Saifullah Dewan v University of Canberra
[2017] FWCFB 3937
•7 SEPTEMBER 2017
| [2017] FWCFB 3937 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
University of Canberra
(C2017/3872)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2017] FWC 3383 of Deputy President Kovacic at Canberra on 23 June 2017 in matter number U2016/13221.
Introduction
[1] Dr Saifullah Dewan has applied for permission to appeal and appealed a decision of Deputy President Kovacic issued on 23 June 2017 1 (Decision). In the Decision, the Deputy President found that Dr Dewan’s dismissal by the University of Canberra (University) was not unfair, and dismissed his application for an unfair dismissal remedy. The crux of the Decision was that the Deputy President found, for the purpose of s.387 of the Fair Work Act 2009 (FW Act), that Dr Dewan’s work performance constituted a valid reason for his dismissal and the performance improvement process employed by the University afforded Dr Dewan procedural fairness.
Background
[2] Dr Dewan commenced employment with the University on 1 July 2012 as Assistant Professor in Information Systems in the University’s Faculty of Information Sciences and Engineering. The University of Canberra Academic, General and UCELI Enterprise Agreement 2009-2012 (2009 Agreement) applied to his employment at its commencement.
[3] Dr Dewan was employed on a “contingent continuing” full-time basis. Clause D1.1 of the 2009 Agreement provided that contingent continuing employment was employment which was:
“… subject to the employee reaching certain milestones within the first 7 years before the employment becomes continuing. This type of employment will be used solely for the Assistant Professor classification (see Schedule 7).”
[4] Amongst other things, cl.6 of Schedule 7 of the 2009 Agreement provided that, for persons classified as Assistant Professors, the University could on appointment nominate up to two dates at which the University could institute procedures for termination of employment on the grounds that, in the University’s view, the employee in question was not likely to obtain promotion to Level D (Associate Professor) by the end of the review period. The review dates identified by the University in Dr Dewan’s letter of appointment for the purpose of this provision were 27 August 2015 and 24 August 2017. To be promoted to Level D, Dr Dewan needed to achieve two “significant” ratings and one “outstanding” rating in the three assessment criteria of teaching, research, and service & engagement at the time he applied for promotion at the end of the review period.
[5] On 23 December 2013, the 2009 Agreement was replaced by the University of Canberra Enterprise Agreement 2013-2015 (2013 Agreement). Clause D8 of the 2013 Agreement dealt with persons appointed as Assistant Professors. Clauses D8.6 and D8.7 provided:
“Additional Reviews During the Review period
D8.6. The University may upon appointment nominate two dates (or one date if the review period is less than 5 years), which shall be at least 2 years apart (if there are 2 dates), at which date the University may institute procedures for termination of employment on the ground that in the University's view the employee is not likely to obtain promotion to Level D by the end of the review period.
D8.7. The procedures for dealing with such an allegation shall be those provided for dealing with an allegation of unsatisfactory performance, except that the notice period for improvement of performance shall not be less than 6 months, and the sum of any notice period of termination and any severance payment shall be not less than 6 months.”
[6] The procedures for dealing with an allegation of unsatisfactory performance in the 2013 Agreement were set out in a table in clause G2. The table identified 16 separate steps in the process. The first step was described as “Initiation of action”, and initially required the identification of the unsatisfactory performance by the supervisor, a discussion between the supervisor and manager of the steps, if any, taken so far to remedy the problem, and counselling of the staff member by the supervisor. It then required the preparation of a performance improvement plan (PIP) in the following terms:
“The nature of the improvement required will be documented, along with any directions for appropriate training/development designed to assist in improving performance, and the notice period within which improvement will be expected.”
[7] The “notice period” referred to was specified to be up to a maximum of six months in relation to Academic staff. The second step, “Consequences” then required the “document” (that is, the PIP) to be discussed with the staff member, a copy to be provided, and the staff member to be cautioned that if no improvement had been made by the end of the notice period, a report would be issued to the “RO” (Responsible Officer) and the Vice Chancellor through the relevant Deputy Vice Chancellor. The process led to the possibility of notice of termination being given at step 8 and, after the completion of a review process, termination of employment at step 15.
[8] Dr Dewan’s first Assistant Professor Review (AP Review) was held on 13 August 2015 in conjunction with his 2015 annual Performance Development Review (PD Review). At the AP Review meeting, Dr Dewan was informed that, on his current trajectory, he was unlikely to be promoted to Associate Professor at the end of the review period.
[9] On 30 November 2015, Dr Dewan was sent a letter headed “Outcome of Assistant Professor Review 2015”. The letter informed Dr Dewan that, as it had been determined that he was unlikely obtain promotion to Level D by the end of his review period, his supervisor would commence the performance management process set out in Clause G2 of the 2013 Agreement. The letter explained that the process would commence with a meeting with his supervisor, who would counsel him on the areas of performance requiring improvement. He was told that this would lead to the development of a PIP designed to assist him to meet the requirements of an Assistant Professor contract. He was expressly warned that, should his performance not improve to the level required, the University might proceed to terminate his employment.
[10] On 2 December 2015, a meeting was held with Dr Dewan to discuss the PIP process.
[11] On 18 February 2016, the 2013 Agreement was replaced by the University of Canberra Enterprise Agreement 2015-2018 (2015 Agreement). Clause 2.3 of the 2015 Agreement provides that it wholly displaces any other agreement. Clause 43 of the 2015 Agreement retained the contingent continuing employment arrangement for Assistant Professors, but with some alterations. Clause 43.5 provides (emphasis added):
“43.5 The University may, upon employment, nominate two (2) dates (or one (1) date if the contingent period is less than five (5) years), at least two (2) years apart, at which date the University may carry out a review of the assistant professor's performance ('Contract Review'). The purpose of the Contract Review is to assess the assistant professor's performance and determine whether it is "likely" or "unlikely" the assistant professor will obtain promotion to Level D by the end of the contingent period. Following a Contract Review, the University may initiate an underperformance process or take steps to terminate the employment of the assistant professor, on the basis they have been assessed as "unlikely" to obtain promotion to Level D.”
[12] Schedule 7 of the 2015 Agreement also contains an altered performance management process. Clause 13.1 of Schedule 7 provides:
“13.1 The University's preference is for early intervention when dealing with instances of underperformance and accordingly, adopts a 'no surprises' approach. Managers and supervisors are expected to discuss performance issues with their Employees as they arise and work to resolve them as expeditiously as possible. Such actions might include:
(a) discussing the matter informally with the Employee;
(b) arrange performance counselling for the Employee;
(c) review the Employee's PDR/PEAS; or
(d) undertake any other informal action that is appropriate.”
[13] The actual performance management process set out in clause 14 of Schedule 7 contains 4 stages. For academic staff, the first two stages are as follows:
“Stage 1 – Informal Counselling
1. The Employee's supervisor identifies that the Employee is underperforming.
2. The supervisor will arrange to have a meeting with the Employee to discuss their underperformance.
3. The Employee will be given an opportunity to respond and to indicate whether there are any mitigating circumstances that might be impacting on the Employee's performance. It may be appropriate to make temporary adjustments to the Employee's working arrangements to assist them in particular circumstances, such as reduced hours or flexible working arrangements.
4. The supervisor and Employee will discuss measures that may be taken to improve the Employee's performance, including any training or development opportunities that may assist the Employee. The supervisor will, unless is it obviously not required in the circumstances, set down a date in the future to meet again to review the Employee's progress against the measures identified.
5. The supervisor will make a file note of the discussion and provide a copy to the Employee.
Stage 2 – Performance Improvement Plan/Milestones
1. The supervisor will arrange to have a further meeting with the Employee to discuss their performance.
2. The Employee may elect to have a support person attend any formal discussion. The University is not required to agree to undue delays in the discussion occurring because of the unavailability of the Employee's chosen support person. The role of the support person is to provide emotional and/or moral support to the Employee, but must not participate or represent the Employee in discussions.
3. The supervisor will advise the Employee that their performance has not improved and that more formal measures are required to assist the Employee to improve their performance.
4. The supervisor and Employee will discuss and agree on a period of time in which the Employee's performance will be measured against key milestones, relevant to the Employee's position and duties.
5. If the Employee refuses to participate in the milestone discussion process, the supervisor may refer the matter to the DVC for further action, which may include formally counselling the Employee.”
[14] Significantly, clause 11.2 of Schedule 7 provides:
“11.2 A decision made, or step taken, in relation to concerns about an Employee's performance is not invalid only because it is inconsistent with these processes.”
[15] On 25 February 2016, Dr Dewan received a letter inviting him to a meeting the following day. Attached to that letter was a copy of the proposed PIP. The letter stated that the PIP was in draft form and would be finalised until following the meeting with Dr Dewan. The proposed PIP included around 20 “measures of improvement” which are referred to as “milestones” in the Decision (PIP milestones). The letter warned that the PIP would be reviewed six months after its commencement, and if Dr Dewan’s performance did not improve his employment might be terminated. The proposed PIP identified an expectation of performance in respect of the three criteria of teaching, research and service and engagement as follows:
“To achieve an overall standard of significant when assessed at the end of the PIP, commensurate with the current trajectory that will support promotion at the end of seven years”
[16] At the meeting to discuss the PIP on 26 February 2016, Dr Dewan raised an issue about the six month period of the PIP, but was told (in effect) that this was not up for negotiation. He did not raise any concerns regarding the PIP milestones at the meeting (although Dr Dewan’s evidence was that this was because he was not invited to do so). The PIP then commenced in operation, and PIP review meetings were held with Dr Dewan on 31 March 2016, 5 May 2016, 16 June 2016 and 2 September 2016.
[17] At a meeting held on 19 September 2016 to discuss his PIP outcome, Dr Dewan was provided with a letter which summarised his performance against the PIP. The letter recorded that his performance against the PIP objectives for Teaching and Research had been assessed as unsatisfactory, and advised that the Deputy Vice Chancellor Education would be informed of the outcome so as to consider whether termination of employment was an appropriate outcome in the circumstances.
[18] On 27 September 2016 a meeting was held with Dr Dewan, and he was handed a “Show Cause” letter which formally advised him that the University was considering the termination of his employment, and invited him to respond by 5 October 2017. Dr Dewan provided a response on 5 October 2016. His response totalled 283 pages and comprised a covering letter of 18 pages and 14 Annexures.
[19] On 13 October 2016, Dr Dewan was dismissed with immediate effect, and was paid three months’ pay in lieu of notice. The dismissal letter read as follows:
“Re: Unsatisfactory Performance and Behaviour – Termination of Employment
I am writing to advise you of my decision in accordance with Stage 4 of Schedule 7 of the University of Canberra Enterprise Agreement 2015-2018, and to acknowledge and respond to your correspondence of 5 October 2016.
To the show cause letter Proposed Action
On 22 September 2016 I wrote to you to outline the outcomes of your Performance Improvement Plan (PIP), and afford you an opportunity to provide a response to the PIP Outcomes.
In our meeting of 27 September 2016 I informed you that the University was considering termination of your employment as a possible outcome, and asked you to show cause as to why your employment should not be terminated.
Your response to the PIP Outcomes
You provided a letter and additional material on 5 October 2016 in response to my correspondence of 27 September 2016 stating your case not to be terminated. In response to your letter I also requested further information from the Dean - Business Government & Law.
Termination of Employment
After consideration of all this information, I have determined that your performance to date and your PIP outcomes have not met the standards required. For these reasons I have made the decision to terminate your employment in accordance with Schedule 7 of the Agreement (Step 5 of Stage 4).
The termination of your employment is with immediate effect, and you will be paid three (3) months in lieu of notice in accordance with clause 38.2 of the Agreement.”
The Decision
[20] In his consideration under s.387(a) as to whether there was a valid reason for Dr Dewan’s dismissal, the Deputy President made the following findings concerning the PIP process in response to criticisms of that process raised by Dr Dewan at the hearing:
● given that Dr Dewan was required to achieve two “significant” ratings and one “outstanding” rating by the time he applied for promotion, it was not unreasonable that the PIP required Dr Dewan to demonstrate he was at least meeting the expectations for an Assistant Professor and in some areas exceeding these expectations; 2
● he was satisfied that the PIP milestones were achievable, having regard to Dr Dewan’s indication at the AP Review meeting on 13 August 2015 that he had a number of papers underway, the achievements which Dr Dewan identified in his revised AP Review documentation, and the fact that Dr Dewan at no stage questioned the reasonableness of the PIP milestones; 3
● the University’s failure to explicitly advise Dr Dewan of the need to achieve all of the PIP milestones did not materially disadvantaged Dr Dewan, as there was nothing to demonstrate that Dr Dewan would have done anything differently had he been so advised; 4
● while it was not in dispute that, in the assessment of Dr Dewan’s teaching performance, no regard was had to his preliminary InterFace Student Experience Questionnaire (ISEQ) results for semester 2 of 2016, there was no probative evidence that this would have resulted in a different assessment of his teaching performance, and given the assessment of his research performance it was difficult to envisage that the consideration of these results would have avoided his dismissal. 5
[21] The critical conclusions concerning whether there was a valid reason for the dismissal reached by the Deputy President were as follows:
“[61] While I acknowledge that Dr Dewan achieved the majority of the milestones specified in his PIP, it needs to be remembered that those milestones overwhelmingly reflected the expectations set out in the PEAS [Performance Expectations for Academic Staff] for an Assistant Professor. Achieving those milestones therefore would not of itself have put Dr Dewan on a trajectory for promotion to Associate Professor during the period of his engagement. In other words, Dr Dewan needed to do more and regrettably for him he was assessed as failing to do so and unlikely to do so during the period of his engagement. Based on the material before the Commission, that assessment is one that was reasonably open to UC. Further, Dr Dewan’s contention that he met the PIP milestones regarding research publications and income is not sustained in circumstances where documentary evidence was either not provided at the end of the PIP process (e.g. the $25,000 McCabes donation) or the target was simply not met (e.g. submission of 2 journal articles and evidence of acceptance by the journals or positive responses from the editors offering revise and resubmit – I note that Dr Dewan had evidence in respect of one journal article being at the revise and resubmit stage).
. . .
[64]Having regard to all the material before the Commission, the above analysis supports a finding that there was a valid reason for Dr Dewan’s dismissal based on the assessment that Dr Dewan was not on a trajectory to be promoted to an Associate Professor. Further, drawing on the language inRode 6, I am satisfied that the reason for Dr Dewan’s dismissal was defensible or justifiable on an objective analysis of the material before the Commission and that it was not ‘capricious, fanciful, spiteful or prejudiced.’”
[22] The Deputy President found, for the purpose of s.387(b) and (c), that Dr Dewan was notified of the reason for his dismissal and was given an opportunity to respond. He also found, for the purpose of s.387(e), that Dr Dewan had been warned about his unsatisfactory performance before the dismissal. In relation to s.387(h), the Deputy President addressed a submission made by Dr Dewan that he was not given the benefit of the counselling required in Stage 1 of the process for dealing with unsatisfactory performance in clause 14 of Schedule 7 of the 2015 Agreement. The Deputy President said:
“[90] Clause G2 of the 2013 Agreement which is referred to in Professor Pratchett’s letter to Dr Dewan of 2 December 2015 provided for counselling as part of the ‘Initiation of action’ process. The ‘Initiation of action’ step also included documenting the improvement required (the term PIP is not used in the clause). In short, the provision of counselling and documenting the improvement required are both elements of the initial stage of the managing underperformance process under the 2013 Agreement and could therefore notionally occur jointly. The 2013 Agreement was superseded by the 2015 Agreement which commenced operation on 18 February 2016. It is for this reason that the letter of 25 February 2016 refers to Schedule 7 of the 2015 Agreement. While Schedule 7 provides for informal counselling as the first stage of the managing underperformance process and prior to the development of a PIP, clause 11.2 of Schedule 7 provides as follows:
“A decision made, or step taken, in relation to concern about an Employee’s performance is not invalid only because it is inconsistent with these processes.”
[91] Be that as it may, the question that arises is whether the PIP process was flawed as a result of the absence of informal counselling. In my view it was not, as Dr Dewan was both advised of the performance issues identified in his APR and given adequate opportunity to address those issues through the PIP process.”
[23] On the basis that there was a valid reason for Dr Dewan’s dismissal, he had been notified of that reason and given an opportunity to respond, he had been warned about his performance before his dismissal and there were no other relevant matters, the Deputy President concluded that the dismissal was not harsh, unjust or unreasonable. 7
Grounds of Appeal
[24] Dr Dewan’s amended notice of appeal set out eight grounds of appeal as follows:
“The Deputy President:
(a) erred in law in failing to properly interpret the provisions of the University of Canberra Enterprise Agreement 2015-2018 (Enterprise Agreement) in particular those set out in clauses 17, 43 and Schedule 7 which, through informal counselling, entitled the Appellant to improve his performance with the assistance of his supervisor and the measures available as specified in Stage 1 of Schedule 7;
(b) erred in failing to recognise or give effect to the purpose of and procedures in Schedule 7 which, in the first instance, through informal counselling, entitled the Appellant to improve his performance with the assistance of his supervisor and the measures available as specified in Stage 1 of Schedule 7;
(c) erred in misconstruing the requirements of Schedule 7 in that being advised of performance issues in his AP Review did not and could not constitute the counselling envisaged in Stage 1 of Schedule 7;
(d) erred in failing to appreciate that the procedures set out entitled the Appellant to address the issues of underperformance through the informal counselling process in Stage 1 first, before the initiation of a performance improvement plan (PIP) process and erred in failing to recognise that being given the opportunity to address those issues through the PIP process alone was in conflict with the procedures set out in the Enterprise Agreement to manage underperformance;
(e) in failing to find in the circumstances that the respondent did not have a valid reason for the termination of the Appellant’s employment;
(f) in failing to find that in the circumstances the decision to terminate the Appellant’s employment was not sound, defensible or well-founded;
(g) in failing to find that the termination of the employment of the Appellant was harsh, unjust or unreasonable;
(h) in failing to find that the Respondent should reinstate the Appellant to his former position without loss of pay.”
[25] In summary, the first four grounds (a)-(d) assert that the Deputy President erred in failing to find that Dr Dewan was entitled to the benefit of the measures contained in Stage 1 of Schedule 7 of the 2015 Agreement, that these benefits were denied to him, and that consequently this made his dismissal unfair. The benefits said to have been denied to Dr Dewan were an additional period of time to achieve the required performance outcomes and additional support and assistance to achieve those outcomes. Grounds (e)-(h) appear to be consequential upon grounds (a)-(d).
[26] In support of its grounds of appeal, Dr Dewan submitted:
● the measures required by Stage 1 of Schedule 7 of the 2015 Agreement were not undertaken;
● the mere identification of performance issues which occurred at the meetings on 30 November and 2 December 2015 did not constitute the counselling required by Stage 1;
● the University was not entitled to rely upon the performance management procedures in the 2013 Agreement, since the 2015 Agreement came into place before Dr Dewan’s PIP commenced, it required compliance with Schedule 7, and there were no transitional provisions which preserved the operation of any part of the 2013 Agreement once it ceased to operate on 18 February 2016;
● the procedures set out in Schedule 7 were important because they concerned the future employment and career of the academic at the University and in the tertiary education sector generally, involved issues of academic reputation, and were intended to provide support to assist academics to reach the desired level of performance rather than operate in a punitive way;
● the operation of Stage 2 was premised on the requirements of Stage 1 having been undertaken, but Stage 2 was applied to Dr Dewan without him having had the benefit of Stage 1, which resulted in an inherently unfair procedure;
● the unfairness to Dr Dewan was illustrated by the fact that his PIP milestones included certain benchmarks concerning publication of research work, the evidence demonstrated that he had made considerable progress towards publication of research in the six month period, there were long lead times involved in having research published, and at the time of his AP Review the number of Dr Dewan’s indexed publications was more than the average for full-time academics in his faculty;
● Dr Dewan was deprived of the opportunity to improve his performance through the informal counselling procedure as provided in Stage 1 and was therefore prejudiced in respect of meeting the key measures in the short and predetermined period of six months set for the PIP;
● accordingly the University did not have a valid reason for terminating Dr Dewan’s employment, because the reason was not sound, defensible or well-founded, and there should have been a finding that the dismissal was unfair;
● the Deputy President failed to properly interpret and apply the provisions of clauses 17, 43 and Schedule 7, in that the mere advice of performance issues could not constitute the counselling envisaged in Stage 1, and failed to appreciate that Dr Dewan should have had the opportunity to address underperformance before the initiation of the PIP process and that merely being allowed to address the issues through the PIP process was in conflict with the procedures in the 2015 Agreement;
● the University could not consistent with the Agreement, and having deprived Dr Dewan of the benefits of Stage 1, have formed the view that he was unlikely to obtain promotion to Level D, or alternatively that the view so formed was the product of an inherently unfair process.
[27] Dr Dewan submitted that the grant of permission to appeal would be in the public interest because the Decision was the subject of significant and fundamental appealable error, including error concerning the construction of the 2015 Agreement, the Decision resulted in significant injustice, and the appeal raised issues likely to have significance for the tertiary education sector generally given that there are a substantial number of enterprise agreements with similar clauses and compliance with such clauses was in the public interest.
[28] The University submitted that:
● none of the grounds of appeal enlivened the public interest;
● the Deputy President considered Dr Dewan’s contentions concerning the requirements of Stage 1 of the performance management process in Schedule 7 of the 2015 Agreement, which at the hearing were raised in the context of s.387(h) and not in relation to whether there was a valid reason for dismissal under s.387(a);
● the Deputy President’s conclusion at paragraph [91] of the Decision that the PIP process was not flawed as a result of the absence of informal counselling was based on findings of fact which were not challenged in the appeal;
● there was accordingly no basis to depart from the conclusion that the lack of informal counselling did not disadvantage Dr Dewan;
● Dr Dewan had not identified any appealable error in the way the Deputy President interpreted and applied the relevant enterprise agreements;
● the 2013 Agreement was in effect at the time the decision to place Dr Dewan on a performance management process was advised (30 November 2013), there was no requirement in that agreement for prior informal counselling, and the requirements concerning the performance management process in the 2013 Agreement were applicable;
● once the 2015 Agreement commenced operation on 18 February 2016, the decision to place Dr Dewan on a PIP had already been taken, and all that remained was to implement the PIP in accordance with Stages 2 and 3 of the process in Schedule 7 of the 2015 Agreement; and
● even if the University was required to start the performance management process again once the 2015 Agreement came into effect, clauses 11.1 and 11.2 indicated that the specified procedures did not have to be followed inflexibly and that decisions could be made inconsistently with the process without leading to invalidity.
Consideration
[29] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[30] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[31] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 9 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment10. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 11
[32] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 12 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.13
[33] The critical proposition founding Dr Dewan’s appeal is that, when the 2015 Agreement took effect on 18 February 2016, the University was required to follow the entirety of the performance management procedures specified in Schedule 7 of the 2015 Agreement, regardless of the steps which had already been taken in accordance with the different procedure in clause G2 of the 2013 Agreement. In substance, Dr Dewan contended that because there were no transitional provisions in the 2015 Agreement, the University was required to start again. That is an unattractive proposition. There is much to be said for the University’s alternate proposition that, because the University had already decided to place Dr Dewan on what was in substance a PIP (the 2013 Agreement did not actually refer to a PIP in terms) and advised him of this decision prior to the commencement of the 2015 Agreement, only those stages in the process specified in Schedule 7 of the 2015 Agreement which were applicable after that point were engaged (that is, paragraphs 4 and 5 of Stage 2 and Stages 3 and 4). The University’s approach is consistent with that taken by the Commission (Hatcher VP) in AWU v BlueScope Steel Limited 14 in relation to a question of whether consultation with employees had occurred in accordance with the provisions of the applicable enterprise agreement in circumstances where the consultation had begun under one enterprise agreement but had continued under a replacement enterprise agreement in which the relevant provision had undergone alteration. The Commission said:
“[61] However that is not the end of the matter, because the BlueScope proposal for Despatch operators to perform other duties in the PFD was initiated at a time when the 2012 Agreement was in effect, with the consultation process then continuing beyond 25 November 2015 when the 2015 Agreement took effect. It is plain that the 2015 Agreement could not have retrospective effect, and no party contended otherwise. The 2015 Agreement does not contain any transitional provisions in relation to the introduction of significant changes first proposed prior to the 2015 Agreement taking effect. Therefore it is necessary to approach the matter on the basis that the relevant provisions of the 2012 Agreement applied to those stages of the introduction of the proposed changes which occurred prior to 25 November 2015, and the 2015 Agreement applied to those stages which occurred on or after 25 November 2015. The most significant consequence of this approach is that the “first phase” of consultation prior to “Letter 1” introduced by the 2015 Agreement has no application to a proposed change in relation to which a “Letter 1” was issued prior to 25 November 2015.”
[34] Notwithstanding this, we shall assess the merits of Dr Dewan’s appeal on the assumption that his foundational proposition is correct.
[35] Although trite, it needs to be stated at the outset that the proceedings before the Deputy President were not concerned with whether the University in some respect contravened the 2015 Agreement, but whether Dr Dewan’s dismissal was harsh, unjust or unreasonable having regard to the matters specified in s.387 of the FW Act. If the 2015 Agreement had actually prohibited the dismissal, then the position might be different, since it would be difficult to resist the proposition that an unlawful dismissal is necessarily an unjust or unreasonable one. However, there was no such prohibition; clause 11.2 of schedule 7 makes it clear that a deviation from the prescribed process does not operate to invalidate the dismissal. A finding that the 2015 Agreement was breached therefore cannot be determinative of Dr Dewan’s application, and is only relevant, if at all, to the extent that it impacts on the fairness of Dr Dewan’s dismissal.
[36] Dr Dewan first contended that his foundational proposition meant that the Deputy President’s conclusion that there was a valid reason for his dismissal was necessarily in error because Dr Dewan did not receive the benefit of the informal counselling which was required in Stage 1 of the 2015 Agreement’s performance management process. That cannot be accepted. Whether there is a valid reason based on conduct or capacity for the dismissal under s.387(a) is assessed from the employer’s perspective, so that the reasons considered are the employer’s reasons (which may be those given at the time of the dismissal and/or those relied upon as the result of information subsequently acquired by the employer). Matters of process which impact upon procedural fairness fall to be considered under s.387(b) and (c) and, in the case of dismissal for unsatisfactory performance, s.387(e). Other mitigating factors demonstrative of a dismissal being harsh may be taken into account as relevant matters under s.387(h). 15 In this case the reason for the dismissal was that, by the end of the PIP, Dr Dewan was not assessed as meeting the required performance standard, namely being on a trajectory for promotion to Associate Professor at the end of his employment period. Dr Dewan did not contend in his appeal that this performance standard, which was derived from the three enterprise agreements which applied during the course of his employment, was inappropriate or unfair. The Deputy President accepted that, at the time of his dismissal, Dr Dewan was not meeting the required performance standard.16 Dr Dewan did not contend in his appeal that this conclusion was incorrect and that the Deputy President should have found that Dr Dewan was in fact on a trajectory for promotion at the time of his dismissal. That can only lead to the conclusion that the reason for dismissal was a valid one. Dr Dewan’s contention that the performance management process applied by the University meant that he did not get a fair and proper opportunity to meet that standard did not properly arise for consideration, we consider, under s.387(a).
[37] The findings made by the Deputy President in relation to procedural fairness matters under s.387(b), (c) and (e) were not challenged by Dr Dewan.
[38] The Deputy President considered the issue of a possible failure to provide informal counselling contrary to the requirement of Stage 1 of the 2015 Agreement procedure under s.387(h). That was, we consider, the correct approach. In doing so, it is significant that the Deputy President was prepared to proceed on the basis that the informal counselling provided for in Stage 1 had not occurred, and assessed whether the process was flawed as a result. His conclusion was that it was not “as Dr Dewan was both advised of the performance issues identified in his AP Review and given adequate opportunity to address those issues through the PIP process”. 17
[39] Dr Dewan’s appeal focused on the commencement of the PIP in February 2016 after the failure to provide informal counselling beforehand. However it must be remembered that as early as 13 August 2015, 14 months before the dismissal, Dr Dewan was advised that he was not on a trajectory for promotion (and thus not meeting the performance standard). Thus, notwithstanding the apparent lack of any informal counselling, Dr Dewan had a period of six months even before the PIP commenced to improve his performance to the required level.
[40] It is also significant that under clause 43.5 of the 2015 Agreement, the University was not required to apply the performance management process in Schedule 7 at all once it had determined in the 2015 AP Review that Dr Dewan’s performance had not met the required standard. Clause 43.5 gave the University the option of simply proceeding to terminate Dr Dewan’s employment at that point. That puts any failure to provide the Stage 1 informal counselling into perspective, since it was open to the University to dismiss Dr Dewan immediately without providing such any counselling or any subsequent PIP process, without being in breach of the 2015 Agreement. Having regard to the earlier findings made by the Deputy President that the PIP milestones were appropriate and achievable, we do not consider that it is reasonably arguable that the Deputy President’s conclusion that the process adopted by the University gave Dr Dewan an adequate opportunity to meet the required performance standard was incorrect. Having earlier found that there was a valid reason for dismissal and that procedural fairness was afforded to Dr Dewan, it was clearly open to the Deputy President to conclude that the dismissal was not harsh, unjust or unreasonable.
[41] We are not persuaded that Dr Dewan’s grounds of appeal raise an arguable case of error in the Deputy President’s exercise of his discretion of the kind discussed in House v King 18 or that for any other reason the Decision is attended by sufficient doubt to warrant its reconsideration. We also do not consider that an arguable case has been made out that the Deputy President's conclusion was unreasonable, manifested any injustice or was counter-intuitive. We are not persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. It is not necessary for us to resolve the issue of the interpretation of the 2015 Agreement raised by Dr Dewan because, for the reasons we have given, the appeal lacks merit even if that issue were resolved in Dr Dewan’s favour.
[42] None of the matters on which Dr Dewan relies as public interest grounds persuade us that the public interest is enlivened. We are not satisfied that it would be in the public interest to grant permission to appeal, and accordingly permission is refused as required by s.400(1) of the FW Act.
VICE PRESIDENT
Appearances:
H. Dixon SC and N. Dewan of Counsel on behalf of Saifullah Dewan.
N. Moy on behalf of the University of Canberra.
Hearing details:
2017.
Sydney:
9 August.
1 [2017] FWC 3383
2 Decision at [52]
3 Decision at [53]
4 Decision at [56]-[60]
5 Decision at [62]-[63]
6 Rode v Burwood Mitsubishi Print R4471, 11 May 1999
7 Decision at [94]-[95]
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
9 (2011) 192 FCR 78 at [43]
10 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
11 [2010] FWAFB 5343, 197 IR 266 at [27]
12 Wan v AIRC (2001) 116 FCR 481 at [30]
13 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
14 [2016] FWC 3848
15 B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191, 238 IR 1 at [34]-35], [42]-[43]; Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [25]-[27]
16 Decision at [51]-[64].
17 Decision at [91]
18 [1936] HCA 40; (1936) 55 CLR 499
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