Robert Lynd-Stevenson v Flinders University
[2018] FWC 5722
•3 OCTOBER 2018
| [2018] FWC 5722 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Robert Lynd-Stevenson
v
Flinders University
(U2018/3985)
| COMMISSIONER HAMPTON | ADELAIDE, 3 OCTOBER 2018 |
Application for relief from unfair dismissal – senior lecturer – performance related dismissal – whether valid reason – whether research requirements consistent with the enterprise agreement and reasonable – whether applicant meeting reasonable requirements of position – valid reason for dismissal found – whether procedural fairness afforded – whether requirements of enterprise agreement followed and whether relevant for present purposes – applicant offered to accept demotion – whether dismissal harsh – dismissal harsh and unreasonable – remedy – reinstatement to former position not appropriate – compensation awarded.
Introduction and case outline
Dr Robert Lynd-Stevenson has made an application under s.394 of Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by his former employer, Flinders University. The application was filed with the Commission on 16 April 2018.
The respondent is a large university with a number of campuses in South Australia (and elsewhere) and delivers higher education courses to students across a range of subject matters. It also has a significant research focus and this is important both in terms of its status as an educational institution and for its funding. At the time of Dr Lynd-Stevenson’s dismissal in late March 2018 it employed around 2350 employees.
Dr Lynd-Stevenson commenced employment with Flinders University on 15 July 1996. He is now 62 years of age, holds a PhD in Clinical Psychology, and is a Fellow of the College of Clinical Psychologists. At the time of his dismissal on 26 March 2018 he was employed as a Senior Lecturer in Clinical Psychology (Level C Academic) within the School of Psychology and his employment was covered by the Flinders University Enterprise Agreement 2014 to 2017 (the Enterprise Agreement). The letter confirming his dismissal stated that Dr Lynd-Stevenson was dismissed on the grounds of unsatisfactory performance.[1]
Dr Lynd-Stevenson contends that there was no valid reason for his dismissal and that, in any event, it was harsh in the circumstances. In particular, it is contended in effect that:
· There was no valid reason for his dismissal as his performance was not unsatisfactory and the disciplinary action taken at various points was in reality a response to Dr Lynd-Stevenson making complaints about his Supervisor and/or his workload;
· The dismissal was apparently based upon an alleged failure to be “research-active”; however, this requirement is over and above the requirements for a Senior Lecturer Level C under the Enterprise Agreement;
· There was a failure to afford him procedural fairness in the process taken by Flinders University, including a failure to apply the relevant disciplinary process under the Enterprise Agreement and it is not available to the respondent to rely upon matters (under the separate performance management process) not dealt with in accordance with the disciplinary procedures of the agreement; and
· In all of the circumstances, the dismissal was also harsh on various grounds including that no warnings in respect of performance had been received since 2011, his 2016 annual review was positive and he subsequently met all (or all but one of) the requirements arising from that review, he had offered (without necessarily accepting that there was any justification) to take a demotion as an alternative, and the dismissal had significant personal and professional consequences for Dr Lynd-Stevenson.
Dr Lynd-Stevenson is seeking a finding that his dismissal was unfair. He seeks an order for reinstatement, compensation for loss of wages and continuity of his employment.
Flinders University denies the application and contends that Dr Lynd-Stevenson was dismissed for a valid reason; being continued unsatisfactory performance relating to his research output and performance over an extended period of time. It further contends that:
· The requirement to undertake high level research, including so as to be able to supervise PhD Students under its policies (to be research-active), was reasonable and consistent with the requirements for a Level C Senior Lecturer; and
· The research deficiencies had been evident for many years and despite support and warnings, Dr Lynd-Stevenson was not performing as required for a Level C Academic.
Flinders University also contends that the process leading to the dismissal included a final warning being issued in 2011, followed by a lengthy period of performance management with no demonstrable improvement. In relation to compliance with the disciplinary procedure requirements of the Enterprise Agreement, it contends that this is not a relevant consideration as part of this matter, and that in any event, it should have been clear to Dr Lynd-Stevenson that his employment was in jeopardy and that he needed to improve his performance. Flinders University also contends that to ignore the performance review discussions as part of any disciplinary process would be a triumph of form over substance.
Flinders University also opposes any remedy sought and contends that it would not have the required trust and confidence in Dr Lynd-Stevenson’s ability to be able to perform his role as a Senior Lecturer – Level C Academic to enable reinstatement into any position to be considered.
There is no dispute that the application was made within the time required by s.394(2) of the FW Act, or that Dr Lynd-Stevenson was a person protected from unfair dismissal.[2] Further, the Small Business Fair Dismissal Code is not relevant to Flinders University[3] and this was not a case of genuine redundancy.[4]
Accordingly, the Commission must determine whether the dismissal was harsh, unjust or unreasonable. If so, the remedy provisions of the FW Act must be applied.
The application was heard on 27, 28 and 29 August 2018.[5] Permission was given under s.596 of the FW Act for both parties to be represented.
The evidence before the Commission
Dr Lynd-Stevenson provided a witness statement and gave sworn evidence as part of the hearing of this matter.[6] He further relied upon the witness statement of Ms Annie Buchecker, Industrial Officer at National Tertiary Education Union[7] who also gave sworn evidence at hearing. A copy of ‘job-search entries’ performed by Dr Lynd-Stevenson following his dismissal were also submitted as part of his evidence at hearing.[8]
Flinders University provided witness statements and led sworn evidence from the following of its staff:
· Professor Clare Pollock, Deputy Vice-Chancellor (Students);[9]
· Professor Tracey Wade, Matthew Flinders Distinguished Professor – Dean of School until July 2017;[10]
· Professor Phyllis Tharenou, Vice President and Executive Dean of the College of Business, Government and Law;[11] and
· Professor Michael Nicholls, Dean of Research in the College of Education, Psychology and Social Work – Dean of School from July 2017.[12]
Most of the comprehensive witness statements referenced attached documents (many of which were in common). Each witness was subject to cross-examination.
In general terms, I found that each of the witnesses gave evidence openly and honestly. This included making concessions where appropriate. I did however find that Dr Lynd-Stevenson had a tendency to be very subjective about the various events and sought to contest much of the detail of the evidence, even where it was of little importance.
Subject to one general caveat, I have no reservations about the direct facts stated in the evidence of Ms Buchecker or Professors Pollock, Wade and Tharenou. I consider the oral evidence of Professor Nicholls to be generally reliable, however it was obvious that the detail of some of his witness statement was drafted by others and he could not directly confirm some of that detail by his own recollection or knowledge. This leads me to treat that statement with some caution.
The general caveat mentioned above arises from the fact that all witness evidence included at least some element of subjective interpretation of events and documents and these are largely matters for the Commission itself to determine based upon the weight of objective evidence.
General chronology of events
There is a significant history of events culminating in the dismissal of Dr Lynd-Stevenson. The following sequence of events sets the general context for the dismissal. I have not included all events in this chronology nor attempted to outline the detail of each of these dealings. Some of the more significantly disputed matters are addressed later in this decision.
· Dr Lynd-Stevenson commenced employment with Flinders University in the position of Lecturer in Clinical Psychology within the School of Psychology on 15 July 1996.
· Dr Lynd-Stevenson was appointed to the position of Senior Lecturer in 1999.
· In late 2009, Dr Lynd-Stevenson raised some concerns about the status of the clinical program operating within the school and an apparent lack of team work within the group.
· In November 2009, a memorandum was issued by Professor Brewer (Dean of School at the time) to Dr Lynd-Stevenson outlining “two significant concerns” relating to those complaints noting that the applicant’s claims in relation to a series of abusive emails were difficult to reconcile and the University had concerns in relation to his lack of “familiarity with accreditation processes and outcomes”.[13]
· On 11 December 2009, Dr Lynd-Stevenson wrote to Professor Brewer providing clarification around his earlier correspondence and raising some questions.
· On 11 January 2010, Dr Lynd-Stevenson further wrote to Professor Brewer in what appears to be a response to notes on his performance review to request additional information and seek clarification around those matters.
· On 4 March 2010, Dr Lynd-Stevenson raised an informal grievance with Professor Tharenou, as the then Executive Dean of the Faculty of Social and Behavioural Sciences, in relation to the conduct of Professor Brewer in “reprimanding him” on two occasions “without apparent cause”.[14]
· On 30 March 2010, Professor Tharenou responded in writing to the grievance and indicated that she did not propose to take any further action in relation to the complaint as it appeared that the Dean’s actions have been “a reasonable operational decision at the school level”.[15]
· On 31 May 2010, Dr Lynd-Stevenson escalated the matter and raised a formal grievance in accordance with Flinders University policies and procedures.
· In September 2010, a student complaint was jointly made by fourteen students regarding a particular subject taught by Dr Lynd-Stevenson.
· On 17 December 2010, Professor Tharenou wrote to Dr Lynd-Stevenson outlining the student complaint and providing him an opportunity to respond to the concerns raised about his teaching methods.
· On 28 January 2011, Dr Lynd-Stevenson provided a response to the student complaints. Dr Lynd-Stevenson indicated that he was saddened to hear of the concerns raised by those students. He provided a general overview in response to the complaint, as well as giving specific responses in relation to some of the comments made by the students.[16]
· On 8 March 2011, Professor Tharenou wrote to Dr Lynd-Stevenson and advised that she was “unconvinced” that he had sufficiently addressed or sought to remedy the concerns expressed by the students – and as such advised that his teaching would be monitored. Dr Lynd-Stevenson was advised in this correspondence that if there were similar complaints or other unsatisfactory performance in the future that she would be seeking advice on “disciplinary action to be taken … under the University’s Academic Discipline Provisions”.[17]
· On 2 May 2011, Mr Steve Waltham, Senior HR Adviser at Flinders University, wrote to Dr Lynd-Stevenson providing a copy of the report of the Grievance Committee advising that his grievance (of 31 May 2010) had not been upheld.
· On 19 May 2011, Dr Lynd-Stevenson was issued with a formal and final warning for misconduct and unsatisfactory performance (the 2011 warning). The warning described the behaviour of Dr Lynd-Stevenson in making his complaints against Professor Brewer as “tantamount to vexatious and therefore unacceptable”. It further noted other concerns relating to the student complaints, having to be reminded about certain outstanding matters, apparent failures to manage certain programs and issues with student assessment/marking guides.[18]
· On 30 May 2011, Dr Lynd-Stevenson wrote to the Vice-Chancellor advising that he would take no further action relating to the grievance against Professor Brewer.
· Dr Lynd-Stevenson took a period of long service leave between July and November 2011.
· On 14 December 2012, Dr Lynd-Stevenson and Ms Buchecker met with Professor Tharenou and Mr George Szewczyk (Human Resources with Flinders University) to discuss his performance. Notes of that meeting were kept and provided to Dr Lynd-Stevenson as an attachment to correspondence sent by Professor Tharenou on 5 March 2013.[19] The letter also set out the subjects raised at the meeting and advised of the expectation that Dr Lynd-Stevenson would need to improve his performance and that he would continue to be monitored to that end. Dr Lynd-Stevenson responded on 12 March 2013 appending some notes with a different perspective on some of the issues outlined in the notes taken by Mr Szewczyk.
· In 2013, Dr Lynd-Stevenson submitted two research articles to peer-reviewed journals, with one of those being published. At the end of the year, on 11 December 2013, an annual review meeting was conducted with Dr Lynd-Stevenson and his Supervisor, the then Dean, Professor Wade. A record of the review meeting was kept which indicates that, amongst other things, Dr Lynd-Stevenson had completed “one peer reviewed paper published, 4 conference papers, and applied for a FRG (Faculty Research Grant).” The notes also record the view expressed by Professor Wade that Dr Lynd-Stevenson had the “lowest workload in the School” and needed to “increase his research outputs”[20]
· On 14 March 2014, Dr Lynd-Stevenson and Ms Buchecker met with Professor Tharenou and Mr Szewczyk to discuss his performance. Notes were again taken by Mr Szewczyk. Those notes summarise a number of actions for Dr Lynd-Stevenson to focus on generally relating to his research output.[21]
· Professor Wade wrote to Dr Lynd-Stevenson by email on 21 July 2014 and advised that given he was still ‘research-inactive’ he might wish to consider applying for an education-focussed position. On 23 July 2014, Dr Lynd-Stevenson responded, “… thanks for the suggestion….”.[22]
· In December 2014, Dr Lynd-Stevenson completed his Performance Self-Assessment where he recorded that he had not “been successful in attaining [his] goal” of increasing his publication rate. He proposed to continue to work on two papers previously rejected with a view to improving his publication rate.[23]
· During the second part of 2015, Dr Lynd-Stevenson took a period of long service leave.
· On 18 January 2016, Dr Lynd-Stevenson met with his supervisor Professor Wade to discuss his 2016 workload. Professor Nicholls, Mr Szewczyk and Mr John Pezy, of the NTEU, also attended. As a result of this meeting, a list of 17 expectations were proposed to Dr Lynd-Stevenson, to be staggered over a 12 month period, with his focus now to be directed to a balanced teaching role rather than towards the foreshadowed education-focussed position. One of the reasons for this change was that Flinders University, under a new Vice Chancellor, had determined that the so called education-focussed positions would no longer be an option. The 17 expectations as originally proposed by Flinders University following the review were stated to be as follows:
“…
Final 3 months
1. Submission of 1 research manuscript to a peer reviewed journal
2. Preparation of 1 conference paper
3. Semester 1 teaching duties as specified and agreed to in the 2014 annual review:
a. Co-ordinate PSYC3011 (Ethics and professional practice)
b. Continued involvement in PSYC3003 (Introduction to Clinical Psychology) but a bit less marking than 2015 in order to address issue raised in email
c. Continued involvement in PSYC3235 (Applications of Psychological Science).
4. Supervision of 3 Honours students
5. HELP moderation of one topic
6. Co-ordinating PSYC3012 (Interviewing and Counselling)
7. Peer review of teaching due
Second 3 month period
8. Submission of a second research manuscript to a peer reviewed journal
9. Submission of a conference paper (school will support attendance if accepted)
10. Continued supervision of 3 Honours students
11. Teaching duties as specified above continue
Third 3 month period
12. Teaching duties as agreed over semester 2,
a. Research Method 3 – tutorial co-ordination under supervision of (JM);
b. 6 (?) lectures on personality and individual differences in PSYC1102
13. Completed supervision of 3 Honours students
14. Preparation of a research grant (can be FRG)
Fourth 3 month period
15. Completion of Honours supervision
16. Marking of up to 10 Honours theses
17. Submission of a research grant”[24]
· Following this meeting, there was correspondence back and forth between the parties in relation to the expectations, and in particular in relation to the research output, including the following:
· On 22 January 2016, the NTEU wrote to Professor Wade on behalf of Dr Lynd-Stevenson raising “a number of problems with the allocation” raised in the 18 January meeting including concerns around the research requirement given that Dr Lynd-Stevenson had been working towards an education-focussed position and as part of that had “scaled back his research”.[25]
· A response was provided by Professor Wade on 28 January 2016. In particular, in relation to research requirements, Professor Wade indicated that even in education-focussed positions there was a research requirement and that, in fact, the two education-focussed positions in the School of Psychology were currently research-active.
· On 12 February 2016, further concerns were raised by Dr Lynd-Stevenson in response to the reply of Professor Wade. In an email to Professor Wade, Dr Lynd-Stevenson advised that he was happy to accept the teaching arrangements but that he had concerns related to the research expectations and the requirement to submit two manuscripts for review in 2016. Amongst other things, Dr Lynd-Stevenson proposed that he should be able to “prepare and submit two manuscripts for review and potential publication” by 2017.[26]
· By correspondence dated 15 February 2016, Professor Wade responded and advised that there was no reason why two manuscripts could not be submitted in 2016 and raised concerns that if Dr Lynd-Stevenson was given until the end of 2017 that it would be “highly likely to result in no publications.”[27]
· Dr Lynd-Stevenson responded by email on 26 February 2016 to Professor Wade and suggested that he submit two papers (which he did not consider to be fit for publication) with the assistance of mentors who would be able to assist him to prepare those papers for submission to a journal.[28]
· Professor Wade responded to this on 2 March 2016 and suggested that Dr Lynd-Stevenson “look outside the square when it comes to publishing opportunities in 2016” and that he take on “more leadership in the publishing process, as expected of a Senior Lecturer Level C position”. Dr Lynd-Stevenson responded on 10 March 2016 by email agreeing with the propositions put by Professor Wade although indicating that a research paper based on the work of his Honours student might not be ready until early 2017.[29]
· On 18 April 2016, a 3-month review meeting was held with Dr Lynd-Stevenson to track his progress against the expectations of the 2016 workload.
· A further review was conducted by Professor Nicholls on 6 July 2016. An email was sent following the meeting by Professor Nicholls advising that it was a clear expectation that two research papers be submitted by the end of 2016. Dr Lynd-Stevenson responded on 7 July 2016 advising, in effect, that he disputed Professor Nicholls’ interpretation of the agreement that had previously been reached with Professor Wade.[30]
· Between July and September 2016 there were a number of further email exchanges between Dr Lynd-Stevenson and Professor Nicholls in relation to a dispute about the requirement to submit two papers in 2016.
· On 1 November 2016, Professor Nicholls emailed Dr Lynd-Stevenson to follow up on the progress of his research submissions.
· Dr Lynd-Stevenson responded on 3 November 2016 and cited two submissions to The SAGE Encyclopaedia of Abnormal and Clinical Psychology (the SAGE Articles) and another article that he intended to submit in the next few weeks.
· On 1 December 2016, Dr Lynd-Stevenson submitted a Performance Self-Assessment where he described his submissions of the SAGE articles. This was followed by his annual performance review where it was recorded:
“some research activity noted. It is possible that the encyclopaedia entries may not count towards being research active. A submission to a referred journal was noted.”[31]
· On 14 February 2017, the manuscript submitted to the Journal of Community & Applied Social Psychology was rejected for publication. The Journal set out the reasons for rejection in an email sent to Dr Lynd-Stevenson and this included concerns about alleged theoretical and methodological problems and recommended some steps to improve the readability of the paper. [32]
· On 6 March 2017, Dr Lynd-Stevenson sent an email to Professor Nicholls to propose a resolution to his work “overload” in Semester One. This email raised concerns over the level of his face-to-face teaching hours and sought to cease his involvement in PSYC 3003.[33]
· Professor Nicholls responded on that same date by email advising that he was surprised by the email and that it was expected that Dr Lynd-Stevenson would carry out his duties as described, which were considered entirely reasonable. Professor Nicholls also directed Dr Lynd-Stevenson to the terms of the first and final written warning issued in 2011.[34]
· On 8 March 2017, Dr Lynd-Stevenson requested a meeting with Professor Nicholls and his NTEU representative to discuss the workload expectations and the workload model used within the University. In response, Professor Nicholls indicated that it is expected that the applicant carry out the workload requisite of a Senior Lecturer Level C and that should he not do so, Professor Nicholls would follow the path set out in the 2011 warning letter.[35]
· On 29 March 2017, Professor Nicholls emailed Dr Lynd-Stevenson outlining the research goals and asking for evidence that those goals had been achieved. The correspondence also raised an issue around whether the SAGE articles could be considered as submissions to a peer reviewed journal.
· On 2 April 2017, Dr Lynd-Stevenson responded to Professor Nicholls request by email and indicated that he did not consider that the agreement reached with Professor Wade required submissions to a peer reviewed journal.
· On 6 April 2017, Dr Lynd-Stevenson emailed Professor Nicholls to further raise his concerns around the teaching work-load and that he did not consider that the final warning should preclude him from raising issues about his current workload.[36]
· On 8 May 2017, Professor Nicholls wrote to Dr Lynd-Stevenson in response to his 6 April email and indicated that he did not wish to deter him from raising legitimate workload issues but that the questions and issues raised had already been dealt with and that Dr Lynd-Stevenson’s continual challenging to the workload model is a “waste of both their time.”[37]
· On 24 May 2017, Professor Nicholls sent correspondence to Dr Lynd-Stevenson advising that he intended to write to the Executive Dean of Faculty to recommend that disciplinary action be taken with respect to his research performance in accordance with clause C14.2 of the Enterprise Agreement.[38] A letter was subsequently sent to Professor Tharenou recommending that disciplinary action be taken.
· On 7 June 2017, Dr Lynd-Stevenson wrote to Professor Tharenou responding to the issues raised by Professor Nicholls and raising concerns about Professor Nicholls’ behaviour in response to his workload issues.
· On 28 June 2017, Professor Tharenou wrote to Professor Pollock to recommend that “Level 2 disciplinary action” be taken and in particular that Dr Lynd-Stevenson’s employment be terminated – or if this course is not agreed, that he be demoted.[39] This correspondence was provided to Dr Lynd-Stevenson on 30 June 2017 by way of an email advising that the matter would be investigated.
· On 14 July 2017, Dr Lynd-Stevenson again wrote to Professor Pollock denying the unsatisfactory performance and raising concerns around Professor Nicholls’ behaviour through the process. In this correspondence, Dr Lynd-Stevenson suggests that to resolve the matter, he be demoted by a classification level.[40]
· On 29 August 2017, Professor Pollock wrote to Dr Lynd-Stevenson to advise that an independent external investigator had been appointed (EMA Consulting) to assist to determine the most appropriate course of action to be taken.[41]
· On 8 December 2017, Professor Pollock emailed Dr Lynd-Stevenson with a copy of the completed investigation report which had been finalised on 5 December 2017.[42] The report recommended that Level 2 disciplinary action was appropriate. I note that under the Enterprise Agreement, the two potential Level 2 outcomes included the termination of Dr Lynd-Stevenson’s employment or his demotion. Dr Lynd-Stevenson was given an opportunity to respond to this intention.[43]
· On 14 December 2017, Dr Lynd-Stevenson provided a response to Professor Pollock contesting many of the findings and suggested, amongst other things, that instead of dismissal, he be demoted to a Level B Academic.[44] Dr Lynd-Stevenson also provided a comprehensive written submission outlining why he considered that he met the requirements for the Level B position.[45]
· On 20 December 2017, Professor Pollock wrote to Dr Lynd-Stevenson advising that his employment would be terminated on the grounds of unsatisfactory performance.[46]
· On 22 January 2018, an internal appeal was lodged against the decision by Dr Lynd-Stevenson under the terms of the Enterprise Agreement. This appeal was not successful and the decision to terminate his employment remained with effect on and from 26 March 2018.
The terms of the Enterprise Agreement
Some of the disputed elements in this matter concern the implications of the Enterprise Agreement when applied to the circumstances leading to Dr Lynd-Stevenson’s dismissal. The most significant of these elements concern the apparent difference between the staff performance review process and the disciplinary procedures of the Enterprise Agreement, including whether there is strict demarcation between the two. In addition, the actual requirements of the Level C Senior Lecturer position in terms of research capacity and status are in dispute.
Dr Lynd-Stevenson contends that there is a distinction between the staff performance review process and the disciplinary process specified in the Enterprise Agreement. Further, he contends that the University is not able to rely upon the outcomes of, and discussion within, the performance and review process for disciplinary purposes.
Flinders University contends that the approach urged by the applicant would be a triumph of form over substance and that the staff performance and review process is relevant to the procedural considerations under the FW Act as applied in this case.
The most immediately relevant provisions of the Enterprise Agreement are as follows:[47]
“C11 ACADEMIC STAFF PERFORMANCE REVIEW
C11.1 All academic staff (other than casual staff) will be required to undertake a performance review, normally on an annual basis, in accordance with the Academic Staff Performance Review Scheme.
C11.2 The Academic Staff Performance Review Scheme is designed to review regularly the performance and the professional development of staff. There are separate procedures for reviewing and investigating in a formal manner unsatisfactory performance and misconduct, and these procedures are set out elsewhere in this Agreement.
The objectives of the Scheme are to:
· assist staff to develop academically and professionally and to provide them with reliable information on the University's expectation of performance;
· assist the University and staff jointly to plan the work of staff to achieve desired goals; and
· assist supervisors in monitoring and assessing a staff member's performance.
C11.3 Documentation completed in the course of performance reviews will be collected and held in a manner consistent with the confidentiality and reporting provisions of the Scheme as at the time of certification of this Agreement.
C11.4 The performance of casual staff will be reviewed in accordance with the Performance Management Guidelines for Casual Academic Staff (Part-Time Teachers).[48]
… …
C14 ACADEMIC DISCIPLINE: UNSATISFACTORY PERFORMANCE AND MISCONDUCT / SERIOUS MISCONDUCT
C14.1 [Scope] This clause applies to all academic staff except those serving a probationary period and staff employed on a casual basis.
C14.2 [Prior opportunity to remedy concerns] The supervisor will normally deal with a case of less than satisfactory performance or conduct in the first instance. Action under this clause will not normally be undertaken unless:
C14.2.1 in the case of performance, the staff member has been provided with a reasonable opportunity to understand the University's expectation of performance as described in the relevant Academic Profile; and
C14.2.2 the staff member has been afforded reasonable opportunity and support to respond to and remedy concerns about performance and/or conduct; and
C14.2.3 the supervisor determines that despite reasonable efforts to remedy concerns, the staff member's performance and/or conduct continues to be unsatisfactory; and
C14.2.4 the supervisor makes a formal report to the Executive Dean; and
C14.2.5 the Executive Dean, having given due consideration to the report and any response from the staff member, determines that disciplinary action is warranted.
C14.3 Notwithstanding C14.2, the Executive Dean may deal with an allegation of misconduct or serious misconduct in the first instance under this clause should special circumstances warrant. The staff member will be afforded reasonable opportunity to respond to the allegation prior to any action under C14.7.
C14.4 Disciplinary action should be used as a last resort and may only be taken in accordance with this clause.
C14.5 [Definitions]
['Misconduct'] means:
· conduct or behaviour of a kind which constitutes an impediment to the carrying out of an employee's duties or to an employee's colleagues carrying out her or his duties;
· conduct or behaviour which is inconsistent with an employee's obligations to the employer, as specified in A8 of this Agreement; or
· dereliction of the duties required of an academic office.
['Serious misconduct'] means:
· serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an academic's duties or to an academic's colleagues carrying out their duties;
· serious dereliction of the duties required of an academic office, or
· conviction by a court of an offence which constitutes a serious impediment of the kind referred to above.
['Level 1 disciplinary action'] means:
· censuring the staff member; and/or
· giving the staff member a written warning (including, where appropriate, a final warning) about potential disciplinary action if the unsatisfactory performance is not remedied or if the misconduct or serious misconduct is repeated.
['Level 2 disciplinary action'] means disciplinary action including:
· demoting the staff member by one (1) or more salary steps and/or by one (1) classification level;
· suspending the staff member with pay;
· withholding of an increment;
· removing certain administrative duties and responsibilities which involve the payment of an allowance; or
· terminating the staff member's employment.
C14.6 [Disciplinary action in accordance with clause] Subject to C14.1, disciplinary action may only be taken in accordance with the provisions of this clause.
C14.7 (Action by Executive Dean following determination]
Where, in accordance with C14.2 or C14.3, the Executive Dean has determined that disciplinary action be undertaken, she/he may:C14.7.1 ['Leve1 1' disciplinary action] determine that 'Level 1' disciplinary action be taken, as provided for in clause C14.5. This determination is final. The staff member will have an opportunity to provide a written statement, for placing on file with the University's formal advice about the disciplinary action.
C14.7.2 ['Level 2' disciplinary action) recommend to the Deputy Vice-Chancellor (Academic) that she/he take 'Level 2' disciplinary action, as provided for in clause C14.5.
C14.8 [Opportunity for staff member to respond to 'Level 2' disciplinary action recommendation to Deputy Vice-Chancellor (Academic)] The staff member will be entitled to provide a written response to the Executive Dean's report within 10 working days.
C14.9 [Investigative Officer] Where a matter has been referred to the Deputy Vice-Chancellor (Academic), she/he will appoint an Investigative Officer to investigate the matter, prior to making a determination under C14.10. The Investigative Officer will make a written report of the investigation.
C14.10 [Deputy Vice-Chancellor (Academic)'s determination] will have regard to the Investigative Officer's report, the Executive Dean's report and recommendation, and any written or verbal response from the staff member. The Deputy Vice-Chancellor (Academic) may:
C14.10.1 advise the staff member in writing that she/he is satisfied that there has been no unsatisfactory performance/misconduct/serious misconduct. By agreement with the staff member, the Deputy Vice-Chancellor (Academic) may publish the advice in an appropriate manner; or
C14.10.2 take a 'Level 1' disciplinary action (in which case the decision will be final); or
C14.10.3 take a 'Level 2' disciplinary action.
C14.11 [Date of effect of 'Level 2' disciplinary action] The decision will take effect no earlier than five (5) working days from the date of written advice from the Deputy Vice-Chancellor (Academic).
C14.12 [Termination of employment] may occur:
· on the grounds of unsatisfactory performance, where the staff member has previously received a written warning that further unsatisfactory performance may lead to termination of employment; or
· on the grounds of unsatisfactory conduct, where the Deputy Vice-Chancellor (Academic) determines that the conduct of the staff member amounts to serious misconduct.
C14.13 [Review of Decision] A staff member may seek a review of a decision by the Deputy Vice Chancellor (Academic) to take 'Level 2' disciplinary action, in which case the matter will be referred to a Discipline Review Committee.
C14.14 [Disciplinary action suspended for duration of review] A 'Level 2' disciplinary action will not take effect prior to the conclusion of the review proceedings. However, in cases of alleged misconduct/serious misconduct, the Deputy Vice-Chancellor (Academic) may suspend the staff member for the duration of the review proceedings, in accordance with clause C15.
C14.15 [Discipline Review Committee composition] will be in accordance with clause A33 of this Agreement.
C14.16 [Terms of Reference] are to report to the Vice-Chancellor on whether:
· the allegation of unsatisfactory performance, misconduct or serious misconduct has been substantiated;
· the procedures in this clause have been followed;
· there are any mitigating circumstances not already raised for consideration by the Deputy Vice-Chancellor (Academic); and
· whether, having regard to the above, the proposed disciplinary action is commensurate with the level of unsatisfactory performance, misconduct or serious misconduct.
C14.17 [Vice-Chancellor's determination] The Vice-Chancellor will consider any matters raised by the report of the Discipline Review Committee, before making a final determination as to whether the relevant form of disciplinary action is warranted, or whether alternative disciplinary action or no further action should be taken. The Vice-Chancellor will provide her/his decision in writing.
C14.18 [No further action] The steps and decisions taken under this clause (subject to consideration by the Discipline Review Committee) may not be challenged via any one or more of the disputes, grievance or review processes of the University.
C14.19 [Research Misconduct] Where an allegation of Research Misconduct has been made, the following additional provisions apply:
C14.19.1 For the purposes of this clause Research Misconduct means:
· fabrication, falsification, plagiarism or deception in proposing, carrying out or reporting the results of research;
· failure to declare or manage a serious conflict of interest;
· avoidable failure to follow research proposals as approved by a research ethics committee, particularly where this failure may result in unreasonable risk or harm to humans, animals or the environment;
· the willful (sic) concealment or facilitation of research misconduct by others.
A complaint or allegation relates to research misconduct if it involves both intent and deliberation, recklessness or gross and persistent negligence; and serious consequences, such as false information on the public record, or adverse effects on research participants, animals or the environment.
C14.19.2 The Vice-Chancellor may determine, at her/his absolute discretion, that an investigation and/or review concerning allegations of research misconduct requires specialised knowledge about the area of research and expertise in the conduct of research. This means that
(a)a matter for investigation under clause C14.9 may be referred to a small panel of investigative officers of no more than three (3) persons, as determined by the Deputy Vice-Chancellor (Academic) in place of an "Investigative Officer".
(b)the composition of a Discipline Review Committee under clause C14.15 may be augmented by up to two (2) persons (so there may be a maximum of five (5) members). Where additional members are required, these will be agreed with the Flinders President of the NTEU.
(c)a Chair who has expertise in the conduct of a research investigation, or in the conduct of tribunals of fact, and/or is a subject expert in relation to the matter under investigation may be appointed in place of the Chair appointment under clause C14.15. Such a Chair may be appointed by the Vice-Chancellor or delegate, having conferred with the Flinders Branch President of the NTEU and agreed on an acceptable Chair.
C14.19.3 Research Misconduct shall be dealt with in accordance with this Clause as either misconduct or serious misconduct except for variations provided for under clause C14.19.
C14.19.4 Where the allegations of research misconduct appear to involve action in concert between employees of more than one employer, the Vice-Chancellor, the NTEU and the CEOs of the other employers may agree to the conduct of a joint independent investigation and review process, governed by provisions which are to be agreed in writing. Should this occur, the provisions as agreed in writing shall apply in substitution for the provisions set out in this Agreement.
C14.19.5 If in the future the University is required to further comply with the procedures for dealing with allegations of misconduct or serious misconduct in research as set out in Part 8 of the Australian Code for the Responsible Conduct of Research, then the University will discuss this requirement with the NTEU.”[49]
I note that the research concerns relied upon by Flinders University in this matter do not involve research misconduct within the meaning of clause C14.19 of the Enterprise Agreement.
The performance review procedures in clause C11 are designed to assist both academic staff and supervisors to identify appropriate performance standards and areas of improvement, and where required, to develop plans to achieve the University's expectation of performance. Clause C11.2 confirms that there are separate procedures for reviewing and investigating unsatisfactory performance and misconduct in a formal manner. These are provided by clause C14.
Clause C14 sets out detailed procedures to identify and deal with issues of suspected less than satisfactory performance or conduct. Clause C14.4 provides that disciplinary action should be used as a last resort and may only be taken in accordance with that clause. This is reinforced by clause C14.6, which provides that (subject to C14.1 – which does not provide any relevant limitation in this case), disciplinary action may only be taken in accordance with the provisions of this clause.
This means that the Enterprise Agreement requires that disciplinary action follow the procedures set out in clause C14. Without being definitive, this includes that in relation to alleged under-performance (non-misconduct matters) it is initially expected that:
· the staff member has been provided with a reasonable opportunity to understand the University's expectation of performance as described in the relevant Academic Profile;
· the staff member has been afforded a reasonable opportunity and support to respond to and remedy concerns about performance and/or conduct;
· the supervisor determines that despite reasonable efforts to remedy concerns, the staff member's performance and/or conduct continues to be unsatisfactory;
· the supervisor makes a formal report to the Executive Dean; and
· the Executive Dean, having given due consideration to the report and any response from the staff member, determines that disciplinary action is warranted.
At least in general terms, although the University was not conducting meetings and issuing correspondence using the separate formal disciplinary procedure for the period between 2011 and March 2017, the substance of the first two elements of this requirement was being met. I will return to aspects of this later in the decision.
The Enterprise Agreement provision then sets out a process for the Executive Dean’s determination to be subject to a process involving an opportunity for the staff member to provide a response, for the matter to be investigated, and for the Deputy Vice-Chancellor (Academic) to make a decision on the level of disciplinary action (if any) which will be applied subject to an internal review. Clause C14.12 also provides that dismissal may occur “on the grounds of unsatisfactory performance, where the staff member has previously received a written warning that further unsatisfactory performance may lead to termination”. Conceptually, this did occur in Dr Lynd-Stevenson’s case with the 2011 warning and related written reminders; however, I will also return to the fairness of this as part of my overall consideration of this matter. For present purposes, I consider that Flinders University adhered to the process set out in the Enterprise Agreement following the determination by the Executive Dean.
It is evident that the Enterprise Agreement contemplates a different and more formal process than the performance reviews leading to the determination by the Executive Dean. It is also evident from the evidence that the University generally uses different correspondence, meetings and forms when applying the disciplinary process. This was not generally undertaken by Flinders University in relation to Dr Lynd-Stevenson between the 2011 final warning and May 2017. However, this does not mean that the processes and outcomes of the performance reviews are irrelevant. These set the performance standards and plans and it would be perverse to ignore those outcomes for present purposes.
I will also return to this aspect in due course. In so doing, I note that the Commission’s present role is to apply the relevant statutory considerations of the FW Act to this matter.
The substance of the dispute about the requirements for a Level C Senior Lecturer surround the expectation of Flinders University that Dr Lynd-Stevenson be “research-active” or otherwise achieve specified levels and status of research grants and publications. In general terms, being research-active means that the University expected that the applicant be capable of supervising PhD students. This meant in turn, that he was expected, in the previous five years, to have been published in at least five publications (of a kind recognised by Excellence in Research for Australia) and to either have gained HERDC research income, acted as a Chief Investigator on at least one category 1 NCRG grant, supervised a completed PhD student (higher degree by research student), or having an equivalent peer-reviewed track record.[50] I note that the requirement to be “research-active” is the latest manifestation of the ongoing requirement by Flinders University for its Level C Lecturers to make a significant contribution to research in their field.
Dr Lynd-Stevenson contends that these research requirements are not set out in the Enterprise Agreement and were not therefore an obligation of a Level C Lecturer that could be relied upon for disciplinary purposes.
Flinders University contends that the requirement to be research-active is consistent with the expectation of a Level C Senior lecturer and was reasonable in the circumstances, including the custom and practice in the School of Psychology.
The minimum standards for the various academic levels are set out in the Enterprise Agreement as follows:
“SCHEDULE 11 MINIMUM STANDARDS FOR ACADEMIC LEVELS (MSAL)
1 Introduction
Minimum standards for levels of academic staff, other than a casual, are set out below. The levels are differentiated by level of complexity, degree of autonomy, leadership requirements of the position and level of achievement of the academic. The responsibilities of academic staff may vary according to the specific requirements of the institution to meet its objectives, to different discipline requirements and/or to individual staff development.
An academic appointed to a particular level may be assigned and may be expected to undertake responsibilities and functions of any level up to and including the level to which the academic is appointed or promoted. In addition, an academic may undertake elements of the work of a higher level in order to gain experience and expertise consistent with the requirements of an institution's promotion processes.
MSAL will not be used as a basis for claims for reclassification.
2 Teaching and research academic staff
2.1 Level A
A Level A academic will work with the support and guidance from more senior academic staff and is expected to develop his or her expertise in teaching and research with an increasing degree of autonomy. A Level A academic will normally have completed four years of tertiary study or equivalent qualifications and experience and may be required to hold a relevant higher degree.
A Level A academic will normally contribute to teaching at the institution, at a level appropriate to the skills and experience of the staff member, engage in scholarly, research and/or professional activities appropriate to his or her profession or discipline, and undertake administration primarily relating to his or her activities at the institution. The contribution to teaching of Level A academics will be primarily at undergraduate and graduate diploma level.
2.2 Level B
A Level B academic will undertake independent teaching and research in his or her discipline or related area. In research and/or scholarship and/or teaching a Level B academic will make an independent contribution through professional practice and expertise and coordinate and/or lead the activities of other staff, as appropriate to the discipline.
A Level B academic will normally contribute to teaching at undergraduate, honours and postgraduate level, engage in independent scholarship and/or research and/or professional activities appropriate to his or her profession or discipline. He or she will normally undertake administration primarily relating to his or her activities at the institution and may be required to perform the full academic responsibilities of and related administration for the coordination of an award program of the institution.
2.3 Level C
A Level C academic will make a significant contribution to the discipline at the national level. In research and/or scholarship and/or teaching he or she will make original contributions, which expand knowledge or practice in his or her discipline.
A Level C academic will normally make a significant contribution to research and/or scholarship and/or teaching and administration activities of an organisational unit or an interdisciplinary area at undergraduate, honours and postgraduate level. He or she will normally play a major role or provide a significant degree of leadership in scholarly, research and/or professional activities relevant to the profession, discipline and/or community and may be required to perform the full academic responsibilities of and related administration for the coordination of a large award program or a number of smaller award programs of the institution.
… …”[51]
The Enterprise Agreement refers to Academic Profiles[52] which operate in conjunction with the above. In terms of the research profiles relevant for Lecturer Levels B and C,[53] they provide as follows:
| RESEARCH AND/OR CREATIVE ACTIVITY | |
| Level B (Lecturer) | Level C (Senior Lecturer) |
Relevant activities may include but are not limited to: as for Level A PLUS: - making an independent contribution to research and/or creative activity in the discipline; - supervision of major Honours or postgraduate research projects; - publishing in recognised high quality publications; - attracting research grants from external sources. |
Relevant activities may include but are not limited to: - as for Level B PLUS: - making a significant contribution to research and/or creative activity in the discipline; - undertaking an active leadership role in research and/or creative activity including, where appropriate, leadership of a research team. |
I consider that the fundamental requirements for the different levels of Lecturers are set out in the MSAL. These requirements are further clarified in the Academic Profiles and in the reasonable expectations that have been set for the Lecturers by the policies of the University which, in my view, are relevant for present purposes provided they are consistent with those fundamental requirements.
I am satisfied that the requirements for the Level C Senior Lecturers in the School of Psychology to be research-active, so that they could supervise PhD and similar students, and the earlier requirements to actively publish in publications of relevant standing and obtain research grants, were reasonable and consistent with the Enterprise Agreement. In that regard, I find that although the concept of Dr Lynd-Stevenson undertaking an education-focussed role was discussed in July 2014, he was at all times in a balanced role which required teaching, academic and other activities. The requirements were also consistent with the MSAL for Level C in the context of the relevant School. I also find that an education-focussed role would not have required Dr Lynd-Stevenson to be formally research-active, but still actively researching.[54] This, and the fact that Dr Lynd-Stevenson did not actually apply for any such role, must be taken into account in assessing the applicant’s research and work performance more generally.
Findings on some of the other significant disputed facts and related elements of this matter
I will deal with the particular considerations provided by the FW Act shortly. It is however convenient to determine some of the other factual and related disputes that form much of the context for those considerations. I will leave what I consider to be the substantive question; namely, whether Dr Lynd-Stevenson was capable of performing at the required performance level for a Level C Senior Lecturer, for determination as part of the s.387 considerations. I will also leave for the moment the detail of the statutory considerations associated with what might be described as procedural fairness.
5.1Is the 2011 Final Warning relevant and appropriate for present purposes?
In May 2011, Dr Lynd-Stevenson was issued with a “formal and final warning for misconduct and unsatisfactory performance”. The background leading to this warning included some student complaints about Dr Lynd-Stevenson’s teaching and some apparent concerns about outstanding matters arising from an annual performance review, the need to withdraw the applicant from managing an important program, and his alleged failure to provide appropriate student assessment/marking guides. A complaint from Dr Lynd-Stevenson about how his then Dean (Professor Brewer) was dealing with these matters also formed part of the background.
The warning noted the background and the findings of an investigation and subsequent review by a grievance committee, which did not support the applicant’s grievance, and expressed the warning in the following terms:
“… …
I find that on the evidence before me, tested by an independent investigation and heard by an independent Committee, your conduct and behaviour constitutes an impediment to your supervisor and colleagues in carrying out their duties. Furthermore, the serious concerns which have been raised about your performance as an academic are inconsistent with the standards expected of a Senior Lecturer.
In accordance with Clause C14.5 of the Academic Discipline Policy, I therefore issue you with a formal and final warning for misconduct and unsatisfactory performance. This means that any future persistence on your part to behave as you have done to date will not be tolerated, and that strong performance measures will be invoked to ensure that professional academic expectations are met and that ongoing satisfactory performance is sustained.
Based on the foregoing, stringent measures will now need to be put in place to monitor your performance, and you are hereby directed to appropriately engage with Professor Brewer, as your supervisor, in regards to workload and performance matters for the future. Should you not be able to conform with the performance and conduct expectations appropriate for a Senior Lecturer and member of staff, then I would strongly encourage you to consider your position and future with the University. Notwithstanding, if you persist in challenging and undermining your supervisor’s authority, or are unable to meet satisfactory performance standards, I will have little option but to consider the termination of your employment with the University.
… …”[55]
Dr Lynd-Stevenson contends that the warning was not justified for reasons including that some of the issues relied upon were not previously put to him as allegations of misconduct and as a result he was denied an opportunity to explain why his conduct was not inappropriate. He also contends that the warning was harsh and disproportionate.[56] Dr Lynd-Stevenson further contends that the warning related only to teaching (not research) and was now some 7 years old and of limited relevance to the dismissal.
Flinders University contends that the warning was a formal and final warning that put Dr Lynd-Stevenson on notice that his performance was unsatisfactory, would be monitored and could lead to his dismissal if appropriate performance standards were not met in the future.
Dr Lynd-Stevenson’s complaints about the 2011 warning were largely, but not entirely, procedural. He does contest the validity and basis of the warning, which he also did at the time it was issued. Dr Lynd-Stevenson’s procedural fairness complaints within his witness statement were not challenged. There is little direct evidence before the Commission about the substance of the issues leading to the 2011 warning and this is not the forum for the Commission to now attempt to revisit the disputed facts at the time.
It is sufficient to note that the 2011 warning was substantially in the context of teaching performance but was certainly not just about that issue. The warning was also stated to be a formal and final warning and this put Dr Lynd-Stevenson on notice that he may be subject to dismissal in the future if his performance was not appropriate, and that the warning (along with many other exchanges between Dr Lynd-Stevenson and his Deans) was initially disputed at the time; albeit that he did subsequently indicate that he would not press the issues.[57] Further, the fact that the warning did not expressly include or exclude research performance, and was given in 2011 whilst the dismissal took place in 2018, must also all be taken into account.
5.2Did Dr Lynd-Stevenson meet the requirements of the 2016 Performance Review?
This represents a significant dispute, but is only part of the consideration of the factual matrix that informs my ultimate decision in this matter. I have set out the context for the 2016 Performance Review and the 17 expectations initially arising as part of the chronology. The context for the review is further set out by the provisions of the Enterprise Agreement in clause C11, also set out above.
There was considerable debate about the terms of the outcome following the 2016 review including Dr Lynd-Stevenson taking issue with the workload and subsequently the number and timeframe of the expected research contributions. By July 2016, it was clear that Dr Lynd-Stevenson was expected to evidence the leadership and initiative required from a balanced Level C position including making “significant and original high quality contributions to research”[58] and this was to include two papers to be submitted for publication by the end of 2016. Although disputed at the time, Dr Lynd-Stevenson subsequently conceded that he was wrong about that aspect.
To the extent that there was, and is, a debate about whether those contributions were to be made to a peer-reviewed journal (or otherwise meet the requirements to be capable of publication in a Higher Education Research Data Collection (HERDC) status publication), I find as follows. The formal recognition of the HERDC specifications did not take place until June 2016 when the University’s 2016 Research policy was established.[59] However, the expectation that the contributions were to be to “refereed journals” (or a peer-reviewed journal) was made clear by Professor Wade[60] and this was consistent with the general requirements for someone seeking to become research-active. The suggestion during a later exchange from Professor Wade that the applicant “look outside the square when it comes to publishing opportunities in 2016”[61] when considered in context, would not reasonably have been understood to mean that the contributions should not be to peer-reviewed (or equivalent) publications. Although Professor Wade conceded that in hindsight, the phrase was “unclear”,[62] it is evident to me that the statement was the professor’s attempt to encourage Dr Lynd-Stevenson to take some more initiative in his research and publication activities.
I also note that Dr Lynd-Stevenson explored at the time whether his contributions to the SAGE encyclopaedias would be HERDC compliant[63] and this is consistent with an understanding that the publication contributions had to be to publications of some standing. Indeed, given that the purpose of these steps was to facilitate Dr Lynd-Stevenson becoming research-active and improving his research performance, it would be unusual for a Level C Academic not to pursue the higher forms of publications.
It is likely that the two SAGE contributions were not to a HERDC compliant (or peer-reviewed) publication. However, Dr Lynd-Stevenson did make those two contributions, which were published, and did submit a manuscript to a peer-reviewed publication in 2016, which although not published, did substantially meet that part of the 2016 review expectations.
Accordingly, Dr Lynd-Stevenson did not meet one of the 17 specifically stated outcomes of the 2016 review because of the nature of the SAGE Articles and the publication his two encyclopaedia entries were submitted to. He did, however, improve his research performance in 2016 by submitting some material (three items) and met all of the other specifically stated measures. These measures were deliberately established to be achievable steps to enable Dr Lynd-Stevenson to improve his research performance (including by being based upon submissions rather than upon successful publications) as a step towards the required level of research for a Level C Academic.[64] In that light, the fact that this research related measure was not met is more significant than it might have been in other circumstances.
I will shortly return to the question as to whether this means that Dr Lynd-Stevenson met the requirements of a Level C Senior Lecturer more generally.
5.3Was Dr Lynd-Stevenson warned during the course of 2016 or 2017 that his employment was in jeopardy?
I have earlier dealt with the relevance and consequences of the 2011 warning and the requirements of the Enterprise Agreement as applied in this case. Given the considerations under s.387 of the FW Act, it is also relevant to consider whether as a matter of fact Dr Lynd-Stevenson was warned that his continuing employment was in jeopardy beyond the 2011 warning. During 2012 through to 2014 there were various discussions about the requirements to improve Dr Lynd-Stevenson’s publication rate and research efforts; however, there is no indication that he was expressly advised during this period that he would face further disciplinary action if he did not do so. As would be expected, given the purpose of the staff performance review process under the Enterprise Agreement, these meetings were largely positive and encouraged Dr Lynd-Stevenson to improve his research performance rather than being conducted as formal disciplinary meetings.
At a meeting in mid-December 2012 involving Professor Tharenou and Dr Lynd-Stevenson (amongst others), the applicant was advised that in addition to the matters raised in the 2011 warning, Professor Tharenou considered that in relation to Dr Lynd-Stevenson:
· His workload was at the much lower end compared with other staff within the School;
· There had been no research grants awarded for a significant period, nor any evidence of grants being applied for;
· He had a poor 10 year record of grant applications and research output; and
· He had failed to demonstrate leadership, being an expectation of a Senior Lecturer.[65]
Dr Lynd-Stevenson expressed surprise about these comments and subsequently disputed the basis of many of those matters.[66]
Whilst also not stated as a warning, these views were again communicated to Dr Lynd-Stevenson in March 2013 when Professor Tharenou also stated in correspondence to the applicant:
“There appears to be a consistent discrepancy in what you say you can and will do to what you actually do. You appear to deflect the issues by giving many reasons for a poor record and yet you appear not to respond to advice and directions from your Dean.
You indicated that you accepted and totally agreed that you needed to improve your research performance in order to improve your record and that you needed to be more proactive.
I expect actual and demonstrated evidence in improvement in your performance and changed behaviours that indicate that you are positively managing your career as a Senior Lecturer by being more proactive in producing needed outputs for a Senior Lecturer and actively engaging with the Dean and other School staff. You need to improve your performance from now on.”[67]
In 2014, it was suggested by Professor Wade that Dr Lynd-Stevenson would work towards applying for an education-focussed position. This was suggested in the context that, in effect, the applicant was not research-active according to the University and it was not satisfactory that this continue whilst in a balanced lecturing role. During 2015, Dr Lynd-Stevenson did undertake an increased teaching load for semester 1 and was then on leave between June 2015 and January 2016.
The 2016 performance review took place in the context of the Dr Lynd-Stevenson’s return from leave and the fact that there was no longer going to be an option of education-focussed Lecturer positions at the University.
Flinders University contends that Dr Lynd-Stevenson was further warned (beyond the 2011 warning) that his employment was in jeopardy as part of the 2016 review and subsequently.
It is apparent that Dr Lynd-Stevenson was not explicitly told in the meeting on 18 January 2016 that his employment was at risk if he did not improve his research output. This is consistent with the evidence of Professor Wade.[68]
Flinders University contends that it was however inferred by the subject matter of that meeting that Dr Lynd-Stevenson ought to have known that his performance was not satisfactory and consequently his employment was at risk.
Professor Nicholls in his written statement outlined that in that meeting Professor Wade had told Dr Lynd-Stevenson that his performance was not satisfactory, he had one of the lowest workloads in the School of Psychology, and that he would need to improve his workload to become research-active. Further, he stated that Dr Lynd-Stevenson would need to submit two refereed journal articles, one research grant proposal and present a paper at a research conference by the end of the year – and that this was the bare minimum requirement for a Senior Lecturer.[69]
The evidence of Professor Nicholls at the hearing of this matter was that he could not recall the actual words that were said and whether Dr Lynd-Stevenson was specifically told his performance was not satisfactory but that that was the general ‘tenor’ of the meeting.[70] This is largely reflected in the written notes taken by Mr Szewczyk.[71] Those notes do not record any reference to ‘unsatisfactory performance’ or to the specific requirements imposed by Professor Wade. The notes do however indicate that workload was discussed and that Dr Lynd-Stevenson was told that he was the only academic staff member in the School of Psychology that was not research-active.[72]
Dr Lynd-Stevenson disputes that the meeting was about unsatisfactory performance and contends that the meeting was centred only around a discussion about him moving towards research-active status now that the education-focussed positions were no longer available.[73]
On balance, I find that whilst the sense of the meeting was that Dr Lynd-Stevenson’s research performance was not satisfactory and needed to improve, particularly given the change in approach by the University, he was not further warned that his position was in jeopardy as part of the 2016 performance review.
There were ongoing concerns about Dr Lynd-Stevenson’s response to the 2016 requirements and his unwillingness to get on with the job. He was not expressly further “warned” about his employment until March 2017, which took place in the context of Professor Nicholls’ ongoing frustration about the applicant’s continual workload complaints that the Dean considered to be misplaced and unwarranted. That “warning” was in the following terms:
“Dear Robert,
I was extremely surprised by your email. In the performance review, which you signed, you agreed to do this work. I am therefore not asking you to do anything more than what is equitable or agreed. To pull out of any of your obligations at this late stage would be difficult to manage and put extra load on your colleagues.
I also think it is quite disingenuous of you to equate a workload point to 5 hours of work and to say that you will have 52.5 hours of contact in a week. The fact is, you have around 15 hours contact in a week and this is something I easily managed as a junior lecturer. I have repeatedly told you that that you should not focus on hours – but on output. Many of the practicals that you are giving are already written and you simply have to give them. If you do happen to have a busy week, I would expect you (as an experienced academic) to move some of your other duties around this.
To sum up, I expect you to carry out all duties I have given you, which I feel are entirely reasonable. If you feel you are unable to do this, I direct you to the letter written by the VC to you in 2011. In particular:
In accordance with Clause C14.5 of the Academic Discipline Policy, I therefore issue you with a formal and final warning for misconduct and unsatisfactory performance. This means that any future persistence on your part to behave as you have done to date will not be tolerated, and that strong performance measures will be invoked to ensure that professional academic expectations are met and that ongoing satisfactory performance is sustained. Based on the foregoing, stringent measures will now need to be put in place to monitor your performance, and you are hereby directed to appropriately engage with Professor Brewer, as your supervisor, in regard to workload and performance matters for the future. Should you not be able to conform with the performance and conduct expectations appropriate for a Senior Lecturer and member of staff, then I would strongly encourage you to consider your position and future with the University. Notwithstanding, if you persist in challenging and undermining your supervisor’s authority, or are unable to meet satisfactory performance standards, I will have little option but to consider the termination of your employment with the University.
-Mike
… …”[74]
I note that the final paragraph set out above is a direct quote from the 2011 warning.
Accordingly, when assessing the procedural fairness associated with the dismissal I will have regard to the 2011 warning, the fact that between that warning and March 2017 the performance review processes were largely positive and encouraging and not disciplinary in nature, and that a further warning of sorts was provided in March 2017, with the formal disciplinary review process commencing in May 2017.
5.4The difference between a Level C and Level B Academic role
This is potentially relevant to the question as to whether the dismissal was harsh. This arises because the prospect of a demotion to the Level B Lecturer position was accepted as an option by Dr Lynd-Stevenson during the finals stages of the process leading to the dismissal and the Enterprise Agreement contemplates such an outcome as a “Level 2” disciplinary action. Indeed, prior to the dismissal decision, Dr Lynd-Stevenson provided a comprehensive written submission to the University setting out the basis upon which he contended that he met the requirements of the Level B role. As part of the final stages of that disciplinary process, Flinders University apparently concluded that Dr Lynd-Stevenson was not capable of fulfilling that role.
The MSAL and Academic Profiles for these roles have been set out earlier in this decision. In my view the substantive difference between these roles is as follows (with the most significant elements in Level C highlighted):
· A Level B academic will undertake independent high quality contributions to teaching and research through professional practice and expertise and coordinate and lead the activities of other staff as appropriate.
· A Level C academic will make significant and independent high quality original contributions to the discipline at a national level in research and/or scholarship and/or teaching and normally play a significant degree of leadership in these fields.
The differences between the two are about the level and status of the research, scholarship and/or teaching activities, including the degree of original work and the extent of subject matter leadership. I have earlier found that the research requirements placed upon the applicant were consistent with the reasonable requirements for a Level C Academic in the context of the School of Psychology at Flinders University. I will deal with my assessment of Dr Lynd-Stevenson’s capacity to meet the Level C and Level B requirements shortly.
Was Dr Lynd-Stevenson’s dismissal unfair within the meaning of the FW Act?
Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
Given the matters that are not in dispute here, Dr Lynd-Stevenson’s dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal is related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to Dr Lynd-Stevenson’s capacity or conduct (including its effect on the safety and welfare of other employees)
Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[75]
The failure to follow a lawful instruction or comply with reasonable policy or work expectations may provide an employer with a valid reason to terminate an employee’s employment.[76] It is however clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, the Commission does not sit in the shoes of the employer[77] and it is also not sufficient for an employer to rely upon its reasonable belief that the termination was for a valid reason.[78] In this case, the investigation conducted for the University in the lead up to the dismissal, and the subjective views of the witnesses, do not represent objective direct evidence for present purposes. Further, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.[79]
Flinders University contends that the valid reason for dismissal was that Dr Lynd-Stevenson failed to meet the requirements for a Level C Senior Lecturer over a long period of time. It also contends that the research related requirements were reasonable and consistent with those applying to the Level C position and that, as a result, the dismissal was justified.
Dr Lynd-Stevenson contends that he was meeting all of the requirements for a Level C specified by the Enterprise Agreement; his research performance had improved and he had met the requirements established as part of the 2016 performance review; and that the complaints allegedly leading to his dismissal were in fact a response to the concerns he had raised about his workload. In addition, Dr Lynd-Stevenson contends that he had emphasised his teaching efforts following the 2011 warning and again in 2014 when he was encouraged to work towards an education-focussed role. In that context, he suggests that his teaching workload was significant and that comparisons with other Lecturers relied upon by Flinders University were not valid. He also contends that as the disciplinary process within the Enterprise Agreement has not been followed, the alleged performance concerns could not be considered to be valid for present purposes.
Given the approach to s.387(a) in the relevant authorities, the procedural fairness aspects raised by Dr Lynd-Stevenson are not directly relevant to this present consideration. To the extent that it is suggested by the applicant that the discussions and outcomes from the performance review process (as opposed to the disciplinary process under the Enterprise Agreement) cannot provide a defensible or well-founded reason, I have also dealt with that aspect earlier in this decision.
For reasons set out earlier in this decision, I have found that the requirements that Dr Lynd-Stevenson significantly improve his research performance, and that after 2016 he also proactively take steps to become research-active, were reasonable and not inconsistent with the requirements for a Level C Academic. I have also found that Dr Lynd-Stevenson substantially met the requirements of the 2016 performance review but that these requirements were intended to be achievable minimal steps to enable Dr Lynd-Stevenson to improve his research performance (including by being based upon submissions rather than upon successful publications) as a step towards the required level for a Level C Academic. The omission in not meeting that requirement was also an important one given the objective was to move towards becoming research-active.
Dr Lynd-Stevenson’s improvement in that regard is an important but not necessarily decisive factor in terms of the present consideration. This follows from the nature of the 2016 review expectations and what I find, based upon the objective evidence, was a consistent and long-term under-performance in terms of the level and quality of the research activities when measured by reference to grant and publication success and the significant, independent high quality original research and other work reasonably required of a Level C Senior Lecturer in the School concerned.
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
The prerequisites of ss.390(1) and (2) have been met in this case.
As set out earlier, Dr Lynd-Stevenson seeks reinstatement to his former position with the maintenance of continuity of service and an order for lost wages between his dismissal and the resumption of his employment. He has not secured any work since his dismissal and has taken reasonable steps to seek alternative employment. Strictly in the alternative, he seeks the maximum compensation available under the FW Act.
Flinders University is opposed to any reinstatement on a number of grounds including that, in effect, it has lost the necessary trust and confidence in Dr Lynd-Stevenson to perform his work in the future. It also opposes any compensatory remedy.
Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.
In Australia Meat Holdings Pty Ltd v McLauchlan[92] a Full Bench of the AIRC, having considered the language of the Act operating at that time, which is comparable to the present provision, said:
“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.
... ...
We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.
In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:
"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits."
While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.”
More recently, a Full Bench of the Commission further considered the statutory scheme surrounding the remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer. In Colson v Barwon Health,[93] the Full Bench found as follows:
“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).
...
[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.”
The Full Bench further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence,[94] and that the approach outlined in Perkins remains sound and requires consideration of the “rationality” of the basis of the employer’s concerns.[95]
In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter[96] the Full Bench conveniently summarised the approach required on one aspect of the discretion as follows:
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
· Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
· Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
· An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
· The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
· The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
Reinstatement under s.391(1)(a) of the FW Act involves the reappointment to the position in which the applicant was employed immediately before the dismissal. In this case, this would involve the Level C Academic position. Given my findings as to the existence of a valid reason in this case, and the basis upon which I found the dismissal to be unfair, it would be inappropriate to reappoint Dr Lynd-Stevenson to that position. That is, I have found that Dr Lynd-Stevenson was unable or unwilling to perform the requirements of the Level C positon over a long period of time and my concerns about procedural fairness and harshness do not challenge that view. Further, at least in terms of that position, the loss of trust and confidence cited by Flinders University has a rational and sound basis. Accordingly, to reappoint Dr Lynd-Stevenson to the Level C role would not be appropriate and that form of remedy would not represent a sound outcome or a fair go all around.
Reinstatement under s.391(1)(b) of the FW Act involves the reappointment to another position on terms that are no less favourable than those on which the applicant was employed immediately before the dismissal (in this case the Level C position). It is common ground between the parties that a “reappointment” to a Level B position is not within the Commission’s powers. I agree, given that the Level B position is of a different remuneration and status level and would be less favourable. If that option were available, I may have considered such a remedy, subject of course to the consideration of appropriateness more generally.
As a result of the above findings, I must consider whether compensation in lieu of reinstatement is appropriate under s.392 of the FW Act.
A Full Bench in McCulloch v Calvary Health Care Adelaide[97] (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg[98] remains appropriate in that regard.
Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the FW Act,[99] it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
The effect of the order on the viability of Flinders University
Nothing was put on this aspect and in any event this issue is unlikely to arise in the context of the available remedies under the FW Act at this workplace.
The length of Dr Lynd-Stevenson’s service with Flinders University
Dr Lynd-Stevenson had been employed for over 21 years and this is a significant period of service.
The remuneration Dr Lynd-Stevenson would have received, or would have been likely to receive, if he had not been dismissed
This involves, in part, a consideration of the likely duration of Dr Lynd-Stevenson’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment.[100]
Given my findings, the fair alternative course of action here would have been for Flinders University to have offered a Level B position to Dr Lynd-Stevenson on the basis that any continuing performance concerns would be worked through using the different requirements of that position. I find on the balance of probabilities that Dr Lynd-Stevenson’s offer to consider that option was genuine and would likely have eventuated if this position was offered.
In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that Dr Lynd-Stevenson would, on the balance of probabilities, have in the absence of dismissal remained in employment for a further period of something more than 12 months. I acknowledge some tensions existed between management of the University and Dr Lynd-Stevenson. Some of those tensions arose from the manner in which the applicant advanced his perspectives but some arose from a difference of view about the requirements for a Level C Academic. However, given the proper disciplinary processes required by the University and the need for some reasonable period to set, work towards, and then assess the work performance in that role, this period is a conservative estimate.
The level of Dr Lynd-Stevenson’s income at the point of termination is unclear on the sworn evidence. Using the figures in the Enterprise Agreement for a Level C, which coincides with the rate set out in the employer’s response (Form F3), the annual remuneration rate was $130,997. The projected remuneration that Dr Lynd-Stevenson would have received based upon the anticipated period of employment with Flinders University, and using that rate, would therefore have been that amount. The Level B Academic salary was $110,134 and arguably, this is the rate that should be considered in this context. Ultimately, for reasons that will become clear, it is not necessary for me to determine which Level should be used for present purposes.
The efforts of Dr Lynd-Stevenson to mitigate the loss suffered by him because of the dismissal
I accept that Dr Lynd-Stevenson has made extensive efforts to mitigate his losses.
No discount to the amount of compensation is warranted based upon this consideration.
The amount of any remuneration earned by Dr Lynd-Stevenson from employment or other work during the period between the dismissal and the making of the order for compensation
The amount of any income reasonably likely to be so earned by Dr Lynd-Stevenson during the period between the making of the order for compensation and the actual compensation
I deal with these two consideration together.
Dr Lynd-Stevenson has not been in receipt of any employment related income since his dismissal[101] and was not in employment at the time of hearing this matter.
There is no deduction to be made on account of these considerations.
Any other matter that the FWC considers relevant and the remaining statutory parameters
I have taken into account the projected nature of the anticipated loss of remuneration over a known period and projected some future ongoing remuneration. Given the circumstances of this case, it is appropriate to allow a small deduction for the future contingencies.[102] A discount of 10 per cent is appropriate.
There is no demonstrated misconduct that should be taken into account as provided by s.392(3) of the FW Act. That is, although Dr Lynd-Stevenson may have been a difficult employee to manage, and was quick to contest directions given to him, Flinders University did not contend that this was misconduct in the context of this matter.
In accordance with s.392(4) of the FW Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
Under s.392(5) and (6) of the FW Act, the maximum compensation limit in this case is the lesser of 26 weeks remuneration (worked out over the 26 weeks immediately before the dismissal – the Level C rate); being $65,499, or the statutory compensation cap of $71,000.[103]
The amount arising from the other statutory considerations is more than the maximum compensation limit of (in this case) $65,499 and this limit must be applied. That is, the projected remuneration loss figures, using either Level C or Level B rates, with the contingency discount of 10 per cent and having regard to all other relevant factors, are well in excess of the compensation limit.
The figures outlined above are in gross terms and taxation would be payable on any amount determined by the Commission.
Conclusions on remedy
Having regard to the circumstances of this matter, applied to the considerations established by s.392 of the FW Act, I consider that it is appropriate to make an award of compensation to Dr Lynd-Stevenson in lieu of reinstatement. Further, I consider that the compensation should amount to $65,499 given the circumstances of this case and the terms of the legislation.
Conclusions and Orders
I have found that Dr Lynd-Stevenson’s dismissal was unfair given all of the circumstances.
I have concluded that having regard to the considerations established by s.392 of the FW Act, it is appropriate that an award of compensation be made as outlined above. The compensation, less any required deduction of taxation, is to be paid by Flinders University to Dr Lynd-Stevenson within 14 days of this decision.
An Order[104] to give effect to this decision is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
D Mahendra (of counsel) with D McGill, with permission, for Dr Robert Lynd-Stevenson.
L Saunders (of counsel) with J Zadel, with permission, for Flinders University.
Hearing details:
2018
Adelaide
27, 28 and 29 August.
[1] Exhibit A2, p. 468.
[2] Section 382 of the FW Act.
[3] Flinders University is not a small business within the meaning of the FW Act.
[4] Section 389 of the FW Act.
[5] Having consulted with the parties, I determined that the matter should be subject to a formal hearing (ss.397, 398 and 399 of the FW Act).
[6] Exhibit A2.
[7] Exhibit A1.
[8] Exhibit A3.
[9] Exhibit R1.
[10] Exhibit R2.
[11] Exhibit R3.
[12] Exhibit R4.
[13] Exhibit A2, p. 115.
[14] Exhibit R3, pp. 1-3.
[15] Exhibit R3, p. 4.
[16] Exhibit R3, pp. 8-21.
[17] Exhibit R3, pp. 22-25.
[18] Exhibit A2, pp. 150-152.
[19] Exhibit R3, pp. 29-30.
[20] Exhibit R2, pp. 12-13.
[21] Exhibit R3, pp. 33-34.
[22] Exhibit R2, p. 10.
[23] Exhibit A2, pp. 249-259.
[24] Exhibit R2, p. 20.
[25] Exhibit R2, p. 23.
[26] Exhibit R2, pp. 30-31.
[27] Exhibit R2, p. 33.
[28] Exhibit R2, pp. 34-35.
[29] Exhibit R2, pp.36-37.
[30] Exhibit R4, p. 503.
[31] Exhibit A2, pp. 291-315.
[32] Exhibit R4, p. 547.
[33] Exhibit R4, p. 549.
[34] Exhibit R4, p. 548.
[35] Exhibit R4, pp. 550-551.
[36] Exhibit R4, p. 557.
[37] Exhibit R4, p. 562.
[38] Exhibit R4, p. 573.
[39] Exhibit A2, pp. 395-398.
[40] Exhibit A2, pp. 400-404.
[41] Exhibit A2, pp. 405-406.
[42] Exhibit A2, pp. 407-426.
[43] Ibid.
[44] Exhibit A2, pp. 427-446.
[45] Ibid at pp. 430-443.
[46] Exhibit A2, pp. 447-449.
[47] I have taken these provisions from the 2014 Enterprise Agreement noting that the 2011 warning and related processes occurred under an earlier agreement (Flinders University Enterprise Agreement 2010 to 2013) the terms of which were substantially in the same form with a few minor exceptions that are not significant in the present matter.
[48] Flinders University Enterprise Agreement 2014 to 2017, cl.11.
[49] Ibid at cl.14.
[50] Professor Tharenou, transcript at PN1916 – PN1917, Exhibit R4 at pp. 412 – 413.
[51] Flinders University Enterprise Agreement 2014 to 2017, Schedule 11.
[52] Including in clause C14.2 of the Agreement.
[53] Exhibit R4, p. 94.
[54] Professor Wade, transcript at PN1449.
[55] Exhibit A2, pp. 150-152.
[56] Exhibit A2 at pp. 21-23.
[57] Exhibit A2 at pp. 23-24.
[58] Exhibit A2 at p. 285.
[59] Exhibit R4 at paragraph 44.
[60] Exhibit A2 at 278-279.
[61] Exhibit A2 at 280.
[62] Professor Wade, transcript at PN1576.
[63] Dr Lynd-Stevenson, transcript at PN870.
[64] The evidence of Professor Wade.
[65] Exhibit R3 at pp. 26-27.
[66] Ibid and in subsequent correspondence.
[67] Exhibit R3 at p. 29.
[68] Professor Wade, transcript at PN1534.
[69] Exhibit R4.
[70] Professor Nicholls, transcript at PN2211-PN2214.
[71] Exhibit R4, pp. 483-484.
[72] Ibid.
[73] Dr Lynd-Stevenson, transcript at PN632.
[74] Exhibit R4, p. 548.
[75] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].
[76] Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.
[77] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].
[78] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.
[79] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
[80] The basis for this is explained in the evidence of Professor Wade including the documentation in exhibit R2 at p. 18 and 19 and associated correspondence exchanged with Dr Lynd-Stevenson and that provided by Professor Nicholls in May 2017 – exhibit R4 at p. 559 and following.
[81] See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
[82] RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
[83] See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
[84] Section 170CG(3)(d) of the Workplace Relations Act 1996.
[85] AIRC Print S9280, per Ross VP, Williams SDP and Blair C, 21 August 2000. See also Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000.
[86] The research policy changed in June 2016 to pick up the HERDC specifications.
[87] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
[88] Reliable Petroleum Pty Ltd v Mr Fraser Murray[2017] FWCFB 5843 at [17].
[89] See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
[90] See s.386(2)(c) of the FW Act.
[91] See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.
[92] AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.
[93] [2014] FWCFB 1949.
[94] Ibid at [49] to [51].
[95] Ibid at [60].
[96] [2014] FWCFB 7198.
[97] [2015] FWCFB 873.
[98] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431.
[99] Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
[100] McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873.
[101] There is no evidence of notice being paid after termination. In any event, the deduction of any notice payment would not in the circumstances evident here impact upon the final compensation figure.
[102] See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.
[103] Section 392(5) of the FW Act.
[104] PR700303.
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