Smith v James Cook University

[2016] FWC 6010

[2016] FWC 6010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Professor Nicholas Smith
v
James Cook University

(U2016/2766)
SENIOR DEPUTY PRESIDENT RICHARDS	CAIRNS, 14 SEPTEMBER 2016

Application for relief from unfair dismissal – s.596 and scope of meaning of “efficiency” under s.596(1) - relative unfairness of unrepresented litigant opposed by legal representative addressed - reasonable presumption of intervention by Bench on legal questions – meaning of Full Bench reference to “workplace relations expertise” - ignorance of law – denial of procedural fairness- whether genuine redundancy – contested submissions – University prerogative to amend its strategic direction and re-focus its business as an employer

[1] This decision concerns an application by Professor Nicholas Smith under section 394 of the Fair Work Act 2009 (“the Act”), in relation to the termination of his employment from James Cook University (“JCU”) (“the University”). Professor Smith, who had been employed by the University at professorial level since 2011 seeks relief from the allegedly unfair dismissal.

[2] Professor Smith’s position was declared redundant by the University and he was dismissed in May 2016 (receiving a redundancy payment of some $127,000, plus payment for accrued entitlements).

[3] The University held that the Commission should not deal with the substantive application for reason that Professor Smith’s employment came to an end because of a ‘genuine redundancy’ in accordance with s.389 of the Act (which I set out further below). Given the operative effect of s.396(d) of the Act, I will determine this jurisdictional question before considering the merits of the substantive application made by Professor Smith. I also note, at this early juncture there is no contest between the parties that the University is a national system employer, and Professor Smith is a national system employee and that he is otherwise protected from unfair dismissal (under s.382(a) and s.382(b)(ii) of the Act).

Leave to Appear

[4] Prior to hearing this matter, Mr Williams, solicitor for MinterEllison, sought leave to appear on behalf of JCU during the hearing and appropriately provided submissions in support of this request to the Commission. Professor Smith opposed the Commission granting leave to appear to Mr Williams. I provided parties with the following Decision in relation to this request:

“Permission to appear for a legal representative in circumstances where a question of jurisdiction is afoot, such as under s.389 of the Fair Work Act 2009 (“the Act”) attracts wider considerations than might ordinarily be the case. This is because the jurisdictional question will require familiarity with the relevant authorities and statutory law, well beyond asserting matters of fact alone. Jurisdictional questions such as under s.389 of the Act can become complex matters and give rise to novel interactions of fact and law. In the circumstances before me, the employer is also being asked to consider the interaction of the jurisdictional question with the substantive matter, which again requires recourse to Commission authorities.

I consider the role of an informed legal representative to assist in the efficient conduct of this matter in such a context.

For reasons I give immediately below, I also consider the application will be dealt with more efficiently if a legal representative assists in the conduct of cross examination.

It would be unfair - in the circumstances before me - not to allow the respondent to be represented by a legal representative in circumstances in which it has itself no in-house legal support with experience in advocacy and cross examination in a content-rich matter (i.e. alone in relation to questions of a jurisdictional type). For these reasons I also grant permission for the respondent to be legally represented for the purposes of s.596 of the Act.

I add, having examined Professor Smith’s submissions in relation to the application under s.596, that it is important that s.596(2)(a) of the Act not be construed as a test of relative complexity as such. The Full Bench in Pearljit Singh Metro Trains Melbourne [2015] FWCFB 3502 dealt with an appeal from a decision by Vice President Watson in relation to a decision to allow legal representation under s.596 of the Act. While the Full Bench did not have the benefit of the Vice President’s decision (as it was given ex tempore and not recorded), the Full Bench made the following observations about the role of “complexity” in the context of s.596 (relative to “efficiency”) and the basis of the decision to construe the relative complexity of a given file. These are matters germane to my decision and they address some of the objection against permission being extended pressed by Professor Smith:

[…]

[2] Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied. But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex, does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.

[3] In any event, we do not consider that Ms Singh demonstrated any error in Vice President Watson’s consideration of the complexity of the matter. Having been allocated the matter and having the entire file before him, Vice President Watson was better placed than us to make the required assessment concerning complexity. We were not taken to the evidentiary material that has been filed in the matter, and consequently we were not in any position to conclude that there was a lack of complexity about the matter which forbade the conclusion that s.596(2)(a) was satisfied.

[4] We do not consider that any manifest injustice or unfairness arises from the Decision. Having seen and heard Ms Singh during the appeal hearing, it is apparent to us that she is a person capable of articulating her case. We do not consider there is any basis for the proposition that the respondent’s legal representative would take any unfair advantage of the situation. In any event were that to occur, or if Ms Singh had any difficulty in understanding any legal question which arose, there would no doubt be an appropriate intervention from the bench. Further, Ms Singh’s unfair dismissal remedy application was to be dealt with at a determinative conference rather than a formal hearing. The greater procedural informality of such a conference would significantly ameliorate any disadvantage perceived by Ms Singh.

[5] We reject as without foundation the suggestion that the respondent’s legal representative misled Vice President Watson about any factual matter such as to vitiate the Decision.” [footnotes omitted]

[5] Though I did not explore the Full Bench’s decision to any further extent with the parties at the time, I note further from the Full Bench’s decision that it disposed of the proposition that any (relative) unfairness might arise in circumstances in which an unrepresented litigant might be opposed to a legal representative in the course of a hearing. The Full Bench disposed of this proposition on the basis of its apprehension of the capabilities of the unrepresented litigant (a fact that would have been unknown to the Vice President at the time of his decision) along with what must be taken to be a reasonable presumption that should any legal question a rise “there would no doubt be an appropriate intervention from the bench.”

[6] Further, it is also important to note that there may be many grounds for a consideration of “efficiency” in the context of considerations of permission to appear under s.596 of the Act. The Full Bench cited the legal representative’s familiarity with the matter (for the purposes of the appeal proceedings). Familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter.

[7] In my own (initial) decision, I considered as relevant to the notion of “efficiency” the increased alacrity with which cross examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question. It is this last matter (familiarity with the Act and authorities) that gives me further cause to comment upon a recent decision of a Full Bench of the Commission.

[8] The Full Bench in Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520 (“the Full Bench”) considered circumstances in which the Commission, in hearing an unfair dismissal application and considering a remedy under s.392 of the Act, failed to seek at its initiative, submissions from an unrepresented employer party, for the purposes of its findings under s.392(2)(b) of the Act. The findings illuminate circumstances in which a compelling case for representation might be made out, where an unrepresented party has no “legal and/or workplace relations expertise.”

[9] Relevantly the Full Bench found as follows:

[34] The Commissioner here was evidently inviting Titan to make submissions about s.392(2)(a) (“the effect of the order on the viability of the employer's enterprise”). To that extent, Titan’s ground of appeal cannot be sustained. However the transcript discloses that the hearing then returned to the subject matter of the unfairness of the dismissal and the jurisdictional issue concerning the minimum employment period, and never returned to the s.392(2) considerations. In particular, Titan’s attention was never drawn to and it was not invited to make submissions about s.392(2)(b) (“the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”). The Commissioner’s conclusion with respect to this issue, subject to the small deduction he made on account of misconduct under s.392(3), determined the amount of compensation that Titan was ultimately ordered to pay.

[35] It will not be necessary in every case involving an unrepresented party to draw their attention to the relevant provisions of the FW Act and invite submissions about them. Many unrepresented litigants such as large corporations and registered corporations are sophisticated parties with internal legal and/or workplace relations expertise. However Titan, although not a “small business employer” as defined in s.392(3), was nonetheless a small-sized business without any such expertise. It is apparent from the transcript that at a number of points during the hearing its representation had difficulty in following the issues at hand, and indeed their understanding of the proceedings appears to have been inferior to that of Mr Van Malsen. The Commissioner provided appropriate guidance to Titan at a number of stages. However no such guidance was provided with respect to s.392(2)(b), with the result that Titan was effectively deprived of the opportunity to make submissions about this critical consideration. This constituted a constructive denial of procedural fairness.”

[10] Presumably the reference immediately above to “registered corporations” is intended to be a reference to “Registered Organisations”.

[11] The Full Bench quashed the decision at first instance for reasons that included that an unrepresented employer (which was not a small business for the Act’s purposes), had no “internal legal and/or workplace relations expertise” (noting the interchangeable conjunction used by the Full Bench) and could not be expected by the Commission to have acquired a working knowledge of the Act, and the particular sub clauses, for the purposes of the proceedings (even when the immediately adjacent sub clauses have been under discussion). This circumstance implicitly is contrasted to an employer party that possessed the relevant workplace relations expertise internally, and which therefore is presumed to possess the requisite body of knowledge in all instances.

[12] The Full Bench does not indicate expressly what might constitute sufficient “legal and/or workplace relations expertise”, though I understand reasonably, that the legal expertise must be an expertise in workplace relations and not some other branch of unrelated law. Regardless, following this decision, the term “legal and/or workplace relations expertise” is now important in evaluating the threshold condition for representation under either s.596(2)(a) or s.596(2)(b) of the Act. On the reasoning of the Full Bench, an unrepresented party will likely be in a state of ignorance of the law (here seemingly excusable) without access to such expertise. A failure to address the condition of ignorance of the law on the part of the Commission, on any discrete finding, may in turn lead to a “constructive denial of procedural fairness”.

[13] It cannot be presumed that the deficiency in workplace expertise can be cured through the availability of content rich web sites, such as maintained by the Commission (in the public interest and at public expense) containing procedural advice and highly detailed Bench Books on all aspects of the relevant jurisdiction. Nor can it be presumed that such sites sufficiently inform a party what issues turn on each of the provisions relevant to the proceedings, such that the party may wish to initiate a submission. This is so notwithstanding the fact that parties are routinely referred to the Commission’s website in the early stages of the preparation of their application.

[14] Following the Full Bench decision the availability of detailed materials in the public domain maintained for the purposes of assisting unrepresented parties, cannot be relied upon to inform those parties to the requisite degree. This is even the case when such information is available in hand with considerable procedural assistance from the Commission member in the course of the proceeding (see above).

[15] The unrepresented party in the case before the Full Bench, which lacked “legal and\or workplace relations expertise”, was the same party which pressed a jurisdictional argument (albeit ultimately unsuccessfully) under s.384 of the Act (which related to an argument against counting a period of service as a casual employee being included in calculating the minimum period of employment).

[16] Initiating such a jurisdictional argument might appear to suggest a certain appreciable level of understanding of the Act’s operative provisions, along with a capacity to acquire wider knowledge of the legislation as well. But clearly, this is not sufficient to meet the threshold test of possessing “legal and\or workplace relations expertise” referred to by the Full Bench, as more still is needed.

[17] The descriptor, “legal and/or workplace relations expertise” however, implicitly derives its meaning from the particular concern of the Full Bench, which was the requirement on the part of a party to understand the operative statutory provisions at the level of sub clauses, and to be able to initiate its own submissions in its interests. Demonstrably, this definition of “workplace relations expertise” requires professional (not incidental or infrequent) engagement with the statutory regime.

[18] Human resource specialists may not have “workplace relations expertise” of the requisite degree, nor might in-house counsel. Employee or workforce relations personnel might have some experience in workplace relations, but the scope and depth of that expertise might vary widely, and in any event the focus of their duties may be operational (being more akin to human resource specialists).

[19] It appears to me that the findings by the Full Bench are apropos the questions which confront the Commission under s.596 of the Act. They warn against not granting permission to appear (on grounds of efficiency and\or effectiveness under ss.596(2)(a) and (b)) to parties which do not possess “workplace relations expertise” to the extent to which they are familiar with or have an understanding of all the relevant, detailed provisions of the applicable jurisdiction in which they find themselves and are capable of initiating submissions in their interests on all points.

[20] A level of expertise short of this standard in its own right, may warrant permission to appear being granted unders.596 of the Act, as not to do so may lead to “a constructive denial of procedural fairness” unless of course the Commission undertakes to guide an unrepresented party to each relevant statutory matter in the course of a proceeding, and provides commentary on interpretation and authorities where relevant (such as in case of s. 443 of the Act, for example).

Jurisdictional Objection

[21] Professor Smith commenced duties with the University on 31 January 2011. Professor Smith’s employment came to an end on 23 March 2016, when his employment ceased on the alleged grounds of redundancy.

[22] The University contends that Professor Smith’s application is not competent insofar as the substantive or merit application cannot be heard, as the University effected the termination consistently with the terms of s.389 of the Act. Section 389 of the Act provides as follows:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[23] The onus to make out the grounds under section 389 of the Act falls upon the employer.

[24] The Explanatory Memorandum to the Fair Work Bill 2008 (“the Explanatory Memorandum”) provides some insight into the scope of meaning of a redundancy, as contemplated under the Act. The Explanatory Memorandum is not exhaustive in this regard.

Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

[25] Professor Smith contends that the University has not complied with the requirements of section 389 of the Act. He argues that University had:

● no sound or reasonable basis on which to make his position redundant;

● the University’s execution of its consultation obligations was perfunctory and not genuine; and

● no credible attempt was made to redeploy him into a suitable alternative position.

[26] Professor Smith therefore argued that the University should not be permitted the defence under section 389 of the Act and that his application under section 394 of the Act should proceed to hearing.

[27] I will now proceed to examine the arguments in relation to compliance with section 389 the Act.

Did the University no longer require Professor Smith’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise?

[28] The University contended that over the course of 2015 and early 2016, it developed proposals to implement changes in the Division of Tropical Health and Medicine (“the Division”). On 5 February 2016, Professor Ian Wronski, the Vice Chancellor for the Division, published the Change Management Proposals (“the Proposals”) in this regard. At their broadest, the Proposals were said by the University to meet a number of key challenges over the coming three year term and to enable the Division to function more effectively to improve its delivery and the quality of teaching and research. The University contended further, that the changes were important insofar as they aligned resources to the University’s strategic objectives and minimised any negative impact on the University’s student body.

[29] To some extent, an underlying driver for the change appears to have been the budgetary pressures facing the University (with salary costs moving at between five and six per cent per annum, when Federal Government indexation had been set at 1.7%). The University’s materials also demonstrate that it experienced a decline of almost 11% in international students in 2015, with the consequent financial impact being felt over subsequent years. Other market circumstances (such as in relation to its investments), were also reducing the University’s income.

[30] The changes affected activities and resources relevant to the Australian Institute of Tropical Health and Medicine, Veterinary Emergency Medicine, Molecular and Cell Biology and Public Health and Tropical Medicine.

[31] The proposed changes affected a number of positions across the Division. A number of Professorial and associate Professorial positions were made redundant, as were a number of Senior Lecturer and other Senior Research Fellow positions were made redundant. Postdoctoral research positions were not renewed.

[32] Professor Smith held the position of Professor in the Institute of Tropical Health and Medicine. Professor Smith’s position was primarily a research position with a focus on Toxoplasma, or the disease itself, Toxoplasmosis.

[33] The University took the view that it would disinvest in research into this area.

[34] Professor Wronski’s published Proposals stated as follows:

“The Australian Institute of Tropical Health and Medicine’s infectious disease research will in the coming years be focused on a suite of key diseases at the identified as critically important to tropical populations in our region. Priority focus will be given to malaria, tuberculosis, Melioidosis, Dengue and soil transmitted helminths. Toxoplasma gondii is not identified as critically important to the health of tropical populations in our region and is therefore not considered a priority for AITHM and is not critical to JCU’s and the Institute of strategic vision. As a result of the decision to no longer focus on Toxoplasma gondii it is proposed that a research only Professorial position in AITHM is no longer required and this position would be redundant.”

[35] Professor Wronski held that at the time Professor Smith was recruited, along with allied researchers, “we considered the University would be able to excel in research”. He went on to say that:

“[T]here has since been a narrowing of the University’s focus, which has been necessary to ensure financial viability. Similar approaches are being taken by the Sydney and Melbourne universities, which are three times the size of JCU”.

[36] The change process set out by Professor Wronski was focused on the “strategic intent” of the university’s research program, which led the University to conclude that:

“The budgetary reality is that we cannot fund every tropical research field and need to select areas to specialise in. The aim is to be globally significant in the research that we do”.

[37] Professor Wronski contended that “JCU was unable to be a global player in the field of Toxoplasmosis.”

[38] Whilst Toxoplasmosis (the disease which arises from the Toxoplasmosis gondii parasite) affects tropical populations, it is not, according to Professor Wronski, a “key tropical disease” as it manifests itself in the global population.

[39] Professor Wronski contended that “malaria, tuberculosis and vector borne viral diseases such as dengue are a threat to tropical Australia” and “this is why we are focussing in these areas” as opposed to Toxoplasmosis.

[40] This decision making appears to reflect the reasoning in the University’s wider strategic planning, which aimed to ensure the research conducted by the University had a sharper focus and greater impact on people and issues in the tropical world. To give effect to such a strategic intent, the University had to “work out how it can differentiate itself in order to be competitive in the Australian and global market, and remain financially viable,” as Professor Wronski put it.

[41] Professor Wronski’s views reflected the JCU - the Future Taskforce Strategic Planning Document published in 2012, which recommended that the University (at Recommendation 5(f)) “discontinue investments in research areas which do not align with the Strategic Intent and where existing research is below world standard.”

[42] Professor Wronski further explained:

“In my view the decision as to the research areas JCU identifies as its priorities, and the areas in which it decides to discontinue investment, are entirely matters for the University and that the University was entitled in effect “to pursue research in areas in which it can be globally competitive and it was ultimately a matter for the University to determine which areas it wanted to continue investment in.”

[43] There was some argument between the University and Professor Smith about the relevance of Toxoplasmosis to the University’s research directions (which was reflected in the meeting notes tendered in evidence). There was debate as to whether or not Toxoplasmosis was a tropical disease, or whether it was more widely distributed, or whether the rates of prevalence were higher in tropical areas than non-tropical areas, the relationship between comparative prevalence (infection) and actual disease, and infection rates in tropical as opposed to non-tropical areas (with Professor Smith contending that a person in the tropics was rendered 15 times more likely to suffer disease from infection with Toxoplasma than a person in the temperate world who had been infected).

[44] In the end, however, the University contended (much as I have set out above) that as a medium-size regional university, it was not in a position to support research on all tropical research interests, its research commitment cannot extend to any breadth, and the Vice Chancellor had exercised a business decision that research had to be prioritised and as a consequence Toxoplasma research could no longer be supported.

[45] Professor Smith counted this proposition by pointing out that the University fundamentally misunderstood his role within the research effort. He contended that he had a wider research expertise that extended or evolved into research priority areas such as tuberculosis and that he should not be typecast, as it were, as a having a singular research focus on Toxoplasmosis. Generally, Professor Smith maintained his expertise applied to a wide field of research endeavour, which could be described as inflammatory responses to intestinal diseases (including tuberculosis) and the development of applicable vaccines.

[46] Professor Smith explained that the University itself continued to support Toxoplasmosis research in any event, which demonstrated the research focused stressed by the University was illusory. In this regard, Professor Smith received a grant from a particular trust to support a PhD program which was researching into the role of Toxoplasmosis found in cats’ droppings in causing tree kangaroo blindness. He also contended that another researcher at the University had been awarded a building grant to complement a NHMRC grant to research into intracellular sensors to enhance immunity against intracellular pathogens including Toxoplasma gondii. Professor Smith contended that this research was research that he had commenced and had developed in collaboration with the particular researcher, who he had supervised for the previous three years.

[47] The researcher in this respect was Dr Andreas Kupz, who led evidence in support of Professor Smith. Dr Kupz confirmed that his research concerned Toxoplasmosis (in a context with tuberculosis) and further explained that his grants covered the cost of the research itself, and his salary, for purposes of the completion of the research project.

[48] In respect of this latter issue, Professor Wronski explained that the grant applications had been submitted and awarded by way of a process that had overlapped the University’s decision making regarding vacating research into Toxoplasmosis. The grants, therefore, were not an indicator of the University’s continued undertakings in the research field. Further, Professor Kupz had been engaged because of his specialisation in tuberculosis; the Professor being a tuberculosis immunologist. In this context, Toxoplasma gondii may be studied as providing some insight into how cells defend themselves, but Dr Kupz has no specialisation in Toxoplasma gondii specifically.

[49] Professor Wronski also held that the University supported research into wildlife health and the fact that Toxoplasmosis had emerged in the course of a PhD programme as a factor (in relation to tree kangaroo health), was not an indicator of the University supporting focused research into Toxoplasmosis as such. I will return to this matter further below.

[50] Professor Wronski also discounted evidence led by Professor Loukas that Professor Smith had collaborated closely with himself – stating this had not produced, as yet, any collaborative papers over the time (though Professor Loukas claimed such outputs were in process). Professor Wronski understood the collaborative effort was in relation to the their shared involvement in the Australian Institute of Parasitology Inc. Professor Loukas also claimed that Professor Smith with Dr Paul Giacomin - a member of Professor Loukas’ team – collaborated on their “similar interests.” Professor Wronski, however, brought attention to Dr Giacomin’s publications record which made no mention of Toxoplasmosis.

[51] Professor Smith himself further contended that the University misunderstood the structure of his research position. He argued that 20% of his research time was spent on Toxoplasma but a further 20% of his time was devoted to research (with two other researchers) in the University priority areas of immunology of tuberculosis and the immunology of soil transmitted helminths. A further 40% of Professor Smith’s work was said to be devoted to research leadership, and the remaining 20% to teaching (the latter component said to be not uncommon for research focused positions). In this latter respect, Professor Smith held that his teaching duties were still required, as was his role in association with the Australian Society for Parasitology Inc., which had formal associations with the University.

[52] Thus Professor Smith argued that his position was not “no longer required” by the University, as the University had mischaracterised his field of activity as a research position focusing exclusively on Toxoplasma gondii, and the University had sound reason to continue to rely upon his research skills and research interests which reflected University priorities.

[53] Professor Wronski disagreed with this proposition and contended that Professor Smith’s curriculum vitae strongly identified his research profile as emphasising Toxoplasmosis (and his publication record so attested). Professor Wronski held that Professor Smith only assisted or had early-stage collaborations with other researchers in the fields of tuberculosis (in particular). The immediate expertise in tuberculosis, for example, resided with Dr Kupz, not Professor Smith (see below).

[54] Professor Wronski argued that the evidence supported this conclusion as it was the reason that Professor Smith was brought to the University. More particularly, he argued that the principle reason Professor Smith had been recruited was to focus upon Toxoplasmosis research; and to perform some adjunct activities (such as through the Australian Parasitology Inc.):

“In paragraph 10 you [Professor Wronski] state that:

‘I decided to employ Professor Smith and Ms Jones to support Professor Loukas' research group and their prominent role in the ASP.’

I'm not entirely sure what you mean by supporting Professor Loukas in his role in the ASP. Can you explain that a bit, please? Yes. So we were keen to bring Professor Loukas and his research team, and were very interested in the areas that he could bring. Professor Loukas was very keen - and I think he says so in his statement - he was very keen for us to bring you too, and spoke to me about that, and I was persuaded by his judgment on that and that toxo was not an unreasonable bet to be able to build as an area of strength. In addition, you and Professor Loukas were both senior people in the Parasitology Society and that was another - bring the Parasitology Society to JCU - was another reason for pursuing the appointment.

So I think it's fair to say that the network directorship which I had at the time and still hold was clearly a big part of why you recruited me, is that a fair comment? No, it was an adjunct. I wouldn't have moved forward without the research focus on toxo, and that Professor Loukas has persuaded that we could build that area up as an area of research stream. The society wasn't a critical issue. It made the arrangement a bit more attractive.”

Consideration under s.389(1)(a)

[55] It seems to me, on consideration of the evidence, that the University has taken a deliberate and considered decision to better align its research resources and efforts to achieve what are its effective business objectives; to produce a globally significant research focus on nominated tropical health issues and related research specialisms (and to achieve this by reducing the breadth of its research effort).

[56] The University approached the development of its strategic review systematically and carefully. It did this to more effectively deploy its finite resources, and to achieve what it believed to be areas of key tropical relevance, in which it could realistically achieve a globally competitive research effort.

[57] The result was the change proposal I have described above.

[58] This supports a finding that the University made decisions about Professor Smith’s position in the context of genuine operational considerations about the future direction of its business.

[59] Further to this, the University identified that Professor Smith’s field of research endeavour was Toxoplasma gondii. The University – rightly or wrongly but immaterially for the purposes of s.389 of the Act - did not consider that research to be globally significant and determined it was not a key tropical disease in the region. For the reasons I give below, on both counts, Professor Smith’s position reasonably fell into question, relative to the University’s future strategic research direction.

[60] I do not accept Professor Smith’s argument that his research commitment to Toxoplasma gondii was a minor or unimportant part of his research effort or role. Professor Smith’s position was primarily research (including supervision and leadership thereof), he published intensively on Toxoplasma gondii, was recognised by his peers as an expert in Toxoplasmosis, and further, in my view of the evidence as set out above, he was recruited expressly to conduct research into Toxoplasmosis and to attract funding on the basis of his research profile in that and related parasites.

[61] Professor Smith had collaborated with Dr Kupz, amongst others, in other research of future priority for the University, but that was a nascent effort, and not sufficient to change fundamentally his research profile. The University was entitled to hold the view it did about the nature of Professor Smith’s research position and assess its relevance in the context of its refined research priorities.

[62] I add that some of the wider evidence tended to further support Professor Wronski’s perspective on Professor Smith’s research focus.

[63] Professor Loukas himself, appearing on behalf of Professor Smith, held as follows:

Professor Smith: Can I ask you, what was the reason that I was recruited to JCU, to undertake what sort of research?

Professor Loukas: To undertake research on toxoplasmosis.

Professor Smith: In any particular context?

Professor Loukas I believe that the major focus of the research that you presented in your seminar that would form the basis of your research program at JCU were on the development of vaccine for toxoplasmosis and also to set up, in the laboratory, a model of inflammatory gut diseases, which would combine nicely with some of the work that I was doing.

[64] Professor Loukas’s evidence corroborated, to some extent, that of Professor Wronski insofar as both agreed that Professor Smith had been recruited to the University in 2011 to build a research expertise in Toxoplasmosis (though Professor Smith made claims to a contrary end about the reason for his recruitment, and consistent with his commentary on his research profile as set out earlier).

[65] Dr Kupz (again a witness led through Professor Smith) also gave evidence as to why he had brought his research interest in tuberculosis to the University:

“[...] so I left working on salmonella after my PhD and then because Prof Smith works on toxoplasmosis which is very much related in terms of biology, of how the pathogen interacts with host immune system, and tuberculosis as well, so the fellowship was essentially written as a project that would first investigate particular aspects of biology of tuberculosis in Berlin and then come back to JCU and compare these findings, essentially to the second pathogen which is toxoplasma that Prof Smith worked on […].”

[66] According to Dr Kupz, Professor Smith’s research into Toxoplasmosis was important in his decision to pursue his research at the University.

[67] I add that it may have been the case that the University continued to support and to seek grants that provided for some continuing intersection with toxoplasmosis research. Such research had not been proscribed as such. rather, it was not a research direction that the University sought to support at professorial level into the future.

[68] When the evidence is considered, it supports a finding that the University reached a view about Professor Smith’s research priorities, on the basis of its understanding as to why he had been recruited to the University in the first place, and the research profile Professor Smith had built up over time. Professor Smith had no doubt widened his activities and had begun to merge his field of expertise into other wider contexts – such as gut inflammation in a general sense – but this was not the purpose of his appointment and it was not a development that had been demonstrably established. Professor Smith’s involvement in the Australian Society for Parasitology Inc. was no doubt important at a number of levels, but it cannot be relied upon to demonstrate that the reason for his employment at the University had changed fundamentally. Professor Smith’s wider activities, in any event, were, as Professor Wronski described them, “adjuncts” to his key research role, which was the reason for his appointment in 2011 - Toxoplasmosis.

[69] Thus, I do not find that the University was in some manner motivated capriciously or otherwise had an ulterior purpose (such as a performance or conduct issue) in identifying Professor Smith’s position for redundancy for the purposes of its change proposal. There is no evidence that would lead me to conclude that University’s focus was other than giving effect to its operational priorities. This also supports a conclusion that the University had a genuine operational reason for making Professor Smith’s position redundant.

[70] Generally, I discern no error in the University’s approach. It identified its business objectives on a reasoned basis and took the necessary steps to realise those objectives, which resulted in targeting its research resources. Professor Smith’s research role, as the University reasonably understood it to be, no longer correlated with the University’s research priorities and was declared redundant for that reason. Demonstrably, this decision has caused Professor Smith considerable disappointment, particularly given his very considerable academic accomplishments, but the University has acted in accordance with its ordinary prerogatives, and within the statutory confines of s.389(1)(a) of the Act, nonetheless.

The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy

[71] Professor Smith was advised by way of a meeting on 2 February 2016 that the change management proposals referred to above were to be released shortly and that his position would be proposed to be made redundant. At that time, according to Professor Louis Schofield, Director of AITHM (who was in attendance at the meeting), Professor Smith was encouraged to provide feedback on the proposal.

[72] According to Professor Smith, following that meeting and being in receipt of the change management proposals on 5 February 2016, the University sought feedback from the affected employees. Once that feedback was received, the University issued (on 16 February 2016) a document entitled “Response to Feedback”, which referred to comments received to that time.

[73] Professor Smith said he raised a number of queries in relation to the redundancy and proposed a range of questions about whether or not the University had adopted different approaches to achieving its objectives other than by making his position redundant. The University responded to each of these particular questions, even if only to indicate that it did not share the views expressed. The relevant supporting materials were led in evidence in these regards.

[74] Between early and mid-February 2016, Professor Smith also engaged in direct email correspondence with Professor Wronski and senior members of the University about the effects of the change proposal on his position. In his email of 16 February 2016, Professor Smith articulated an extensive range of reasons why the University should reconsider its proposals.

[75] Professor Smith, in that lengthy correspondence, also proposed that an enhanced redundancy payment should be made to him (in the event he was made redundant) to offset the fact that he was “5 years short of being able to access my superannuation”.

[76] A meeting thereafter was conducted by Professor Wronski with Professor Smith on 1 March 2016, in which the parties discussed, with some vigour, the basis for the redundancy. The University indicated at that meeting it would take Professor Smith’s views into account in its decision making.

[77] The final Change Management Plan (which incorporated the full body of feedback and responses arising from the prior consultation process) was published on 23 March 2016, and the decision to make Professor Smith’s position redundant (along with other positions across the Cairns and Townsville campuses) was indicated therein.

[78] The University’s consultation process was extensive and it extended to the involvement of the National Tertiary Education Union (including through a dispute procedure which was resolved). The procedures the University undertook in this regard are set out ably in the evidence of Mr Nick Rogers, Director-Human Resources and Professor Wronski.

[79] Professor Smith argued that the University had failed to comply with the relevant clauses in the James Cook University Enterprise Agreement 2013-2016 “the Agreement”), as they applied to other staff in the relevant work areas. As a consequence, Professor Smith claimed that management did not meet with his colleagues in his work area, or provide them with specific responses to their feedback and alternative plans that they had presented. When the Change Management Plan was released on 23 March 2016, whilst there was some articulation of the options presented by staff, there was no exploration of their relevance or practicality. Professor Smith therefore contended, that the approach taken by the University minimised any possibility of influencing its decision about the redundancy of his position and this suggested that University had predetermined the outcome of the consultation process, before such time as it was concluded.

[80] It was also contended by Professor Smith that whilst the Agreement states that “consultation will include consideration of alternative ways of introducing the change, and measures to avoid detrimental impacts on staff including voluntary measures such as retraining, redeployment, part-time work, and the opportunity for voluntary separation,” no discussion around these matters ever took place with him or with his colleagues in his work area. Professor Smith also contended that the University would not discuss with him any options for redeployment, until such time as it had determined that his position would be made redundant.

[81] Indeed, in the eight week period following the declaration that his position was made redundant, Mr Smith argues that he was never genuinely considered for redeployment (which is a matter to which I will turn below).

Consideration

[82] On consideration of the evidence as led by the University in these proceedings, I conclude that the consultation obligations imposed on the University by way of clause 51 of the Agreement were discharged.

[83] Clause 51.4.3 of the Agreement, in particular, provides as follows:

Consultation will include consideration of alternative ways of introducing the change, and measures to avoid detrimental impacts on staff, including voluntary measures such as retraining, redeployment, part-time work, and the opportunity for voluntary separation.

[84] The University consulted with affected staff as to the change proposal as issued on 4 February 2016. It held meetings at various levels within the University and sought and acquired feedback on the change proposals. The feedback was extensive. It canvassed issues relating to the merits of the change proposals themselves and also inquired into the University’s financials and the extent to which the University had considered options other than job reductions as such. The University systematically responded to the questions which arose from the feedback process as part of the initial consultation process whilst the reform agenda remained in a proposal stage. I have set out above some of the steps the University took in this responding to feedback along the way,

[85] In relation to the queries in respect of the extent to which the University had investigated other options for change other than making positions redundant, the University explained that whilst it remained open to alternative options, it had taken steps (in relation to its financial position at least) to control its spending by containing non-staff travel, had restricted recruitment (and frozen some approved positions), reduced its capital budget (where possible), applied natural attrition approaches and other voluntary measures, and reduced non-salary costs.

[86] The University, after seeking feedback from staff, took the various proposals into consideration for the purposes of its formal Change Management Plan. The feedback included suggestions to change teaching workloads so as to redeploy research resources, amongst others (which are set out in Section 5 of the Change Management Plan). By so doing, the University complied with clause 51.4.1 of the Agreement which obligates the University, following consultation:

“[…] to prepare a Change Plan, which reflects its decision, taking into account issues and suggestions raised during consultation and the implementation plan it proposes. The Plan will include a response to the issues and suggestions raised during consultation.”

[87] In respect of Professor Smith, not only had he provided feedback to the University through the general feedback machinery, he provided feedback at length in writing on 16 February 2016 and there proposed an enhanced redundancy payment:

“Redundancy now would leave me 5 years short of being able to access my superannuation. That fits any definition of harsh and I hope that JCU has sufficient heart and soul to recognise that fact in a financial settlement, should making my position redundant be the final outcome.”

[88] Further, a personal meeting was held on 1 March 2016 in which there was extensive discussion of the change proposal – which took place some three weeks prior to the formal announcement of the decision in relation to the change proposal (that is, the release of the Change Management Plan). Professor Smith was provided with an opportunity in this personal meeting to raise any issues or ask any questions.

[89] Professor Smith also engaged in discussion with the University about alternative positions as well, as was revealed in his cross examination:

Mr Williams: Did you challenge Mr Rogers in relation to consideration of issues such as retraining, redeployment, part-time work, voluntary separation?

Professor Smith: Yes, again because the enterprise agreement specifies that that should be discussed.

Mr Williams: Yes. One of the matters that was put forward, either by you or on your behalf was a different role within the organisation, a co-director role?

Professor Smith: No, it wasn't a co-director role.

Mr Williams: What was the role that was suggested?

Professor Smith: It was a deputy director role or an associate dean role based in Cairns because there was no leadership positions currently in Cairns despite a large proportion of AITHM staff being based there.

Mr Williams: So that would have been a form of redeployment, if it had been accepted?

Professor Smith: Yes, or a variation of duties. Probably a variation of duties, rather than a formal redeployment.

Mr Williams: Okay, but it would have been a role with a different title and different accountability?

Professor Smith: Not necessarily. It would just be incorporated into, for example, performance management in terms of how - what your goals are for a year and what your responsibilities for each student year are.

Mr Williams: Are you saying that it would have been essentially the role you had, but rebranded?

Professor Smith: Not rebranded, but adjusted for any leadership component, that you would now be leading this, for example.

[90] Professor Smith took a point, mentioned above, that the University did not engage him specifically on issues of redeployment until after 23 March 2016, when the Change Management Plan was published. But the University’s conduct in so staging these discussions, is consistent with the requirements clause 52.4 of the Agreement. That is, the Agreement obligates the University to complete a consultation process before such time as an employee is declared surplus through the publication of the Change Plan. It is only thereafter, that the University is permitted formally to discuss and explore redeployment options. Such discussions and explorations take place over an eight week period. The University explained as much by way of its responses to the feedback, in which the issue of alternatives to redundancy and dismissal had arisen (quite understandably).

[91] I add that Professor Smith argued, as I mentioned earlier, that the University did not consult with all affected staff to the required extent. I do not think this was the case, but it is not a relevant matter for my immediate purposes, in any event. Section 389 of the Act is to be read in the context of the circumstances of Professor Smith alone (being “the person” referred to under s.389 of the Act as the applicant in these proceedings), and not more widely.

[92] Therefore I find that there was no corruption of the consultation process. The University approached the change management exercise in the stepped terms prescribed by the Agreement (some further details of which I have not had cause to set out). The consultations and responses to feedback were timely, and not delayed or expedited to the detriment or disadvantage of the Professor Smith.

[93] But having said as much, I acknowledge that not all change processes are the same: some will amount to no more than a reduction of hands and will afford opportunities for voluntary redundancies without or with little regard to skills depletion; others (for various reasons) will be more targeted, more complex in their goals, will concern sophisticated and differentiated skill sets, and therefore are less unlikely to be achieved through non-targeted, voluntary measures. Realistically therefore, not all measures will be explored in equal depth as they cannot be compatible with the changed business model.

[94] It is true therefore that there was likely (at least in my view upon reflection) to be little realistic scope for Professor Smith to find a new professional level pathway in the context of the University’s changed research priorities, and much of the process to which he was subject no doubt appeared to disguise an inevitable outcome.

A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer

[95] Professor Smith argued that the Agreement emphasised the role of retraining and redeployment, as options in lieu of redundancy. Thus, the University was also obligated to ensure that every reasonable effort would be made to ensure that job reductions occurred only through natural attrition in voluntary measures other than by way of redundancy.

[96] On 27 April 2016 the human resource projects officer, Ms Jen Dewar, wrote to Professor Smith and indicated that the University had not been able to identify a suitable redeployment option for him.

[97] The University further communicated with Professor Smith, that it would expand its consideration of redeployment options by canvassing the availability of lower level positions, including part-time positions and that Professor Smith should forward his curriculum vitae to her.

[98] Professor Smith did so. On 9 May 2016 Professor Smith communicated with Ms Dewar and indicated an interest in a position as a Professorial Research Fellow in molecular immunology.

[99] On 18 May 2016, Professor Smith was interviewed by Professor Schofield, who was the director of the Australian Institute of Tropical Health Management in relation to his suitability for the position as a Professorial research fellow.

[100] Professor Schofield held the view, it appears, that Professor Smith did not hold a PhD with a strong interest in molecular immunology and that he lacked a national profile in the discipline, which represented two of the three top criteria for the position in question. Professor Smith was said to have had no research history or expertise in molecular immunology. Professor Schofield claimed that like himself, Professor Smith was a parasite immunologist and not a molecular immunologist, which focusses upon the molecular basis of the immune system (and not the mere use of molecular techniques).

[101] Professor Smith and Professor Schofield appear to have had some argument over the scope of definition of molecular immunology and whether Professor Smith’s qualifications and experience were sufficiently directly relevant to the anticipated skill set for the Professorial research position. Professor Smith contended that if a more broadly recognised definition of molecular immunology was applied then his research experiences and 46% of his publications would be relevant to the position.

[102] Professor Smith contended that Professor Schofield had adopted such a very narrow definition of molecular immunology for reasons that he had already nominated another researcher from another medical research Institute in Australia, the position. In any event, Professor Smith contended that Professor Schofield had been a part of the leadership team which had declared his position redundant and that Professor Schofield was conflicted as a consequence, in his judgement and sound, therefore.

[103] In failing to appoint him to the Professorial research position, Professor Smith contended that the University had breached the Agreement (see clause 52.1.5) which states that:

“a work unit may not refuse to accept a staff member awaiting redeployment who has a reasonable match of skills and experience for a vacant position.”

[104] But the situation regarding the immunology role was more complex than this. Though Professor Schofield had found that Professor Smith was not a suitable candidate for the role, the role itself was always subject to a pre-existing recruitment process that had almost culminated.

[105] Evidence advanced by Professor Smith, through the statement of Professor Loukas, was to the effect that the position referred to above “was offered to an external candidate before [Professor Smith’s] position was declared redundant”. Professor Wronski’s evidence was to related effect: the position of Professorial Research Fellow in Molecular Immunology was only vacant at the relevant time, to the extent it had been offered to another candidate, and negotiations were afoot with the relevant person at the time Professor Smith had made enquiries about redeployment into the role.

[106] Professor Schofield was the critical decision maker in relation to the position and the recruitment procedure. He explained that the position in which Professor Smith had expressed an interest – Professorial Research Fellow – Molecular Immunology – had been designed (by him) in late May\early June 2015.

[107] Professor Schofield gave evidence that the role was specifically designed to strengthen the research depth in particular research fields relating to molecular immunology and novel interventions in chronic disease.

[108] In this respect, the University had met with a then Associate Professor and team leader from an interstate university, which specialised in immune processes – and in particular molecular immunology – which influences responses to disease, cancers etc.

[109] The Associate Professor was offered the position on 28 September 2015. There was however, as Professor Schofield documented, a significant time lag before such time as the Associate Professor was appointed. This arose because of some contract discussions, but also, because of the interaction of the appointment process with the Associate Professor’s commercial contracts and grant applications. The Associate Professor was provided a revised contract in late February 2016 and was finally accepted on 7 July 2016.

[110] I do not consider that the overlapping processes in some manner demonstrate that the University was not genuine in its dealing with Professor Smith for redeployment purposes. The processes overlapped inadvertently, and not by design. The recruitment of the new Professor ostensibly had arisen without reference to the change proposal being developed and without regard to Professor Smith’s future circumstances. It seems to me that the University was seeking a deep expertise in molecular immunology, standing in the competitive field of international academic research and therefore, potential to realise the University’s strategic plan (in terms of focus and impact). The University had a compelling candidate in its view, to whom it had made an offer of employment at an earlier time, and Professor Smith’s qualifications and academic research experience did not reach the required degree of specialisation or experience.

[111] It follows that it was not unreasonable not to redeploy Professor Smith, for the purposes of s.389(2) of the Act. It further follows that Professor Smith’s academic profile did not exhibit a reasonable match relative to the particular requirements of the position, ‘Professorial Research Fellow – Molecular Immunology’. A ‘near enough is good enough’ approach will not be effective in all positions, particularly in fields such as the present matter, which concern extremely specialised research positions.

[112] In the end, it was Professor Schofield who had designed the position as Research Fellow in Molecular Immunology and determined the skill set required to provide leadership in that field, so as to build a globally competitive capability within the University (and with all that means for attracting students and winning grants). The research profile and standing in the discipline required by the position ultimately resided in Professor Schofield’s knowledge and experience (which was the basis the University had employed him and delegated him his responsibilities).

[113] The statutory requirement as to the reasonableness of a redeployment is very much contingent on the position in question, and its particular requirements, as the Explanatory Memorandum cited above makes clear. The position as Professorial Research Fellow – Molecular Immunology strikes me as requiring a very particularised skill set and focussed research experience.

[114] Similarly, so far as it is relevant at all to the test under s.389(2) of the Act, I have no reason to conclude that the University sought to evade any obligation under its agreement to redeploy Professor Smith. Given what I have said above, as to the test for “reasonableness”, and the specialised nature of the position the University sought to fill in the context of its strategic objectives, I very much doubt that Professor Smith is a person “who has a reasonable match of skills and experience for [the] vacant position,” assuming of course, the position remained a vacant despite an offer of employment having previously been made. As the Explanatory Memorandum to the Fair Work Bill 2008 states (at Item 1552 as cited above), “there may be many reasons why it would not be reasonable for a person to be redeployed.” The circumstances before me illuminate one of those reasons.

[115] No other alternative position to which Professor Smith could have been reasonably redeployed was identified.

Conclusion

[116] For the reasons I have given above, the University has discharged each of the provisions s.389 of the Act. As a consequence, Professor Smith’s position was made “genuinely redundant”, and his substantive application under s.394 of the Act must therefore be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Professor Smith for himself.

Dan Williams solicitor of Minter Ellison for James Cook University.

Hearing details:

7 September 2016

Cairns

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