Shanzana Khan v University of New South Wales
[2025] FWC 1183
•29 APRIL 2025
| [2025] FWC 1183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Shanzana Khan
v
University of New South Wales
(C2025/2312)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 29 APRIL 2025 |
Application to deal with a dispute
Introduction and outcome
This is an application by Dr Shanzana Khan for the Commission to deal with a dispute in accordance with a dispute resolution procedure.
The dispute relates to clause 16.5 of the University of New South Wales (Academic Staff) Enterprise Agreement 2023 (the 2023 Agreement) which deals with fixed term employment conversion.
The background to the dispute is that Dr Khan was offered and accepted the role of Senior Lecturer – Phase 1 Coordinator, Rural, Medicine and Health, based in Wagga Wagga with the University of New South Wales (the University) commencing on 1 May 2023 and concluding on 30 April 2025. The position reported to Dr. Rashid Hashmi, Associate Professor & Director of Medical Education. Dr Khan contends that the University committed to convert her to continuing employment after 12 months, pending satisfactory performance, and that the University has reneged on this commitment.
Prior to her employment with the University, Dr Khan was employed by the University of Sydney in the position of Research Fellow between 30 March 2020 and 30 November 2022.
Dr Khan was employed pursuant the University of New South Wales (Academic Staff) Enterprise Agreement 2018 (the 2018 Agreement) which commenced on 15 April 2019. The 2018 Agreement was replaced by the 2023 Agreement which commenced on 3 November 2023.
After conducting a hearing in relation to the matter, I have decided that clause 16.5(e) of the 2023 Agreement operated to convert Dr Khan to continuing employment on 1 May 2024 with effect from 1 May 2025.
Factual Background
Correspondence in relation to conversion to continuing employment
Prior to commencing employment, Dr Khan attended an interview with Professor Tara Mackenzie on or about 31 January 2023, in which Dr Khan says she advised Professor Mackenzie that she was reluctant to disrupt her research career and move from Melbourne to Wagga Wagga for a role of two years duration. Professor Mackenzie responded that there would be an opportunity to convert to permanent employment after 12 months, pending satisfactory employment.
Professor Mackenzie’s version of this conversation is that there was a discussion between Professor Mackenzie and Dr Khan about whether the contract of employment could be a permanent one. Professor Mackenzie indicated that this was not possible and that there was a discussion around the potential for continuation after the probation for a period of two years.
Professor Mackenzie is the Associate Dean and Head of School of Clinical Medicine (Rural) at the University of New South Wales and is based at the Wagga Wagga campus of the University. Professor Mackenzie has been employed by the University since 1999 and has been in her current position since 2021. Professor Mackenzie gave evidence on behalf of the University at the hearing.
Professor Mackenzie provided evidence at the hearing that all appointments at Clinical Medicine rural campuses are offered on a fixed term basis because they are externally funded by the Australian Government. There is a three-year funding cycle which was most recently renewed in 2024.
Professor Mackenzie explained that the Phase 1 Coordinator role was integrated into a lecturing role, which could involve teaching in a laboratory, or scenario group or clinical skills session. The Coordinator component of the role is to help oversee and lead the group of academics who deliver the Phase 1 Program.
Correspondence in 2023
On 1 February 2023, Professor Mackenzie sent the following email[1] to Dr Khan:
Dear Shanzana,
Thank you for attending the interview yesterday and for your time this morning.
As discussed, we would like to offer you the position of phase 1 coordinator in Wagga.
This would be an education focused Senior Lecturer position. As discussed, I can offer a 2 year contract with the opportunity to convert after 12 months, pending satisfactory performance.If you could let me know your decision by Friday morning that would be great. If you have any questions in the meantime, please don’t hesitate to contact me
Thanks again
Tara
On 28 March 2023, after receiving the offer of employment, Dr Khan sent the following email[2] to Ms Ashleigh Eade, Administration Officer, Rural Support:
Hi Ashleigh,
I was hoping you might help me or refer me to who can. The contract stated at the end that 'You acknowledge that you:
▪ have not relied on any representations about your employment made by or on behalf of the University other than the matters expressly set out in this contract; and
▪ have had the opportunity to obtain legal advice in relation to the terms of this contract.I actually have correspondence from Tara Mackenzie that I will have the opportunity for this position to be permanent after 1 year. Can I please confirm that this is the case?
Many thanks in advance,
ShanzanaOn 29 March 2023, Professor Mackenzie provided the following response[3] to that email:
Dear Shanzana,
We are looking forward to having you join the team in the near future.
I am emailing to confirm our discussions (both verbally and written) earlier in the year - ie this position will be education focused Senior Lecturer. It will be offered as a 2 year contract initially with the opportunity to convert to permanent after 12 months, pending satisfactory performance. You will recall that we also discussed the reason for the 2 years despite reviewing at 12 months - ie continuing contract for the time it takes for the HR processes to take place if satisfactory performance.
Thank you and I look forward to meeting you in person soon.
Tara
Correspondence in 2024
At 12:20pm on 11 April 2024, Dr Khan sent an email to Dr Hashmi. The email[4] stated:
Dear Rashid,
Thank you for your email. I have had a look at the timetable for term 2 we are finalising today and I am teaching a practical 3-5 on 1st May. I am thus free anytime 9-2 on 1st May.
The main reason for Tara's presence was that I was that I had been told orally and in writing twice that this position would become permanent after 1 year pending satisfactory performance. When I mentioned this in my MyCareer conversation you told me to speak to Tara about this/that you would follow up for me.
Attached are the written communications detailing this. As indicated when I received my contract I confirmed this arrangement in the email thread attached…
Dr Khan attached the emails exchanged between Dr Khan and Professor Mackenzie in 2023 which are referenced above.
At 12:24pm on 11 April 2024, Professor Mackenzie sent Dr Khan the following email:[5]
Dear Shanzana,
I have confirmed this with Rashid this week. Nothing has changed from my advice last year.
Once the satisfactory performance is confirmed at the final meeting, I ask Ashleigh and the team to action this.
Tara
On 1 May 2024, Dr Khan sent the following email[6] to Dr Hashmi:
Dear Rashid,
Thank you for your time today and for your support of me in settling into this role. This email serves as a written record that I was informed in my final 1 year probation meeting that my performance was satisfactory and meeting expectations.
You informed me in the meeting that you would inform HR/Tara and/or any relevant personnel of this to commence the process for conversion from fixed-term to permanent. Unless you disagree with the accuracy of this email there is no need to respond to this email. Can you please let me know by COB tomorrow if you do disagree with the assertions in this email.
Thank you,
Shanzana
There was a subsequent email exchange between Dr Khan and Dr Hashmi during which Dr Hashmi stated in an email[7] which he sent to Dr Khan at 7:08pm on 2 May 2024:
During the probation meeting yesterday, I clearly advised you that there is no need to write to me about the discussion we had. I had since undertaken steps that I promised during the meeting and communicated to school services outcome of probation meeting.
Hence, I was extremely disappointed to receive your email. To me this tantamount to complete lack of trust that you have in me as a supervisor and colleague. I also found it extremely unusual to be asked to reply by a specific deadline about a matter that has been discussed, agreed, and acted upon.
Dr Hashmi copied this email to Professor Mackenzie and Mr Tony Jordan. Mr Jordan is employed by the University in the position of Clinical Campus Manager, Rural Clinical Campuses. Mr Jordan has been engaged in this role since 2016.
Dr Khan then sent an email to Dr Hashmi (copied to Professor Mackenzie and Mr Jordan) at 7:50pm on 2 May 2024 which relevantly stated:
I was not ccd into the communication that my probation had been approved, that the process had been commenced for conversion to permanent nor had I received any written communication on the matter. It is reasonable for me (and anyone) to seek this written confirmation.
I am putting in writing that yesterday you did ask me to confirm with Tony again in a week that the process had commenced. I will be doing so.
On 8 May 2024, Dr Khan sent an email[8] to Professor Mackenzie and Mr Jordan which relevantly provided:
I am writing to you about the conversion of my role from fixed term to permanent, which was pending satisfactory performance at 1 year as has been confirmed by this probation process.
Can I confirm when this conversion will be complete? Am I considered permanent as of now? It is important and reasonable for me to ascertain this, as it impacts mortgages and a variety of other life factors.
I would be grateful for this knowledge at earliest convenience as I feel it is eminently reasonable to request this knowledge.
At 11:22pm on 8 May 2024, Mr Jordan sent the following email[9] to Dr Khan:
Hi Shanzana
In terms of your query, happy to provide information on the probation process which is a university-wide process.The dates of your probation meetings/discussions with your supervisor are set within a timeframe range during the probationary period and may not be indicative of your actual employment contract/appointment/end/renewal dates. I will have a look at those tomorrow and come back to you. Rashid has confirmed your satisfactory performance during the probationary period and I will discuss the conversion of your role to ‘continuing employment’ with HR.
Currently, the university is in the midst of a Government legislative change process which affects several of our appointments, both academic and professional, full-time, part-time and casual. The university is currently reviewing the legislation and its requirements and impact upon staffing and appointments. We hope to have more information on this in coming weeks.
In terms of your question of timeframe, any conversion of a staff member to ‘continuing employment’ from fixed-term employment would normally commence at the end of the current fixed term contract, so not necessarily at the end of a probation discussion. Once conversion is approved, the staff member would receive an official ‘letter of offer’ from the university HR department not dissimilar to what you received when first offered employment, except it would indicate the offer to be for ‘continuing employment’. The staff member is required to read, sign and return the document if accepting of the offer.
So, next steps, I’ll confirm your current contract employment dates and come back to you.
On 9 May 2024, Dr Khan sent the following email[10] to Mr Jordan, Dr Hashmi and Professor Mackenzie:
Dear Tony (and Tara).
Many thanks for your prompt response. A couple of points:
1.I have a 2 year contract set to end 1st May 2025.
2.Tara has informed me in writing a number of times including a few weeks ago that pending satisfactory performance my employment would convert to a permanent position after 1 year of employment. The probation process has confirmed satisfactory performance fulfilling the requirement for conversion of my employment to permanent at 1 year.
3.Point number 2 is a contractual agreement and my understanding is no legislative changes can impact the contractual obligations entailed.
4.I confirmed point 2 in writing multiple times before accepting my offer of employment.
5.Tara did mention that the process of conversion to permanent takes 2 years, hence the offering of a 2 year contract initially.
6.From your combined communications my understanding is then that the conversion will be complete at the end of my current contract at 1st May 2025.
7.As per points 2,3,4, 5, 6 my position is the university is under a contractual obligation to convert my position to permanent at 1st May 2025.
I would be grateful if you could let me know at earliest convenience, preferably tomorrow if possible, if you and Tara disagree with the assertions in this email, particularly point 7. Thank you in advance,
Shanzana
Dr Khan did not receive a response to this email from either Mr Jordan, Dr Hashmi or Professor Mackenzie.
Professor Mackenzie gave evidence during the hearing that the reason she did not respond is because she did not disagree with any of Dr Khan’s assertions in the email. Professor Mackenzie said that the only reason that Dr Khan’s employment was not converted to a continuing is because of the University’s decision that it no longer requires the position of Phase 1 Coordinator.
Mr Jordan gave evidence at the hearing and said in his witness statement that his experience with conversion from fixed term to continuing employment was that the process would take place at the end of the contract period and that employment would not be converted to 'continuing employment' mid-way through the contract period. Mr Jordan said that this approach is consistent with the practices adopted across all rural campuses and Kensington to his knowledge and is as he understands it, a university wide approach rather than a process or approach unique to the rural campuses. Mr Jordan said that at the end of the fixed-term period, various other factors would be considered including in the case of rural positions, whether external funding would be available and whether performance remained satisfactory for an academic to be offered continuing employment. Mr Jordan said due to the requirements of the University’s Commonwealth funding, it is uncommon within rural campuses in his experience, for continuing employment to be offered, as funding is limited and there is a need for flexibility among academic roles relative to the available talent pool in rural areas whereby budget may need to be moved to another campus to deliver specific program disciplines teaching.[11]
Contract of Employment
The contract of employment between Dr Khan and the University included the following terms:
• Dr Khan’s primary duties include all duties reasonably associated with her position, including those in the relevant enterprise agreement. Dr Khan may be required to perform other duties which are within her skills and abilities on a temporary or permanent basis (Clause 1).[12]
· Dr Khan would be employed on a probation period for the first 12 months of her employment (Clause 2).[13]
· Dr Khan’s employment will end on the expiry of the fixed term of the contract unless terminated during the fixed term in accordance with the relevant enterprise agreement (Clause 6).[14]
· Dr Khan acknowledged that:
o Dr Khan has no expectation of continuing employment beyond the term in the contract
o Unless Dr Khan’s employment terminated earlier in accordance with the contract, it is intended Dr Khan’s employment will end on the expiry of the fixed term of the contract and that any decision to offer her further employment is separate and distinct from the contract (Clause 6).[15]
· Dr Khan acknowledged that:
o Dr Khan has not relied on any representations about her employment made by or on behalf of the University other than the matters expressly set out in the contract; and
o Dr Khan has had the opportunity to obtain legal advice in relation to the terms of the contract (Clause 6).[16]
· The contract can only be varied by written agreement between Dr Khan and the University.[17]
Accountabilities of the Position
Dr Khan provided the position description of the role of Phase One Coordinator, Rural (Education Focussed) which provided for the following accountabilities:
Specific accountabilities at Lecturer (Level B) include:
• Deliver high quality teaching and student experience utilising sound pedagogical methodologies and innovative technologies that inspire student learning in the undergraduate medicine program, and promote student immersion in the local clinical and rural health environment
• Coordinate and teach biomedical science components of the curriculum including anatomy,
science, physiology, pharmacology, biochemistry, academic writing, research methodology and
statistics, and conduct relevant practical and laboratory components of the program
• Supervise, guide and consult with students undertaking their Independent Learning Project (ILP) including mentoring, reviewing progress, thesis, presentation, coursework and final report
• Actively contribute to the development, preparation, implementation and evaluation of subject material for lectures, tutorials and practical classes and the facilitation of scenario groups
• Assist in the preparation and delivery of relevant assessment tasks including associated administrative requirements, as needed
• Supervise, monitor and provide guidance to students on their progress, and mark assignments and participate in the examination of students
• Work collaboratively with peers across the faculty and school, enhancing the undergraduate
experience whilst developing significant productive relationships and partnerships
• Be involved in the broader administrative function of the Rural Clinical Campuses and Faculty, including coordination of subjects, attending departmental and/or faculty meetings, and/or other responsibilities, as directed
• Align with and actively demonstrate the UNSW Values in Action: Our Behaviours and the UNSW Code of Conduct.
• Cooperate with all health and safety policies and procedures of the university and take all reasonable care to ensure that your actions or omissions do not impact on the health and safety of yourself or othersSpecific accountabilities at Senior Lecturer Level C (in addition to Level B) include:
• Demonstrate and continuously develop a well-defined teaching philosophy that inspires student learning and promotes a high quality rural student experience
• Make a significant contribution to teaching and service delivery within the Rural Clinical Campuses with a strong record of demonstrated professional achievement and innovation
• Provide high level course coordination and administration within Phase 1 of the program, and expert advice to students and other staff on course-related matters
Medicine Program Redesign Project
In his role, Mr Jordan is primarily responsible for the overall operational management of the aligned Rural Clinical Campuses across multiple locations in Albury, Coffs Harbour, Griffith, Port Macquarie and Wagga Wagga, including delegated financial management, human resources, physical resources, student support services, and work, health and safety.[18]
Mr Jordan explained that the University’s rural campuses are solely funded through external funding provided by the Commonwealth Department of Health and Aged Care, Health Workforce Division - Professional Entry and Rural Training through the Rural Health Multidisciplinary Training (RHMT) Program framework.[19]
Professor Mackenzie’s evidence was that about three years ago, the University commenced a project known as the ‘Medicine Program Redesign Project’, the purpose of which was to redesign the entire teaching program for the Medicine and Health Faculty for undergraduate students.[20]
The program is described on the University’s website as follows:
Our vision for education is bold, yet simple: to develop compassionate innovators and global leaders in health.
As part of the Medicine Program Redesign Project, we will pioneer Australia’s best learning experience in health. This means:
1.We’ll develop technology-enhanced educational practices for a student experience that’s as transformative as it is effective. This will involve rebuilding, continuously reviewing and revamping how and what we teach, across all courses.
2.Building a vibrant learning community; one that works in equitable partnership with students.
3.We will respect and embrace the knowledge systems of Aboriginal and Torres Strait Islander peoples both within the University’s footprint and further afield.
4.Seeing education holistically, and putting student wellbeing, equity and personalised development at the heart of our programs.
The revised Medicine Program will launch in 2027 for incoming Year 1 students, with a carefully planned transition for currently enrolled students over three years.[21]
Professor Mackenzie confirmed during the hearing that, consistent with the information in the University’s website, it is planned at this stage for these changes to start in 2027, but there will be a period of time where both the current and revised programs will be running so students already enrolled in the program can complete the current program.
Mr Jordan explained that while these initial discussions commenced in 2022, the activity around the redesign took some time to gain momentum given the academic leading the project from the Kensington campus resigned in around July 2023. The activity then picked up in early 2024 once a new redesign program lead was appointed.[22]
Mr Jordan explained that a key strategic focus was to ensure alignment across the delivery of the medical program across Kensington, and all Rural Clinical Campuses. This would be achieved by making key changes in the delivery mechanisms including the assessments in the rural campuses at Port Macquarie and Wagga Wagga to ensure alignment with the Kensington campus.[23]
Mr Jordan explained the redesign of the medical program gave rise to an opportunity to reconsider how Phase 1 can be delivered more efficiently across the rural campuses. It was recognised that while there was significant rural clinician support in Phase 2 and Phase 3 of the rural program, there was limited clinician involvement in Phase 1 despite a key goal of the Rural Health Multidisciplinary Training program being early local engagement and mentorship of rural students and involvement with GPs and GP Generalists within the rural medical health environment and community. It was identified that the University was not meeting a fundamental opportunity to influence the careers of early-year medical students through mentorship, immersion and medical student experience. The delivery of our Phase 1 program across both Wagga Wagga and Port Macquarie was far less diversified than the Phase 2 and Phase 3 clinical program delivery.[24]
Professor Mackenzie explained that on 2 December 2024, Professor Gary Velan, Senior Vice Dean circulated an email to all staff in the faculty seeking ‘EOIs for the Phase 1 Medicine Program Co-Convenor for 3 years, described as a ‘leadership role’ to ‘facilitate the transitional activities and refresh the leadership roles required in Phase 1 of the program…[to] manage the teach out of the current program by mapping out the transition for a 3 year period to the end of 2027. Phase 1 is the first of 3 phases in the Medical Program at the University and is based on ‘scenario based learning’.[25]
On 14 January 2025, Professor Velan sent email correspondence to all staff in the faculty to confirm that two Phase 1 Co Convenors had been appointed.[26] One of the Phase 1 Co Convenors was Associate Professor Linda Ferrington who was previously Phase 1 Coordinator/Lead at Port Macquarie Clinical Campus. Dr Khan occupied the corresponding position at Wagga Wagga.[27]
The Decision in relation to the Phase 1 Coordinator Role
Professor Mackenzie explained that Professor Mackenzie and Professor Adi Torda, Vice Dean decided to implement a similar ‘convenor’ role at School level for the Rural Clinical Campus known as the ‘Phase 1 Convenor – Rural’ and that the key characteristics of the position are:
0.3 FTE position
For a period of three years
If possible, the University would like to offer the EOI in the first instance to academic staff at Port Macquarie and Wagga Wagga Campuses[28]
To support the Phase 1 redesign, Mr Jordan said that he worked in conjunction with Professor Mackenzie to design a draft position description of a Phase 1 Convenor - Rural role which is intended to oversee Phase 1 at both Port Macquarie and Wagga Wagga campuses. The role is intended to be largely consistent and the rural equivalent to the Phase 1 Medicine Program Co-Convenor Faculty role in Kensington. Mr Jordan said that to align with the Kensington Phase 1 Medicine Program Co-Convenor, the rural position was designed to be a 0.3 FTE position. The role is intended to be performed by an academic staff member who already holds a substantive position across the Rural Clinical Campuses or within the Faculty of Medicine and Health.[29]
Mr Jordan said that the Phase 1 Convenor - Rural role will have responsibility to manage the teach out of the current program, while navigating the implementation of the redesigned medicine program by mapping out the transition for a three year period to the end of 2027.[30]
Mr Jordan said that the Phase 1 Convenor - Rural role is designed to align with the faculty wide Convenor position and is driven by several factors including:
(a)while the Phase 1 program has been delivered at the campuses in Port Macquarie for eight years and in Wagga Wagga for over four years, there is limited engagement with local clinicians and other health practitioners which is inconsistent with the goals of the Rural Health Multidisciplinary Training program and rural medical workforce recruitment and retention strategies;
(b)recent resignations which have prompted a need to change the staffing structures of Phase 1 to ensure teaching resources are diversified specifically as Associate Professor Ferrington who was previously Phase 1 Coordinator at Port Macquarie campus assumed the role of Phase 1 Medicine Program Co-Convenor and the recent resignation of Dr Eric Adua (effective 21 February 2025), Phase 1 Lecturer at the Wagga Wagga Campus. Dr Adua's resignation has provided the basis to change that role and align it to a similar position in Port Macquarie campus. Recruitment of an Associate Lecturer/Lecturer, Biomedical Sciences technician with demonstrated experience and technical knowledge in laboratory management and procedure is expected to commence soon. There is a clear need for this specialised skillset in Wagga Wagga and due to limited rural resources, combining the role as the University has done in Port Macquarie where the model is a proven success will ensure students in Wagga Wagga receive equitable program delivery.
(c)The effect of the appointment of Associate Professor Ferrington to the Phase 1 Medicine Program Co-Convenor is that the Port Macquarie campus no longer has an incumbent in the Phase 1 Coordinator role which corresponds to Dr Khan's role at Wagga Wagga; and
(d)the Phase 1 Convenor role will also allow for significant improvement in the involvement and engagement within Phase 1 teaching and mentoring by rural GPs and other clinicians, which is one of the key goals of the rural Phase 1 redesign to ensure the similar level of clinician engagement in Phase 1 as there is for Phase 2 and Phase 3.[31]
At 2.15 pm on 6 February 2025, Mr Jordan sent an email to Ms Josie Luis, Human Resources Business Partner and copying in Professor Mackenzie with a draft of the position description for the newly proposed Rural Phase 1 Convenor role. Mr Jordan then had discussions commencing on 17 February 2025 with Ms Lena Bertuccio, HR Consultant at UNSW Medicine and Health, in relation to the structuring of the position description and there were some discussions that the role should be filled through an expression of interest process consistent with the Phase 1 Medicine Program Co-Convenor. Mr Jordan said that given ongoing discussions on the Phase 1 Rural redesign, the expression of interest process for this role has not commenced.[32]
Ms Bertuccio reports to Ms Josie Luis, HR Business Partner at the Faculty of Medicine and Health at the University. Ms Bertuccio gave evidence at the hearing. Ms Bertuccio said she understood from her conversations with Mr Jordan that the role of lecturer which was previously held by Dr Adua prior to his resignation has not been advertised yet as a change in timetabling of the classes has led to the role not being required to be filled at this stage.
Professor Mackenzie said that the result of these changes is that Port Macquarie no longer has an incumbent in the Phase 1 Coordinator role which corresponds to Ms Khan’s role in Wagga Wagga and Dr Khan’s role will cease at the end of her current two year contract.[33] Professor Mackenzie stated that over the next three years, the Medicine Program Redesign requires the Convenor role rather than the Coordinator role and that on this basis ‘the decision has been taken not to continue Dr Khan’s role beyond the end of her current two year contract’.[34]
Professor Mackenzie gave evidence during the hearing that it became clear to her that the Coordinator role would no longer be required when the final version of the new program was submitted to the Australian Medical Council towards the end of 2024, Associate Professor Ferrington was appointed to the faculty Convenor role through a separate process, and the desire to ensure that the programs at Port Macquarie and at Wagga Wagga were identical and aligned and be able to deliver the same experience.
Professor Mackenzie said during the hearing that Dr Khan has been teaching in a range of areas including scenario groups and laboratory sessions and that from 1 May 2025, the laboratory sessions will be taught by the Port Macquarie staff who will travel to Wagga Wagga to deliver some of those sessions and the scenario groups will be delivered by some casual clinicians.
Dr Khan’s evidence was that she had the same teaching load as her other colleagues who were not undertaking the Phase 1 Coordinator role. Until recently, there were three medical scientists who taught the Phase 1 program in Port Macquarie and three medical scientists (including Dr Khan) who taught the Phase 1 program in Wagga Wagga. There continue to be three medical scientists reaching the Phase 1 program in Port Macquarie (as well as some clinicians). With the departure of Dr Khan and Dr Adua, there will be only one medical scientist teaching the Phase 1 program in Wagga Wagga.
Communication to Dr Khan about her employment
Ms Bertuccio said that at 11:15am on 5 March 2025, Professor Mackenzie and Ms Bertuccio had a meeting with Dr Khan to advise Dr Khan that her fixed-term contract would end on its terms on 30 April 2025. At that meeting, Ms Bertuccio and Professor Mackenzie advised Dr Khan due to the changes arising from the faculty driven medicine program redesign, the teaching strategy and structure for Phase 1 at both the Port Macquarie and Wagga Wagga campuses were reassessed to ensure that the structures aligned with the broader faculty. On that basis, Ms Bertuccio understands that Professor Mackenzie decided that the Phase 1 Coordinator role which Dr Khan occupies would not be continued following the end of her fixed term contract period.
On 7 March 2025, Dr Khan applied for conversion to continuing employment on 7 March 2025 which was declined on 20 March 2025 as Dr Khan did not have two years continuous fixed-term employment as required by clause 16.5(a) of the 2023 Agreement.
On 11 March 2025, Dr Khan attended a meeting with Ms Bertuccio and Professor Mackenzie which was arranged at the request of Dr Khan. Ms Bertuccio confirmed a number of matters discussed during the meeting at the request of Dr Khan by email. The email from Ms Bertuccio to Dr Khan dated 11 March 2025, included the following statements:
Changes within the Rural Clinical Campus and Faculty education roles recently have provided an opportunity to reassess how the teaching strategy for Phase 1 can best be supported across both Wagga Wagga and Port Macquarie Campuses. In particular, we want to ensure consistency and align with the Faculty roles.
Unfortunately, this means that when your current contract ends, we will not continue the Phase 1 Coordinator role at Wagga Wagga Campus and as a result your employment will end on that date.
We confirmed at the meeting that this decision is not a reflection of your performance in the role or related to any other matters. We also asked that you keep the conversation confidential and that we would work with you on how the news is conveyed to others.
When asked during the hearing when she made the recommendation that Dr Khan’s role should not be made permanent, Professor Mackenzie said that she was not sure of the exact date, but it was when a decision was made that the Phase 1 Coordinator was not going to be part of the future structure either late December 2024 or early 2025. Professor Mackenzie said that she did not consider at that stage whether there were any positions which Dr Khan could be appointed to.
I also asked Professor Mackenzie why Dr Khan was not advised at the earliest opportunity that there was a possibility that conversion was not going to occur. Professor Mackenzie said that she recalled speaking to HR and that she was pretty sure that she asked Ms Luis and Ms Bertuccio at the end of last year if this would be a workplace change scenario in which case there would be discussions and was advised that it would not be.
The Offer of Employment provided to Dr Khan by the University stated that the position is an education focused role, in accordance with clause 15(b) of the 2018 Agreement and that Dr Khan would be employed on a Fixed term Full Time basis in accordance with Clause 17(c)(ii) of the 2018 Agreement.
Dr Khan claims that the reason that the University has not confirmed her ongoing employment is because in or about November 2024, she made allegations that an employee of the University engaged in sexual harassment towards her. The University denies that the allegations are the reason that Dr Khan has not been converted to continuing employment. The University has advised the Commission that it has engaged an external investigator to investigate Dr Khan’s allegations. I do not have detailed material before me in relation to the allegations and for the purpose of determining this matter, it is not necessary for me to make any findings in relation to the complaint and whether it is the reason that the University has not confirmed Dr Khan’s ongoing employment.
Relevant provisions of the 2018 and 2023 Agreements
Education focussed roles
Clause 15(b) of the 2018 Agreement provides:
‘An academic employee will be employed into a teaching and research academic position, into a research-only academic position or into an education focused academic
position.’
Classification
Duties and Responsibilities of Academic Staff at the University are set out at Schedule 3 of the 2023 Agreement. The introductory paragraphs of Schedule 3 relevantly provide:
(a) The UNSW Position Classification Standards in this Schedule describe the broad categories of responsibilities associated with Continuing and Fixed-term Employment at different levels. The standards are not exhaustive of all tasks in academic employment, which is by its nature multi-skilled and involves an overlap of duties between levels.
(b) The appointment or promotion of a Continuing or Fixed-term Employee to a particular level does not prohibit UNSW from requiring that Employee to undertake duties associated with a lower level provided those duties are commensurate with, and appropriate to, the skills and qualification of the Employee.
(c) Employees employed to do both teaching and research can expect to make a contribution to a diversity of functions within UNSW. Such functions include teaching and teaching related activity, research, social engagement and leadership, participation in professional activities and participation in the academic planning and the governance of UNSW. The balance of the functions will vary according to level and position over time. All teaching and research Employees will be provided with the opportunity to undertake the full range of academic duties commensurate with the classification level to which they have been appointed. It is recognised that at a given point in an academic career, an Employee may agree with their supervisor to perform a predominantly education focussed or research focussed role for a defined period due to the performance strengths or preferences of the Employee. In entering into any such agreement with an early career academic, UNSW will take into account the need for that Employee to establish a research profile.
Dr Khan was employed as a Level C Senior Lecturer. This classification is described in both the 2018 and 2023 Agreements as follows:
General Standard
A Level C academic is expected to make significant contributions to the teaching effort of a department, school, faculty or other organisational unit or an interdisciplinary area. An academic at this level is also expected to play a major role in scholarship, research and/or professional activities.
Specific Duties
Specific duties required of a Level C academic may include:
• The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions.
• Initiation and development of course material.
• Course coordination including supervising the work of casual academics and ensuring they are engaged to perform work in accordance with this Agreement and UNSW policies and procedures.
• The preparation and delivery of lectures and seminars.
• Supervision of major honours or postgraduate research projects.
• Supervision of the program of study of honours students and of postgraduate students engaged
in course work.
• The conduct of research.
• Significant role in research projects including, where appropriate, leadership of a research team.
• Involvement in professional activity.
• Commercialisation of research or other UNSW activities.
• Consultation with students.
• Broad administrative functions.
• Marking and assessment.
• Attendance at departmental and/or faculty meetings and a major role in planning or committee
work.
Skill Base
A Level C academic will normally have advanced qualifications and/or recognised significant
experience in the relevant discipline area. A position at this level will normally require a doctoral qualification or equivalent accreditation and standing. In determining experience relative to qualifications, regard will be had to teaching experience, experience in research, experience outside tertiary education, creative achievement, professional contributions and/or to technical achievement. In addition, a position at this level will normally require a record of demonstrable scholarly and professional achievement in the relevant discipline area.
Fixed term employment
Clause 15.0(g) of the 2018 Agreement provides:
The parties to this Agreement recognise the importance of providing opportunities for continuing and fixed-term employment wherever possible in order to improve the level of job security within the University.
Clause 17.0(a) of the 2018 Agreement provides:
A fixed-term appointment is made for a specified term or ascertainable period. The contract for this employment will specify the starting and finishing dates of that employment, (or in lieu of a finishing date, will specify the circumstance(s) or contingency relating to a specific task or project, the occurrence of which means the term of the employment will expire). An employee will be advised in writing of the category of fixed-term employment set out in subclauses 17.0(c) and (d) below. During the term of employment, the contract is not terminable by the University, other than during a probationary period, or for cause based on unsatisfactory performance, serious misconduct or due to ill health or redundancy, and in accordance with the relevant clauses in this Agreement where applicable.
Clause 17.0(d) of the 2018 Agreement deals with ‘convertible tenure track employment’ which does not apply to Dr Khan’s employment.
Clause 17.0(c) of the 2018 Agreement provides:
It is recognised that while continuing employment is the primary type of employment on which employees are employed by the University under this Agreement, the employment of persons on fixed-term contracts may be made to support the University to carry out its work for a specified period or task. Fixed-term appointments will generally be limited to work activity that comes within the description of one or more of the following circumstances:
…
(ii) to perform work that is externally funded, where the funds are neither sourced from the Higher Education Support Act nor from fees paid on behalf of or by students;
…
Fixed term employment conversion - 2018 Agreement
Clause 17.1 of the 2018 Agreement is in relation to fixed term employment conversion. It provides:
(a) Employees employed on a fixed-term contract, other than those appointed to a Convertible Tenure Track Employment Contract under subclause 17.0(d), may apply for conversion to continuing employment subject to meeting the following conditions:
(i) the University has determined that ongoing work of the same or substantially similar duties is available within the employee’s work unit; and
(ii) the period of employment under fixed-term contracts has exceeded 3 years of continuous service; and
(iii) the employee has met the performance expectations of the University for the duration of the fixed-term employment; and
(iv) the current employment contract is the second or subsequent fixed-term contract for the employee; and
(v) the employee was originally appointed or subsequently appointed through a competitive selection process; and
(vi) the conversion request is approved by the respective Dean of the Faculty.(b) The University will advise of the outcome of the application for conversion under subclause 17.1(a) and the reasons where an application for conversion to continuing employment has been declined, within 30 days.
(c) Notwithstanding anything in this clause, the University at its discretion may at any time convert a fixed-term appointment to continuing employment.
Clause 17.1(c) of the 2018 Agreement has been replicated at clause 16.5(e) of the 2023 Agreement.
Fixed term employment conversion - 2023 Agreement
The fixed term employment conversion provisions in the 2023 Agreement are at clause 16.5 which provides:
(a)A Fixed-term Employee:
(i)who has had two years’ Continuous Service may apply for Continuing Employment in the same or a substantially similar position provided the conditions set out in subclause 16.5(c) and are met (Conversion Application); and
(ii)who has had three years Continuous Service will be granted Continuing Employment in the same or a substantially similar position provided the conditions set out in 16.5(c) are met.
(b)Continuous Service for the purposes of clause 16.5(a) may include employment on one or more consecutive fixed-term appointments and must be in the same or similar and identically classified positions in same work unit or equivalent.
(c)A Conversion Application cannot be made under clause 16.5(a)(i) and UNSW will not be required to offer Continuing Employment under 16.5(a)(ii) where:
(i)the Fixed-term Employment is:
(A)to work in a research only role for a term of up to five years (in accordance with 16.2(a)(iii));
(B)to replace another Employee for a specific period (in accordance with 16.2(a)(vii));
(C)to undertake a Postgraduate Teaching Fellowship (in accordance with 16.2(a)(ix));
(D)a pre-retirement contract (in accordance with 16.2(a)(xii));
(ii)a Fixed-term Employee is:
(A)a former employee who has been re-employed by UNSW despite their prior employment with UNSW ending due to retirement and their having accessed their superannuation benefits (in accordance with 16.2(a)(xiii));
(B)an enrolled student engaged to perform work within the student’s academic unit or an associated research unit of that academic unit (in accordance with 16.2(a)(xv));
(C)a Convertible Tenure Track Employment Contract (in accordance with 16.2(a)(xvi));
(iii)the Employee has not met the performance expectations of UNSW; or
(iv)UNSW determines that there is no ongoing need or funding for the position, or a substantially similar position.
(d)UNSW will, within 30 days of the date of receipt of a Conversion Application, advise the Employee of the outcome of the Conversion Application and, if the Conversation Application is declined, give reasons for the decision.
(e)Notwithstanding anything in this subclause 16.5, UNSW may, at its discretion, make an offer to convert a Fixed-term Employee to Continuing Employment at any time.
(f)Where UNSW makes a new offers of Fixed-term Employment after the commencement of this Agreement, it will inform the Employee of their right to make a Conversion Application under this Agreement.
Dispute Resolution
The Dispute Resolution Procedure is set out in clause 9 of the 2023 Agreement and provides as follows:
9.0 DISPUTE RESOLUTION PROCEDURE
(a) This dispute resolution procedure must be followed to resolve a dispute about the interpretation, application or operation of any provision of this Agreement or in relation
to the NES.(b) A reference to an Employee in this clause 9.0 may include more than one Employee.
9.1 Notification of Dispute
An Employee, or the NTEU, must notify the Chief Human Resources Officer, in writing, of the dispute (Dispute Notification). The Dispute Notification must include details of the dispute and the resolution sought.
9.2 First Dispute Meeting
(a) The Employee, or the NTEU, and representatives of UNSW will meet within five working days of the Dispute Notification to try to resolve the dispute, unless the parties agree in writing to a different timeframe.
(b) The meeting held pursuant to clause 9.2(a) is referred to in this clause 9.0 as the First
Dispute Meeting.9.3 Second Dispute Meeting
(a) If the dispute is not resolved at the First Dispute Meeting and the Employee or the NTEU wishes to proceed with the dispute, the Employee or the NTEU must, within five working days of the day of the First Dispute Meeting, submit a written notice to the Chief Human Resources Officer requesting a second dispute meeting (Second Dispute Meeting Notification). The Second Dispute Meeting Notification must include details of the dispute and the resolution sought.
(b) The Employee or the NTEU and representatives of UNSW will meet within five working days of the Second Dispute Meeting Notification to try to resolve the dispute, unless the parties agree in writing to:
(i) a different timeframe; or
(ii) to immediately refer the dispute to the FWC.
(c) The meeting held pursuant to subclause 9.3(b) is referred to in this clause 9.0 as the
Second Dispute Meeting.
9.4 Referral of Dispute to the FWC
(a) If the dispute is not resolved following the Second Dispute Meeting, the dispute may be referred by any party to the dispute to the FWC for resolution by conciliation.
(b) If conciliation is unsuccessful, any party to the dispute may make an application to the FWC for arbitration of the dispute. If such an application is made, the FWC may exercise any of its powers under the Act. The decision of the FWC will be implemented by the parties, subject to either party exercising a right of appeal against a decision of the FWC.
9.5 General
(a) While the dispute resolution procedures referred to in subclauses 9.2 and 9.3 are being conducted, UNSW will not change work, duties, staffing or organisation of work which is the subject of the dispute.
(b) Subclause 9.5(a) does not apply where the matter in dispute is related to the following clauses insofar as its operation might prevent termination of employment:
Clause 20.0 Redeployment and Redundancy Provisions Clause 24.0 Probationary Employment Clause 27.0 Disciplinary Action and Termination of Employment Clause 28.0 Misconduct Investigation Clause 29.0 Disciplinary Action Clause 30.0 Notice of Termination of Employment
Relevant legislation
The Commission’s powers to deal with a dispute in accordance with a term of an enterprise agreement which provides a procedure for dealing with disputes are referred to in ss.738 and 739 of the Fair Work Act 2009 (FW Act). Section 738 of the FW Act provides:
738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or(ba) a minimum standards order includes a term that provides a procedure for dealing with disputes; or
(bb) a collective agreement includes a term that provides a procedure for dealing with disputes; or
(bc) a road transport contractual chain order includes a term that provides a procedure for dealing with disputes; or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
Section 739 of the FW Act provides:
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.
Dr Khan’s submissions
Dr Khan submitted that the University made an offer to convert her to continuing employment pursuant to clause 16.5(e) of the 2023 Agreement and that she fulfilled the requirements of that offer when she was informed at her one year probation meeting that her performance was satisfactory and meeting expectations. Dr Khan contended that on this basis, her employment should be confirmed as continuing beyond 30 April 2025.
In response to the University’s position that it no longer required the Phase 1 Coordinator Role, Dr Khan submitted that academics routinely take on leadership roles and that this does not lead to the overall role of an education focused academic position being changed or not needed.
Dr Khan submitted that there were other roles that she is qualified to perform including the Phase 1 Convenor Rural role and the lecturer role formerly held by Dr Adua which is likely to include lab management duties.
University’s submissions
The University submitted that there are ten key factual and legal matters which the Commission must consider when determining the matter:
1. The pre-employment dealings with Dr Khan regarding her employment with the University of NSW;
2. Dr Khan’s Employment Agreement;
3. The communications regarding conversion to continuing employment in March 2023 and April and May 2024;
4. The Medical Redesign Programme and its impact on the needs of the rural campuses;
5. The staff changes in recent months and their impact on the ability of the rural campuses to respond to the Medical Redesign Programme and its ongoing staff needs;
6. The University's consideration of whether to proceed with conversion of Dr Khan's employment to continuing and the decision not to convert her employment;
7. The notification of Dr Khan of that decision;
8. Questions about consultation obligations of the University;
9. Arrangements the University has made for teaching courses from 1 May 2025 onwards; and
10. Whether there is a workable relationship between Dr Khan and the people with whom she will be required to work if her employment with the University continues.
The University asserts that:
a. the 2023 Agreement does not give rise to an obligation on it to convert Dr Khan's employment to Continuing Employment; rather, the 2023Agreement creates a right for Dr Khan to apply for the conversion she is seeking;
b. in declining the application that Dr Khan made on 7 March 2025 (the Conversion Request), the University did not breach any provision of the 2023 Agreement and, in particular, that:
i.the circumstances to which clause 16.5(a)(i) apply (in particular, the requirement that the employee have 2 years' continuous service) are not satisfied by Dr Khan and, as such, Dr Khan does not have a basis to make the application under that provision - on this basis, the decision to decline the request was appropriate; and
ii.the right of the University under clause 16.5(e) to make an offer to convert an employee to Continuing Employment does not constitute an obligation to do so, and in the circumstances of the Medical Program Redesign and the introduction of fractional Convenor roles at Faculty level and in the Rural Clinical Campuses in particular, together with the need of the University in the Rural Clinical Campuses to move to increased use of clinicians as fractional teachers, especially in Phase 1, there is a genuine and legitimate reason for the University not to continue Dr Khan's position;
iii.having regard to all of these circumstances, there is no basis for the Commission to direct the University to convert the employment of Dr Khan from Fixed-Term to Continuing Employment.
The University submitted that the power in clause 9 of the 2023 Agreement is limited to the interpretation, application or operation of a provision of the 2023 Agreement. To the extent that Dr Khan is seeking to enforce an arrangement (whether a binding contractual obligation or something else) that arises from pre-employment discussions between herself and Professor Mackenzie, the University submits that such an arrangement does not arise under the 2023 Agreement and is not enforceable by means of this application.
The University submitted that any prior representation as well as any corresponding representation made during Dr Khan’s employment do not concern the operation of a provision of the 2023 Agreement and that steps taken to enforce those statements, whether they are from a contractual obligation or otherwise, do not fall within the scope of the 2023 Agreement dispute resolution provisions and as such, the Commission does not have power of arbitration in relation to them. Further attempts to enforce a pre-existing contractual commitment would constitute an exercise of judicial power and not arbitration and on that basis cannot be undertaken by the Commission.
The University submitted that the 2023 Agreement does not provide the Commission can arbitrate any and all decisions that may be taken by an employer in the course of their employment.
If the intention of clause 9 of the 2023 Agreement was that the Commission could stand in the shoes of the University and exercise its own judgement about these matters, such as whether there is a need for a certain position in certain circumstances and what this means for the exercise of discretion to convert an employee to continuing employment or not, it would say so more clearly.
In all of the circumstances, the University submits that:
a. Neither Clause 16.5(a) nor 16.5(e) establishes an automatic right for Dr Khan's employment to be converted to Continuing Employment;
b. Rather, at the highest, Dr Khan is entitled to apply for such conversion, and the University is obliged then to determine that application;
c. in doing so, the University is guided by other provisions of Clause 16.5 including most relevantly Clause 16.5(c)(iv), which provides that the University will not be required to offer continuing employment under Clause 16.5(a)(ii) where the University determines that there is no ongoing need or funding for the position, or a substantially similar position.
d. In this case, the Medical Program Redesign process (which applies Faculty-wide, including at the Rural Clinical Campus) is well underway and together with recent staff movements has created an opportunity to alter the composition of leadership and clinical teachers at rural campuses including Wagga Wagga by not continuing Dr Khan's employment.
e. There is no suitable alternative position in which Dr Khan can be employed.
f. Taking these factors together, there is a legitimate basis for the University to have declined the Conversion Request, and there is no legitimate basis for the University to be required by the Commission to convert Dr Khan's employment to Continuing Employment.
Consideration
The dispute raised by Dr Khan is in relation to the Fixed-Term Employment Conversion provisions at clause 16.5 of the 2023 Agreement.
Clause 9.0(a) of the 2023 Agreement requires the dispute resolution procedure to be followed to resolve a dispute about the interpretation, application or operation of any provision of the 2023 Agreement or in relation to the NES.
Clause 9 of the 2023 Agreement is a term that provides a procedure for dealing with a dispute for the purpose of s.738(b) of the FW Act so s.739 applies to the dispute. Dr Khan is a party to the dispute and has made an application that empowers the Commission to deal with the dispute under s.739(6) of the FW Act. The Commission has the power to arbitrate the dispute under s.739(4) because the effect of clause 9.4(b) of the 2023 Agreement is that the parties have agreed to this course. Clause 9.4(b) permits the Commission to exercise any of its powers under the FW Act when arbitrating the dispute and provides that the decision of the Commission will be implemented by the parties, subject to either party exercising a right of appeal against that decision.
There is no dispute between the parties that Dr Khan has made a Dispute Notification pursuant to clause 9.1 of the 2023 Agreement and that the steps required for Dr Khan to refer the dispute to the Commission for resolution by conciliation under clause 9.4(a) have been completed. The parties disagree about whether the Dispute Notification concerns a matter which the Commission is empowered to deal with under clause 9.0(a) of the 2023 Agreement and the power of the Commission to make the decision sought by Dr Khan.
I initially listed the matter for conciliation on 7 April 2025 and the matter was not resolved. On the same day, Dr Khan requested that the Commission arbitrate the matter pursuant to Clause 9.4(b) of the 2023 Agreement. To ensure that the matter was determined before Dr Khan’s fixed term contract expired on 30 April 2025, I made directions for the filing and serving of material by the parties and set the matter down for hearing on 22 April 2025. Dr Khan filed her material in reply approximately 1.5 hours before the commencement of the hearing which caused the University to apply for an adjournment so that it could properly consider this material. I granted the adjournment and listed the matter for hearing on 23 April 2025. As the hearing did not conclude on that day, it was listed for a further period on 24 April 2025. At the conclusion of the parties’ submissions, I reserved my decision. On 25 April 2025, Dr Khan sought leave to reopen her case which I have refused.
I note that the dispute originally proceeded on the basis that Dr Khan was contesting the University’s refusal of a conversation application she made pursuant to clause 16.5(a) of the 2023 Agreement. However, the material subsequently filed by Dr Khan indicated that she was relying on clause 16.5(e) of the 2023 Agreement. Clauses 16.5(a)-(d) are not applicable to Dr Khan’s situation as she did not have two years continuous service when she made the application for continuing employment under clause 16.5(a).
The pre-employment dealings with Dr Khan regarding her employment with the University
The University submitted that when Dr Khan had discussions with Professor Mackenzie about the role at the Rural Campus at Wagga Wagga, Dr Khan was not employed, and she had not been employed since November 2022. Professor Mackenzie recalls that Dr Khan asked if the contract would be ongoing from the outset. Professor Mackenzie said that it could not be and that it had to be for a fixed term and that there would be a 12-month probationary period which was the same for all academic staff. If Dr Khan passed that probationary period, then there would be an opportunity to convert. Professor Mackenzie denies that it was a promise to convert to continuing from the outset. In saying this, Professor Mackenzie has acknowledged that the email that followed could have been better worded. The University submitted that Professor Mackenzie's version is more probable compared to Dr Khan’s, explains why there was an email that followed on 1 February 2023, and is also consistent with the intended meaning of the language of that email, which mentions the opportunity for conversion rather than making a commitment to conversion.
Regardless of the context in which Professor Mackenzie was referring to an ‘opportunity to convert’ in the pre-employment discussions with Dr Khan, the critical issue relevant to the Commission’s determination of the matter is the basis for Professor Mackenzie’s representation that a conversion could occur. When Professor Mackenzie made this representation on 1 February 2023, then again on 28 March 2023, she could not have been referring to clause 17.1(a) of the 2018 Agreement. This is because there was a requirement that an employee be employed under fixed-term contracts for more than three years to be eligible for conversion under that provision. This necessarily means that Professor Mackenzie was referring to the University’s discretion to convert a fixed term appointment to continuing employment at any time under clause 17.1(c) when making the representation to Dr Khan.
Professor Mackenzie said that the meaning that she intended to convey in the email was that the opportunity for conversion to continuing employment would arise after 12 months if Dr Khan’s performance was satisfactory, not that it would be automatic that conversion to continuing employment would occur after 12 months even if Dr Khan’s performance was satisfactory. Professor Mackenzie said that she did not have a clear understanding at the time about the rules that normally apply to conversion from a contract role to continuing employment and could see that her language may have conferred more certainty than she intended.
In my view, Professor Mackenzie’s evidence that she did not have a clear understanding at the time about the rules that normally apply to conversion from a contract role to continuing employment is not credible. Professor Mackenzie commenced employment with the University in 1999 and has been in her current position since 2021. As she was involved in the employment of Dr Khan, it is reasonable to assume that she has been involved in the employment of other persons at the Wagga Wagga campus. The evidence from Professor Mackenzie and Mr Jordan is that most, if not, all roles at the Wagga Wagga campus are externally funded by the Australian Government. Professor Mackenzie’s evidence was that external funding is the reason that roles are initially offered on a fixed term basis. There is evidence before the Commission of at least one fixed term role being converted to permanent during the period that Dr Khan was employed by the University. This was the role occupied by Dr Adua. It is reasonable to infer that Professor Mackenzie was involved in this decision or at least had knowledge of it. Professor Mackenzie’s evidence is that her practice was to seek advice from human resources in relation to employment matters and particularly in relation to fixed term contracts. If Professor Mackenzie’s intention was to offer Dr Khan a two-year fixed term contract, it was unnecessary for her to make representations about the potential to convert to permanent employment. Professor Mackenzie made such representations on not just one, but two occasions, almost two months apart. Taking all of this into account, and the plain and ordinary meaning of the words in Professor Mackenzie’s correspondence to Dr Khan on 1 February 2023 and 28 March 2023, I find that Professor Mackenzie intended to convey to Dr Khan that her employment would be converted to a permanent role after twelve months if Dr Khan’s performance was satisfactory.
The communications regarding conversion to continuing employment in March 2023 and April and May 2024
However, even if I am wrong about this, the evidence shows that regardless of what Professor Mackenzie’s correspondence to Dr Khan on 1 February 2023 and 28 March 2023, actually conveyed to Dr Khan, the communications in April and May 2024 were unequivocal.
Dr Mackenzie said in her email to Dr Khan on 11 April 2024 that ‘nothing has changed from my advice last year’ and that ‘once the satisfactory performance is confirmed at the final meeting, I ask Ashleigh and the team to action this.’ Professor Mackenzie’s email was sent in response to an email from Dr Khan four minutes earlier which included the following statement, ‘the main reason for Tara's presence was that I…had been told orally and in writing twice that this position would become permanent after 1 year pending satisfactory performance’. On this basis, I find that the reference to ‘this’ in Professor Mackenzie’s email means the conversion of Dr Khan’s employment to permanency.
The University relied upon Mr Jordan’s email of 8 May 2024 to submit that it established that Dr Khan was aware that her employment would not be converted to a permanent role until the end of her fixed term contract. There is no evidence which establishes that at the time he sent the email, Mr Jordan was aware of the representations which were made by Professor Mackenzie to Dr Khan (apart from being copied into emails from Dr Khan where those representations were referred to). In Mr Jordan’s email, he commits to ‘discuss[ing] the conversion of [Dr Khan’s] role to ‘continuing employment’ with HR’ and states that ‘any conversion of a staff member to ‘continuing employment’ from fixed-term employment would normally commence at the end of the current fixed term contract, so not necessarily at the end of a probation discussion’. Once conversion is approved, the staff member would receive an official ‘letter of offer’ from the university HR department not dissimilar to what you received when first offered employment, except it would indicate the offer to be for ‘continuing employment’. The staff member is required to read, sign and return the document if accepting of the offer.’ [emphasis added]
In his witness statement, Mr Jordan reiterated that his experience with conversion from fixed term to continuing employment was that such a process would take place at the end of the contract period and that employment would not be converted to ‘continuing employment’ mid-way through the contract period. Mr Jordan said that at the end of the fixed-term period, various other factors would be considered including in the case of rural positions, whether external funding would be available and whether performance remained satisfactory for an academic to be offered continuing employment. Mr Jordan said due to the requirements of the University’s Commonwealth funding, it is uncommon within rural campuses in his experience, for continuing employment to be offered.
In my view, the email from Mr Jordan and the evidence in his witness statement conveys what ‘normally’ occurs and not the specifics of Dr Khan’s situation. The other considerations which Mr Jordan states that usually apply, namely whether external funding would be available and whether performance remained satisfactory were never conveyed to Dr Khan. In any event, the evidence establishes that external funding continues to be available and that the reason that the University intends to end Dr Khan’s employment on 30 April 2025 is not related to Dr Khan’s performance. Moreover, I have difficulty accepting Mr Jordan’s evidence that it is uncommon within rural campuses in his experience, for continuing employment to be offered given Dr Khan’s uncontested evidence that her two colleagues who teach Phase 1 are both employed on a permanent basis and that the employment of one of these colleagues, Dr Adua, was converted from fixed term to continuing in July 2024.
On 8 May 2024, Dr Khan communicated her understanding of the ‘combined communications’ that the conversion will be complete at the end of her current contract on 1 May 2025 and that her position was that the University is under a contractual obligation to convert her position to permanent on 1 May 2025. Dr Khan concluded her email by inviting Mr Jordan and Professor Mackenzie to advise her if they disagreed with the assertions in the email. Mr Jordan and Professor Mackenzie did not respond to the email. Professor Mackenzie gave evidence during the hearing that the reason she did not respond is because she did not disagree with any of Dr Khan’s assertions in the email. Professor Mackenzie said that the only reason that Dr Khan’s employment was not converted to a continuing is because of the University’s decision that it no longer requires the position of Phase 1 Coordinator.
There were numerous occasions where Dr Khan was advised that her request for conversion would be ‘actioned’ at the time satisfactory performance was confirmed. These were:
On 11 April 2024, when Professor Mackenzie advised Dr Khan, ‘Once the satisfactory performance is confirmed at the final meeting, I ask Ashleigh and the team to action this’
On 2 May 2024, when Dr Hashmi advised Dr Khan, ‘I had since undertaken steps that I promised during the meeting’ and that ‘I also found it extremely unusual to be asked to reply by a specific deadline about a matter that has been discussed, agreed, and acted upon.’
On 8 May 2024, when Mr Jordan advised Dr Khan, ‘Rashid has confirmed your satisfactory performance during the probationary period and I will discuss the conversion of your role to ‘continuing employment’ with HR.’
Curiously there was no evidence from Ms Bertuccio or any of the University’s human resources personnel about the status of these discussions and actions with respect to the conversion of Dr Khan’s fixed term employment to continuing employment.
The University submitted that it was accepted by Dr Khan that she would not convert to continuing employment at the first anniversary, but that it was in train for the end of her current two-year contract. The University submitted that on this basis, Dr Khan seemed content to wait until the end of the two-year period. The effect of this submission is that regardless of the commitments which were made to Dr Khan in May 2024, it was necessary for the University to offer Dr Khan continuing employment when her contract ended on 30 April 2025 in order for the conversion to take effect. I do not accept this submission. If this was correct, there would have been no reason from Professor Mackenzie to represent that there was an opportunity to convert after 12 months and for Professor Mackenzie, Dr Hashmi and Mr Jordan to each be discussing the conversion of Dr Khan’s role with HR in April and May 2024.
Dr Khan gave evidence during the hearing that she understood that the decision to make her employment continuing would occur at one year pending satisfactory performance and that the permanent contract would be formally drawn up and provided at the end of two years as HR takes a long time to draw up a contract and does not provide new written contracts during the term of a current contract. This evidence is consistent with Professor Mackenzie’s written advice on 28 March 2025 that ‘the reason for the 2 years despite reviewing at 12 months’ was ‘continuing contract for the time it takes for the HR processes to take place if satisfactory performance.’ Having regard to all of the evidence, I find that the University made a decision pursuant to clause 16.5(e) to convert Dr Khan to Continuing Employment on 1 May 2024 upon Dr Khan’s satisfactory performance being confirmed and that this decision would take effect on 1 May 2025.
Dr Khan’s contract of employment
The contract of employment required Dr Khan to acknowledge that she had not relied on any representations about her employment made by or on behalf of the University other than the matters expressly set out in the contract.
After signing the contract but before commencing employment with the University, Dr Khan referred to this provision in an email to Ms Eade and requested confirmation that she would have the opportunity for her position to be permanent after one year, consistent with Professor Mackenzie’s previous advice. Professor Mackenzie replied personally to the email a day later and confirmed that the position was offered as a two year contract initially with the opportunity to convert to permanent after 12 months, pending satisfactory performance and that the reason for a two year contract despite reviewing at 12 months was so there would be a continuing contract for the time it takes for the HR processes to take place if there is satisfactory performance. Given Professor Mackenzie’s evidence that she usually sought advice from HR about fixed term employment, I believe that it would be unlikely that Professor Mackenzie would have sent such an email without first obtaining advice from HR, although Professor Mackenzie’s evidence during the hearing that she does not recall whether she did.
I note that clause 6 of the contract under the heading ‘Fixed term employment’ required Dr Khan to acknowledge that she had no expectation of ongoing employment with the University beyond the term of this contract, it is intended her employment will end on the expiry of the fixed term of the contract and that any decision to offer her further employment is separate and distinct from the contract.
When considering this clause, the representations made by Professor Mackenzie on 28 March 2023 and 11 April 2024 could be regarded as inconsistent with the clause and as such deliberately misleading and designed to induce Dr Khan to remain employed by the University for a two-year period in circumstances where there was never any guarantee that Dr Khan would be converted to continuing employment. However, I think that this is an unlikely scenario taking into account Professor Mackenzie’s evidence and the correspondence between Dr Khan and the University in April and May 2024. I think it is more likely that the representation that Professor Mackenzie made on 1 February 2023 and confirmed on 28 March 2023 was a ‘decision to offer [Dr Khan] further employment’ that was ‘separate and distinct from [the] contract’. I find that the conditions of this offer were met when Dr Khan was confirmed as passing the probation period on the basis of having satisfactory performance. Professor Mackenzie confirmed this when giving evidence that she expected that Dr Khan’s employment would be confirmed as continuing at the end of the two-year period. I find that the University’s decision on 1 May 2024 pursuant to clause 16.5(e) of the 2023 Agreement to convert Dr Khan to Continuing Employment upon Dr Khan’s satisfactory performance being confirmed was separate and distinct to the contract of employment.
The Medical Redesign Programme and staff changes
I accept that it was open to the University to make changes to roles in the rural campuses arising from the Medical Redesign Program. It appears the decision to delete the two Phase 1 Coordinator Roles and to create a new Phase 1 Convenor – Rural Role is consistent with the decision to create the Phase 1 Medicine Program Co-Convenor Roles. I also note that the departure of Dr Adua and the appointment of Associate Professor Ferrington to one of the Co-Covenor roles have created an opportunity for the University to revise the roles based in the rural campuses. However, I have difficulty accepting that the University’s decision that it no longer requires a Coordinator position is the reason that it is not proceeding with its decision to convert Dr Khan to continuing employment.
While the Coordinator role is an important one, it comprises only thirty percent of Dr Khan’s work time, with the majority of her time spent as a lecturer teaching classes to students. Dr Khan’s evidence, which was not contested by the University, is that her teaching load is at least equivalent to her two colleagues who taught Phase 1 at Wagga Wagga which suggests that she could be redeployed to a teaching only role.
The evidence establishes that Dr Khan was never advised by Professor Mackenzie in May 2024 that her conversion to continuing employment was contingent upon Dr Khan remaining in the Coordinator role. Further, there is nothing in the 2023 Agreement which states that there is a requirement that a fixed term role remain exactly the same before continuing employment can be offered. In this respect, clause 16.5(c), which does not apply to Dr Khan’s situation, provides that a Conversion Application cannot be made under clause 16.5(a)(i) and the University will not be required to offer Continuing Employment under clause 16.5(a)(ii) where the University determines that there is no ongoing need or funding for the position, or a ‘substantially similar position’. Consequently, continuing employment could be offered pursuant to an application made under clause 16.5(a)(i) if there is no ongoing need for the original position, but there is an ongoing need for a similar position. As the requirements of clause 16.5(a)-(d) do not apply to a decision by the University to offer to convert a Fixed-term Employee to Continuing Employment at any time under s.16.5(e), it can be readily inferred that an offer for conversion under s.16.5(e) may be made even if there is no ongoing need for the original position.
The contract of employment and the 2023 Agreement provide the University with a wide discretion to require Dr Khan to perform other duties which are within her skills and abilities on a temporary or permanent basis. The University has not satisfactorily explained why Dr Khan could not be retained to teach any aspect of the Phase 1 course. The arrangements that have been made to teach the Phase 1 course from 1 May 2025 comprise casual clinicians and staff traveling from Port Macquarie, so could not be regarded as long-term arrangements. Further, there are two roles which Dr Khan may be eligible to apply for being the Phase 1 Covenor – Rural and the Lecturer position formerly held by Dr Adua. However, for reasons which are not clear to me, these roles have not been advertised, and the University was unable to advise the timing of recruitment of these roles during the hearing.
Consultation obligations of the University
The University submitted that Dr Khan was notified in a meeting on 5 March 2025 and by email dated 11 March 2025 of the end of the fixed term contract in satisfaction of the University’s obligation under the 2023 Agreement to provide notice where a decision is made not to renew a contract. The University submitted that the situation involves the expiry of a two-year fixed term contract it does not trigger the obligation to consult with Dr Khan under clause 19 of the 2023 Agreement which is in relation to major workplace change. The University contended that there cannot be major workplace change when there was a contract which was issued for a two-year period and the University is proposing that the contract would end on its term.
As I have found that the University made a decision pursuant to clause 16.5(e) to convert Dr Khan to Continuing Employment on 1 May 2024 upon Dr Khan’s satisfactory performance being confirmed, I do not accept that clause 19 of the 2023 Agreement does not apply to Dr Khan. However, there is still an opportunity for the University to apply these provisions if it maintains that Dr Khan’s substantive position is no longer required.
In this regard, I have doubts about whether Dr Khan’s position could be properly regarded as ‘redundant’ given that only the Coordinator duties, which comprise thirty per cent of her role, are no longer required and that the lecturer aspect of her role is likely to involve the teaching of a range of classes which are still required by the University. However, if I am wrong about this and I am also wrong that there continues to be work available for Dr Khan to perform, the University is required to comply with the 2023 Agreement prior to taking any steps to end Dr Khan’s employment on the grounds that her position no longer exists. The University urged me not to make any specific findings about the provisions of the 2023 Enterprise Agreement which apply to workplace change given that the dispute raised by Dr Khan was limited to clause 16.5. In my view, it is not necessary for me to make such findings as the parties are free to invoke clause 9 of the 2023 Agreement in the event that any dispute arises about the application of those provisions to Dr Khan’s ongoing employment.
Whether there is a workable relationship between Dr Khan and the University
The University’s final submission was whether there is a workable relationship between Dr Khan and the people with whom she would be required to work with if her employment with the University continues.
The University submitted that it is becoming apparent that through this process, Dr Khan's view of the University has deteriorated to the point where she is using these proceedings and in communications with others, to express views such as that the University is engaging in extremely corrupt conduct and that there has been ongoing lying.
On 20 April 2025, Dr Khan sent an email to the editor of the Age in which she states:
I wish to inform you of an impending court case concerning [redacted]. I was sexually harassed by [redacted]. And then the head of school, Tara Mackenzie, adopted not to renew my contract despite all written offers to the contrary. My life has been destroyed over the past month. I think this matter is in the public interest and I want the world to know about the conduct of all the individuals in the rural schools. Please contact me below for further details.
Although the media contact was not pursued, the University submitted that this does not alter the impact of the email being sent in the first place. The University submitted Dr Khan has acted in a way that is seriously disrespectful towards the University where the decision to not offer continuing employment is in no way connected to the sexual harassment complaints that Dr Khan has made and in particular circumstances where these complaints are actively being investigated by an external investigator.
In my view, Dr Khan’s decision to contact the media two days before the hearing was due to commence was extremely foolish and unbecoming of a highly educated, intelligent professional. When confronted by her conduct during the hearing, Dr Khan referred to, among other things, that she has been in a poor frame of mind for decision making and also spoke of not feeling well during the hearing. I do not have any medical evidence before me in relation to Dr Khan’s current health status, however, given these comments, I cannot rule out the possibility that Dr Khan’s conduct was caused by a mental health condition. Further, although I accept that Dr Khan’s conduct has the potential to undermine the relationship between Dr Khan and her colleagues, there was no evidence from Professor Mackenzie or Mr Jordan that Dr Khan’s conduct has detrimentally affected her relationship with either of them or others at the University.
Further, it is important to record that I believe that the University has acted poorly with respect to its conduct towards Dr Khan. The University was on notice, when Dr Khan sent the email to Professor Mackenzie and Mr Jordan on 8 May 2024 that it was important that she confirm her employment status as ‘it impacts mortgages and a variety of other life factors’. Despite this, the University reneged on its commitment to convert Dr Khan’s employment to continuing and delayed advising Dr Khan of this until approximately two months after making this decision. The University has been unapologetic about its conduct in this regard, and it was clear from her demeanour during the hearing that Dr Khan is experiencing a high level of distress. It is reasonable to infer that at least some of this distress arises from the University’s decision not to continue Dr Khan’s employment beyond 30 April 2025. In my view, Dr Khan’s conduct towards the University must be viewed against the University’s own conduct towards Dr Khan. This does not excuse Dr Khan’s conduct but goes some way to explaining it.
Ultimately, any concerns that the University has about Dr Khan’s conduct can be dealt with by the University as part of the employment relationship. This would give Dr Khan a proper opportunity to respond to these concerns, including by providing medical evidence if applicable.
Conclusion regarding the dispute
The Commission's role in dispute settlement procedures in an enterprise agreement are
in the nature of a private arbitration.[35] The University submitted that the representations made by it in relation to conversion of Dr Khan to continuing employment do not concern the operation of a provision of the 2023 Agreement and that steps taken to enforce those statements, do not fall within the scope of the 2023 Agreement dispute resolution provisions. I do not accept this submission. For the reasons already stated, Professor Mackenzie could only have been referring to clause 17.1(c) of the 2018 Agreement which is now clause 16.5(e) of the 2023 Agreement when representing to Dr Khan that there would be an opportunity to convert to continuing employment after 12 months. There is no material before me which establishes that Professor Mackenzie was authorised to make such representations by an instrument other than the 2018 Agreement such as a policy or contract.
Although Dr Khan has claimed that the University is under a ‘contractual obligation’ to convert her employment to continuing employment, such a characterisation does not prevent the Commission from dealing with a dispute about the operation of a provision of the 2023 Agreement. In my view, the dispute is clearly about the operation of clause 16.5(e) of the 2023 Agreement because Dr Khan submits that the offer made by Professor Mackenzie under that provision should result in her employment continuing on an ongoing basis beyond 30 April 2025. However, the University disputes that the clause operates to provide that outcome in circumstances where it has decided that it no longer requires the Phase 1 Coordinator role.
I have decided that clause 16.5(e) of the 2023 Enterprise Agreement operated to convert Dr Khan to continuing employment on 1 May 2024 with effect from 1 May 2025, taking into account all of the following matters:
Professor Mackenzie’s representations to Dr Khan on 1 February and 28 March 2023 that there would be an opportunity for Dr Khan to convert to continuing employment after 12 months, pending satisfactory performance;
Representations by Professor Mackenzie, Dr Hashmi and Mr Jordan during April and May 2024 that Dr Khan’s conversion would be actioned or discussed with HR;
Mr Jordan and Professor Mackenzie not responding to Dr Khan’s email of 8 May 2024 which invited them to advise her if they disagreed with her assertions that the University is under a contractual obligation to convert her position to permanent on 1 May 2025;
Professor Mackenzie’s evidence that the reason she did not respond to the email of 8 May 2024 is because she did not disagree with any of Dr Khan’s assertions in the email;
Professor Mackenzie’s evidence that the only reason that Dr Khan’s employment was not converted to a continuing is because of the University’s decision that it no longer requires the position of Phase 1 Coordinator;
The University did not advise Dr Khan at any time that once Dr Khan had been confirmed as having satisfactory performance there were other matters that could result in conversion not proceeding;
There is nothing in the 2023 Agreement which states that there is a requirement that a fixed term role remain exactly the same before continuing employment can be offered; and
My finding that the University’s decision to convert Dr Khan to continuing employment was separate and distinct to the contract of employment.
I have considered the University’s submissions about whether there is a workable relationship between Dr Khan and the people with whom she would be required to work with if her employment with the University continues. In my view, there is insufficient evidence to establish that the relationship is not workable. In any event, I find that this is not a matter prevents Dr Khan’s employment continuing as the University can address these issues directly with Dr Khan as part of the employment relationship.
The effect of my decision is that Dr Khan is a continuing employee of the University with effect from 1 May 2025. In accordance with clause 9.4(b) of the 2023 Enterprise Agreement, the parties should now take steps to implement this decision.
DEPUTY PRESIDENT
Appearances:
Dr S. Khan, Applicant
Ms S. Bahas, legal representative from the University of New South Wales, for the Respondent
Hearing details:
2025
23 and 24 April 2025
Via Microsoft Teams
[1] Digital Court Book (DCB), 86
[2] DCB, 88
[3] DCB, 87
[4] DCB, 91
[5] DCB, 90-91
[6] DCB, 97-98
[7] DCB, 95-96
[8] DCB, 95
[9] DCB, 93-94
[10] DCB 93
[11] Witness Statement of Tony Jordan dated 16 April 2025 [16], Ibid 140
[12] DCB, 147
[13] Ibid
[14] DCB, 149
[15] Ibid
[16] DCB, 152
[17] Ibid.
[18] Witness Statement of Tony Jordan dated 16 April 2025 [7], DCB 138
[19] Ibid
[20] Witness Statement of Professor Tara Mackenzie dated 16 April 2025 [12], DCB 269-270
[21] Ibid
[22] Witness Statement of Tony Jordan dated 16 April 2025 [17], DCB 140
[23] Ibid [18], DCB 140
[24] Ibid [19], DHB 140-141
[25] Witness Statement of Professor Tara Mackenzie dated 16 April 2025 [13]-[14], DCB 270
[26] Witness Statement of Tony Jordan dated 16 April 2025 [22], DHB 141
[27] Witness Statement of Professor Tara Mackenzie dated 16 April 2025 [19], DCB 272
[28] Witness Statement of Professor Tara Mackenzie dated 16 April 2025 [16]-[18], DCB 271-272
[29] Witness Statement of Tony Jordan dated 16 April 2025 [23], Ibid 141
[30] Ibid [25], DHB 141
[31] Ibid [27], DHB 142
[32] Ibid [29], DHB 142
[33] Ibid [20], DCB 272
[34] Ibid [21]-[22], DCB 272
[35] Kentz (Australia) Pty Ltd –v- Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Construction Forestry Mining and Energy Union –v- The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645.
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