Shaw v University of Queensland
[1999] IRCA 3
•14 Apr 1999
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
Shaw v University of Queensland [1999] IRCA 3
DR ROSLYN MARY SHAW v UNIVERSITY OF QUEENSLAND
QI 1008R OF 1996
RYAN J
14 APRIL 1999
MELBOURNE
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QI 1008R OF 1996
BETWEEN:
DR ROSLYN MARY SHAW
ApplicantAND:
UNIVERSITY OF QUEENSLAND
RespondentJUDGE:
RYAN J
DATE OF ORDER:
14 APRIL 1999
WHERE MADE:
MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS:
1.That the application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QI 1008R OF 1996
BETWEEN:
DR ROSLYN MARY SHAW
ApplicantAND:
UNIVERSITY OF QUEENSLAND
RespondentJUDGE:
RYAN J
DATE:
14 APRIL 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application pursuant to s 170EA of the Industrial Relations Act 1988 (“the Act”). The applicant had been employed by the respondent (“the University”) pursuant to various contracts of employment under which she held various temporary and fixed-term lectureships between July 1983 and June 1994. On 1 July 1994 the applicant was appointed by the University to the position of Lecturer in the Faculty of Dentistry for a period to expire on 31 December 1998.
The Vice-Chancellor of the University, Professor Wilson, wrote to the applicant a letter dated 23 August 1995 which included the following passages:
“Following my review of your file and extended consultation with relevant officers of the University, I have reached the conclusion that your ‘capacity to perform the duties of [your] office is in doubt’ [Clause 14(a)]. Specifically, I am concerned that your continuing disruptive behaviour is evidence of disturbance in your mental state, of a kind that compromises the effective performance of your duties.
I therefore require you, in accordance with Clause 14(b), to undertake a medical examination at the University’s expense to assess whether you are able to perform your duties. Please contact Dr Tony Arklay at the University Health Service in the first instance. Dr Arklay will refer you to the appropriate specialist(s) for consultation…
In the circumstances, I believe it is in the interests of your health and welfare for you to be relieved of your departmental duties until the necessary medical consultations have been completed. Accordingly, you are hereby relieved of the performance of your duties pending the outcome of the medical examinations. Your salary will continue to be paid as normal.”
On 23 August 1995, the applicant telephoned Dr Arklay at the University Health Service and informed him that she had been required by Professor Wilson to undergo a psychiatric examination. The applicant made an appointment to see Dr Arklay on 25 August 1995. In an affidavit sworn 1 July 1996 Dr Arklay deposed as follows:
“5.I met with Dr Shaw on 25 August 1995. Dr Shaw asked me a number of questions about the basis of the allegations and the reports from the psychiatrists. We discussed the award process. She said that she was very upset about the process that the University had embarked upon. She denied any problems. She said she was popular and successful in the Department and saw the requirement that she undergo a psychiatric examination as a conspiracy by the university. I assured her that it would be a fair assessment by an independent psychiatrist. We also discussed whether she would wait for two months to elapse as she was entitled to do pursuant to the awards, or whether she would attend the examination early. She thought about it and indicated subsequently that she would wait the two months.
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7.I then gave consideration to selecting a psychiatrist to conduct the medical examination. I sought advice from a number of psychiatrists and formed the view that the most appropriate person would be a reputable, experienced and independent psychiatrist with no connection with the University. I decided upon Dr Martin Nothling.
...
9.An appointment was arranged for Dr Shaw to see Dr Nothling on 30 October 1995. I informed Dr Shaw of that in a telephone conversation on 29 August 1995 and confirmed the details in a letter to Dr Shaw dated 30 August 1995.”
That letter was in these terms:
“Further to our telephone conversation of 29 August 1995, I wish to confirm that your appointment to see Dr Martin Nothling, psychiatrist, at Silverton Place, 101 Wickham Terrace, is at 1.00pm on Monday 30 October 1995. I understand this appointment will be a lengthy one (up to four hours) and several consultations probably will be required. If you have any questions about this do not hesitate to contact me.”
Dr Chiswell, President of the National Tertiary Education Union, wrote to Professor Wilson, presumably on behalf of the applicant, by letter dated 30 August 1995 requesting that Professor Wilson reconsider his decision to relieve the applicant of teaching duties in her Department. Dr Chiswell’s letter contained this passage:
“I have learnt from Dr Shaw that Dr Arklay is ‘briefing’ medical practitioners who may possibly agree to undertake the medical examination that your letter to Dr Shaw requires. It would appear to me that such ‘briefing’ could be extremely prejudicial to the outcome of any medical examination that Dr Shaw may undertake. While in no way suggesting that the medical practitioner who undertakes the examination will operate but at the correct professional level, it does seem apparent that if all the ‘adverse’ material (which I assume that the University possesses) is given to the practitioner, he/she could be perceived to start the procedure with a bias. Certainly Dr Shaw sees the ‘briefing’ actions in this light, and consequently sees herself as having to ‘defend’ herself against psychiatric inquiry.”
Dr Chiswell again wrote to Professor Wilson on 8 September 1995 reiterating the matters raised in his earlier letter and requested that Dr Shaw be provided with “all that material that has been used by you to form your ‘opinion’ that Dr Shaw should undergo medical examination”.
Following written advice from Mr Porter, the University’s Secretary and Registrar, Professor Wilson wrote to Dr Chiswell a letter dated 15 September 1995 in which he agreed to release to the applicant medical opinions concerning her together with the relevant file material. The letter contained the following passage:
“I do not accept your arguments that the release of the file material to the designated medical examiner would be prejudicial. I would have thought that it was essential. I know that Dr Arklay is also of that view and has received similar advice from Dr Lawrence as well as a request from the designated medical examiner. We must be guided by the medical advice in this matter.”
The applicant did not keep her appointment on 30 October 1995 with Dr Nothling. In a letter dated 7 November 1995, Professor Wilson wrote as follows to the applicant:
“I have been informed that you did not keep your appointment with Dr Nothling, scheduled for Monday, 30 October.
I should draw your attention to Clause 16(i) of the award governing academic conditions of employment. [The award has been renamed the Universities and Post Compulsory Academic Conditions Award 1995, following variations handed down by the IRC this year. Clause 16 deals with termination on the grounds of ill health]. The relevant section reads:
‘A Chief Executive Officer may construe a failure by a staff member to undergo a medical examination in accordance with these procedures within 3 months of a written notification to do so as prima facie evidence that such a medical examination would have found that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within 12 months, and may act accordingly…’
I would therefore remind you of the requirement to meet with Dr Nothling.
Since my letter initiating the procedures under this clause was dated 23 August 1995, the three-month period expires on 23 November. Since I am writing to you six working days after your failure to attend the appointment, I am prepared to extend the period within which the appointment should take place until 1 December 1995.
Please advise me when you have arranged a further appointment.”
The applicant did not attend for an appointment with Dr Nothling by 1 December 1995. In a letter dated 12 December 1995, Professor Wilson wrote to the applicant in the following terms:
“I wrote on 7 November 1995 reminding you of my requirement that you attend a medical examination with Dr Nothling by 1 December 1995.
As you have not undergone a medical examination as notified, I have decided to construe your failure to do so as prima facie evidence that such medical examination would have found that you are unable to perform your duties and are unlikely to be able to do so within 12 months.
Clause 6 of the Award provides that I may offer you the opportunity to submit a resignation and I do so now. If I have not received your written offer of resignation by 5pm Friday 15 December 1995, I shall terminate your employment with six months.”
On 20 December 1995 a meeting was held between the applicant, her legal advisers and the legal representatives of the University including Mr Byrom, the University’s legal officer. On the same day, Mr Byrom wrote this letter to Professor Wilson:
“The meeting this morning between Dr Shaw and her solicitors on the one side and myself and Mr Bartley of Corrs Chambers Westgarth for the University was unable to reach any common ground over the termination of Dr Shaw’s employment with the University.
Accordingly, as we have previously discussed, I recommend you act under the Award to terminate her employment with 6 months and I attach a suitable letter for your signature.”
A letter dated 21 December 1995 from the applicant’s legal advisers to the legal advisers of the University included this passage:
“We refer to our meeting of 20 December 1995. We confirm the offer put at that meeting that our client will attend and obtain a psychiatric report from a psychiatrist nominated by her. As part of that assessment our client would be prepared to provide to the psychiatrist the material obtained by our client under the Freedom of Information Act which, it would appear, was provided to the two psychiatrists relied upon by the university in relation to the action it has taken.
Alternatively, and this is not a matter we raised in the meeting yesterday, our client is prepared to nominate two psychiatrists and the Vice-chancellor or his representative can choose from those two. An examination would then be carried out on the same basis as above.”
In the meantime Professor Wilson had written this letter to the applicant dated 20 December 1995:
“As I foreshadowed in my letter of December 12th, 1995, and acting under clause 16 of the Universities and P[o]st Compulsory Academic Conditions Award 1995, I hereby terminate your employment with six months notice.”
On 4 January 1996 the applicant applied pursuant to s 170EA of the Act for relief against unlawful termination of employment. Attached to that application was a document headed “Application” in these terms:
“Application under the Industrial Relations Act 1988.
In addition to the relief sought in the attached form the Applicant seeks the following additional relief: -
1.An order imposing a penalty upon the Respondent as a consequence of breach of clause 16 of the Universities and Post Compulsory Academic Conditions Award 1995.
2.A permanent injunction restraining the Respondent from breaching or continuing to breach clause 16 of the Universities and Post Compulsory Academic Conditions Award 1995.
3.A declaration that it is an implied term of the applicant’s contract of employment that the respondent would not conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee.
4.An injunction restraining the respondent from breaching or continuing to breach the clause referred to in paragraph 3 hereof.
5.An order specifically enforcing the applicant’s contract of employment with the employer.
6.Damages for breach of contract of employment.
7.Such further or other relief as this Honourable Court deems fit and proper.”
It was submitted by Ms Dick of Counsel for the applicant that the University had been in breach of what, since 11 May 1995, had been known as cl 14 of the Universities and Post Academic Conditions Award 1995 (“the Award”). That clause, so far as is relevant, was in the following terms:
“Clause 14 – TERMINATION OF EMPLOYMENT ON THE GROUNDS OF ILL HEALTH
(a)The Chief Executive Officer may require, in writing, any staff member whose capacity to perform the duties of his or her office is in doubt to undergo a medical examination by a medical practitioner chosen by the institution at the expense of the institution.
(b)The Chief Executive Officer shall provide a staff member with written notice of not less than 2 months that a medical examination is required. Where the staff member elects to apply to the staff member’s superannuation fund, prior to the expiry of the period of the notice, for ill-health retirement or temporary disability benefit pursuant to the rules of the superannuation fund, the requirement for a medical examination under subclause (a) hereof shall lapse forthwith and no further action shall, subject to subclause (c) hereof, be taken by the Chief Executive Officer under this clause.
...
(d)A copy of the medical report made by the medical practitioner pursuant to subclause (a) hereof shall be available to the Chief Executive Officer and to the staff member.
(e)If the medical examination reveals that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within a reasonable period, being not less than 12 months, the Chief Executive Officer may, subject to subclause (f) hereof, terminate the employment of the staff member in accordance with the notice required by the staff member’s contract of employment or where no notice is specified a period of 6 months. Prior to taking action to terminate the employment of a staff member, the Chief Executive Officer may offer the staff member the opportunity to submit a resignation and, if such a resignation is offered, shall accept it forthwith and not proceed with action to terminate employment.
(f)If within 14 days of the report being made available, if the staff member or a person acting on their behalf so requests, the Chief Executive Officer shall not terminate the employment of the staff member in accordance with subclause (e) hereof unless and until the findings of the report are confirmed by a panel consisting of three medical practitioners, one of whom shall be appointed by the institution, one by the staff member or by a person acting on his or her behalf, and one by the President of the State or Territory Branch of the Australian Medical Association. The panel shall not include the practitioner who made the initial report.
...
(i)A Chief Executive Officer may construe a failure by a staff member to undergo a medical examination in accordance with these procedures within 3 months of a written notification to do so as prima facie evidence that such a medical examination would have found that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within 12 months, and may act accordingly; provided that such a refusal by a staff member in these circumstances shall not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report.”
I did not understand Counsel for the applicant to dispute that allegations had been made with respect to the applicant’s behaviour at work. However, Counsel sought to characterise those allegations, not as indicating a disturbance of the applicant’s health, but rather as relating to what Counsel termed “employment problems”. It followed, so it was submitted, that the allegations related to the “employment problems” of the applicant were amenable to the disciplinary procedures established pursuant to the Award and were not matters comprehended by the procedures established under the Award for investigating alleged incapacity on the ground of ill-health. It was not open to the University to, as Counsel put it, “misuse” the Award by initiating a procedure pursuant to cl 14 of the Award which resulted in the termination of the applicant’s employment. Mr Murdoch of Counsel for the University, however, submitted that, notwithstanding that the University had been empowered to proceed pursuant to the disciplinary procedures in the Award if the applicant’s conduct was capable of being characterised as “unsatisfactory performance”, “misconduct”, or “serious misconduct”, Professor Wilson was also able to invoke cl 14 of the Award upon his forming a doubt as to the capacity of the applicant to perform her duties.
Sub-clause 14(a) of the Award, it will be remembered, provides:
“The Chief Executive Officer may require, in writing, any staff member whose capacity to perform the duties of his or her office is in doubt to undergo a medical examination by a medical practitioner chosen by the institution at the expense of the institution.”
That sub-cl confers on the Chief Executive Officer a discretion to require a staff member to undergo a medical examination provided that two criteria are satisfied. First, the power is to be exercised if, and only if, the person required to undergo the medical examination is a staff member whose capacity to perform the duties of her office “is in doubt”. Secondly, I infer from the use of the expression “is in doubt”(emphasis added), that the doubt must exist contemporaneously with the exercise of the discretion by the Chief Executive Officer.
While sub-cl (a) does not specifically require that the doubt be that of the Chief Executive Officer, it would, in my view, be inappropriate to read the sub-clause as allowing the Chief Executive Officer to exercise a discretion to require a staff member to undergo a medical examination where the Chief Executive Officer did not hold, or at least share, a doubt as to the staff member’s capacity to perform the duties of his or her office.
It follows, in my view, that any decision by the Chief Executive Officer to require a staff member to undergo a medical examination pursuant to sub-cl 14(a) of the Award must be based upon a doubt presently held, at the very least by the Chief Executive Officer, as to the staff member’s capacity to perform his or her duties.
Furthermore, the doubt as to the capacity of a staff member to perform the duties of his or her office must, I consider, be a reasonable one in the sense that it must be reasonably open to the Chief Executive Officer upon the evidence. However, it is also to be borne in mind that the existence of the doubt by the Chief Executive Officer as to the capacity of the staff member to perform his or her duties is merely the first operative requirement for the invocation of the procedure stipulated by cl 14 of the Award. In this context, and in the light of the other requirements contained in cl 14, the Award, in my view, contemplated that, although the University bears the onus of establishing the reasonableness of the doubt, that onus is not a high one.
The evidence discloses that the Secretary and Registrar of the University, Mr Porter, sent a memorandum dated 5 March 1995 to Professor Wilson, the Vice-Chancellor of the University. That memorandum was in the following terms:
“The attached memorandum from the Director of Personnel Services catalogues a series of recent incidents and interactions involving Dr Ros Shaw in the Department of Dentistry.
The Pro-Vice-Chancellor (Health Services), the Head of Dentistry and the Director of Personnel Services are at a complete loss as to how to deal with her persistent allegations and complaints. She appears to have continuing difficulty in accepting direction from her Head of Department and in working harmoniously with her colleagues.
Would you be prepared to talk to her to see if we can get her to settle down and concentrate on achieving tenure rather than in pursuing what increasingly appears to be a vendetta against pretty well everyone in the University with whom she has any formal contact?”
That memorandum had attached to it another memorandum dated 27 February 1995 to Mr Porter from the Director, Personnel Services at the University, Mr Feeney, and also included what was described in Mr Feeney’s memorandum as a “summary of the situation with Dr Shaw for the Vice-Chancellor, in preparation for the proposed meeting with her.” On 1 June 1995 Professor Wilson had a meeting with the applicant. Professor Wilson’s affidavit sworn 29 May 1996 included these paragraphs:
“13.On 1 June 1995 I had a 45 minute meeting with Dr Shaw. In the context of her desire to obtain tenure, we discussed her teaching and research performance and relationships within the department. I reiterated the comments made in my letter of 13 July 1994 … about the importance of collegial relations in the effective operations of any department. When I referred to complaints from women staff, Dr Shaw claimed that Mrs Symons had perjured herself in court, spreading slanderous remarks about her. She alleged that Mrs Symons had acted unprofessionally in saying that she would ensure that Dr Shaw would not get promotion. The inference was clear; Dr Shaw regarded Mrs Symons as less well qualified than herself.
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16.In about June 1995, I had a meeting with Mr Feeney and Mr Porter, the Secretary and Registrar to discuss Dr Shaw’s employment. Mr Feeney informed me that the Head of the Dental School and his office staff felt as though they were under siege. He said that Dr Shaw’s relationship with a number of her colleagues in the School had broken down and her long, emotive and at times hysterical phone calls were causing distress to a range of staff members in the Dental School as well as in the central administration. We discussed the fact that inordinate time was taken up in dealing with Dr Shaw in person or by phone and in producing file notes of the interactions. Mr Feeney said that he had serious concerns about the state of Dr Shaw’s mental health and suggested that her behaviour raised the question whether proceedings under the relevant clause of the award governing academic staff entitled ‘Termination on the Grounds of Ill Health’ (‘the clause’) were indicated. We discussed the serious implications of deciding to proceed under the clause. The Personnel Services Department had maintained a file containing documents concerning Dr Shaw since her July 1994 appointment. It was suggested that to enable me to decide whether to proceed under the clause, a senior psychiatrist should be requested to review that file and offer an opinion on Dr Shaw’s state of mind.
17.It was agreed that Dr Feeney should assemble the personnel file on Dr Shaw in chronological order and send it to Professor Raphael in the Department of Psychiatry with a view to her advising me about the appropriateness of moving under the ‘Termination on the Grounds of Ill Health’ clause. I also requested Mr Byrom to provide me with advice to assist me in making a decision about how to deal with employment problems effecting [sic] Dr Shaw.”
Mr Byrom, the legal officer of the University, wrote to Professor Wilson on 24 July 1995 a letter which began:
“You have asked me to provide comment and advice in relation to certain steps that you are contemplating to assist you to make a decision about how to deal with employment problems affecting Dr Shaw and, in particular, whether to deal with her case under the provisions of the Academic Staff Award that deal with termination of employment on the grounds of ill health.
Under that clause, for you to take action you must form the judgement that Dr Shaw is a staff member whose capacity to perform the duties of her office is in doubt. You have received some advice to suggest that this may be so and I confirm my view that it is entirely appropriate for you to seek written advice about this matter from two qualified practitioners who are themselves either on the staff of, or associated with, the University.”
Professor Raphael, a psychiatrist and Head of the University’s Department of Psychiatry, wrote to Professor Wilson on 4 August 1995 attaching a copy of what she described in a covering letter as a “report provided from records made available to me concerning Dr R Shaw.” That report began:
“The following is an opinion given for the Vice-Chancellor on examination of file notes concerning Dr R Shaw. It is an opinion on the basis of information of this kind and is not put forward in any way as a psychiatric assessment of an individual. The matters outlined below indicate a cause for concern about the distress reported to be perceived as being experienced by a staff member and by descriptions provided by others of the behaviour of that staff member. It is recognised in providing this opinion that such information forms only one part of the information that would be available to make an assessment of an individual’s ongoing mental state or the presence or absence of a psychiatric disorder. Nevertheless, as will be outlined below, it is my opinion that significant evidence exists within the notes provided to be a cause for concern and a reason for seeking further assessment. Such assessment would be in the interest of the numerous independent individuals who report distress from interactions with Dr Shaw and in the interests of Dr Shaw herself.
It is recognised that these reports may only be hearsay but the frequency and independence of the reports must be a source of concern, not only about distress being presented, or as presented by, M/s Shaw, but also about the disturbance caused to the functioning of the University by the allegations put forward by M/s Shaw.
The nature of the information on which this opinion is based covers the period chiefly from April 1994 through until June 1995. Information is also available from earlier than this time.”
After considering the evidence contained in the notes from Dr Shaw’s file, the report concluded:
“For all these reasons, there is cause to be concerned about Dr Shaw, both in terms of her behaviour within the Department of Dentistry and University and the distress which she openly acknowledges, as well as the threat she perceives in her environment, and her failure to recognise the impact of her behaviour on others, about whom she indicates no concern whatsoever.
It is therefore my opinion on the matter as it is presented to me, that this warrants an assessment of Dr Shaw’s mental state and Dr Shaw’s condition. To make such an assessment would provide a basis for examining the potential source of Dr Shaw’s difficulties and provide ways in which these could be addressed. It is my view that such an assessment would be in Dr Shaw’s interests, particularly in view of the apparent escalating level of her distress and the escalating nature of her accusations and threatening behaviour towards the University and members of the Department of Dentistry.”
On 7 August 1995 Dr Lawrence, a psychiatrist and Clinical Associate Professor in Psychiatry within the University, wrote a letter to Professor Wilson which contained this passage:
“On the material supplied to me I am convinced that Dr Ros Shaw displays evidence of a paranoid disorder. Initially one might consider that the difficulties reflected a paranoid personality disorder with grandiosity, paranoia and narcissism. Such a condition is not considered to be a true mental illness. It is a type of personality disturbance however which can interfere with a person’s functioning ability and particularly affect the cooperative relationships which are necessary for efficient performance in a workplace, no matter what the task. However, in my opinion, the material indicates an escalating disorganisation of thought with the development of what must be regarded as delusions and increasingly disorganised behaviour and affect, to the point where the question of mental illness becomes a strong possibility. Her ability to efficiently perform her duties and to function are likely, in my opinion, to be significantly jeopardised by such a condition.
I would stress that this opinion is based on the material provided. One obviously cannot make a diagnosis on an individual without a clinical examination and possible further investigation. However, I would earnestly recommend that Dr Shaw be requested to undergo an independent psychiatric assessment for the purpose of determining her fitness to continue her work.”
Professor Wilson deposed in paragraphs 22 and 23 of his affidavit:
“22.Because of the serious nature of the decision before me, I considered both reports very carefully.
23.Following my consideration of the reports received from Professor Raphael and Dr Lawrence, I formed the view that Dr Shaw’s capacity to perform the duties of her office was in doubt. I decided to require her to undergo a medical examination in accordance with the academic staff award.”
As previously observed, I did not understand Counsel for the applicant to dispute that various matters had been raised concerning the conduct of the applicant in the course of her employment. The evidence discloses, for example, that a memorandum from Mr Porter to Professor Wilson dated 5 March 1995 referred to a “series of recent incidents and interactions involving Dr Ros Shaw” and also commented that certain staff members “were at a complete loss as to how to deal with her persistent allegations and complaints”. As a result of that memorandum, Professor Wilson had a 45 minute meeting with the applicant on 1 June 1995. At that meeting the applicant raised various matters which were referred to in paragraph 13 of Professor Wilson’s affidavit quoted above. However, the evidence discloses that the meeting of 1 June 1995 between Professor Wilson and the applicant failed to resolve the matter. The evidence also reveals that it was at this stage that Professor Wilson entertained a doubt as to the capacity of the applicant to perform her duties and was inclined to proceed pursuant to cl 14 of the Award. Professor Wilson was asked by the Judicial Registrar in the proceedings before the Judicial Registrar:
“So when was it that you gave serious consideration to the mental health aspect?”
Professor Wilson replied, in reference to the matters referred to above in paragraph 16 of his affidavit:
“At this meeting in June”.
In my view, on the evidence before Professor Wilson at the time of his decision in early June 1995 to proceed pursuant to cl 14 of the Award, his entertaining a doubt as to the capacity of the applicant to perform her duties was reasonable. Not only had members of the applicant’s Department expressed doubts to Professor Wilson about the state of her health, but he also had before him the written medical opinions of two psychiatrists which, I note, the Award did not specifically require him to obtain. Those opinions, expressly qualified as having been prepared in the absence of a direct assessment of the applicant, were nevertheless based upon the documents in the applicant’s file.
Upon the non-attendance of the applicant within three months of a written request to attend for a medical examination by a medical practitioner chosen by the University, Professor Wilson was authorised by sub-cl 16(i) of the Award to construe a failure of that kind as prima facie evidence that such a medical examination would have found that the applicant was unable to perform her duties and was unlikely to be able to resume them within 12 months. Professor Wilson was then empowered to “act accordingly”.
In my view, the use of the expression “ to act accordingly” in the context of sub-cl 16(i) confers a power upon the Chief Executive Officer to act in a manner consistent with the discretion conferred by that sub-cl. As the sub-cl empowers the Chief Executive Officer to deem a failure to attend for a medical examination to be prima facie evidence that such a medical examination, if it had occurred, would have found evidence of inability, for reasons of ill-health, to perform duties, the expression “to act accordingly” in my view, consistently with the sub-cl, reposes in the Chief Executive Officer a discretion to dismiss the employee concerned on medical grounds.
Professor Wilson deposed in paragraph 35 of his affidavit:
“Following Mr Byrom’s advice that his meeting with Dr Shaw and her legal advisers had been unproductive, I reviewed again the documentation of the case. I determined that I should proceed to terminate Dr Shaw’s employment with the University of Queensland, and so advised Dr Shaw in writing on 20 December 1995.”
Before the Judicial Registrar, Professor Wilson was asked in cross-examination by Ms Linnane of Counsel for the applicant what factors he had taken into account in exercising his discretion to terminate the employment of the applicant.
Professor Wilson replied as follows:
“…the most important element in it was the fact that Dr Shaw had indicated previously that she was happy to…follow the direction to see the external psychiatrist. And I was really taken aback to learn at the beginning of November that she had not kept that appointment, and as you’re aware, I wrote to her advising her that time was running out and extending the time in order that she would take seriously the implications, because, of course, the...paragraph that is here was in that letter. And my view was that if she – if I did not take this action, the University would be left in a - in a position where it could hardly resume the whole action again, and consequently the attempt to alleviate the distress within the department would fail, and really there was nowhere else to go”.
Professor Wilson continued:
“…that was the major element, but I think I can say that I took account the fact that at no time did I have any evidence that Dr Shaw intended to reverse her tactics within the department and the best thing for all of us was to separate.”
No evidence was proffered to support the conclusion that in deciding to dismiss the applicant for reasons of ill-health, Professor Wilson had been actuated by considerations other than those to which he had deposed in his affidavit and of which he gave oral evidence under cross-examination before the Judicial Registrar. Moreover, if, as the applicant submitted, the University had sought to “misuse” the Award, the applicant could have thwarted the endeavour by attending for a medical interview as requested.
Counsel for the applicant, however, further submitted that the applicant’s non-attendance at a medical examination should not have put her in a worse position than that which she would have occupied had she, in accordance with the provisions of the Award, attended for a medical examination and been the subject of an adverse medical report. It was submitted that, pursuant to sub-cl 16(f) of the Award, the applicant was entitled to have any adverse medical report confirmed by a panel of three medical practitioners.
Sub-clause (f) includes a direction that “…the Chief Executive Officer shall not terminate the employment of the staff member in accordance with sub-cl (e) hereof unless and until the findings of the report are confirmed by a panel consisting of three medical practitioners…” (emphasis added). In my view the review procedure erected by sub-cl (f) is clearly predicated upon the existence of a medical report the findings of which are confirmed or otherwise by a panel of three medical practitioners. It follows that the review procedure afforded by sub-cl 16(f) does not extend to the review of a decision by the Chief Executive Officer pursuant to sub-cl 16(i) of the Award to construe a failure to attend for a medical examination as prima facie evidence that such an examination, if it had occurred, would have produced a medical report adverse to the applicant.
The applicant has also lodged a claim alleging unlawful termination of employment in contravention of s 170DE(1) of the Act. That section provides:
“An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”
It was submitted by Counsel for the applicant that the termination of the applicant’s employment was not for a valid reason if the termination was purportedly effected pursuant to a provision of the Award which it was not open to the respondent to rely upon. Counsel submitted that to “manipulate” the Award in this manner, as Counsel put it, was to avoid according to the applicant the rights and entitlements which would have been available to her if the University had (correctly) applied those clauses of the Award relating to unsatisfactory performance, misconduct or serious misconduct.
In my view a valid reason for termination of employment “connected with the employee’s capacity” is established if the employer can show a reasonably held belief upon the evidence available at the time of the termination of employment, that the employee’s capacity to perform the duties required pursuant to the contract of employment had been diminished to such an extent that the employee was no longer able to perform those duties required of him or her pursuant to the contract of employment.
The expression “employee’s capacity” as used in s 170DE(1) comprehends the employee’s capacity to perform, in the future, the duties required pursuant to the contract of employment. If an employer has a reasonably held view that an employee’s state of health has significantly diminished that employee’s capacity to perform his or her duties pursuant to the contract of employment, then the employer has a valid reason for termination under s 170DE(1) of the Act.
In the present case no investigation was conducted by the University into any allegations made against the applicant and I did not understand the University to submit that its resort to the procedure afforded by cl 14 of the Award was actuated by anything other than a desire to resolve a doubt as to the applicant’s capacity to perform her duties. As already observed, in my view, the doubt held by Professor Wilson as to the applicant’s capacity to perform her duties was reasonable upon the evidence before him.
Mere compliance with the provisions of an award will not of itself establish that at the time of the termination of employment, an employer had a reasonably held belief that an employee’s capacity to perform his or her duties was diminished to such an extent that it could be reasonably apprehended by the employer that the employee was no longer able to perform the duties required by the contract of employment. However, compliance with the provisions of an award may nevertheless be relevant to the extent that the award provides an agreed or accepted procedure or mechanism to be followed by an employer before deciding to terminate the employment of an employee.
As previously observed, Professor Wilson had written to the applicant in a letter dated 23 August 1995 which contained the following passages:
“Following my review of your file and extended consultation with relevant officers of the University, I have reached the conclusion that your “capacity to perform the duties of [your] office is in doubt” [Clause 14(a)]. Specifically, I am concerned that your continuing disruptive behaviour is evidence of disturbance in your mental state, of a kind that compromises the effective performance of your duties.
I therefore require you, in accordance with Clause 14(b), to undertake a medical examination at the University’s expense to assess whether you are able to perform your duties. Please contact Dr Tony Arklay at the University Health Service in the first instance. Dr Arklay will refer you to the appropriate specialist(s) for consultation…
In the circumstances, I believe it is in the interests of your health and welfare for you to be relieved of your departmental duties until the necessary medical consultations have been completed. Accordingly, you are hereby relieved of the performance of your duties pending the outcome of the medical examinations. Your salary will continue to be paid as normal.”
Dr Arklay at the University Health Service had arranged for the applicant to attend for a medical examination with a psychiatrist, Dr Nothling, on 30 October 1995. The applicant did not keep that appointment. Professor Wilson had then written to the applicant in a letter dated 7 November 1995 in which he drew to the applicant’s attention the possible consequences pursuant to sub-cl 14(i) of the Award of a failure by the applicant to attend for a medical examination. He also extended to 1 December 1995 the period within which the applicant was required to attend for a medical examination with Dr Nothling. Furthermore, although Dr Chiswell, President of the National Tertiary Education Union, had written to the University, presumably on behalf of the applicant, in relation to certain matters, at no stage before Professor Wilson wrote to the applicant terminating her employment on 20 December 1995, did the applicant communicate with the University her intention in connection with the medical examination she was required to attend.
In my view, therefore, the University had, in the absence of any explanation by the applicant, evidence from which it could reasonably apprehend that the applicant’s capacity to perform her duties had been significantly diminished.
It was not disputed that, at a meeting between the applicant, her legal representatives and Mr Byrom, the University’s Legal Officer on 20 December 1995, the applicant’s legal representatives proposed that the applicant be permitted to obtain a psychiatric report from a psychiatrist nominated by her. Mr Byrom deposed in paragraph 25 of his affidavit sworn 5 July 1996:
“…I rejected that offer. Later that day I sent a memorandum to the Vice-Chancellor in which I recommended that he act under the award to terminate Dr Shaw’s employment with six months notice.”
Before the Judicial Registrar, Mr Byrom had stated, in cross-examination by Ms Linnane of Counsel for the applicant:
“The University had taken the view that it had acted correctly under the clause of the award in nominating Dr Nothling as the appropriate person to do the job. It wanted Dr Nothling to do that job because on the advice it had received he was the best person in Brisbane at the time to do that job. He was a person who had absolutely no prior involvement with the University and we had carefully chosen somebody who we believe was appropriately neutral. Dr Shaw had refused to deal with Dr Nothling, and we were not prepared to consider seriously a proposition that instead the University would allow Dr Shaw to nominate either a single or two psychiatrists from which we had to choose.”
On the hearing of the review of the Judicial Registrar’s decision, Mr Byrom was asked in cross-examination by Ms Dick of Counsel for the applicant, “But as far as you were concerned, no such suggestion was going to be significantly considered?”
Mr Byrom replied:
“The suggestion on the 20th that we should abandon the Award process, abandon Dr Nothling and have Dr Shaw examined by a psychiatrist of her own choosing was not seriously considered.”
Later in his oral evidence Mr Byrom stated:
“…had there been a concession that there was a failure to adhere to the Award process by Dr Shaw having failed to go to Dr Nothling, it might have been considered in that way. But it certainly would not have been considered in that way when what was suggested was that it was wrong of the University to have insisted on her going to see Dr Nothling.”
In cross-examination by Ms Linnane of Counsel, before the Judicial Registrar, Professor Wilson stated:
“Mr Byrom’s instructions from me in going to that meeting were to see whether there was any way to facilitate the termination. He had no authority to negotiate any new issue … I am aware of the fact that there was a potential move to go back earlier in the proceedings and that, of course, is identified in the final paper which I got. But he had no authority to move from a position that the letter was to be sent and the letter of 20 December was sent by me before, in fact, I received the letter confirming the fact that Dr Shaw had offered to meet a psychiatrist…”
It is clear from the evidence of Professor Wilson that, by 20 December 1995 he had made a decision to terminate the applicant’s employment and that the purpose of the meeting on that day was, as Professor Wilson put it, to “facilitate the termination”. It is also clear from the evidence of Mr Byrom that if, at the meeting he attended on 20 December 1995, the applicant had sought to excuse or explain her failure to attend before Dr Nothling and requested an extension of time in which to comply with the Award procedure, that could have been a matter which Mr Byrom may have considered relevant to any recommendation to Professor Wilson in respect of a decision to terminate the applicant’s employment. However, no such excuse or explanation was offered by the applicant.
In circumstances where an employee is the subject of investigation by an employer and the employee has provided a reasonable explanation for a failure to comply with the procedural requirements specified in an award, the employer may not have a valid reason for terminating the employment of that employee where the employer unreasonably insists on strict adherence to those award provisions. Putting to one side any considerations of natural justice imported by s 170DC of the Act, the University would not, I consider, have had a valid reason for terminating the applicant’s employment if the University had sought to rely upon cl 14(i) of the Award to terminate the applicant’s employment where the applicant had not been apprised of the requirement to attend for a medical examination. However, it is clear from the evidence that the applicant had been fully apprised of the requirement to attend for a medical examination and chose instead not to attend.
As I have already observed, a termination of employment “connected with the employee’s capacity” will be for a valid reason if an employer reasonably concludes upon the evidence available at the time of the decision to terminate that the employee’s capacity had been diminished to such an extent that it could be reasonably apprehended by the employer that the employee was no longer able to perform the duties required under the contract of employment. The assessment of an employee’s future capacity to perform duties pursuant to the contract of employment will necessarily involve an examination of the employee’s past work performance and behaviour.
Section 170DC of the Act provides:
“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity.”
In my view the expression “conduct or performance” in s 170DC of the Act denotes past conduct and performance. It follows, therefore, that s 170DC of the Act is applicable to an examination by an employer of the capacity of an employee for reasons of ill-health to perform duties pursuant to that employee’s contract of employment. A proposed termination of employment for reasons of ill-health, although connected with an employee’s “capacity” as that term is used in s 170DE(1) of the Act, is also related to an employee’s past performance, and therefore attracts the application of s 170DC of the Act.
In this regard I construe the word “allegations” in s 170DC as including assertions that the employee is suffering from ill-health. It follows, therefore, that an employer who contemplates terminating an employee for reasons of ill-health is required by s 170DC of the Act to give that employee an opportunity “to defend himself or herself against the allegations made”.
In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7, Wilcox CJ observed:
“In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 209; 57 IR 50 at 59 I discussed the significance of s 170DC. I observed that the section imposed an important limitation on an employer’s power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the section.”
In the present case the applicant had received three letters from the University alerting her to the requirement that she attend for a medical examination, two from Professor Wilson and one from Dr Arklay at the University Health Service. The applicant had also been informed of the basis on which the examination was required. Moreover, the University had indicated the possible consequences entailed by the Award if the applicant failed to attend for a medical examination. Although the applicant was given an extension of time in which to attend for a medical examination, she declined to attend or to offer any explanation for that omission. In my view, the University had discharged the obligation imposed on it by s 170DC to give the applicant “an opportunity to defend herself against the allegations made”. Accordingly, in my view the University has, therefore, not been in breach of s 170DC of the Act.
In her application the applicant also sought:
“3.A declaration that it is an implied term of the applicant’s contract of employment that the respondent would not conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee.
4.An injunction restraining the respondent from breaching or continuing to breach the clause referred to in paragraph 3 hereof.
5.An order specifically enforcing the applicant’s contract of employment with the employer.
6.Damages for breach of contract of employment.”
I did not understand Ms Dick of Counsel for the applicant to make any submissions in respect of these matters. In any event, in the light of the views I have expressed and the conclusions I have reached, it is unnecessary to give further consideration to those additional matters.
Accordingly, for the reasons given, the application must be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 14 April 1999
Counsel for the Applicant: Ms J Dick Solicitors for the Applicant: Reidy & Tonkin Counsel for the Respondent: Mr J E Murdoch Solicitors for the Respondent: Corrs Chambers Westgarth Dates of Hearing: 18, 21, 23 and 24 April 1997 Date of Judgment: 14 April 1999
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