Anderson v Edith Cowan University

Background 7 Mr Anderson is 51 years old. Until 1990 he lived in the United Kingdom with his wife and children. His qualifications include a Bachelor of Jurisprudence and Master of Jurisprudence from Oxford University; a certificate in youth work; a postgraduate certificate in Social Administration and Social Policy from Birmingham University; a postgraduate diploma in Social Work from Birmingham University and a Master of Education from Liverpool University. He has recently submitted for marking his thesis for a Doctor of Philosophy from Murdoch University. 8 Before he moved to Australia in 1990, Mr Anderson had gained significant experience in lecturing, management and social work. 9 While he was still resident in the United Kingdom, Mr Anderson saw an advertisement in the Guardian Newspaper of 22 May 1990 which advertised vacancies at Edith Cowan University. The advertisement which caught his eye was headed as follows: "SCHOOL OF COMMUNITY AND LANGUAGE STUDIES TENURED OR FIXED TERM CONTRACT POSITIONS PRINCIPAL LECTURER GU33. Community and Behavioural Studies To lecture and to give leadership to all Senior Lecturers, particularly in the development of post-bachelor courses". 10 Mr Anderson applied for that position. He told the Court that he understood he was applying for a tenured principal lecturer position. Mr Anderson attended an interview at the Waldorf Hotel in London on 24 August 1990. He was interviewed by Dr Douglas Jecks, who was then the Vice-Chancellor of Edith Cowan University. Mr Anderson told the Court that the interview was not as he had imagined it would be. He described it as a "sales pitch" and said that it was evident to him that he had been pre-selected for the position. Mr Anderson said that Dr Jecks was telling him about the wonderful things ahead of him if Mr Anderson came to Perth. Mr Anderson could only recall being asked one question. Mr Anderson said that he was left with the impression that there had been careful consideration of his background and qualifications. At the end of the interview, Dr Jecks said to Mr Anderson that he should read the handbook and advise him what units he thought he could teach. 11 Mr Anderson told the Court that there was no question in his mind that the job he was applying for was a principal lectureship and a tenured position. I asked Mr Anderson what caused him to believe that this was the case. He replied that he was not familiar with Australia's employment conditions for academics. In the UK, academics held tenured positions and he assumed that the position would be tenured. Mr Anderson said that at no time during the interview was the question of whether the position was tenured or contract discussed. 12 By letter dated 9 October 1990, Dr Jecks offered Mr Anderson a position at Edith Cowan University. The letter stated that the attached offer of appointment set out full details of the offer. The accompanying document was headed "Offer of Academic Appointment" and stated in part as follows: "1. This offer of appointment as a senior lecturer in Community and Behavioural Studies is made on behalf of the College Council as of today's date, 9 October 1990, to Mr Michael John Howard Anderson, 26 Greenmount Drive, Greenmount, Bury EL8 4HA. 2. The appointment offered is a three year fixed term contract from 1 July 1991 to 30 June 1994. While it may be that your appointment will be extended to a further contract, or that you may apply for and obtain a tenured position, there is no entitlement to continued employment beyond the date of completion of the contract as set out above. . . .

13. The College will enter into no undertaking regarding your employment and associated conditions beyond the terms of this offer of appointment and the attachments and/or enclosures." 13 Mr Anderson gave evidence that he was very upset when he received this offer and said that he didn't see how he could take it. He said that he was interviewed for a principal lectureship and was offered a senior lectureship. He thought it was too much of a risk to go all the way to Australia. He spoke to his wife regarding the offer at length. He and his wife had been excited because when he had been interviewed, he was led to believe he would get the position he applied for. Mr Anderson said that he really wanted to come to Perth but decided he could not take the chance. He therefore wrote to Dr Jecks by letter dated 20 October 1990. In that letter, Mr Anderson stated that before he arrived at a decision he would like some clarification. Mr Anderson asked how the responsibilities of the position of senior lectureship differed from those of the principal lectureship. He concluded the letter as follows: "I had sought a tenured appointment. Can the offer be modified? If it should stand as a fixed term contract, what then would be the prospect of securing tenure after (a successful!) three years?" 14 Dr Jecks replied by letter dated 26 October 1990. In that letter, Dr Jecks explained that the selection committee had not been prepared to appoint Mr Anderson at the principal lectureship level. The letter went on to state: "The three year contract you have been offered is our normal approach. While the letter of offer makes it clear that there is no commitment to continuing employment, it is my opinion that, were you to fit well into the local scene and make the type of contribution which I would believe your background evidences as probable, the contract could be renewed at the end of the three years, or you could be considered for tenure at that time. I recognise that any decision to come to Australia is a major career change, and am sympathetic to the issues which this raises. For my part, I was pleased to note that you were made an offer of a senior appointment, and I trust that you will give the same further serious consideration." 15 Mr Anderson told the Court that he took it from Dr Jecks' letter that as he had been very successful in Liverpool and Manchester, he would be equally successful in Western Australia and get tenure. Mr Anderson said that his impression was that he was effectively going into a permanent position and had a long-term future at the University. Mr Anderson said that he was encouraged by the comments made by Dr Jecks. 16 Mr Anderson told the Court that moving to Australia was a huge life decision. At that time he was 43 years old, had to leave ageing parents, take his two young children who were then aged 12 and 9 out of the English education system, and his wife had to leave her employment as a secondary high school teacher in England. They had to sell their house. 17 Mr Anderson then signed the offer which had been sent to him on 9 October 1990. By letter dated 6 November 1990 Mr Anderson wrote to Dr Jecks and stated: "Thank you for your letter of October 26. Encouraged by your advice on the prospect of employment beyond the contract period, I am now happy to accept this offer of academic appointment. I enclose the signed agreement." 18 His family arrived in Australia in June of 1991 and he started work with Edith Cowan University on 1 July 1991. Mr Anderson was a senior lecturer within the faculty of Health and Human Sciences. Edith Cowan University had undergone major organisational changes. Changes are still happening today. A Department of Human Services was set up to which Mr Anderson was attached. He taught in the School of Community Studies, but could be required to teach outside that School. 19 Mr Anderson said that he mainly taught students who did a Bachelor of Science, Human Services. However, he also often taught students outside that course such as psychology students who took his units as electives. Mr Anderson's evidence was that a number of the units he taught fell into this category, namely, they had a high proportion of students from outside his Department's degree course. 20 In addition to his lecturing duties, Mr Anderson was co-ordinator of the Human Services degree programme. Mr Anderson said that co-ordination is a huge job and it took up more of his time than did teaching or preparation for lectures. 21 Mr Anderson said he found out when he first arrived at Edith Cowan University that some staff were tenured and some were on fixed term contracts. He said that for the duration of his first period of employment, namely, that covered by his contract from July 1991 to June 1994, he found the work challenging. He also found to his surprise that a number of staff at the University had "corralled" some of the units he had expected to teach. Mr Anderson said that a lot of energy was spent by him in establishing units he thought were essential and that he had expertise to teach. 22 Mr Anderson's initial contract of employment provided for a probationary period of 12 months. He said that nothing happened after that initial period and he assumed that everything was fine. Mr Anderson said that he had confidence that having taught successfully for ten years he would be successful at Edith Cowan University. He said that he understood that his position would be continued. He was happy that he was settling in well and he was looking for a Ph.D supervisor. Mr Anderson said there was never any criticism levelled against him and there was no suggestion that his contract would not be renewed until October of 1993. Mr Anderson was then asked to attend a meeting along with others in the Dean's office. Mr Anderson said he was shocked when the first thing he was told was that the University was going to advertise his position and that he could apply. Present at the meeting were Ms Vicki Banham (head of department), Michael Lee (head of school) and the Dean, Rod Underwood. Mr Anderson said he was given no reason for this action on the part of the university. 23 Mr Anderson said that immediately after the meeting he faxed a letter to the Vice-Chancellor who had replaced Dr Jecks, Professor Roy Lourens. In his letter to Professor Lourens Mr Anderson stated : "I write to you with sadness at the anticipation of losing my job when my three year contract terminates in June. I was recruited to the University by your predecessor on promises of small teaching loads and practical support towards continuing my research interests and obtaining a Ph.D. Also, on a written encouragement of tenure or contractual renewal should I "fit well into the local scene". It was on the basis of these assurances which have not been honoured that I uprooted my wife and two school aged children from England." 24 Mr Anderson went on to state that there had been no indication at any time that his performance had not been satisfactory. Mr Anderson concluded: "Staff understanding of the agreement on contract renewal was that its purpose is to retain contract staff who are performing satisfactorily. This has proved a misunderstanding." 25 Mr Anderson said that he also got in touch with the National Tertiary Education Union as he had been a member throughout. Mr Anderson spoke to Warrick Claydon and Sue Howard of the Union, and they approached the Dean. There was a response from the University that there had been some allegations which indicated some shortcomings in his performance. I should note at this stage that Edith Cowan University is not relying in any way on alleged shortcomings in Mr Anderson's performance. After a protracted process involving the Vice-Chancellor's office, Mr Anderson's department and the union, the Vice-Chancellor decided to offer Mr Anderson a one-year contract from 1 July 1994 to 30 June 1995 on the understanding that Mr Anderson would be advised of any perceived weaknesses and be provided with any assistance necessary to overcome any shortcomings. The letter confirming this offer, dated 24 December 1993, stated: "An assessment of your level of performance will be made prior to 30 June 1995, and this will be a prerequisite to eligibility for consideration of a further contract as a senior lecturer." 26 On 27 July 1994, Mr Anderson signed a contract which included a clause as follows: "The offer is for a one (1) year, fixed term, full-time contract from 1 July 1994 to 30 June 1995. A further three year contract commencing on 1 July 1995 will be offered subject to you achieving the expected criteria of satisfactory performance at the level of senior lecturer." 27 Mr Anderson told the Court that from the time his first contract expired on 30 June 1994 to the time he signed his next contract on 27 July 1994, he continued to work and be paid by the University. Mr Anderson said that he signed the contract after he had rejected a previous one-page offer which specified that after one year, there was no entitlement to a further appointment. The Human Resources Department of the University produced a new, revised offer which Mr Anderson signed on 27 July 1994. 28 Mr Anderson described his second contract as a "quasi probationary period", but said that probation in fact never really happened because there was no monitoring or review of his performance. 29 Mr Anderson was then sent a letter by the Director of the Human Resource Management Division of the University. That letter was dated 9 December 1994 and stated: "I am pleased to offer you a fixed term appointment as a Senior Lecturer (Level C). Details of the offer are set out in the attached contract …" 30 On 21 December 1994 Mr Anderson signed his third contract. That contract included the following clause: "The offer is for a three (3) year, fixed term, full-time contract from 1 July 1995 to 30 June 1998." 31 Mr Anderson said that he was extremely busy during 1995 and 1996 when carrying out his teaching and co-ordination duties. He made good progress on his doctoral work. 32 At around this time he saw an advertisement in the union journal seeking people who were fixed term and contract staff who felt they had been exploited. The union was preparing a case in the Australian Industrial Relations Commission for new award conditions. The advertisement asked those who had experienced unfair employment practices to contact the union. Mr Anderson faxed a response to that advertisement. He said that the union was particularly interested in his situation as he had come to Australia from abroad. Mr Anderson said that the union wanted him as part of their campaign to get security for staff employed on fixed term contracts in what were in effect permanent jobs. On 25 and 26 October 1996 Mr Anderson gave evidence in the Australian Industrial Relations Commission in Melbourne. Mr Anderson said that he had talked about his own situation and what had happened to him in relation to his employment with Edith Cowan University. A witness statement was prepared. In his witness statement, Mr Anderson said at paragraph 35 that: "A general atmosphere of insecurity pervades the Department." 33 He stated at paragraph 37(d) that: "A faculty policy of advertising all contract positions regardless of the quality of work incumbents, is grossly demoralising for staff, those indirectly as well as directly affected. … It leaves staff to reapply for their positions in a state of stressful insecurity, not knowing whether or not they may get reappointed until just a few weeks before their contract expiry." 34 In his witness statement Mr Anderson was quite critical of University policy regarding contract appointments and also University management practices. In his sworn evidence before the Commission Mr Anderson adopted his witness statement and also repeated his contention that the practice of offering fixed term contracts meant that staff were very insecure about whether or not their contracts would be "rolled over" or whether they would be applying for the positions after an advertising process. 35 Mr Anderson said that after he gave evidence in Melbourne he returned to Edith Cowan University to what he perceived as a chilly climate. He said that there was hostility directed at him and he was made to feel marginalised. His primary recollection is that he felt ignored. According to Mr Anderson, Dean Underwood only spoke to him on one or two occasions after he gave evidence and Patricia Formentin, , started to communicate with him only by short, overly formal notes. Mr Anderson said that his expectation was that the Dean would have regular contact with him. Although clearly there had been some aggravation before the hearing, after he gave evidence the Dean would walk down the corridor and look away and not acknowledge his presence. Mr Anderson said that in contrast, in his early days at Edith Cowan University, the Dean would take him in his own car to interviews, to talk to him about his family and generally be pleasant to him. Mr Anderson said that the relationship was nothing like that by the time the hearing happened. Dr Patricia Formentin, who was Head of Department at the time, became hostile to him in her looks and demeanour. There had been some incidents between Mr Anderson and Dr Formentin before the hearing in around January of 1997, in which they had clashed. 36 Mr Anderson said that in the latter half of 1997 he was very busy with his co-ordination duties, his teaching and preparation of external studies materials. He also maintained his practice and became involved with the Ministry of Justice in mediation. He was working on his thesis as he had been told that it was important for him to get his Ph.D. By the end of 1997 he had nearly completed his thesis and applied for study leave of 12 weeks to complete it. His application was refused. 37 On 19 December 1997 Professor Underwood wrote to Mr Anderson in the following terms: "In accordance with the policy contract renewal-advance notice academic staff, please be advised that the University will not be renewing your contract of employment. Subject to sufficient student numbers, the position will be advertised in 1998. Should you choose not to apply for the position, could you please make arrangements to finalise your leave provision. On behalf of Edith Cowan University, I would like to thank you for your services to the faculty and extend my best wishes for your future career prospects." 38 Mr Anderson said that he was unhappy about his position being advertised but he wanted to apply for it. He said that as he might not be employed with the University in second semester, he felt it would be unethical for him to maintain his co-ordination duties and to make decisions and recommendations if he might not be there. He said he kept his eye open for an advertisement and received no communication at all from the University. It was a difficult situation. Mr Anderson said that he had been aware that some staff continued in their positions even if they had not received a contract and this in fact had happened to him previously. However, by the time his contract expired on 30 June 1998, he had heard nothing. 39 Mr Anderson decided to contact the union and a firm of solicitors. He wanted to find out why the job had not been readvertised and why he had not been reappointed. By letter dated 1 July 1998 his solicitors requested that the Deputy Vice-Chancellor advise them by the next day of the University's intentions with respect to Mr Anderson's employment with Edith Cowan University. 40 The response dated 2 July 1998 from Mr Mark Loader stated: "1. Mr Anderson's contract came to an end on 30 June 1998, and in accordance with University policy was advised six months ago that the position he held would be reviewed. The University has determined the position is not ongoing and therefore will not be advertised. . . . 4. The University has determined there are not enough students to continue with certain courses. Had Mr Anderson availed himself of the opportunity to exercise his rights under the dispute of rights clause evidence would have been produced to justify the University's decision. Notwithstanding your last paragraph Mr Anderson does not have a contract with the University and therefore advise there is no work to be undertaken. Mr Anderson's contract expired in accordance with the terms of his contract and will not be renewed." Mr Anderson was paid some termination pay and his accrued leave. 41 Mr Anderson's evidence was that in first semester of 1998 he was teaching a full teaching load. He was teaching four units, both internal and external, and was involved in an ongoing research project. He also had to supervise students and support, monitor and advise students on practicum. He maintained his co-ordination duties until the end of February 1998. Mr Anderson taught a unit called HSA 2113 which he wrote, introduced to the University and taught it as the main teacher in the department for that unit. He also taught HSA 3109 and Mr Anderson devised the unit, wrote it up, taught it and was writing up the external version of it. He was the only one on the staff who had taught that unit. Mr Anderson taught the external version of Unit HSA 3110. This was to be replaced by the unit he had been preparing for, HSA 3109. Mr Anderson taught CBS 2165 and had done so between five and seven times. 42 Mr Anderson disputed that his position was not advertised because of lack of numbers. He said that there was plenty of work for him to do, and in addition to that the co-ordination duties still needed to be done. Mr Anderson said that he would have been available to continue to teach the units in second semester of 1998. He thought that the major reason he was appointed by Dr Jecks originally was because he had a breadth of experience. Mr Anderson acknowledged that in the Bachelor of Human Services, student numbers were down a little, but he said that the course would change and the units would continue. Bachelor of Science students would do the units. 43 Mr Anderson obtained part-time employment in April of 1998 as a counsellor. He said that this did not interfere with his University work, and that they were encouraged to do this at the University. 44 Mr Anderson has had no other employment from Edith Cowan University since he left at the end of June 1998. 45 During cross-examination, Mr Anderson agreed that in August 1997 he knew that his contract was coming to an end. He said however that he had every reason to suppose that he would get a new contract.

Mr Mark Loader 46 Mr Loader is now the Assistant Director of Human Resources at Edith Cowan University. From June of 1996 to November of 1998 he was the manager of employee relations at the university. Mr Loader referred to Edith Cowan University's policy on contract renewal-advance notice for academic staff. The policy states that the advance notice of contract renewal is intended to reduce the level of uncertainty experienced by staff on contracts. It states that the Dean of the Faculty in consultation with the Head of School and Chairperson of Department will determine whether the position is ongoing. The Dean of Faculty is to ensure the action occurs with sufficient time to allow the incumbent to be advised of the decision at least six months prior to the expiry of his or her contract. If the position is not ongoing, the Dean of Faculty will give the incumbent at least six months notice of termination of contract. That advice is to be confirmed in writing. If the position is ongoing, the Vice-Chancellor, on the recommendation of the Dean of Faculty and three other persons on a committee, will give the incumbent six months written notice of the decision. In all cases where notice is given of the intention to renew the contract, any conditions will be included in the written notification. 47 Mr Loader gave evidence that as a result of a dispute with the union in 1993, this policy was developed to give staff a six month notice period for the university to decide whether or not their positions would be ongoing. Mr Anderson said that under the policy, if the position is ongoing it could be advertised or offered to the incumbent. If it is not ongoing, staff are advised of this with a six month notice period. 48 Mr Loader also gave evidence that there was an Edith Cowan University Academic Staff Certified Agreement 1995 which was a certified agreement between the university and the union. Under Schedule 4 of that agreement, Edith Cowan University and the union had agreed to changes in university policies, including the advance notice of contract renewal already referred to. There was a further academic staff certified agreement in 1997 which stated that the university and the union had agreed to changes in the university's policies including advance notice of contract renewal July 1993. Under the agreement and the policy, the university cannot unilaterally change its policy without consultation and attempting to reach agreement with the union. Mr Loader said that Edith Cowan University also had a policy on selection procedures for academic staff which was not incorporated in the certified agreement but was still applied by the university. Under that policy, vacancies for any position will normally be openly advertised and fill on merit. 49 Mr Loader said that during 1997, the university was changing its culture. With people on fixed term contracts, the university needed to give them more certainty. The university had to be careful about its profile and needed to get the best applicant for each position. At that time the practice was to employ a lot of people on contracts. 50 Mr Loader said that in December 1997 Professor Underwood came to him with concerns regarding staff numbers and budgetary constraints. Professor Underwood asked Mr Loader the best way of handling these concerns, including in relation to Mr Anderson's contract. Mr Loader told Professor Underwood that he must follow policy and procedure. Mr Loader said that it was normal for the university to put a rider or qualification in the six months notice letter. For example, the letter may specify that subject to certain conditions the position would be advertised. This was what happened in Mr Anderson's case. Mr Anderson was told that subject to sufficient student numbers, the position would be advertised. 51 Mr Loader said that the next time he heard about Mr Anderson was in January or February of 1998. Mr Loader had regular meetings with the union to see if any conflicts could be resolved at a local level. The union officer raised with Mr Loader the difficulties in arriving at an agreement regarding Mr Anderson's contract. Mr Loader said that he had meetings with the union officer, Mr Hodgkins, regarding Mr Anderson's contract, and one or two meetings with Mr Anderson to try to work out a resolution. Mr Loader put some proposals to Professor Underwood. The union had proposed that Mr Anderson be made part-time and moved to a Level B Senior Lecturer. Mr Loader took this proposal to Professor Underwood who said that this was not a viable alternative. After some further discussions with the union, Mr Loader was served with a summons as the union had lodged an application with the Industrial Commission invoking the dispute of rights clause in relation to the non-continuance of Mr Anderson's contract. 52 Mr Loader said that he wanted at all times to ensure that the process was correct. 53 Mr Loader said that he was given a copy of the letter dated 1 July 1998 from Mr Anderson's solicitors. When the Deputy Vice-Chancellor gave the letter to him, Mr Loader rang Professor Underwood who told him that there was no position for Mr Anderson and asked him to draft a response. The letter from the university to Mr Anderson's solicitors dated 2 July 1998 was drafted by Mr Loader with Professor Underwood's authority. 54 Mr Loader said that any decisions that he made regarding Mr Anderson were not for reasons or including reasons relating to Mr Anderson's involvement in the union or Mr Anderson's giving of evidence to the Australian Industrial Relations Commission in 1996. 55 During cross-examination, Mr Loader said that he did tell Mr Anderson in March or April of 1998 that because of a decrease in government funding, the job would not continue. 56 Mr Loader said that he had received a copy of Mr Anderson's witness statement in 1996 and had told Professor Underwood that someone would have to prepare a statement in response. Professor Underwood had assigned this task to Dr Formentin. Mr Loader said that he had seen the transcript of Mr Anderson's evidence at some time but he had not discussed it with anyone. 57 Mr Loader said that he thought it was around March 1998 that the University decided not to renew Mr Anderson's position. It was at around this time that the union made the application in the Industrial Commission. 58 Mr Loader said that at Edith Cowan University, about one-third of the academic staff are either on contract or are sessional appointments, and about two-thirds of the staff are tenured. Since the Higher Education Continuing Employment Award came into effect in 1998, however, the university does not employ contract staff any more.

Ms Vicki Banham 59 The Court heard from Ms Vicki Banham who is a senior lecturer in the Faculty of Community Services. Before 1999 she was a senior lecturer in the School of Communication Studies at Edith Cowan University. 60 Ms Banham said that the structure at Edith Cowan University had changed considerably since she started there in 1992. The university used to have a three-tier system with a department, a school and a faculty. The Department of Human Services was a collective name for five schools. The University restructured and removed the department layer. In 1997, the School of Communication Studies was formed. It was restructured again in 1998 when the School of Communication Studies lost the leisure and justice areas which had been major components. Ms Banham said that the school had not been viable and it combined with the School of Culture to make a new school. 61 Ms Banham said that she was the Chair of the Department and then Head of School from early 1998 to mid 1998. 62 Ms Banham said that at the end of 1997 she was involved in a committee which was set up to consider Mr Anderson's contract. In the second semester of 1997 she was on leave to do her doctoral work. Her position was advertised and she was successful in obtaining it for 1998. As part of her duties for 1998, she had to come in to the school in 1997 to look at her budget for 1998 to ensure that the school would survive. 63 Ms Banham said that in December 1997 the school's budget was not looking good, especially in the cluster of human services programmes. There was a trend of numbers of students declining. The number of students in leisure and justice was stable. Ms Banham said that she needed to ensure that each program could sustain itself. She said that to do this, she had to look at the staffing allocation, which should be 80-85% of the budget. In December of 1997, her school had a higher percentage of the budget allocated to staff. Ms Banham said that what one does is look and see what contracts are coming up mid year for the next year and then look at whether the School could maintain that level of staffing. Ms Banham said that she looked at the data for each course. Mr Anderson's contract was one of several which were due to expire during 1998. 64 Ms Banham said that she talked to the Dean to discuss the budget and staff renewal. The Dean called a meeting which consisted of himself, Ms Banham and the current head of school. 65 Ms Banham said that when she looked at the contracts which were due to expire in mid-1998, there was Mr Anderson's contract and two others. The other two people whose contracts were due to expire were already leaving the school, so Mr Anderson was the only one that the Committee was focussing on. Ms Banham said that they looked at the number of students in the Human Services course and saw that there was a downward trend. Ms Banham said that she was looking at each course independently and put to the meeting that the Human Services course could not maintain a senior lecturer because of the declining number of students in particular courses. In December 1997, the school didn't know what the student numbers would be for 1998. Students enrol in January and February and the university does not know the final numbers until the HECS levy has to be paid on 31 March of each year, which is also the day the university gets its funding. 66 Ms Banham said that the university looks at trends over units, but the bulk of the income of the university is based on the number of students enrolled in a course, as distinct from the number of students enrolled in a unit. The measure used for funding is the equivalent full time student units ("EFTSU") in the particular faculty or school. An EFTSU is a measure of full-time enrolments: that is, full-time students taking a course in a semester, which is the equivalent of three or four units depending on the year of study. 67 Ms Banham referred to figures which showed that in 1995 in semester 1, the Bachelor of Social Sciences (Human Services) had 59.9 commencing EFTSU enrolled, and in semester 2, 9.8 commencing EFTSU enrolled in it. In 1996 in semester 1 the course had 51.9 commencing EFTSU enrolled and 3.8 commencing enrolment in semester 2. The figures for 1997 were 37.3 commencing in semester 1 and 9.3 EFTSU commencing in semester 2. 68 Ms Banham said that she presented these figures to the committee, which then held a long discussion. The committee felt that unless there was an increase in movement of EFTSU, it was unlikely that the school could sustain a senior lecturer in Human Services. The committee decided that the position could be ongoing if the numbers in the course increased as at 31 March 1998. Ms Banham said that in her opinion at the time, the numbers would have had to increase significantly. 69 Ms Banham said that the process was that the committee first decided whether the position would be ongoing, and the second decision was whether, if it was ongoing, it should be advertised. The committee decided that to be consistent, it would need to be advertised. In respect of the first mentioned decision, the committee consisted of Professor Underwood, Ms Banham, and Francis Loba. They made the decision that the data did not sustain the position. For the second decision, the Associate Dean, Professor Lee, was present. 70 Ms Banham said that she relied on the Dean to get policy advice on the process to be followed. She said that after December of 1997, the committee did not look at the numbers again until 31 March 1998. At that point Ms Banham looked at the numbers in the courses. They showed that for semester 1 there were 36.25 commencing EFTSU in the Bachelor of Social Science (Human Services) course. Ms Banham had a meeting with the Dean to discuss the budget. As the numbers had not increased in the Human Services course, Ms Banham said that she could not confidently suggest that she could run a school to employ a senior lecturer as there was not enough money. Ms Banham said that a senior lecturer is very expensive. 71 Ms Banham denied that the decisions the committee made in December of 1997 and subsequently in March or April of 1998 were based on the fact that Mr Anderson was a member of the union and had participated in the Australian Industrial Relations Commission hearing. Ms Banham said that the decision she made was purely based on the numbers and the fact that the school could not afford it. 72 During cross-examination, Ms Banham said in relation to the second decision the committee had made, that positions at the university at that time were being advertised in that if any positions were coming up for renewal, there was an advertisement. To be consistent, they needed to be advertised. Ms Banham said that she didn't recall discussing Mr Anderson's performance. She said that her focus was on the budget. Ms Banham said that there was no discussion of Mr Anderson's union involvement at the meeting. 73 Ms Banham said that the Human Services course no longer exists as it was amalgamated with another course in semester 2 of 1998. 74 During cross-examination Ms Banham said that the committee did not give consideration to units Mr Anderson taught which were not part of the Human Services course. The committee did not look at specific units because the bulk of the funding was based on EFTSU enrolled in courses. Ms Banham said that the university cannot add up the students enrolled in every unit to get funding. What they do instead is to look at the courses where their core funding is. To take into account students coming from outside the course to take a particular unit does not provide a consistent picture as that number of students is too variable.

Professor Rod Underwood 75 Professor Underwood was Dean of the Faculty when the decision regarding Mr Anderson's contract was made in December of 1997. He confirmed that the changes at Edith Cowan University from 1992 to 1999 have been very substantial. Professor Underwood said that up until 1992 the University had a clear policy of advertising every contract that had expired even though the position was ongoing. Under the policy of the previous Vice-chancellor, Dr Jecks, at around 1992, Deans of faculties were given the option of rolling over contracts. Professor Underwood said that he didn't take that option in part because he was accustomed to advertising and more particularly because he felt it was equitable to advertise each position, not just some. Professor Underwood said that in 1993 he was told by the Human Resources Department that there was an appeal by Mr Anderson against the decision to advertise his position. Professor Underwood was present at a meeting at which Mr Anderson was invited to address some issues raised. The outcome of that meeting was that a one year appointment, followed by a three year contract, was given. 76 As to the 1998 budget allocation for the Faculty, Professor Underwood said that the budget process is an iterative process. The Vice-Chancellor's committee had imposed a 3% reduction of $282,690 on the Faculty of Health and Human Sciences for that year. Professor Underwood said that his recollection was that in mid-year in 1997, the present Vice-Chancellor took up her responsibilities. According to Prof Underwood, the Vice-Chancellor paid particular attention to the budget of the university. Over the next six months, a strategic plan was developed with particular attention given to finances. A series of meetings was held which highlighted the necessity for stringent financial constraints and the need to generate additional income to add to the Commonwealth operating grant based on student enrolments as measured by EFTSU. Professor Underwood said that ultimately it is the Dean's responsibility to allocate funds and heads of schools are consulted closely. In deciding how a budget is to be spent, the major expenses are on staffing (with the exception of nurses). Professor Underwood said that "90% plus" of the budget was allocated to staffing. The budget constraints at the end of 1997 was such that if a school was operating on a decreasing budget, the only option was to address the staffing of the program. 77 Professor Underwood said that in accordance with University policy he met with the Head of School (Ms Vicki Banham) and a member of the school to review the position of Mr Anderson and to determine if it should be ongoing after June of 1998. The committee convened by Professor Underwood met in December of 1997 to ensure that six months notice was given to Mr Anderson before the expiry of his contract. The committee was aware of declining enrolments in the Human Resources program and the funding of the program was contingent on enrolments. Professor Underwood said that the committee had concerns about whether to continue the appointment. He said that he consulted Mr Mark Loader to seek advice as to whether the final decision could be reviewed in light of subsequent enrolments. Professor Underwood said that he was concerned that the enrolments could not justify the position. They did not obtain the final figures until early 1998. Professor Underwood said that Mr Anderson's position was recognised as a senior position within the school and as such had significant financial impact. Senior lecturers cost the school more than a lecturer does. 78 Professor Underwood said that at the time of the meeting in December 1997, the position was deemed to be ongoing but was to be reviewed in light of the enrolments in March of 1998. The committee decided that if the position were to be ongoing, it would be advertised externally if there were sufficient enrolments to sustain the position. Professor Underwood drafted a memorandum to the Vice-Chancellor on 17 December 1997 to convey the decision of the committee. 79 Professor Underwood said that the term "sufficient student numbers" in the memorandum referred to enrolments in the Bachelor of Social Science (Human Services) to justify an ongoing appointment. Professor Underwood recalled that there had been a continuing decline in enrolments in that course and the final figures were not available until 31 March 1998. Professor Underwood said that in 1997 there had been almost a 40% decline in enrolments in the course since 1995. The decline in enrolments continued into 1998 and this had a bearing on the continuation of Mr Anderson's position. When they reviewed the figures in 1998, Professor Underwood recommended to the Vice-Chancellor that the position be not ongoing. 80 Professor Underwood said that he did not decide to dismiss Mr Anderson. Instead, his contract had expired and the position he had held was determined not to be ongoing. Professor Underwood said that his decisions were not based on the alleged prohibited reasons or reasons including those reasons. Professor Underwood said that Mr Anderson's evidence in 1996 was not discussed at the meeting, and neither was his union activity. Professor Underwood said that he was aware that Mr Anderson had given evidence and had been given a copy of his witness statement. He said that he was concerned at the time that the university should respond to it to clarify what he believed were inaccuracies. He worked with Dr Patricia Formentin and she prepared a statement in response in consultation with him. 81 In cross-examination, Professor Underwood confirmed that the committee did not consider the numbers of students enrolled in the units that Mr Anderson taught. He said that staffing decisions were primarily based on course enrolments as distinct from enrolments in particular units. He said that enrolment in a unit is not significant in itself. Professor Underwood said that in April 1998, when the final enrolment data were finalised, the reconfiguration of the University was under active consideration. He thought that it was apparent from the enrolments that the faculty could not sustain the position of senior lecturer, and given the uncertainties of the reconfiguration, it would not be sensible to commit to an ongoing position. Professor Underwood said that it was his understanding that the workload previously carried by Mr Anderson would have been distributed amongst existing staff. Some sessional staff may have been employed. Professor Underwood said that although he had not looked at the figures to see if the fact that Mr Anderson was no longer employed had produced a net saving, he would be very surprised if it hadn't. When the position of a senior lecturer is discontinued and the workload is distributed within existing staff of the school, or where the workload is shifted to allow appointments in other areas, one would predict savings would occur. It costs around $70,000 per annum to employ a senior lecturer and to employ a sessional lecturer to teach one unit costs about $2,000 per semester. The normal workload for a senior lecturer would be three or four different units or two large units. Therefore, according to Professor Underwood, over a semester it would cost $35,000 to employ a senior lecturer and $12,000 to employ twelve hours of sessional staff.

Dr Michael Lee 82 Dr Lee was Associate Dean of the Faculty of Health and Human Sciences at Edith Cowan University from February 1995 to June 1998. 83 Dr Lee's evidence was that in 1997 there were significant financial difficulties facing the faculty. Dr Lee was aware from what Professor Underwood had told him about budget planning that the faculty had to look at all means to reduce costs. Planning involved specific consideration of teaching requirements in the context of this financial environment, based on the number of students who were likely to enrol in the courses offered in the faculty. As part of the planning, it was recognised that Mr Anderson's contract was to expire on 30 June 1998. 84 In accordance with the contract renewal policy a committee was convened to determine whether the position of senior lecturer in the school, held by Mr Anderson at the time, was to be ongoing. 85 Dr Lee's evidence is that he was invited to join the meeting of the committee on 17 December 1997 by Professor Underwood, for the purpose of considering whether, if the position of senior lecturer was ongoing, Mr Anderson would be offered a further contract of employment or the position would be advertised externally. Dr Lee's evidence is that he was informed by Professor Underwood when he joined the meeting that the committee considered that there may be a continuing need for the position of senior lecturer, but that the situation should be reviewed in light of 1998 enrolments. He was informed that the committee had based its decision on the financial constraints facing both the faculty and the school, and the numbers of students who had enrolled and who were likely to enrol in the course which Mr Anderson had been the course co-ordinator for in his position as senior lecturer in the School of Community Studies. Dr Lee states in his evidence that he recalls at the time he thought it was unlikely, given his knowledge of trends in enrolment figures, that enrolments would be sufficient to justify a position of senior lecturer, although a lower level position might be a possibility. Dr Lee understood however that under the contract renewal policy, if the committee decided that the position was ongoing, it had to be at the same level. In this case, the level was senior lecturer. Senior lecturers have responsibilities as course co-ordinators and in supervising postgraduate students, and are expected to do more than just teach. Dr Lee states that even if there was a need for a lecturer to teach certain units, employing a senior lecturer to simply teach those units would be an expensive way to deliver the units. 86 Dr Lee recalls that at the time, in December of 1997, the commencing enrolments in the course had been falling steadily over the past three years, and that if that decline was projected into the future, the course would not be viable. Dr Lee also recalled that there were a number of students enrolled in units which were offered as part of the degree course. However, faculties and schools are generally funded according to EFTSU in their particular faculty or school. He states that counting the numbers of enrolments in a particular unit does not assist for the purposes of planning the level of funding a faculty or school is likely to receive into the future. 87 Dr Lee stated that when he joined the committee, consideration was given to whether the position of senior lecturer in the School would be advertised externally or whether a further fixed term contract of employment would be offered to Mr Anderson. His role in assisting the committee in considering this issue was consistent with a contract renewal policy, which required an additional member of staff to consider what recommendations should be made. The committee resolved that the position, if deemed to be ongoing in light of 1998 enrolments, would be advertised externally. 88 Dr Lee stated that in making his decision on 17 December 1997, he did not do so for any of the reasons or reasons that included any of the reasons alleged by Mr Anderson. Further, Dr Lee could not recall observing anything on or about 17 December 1997 or at any other time that indicated that the other members of the committee made the decision for any of those reasons. His decision and from what he observed at the meeting the decisions of the other members of the committee were based on consideration of the needs and the financial position of the faculty and the school, and student enrolments in courses offered in the school. Dr Lee concluded that he was staggered that Mr Anderson had raised the allegations. He states that as a member of the union and former member of the executive of the union's predecessor, he would not have countenanced any victimisation of the nature alleged by Mr Anderson in decisions in which he was involved. He stated that in this case there was no victimisation of Mr Anderson, for the reasons that he alleges or at all.

Dr Francis Loba 89 Dr Loba, in December of 1997, was the Head of School of Community Studies in the faculty of Health and Human Sciences. Dr Loba's evidence in relation to the financial difficulties facing the faculty and the school in December of 1997, and the requirement that the school had to reduce costs, is similar to the evidence of Dr Lee. Dr Loba was a member of the committee convened to determine whether the position of senior lecturer held by Mr Anderson was to be ongoing. Dr Loba confirmed in his evidence that the committee considered the financial constraints facing both the faculty and the school, and the numbers of students who had enrolled or who were likely to enrol in the course which had been taught by Mr Anderson. In his evidence Dr Loba denied that in making his decision on 17 December 1997 he did so for the prohibited reasons alleged by Mr Anderson. Dr Loba's evidence is that his decision was, and from what he observed at the meeting, the decisions of the other members of the committee were, based on considerations of the needs and financial position of the faculty and the school, and student enrolments in courses offered in the school. His focus had been on the viability of the position of senior lecturer, and not on the person who at that time filled the position. 90 Dr Loba said that at around that time there was several meetings held to consider appointments and contracts due to expire. Dr Loba said he was concerned about a number of the courses in the school, for example, the leisure program he was involved in at the time. Dr Sherry Saggers 91 Dr Saggers gave evidence that she has held the position of Head of School, School of Community Services and Social Sciences at Edith Cowan University since July of 1998. Dr Saggers' evidence is that during the time that she has been Head of School, the Edith Cowan University has not recruited a senior lecturer to teach units in the Human Services area, nor has the university advertised for such a position. Further, during that period, no continuous teaching positions in the Human Services area have been created or advertised. One member of staff, Ms Weatherill, is a postgraduate student who has been employed on a fixed term contract of employment as a level A lecturer to teach in the Human Service area. Under the Higher Education Contract of Employment (HECE) Award, universities have a limited ability to employ persons on fixed term contracts of employment. Under the HECE Award, there is a special category of employment which allows the employment of postgraduate students on fixed term contracts, and Ms Weatherill falls within that category. 92 Dr Saggers stated that there was no position of senior lecturer in the Human Services area at Edith Cowan University. 93 During cross-examination, Dr Saggers said that she was unable to say what the university has spent on sessional staff in any year. She also did not know the degree to which sessional staff had been used. Dr Saggers said that budget estimates showed that there was a deficit at the end of 1998 of between $200,000 and $900,000, depending on the estimate used, as different estimates gave different results. Her school's finances are such that they should finish 1999 with around a $25,000.00 surplus. However, because of the declining commencing load in the year 2000, her School has a projected deficit of $310,000.00. Dr Patricia Formentin 94 Dr Formentin is a senior lecturer in the School of Community Services and Social Sciences at Edith Cowan University. Between 1997 and July 1998 she was senior lecturer in the School of Community Studies, in the faculty of Health and Human Sciences. Dr Formentin's evidence revolved around the changes in faculty structure and courses in the Human Services area between 1994 and 1999. She described how in December of 1998, the university had ceased new enrolments in the Bachelor of Social Science (Human Services) 295 course (in which Mr Anderson had been a lecturer). Students enrolled in that course were given the choice of completing their existing degree based on a revised study plan which accounted for unit changes, or transferring to the generic Bachelor of Social Science (BSS 358). Was Mr Anderson dismissed within the meaning of s 298K(1)(a)? 95 In their submissions filed in support of Mr Anderson, his solicitors have relied heavily on cases decided under Division III of Part VIA of the Act, which interpret the term "termination at the initiative of the employer" as used in that division. As the solicitors for the respondent point out, that term has been given a particular meaning in the authorities, and care should be exercised in applying those authorities to the word "dismiss"in s 298(K). As Parliament has chosen to use the word "dismiss"in s 298(K) instead of the term "termination at the initiative of theemployer"as used in earlier provisions in the Act, it must be presumed that Parliament intended to attach a different meaning to it. The respondent in this case accepts that "termination at the initiative of the employer"includes the concept of a dismissal. I agree with the respondent's submission that conduct which is not a "termination at the initiative ofthe employer"will not be a dismissal for the purposes of s 298(K)(1)(a) of the Act. 96 In this case, the applicant states that in certain circumstances an employee may show that reliance by the employer upon the effluxion of time of a fixed term contract is "termination at the initiative of the employer". The circumstances relied on by Mr Anderson as showing that he was dismissed include the following: (a) The use of a fixed term contract is "unreal, unconscientious or oppressive as against an employee of any special vulnerability"(Fisher v Edith Cowan University (1996) 70 IR 206 at 209 per Madgwick J, referred to by the Full Court on appeal in Fisher v Edith Cowan University (No. 2) (1997) 72 IR 464 at 472). It is alleged in this case that it was unconscientious and oppressive for the respondent to employ Mr Anderson on a series of fixed term contracts, by reason of his field of employment (academic) and the assurances he was given in late 1990 as to continuing employment and a possibility of tenure. It is stated that his special vulnerability arises principally by reason of his need to emigrate from the United Kingdom to Australia to fulfil the obligations of the employment. The respondent states that this allegation is not made out by Mr Anderson's case or supported by any evidence. It should first be noted that the comments made by Madgwick J in this regard were obiter, as were the comments made by the Full Court in Fisher (No. 2). Secondly, it is clear even from the Fisher case itself that in the case of academics, the words of the written contract may define the employment relationship. I do not except on the evidence that Mr Anderson was given assurances by Dr Jecks as to continuing employment. The words of the first contract Mr Anderson signed were quite clear. Further, it is my view that Dr Jecks in his letter to Mr Anderson did no more than state that whilst there was no guarantee of employment beyond the fixed term of the contract, it was possible that Mr Anderson may be offered another contract or be offered tenure if his performance was satisfactory. There was no statement by Dr Jecks that this would happen. Finally, when considering the vulnerability of Mr Anderson, the fact that he needed to emigrate from the United Kingdom to Australia does not make Mr Anderson a person of special vulnerability when one takes into account the extent of his qualifications and experience, and the fact that he was after all employed by the university for a period of seven years. I am not satisfied that either the authorities or the facts in this case support this allegation. (b) It is submitted that the applicant's employment, as an academic at a university, is within the category of cases which has been specifically identified as potentially inappropriate for the use of fixed term contracts. Further, it is said that Mr Anderson had "no say" in the terms of the arrangement with the university. The applicant relies on the cases of Fisher v Edith Cowan University and Fisher No. 2. In Fisher No. 2 the Full Court referred to the comments of Madgwick J and stated at p 472: "It follows that the particular facts of other cases, possibly including cases of academic appointments made by successive short term contracts of employment, may support a determination that a termination of employment was at the initiative of the employer. I do not consider that this amounts to support for the proposition that the use of a fixed term contract is not appropriate in the relevant field of employment." I do not consider that these words help Mr Anderson. In any case, the Court decided that Ms Fisher, who was an academic employed pursuant to several consecutive contracts of employment, did not have her employment terminated at the initiative of her employer. (c) The employer has engaged in conduct or representations which estop it from relying on the terms of the contract as the means by which the employment relationship has been terminated. In this regard, the applicant relies on the following alleged conduct of the respondent: (i) the advertisement of the applicant's position as a tenured one; (ii) assurances given by Dr Jecks; and (iii) the applicant's residence and employment in the United Kingdom at the time those assurances were given and representations made. I have already dealt with some of those allegations. I do not accept that the position was advertised only as a tenured one. It was clear from the evidence that the advertisement stated "Tenured or Fixed Term Contract Positions". I do not accept that Dr Jecks represented that Mr Anderson's appointment would continue indefinitely. Having heard Mr Anderson give evidence, I am satisfied that at the time he accepted the first contract, he genuinely believed that it was likely that his employment with the university would continue indefinitely. My impression of Mr Anderson, however, was that he misinterpreted the information supplied to him by the university. For example, although the advertisement he saw in the newspaper was headed "Tenured or Fixed Term Contract Positions", Mr Anderson presumed that he would obtain a tenured rather than a fixed term contract position. Further, although the question of the length of any appointment was not discussed at the interview, Mr Anderson presumed that he would be offered a tenured position. Mr Anderson, in his enthusiasm, interpreted the letter Dr Jecks wrote to him on 26 October 1990 as providing stronger representations as to his future with the university than it actually did. There was in fact no representation by Dr Jecks or any other person on behalf of the university that Mr Anderson's employment would continue indefinitely. I do not consider that the respondent has engaged in conduct or representations which estop it from relying on the terms of the contract as a means by which the employment relationship has been terminated. In any event, any representations made by Dr Jecks on behalf of the University were in fact realised. Although Mr Anderson was not given tenure, he was in fact offered two further contracts of employment after his first contract of employment. Those "rolling contracts" cases in which it was held that there was a termination at the initiative of the employer turned on their own facts. For example, in D'Lima v Board of Management of Princess Margaret Hospital for Children (1996) 64 IR 19, Marshall J held that on the facts of that case the practice of signing the contracts for alleged periods of temporary employment appeared to have been one of mere administrative convenience and Ms D'Lima was in fact continuously employed. In that case, the alleged contracts of employment were erratic and were sometimes backdated. In Mr Anderson's case, he is relying on the fact that his employment had continued between 30 June 1994 and 27 July 1994, despite no written contract of employment existing. However, Mr Anderson's case is different in that this happened only on the one occasion, and there were clearly negotiations in place well before the expiry of his previous contract in respect of the prospective contract of employment. The weight of the authorities is that unless there are circumstances in a particular case which lead to a contrary finding of fact, the relevant contracts of employment of the employee come to an end because their respective terms expire. I am not satisfied that the facts of this case lead to a contrary conclusion. The weight of the evidence in this case is that Mr Anderson was aware that, unless anything further happened, his contract of employment would expire on 30 June 1998 and that there was no guarantee of any continuing employment. In this respect, Mr Anderson's case is similar to cases such as Fisher v Edith Cowan University and D'Ortenzio v Telstra (1997) 78 IR 468. (d) Here the employer arranged for the employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment was appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement. In this respect, Mr Anderson relies on comments in the Fisher (No. 2) case at pp 469-470 to the effect that in such a situation the termination may be a termination at the initiative of the employer. Those comments, however, were obiter and concerned the use of the term "termination at the initiative of the employer" as distinct from "dismiss". (e) Annual leave and sick leave entitlements accumulated from one contract period to another (as in Scally v Board of Management of Sir Charles Gardner Hospital (1996) 40 AILR 3-316). Mr Anderson alleges that his sick leave entitlements were carried forward from year to year and the University denies that this was the case. I accept the respondent's submission that even if Mr Anderson was offered a subsequent fixed term contract of employment on terms that included additional leave entitlements, that does not detract from the fixed term nature of that offer or demonstrate that Mr Anderson was employed indefinitely by the university. (f) A law deeming an employment relationship to exist, irrespective of the effect of the employment contract will be a relevant consideration in determining whether an employment relationship continues notwithstanding the existence of a fixed term contract (Fisher (No. 2)). In this regard, Mr Anderson submits that his "termination" was in breach of an industrial agreement. He relies on Schedule 3 to the Edith Cowan University Academic Staff Certified Agreement 1997, by which the advance notice of contract renewal policy was incorporated into the agreement. Paragraph 2 of that policy requires a decision to be made whether a position is ongoing. Mr Anderson submits that no decision was made by the university as to whether the position was ongoing. Instead, in December of 1997 the university decided that the position was ongoing subject to sufficient student numbers enrolled. It is stated that Mr Anderson was clearly not given the requisite six months notice. It is said that as paragraph 5 of the policy states that a contract shall continue until notice is given, this effectively varies the terms of the contract of employment, as notice was not received by Mr Anderson until 2 July 1998, and Mr Anderson should therefore have been employed for a further six months. 97 In this regard, it is my view that the letter written by the university to Mr Anderson in December of 1997 clearly stated that the university would not be renewing Mr Anderson's contract after it expired on 30 June 1998. The decision of the university was that Mr Anderson would have to apply for the position if it was advertised. I did not accept that Mr Anderson could be said to be dismissed within the meaning of s 298K by the operation of such a legal construct. 98 For all of these reasons, I am of the view that Edith Cowan University did not dismiss Mr Anderson.

Did Edith Cowan University refuse to employ Mr Anderson? 99 Mr Anderson states that the term "refused to employ" in s 334 of the Industrial Relations Act 1988 was considered by the Court in Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117. In that case Moore J at p 12 concluded that a refusal to employ relates to a refusal to employ "when employment would or might otherwise occur" and that it concerns the refusal of an employer to employ a person by refusing to enter a contract of employment. Moore J found in that case that a refusal to employ occurs if a "person or vacancy exists to which the employment would have related at the time of refusal". 100 On behalf of Mr Anderson it is alleged that the refusal to employ took place on 2 July 1998 by virtue of the letter from Edith Cowan University to Mr Anderson's solicitors. 101 In this case, the evidence given on behalf of Edith Cowan University establishes that it had decided not to continue the position of senior lecturer in Human Services. I accept that this was a decision made by the University on the basis of declining student enrolments in the Human Services area and the operation of budgetary constraints. Senior lecturers cost more than lecturers employed at a lower level and much more than sessional lecturers. 102 Mr Anderson has argued that because there was plenty of lecturing work to do in the Human Services field, he should have been employed to do that work. Although there was lecturing work available within the school, the University made a rational decision as already indicated to reduce costs by abolishing the position of senior lecturer in Human Services. Because of this, there was no vacancy available for Mr Anderson to be employed in. 103 On the balance of probabilities, I am not satisfied that Edith Cowan University refused to employ Mr Anderson within the meaning of those words in s 298K. 104 In all of the circumstances as already outlined, Mr Anderson has failed to prove that he was either dismissed or that Edith Cowan University refused to employ him. He has therefore not crossed the jurisdictional hurdle required by s 298K. If Mr Anderson had established that this Court has jurisdiction, however, I am of the view that the evidence does not support a finding that any action the university took against Mr Anderson was for one of the prohibited reasons alleged or for reasons including the prohibited reasons. The weight of the evidence is that the committee members who made the decision to abolish the position of senior lecturer did so for commercial reasons. Section 298L does not require an examination of the reasonableness of the conduct or whether it was fair. Because of this, Mr Anderson's argument that the fact that a lot of the units he was teaching had high levels of enrolment would not have assisted him. The university made funding decisions based on projected EFTSU enrolments, and it was clearly open to the university to do so. Whether or not it might have looked at the position in a different way is not relevant, except to the extent that it might affect the credibility of the evidence of the university staff who made the decision. 105 The application must be dismissed. 106 The question of costs was not argued before me. Pursuant to s 347 of the Act, however, a party to a proceeding in a matter arising under the Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. I am not satisfied that Mr Anderson comes within that provision and accordingly I do not consider it appropriate to make an order as to costs. I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Boon JR.

Associate: Dated: 20 December 1999 Counsel for the Applicant: Ms M C Lynn

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 1, 2 & 8 December 1999