Chesnokova v The University of Adelaide

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant is a senior lecturer at the University of Adelaide (the University). She has been employed at the University since 1 February 2010. 2 On 25 September 2014, the applicant commenced proceedings in the Federal Circuit Court alleging contraventions by the University of the general protection provisions in the Fair Work Act 2009. The proceedings were transferred to this court by an order of a Circuit Court judge made on 20 November 2014. 3 In her Amended Points of Claim filed in the Federal Circuit Court, the applicant alleges that the University has taken "adverse action" against her in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the FW Act) because of her exercise of seven distinct workplace rights. The adverse action alleged is: (1) The removal or, at least, the discontinuance of a loading to the salary which the applicant had previously received; (2) The placement of the applicant on performance management; (3) The failure to follow the performance management process contained in the University of Adelaide Enterprise Agreement 2010 to 2013 (the Enterprise Agreement); (4) Threats to terminate the applicant's employment; (5) A recommendation for the termination of the applicant's employment; (6) The refusal of the applicant's application for special studies leave originally submitted on 24 March 2014 and replaced by an amended application submitted on 20 August 2014. 4 The Amended Points of Claim allege that the University has taken the adverse action because of the applicant's exercise of her right to raise grievances regarding additional duties expected of her; her right to raise informal complaints; her right to make a formal grievance; her right to request an alternative supervisor; her right to have a performance development and review process (the PDR process) which is fair, transparent, evidence based and not punitive; her right to have her supervisor take reasonable steps to resolve instances of unsatisfactory performance; her right to have allegations of unsatisfactory performance demonstrated; and her right to have a safe workplace. 5 In her Amended Application, the applicant also alleges discrimination by the University in contravention of s 351 of the FW Act. However, her Amended Points of Claim do not articulate a claim to that effect and it need not be mentioned further for present purposes. By its Points of Defence the University denies that it has taken adverse action against the applicant for any of the proscribed purposes which she alleges. 6 The Vice Chancellor of the University has now given the applicant notice that he intends terminating her employment with effect from 5 o'clock on Wednesday, 10 December 2014, so that which was proposed as at the time the applicant lodged her application in the Circuit Court is now imminent. 7 In that circumstance, the applicant seeks an interlocutory injunction restraining the University from terminating her employment until her adverse action claim can be heard and determined. The principles to be applied on an application of this kind are settled. The Court must ask whether the applicant has shown that there is a serious question to be tried as to her entitlement to relief; whether she has shown that she is likely to suffer injury or loss for which damages will not be an adequate remedy; and whether she has shown that the balance of convenience favours the granting of the injunction which she seeks: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] per Gleeson and Crennan JJ. See also Gummow and Hayne JJ at [65] and [70]. 8 By s 340 of the FW Act, a person must not take adverse action against another because the person has, amongst other things, a workplace right, or has exercised a workplace right, or proposes to exercise a workplace right. 9 The University has not, on my understanding, disputed that the applicant has, at least, some of the rights which she relies, nor has it disputed that those rights are of a kind defined in s 341(1) of the FW Act. 10 By s 342(1) of the FW Act, an employer takes adverse action against an employee if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. 11 On 10 June 2014, Professor Findlay, who is the Executive Dean of the Faculty of Professions at the University, informed the applicant of his intention to recommend the termination of her employment. Professor Findlay did, the same day, make such a recommendation to Professor Quester, the Deputy Vice Chancellor (Academic). In making that recommendation, Professor Findlay relied upon and endorsed the report and recommendations of Associate Professor Oak, the Head of the School of Economics in the Faculty of Professions. 12 The report of Professor Oak is too long to summarise presently. It is sufficient to record that it indicates that there have been concerns about aspects of the applicant's performance of her duties as a lecturer in the School of Economics since December 2012. Those concerns include the following: (1) Uncertainty as to whether the applicant would meet a commitment to attend recruitment interviews in San Diego, California in January 2013. (2) The refusal, or at least the failure, of the applicant to perform some of the duties expected of her as the coordinator of the PhD students in the School of Economics. (3) The refusal, or at least the failure, of the applicant to allow the completion of the PDR process applicable to the University academics in her position. (4) The failure of the applicant to participate positively in an informal performance counselling process relating to the allegations of unsatisfactory performance. Amongst other things, the University contends that this process relating to formal performance management was hindered because of the claim by the applicant that Associate Professor Oak, who was the head of the school, should when requesting any meeting with her in the future state the reason for the meeting, give three days' notice and allow her to bring a support person. It seems that that request of the applicant was initially understood by Professor Oak and others as a proposal relating to any meeting at all by the Head of School and the applicant, but the applicant later clarified that it did not include meetings relating to "operational" matters. (5) The applicant's conduct in relation to formal performance counselling sessions in 2014. The University has expressed concerns about the conduct of the applicant and her husband at the first meeting on 11 February 2014, the difficulties in arranging a resumption of that meeting, and the behaviour of the applicant and her husband at the resumption of the meeting on 30 April 2014. The Enterprise Agreement provided for a three-stage process, but the first stage requires an applicant to acknowledge that there are some shortcomings in his or her performance. The applicant did not make that acknowledgement and hence the second and third stages could not be carried out. (6) The failure of the applicant to participate positively and collegially in the work of the School of Economics. 13 I emphasise that that is a brief summary of the matters on which Professor Findlay relied in making his recommendation to Professor Quester. It does not involve any findings by the Court, one way or another, as to whether the University's concerns were justified. The applicant denies that the matters relied upon by Associate Professor Oak and Professor Findlay are justified, and in her affidavits has put forward explanations for the matters to which they referred. In particular, the applicant articulated a number of her responses in a letter to Professor Quester, dated 14 July 2014. 14 In addition, her solicitor wrote a very detailed submission to the University's Vice-Chancellor on 4 July 2014. That letter canvassed a substantial part of the history of the difficulties, or, perhaps I should say, apparent difficulties, which had arisen in the School of Economics, involving the applicant, and asserted that the University had "blatantly" breached the law and, in particular, the adverse action provisions in the FW Act. 15 The solicitors asserted that the University was taking the foreshadowed action because of the complaints and inquiries which the applicant had made regarding the conduct of Associate Professor Oak and another professor, Associate Professor Bayer, who, in the first semester of 2013, had been the acting head in the School of Economics. 16 I refrain from making any findings about the merit or otherwise of the respective contentions of the parties on these matters. It is not necessary to do so for the purpose of resolving the present application for an interlocutory injunction and, given the possibility that I may be the trial judge, it is inappropriate to do so. 17 On 18 July Professor Quester informed the applicant that she would be recommending termination of employment to the Vice-Chancellor, pursuant to cl 8.1.5(5) of the Enterprise Agreement. By letter to the Vice-Chancellor that same day, Professor Quester did make that recommendation. In doing so, it is apparent that Professor Quester was purporting to act in accordance with the terms of the Enterprise Agreement. 18 By cl 8.1.6 of the Enterprise Agreement, an employee receiving a notification of the kind given by Professor Quester may, within 10 working days, seek a review by a Review and Appeals Committee. Clause 8.2 provides for the conduct of proceedings by the Committee. 19 The terms of reference of the Committee, in the case of proposed disciplinary action on the grounds of unsatisfactory performance, are: (1) To review whether clause 8.1 was properly followed; (2) To review whether or not the performance is unsatisfactory; and (3) To review whether the recommended disciplinary action is commensurate with the level of unsatisfactory performance. 20 The Committee is to provide a report on its findings to the Vice-Chancellor but does not have any decision-making authority. Counsel for the University contended, and counsel for the applicant accepted, that the Vice-Chancellor is not bound to act in accordance with the report of the Committee or any recommendation which it makes. 21 Clause 8.3.8 of the Enterprise Agreement contemplates that the Vice-Chancellor is to have "due regard" to the recommendations of the Review and Appeals Committee, and may uphold or dismiss the recommendation of the Committee, or, if appropriate, determine the process for reconsideration of the matter, or take any appropriate disciplinary action in accordance with the Enterprise Agreement. 22 The applicant did exercise her right to have a Review and Appeals Committee review Professor Quester's recommendation. The Committee completed its deliberations on 21 November 2014 and provided a report to the Vice-Chancellor. By letter dated 4 December 2014, addressed to the applicant, the Vice-Chancellor has informed her of his intention to terminate her employment, with effect from 5 o'clock on Wednesday, 10 December 2014. 23 I do not think that it is necessary, for present purposes, to set out any more detail regarding the circumstances which have led to the Vice-Chancellor's decision, and of the applicant's account of those circumstances. 24 If this matter proceeds to trial, there will be a statutory presumption that the adverse action alleged against the University was taken by it for a proscribed reason, unless it proves otherwise (s 361(1)). That statutory presumption does not operate in the applicant's favour in relation to the present application (s 361(2)). But the fact that the applicant will have the benefit of the presumption at a trial is, in my opinion, a matter to be taken into account when considering whether the applicant has established a serious issue to be tried. Because of that, it also has some bearing on the balance of convenience. 25 The University, ultimately, did not dispute the contention that there was a serious question, although counsel submitted that the claim of the applicant is weak. Most of the University's submissions and evidence were directed to showing that damages will be an adequate remedy and that the balance of convenience lies against the grant of an injunction. 26 In relation to the adequacy of damages as a remedy and the balance of convenience, the applicant emphasised the following: (a) The loss of income which would result from loss of her employment; (b) The significant effect on her academic reputation, and on the prospects of her obtaining similar employment in another university if she loses her present employment for reasons of unsatisfactory performance - even if she is able to obtain alternative employment, that is likely to involve relocation for her family in Australia or elsewhere; (c) The detriment to her professional career; (d) The detriment to the students for whom she is responsible, including PhD students; (e) The fact that since the recommendation of Professor Findlay in July this year, she has continued to work at the University; (f) The circumstances that Associate Professor Oak, whom the applicant sees as the person with whom she has had the principal difficulties, will be commencing a period of study leave in March 2015, and therefore will be absent from the University; (g) Her claim that the University itself has been responsible for a number of the issues upon which it now relies, and for the prolongation of those issues. 27 Some of those matters are obvious. The last matter is, I think, contentious, and I refrain from making any finding of fact concerning it. 28 The University, on the other hand, contends that the applicant's career need not be blighted in the way to which she deposes. It also contends that any reputational damage which the applicant may suffer will largely be the consequence of her own conduct, and the conduct of her husband, in broadcasting, by way of emails and social media, the circumstances leading to the present application, with the consequence that many in other universities are now aware that there are issues regarding the applicant's performance. 29 In addition, the University points to a number of matters: first, the usual reluctance of courts to enforce, whether by way of specific performance or injunction, contracts of service; and its contention that there is no circumstances bringing the present case within any of the recognised exceptions to that usual reluctance. As to that, I note that s 545 of the FW Act specifically contemplates that reinstatement is one of the available remedies which the Court may order in the event that it finds that an employer has contravened an adverse action provision. That circumstance leads me to conclude that the considerations which underpin the approach of the common law and equity to the enforcement of contracts and employment do not apply with the same force in the present context. Those considerations may inform the exercise of the discretion under s 545(2), but they do not define it, or, for that matter, confine it. 30 Secondly, the University refers to the relative smallness of the School of Economics: it consisting of some 22 academics and five professional staff, working in circumstances in which it is to be expected that they will work closely and collegially. 31 Thirdly, the manifest breakdown, as the University sees it, of appropriate relationships between the applicant and others in the School of Economics. 32 Fourthly, the loss of trust and confidence, as the University sees it, of the applicant's colleagues, in the performance of her work. 33 Fifthly, the applicant's conduct since the recommendation to the Deputy Vice-Chancellor, including evidence of her refusal, or at least failure, to communicate with her supervisor and fellow academics in a way which one would regard as conventional. 34 Sixthly, the applicant's conduct, as reported by one of the academics, in making an apparent threat to him, and, lastly, her circulation of emails which reflect adversely on the School of Economics. 35 I should mention one matter to which the University's submissions referred. Namely, the applicant's failure, without notice, to give a lecture which she was scheduled to provide in the Master's program on 29 July 2014. As I understood it, however, the University accepted, once it was pointed out, that the applicant had in fact claimed sick leave on the previous day, and that that sick leave had been approved by Associate Professor Oak, so that a form of notice had been provided. 36 The University also refers to other matters, including the effect which the applicant's behaviour is having on the health of other members of the academic staff, and in particular on Associate Professor Oak. It refers to the evident hostility, as it sees it, between the applicant and some members in the School of Economics. In that respect, I do note that there are statements in the affidavits of members of the School to the effect that the situation within the School has become unworkable, that some of the relationships between staff members in the School are untenable, that there are concerns that the reputation of the School is suffering, and that there are concerns that the applicant may not carry out her duties appropriately. 37 Counsel for the applicant has made the point that some of those statements are expressed in conclusionary terms, and that there will be objection to the witnesses giving evidence in those terms at the trial. I accept that these are conclusions, and that that diminishes the weight which can be attached to them. However, at least some of the deponents expressing these conclusions have, in other passages of their affidavits, referred to particular instances, incidents or events, which provide at least some basis from which the conclusions which they have expressed can be inferred. 38 I note again that insofar as the matters upon which the University relies involve questions of fact, they are disputed by the applicant, and that it is not possible for the Court presently to resolve those disputes of fact. 39 I should refer to one particular submission of the applicant. Namely, the submission made by reference to the report of the Review and Appeals Committee. Although the Committee found that the University had acted in accordance with the requirements of the Enterprise Agreement, and that there were aspects of the applicant's performance which were unsatisfactory, it reported that it regarded the proposed termination of her employment as not being commensurate with the shortcomings in her performance, which it had found substantiated. The Vice-Chancellor has said, however, that, despite having had regard to those recommendations and reports, he proposes nevertheless to proceed with the termination of the applicant's employment. 40 Counsel for the applicant submitted that the Court should have particular regard to the report of the Committee in relation to the balance of convenience, because it indicates a contemporary view, by fellow academics, that despite the shortcomings in the applicant's performance, it should still be possible for her to continue employment at the University, while other disciplinary and corrective measures are taken. 41 I think that it fair to say, however, that it is apparent from the Committee's report that it had regard to a more confined range of material than has been provided on the present application. It was not concerned with the issues with which I am presently concerned. Nevertheless, I accept that it is appropriate to have regard to the report of the Committee. However, for the reasons I have just mentioned, I do not think it can be regarded as decisive, nor as a matter of significant weight. Ultimately, the Court must decide the issue for itself on the evidence it has received. 42 If the University does proceed to terminate the applicant's employment, and does so in contravention of s 340(1) of the FW Act, she will have a remedy in damages or in compensation. I think it appropriate to proceed on the basis that that remedy is unlikely to be a complete remedy in the postulated circumstance, as it is commonplace that damages, or compensation, do not provide a means of redress for all the forms of detriments which are suffered by dismissed employees. 43 On the other hand, if an interlocutory injunction is granted, but the applicant ultimately fails in her claim, the University will have been forced to have maintained in its employment an employee whom it regards as unsatisfactory, and in respect of whom it claims to have lost trust and confidence. That is a very important consideration. 44 In this respect, I accept that it is necessary for the University to have trust and confidence in its lecturers, in relation to both their academic and administrative tasks. The nature of the applicant's work cannot be regarded as being of a routine kind performed in a closely supervised environment. She is not a blue collar or a clerical employee, nor does she work in an environment in which she would have little or no engagement with those who say they have lost confidence in her. The applicant cannot be regarded as an employee whose continuing involvement in an employer's establishment is unlikely to affect the ongoing operations of that establishment. 45 The present case is distinguishable from Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 971 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 to which counsel for the applicant referred. In the former case, Logan J granted an interlocutory injunction, in the rather distinctive circumstance that the affected employees had continued to work for some three years after the employer's investigation of the conduct in question. In the latter case, it is apparent that the employer proposed dismissing the employee because of a one-off incident and, in particular, an incident in which it was apparent that there was a close relationship between the conduct of the employee concerned and his role as a union delegate. I regard those cases as being distinct from the present kind. 46 It also seems that the difficulties to which the witnesses have deposed may go beyond the manifestation of the personal antagonisms which do arise from time to time in work places, which make the work places unpleasant, but in which, nevertheless, the performance of work can be continued. 47 I also think that it is pertinent to an assessment of the balance of convenience that the affidavits of the applicant, perhaps understandably, do not appear to disclose an insight by her into the matters which have caused the concerns of the others in the School of Economics. Nor do they appear to disclose a spirit of willingness to participate in means of redressing those difficulties. This means that I proceed on the basis that there is evidence which I do not regard as being implausible, which does indicate that the continued employment by the University of the applicant may have a number of adverse effects for the University, several of which would be difficult, I consider, to compensate in damages. 48 Several of the detriments which the applicant may suffer will be compensable in damages. Some may not. It is often the case that damage to reputation is not always compensable by damages, but I take into account in that respect that it seems that the applicant and her husband have been responsible for at least some of the broadcasting of knowledge of the events. And further, that if the applicant does succeed in showing a contravention by the University of s 340(1), she will have the benefit of a public vindication in the form of the declarations which the Court is likely to make in that event. 49 Balancing all those considerations out, I consider that the evident disadvantage to the University, if it is precluded from terminating the applicant's employment pending a trial, outweighs, to a significant extent, the detriment to the applicant. That being so, I am not satisfied that she has established that the balance of convenience warrants the grant of an interlocutory injunction restraining the University from giving effect to its foreshadowed intention. 50 Accordingly, I dismiss the application for the interlocutory injunction. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.