] The NTEU decision summarised legal authorities in relation to “natural justice” and “procedural fairness.”

[23] It was submitted that Professor Frid imposed his own standards as to what was required without advising Professor Buckley of those standards, either in the development of a Part 3 or prior to the assessment being made.

[24] It was submitted that Professor Frid had shown bias because;

i) He changed the goalposts as to the standards required to be met;
ii) He participated in the discussion and decision making of the Senior Staff Committee contrary to the principle that an individual should not be prosecutor and judge;
iii) Both he and the Senior Staff Committee failed/refused to take into account relevant factors and/or taking into account irrelevant factors;
iv) There is an apprehension that the assessments made of Professor Buckley’s performance were coloured by extraneous factors, particularly the need to reduce labour costs within the Sciences Group generally and the School of Environmental Sciences specifically.

[25] It is further said that Professor Frid failed to provide any information on which to ground his decision not withstanding Professor Buckley achieving, and indeed exceeding, the goals and standards set out in Part 3 of the previous review period other than limited statements regarding his subjective assessment. It is said there was ample evidence to demonstrate that Professor Buckley had met and indeed exceeded every single testable performance criterion and the assessment contradicts that evidence.

[26] It is said the University uses three sets of criteria, those for Level E academics as per the Agreement, internal policies, and the specific tasks as agreed in the Part 3 of each years ASRP. However it was said in Professor Buckley’s case the University judged Professor Buckley’s performance against his colleagues, and this was not articulated to Professor Buckley. It is said Professor Frid clearly stated to Professor Buckley he did not measure up against his colleagues, however when objective data is analysed Professor Buckley’s performance exceeded almost all others yet few if any of his colleagues had been assessed as unsatisfactory.

[27] It was claimed that both Professor Frid and the Senior Staff Committee failed to take account of objective measurement data and took into account erroneous material. Further it is claimed neither Professor Frid nor the Senior Staff Committee have been able to articulate the deficiencies in Professor Buckley’s performance.

[28] The NTEU submission noted in Part 2 of the ASRP document the assessment of Professor Buckley and the minutes of Griffith Sciences Group Senior Staff Review Committee critical of Professor Buckley including on research leadership and significant findings, grant and commercial income, HDR completions, recent focus areas for publication and wider Griffith based leadership and engagement. However it was submitted no criteria external to the Agreement, the internal policies were identified as assessment tools.

[29] It was submitted that Professor Frid participated in the discussion and decision making of the Senior Staff Committee in relation to Professor Buckley’s assessment contrary to the principles of natural justice/procedural fairness.

[30] The NTEU submission also raised in paragraph 36 of its submission a number of issues including the need to reduce labour costs being an extraneous factor that may have influenced the assessment process and outcome.

[31] In conclusion it was submitted that the University had failed to afford Professor Buckley procedural fairness.

Respondent’s submissions

[32] Griffith University as the Respondent submitted that in accordance with the University’s Academic Staff Review Plan and Procedures the Applicant’s performance is reviewed annually.

[33] It was submitted that as the Applicant’s academic profile is 100% research he does not have a teaching allocation and the 2014/15 and 2015/16 assessments are of his research performance and are not based on student complaints.

[34] The Respondent submitted that the process prior to the current finding of unsatisfactory performance included the following steps;

i) The academic supervisor considered the evidence submitted by Professor Buckley against the Position Classification Standards for the Professor, the Griffith Sciences Group Guidelines, research expectations and the goals established in the Plan; and his initial assessment was needs improvement overall. As the assessment was ‘needs improvement’ for a second year, performance was considered unsatisfactory. It was submitted that the Griffith Sciences Group Guidelines are for an academic staff member who has a 40% research profile, so the expectations have to be increased on a pro-rata basis for Professor Buckley who has a 100% profile.

ii) The academic supervisor met with Professor Buckley informally on three occasions in the period from August to 15 December 2016 to discuss the assessment.

iii) The formal performance review meeting was then scheduled, with Professor Buckley being given an opportunity to bring his nominated representative, and to provide any additional evidence to his research leadership, activities and output during the review period.

iv) Professor Chris Frid, Professor Buckley’s academic supervisor, conducted the review meeting on 21 February 2017, in the presence of Professor Buckley’s nominated representative Noeline Rudland (NTEU) and Ailsa Sutton (HR). In addition to Professor Buckley’s review documentation, a summary document of research outputs was tabled by Professor Buckley. Professor Frid spoke to a compilation of research outputs from others at Professorial level in order to provide some disciplined context for Professor Buckley’s achievements and to help clarify for Professor Buckley yet again where he was not seen to be succeeding. It was said this comparison was not used to judge Professor Buckley’s performance.

v) At the meeting Professor Frid confirmed that the assessment was Needing Improvement overall for a second year, and therefore the performance was found unsatisfactory.

vi) On 21 February 2017 Professor Frid forwarded his assessment to Professor Buckley and the Chair of the Senior Staff Committee.

vii) A Senior Staff Committee was established by the Pro Vice Chancellor (Sciences) in accordance with the constitution, with due regard to the gender balance: Pro Vice Chancellor (Chair), Dean (Academic) ex-officio, plus 3 from a similar or cognate area Level D or above (in this instance 3 professorial staff).

viii) The Senior Staff Committee met on 23 March and had before it all relevant information, which included the Academic Staff Review and Plan 2015; the Draft Academic Staff Review and Plan 2016; the Academic Portfolio (prepared by Professor Buckley); the RIMS Publication list and Professor Buckley’s response.

ix) The Committee confirmed the supervisor’s finding of unsatisfactory performance and referred its recommendation to the Deputy Vice Chancellor (Academic). The Deputy Vice Chancellor (Academic) approved the recommendation.

x) On 12 April 2017, Professor Buckley was advised of the Deputy Vice Chancellor (Academic)’s decision and provided with the relevant Minute extract from the Committee meeting. Professor Buckley was required to meet with his academic supervisor/Head of School to develop Part 3 of the ASRP for approval by the Pro Vice Chancellor (Sciences).

xi) On 10 May 2017, Professor Buckley and the Head of School met to discuss the areas of concern and how these could be addressed in the development of Part 3. Professor Buckley subsequently provided his Plan to the supervisor/Head of School in August 2017. The Head of School and the Pro Vice Chancellor subsequently providing feedback and requesting further details to be provided.

[35] The Respondent submitted that Professor Buckley has been afforded natural justice throughout the previous and most recent performance review, and set out the steps followed in this regard which included;

a) Invited to submit evidence in line with the Academic Staff Review Procedures (all staff communication from DVC(A) providing a two month timeframe in which to collate and complete documentation) (para 4.3 Preparation and Submission)
b) Academic supervisor considers all the evidence and makes an initial assessment (para 4.4.2 and)
c) Attendance at three informal meetings with his academic supervisor to discuss an initial assessment and given the opportunity to provide any additional material for consideration
d) Invited to bring his nominated representative to the review meeting and provide any additional information (para 4.4.2 Review Meeting and Appendix 5 – Process where Performance is Unsatisfactory)
e) Provided with a copy of the academic supervisor’s finding and recommendation to Senior Staff Committee (Appendix 5 – Process where performance is Unsatisfactory)
f) Professor Buckley was provided with the opportunity to provide any additional information to the Senior Staff Committee (10 working days)
g) All evidence was considered by a Senior Staff Committee, whose membership was constituted in accordance with the ASRP procedures (para 4.1)
h) All evidence considered by the Deputy Vice Chancellor (Academic).

[36] The Respondent submitted there has been no bias either actual or apprehended. In this regard the Respondent submitted;

a) Professor Frid did not “alter the goal posts” in relation to the standards applied, the standards used were those of the Position Classification Standards and the Griffith Group Sciences Guidelines that have been unchanged since 2014.
b) It has been the usual practice that the Head of School is part of the Staff Committee, both senior and junior staff committees, and it has never been raised by the NTEU in the past. The individual is declared as the supervisor when the staff member is being reviewed. They are one of a Committee of four individuals, which still make up a recommendation to the Deputy Vice Chancellor (Academic) who is the decision maker.
c) The Committee took into account all information that was before as mentioned above and just because Professor Buckley does not agree with the outcome does not make it biased.
d) To suggest that an unsatisfactory rating is part of a School cost cutting exercise is taking conspiracy theories too far. Just because Professor Buckley is rated for 2016 as unsatisfactory does not have a linkage to current possible changes to the School structures being considered over 15 months after the initial meeting took place.

[37] The Respondent submitted that evidence provided by Professor Buckley was properly considered, firstly by the supervisor Professor Frid, then after the opportunity of providing additional information by the properly constituted Senior Staff Committee and then finally after a further opportunity for Professor Buckley to again add any additional information by the Deputy Vice Chancellor (Academic).

[38] The Respondent submitted that there is no avenue for a further review of the outcome of the decision by the Deputy Vice Chancellor (Academic) either in the Griffith University Academic Staff Enterprise Agreement 2012 -2016 or the Academic Staff Review Policy and Procedures. The Respondent submitted that the Individual Grievance Resolution Procedure explicitly excludes performance review from such procedures.

[39] The Respondent submitted that the suggestion in the submissions filed for Professor Buckley that there was a linkage between the performance outcome and cost savings or forcing change was insulting. It said there was a change paper for the restructure of Sciences Group out for consultation at present, some 15 months after the initial meetings with Professor Buckley.

[40] In conclusion the Respondent submitted that there is no dispute and the principles of natural justice were applied in the review process.

Recommendation

[41] Professor Buckley’s application in terms of the remedy sought might on one view suggest that the FWC has jurisdiction to make a determination about the correctness or otherwise of a decision in regard to his performance review. It was accepted at the conference between the parties that Professor Buckley did not seek to make such an argument, but that what was in dispute was whether the principles of natural justice and procedural fairness had been applied. Clause 36 includes the following;

“At all stages of this process the principles of natural justice and the Code of Conduct will apply.”

[42] Whilst I have not heard evidence I express some opinions for the purposes of assisting the parties to resolve the matter.

[43] Having read submissions for both parties it would appear that the conclusion reached by Professor Frid concerning the initial judgement for the 2015/16 year as “needs improvement overall,” was based on his judgement that Professor Buckley 100% research profile, (as opposed to a 40% profile for which the Griffith Sciences Group Guidelines are for), required greater demonstration of research leadership, activity and output for the relevant period.

[44] A formal performance review meeting was scheduled. It appears Professor Frid considered the material put forward by Professor Buckley at the meeting and confirmed he was not satisfied that Professor Buckley’s research leadership, activity and output was sufficient. The submissions of the respondent rejected the notion that Professor Buckley was assessed against the performance of others, and the reference to the research outputs of others was to provide discipline context and to clarify where he was not succeeding. This is a plausible explanation.

[45] According to the Respondent’s submissions the Senior Staff Committee met on 23 March and had before it all relevant information, and the Committee confirmed Professor Frid’s finding. This recommendation was subsequently approved by the Deputy Vice Chancellor (Academic).

[46] Whilst it has been said for the Applicant that Professor Frid changed the goalposts of the standards required to be met, it would appear Professor Frid followed the procedure established and required by the Agreement. I am not satisfied Professor Frid participating in the discussions at the Senior Staff Committee was inconsistent with the terms of the Agreement. It was explained that where a supervisor participated in such discussions the practice was that they declare the relationship before the Committee makes a decision.

[47] Without the benefit of evidence it is difficult to express a definitive view concerning the allegation that Professor Frid, or the Senior Staff Committee failed or refused to take into account relevant factors, or took into account irrelevant factors. However on the limited material available I am inclined to the view that this argument made for Professor Buckley begins to stray at least in part into the question of whether the decision was correct. This is not a matter the Commission has jurisdiction to determine under the Agreement. The Commission is limited to the matter of whether the process applied the principles of natural justice. I am inclined to the view that the process was consistent with those principles as Professor Buckley was afforded a reasonable opportunity at each relevant stage to put his case, and was unsuccessful in convincing the decision maker, whether it was Professor Frid or subsequently the Committee, to change their decision.

[48] The Respondent has made submissions in response to the Applicant’s argument regarding an apprehension that the assessments made against Professor Buckley’s performance were somehow biased, or influenced by extraneous factors. This is merely assertion on the material available and does not appear to me to present as a strong prima facie argument likely to succeed if the matter was formally determined.

[49] On the basis of the opinions expressed above I am inclined to discourage the matter being further pursued as a dispute under the terms of the Agreement because it is unlikely to result in orders of the nature sought being made. I recommend that the dispute application be withdrawn and that the parties collaborate to assist Professor Buckley meet objectives in the current review period.

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