DECISION NO:629/96

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY                                                        QI 1008 of 1996

ROSLYN MARY SHAW

Applicant

THE UNIVERSITY OF QUEENSLAND

Respondent

Coram:          Judicial Registrar Linkenbagh

Place:             Sydney

Date:              24 December 1996

REASONS FOR JUDGMENT

This is an application made on 4 January 1996 pursuant to the provisions of Section 170EA of The Industrial Relations Act 1988 which, since the 25th November 1996, has been entitled The Workplace Relations Act 1996.

The Applicant completed her undergraduate degree in the University of Queensland and the history of her relationship with the University, her academic career in the University and her relationships with other officers and staff of the University goes back for several years. On 1 July 1994 she was appointed to the position of Lecturer in the Faculty of Dentistry for a five year term.  The position entitled the Applicant to a base salary of $49,570 per annum with a dental loading of $6,846 making her total remuneration $56,416 per annum.

The Applicant's employment was terminated when the University invoked the provisions of what since May 11th 1995 is known as - Clause 14 - TERMINATION OF EMPLOYMENT ON THE GROUNDS OF ILL HEALTH - of the Universities and Post Compulsory Academic Conditions Award 1995 which is a Federal Award.  The relevant parts of Clause 14 read:-

(a)       The Chief Executive Officer may require, in writing, any staff member whose capacity to perform the duties of his or her office is in doubt to undergo a medical examination by a medical practitioner chosen by the institution at the expense of the institution.

(b)       The Chief Executive Officer shall provide a staff member with written notice of not less than 2 months that a medical examination is required.  Where the staff member elects to apply to the staff member's superannuation fund, prior to the expiry of the period of notice, for ill-health retirement or temporary disability benefit pursuant to the rules of the superannuation fund, the requirement for a medical examination under subclause (a) hereof shall lapse forthwith and no further action shall, subject to subclause (c) hereof, be taken by the Chief Executive Officer under this clause.

(d)       A copy of the medical report made by the medical practitioner pursuant to subclause (a) hereof shall be made available to the Chief Executive Officer and to the staff member.

(e)       If the medical examination reveals that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within a reasonable period, being not less than 12 months, the Chief Executive Officer may, subject to subclause (f) hereof, terminate the employment of the staff member in accordance with the notice required by the staff member's contract of employment or where no notice is specified a period of 6 months.  Prior to taking action to terminate the employment of a staff member, the Chief Executive Officer may offer the staff member the opportunity to submit a resignation and, if such a resignation is offered, shall accept it forthwith and not proceed with action to terminate employment.

(f)        If within 14 days of the report being made available, if the staff member or a person acting on their behalf so requests, the Chief Executive Officer shall not terminate the employment of the staff member in accordance with subclause (e) hereof unless and until the findings of the report are confirmed by a panel consisting of three medical practitioners, one of whom shall be appointed by the institution, one by the staff member or by a person acting on his or her behalf, and one by the President of the State or Territory Branch of the Australian Medical Association.  The panel shall not include the practitioner who made the initial report.

(i)        A Chief Executive Officer may construe a failure by a staff member to undergo a medical examination in accordance with these procedures within 3 months of a written notification to do so as prima facie evidence that such a medical examination would have found that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within 12 months, and may act accordingly; provided that such a refusal by a staff member in these circumstances shall not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report.

On 25 August 1995 the Vice Chancellor, Professor Wilson notified the Applicant that he required her to undergo a medical examination pursuant to the provisions of Clause 14(a). The Applicant did not undergo such an examination.  On 12 December 1995 the University offered the Applicant the opportunity to resign pursuant to Clause 14(e).  She did not do so.  On the 20th December 1995 Professor Wilson notified the Applicant that her failure to undergo the medical examination within three months of the request made on 25th August 1995 was construed by him as prima facie evidence that the medical examination would have found that the Applicant was unable to perform her duties and unlikely to be able to resume them within twelve months.  Pursuant to the provisions of Sub-Clause 14(i) Professor Wilson acted to terminate the Applicant's employment.  She was paid six months salary.  That is the case for the Respondent.

The Applicant's case is that she was denied procedural fairness and that there was no valid reason for the termination of her employment because the validity of the University's determination pursuant to Clause 14(i) was tainted by the failure of the University to take into account the Applicant's work history and performance of her professional duties, and the conduct of other persons in the workplace towards her over the years.  She also argued that the action of the University was unreasonable in that it was the culmination of a plan by senior officers of the University to remove her from the academic staff of the University.  The Applicant's case was  affected by the decision of the High Court of Australia in the State of Victoria v The Commonwealth (1996) 138 ALR 129 which declared invalid the provisions of Section 170DE(2) of The Industrial Relations Act 1988.  Factors which the Applicant sought to rely upon would have had greater relevance if the provisions of Section 170DE(2) had been available to the Applicant at the conclusion of the hearing, as they had been at the commencement of the hearing.  The decision of the High Court forces evidence which had clear relevance to the issue of whether or not the termination, albeit for a valid reason, was otherwise harsh unjust or unreasonable into the restricted zone of relevance in the context of the validity of the reason for the termination of employment.

Evidence was taken over seven hearing days.  The evidence for the Respondent was presented first.  At the conclusion of that evidence during the morning of the fifth day of the hearing the Applicant left the Court and did not return to continue with the hearing.  The proceedings were adjourned, part heard and at a subsequent directions hearing the Applicant confirmed that she wished to proceed with her application.  The final two hearing dates were then set and the hearing concluded on those days.  The Applicant's action in interrupting the hearing as she did will be relevant in the event of any application for costs pursuant to Section 170EHA of the Act.

The Applicant before 1994 had worked for the University on various short term contacts. In 1992 she applied for the position which she held at the time of termination of her employment in December 1995.  She was unsuccessful in that application and a great deal of the evidence was directed to the history of her ultimate appointment to the position.  The University appointed Miss Christine Wallace to the position and delayed the date on which Miss Wallace was to take up the position until 1st January 1994.  In May of 1994 Miss Wallace informed the University that she did not wish to take up the position.  The University then decided to offer the position to the Applicant.  The Applicant had challenged the selection of Miss Wallace for the position in proceedings before the Queensland Industrial Relations Commission and in those proceedings the Commissioner had made a very strong recommendation that the University appoint the Applicant to a tenured position when it was possible to do so.  The appointment which the Applicant was offered and accepted was a tenable position for five years commencing on 1 July 1994 and the policies and practices of the University provided the possibility for that fixed term appointment to become an indefinite, tenured, appointment, in time. 

The evidence in chief of the witnesses, who numbered 14 for the Respondent and 4 for the Applicant was given primarily on Affidavit.  The Applicant required the attendance of most of the witnesses for the respondent for cross examination and those witnesses included Professor Wilson who at the time of the hearing had retired from his position as Vice Chancellor of the University and was living in retirement in France..  The Applicant's evidence of events varied to a significant degree on numerous occasions from the evidence of witnesses for the Respondent.  Given that all the witnesses for the Respondent are or have been officers or members of staff, both academic and administrative, of the University of Queensland, and given that their credit and integrity have been impugned by the matters put to them in cross examination and in evidence on behalf of the Applicant,  it is incumbent upon the Court to make findings as to the credit of the witnesses. 

Roger Whittaker Byrom

Mr Byrom is the University's Legal Officer.  He impressed the Court as a witness who credibility is unimpeachable.  He swore a detailed Affidavit setting out the history of his knowledge of the relationship between Dr Shaw and the University and he was subjected to extensive cross examination.  He described that relationship as causing "increasing concern about how to keep the Dental School moving in the face of an intractable problem".  He honestly described the relationship between Dr Shaw and Dr Spratley as "trenchant disagreement" and also described Dr Shaw's relationship with some others in the workplace in similar terms.  He did not attribute any blame to any person in respect of such disagreements.  His recollection of events was clear and supported in many instances by file notes and the content of his contemporaneous letters.  In his oral evidence he indicated that in his dealings with the Applicant he made allowances at times for her being angry or distressed and his evidence overall indicated that his attitude towards the Applicant at all times was that of a person wishing to be fair on behalf of their common employer but at the same time being concerned to assist the University in resolving what Mr Byrom perceived as a difficult situation. 

Denis Feeney

Mr Feeney is the Director of Personnel Services in the University and he swore a very detailed Affidavit to which is annexed a substantial body of documents covering the history of Dr Shaw's employment in the University.  Mr Feeney equally was a witness of integrity who impressed the Court as a man who in dealing with the Applicant and the difficulties which were perceived to arise from her conduct acted fairly and reasonably.  His recollection of events is very clear and he is undoubtedly assisted in his recollection by the comprehensive file notes and letters which were written from time to time.  Mr Feeney's demeanour in the witness box reflected the impression, which is apparent from reading his Affidavit, that he has acted patiently with the Applicant and extended Courtesy in his dealings with the issues which have involved her.  Mr Feeney's evidence was that he has actually met Dr Shaw face to face on only one occasion, at a meeting on the 8th September 1994.

Gregory John Seymour

Professor Seymour is the Dean of the Faculty of Dentistry and he worked with the Applicant at the School of Dentistry.  He gave his evidence about the Applicant in a fair and rational manner notwithstanding that he is of the opinion that if the Applicant were to return to her position he would, because of the stress suffered by him in dealing with the Applicant, seriously consider his position at the University and may relinquish his position as Dean.  Professor Seymour described the effect of the Applicant's conduct on him as "very very debilitating".  His evidence was to the effect that he was optimistic that when the Applicant took up her current position on 1st July 1994 she would put the past behind her and take up the opportunity then available to her to develop her potential for teaching and research and to enhance her academic development generally.  Given Professor Seymour's description of the adverse personal effects which the Applicant's conduct had had on him his evidence was given in a informative and balanced manner.  Professor Seymour was able to divorce his opinion of the Applicant in her academic role from his opinion in relation to her personal behaviour in the workplace.  There is nothing in Professor Seymour's evidence which raises any doubts as to his credit or integrity. 

Brian Graham Wilson

Professor Wilson is the retired Vice Chancellor of the University and it was he who made the decision to terminate the employment of the Applicant.  In his capacity as Vice Chancellor he acted on the advice of other University personnel.  He had two personal interviews with the Applicant, one on the 30th June 1994, the day before she commenced her employment, and the other on 1st June 1995.  It was his view, formed at the 1995 interview with the Applicant, that she was not willing to accept that her own conduct could have been a contributing factor to the problems in the Department of Dentistry which had been reported  to him.

Professor Wilson is a witness whose credit is beyond question.  He was cross examined about his view as to the inclusion of any behavioural difficulties with a staff member in reports and recommendations prepared for various purposes within the University about that staff member.  His evidence differed from that of Professor Seymour, particularly in the area of the inclusion of such matters in Staff Appraisal Reports.  He admitted that at the time he made the decision to terminate the Applicant's employment he was not aware of some of the matters of which Professor Seymour was aware, such as the fact that Professor Seymour had recommended the Applicant for promotion to the position of Senior Lecturer.  He said that he had not met Dr.Raphael at the time when she prepared a report about the Applicant at his request but that evidence is inconsistent with the evidence of Professor Adkins, who said that the Vice Chancellor was present at a meeting with Dr.Raphael at which the report was discussed.  The Court does not doubt that Professor Wilson gave his evidence honestly to the best of his recollection and he did not shy away from giving responses in cross examination which indicated inconsistencies between his own views and those of Professor Seymour, particularly in relation to their interpretation of the concept of service to the University.  Professor Wilson was charged with a difficult duty in exercising the discretion granted to him by clause 16(i) of the Award.  He was pressed in cross examination to tell the Court the factors which exercised his mind in the exercise of that discretion.  His response was that he was taken aback by the action of the Applicant in failing to keep the appointment with Dr.Nothling, after she had indicated that she would see Dr.Nothling. He wrote to the Applicant following her failure to keep the appointment.  The Applicant failed to respond to that letter.  Professor Wilson said that he was then in the position that if he did not take action to terminate the employment the University could hardly resume the process and that therefore the attempt to alleviate the distress existing in the Department of Dentistry would fail.  He was of the view that he had "nowhere else to go" and he was mindful that there was no evidence, in his view, that the Applicant intended to "reverse her tactics" and that therefore it was best for both the University and the Applicant to separate.  There was nothing in the evidence of Professor Wilson or in his manner or demeanour which caused the Court to have any doubt as to the propriety of his motivation in making the decision which he made on the 20th December 1995.  There was in particular nothing in the evidence to indicate that Professor Wilson was improperly tainted by the influence of others or was acting in the execution of a plan the ultimate object of which was to terminate the employment of the Applicant without good reason.

Ken Francis Adkins

Professor Adkins .is the Pro-Vice Chancellor of the University responsible for its Health Sciences areas and he was formerly the Dean of the Department of Dentistry.  He told the Court that he had had no personal dealings with Dr Shaw since 1991.  Counsel for the Applicant in cross examination of Dr.Adkins asked questions relating to what has been referred to as the "Hawkins Report" which is pages 10-17 of Annexure F to the Affidavit of Mr Feeney.  Counsel for the Applicant indicated that the relevance of those questions was to challenge the credibility of Professor Adkins.  Counsel was not successful in that exercise and it is the finding of this Court that Professor Adkins was a witness of truth and unimpeachable credit.

Martyn Harry Spratley

Dr Spratley is a Dental Practitioner and a former Lecturer in the Department of Dentistry. There is no doubt that Dr Spratley's evidence was given in an honest manner although his memory for detail is far from precise.  Prior to 1st July 1994 Dr Spratley's relationship with the Applicant during her short term appointments with the University in the Department of Dentistry had deteriorated markedly and Dr Spratley was of the view at that date that he had no desire to communicate at all with the Applicant.  He agreed readily that there was a failure on his part to offer co-operation with the Applicant and he made no effort to hide or play down his opinion that the relationship between himself and the applicant was irreconcilable.  His evidence was that because of the Applicant's return to the workplace in July of 1994 his health and the working environment deteriorated to the point where in September of 1994 he agreed to take a voluntary redundancy from the University and he left the University at the end of February 1995.  He asserted that his performance of his professional duties did not deteriorate.  That evidence is in contrast to the evidence of Professor Seymour and is a subjective assessment.  There is no doubt that, for whatever reasons, Dr Spratley found it impossible to work with the Applicant and that after the 1st July 1994 he made no effort to improve the relationship.  He gave evidence that soon after the 1st July 1994 when he met the Applicant in a corridor she treated him with derision and it may well be that the Applicant's attitude was a factor which contributed to the poor relationship between them just as much as Dr Spratley's perceptions of the Applicant, which were based on his past experience with her, influenced his attitude.

The Applicant gave evidence of an incident involving Dr Spratley on 20 June 1995.  Her reporting of that incident and the consequences which flowed from that were major factors in the focussing of attention on the Applicant in July of 1995, the consequence of which was the Vice Chancellor's decision to request that she undergo a medical examination by a psychiatrist.  The evidence of Dr Spratley and the Applicant is entirely opposed in relation to this incident.  Dr Spratley said that whilst visiting a colleague in the dental school on that day he passed Dr Shaw in a sloping corridor which is approximately 3 metres in width.  His evidence was that there was no physical contact between himself and Dr Shaw, that they were at least 1 metre apart when they passed each other and that neither said anything to the other and there was no eye contact.  Dr Shaw’s evidence was that Dr Spratley shadowed and obstructed her from passing on a stairway and that she backed down the stairs and slipped over, hurting her ankle. The applicant reported the incident to the Dean who contacted Dr Spratley about it.

Dr Spratley was open in giving his evidence in relation to the manner in which he treated the Applicant in the work place.  He agreed in cross examination that he displayed his antagonism openly and said that his antagonism towards the Applicant was well known and he did not hide it.  He was of the view that the Applicant came to the Department on the 1st July 1994 by default, that he did not agree with her appointment and that she was not stable and was suffering from a personality disorder.  He based his treatment of the Applicant after the 1st July 1994 on his perceptions of her and reactions to her conduct in the period prior to that date and he said in his evidence that he was so affected by the past that he had no optimism for the future.  He was of the view that the Applicant's presence in the Department after the 1st July 1994 had been forced on the Department by the University.  Against that, he also gave evidence that from her return to the workplace on the 1st July 1994, the Applicant subjected him to laughing and sneering whenever he passed her in a corridor and that her conduct towards him did not give him any reason to change his preconceptions of her.

The interaction between the applicant and Dr Spratley had a debilitating effect on Dr Spratley.  He was of the view as far back as 1990 that the applicant’s behaviour was peculiar obstructionist and difficult and he had observed her in the workplace behaving irrationally, and screaming and shouting.  He formed the view that there was no point in cooperating with the applicant because she had gone beyond the point of reasonable behaviour.

The Court finds that Dr Spratley's view of the Applicant was a particularly negative one at the 1st July 1994 and that he did nothing to improve the relationship between himself and the Applicant or to reform his perceptions of her.  His opinion of her was so negative that he did not even agree in evidence that she was a good academic.  That view of his is contrary to the opinion given by other witnesses as to the Applicant's abilities in a formal academic sense and her teaching abilities.  Dr Spratley was so affected by his perceptions of the Applicant's past conduct that he saw her as having "destroyed" the Department, Associate Professor L’Estrange, Professor Stevens and himself and with that perception he carried adverse feelings in relation to the Applicant which he has not yet overcome.

If the relationship between the applicant and Dr Spratley were the only evidence of the difficulties the applicant experienced in interpersonal relationships in the workplace the Court could not form a reliable conclusion as to the cause.  The Court’s findings as to the attitude of Dr Spratley must be balanced against the Applicant's own conduct and other factors, including the absence of any evidence of efforts on the part of the applicant to heal the breach, and Dr Spratley's evidence that he had never refused to work with anyone else in the workplace at the University nor had any others of his fellow workers ever affected him as the Applicant had done.

Martyn Nothling

Dr Nothling is the psychiatrist with whom the University made arrangements for the psychiatric examination pursuant to the terms of the Award.  His evidence confirms that had Dr Nothling proceeded with the examination he would have considered it appropriate to be provided with all relevant written material from both sides of what he describes as “the litigation”.  That evidence is relevant because of the assertion in the applicant’s case that the material provided to Dr Nothling by the University was selective and the suggestions from the applicant that Dr Nothling’s assessment of her would lack objectivity.

The cross examination of Dr Nothling added nothing to the proceedings and confirmed that had the Applicant attended for the examination with him she would have had the opportunity to present to him all the material which she desired to have considered by him in the preparation of his report. 

Glenys Drew

Mrs Drew is the employee of the University who is responsible for administrative support to the Committee which deals with Promotions and Tenure.  She had contact with the Applicant in the course of the Applicant’s applications for Promotion to the positions of Senior Lecturer and Reader, and her application for Tenure.  Mrs Drew was subjected to extensive cross examination, largely to the effect that her versions of conversations which she had with the Applicant in her capacity at the University were inaccurate or untrue.  Mrs Drew impressed the Court as a very sound witness who at all times has acted within the scope of her duties at the University and at all times taken into account the interests of the University and the Applicant in a fair manner.

Mrs Drew's descriptions of her interchanges with the Applicant were restrained to say the least and it was only in response to questions from the Court that Mrs Drew was able to restate in detail some of her past conversations with the  Applicant. Mrs Drew's evidence was that she did not believe that it was in the interests of the Applicant for her to make detailed file notes of words said by the Applicant which were critical of others or not in keeping with the standards which one might expect of a person of the Applicant's standing within the University.  Therefore the fact that Mrs Drew did not keep detailed file notes cannot be interpreted in any manner adverse to the credit of Mrs Drew.

The evidence which Mrs Drew gave when pressed as to the detail of conversations which the Applicant had had with her indicate conduct on the part of the Applicant which was inappropriate and unacceptable in the circumstances.  An example of the restrained manner in which Mrs Drew gave her evidence and interpreted comments by the Applicant which she found to be inappropriate was her description of the Applicant as "not given to putting things in the most sensitive manner".  The Court finds that it was not appropriate for the Applicant to speak to Mrs Drew about some of the issues which she raised with her, the Applicant being a member of the academic staff and Mrs Drew being an employee engaged in the administration of committees of the University. Mrs Drew gave evidence that the Applicant referred to her as being "malicious" and that the Applicant made a number of other inappropriate remarks to her about other members of the staff of the University.  She also gave evidence that the Applicant generally treated her with a lack of the necessary degree of Courtesy and respect.  The Court accepts Mrs Drew as a witness of truth.

Edward John Delsorte

Mr Delsorte is the Finance Officer in the Department of Dentistry.  The Court’s findings in relation to the Applicant's interaction with Mrs Drew can equally apply to her interaction with Mr Delsorte.  He is a member of the staff who had little to do with the Applicant on a day to day basis but he has experienced conduct of the Applicant which is described in his Affidavit.  He was subjected to extensive cross examination which suggested that his recollection of the events concerning the Applicant was not the truth.  There was nothing in Mr Delsorte's manner and demeanour before the Court nor in his evidence which gives rise to any cause to doubt his veracity.  His evidence supports that of other witnesses for the Respondent that the Applicant lost her temper and cried on occasions in the workplace and that she exaggerated the significance of issues in the workplace such as the taking of equipment by Dr L’Estrange.

John Patrick Gage

Associate Professor Gage is an Associate Professor in the Dental School.  He was a very forthright witness who admitted that he had been critical of the Applicant in the workplace.  He identified the time at which relations between himself and the Applicant deteriorated as March of 1994, when he was obliged to withdraw an application for a Research Grant because of information received by the University that the Applicant alleged that he had plagiarised material of which she was the author.  The application for the Research Grant was an application in respect of which Associate Professor Gage had invited the Applicant to participate, and it is little wonder that in those circumstances Associate Professor Gage was not inclined to continue cordial relations with the Applicant.  Further, the Court accepts Associate Professor Gage's evidence that the Applicant made threats to him that she would report a matter to the Police if he did not assist her in the writing of a report in respect of other research, in circumstances where Associate Professor Gage had discontinued his association with the research before it was completed.

Carol Jang

Miss Jang is the Personal Assistant to the Dean of the Faculty and she had contact with the Applicant in the course of her duties.  Miss Jang was cross examined to the effect that her recollections of telephone conversations which she had with the Applicant were inaccurate in material respects.  The Court finds Miss Jang to be a witness of truth who made accurate contemporaneous file notes of her interaction with the Applicant. 

Suzette Adela Tindal Porter

Dr Porter is a Lecturer in the School of Dentistry at the University.  She has had little opportunity for contact with the applicant.  She and Dr Shaw give conflicting accounts of a conversation they had in 1994.  Dr Porter was wary of the applicant because of what she had been told by some members of the staff and her impression was that the applicant’s attitude during the conversation was not conducive to co-operation in the Department.  The Court has no cause to doubt the credit of Dr Porter.

Anne Louise Symons

Dr Symons is a Senior Lecturer in the Dental School at the University.  Her evidence was that she tried to get on well with the applicant but that the applicant did not extend the same courtesy to her.  She admitted that she gets on well with Dr Spratley and said that on 16 January 1995 the applicant said to her “What do you think about your two mates getting the boot?” referring to Dr Spratley and Professor L’Estrange.  She immediately reported the incident to Professor Seymour in writing.  She was cross-examined to the effect that those words were not said but there was no evidence which causes the Court to doubt her credit.

Anthony Raymond Arklay

Dr Arklay is a Medical Practitioner and Director of the University Health Service.  Professor Wilson asked him to select  the psychiatrist to conduct the medical examination of the applicant  His affidavit details the steps taken by him.  He interviewed the applicant on 25 August 1995.  There is nothing in his evidence which suggests other than that he acted in a impartial and professional manner at all times and in particular in the selection of Dr Nothling.

The Applicant

The Applicant's evidence was given by way of a substantial Affidavit and supplemented by oral evidence in chief and she was subjected to lengthy cross examination.  It is not questioned that the Applicant is a dentist and academic of the highest level of professional ability and that she had particular expertise in her area of specialty.  Overall however the evidence indicates that the Applicant is unable to acknowledge aspects of her own behaviour which exceed the bounds of appropriate behaviour and conduct and is unable to address the overwhelming conclusion from the evidence in these proceedings that she is a person who has great difficulty in her interpersonal relationships with others in the workplace from time to time.  The evidence indicates that those times are occasions when matters personal to the Applicant are under consideration.  The incidents which occurred during her dealings with other officers and staff concerning her applications for promotion and tenure are clear examples.  Other examples are seen in her ongoing disputes with other members of the academic staff.

Donna Randell

Dr Randell is a Lecturer in Operative Dentistry at the University. Her evidence is that between 1983 and 1987 she worked closely with Dr Shaw and established a good working relationship with her, finding her easy to work with, professional in her attitude and enthusiastic in her attitude to her students.  The remainder of Dr Randell’s affidavit goes to difficulties in her own relationships with some other members of the staff.  Parts of the affidavit are not relevant to these proceedings.

William George Young

Associate Professor Young is an - Associate Professor in Department of Dentistry.  He swore an affidavit which deposes to his opinion that the applicant performs her professional duties in a manner which has caused him to have great respect for her and a good working relationship with her.  Associate Professor Young was not required for cross examination and his evidence as to the applicants performance and behaviour in the workplace is accepted.  The evidence must however be seen in the context of the evidence of the other witnesses with whom the applicant interacted in the workplace.

Fred Ian Curtis

Dr Curtis is a consultant psychiatrist who swore an affidavit as to an examination he conducted of the applicant on 6 July and 10 July 1996.  The affidavit annexes a medical-psychiatric report.  The report was not admitted into evidence, the Court being of the opinion that it was not relevant to the proceedings.

Was there a valid reason for the termination of the employment?

Section 170DE(1) imposes a requirement that there be a valid reason connected with the applicant’s capacity or conduct for the termination of the employment.  The decision of Justice Northrop in Selvachandran -v- Peteron Plastics Pty Ltd (1996) 62 IR 371 expands upon the meaning of those words and His Honour expresses the view that such a reason should be sound defensible or well founded and not capricious fanciful spiteful or prejudiced.  His Honour also indicates that in consideration of whether a reason is valid “it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them”.  Those words of Justice Northrop have been quoted with approval since the decision of the High Court declaring invalid the provisions of section 170DE(2), by Justice Lee in Nettlefold -v- Kym Smoker Pty Ltd unreported, Judgment Number 469/96.

In this case the employment contract is complemented by the provisions of the Universities and Post Compulsory Academic Conditions Award 1995.  The Award contains comprehensive provisions affecting the rights privileges duties and obligations of both the parties to the employment relationship, including clause 14 relating to the procedure for termination of employment on the grounds of ill health.  This Court finds that the University complied with the provisions of clause 14 and that the applicant failed to comply with those provisions.  The provisions of clause 14 could be described as rights and privileges and duties and obligations conferred on the parties in the practical sphere of their relationship, to use the words of Justice Northrop in the Selvachandran case.  The applicant’s case suggested that, to use the words of Justice Northrop, the actions of the University were capricious, fanciful spiteful or prejudiced.  This Court does not find that the Universities conduct was tainted by any of those notions.  The evidence at the hearing was lengthy and detailed and continued over seven days.  It is not possible for the Court to canvass in its reasons every matter which was raised in the course of the evidence.  The Court does however make the following findings which are illustrative of the basis of the conclusion that the applicant’s perception of the conduct of the University was unfounded in fact, and that she was the author of her own misfortune, both in her conduct which attracted the attention of the University to the possibility that she may not have had the capacity to perform her duties, and in her failure to cooperate with the procedure under clause 14 of the Award once it had been put in train.

1.         Before 1 July 1994 the applicant in the course of her short term appointments to posts at the University had had a history of difficulties in the workplace which can generally be described as arising out of her interaction with some of the other people who worked with her and her dissatisfaction with the failure of the University to appoint her to a tenured position within the University.  Notwithstanding that history the University offered the applicant the tenable position for 5 years which she commenced on 1 July 1994.  The decision of the University to offer that employment to the applicant was based on its understanding of obligations created at the conclusion of proceedings between the applicant and the University in the Australian Industrial Relations Commission.

2.         There are within the University well established procedures and protocols in relation to the appointment of academic staff to tenured positions and the promotion of academic staff.  The applicant was not content to take her turn according to those practices and protocols and agitated in every quarter with a view to achieving tenure and promotion at the earliest possible date.  She broke with established practice in applying simultaneously for promotion to the positions of Senior Lecturer and Reader.

3.         The Vice-Chancellor sought the opinions of Dr Raphael and Dr Lawrence who practice in the area of psychiatry before making his decision to invoke the provisions of clause 14 of the Award.  There is nothing improper in the Vice-Chancellor’s seeking the opinion of the two experts to assist him to make his decision that the applicant’s capacity to perform her duties was in doubt.  It was not appropriate for the applicant to challenge the procedure adopted by the Vice-Chancellor at that stage of his decision making process.

4.         The applicant made demands on the University which were contrary to usual procedures and protocols.  The officers and staff of the University accommodated the applicant’s demands in as much as it was possible to do so.

5.         The applicant was not content with her appointment to the position of Lecturer for a fixed term.  She desired a tenured appointment within the University and she was of the opinion that her qualifications and experience qualified her for the position of Senior Lecturer and even Reader.  Shortly after taking up the Lectureship the applicant commenced making enquires and approaches to various officers of the University with a view to achieving her aims in relation to tenure and promotion. The University has given assurances that the applications for promotion will be processed if the applicant is reinstated to the employ of the University.

6.         The applicant’s manner in her contact with members of the staff caused directions to be given early in 1995 that comprehensive file notes be kept of the applicant’s conduct. An example is Mr Byrom’s evidence that he instructed his own staff to make notes of specific conversations with the applicant. 

7.         Over several years prior to 1 July 1995 there were ongoing difficulties in the relationship between the applicant on the one hand and Dr Spratley and Associate Professor L’Estrange on the other.

8.         It was the desire of Senior Officers of the University that upon the applicant’s appointment on 1 July 1994 she and those persons with whom she had had conflict in the past would put the past behind them and look to a future without the difficulties which had been apparent in the past.  The applicant was advised by Mr Byrom to be positive and that to concentrate on the past would be counter productive.  Professor Seymour told a staff meeting at the time of her appointment that he expected a good working relationship with all Departmental staff.

9.         Neither the applicant nor Dr Spratley proved capable of resolving their historical mutual disagreement.

10.       The applicant on many occasions lost her temper cried and used inappropriate language during her dealings with other members of the staff.  One example is the evidence that she said to Mr Byrom, in respect of Professor Seymour, “Seymour would screw his own Grandma if he wanted something badly enough”.  Mr Byrom was cross examined to the effect that the applicant used the word “sell” instead of “screw.  A further example is Mr Byrom’s evidence that the applicant said to her, in relation to Professor Seymour, that he was a puppet of Professor Adkins and that he was weak and under the control of Professor Adkins.

11.       Associate Professor L’Estrange and Dr Spratley entered into voluntary redundancy arrangements with the University and left the employ of the University on 1 March 1995. The relationship between himself and the applicant contributed towards the decision of Dr Spratley to leave the University.

12.       The applicant would have had a proper opportunity to provide information to Dr Nothling had she agreed complied with the request to participate in the process pursuant to clause 14 of the Award.

13.       The applicant failed to keep the appointment made by the University for her to see Dr Nothling on 31 October 1995.  The University then wrote to her reminding her of the need for her to comply with the provisions of the Award.  The applicant failed to make further arrangements to see Dr Nothling and did not respond to the University until after the University notified her of its intention to terminate her employment and offered her the opportunity to resign.

14.       At a meeting on 20 December 1995 arranged at the request of the applicants’ solicitors the applicant proposed that she should be medically examined by a doctor of her own choice.  That course of action was not appropriate at that stage of the process.

15.       There are numerous members of the staff of the University with whom the applicant has had the opportunity to interact and towards whom she has not exhibited the behaviour perceived by the witnesses in their interaction with her.

The Court’s findings overwhelmingly demonstrate that this relationship had broken down irretrievably because the applicant was imbued with the culture of complaint and a self-centred drive to pursue issues of personal grievance at all costs.  Her reaction to the request of the Vice-Chancellor is a further manifestation of conduct of which the history of the applicant’s employment in the University contains many examples.  Given the plethora of evidence of the applicant’s conduct and its effect on many of those with whom she worked at the University it cannot be said that the decision of the Vice-Chancellor to invoke the provisions of clause 14 of the Award was capricious, fanciful, spiteful or prejudiced so as to detract from the validity of the invoking of clause 14 as a reason for the termination of the applicant’s employment.  The applicant’s concern was premature and she denied herself the opportunity to set aside any doubts about her ability to perform her duties within the University.

It was suggested in the applicant’s case that her behaviour was not a factor to be considered as part of her “capacity to perform the duties of her office” within the meaning of clause 14(a).  This Court is of the view that personal behaviour in the workplace and interaction with others with whom an employee has day to day contact is very much a part of the duties of office and that is particularly so given the applicant’s status as a member of the academic community in the University.  There are numerous examples in the evidence of behaviour of the applicant which could be described as, at the least, inappropriate, and at the most, rude and insulting towards members of both the academic and support staff of the University.  Notwithstanding that there is no doubt that the applicant has the ability to perform the part of her duties which relates to her professional expertise and skills, her deficiencies in performing the part of her duties which has to do with her interaction with others are of such significance that her capacity to perform her duties generally is called into question.

Professor Seymour described the effect of the applicants contact with him as creating a difficulty on concentrating on other issues because of her constant barrage of complaints and he described her effect on him as stressful and very debilitating.  Professor Seymour’s opinion that if the applicant returned to the workplace there would be difficulty with other members of staff including dental assistants, technicians, Associate Professor Gage and Dr Symons is supported by the evidence of the applicants behaviour in the workplace which Professor Seymour further described as “far from normal”.  There is evidence, for example, that she referred to Professor Seymour as “a joke” and “a laughing stock within the Department of anatomy”.  The reports prepared in respect of the applicant’s applications for promotion do not raise issues of her behaviour and are very favourable in their expressions of opinion as to the applicant’s academic teaching and research skills.  A performance appraisal prepared February of 1995 by Professor Seymour does not bring out the problems which were perceived at that time in relation to her behaviour because the purpose of such appraisal is to be positive rather than punitive.  Professor Wilson disagreed with Professor Seymour’s opinion that behaviour was not a relevant matter in these reports.

Professor Wilson first considered the issue of the applicant’s mental health after he met her on 1 June 1995.  He sought advice from two consultant psychiatrists.  The applicant takes issue with that procedure and impugns it because in her view the material provided to the psychiatrists was inaccurate.  However it is the prerogative of the Vice-Chancellor to seek such advice as is reasonable and prudent to assist him in making decisions.  Criticism of a different kind may have been levelled at him if he had formed his decision as to the preliminary doubt about the applicant’s ability to perform her duties without the benefit of expert opinion.  Professor Wilson formed the view from his contact with the applicant that she did not consider that she contributed towards the problems which existed, that others were the cause of the problems and that the applicant was not cooperative in the efforts which the University was attempting to make with a view to resolving the problems.

The submission for the applicant that senior officers of the University conspired in early 1995 to bring about the termination of her employment is not supported by any evidence.  No motive for such a conspiracy has been demonstrated.  The submission ignores the facts that the University appointed the applicant to the position in 1994 in good faith and that Dr Spratley and Professor L’Estrange were leaving the University and it avoids the issue that the applicant should bear the responsibility for the consequences of her own conduct. The fact that various individual officers commenced to keep file notes of their experience and observations of her conduct is not evidence that such a conspiracy had been hatched.

After notice was given to the applicant on 25 August 1995 that she was required to submit to a medical examination her initial response was that she agreed to undergo the examination.  She changed her mind and set about attempting to manipulate the process by having her Solicitors letter of 26 October sent to the University.  She neither attended or cancelled an appointment with Dr Nothling for 30 October.  The University reminded her of her obligations in a letter of 8 November 1995 and in that letter allowed an extension of time for her to see Dr. Nothling.  Her failure to cooperate in the process caused Professor Wilson to form the view that if he did not take action to terminate the applicant’s employment the attempt to alleviate the distress which he perceived in the School of Dentistry would fail.  Professor Wilson expressed the view that there was no evidence that the applicant “intended to reverse her tactics” and that it was best in the interest of all concerned for there to be a separation of the applicant from the University.  He offered her the chance to resign in a letter of 12 December and her response was to seek a meeting between her solicitors and the University’s legal advisers which took place on 20 December.  The employment was then terminated.  In a letter of 21 December the applicant continued to argue the right of the University to require her to undergo a medical examination and to object to the procedure undertaken by the University.  The applicant argues that the evidence that Professor Wilson was unaware of her offer to undergo an examination by a doctor of her own choice, that she had been recommended for promotion and of the terms of her performance appraisals affects the validity of his decision to terminate the employment.  That argument misses the point that by 20 December 1995 Professor Wilson was charged with a discretionary power to terminate the employment which arose because of the applicant’s failure to take up the opportunity to rebut the presumption raised by the terms of clause 14 and there is no evidence that his exercise of the power was in any way unreasonable or improper.

Cross examination to the effect that Dr Spratley returned to the School of Dentistry after he left the employ of the University in March of 1995 for the purpose of annoying the applicant and causing her discomfort was not sustained by the evidence.

Cross examination of Dr Spratley to the effect that he said to the applicant on an occasion when he passed by her in a non public area “You’re a fucking cunt” was not in keeping with the Court’s assessment of the manner and demeanour of Dr Spratley, nor was it supported by the evidence of the applicant.  Suggestions that he referred to the applicant using the word “bitch” are also not proved.

The version of the passing of the applicant and Dr Spratley in the corridor in June of 1995 given by Dr Spratley is more believable than the applicant’s account of the encounter.  Ms Jang gave evidence that the applicant telephoned her after the encounter and amongst other things, informed her that she had broken her ankle.  The applicant denied saying those words to Ms Jang but there is nothing in the evidence to otherwise explain why Ms Jang would have manufactured her evidence of the applicant’s words.  The applicant’s ankle was not broken.  Her purpose in making the telephone call which was taken by Ms Jang was to speak to Professor Seymour.  Having informed Ms Jang that her ankle was broken and requesting assistance the applicant left the University premises before anyone could reach her to give her assistance in response to the telephone call.  Enquires of persons who may have been in the building at the time of the encounter did not disclose any witnesses to an incident of the kind described by the applicant.

Cross examination of Dr Spratley to the effect that on 5 or 6 occasions after 1 March 1995 he harassed the applicant were not supported by the evidence.

The Court determines therefore that there was a valid reason for the termination of the employment and there has been no breach of section 170 DE(1) of the Act.

Lack of Procedural Fairness

The applicant’s Counsel submitted that the University was in breach of the provisions of s170DC of the Act.  That section applies where there is a termination of employment for reasons related to the applicant’s conduct or performance.  In this case the reason for the termination of the employment did not arise from the applicant’s conduct or performance but was the self-executing effect of the failure of the applicant to co-operate in the procedure under clause 14 of the Award.  Breach of s170DC by the employer does not arise.

Claim in the accrued jurisdiction of the Court

The applicant claims damages for breach of the implied term of trust and respect in her contract of employment which is recognised in the decision of the Full Court of this Court in Burazin -v- Blacktown City Guardian Pty Limited, unreported, Judgment No. 666/96.  The contract of employment creates that obligation in respect of both parties.  The analysis of the evidence set out in theses reasons is the basis for this Court’s finding that the applicant was the author of her own fate and if there was to be a finding that either party was in breach of this term, it would be that the applicant’s performance of her obligations fell short of what was expected of her.

The elaborate Statement of Claim filed by the applicant in these proceedings is indicative of the attitude of the applicant which is apparent on the evidence before this Court, that is that the University should dance to her tune and that whatever demands the applicant make should be met.  The University is not in breach of the employment contract.  There will be judgment for the respondent on the claims particularised in the Statement of Claim for damages for breach of contract is without merit.  The Court further notes that there is no evidence before it of any loss sustained by the applicant.

The orders I make are therefore that:

1.         The application pursuant to the provisions of s170 EA of the Workplace Relations           Act 1996 is dismissed

2.         Judgment be entered for the respondent on the claims particularised in the             Statement of Claim filed on 28 June 1996

I certify that this and the preceding 27 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Associate:      Renee Cauchi

Date:               24 December 1996

Counsel for the Applicant:             Ms D Linnane

Solicitors for the Applicant:           Clayton Utz

Counsel for the Respondent:          Mr J E Murdoch

Solicitors for the Respondent:       Corrs Chambers Westgarth

Dates of hearing:                              24 25 26 July and 5 and 6 December 1996