Saifullah Dewan v University of Canberra
[2017] FWC 3383
•23 JUNE 2017
| [2017] FWC 3383 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Saifullah Dewan
v
University of Canberra
(U2016/13221)
| DEPUTY PRESIDENT KOVACIC | CANBERRA, 23 JUNE 2017 |
Application for relief from unfair dismissal - harsh, unjust or unreasonable – dismissal found to be fair, application dismissed.
Dr Saifullah Dewan (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 2 November 2016 alleging that the termination of his employment by the University of Canberra (UC – the Respondent) on 13 October 2016 was unfair.
The application was heard on 3, 4 and 5 April 2017. At the conclusion of the hearing a timetable was agreed for the provision of written closing submissions, with the Applicant’s submissions in reply received by the Commission on 1 May 2017.
At the hearing, Mr Robert Goot AM SC of Counsel appeared with permission for Dr Dewan, while Mr Nathan Moy appeared with permission for UC.
Dr Dewan gave evidence on his own behalf together with Dr Dale Kleeman, a Senior Lecturer in Information Systems at UC. Evidence was given for UC by Mr Philip Bacon, a Human Resources Business Partner at UC; Professor Lawrence Pratchett, Dean of the Faculty of Business, Government and Law at UC (the Faculty in which Dr Dewan worked prior to his dismissal); Professor Nicholas Klomp, UC’s Deputy Vice-Chancellor (Academic) and Professor Monir Mir, the Acting Head of the School of Information Systems and Accounting at UC and Dr Dewan’s supervisor during the performance improvement plan (PIP) process involving Dr Dewan.
For the reasons outlined below, I have found that Dr Dewan’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed.
Background
Dr Dewan commenced employment with UC on 1 July 2012 as an Assistant Professor in Information Systems in the Faculty of Information Sciences and Engineering. Dr Dewan was employed under the University of Canberra Academic, General and UCELI Enterprise Agreement 2009-2012[1] (the 2009 Agreement) on a contingent continuing full-time basis. By way of background, clause D1.1 of the 2009 Agreement which deals with types of employment provided as follows in respect contingent continuing employment:
“Contingent continuing employment, which is employment on a full-time or part-time basis and is 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).”
Among other things, Schedule 7 of the 2009 Agreement provided that:
SCHEDULE 7
…6. Additional Reviews During the Review period
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.”
The review dates (as per clause 6 of Schedule 7 of the 2009 Agreement) specified in UC’s offer of employment to Dr Dewan were 27 August 2015 and 24 August 2017.
Dr Dewan’s first Assistant Professor Review (APR) was held on 13 August 2015 and was conducted by Professors Miliszewska (who at that time was the Head of School of Information System and Accounting) and Professor Pratchett. The APR was conducted in conjunction with Dr Dewan’s 2015 annual Performance Development Review (PDR). At the APR meeting, Professor Pratchett advised Dr Dewan that on his current trajectory he was unlikely to be promoted to Associate Professor at the end of his contract.
Professor Pratchett’s and Professor Miliszewska’s comments as to why they considered Dr Dewan not likely to obtain promotion to Level D by the end of his review period were reflected in the Assistant Professor Review Form as follows:
“Teaching – Saif’s teaching is of an appropriate standard but there is no evidence of innovation. Over the next few years he will need to focus on how we can bring new ideas to his teaching.
Research – The research performance to date is limited. Saif will need to raise his game significantly in relation to journal publications. He has several under-development [sic], including a revise and resubmit with Decision Support Systems and the Panel strongly recommend that he focuses on these publications as a priority over the next year or so. At present, there is no sign of him being able to attract research income. Bids will need to follow successful publications as he builds a reputation.
Engagement – Saif does the bear [sic] minimum terms of contribution to the Faculty and his external links do not appear to support the University goals. He will need to show more engagement and leadership over the next few years.
Overall, Saif needs to raise his game significantly. H(e) clearly has the capacity to do so and also the time. However, at the current trajectory, the panel do not deem it likely that he will gain promotion at the end of his contract.”[2]
On 30 November 2015 Mr Bacon sent an email to Dr Dewan which had attached to it a letter headed “OUTCOME OF ASSISTANT PROFESSOR REVIEW 2015”[3]. The letter incorrectly stated that it was to confirm the outcome of Dr Dewan’s second APR (though this error is not material in the context of this matter) and included the following:
“The purpose of the Assistant Professor Review, in accordance with Clause D8 of the University of Canberra Enterprise Agreement 2013-2015, is to determine whether you are likely, or not likely, to obtain promotion to Level D in accordance with the University’s academic promotion process by the end of your review period.
The Central Review Committee, having taken into consideration your Faculty Review
Committee’s recommendation, has made the determination the [sic] you are not likely to obtain promotion to Level D by the end of your review period.
As a result of this determination you will be contacted by your supervisor to commence the procedure under Clause G2 – Unsatisfactory Performance: All Staff, as outlined in the Agreement. This process commences with a meeting with your supervisor who will counsel you on the areas of performance requiring improvement. This will lead to the development of a Performance Improvement Plan (PIP). A template for the PIP can be found on the HR website under employment conditions.
The PIP will be designed to assist you to meet the requirements of an Assistant Professor contract. However, should your performance not improved to the level required, the University may proceed to termination of your employment as per Clause D8 on the grounds that in the University’s view you are not likely to obtain promotion to Level D by the end of the review period.” (Underlining added)
Clause G2 of the University of Canberra Enterprise Agreement 2013-2015[4] (the 2013 Agreement) outlines the process for the management of underperformance. In respect of the first stage of the process, i.e. initiation of action, the clause provides for the following steps in respect of academic staff:
· unsatisfactory performance is identified by supervisor;
· supervisor counsels staff member;
· 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; and
· the notice period for academic staff members may be up to six months.
On 2 December 2015 Dr Dewan met with Professor Miliszewska and Mr Bacon to discuss the PIP process. Subsequent to that meeting, Professors Miliszewska, Mir and Pratchett and Mr Bacon collaborated on the development of a proposed PIP.
On 25 February 2016 Dr Dewan received a letter from Professor Pratchett inviting him to a meeting the following day. Attached to that letter was a copy of the proposed PIP. The letter included the following:
“Unsatisfactory Performance
As a result of your Assistant Professor Review outcome it has been determined that there are sufficient concerns regarding your performance to warrant a more formal process in accordance with Clause 17 and Schedule 7 of the University of Canberra Enterprise Agreement 2015-2018 (the ‘Agreement’). A copy of the aforementioned sections of the Agreement is enclosed (Annexure A).
The issues that form the basis of the unsatisfactory performance, and the nature of improvement required, are detailed in the Performance Improvement Plan outlined in Annexure’s [sic] B of this letter. The contents of this correspondence are to be discussed at 2:30pm, on 26 February 2016. You are entitled to bring a support person to this meeting. In my absence, the meeting will be led by your Acting Head of School, Professor Monir Mir, with the Faculty’s HR Business Partner, Phil Bacon, in attendance. The Performance Improvement Plan attached at Annexure C is in draft form, and will be finalised following consultation at the aforementioned meeting.
The Performance Improvement Plan will be reviewed 6 months after its commencement. Should your performance not improve sufficiently over the aforementioned period I must caution you that, in accordance with Stage 4 of Schedule 7 of the Agreement, this may result in the termination of your employment.”[5] (Underlining added, emphasis otherwise as per original)
The proposed PIP attached to that letter included the following “Expectations of performance” in respect of teaching, research and service and engagement:
“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”[6]
The proposed PIP also included around 20 “Measures of improvement”[7] (referred to as milestones for the purposes of this decision).
Schedule 7 of the University of Canberra Enterprise Agreement 2015-2018[8] (the 2015 Agreement) sets out four stages for managing underperformance – i.e. informal counselling; performance improvement plan/milestones; review of performance improvement plan/milestones; and termination. In respect of academic staff, Stage 3 – Review of Performance Improvement Plan/Milestones provides as follows:
“1. The supervisor and Employee will meet at regular intervals to discuss the Employee’s performance against the key milestones agreed in Stage 2 above.
2. If, by the end of the agreed period in Stage 2, the Employee has not achieved the key milestones, the supervisor will advise the Employee that the University will be considering further action which may include termination of employment. (go to Stage 4)
3. If the Employee has met all the key milestones, the process will cease. The supervisor may make a note of the key issues for discussion at commencement of the next PEAS cycle.”
Professor Mir and Dr Dewan had PIP review meetings on 31 March, 5 May, 16 June and 2 September 2016[9].
Professor Mir emailed a spreadsheet summarising the outcomes of his various PIP review meetings to Professor Pratchett on 6 September 2016[10]. Professor Pratchett met with Professor Mir and Mr Bacon on 7 September 2016 to discuss the spreadsheet.
In subsequent developments, Dr Dewan met with Professor Pratchett on 19 September 2016 to discuss his PIP outcome. At that meeting Professor Pratchett provided Dr Dewan with a letter which summarised his performance against the PIP, with the letter forwarded to Professor Klomp later that day[11]. The letter read as follows:
“Re: Reviewing your Performance Improvement Plan – Considering further action
I am writing to advise you of next steps in relation to your Performance Improvement Plan (PIP) which ended on the 31st August 2016, and the process outlined in Schedule 7 of the Enterprise Agreement.
Reviewing your performance against the PIP objectives
The attached document provides an ongoing account of your progress against your PIP objectives throughout your performance improvement period. The following is a summary of how you are performed against the measures set out at the commencement of the PIP:Performance Improvement Area 1
In relation to the first performance improvement area – Teaching, your measurement of improvement required was clearly articulated in the attached document. After reviewing the attached document I reach your performance as:“Unsatisfactory”
Performance Improvement Area 2
In relation to the second Performance improvement area – Research, your measurement of improvement was clearly articulated in the attached document. After reviewing the attached document I reach your performance as:“Unsatisfactory”
Performance Improvement Area 3
In relation to the second Performance improvement area – Service & Engagement, your measurement of improvement was clearly articulated in the attached document. After reviewing the attached document I reach your performance as:“Satisfactory”
Considering further action
It is clear from the above that your performance has not improved to the required standard within the period of the PIP. I am, therefore, now implementing the next stage of the performance management as set out in Schedule 7 of the Enterprise Agreement.Stage 4 of Schedule 7 commences with the supervisor informing a Deputy Vice-Chancellor of the progress made against the milestones in order to consider next steps. As a consequence, I will be forwarding this correspondence and the attached PIP documents to the Deputy Vice-Chancellor Education to consider whether termination is an appropriate outcome in the circumstances.
Should the University wish to consider termination, you will be provided an opportunity to respond to all relevant material … Once the Deputy Vice-Chancellor has considered the evidence, a meeting will be organised with you shortly thereafter to discuss this matter further.
In the event that the Deputy Vice-Chancellor wishes to proceed with this meeting, you are invited to bring a support person should you wish …”[12]
On 27 September 2016 Dr Dewan met with Professor Klomp at which time he was handed a show cause letter. In advance of that meeting, Dr Dewan emailed Professor Klomp a package of materials designed to assist their discussion[13]. The show cause letter read as follows:
“Re: Show Cause
I am writing to formally advise you that the University is considering termination of employment.
Your performance against the PIP objectives
Your Dean’s correspondence to you of 19 September 2016 outlines the University’s concerns in relation to your performance, and your progress against each performance objective.
Proposed termination of employment
Stage 4 of process outlined in Schedule 7 of the University of Canberra Enterprise Agreement 2015-2018 (‘the Agreement) invites you to provide a considered response to your Dean’s correspondence. I invite you to show cause as to why your employment should not be terminated, in writing by Wednesday 5 October 2016.”[14]
On 5 October 2016 Dr Dewan responded to the show cause letter. His response totalled 283 pages and comprised a covering letter of 18 pages and 14 Annexures[15].
On 13 October 2016 Dr Dewan was dismissed with immediate effect. The termination 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.”[16]
The Applicant’s case
Dr Dewan submitted that his dismissal was harsh, unjust or unreasonable as the process followed by UC was flawed and his performance was at a level which did not warrant the termination of his employment. Beyond this, Dr Dewan contended among other things that:
· UC failed to follow the process that it required of itself for the management of underperformance by not providing informal counselling as required by the relevant enterprise agreement prior to placing him on a PIP;
· UC’s failure to follow its own process manifested unfairness to him and vitiated the whole PIP process;
· the PIP process was fundamentally flawed as he did not have to achieve two ‘significant’ rating and one ‘outstanding’ rating at the end of the PIP period but rather needed to be on a trajectory to be able to achieve those ratings at the time of his application for promotion to Associate Professor which he nominated as 2018;
· the PIP was infected by milestones which were unnecessarily high and onerous when they did not need to be, adding that the milestones were overly burdensome, inherently unfair and could not and did not produce a decision which was “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”;
· it was evident that the PIP had no regard whatsoever to the areas of poor performance identified in his APR;
· the template approach adopted by Professor Mir resulted in a PIP which was unfair to him and relevantly identical to the PIPs prepared for two other more senior academics;
· UC’s requirement that he achieve each and every milestone in the PIP and that a failure in one milestone was a failure in the whole PIP was inherently unfair;
· as he had achieved around 20 of the milestones contained in his PIP he ought to be regarded as on a. trajectory for promotion to Associate Professor;
· in finalising the PIP Professor Mir overlooked that his teaching had been assessed as “of an appropriate standard” in his APR;
· the research publications milestone in the PIP was not realistic, especially having regard to the time allowed to achieve the milestone; and
· having regard to his publication record and how it compared to that of other academics in the Faculty, it was harsh, unfair and unreasonable to be found that he was not on a trajectory for promotion to Associate Professor at least in relation to his research.
Dr Dewan’s Final Submissions in Reply rebutted just about every aspect of the Closing Submissions of the Respondent.
As to remedy, Dr Dewan sought reinstatement and orders under ss.391(2) and (3) of the Act (which deal with continuity of service and restoration of lost pay), adding that UC had failed to provide any proper basis for suggesting that reinstatement was not appropriate in this case.
In his witness statement[17] Dr Dewan set out, among other things, his academic background, his various PDR outcomes, a chronology of events over the period following his 2015 APR and up to and after his dismissal on 13 October 2016, including a detailed analysis of the PIP he was placed on and his performance against it. Among other things, Dr Dewan deposed that:
· his overall performance was rated as satisfactory in his 2012, 2013 and 2014 PDRs;
· at his 2015 APR meeting Professor Pratchett said words to the effect “on the current trajectory, you are unlikely to be promoted as Associate Professor at the end of your contract” and “Don’t be alarmed. You still have time to prepare for the promotion”;
· on 30 November 2015 he received an email from Mr Bacon which had attached to it his APR outcome letter;
· at the meeting of 26 February 2016 with Professor Mir and Mr Bacon to discuss the proposed PIP nothing was said to him which made him think that his job was at stake if he did not achieve each and every one of the milestones in the PIP;
· during that meeting Mr Bacon said words to the effect “… The PIP sets out the things that you need to improve on. Do not take it lightly – do as much as you can to improve, but at the end of the day, if you do not achieve all of them, we are not going to hold you for. For example, we understand that receiving funds is difficult”;
· after the final PIP meeting Professor Mir did not complete the assessment of his performance or provide him with a copy of his assessment report before it was submitted to Human Resources and/or Professor Pratchett, thereby denying him the chance to comment on Professor Mir’s assessment of his performance;
· during the course of the PIP, Professor Mir had never told him that his employment was in jeopardy, adding that had he done so he could have worked harder and tried to address whatever concerns Professor Mir might have had about his performance;
· he put together some materials for Professor Klomp which he delivered to his office on 26 September 2016, i.e. prior to the meeting on 27 September 2016, adding that he thought the purpose of that meeting was to discuss his performance and that if his performance was deemed to be unsatisfactory after that meeting he would be issued with a show cause notice;
· Dr Kleeman accompanied him to that meeting as his support person;
· at that meeting Professor Klomp handed him the show cause letter;
· he responded to the show cause letter on 5 October 2016;
· at no stage during the PIP was he informed that he had to achieve all the milestones to get a satisfactory grading or that if he failed to achieve any of them it would result in an unsatisfactory rating; and
· during his time at UC he did not know of anyone that was terminated in the middle of their continuing contingent employment contract.
Dr Dewan also tendered a second witness statement[18] in which he, inter alia, disputed aspects of Professors Mir, Pratchett and Klomp’s and Mr Bacon’s witness statements.
Key aspects of Dr Dewan’s evidence under cross examination were that:
· with regard to Clause 6 of Schedule 7 of the 2009 Agreement he understood the provision to mean that his employment could be terminated[19];
· in his 2014 PDR he was given feedback that he needed to step up his research efforts and that he needed to do more if he wanted to be an outstanding educator[20];
· he did not accept that as course convener he had overall responsibility for the quality of teaching in the units he convened[21];
· Professor Miliszewska said in the APR meeting of 13 August 2015 that she would be giving him a satisfactory rating in all three areas[22];
· he did not leave the APR meeting of 13 August 2015 with a clear understanding that his performance was not at standard, though he did walk away from that meeting knowing that he was not on the trajectory to be promoted at the end of his contract[23];
· he disputed that at the meeting of 2 December 2015 Mr Bacon went through the PIP process with him, explained that the PIP would run for six months and that his employment could be terminated if his performance did not improve, or indicate that the PIP would be presented in draft format for discussion[24];
· he had not had an opportunity to read the proposed PIP prior to the meeting of 26 February 2016 and with regard to that meeting disputed that Mr Bacon showed him the proposed PIP and said “these are the milestones you need to achieve” or that he said “If you don’t meet the milestones as the letter says you may be terminated” or that Mr Bacon and Professor Mir talked through each of the milestones in the PIP[25];
· at that meeting he did not challenge any of the milestones in the PIP, adding that he never challenged his bosses[26];
· he went into the meeting of 26 February 2016 thinking that his performance was satisfactory and that it was an opportunity for his performance to improve to put him on a trajectory to achieve promotion to the Associate Professor level, adding that he never agreed that he was underperforming such that his job was at risk[27];
· he did not read the PIP prior to the meeting of 26 February 2016[28];
· he accepted that the purpose of the milestones relating to teaching in the PIP were to get him on a trajectory to achieve a significant rating such that he could be promoted at the end of seven years[29];
· he did not challenge anything at the meeting of 26 February 2016[30];
· he agreed that he discussed the milestones in the PIP at the meeting of 26 February 2016 but disputed that he was told that each of the milestones had to be achieved, later adding that there was no discussion at all at the meeting about the measures of improvement (i.e. milestones) that were listed in the PIP[31];
· at the third PIP review meeting on 16 June 2016 he told Professor Mir that he had a $25,000 grant in progress, confirming that that was the extent of his discussion on the issue and that a Research Activity Pre-Clearance (RAPC) Form had never been prepared in respect of the grant[32];
· with regard to the final PIP review meeting on 2 September 2016, while he noted that the PIP required him to achieve 80 per cent on all measures in the Unit Satisfaction Survey (USS) as opposed to some measures or on average he did not accept that he did not achieve the milestone as he got an average USS score of 81 per cent[33];
· he did not provide any evidence other than a photograph of his teaching innovation (i.e. a hands-on kit for teaching) to Professor Mir at their 2 September 2016 meeting but did so after the meeting[34];
· with regard to the research publications milestone, he submitted two journal articles on 28 August 2016 and one other journal article on 27 August 2016, contending that he did meet the milestone of getting two articles either accepted for publication or with positive comments offering a revise and resubmit[35];
· with regard to the British Council grant application he only advised Professor Mir of the application at the final PIP review meeting on 2 September 2016, adding that he could not recall if he had any evidence to provide Professor Mir regarding the application[36];
· with regard to the $25,000 grant from McCabes Lawyers, as at 2 September 2016 he had no written evidence to provide to Professor Mir regarding the grant, adding that such evidence did not become available until 19 September when he received an email from McCabes confirming that they were willing to provide the $25,000[37];
· to the best of his knowledge, at the time of the hearing McCabes Lawyers had not yet made the $25,000 donation to UC though the offer remains open[38];
· by 19 September 2016 he knew that termination was actually on the cards[39];
· he could not recall meeting Professor Pratchett on 21 September 2016 and disputed Professor Pratchett’s evidence that in that meeting he asked him to withdraw his letter to Professor Klomp as he could lose his job[40];
· in the meeting with Professor Klomp on 27 September 2016 he did ask the Professor to retract the show cause letter[41]; and
· he did not express a view as to the reasonableness of the PIP milestones at the meeting of 26 February 2016 because he was not invited to do so[42].
Dr Kleeman in his witness statement[43] deposed that he was very surprised by UC’s decision to terminate Dr Dewan’s employment and that he wrote to the University’s Vice Chancellor on 14 October 2016 regarding the dismissal and a number of other contemporaneous dismissals. In his oral evidence, Dr Kleeman acknowledged that he had not at any point in time been Dr Dewan’s supervisor nor had he been involved in any formal capacity in Dr Dewan’s PDRs or 2015 APR. Dr Kleeman further acknowledged that his statement reflected his personal opinion. Dr Kleeman also explained in his testimony why he considered USS scores to be a very poor measure of teaching performance.
In my view, Dr Kleeman’s evidence was of little probative value given that it largely reflected his personal opinion. I have therefore attached little weight to it.
The Respondent’s case
UC submitted that Dr Dewan’s application should be dismissed for the following reasons:
(i)there was a valid reason for his dismissal related to his capacity to perform the duties of his position, namely that Dr Dewan did not meet the standard of performance required for a contingent continuing Assistant Professor;
(ii) consideration of the matters outlined in s.387(b)-(g) of the Act supported a conclusion that the termination of Dr Dewan’s employment was not harsh, unjust or unreasonable as he had been warned that his performance was not meeting the standards required, he had been placed on a six month PIP which provided him with a reasonable opportunity to demonstrate performance at the required standard and he had been notified of the potential reason for the termination of his employment and given ample opportunity to respond; and
(iii) none of the other reasons advanced by Dr Dewan, when considered objectively, demonstrated that the termination of his employment was harsh, unjust or unreasonable.
As to remedy, UC submitted that reinstatement was inappropriate as it would result in an underperforming employee being placed back into a high performing position in circumstances where inter alia:
(i) Dr Dewan was over four years and three months into his seven-year contract with the evidence showing that he was a long way from attaining one rating of ‘outstanding’ and two ratings of ‘significant’ in his PDR;
(ii) UC had lost confidence in Dr Dewan’s ability to perform his role on the basis that he was unable to achieve the required standard during the period of his employment; and
(iii) there was a risk that if reinstated Dr Dewan would immediately be placed on a PIP and find himself in the same position, i.e. facing dismissal, in six months’ time.
UC further submitted that Dr Dewan’s conduct during the matter provided further reason to form the view that he should not be reinstated, contending that Dr Dewan showed a marked lack of insight and an inability to honestly reflect on his own performance. UC also submitted that were Dr Dewan to be reinstated it would create an unproductive workplace in circumstances where he would be required to accept direction from his employer but had demonstrated an unwillingness to be reasonable or accept such direction.
In his witness statement[44] Mr Bacon set out his role in Dr Dewan’s PIP process and dismissal. Among other things, Mr Bacon deposed that at the 2 December 2015 meeting involving Professor Miliszewska, Dr Dewan and himself he went through the PIP process and explained all the steps in the process including the possibility of termination of employment, advising Dr Dewan that a PIP would be presented to him in draft format for discussion and it was expected that the process would start in the New Year.
Key aspects of Mr Bacon’s oral evidence were that:
· the purpose of the meeting on 2 December 2015 with Professor Miliszewska and Dr Dewan was to explain the process that would be initiated following the APR, including that he would be placed on a PIP in the New Year[45];
· he did not recall whether counselling was provided at that meeting[46];
· he subsequently prepared a draft PIP having regard to the outcomes of Dr Dewan’s APR[47];
· the process of developing a draft PIP with Professors Miliszewska and Mir was an iterative one[48];
· he did not amend the draft PIP in relation to research as a result of Professor Miliszewska’s comment that she was concerned that the research goals were a challenge[49];
· in the meeting of 2 December 2015 Professor Miliszewska did not counsel Dr Dewan but made him aware of his performance[50];
· the PIP did not change following the 26 February 2016 meeting involving Professor Mir, Dr Dewan and himself to discuss the proposed PIP[51]
· at the meeting of 26 February 2016 Dr Dewan was invited by Professor Mir to express an opinion as to whether he considered the milestones in the PIP reasonable, though Mr Bacon subsequently attested that he did not recall whether he or Professor Mir asked Dr Dewan about the reasonableness of the PIP milestones at that meeting[52];
· the duration of the PIP was not negotiable despite Schedule 7 of the 2015 Agreement requiring the relevant supervisor and employee to discuss and agree on a period of time in which the employee’s performance will be measured[53];
· it was his view that if Dr Dewan failed in one area of the PIP that he failed the PIP and that he told Dr Dewan this at the meeting on 26 February 2016, though he acknowledged this did not appear in his witness statement[54];
· he did not address himself to the practicality of the milestones in Dr Dewan’s PIP being achieved, leaving that to the Dean and the Head of School to make that assumption[55]; and
· he worked with Professor Mir in determining whether Dr Dewan had achieved or not achieved the milestones in the PIP[56].
Professor Pratchett deposed in his witness statement[57] inter alia that:
· the APR was a separate process to the annual PDR, adding that the PDR was to establish whether an academic’s performance was sufficient to meet the Performance Expectations for Academic Staff (PEAS) whereas the APR was looking at the capacity of the individual academic to get two significant ratings and one outstanding rating in three areas (i.e. teaching, research and service and engagement) by the time the individual applied for promotion;
· with regard to the APR discussion with Dr Dewan on 13 August 2015, Dr Dewan’s witness statement was consistent with his recollection of aspects of the meeting though he did not recall Professor Miliszewska saying what Dr Dewan attributed to her in paragraphs 60 and 61 of his first witness statement[58] (which included that she would assess Dr Dewan as satisfactory in all three areas for the purposes of his PDR);
· he could not see how Dr Dewan had left that meeting with the assumption that his performance was at standard or that there was anything other than serious concern regarding his performance;
· he reviewed the proposed PIP prior to finalising his letter of 25 February 2016 and was satisfied that the goals set out in the PIP were achievable, adding that in particular he looked at the publication milestone and formed the view that it could be achieved based on the discussion he had with Dr Dewan in August 2015 where Dr Dewan had indicated to him that he had articles at an advanced stage;
· on 7 September 2016 he met with Professor Mir and Mr Bacon to determine whether Dr Dewan had met the requirements of the PIP concluding that it was clear from the evidence that Dr Dewan had not done so;
· he met with Dr Dewan on 19 September 2016 to provide him with his assessment of the PIP outcome subsequently referring the matter to Professor Klomp who he advised that it was his view that Dr Dewan had not satisfied the terms of the PIP;
· on 21 September 2016 he again met with Dr Dewan at the latter’s request during which Dr Dewan pleaded with him to withdraw his letter of 19 September 2016 as he could lose his job;
· Dr Dewan’s recollection of the meeting with Professor Klomp on 27 September 2016 as reflected in his first witness statement[59] was largely correct;
· at some stage after Professor Klomp received Dr Dewan’s response to the show cause letter, Professor Klomp contacted him to ask whether he thought Dr Dewan’s employment should be terminated;
· he responded to Professor Klomp that he did not see how Dr Dewan would be able to meet the criteria for continuing employment, that he had not met the minimum requirements for an Assistant Professor, that he had failed to meet some of the fundamental requirements of the PIP and that in his opinion the University would continue to find Dr Dewan’s performance unsatisfactory in subsequent assessments and that he considered termination of employment to be the most appropriate outcome in this case; and
· on 6 October 2016 he prepared a response for Professor Klomp to Dr Dewan’s response to the show cause letter and again concluded that Dr Dewan’s performance was not satisfactory and that he was not confident that Dr Dewan would be able to raise his performance sufficiently.
Key aspects of Professor Pratchett’s oral evidence were that:
· he did not recall Professor Miliszewska saying at Dr Dewan’s PDR and APR meeting on 13 August 2015 that he would be rated as satisfactory in all three areas (i.e. teaching, research and engagement)[60];
· he understood that Professor Miliszewska would counsel Dr Dewan on the areas of performance requiring improvement[61];
· he expected that the PIP that was to be developed would relate to those areas of performance found wanting in Dr Dewan’s APR and that the development of the PIP would be a two-way process between Dr Dewan and his supervisor[62];
· nowhere in the documentation relating to the PIP was there a statement that if Dr Dewan failed in one milestone he had failed the process and that may result in the termination of his employment[63];
· he did not consider the first PIP milestone in respect of teaching to be unwarranted because if Dr Dewan’s USS score fell below 80 per cent he would be off the trajectory for promotion to Associate Professor[64];
· his recollection was that Dr Dewan’s declining USS results were discussed in the PDR conversation on 13 August 2015[65];
· he accepted that the response rate underpinning the USS scores relied upon in the PIP process was below average and was potentially unreliable because it was so low[66];
· he did not consider it exceptional for an academic in the School in which Dr Dewan was engaged to receive a USS score of 80 per cent for each unit, adding that he thought there were a number of staff within the School who achieved that and that he was disappointed but not surprised that the average USS scores for academics in the Faculty over the period 2012 to 2016 were well below 80 per cent[67];
· while the PIP process was for a period of six months in so far as teaching and USS scores were concerned the period relied on was a lesser period[68];
· the PIP milestone dealing with research in respect of the submission of journal articles was a significantly more rigorous milestone than the expectation which appeared in the PEAS[69];
· having regard to the rate of publication for research active academics in the Faculty over the period 2011 to 2014 he did not consider the PIP milestone in respect of research to be very onus and unrealistic[70];
· with regard to the research milestone concerning grant submissions, he had evidence of Dr Dewan’s grant submission to the British Council on 28 August 2016 which was before the PIP had concluded yet Dr Dewan was assessed as not meeting this milestone in the PIP[71]; and
· the statement in his letter to Professor Klomp on 7 October 2016 that the measures in the PIP were drawn directly from the PEAS was not correct, adding that the PIP milestones were drawn from the PEAS but were not consistent with the minima reflected in the PEAS[72].
In his witness statement[73] Professor Klomp deposed among other things that:
· he was not involved in the PIP process regarding Dr Dewan;
· at his meeting with Dr Dewan on 27 September 2016 he handed Dr Dewan the show cause letter, adding that he explained to Dr Dewan that he had read all the documents pertaining to his performance and had determined that he had not demonstrated adequate performance and trajectory in his PIP to the required standard;
· at that meeting he asked Dr Kleeman whether he was satisfied with the process he had followed in that meeting, with Dr Kleeman confirming that he was;
· on 5 October 2016 Dr Dewan responded to the show cause letter;
· on 7 October 2016 he received an email from Professor Pratchett providing a response to Dr Dewan’s response to the show cause letter;
· he considered that Dr Dewan had not met the requirements of the PIP and therefore his performance was not to the standard required of a Contingent Continuing Assistant Professor, adding that in particular Dr Dewan had not met the teaching standard required nor the research output (publications and grant income) standard required;
· with regard to teaching he considered the results produced from Dr Dewan’s student satisfaction surveys were unsatisfactory, adding that Dr Dewan’s claims of introducing innovative teaching had not been adequately documented and there was no evidence of gathering and reflecting on student feedback, nor any evidence of applying that reflection in a way that would improve his teaching;
· with regard to research publications, he considered the requirements in the PIP to be reasonable in that they would have been the minimum requirement for Dr Dewan to return to the required performance standard and were very achievable for an academic with ongoing research activity;
· with respect to grants, Dr Dewan had only submitted one grant application, adding that grants not recorded on UC’s Research Dashboard were not recognised by the University and there was no record of Dr Dewan’s grant application to the British Council;
· with regard to the $25,000 donation from McCabes Lawyers, the amount was not reportable income until it had been formally accepted by the University and he did not consider a promise of money without any proper documentation to be an acceptable form of research income; and
· reinstatement of Dr Dewan would be problematic because he is so far below the expected academic trajectory, adding that Dr Dewan’s inability to turn things around was evident in his PIP and that there was no reason to believe he could achieve the required standards to continue employment with UC.
Key aspects of Professor Klomp’s oral evidence were that:
· he expected the PIP to address the areas of underperformance disclosed in Dr Dewan’s APR[74];
· Dr Dewan’s PIP reflected the need for him to get back on a trajectory for promotion to Associate Professor within the period of his contract[75];
· at the end of the PIP he took the position that Dr Dewan had ample opportunity to demonstrate that he could get back on to the trajectory for promotion to Associate Professor and that he had not achieved that, adding that he therefore took the position that he could not and did not fulfil the requirements of the PIP[76];
· he understood that Dr Dewan had to achieve every milestone in the PIP, adding that he expected that Dr Dewan would have been told this or that it would have been very clear from the PIP document[77];
· he expected that the PIP would reflect what was required for Dr Dewan to get back on a trajectory for promotion to Associate Professor, adding that he thought that the PIP was completely appropriate and that Dr Dewan still had to meet the teaching standards at UC despite this area not being identified as an area needing improvement[78]; and
· he did not see any data measuring Dr Dewan’s teaching performance in the second semester of 2016, later acknowledging that InterFace Student Experience Questionnaire (ISEQ) data for mid-semester 2 in 2016 which he saw did not influence him in respect of the teaching milestone in Dr Dewan’s PIP[79].
In his witness statement[80] Professor Mir deposed among other things that:
· at the beginning of the meeting with Dr Dewan on 26 February 2016, Mr Bacon said words to the effect “these are the milestones you need to achieve” and in handing Dr Dewan the letter said “if you don’t meet the milestones as the letter says you may be terminated;
· also at that meeting he said to Dr Dewan words to the effect “of all these milestones, these three will bite you if you don’t move immediately: journal publications, research grants and improving teaching scores”;
· Dr Dewan did not challenge the milestones at that meeting;
· at the 16 June 2016 PIP review meeting, Dr Dewan advised that he had a $25,000 grant in progress to which he replied words to the effect “the grant has to be submitted to Research Services. I cannot count it until it appears on the research dashboard”;
· with regard to the final PIP meeting, he did not recall Dr Dewan providing him with evidence of his British Council grant application;
· with regard to the $25,000 grant from McCabes Lawyers he was concerned that it did not appear on the Research Dashboard and that no contract had been signed by the University regarding the grant;
· at the final PIP meeting, Dr Dewan watched him record his notes on the PIP spreadsheet;
· he drafted his final PIP review spreadsheet column having regard to the notes he had recorded in the spreadsheet at the final PIP meeting and the additional information Dr Dewan had provided in response to his email of 5 September 2016;
· he emailed his spreadsheet to Professor Pratchett on 6 September 2016; and
· he subsequently continued to correspond with Dr Dewan about providing additional information because he assumed Professor Pratchett had not yet made a decision on whether or not Dr Dewan had met the requirements of the PIP but did not do so after 15 September 2016 when Mr Bacon advised him that Professor Pratchett had made a decision on the PIP.
Key aspects of Professor Mir’s oral evidence were that:
· this was the first PIP he had been involved in[81];
· in discussing the draft PIP as at late January 2016 with Professor Miliszewska she commented in respect of the PIP milestones that they needed to be modified so that they were measurable and such that Dr Dewan’s rating becomes significant at the end of the PIP, acknowledging that this was not referred to in his witness statement[82];
· it was his understanding that Dr Dewan had to achieve a standard of ‘significant’ in teaching at the end of the PIP and ‘outstanding’ in respect of research[83];
· in moderating the draft PIP prepared by Mr Bacon he had regard to Dr Dewan’s APR outcomes and the PEAS[84];
· he was required to prepare PIPs for Dr Dewan and two other academics, acknowledging that the PIP prepared for one of those other academics (Dr Young) was identical to Dr Dewan’s PIP[85];
· in respect of research, Dr Young’s PIP stated in terms of expectation of performance “To be on track to achieve a minimum standard of significant when assessed at the end of the PIP” whereas Dr Dewan’s PIP stated “To achieve a minimum standard of significant when assessed at the end of the PIP” [86];
· he drafted the milestones in Dr Dewan’s PIP[87];
· the milestones in Dr Dewan’s PIP were predicated on him being rated as significant in respect of teaching and engagement and outstanding in respect of research as at the end of the PIP[88];
· with regard to the research publications milestone he did not have regard to the extent to which researchers in the Faculty had had indexed publications over the period 2012 to 2014[89];
· he did not agree that the research publications milestone in Dr Dewan’s PIP was significantly more onerous than the PEAS milestone regarding research publications on the basis that it was easier to submit a paper than have it published in six months[90];
· at the meeting of 26 February 2016 with Dr Dewan to discuss the PIP Mr Bacon had said words to the effect “these are the milestones you need to achieve” but he did not remember whether Mr Bacon had said “if you don’t meet the milestones, as the letter says, you may be terminated”[91];
· he could not recall Mr Bacon advising Dr Dewan at that meeting that the PIP milestones could be modified or amended or asking him whether he considered the milestones unreasonable[92];
· he understood as at 26 February 2016 that Dr Dewan had to satisfy all the milestones in the PIP in order to have an acceptable performance improvement, later attesting that Dr Dewan was not directly told that he had to satisfy all of the milestones to satisfy the PIP and that he could not remember whether or not Dr Dewan was informed that that was the test[93];
· as part of the PIP he only discussed Dr Dewan’s teaching in semester 1, adding that Dr Dewan’s mid-semester 2 ISEQ results were not considered as part of the PIP despite him continuing to communicate with Dr Dewan after 2 September 2016 in relation to other aspects of the PIP[94];
· he disagreed that the USS scores for Dr Dewan were unreliable because of the low response rate by students[95];
· he did not specify what evidence Dr Dewan had to produce to satisfy the milestones regarding grant submissions and reportable research income[96];
· with regard to the British Council grant submission, it was implied that the submission needed to be reflected on the Research Dashboard and acknowledged that he did not explain this to Dr Dewan at the meeting of 26 February 2016[97];
· following his meeting with Dr Dewan on 2 September 2016 he prepared some comments against each of the milestones in the PIP which he sent to Mr Bacon who subsequently advised that the comments need to be more precise, adding that he then used the terminology of achieved and not achieved and converted his assessment against the innovative teaching milestone from achieved to not achieved without discussing the matter with Dr Dewan[98]; and
· he did not provide the final version of the PIP document which incorporated his assessment of Dr Dewan’s performance to Dr Dewan as based on a discussion with Professor Pratchett he thought he was going to communicate with Dr Dewan[99].
The statutory framework
The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Dr Dewan is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 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 FWC considers relevant.”
There is no dispute that Dr Dewan was dismissed, so s.385(a) of the Act is satisfied. Dr Dewan contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. UC is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Dr Dewan was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).
Was the dismissal harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.
(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)
In Rode v Burwood Mitsubishi[100] (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd[101]. The following is an extract from the Full Bench’s decision in Rode.
“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc.; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)
As previously noted, Dr Dewan submitted that his dismissal was harsh, unjust or unreasonable as the process followed by UC was flawed and his performance was at a level which did not warrant the termination of his employment.
UC submitted that even if Dr Dewan were to establish that there were procedural issues with the termination of his employment or that not every finding made about his performance leading up to his termination was justified it did not mean that there was not a valid reason for his dismissal. UC further submitted that it had a valid reason for terminating Dr Dewan’s employment for a number of reasons including that:
· it was a term of Dr Dewan’s employment that if he was assessed as unlikely to be promoted to Associate Professor by the end of the review period the University could institute procedures for the termination of his employment on the ground that he was not likely to obtain promotion by the end of his contract; and
· he was not on a trajectory to being promoted to Associate Professor by the end of his contract.
More specifically, UC submitted that Dr Dewan’s underperformance provided a valid reason for the termination of his employment in circumstances where:
· in his 2015 PDR he was fairly assessed as unlikely to be promoted to Associate Professor;
· the areas in which he was underperforming were explained to him;
· he was placed on a PIP which set milestones that would indicate whether he was on the trajectory to being promoted to Associate Professor;
· he failed to meet the milestones in the PIP; and
· Professor Klomp correctly concluded, after considering all the available evidence, that Dr Dewan was a significant distance from being promoted and not at the standard required of a Contingent Continuing Assistant Professor.
As the name implies, the PEAS set out the performance expectations for academic staff. An examination of the milestones in Dr Dewan’s PIP against the PEAS indicates that the overwhelming majority of those milestones reflect the PEAS for an Assistant Professor. The differences between those milestones and the PEAS as they relate to an Assistant Professor are set out in the following table.
| PEAS[102] | PIP Milestones[103] |
| RESEARCH OUTPUTS – AT LEAST 3 PUBLICATIONS IN INDEXED JOURNAL OUTLETS (INDEXED IN TR WOK OR SCOPUS) IN THE LAST 3 YEARS. IN FEELS OF RESEARCH WE JOURNALS ARE NOT YET WELL REPRESENTED IN SCOPUS OR TR WOK, EQUIVALENT PERFORMANCE AS RECOMMENDED BY FACULTY/RC FOR SPECIFIC FORS AND AGREED BY THE DVCR. NON-TRADITIONAL RESEARCH OUTPUTS MAY ALSO BE CONSIDERED IN THOSE FORS WHERE THIS IS ALLOWED BY ERA. | Submission of 2 journal articles to SCImago quartile 1 and quartile 2 ranked journals and evidence of acceptance by the journals or positive responses from the editors offering revise and resubmit. Evidence of a 3rd paper in progress and has reached its submission stage to a SCImago quartile 1 and quartile 2 journal. |
| Research income – Award of HERDC reportable research income of at least $100,000 over the past 3 years. Evidence of a viable plan to become competitive for Cat 1 income (at least as part of a team) by at least years 3-4 of employment at UC. NOTE: It is noted that different FoRs will have varied opportunities to attract research funding and the ERA national data showing average income per annum per FTE for different FoRs should be used to guide PDR discussions. | You must show evidence you have submitted 2 grant submissions. Award of HERDC reportable research income of at least $25,000. |
As previously mentioned, Dr Dewan contended that the PIP milestones, particularly those in respect of teaching and research, were unreasonable and overly onerous, whereas Professors Klomp, Pratchett and Mir’s evidence was to the effect that they considered the milestones appropriate and achievable. Further, it was not disputed that to be promoted to Associate Professor prior to the end of his contract, Dr Dewan would need to receive two ‘significant’ ratings and one ‘outstanding’ rating at the time he applied for promotion. I note also that the purpose of the APR was to:
“… determine whether the Assistant Professor is likely to obtain promotion to Level D by the end of the review period via the University’s academic promotion process. To obtain promotion to Level D at UC staff need to develop a record in research, as well as meet the performance measures applicable to other academic staff at the B/C level …”[104] (Underlining added)
Dr Dewan also contended that he was treated differently from a number of his colleagues, relying on USS scores and an analysis of research income for his contemporaries in support of that contention. On the other hand, Professor Pratchett’s evidence in respect of questions regarding the comparative USS scores of a number of other Assistant Professors with low scores was that one was not subject to an APR as they were not employed on a continuing contingent contract and two others were the subject of further processes which did not involve a PIP. While this is suggestive of differential treatment, in the absence of a more comprehensive analysis of the overall performance of those contemporaries, including in respect of their research and service and engagement performance, it is not possible to form a definitive view in this regard. There was no such material before the Commission.
Against that background, I do not consider that there are any other relevant matters.
Conclusion
Drawing on the above analysis, I find that there was a valid reason for Dr Dewan’s dismissal, that Dr Dewan was notified of that reason and given an opportunity to respond to that reason, that Dr Dewan had been warned about his performance before his dismissal and that there are no other relevant matters. Beyond that, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.
Having considered all of the criteria in s.387 of the Act I find that Dr Dewan’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.
Appearances:
R. Goot AM SC of Counsel for the Applicant.
N. Moy for the Respondent.
Hearing details:
2017.
Canberra:
April 3-5.
[1] AE872777
[2] Exhibit 9 at Attachment LP-3
[3] Exhibit 1 at Attachment SD-1 at page 329
[4] AE405899
[5] Exhibit 1 at Attachment SD-1 at page 336
[6] Ibid at pages 342-346
[7] Ibid
[8] AE417794
[9] Exhibit 11
[10] Exhibit 9 at Attachment LP-6
[11] Ibid at Attachment LP-8
[12] Exhibit 1 at Attachment SD-1 at pages 533-539
[13] Exhibit 10 at Attachment NK-3
[14] Exhibit 1 at Attachment SD-1 at page 552
[15] Ibid at pages 555-838
[16] Ibid at pages 840-841
[17] Exhibit 1
[18] Exhibit 2
[19] Transcript at PN172
[20] Ibid at PN1106-1141
[21] Ibid at PN1368
[22] Ibid at PN1410
[23] Ibid at PN1434-1456
[24] Ibid at PN1598-1618
[25] Ibid at PN1652-1666
[26] Ibid at PN1674-1676
[27] Ibid at PN1686-1704
[28] Ibid at PN1746-1748
[29] Ibid at PN1769
[30] Ibid at PN1773
[31] Ibid at PN1785-1794
[32] Ibid at PN2064-2074
[33] Ibid at PN2147-2158
[34] Ibid at PN2217-2225
[35] Ibid at PN2232-2260
[36] Ibid at PN2319-2342
[37] Ibid at PN2346-2358 and PN2422
[38] Ibid at PN2538-2549
[39] Ibid at PN2628
[40] Ibid at PN2637-2649
[41] Ibid at PN2684-2685
[42] Ibid at PN2819-2820
[43] Exhibit 4
[44] Exhibit 6
[45] Transcript at PN3085-3090
[46] Ibid at PN3082-3084
[47] Ibid at PN3156
[48] Ibid at PN3280-3290
[49] Ibid at PN3308-3309
[50] Ibid at PN3377-3378
[51] Ibid at PN3386
[52] Ibid at PN3387-3391 and PN3399
[53] Transcript at PN3394-3398 and PN 3543-44
[54] Ibid at PN3401-3409
[55] Ibid at PN3578
[56] Ibid at PN3616
[57] Exhibit 9
[58] Exhibit 1
[59] Ibid
[60] Transcript at PN3849-3855
[61] Ibid at PN3878
[62] Ibid at PN3880-3881
[63] Ibid at PN3947
[64] Ibid at PN3966-3971
[65] Ibid at PN4010
[66] Ibid at PN4027-4028
[67] Ibid at PN4052-4061
[68] Ibid at PN4111-4126
[69] Ibid at PN4147-4151
[70] Ibid at PN4194
[71] Ibid at PN4214-4230
[72] Ibid at PN4267-4271
[73] Exhibit 10
[74] Transcript at PN4428
[75] Ibid at PN4433-4435
[76] Ibid at PN4457
[77] Ibid at PN4458-4462
[78] Ibid at PN4469-4474
[79] Ibid at PN4532-4647
[80] Exhibit 11
[81] Transcript at PN4777
[82] Ibid at PN4784-4814
[83] Ibid at PN4832-4837
[84] Ibid at PN4841-4887
[85] Ibid at PN4888-4929
[86] Ibid at PN4973-4983
[87] Ibid at PN4984
[88] Ibid atPN5099
[89] Ibid at PN5111-5125
[90] Ibid at PN5148-5149
[91] Ibid at PN5234-5235
[92] Ibid at PN5240-5242
[93] Ibid at PN5245-5254
[94] Ibid at PN5317-5335
[95] Ibid at PN5336
[96] Ibid at PN5534-5536
[97] Ibid at PN5538-5550
[98] Ibid at PN5555-5580
[99] Ibid at PN5587-5590
[100] Print R4471
[101] (1995) 62 IR 371
[102] Exhibit 6 at Attachment PB-1
[103] Exhibit 1 at Attachment SD-1 at pages 343- 346
[104] Exhibit 6 at Attachment PB-4A
[105] Exhibit 9 at Attachment LP-3
[106] Exhibit 1 at Attachment SD-1 at page 317
[107] AE417794
[108] Exhibit 1 at paragraph 80
[109] Ibid at Attachment SD-1 at page 555
[110] Ibid at pages 840-841
[111] Ibid at pages 533-539
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