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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

G A Stewart

and

University of Melbourne

(U No. 30073 of 1999)

VICE PRESIDENT ROSS

MELBOURNE, 20 JANUARY 2000

Alleged unlawful termination - arbitration.

DECISION

INTRODUCTION

[1] This decision deals with an application pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by Mr Stewart (the applicant) for relief in respect of the termination of his employment by the University of Melbourne (the University).

[2] Conciliation was unsuccessful and on 16 February 1999 the applicant elected, pursuant to s.170CFA(5), to proceed to arbitration to determine whether the termination of his employment was "harsh, unjust and unreasonable".

[3] The hearing of this matter first commenced on Monday, 7 June 1999 in Melbourne, and was continued on 8, 9 and 10 June; 27 and 29 July; 6 and 26 August 1999.

[4] Over 200 documents were tendered as evidence during the course of the proceedings. A complete list of Exhibits can be found at Attachment A and an expanded list of the documents contained in Exhibit University 1 can be found at Attachment B.

[5] Some eight witnesses gave evidence during the proceedings. The witnesses called on behalf of the applicant were:

[6] The witnesses called by the University were:

THE FACTS

[7] On 7 October 1964 Mr Stewart commenced employment with the University of Melbourne as a Senior Research Fellow. He was appointed to the position of Senior Lecturer in Veterinary Pharmacology9 within the Faculty of Veterinary Science on 1 July 1965.

[8] Since 1990, the Faculty of Veterinary Science has comprised two Departments - one academic department, the Department of Veterinary Science (located at Werribee and Parkville) and one non-academic, the Veterinary Clinic and Hospital (located at Werribee). The Centre for Animal Biotechnology at Parkville is also part of the Faculty.

[9] The Dean of the Faculty is Professor Ivan Caple. Professor Virginia Studdert has been the Head of the Department of Veterinary Science since 1991.

[10] Academic staff employed within the Faculty are employed as either Teaching and Research Staff or as Research Only Staff. Mr Stewart was employed as a member of the Teaching and Research Staff.

[11] From 1 July 1965 until 31 January 1999 Mr Stewart held a Level C appointment as a senior lecturer in Veterinary Pharmacology, initially in the Department of Preclinical Sciences (1965-1989) and then in the Department of Veterinary Science (1990-1999). From 1991 until the termination of his employment Professor Studdert was Mr Stewart's supervisor.

[12] The position classification standards for a Level C academic at the University require specific standards of performance in respect of teaching, research and administration. These standards are set out in the University's Personnel Policy and Procedures Manual in the following terms:10

[13] Mr Stewart made two unsuccessful applications for promotion from a Level C lecturer to Level D, in 199111 and 199212.

[14] On 26 September 1996 Mr Stewart made a WorkCover claim alleging "multiple extrasystoles and severe psychological depression" affecting his heart and central nervous system. Mr Stewart's condition was diagnosed as a "work stress induced illness" by his treating doctor, Dr Orchard.13

[15] The University rejected Mr Stewart's claim in a letter dated 23 October 1996 which said, among other things:

[16] Mr Stewart did not further contest the University's decision in relation to his WorkCover claim.15

[17] Mr Stewart was absent from work from September 1996 to March 1997 on sick leave (18 September to 29 October 1996), leave with salary (4 November - 25 November 1996) annual leave (26 November - 13 December 1996) and long service leave (14 December 1996 - 8 March 1997).16

[18] Arising out of a WorkCover conciliation conference in February 1997 the parties agreed to set up the process for discussions to effect a suitable return to work programme prior to the commencement of the academic year.17

[19] Professor Studdert gave evidence to the effect that during the period prior to March 1997 she had become concerned with a number of aspects of Mr Stewart's work performance. The general areas of concern identified included that:

[20] Professor Studdert conducted a review of Mr Stewart's performance from March to 30 June 1997. At the end of the review period Professor Studdert concluded that Mr Stewart's work performance was unsatisfactory.

[21] By letter dated 11 September 1997 Professor Studdert wrote to the Vice-Chancellor concerning her views as to Mr Stewart's unsatisfactory work performance and recommending the termination of his employment.19

[22] Mr Stewart's terms and conditions of employment are governed by the Universities and Post Compulsory Academic Conditions Award 199520 (the Award) and the University of Melbourne Enterprise Agreement 199721.

[23] Disciplinary action in respect of unsatisfactory performance is dealt with in the Award in the following terms:

[24] Mr Stewart responded to Professor Studdert's report in a letter he wrote to the Acting Vice-Chancellor on 2 October 1997.22 In these proceedings Mr Stewart gave evidence to the effect that he had no knowledge of the review and report by Professor Studdert until he received a copy of her letter to the Vice-Chancellor.23 As there were grounds to doubt that Mr Stewart had been fully aware of the significance of the process conducted by Professor Studdert, the Vice Chancellor decided to order another review of Mr Stewart's performance.24 On 22 December 1997 the Vice Chancellor responded to Mr Stewart's letter of 2 October 1997, in the following terms:

[25] Professor Studdert wrote to Mr Stewart on 26 December 1997 (the review letter).26 This letter is of central importance to the determination of the matter before the Commission because it deals with the time period and a set of criteria for the evaluation of Mr Stewart's work performance. The contents of the letter are reproduced at Attachment C.

[26] On 7 January 1998 the National Tertiary Education Union (the NTEU) wrote to the Vice-Chancellor on behalf of Mr Stewart. In the letter the NTEU expressed the view that it was "inappropriate" to refer the matter back to Professor Studdert as her initial recommendation was "highly prejudicial to the possibility of a fair and reasonable assessment". The NTEU proposed, among other things, the appointment of an alternative supervisor.27

[27] The Vice-Chancellor replied to the NTEU's letter on 13 January 1998 and, among other things, refused the request for the appointment of an alternative supervisor. In relation to that matter the letter states:

[28] At the commencement of a meeting on 14 January 1998 between Professor Studdert, Mr Stewart and others, Mr Stewart handed Professor Studdert a letter protesting her involvement in the review process.29

[29] Mr Stewart subsequently wrote to the Vice-Chancellor, on 27 January 1998, asking him to reconsider his refusal to appoint an alternative supervisor.30 In his correspondence Mr Stewart advanced six reasons why Professor Studdert would not be able to make a fair and reasonable assessment of his performance. In summary terms the reasons advanced are as follows:

[30] By letter dated 4 February 1998 the Vice-Chancellor rejected Mr Stewart's request that an alternate supervisor be nominated. The Vice-Chancellor's letter is in the following terms:

[31] In her letter to Mr Stewart dated 26 December 1997 Professor Studdert stated that she would schedule regular meetings during the review period with a final review on 31 March 1998. Three such meetings took place during the review period:

[32] At the meeting on 13 March the need for another meeting on 31 March was raised and it was agreed that it would not be required.37

[33] In January 1998 Mr Stewart was diagnosed as having ulcerative colitis.38 Mr Stewart informed Professor Studdert of his condition at the review meeting on 18 February 1998. The minutes of that meeting contain the following reference to this matter:

[34] A report concerning Mr Stewart's medical condition was provided by Dr Fraser on 25 February 1998.40 Dr Fraser's report states, among other things:

[35] On 27 February 1998 Professor Studdert wrote to Mr Stewart in the following terms:

[36] Mr Stewart replied on 4 March 1998 stating among other things:

[37] In her evidence Professor Studdert stated that in response to the advice regarding Mr Stewart's medical condition the scheduling of all but one lecture was changed to 11 am or later, the practical classes could not be changed.43

[38] Mr Stewart was absent on compassionate leave on 3 March 1998 in order to assist his daughter who had broken her leg in a riding accident.44

[39] On 9 March 1998 Mr Stewart was absent as a result of an injury sustained when he was kicked in the face by a horse on the evening of 8 March.45

[40] Mr Stewart was absent from work on a number of other occasions during the review period. The number of absences for which a satisfactory explanation was provided is contested. The documentary evidence relating to this issue is set out at documents 97, 100, 101, 102, 105, 107, 108, 110 - 118, 120, 121, 127, 130, 132, 150, 155, 166 and 197 - 199. The evidence of Mr Stewart and Professor Studdert also deals with this issue.46

[41] On 30 March 1998 Mr Stewart's treating doctor, Dr Orchard, wrote to Ms Wendy Cooper in the University's Department of Human Resources in the following terms:

[42] Professor Studdert sent two facsimile messages to Dr Orchard on 1 April 1998.48 In the first document Professor Studdert notes that Dr Orchard's letter of 30 March 1998 was "the first notification I have received of Mr Stewart's inability to carry out his full duties." In the second message Professor Studdert sought a confidential report concerning Mr Stewart's medical condition, dealing with the following issues:

[43] Professor Studdert sent a further facsimile message to Dr Orchard, on 2 April 1998, in which she asked for the medical report referred to in her earlier correspondence be provided by 6 April 1998.50

[44] Dr Orchard replied to Professor Studdert's correspondence on 2 April 1998 in which he said:

[45] On 8 April 1998 Mr Stewart submitted an application for ten days sick leave in respect of the following periods:

[46] The application was not accompanied by a medical certificate, but included the notation "Provided separately by Dr W.H. Orchard".52

[47] Professor Studdert wrote to Mr Stewart on 17 April 1998 stating, among other things, that she was not prepared to approve his sick leave application at that stage because no medical certificate had been provided relating to the claimed sick leave. In this regard Professor Studdert noted that the letters from Dr Orchard dated 30 March and 2 April 1998 were not satisfactory for that purpose.53 On 20 April 1998 Dr Orchard wrote to Professor Studdert in the following terms:

[48] Professor Studdert replied to Dr Orchard's correspondence on 22 April 1998 in which she said:

[49] The letter goes on to reject Dr Orchard's allegation that Professor Studdert had engaged in "psychological harassment".

[50] On 22 April 1998, Professor Studdert extended the review period by four weeks to 27 April 1998.56

[51] Mr Stewart was absent from work on 1, 3, 6 and 14-18 April 1998. The absence on 14-18 April was a result of having three molars removed. Mr Stewart subsequently provided a medical certificate in respect of this absence.57

[52] On 11 May 1998 Professor Studdert forwarded a report on Mr Stewart's performance during the review period to the Vice-Chancellor, Professor Gilbert. Professor Studdert's report concluded in the following terms:

[53] On 15 May 1998 Mr Stewart sent a facsimile message to Professor Gilbert in the following terms:

[54] Professor Gilbert wrote to Mr Stewart on 20 May 1998 in the following terms:

[55] On 20 May 1998 Professor Gilbert received a letter from Dr Orchard dated 19 May 1998. In his letter Dr Orchard said that Mr Stewart has been physically and psychiatrically unwell for several years and also expressed the view that he had no doubt that Mr Stewart had been subjected to "persistent, misguided psychological harassment by Professor Studdert". Dr Orchard also noted that both he and Mr Stewart's family doctor, Dr Mansie, had recommended that Mr Stewart retire from University work on medical grounds.61

[56] Professor Gilbert received Mr Stewart's response to Professor Studdert's report on 21 May 1998.62

[57] On 23 June 1998 Professor Gilbert informed Mr Stewart that he had considered Professor Studdert's report and Mr Stewart's reply and had concluded that his performance "is not at a level which could be reasonably expected of a senior lecturer, and hence I consider your performance to be unsatisfactory".63 In order to determine the extent to which ill health may have adversely affected Mr Stewart's performance Professor Gilbert sought his agreement to submit to a medical examination by a medical practitioner nominated by the University.

[58] In his evidence Mr Stewart stated that he discussed Professor Gilbert's request with Dr Orchard and decided that he was not prepared to submit to a medical examination by a medical practitioner nominated by the University. Mr Stewart's reasons for adopting such a position are set out at paragraph 56 of his statement in the following terms:

[59] Professor Gilbert wrote to Mr Stewart on 7 July 1998 and informed him that he had decided that the most appropriate course was to terminate his employment. The letter begins by referring to his correspondence of 23 June and continues in the following terms:

[60] On 8 July 1998 Dr Orchard sent a facsimile message to Professor Gilbert in the following terms:

[61] By letter dated 14 July 1998 Mr Stewart requested a review of the decision to terminate his employment, in accordance with clause 11(g) of the Award.67

[62] After consultation with the NTEU, Professor Gilbert convened an "Unsatisfactory Performance Review Committee" (the Review Committee).68 The Review Committee was chaired by Associate Professor Jenny Morgan and the other members were Professor Frances Christie and Mr Robert Evans.

[63] The procedure adopted by the Review Committee is governed by clause 13 of the Award. Clause 13 relevantly provides:

[64] The Review Committee sat on five days: 4 and 25 September, 1 and 9 October and 2 November 1998.

[65] The report of the Review Committee was forwarded to Professor Gilbert on 23 November 1998. The majority of the committee concluded in the following terms:

[66] Mr Evans did not agree with the conclusion reached by his colleagues insofar as he was of the view that the process required by the Award for disciplinary action on the grounds of unsatisfactory performance had not been followed in three respects:

[67] The Review Committee also decided that its function was limited to a determination of whether the process in clause 11 of the Award was followed. Accordingly the Committee did not review the merits of the decision to terminate Mr Stewart's employment.

[68] On 1 December 1998 Professor Gilbert forwarded a letter to Mr Stewart which stated that he saw no reason to vary his earlier decision that Mr Stewart's performance had been unsatisfactory and the appropriate disciplinary action was termination of employment.70

[69] Mr Stewart's employment with the University ceased on 31 January 1999.

[70] On 22 January 1999 Mr Stewart filed an application for relief in respect of the termination of his employment.

HARSH, UNJUST OR UNREASONABLE

[71] In determining whether a termination was "harsh, unjust or unreasonable" the Commission must have regard to the matters identified in s.170CG(3), namely:

[72] In Byrne v Australian Airlines71 the High Court considered the meaning of the expression "harsh, unjust or unreasonable" in the context of clause 11(a) of the Transport Workers (Airlines) Award 1988. That clause provided:

[73] In their joint judgment McHugh and Gummow JJ said, at 465-468:

[74] Given that the observations in the joint judgment were made in a different context they are not binding72, but I find them highly persuasive. In my view, for the purpose of s.170CG, a termination of employment may be:

[75] Before turning to deal with each of the matters identified in s.170CG(3) I intend to deal with what emerged as a central issue in these proceedings, namely the fairness of the performance review which took place in the period from January to April 1998.

The Performance Review

[76] A number of matters are relevant to the issue of whether the review was fair. The first is Professor Studdert's role in the process. As noted earlier in this decision Mr Stewart objected to the appointment of Professor Studdert as his supervisor during the review period. On 27 January 1998 Mr Stewart wrote to Professor Gilbert highlighting his concerns about Professor Studdert's involvement and asking Professor Gilbert to reconsider his initial refusal to appoint an alternative supervisor.

[77] In his letter of 27 January 1998 Mr Stewart advanced six reasons why Professor Studdert would not be able to make a fair and reasonable assessment of his performance. In substance Mr Stewart's complaint was that Professor Studdert had already reached an adverse view in respect of Mr Stewart's performance and had concluded that his employment should be terminated.

[78] In the proceedings before me counsel for the applicant, Mr Lawrence, relied on the matters set out in Mr Stewart's letter of 27 January 1998 to substantiate his contention that Professor Studdert was biased. In particular Mr Lawrence contended that the evidence has demonstrated that at the time she was asked to conduct the performance review in December 1997 Professor Studdert was of the view, and had been for a considerable period of time, that Mr Stewart's work performance was unsatisfactory. In support of his proposition counsel advanced the following points:

[79] Before dealing with the above points I propose to address the other matters referred to in Mr Stewart's correspondence of 27 January 1998.

[80] The first matter is the claim that Professor Studdert was biased because of Mr Stewart's participation in a meeting with the Vice-Chancellor on 30 April 1997 about, among other things, a merger between the Faculties of Veterinary Science and Agriculture

and Forestry. This meeting had been arranged by Dr Brandon and was also attended by Dr Ian Walker, Dr Wayne Kimpton and Professor Cahill from the Veterinary School in Parkville the Dean of the Faculty of Agriculture and Forestry, Professor Falrey, and the Deputy Vice-Chancellor, Professor Boris Schedvin.74

[81] During the course of the meeting Dr Brandon raised the possibility that the fact that they attended the meeting - in the absence of the Head of the Department and the Dean - could result in victimisation. The Vice-Chancellor agreed that none of the academics present would be victimised for the support of the merger proposal.75

[82] In his statement Professor Gilbert said:

[83] In the course of his cross examination Mr Stewart said that the principal basis for the claim in his letter to the Vice-Chancellor to the effect that Professor Studdert was lacking objectivity was that she was biased towards him because of his participation in the 30 April 1997 meeting.77 In my view this contention is not supported by the evidence. Three points may be made in this regard.

[84] First, a number of the other participants at the meeting gave evidence in these proceedings and none of them thought that they would be the subject of victimisation.78

[85] Second, there is no evidence that any of the other participants were victimised in any way by Professor Studdert or anyone else. Indeed some of them have been supported by Professor Studdert in various ways, for example, in respect of research and promotion applications. In her statement Professor Studdert said that she supported Dr Walker's application for promotion from Senior Lecturer to Reader.79 In his evidence Dr Walker said that he had "no recollection of her actually supporting" him but he made it clear that he was

not seeking to contradict Professor Studdert's recollection.80 Professor Studdert was not cross-examined in respect of her evidence on this point and I accept that she did support Dr Walker's application for promotion.

[86] Further, at paragraph 157 of her statement Professor Studdert said:

[87] Dr Kimpton's evidence was consistent with the above statement and in particular he acknowledged that Professor Studdert had supported him in his academic career.82

[88] Finally, in her statement Professor Studdert makes it clear that she was unaware of Mr Stewart's attendance at the 30 April meeting. Paragraph 101 of her statement says, among other things:

[89] Professor Studdert was not cross-examined in respect of this part of her evidence and I accept it.

[90] The fact that Professor Studdert was unaware of Mr Stewart's participation in the 30 April meeting is, in my view, the most telling point against Mr Stewart's contention that she was biased because of his involvement in that meeting. Even Mr Stewart accepted that if Professor Studdert did not know of his involvement in the meeting then she could hardly be biased on the basis of that involvement. 83

[91] I now turn to some of the other matters raised by Mr Stewart in his letter to the Vice-Chancellor.

[92] Previous lack of assistance: the two examples given by Mr Stewart are not supported by the evidence. In his letter to the Vice-Chancellor Mr Stewart contended that Professor Studdert had opposed his 1995 application for funding from the Melbourne University Equine Research Fund. During the course of his cross-examination Mr Stewart conceded that he did not know whether Professor Studdert had supported his application or not.84 Mr Stewart also relied on Professor Studdert's opposition in respect of his application for special study leave (long) in 1997. Professor Studdert deals with this issue in her statement in the following terms:

[93] I accept that Professor Studdert did not support Mr Stewart's application, but she did so because it did not meet the criteria which she was required to apply.

[94] WorkCover Claim: In his letter to the Vice-Chancellor Mr Stewart asserted that during a WorkCover conciliation conference Professor Studdert "denied absolutely" that his condition could be related to his work. In his witness statement Mr Stewart said that Professor Studdert was "dismissive" of his claim that his medical condition was caused by work induced stress and depression.86

[95] Professor Studdert deals with this issue in her statement in the following terms:

[96] Professor Studdert was not cross-examined on this issue and her evidence is supported by the documentary material.88 Further, during his cross-examination Mr Stewart accepted that his WorkCover claim had been rejected by the University on the basis of the medical reports provided to it89 and he did not contradict Professor Studdert's recollection of what she said at the conciliation conference.90

[97] I accept Professor Studdert's evidence on this point.

[98] Removal as subject co-ordinator: During a period of three months long service leave beginning in mid-December 1996 Mr Stewart was relieved of his responsibility as subject co-ordinator for his specialist subject Veterinary Pharmacology and Professor Studdert became

the subject co-ordinator. A number of changes in the direction of the course were also made during 1997. Mr Stewart's replacement as subject co-ordinator and the subsequent course changes were relied on in support of the allegation of bias on the part of Professor Studdert.

[99] Professor Studdert deals with this issue at paragraphs 135-136 of her statement:

[100] In the course of his evidence Mr Stewart accepted that the decisions to which he referred had been made by the Dean, not by Professor Studdert.92

[101] In my view the decision to replace Mr Stewart as subject co-ordinator and the subsequent changes in the direction of the relevant course do not support the contention that Professor Studdert was not an appropriate person to conduct the review.

[102] Not suitably qualified: It was contended that Professor Studdert was not well placed to consider Mr Stewart's performance. It was said that her qualifications and experience did not coincide with Mr Stewart's work and that her physical presence at Werribee meant that she had little opportunity to observe his work.

[103] I accept that Professor Studdert's areas of expertise do not extend to the principal areas of Mr Stewart's work. It is also the case that Mr Stewart worked at Parkville, whereas Professor Studdert was at the Werribee campus.

[104] The decision to have Professor Studdert conduct the review was made by the Vice Chancellor, Professor Gilbert. In his evidence Professor Gilbert said that he gave serious consideration to Mr Stewart's allegations of bias and victimisation, but decided not to change Professor Studdert's appointment as his supervisor. Professor Gilbert said that his decision in this regard rested on several grounds:

[105] Professor Gilbert's evidence was that he reconsidered Mr Stewart's allegation of bias following the receipt of Professor Studdert's report dated 11 May 1998. In his statement Professor Gilbert said:

[106] In my view the factors advanced by the applicant do not to lead me to conclude that Professor Studdert's appointment was inappropriate. In this context I have had particular regard to three matters:

- Professor Studdert's experience in objectively assessing the performance of academic staff;

- the focus of the review was on the quantity and actual performance of Mr Stewart's duties rather than the quality of his academic work; and

- the determination of whether any disciplinary action should be taken against Mr Stewart was to be made by Professor Gilbert. I accept Professor Gilbert's evidence that in considering this issue he had regard to Mr Stewart's allegations of bias on the part of Professor Studdert. I have also taken into account the fact that Mr Stewart had an opportunity to reply to Professor Studdert's report of 11 May 1998 - a matter to which I will return later in this decision.

[107] I acknowledge that some of the review criteria involved a degree of subjective judgment on the part of Professor Studdert. I have taken this into account in my assessment of her appropriateness as Mr Stewart's supervisor during the review period.

[108] Previously expressed view: The 1997 review of Mr Stewart's performance was conducted in the context of a return to work program. Professor Studdert's evidence was that she received advice from the University's Human Resources Department to the following effect:

[109] I accept Professor Studdert's evidence on this point.

[110] Professor Studdert was cross-examined extensively about the view she held of Mr Stewart's performance going into the 1998 review period.99 In this part of her evidence Professor Studdert was evasive under cross-examination. Contrary to Professor Studdert's oral evidence I find that she did go into the 1998 review with the opinion that Mr Stewart's work performance was unsatisfactory. Two further points have also led me to this conclusion.

[111] First, in her statement Professor Studdert makes it clear that since 1991 she has held the view that Mr Stewart's performance had not been consistent with the requirements of a Level C academic and was noticeably below that of other staff appointed at a similar level. Paragraphs 8 and 9 of Professor Studdert's statement are in the following terms:

[112] Second, clause 11 of the Award provides that where "a supervisor is of the view that the performance of an academic is unsatisfactory" a procedure is set out for determining the nature of the required improvement and the time within which reasonable improvement can be expected. The University contends that the 1997 performance review was carried out in a manner which was consistent with it's award obligations. The commencement of the review process envisaged by the Award is predicated upon a supervisor, in this case Professor Studdert, holding the view that the performance of an academic, namely Mr Stewart, is unsatisfactory.

[113] Consistent with the Award Professor Studdert was required to form the view that Mr Stewart's performance was unsatisfactory.

[114] The applicant contends that not only did Professor Studdert have the relevant view, but that she had a closed mind on the matter. It was submitted that Professor Studdert was not able to bring an objective mind to bear on the issues for determination and recommendation by her.

[115] I do not accept the applicant's submissions on this point.

[116] In the review letter Professor Studdert made reference to her desire to work with Mr Stewart towards the objective of achieving a satisfactory level of work performance. The letter concludes in the following terms:

[117] At each of the review meetings Mr Stewart was asked whether there was any assistance the University could provide to assist him in achieving the review objectives.101

[118] In my view Professor Studdert did bring an objective mind to bear on the issues requiring determination and recommendation. Moreover, I accept that Professor Studdert was committed to assisting Mr Stewart to meet the objectives specified in her letter of 26 December 1997. In reaching this conclusion I have also had regard to the fairness of the objectives set and Professor Studdert's decision to extend the review period. I have considered the points advanced on behalf of the applicant in support of a contrary conclusion, but I do not find them persuasive.

[119] At this point it is convenient to deal with a submission by counsel for the applicant that clause 7(a) of the Award gave Mr Stewart an entitlement to have an alternative supervisor appointed.

[120] Clause 7(a) is in the following terms:

[121] It was argued that the right to request the appointment of an alternative supervisor carried with it the right to have the request granted. No authority was cited in support of this proposition.

[122] In my view the fact that an academic may request the nomination of an alternative supervisor does not mean that any such request must be granted. The Oxford English Dictionary (First Edition 1933) defines the word "request" in the following terms: "The act, on the part of a specified person, of asking for some favour, service, etc; the expression of one's desire or wish directly addressed to the person or persons able to gratify it." Similarly, in the Macquarie Concise Dictionary (2nd Edition 1988) "request" is defined as "the act of asking for something to be given, or done, esp. as a favour or courtesy; solicitation or petition". In both cases a request is equated with asking for a favour. There is no concomitant requirement that the favour be granted. Nor does the use of the word in the context of clause 7(a) suggest anything different. Indeed in clause 7(a) the phrase "may request" in the second sentence can be contrasted with the words "shall have" in the first sentence. Clause 7(a) did not provide Mr Stewart with a right to have an alternative supervisor appointed if he so requested.

[123] I now turn to consider whether the objectives set at the commencement of the review process were fair and reasonable having regard to all of the circumstances including Mr Stewart's illness during the review period and his responsibilities as a senior lecturer. I note here that the applicant made a number of general criticisms of the review process, namely:

- the objectives set out in Professor Studdert's letter of 26 December 1997 were not related to any set of specific standards that are applied to an academic as performance indicators;

- the principal function which Mr Stewart had in the work of the Department was teaching and the review process was not directed towards an assessment or appraisal of his teaching;

- some of the review criteria were subjective in nature; and

- the quantitative approach taken in relation to a number of the review criteria was inherently unsound and unrealistic.

[124] The applicant also contended that the role of the appraisal system was relevant to any assessment of the fairness of the 1998 review. Specifically the applicant submitted:

[125] The review criteria are set out in Professor Studdert's letter to Mr Stewart dated 26 December 1997. There was some debate during the course of the proceedings about the number of performance targets or objectives specified in Professor Studdert's letter. I propose to detail the objectives specified in the review letter and then consider whether these objectives were fair and reasonable in the circumstances.

Teaching

Publications

Research Activities

Administrative Matters

[126] The review was to take place until 31 March 1998, it was subsequently extended until 27 April 1998. Any reference to 31 March in the objectives set out above should be construed as 27 April 1998 in view of the extension to the review period.

[127] I have concluded that the performance requirements to be met by Mr Stewart during the review period were fair and reasonable in the circumstances; subject to one exception in relation to the deadline specified for the submission of Paper 2, a matter which I deal with later. I do not accept the criticisms advanced by the applicant in respect of the reasonableness

of the objectives. In my view the particular requirements set related to Mr Stewart's obligations as a senior lecturer or Level C academic. The position classification standards for such a position require specific standards of performance in respect of teaching, research and administration103.

[128] Mr Lawrence, counsel for the applicant, also argued that as teaching was Mr Stewart's principal function the review process was deficient in that it was not directed to an assessment or appraisal of his teaching.

[129] I accept the proposition that the review was not concerned with an appraisal of the quality of Mr Stewart's teaching. Some of the review objectives related to reaching, namely:

- the delivery of specified lectures;

- supervision and conduct of scheduled practical classes;

- consulting with relevant subject and year co-ordinators;

- review and revise pharmacology and cardiology lecture notes;

- action to meet the need for multi-media teaching;

- drafting an outline of a computer based practical examination; and

- being available to students for four hours per week at specified times.

[130] But these requirements did not directly relate to the quality of Mr Stewart's teaching. Nor is there any suggestion that the applicant's teaching was unsatisfactory. Indeed as pointed out in the applicant's revised contentions, the evidence is to the contrary.104 However, I do not accept that the absence of a qualitative assessment of Mr Stewart's teaching meant that the review was deficient.

[131] The review objectives need to be seen against the background of Mr Stewart's performance to that point. It is apparent from Professor Studdert's evidence that the perceived problems with Mr Stewart's performance primarily related to his research activities, or rather the absence of such activities. At paragraph 27 of her statement Professor Studdert identified a number of general areas of concern which she had with Mr Stewart's performance as a member of academic staff, including:

[132] Professor Studdert also stated:

[133] I accept the factual matters referred to in the extracts from Professor Studdert's statement set out above. I also accept the proposition that refereed journal publications and other scholarly works are important performance indicators in both the Department and the University, because the level of funding for research activity is influenced by the number of these works.106

[134] In these circumstances it was appropriate that a number of the review objectives related to research and publication activities.

[135] The applicant also argued that the University's failure to comply with its own performance appraisal process rendered the review "inherently inappropriate" because it was "not based on proper foundations".

[136] Formal appraisals of academics' work performance were first introduced into the University in 1992. Appraisals are usually conducted at the completion of the academic year, or within the first two months of the following academic year in respect of performance in the preceding year. Performance appraisals of Mr Stewart were conducted in 1993, 1994 and 1995 in respect of each of the preceding academic years. No further appraisals of Mr Stewart's work performance were conducted prior to the termination of his employment. The reasons for this are set out in Professor Studdert's statement, in the following terms:

[137] It is apparent that contrary to the policy of the University, no formal performance appraisal of Mr Stewart took place in respect of the 1995, 1996 or 1997 academic years. But in my view this did not impact on the fairness of the January to April 1998 review. I am satisfied that Mr Stewart was aware of the perceived deficiencies in his performance prior to the commencement of the review. On 12 September 1997 he received a copy of a letter sent from Professor Studdert to the Vice Chancellor108. The letter contained a number of allegations regarding unsatisfactory work performance and recommended that Mr Stewart's employment be terminated.109

[138] The applicant also criticised the practicality of the deadlines imposed for meeting the review objectives, in particular the deadlines relating to the production of papers. In his statement Mr Stewart said that "the process of submitted papers against such deadlines was unrealistic".110 Mr Stewart's observation in this regard received some support from the evidence of Dr Brandon and Mr Walker. In his statement Dr Brandon makes the general observation that having regard to Mr Stewart's health he did not believe that the expectations of him during the review period were reasonable.111 In the course of his cross examination Dr Brandon said that he found it "unbelievable" that time frames had been set for the completion of research papers. According to Dr Brandon:

[139] Similarly in Mr Walker's statement he says:

[140] But Dr Brandon did not see the letter from Professor Studdert setting out the objectives to be met by Mr Stewart.114 Similarly, Mr Walker was unable to confirm that he had seen the letter and in any event he could not recall what it contained.115 Further, there is no evidence to suggest that either Dr Brandon or Mr Walker were aware of the basis upon

which Professor Studdert was operating when she set the objectives relating to the production of research papers. For example, Mr Walker had no specific knowledge about the stage Mr Stewart was at with preparing various research papers.116

[141] The context in which Professor Studdert set the review objectives is a relevant consideration in assessing their reasonableness. In this regard I accept Professor Studdert's evidence that in respect of research papers the objectives set related to tasks which Mr Stewart had previously stated were in progress or preparation.117 On a number of previous occasions statements have been made by Mr Stewart about manuscripts in progress.

[142] In his 1991 Annual Report Mr Stewart made the following statement:

[143] Mr Stewart's 1992 Statement of Objectives set out the following objectives in relation to research/scholarship:

[144] In his Annual Report Mr Stewart states that:

[145] The report also notes that as no further cases had presented themselves for additional trials in Equine Atrial Fibrillation, Cardiac Glycoside and Quinidine Therapy the work in this area had not progressed further.121

[146] In his 1994 Annual Report Mr Stewart stated that a suitable case had been referred to him during the year and that "[o]ne further case should be sufficient to permit publication in an appropriate scientific journal."

[147] In the context of a proposal to transfer his office from Parkville to the Werribee campus Mr Stewart wrote to the Dean of the Faculty, Professor Caple, on 31 January 1995. In this letter Mr Stewart referred to his research work in the following terms:

[148] In September 1996 Mr Stewart wrote in similar terms to the University's Director of Personnel Services in the context of some leave issues:

[149] The review objectives must be seen in the context of Mr Stewart's previous statements regarding his progress in the preparation of research papers. Mr Stewart was not being asked to produce, from conception to completion, a research paper for submission to an international journal. Seen in this context the objectives were reasonable. I am satisfied that the review

requirements in respect of publications were reasonable - except for the requirement that Paper 2 be submitted to a referred journal by 31 January 1998. I deal with the reasonableness of the deadline specified in respect of Paper 2 later in this decision.

[150] The nature of some of the objectives specified in the review letter were also criticised by the applicant. In particular it was said that some of the review criteria were subjective in nature and that the quantitative approach taken in relation to some of the objectives set was "inherently unsound and unrealistic".

[151] Some of the review criteria did require the exercise of a subjective judgment, and a quantitative approach was taken in relation to a number of the criterion specified. But these features do not lead me to conclude that the objectives specified were inappropriate or that the review was unfair. I do not accept the applicant's criticisms in this regard.

[152] In terms of Mr Stewart's overall workload during the review period, Professor Studdert's evidence was that the tasks and objectives set were achievable during the review period. In particular Professor Studdert said that no specific administrative tasks were assigned to Mr Stewart during the review period to ensure that he was provided with a full opportunity to meet the stated objectives.124

[153] Mr Stewart was only required to teach during two of the four months over which the review was conducted. He was on leave for part of January 1998 and was absent due to illness, or for some other specified reason, at various other times during the period. I will return to these absences shortly.

[154] In the course of his evidence Mr Stewart disputed the suggestion that his teaching workload was "not excessive", but accepted that he had fourteen hours of scheduled lectures and no more than 63 hours in practical classes during the review period.125

[155] In relation to an earlier period - 1996/97 - Mr Stewart accepted the proposition that given his teaching load and administrative responsibilities at that time there was a significant amount of time for research activities.126 Later in his evidence Mr Stewart accepted that his teaching load had not changed much since 1996.127 The inference being that his 1998 teaching load also provided a significant amount of time for research and other activities.

[156] Some documentary evidence was provided in relation to Mr Stewart's workload relative to other members of academic staff. Professor Studdert and Mr Stewart also gave evidence about this material.128 This material generally supports the conclusion that Mr Stewart's workload during the review period was moderate and certainly not excessive.

[157] Another factor which is relevant to Mr Stewart's overall workload during the review period is the time taken in relation to the revision of lecture notes. Two particular objectives were set in this regard:

- the review and revision of lectures and lecture notes in Veterinary Pharmacology (ten lectures in all - seven in pharmacology and three covering cardiovascular).

- the revision of cardiovascular notes to include notes to accompany the lecture an antiarrythmic drugs.

[158] Mr Stewart's evidence was that it took an estimated 40 hours to produce the notes for the lecture on antiarrythmic drugs and the revision and production of other notes took about 80 hours.129

[159] I accept Mr Stewart's evidence in relation to the time taken to produce the antiarrythmic notes. But in my view his estimate of 80 hours spent reviewing the other ten lectures is just not credible.

[160] Mr Stewart's 1997 and 1998 lecture notes for the first seven lectures in Veterinary Pharmacology were tendered as documents 169 and 170 in Exhibit University 1. The differences between the two sets of notes was highlighted in document 170. Mr Stewart accepted that the changes highlighted were an accurate reflection of the changes made to the notes. There was only one major revision and that involved three pages of text. Mr Stewart estimated that the revision of these seven lectures took ten hours and that it took a further 46 hours to reformat and arrange for their printing.130

[161] Bearing in mind that Veterinary Pharmacology was Mr Stewart's specialist subject and one that he had taught continuously since 1965131 I do not accept Mr Stewart's evidence on this issue. In particular I find it highly improbable that it took 46 hours to reformat and arrange for the relevant lectures to be printed.

[162] Mr Stewart's capacity to meet the review objectives was also affected by illness during the review period. There is a considerable amount of evidence dealing with this issue.132 I am satisfied that Mr Stewart's ill health133 would have compromised his ability to meet all of the specified objectives within the original time frame specified for the review. But the University took steps to accommodate Mr Stewart's illness. Lectures were rescheduled to 11 a.m. or later and the review period was extended by four weeks until 27 April 1998.134

[163] In this context I also note that the report from Dr Fraser dated 20 February 1998 referred to the impact of Mr Stewart's condition at particular times of the day - namely from early to mid-morning. In his subsequent letter to Professor Studdert dated 25 February 1998, Dr Fraser reviews Mr Stewart's condition and symptoms and concludes that they "... would compromise his 9 a.m. lectures, and his prac. classes starting at 10 a.m. ... I am forced to say that his condition might prevent his commencing classes at the given times intermittently." Earlier in the same letter Dr Fraser noted that Mr Stewart's "... only troublesome symptom was the diarrhoea caused by colitis and his general health remains normal in other respects".135

[164] These documents are not medical certificates as such, in that they do not specify a particular period during which Mr Stewart was unable to carry out his duties. The same observation can be made in relation to Dr Orchard's correspondence of 30 March, 2 April and 20 April 1998.136 Further, in relation to Dr Orchard he recommended that the "review of duties be deferred for four weeks" on the basis of Mr Stewart's ill health.137 This extension was granted and no further extension was sought on medical or any other grounds.

[165] Finally, in support of its contention that the objectives set in the review letter were reasonable the University submitted that the work performance requirements had been accepted by Mr Stewart. In reply counsel for the applicant conceded that the only specific objective which was not accepted by Mr Stewart concerned the number of publications,138 but argued that it did not follow that Mr Stewart regarded all the other tasks as appropriate. It was also contended that the reasonableness of the various timelines was not accepted and that of their nature some of the objectives were tasks that might give rise to differences of opinion about whether or not they had been fulfilled.

[166] I am satisfied that at the first review meeting on 14 January 1998 Mr Stewart was provided with an opportunity to discuss the review objectives and that he raised no issues in relation to those objectives.139 Indeed at that time Mr Stewart accepted that the objectives which had been set were reasonable and achievable.140 In his letter to the Vice Chancellor of 27 January 1998 Mr Stewart did not raise any objection to the reasonableness of the review objectives;141 nor did he lodge any such objection after the Vice Chancellor's reply, dated 4 February 1998, which said "I am heartened to note that you do not claim that the performance objectives set are unreasonable or biased in any way."142

[167] During the review period the only objection raised by Mr Stewart to the objectives set was in connection with the provision of research papers. This matter was the subject of correspondence between Mr Stewart and Ms Cooper. Ms Cooper is the Manager, Workplace Relations within the University's Department of Human Resources.143

[168] Mr Stewart's concerns principally related to the impracticability of the deadline of 31 January 1998 for the submission of Paper 2 because it required input from the other authors. Mr Stewart also raised the sequencing of the papers and his desire to complete Paper 2 before commencing on Paper 3. Ms Cooper's letter to Mr Stewart of 13 February 1998144 clearly sets out the review objectives in respect of this matter.

[169] In Mr Stewart's letter to the Vice Chancellor of 21 May 1998, in response to Professor Studdert's report, the only objection raised with respect to the reasonableness or achievability of the review objectives was in the following terms:

[170] In the above extract Mr Stewart claims that there was an "apparent change in objectives" in respect of research papers required which rendered the objectives unreasonable. In my view the objectives did not change in the manner suggested by Mr Stewart. The review letter sets out the relevant objectives and they were dealt with in Ms Cooper's letter of 13 February 1998 and were discussed at the review meeting held on 18 February 1998.146

[171] It seems to me that at the commencement of the review process Mr Stewart accepted that the review objectives were reasonable and achievable, but he later changed his view when it became apparent that he would not meet a number of the requirements set.

[172] Mr Stewart's initial acceptance of the objectives is relevant to the determination of whether those objectives were fair and reasonable, but it is not decisive. Ultimately the issue is to be resolved on the basis of all the material before the Commission.

[173] In my view the tasks and objectives set in Professor Studdert's letter of 26 December 1997, as varied by her letter of 22 April 1998,147 were reasonable and achievable during the review period.

[174] I now propose to deal with each of the matters identified in s.170CG(3) in turn.

Valid Reason

[175] Section 170CG(3)(a) provides that in determining whether a termination was harsh, unjust or unreasonable the Commission must have regard to whether "there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service".

[176] The applicant submitted that there was no valid reason for his termination and that there had been no attempt to provide a broad and general appraisal of his work performance. The University contends that there was a valid reason for Mr Stewart's termination in that he did not achieve a reasonable or satisfactory level of work performance during the review period of January to April 1998.

[177] The extent of the applicant's compliance with the review objectives is in issue between the parties. It is agreed that Mr Stewart met the following objectives:

[178] Mr Stewart's compliance with the other review objectives is disputed by the University. I will deal with each of the remaining objectives in turn.

Teaching

[179] The University contends that Mr Stewart was absent from ten of the eighteen practical classes scheduled during the review period.148 A satisfactory explanation was provided in respect of some of these absences.

[180] On 9 March 1998 Mr Stewart was absent as a result of an injury he sustained when he was kicked in the face by a horse on the evening of 8 March. A medical certificate was provided in respect of this absence.149

[181] Two other absences were covered by medical certificates provided by Dr Mansie in respect of the period 20-28 March 1998.150

[182] The applicant contended that other absences between 20 March and 6 April were covered by the correspondence from Drs Fraser and Orchard. The applicant also gave evidence to the effect that his absences were due to illness. In my view the correspondence from Drs Fraser and Orchard were not medical certificates and do not provide a satisfactory explanation for the particular absences.

[183] Mr Stewart was aware of the need to provide a medical certificate to explain why he was absent or unable to perform his normal duties.151 On 8 April 1998 he submitted an application for ten days sick leave in respect of three periods: 20-25 March; 27 March-1 April; and 3-6 April 1998.152 The application did not attach any medical certificates but contained the notation "Provided separately by Dr Orchard". Professor Studdert wrote to Mr Stewart on 17 April 1998 stating, among other things, that she was not prepared to approve his sick leave application at that stage because no medical certificate had been provided. Professor Studdert also made it clear that the letters from Dr Orchard, dated 30 March and 2 April were not sufficient for this purpose.153

[184] In my view no satisfactory explanation was provided for the absences on 30 March, 1 April, 3 April and 6 April 1998. I do not accept Mr Stewart's evidence that he was unable to attend on these days because of illness. On a number of occasions I found Mr Stewart to be

evasive under cross examination.154 He also appeared confused at times155 and had difficulty recalling specific events156. There were a number of instances where he changed his evidence under cross examination.157 I did not find him to be a credible witness.

[185] The University submitted that Mr Stewart did not attend his scheduled practical classes on 20, 22 and 27 April 1998. In reply counsel for the applicant argued that these absences had not been raised with Mr Stewart, nor were they specified in Professor Studdert's report to the Vice Chancellor. It was said that had these particular days been specified Mr Stewart would have had an opportunity to provide a relatively contemporaneous explanation for his absence on two occasions and the basis upon which he claims to have attended on 27 April 1998. In this respect the applicant claimed that there had been a breach of the Award process.

[186] I am not satisfied that there was a breach of the Award process in the manner claimed by the applicant. Mr Stewart knew at the time of writing his report to Professor Gilbert that he had been absent from the practical classes on 20 and 22 April and for at least part of the class on 27 April. In his letter to Professor Gilbert, Mr Stewart did not advance any detailed explanation for his absences but rather submitted medical certificates covering some particular dates.

[187] During the course of these proceedings Mr Stewart provided a statement in respect of the issue of his attendance at practical classes held on 20, 22 and 27 April 1998.158

[188] In respect of 20 April, Mr Stewart said that the practical class on this day was scheduled for 10 am - 1 pm and it clashed in part with a lecture he was to deliver on cardiovascular physiology between 12 noon and 1 pm Mr Stewart's evidence was that he discussed the clash with Mr Iwanov, the co-ordinator of the practical class, who informed him that it was not necessary for him to attend. He did not advise Professor Studdert that he would not be attending the practical class.

[189] Given that Mr Stewart's illness meant that he would usually not arrive at work until about 10.30 am and that the lecture he was to deliver was some 600 metres from where the practical class was held I think there was a satisfactory explanation for his absence at the practical class. It is reasonable to expect that he would need some time to go over his notes before delivering the lecture. But in my view there was no reasonable explanation for his failure to advise Professor Studdert of his absence.

[190] In relation to 22 April 1998 Mr Stewart was absent from the practical class scheduled for that day because of a clash with a rescheduled lecture. The lecture in question had been rescheduled from 9 April because Mr Stewart had booked his car in for repairs on that day and did not attend work. During cross examination Mr Stewart conceded that he could have left his car, gone by train, and still attend the lecture as scheduled.159

[191] Mr Stewart's evidence was that the rescheduling of the lecture also enabled a more logical sequencing of related lectures.160 The rescheduling of this lecture was not discussed with his supervisor and the relevant subject co-ordinator, Professor Studdert.

[192] On balance, I accept that the rescheduling of the lecture to provide a more logical sequencing of later lectures was an appropriate reason for rescheduling the lecture and hence for Mr Stewart's non-attendance at the practical class on 22 April 1998. But again this was a matter which he should have discussed with Professor Studdert.

[193] The position in respect of the practical class on 27 April 1998 is somewhat more complicated. Mr Victor Iwanov's evidence is relevant in this regard. He was the co-ordinator of the practical classes in question. Mr Iwanov's evidence is as follows:

[194] Mr Iwanov's email to Professor Studdert is in the following terms:

[195] In Mr Stewart's statement on this issue he says:

[196] Mr Stewart did not depart from the above statement during his cross examination. He accepted that he did not attend the class before 11.30 am but believed that he was there at some time after 11.30 am.164

[197] It is not easy to reconcile the evidence in respect of this issue. On the one hand Mr Iwanov's email to Professor Studdert suggests that Mr Stewart had called him to say he would not be attending. The email also suggests that Mr Stewart did not in fact attend. In this respect the terms of the email may be inconsistent with Mr Iwanov's statement that he had no recollection of whether Mr Stewart attended after 11.38 am. But this was not put to Mr Iwanov because he was not required for cross examination and hence did not give oral evidence. Nor was Mr Stewart questioned in respect of the conversation Mr Iwanov says he had with him the week before the practical class - in which he said he would not be attending the class.

[198] In these circumstances I find that Mr Stewart did not attend the practical class between 10 am and 11.38 am. The state of the evidence is such that I cannot determine whether he attended after 11.38 am. For the purpose of my conclusion I have assumed that Mr Stewart attended the practical class for some time between 11.38 am and 1.00 pm.

[199] Counsel for the applicant argued that Mr Stewart complied with the requirement to attend scheduled practical classes, so far as he was able to do in the circumstances. I do not agree. No satisfactory explanation was provided for Mr Stewart's absence from these classes on 30 March, 1 April, 3 April, 6 April and part of 27 April 1998. Further, Mr Stewart failed to take appropriate steps to inform Professor Studdert of his inability to attend the relevant classes. Mr Stewart did not satisfactorily comply with this objective.

[200] The review letter also deals with Mr Stewart's performance during practical classes, it states:

[201] The University contended that the requirement to exercise a "higher level of responsibility" in practical cases was a legitimate performance requirement which had not been satisfied. It was said that Mr Stewart's absence from a number of practical classes and his attitude to attendance and the rescheduling of lectures supports the conclusion that he did not exercise the required level of responsibility.

[202] The applicant disputes this and contends that there is no evidence to support the view that Mr Stewart had failed to achieve this objective. It was also argued that the objective was not a legitimate performance target because it did not contain measurable guidelines.

[203] I agree with the applicant's submissions on this point. In my view the stated objective is deficient in that it fails to particularise what was expected of Mr Stewart during the review period. Further, there is no direct evidence as to the level of responsibility exercised by Mr Stewart in the practical classes he attended.

[204] Mr Stewart was also required to undertake certain tasks in relation to the production and revision of specified lecture notes, namely:

[205] The relevant part of the review letter states:

[206] Mr Stewart revised the ten Veterinary Pharmacology lecture notes. The revised notes in relation to the first seven lectures were provided to Professor Studdert during the review period.167 These notes were also provided to Professor Gilbert, together with the revised notes in respect of the three subsequent lectures.168

[207] Mr Stewart also prepared notes to accompany the lecture on antiarrythmic drugs. These notes were provided to students prior to the relevant lecture and were submitted to Professor Gilbert.169 The notes were not provided to Professor Studdert.170

[208] I am satisfied that Mr Stewart completed the tasks required of him in respect of the production and revision of lecture notes, but for the requirement to provide Professor Studdert with a copy of the notes on antiarrythmic drugs by the end of the review period. The applicant submitted that the failure to provide these notes to Professor Studdert was "not a matter of substance".171 I do not agree. In my view Mr Stewart's failure to comply with Professor Studdert's direction in respect of this matter is indicative of his attitude towards co-operating with his supervisor and the review process generally. I return to this point later.

[209] Mr Stewart was also required to report on how multimedia could be incorporated into his teaching, in line with the University's policy to increase the use of multimedia in undergraduate teaching. There were three aspects to this requirement:

[210] The review letter required Mr Stewart to provide Professor Studdert with details of the action taken to meet this objective, by end February 1998. On 27 February 1998 Mr Stewart provided a report to Professor Studdert on this issue. The relevant parts of the report are in the following terms:

[211] The University submitted that Mr Stewart pursued a minimalist interpretation of what was required of him in relation to this objective, rather than accepting and acting in accordance with the spirit and broad purpose of the requirement. It was also submitted that Mr Stewart did not pursue recommendations made by Professor Studdert as to the further development of the computer based practical examination.

[212] The essence of the applicant's case was that the further steps in relation to this matter depended on the availability of funds and the receipt of replies to Mr Stewart's inquiries of other veterinary faculties. It was put that Mr Stewart had completed this task as far as he could at that time.173

[213] I am satisfied that Mr Stewart did what was required of him in respect of investigating the potential for incorporating multimedia in to his teaching. Contrary to the University's submission Mr Stewart was not required to do more than was specified in the review letter. I accept that further development would be required to complete the computer based practical examination. But the review objective was to provide a "drafted outline", not the final product, and Mr Stewart met this objective.

[214] The last matter in this cluster of objectives concerns the requirement that Mr Stewart be available for a minimum of four hours, over at least two days per week, for student consultations.

[215] On 2 March 1998 Mr Stewart posted a notice on his door advising that he would be available for student consultations between 1.30 pm and 3.30 pm on Tuesdays and Fridays.174 Mr Stewart's evidence was that he attended for student consultations unless he was sick. On this basis it was submitted that he met this objective. The University contends that there were a number of days on which Mr Stewart was absent and no satisfactory explanation was provided. The University argued that Mr Stewart did not comply with this work performance requirement.

[216] Attachment C to the University's revised contentions175 sets out the eight days on which it was said that Mr Stewart was unavailable for consultation with students. Medical certificates were provided in respect of three of these absences and Mr Stewart was absent on compassionate leave on 3 March 1998, in order to assist his daughter who had broken her leg. Of the remaining four days there is some confusion as to whether the University pressed the claimed absences on 6 and 13 March 1998.176 For the purpose of my conclusion I have assumed that Mr Stewart was available for consultation on those days.

[217] The remaining two days are 31 March and 3 April 1998. Mr Stewart's response in respect of these absences is essentially the same as that in respect of his absence from practical classes - he was ill and his absence is satisfactorily explained by the correspondence from Drs Fraser and Orchard. As I have already noted the correspondence from Drs Fraser and Orchard were not medical certificates and do not provide a satisfactory explanation for the particular absences. Further, for the reasons set out at paragraph 194 of this decision, I do not accept Mr Stewart's evidence that he was unable to attend on these days because of illness.

[218] I find that Mr Stewart was not available for student consultation on 31 March and 3 April 1998 and that no satisfactory explanation has been provided for his absence.

Publications

[219] The review objectives in respect of publications are set out on pages 32 and 33 of this decision, three papers are referred to.

[220] The research work undertaken by Mr Stewart in conjunction with a Bachelor of Animal Sciences student in 1996 was to form the basis of what was referred to as Paper 1. The research related to plasma ionised calcium levels in horses before and after endurance exercise. The work was undertaken because it had been suggested that the levels of calcium in the blood of animals impacted on the development of arrythmias. Extensive testing of horses was undertaken in 1996 and blood samples were sent to be tested at the Veterinary Clinical Care Centre in Werribee. The calcium concentrations determined by the laboratory were lower than levels previously published overseas. Mr Stewart suspected that there may have been an error in the results, that suspicion was confirmed by further tests. Mr Stewart informed Professor Studdert that the results from the 1996 tests were unreliable and were not in publishable form.177

[221] The requirement in respect of Paper 1 was that Mr Stewart was to advise Professor Studdert if a paper in respect of this research had already been submitted and if not, why not. I am satisfied that Mr Stewart complied with this objective.

[222] Mr Stewart was also required to submit to a refereed journal at least one of his papers arising from his own original research which has been in the course of preparation but not already submitted. This paper was referred to as Paper 2 in the proceedings. The requirement in respect of Paper 2 was to have been met by 31 January 1998.

[223] A final draft of Paper 2 was provided by Mr Stewart to Professor Studdert on 31 January 1998. The paper was not submitted to the relevant journal until 11 May 1998. A copy of the completed paper was provided to Professor Gilbert as Appendix F to Mr Stewart's letter of 21 May 1998.178

[224] The applicant submitted that the requirement for Paper 2 to be submitted to a refereed journal by 31 January 1998 was unreasonable. It was contended that the submission of the draft on 31 January 1998 to Professor Studdert and the completion and submission of the paper on 11 May 1998 was sufficient compliance.

[225] I agree with the proposition that the deadline of 31 January 1998 was unreasonable. Mr Stewart was obliged to consult with the three other authors in order to obtain their comment and input. He also sent the draft to two other academics for comment. It is reasonable to expect that this process would take some time. I am satisfied that Mr Stewart complied with the requirement in respect of Paper 2, to the extent that it was reasonably practicable to do so.

[226] In respect of Paper 3 Mr Stewart was required to have a further publication in the final stages of preparation for submission to a refereed journal. The applicant conceded that this objective was not met.179 A half page outline of Paper 3 was provided on 31 January 1998, but nothing further. In that outline Mr Stewart says:

The plasma calcium paper referred to was Paper 2.

[227] Counsel for the applicant contended that the requirement that Mr Stewart prepare a final draft of another paper during the review period was unreasonable and hence his failure to comply with the objective in respect of Paper 3 does not indicate any failure in his work performance.

[228] I do not agree with the applicant's submission in this regard. Except in respect of the deadline for Paper 2, I am satisfied that having regard to Mr Stewart's previous statements about the progress in the preparation of research papers the review requirements relating to publications were reasonable.181

[229] This conclusion is also supported by the terms of Mr Stewart's letter of 21 May 1998 to the Vice Chancellor where he says:

[230] The clear inference from the above extract is that Mr Stewart did not consider that the review objectives in respect of papers 2 and 3 were unreasonable. He objected to any requirement to produce three papers - but no objection was taken in respect of the requirement to submit one paper (Paper 2) and have another in the final stages of preparation (Paper 3).

[231] Mr Stewart did not satisfy the review objectives in respect of Paper 3.

Research Activities

[232] On 7 March 1997 Professor Studdert directed Mr Stewart to prepare a plan in respect of his research activities. The relevant correspondence states:

[233] As at 26 December 1997 the research plan sought had not been provided to Professor Studdert. The review letter required Mr Stewart to provide the 1997 research plan to Professor Studdert by 15 January 1998 as well as copies of any grant applications he submitted in 1997. The deadline of 15 January 1998 was later extended to 17 February 1998. The review letter goes on to state:

[234] Mr Stewart provided Professor Studdert with his 1997 research plan, updated to February 1998, at the review meeting held on 18 February 1998.184 No grant applications were made in 1997 or 1998. Counsel for the applicant submitted that Mr Stewart complied or substantially complied with the relevant objectives.

[235] The University contended that the document provided by Mr Stewart did not constitute a research plan as a plan entails an indication as to that which is planned to be done - it includes a prospective element. In relation to the difficulties in obtaining research funds it was submitted that it was not Mr Stewart's failure to attract research funds which was the subject of complaint but rather it was his failure to make any effort to obtain such funding.

[236] I am satisfied that Mr Stewart met the requirement to provide Professor Studdert with his 1997 research plan. The review letter did not particularise the contents of such a plan or what was expected of Mr Stewart in that regard. In these circumstances I do not accept the University's criticisms of the content of the plan provided.

[237] Mr Stewart was also required to provide Professor Studdert with "detailed evidence" of progress made in following his research plan. The applicant submitted that the updated 1997 research plan was sufficient compliance with this request. I do not agree. Mr Stewart did not satisfy this requirement.

[238] In addition to the provision of a research plan, the review letter also required Mr Stewart to provide Professor Studdert with written details of the steps he was taking to "develop a postgraduate training program in veterinary pharmacology or cardiology, or collaborations you have entered into which permit you to participate in postgraduate supervision in 1998."

[239] Counsel for the applicant highlighted the fact that this objective consisted of two alternatives. Mr Stewart could either "develop a postgraduate training program" or enter into "collaborations" which would permit him to "participate in postgraduate supervision in 1998." Mr Stewart chose the latter option. The initiatives taken in this regard are set out at page 5 of his letter to the Vice Chancellor of 21 May 1998:

[240] This information was not provided to Professor Studdert. Counsel for the applicant conceded that there was a direction to provide written details to Professor Studdert but contended that no date was specific for the submission of this material. It was submitted that there was substantial and adequate compliance with the basic objective.

[241] The University contended that the failure to provide written details to Professor Studdert within the review period meant that there was not sufficient compliance with this review objective.

[242] The review letter does not specify a time deadline for the submission of the relevant material. But given that there was a nominated review period which was to have concluded on 31 March 1998, and was later extended to 27 April 1998, it is implicit that the relevant information should have been provided to Professor Studdert by the end of the review period. This interpretation is confirmed by the `summary of timelines' document attached to the minutes of the review meeting held on 14 January 1998.186 Under the heading `March 31' the following notation appears: "evidence of steps taken to develop a postgraduate training program in veterinary pharmacology".

[243] I find that Mr Stewart took steps to investigate and entered into collaborations which allowed him to participate in postgraduate supervision. But contrary to the review objective he failed to provide Professor Studdert with written details of the steps taken.

Administration matters

[244] As a general rule Mr Stewart was required to be in attendance at the workplace during normal working hours. He was also required to notify the Assistant Registrar's office when he was in the Preclinical Centre and when he was going to be away.

[245] In relation to Mr Stewart's general attendance I have already found that there were a number of days on which he was absent without a satisfactory explanation, namely 30 March, 1 April, 3 April and 6 April 1998.

[246] In relation to the second requirement the University contended that Mr Stewart did not always notify the Assistant Registrar's office in respect of his attendance. Counsel for the applicant contended that the evidence did not establish that Mr Stewart had failed to comply with this objective.

[247] The evidence in relation to the notification requirement is inconclusive. Professor Studdert says that Mr Stewart did not consistently meet this requirement.187 But Professor Studdert's principal workplace is at Werribee and Mr Stewart worked at Parkville. Further, the basis of Professor Studdert's conclusion on this issue is not apparent. Some handwritten notes said to deal with Mr Stewart's attendance were tendered during the proceedings.188 Counsel for the applicant objected to the notes and their provenance was not established. I have not placed any weight on these notes. No one from the Assistant Registrar's office gave evidence regarding the extent of Mr Stewart's compliance with this requirement. In these circumstances I agree with the submission by counsel for the applicant and for the purpose of my conclusion I have assumed that Mr Stewart complied with the requirement to notify the Assistant Registrar's office in respect of his attendance.

Conclusion

[248] I have already found that:

The only qualification in respect of these findings was in relation to the deadline specified for the submission of Paper 2.

[249] I have reviewed the material relating to the extent of Mr Stewart's compliance with the review objectives. I find that Mr Stewart failed to meet a significant number of the tasks and objectives he was required to satisfy during the review period. The details in relation to this finding are set out above.

[250] In relation to a number of the objectives counsel for the applicant contended that Mr Stewart had substantially complied or had complied with the basic objective. These submissions were usually advanced in circumstances where Mr Stewart had not complied with a direction to provide Professor Studdert with certain material. It was put that the failure to provide such material to Professor Studdert was not a matter of substance. I reject these submissions. As I have said earlier, in my view Mr Stewart's failure to comply with these directions is indicative of his attitude towards co-operating with his supervisor and the review process generally.

[251] It was submitted on behalf of the applicant that Mr Stewart co-operated with the review process and did so appropriately. It was conceded that he did not provide copies of all his work to Professor Studdert, but it was submitted that Professor Studdert should have made further enquiries about the availability of this material given that she was reporting on that aspect to Professor Gilbert. It was also argued that any perceived lack of co-operation on Mr Stewart's part was "completely redressed" by his letter of 21 May 1998 to Professor Gilbert, which included all the relevant documents.

[252] I do not accept the applicant's submissions on this point. I find that Mr Stewart's conduct during the review period clearly evidenced a lack of co-operation with Professor Studdert and the review process. In my view Mr Stewart's attitude in this regard is a matter of substance and I have taken it into account in determining whether there was a valid reason for the termination of his employment.

[253] During the review period Mr Stewart failed to comply with a number of requests by Professor Studdert for the submission of certain material. For example, Professor Studdert asked Mr Stewart, by letter on 7 April 1998 and in a telephone conversation on the following day, to supply her with copies of all the work he had completed to that date so that she could better assess the need for an extension of the review period.191 The relevant part of Professor Studdert's letter states:

[254] Mr Stewart replied that the work requested would be provided when he returned from the Easter break.193 He did not provide the work requested on his return.

[255] Professor Studdert wrote to Mr Stewart on 17 April 1998 seeking, among other things, medical certificates to support his application for sick leave and again requested copies of work completed to that date. Professor Studdert also offered to "make appropriate arrangements for photocopying to be undertaken at the University or elsewhere," so as to ensure that the materials requested were provided by 20 April 1998.194 In a subsequent letter to Mr Stewart, dated 22 April 1998, Professor Studdert advised him that she had decided to extend the review period until 27 April 1998 and he could defer fulfilling her earlier requests until that date.195

[256] On 27 April 1998 Mr Stewart left a telephone message for Professor Studdert explaining that he was unable to attend work on that day but would deliver the work requested on the following day. The material was not provided as promised and no further submissions or explanations received by Professor Studdert from Mr Stewart. Not only did Mr Stewart not provide the requested material, he also failed to give any explanation to Professor Studdert as to why the material was not provided.196

[257] When questioned during cross examination about his failure to respond to Professor Studdert's requests, Mr Stewart conceded that he was uncooperative in some areas. For example during this evidence on 8 June 1999:

Mr Moore, counsel for the University, returned to this issue on the following day:

[258] Evidence of Mr Stewart's lack of co-operation during the review is not limited to his failure to comply with Professor Studdert's requests. For example, on 9 April 1998 Mr Stewart did not attend work because his car was being repaired. A lecture he was to give on that day was rescheduled to a later time at which Mr Stewart was also required to participate in a physiology practical class as part of his duties. The rescheduling was not discussed with the subject coordinator, Professor Studdert.198

[259] During the course of his evidence Mr Stewart said he thought that the review process "was a farce" because of his views about Professor Studdert's intentions. In short he thought that Professor Studdert had already made up her mind and would recommend that his employment be terminated.199 I have already dealt with Professor Studdert's role in the review process. As I have stated I am satisfied that Professor Studdert was able to bring an objective mind to bear on the issues for determination and recommendation by her. But even if Mr Stewart thought that the review process was "a farce" he was nonetheless under an obligation to work within its parameters and co-operate during the process.

[260] On the basis of all the material before me I am satisfied that the University had a valid reason to terminate Mr Stewart's employment.

Notification

[261] Section 170CG(3)(b) provides that I must have regard to whether Mr Stewart was notified of the reason for the termination of his employment in determining whether that termination was harsh, unjust or unreasonable.

[262] On 23 June 1998 the Vice Chancellor forwarded a letter to Mr Stewart which stated, among other things:

[263] Mr Stewart did not respond to the Vice Chancellor's letter. On 7 July 1998 the Vice Chancellor wrote to Mr Stewart in the following terms:

[264] Mr Stewart subsequently requested a review of the decision to terminate his employment, in accordance with clause 11(g) of the Award.202 The report of the Unsatisfactory Performance Review Committee was forwarded to the Vice Chancellor on 23 November 1998.

[265] On 1 December 1998 the Vice Chancellor forwarded a letter to Mr Stewart advising that he saw no reason to vary his earlier decision that Mr Stewart's performance had been unsatisfactory and that the appropriate disciplinary action to be taken was termination of his employment. The letter also confirmed that Mr Stewart's employment with the University was to cease effective 31 January 1999.203

[266] I am satisfied that Mr Stewart was notified of the reason for the termination of his employment.

Opportunity to respond

[267] Section 170CG(3)(c) provides that where an employee's employment is terminated for reasons related to their capacity or conduct the Commission must have regard to whether the employee was given an opportunity to respond to those reasons. I have assumed that termination for unsatisfactory performance constitutes termination related to Mr Stewart's capacity or conduct and hence s.170CG(3)(c) is relevant.

[268] On 11 May 1998 Professor Studdert forwarded her report on Mr Stewart's review to the Vice Chancellor. The report concluded that "there has been a substantial failure by Mr Stewart to achieve reasonable performance in relation to each of the areas of duty required of Mr Stewart."204 The Vice Chancellor wrote to Mr Stewart on 20 May 1998, in the following terms:

The letter referred to was Professor Studdert's report.

[269] Mr Stewart subsequently provided a detailed response to Professor Studdert's report.206 On 23 June 1998 the Vice Chancellor wrote to Mr Stewart and informed him that he had concluded that Mr Stewart's performance was not satisfactory. Before deciding what action to take the Vice Chancellor sought Mr Stewart's agreement to submit to a medical examination, by a medical practitioner nominated by the University, in order to determine the extent to which ill health may have adversely affected his performance. Mr Stewart did not reply to the Vice Chancellor's letter in the time specified and by letter dated 7 July 1998 Mr Stewart was informed of the decision to terminate his employment. Professor Gilbert took Mr Stewart's response and Professor Studdert's report into account in arriving at the conclusion that his performance was unsatisfactory and in the subsequent decision to terminate his employment.207

[270] I am satisfied that Mr Stewart was given an opportunity to respond to the reasons for his termination.

Warning

[271] Where a termination of employment is related to unsatisfactory performance by the employee - as is the case here - the Commission must have regard to whether the employee had been warned about that unsatisfactory performance before termination (s.170CG(3)(d)).

[272] The evidence establishes that Professor Studdert had a long standing concern about Mr Stewart's performance. During the course of Mr Stewart's 1994 performance appraisal meeting Professor Studdert raised his lack of research activities.208 These concerns led Professor Studdert to conduct a review of Mr Stewart's performance from March to 30 June 1997. At the end of the review Professor Studdert concluded that Mr Stewart's work performance was unsatisfactory and she wrote to the Vice Chancellor expressing that view and recommending that Mr Stewart's employment be terminated.209 A copy of Professor Studdert's letter was subsequently provided to Mr Stewart by the Vice Chancellor.

[273] The Vice Chancellor decided that Mr Stewart's work performance was to be further reviewed.210 The terms of this review are set out in Professor Studdert's letter to Mr Stewart, dated 26 December 1997. In the circumstances it is apparent that the review letter constituted a warning within the meaning of s.170CG(3)(d). Mr Stewart was aware that his employment was at risk. In the course of his evidence Mr Stewart made the following observation about the review process:

[274] I am satisfied that Mr Stewart was warned about his unsatisfactory performance before termination.

Other Matters

[275] In Windsor Smith v Liu and others212 a Full Bench of the Commission said:

[276] The expression `a fair go all round' appears in s.170CA(2). Section 170CA sets out the objects of Division 3 of Part VIA of the Act. In the context of a s.170CG arbitration it is relevant to note that s.170CA(1)(b) states that one of the objects of the Division is `to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought'. Section 170CA(2) provides:

[277] The relevant passage from the judgment of Justice Sheldon in Loty and Holloway is as follows:

[278] In Mollinger v National Jet Systems Pty Ltd a Full Bench of the Commission said:

[279] In my view whether there has been a `fair go all round' is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative,216 but it is a factor to be taken into account.

[280] Having regard to all the circumstances I am satisfied that Mr Stewart was given "a fair go".

[281] I have also taken into account two other factors, namely the length of Mr Stewart's service with the University and his age at the time his employment was terminated.

[282] Mr Stewart had been employed by the University for over 33 years. In the early part of his career he was actively engaged in research and in the dissemination of that research through numerous publications. But in the decade immediately before his termination this important aspect of his work was clearly unsatisfactory. Since 1985 he had only produced one refereed publication (in 1990) and had not supervised a postgraduate student since 1982. He had not obtained research funding since 1991 and for a number of years prior to his termination he had not even applied for such funding.

[283] Counsel for the applicant sought to explain this lack of activity by referring to the difficulties associated with obtaining research funding, particularly in Mr Stewart's specialty and to the lack of internal support for Mr Stewart and his particular area of expertise. But funding sources are available and greater effort could have been made to seek such funding. It cannot be said that Mr Stewart could not have attracted external research funding - in recent years he made little effort to actively pursue such funding. In any event, lack of funding does not fully explain the absence of publications activity. Mr Stewart had the research data which could have formed the basis for such publications.217

[284] I do not accept the proposition that there was a lack of internal support for Mr Stewart and his particular area of expertise. In my view the weight of the evidence does not support this proposition.

[285] An individual's performance level may vary over the course of a professional career and performance may decline with age and illness. But in my view these factors do not adequately account for the extent of Mr Stewart's unsatisfactory performance.

[286] Mr Stewart was 62 years of age at the time the decision to terminate his employment was taken, that fact is likely to adversely affect his prospects of finding employment. Mr Stewart has been unemployed since the termination of his employment and as a general proposition it is more difficult for older persons to find employment, as shown by the table below.

Unemployed Males: Duration of Unemployment by Age.218

 

Age Group (years)

 

15 - 19

20 - 24

25 - 34

35 - 54

         

Average Duration of unemployment (weeks)

23.2

52.9

64.1

78.7

         

Median Duration of unemployment (weeks)

8

20

26

44

         

I have taken these matters into account in arriving at my decision.

Conclusion

[287] I have had regard to the matters identified in s.170CG(3) and make the following findings:

1. The University had a valid reason to terminate Mr Stewart's employment;

2. Mr Stewart was notified of the reason for the termination of his employment;

3. Mr Stewart was given an opportunity to respond to the reasons for his termination; and

4. Mr Stewart was warned about his unsatisfactory performance before termination.

[288] On the basis of these findings and having regard to the matters I have identified pursuant to s.170CG(3)(e) and all of the evidence before me I have determined that the termination of Mr Stewart's employment was not harsh, unjust or unreasonable within the meaning of s.170CG.

[289] I dismiss Mr Stewart's application for relief.

BY THE COMMISSION:

VICE PRESIDENT

Appearances:

B. Lawrence (counsel) for Mr G.A. Stewart.

B. Moore (counsel) for the University of Melbourne.

Hearing details:

1999.

Melbourne:

June 7, 8, 9 and 10;

July 27 and 29;

August 6 and 26.

ATTACHMENT A

LIST OF EXHIBITS

Exhibit

No.

Date

Tendered

Tendered

By

Description

Uni 1

7.6.99

B Moore

Respondent's documents (199 documents)

A1

7.6.99

B Lawrence

Witness statement of GA Stewart (with corrections)

A2

7.6.99

B Lawrence

Folder - Drug Receptors and Organ Function

A3

7.6.99

B Lawrence

Notes - Cardiovascular Biology in Veterinary Science - Appx C to letter to the Vice Chancellor dated 21 May

A4

7.6.99

B Lawrence

Memo from VP Studdert dated 24.11.97

A5

7.6.99

B Lawrence

Quality of Teaching Survey - Sem. 2, 1995

A6

8.6.99

B Lawrence

Witness statement of R Cahill (with corrections)

A7

8.6.99

B Lawrence

Witness statement of W Kimpton (plus attachment)

A8

9.6.99

B Lawrence

Witness statement of Mal Brandon

A9

9.6.99

B Lawrence

Witness Statement of Ian Walker

A10

10.6.99

B Lawrence

Two faxes re Veterinary Pharmacology examination papers dated 18.11.97 and 24.11.97 - and - application for leave for 18.11.97 to 20.11.97 inclusive

Uni 2

29.7.99

B Moore

Table - Summ/average teaching loads 1996

A11

29.7.99

B Lawrence

Extract - 1994 Faculty of Veterinary Science Annual Report (re impact value)

Uni 3

29.7.99

B Moore

Statement of Professor Studdert

Uni 4

29.7.99

B Moore

Statement of Professor Gilbert

A12

29.7.99

B Lawrence

Extract from the University Personnel Policy and Procedures Manual

A13

29.7.99

B Lawrence

Collage (framed with writing on back)

A14

29.7.99

B Lawrence

Description of collage (A13).

Uni 5

6.8.99

B Moore

Letter from Mr Stewart dated 17.5.96

A15

6.8.99

B Lawrence

Supplementary statement of Mr Stewart

A16

6.8.99

B Lawrence

Annual review of Uni 1997 & 1998 - extract

A17

6.8.99

B Lawrence

Journal citation reports - extract

Uni 6

26.8.99

B Moore

Statement of Victor Ivanov

A18

26.8.99

B Lawrence

Further statement of GA Stewart

A19

26.8.99

B Lawrence

Diary extract - 22, 23, 27 and 28 April 1998

A20

26.8.99

B Lawrence

Applicant's revised contentions

A21

26.8.99

B Lawrence

Applicant's reply to respondent's revised contentions

Uni 7

26.8.99

B Moore

Respondent's revised contentions

A22

16.9.99

B Lawrence

Fax from holding Redlich to to VP Ross dated 1.9.99 containing a letter to the respondent's solicitor

A23

16.9.99

B Lawrence

Fax from Holding Redlich to VP Ross dated 6.9.99 containing the "Second Reply of the Applicant"

A24

16.9.99

B Lawrence

Applicant's Response to the Draft Agreed Facts Document

Uni 8

16.9.99

B Moore

Respondent's Further Submission on the Applicant's Reply

Uni 9

16.9.99

B Moore

Observations of the Respondent to Paragraphs 21(a) - (c) of Professor Studdert's statement

Uni 10

16.9.99

B Moore

Amended observations of the Respondent to Paragraphs 21(a) - (c) of Professor Studdert's statement

Uni 11

16.9.99

B Moore

Copy of a letter from the Respondent's solicitors to Holding Redlich, dated 3 September 1999

Uni 12

16.9.99

B Moore

Respondent's Response to Draft Agreed Facts Document

ATTACHMENT B

EXHIBIT UNIVERSITY 1

Index of Documents

Doc. No.

Date

Description

1

27/7/1964

Letter from FH Johnston, Registrar to Mr GA Stewart

2

11/3/1991

Report by Head of Department to Mr GA Stewart's 1991 application for promotion

3

Undated

Letter from Mr GA Stewart to Associate Professor VP Studdert

4

25/3/1991

Letter from Mr GA Stewart to The Chairman and Committee, Academic Promotions Committee, University of Melbourne

5

4/6/1991

Letter from EA Bare to Associate Professor VP Studdert

6

26/6/1991

Letter from Associate Professor VP Studdert to Mr GA Stewart

7

28/6/1991

Letter from Mr GA Stewart to Associate Professor VP Studdert

8

9/7/1991

Letter from Associate Professor Studdert to Mr GA Stewart

9

14/7/1991

Letter from Mr GA Stewart to Associate Professor VP Studdert

10

29/7/1991

Letter from Associate Professor VP Studdert to Mr GA Stewart

11

1991

Annual Report of Mr GA Stewart

12

1991

Application for Appointment as Reader - Mr GA Stewart

13

23/3/1992

Memorandum from Professor VP Studdert to Mr GA Stewart

14

25/3/1992

Letter from Professor VP Studdert to Mr GA Stewart

15

15/4/1992

Memorandum from Professor VP Studdert to Mr GA Stewart

16

18/6/1992

Letter from Mr GA Stewart to Professor VP Studdert

17

18/6/1992

Letter from Mr GA Stewart to Professor VP Studdert

18

26/6/1992

Letter from Professor VP Studdert to Mr GA Stewart

19

20/7/1992

File note of Professor Ivan Caple

20

24/7/1992

Letter from Mr GA Stewart to Professor VP Studdert

21

2/11/1992

Letter from EA Bare to Mr GA Stewart

22

2/12/1992

Letter from Professor VP Studdert to Mr GA Stewart

23

1992

Report from Dean - Application for Promotion to Level D - Mr GA Stewart

24

1992

Report by Head of Department for Mr GA Stewart's 1992 promotion application

25

1992

Statement of Objectives -Teaching Veterinary Pharmacology - Mr GA Stewart

26

1992

Annual Report of Mr GA Stewart

27

1992

Statement of Objectives - Veterinary Pharmacology - Mr GA Stewart

28

10/3/1993

Minutes of Faculty Meeting held 10 March 1993

29

12/3/1993

Letter from Professor VP Studdert to Mr GA Stewart

30

16/6/1993

Minutes of Special Meeting held 16 June 1993

31

25/11/1993

Report to Faculty on Meeting 6/93 - 19.10.93 and Meeting 7/93 - 23.11.93

32

1993

Annual Report of Mr GA Stewart

33

1993

Statement of Responsibilities of Mr GA Stewart

34

3/5/1994

Letter from Professor Ivan Caple to Mr GA Stewart

35

3/5/1994

Letter from Mr GA Stewart to Professor Ivan Caple

36

4/5/1994

Statement of Responsibilities of Mr GA Stewart

37

22/12/1994

Letter from Professor Ivan Caple to Mr GA Stewart

38

1994

Annual Report of Mr GA Stewart

39

31/1/1995

Letter from Mr GA Stewart to Professor Ivan Caple

40

22/6/1995

Letter from Professor VP Studdert to Mr GA Stewart

41

26/6/1995

Letter from Professor VP Studdert to Mr GA Stewart

42

13/7/1995

Letter from Mr GA Stewart to Ms Peri Hall

43

11/12/1995

Letter from EA Baré to Mr GA Stewart

44

1995

Statement of Responsibilities of Mr GA Stewart

45

1995

Universities and Post Compulsory Academic Conditions Award 1995

46

26/9/1996

Worker's Claim for Compensation form of Mr GA Stewart

47

26/9/1996

Letter from Dr William Orchard to Dr V Hunt

48

27/9/1996

Application by Staff Member for Special Studies Program Longer than Two Months.

49

27/9/1996

Letter from Professor Ivan Caple to Mr GA Stewart

50

7/10/1996

Memorandum from Professor VP Studdert to Professor Ivan Caple

51

10/10/1996

Letter from Mr GA Stewart to Professor Ivan Caple

52

11/10/1996

Letter from Professor VP Studdert to Mr GA Stewart

53

14/10/1996

Letter from Professor Ivan Caple to Mr GA Stewart

54

18/10/1996

Letter from Mr GA Stewart to Ms EA Baré

55

23/10/1996

Letter from Dalila Laieb to Mr GA Stewart

56

30/10/1996

Letter from Professor VP Studdert to Mr GA Stewart

57

18/12/1996

Request for Conciliation

58

13/1/1997

Letter from Professor Ivan Caple to Mr GA Stewart

59

17/1/1997

Report by Head of Department re Application for Special Studies Program (Long)

60

11/2/1997

Letter from Professor VP Studdert to Professor Ivan Caple

61

14/2/1997

Certificate of Conciliation Outcome

62

7/3/1997

Letter from Professor VP Studdert to Mr GA Stewart

63

10/3/1997

Fax from Professor VP Studdert to Mr GA Stewart

64

10/3/1997

Fax from Mr GA Stewart to Professor VP Studdert

65

10/3/1997

E-mail from EA Baré to Professor VP Studdert

66

11/3/1997

File Note : Return to Work Meeting

67

12/3/1997

Workcover Certificate of Capacity

68

24/3/1997

Letter from Mr GA Stewart to Ms Peri Hall

69

25/3/1997

Letter from EA Baré to Mr GA Stewart

70

13/6/1997

Letter from Professor VP Studdert to Mr GA Stewart

71

11/9/1997

Letter from Professor VP Studdert to Professor Alan D Gilbert

72

15/9/1997

Letter from Professor Barry Sheehan to Mr GA Stewart

73

29/9/1997

Letter from Michael Pegg to Professor Barry Sheehan

74

2/10/1997

Letter from Mr GA Stewart to Professor BA Sheehan

75

23/10/1997

Letter from Holding Redlich to Professor VP Studdert

76

22/12/1997

Letter from Professor Alan D Gilbert to Mr GA Stewart

77

22/12/1997

Letter from Professor Alan D Gilbert to Professor VP Studdert

78

24/12/1997

Letter from Professor Frank P Larkins re: Research Orientation Workshop for new Academic Staff attaching timetable

79

26/12/1997

Letter from Professor VP Studdert to Mr GA Stewart

80

1997

Summary of Timelines for Mr GA Stewart to provide Professor VP Studdert with written information on objectives

81

1997

Research Plan for Veterinary Pharmacology and Cardiology prepared by Mr GA Stewart during 1998 review period

82

1997

University of Melbourne Enterprise Agreement 1997

83

7/1/1998

Letter from Sue Wright to Professor Alan Gilbert

84

8/1/1998

Letter from Alan D Gilbert to Mr Michael Pegg

85

13/1/1998

Letter from Alan D Gilbert to Mr Michael Pegg

86

14/1/1998

Letter from Mr GA Stewart to Professor VP Studdert

87

14/1/1998

Record of Meeting between Professor VP Studdert, Mr GA Stewart, Mr Pegg and Ms Cooper held on 14 January 1998

88

27/1/1998

Letter from Mr GA Stewart to Professor Alan D Gilbert

89

28/1/1998

Letter from Mr GA Stewart to Ms Wendy Cooper

90

31/1/1998

Letter from Mr GA Stewart to David Deam, Jeremy Mannix and Bruce Parry

91

31/1/1998

Note on Status of Preparation of Another Paper

92

3/2/1998

E-mail from Professor VP Studdert to Wendy Cooper

93

4/2/1998

Letter from Professor Alan Gilbert to Mr GA Stewart

94

4/2/1998

Letter from Wendy Cooper to Mr GA Stewart

95

6/2/1998

Letter from Mr GA Stewart to Wendy Cooper

96

13/2/1998

Letter from Wendy Cooper to Mr GA Stewart

97

20/2/1998

Fax from Professor VP Studdert to Ms Wendy Cooper

98

23/2/1998

File note - Professor VP Studdert

99

24/2/1998

Fax from Mr GA Stewart to Professor VP Studdert

100

24/2/1998

Letter from Professor VP Studdert to Dr R Fraser

101

25/2/1998

Letter from Dr R Fraser to Professor VP Studdert

102

27/2/1998

File note of Professor VP Studdert

103

27/2/1998

Memorandum from Professor VP Studdert to Mr GA Stewart

104

27/2/1998

Letter from Mr GA Stewart to Professor V Studdert attaching Veterinary Pharmacology Outline of Practical Examination

105

4/3/1998

Fax from Mr GA Stewart to Professor VP Studdert

106

5/3/1998

Letter from Wendy Cooper to Mr GA Stewart, Professor Studdert and Mr R Thomas (NTEU)

107

5/3/1998

Record of Review Meeting held 18/2/1998

108

13/3/1998

Record of meeting on 13/3/1998

109

27/3/1998

Letter from Wendy Cooper to Professor VP Studdert, Mr GA Stewart, and Mr R Thomas

110

30/3/1998

Letter from Dr William H Orchard to Ms Wendy Cooper

111

1/4/1998

Letter from Professor VP Studdert to Dr William H Orchard

112

1/4/1998

Letter from Professor VP Studdert to Dr William H Orchard

113

2/4/1998

Letter from Professor VP Studdert to Dr William H Orchard

114

2/4/1998

Letter from Dr William H Orchard to Professor VP Studdert

115

7/4/1998

Letter from Professor VP Studdert to Mr GA Stewart

116

8/4/1998

Letter from Mr GA Stewart to Professor VP Studdert

117

17/4/1998

Letter from Professor VP Studdert to Mr GA Stewart

118

20/4/1998

Letter from Dr William H Orchard to Professor VP Studdert

119

20/4/1998

Memorandum from Professor VP Studdert to Mr GA Stewart

120

22/4/1998

Letter from Professor VP Studdert to Dr Orchard

121

22/4/1998

Letter from Professor VP Studdert to Mr GA Stewart

122

11/5/1998

Letter from Professor VP Studdert to Professor Alan D Gilbert

123

11/5/1998

Letter from Professor VP Studdert to Professor Alan D Gilbert

124

15/5/1998

Fax from Mr GA Stewart to Professor Alan D Gilbert

125

20/5/1998

Fax from Mr GA Stewart to Professor Alan D Gilbert

126

20/5/1998

Letter from Alan D Gilbert to Mr GA Stewart

127

19-21/5/1998

Letter from Mr GA Stewart to Professor Alan D Gilbert

128

25/5/1998

Memorandum from EA Baré to the Professor Alan D Gilbert

129

1/6/1998

Letter from Alan D Gilbert to Dr William H Orchard

130

12/6/1998

Memorandum from EA Baré to Professor Alan D Gilbert

131

23/6/1998

Letter from Alan D Gilbert to Mr GA Stewart

132

6/7/1998

Letter from Dr William H Orchard to Professor Gilbert

133

7/7/1998

Letter from EA Baré to Mr GA Stewart

134

7/7/1998

Letter from Professor Alan D Gilbert to Mr GA Stewart

135

14/7/1998

Letter from Mr GA Stewart to Professor Alan D Gilbert

136

28/7/1998

Letter from Professor Alan D Gilbert to Mr GA Stewart

137

23/11/1998

Letter from Associate Professor Jenny Morgan to Professor Alan Gilbert attaching Unsatisfactory Performance Review Committee report

138

1/12/1998

Memorandum from E Baré to Professor Alan Gilbert

139

1998

Table of Schedule of Lectures and Practical Classes 1998

140

1998

Letter from Ian D Walker to Associate Professor Jenny Morgan

141

1994

Extract from Report of 1994 Veterinary Schools Accreditation Committee.

142

Undated

Position Classification Standards (extract of University of Melbourne Personnel Policy and Procedures Manual)

143

Undated

Handwritten notes on attendance of Mr GA Stewart219

144

Undated

Notice of consultation times

145

8/10/1996

Letter from Dr William Orchard to Whom It May Concern

146

17/1/1997

Letter from Dr William Orchard to Dalila Laieb

147

21/11/1997

Letter from Mallesons Stephen Jaques to Holding Redlich

148

7/1/1998

Letter from Professor VP Studdert to Mr GA Stewart

149

24/2/1998

Letter from Professor VP Studdert to Mr GA Stewart

150

19/5/1998

Letter from Dr William Orchard to Professor Alan Gilbert

151

20/8/1998

Letter from Associate Professor Morgan to Rhidian Thomas

152

23/11/98

Letter from Associate Professor Morgan to Mr GA Stewart, attaching report of the Unsatisfactory Performance Review Committee

153

Undated

Cover letter from Wendy Cooper to Professor VP Studdert, Mr GA Stewart and Mr M Pegg (regarding Minutes of Meeting on 14/1/1998)

154

Undated

Opening submissions of the University to the Unsatisfactory Performance Review Committee

155

Numerous

Appendix A to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

156

Numerous

Appendix B to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

157

Numerous

Extract from Appendix D to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

158

Numerous

Appendix E to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

159

Numerous

Appendix F to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

160

Numerous

Appendix G to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

161

Numerous

Appendix H to Mr GA Stewart's letter to Professor Alan Gilbert dated 21 May 1998.

162

17/9/1998

Letter from Associate Professor W Kimpton to Associate Professor J Morgan

163

21/9/1998

Letter from Professor R Cahill to Mr GA Stewart

164

21/9/1998

Letter from Dr M Brandon to Mr GA Stewart

165

1998

Year Planner for the months January to May 1998

166

8/4/98

Application for sick leave and annual leave made by Mr GA Stewart

167

Various

Documents relating to the draft paper on ionised calcium in horses for Journal of Applied Physiology

168

1998

Final draft of paper on ionised calcium in horses for Journal of Applied Physiology

169

1997

1997 Pharmacology lecture notes

170

1998

Revised pharmacology lecture notes

171

6/12/89

Minutes of Meeting on 6 December 1989 for the Faculty of Veterinary Science.

172

13/9/96

Facsimile from Peri Hall to Professor Caple and Professor Studdert.

173

11/10/96

File note of Elizabeth R Lightfoot re Mr Stewart

174

1997

Publications for 1997 for the Department of Veterinary Science.

175

6/1/97

Memorandum from Professor VP Studdert to Dr W Kimpton and Dr Brandon

176

31/1/98

Draft paper entitled "Changes in Plasma Ionized Calcium and Other Electrolytes Following Endurance Exercise in Horses" and including copy envelope.

177

22/12/92

Letter from E A Baré to Mr G A Stewart with handwritten notes of J McQuillan.

178

10/10/96

Workcover Certificate of Capacity of Mr G A Stewart.

179

18/9/96

Workcover Certificate of Capacity of Mr G A Stewart.

180

Undated

Documents concerning Impact Factor.

181

18/12/96

Memorandum from Professor Frank P Larkins to Deans of Faculties.

182

28/2/95

Document setting out Overview of Equine Research Activities for RIRDC.

183

1999

Funding for equine research for 1995/1996, 1996/1997, 1997/1998 and 1998/1999

184

Various

Documents relating to RIRDC Funded Equine Project for the years 1995/1996, 1996/1997, 1997/1998 and update as at June 1998.

185

Dec 1996

R & D Plan for the Equine Industry Program 1996 - 2001

186

1995

Notice of Meeting for Equine Research Fund Committee to be held on 28 July 1995.

187

1995

Minutes of Meeting held on 28 July 1995 for the Equine Research Fund Committee.

188

1995

Application by Mr G A Stewart to the Melbourne University Equine Research Fund Committee for funds 1995/96.

189

14/7/93

Application for Project Grant Support, National Health and Medical Research Council.

190

1998

Infrastructure Grants to Faculty of Veterinary Science 1993 - 1998.

191

Undated

Summary of 1998 Budget, Faculty of Veterinary Science.

192

Undated

Faculty of Veterinary Science allocation of monies for the years 1993 - 2000.

193

Undated

Revised average teaching loads for 1996.

194

Undated

Summary/average teaching loads for 1997.

195

Undated

Teaching loads for the period 27/12/97 to 27/4/98.

196

Undated

First year and second year Veterinary Science timetable, by semester, for 1996.

197

Undated

Time table by semester for the years 1996 and 1997 and first semester 1998, showing teaching load for Mr Stewart only.

198

Undated

First and second year Veterinary Science timetable for 1997 with Mr Stewart's teaching load highlighted.

199

Undated

First and second year Veterinary Science timetable for the first semester 1998 with Mr Stewart's teaching load highlighted.

ATTACHMENT C

26 December 1997

CONFIDENTIAL

Mr G Stewart

"Dundryad"

Chadwick Road

Harkaway, Victoria 3806

Dear Tony

Unsatisfactory Performance Review

You will be aware that the Vice-Chancellor has responded to my report of 11 September 1997 by referring the matter back to me under the provisions of the Universities and Post-Compulsory Academic Conditions Award 1995, to ensure that all the steps referred to in sub-clause 11(d) of the Award have been complied with.

In order to comply with the Vice-Chancellor's requirements and in the context of the University performance of a Senior Lecturer (Level C), I will set out expected performance objectives and a procedure to review your performance.

However, I should first make it clear that, as your academic supervisor, the central question for my consideration during the review process will be whether your work performance has attained a satisfactory level, and I wish to work with you to achieve that objective. I should also make it clear that the work performance assessment we will be undertaking is being carried out under the provisions of clauses 9 and 11 of the Award. In working towards the objective of satisfactory work performance, you must nonetheless be aware that it may become necessary for me to further report to the Vice-Chancellor if, given the factors referred to in the Award, I nonetheless conclude after review that you have not attained a satisfactory level of performance.

Whilst your performance in respect of the specific issues set out in this letter will be the main focus of the review meetings discussed later, and I will endeavour to assist you in achieving the specific objectives, you are of course required generally to comply with reasonable performance requirements as set out in the Position Classification Standards and Promotions Criteria for a Senior Lecturer (Level C) at the University of Melbourne.

Certain deficiencies in your performance in teaching, research, administration and management of leave entitlements during the period March to June 1997 were discussed in our meeting on 3 June and summarised in my letter to you dated 13 June 1997. Those deficiencies remain of concern.

Performance issues of concern in the second half of 1997 include failure to comply with requests for setting the Semester 2 examination paper by the required deadline and late submission of examination results for Semesters 1 and 2. Although illness was cited as a factor contributing to delays in the latter, there seemed to be adequate time before (3 weeks in the case of Semester 1 Exams) and after (5 days in the case of Semester 2 exams) to complete the task. In all cases, your failure to meet deadlines was a cause of very considerable additional workload for other staff and put the faculty's obligations to meet University requirements at risk.

Similarly, without any apparent or proffered reasons, you failed to meet requests or delayed in response to my requests - for copies of your lecture notes (11 days overdue), costing of Semester 2 practical classes (never received) and in providing details of Semester 2 practical examination (never received).

You still have not given me any information suggesting that you have been undertaking active research, arranging for or participating in collaborations or that your have been pursuing preparation of work for publication, despite these requirements being discussed in our meetings and correspondence relating to your performance early in the year.

I would be happy to receive any written response to these concerns prior to our meeting in January, referred to later.

Objectives

In setting a number of specific objectives for you, I refer below to the specific duties required of a Level C academic, as outlined in the University's Personnel Policy & Procedures.

Teaching

· The conduct of tutorials, practical classes etc.

· The preparation and delivery of lectures and seminars.

Your classroom duties in 1998 will, in general, be similar to those of 1997. They will include delivery of specified lectures in Veterinary Pharmacology and Veterinary Physiology 1. You will again contribute to the supervision and conduct of practical classes in both subjects, but since you now have prior experience with those exercises you commenced in 1997, I expect a higher level of responsibility with more assistance given in each case.

With the introduction of a new undergraduate curriculum, there will be some significant variations in timetabling and sequence of teaching in these subjects, as well as some teaching being transferred to the new subject, Veterinary Professional Studies. There will also be some changes to lecture topics in Veterinary Pharmacology as the first step in development of teaching in toxicology, in response to recommendations made by the Australian Veterinary Schools Accreditation Committee in its reviews in 1988 and 1994. I will provide you with further details of the changes affecting your teaching at our meeting in January, but you should also consult with the relevant subject and year coordinators. Dr. Wayne Kimpton can advise you of changes to practical classes in Veterinary Physiology 1, particularly during Semester 1, and the 1st Year timetable. Dr. Ian Walker is Coordinator of the new 1st year subject, Veterinary Biochemistry and Pharmacology. He will be able to advise you on the pharmacology segment which will be given in Semester 2.

Because a major objective of the new curriculum is closer integration between subjects and disciplines, it will be necessary for you to review and revise accordingly the content of your pharmacology lectures and lecture notes used in the 1st year teaching to ensure you are achieving this. Most of these changes occur in Semester 2 so you will have until mid-year to complete this. However, I expect work to commence on these matters now, and substantial progress to have been made during Semester 1 and this will be discussed on a regular basis.

An apparent deficiency in your cardiovascular lecture notes has been brought to my attention. You currently have scheduled an entire lecture on antiarrythmic drugs, but there are no lecture notes covering this important topic. Since these lectures will be given in April, you should have your notes revised to include this material and copies sent to me by 31 March 1998.

You will be aware from discussions in faculty and department meetings and teaching review meetings throughout 1997 that a major target in the University's operational plan for 1998 is increased use of multimedia in the undergraduate teaching. As you are aware, there has been an Information Technology Working Group in the Department, and in the first instance you should contact Associate Professor Kevin Whithear to obtain advice on how you might make best utilisation of multimedia in your teaching, as well as investigating how other veterinary faculties, in Australia and internationally, utilise the World Wide Web and multimedia in their teaching programs. By end February 1998, I would like you to provide me with details in writing of what action you have taken to meet this objective. This should include a drafted outline of the computer-based practical examination for Veterinary Pharmacology you said you wanted to develop in 1997.

As well as informing students in lectures, you should display a notice at the Preclinical Centre that informs students when you will be available for consultation during the teaching period and forward a copy of this notice to me by 2 March. This should be a minimum of 4 hours over at least 2 days per week. You will be expected to be available in the Preclinical Centre at those times. This requirement does not mean that you should not be reasonably available to students to assist them as part of your duties at other times (e.g. after lectures and practical classes) - which continues as an obligation.

You will be expected to carry out these responsibilities as stipulated by the Subject Coordinators, the Chief Examiner and the Assistant Registrar. This includes meeting all deadlines for setting papers and reporting of results. In the period to 31 March, this will include Special and Supplementary examinations in January.

Research

Your lack of refereed publications, external research funding and postgraduate supervision in recent years has been discussed with you previously.

Over several years you have reported that various publications were in preparations. Early in 1997 you indicated that you were preparing a publication on work carried out by your Bachelor of Animal Science student in 1996. If a paper on this work has been submitted already, please let me know when and to whom it was submitted and provide a copy of it to me. If a paper has not been submitted, please inform me in writing, of the reasons with an accompanying timetable for submission.

In any case, by 31 January you should submit to a refereed journal at least one of the papers arising from your own original research which has been in the course of preparation but which has not already been submitted. In addition, you should have another publication in the final stages of preparation for submission to a refereed journal by 31 March. Please provide copies of your papers and correspondence with the journals concerned upon dispatch or upon receipt to me.

Early in 1997 I directed you to prepare a plan for development of your research activities, including provision for applications for funding or confirmation of specific collaborative links. As I have not yet seen such a plan, please provide the plan to me by 15 January, as well as copies of any grant applications you submitted in 1997.

By 31 March, you should give me detailed evidence of progress you have made in following this plan, including copies of grant applications you have prepared for submission in 1998.

You should already be familiar with the likely sources of external funding for the areas of your research, but assistance in identifying others and in the preparation of grant applications is also available through the Office for Research and from the Associate Dean of Research, Professor Michael Studdert, and Professor Ron Slocombe, who both work in areas of equine research. Please advise me in writing if you are planning on pursuing other areas more closely related to your pharmacology interests. Professor James Angus in the Department of Pharmacology should be able to be of assistance to you in this regard. As you are aware, the responsibility remains with you to prepare applications of an appropriate kind and of a proper standard.

You should also provide me with written details on steps you are taking to develop a postgraduate training program in veterinary pharmacology or cardiology, or collaborations you have entered into which permit you to participate in postgraduate supervision in 1998. To assist you in this, you should attend a "Research Orientation Workshop for New Academic Staff" which is to be given by the Office for Research and Graduate Studies on Friday, 13 February from 9.00 am to 2.00 pm. I will forward details to you.

You will recall that in 1994 the Dean recommended to you that your research and productivity would be greatly assisted by moving your centre of activity to Werribee, where you would have opportunities to develop a number of your interests and make greater contributions to the academic and research objectives of the department and faculty. I reiterate this suggestion as it provides the greatest opportunities for you to fully participate in the Department.

Administration

Level C academics are expected to contribute to the wide range of administrative duties in the faculty and department. This is only possible if you are present at the workplace. During the period under review , you are directed to notify the Assistant Registrar's office when you are

in the Preclinical Centre and when you are going to be away. You should be present at the University during normal working hours, as a general rule, unless you are undertaking teaching or research activities at Werribee or elsewhere as a direct consequence of you duties.

At this stage, I do not propose to provide any specific administrative duties (other than those ordinarily associated with your teaching and research duties), so that you have a full opportunity to meet the other required objectives and undertake in the immediate future the tasks associated with teaching and research which have been set out earlier in this letter. Depending on how matters progress, you may be required to undertake administrative tasks in the same way as are other members of the Department from time to time.

Annual Leave

As you are aware from recent correspondence, your annual leave balance currently exceeds that permitted by the University. However, since you have not responded to my requests in respect of reducing that balance, and because work on achieving satisfactory performance should be commenced immediately, I propose to defer any action in relation to your annual leave until after the review on 31 March 1998.

Consultation with colleagues

As part of this performance review, I will be consulting with your work colleagues on a regular basis to discuss your progress towards meeting specific targets, where appropriate.

Review procedures and meetings

A meeting with you will be held in the Dean's Conference Room at the Veterinary Preclinical Centre, Parkville on 15 January at 9.30 am to discuss the matters raised in this letter and to clarify any issues as to the University's work performance requirements. If you wish, you may have a representative of the NTEU attend that meeting.

In order to assist you and monitor your progress in meeting these objectives, I will also schedule regular meetings during the period under review, the timing of which will be discussed at our meeting on 15 January, with a final review on 31 March 1998. If you are experiencing difficulties at any time during this period of review, please inform me immediately.

The purpose of the 31 March review will be for me to determine whether the requisite standards are being met, and whether further monitoring of performance or other steps are appropriate, or whether other steps (such as a further report to the Vice-Chancellor) should be followed.

Although I recognise that it can be difficult to successfully work through a performance review, I intend to make every reasonable effort to help you to achieve satisfactory levels of work performance, and I trust that you will enter into the process in the same spirit.

Yours sincerely

Professor V P Studdert

Head, Department of Veterinary Science

Decision Summary

   

Termination of employment - unfair dismissal - academic employed 33 years - termination followed performance assessment below level reasonably expected of senior lecturer - award prescribes unsatisfactory performance disciplinary process - initial assessment reviewed - committee determined performance review complied with award requirements but did not examine merits of assessment - performance requirements fair, reasonable and achievable - assessment neither rendered deficient because teaching not qualitatively assessed nor unfair/inappropriate on basis of subjective judgment and quantitative approach adopted - assessor objective and not biased - valid reason for termination - reason for termination notified and opportunity to respond provided - applicant previously informed performance caused concern and formally warned performance considered unsatisfactory via correspondence initiating review - applicant provided fair go all round - termination not harsh, unjust or unreasonable - application dismissed.

Stewart v University of Melbourne

U No 30073 of 1999

Print S2535

Ross VP

Melbourne

20 January 2000

Printed by authority of the Commonwealth Government Printer

<Price code L>

** end of text **

1 See Exhibits A1, A15 and A18.

2 See Exhibit A6.

3 See Exhibit A7.

4 See Exhibit A8.

5 See Exhibit A9.

6 See Exhibit University 3.

7 See Exhibit University 4.

8 See Exhibit University 6. Note: this witness' statement was tendered as evidence, however the witness was not required to be called for cross-examination.

9 See document 1 of Exhibit University 1.

10 See document 142 of Exhibit University 1.

11 See documents 2, 4, 5, 9 and 10 of Exhibit University 1.

12 See documents 12, 18, 20 and 21 of Exhibit University 1.

13 See document 46 of Exhibit University 1.

14 See document 55 of Exhibit University 1.

15 Exhibit A1 at paragraph 30.

16 See document 43 in Exhibit University 1 and Professor Studdert's statement, Exhibit University 3 at paragraph 29.

17 Document 1 of Exhibit University 1 and Exhibit A1 at paragraph 30.

18 Professor Studdert's statement, Exhibit University 3 at paragraph 21.

19 Document 71 of Exhibit University 1

20 U0107 A M Print M6477, see document 45 of University 1.

21 See document 82 of Exhibit University 1.

22 See document 74 of Exhibit University 1.

23 Evidence of Mr Stewart, transcript, 7 June 1997, p.37 at lines 3-9.

24 See evidence of Professor Gilbert, transcript, 29 July 1999 at p.439.

25 See document 76 of Exhibit University 1.

26 See document 79 of Exhibit University 1. This letter is referred to as the review letter elsewhere in this decision.

27 See document 83 of Exhibit University 1.

28 See document 85 of Exhibit University 1.

29 Document 86 of Exhibit University 1.

30 Document 88 of Exhibit University 1.

31 See document 88 of Exhibit University 1 at p.2.

32 See paragraph 14 of this document and document 71 of Exhibit University 1.

33 See document 93 of Exhibit University 1.

34 See documents 80, 87, 89, 94, 95 and 96 of Exhibit University 1.

35 See documents 106 and 107 of Exhibit University 1.

36 See document 108 of Exhibit University 1.

37 See Exhibit University 3 at paragraph 67; Mr Stewart's evidence, transcript, 9 June 1999 at p.268; document 108 of Exhibit University 1.

38 See document 97 of Exhibit University 1.

39 Document 107 of Exhibit University 1.

40 Document 101 of Exhibit University 1, see also documents 99 and 100 of Exhibit University 1.

41 See document 103 of Exhibit University 1.

42 See document 105 of Exhibit University 1.

43 See Exhibit University 3 at paragraph 62.

44 Transcript, 7 June 1999, p.40 at lines 21-25, p.67 at lines 25-31 and p.68 at lines 1-28 per Mr Stewart and document 117 of Exhibit University 1.

45 Transcript, 7 June 1999, p.40 at lines 25-31, p.40 at lines 29-30 and p.69 at lines 15-25 and document 155 of Exhibit University 1.

46 For example see transcript, 8 June 1999 at pp.168-208 and 6 August 1999 at pp.550-551 and Exhibit A15.

47 See document 110 of Exhibit University 1.

48 See documents 111 and 112 of Exhibit University 1.

49 Document 112 of Exhibit University 1.

50 Document 113 of Exhibit University 1.

51 See document 114 of Exhibit University 1.

52 See document 166 of Exhibit University 1.

53 See document 117 of Exhibit University 1.

54 See document 118 of Exhibit University 1.

55 See document 120 of Exhibit University 1.

56 See document 121 of Exhibit University 1.

57 See document 155 of Exhibit University 1.

58 See documents 122 and 123 of Exhibit University 1.

59 See document 124 of Exhibit University 1.

60 Document 126 of Exhibit University 1.

61 See document 150 of Exhibit University 1.

62 See document 127 of Exhibit University 1.

63 See document 131 of Exhibit University 1.

64 Exhibit A1 at paragraph 56.

65 See document 134 of Exhibit University 1.

66 See document 132 of Exhibit University 1.

67 See document 135 of Exhibit University 1.

68 See document 136 of Exhibit University 1.

69 See document 137 of Exhibit University 1.

70 Exhibit University 4 at paragraph 51.

71 (1995) 185 CLR 410.

72 At p.467 of the joint judgment their Honours said: "... it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase `harsh, unjust or unreasonable' in any other setting".

73 See the applicant's revised contentions, Exhibit A20 at paragraph 30.

74 See Mr Stewart's statement, Exhibit A1 at paragraph 18 and transcript, 9 June 1999, p.276 at lines 13-40 and p.317 at lines 17-20.

75 Evidence of Dr Brandon, transcript, 9 June 1999 at p.319.

76 Professor Gilbert's statement, Exhibit University 4 at paragraph 54.

77 This evidence is dealt with in the course of Mr Stewart's evidence, transcript, 9 June 1999 at pp.276 - 282 and 288.

78 See Professor Cahill's evidence, transcript, 8 June 1999, p.219 at lines 3-25 when asked if he had any concern about being victimised he replied "I guess not, really, suppose. Not really."; Dr Kimpton's evidence, transcript, 8 June 1999, p.232 at lines 6-12; Dr Brandon's evidence, transcript, 9 June 1999 at p.318 where he said "I'm quite confidant the university will not try to impact upon me in any way due to the importance that I hold within it."; Dr Walker's evidence, transcript, 9 June 1999 at pp. 343 and 351. In relation to the latter reference Dr Walker expresses the view that he now has a concern about being victimised because of the narrow focus of the review committee process. It is not suggested that he felt that Professor Studdert would seek to victimise him.

79 See Exhibit University 3, paragraph 156.

80 See transcript, 9 June 1999 at p.344.

81 Exhibit University 3.

82 Transcript, 8 June 1999, p.232 at lines 13-33.

83 Transcript, 9 June 1999 at p.280.

84 Transcript, 9 June 1999 at p.287.

85 Exhibit University 3 at paragraph 127; also see document 59 of Exhibit University 1.

86 Exhibit A1 at paragraph 30.

87 Exhibit University 3 at paragraph 134.

88 See document 55 of Exhibit University 1.

89 Transcript, 8 June 1999, p.210 at lines 18-20.

90 Transcript, 8 June 1999, p.209 at lines 23-34 and p.210 at lines 1-17.

91 Exhibit University 3.

92 Transcript, 9 June 1999 at pp.285-286.

93 Exhibit University 4 at paragraph 16.

94 Exhibit University 4 at paragraph 28.

95 Professor Studdert's statement, Exhibit University 3 at paragraph 31; transcript, 6 August 1999, p.534 at lines 27-36 and pp. 535-538.

96 Transcript, 6 August 1999, p. 538 at lines 16-20.

97 Transcript, 6 August 1999, p. 538 at lines 21-30.

98 Professor Studdert's statement, Exhibit University 3, at paragraphs 41-42; transcript, 6 August 1999, p.537 at lines 3-7.

99 The relevant extracts from the transcript of 6 August 1999 appear at pp.541 - 543.

100 Document 79 of Exhibit University 1.

101 See document 87 of Exhibit University 1 and paragraphs 63 and 85 of Exhibit University 3.

102 Exhibit A20, revised contentions of the applicant.

103 See paragraph 12 infra.

104 Exhibit A20 at paragraph 17.

105 Exhibit University 3 at paragraph 24.

106 See Exhibit University 3 at paragraph 22.

107 Exhibit University 3 at paragraph 18.

108 See Exhibit A1 at paragraph 33.

109 See document 71 of Exhibit University 1.

110 See Exhibit A1 at paragraph 40.

111 Exhibit A8 at paragraph 8.

112 See transcript, 9 June 1996 at pp.325-326.

113 See Exhibit A9 at paragraph 7.

114 Transcript, 9 June 1999 at pp.319-320.

115 Transcript, 9 June 1999 at p.346.

116 Transcript, 9 June 1999 at p.347; also see Dr Brandon's evidence, transcript, 9 June 1999 at pp.325-326.

117 See Exhibit University 3 at paragraphs 50-66.

118 Document 11 of Exhibit University 1 at p.5.

119 Document 25 of Exhibit University 1.

120 Document 26 of Exhibit University 1 at p.6.

121 Ibid.

122 Document 39 of Exhibit University 1 at p.10.

123 Document 172 of University 1 at p.2.

124 Exhibit University 3 at paragraphs 48 and 84.

125 Transcript, 8 June 1999 at pp.188-189.

126 Transcript, 8 June 1999, p.114 at lines 1-5.

127 Transcript, 9 June 1999, p.253 at line 27.

128 See documents 193-199 of Exhibit University 1. In relation to oral evidence see, for example, Professor Studdert's evidence, transcript, 27 July 1999 at pp.410-413; Mr Stewart's evidence, transcript, 9 June 1999 at pp.250-254 and Exhibit A15.

129 See Mr Stewart's evidence, transcript, 7 June 1999 at p.46.

130 See Mr Stewart's evidence, transcript, 9 June 1999 at pp.296-302.

131 See document 88 of the Exhibit University 1 at p.3.

132 For example see paragraphs 34-52 of this decision.

133 In this context I am referring to Mr Stewart's ulcerative colitis and the injury he sustained when kicked by a horse. I have also had regard to his absence to attend to his daughter - see paragraph 39 of this decision.

134 See Exhibit University 3 at paragraph 63 and document 121 of Exhibit University 1.

135 Document 101 of Exhibit University 1.

136 See documents 110, 114 and 118 of Exhibit University 1.

137 See document 110 of Exhibit University 1.

138 Document 91 of Exhibit University 1 was referred to in this regard.

139 Evidence of Mr Stewart, transcript, 8 June 1999, p. 125 at lines 28-32; p.126 at lines 1-5.

140 Evidence of Mr Stewart, transcript, 9 June 1999 at p.273.

141 See document 82 of Exhibit University 1.

142 See document 93 of Exhibit University 1.

143 See documents 89, 94, 95 and 96 of Exhibit University 1.

144 Document 96 of Exhibit University 1.

145 See document 127 of Exhibit University 1.

146 See document 107 of Exhibit University 1; also see Mr Stewart's cross-examination on this issue, transcript, 8 June 1999 at pp.127-141.

147 See document 121 of Exhibit University 1.

148 There is some inconsistency in the University's submissions on this point. At paragraph 54 of Exhibit University 7 it is said that Mr Stewart did not attend 9 of the 18 practical classes. Yet Attachment C to that exhibit identifies 11 occasions on which it was said Mr Stewart was absent from these classes. On closer examination one of the 11 absences specified - 3 March 1998 - did not relate to day on which practical classes were scheduled - see document 199 in Exhibit University 1.

149 See document 155 of Exhibit University 1.

150 See document 155 of Exhibit University 1.

151 See transcript, 7 June 1999 p.69 at lines 26-28.

152 See document 166 of Exhibit University 1.

153 See document 117 of Exhibit University 1.

154 For example see transcript, 9 June 1999 at pp 266-267.

155 For example see transcript, 7 June 1999, p.68 at lines 1-18.

156 For example see transcript, 8 June 1999, p.166 at lines 1-2; 9 June 1999 at p.268.

157 See Mr Stewart's evidence, transcript, 7 June 1999, p.40 at lines 16-31 and at pp.68-69; transcript, 9 June 1999 at pp.276-278 and p.287.

158 See Exhibit A18.

159 Transcript, 26 August 1999, p.603 at lines 1-10.

160 Transcript, 8 June 1999, p.171 at lines 10-20; 26 August 1999, p.603 at lines 11-26 and Exhibit A18 at paragraph 5.

161 See Exhibit University 6.

162 Annexure V1-2 to Exhibit University 6.

163 See Exhibit A18 at paragraph 7.

164 Transcript, 26 August 1999 at pp.597-598.

165 Document 79 of Exhibit University 1.

166 Document 79 of Exhibit University 1.

167 Document 116 of Exhibit University 1.

168 See Attachment D of Mr Stewart's letter to Professor Gilbert dated 21 May 1998 - Document 157 of Exhibit University 1.

169 See documents 127 and 157 of Exhibit University 1.

170 Document 122 of Exhibit University 1 at p.3 and Mr Stewart's evidence, transcript, 8 June 1998, p.173 at lines 12-18.

171 See Exhibit A20 at paragraph 58 and Exhibit A21 at paragraph 21.

172 See document 104 of Exhibit University 1.

173 See generally transcript, 8 June 1999 at pp.178-182.

174 Documents 104 and 144 of Exhibit University 1.

175 Exhibit University 7.

176 See paragraph 24 of Exhibit A21 and the University's reply at paragraph 34 of Exhibit University 8.

177 See transcript, 7 June 1998 at pp.50-53.

178 See document 159 of Exhibit University 1.

179 Transcript, 8 June 1999 at p.140.

180 See document 91 of Exhibit University 1.

181 See paragraph 141 - 149 infra.

182 See document 127 of Exhibit University 1 at p.4.

183 See document 62 of Exhibit University 1 at p.2.

184 See document 160 of Exhibit University 1.

185 Document 127 of Exhibit University 1.

186 See documents 80 and 87 of Exhibit University 1.

187 See paragraph 77 of Exhibit University 3.

188 Document 143 of Exhibit University 1.

189 See paragraph 127 infra.

190 See paragraph 173 infra.

191 See Exhibit University 3 at paragraph 69 and Mr Stewart's evidence, transcript, 8 April 1999 at p.195 and 9 June 1999 at p.268.

192 See document 115 of Exhibit University 1.

193 See document 116 of Exhibit University 1.

194 See document 117 of Exhibit University 1.

195 See document 121 of Exhibit University 1.

196 Exhibit University 3 at paragraphs 75-76, and see Mr Stewart's evidence, transcript, 9 June 1999 at p.271.

197 Transcript, 9 June 1999 at p.272.

198 See Mr Stewart's evidence, transcript, 8 June 1999 at p.171.

199 See Mr Stewart's evidence, transcript, 9 June 1999 at pp.272-273.

200 Document 131 of Exhibit University 1.

201 Document 134 of Exhibit University 1.

202 See document 135 of Exhibit University 1.

203 Paragraph 51 of Exhibit University 1.

204 See document 123 of Exhibit University 1.

205 Document 126 of Exhibit University 1.

206 See document 127 of Exhibit University 1.

207 See document 131 of Exhibit University 1 and paragraphs 32 - 51 of Exhibit University 4.

208 See evidence of Dr Brandon, transcript, 9 June 1999 at p.321 and paragraph 19 of this decision generally.

209 Document 71 of Exhibit University 1.

210 See document 76 of Exhibit University 1.

211 Transcript, 7 June 1999, p.39 at lines 27-28.

212 Unreported, AIRC, per Giudice P, Polites SDP and Gay C, 13 July 1998, Print Q3462.

213 [1971] AR (NSW) 95.

214 [1971] AR (NSW) 95 at 99.

215 Print R3130, 18 March 1999 per Giudice P, Polites SDP and Gregor C, at paragraph 13.

216 Banh v Bridgestone TG Australia Pty Ltd, unreported, AIRC, per McIntyre VP, Duncan DP and Jones C, 27 July 1998, Print Q4039.

217 See paragraphs 141 - 149 infra.

218 ABS, Labour Force, Australia, Cat No. 6203.0, November 1999, Table 27 on p.45.

219 Objection upheld - no weight attached.