FEDERAL COURT OF AUSTRALIA
IN THE FEDERAL COURT OF AUSTRALIA
JUDITH CAROLYN BESSANT
DATE OF ORDER:
THE COURT ORDERS THAT:
(a) its contravention of section 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) in taking adverse action against the second applicant by dismissing her from her employment on 20 April 2012, for reasons that included the reasons that she had workplace rights, had exercised workplace rights, and proposed to exercise workplace rights; and
(b) its contravention of section 50 of the Fair Work Act 2009 (Cth) by its failure to comply with clause 51.1 of the Royal Melbourne Institute of Technology Academic and Professional Staff Union Collective Agreement 2010 when, on and after 2 March 2011, the respondent had formed the view that the second applicant’s position was likely to have an uncertain future, it failed to offer the second applicant the option of participating in a voluntary redeployment process.
2. The penalties referred to in paragraph 1 of this order be paid to the first applicant.
3. The respondent forthwith reinstate the second applicant to the position she held immediately prior to 20 April 2012.
4. For all purposes of her remuneration and other entitlements, the respondent treat the second applicant as if she had been employed continuously by the respondent from 20 April 2012 up to and including the date of her reinstatement in accordance with paragraph 3 of this order.
5. Liberty to apply be reserved in respect of the calculation of the remuneration and other entitlements of the second applicant for the period between 20 April 2012 and the date of reinstatement in accordance with paragraph 3 of this order.
6. Otherwise, the application be dismissed.
7. There be no order as to the costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 684 of 2012
NATIONAL TERTIARY EDUCATION UNION
JUDITH CAROLYN BESSANT
ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY
16 MAY 2013
REASONS FOR JUDGMENT
The nature and history of the proceeding
1 This proceeding focuses on the dismissal of the second applicant, Professor Judith Bessant, from her employment as a professor in the university conducted by the first respondent, Royal Melbourne Institute of Technology (“RMIT”). The reason given for the termination of Professor Bessant’s employment was that her position was redundant. The applicants claim that there was no genuine redundancy. They allege that the dismissal amounted to the taking of adverse action against Professor Bessant in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) because she had, had exercised, or proposed to exercise workplace rights. They also allege that RMIT contravened terms of an enterprise agreement made between it and the first applicant, the National Tertiary Education Union (“the NTEU”), resulting in contraventions of s 50 of the Fair Work Act. The applicants seek the imposition on RMIT of civil penalties, as well as reinstatement or compensation for Professor Bessant, and various ancillary orders.
2 The proceeding was commenced on 18 September 2012, by the filing of an application and statement of claim. The applicants also sought interim orders, reinstating Professor Bessant on an interlocutory basis, and asked for an urgent hearing of that application. The application for interim orders was listed for hearing on 15 October 2012. I dismissed that application, ordered that the respondent file and serve a defence by 17 October 2012 and fixed the proceeding for trial on 22 October 2012. The trial took the whole or part of six days in late October and early November 2012 and a further six days in February 2013. In between those two periods, there was an unsuccessful mediation of the proceeding.
3 When the proceeding commenced, Professor Margaret Gardner, the Vice-Chancellor of RMIT, was named as the second respondent. There was a claim against Professor Gardner on the basis that she was a person involved in the contraventions alleged against RMIT. On 22 October 2012, I granted leave to the applicants to discontinue the proceeding against Professor Gardner, with no order as to costs. A notice of discontinuance was filed on 24 October 2012, in accordance with this leave.
4 The NTEU is an organisation, registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) and is an employee organisation, within the meaning of that term as used in the Fair Work Act. RMIT is a body corporate, established by the Royal Melbourne Institute of Technology Act 1992 (Vic) and a national system employer, within the meaning of that term as used in the Fair Work Act. Both the NTEU and RMIT were parties to and bound by The Royal Melbourne Institute of Technology Academic and Professional Staff Union Collective Agreement 2010 (“the Enterprise Agreement”), an enterprise agreement made under the Fair Work Act.
5 In the course of the trial, counsel for the applicants abandoned various causes of action alleged in the original application and statement of claim. In part, these abandonments were reflected in the filing of an amended application on 2 November 2012, pursuant to leave granted on 31 October 2012. The amended application still contained a claim for breach of contract, which was also abandoned later on in the trial.
6 The statement of claim contained allegations that RMIT had dismissed Professor Bessant for the reason that she had exercised her workplace rights. The alleged instances of the exercise of those rights were set out clearly. The statement of claim also alleged that a further or alternative reason for the dismissal was that Professor Bessant had workplace rights. Again, those alleged workplace rights were set out clearly and specifically. It was also alleged that a further or alternative reason was to prevent Professor Bessant from exercising her workplace rights in the future. RMIT’s position was that the sole person responsible for the decision to dismiss Professor Bessant was Professor Gardner. Professor Gardner was called to give evidence. She gave evidence as to what she said was her reason for making the decision to dismiss. She was not asked, and did not give evidence, that any of the specific reasons alleged in the statement of claim were not reasons for the decision. Early in the final address of counsel for RMIT, on the morning of 19 February 2013, I raised with counsel the absence of such evidence. The response was to the effect that it was sufficient for counsel to have asked Professor Gardner (as he did) what motivated her decision, and for her to give an answer to that question. The address of counsel for RMIT continued for the rest of 19 February 2013. The trial resumed on 21 February 2013, and counsel for RMIT completed his final address. Counsel for the applicants then addressed in reply. At the end of that address, I permitted counsel for RMIT to address on matters raised in the address in reply.
7 At one point, I mentioned that no application to reopen the case and to recall Professor Gardner had been made. There was no response to that proposition until, immediately on the resumption of the trial after the luncheon adjournment, counsel for RMIT indicated that he had instructions to apply to reopen the case and to recall Professor Gardner. There was some discussion about the circumstances in which the failure to ask Professor Gardner any question about the pleaded reasons had occurred. Counsel for RMIT did not refer to any authority about reopening a case. It was apparent to me that counsel for the applicants had cross-examined Professor Gardner with her failure to address specifically the pleaded reasons clearly in mind. To have permitted her recall, when the deficiency in her evidence was the focus, would have carried some risk that she would tailor her evidence to remedying the deficiency. Whatever the case, if she had given evidence that none of the pleaded reasons was a reason for the decision to dismiss Professor Bessant, it is likely that counsel for the applicants would have wished to spend a considerable amount more time in cross-examining on the basis that the deficiency was remedied. Further, at the time when the application to reopen and to recall Professor Gardner was made, counsel for RMIT informed me that Professor Gardner was not available that afternoon. He indicated that she would be available on the afternoon of 25 February 2013.
8 Having regard to the failure of RMIT to avail itself of earlier opportunities to apply to reopen its case and to recall Professor Gardner, to the dangers inherent in having a witness give evidence about a crucial point after a deficiency has already been pointed out, to the likelihood that a substantial amount of time would be required for further cross-examination and to the unavailability of Professor Gardner to be recalled at the time the application was made, I exercised my discretion to refuse the application of RMIT to reopen its case.
9 Section 50 of the Fair Work Act provides:
A person must not contravene a term of an enterprise agreement.
10 Section 340(1) of the Fair Work Act provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
11 Section 341 of the Fair Work Act defines a workplace right. It is unnecessary for present purposes to examine the detail of that definition, because the various complaints and claims made by Professor Bessant are conceded by RMIT to have been the exercise of her workplace rights. It is clear from s 342(1) of the Fair Work Act, particularly from item 1(a) in the table in that subsection, that for an employer to dismiss an employee amounts to taking adverse action.
12 Sections 360 and 361 of the Fair Work Act are important provisions for the purpose of determining the applicants’ adverse action claim in the present case. Section 360 provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
13 Section 361(1) provides:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
14 All of those provisions from 340 to 361 are found in Pt 3-1 of the Fair Work Act.
15 The effect of s 539(1) and (2) of the Fair Work Act, in conjunction with item 4 in the table in s 539(2), is that s 50 of the Fair Work Act is a civil remedy provision, each of the NTEU and Professor Bessant has standing to apply for orders in relation to contraventions of s 50, this Court has jurisdiction to deal with such an application, and the maximum penalty for a contravention is 60 penalty units. The effect of s 539(1) and (2) of the Fair Work Act, in conjunction with item 11 in the table in s 539(2), is that s 340(1) of the Fair Work Act is a civil remedy provision, each of the NTEU and Professor Bessant has standing to apply for orders in relation to a contravention of it, this Court has jurisdiction to hear such an application, and the maximum penalty for a contravention is 60 penalty units.
16 Section 545 of the Fair Work Act also provides relevantly as follows:
(1) The Federal Court...may make any order the court considers appropriate if the court is satisfied that a person has contravened...a civil remedy provision.
(2) Without limiting subsection (1), orders the Federal Court...may make include the following:
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
17 Section 546 of the Fair Work Act confers on this Court the power to order a person to pay a pecuniary penalty if the Court is satisfied that the person has contravened a civil remedy provision. By s 546(3)(b), the Court may order that the pecuniary penalty, or part of it, be paid to a particular organisation. Section 547(2) requires the Court, on application, to include an amount of interest in a sum of money ordered, unless good cause is shown to the contrary.
18 The orders sought in the amended application include declaratory orders as to the contraventions of ss 50 and 340(1) of the Fair Work Act. The source of the Court’s power to make declarations is s 21(1) of the Federal Court of Australia Act 1976 (Cth).
19 Counsel for RMIT sought to justify the way in which the evidence on behalf of RMIT was led by reference to a passage in the joint judgment of French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32 (2012) 290 ALR 647. At -, their Honours said:
The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
20 Although their Honours appear to focus on the ascertainment of the reason why adverse action was taken, it is clear from the passage as a whole that this was not intended to shift the focus from the question posed by the Fair Work Act itself. A party seeking to rebut the presumption created by s 361(1) of the Fair Work Act that the action was taken for the reason, or with the intent, alleged by the opposite party, must grapple with the establishment of the negative proposition that the action was not taken for the alleged reason or with the alleged intent. Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.
21 So much is evident from passages from judgments in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605, which are set out in the judgments in Barclay and with which no issue was taken in Barclay. For instance, in Bowling at 612, Gibbs J, expressing agreement with the reasons for judgment of Mason J, added:
If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged. [Italics added].
This passage was cited in Barclay by French CJ and Crennan J at  and by Gummow and Hayne JJ at .
22 In Bowling at 617, Mason J (with whom Gibbs, Stephen and Jacobs JJ agreed) referred to the possibility that the employer in that case could have succeeded:
if officers of the appellant had said in evidence: “We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward”, and that evidence had been accepted. [Italics added].
This passage was referred to in Barclay by French CJ and Crennan J at . It is clear that nothing that their Honours said was intended to suggest that it is unnecessary for evidence to be given that the proscribed reasons alleged were not reasons that operated on the mind of the decision-maker in making the decision.
23 One further reference to the reasons for judgment of Mason J in Bowling is necessary. At 617, his Honour referred to the then-existing provision that was the forerunner of the present s 361(1) of the Fair Work Act. His Honour said:
Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
24 Counsel for RMIT argued that, once he had led from Professor Gardner evidence of what she said was the reason, or were the reasons, for her decision to dismiss Professor Bessant from her employment, it was then incumbent upon counsel for the NTEU and Professor Bessant to seek to obtain in cross-examination evidence that there were other reasons, being the alleged proscribed reasons. In light of the analysis of the operation of the earlier onus of proof provision in the reasons for judgment of Mason J, this proposition cannot be maintained.
25 Barclay was a case in which there was a single decision-maker, who made the decision to take adverse action against the employee concerned. It is necessary to read what was said in Barclay with the understanding that the Court was not faced with any issue of the possible involvement of more than one person in the making of the decision. Earlier authorities have dealt with that question, in circumstances where a decision is made by a committee or other deliberative body, but also in circumstances in which there is collaboration between officers of an employer at various levels in the employer’s hierarchy, leading to an ultimate decision. Counsel for the NTEU and Professor Bessant argued that the present case is a case where people other than Professor Gardner contributed to the making of the decision. It is therefore necessary to examine the state of the authorities.
26 It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:
A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.
The same can be said of states of mind other than knowledge, such as reason or intent. In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the question was whether an employee in local government had been dismissed from her employment for a proscribed reason. Although the local council itself had made the ultimate decision to dismiss, Evatt J found that it was an earlier decision of the finance committee that was the critical decision. The council had merely “rubber-stamped” the recommendation of the finance committee later on the same evening. The finance committee consisted of eight councillors, six of whom had not been called as witnesses. His Honour held that the decision to dismiss the employee had not been proved not to be actuated by the proscribed reason alleged.
27 Wood (On Behalf Of The Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 was another local government case. The ultimate decision had been made by the Town Clerk, who was the chief executive officer of the employer. There was a question as to whether the decision was tainted by the involvement, in conjunction with the town clerk, of the deputy town clerk, who was said to have acted for a proscribed reason. Ultimately, Smithers J found that the decision was that of the town clerk only, and was not tainted by the proscribed reason. In the course of his reasons, at 19, his Honour said:
In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr. Kane, that mind may be located in the mind of one authorized officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
28 In Gibbs v Palmerston Town Council  FCA 732 (unreported, Federal Court of Australia, Gray J, 21 December 1987), I referred to both Wood and Voigtsberger. At 84-85, I said:
there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
29 In the present case, part of the task of the Court is to determine in whose mind or minds was to be found the operative mind of RMIT in making the decision to dismiss Professor Bessant. It is necessary to look at the whole of the evidence to determine whether the presumption established by s 361(1) of the Fair Work Act, that the reasons alleged in the statement of claim are among the reasons for that decision, has been rebutted.
The Enterprise Agreement
30 Clause 19 of the Enterprise Agreement provides as follows:
SECURITY OF EMPLOYMENT
RMIT acknowledges that security of employment is an important issue for its employees. RMIT is committed to exploring all reasonable measures to avoid forced redundancies. Where possible, it will pursue the options of retraining, natural attrition, voluntary separations, fixed term retirement contracts, leave without pay, voluntary conversion to part-time employment, long service leave, or internal transfer before proceeding with forced redundancies. The University will ensure that employees and the NTEU are consulted and provided adequate notice according to the Introduction of Major Change and Redundancy and Redeployment clauses.
31 Clause 50 of the Enterprise Agreement contains detailed provisions prescribing the circumstances in which termination of employment by reason of redundancy can occur, and the processes by which such termination is to be carried out. The following provisions of cl 50 are relevant to this proceeding:
50.2 Grounds for Redundancy
Where the University has decided to terminate the employment of one or more employee(s) for reasons of an economic, technological, structural or similar nature, including:
a) a decrease in student load in any academic course or subject or combination or mix of courses or subjects conducted on one or more campuses;
b) a decision to cease offering or to vary the academic content of any course or subject or combination or mix of courses or subjects conducted on one or more campuses;
c) financial exigency within an organisational unit or cost centre; or
d) changes in technology or work methods;
the University will formally notify the employee(s) concerned in writing that their employment will terminate and will outline the reason(s) for the termination. An employee may be represented by a chosen representative in the redundancy process.
50.3 Notice periods, redeployment and severance payments for academic employees
50.3.3 An eight week transition period will commence immediately upon written notification of termination being given to the employee pursuant to sub clause 50.2. Within 14 days from the commencement of the transition period, the employee must indicate to the University whether they choose:
a) to elect early separation and include the balance of the transition period in her or his redundancy benefits; or
b) to seek redeployment within the University.
50.3.4 An academic employee who has been given notice pursuant to sub clause 50.2 may decide to include the balance of the transition period in her or his redundancy benefits, in which case the employee will receive upon termination:
a) payment in lieu of salary for the unexpired portion of the eight week transition period; and
b) payment in lieu of the notice period prescribed in sub clause 50.3.1; and
c) payment on a pro-rata basis for long service leave.
All payments under this sub clause will be calculated on the employee’s substantive salary at the date of cessation of employment.
50.3.5 Should the employee seek redeployment, the University will provide the employee with all relevant details, and taking into account the relevant skills, experience and work preferences of the employee will:
a) examine options for retraining;
b) examine measures that could be taken to avoid termination;
c) arrange counseling [sic] for the employee as required;
d) monitor all vacancies within the University;
e) offer the employee redeployment to a suitable vacant position where such a position exists; (suitable vacant position means a position at the same classification level of the employee and for which the employee has the skills and qualifications to undertake. A reasonable amount of time may be taken into account, if an employee needs to update skills and experience to undertake the duties of the position, but this will not normally be greater than 6 months.)
f) consult with any chosen representative, on sub clause 50.3.5 a) to sub clause 50.3.5 e) above.
50.3.7 Where an employee is able to be redeployed to a suitable position, no further redundancy action will be undertaken.
50.5.1 An employee may apply to the Vice-Chancellor within 10 working days of receiving written notification of termination in accordance with sub clause 50.2, for a review of the decision to terminate her or his employment on the grounds that the University did not act fairly in making the decision to terminate, or that the rules of natural justice were not applied, or that the decision was discriminatory. This application will not delay any redeployment process.
50.5.2 An application will be referred to a Redundancy Review Committee normally within five working days of receipt of referral to investigate whether the process leading to the decision to terminate was in accordance with sub clause 50.5.1 above.
50.5.3 A Redundancy Review Committee established in accordance with this clause will consist of:
a) an independent Chairperson;
b) an RMIT employee nominated by the Vice-Chancellor; and
c) a staff representative nominated by the RMIT NTEU branch.
50.5.4 A panel of independent Chairpersons will be established by the University by agreement with the RMIT NTEU branch. Chairpersons and panel members will be independent and command the confidence of management and staff.
50.5.5 The Vice-Chancellor will appoint a Chairperson from the panel when establishing a review process following agreement with the RMIT NTEU Branch, ensuring that there is no conflict of interest. The RMIT NTEU Branch will not unreasonably withhold agreement.
50.5.6 The employee may be supported or represented throughout the committee process by a chosen representative.
50.5.7 The Redundancy Review Committee will make a determination within 20 working days of the application being received.
50.5.8 If the Redundancy Review Committee determines that the process was complied with by the University, action under this clause will continue. The Vice-Chancellor may choose to extend the timeframe for possible redeployment of the employee by two weeks, if the employee wishes to be redeployed.
50.1.9 If the Redundancy Review Committee determines that the University did not act according to the principles outlined in sub clause 50.5.1 above, the matter will be referred back to the Vice-Chancellor for a decision as to the appropriate further course of action. The Vice-Chancellor must take into account the findings of the Redundancy Review Committee.
32 So far as relevant to this case, cl 51 of the Enterprise Agreement provides:
51. VOLUNTARY REDEPLOYMENT
51.1 RMIT recognises the benefits of a voluntary redeployment process, as it provides a mechanism to mitigate the adverse effects of redundancies. Where the University forms the view that an employee’s position is likely to have an uncertain future, the University will, wherever practicable, offer the employee concerned the option of participating in a voluntary redeployment process.
51.2 The University will make all reasonable efforts to redeploy employees who elect to participate in a voluntary redeployment process and will, in order to facilitate redeployment, provide appropriate reasonable training or retraining and consider waiving or modifying any other relevant internal University policy or process.
51.3 This clause does not detract from the University’s right, pursuant to clause 50 Redundancy and Redeployment to invoke at any time, the redundancy provisions as prescribed by that clause.
33 Professor Bessant has an impressive curriculum vitae as an academic. She has experience as a teacher and a scholar across a wide range of disciplines in the social sciences. In this proceeding, no criticism has been offered of her as a teacher, researcher, writer and publisher, or administrator. Her list of publications indicates that she is a scholar of high standing. Since her appointment to RMIT in 2004, she has at various times served as the Vice-Chancellor’s representative on the academic board, a member of the research committee, chair of the approvals and examination research training committee, a member of the executive of the School of Social Science and Planning, and as research director of that school.
34 In April 2004, Professor Bessant was appointed as a professor at RMIT. Academic positions are graded and the grades are described by the first five letters of the alphabet. The position of professor is described as a level E position, level E being the highest classification. In the position description accompanying the letter dated 23 April 2004 by which Professor Bessant was offered her position, the position was titled “Professor In Youth Work and Sociology”. In an employment schedule attached to the same letter, said to specify the terms and conditions of employment, Professor Bessant was informed that her role would be “Professor In Youth Studies & Sociology in the School of Social Science & Planning”. Initially, for budget purposes, Professor Bessant’s remuneration was allocated as to one half to the discipline of Sociology and as to the other half to the discipline of Youth Work. At a later time, without any notice to Professor Bessant, her title was changed to Professor of Youth Work and her remuneration was allocated entirely to the budget for the discipline of Youth Work.
35 For administrative and budgetary purposes, RMIT is divided into three colleges, the College of Science, Engineering and Health, the College of Design and Social Context, and the College of Business. Each college is headed by a Pro Vice-Chancellor, who reports to the Vice-Chancellor. Within each college there are various schools, each of which is headed by a professor, who reports to the Pro Vice-Chancellor who is in charge of the relevant college. This case is concerned with the School of Global Studies, Social Science & Planning (“the School”). Within each school are various disciplines, each with its own discipline head, reporting to the head of school.
36 In August 2009, the School had some 14 disciplines, each with its own discipline head (although not all were called by that name). One of the smallest was the Youth Work discipline, of which Professor Bessant was discipline head. RMIT offered a course leading to the degree of Bachelor of Social Science (Youth Work). The Youth Work discipline was responsible for teaching this course. Professor Bessant supervised four lower-level academics in that respect.
37 In August 2009, Professor David Hayward was appointed head of the School. He saw (and may have been encouraged by those involved in the appointment process, and by Professor Gardner, to see) his first task as being to reorganise the structure of the School. He proposed to group various disciplines into three clusters, named respectively Human Services, International & Justice Studies, and Sustainability & Urban Planning. In Professor Hayward’s early schematic diagrams of these changes, there were four disciplines in Human Services, five in International & Justice Studies and two in Sustainability & Urban Planning. Youth Work was not found in any of the clusters. Whether this was because of the relatively narrowly-focused and practically-oriented nature of the Youth Work discipline, which meant that it might have fitted into at least two of the units, but did not fit well into any of them, or whether it was because of resistance by Professor Bessant and others in the Youth Work discipline to the changes proposed, is not clear.
38 It is clear that the reorganisation of the School led to conflict between Professor Bessant and Professor Hayward, who occupied adjoining offices. Professor Hayward restructured the School executive, reducing the number of members of that executive from 20 to 11. Professor Bessant, who had been a member of the larger executive was not a member of the restructured executive. Professor Bessant had spent a considerable amount of time over the preceding two years developing a proposal for a course leading to the degree of Master of Social Science (Youth Work). Professor Hayward recommended that this proposal not proceed.
39 In October 2009, Professor Hayward made the changes referred to in  above, which resulted in the whole of Professor Bessant’s salary being allocated to Youth Work for budgetary purposes, and the change of her title to Professor of Youth Work.
40 As well as having difficulty determining where in his new structure the discipline of Youth Work should fit, Professor Hayward was concerned about the financial viability of the Youth Work discipline. A comparison of the income attributed to student enrolments in Youth Work and the costs of the five academics employed in the Youth Work discipline (as well as administrative costs) showed that the discipline was making a loss of around $300,000 per annum. Professor Hayward proposed an external review of the Youth Work discipline. When this proposal became known, there were significant absences among the Youth Work staff on sick leave. Professor Hayward saw the increase in sick leave absences as evidence that the Youth Work staff were being uncooperative in his restructuring process. He contrasted them with staff in the Social Science discipline, who had approached him to discuss how to avoid a serious financial problem and who had cooperated with him in the restructure.
41 At some point, Professor Hayward asked Professor Bessant to produce a financial plan for the Youth Work discipline, which would reduce the Youth Work deficit. On 10 February 2010, Professor Bessant met with Professor Hayward. She was accompanied by Wayne Cupido from the NTEU. She presented Professor Hayward with a document headed “BRIEFING NOTES: DRAFT OF OUR SAVINGS FOR MEETING WITH HAYWARD”. The document proposed reductions in the use of external teachers on a sessional basis, with savings totalling in excess of $58,492. By producing this document, Professor Bessant thought she was complying with Professor Hayward’s request to produce a budget involving savings. Professor Hayward was disappointed by this document. He did not like its format. Professor Bessant had not consulted with the person in charge of the School’s financial management, as Professor Hayward had suggested, to obtain assistance with the figures. Professor Hayward did not think that the document was in a form that could be placed before the School executive for deliberation.
42 Professor Hayward’s deadline for the production of a budget for Youth Work was 1 March 2010. On that date, Professor Hayward’s secretary asked Professor Bessant to meet with Professor Hayward. The request gave Professor Bessant one hour’s notice of the proposed meeting. She was not available at the suggested time, so the meeting did not take place. Other than the document dated 10 February 2010, Professor Bessant did not produce a document relating to budgetary changes in the Youth Work discipline.
43 On 2 March 2010, Professor Hayward took two decisive actions. The first was to allocate the Youth Work program into the discipline of Social Science, within the Human Services cluster. The second was to remove Professor Bessant from the position of discipline head. Professor Hayward communicated this decision to Professor Bessant by email. She was at home at the time she opened the email. She was shocked by the contents, to the extent that she fainted and knocked out one of her teeth as she fell. Professor Bessant took sick leave for some weeks following this incident.
44 It is alleged in the statement of claim and admitted in the defence that, in the latter part of 2009 and early 2010, Professor Bessant made a number of written and other complaints, concerning Professor Hayward’s management practices, in which she alleged among other things bullying on the part of Professor Hayward, and that she had not been afforded a safe workplace. In evidence are two such complaints, each on RMIT’s incident/hazard report form. The first alleges incidents on 10, 11 and 18 February “and other occasions” and refers to “Bullying, intimidation, exclusionary practices, stigmatisation”. The second complaint relates specifically to 2 March 2010; it refers to “Bullying - adverse treatment, retribution” and contains details of a number of events. Professor Bessant made a formal complaint to WorkSafe Victoria, to various people within RMIT, including its Ombudsman, Professor Gardner, Professor Colin Fudge (the Pro-Vice Chancellor in charge of the College of Design and Social Context), people in the RMIT Human Resources Department and other members of staff of RMIT, including Professor Hayward himself. She also complained to the health and safety representative at RMIT and to the NTEU. It is these complaints that are alleged, and admitted, to be exercises of workplace rights by Professor Bessant. As exercises of workplace rights, the complaints are alleged to have been among the reasons for the ultimate decision to dismiss Professor Bessant from her employment.
45 By memorandum dated 18 March 2010 to Professor Gardner (with a copy to Professor Fudge), Professor Hayward said:
I write to advise that Professor Judith Bessant’s position within my School is no longer tenable for a mixture of inter-personal, organisational and financial reasons.
In the course of the memorandum, Professor Hayward described his structural changes to the School. He referred to “an enormous groundswell of support for change”. He described finding a place for the Youth Work discipline within the School as “The single most important obstacle to reform”. He was critical of the staff in the Youth Work discipline, the only one of whom he named being Professor Bessant. He described the Youth Work team as “collectively going on stress leave for three weeks.” The memorandum contained the following passage:
It was clear to me that a core part of the problem was Professor Bessant. In the continuum of leadership styles in universities, Professor Bessant sits at the left and is strongly anti-managerialist. She is also charismatic and is able to keep a loyal team together by positioning them against adversaries, real or imagined. She also deeply polarises people. Alongside her loyal supporters are very many openly hostile detractors who report deep wounds from the past.
46 After describing Professor Bessant’s position within the School as “now untenable”, Professor Hayward proposed two options. The first was to relocate Youth Work to another school or organisational unit outside of the School. Notwithstanding that he described Professor Bessant as “a very good researcher”, as “scholarly and of international standing” and as “an impressive teacher”, Professor Hayward recommended against relocation, for a number of reasons. One was that relocation “would be widely perceived as rewarding poor behaviour.” Another was the question of funding. Referring to the deficit budget of the School, as well as that of Youth Work, Professor Hayward said, “We could not afford to have Professor Bessant’s salary to move [sic] with her to her new location.” Professor Hayward indicated that he would need to make three of the remaining Youth Work staff redundant to address the deficit. A further reason was said to be Professor Bessant’s “history of major work based conflict” at RMIT and at another university. He expressed the view that “it is likely that this conflict will re-emerge in the new work unit.” He went on to describe “Professor Bessant’s inclination to run her agenda rather than promote the one the University has identified as part of its new strategic plan.” Finally, Professor Hayward referred to the difficulty of finding a line manager willing to take on the role of managing Professor Bessant. As to the second option, redundancy, Professor Hayward said that the main argument in favour of the option was that it would “immediately address over half of the Youth Work discipline’s deficit, while allowing the School to finish its restructure and reorganise the Youth Work degree so that it becomes sustainable.” After referring again to the loss of a strong researcher and teacher, and to possible negative media coverage and sector response, Professor Hayward finished by saying, “I have been contacted by a number of key people within the sector (and most important from the Child Commissioner) indicating that Professor Bessant does not enjoy their support.”
47 Professor Gardner said that, when she read the memorandum of 18 March 2010, she was very unhappy that it had been sent to her. She put it straight into her out-box. She thought that a conflict between two professors was not something that should have been brought to her to deal with. She spoke to Professor Fudge and told him that she never wanted to see a memorandum like that one on her desk again. Although she said she was happy to discuss financial matters within a school, she did not feel it was part of her job to be dealing with interpersonal issues between staff members.
48 In April 2010, Professor Bessant sought, and was granted, an opportunity to meet with Professor Gardner. In that meeting, Professor Bessant complained to Professor Gardner about Professor Hayward’s management style. Professor Bessant said that she told Professor Gardner that Professor Hayward tried to intimidate her, acted in an authoritarian manner and was bullying her. Professor Bessant raised the issue of occupational health and safety. She asked Professor Gardner to find some way of placing her away from Professor Hayward. Professor Bessant also expressed the view that this might be a way of addressing the budget deficit in Youth Work. Professor Gardner indicated that she would speak with Professor Fudge. Subsequently, Professor Bessant had some discussions with Professor Fudge. These culminated in a decision by Professor Fudge, communicated to Professor Bessant, Professor Hayward and Professor Gardner and others by email on 9 June 2010, that new working arrangements for Professor Bessant would be instituted. She was allocated a room in another building on the RMIT campus, her line manager was to be Professor Joe Siracusa and she was to have research leave (ie no teaching duties) from June until the end of December 2010. Professor Fudge advised that this leave had been approved by Professor Gardner.
49 On 17 June 2010, Professor Bessant made a further formal complaint. The complaint had two elements. The first was of bullying conduct towards her by Professor Hayward. The second was a failure by RMIT’s human resources unit to meet statutory obligations in response to incident reports lodged by Professor Bessant pursuant to occupational health and safety legislation. This was followed by a formal notification of a dispute, pursuant to the dispute-settling provisions of the Enterprise Agreement, made by Mr Cupido on behalf of the NTEU, concerning “decisions made about changes to Professor Bessant’s annual work allocation without due consultation or negotiation.”
50 In response to Professor Bessant’s complaint of 17 June 2010, RMIT engaged Susan Zeitz of Peacemaker ADR to investigate the complaint. Ms Zeitz delivered to Marcia Gough, Executive Director, Human Resources for RMIT a lengthy report dated 20 October 2010. Ms Zeitz concluded that Professor Bessant’s complaint was not substantiated. She took the view that flaws in the restructure process that impacted adversely on Professor Bessant and the Youth Work team did not amount to bullying conduct. She did conclude that “Professor Bessant’s removal from the position of Discipline Leader was (although understandable in the circumstances) preemptory [sic] and confrontational.” Although she did not make formal recommendations, Ms Zeitz listed seven options. It is unnecessary to canvass all of them for present purposes. Option 3 was “Professor Bessant be assigned to other work within the University.” After discussing this option, Ms Zeitz recommended that, if the option were to be considered, it be done on the basis that Professor Bessant’s substantive position remained in the School and that she be seconded to the proposed role for an agreed period of between three and five years with a guaranteed right of return at the conclusion of the secondment period. Option 7 was in the following terms:
As Professor Bessant’s position as Discipline Leader is no longer required it may be that an option is to consider redundancy. This should only be identified as an option if Professor Bessant is prepared to accept redundancy and should not be invoked or applied on an involuntary basis.
After discussing the options, Ms Zeitz recognised that “the process adopted did aggravate Professor Bessant’s sense of vulnerability and powerlessness in a change process that had major consequences for her and the Youth Work Team.” She also again described the removal of Professor Bessant from the position of discipline leader as “understandable but preemptory [sic]”. In using the word “preemptory” in two places, I doubt that Ms Zeitz was intending to convey the meaning carried by the word “pre-emptory” which, according to the Oxford Dictionary, is an American equivalent of “pre-emptive”, meaning anticipatory. Rather, I am of the view that she was intending to convey that she saw the removal of Professor Bessant from her position as discipline leader as “peremptory”, meaning “imperious or dictatorial”, according to the Macquarie Dictionary.
51 Each of Professor Bessant and Professor Hayward was given an opportunity to comment on the report of Ms Zeitz. Professor Bessant did so at considerable length and in considerable detail. In an addendum to her report, dated January 2011, Ms Zeitz dealt with the comments. She did not change her conclusions or the options she had proposed in the original report.
52 In a letter dated 8 February 2011, Ms Gough forwarded the addendum to the report of Ms Zeitz, advised Professor Bessant of the outcome of the investigation, and stated that she considered “this complaint to be closed.” Ms Gough also referred to each of the options proposed by Ms Zeitz. In relation to option 3, the letter said:
The College and the School have no necessary view on this option, except that such a move would require the support of the organisational area to which you would be assigned.
The Pro-Vice Chancellor has twice called for expressions of interest and has approached a number of people directly, but there has been no interest in this proposition. There are no other parts of University who have a position open for you.
You are encouraged to apply for any advertised positions at your level, for which you may be suitable for [sic].
In relation to option 7 (incorrectly referred to in the letter as “8”), Ms Gough invited Professor Bessant to contact Sonia Dal, Senior HR Manager, directly if she wished to explore the option of redundancy.
53 In the meantime, Professor Hayward had begun making preparations for the redundancy of Professor Bessant. Retrieved from his computer and tendered in evidence is a draft memorandum dated 13 January 2011, addressed to Professor Gardner, to be sent via Professor Fudge and Ms Gough, with a copy to Deb Warrender, Director of Planning & Resources, Design & Social Context. The subject of the draft memorandum is “Potential Redundancy”. It invites Professor Gardner to approve the commencement of the consultation process for potential redundancy with Professor Bessant. It is a detailed memorandum, covering some six pages, including provision for endorsement or otherwise by Professor Fudge and Ms Gough and for approval or otherwise by Professor Gardner. It contains a reference to six attachments, described as “Supporting Documentation”. I do not accept that a document of this size and detail would have been prepared just in case Professor Hayward ever wished to use it, which was his explanation for it. In my view, it demonstrates Professor Hayward’s desire to see Professor Bessant dismissed from RMIT, a desire that he harboured at least as early as March 2010 (see - above) and that he was seeking to implement in January 2011. In the event, however, he did not send the memorandum at that time.
54 Instead, on 2 March 2011, Professor Hayward sent a memorandum of that date to Professor Gardner, via Professor Fudge and Ms Gough, with a copy to Ms Warrender, seeking Professor Gardner’s approval to commence the consultation process with the Youth Work program team, regarding the potential redundancy of up to three academic positions. The memorandum described the grounds for the redundancy as “primarily financial in nature.” It went on:
Through the School’s organisational review process the School determined that the Youth Work group’s financial deficit could no longer be supported or justified. …
Cost containment, rationalisation and internal restructuring activities undertaken to date have not significantly addressed the size of the deficit as essentially the Youth Work program area is over staffed. The Youth Work is currently forecast to run a substantial deficit in 2011 and these redundancies are essential to ensuring that the Youth Work program becomes viable and sustainable.
The School proposes to call for self nominations for potential redundancies of up to 3 Higher Education academic positions. The exact number of positions will vary depending on the actual positions identified via the self nomination process. The main driver for the School is to identify sufficient savings to address the current deficit and ensure the Youth Work area becomes financially viable and sustainable.
The following criteria may apply for selection of the applicants for potential redundancies:
• Academic Level B to E positions to be available for this process;
• the level of practice based skills and knowledge relevant to Youth Work;
• ability to teach practice skills and supervise work integrated learning placements in Youth Work.
Self nominations will not automatically be accepted. The School retains the right of veto. The School will not necessarily accept any applications if the interests of the School and program would be thereby compromised rather than improved.
55 Attached to the memorandum were several documents, including the charts of Professor Hayward’s organisational restructure. Professor Hayward’s term for this memorandum was that it was a “business case”. The documents attached included a single page document at the top of which appear the words “For Information - not to be attached to the Business Case”. This document contains information as to the student profile and staffing profile of the Bachelor of Social Science (Youth Work) Degree for the years 2009, 2010 and 2011. It also contains a financial summary for the same years, with a note that the 2011 figures represent the budget forecast. There is a table showing the current staffing establishment and their salaries, including on-costs. There is then a table setting out five options, each with figures as to the salary saving and the adjusted deficit in the event that the option were adopted. The table is as follows:
1: Level E and Level C removed
2: Level A and Level B removed
3: Level B and Level C removed
4: Level E and Level A removed
5: Level C and Level C removed
* Options 2,3,4 & 5 would all require a 3rd redundancy
There is then a statement that the preferred staffing establishment is option 1, with a list of remaining positions with their salary figures. The notes underneath these tables include a note numbered 4:
Need qualified teaching staff to ensure efficient program delivery
YW is a practice based program so requires staff with practice based teaching skills
Sections of workforce under qualified this area
56 The memorandum has provision for endorsement or otherwise by Professor Fudge and Ms Gough and for approval or otherwise by Professor Gardner. In the space provided for a signature indicating endorsement by Professor Fudge, there is a signature but no date for that endorsement is provided. The signature is that of Professor Barbara de la Harpe, the Deputy Pro Vice-Chancellor who stood in for Professor Fudge when he was absent. There is an endorsement by Ms Gough dated 9 March 2011. Professor Gardner signed her approval on 10 March 2011.
57 In the course of February or March 2011, pursuant to the dispute-resolution provisions in the Enterprise Agreement, Professor Gardner formed an Issues Resolution Committee, in an attempt to resolve the dispute notified by Mr Cupido on 1 August 2010 (see  above). Pursuant to cl 16.4 of the Enterprise Agreement, such a committee was to be chaired by a mutually acceptable independent person and to comprise two union representatives and two representatives of RMIT. Clause 16.4 requires that “Where a consensus agreement is reached, it shall be implemented.” The chair of the committee was Professor Joyce Kirk, a Pro Vice-Chancellor of RMIT.
58 The Issues Resolution Committee met on 30 March 2011. Professor Bessant attended. It is not easy to piece together from the evidence who constituted the committee and who was otherwise there to attempt to resolve the dispute. The RMIT representatives on the committee appear to have been Professor Ron Wakefield and Associate Professor Kate Patrick. Mr Cupido was there, whether as a union representative on the committee or as an advocate for Professor Bessant is unclear. RMIT also had an industrial relations consultant named Peter Raymond present. Professor Hayward was there.
59 In the meeting of the committee, there was discussion of a proposal to continue the arrangement under which Professor Bessant had been relieved of teaching duties to focus on research. This discussion may have arisen as a result of option 3 in the report of Ms Zeitz (see  above). The proposal included the payment by RMIT of $20,000 as seed funding, to assist Professor Bessant to make applications for grants for research projects. The proposal was that Professor Bessant would focus on research, rather than teaching, for a three-year period. There was also discussion about whether the proposal would include immunity from redundancy. The RMIT representatives all rejected any idea that anyone could be given immunity from redundancy.
60 The results of the discussion on 30 March 2011 were reflected in a document entitled Settlement and Release Agreement and dated 29 April 2011. Relevantly, the terms of that agreement are:
1. Nothing in this agreement affects the Employee’s current status in the Employee’s professional role at RMIT.
2. The Employee’s work plan will comprise research, Honours teaching, postgraduate teaching and supervision for a period of three years from start of September 2, 2011.
3. Further opportunities for engagement with the School of Global Studies, Social Sciences and Planning will be discussed annually between the Employee and the Employee’s supervisor.
4. The Employee will have the usual access to RMIT and School of Global Studies, Social Sciences and Planning resources in accordance with policy to assist the Employee in performing the Employee’s role and will be allocated a one off seed funding research grant of $20,000 and a further $5,000 should it be required. These funds will be allocated in the Employee’s “research account” at the start of Semester 2, 2011, and may be rolled over annually.
5. The School of Global Studies, Social Sciences and Planning will use its best endeavours to allocate the Employee an appropriate office in an agreed location, by the start of Semester 2, 2011. The Employee will be consulted about the proposed office location and the timing of the move.
6. The current supervision arrangements for the Employee will continue subject to the agreement of Professor Joe Siracusa and noted by the School of Global Studies, Social Sciences and Planning staffing committee.
7. As an ex gratia payment, RMIT will reimburse the Employee’s dental costs up to an amount of $1,000.
61 On the same day as the Settlement and Release Agreement was signed, Professor Hayward sent an email to staff in the Youth Work discipline, informing them of a proposal to commence a self-nominated redundancy process for them, and inviting them to attend a meeting on 5 May 2011. At that meeting, Professor Hayward presented the case for staff reductions, with the assistance of power point slides. One of the slides contained a warning that “Where insufficient self nominations are forthcoming, the University may commence a targeted redundancy process”.
62 In the ensuing weeks, both Professor Bessant and the NTEU raised questions as to the proposal for voluntary redundancies. On 17 May 2011, Professor Bessant sent a long email to Sonia Dal in the RMIT Human Resources Department. The NTEU’s questions were directed to Professor Hayward, in a letter from Gia Underwood, an industrial organiser. The issues raised by one or both of these documents included questions of the quantification of savings that were said to be necessary, the extent to which disciplines other than Youth Work were subsidised out of surpluses made by other disciplines, whether the potential pool of self-nominations extended beyond those in the Youth Work team, and the nature of the criteria being used to choose who should be made redundant.
63 The period during which staff in the Youth Work team could nominate themselves for voluntary redundancy did not begin until 6 June 2011. In the meantime, as early as 30 May 2011, Professor Hayward was drafting memoranda seeking the approval of Professor Gardner to the compulsory redundancy of Professor Bessant and Dr Kathy Edwards, a level C academic in the Youth Work team. On the same day as the period for self-nomination began, Professor Hayward sent Professor Gardner a memorandum proposing that there should be no intake for the degree of Bachelor of Social Science (Youth Work) in 2012.
64 On 9 June 2011, Professor Hayward sent an email to staff in the Youth Work team, informing them that the consultation period in relation to voluntary redundancies was closed and inviting them to nominate for redundancy by 17 June 2011. The time for self-nominations therefore closed on 17 June 2011.
65 On 28 June 2011, Professor Hayward sent to Professor Gardner, via Professor Fudge and Ms Gough, with a copy to Ms Warrender, a memorandum seeking approval for a targeted redundancy in the Youth Work program area. The position targeted was described as “the Level E position, Professor of Youth Work and Sociology”. The documents attached to the memorandum are the same as those that were attached to the memorandum of 2 March 2011, with two exceptions. The document that was described as “For Information - not to be attached to the Business Case”, but was nevertheless attached to the memorandum dated 2 March 2011, does not accompany the memorandum dated 28 June 2011. A document additional to those attached to the earlier memorandum is attached to the memorandum dated 28 June 2011. It contains an analysis of applications in the first round of places for the Youth Work program for an undesignated year. At or about the same time, Professor Hayward also sent a similar memorandum relating to the position of Dr Edwards.
66 The memorandum of 28 June 2011 relating to Professor Bessant begins with a paragraph described as “Executive Summary” in the following terms:
The School of Global Studies, Social Science and Planning is seeking approval for a targeted redundancy in the Youth Work program area. The position being targeted in the Level E position, Professor of Youth Work and Sociology (see attached PD). This business case follows on from approval given to the School to seek expressons of interest for two self nominated redundancies in the Youth Work area. No expressions of interest were received. The program area is operating at a substantial deficit equivalent to 30% of budgeted expenditure and has done so for 3 years in a row. The redundancy will have no impact the delivery of the Youth Work undergraduate degree program, the only program offered by the Youth Work area.
There is then some history recounted, before the statement that, “The School is now moving to 2 targeted redundancies to address the financial problems of the program.” The reasons set out for the change refer to rising staff costs, the low gross margin of the Youth Work program, the low student demand, the abandonment of a proposal for the introduction of a Master’s degree, overstaffing of the Youth Work program and the impossibility of redeployment of staff within the School.
67 The proposal is described as “to make redundant the Level E role in Youth Work.” The benefit is said to be that, “The Youth Work deficit will be substantially reduced by $176,000 (approx).” This reduction is described as “the main goal.” The level E position is described as “no longer required”. Later in the document, it is asserted that, “There is no need for any review mechanisms. The position is not required.”
68 Under the heading “Alternatives”, the following appears:
There are no alternatives.
The School has made every effort to find an alternative solution. This includes proposing to hold an external review, inviting the Youth Work staff to develop a financial plan, and the School Learning and Teaching Committee undertaking its own Review of the Youth Work Program with 2 external experts participating as members. The Youth Work staff refused to participate in the Review and have rejected its recommendations.
The College Office has twice sought interest from other parts of the University in employing the Level E, but no interest was expressed.
69 Professor Gardner’s approval was sought to the commencement of detailed redundancy discussions with Professor Bessant, and also to the funding of half of the termination payment from central funds.
70 The memorandum received the endorsement of Professor de la Harpe, who was standing in for Professor Fudge, and the endorsement of Ms Gough, on 28 June 2011, the day on which it was dated. The footer on the first page of the memorandum indicates that comments from Ms Warrender had already been taken into account. Professor Gardner signified her approval of the memorandum by signing it on 30 June 2011. The decision to approve this memorandum is alleged to be a crucial part of the applicants’ case relating to adverse action.
71 By email on 18 July 2011, Professor Hayward invited Professor Bessant to a meeting on 20 July 2011 to discuss with her “the potential redundancy of your current position in Youth Work.” Apparently because of the absence from the workplace of Professor Bessant for some time, this meeting was rescheduled for 25 August 2011 and Professor Bessant was notified by Professor Hayward by email on 22 August 2011. Following that meeting, by letter dated 25 August 2011, Professor Hayward advised Professor Bessant that “due to the financial deficit of the Youth Work Program...your position has been identified as potentially redundant.” The letter invited Professor Bessant to a further meeting during the following week, to discuss the effect of the change, and also invited her to consider “any other options or opportunities that might mitigate this proposed redundancy action.”
72 Both RMIT and the NTEU notified to Fair Work Australia (now the Fair Work Commission) disputes concerning redundancies in the Youth Work program. The two disputes were the subject of conciliation by Deputy President Hamilton on 7 September 2011. The Deputy President recommended a 21 day period for the parties to endeavour to reach agreement, before they pursued whatever legal entitlements they considered were available to them. As a result, by letter dated 23 September 2011, a workplace relations adviser acting on behalf of RMIT forwarded to the Deputy President a draft agreement that was the product of the parties’ negotiations. The agreement dealt with what were described as five key discussion points and a framework for consultation. The second of the points was headed “Criteria for retaining staff” and reads as follows:
(a) The NTEU requested confirmation that the operating structure and the criteria for retaining staff gave appropriate consideration to balancing teaching load, research and leadership requirements in the Youth Work Program and in other relevant program/courses in Social Sciences.
(b) The University has outlined to the NTEU the criteria used to determine its Youth Work Program staffing requirements as follows:
• A consideration of the most feasible financial structure in the circumstances to deliver a practice-based program in 2012.
• Minimum and preferred qualifications to undertake the word required.
• Relevant teaching and other experience working in Youth Work and related areas. The University believes a particular focus is on field work. The NTEU is of the view that a consideration of other experience extends beyond field work.
• Previous role as Program Director or equivalent, and/or senior role in field work delivery.
• Relevant research profile.
(c) The University advised that it had looked to similar sized schools and programs, notably Legal and Disputes Studies, for guidance on staffing profiles and budget parameters.
The letter requested further conciliation on 19 October 2011.
73 On 25 October 2011, Professor Bessant forwarded by email to Professor Gardner a letter of the same date. She summarised a series of conflicts between her and Professor Hayward as follows:
1. Being stood down from my role as Discipline Head, Youth Work without consultation and in a manner that was later found by an RMIT Internal Dispute Resolution to have breached the EBA.
2. Lodging a bullying complaint against Prof Hayward which was subsequently investigated by Ms Susan Zietz. Ms Zietz did not find that a case of bullying had been proven but did report the Dean of the School had behaved in a ‘pre-emptory’ and ‘confrontational’ –way and that ‘there were ‘alternative actions that were available and which would have been preferable’.
3. Lodging a separate complaint with Worksafe. A relevant Worksafe officer later reported that:
From my enquiries and the information provided to date by both parties, I have formed the reasonable belief that there were work environment risk factors in your workplace, such as poor management actions, and a poor consultation process in relation to the restructure of the area you work within, and your removal from the Discipline Leader position. However, due to a lack of evidence I cannot substantiate your specific allegations of workplace bullying as occurring beyond reasonable doubt. (Worksafe, 4 March 2010)
4. Notification of an Industrial Dispute. This resulted in the establishment of an Internal Dispute Resolution Committee in April 2011 chaired by Prof Joyce Kirk. The Committee made a finding in my favour. The key outcome was a Terms of Settlement document signed off by all relevant parties in May 2011 which enabled me to undertake a period of three years research work and made Prof Joe Siracusa my work supervisor.
5. Some two months later in July 2011 I was told that my position was to be made redundant, even though the University had just settled the earlier dispute on the basis of giving me a research role for three years. This process is being contested. Conciliation –before Fair Work Australia reached an impasse last week. I am now receiving advice from the NTEU as well as legal advice and except to proceed to either the Federal Court or the Federal Magistrates Court for the enforcement of the Terms of Settlement document and an adverse action claim in Fair Work Australia.
The letter stated Professor Bessant’s “strong preference to find a solution to this situation which does not involve either myself or the University in ongoing disputation.” Professor Bessant requested a meeting with Professor Gardner to discuss the matter.
74 On 28 October 2011, Professor Bessant received a hand-delivered letter from Ms Gough of the same date, informing her:
The University confirms that the job performed by you is no longer required to be performed by anyone. As a consequence your position is declared redundant and your employment is to terminate by reason of redundancy.
The letter referred to the requirement in the Enterprise Agreement that RMIT provide reasons for the termination of employment. It listed the reasons as follows:
(a) Due to the falling student enrolments and the current financial difficulties, the University has decided to discontinue the Youth Work Program in its current form and reduce the level of continuing employment. As a consequence, the University has decided to reduce the number of academic positions.
(b) Any vacancies which arise in the foreseeable future within Social Science and Youth Work are unlikely to be filled. As a consequence, alternative interim employment arrangements until such time as a suitable opportunity arises are not viable.
(c) The University has considered your teaching, research and leadership skills and experience and that of other relevant academics. In addition, the University has reviewed its teaching requirements in order to deliver its 2012 programs and research activities. Regrettably, we have been unable to identify a suitable alternative position for you within Youth Work or Social Sciences.
The letter also included the following paragraph:
This decision has not been entered into lightly and follows an extensive period of consultation with you and with other employees. The decision has been taken in consideration of the University’s operational requirements, and is in no way a consequence of any actions taken or complaints made against the University by you in relation to alleged bullying, discrimination, injury or inappropriate conduct in relation to your workplace or other rights. This position was again confirmed and reflected throughout the process undertaken since 8 September 2011. During this process the issues in dispute were narrowed between the parties and the subject of your earlier complaints was not one of them.
75 There was a further session of conciliation in Fair Work Australia on 31 October 2011, but the parties were unable to reach agreement to avoid a redundancy.
76 By letter dated 8 November 2011, Professor Gardner responded to Professor Bessant’s letter of 25 October 2011. The letter included the following:
I have sought advice from both Human Resources and the College regarding the matters you raise in your letter. Based on the information I have been provided, I am satisfied that the University has upheld its obligations in accordance with University policies and procedures and the relevant industrial instruments. I am advised that you have been afforded appropriate processes for the different issues you have raised on actions you have taken.
I understand that the matters you have raised other than the major change that you are currently involved in have now been concluded....I have also been advised that the terms of the Settlement and Release Agreement of 29 April 2011 have been complied with by the University.
The University has commenced consultation with you regarding major change and potential redundancy of the position you currently hold. I would like to reinforce that the University does not enter into such discussions lightly. The decision to commence redundancy procedures is based on sound operational grounds following consideration of alternative options. Further, I understand you were involved in an extensive period of consultation along with other employees designed to explore alternative options. As we are still currently working within the major change and redundancy procedures outlined within the collective agreement that aim to consider all available viable avenues to secure you an ongoing role, at this stage the University shall continue to rely on these procedures.
77 At around the same time as the letter of 28 October 2011 from Ms Gough to Professor Bessant, Dr Edwards was also given notice that she was to be dismissed for redundancy.
78 On 14 November 2011, Professor Bessant sought review of the decision to dismiss her through the Redundancy Review Committee, pursuant to cl 50.5 of the Enterprise Agreement.
79 Pursuant to cl 50.4 of the Enterprise Agreement, RMIT began an eight week redeployment process, during which attempts were required to be made to find for Professor Bessant another position within RMIT for which she would be considered suitable, in order to avoid dismissal from her employment. Her contact from the Human Resources Department for this process was Matthew Desalvo. On 9 December 2011, Professor Bessant met with Mr Desalvo, to show him her CV and discuss potential positions. Professor Bessant complains that she was blocked from applying for two roles for which she would have been suitable. One was Director of Learning and Teaching, for which she would have been suitable because of her qualifications and background in education. The other was Deputy Head of Research, for which she would have been suitable because of her background in research and the administration of research. On 16 January 2012, she made an application for the role of Professor of Design, Media and Ethnography. On 2 February 2012, she was told that her application for this role had been unsuccessful, because of her lack of experience in design.
80 The report of the Redundancy Review Committee is dated 3 February 2012. It contains the following findings:
a) Did the University act fairly in making the decision to terminate her employment?
The RRC believes that the University decision to terminate Professor Bessant’s employment was not fair. Our finding is based on the following. The memo from Prof. David Hayward of 02/03/2011 titled “Potential Redundancies – Self nomination process” indicates that Prof. Bessant’s position (the only Level E position in the Youth Work area) was identified already at that time as one of the two preferred positions for potential redundancy. Following this, on 29/04/2011 Prof. David Hayward issued a document titled “Proposed Self Nominated Redundancy Process”. On that same day (29/04/2011) a “Settlement and Release Agreement” was executed by the University and the NTEU to resolve a dispute with Prof. Bessant. This agreement outlined her workplan and associated work arrangements for a period of three years. This settlement was reached as a result of a dispute regarding the discontinuation of the employee’s role as a Discipline Leader, Youth Work. Then, in the memo from Prof. Hayward of 28/06/2011 titled “Potential Redundancy”, her position was proposed to be made redundant.
It appears to the RRC that the decision to terminate Prof. Bessant’s employment after the execution of the ‘Settlement and Release Agreement” on 29/04/2011, as a resolution to the dispute, was unfair. No evidence was presented that the executed settlement had been considered or discussed in the further process that concluded with Prof. Bessant’s employment being terminated.
b) Were the rules of natural justice applied in making the decision to terminate her employment?
The RRC believes that rules of natural justice have not been applied in making the decision to terminate Professor Bessant’s employment for the following reasons. At the initiation of the acknowledged process of major change in Youth Work and the identification of the potential need for redundancies, it appears that Prof. Bessant was not made aware of the uncertain future of her position despite the fact that the one and only Level E position in Youth Work (her position) was identified for potential redundancy in the preferred option presented on 02/03/2011. Furthermore, this review confirmed that she was not consulted prior to the change of her position title and role during that process. No written records were presented to the RRC of how the criteria for deciding redundancy were developed, or how Prof. Bessant was assessed for redundancy in relation to these criteria. The criteria themselves are recorded in the business case of 02/03/2011 in support of the proposal for the self-nomination process and in the NTEU (Victoria Branch) and RMIT University Joint Agreement on a Youth Work Program Consultation Framework and related matters on 23/09/2011. The RRC therefore does not believe that the rules of natural justice can be said to have been applied.
The Redundancy Review Committee also made an adverse report in relation to the process leading to the decision to dismiss Dr Edwards.
81 The report of the Redundancy Review Committee relating to Professor Bessant’s dismissal was referred to Professor Gardner on 6 February 2012. After an absence in Indonesia, Professor Gardner wrote to Professor Bessant on 16 February 2012. She referred to the report and its findings and said:
In order to rectify the deficiencies in the process as determined by the Committee, I will now provide you with an opportunity to provide a response to me on:
1. Whether the criteria used (which related solely to savings to be made by reducing staffing costs) were inappropriate in the circumstances; and if so, what other criteria should have been considered.
2. Why your position should be retained having regard to (i) the criteria applied, and (ii) any other criteria that you consider should have been applied.
3. Whether you consider that another position(s) in Youth Work should be made redundant instead of your own, and if so why.
4. Any further consideration I should now give in my decision-making having regard to the others matters set out in the second paragraph of this letter.
Please provide me with your views in writing by 22 February 2012, together with any views on where you might be redeployed within the University in the event that your position is made redundant. I will then determine the most appropriate manner in which to proceed having regard to your response.
The Committee also made a finding that the decision to terminate your employment was unfair because there was no evidence before the Committee that the “Settlement and Release Agreement” of 29 April 2011 had been taken into account in the decision to terminate your employment. I will directly address this issue in my further deliberations, and I invite you in your response to outline the basis upon which you might consider that the 3 year work plan set out in that document constitutes a form of immunity for you from the application of the redundancy provisions of the Enterprise Agreement.
82 Professor Bessant replied to this letter in detail, in a letter dated 22 February 2012, with a copy of her CV attached. She was critical of Professor Gardner’s proposal to “rectify the deficiencies in the process”. She contended that the flaws in fairness and natural justice that had been revealed could not be fixed retrospectively. She questioned the assumption that the only criteria in the process “related solely to savings to be made by reducing staffing costs”. She distinguished the need for redundancies and the criteria for identifying which staff were to be declared redundant. She referred to the criteria that emerged after the conciliation of the disputes by Fair Work Australia (see  above). She pointed out that these criteria went beyond the question of savings and stated her case in relation to the criteria.
83 Professor Bessant contended that any financial crisis was artificially inflated by the location of her salary fully within the Youth Work budget and to the fact that, without consultation or knowledge, Professor Hayward had shifted her whole salary to the Youth Work budget. She referred to her attempt in February 2010 to provide a savings plan. She raised other matters that she said impacted on the budget deficit of Youth Work. She expressed views critical of the proposition that Youth Work should be viewed as a “practice-based program”. She referred to her research-only position for three years, and said, “my position should not have been considered relevant to any consideration of the capacity to deliver the teaching program, and the entirety of my salary should have been removed - at that point - from any assessment of the cost of the Youth Work teaching program for that three year period.”
84 Professor Bessant suggested other criteria that she said ought to have been considered, relating to post graduate programs, higher degree students, research, and development of the Youth Work discipline. She complained that she was not offered redeployment prior to termination of her employment.
85 She referred to material she had already relied on in her communications to human resources and to the Redundancy Review Committee. She put her case at some length, based on her qualifications, experience and performance and referred to the Enterprise Agreement’s requirement that selection of employees for redundancy be based on consistent, transparent and relevant criteria.
86 Professor Bessant expressed discomfort in responding to the question whether other positions in Youth Work should have been made redundant instead of her own. She repeated that her salary and position should not be counted against the Youth Work program, because of her research-only position for three years. She referred to the possibility of inviting staff beyond the Youth Work team to apply for voluntary redundancies. She referred to Professor Hayward’s agreement on closing the course for the degree of Bachelor of Social Science (Policy and Research) that staff would not be made redundant, and contrasted this with the dishonouring of the formal deed of settlement (the Settlement and Release Agreement) in her own case. She referred again to the requirement of cl 51 of the Enterprise Agreement to offer employees the option of participating in a voluntary redeployment process.
87 In her letter of 22 February 2012, Professor Bessant also listed what she said were the flaws in the redundancy process:
• The original proposal made it clear the preferred outcome was to declare me redundant – I was targeted.
• When the NTEU sought, through right of entry, any documents or correspondence showing the development of the criteria for redundancy, their formal adoption by any relevant committee, or any record of the assessment of Youth Work staff against those criteria, the University said there were no such documents. This was repeated before the RRC.
• It seems therefore that both the establishment of the criteria and the assessment of staff against them, if this occurred at all, were undertaken soley by Professor Hayward.
• Given the history of animosity I have been subject to since Prof Hayward’s appointment to RMIT, and the fact that an industrial dispute about Professor Hayward’s failure to comply with the provisions of the EBA had just been resolved in a manner that both formally acknowledged his error and provided me with a set of employment arrangements he had strongly resisted, it was inappropriate for either the establishment of the criteria for selecting staff for redundancy, or the assessment of staff against those criteria, to have been undertaken by Professor Hayward. No such process could be free from apprehended bias.
• Youth Work staff were not informed of the criteria for identification of redundancy. The University confirmed in response to the Right of Entry that there was absolutely no correspondence between Professor Hayward and any other officer of the University either in developing the criteria or in assessing staff against them.
• I was not invited to inform Prof Hayward of relevant factors, to submit an up-to-date CV, or otherwise to present information to him in relation to that consideration.
• The criteria that were eventually articulated (after I had been identified for redundancy) were not fair or objective.
• The criteria that were eventually articulated (after I had been identified for redundancy) were designed to deliver the preferred outcome.
• My title and budget allocation and workplan were arbitrarily changed without consultation, in a manner which both made the necessity of redundancies at all easier to argue, and made my being identified for redundancy much more likely.
• The change in my title also damaged by [sic] capacity to seek redeployment with the University or to obtain alternative employment at another university.
• The University entered into a formal agreement with me relating to the next three years of employment. Whether or not you accept that this bound the University to provide three years of employment (and I say it does, for the reasons set out in previous correspondence from me and the NTEU), it certainly gave me the assurance that my work for the next three years was a settled question. To turn around on the same day and initiate a redundancy procedure targeting my position on the basis, amongst other things, of the teaching needs of the program, is not only an outrageous breach of faith, it is vindictive.
Professor Bessant went on to deal at length with the issue of the Settlement and Release Agreement. She alleged bad faith on the part of RMIT in entering into the settlement, knowing that it intended to make her redundant. She asserted that the spirit of the agreement was that she would have three years in which to engage in research, and that the spirit of the agreement should be honoured.
88 By letter dated 19 March 2012, Professor Gardner responded to Professor Bessant’s letter of 22 February 2012. I set out the whole of the contents of Professor Gardner’s letter:
Thank you for your letter dated 22 February 2012, in which you responded to issues that I raised with you having regard to the report of the Redundancy Review Committee (“RRC”) dated 3 February 2012. I have given careful consideration to your perspective on these issues as outlined in your letter, and reviewed relevant material relating to the decision to make your position redundant.
At the outset I wish to state that I cannot accept the proposition that there is no longer a compelling financial imperative to effect significant savings in the Youth Work budget. Moreover, the School of Global Studies, Social Science & Planning, as a whole, has a larger financial issue that will need to be addressed later this year. A business case will need to be developed for this purpose, and this is [sic] may require a larger reduction in staffing levels than is currently required in Youth Work. The decision was taken to make redundant the positions held by yourself and Dr Edwards and scope does not exist to shift positions from Youth Work into the Social Sciences. The process of examining other program areas will take some time to work itself out and the University is not in a position to ask other staff for expressions of interest in voluntary redundancy until a business case has been developed and approved.
You have referred to the criteria listed by the University in the Joint Framework Agreemet between the University and the NTEU dated 23 September 2011, that arose from meetings between the parties following FWA proceedings before His Honour, Deputy President Hamilton on 7 September 2011. Those criteria encapsulate the University’s needs in terms of the skill set and capabilities required of its Youth Work staffing establishment post the reduction in the number of positions.
The criteria were consistent with the original business case document, which all Youth Work staff had the opportunity to comment on and were not intended to be, nor were they, used to assess the academic credentials and achievements of a Level E staff member against a Level A or B or C staff member. The Youth Work staffing establishment is quite clearly “top heavy” having regard to the small number of students in the program. It is not surprising, therefore, that the original business case, as set out in Professor Haywood’s [sic] memo to me dated 2 March 2011, identified a preferred staffing establishment that did not include the Level E position held by you; being the only Level E position in Youth Work.
Professor Hayward has concluded that the Youth Work program can be led by the existing Program Leader, who has extensive experience in managing the Youth Work program over many years, and who has an intimate understanding of the program, strong practice connections and long-standing relationships with the sector. The conclusion drawn by Professor Hayward that there is no longer a need for a Level E discipline leader role in Youth Work is a conclusion which I accept.
I do not accept your perspective that the criteria for assessing the roles that should be retained should have been focused on the development of postgraduate programs, supervision of HDR students (of which there are only a very small number), mentoring of other academic staff (of which there are only a small number), and the development of the discipline “at RMIT, nationally and internationally”.
In short, I do not accept your propostion that Youth Work needs, or is in a position, to retain a senior position at a professorial level. While you obviously have a different perspective, I also endorse the decision taken by the School (not simply Professor Hayward, whom you claim to be “biased” against you) that Youth Work should have a “practice-based” focus, with this made clear in the original business case document which I referred to above.
Following advice received from the University’s Legal Office, I also do not accept the proposition that the 3 year work plan that was agreed upon provided you with immunity from redundancy. In this respect, I am advised that in the process of negotiation of the Settlement and Release Agreement dated 29 April 2011, the University specifically rejected a request by the NTEU that a clause be included in the Release to the effect that your position would not be made redundant.
For the reasons outlined above, I have concluded there is nothing that you have put to me on issues that were of concern to the RRC that should lead me to rescind my earlier decision that your Level E position be made redundant.
I note that the 8 week transition period trigged by my letter of 28 October 2011 expired more than 2 months ago, and that the University has maintained your employment beyond that transition period but without being able to identify an alternative available job role within the University or an associated entity into which you can be redeployed.
While I am reaffirming my earlier decision to terminate your employment by reason of redundancy, I hereby give you a further period of notice of termination, which will now take effect on Friday 20 April 2012 given that the University has no suitable duties for you for the purposes of Clause 50.3.2 of the Collective Agreement. You can, however, elect to conclude your employment before that date and receive payment in lieu of the period of foreshortening of notice.
89 The period during which Professor Bessant could seek redeployment within RMIT was extended, because the review process had taken so much time. Finally, on 20 April 2012, Professor Bessant’s employment with RMIT came to an end. She was paid a total separation payment of $173,178.65, including an amount reflecting accrued untaken leave entitlements and an amount calculated in accordance with the requirements for payment in lieu of notice in the event of redundancy.
The evidence of Professor Gardner
90 As I have said in  above, the case put on behalf of RMIT was that the sole person who made a decision to dismiss Professor Bessant from her employment was Professor Gardner. The proposition that the decision-making mind of RMIT was solely that of Professor Gardner was disputed by counsel for the NTEU and Professor Bessant. Before considering that issue, it is necessary to review the evidence given by Professor Gardner, for the purpose of determining whether, on the assumption that she was the sole decision-maker, her evidence is sufficient to discharge the onus of proof borne by RMIT that it did not dismiss Professor Bessant because she had, had exercised, and proposed to exercise, her workplace rights, which the statement of claim alleged to have been among the reasons for her dismissal. Professor Gardner was not asked specifically whether any of those alleged reasons had been among her reasons for making the decision on 28 October 2011 to treat Professor Bessant as redundant, or for her affirmation of that decision after she had considered the report of the Redundancy Review Committee and the submissions of Professor Bessant about the issues raised by that report.
91 Counsel for RMIT submitted that the evidence of Professor Gardner should be taken to have been exhaustive of her reasons for making those decisions. He placed heavy reliance on certain passages in her evidence.
92 The first of those passages concerned Professor Gardner’s approval of the recommendation that Professor Hayward be authorised to commence a program of voluntary redundancies of staff in the Youth Work discipline. Counsel for RMIT asked Professor Gardner the following question, to which she gave the following answer:
Are you able to comment on what were the motivating factors behind you deciding to approve the recommendation?---It’s financial. The – this – I mean, you can’t entirely read this in this school, but – so, again, in the university you are keeping an eye on overall how things are going. This school, I can tell you, from the beginning is a large school, it has many good elements, it is a school that is financially a difficult school because of, historically, the profile it has developed, which often happens in social science schools; people get promoted, it becomes more and more expensive to do the same things, it has a vocational education unit which, frankly, doesn’t ever cover its costs. And so that makes the whole school more difficult to run and manage. So you have to balance – you have to have all these being balanced to get this, and this is a very financially – well, just basically a financially unstable school. And for some time they had been – in fact, they still are – freezing positions, not renewing positions, you know, in order to keep themselves operating viably. So, yes, financial.
93 In relation to her approval on 30 June 2011 of the recommendation to make Professor Bessant redundant, Professor Gardner was asked the following question and gave the following answer:
Are you able to say what the motivating factors were behind your decision to approve the recommendation?---Well, they were the financial issues and how it was going to be addressed. I mean, I was acutely aware – I mean, this is a very difficult case and I don’t do any of these lightly and this one wasn’t a very easy one to consider and so I had to think about it really seriously because it’s – you know, it’s a complex issue. But it was over the financials. I mean, how you best got to – once you’re keeping the program, how do you keep the program and make it work?
94 In her evidence-in-chief, Professor Gardner was also asked for “the considerations you took into account in your decision to reaffirm your earlier decision?” Her answer was:
I went – I went back and looked. The – the case for – for – the financial case for redundancies in Youth Work were clear. There was – there was a need to reduce expenditure in that area and to effectively allow the school to reduce the amount of cross subsidisation that would be going into that area, because that’s what happens, if you’ve got a deficit in one area. They have to be able to be financially viable, and they have not to be – you – you don’t strip money from areas that are going to need more money, and in which, in fact, I knew your holding position is vacant. That is, areas that are growing on the educational side that actually need more staff and areas – by propping areas that are contracting or are effectively overstaffed at that – even at a stable – you know, whatever the stable amounts are. So the financial case stood up. I think I’ve probably spoken at some length about the settlement and that it was a settlement by another group of people about a dispute, an internal dispute about a title, which is about a variation of work plan, but which didn’t go to the question of whether the position was as professor fundamentally redundant, and I so decided that the position remained redundant on financial grounds.
95 Counsel for RMIT also relied on a couple of exchanges in cross-examination of Professor Gardner. In one such exchange, Professor Gardner was asked about the memorandum of Professor Hayward, seeking approval for a program of voluntary redundancies. Professor Hayward had described the reasons for the proposal as “primarily financial”. The exchange proceeded as follows:
Did that not strike you as a bit of a strange way of putting it, “primarily financial”?---No.
No?---I just took it to be that the grounds – that, you know, that it meant what it said, that they’re largely financial.
All right. You didn’t think that there might be secondary reasons that you ought to hear about?---No, I’m – I’m afraid I actually read out as the grounds are financial in nature because that’s what it looked like to me, yes.
All right?---But anyway, I didn’t. That’s what I did read it as.
96 In relation to the same document, Professor Gardner was asked whether she was worried that the proposal might be by way of retribution on the part of Professor Hayward for Professor Bessant’s conduct. Professor Gardner said:
You always have to worry about what motive might be and then, you have to say, “Does the case stack up?” That is, take that to one side, “Would this case stack up?” And that’s what I asked.
Professor Gardner went on to say that she had not questioned Professor Hayward about this issue.
97 None of these passages of itself is inconsistent with the possibility that Professor Gardner was motivated by reasons other than the purely financial ones she asserted. Although the focus of these passages in her evidence is on alleged financial reasons, there is no element of exclusivity in that focus. The assertions that there were financial reasons remain consistent with the possibility that there are other reasons. Indeed, the concession that the grounds were “largely financial” tends to indicate the possibility of other reasons.
98 This sort of description is confirmed in other places in Professor Gardner’s evidence. In relation to her re-examination of the documents after the report of the Redundancy Review Committee, Professor Gardner said:
Well, I went back over the documents, and I looked back, and it seemed to me that the criteria was primarily financial, within those concerns, and that that had been clear all along, and that that was the basis on which I made the decision, and that that was clear, and that that was the decision. [Italics added]
Subsequently, in relation to the same process, Professor Gardner said:
My view was that the decision to make that position redundant on the grounds of – on financial grounds did, indeed, stand and that the issues that were raised around the – the settlement, which seemed to be a major issue for them, were – were ill founded as issues, for the reasons that I think I’ve spoken about yesterday and that I’m happy to revert to. And the – and also that the criteria issues were – were clearly dealt with, because it was primarily financial. So – so I looked at all those documents. I went back over those things and I formulated the view that it – it was a redundancy that would stand. [Italics added]
In cross-examination in relation to the same process, Professor Gardner said, “It’s just primarily financial.” At the very end of her evidence, in an exchange with me, Professor Gardner justified her decisions by saying:
the reality is the central reasons were sound. And when they weren’t sound I changed my mind. [Italics added]
99 The references to the reasons being “largely” or “primarily” financial, and to the “central” reasons, being Professor Gardner’s own expressions, and not those put in her mouth by counsel, provide grounds for declining to accept the proposition that, when she was giving evidence as to her reasons for decisions at various stages of the process, Professor Gardner was giving evidence exhaustive of those reasons. I find that she was not.
100 It is therefore necessary to go to the circumstances in which the various decisions were made, to see whether they assist RMIT in discharging its onus of proving on the balance of probabilities that the reasons for the decisions to dismiss Professor Bessant from her employment were made because of the reasons alleged in the statement of claim.
The circumstances of the dismissal process
101 There is no doubt that Professor Gardner was well aware that Professor Hayward harboured animosity towards Professor Bessant. Professor Hayward’s memorandum dated 18 March 2010 (see - above) made Professor Gardner well aware that Professor Hayward was keen to have Professor Bessant removed from the School. Although she regarded it as inappropriate that she should be called upon to deal with an issue of the kind raised by the memorandum, Professor Gardner did not say that she put it out of her mind when she came to make her subsequent decisions. Nor did she have any discussion with Professor Hayward about the inappropriateness of his approach. She spoke only to Professor Fudge, to tell him that she did not want to see a memorandum like that of 18 March 2010 on her desk again.
102 In April 2010, Professor Bessant met with Professor Gardner and gave an account of her complaints to that date, including complaints about intimidatory, authoritarian and bullying behaviour by Professor Hayward. According to Professor Bessant’s evidence, Professor Gardner said that she would speak to Professor Fudge about these matters. Professor Gardner gave evidence about this meeting, to the effect that Professor Bessant was unhappy with the way she was being treated and with decisions being made in the School. Professor Gardner then sent an email to Professor Fudge, inviting him to meet with her about those issues. This was probably the beginning of the process leading to Professor Fudge’s institution of new working arrangements for Professor Bessant (see  above).
103 In relation to one or more of her complaints of bullying by Professor Hayward, Professor Bessant made a request for the production to her of certain documents, pursuant to freedom of information legislation. The relevant officer of RMIT raised this request with Professor Gardner, concerning the seeking of an exemption from disclosure. If she had not already been aware that Professor Bessant had made complaints of bullying, Professor Gardner certainly became aware of them in this process.
104 Of course, knowledge of the existence of the matters that are alleged to have been reasons for the dismissal is not of itself sufficient to establish that those matters were taken into account in making the decision. The existence of such knowledge merely indicates the possibility that such matters were reasons for the decision. In the present case, there are other circumstances that lend support to the proposition that the matters alleged in the statement of claim were among the reasons for the decision to dismiss Professor Bessant. One such circumstance is the absence of any clear reasoning in linking the financial deficit in the Youth Work discipline with the choice to make Professor Bessant’s position redundant, in any of the documents by which Professor Gardner’s approval was sought as part of the process.
105 In his memorandum of 2 March 2011 (see - above), Professor Hayward expressed the case in support of the proposition that the Youth Work discipline was expected to incur a significant financial deficit during the year 2011. The calculations are in attachment 2 to the memorandum, and in the document that was designated as “not to be attached to the Business Case”. The calculation was by taking the figure for “Income” and deducting from it the “Contribution margin/overhead”, leaving a figure described as “Expenditure Target”. There is then an item called “Expenditure”. The difference between the Expenditure Target and the Expenditure is the deficit, which is said to be a budget forecast for 2011. I have already described the five options specified in this document and the “Preferred staffing estbalishment [sic] Option 1” (see  above). It is clear that, although the adoption of the proposed option 1, the removal of Professor Bessant and Dr Edwards, would give rise to a greater reduction of the deficit than any other option, it would still result in the Youth Work discipline running a deficit. Self-evidently, for the year 2011, the deficit would be much greater than the figure of $91,084 shown in the Options Table. Part of the year 2011 had already elapsed. Part of the expenditure on salaries and on-costs for the five members of the staff of Youth Work for that year had already been incurred. A good deal of time, and the expenditure of money, were needed to process redundancies. Nowhere in the document, or in the memorandum to which it is apparently mistakenly attached, is there any statement of the appropriate level to which the Youth Work discipline should be permitted to run at a deficit. Given that some subsidisation from elsewhere was to occur (as it did with other disciplines, which were subsidised by those disciplines that achieved surpluses), there is no statement as to the level of subsidy that would be appropriate. Viewed strictly in financial terms, a decision to dispense with at least two members of staff in the Youth Work discipline was to be made without any calculation of a desirable end point to be achieved.
106 In the memorandum of 2 March 2011, Professor Hayward did include what might be said to be criteria for the selection of those who were to be made redundant. The memorandum said:
The following criteria may apply for selection of the applicants for potential redundancies :
• Academic Level B to E positions to be available for this process;
• the level of practice based skills and knowledge relevant to Youth Work;
• ability to teach practice skills and supervise work integrated learning placements in Youth Work
Self nominations will not automatically be accepted. The School retains the right of veto. The School will not necessarily accept any applications if the interests of the School and program would be thereby compromised rather than improved.
107 These criteria are vague. If the choice of option 1 in the attached document as the preferred staffing establishment had already been made, it is difficult to see how these criteria had been applied without staff having been given any opportunity to demonstrate how the criteria might have been applied to them. In the event, as there was no expressions of interest in voluntary redundancies, no occasion for choice of staff arose under the voluntary redundancy proposal.
108 I have referred in - above to the memorandum of Professor Hayward dated 28 June 2011, which was approved by Professor Gardner on 30 June 2011. That memorandum is entirely devoid of any reasoning that would support the choice of Professor Bessant’s position as one of the two to be made redundant. As was the case with the memorandum of 2 March 2011, there is no statement, or calculation, of any desired or desirable amount by which the deficit in the Youth Work program was to be reduced. There is no attempt to quantify the extent to which subsidisation of that program from any source other than its own student income would be tolerated. In her evidence, Professor Gardner was dismissive of the notion that any such reasoning was required. She adhered to the proposition that, once it was apparent that the Youth Work program was incurring a substantial deficit, the choice of the level E position for redundancy was obvious.
109 I do not accept this proposition. More importantly, nor did the Redundancy Review Committee accept it. One of the defects in the process to which the Redundancy Review Committee drew attention was the absence of any criteria by reference to which Professor Bessant’s position was chosen. It is highly likely in any university that a professor will be a more valuable asset to the university than will a lower level academic. It is precisely because ordinarily a professor will have one or more of a number of desirable qualities to a greater extent than a lower level academic that he or she will be paid more than the lower level academic. Those qualities will include such things as experience, research skills, teaching ability, administrative capacity, knowledge, breadth of vision and prestige. In determining the makeup of the staff profile for any university discipline, the cost of employing people at different levels will inevitably be only one factor. This reality was recognised to a limited extent in the memorandum dated 2 March 2011, by the inclusion of the brief and vague criteria to which I have referred in . Those criteria were entirely absent from the memorandum of 28 June 2011. Even in financial terms, there was no expressed process by which Professor Hayward moved from the proposition that there was a substantial deficit in the Youth Work program to the proposition that Professor Bessant should be dismissed. Professor Gardner’s evidence did not disclose such a chain of reasoning; she disputed the need for such reasoning at all.
110 One of the most disturbing aspects of this case is the absence of any contemporaneous account of the reasons of Professor Gardner for deciding that Professor Bessant should be made redundant. Professor Gardner justified this absence by saying that she is called upon to make many decisions every day and did not have time to record her reasons for all of them. This is undoubtedly the case, but the decision to make a professor redundant is not an every-day one and does differ from the ordinary run of administrative decisions within a university. The impact of the legislative provisions set out in - above is to give the recording of reasons for a decision to dismiss a person from employment a very high priority. Anyone with a background in the discipline of industrial relations, which Professor Gardner had, would understand the importance of recording reasons for dismissal. No such reasons were recorded. Professor Gardner did say that she had a discussion with Ms Gough in relation to the memorandum of 28 June 2011, and communicated her reasons to Ms Gough. Professor Gardner was not asked to give, and did not give, any evidence as to the content of any such conversation. Ms Gough was not called to give evidence at all. If the reasons given to Ms Gough were above-board, it is likely that evidence of the expression of them, at the time of the making of the decision to approve the memorandum of 28 June 2011, would have been given. The absence of such evidence suggests that the actual reasons given in the conversation would not have helped RMIT’s case.
111 It was not until 28 October 2011 that there was any expression of reasons for the decision to make Professor Bessant redundant. That expression of reasons came not from Professor Gardner, but from Ms Gough. She wrote the letter of 28 October 2011, referred to in  above. In that letter, Ms Gough purported to confirm “that the job performed by you is no longer required to be performed by anyone.” This was not a determination that Professor Gardner had ever made. Indeed, in her evidence, Professor Gardner rejected strongly any suggestion that she was obliged to consider what Professor Bessant was actually doing at RMIT at the time. As a result of the outcome of the Issues Resolution Committee process, the Settlement and Release Agreement of 29 April 2011 took Professor Bessant away from teaching duties in the Youth Work program (or anywhere else), and committed her to doing research only. Professor Gardner accepted that Professor Bessant’s research was not limited to the field of Youth Work. She would not accept, however, that Professor Bessant should be regarded as having been placed in a different position from the one that was apparently being made redundant. Professor Gardner was clearly dissatisfied with the outcome of the Issues Resolution Committee process. She did not think that the Settlement and Release Agreement fitted with the strategic direction of RMIT. She dismissed that agreement as nothing more than an agreement in relation to Professor Bessant’s work plan. She said that every academic had a work plan and that work plans could be changed from time to time. She ignored the fact that the Settlement and Release Agreement limited Professor Bessant’s work to research work for a period of three years.
112 Rather than deciding that RMIT no longer wished the work actually being done by Professor Bessant to be done by anyone (which would have been a somewhat remarkable decision, given the importance of research to a university), both Professor Hayward and Professor Gardner maintained strongly that Professor Bessant’s salary was irrevocably attached to the budget of the Youth Work discipline. The salary was dependent upon the income from students enrolled in that discipline, notwithstanding that Professor Bessant no longer had anything at all to do with teaching in that discipline. The irrevocable attachment of the salary to the particular budget line was said to exist despite the fact that Professor Hayward had moved into that budget line the 50% of Professor Bessant’s salary that had previously come from another budget line. He had done so without any notice to Professor Bessant. He assented readily to the proposition that he could move half of Professor Bessant’s salary into the Youth Work discipline, but maintained that he could not move any of it out of that discipline when the nature of her work changed, without any acknowledgement of the curious nature of such a proposition. Professor Gardner was well aware that some disciplines within the university were subsidised by others. She was also well aware that, in the year 2011, RMIT had a comfortable budget surplus, in the region of $53,000,000. Despite this, she was also resistant to the proposition that another source for Professor Bessant’s salary within RMIT could have been found, and that finding such another source would have reduced the deficit in the Youth Work discipline without any need to make any position redundant. She described such a move as “the path to ruin”. I have no difficulty accepting that excessive subsidisation of loss-making disciplines by those that manage to achieve surpluses would have financial consequences that were undesirable. I do not accept, however, that it was not possible for RMIT to meet Professor Bessant’s salary, in order to avoid dismissing her on the ground of redundancy, when the reality was that she was no longer involved in any capacity in the discipline to the budget of which her salary was said to be tied.
113 By entering into the Settlement and Release Agreement of 29 April 2011, RMIT was making a change to what Professor Bessant was employed to do. She had already been removed as the discipline leader for the Youth Work discipline. By the Settlement and Release Agreement, she was removed from teaching responsibilities in that discipline and was given a research-only position, with additional funding to support it, which was not limited to research in the Youth Work discipline. If the question whether RMIT no longer wished the work being done by Professor Bessant in June 2011 to be done by anybody had ever been addressed by any decision-maker, it is difficult to see how the answer could have been that Professor Bessant was to be made redundant by the application of that test. When Ms Gough purported to confirm in her letter dated 28 October 2011 to Professor Bessant that the job performed by Professor Bessant was no longer required to be performed by anyone, she was stating a falsity.
114 Nor are the three paragraphs of reasons that Ms Gough set out in the letter of 28 October 2011 consistent with any other evidence as to reasons. The first of those reasons referred to “the falling student enrolments and the current financial difficulties”. Falling student numbers had not been referred to as a reason for the redundancy previously. Indeed, Professor Hayward’s memorandum of 28 June 2011 referred to the level of student demand as having been “steady over recent years.” In her evidence, Professor Gardner did not claim to have relied on falling student numbers as a justification for her decision. Nor was it correct to say, as Ms Gough said in the third of the reasons advanced in her letter of 28 October 2011, that RMIT had considered Professor Bessant’s teaching, research and leadership skills and experience and that of other relevant academics. The absence of any criteria relevant to those matters, applied in the selection of Professor Bessant for redundancy, was identified by the Redundancy Review Committee. Professor Gardner had certainly not applied any such criteria.
115 Indeed, in her evidence, Professor Gardner rejected the proposition that she had applied the criteria that were finally drafted in the context of conciliation in Fair Work Australia, and were specified in the draft agreement attached to the letter of 23 September 2011 (see  above). The draft agreement specified the criteria that were said to have been used to determine the staffing requirement of the Youth Work program. As well as the financial structure, those criteria referred to qualifications, teaching and other experience in relevant areas, experience as a program director or equivalent or a senior role in field work delivery, and a relevant research profile. According to his evidence, Professor Hayward certainly did not rely on this range of criteria. They are not reflected in the brief and vague criteria in his memorandum of 2 March 2011. They are nowhere to be seen in his memorandum of 28 June 2011. Nor do they match the supposed reasons given by Ms Gough in her letter of 28 October 2011. The criteria presented to Deputy President Hamilton with the letter dated 23 September 2011 appear to have been created by somebody to answer the obvious criticism that there had been no criteria applied in the choice of the position of Professor Bessant as the one to be made redundant. If there had been criteria of the kind specified in September 2011, there is every reason to suppose that Professor Bessant would have fared well if judged honestly by reference to them.
116 The last chapter in the quest for actual reasons for the decision to dismiss Professor Bessant from her employment by reason of redundancy is Professor Gardner’s letter to Professor Bessant dated 19 March 2012. This is the only occasion on which Professor Gardner herself expressed any reasons for any of the decisions involved in the process. For this reason, I have set out the full text of the letter in  above. An examination of that letter shows that Professor Gardner was forced to deal with issues that did not involve finances only. It must be said, however, that she attempted to bring back every issue she did discuss to the question of finances. She was forced to deal with the issue of the absence of criteria. It is instructive to examine how she did so. In the first place, she made it quite clear that the criteria that had been advanced as a result of the conciliation process in Fair Work Australia had not ever been used to determine that Professor Bessant’s position was the one to be made redundant. Professor Gardner was driven to relying on a criterion that did not relate to finance when she asserted that someone other than Professor Bessant was capable of leading the Youth Work program. She rejected the proposition that the criteria ought to have included matters related to the development of post-graduate programs, supervision of graduate students, mentoring of academic staff or the development of the discipline of Youth Work. She purported to endorse the decision of Professor Hayward that Youth Work should have a “practice-based” focus (a reference to the brief and vague criteria set out in his memorandum of 2 March 2011, which were not repeated in his memorandum of 28 June 2011). Professor Gardner rejected the proposition that the Settlement and Release Agreement of 29 April 2011 provided Professor Bessant with immunity from redundancy, without looking at any other effect that that agreement might have had on the position. In other words, she continued to ignore the reality of the position in which Professor Bessant had been placed by that agreement. She also ignored Professor Bessant’s appeal to the spirit of that agreement.
117 In a number of respects, this letter is unsatisfying as an explanation of Professor Gardner’s reasons. It did not fill the gap between the proposition that there was a compelling financial imperative to effect significant savings in the Youth Work budget and the proposition that Professor Bessant’s position had to go. It did not deal at all with the question whether, given the role that she was by then performing, Professor Bessant could have her salary attributed to some budget line within RMIT other than the budget line for the Youth Work program. It did not confront squarely the question of selection criteria, in the event that it had been determined that a redundancy or redundancies were necessary. This is somewhat surprising in light of the Redundancy Review Committee’s recognition of the essential lack of fairness in the way in which Professor Bessant was chosen.
118 It is also worth mentioning that the Redundancy Review Committee also provided a report in relation to the decision to make Dr Edwards redundant. After reviewing her decision in relation to Dr Edwards, Professor Gardner decided to reverse it. This decision makes it abundantly clear that there was no pursuit of an optimal level of savings, and no determination of an optimal level of subsidisation of Youth Work. Professor Hayward’s original preferred option of making both Professor Bessant and Dr Edwards redundant, ostensibly for financial reasons, was not adopted in the end. It was only Professor Bessant who was made redundant.
119 The lack of a clear and cogent process of reasoning, leading to the conclusion that Professor Bessant needed to be made redundant, at any stage of the lengthy and detailed process, is a major factor pointing to the conclusion that there may well have been reasons other than those that were expressed for the making of that decision. Before determining whether this conclusion is valid, it is necessary to examine a couple of other issues.
120 A significant factor in this case is the manner in which Professor Gardner acted in relation to the process that led to the dismissal of Professor Bessant. As I have already found, Professor Gardner was well aware that Professor Hayward wished to have Professor Bessant dismissed from her employment for reasons that were entirely unconnected with the financial difficulties faced by the Youth Work discipline. The personal nature of the conflict between Professor Hayward and Professor Bessant, which included the complaints Professor Bessant had made about Professor Hayward, was well-known to Professor Gardner at least from her receipt of Professor Hayward’s memorandum of 18 March 2010 (see - above). In such circumstances, on receiving Professor Hayward’s memorandum of 2 March 2011 (which was clearly directed to securing the ultimate removal of Professor Bessant) and his memorandum of 28 June 2011 (which sought her approval of the removal of Professor Bessant), it might have been expected that Professor Gardner would take steps to ensure that the “business case” that was being made was not designed to conceal an ulterior motive on the part of Professor Hayward. Professor Gardner did no such thing. In each case, she signified her approval of the proposal for voluntary redundancies, and of the subsequent proposal for the redundancy of Professor Bessant, swiftly. In relation to the second proposal, she did not undertake anything like the examination of the documents which she said she undertook following the receipt of the Redundancy Review Committee’s report. In justification of her failure to investigate whether Professor Hayward was hiding his true motives behind the “business case”, Professor Gardner gave evidence that she was concerned only with the question whether the financial case stood up in its own terms. In other words, on her own evidence, Professor Gardner was not concerned with the possibility that Professor Hayward was using the financial case as a pretext to seek the dismissal of Professor Bessant for reasons of his own. Professor Gardner’s approach was not that of the impartial decision-maker.
121 Professor Gardner’s reaction to the report of the Redundancy Review Committee is also significant. Her evidence is that she was surprised by the findings of the committee. This was the first occasion on which a Redundancy Review Committee had made findings critical of one of Professor Gardner’s decisions in relation to the redundancy of an employee. Despite the finding of the Redundancy Review Committee that the process in relation to Professor Bessant had been unfair, Professor Gardner did not see any need to have the process conducted again. Although she spent some time in Indonesia following her receipt of the report, she did not consider delegating the decision to anybody else. There is no doubt that she could have done so. Clause 3.14 of the Enterprise Agreement defines “Vice-Chancellor” to mean the Vice-Chancellor of RMIT or her or his nominee. Her evidence indicates that Professor Gardner did not wish the ultimate decision on Professor Bessant’s case to fall into the hands of anybody else.
122 Professor Gardner’s approach to the issues raised by the report of the Redundancy Review Committee was to reject its findings. Both her evidence and her letter of 8 November 2011 (see  above) made clear her determination that there should be no criteria for the selection of the appropriate person or persons to be made redundant. She rejected unequivocally the proposition that the reality of Professor Bessant’s position, following the Settlement and Release Agreement of 29 April 2011, should have been taken into account. Professor Gardner made it clear that she did not like the terms of that agreement. As far as she was concerned, it did not fit within the strategic plan of RMIT. She characterised the agreement as nothing more than a work plan for Professor Bessant, which could be altered at any time, notwithstanding the three-year duration of the agreement. It appeared that Professor Gardner was determined to keep the focus on the narrow issue of the financial case, because a widening of the considerations might have made it obvious that her original decision to make Professor Bessant redundant should not have been made.
123 Professor Gardner’s letter to Professor Bessant of 16 February 2012 (see  above) is also revealing. The choice of a partial, instead of a total, reopening of the process, with Professor Gardner retaining control of it and seeking to limit the matters on which Professor Bessant would make submissions to her, suggests that Professor Gardner was committed to making Professor Bessant redundant. She was attempting to put out of her way the issues raised by the Redundancy Review Committee, without having to consider their substance, because a proper process might have resulted in a different decision.
124 Professor Gardner’s approach to the processes involved in making Professor Bessant redundant suggests that she was setting out to achieve a pre-determined result and would not allow herself to be diverted by anything that might prevent that result from being achieved.
125 The final question to be determined is whether Professor Gardner was in truth the sole decision-maker in relation to the redundancy of Professor Bessant. The case put by counsel for the NTEU and Professor Bessant was that Professor Gardner was doing no more than rubber-stamping the recommendations of Professor Hayward in his memoranda of 2 March 2011 and 28 June 2011. The argument was that Professor Gardner’s mind was therefore tainted by whatever unexpressed reasons Professor Hayward had. This case is not so simple, however. It is clear from the evidence that Professor Gardner had her own views about the financial issues raised by Professor Hayward and that she acted on those views. It happened that those views coincided with the views expressed by Professor Hayward in his memoranda, but it does not follow that Professor Gardner was merely rubber-stamping Professor Hayward’s views. Further, following the receipt of the Redundancy Review Committee report, Professor Gardner had more issues to deal with. If she had not made her own decision up to that time, she certainly did so before the final determination that Professor Bessant’s redundancy was to proceed.
126 Of greater significance are the roles of Professor de la Harpe (as the substitute for Professor Fudge) and Ms Gough. In her evidence in relation to the memorandum of 2 March 2011, Professor Gardner did not advert to the fact that Professor Fudge had not signed the memorandum himself. Her evidence was directed to explaining how what she assumed to have been the signature of Professor Fudge, and the signature of Ms Gough, came to be on the document, preceding her own signed approval. She said:
There’s a standard industrial process and a process that’s followed inside the university in which the case has to be examined, it has - you know, financials have to be done which usually involves the finances group. It has to be worked out in the school. It has to come through the college and the college itself has, with the Pro-Vice-Chancellor, a planning and resources manager who’s usually also looking at it. It has to go through the director of human resources. That’s to, you know, ensure that it is actually appropriately within human resources policy and then it comes to me.
Professor Gardner explained that Ms Warrender was not required to sign herself. Her function was to advise the Pro Vice-Chancellor, who would consult her. As to Ms Warrender, Professor Gardner said she did not sign “because she’s not the decision-maker. She’s the adviser.” She then said of Professor Fudge:
he is the decision-maker because if he doesn’t endorse it, it can’t - it won’t come to me.
...so the head of school has to have the endorsement of the Pro-Vice-Chancellor.
Professor Gardner also accepted the proposition that if the Executive Director, Human Resources did not sign the document, it would not come to her either.
127 In relation to the memorandum of 28 June 2011, the evidence was not as detailed, but Professor Gardner did assent to the proposition that the memorandum did “come to you in the same way as you indicated before?” That memorandum was also signed by Professor de la Harpe, who was deputising for Professor Fudge at the time.
128 The evidence makes it very clear that Professor Gardner took no step to investigate the reasons why Professor de la Harpe and Ms Gough signed the memoranda in question. She relied entirely on them. In those circumstances, whatever reasons Professor de la Harpe and Ms Gough had for making their decisions that were an essential part of the process leading to the ultimate decision to make Professor Bessant redundant are reasons of RMIT for that ultimate decision. This follows from the proposition that, without Professor de la Harpe and Ms Gough deciding to keep each memorandum on its path to Professor Gardner, no ultimate decision could be made.
129 Professor de la Harpe and Ms Gough did not give evidence. There is no evidence as to what their reasons for making those decisions were. Professor de la Harpe’s signature on the memorandum dated 2 March 2011 is not accompanied by any date. Given that the memorandum is dated 2 March 2011, and Ms Gough’s signature is dated 9 March 2011, it is possible that Professor de la Harpe, as Professor Fudge’s deputy, had significant consultations with Ms Warrender as Professor Gardner said the process required (see  above). The passage of the memorandum dated 28 June 2011 was much swifter. On the same day as it was dated, Professor de la Harpe and Ms Gough both signed it. This is not indicative of lengthy consideration by either of them. It is true that the memorandum of 28 June 2011 has information in the footer on the first page, suggesting that comments from Ms Warrender had already been incorporated into it. It may be that additional consultation by Professor de la Harpe with Ms Warrender was unnecessary. The speed with which the memorandum was dealt with gives rise to disquiet about the seriousness with which the matter was treated.
130 So far as reasons of Ms Gough are concerned, it might be said that they are contained in her letter dated 28 October 2011 (see  above). I have already commented on the differences between these reasons and those advanced by Professor Gardner, and on the inconsistency of Ms Gough’s reasons with what actually occurred. One further aspect of the letter of 28 October 2011 is worthy of attention. It is the disclaimer. Ms Gough asserted that the decision “is in no way a consequence of any actions taken or complaints made against the University by you in relation to alleged bullying, discrimination, injury or inappropriate conduct in relation to your workplace or other rights.” On the one hand, this disclaimer might give comfort that Ms Gough was not motivated by the reasons alleged in the statement of claim, to the extent that she made her decision. On the other hand, the disclaimer might give rise to disquiet about the process. It demonstrates that, at least in the mind of Ms Gough, the fact that Professor Bessant had made various complaints in the exercise of her workplace rights was something that might have been regarded as having a connection with the decision to make her redundant. If all of the deciding minds involved in the process of making Professor Bessant redundant had been free of reasons that would have been unlawful by virtue of s 340(1)(a) of the Fair Work Act, if they had been operative reasons, there would have been no need to protest innocence. It may be that, in the course of the process leading to the ultimate decision to make Professor Bessant redundant, Ms Gough had discovered that Professor de la Harpe or Professor Gardner did have in mind the workplace rights of Professor Bessant. Knowing that a decision based in part on those workplace rights would have been in contravention of s 340(1)(a) of the Fair Work Act, Ms Gough may have thought it necessary to act to reassure Professor Bessant that this was not the case. These suggestions are merely speculation, however, because Ms Gough was not called to give evidence. She did not therefore substantiate the proposition that the letter did set out her own, or anybody else’s reasons. Certainly, she did not provide evidence that her own mind, the mind of Professor Gardner, or the mind of Professor de la Harpe was free of any consideration of the workplace rights of Professor Bessant as operative reasons for the decision.
131 My conclusion that RMIT has not satisfied the onus of proving that the reasons alleged in the statement of claim were not among the reasons for the dismissal of Professor Bessant is based not only on the failure of Professor Gardner to give explicit evidence that none of those reasons was operative in her decision. My conclusion is based in part on the fact that Professor Gardner’s own evidence contains indications that she had reasons other than those to which she referred explicitly. It is based on the absence of any clear expression of a connection between the financial deficit in the Youth Work discipline and the choice of Professor Bessant as the one who should be made redundant. This includes the absence of the expression, or the application, of any criteria by reference to which the making of that choice occurred. My conclusion is based in part on the refusal of Professor Gardner to confront the reality of the position Professor Bessant was occupying as a result of the Settlement and Release Agreement of 29 April 2011 and the unconvincing insistence, that although her connections with the Youth Work discipline had been severed, her salary was irrevocably attached to the budget of that discipline. It is based in part on the apparent determination of Professor Gardner to ignore her knowledge of Professor Hayward’s animosity towards Professor Bessant, which was based on Professor Hayward’s views as to Professor Bessant’s conduct, which included the making of various complaints against him, and to attempt to confine herself to the financial case. It is based in part on Professor Gardner’s apparent determination to retain control of the process and to minimise the impact of the defects in that process to which the report of the Redundancy Review Committee drew attention, so that she could ensure that her own decision prevailed. Finally, it is based in part on the fact that Professor Gardner’s decisions would not have been made without decisions on the part of each of Professor de la Harpe and Ms Gough to forward to Professor Gardner the memorandum of 28 June 2011, without which Professor Gardner would not have been called upon to make any decision at all. The failure to call either Professor de la Harpe or Ms Gough to give evidence means that RMIT has failed to demonstrate that their decisions, which were an essential part of the decision to make Professor Bessant redundant, were not made because of the reasons alleged in the statement of claim.
132 The decision to dismiss Professor Bessant from her employment was therefore made in contravention of s 340(1)(a) of the Fair Work Act. The dismissal amounted to adverse action, which was taken because Professor Bessant had, and had exercised, and proposed to exercise, workplace rights.
Contravention of the Enterprise Agreement
133 The statement of claim contains a number of allegations of contraventions by RMIT of provisions of the Enterprise Agreement. There are contraventions alleged of cll 50.2, 50.5.9, 16, 19, 50.3.5 and 51. Several of these claims were abandoned in the course of the trial. Although evidence was led, designed to show that RMIT had failed to offer Professor Bessant redeployment to suitable vacant positions, as required by cl 50.3.5, in the end that allegation was not pursued. Nor was an allegation of contravention of cl 50.2, which had been based on the proposition that, as none of the grounds for redundancy existed, RMIT was not entitled to give Professor Bessant the formal notification required by that clause. An allegation of contravention of cl 16.4 of the Enterprise Agreement, relating to failure to implement the Settlement and Release Agreement, reached as a result of the Issues Resolution Committee process, was also not pursued.
134 The NTEU and Professor Bessant did argue that there was a contravention of cl 19 of the Enterprise Agreement, because RMIT had failed to explore all reasonable measures to avoid a forced redundancy in the case of Professor Bessant. It is difficult to construe cl 19 as imposing on RMIT an obligation to explore all reasonable measures to avoid forced redundancies. The clause contains a recital of RMIT’s commitment to do so, rather than an expression of a rule that it must do so. It may be that the expression of a commitment was seen as an important element in negotiations leading to the Enterprise Agreement, but that the choice was made not to impose a general obligation. The specific options that RMIT is obliged to pursue before proceeding with forced redundancies are preceded by the words “Where possible”. In the present case, there was no focus on any specific option as being both possible and not pursued. For these reasons, the argument that there was a contravention of cl 19 of the Enterprise Agreement cannot be accepted.
135 The argument that there had been a contravention of cl 50.5.9 of the Enterprise Agreement was put in the alternative. First, it was argued that, on receiving the report of the Redundancy Review Committee, Professor Gardner was obliged to act in accordance with that report (with the concession that she would only be obliged to do so if the report were not the result of “manifest error”). Alternatively, it was contended that RMIT was in contravention of the requirement of the last sentence of cl 50.5.9, in that Professor Gardner had not taken into account the findings of the Redundancy Review Committee. It seems clear that the scheme of cl 50.5, involving a review by a Redundancy Review Committee, is to leave the Vice-Chancellor of RMIT (or her delegate) to be the ultimate decision-maker in a redundancy process. The Redundancy Review Committee is set up not to provide full merits review of a decision to make an employee redundant, but to address the specific criteria listed in cl 50.5.1, relating to fairness, natural justice and discrimination. The scheme therefore leads to the conclusion that the Vice-Chancellor is not bound by any determination of the Redundancy Review Committee. The words “must take into account the findings” make this clear. In the present case, Professor Gardner did not ignore the findings of the Redundancy Review Committee. They caused her to review her decision. In her review, she examined and set aside the issues raised by the Redundancy Review Committee. It is possible to be critical of her reasoning in this respect (and I have been), but it is not possible to say that she ignored the findings. There was therefore no contravention of cl 50.5.9.
136 Clause 51.1 of the Enterprise Agreement imposes an obligation on RMIT, whenever it “forms the view that an employee’s position is likely to have an uncertain future”, “wherever practicable” to offer the employee concerned the option of participating in a voluntary redeployment process. At least by 2 March 2011, the date of Professor Hayward’s memorandum to Professor Gardner, seeking approval for a program of voluntary redundancies, Professor Hayward had formed the view that Professor Bessant’s position was likely to have an uncertain future. He was well aware of the option in the document attached to that memorandum that involved dispensing with the level E and the level C positions. Professor Hayward was also well aware that this option was described as the “Preferred staffing estbalishment [sic]”. This state of affairs was more than sufficient to satisfy the requirement that Professor Bessant’s position was likely to have an uncertain future. At that time, she was being considered as the most likely candidate for redundancy. For the purpose of forming a view about the likely uncertainty of the future of Professor Bessant’s position, Professor Hayward’s mind was the mind of RMIT. If, for any reason, that were not the case, then any of Professor de la Harpe, Ms Gough and Professor Gardner, who all read the memorandum and its attachments shortly after 2 March 2011, would be the relevant mind. Each of them must have been aware of the uncertainty of the future of Professor Bessant’s position.
137 Nothing in the evidence leads to a conclusion that it was not, at that time, practicable for RMIT to offer Professor Bessant the option of participating in a voluntary redeployment process. The statements of Professor Hayward in various documents, including the memorandum of 2 March 2011, to the effect that redeployment options within the School were not currently available, do not preclude the practicability of a voluntary redeployment process across the whole of RMIT. In the circumstances, cl 51.1 of the Enterprise Agreement required RMIT to offer Professor Bessant the option of participating in a voluntary redeployment process.
138 It is difficult to assess whether this contravention was a mere technical contravention, or a contravention of substance. On the one hand, my assessment of Professor Bessant is that, at an earlier time, she was so deeply committed to her position in the Youth Work discipline, and as its discipline head, that she would have refused the option and fought to maintain her position. She did not take up the offer from Ms Gough (referred to in  above), in a letter dated 8 February 2011, to explore with Ms Dal the option of voluntary redundancy which was option 7 in the report of Ms Zeitz. On the other hand, because of the intervention of Professor Fudge, Professor Bessant had already been moved to a building away from that in which Professor Hayward’s office was situated, and from her teaching duties, and had been given a new reporting line through Professor Siracusa. In effect, she had already been redeployed. She might well have accepted the reality of this and been content to take up a position elsewhere within RMIT, if one had been available, as part of a voluntary redeployment process. If Professor Bessant had been given the option of such a process, and had taken it up, and if the process had been successful in finding an alternative position for her within RMIT, the entire process of her redundancy would have been unnecessary. To the extent to which it was desirable to reduce the financial deficit in the Youth Work program by removing Professor Bessant’s salary and other costs from its budget, they would have been removed. If a position could have been found that did not involve Professor Bessant interacting with Professor Hayward on a regular basis, any need for Professor Hayward to pursue any strategy designed to remove Professor Bessant from RMIT would have disappeared. For these reasons, it is necessary to regard the failure to comply with cl 51.1 of the Enterprise Agreement as a serious contravention.
The appropriate penalties
139 Two contraventions of civil remedy provisions, within the meaning of s 539(1) have been established. The contravention of s 340(1)(a) of the Fair Work Act by the taking of adverse action against Professor Bessant in dismissing her from her employment because she had, and had exercised, and proposed to exercise, workplace rights is one. The contravention of cl 51.1 of the Enterprise Agreement, which is a contravention of s 50 of the Fair Work Act, is the other. In each case, the maximum penalty is 60 penalty units. A “penalty unit” is defined by s 12 of the Fair Work Act by reference to s 4AA of the Crimes Act 1914 (Cth). The amount of a penalty unit at the time of the relevant contraventions was fixed at $110. The effect of s 546(2)(b) of the Fair Work Act is to require that the maximum number of penalty units referred to in the relevant item in column 4 of the table in s 539(2) is to be multiplied by 5. Accordingly, in the present case, the maximum penalty for each contravention is $110 x 60 x 5 = $33,000.
140 In respect of each of the contraventions, RMIT must be regarded as a first-time contravener. No prior conduct of a similar nature has been alleged against it.
141 The contravention of s 340(1)(a) of the Fair Work Act must be regarded as very serious. In effect, RMIT made use of its redundancy processes to rid itself of an employee, who was considered to be troublesome, at least partly because she was prepared to exercise her workplace rights by making complaints about the behaviour of her immediate supervisor. The process was conducted unfairly, with an attempt to narrow the focus of consideration to a financial situation which was alleged to exist, but not established by a rigorous process and not in accordance with reality. Attempts to introduce into the redundancy process objective criteria, by reference to which Professor Bessant might have been able to justify retaining her position, were resisted. The contravening reasons for Professor Bessant’s dismissal were kept secret. Even in Court, they were not addressed by Professor Gardner, and others who could have shed light on them were not called to give evidence. Their existence was certainly known to Ms Gough, as is demonstrated by the disclaimer in her letter of 28 October 2011. This contravention was serious also in its effect on Professor Bessant. There was evidence from Linda Gale and Mr Cupido, both from the NTEU, and from Professor Bessant herself, that the dismissal of a professor, even when labelled as a redundancy, would have a very significant effect on the ability of the dismissed professor to obtain another job in a university. Such a dismissal would mean inevitably that a prospective employer would take the view that the dismissed professor must have some undesirable qualities, or must have been guilty of some bad conduct, in order to have been chosen for redundancy. This evidence was not addressed squarely by RMIT in its evidence. The proposition that a dismissal for any reason makes it difficult to obtain another job, especially in a field in which the number of potential employers is quite small and the pool of possible candidates is quite large, is not inherently improbable. Professor Gardner conceded the scarcity of level E jobs in social sciences. I accept that there was serious damage to Professor Bessant’s prospects of re-employment as a result of the redundancy process. That process itself was drawn out and complex, and caused significant distress to Professor Bessant. For all of these reasons, I take the view that the contravention was a very serious one.
142 For the reasons I have given in  above, I also take the view that the contravention of s 50 of the Fair Work Act constituted by the contravention of cl 51.1 of the Enterprise Agreement was a serious one, although I do not regard it as having been as serious as the other contravention.
143 There was no display of contrition on the part of RMIT, particularly from Professor Gardner. She maintained to the very end of her evidence that the decision to make Professor Bessant redundant was fully justified. She made no concessions as to any impropriety.
144 The need for specific deterrence is quite high. Unless the effect of a penalty is felt, RMIT might again succumb to the temptation to make use of its redundancy processes to rid itself of an employee when it desires to do so for reasons that would be prohibited by the Fair Work Act. There is also a need for general deterrence. Employers must understand that making use of redundancy as a pretext for getting rid of an undesired employee is not an option, if the reasons for wishing to get rid of that employee would be proscribed by the Fair Work Act. Both RMIT and employers generally must understand that obligations entered into pursuant to enterprise bargaining agreements that involve making efforts to avoid redundancies, by the use of such devices as voluntary redeployment programs, are real and substantive obligations, and must be met whenever the occasion for making an employee redundant has become a real prospect.
145 Taking into account all of these matters, I consider that the appropriate penalty for the contravention of s 340(1)(a)(ii) of the Fair Work Act is $27,000 and the appropriate penalty for the contravention of s 50 of the Fair Work Act is $17,000. This gives rise to a total penalty of $44,000. It is necessary for me to apply the totality principle, which requires consideration of whether the total of the two penalties exceeds what might be the appropriate level of penalty for the conduct of RMIT, viewed as a whole. In this case, there is some overlap between the two contraventions. They are both the product of a desire to dispense with Professor Bessant. They are in a very real sense separate, however. As I have said in  above, if the requirement of cl 51.1 of the Enterprise Agreement had been honoured in early March 2011, by the offer of the option of a voluntary redeployment program to Professor Bessant, and if such a redeployment program had been successful, there would have been no occasion for putting into operation the process to make Professor Bessant redundant. The flaws in the process followed to make Professor Bessant redundant existed independently of the failure to offer voluntary redeployment at an earlier stage. Consequently the reduction to the total of the penalties is not great. The appropriate total penalty for the two contraventions is $37,000.
146 Pursuant to s 546(3)(b) of the Fair Work Act, the Court has power to order that the pecuniary penalty, or part of it be paid to a particular organisation. In a case in which a union has instituted a proceeding to enforce the rights of one of its members, an order that a resulting penalty be paid to that union is the usual order. The scheme under which the enforcing party is the recipient of the penalty is designed to encourage the enforcement of provisions of the Fair Work Act and of agreements and other instruments made under it. Even though Professor Bessant is also an applicant in the proceeding, it is still appropriate to order that the whole of the penalty imposed be paid to the NTEU.
147 The NTEU and Professor Bessant seek orders pursuant to s 545(1) of the Fair Work Act. As the application was framed originally, the relief sought was reinstatement of Professor Bessant, pursuant to the specific provision in s 545(2)(c) of the Fair Work Act, with consequential orders that RMIT treat Professor Bessant as having been employed from 21 April 2012 to the date of the Court’s order, compensation for lost income during that period and interest. In the course of the trial, when the application was amended, an alternative claim for compensation, pursuant to the specific provision in s 545(2)(b) of the Fair Work Act, was included. In addition, there was a claim for compensation for damage to reputation.
148 It is clear that there would be some difficulty involved in reinstating Professor Bessant. It is not the case that the trust and confidence necessary to an employment relationship has broken down to the extent that it could not be restored. As I have said, no criticism has been offered of Professor Bessant’s performance or capacity as a teacher, researcher or administrator. Professor Gardner expressed the belief that she would be able to talk with Professor Bessant. The difficulty is that the relationship between Professor Bessant and Professor Hayward has become unsustainable. In her evidence, Professor Bessant lost no opportunity to express her views about Professor Hayward. Her views were hostile. Professor Hayward was more restrained, but the evidence shows him to have been determined to see Professor Bessant removed from RMIT for some time. For Professor Bessant to be returned to any position in which she would have to have dealings with Professor Hayward would be highly problematic.
149 The alternative of compensation also has a downside. After questions of the calculation of loss had been canvassed in addresses, the parties were able to reach substantial agreement about how a basic figure for loss would be calculated. Using the current entitlements of a professor at RMIT as a base, they calculated a series of figures for the net present value of that salary on a yearly basis from one year to 15 years, discounting by 3% per annum in accordance with Todorovic v Waller (1981) 150 CLR 402. After taking into account the requirements of taxation law as they affect a lump sum representing what would have been received over a period of years, they arrived at a series of agreed figures that would be required to be paid to compensate for the loss of future income. As I have already said in  above, a dismissal of a professor is likely to make it difficult for the person dismissed to find other equivalent employment in the field of social sciences. Professor Bessant’s unchallenged evidence was that she intended to work for about another 11 years. Assuming that it is necessary to compensate her for 10 years from the date of judgment, on the basis that she does not obtain any other employment, the agreed figure is $1,994,285. Even discounting for contingencies, or assuming that Professor Bessant would obtain a job at a lower level (and there are agreed figures on two such lower-level assumptions), it is likely that the figure awarded would be significantly in excess of $1,000,000. To this figure, it would be necessary to add interest. In the event that I made such an order, I would not add further compensation for damage to Professor Bessant’s reputation. In economic terms, damage to her reputation would already have been taken into account, by compensation for lost income for the likely period of future employment.
150 As I see the situation, it is necessary to choose between putting Professor Bessant back into a situation in which, if she should have dealings with Professor Hayward, those dealings are likely to be unworkable, and forcing RMIT to pay out a very large sum of money to compensate Professor Bessant for the likely consequences of her dismissal. In the circumstances, it seems to me that the first of these courses is the preferable one. Ordering that Professor Bessant be reinstated to the position she held immediately prior to her dismissal taking effect would mean that she would return to her research position in a building in which she was separated from Professor Hayward’s physical presence, and in which she would be insulated from any direct reporting to Professor Hayward by being able to report to Professor Siracusa. She would be able to engage in productive research, which would benefit both her and RMIT. Assuming that she were to remain in employment at RMIT for the next decade, the money spent by RMIT in employing her would be money that would produce a benefit to RMIT, in having Professor Bessant’s services, rather than money simply paid out to compensate her. Reinstatement appears to me to offer a more positive outcome for Professor Bessant and RMIT. If Professor Bessant decides to seek employment elsewhere, at least she will have the benefit of doing so while she is holding the position of a professor at RMIT, rather than being unemployed after dismissal.
151 RMIT will not have difficulty finding Professor Bessant’s salary and other costs from its budget. As I have said, I do not accept the proposition that Professor Bessant’s salary was connected irrevocably with the budget line for the Youth Work discipline. RMIT can choose to maintain this line, in which case it will have to subsidise the Youth Work discipline from somewhere else in the budget, or it can recognise the reality that, for the present, Professor Bessant’s position is outside the Youth Work discipline, and take a realistic look at another area to which she might be attached for budget purposes.
152 I recognise that it is necessary to look to the future. Professor Bessant’s current research-only position has a time limit of three years from 29 April 2011. Whether the period is to be extended, because of the hiatus between April 2012 and this judgment, is not a matter for me. Whatever happens, there might be a time when Professor Bessant resumes teaching duties. It will be necessary then for RMIT to negotiate arrangements that will avoid the possibility of conflict between Professor Bessant and Professor Hayward, because the most likely area in which Professor Bessant would resume teaching is the social sciences area, which falls within the School headed by Professor Hayward. I do not think it would be outside the range of reasonable management skills to expect that a viable way will be found to ensure that Professor Bessant is able to return to teaching duties, whilst avoiding contact with Professor Hayward so far as possible, to ensure that the School continues to run smoothly.
153 On her dismissal, Professor Bessant was paid a substantial sum of money in lieu of notice, as required by various provisions of the Enterprise Agreement, including those relating to redundancy. In part, the payment also reflected Professor Bessant’s accrued entitlements, including various forms of leave. It would be appropriate to make an order consequent upon reinstatement that Professor Bessant be treated as having been employed continuously from 20 April 2012 to the date of reinstatement, for all purposes of remuneration and other entitlements of her employment. The result will be that financial adjustments need to be made. I envisage that amounts paid in lieu of notice or for redundancy would be set off against Professor Bessant’s entitlement to arrears of salary. Adjustments might need to be made with respect to matters such as taxation and superannuation contributions. I do not expect that the whole of Professor Bessant’s accrued entitlements for leave would be so set off. Had she remained in employment throughout the period in question, Professor Bessant would have been entitled to choose when to exercise her leave entitlements, at least to some extent. She should not be treated as having elected to take all of her entitlements within the period between her dismissal taking effect and her reinstatement. In case there should be any difficulty in making calculations, I propose to reserve liberty to apply.
154 Although the likely result of the order discussed in  above is the payment of a sum of money to Professor Bessant, I do not think it would be appropriate to order RMIT to pay interest on that sum. In effect, Professor Bessant will already have received early payment of a significant part of the remuneration to which she would have been entitled if she had remained in employment. It would not be fair to allow her to claim interest on the remainder of her arrears of salary without bringing to account interest on what she has already received early. In any event, when it comes to matters such as salary, the calculation of interest is inherently difficult. An accurate calculation requires a separate calculation for the amount that would have been due on each pay day in respect of the period between that pay day and the date of judgment, and the accumulation of those amounts of interest. I regard the consequences of early payment of part of the arrears, together with the practical difficulties of calculation, as demonstrating “good cause...to the contrary”, within the meaning of s 547(2) of the Fair Work Act and s 51A(1) of the Federal Court of Australia Act 1976 (Cth), so that the requirements of those provisions that there be an order for interest are not applicable.
155 Because I am proposing to order reinstatement, together with recognition of continuity of employment, I do not propose to order that RMIT pay any further compensation for damage to the reputation of Professor Bessant. By this judgment, she will be vindicated. She will suffer no economic harm arising from any damage to reputation.
156 To the extent to which the application also seeks other orders, I would not make them. Declarations as to contraventions of ss 50 and 340(1) of the Fair Work Act are unnecessary. There is no proposal in the application of any form of declaration that would be appropriate. Declarations as to contravention without details of that contravention ought not to be made. See Rural Press Ltd v Australian Competition and Consumer Commission  HCA 75 (2003) 216 CLR 53 at - per Gummow, Hayne and Heydon JJ.
157 Claims in the application for an injunction and damages for breach of contract were dependent upon Professor Bessant’s claim that the agreement of 29 April 2011 gave her a guarantee of three years of employment, a claim which was abandoned in the course of the trial. Accordingly, apart from the orders I have proposed above, the application should be dismissed.
158 The proceeding falls squarely within s 570(1) of the Fair Work Act, being a proceeding in a court exercising jurisdiction under the Fair Work Act. In the absence of any circumstance that would attract a decision in favour of one party or the other on any of the criteria found in s 570(2) of the Fair Work Act, the prohibition on ordering a party to pay costs is applicable.