FEDERAL COURT OF AUSTRALIA

Tiver v University of South Australia [2014] FCA 1114

THE COURT ORDERS THAT:

1.    Paragraphs 14.4, 16.4, 84.7, 84.9, 84.10, 84.12, 90.1, 90.8, 90.9, 91.2, 91.3 and 91.7 of the Amended Statement of Claim be struck out.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, Dr Tiver, was formerly employed by the respondent (UniSA). That employment came to an end in December 2011 by UniSA’s termination of Dr Tiver’s employment with immediate effect on 1 December 2011 (as it alleges) or by Dr Tiver’s acceptance on 7 December 2011 of UniSA’s repudiation of her contract (as she alleges).

2    It is uncontroversial that, in the period from 24 August 2006 until 5 April 2011, Dr Tiver’s employment at UniSA was governed by The University of South Australia Academic and Professional Staff Collective Agreement 2006 (the Collective Agreement) and, in the period from 5 April 2011 until the end of her employment, by The University of South Australia Enterprise Agreement 2011 (the Enterprise Agreement). There is a possibility that some provisions in the Collective Agreement continued to be operative in Dr Tiver’s case after 5 April 2011.

3    It is evident that the termination of Dr Tiver’s employment was preceded by a prolonged period of disagreement, including disputes about the implementation of the dispute resolution and disciplinary procedures in the Collective Agreement and the Enterprise Agreement.

4    In these proceedings, Dr Tiver alleges ten contraventions by UniSA of the applicable dispute resolution and disciplinary procedures in the Collective Agreement or the Enterprise Agreement, and seven breaches by UniSA of her contract of employment. UniSA denies the alleged contraventions and breaches.

5    This decision concerns UniSA’s application under r 16.21 of the Federal Court Rules 2011 (Cth) (FCR) to have 18 paragraphs of the Amended Statement of Claim (ASC) struck out. The application is made on multiple grounds, with some of the grounds being relied upon in the alternative.

6    UniSA contends that the allegations in seven paragraphs of the ASC are an abuse of process (r 16.21(f)); that the allegations in 10 paragraphs fail to disclose a reasonable cause of action (r 16.21(e)); and that the pleading in 10 paragraphs is evasive, ambiguous and likely to cause prejudice, embarrassment and delay (r 16.21(c) and (d)). In the event that its strike out application fails, UniSA seeks, in the alternative, an order that Dr Tiver provide further and better particulars of several of the impugned paragraphs.

7    At the hearing, UniSA did not pursue the allegations of abuse of process. It did not abandon those allegations but accepted that they may be more appropriately pursued at trial when the Court will have evidence of all the matters on which it relies and the benefit of a more complete argument than is appropriate on an interlocutory application of the present kind.

A Summary of Dr Tiver’s Allegations

8    Many of the matters which I record by way of background seem to be non-contentious but I emphasise that they are drawn from the ASC and from UniSA’s Further Amended Defence and therefore are based on matters which, at this stage, are allegations only.

9    The ASC had annexed to it cll 43, 44 and 46 of the Collective Agreement and cll 49 and 51 of the Enterprise Agreement.

10    Clause 43 of the Collective Agreement contained provisions with respect to dispute resolution which are of a familiar kind in industrial agreements. It required all disputes to be notified to the Director of Human Resources at UniSA, who was charged with attempting to resolve the dispute (cl 43.4). It then contemplated unresolved disputes moving through a series of stages involving reference to a Dispute Committee, and, ultimately, a reference to the Australian Industrial Relations Commission (AIRC) which could exercise both a conciliation and arbitral function (cl 43.8).

11    Clauses 44 and 46 provided the procedure by which disciplinary action could be taken. They defined, and gave examples of, “misconduct” and “serious misconduct”; identified the forms of disciplinary action which could be taken, of which termination of employment was the most serious; and provided for a number of procedural steps in relation to the taking of disciplinary action. By cl 44.3, disciplinary action could be taken only by the Vice-Chancellor and in accordance with the provisions of the Collective Agreement. Clause 46.5(b) required the Vice-Chancellor’s nominee, in the event that he or she considered that notified allegations warranted further investigation, to notify the staff member in writing and to provide sufficient detail to enable the member to understand, consider and respond to properly to the allegations. Clause 46.5(f) required allegations which were denied to be referred to a “Disciplinary Review Committee” unless the Vice-Chancellor’s nominee decided either to take no further action or to refer the matter to the Vice-Chancellor. Clause 46 did not provide expressly for the appointment of a Disciplinary Review Committee but in context it seems to be the same as the ad hoc “Dispute Committee” contemplated by cl 43. A Dispute Committee was to comprise three persons: one nominee of the Vice-Chancellor; one nominee determined by the staff elected representatives on the Collective Agreement Implementation Committee (CAIC); and one nominee agreed upon by the Vice-Chancellor and the staff elected representatives on the CAIC.

12    Clauses 49 and 51 of the Enterprise Agreement, entitled “Disciplinary Procedures”, were the counterpart provisions to cll 44 and 46 in the Collective Agreement.

13    On 9 October 2008, Dr Tiver lodged notification of a grievance with the Director of Human Resources at UniSA, Ms Blenkiron. Dr Tiver alleged bullying, harassment and intimidation by one of UniSA’s professors. The ASC refers to this as the “Formal Grievance”. UniSA then retained an external consultant, Ms Warhurst, to undertake a review of the Discipline of Geospatial and Environmental Management (DGEM) within the School of Natural and Built Environments (NBE School) in which Dr Tiver worked. UniSA also asked Ms Warhurst to prepare a report in relation to Dr Tiver’s Formal Grievance, but there is disagreement as to when it made that request.

14    In December 2008, Dr Tiver sent a letter to UniSA which is described in the ASC as the “Extension to Formal Grievance”. In this letter, Dr Tiver expressed concerns about the manner in which the Formal Grievance had been treated and made complaints of victimisation resulting from her lodgement of that grievance. One of Dr Tiver’s present complaints is that UniSA took no action in relation to the Extension to Formal Grievance.

15    In January and February 2009, Ms Warhurst provided two reports to UniSA, one relating to her review of the DGEM, and one relating to Dr Tiver’s grievance. There followed meetings, in February and April 2009 between Dr Tiver and her National Tertiary Education Union (NTEU) representative (Ms Walsh), on the one hand, and Ms Blenkiron and Professor Parfitt, the Pro Vice-Chancellor of the Division of Information, Technology, Engineering and Environment (DITEE). Dr Tiver alleges that in those meetings the prospect of her resigning from the University on agreed terms was raised by UniSA but rejected by her.

16    On 22 April 2009, Ms Blenkiron sent a document entitled “Notice to Show Cause” to Dr Tiver containing a number of allegations regarding her conduct. By letter of 17 June 2009, and in purported compliance with cl 46.5(b) of the Collective Agreement, UniSA purported to provide particulars of the conduct of Dr Tiver which it alleged. By letter of 1 July 2009, Ms Walsh notified UniSA of a dispute pursuant to cl 43 of the Collective Agreement in relation to the letter of 17 June 2009. This led to some further correspondence between UniSA and Ms Walsh.

17    By an application dated 17 July 2009, the NTEU lodged a “Dispute Application” with Fair Work Australia (FWA) pursuant to cl 43 of the Collective Agreement. This application raised issues about UniSA’s response to Dr Tiver’s two grievances, Ms Warhurst’s review, UniSA’s commencement of the disciplinary process, and the failure by UniSA to provide appropriate particulars of the allegations in the Notice to Show Cause. FWA conducted a conference of the parties which did not seem to resolve the disputes but concluded with an acknowledgment that UniSA would notify the NTEU of the disciplinary action which it proposed to take under cl 46 of the Collective Agreement.

18    On 13 November 2009, UniSA took steps to formalise the appointment of a Dispute Committee. The NTEU then had the matter called back on before FWA and sought, in particular, proper particularisation of the allegations in UniSA’s letter of 17 June 2009. By letter of 15 December 2009, Ms Blenkiron provided some additional material and particulars and, in addition, informed Dr Tiver that she was suspended from duty with pay, that she was not to attend the University or otherwise make contact with University staff in relation to the dispute, and that her security access and email and computer access at the University were being withdrawn. UniSA declined to provide any further particulars and, on 17 February 2010, its position was endorsed by O’Callaghan SDP in the FWA. However, on appeal a Full Bench of FWA found that UniSA’s letter of 15 December 2009 did not particularise sufficiently the allegations made against Dr Tiver and, in addition, that the suspension by UniSA of Dr Tiver on 15 December 2009 and its referral to a Dispute Committee were invalid.

19    On 1 June 2010 (one day after the Full Bench decision), UniSA provided a further letter to Dr Tiver. This letter also invoked the disciplinary procedures in cl 46 of the Collective Agreement. It contained allegations of conduct by Dr Tiver together with some particulars, informed Dr Tiver that UniSA regarded her conduct as amounting to a serious contravention of her obligations as an employee, informed her of her suspension from duty with pay and made the same consequential directions as had been made on 15 December 2009.

20    This led to a further dispute notification to FWA resulting in a recommendation by Vice-President Watson on 16 November 2010. The NTEU lodged an appeal against his decision but this was dismissed on 21 February 2011. It seems that throughout the period from June 2010 to August 2011, there was considerable correspondence between the NTEU and UniSA in relation to the referral to a Dispute Committee, the provision of particulars of UniSA’s allegations, the composition of a Dispute Committee and compliance by UniSA with the provisions of the Collective Agreement.

21    A Dispute Committee convened on 29 and 30 August 2011. There was disagreement between Dr Tiver and the NTEU, on the one hand, and UniSA, on the other, about the function of the Committee and the way in which it was to proceed. The Dispute Committee delivered a statement on 12 October 2011 to resolve these matters and conducted a substantive hearing on 24 and 25 October 2011. It considered a volume of documentary material provided by Dr Tiver and interviewed the four persons proposed by her as well as Professor James. However, the Dispute Committee did not interview four further persons because, as Dr Tiver alleges, UniSA did not make them available for interview. Dr Tiver also alleges that UniSA did not make Ms Warhurst and Ms Blenkiron “available” for interview by the Dispute Committee or for questioning by her or the NTEU. The ASC raises other complaints of shortcomings in the proceedings of the Dispute Committee and includes an allegation (at [84.13]) that UniSA did not engage in the dispute committee process in a bona fide manner.

22    The Dispute Committee provided its final report on 15 November 2011. It found that three of the 12 examples of conduct alleged against Dr Tiver were substantiated.

23    Subsequently, on 1 December 2011, UniSA’s Vice-Chancellor, Professor Hoj, wrote to Dr Tiver noting the three allegations which had been substantiated and continued:

I consider following careful consideration that your actions and behaviours are such that they amount to serious misconduct.

I have given consideration to whether disciplinary action is appropriate and if so the appropriate form of such action. It is my view that your actions and behaviours are of such a serious nature that they have irrevocably damaged the ability for your ongoing employment with the University. As a consequence I advise that your employment with the University is terminated effective immediately upon receipt of this letter (1 December 2011).

24    Dr Tiver contends that this letter was a repudiation of her employment contract and that, by letter from her solicitor dated 7 December 2011, she accepted the repudiation with the effect that her employment contract then came to an end.

25    This is summary of some 77 paragraphs of the Statement of Claim pleaded in narrative form. It is necessarily brief and somewhat generalised, but it is sufficient to provide the background to the issues which arise for determination presently.

26    The ASC then continues in [90] with an allegation that, “in the circumstances set out above”, UniSA contravened the Collective Agreement and the Enterprise Agreement in 10 separate ways. It alleges in [91] that, “in the circumstances set out above”, UniSA breached Dr Tiver’s employment contract by conduct of seven different kinds, but each of those kinds contains allegations of further breaches.

27    By way of relief, Dr Tiver seeks, in addition to declarations of the contraventions, an award of damages or compensation and the imposition of pecuniary penalties on UniSA pursuant to s 546 of the Fair Work Act 2009 (Cth) (the FW Act).

Strike out principles

28    The principles relating to applications to strike out a pleading on the basis that it does not disclose a reasonable cause of action or because the pleading is evasive, ambiguous and likely to cause prejudice, embarrassment and delay were not in dispute at the hearing and it is not necessary to repeat them in these reasons. It is sufficient to note that the power to strike out a pleading should be exercised with caution. In particular, the power to strike out a pleading on the ground that it fails to disclose a reasonable cause of action should be exercised only in the obvious case.

29    The principal purpose of pleadings should be kept in mind: namely, defining the issues with sufficient clarity so that the defendant understands, and has the opportunity to meet, the case against it: Dare v Pulham (1982) 148 CLR 658 at 664.

30    As a preliminary observation, I observe that the style of pleading adopted by Dr Tiver in the ASC can give rise to difficulties. As already seen, the ASC comprises a long pleading of narrative facts followed by two paragraphs alleging contraventions of the industrial instruments and breaches of the contract of employment prefaced by the words “in the circumstances set out above”. In relation to the difficulties which a pleading of this kind may cause, I venture to repeat what I said in Holcon Australia Pty Ltd v Corporation of the Town of Walkerville [2007] SASC 437 at [31]:

[31]    … The use of expressions such as “by reason of the matters …” is a well-recognised technique of linking certain pleaded matters to an alleged conclusion. The technique is often used when the pleader wishes to assert a particular legal characterisation or consequence of matters pleaded earlier in the pleading. However, the technique does have its limitations. It works best when the matters incorporated by reference are relatively confined, and less well when a large number of matters are incorporated. In the latter situation it can be productive of uncertainty, ie, as to the precise matters which are said to have the consequence for which the pleader contends. Further, when a large number of matters are incorporated by reference, it will often be seen that the plea amounts to a plea of evidence or of argument. In the days when the pleading rules required that a defence plead specifically to every allegation in a statement of claim, use of the technique often created difficulties and embarrassment for the defendant. Pleaders making use of the technique must be careful to ensure that any intermediate steps amounting themselves to material facts between the primary facts and the conclusion said to arise by reason of those facts are pleaded.

31    Another problem with this form of pleading is that it can readily lead to a pleading of evidence and not just material facts, as it is required by rr 16.02 and 16.03 of the FCR. Many of these disadvantages are evident in the ASC.

Paragraphs 84.7, 84.10, 84.12 and 90.8.2

32    UniSA contended that these paragraphs in the ASC raised allegations about the conduct of the Dispute Committee for which it was not responsible and, accordingly, raised no cause of action against it. It is convenient to commence by reference to [90.8] which alleges:

90.8    During the period in or about July to November 2011 the University contravened clauses 44.3 and 46.5(h) of the Collective Agreement or in the alternative clauses 49.3 and 51.5 of the Enterprise Agreement when:

90.8.1    It failed to engage on a bona fide basis in the dispute committee proceedings.

90.8.2    It failed to ensure or in the alternative facilitate the dispute committee proceedings being convened and conducted in a manner that complied with the requirements of the Collective Agreement or in the alternative the Enterprise Agreement and further [or] in the alternative in a manner consistent with procedural fairness and natural justice.

As can be seen, the plea is of a contravention of cll 44.3 and 46.5(h) of the Collective Agreement. Those clauses provide:

44.3    Disciplinary action may only be taken by the Vice-Chancellor and in accordance with the provisions of this Agreement.

46.5(h)    A Dispute Committee … shall act in such a way as to ensure that fairness, natural justice and due process are observed and practised. This shall include, but not be limited to, providing the opportunity for the staff member to be heard, to be given adequate opportunity to answer findings or allegations, to be represented in proceedings of the Committee, to present and challenge evidence, and to make submissions. Proceedings shall be conducted in camera unless otherwise agreed between the staff member and the University. The Committee shall keep a tape record of the proceedings, but not its own deliberations, which shall be available on the request to either the University or staff member. The Committee may interview any person it thinks fit, in the presence of the staff member and advocate, in order to establish the merits of the case or facts of the matter under dispute.

33    UniSA’s first submission was that, at least on its express terms and in particular its opening sentence, cl 46.5(h) imposes obligations on a Dispute Committee, but not on the University itself. UniSA, like the staff member in respect of whom disciplinary action is contemplated, is a participant in the proceedings before the Committee. It does not control the activities of the Committee or the manner of conduct of its proceedings. Other provisions in the Collective Agreement relating to the establishment of Dispute Committees, which it is unnecessary to quote presently, indicate that they are to operate with some degree of independence of UniSA. I accept this submission.

34    Further, the ASC does not contain any allegation, let alone a particularised allegation, that UniSA was subject to the obligation said by [90.8.2] to have been breached.

35    There are also difficulties with the claim in [90.8.2] of a contravention of cl 44.3. As noted, that clause provides that disciplinary action may be taken only by the Vice-Chancellor and only in accordance with the provisions of the Collective Agreement. Paragraph 90.8.2 does not purport to particularise any conduct by UniSA in contravention of that clause. It cannot be referring to the Vice-Chancellor’s purported termination of Dr Tiver’s employment because that did not occur until 1 December 2011, after the period to which [90.8] relates. Nor can it be referring to the suspension of Dr Tiver in June 2010 because that occurred well before the period to which [90.8] relates.

36    Accordingly, I am satisfied that UniSA has made good its complaint that [90.8.2] fails to disclose a reasonable cause of action.

37    Similar reasoning indicates that [84.7], [84.10] and [84.12] of the ASC do not give rise to a reasonable cause of action. Those paragraphs provide:

84.7    At the conclusion of the hearings and interviews, the dispute committee indicated to the University that there remained several matters on which the University might wish to present evidence, notwithstanding that the NTEU on behalf of the Applicant objected, the University was permitted to submit further evidence and submissions, with the Applicant only able to respond by written comment and submission in reply.

    …

84.10    The applicant and the NTEU were not permitted to directly ask questions of any of the people interviewed by the dispute committee.

    …

84.12    The dispute committee failed to ensure that fairness, natural justice and due process were observed and practised in the conduct of the dispute committee proceedings.

Both the content of these subparagraphs and the heading to [84] indicate that each of these allegations is made “with respect to conduct of the Dispute Committee”. The ASC does not contain any plea that this conduct of the Dispute Committee is to be attributed to UniSA, or that UniSA is in some way responsible for the impugned conduct of the Committee. Nor is there any other plea of intermediate facts which may make these pleas part of the plea of a cause of action against UniSA.

38    Accordingly, I uphold UniSA’s application with respect to [84.7], [84.10], [84.12] and [90.8.2].

39    UniSA also sought the striking out of the whole of [90.8] on the ground that it is evasive, ambiguous and likely to cause prejudice, embarrassment and delay. The only remaining allegation is that contained in [90.8.1]. Insofar as that allegation rests on cl 46.5(h) of the Collective Agreement, it too should be struck out because that clause, at least in its terms, imposed obligations on Dispute Committees and not on the University.

40    Further, the ASC does not contain an allegation that cl 46.5(h) gave rise to an obligation on UniSA. Further still, the unparticularised nature of the generalised allegation in [90.8.1] is likely to cause prejudice, embarrassment and delay. The plea does not particularise what action UniSA was obliged to take and did not take, nor the particular requirements of the Collective Agreement or Enterprise Agreement which were not observed, nor the basis on which UniSA was obliged to ensure procedural fairness, nor the respects in which it failed to do so. Neither UniSA nor the Court should have to speculate as to which (if any) of the matters pleaded in the long narrative as having occurred between July and November 20011 are relied upon for these allegations.

41    Accordingly, I uphold UniSA’s complaint with respect to the whole of [90.8] and it will be struck out.

42    I note that [84.13] pleads:

84    With respect to the conduct of the Dispute Committee the applicant says:

    …

84.13    The University did not engage in the Dispute Committee process in a bona fide manner.

This plea too is unparticularised and suffers from the same defect as does [90.8.1]. However, UniSA did not seek the striking out of this paragraph. Despite that circumstance, I consider that this plea too should be reviewed in the light of the striking out of [90.8.1] and I will hear from the parties further on that issue.

Paragraph 84.9

43    Paragraph [84.9] of the ASC pleads that, with respect to the conduct of the Dispute Committee, Ms Warhurst “was not made available by the University to be interviewed by the Dispute Committee or questioned by the applicant or the NTEU”.

44    UniSA seeks the striking out of this paragraph on the ground that it fails to disclose a reasonable cause of action.

45    On one view, it could be said that this complaint is misconceived as [84.9] does not purport to plead a cause of action and is instead simply a pleading of one fact. However, UniSA’s submission gains force from a number of circumstances: the pleading in [84.9] is not linked, at least in express terms, to any other plea in the ASC; there is no plea that UniSA had the power to make Ms Warhurst (who was not its employee) available, or that it was required to make Ms Warhurst available, or even that UniSA was requested to make Ms Warhurst available; and the plea, being expressed in passive terms, does not identify any particular conduct of UniSA.

46    Counsel for Dr Tiver submitted that [84.9] and other pleas were material to the claims made by Dr Tiver in [90.8], [90.9], [91.2] and [91.7]. However, the shortcomings just identified indicate that [84.9] cannot reasonably be regarded as having the claimed effect. Accordingly it can be concluded that the plea does not give rise to, or support, a cause of action.

47    For these reasons I consider that UniSA’s application with respect to [84.9] should be upheld. I will strike out this plea.

Paragraph 90.1

48    UniSA sought the striking out of ASC [90.1] which, with the preamble to [90], pleads as follows:

90    The applicant says that in the circumstances set out above the University has engaged in the following contraventions of the Collective Agreement and Enterprise Agreement:

90.1    On 3 July 2009 the University contravened clause 44.3 and 46.5 of the Collective Agreement when it refused to withdraw the letter of 17 June 2009 that had purportedly been sent to the applicant pursuant to clause [46.5(b)(i)] but which did not comply with that clause.

The word “withdraw” seems to be used in the sense of “recall” or “retract”.

49    UniSA submitted that this plea failed to disclose a cause of action because neither cl 44.3 nor cl 46.5 of the Collective Agreement imposed any obligation on it to it to “withdraw” the letter of 17 June 2009.

50    In defending this plea, counsel for Dr Tiver submitted that it was “a contravention of clause 44.3 and clause 46.5 to take action that purports to comply with the provisions of clause 46.5 [which does] not comply with that clause” and that the present plea related to that claimed contravention. However, this response does not meet UniSA’s critique of [90.1].

51    UniSA’s submission should be upheld. It is plain that cll 44.3 and 46.5 did not impose any obligation on UniSA of the kind which it is said to have contravened.

Paragraph 90.2

52    The pleading of [90.2], with its preamble, is as follows:

90    The applicant says that in the circumstances set out above the University has engaged in the following contraventions of the Collective Agreement and Enterprise Agreement:

90.2    During the period in or about August to November 2009 the University contravened clause 43.10 of the Collective Agreement when it took steps seeking to convene a dispute committee on the basis of the purported notice by letter of 17 June 2009 at a time when there remained an active dispute that was yet to be resolved pursuant to clause 43 of the Collective Agreement.

53    UniSA contends that this plea fails to disclose a reasonable cause of action and is evasive, ambiguous and likely to cause prejudice, embarrassment and delay. It relied principally on the terms of cl 43.10 of the Collective Agreement which provides:

43.10    Until a dispute has been resolved in accordance with sub-clauses 43.4 to 43.8, the University shall not move to change those elements of work, staffing or the organisation of work which are the subject of the dispute, if, or to the extent that, the proposed change would deny the staff member(s) concerned an appropriate remedy to the dispute, or in the case of the University and the staff member, take other action likely to exacerbate the dispute, except where, by agreement of the University and the staff member, an identifiable occupational, health, safety and welfare risk requires otherwise.

UniSA submitted that its taking of steps to convene a Dispute Committee could not reasonably constitute action in breach of cl 43.10. In particular, it submitted that the constitution of a Dispute Committee could not reasonably be understood as “action likely to exacerbate the dispute”.

54    UniSA’s position is clearly arguable but, given the caution with which the Court acts on applications of the present kind, I am not prepared to hold that Dr Tiver’s claim that a premature reference to a Dispute Committee exacerbated the dispute is untenable. Amongst other things, in the determination of this allegation, it will be necessary to construe the inter-relationship between cll 43, 44 and 46 of the Collective Agreement in the light of the whole of the Collective Agreement and, possibly, its history. An exercise of that kind is not appropriate presently.

55    UniSA also sought further particulars of the plea in [90.2]. I agree that [90.2] is not well pleaded but nevertheless decline to order further particulars. I consider that UniSA is sufficiently informed of the claim made against it by [90.2].

Paragraph 90.3

56    Paragraph [90.3] of the ASC, with the preamble, pleads as follows:

90    The applicant says that in the circumstances set out above the University has engaged in the following contraventions of the Collective Agreement and Enterprise Agreement:

90.3    On 15 December 2009 the University contravened clause 43.10 of the Collective Agreement when, at a time when there remained an active dispute that was yet to be resolved pursuant to clause 43 of the Collective Agreement it:

90.3.1    Suspended the applicant;

90.3.2    Directed the applicant not to attend the University, or to make contact with other University staff, or access University systems, and advised that email and computer access would not be permitted, that the applicant’s security cards would be re-programmed and that all other access to staff and students would withheld.

57    UniSA contend that this plea fails to disclose a reasonable cause of action and is evasive, ambiguous and likely to cause prejudice, embarrassment and dely. It pointed to cl 46.5(c) of the Collective Agreement which specifically authorises the suspension of a staff member before a Dispute Committee has considered and reported on a matter referred to it, and contended that cl 43.10 could not reasonably be understood as speaking to such a suspension. There may be some force in this submission but it is not a matter which should be resolved on an application of the present kind. The proper inter-relationship of cll 43 and 46 should be addressed at trial having regard to the whole of the Collective Agreement and, possibly, its history.

58    I decline to order further particulars of [90.3]. UniSA is adequately informed of the claim which it has to meet.

Paragraphs 90.5 and 90.6

59    Paragraph [90.5] of the ASC is in the same terms as [90.2] save only that it refers to both the letters of 17 June 2009 and 15 December 2009.

60    Paragraph [90.6] is in the same terms as [90.3] except that it pleads UniSA’s conduct on 1 June 2010.

61    UniSA impugned these paragraphs on the same grounds that it impugned [90.2] and [90.3] respectively. For the reasons given in relation to those paragraphs, I decline to order the striking out of [90.5] and [90.6] and to order further particulars of those pleas.

Paragraph 90.9

62    Paragraph [90.9] of the ASC, again following the same preamble, pleads:

90.9    On 1 December 2011 the University contravened clause 49.3 of the Enterprise Agreement, and in the alternative clause 44.3 of the Collective Agreement, when the Vice-Chancellor purported to take disciplinary action by terminating the Applicant’s employment in circumstances where clause 51 of the Enterprise Agreement and clause 46 of the Collective Agreement had not been complied with.

Clause 49.3 of the Enterprise Agreement is in the same terms as cl 44.3 of the Collective Agreement set out earlier in these reasons.

63    UniSA seeks the striking out of this plea on the basis that it is evasive, ambiguous and likely to cause prejudice, embarrassment and delay. UniSA’s complaint is that it does not know the non-compliance with cl 51 of the Enterprise Agreement and cl 46 of the Collective Agreement relied upon for this plea. For the reasons which follow, I consider that this complaint should be upheld.

64    Clause 51 of the Enterprise Agreement is long clause dealing with various aspects of disciplinary procedures. It defines “misconduct” and “serious misconduct”, identifies forms of disciplinary action, provides procedures for the taking of disciplinary action, provides for a Disciplinary Review Committee and provides for action by the Vice-Chancellor. It is capable of being breached in a number of ways. Clause 46 of the Collective Agreement is, in the respects which are presently material, identical.

65    Paragraph 90.9 does not particularise the non-compliance with cl 51 or cl 46 which is alleged. That shortcoming is not made good elsewhere in the ASC. In addition, for the reasons given earlier, the words in the preface to [90] “in the circumstances set out above” incorporate uncertainty and are likely to cause prejudice, embarrassment and delay.

66    It is possible that these deficiencies may be made good by further pleading, but in my opinion, the present [90.9] should be struck out.

Paragraph 14.4

67    Paragraph [14] of the ASC pleads as follows:

14    The University did not comply with clause 43 or the Grievance Procedures in considering and resolving the Formal Grievance.

    ….

14.4    In undertaking the Warhurst review and in preparing the report in relation to the Formal Grievance neither the University nor Warhurst followed the Grievance Procedures or complied with the procedural and general requirements or protections that the Grievance Procedures prescribe, and in particular failed to ensure any or any reasonable compliance with the specific provisions and paragraphs of the Grievance Procedures set out at paragraph 12 herein.

68    UniSA contends that this pleading is evasive, ambiguous and likely to cause prejudice, embarrassment and delay.

69    The “Grievance Procedures” to which [14.4] refers are “The Discrimination and Harassment Grievance Procedures (Staff)” of UniSA. Dr Tiver pleads in [6.3] that these procedures were incorporated into and applied as part of her individual employment contract.

70    Paragraph [14.4] refers to “the specific provisions in paragraphs of the Grievance Procedures set out at paragraph 12 herein”. However, [12] of the ASC does not “set out” provisions of the Grievance Procedures. Instead, it refers in five paragraphs to some 25 provisions in the Grievance Procedures and then concludes with the plea in [12.6] that “the applicant refers to and relies on the Grievance Procedures for [their] full meaning and effect”.

71    It is plain that [14.4] is an unsatisfactory pleading. In the first place, it is a composite pleading directed to the conduct of both UniSA and Ms Warhurst and does not differentiate between the conduct of each in the allegations which it contains. Further, [14.4] does not particularise the respects in which it is said that each of UniSA and Ms Warhurst did not follow the Grievance Procedures nor the respects in which it is said that they did not comply with the procedural and general requirements or protections prescribed in the Grievance Procedures. Nor does the pleading particularise the manner in which it is said that the University and Ms Warhurst failed to ensure any or any reasonable compliance with the specific provisions in the paragraphs of the Grievance Procedures referred to in [12].

72    Neither UniSA nor the Court should have to speculate about these matters. Contrary to the submission of counsel for Dr Tiver, it is not sufficient for there to be simply a plea of a provision in the Grievance Procedures coupled with a bare allegation of non-compliance. The particular obligation and the particular conduct by which it is said to have been breached should be pleaded.

Paragraph 16.4

73    The plea in [16.4] relates to UniSA’s response to Dr Tiver’s “Extension to Formal Grievance”. Paragraph [16] pleads:

16    The University did not comply with clause 43 of the Collective Agreement or the Grievance Procedures in considering and resolving the issues raised in the Extension to Formal Grievance.

16.4    Further and in the alternative failed to ensure any or any reasonable compliance with the provisions and paragraphs of the Grievance Procedures set out at paragraph 12 herein with respect to the Extension to Formal Grievance.

74    UniSA’s critique of this paragraph was similar to its critique of [14.4]. I consider that that critique should be upheld, for the reasons which I gave in relation to [14.4].

Paragraph 91.2

75    Paragraph [91.2] of the ASC pleads as follows:

91    The applicant says that in the circumstances set out above the University has breached the Employment Contract as follows:

91.2    The University purported to terminate the Employment Contract for serious misconduct without complying with the relevant terms of the applicable industrial instrument (and the Applicant refers to and repeats paragraphs 90.9 and 90.10 herein, in light of paragraphs 17 to 88), or further and in the alternative without affording the Applicant procedural fairness and natural justice whereby the University in relation to the purported termination of the Employment Contract for serious misconduct, failed in all the circumstances set out above herein to ensure any or any reasonable, compliance with:

91.2.1    The hearing rule by reason, with respect to the conduct on which the termination is based, of the University’s failure at any time to put to the Applicant allegations of that conduct, and that the conduct was alleged to constitute serious misconduct and that her employment could be terminated on the basis of that conduct, and further and in the alternative the failure by the University to put any allegation of serious misconduct in sufficient detail for the Applicant to understand the nature of the allegations, or the facts and evidence relied on by the University to substantiate the allegation, including the failure to provide the Applicant with the Warhurst Review Report and the Warhurst Grievance Report relied on by the University in commencing and pursuing the disciplinary action against the Applicant; and

91.2.2    The no evidence rule whereby the University commenced and thereafter pursued the disciplinary action against the Applicant (and the Applicant refers to paragraphs 17 to 88 herein), in circumstances where the University was ultimately unable or unwilling to adduce evidence to substantiate 9 out of the 12 allegations of conduct said in the letter of 1 June 2010 to have comprised the Alleged Course of Conduct; and

91.2.3    The rule against bias by reason of Blenkiron being involved in the making of, and the substance of, allegations against the Applicant, and her concurrent responsibility on behalf of the University for the exercise of the various discretions in relation to the disciplinary action commenced and pursued against the Applicant in purported compliance with the relevant terms of the applicable industrial instruments; and

91.2.4    Further and in the alternative by reason of the various discretions exercised in purported compliance with the relevant terms of the applicable industrial instruments on behalf of the University in commencing thereafter in the course of pursuing the disciplinary action against the Applicant (and the Applicant refers to paragraphs 17 to 88 herein), being exercised unreasonably; and

91.2.5    Further and in the alternative by reason of the dispute committee being conducted in a manner that failed to ensure that fairness, natural justice and due process were observed and practiced and the Applicant refers to and repeats paragraph 84 herein.

76    UniSA contends that this pleading should be struck out on the ground that it is evasive, ambiguous and likely to cause prejudice, embarrassment and delay.

77    On any reasonable view, [91.2] is a difficult pleading. It commences with a plea that UniSA purported to terminate Dr Tiver’s employment without compliance with the terms of the “applicable industrial instruments” and continues with a plea that UniSA did not afford Dr Tiver procedural fairness and natural justice. Earlier in the ASC (at [6.4]), Dr Tiver had pleaded that the “relevant industrial instruments” were incorporated into her individual contract of employment. On its face therefore, [91.2] seems to be a plea of a breach of the employment contract because the University denied Dr Tiver procedural fairness and natural justice and in some other respects failed to comply with the applicable industrial instruments.

78    Despite the seeming focus of the plea of procedural matters, it incorporates a reference to [90.10] which raises the allegation that the conduct on which UniSA relied for the termination was not serious misconduct as defined in the Collective Agreement or the Enterprise Agreement.

79    In my opinion, the pleading in [91.2] suffers from numerous defects, including:

(a)    The paragraphs in [91.2.1] to [91.2.5] which purport to be particulars do not distinguish between the two kinds of claims referred to in its preamble (denial of procedural fairness on the one hand and the other forms of non-compliance on the other).

(b)    The particular terms of the applicable industrial instruments are not identified. It may be that Dr Tiver intends to refer to those clauses which are the subject of her pleas in [90.9] and [90.10], ie, cll 44.3 and 46 of the Collective Agreement and cll 49.3 and 51 of the Enterprise Agreement. However, this is of little assistance because, as noted earlier, cl 51 of the Enterprise Agreement is a long clause dealing with several different aspects of the disciplinary procedure. Its counterpart in the Collective Agreement (cl 46) is also a long clause. Each contains multiple provisions capable of being breached in a number of ways. Paragraph [91.2] does not particularise appropriately the specific terms in respect of which there is said to have been non-compliance.

(c)    For the reasons given earlier, I consider that [90.9] should be struck out. That being so, it is not available in any event to provide particulars of the allegation in [91.2].

(d)    The clause “in the circumstances set out above” and the expression “and the Applicant refers to and repeats paragraphs 90.9 and 90.10 herein in light of paragraphs 17 to 88” incorporate uncertainty. I refer again to what I have said earlier about this kind of pleading. This uncertainty is perpetuated by the second use of the clause “in all the circumstances set out above herein” immediately before the commencement of [91.2.1] and by the phrase “in light of paragraphs 17 to 88”.

(e)    Neither [91.2] nor any other paragraph of the ASC pleads the obligations of procedural fairness and natural justice said to have been denied to Dr Tiver.

(f)    Subparagraph [91.2.1] purports to particularise the alleged denial of procedural fairness in an inclusive way, leaving open the possibility that Dr Tiver will at trial seek to advance other grounds for the allegation. An inclusive pleading in a context like the present is inappropriate.

(g)    Subparagraphs [91.2.2] and [91.2.4] continue the uncertainty by referring to the whole of the contents of paragraphs [17] to [88] as particulars.

(h)    Subparagraph [91.2.3] refers to the exercise by Ms Blenkiron of “various discretions” without identifying the exercises of power by Ms Blenkiron relied upon.

(i)    Subparagraph [91.2.4] refers to “the various discretions” having been “exercised unreasonably” without any identification of the particular discretions nor of the facts, matters or circumstances said to make the exercise of those discretions unreasonable.

(j)    Subparagraph [91.2.5] depends upon the pleading in [84]. Yet, on my ruling, several of the subparagraphs in [84] have been struck out.

80    The number and nature of these defects warrants the striking out of [91.2].

Paragraph 91.3

81    Paragraph [91.3] of the ASC pleads as follows:

91    The Applicant says that in the circumstances set out above the University has breached the Employment Contract as follows:

91.3    In breach of the Grievance Procedures the University failed to comply with the Grievance Procedures with respect to resolving the Formal Grievance of 9 October 2008, and the Extension to Formal Grievance of 12 December 2008 and the Applicant refers to and repeats paragraphs 13 to 16 herein.

82    This pleading also suffers by being subject to the preface “in the circumstances set out above”. Dr Tiver thereby purports to incorporate into the pleading of [91.3] the entire content of the ASC culminating in [89].

83    It is possible, as counsel for Dr Tiver argued, that [91.3] is to be understood as limited to an incorporation of [13] to [16] inclusive. However, this does not assist Dr Tiver. As already noted, [14.4] and [16.4] are to be struck out for want of proper particularity.

84    Further still, the subject matter of [14] and [16] includes an alleged non-compliance with cl 43 of the Collective Agreement which is not the subject of [91.3] at all.

85    Finally, I note that none of [91.3], [14] and [16] particularise the provisions in the Grievance Procedures in respect of which there is said to have been non-compliance.

86    For these reasons, I consider that [91.3] should be struck out.

Paragraph 91.7

87    Paragraph [91.7] pleads that “in all of the circumstances”, UniSA breached an implied duty of cooperation in its employment contract with Dr Tiver in that it “failed to cooperate and do all things necessary to enable the Applicant to have the benefit of the terms of the Employment Contract”.

88    In my opinion, this too is a deficient pleading. It commences with the phrase “in all of the circumstances” thereby introducing uncertainty and prejudice. This uncertainty is perpetuated by the reference in [91.7.2] to “paragraphs 17 to 88 and 90” and in [91.7.4] to “paragraphs 17 to 88 and 91.2”.

89    Secondly, the plea refers to “benefits” said to have been denied to Dr Tiver without particularising those benefits in other than a generalised way.

Summary

90    For these reasons, I consider that UniSA has made good much of its critique of the ASC. I strike out the following paragraphs of the ASC: [14.4], [16.4], [84.7], [84.9], [84.10], [84.12], [90.1], [90.8], [90.9], [91.2], [91.3] and [91.7]. I will hear from the parties further with respect to [84.13].

91    I decline to strike out [90.2], [90.3], [90.5] and [90.6] of the ASC and to order further particulars of those pleas.

92    I will also hear from the parties with respect to a re-pleading of those paragraphs in the ASC which have been struck out for want of particularity, or because they are evasive, ambiguous and likely to cause prejudice, embarrassment and delay.

Associate:

Dated:    17 October 2014