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

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

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

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

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

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

* Mr Gordon Anthony Stewart - formerly Senior Lecturer in Veterinary Pharmacology at the University of Melbourne.[1]

* Professor Ross Nesbit Patrick Cahill - Professor of Veterinary biology and head of the Laboratory for Foetal and Neonatal Immunology at the University. Between 1981 and the end of 1989 he was the Head of the Department of Veterinary Preclinical Services at Parkville.[2]

* Dr Wayne Gregory Kimpton - Associate Professor and Reader in Veterinary Physiology in the School of Veterinary Science at the University. He has been employed by the University since 1983.[3]

* Dr Malcolm Roy Brandon - Reader in the Department of Veterinary Science and Director of the Centre for Animal Biotechnology at the University. He has been in the Faculty of Veterinary Science since 1981.[4]

* Dr Ian Douglas Walker - Reader in Biochemistry in the Department of Veterinary Science at the University. He has held this position for approximately twelve years.[5]

[6] The witnesses called by the University were:

* Professor Virginia Perryman Studdert - Professor of Veterinary Clinical Sciences and Head of the Department of Veterinary Science in the Faculty of Veterinary Science at the University. She has held this position since 1991.[6]

* Professor Alan David Gilbert - Vice-Chancellor and Chief Executive Officer of the University. He has held this position since 1996.[7]

* Mr Victor Iwanov - Senior Tutor in the Faculty of Medicine at the University. He has held this position for approximately five years and has been employed by the University for approximately nineteen years.[8]

[7] On 7 October 1964 Mr Stewart commenced employment with the University of Melbourne as a Senior Research Fellow. He was appointed to the position of Senior Lecturer in Veterinary Pharmacology[9] within the Faculty of Veterinary Science on 1 July 1965.

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

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

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

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

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

A Level C academic is expected to make significant contributions to the teaching effort of a department, school, faculty, or other organisational unit or an interdisciplinary area. An academic at this level is also expected to play a major role in scholarship, research, and/or professional activities.

Specific duties required of a Level C academic may include the following.

* The conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions, and studio sessions.

* Initiation and development of course material.

* The preparation and delivery of lectures and seminars.

* Supervision of major honours or postgraduate research projects.

* Supervision of the program of study of honours students and of postgraduate students engaged in coursework.

* The conduct of research or contribution to knowledge through scholarship, publications, presentation or artistic performance.

* Significant role in research projects including, where appropriate, leadership of a research team.

* Attendance at departmental and/or faculty meetings and a major role in planning or committee work."

[13] Mr Stewart made two unsuccessful applications for promotion from a Level C lecturer to Level D, in 1991[11] and 1992[12].

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

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

"Based on medical evidence and factual evidence obtained from D.A. Best and Associates Pty. Ltd. (report dated 16 October, 1996) in our possession, it is our view that you did not sustain an injury in which your employment at the University of Melbourne was a significant contributing factor."[14]

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

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

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

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

"(a) he had produced only one refereed publication since 1985 (and that was in 1990);

(b) he had not supervised a postgraduate student since 1982;

(c) he had not obtained research funding since 1991;

(d) approximately only 500 hours per year could be accounted for by Mr Stewart's teaching load (comprising 100 student contact hours, and an allowance for lecture preparation and examination marking and reporting of approximately 400 hours), and he had light administrative duties. A full time academic should be able to account for 1800 hours per year..."[18]

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

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

[22] Mr Stewart's terms and conditions of employment are governed by the Universities and Post Compulsory Academic Conditions Award 1995[20] (the Award) and the University of Melbourne Enterprise Agreement 1997[21].

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

" 11 - DISCIPLINARY ACTION FOR UNSATISFACTORY PERFORMANCE

(a) Where a supervisor is of the view that the performance of an academic is unsatisfactory, the supervisor shall first counsel the academic on the nature of the improvement required and the time within which reasonable improvement can be expected. A record of the counsel given shall be kept and a copy supplied to the staff member concerned. If the supervisor believes it appropriate, he/she shall direct the academic to undertake a course of professional development or other appropriate program(s) designed to assist in improving performance.

(b) Where a supervisor believes that counseling has not produced the desired improvements in performance, the supervisor shall make a formal report to the CEO that the performance of a staff member is unsatisfactory. Such a report shall state clearly the aspects of performance seen as unsatisfactory and the record of attempts to remedy the problem.

(c) The supervisor shall provide the academic with a copy of the report at the time it is submitted. The academic shall be entitled to 10 working days to submit to the CEO a written response to the supervisors' report.

(d) Upon receipt of the supervisors' report and any written response from the academic, the CEO shall first satisfy himself/herself that appropriate steps have been taken to bring the unsatisfactory nature of performance to the academic's attention, that an adequate opportunity to respond was given, that any response was taken into account, that a reasonable opportunity has been afforded to remedy the performance

problem and that there has been appropriate consultation with the academic's colleagues by the supervisor.

(ii) refer the matter back to the supervisor to ensure that the steps referred to in subclause (d) are complied with in substance and in a manner appropriate to the circumstances;

(f) The CEO shall advise the academic in writing of any decision made in accordance with subclause (e) and such a decision shall take effect no earlier than 5 working days from the date of the CEO's written advice.

(g) If within 5 working days of the written advice referred to in subclause (f) the CEO receives from the academic a written request for a review of the decision the CEO shall refer the matter to an Unsatisfactory Performance Review Committee in accordance with the provisions of clause 13 and 14.

(h) Nothing in this clause prevents or affects the procedures for the denial of an increment under the incremental advancement clauses of any award dealing with the terms and conditions of employment of academic staff.

(i) Nothing in this clause prevents the CEO on his or her own motion referring a question of possible unsatisfactory performance to a supervisor for appropriate action."

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

"I refer to the report to me from Professor Studdert dated 12 September 1997 concerning your work performance, and your response to her report in your letter dated 2 October 1997.

As you are aware, Professor Studdert referred issues to me pursuant to the provisions of clause 11(a) of the Universities and Post-Compulsory Academic Conditions Award 1995 (the Award) and your written response was provided and received in accordance with the provisions of clause 11(c) of the Award.

The matters Professor Studdert has raised concerning your work performance are serious and your response does not satisfy me that I ought take no action. I have resolved that it is appropriate for your work performance to be further reviewed for the purpose set out in subclause 11(e)(ii).

This notice is given to you in accordance with the provisions of clause 11(f) of the Award.

Professor Studdert will be communicating further with you in the next few days."[25]

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

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

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

"I am not prepared to nominate an alternative supervisor for Mr Stewart pursuant to clause 7(a) and further, pursuant to clause 27 of the University of Melbourne Enterprise Agreement 1995, Academic Staff Supervision. I note that the academic staff member may request nomination of an alternative supervisor. My action under clause 11(e)(ii) has been to refer the matter of unsatisfactory performance review `back to the supervisor'. I do not consider the nomination of an alternative supervisor would allow a complete and thorough carriage of the process currently underway."[28]

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

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

* Faculty organisation: tensions have existed in the Faculty following the merger of the three academic departments which constituted the School of Veterinary Science in 1989. In 1992 Mr Stewart proposed that a separate department be established at Parkville. This proposal was opposed by the Dean of the Faculty and was ultimately rejected by the then Vice-Chancellor, Professor Penington. On 30 April 1997 Mr Stewart was one of five academics from the Faculty of Veterinary Science who met with Professor Gilbert to discuss a proposal to merge the Faculty of Veterinary Science with the Faculty of Agriculture and Forestry. This proposal was opposed by the Dean and other Senior Staff at Werribee within the Faculty of Veterinary Science. At the meeting concerns were raised about the prospect of the five academics being victimised because of their support for the merger. Mr Stewart contended:

"Because of my high profile support for a reorganisation of the Department and the strenuous opposition by Professor Caple and Professor Studdert, I believe that the allegations are being made to victimise me for participating in that meeting with you on 30 April last year."[31]

* Previous review: by her letter dated 11 September 1997[32] Professor Studdert has already reached an adverse view in respect of Mr Stewart's performance and has concluded that his employment should be terminated.

* Professor Studdert's qualifications: Professor Studdert is not well placed to consider Mr Stewart's performance. Her qualifications and experience do not coincide with the work Mr Stewart has undertaken and her physical presence at Werribee means that she will have little opportunity to observe his work.

* WorkCover claim: Professor Studdert represented the University at the conciliation conference relating to Mr Stewart's WorkCover claim. During the conference Professor Studdert "denied absolutely" that Mr Stewart's condition could be related to his work.

* Removal as subject coordinator: During Mr Stewart's absence from work in late 1996/early 1997 he was relieved of his responsibility as subject coordinator for his specialist subject, Veterinary Pharmacology. Professor Studdert took over this role and during 1997 changes were made to courses in Veterinary Pharmacology without consultation with Mr Stewart. In particular Dr Walker was invited, in a letter from the Dean Professor Caple dated 3 July 1997, to be the subject coordinator for a new subject to be known as Veterinary Biochemistry and Pharmacology. Dr Walker was advised that "external lecturers" would be used for some of the pharmacology components. No reference was made to any involvement by Mr Stewart, either in teaching the pharmacology components or in preparing the curriculum. On this basis Mr Stewart concludes that "It would seem therefore by 3rd July 1997 Professor Studdert and Professor Caple had already decided to limit my involvement as a lecturer."

* Previous lack of assistance: as Mr Stewart's supervisor through the 1990s Professor Studdert has opposed initiatives taken by Mr Stewart to expand his

research activities. Two examples are given. First, as a member of the Melbourne University Equine Research Fund, Professor Studdert opposed an application made by Mr Stewart in late 1995 for funds to develop a collaborative project in equine cardiology with the Department of Pharmacology prior to more extensive applications to the ARC and/or NH & MRC. Second, Professor Studdert opposed Mr Stewart's application for study leave (SSP long) in 1997.

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

"I refer to your letter dated 27 January in which you request for the second time a review of my decision to reject your request for a new supervisor under Clause 7 of the Universities and Post Compulsory Academic (Conditions) Award.

You make a series of serious allegations about the integrity and competence of Professor Studdert who has been your supervisor for many years. I am unable to judge their correctness. I would not be able to act without seeking comment from Professor Studdert. I doubt the wisdom of doing so now, and in any case the confidential nature of your communication seems to preclude an investigation.

I have had legal advice that I am unable at this stage to nominate a new supervisor. I am advised that, in making the decision under Clause 11(e)(ii) of the Award that a further review is necessary to ensure steps contained in Clause 11(d) have been followed, I have no option but to return it to the supervisor who made the original submission.

For this reason, I believe I cannot accede to your request for change of supervisor.

In my view, the unsatisfactory performance provisions of the Academic Award contain safeguards against bias and victimisation. Any judgement on unsatisfactory performance must be made as part of an assessment of performance against clearly specified objectives. If a case alleging unsatisfactory performance is made, my responsibility as CEO is to ensure that fair process has been followed, that the staff member has indeed failed to meet the performance objectives, that such failure can be demonstrated objectively and that the performance objectives were reasonable given the experience and academic level of the academic staff member. My understanding is that Professor Studdert has set performance targets and a timeframe in which they should be met.

I am heartened to note that you do not claim that the performance objectives set are unreasonable or biased in any way. If you meet the performance targets, it would be difficult for me to come to a decision that disciplinary action should be taken.

If I receive a recommendation that the performance targets have not been met, and that disciplinary action should be taken, before making any decision under Clause 11 of the Award, I must take into consideration any information you may present, including claims of bias, victimisation or prejudice. Thus, while noting your claims, I believe the appropriate time for me to formally consider them would be if I receive a recommendation that disciplinary action be taken.

I would encourage you at this stage to work to achieve the performance objectives set."[33]

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

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

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

"Preparation for teaching - Tony stated that he had only just received the latest timetable and had barely had time to look at it. He did however inform Virginia that he is currently under treatment for an intestinal disorder and had informed Maureen Barnard that he would not be available for our earlier scheduled meeting on 17 February 1998. This condition caused bouts of diarrhoea between 5.00 am and 10.00 and thus it was difficult for him to drive to work. It was therefore suggested by Tony that it would be safer to schedule his lectures after 11.00 am and he had asked Wayne Kimpton to organise this. Virginia responded that this was the first time she had been informed of his condition and this posed problems to reschedule his teaching timetable. She also commented that responsibilities to the teaching schedule needed to met and requested something in writing regarding Tony's condition and the impact of this on his ability to undertake duties at the workplace as soon as possible. Virginia requested Tony give her as much notice as possible regarding his requirements and she would try to accommodate his needs as much as possible. Tony responded that his specialist is on leave until 5 March and that he would seek a report from his GP. Virginia requested this be delivered to her by Friday to allow plenty some time to accommodate his needs."[39]

[34] A report concerning Mr Stewart's medical condition was provided by Dr Fraser on 25 February 1998.[40] Dr Fraser's report states, among other things:

"Tony was formally referred to me by another general colleague on 7 Feb for review. He had developed a patch of hyperaesthesia and increased skin temperature on one leg after colonoscopy. Acute venus thrombosis was excluded and these findings disappeared. Otherwise his only troublesome symptom was the diarrhoea caused by colitis and his general health remains normal in other respects...

In addressing the specific questions you have put, I can only be guided by the symptom patterns that Tony describes; that is, the severity and frequency of his diarrhoea, since there are virtually no signs on examination that can be used for the purpose (and indeed if there were, there would be no question of his working at all). The diarrhoea seems to occur most frequently in the early part of the day, from 3.a.m. onward, and is much less likely or urgent from 10.30 to 11.00 a.m. During this time, it is not likely to occur at intervals of less than one hour. Tony tells me that if he leaves home after 7 a.m. and before 9 a.m. the journey may take 1 ½ hours or more, which makes it impractical to assure that he can arrive before 10.30 - 11 a.m. when the colitis is active. This would compromise his 9 a.m. lectures, and his prac. classes starting at 10. a.m. In answer to the issues put in Section (a), therefore, I am forced to say that his condition might prevent his commencing classes at the given times intermittently_. The delay would be most likely to extend to 10.30 - 11 a.m._

(b) The prognosis for the condition is good. The grading of the disease is relatively mild, especially in terms of any serious complications. It is impossible, however, to put a definite time to the complete remission of his diarrhoea. There is an excellent prospect that the underlying disease itself will be brought into complete remission and that his only disabling symptom will be brought under control much more quickly in the light of his early response to treatment. Late March or early April would not be an unreasonable estimate if he can tolerate an effective dose. The only indications of intolerance to date are those I have mentioned above, though any effects from the sulphapyridine moiety of the drug might not appear until the dosage reaches a much higher level, which might in fact not be necessary."

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

"You may be aware that Dr. Fraser forwarded his medical report, as authorised by you, to me today, Friday, 27 February. In it, he has clarified a bit further his assessment of your medical condition and the likely restrictions on working hours which may be required. He does, however, indicate he is guided by information you provide to him about your symptoms.

As you will know from considerable past experience with the undergraduate teaching program, there are many limitations on whether changes are possible in the timetable, particularly at this late stage. Teaching commences on Monday. As well having to work with the limited range of opportunities to reschedule any teaching hours, I have an obligation to maintain continuity of the teaching program and minimise inconvenience to students and other staff.

To assist me in trying to see how we can meet your requirements, would you please tell me how many days in the past 2-3 weeks your condition has prevented you from arriving at work by 9:00 am and, with that in mind, how you currently assess the

probability of meeting teaching commitments by 9:00 am in the next 3 weeks? I would appreciate receiving that information by fax on Monday, as I will be teaching until late in the day."[41]

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

"While I am hopeful of the treatment producing a satisfactory outcome in due course, there have been problems in reactions to the drug prescribed. These have made the outcome less predictable, as Dr. Fraser has stated. Thus at the present stage there is a high level of probability of my being unable to attend at 9am.

The uncertainty has been increased by bouts of diarrhoea at 6 am, 8am and 9.15 am this morning, within what has become a common daily time course; and also a bout at 1.30 pm last Monday, which was outside the usual time period.

As you directed in our conversation this afternoon, I shall examine the timetable for other times when my presence can be more certain."[42]

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

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

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

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

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

"This is to document that Dr Stewart is a patient of mine who will be reviewed again on Wednesday, 1st April.

This is to document that in my opinion he has been medically unwell to perform all his professional duties for the last three weeks and I will supply details about this in time. I consider that he is not likely to return to full working capacity for another three weeks

and therefore recommend that a review of his duties be deferred for four weeks on medical grounds. During the next four weeks I will supply a more extensive report detailing the medical reason for this recommendation."[47]

[42] Professor Studdert sent two facsimile messages to Dr Orchard on 1 April 1998.[48] In the first document Professor Studdert notes that Dr Orchard's letter of 30 March 1998 was "the first notification I have received of Mr Stewart's inability to carry out his full duties." In the second message Professor Studdert sought a confidential report concerning Mr Stewart's medical condition, dealing with the following issues:

"(a) During the 3-week period you advise he will `not be likely to return to full working capacity' (30 March to 20 April, inclusive), Mr. Stewart is scheduled to undertake five 1 hr lectures and three 3 hr- and one 2 hr practical classes at the University of Melbourne at Parkville. Will he be able to meet these teaching commitments, which will include preparation of lecture material, preparation of lecture notes for students, and delivery of the lectures at scheduled times?:

(b) Please comment on his ability to attend the work place at other times during normal working hours and his ability to carry out normal day-to-day administrative tasks associated with his position at the University during these hours.

(c) Please comment on the prognosis for his condition. In particular, by what date do you currently expect he is likely to return to full working capacity?

(d) Is Mr. Stewart under medication? If so, are there any consequences of taking that medication which would affect his ability to perform his assigned duties, particularly delivery of lectures and assessment?"[49]

[43] Professor Studdert sent a further facsimile message to Dr Orchard, on 2 April 1998, in which she asked for the medical report referred to in her earlier correspondence be provided by 6 April 1998.[50]

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

"Following the interview with Dr Stewart on Wednesday, 1st April, which included discussion of your two letters, I wish to inform you that I was in error in agreeing to write in detail the medical reasons for the recommendation of deferment for four weeks. You are no doubt aware that the law provides for medical practitioners to withhold specific medical details from employers at the discretion of the doctor. However, I am prepared to state that over and above Dr Stewart's medical condition of which you are aware, there have been three major medical emergencies in his life over the last three weeks and this has prevented him from attending to a few matters which would be looked at at the time of his professional review. It seemed therefore appropriate to ask for a deferment of the professional review for four weeks during which time Dr Stewart explained to me that he will be able to attend to the requests from you.

With respect to Dr Stewart's professional functioning over the next four weeks I wish to inform you that he is now improving in wellbeing and believes that he can quite competently cope with most of his professional duties. I assess him as being fully able to meet all the professional requirements to do with his lecturing duties including visiting the department from time to time to do with administration to do with these duties. Dr Stewart tells me that he may be able to attend practical classes but his attendance there is not crucial to the functioning of the classes and I have given him the clear request that he place his medical health at the forefront of his present concern and rest at home as much as possible and only attend practical classes if this will not compromise his medical wellbeing.

Dr Stewart is on medication but this should not affect his ability to perform delivery of lectures and assessment. In fact his health should improve quite significantly over the next four weeks such that I consider he will be fit to return to full professional duties.

With respect to Dr Stewart's prognosis, I envisage that, barring new developments, he should be fit to attend to his professional duties without restriction for the next few years."[51]

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

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

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

"Mr Stewart consulted me today as an emergency having received a couriered letter from you dated 17 April, 1998 and received on Saturday 18 April at 11am.

In the middle paragraph of the first page of the letter you assert that my medical certificate to you is `not satisfactory' and I note the implicit contempt. Mr Stewart tells me that he will be separately sending you a copy of the medical certificates supplied by Dr Duncan Mansie dated 20-25 March 1998 and 25-28 March 1998.

Mr Stewart today gives me permission to write in some detail about his sicknesses and I am prepared to highlight these because I have now read through a number of your letters and I have no doubt whatsoever that they constitute serious psychological

harassment to someone who is quite seriously medically sick. I regret that a person in your authority fails to respect the medical certificate particularly when it is clear from my letter of 2 April, 1998 that I have gone into some detail to be accommodating to you. Even though Mr Stewart has been quite medically sick, he has done his best not to inconvenience students and to meet his lecturing commitments. I am sure that you must also be aware that medical practitioners are protected by law not to supply medical details to an employer if they consider it is medically advisable to do this. I notice that Dr Duncan Mansie, in his two medical certificates, also has withheld details. It is also my understanding that when Dr Robert Fraser, supplied a certificate early this year documenting Mr Stewart's chronic illness of ulcerative colitis, you wrote again to Dr Fraser asking for more details.

Mr Stewart has been under serious personal stress over the last few years as a consequence of a marital separation and the legal consequences of this. For this he has attended me on a number of occasions and he has been on a specific antidepressant drug. I feel confident that you must be aware that ulcerative colitis is a well known psychosomatic illness regularly arising in a setting of stress and having quite an enervating effect on the patient. Mr Stewart is on a specific drug for ulcerative colitis and on 27 March, 1998 I again put him onto a specific antidepressant medicine which he still takes and which I have recommended that he take long term. One of the complications of ulcerative colitis is that it can turn into a malignancy.

Over the last seven weeks Mr Stewart has had a number of misfortunes. On 3 March, 1998 his daughter, Kate, fell and fractured a leg and on this day Mr Stewart tells me he took one day of compassionate leave. There were medical and social complications of the fracture but Mr Stewart only took one day off, even though entitled to more, in order not to inconvenience his students. On 8 March, 1998 he was kicked in the face by a horse and narrowly escaped death and/or serious injury. He attended Dr Michael Paszylka on 9 March, 1998 at the University Student Health Service resulting in that day being taken as sick leave. Approximately ten days after this incident, probably triggered by the psychological trauma of the event, Mr Stewart developed a severe influenzal infection for which he attended Dr Mansie.

Secondary to the influenzal infection, Mr Stewart developed a very serious subcutaneal infection over the bridge of his nose and over the butterfly area of his face. This may have been a spread from the abrasion of the horse kick. It is a serious area in which to have an infection and this area is sometimes called the danger area of the face because infections in this area frequently can spread via penetrating veins to the meninges and cause a meningitis. Dr Mansie treated this first with Amoxil and then switched to another antibiotic, Keflex, which dosage had to be escalated.

Mr Stewart requested the appointment with me on 27 March, 1998 as a consequence of the development of his illnesses, the state of exhaustion that he had experienced over the previous three months and because his ulcerative colitis was not satisfactorily resolving. I was left in no clinical doubt that his ill health was significantly determined by psychological harassment from yourself and I would be prepared to give evidence in court should there be a need.

Reviewing some of your letters, written when you are clearly informed that Mr Stewart has a serious medical illness, I do not doubt that independent witnesses would regard the tone of your letters to be persecutory and administratively inappropriate.

With respect to your last letter, which I consider to be bizarre and offensive, both to Mr Stewart and myself, I wish to point out that even though you entitled the letter to be confidential, you also faxed the letter through to the general fax for the department making the matter public knowledge.

Mr Stewart tells me that he had three molars removed on Easter Tuesday, 14 April, 1998 in order to minimize interference with his university commitments.

I have recommended to Mr Stewart that for medical reasons he not supply the material requested of him by 5pm today and that he aim to submit the requirements on the date as previously recommended according to my medical certificate dated 30 March, 1998."[54]

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

"Insofar as your letter provides information concerning Mr. Stewart's medical and other circumstances, I have taken that information into account in my further communication with Mr. Stewart today."[55]

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

[50] On 22 April 1998, Professor Studdert extended the review period by four weeks to 27 April 1998.[56]

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

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

"In all the circumstances (whether based on the review period alone, or in conjunction with the period covered by my previous report), I consider that there has been a substantial failure to achieve reasonable standards of work performance in relation to each of the areas of duty required of Mr. Stewart at any level of Academic appointment in the University. I therefore recommend that action be taken in accordance with Clause 11 of the Award, subject, of course, to compliance by the University with other steps required by that clause."[58]

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

"Yesterday, after a consultation with Dr. W. H. Orchard earlier in the day, I received copies of a letter to you and a report by Professor V.P. Studdert, dated 11 May 1998. This afternoon, I have returned to my office after another consultation with Dr. Orchard. As Professor Studdert's harassment of me this year has been detrimental to my health and counterproductive to both my teaching and research, there are a number of omissions in Professor Studdert's report and other matters, which need to be addressed and/or corrected.

As a result, both Dr. Orchard and I will be writing to you in more detail early next week. Meanwhile, I request you wait to hear the other side of the case before making your decision."[59]

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

"I refer to your fax dated 15 May 1998, concerning the report by Professor Virginia Studdert on your performance.

I am bound by the provisions of the Universities and Post-Compulsory Academic Conditions Award 1995 to provide you with 10 days in which to respond to that letter, and have therefore taken no action and made no decision.

I await correspondence from you and Dr Orchard, which I would hope to receive by the 22nd May 1998."[60]

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

[56] Professor Gilbert received Mr Stewart's response to Professor Studdert's report on 21 May 1998.[62]

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

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

"I recalled the circumstances of my WorkCover claim when I was examined by doctors nominated by the University who expressed opinions contrary to those of my medical practitioner. Given the refusal of the Vice-Chancellor to nominate an alternate supervisor, I did not believe that the University would nominate a medical practitioner who would consider my position fairly. I instructed Mr Thomas to communicate my response to the University."[64]

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

"In my letter I requested that you consent to an examination by a medical practitioner nominated by the University, and further, that you consent to the report from that examination being released to me. A response from you was requested by 29 June 1998. The purpose of this request was to enable me to determine to what extent, if any, your ill health has affected your ability to adequately perform your duties and responsibilities as a Senior Lecturer.

I note that your Union informed the University on 26 June that you were consulting your own medical practitioner on 29 June 1998, but to date no response to my request has been received. I understand you returned to work today and therefore, I have proceeded to make my decision on action under Clause 11(e) of the Award.

Following careful consideration of the information before me, I have determined that I should take disciplinary action in accordance with Clause 11(e)(iii) of the Award. I have decided that the most appropriate course of action is to terminate your employment with the University.

Under Clause 11(g) of the Award, you have 5 working days in which to request a review of this decision in accordance with Clauses 13 and 14 of this Award. I formally give you notice that in accordance with the notice period stipulated in your employment contract, your employment with the University will cease on 31 January 1999."[65]

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

"Mr Stewart showed me a copy of your letter [of 23 June 1998] and I am writing to clarify a matter.

My recommendation to Mr Stewart that he consider retirement was on the basis that the stresses to which he was subjected at work were seriously detrimental to his health. Ulcerative colitis is a particularly serious medical problem because if it persists, it can predispose towards the development of a particularly malignant form of cancer of the colon. My recommendation was not on the basis that I considered Mr Stewart medically unfit to work or sufficiently ill to impair his work performance."[66]

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

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

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

" (a) Where an academic has made a written application for a review of disciplinary action under subclause 11(g) the CEO shall convene an Unsatisfactory Performance Review Committee no later than 10 working days from the date of receipt of such a review application.

(c) Where a committee is established by the CEO under subclause (a) or (b) the committee shall consist of three members one from each of the following pools of potential committee members:

(i) a pool of persons from within the institution chosen by the CEO;

(ii) a pool of persons from within the institution chosen by the institutional union branch;

(iii) a pool of chairpersons agreed between the CEO and the institutional union branch.

However the CEO shall not finalise the composition of a committee before consulting with the institutional union branch.

Where unusual circumstances exist the CEO and the institutional union branch may agree that persons other than those nominated to the pools (whether staff members or not) may be appointed to committees.

(d) All institutions shall act as expeditiously as possible to establish appropriate pools in accordance with subclause (c) and the institutional union branch as appropriate shall extend full cooperation in the process.

(e) Where a committee needs to be formed and appropriate pools of committee members have not yet been established, then the CEO shall confer urgently with the institutional union branch to agree on a chairperson and to exchange nominations of the other two committee members. The union shall extend full cooperation in establishing the committee.

(f) Each of the committees established in accordance with subclause (a) or (b) shall:

(i) provide an opportunity for the academic to be interviewed by it and ensure that he/she has adequate opportunity to answer findings of unsatisfactory performance, or allegations of misconduct or serious misconduct. The committee may take into account such further materials as it believes appropriate to substantiate or otherwise the facts in dispute;

(ii) interview any person it thinks fit to establish the merits or facts of the particular case;

(iii) conduct all interviews in the presence of the academic or the academic's advocate and the CEO or his or her advocate;

(iv) allow the academic and the CEO each to be assisted or represented by an agent of his or her choice who is a staff member of the institution (but not if such a person is a currently practicing solicitor or barrister), or by an officer or staff member of the union or the AHEIA;

(v) conduct proceedings as expeditiously as possible consistent with the need for fairness;

(vi) conduct proceedings in camera (unless otherwise agreed by the union and the CEO) and as a committee of inquiry;

(vii) take into account such further material as it believes appropriate to the case;

(viii) ensure that the academic or his/her representative and the CEO or his/her representative have the right to ask questions of interviewees, and to make submissions. They also shall have the right to present and challenge evidence;

(ix) make its report available to the CEO and the staff member as soon as reasonably possible;

(x) the committee shall keep a tape record of the proceedings (but not its own deliberations), which shall be available on request to either party."

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

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

"While the process undertaken by Dr Stewart's supervisor may not necessarily have been the ideal process, the majority of the Committee has formed the view that it conformed with the process in clause 11 and that disciplinary action was used as a last resort."[69]

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

* appointment of a new supervisor - it was said that the University erred in refusing to nominate an alternative supervisor to handle the review;

* reasonable opportunity to remedy the performance problem - it was said that it was only on September 1997 that Mr Stewart could have reasonably understood that his performance was under review and on this basis the time frame for improvement was too short; and

* reasonable opportunity to respond/response taken into account - it was said that Professor Gilbert did not take Mr Stewart's response to Professor Studdert's report into account and hence breached the Award.

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

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

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

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

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

"(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee--whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) any other matters that the Commission considers relevant."

[72] In Byrne v Australian Airlines[71] the High Court considered the meaning of the expression "harsh, unjust or unreasonable" in the context of clause 11(a) of the Transport Workers (Airlines) Award 1988. That clause provided:

"Termination of employment by an employer shall not be harsh, unjust or unreasonable. For the purposes of this clause, termination of employment shall include terminations with or without notice."

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

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appeared to concede this. But the burden of the respondent's submissions is that there was error in determining the issue without regard to the very material circumstance of the finding of the primary judge as to the complicity of the appellants in pilfering. Those submissions should be accepted. This means that the primary judge was bound to consider whether, on the evidence given at the trial, the respondent could resist the allegation of breach of cl 11(a), provided that the evidence concerned circumstances in existence when the decision to terminate employment was made."

[74] Given that the observations in the joint judgment were made in a different context they are not binding[72], but I find them highly persuasive. In my view, for the purpose of s.170CG, a termination of employment may be:

* harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

* unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

* unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

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

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

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

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

"(a) her views are evident from her statements in paragraphs 8 and 9 of her Statement;

(b) her surreptitious conduct of the 1997 review, a review which was conducted by her in circumstances where she knew that Mr Stewart did not regard his performance as being under review (he regarded it as a return to work program) and yet she decided not to tell him (pages 534 to 538);

(c) her decision to recommend termination of a Senior Lecturer with 33 years service to the university and so close to the retirement age can only give rise to the implication that she had a deep and unshakeable belief in what she regarded as his unsatisfactory work performance;

(d) the terms of the letter of 26 December 1997 itself which carry the implication that it is for Mr Stewart to demonstrate that he can achieve satisfactory work performance in the review period; and

(e) her evidence at pages 541 to 543 (which, it is submitted, was evasive) supports the inference that at the time she formulated the tasks she had firm views about Mr Stewart's capacity."[73]

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

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

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

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

[82] In his statement Professor Gilbert said:

"My statement, to which Mr Stewart refers, to the effect that none of the academics present at the meeting would be victimised for their support for this proposal, was in response to a comment made by an attendee at the meeting and was not in response to an allegation of victimisation or to address any specific concern that victimisation was occurring or was a real possibility as a result of attendance at the meeting. It was by way of reassurance only. I at no stage took seriously the likelihood of any victimisation. The issue of merger was discussed and resolved amicably between the relevant Deans. The matter did not proceed."[76]

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

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

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

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

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

"Another example is Dr Kimpton who has had my strong support in each of his career moves and promotions, first from Research Fellow to Senior Lecturer in 1992, from limited tenure employment to a continuing appointment in 1994, then promotion from Senior Lecturer to Associate Professor and Reader in 1995/96. In addition, his research unit, which includes Professor Cahill, has always had my strong support for funding applications, right up to the present."[81]

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

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

"Mr Stewart's letter of 27 January and his Statement (paragraph 18) refers to a meeting with the Vice-Chancellor on 30 April 1997 concerning a proposal to merge the Faculties of Veterinary Science and Agriculture and Forestry. I was not informed at any time that Mr Stewart attended this meeting."

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

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

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

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

"In 199[6], Mr Stewart made a Special Studies Leave application. Before I was asked to add a report in accordance with standard procedure on his application, his application was initially rejected by the University committee that considers these matters because it did not conform with the guidelines for when and where study leave is supposed to be taken. In response to a special request by the National Tertiary Education Industry Union, Mr Stewart was given the opportunity to resubmit his application, but he needed to correct his earlier omission in not having the Dean and Head of Department add their reports. I was unable to be supportive in my report because, even in its revised form, the proposed program did not meet the criteria I was required to apply. I was also conscious that it was my responsibility to provide advice in my report to ensure that University funding expended for this type of leave was appropriately allocated. Mr Stewart took long periods of time to resubmit his application each time it was returned to him, until it was finally submitted approximately 6 months late. The Director of Human Resources then ruled that Mr Stewart's application was too late to be considered."[85]

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

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

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

"I was not in a position to and did not dismiss his claim. I understood that the University had rejected the WorkCover claim on the basis of the medical reports it had obtained. In accordance with my statement to the University's WorkCover claims investigator, to the best of my recollection I did say that I was not aware of any evidence, based on workloads or any previous advice by Mr Stewart, to suggest that Mr Stewart's medical condition was work-related."[87]

[96] Professor Studdert was not cross-examined on this issue and her evidence is supported by the documentary material.[88] Further, during his cross-examination Mr Stewart accepted that his WorkCover claim had been rejected by the University on the basis of the medical reports provided to it[89] and he did not contradict Professor Studdert's recollection of what she said at the conciliation conference.[90]

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

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

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

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

"As teaching was scheduled to commence on 3 March 1997, all curriculum planning, scheduling and course guide production had to be completed prior to this date. In addition, Mr Stewart had made application to the University for Special Studies Program (Long) - Study Leave, on 23 September 1996, requesting a confirmation of annual leave, long service leave and study leave which would have resulted in his absence from the University for most of 1997. A decision on his application was pending until 25 March 1997.

In these circumstances, to ensure continuity of the teaching program for the 1997 academic year, the Dean determined that Mr Stewart was to be relieved of his duties as Subject Co-ordinator of Veterinary Pharmacology in 1997. He was advised of this by letter dated 13 January 1997, which was copied to me."[91]

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

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

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

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

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

* the nomination of an alternative supervisor would not allow a complete and thorough carriage of the process already underway;

* any allegations about Professor Studdert's capacity to conduct the review fairly had to be balanced against the fact that Mr Stewart's performance was to be evaluated on the basis of objectively assessable criteria;

* Professor Studdert has considerable experience in objectively assessing the performance of academic members of staff. She has had extensive involvement in Academic Promotions Committees within the University and is regarded as a key academic in the area of performance assessment; and

* to allow the changing of a supervisor upon the basis of an unsubstantiated allegation was inappropriate as it would effectively allow any supervisory appointment to be challenged by any member of staff.[93]

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

"On the basis that Professor Studdert's view as to Mr Stewart's work performance was not based on the quality of his academic work, but rather on the quantity and actual performance of his duties, I concluded that any bias or alleged bias would not impair or detract from the assessment process."[94]

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

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

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

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

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

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

* it was appropriate to use a meeting convened for the purpose of discussing a return to work program for Mr Stewart as an opportunity to set performance

targets and goals to be met by Mr Stewart in order to formally assess his performance.[95]

* there was no need to inform Mr Stewart that he was to be subject to a formal performance appraisal based on his return to work program.[96]

* there was no need to discuss her conclusions with Mr Stewart prior to forwarding a report to the Vice-Chancellor.[97]

* having concluded that Mr Stewart's performance was unsatisfactory the report to the Vice-Chancellor had to include a recommendation as to the disciplinary action to be taken.[98]

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

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

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

"8. As a result of my duties as Head of Department, and my involvement in reporting and monitoring curriculum development in accordance with strategic plans and Australian Veterinary Schools Accreditation Committee ("AVSAC") recommendations, I had been aware that, since 1991, Mr Stewart's performance had not been consistent with the Position Classification Standards for a Level C academic.

9. As the emphasis on accountability for the University as a whole, based on performance indicators, has increased over the last several years, the need to ensure that all members of a Department are contributing and performing at a level consistent with their position, has also increased. Accordingly, the performance of individuals is assessed by reference to key performance indicators developed in respect of the position. During my time as Head of Department, Mr Stewart's performance by reference to key performance indicators applicable to a Level C academic was noticeably below that of other staff appointed at a similar level."

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

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

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

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

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

"Although I recognise that it can be difficult to successfully work through a performance review, I intend to make every reasonable effort to help you to achieve satisfactory levels of work performance, and I trust that you will enter into the process in the same spirit."[100]

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

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

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

"(a) Each academic shall have a nominated supervisor, and shall be advised in writing of the name and position of the nominated supervisor. Academic staff may request the nomination of an alternative supervisor."

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

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

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

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

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

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

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

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

"14. The failure of the Respondent to comply with its own procedures meant that its expectations and requirements (or, more precisely, Professor Studdert's) were never specified (or properly specified) and for a considerable period of time the required process of consultation referred to by Professor Gilbert did not take place.

15. Any inconsistencies in the expectations or understandings of Mr Stewart and Professor Studdert can be attributed to the Respondent's failure to observe its own procedures. In the absence of such compliance, the unilateral imposition of

tasks, ie. unrelated to previous specified responsibilities, was inherently inappropriate. The 1998 review was not based on proper foundations."[102]

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

* preparation and delivery of lectures in Veterinary Pharmacology and Veterinary Physiology 1 as timetabled;

* supervision and conduct of practical classes on Veterinary Pharmacology and Veterinary Physiology 1 as timetabled. The letter goes on to state: "since you how have prior experience with those exercises you commenced in 1997, I expect a higher level of responsibility with more assistance to be given in each case";

* revision of lectures and lecture notes in Veterinary Pharmacology to take into consideration revisions in the new curriculum for 1998, to be commenced immediately with substantial progress being made in Semester 1;

* revision of cardiovascular lecture notes to incorporate notes in respect of the lecture on antiarrythmic drugs to be completed by 31 March 1998;

* to report on how multimedia may be incorporated into Mr Stewart's teaching, in line with the University's operational plan for 1998 to increase the use of multimedia in undergraduate teaching. The letter states:

"... in the first instance, you should contact Associate Professor Kevin Whithear to obtain advice on how you might make best utilisation of multimedia in your teaching, as well as investigating how other veterinary faculties, in Australia and internationally, utilise the World Wide Web and multimedia in their teaching programs. By end February 1998, I would like you to provide me with details in writing of what action you have taken to meet this objective. This should include a drafted outline of the computer-based practical examination for Veterinary Pharmacology you said you wanted to develop in 1997."

* display a notice at the Preclinical Centre informing students of when he would be available for consultation (copy of notice to be forwarded to Professor Studdert by 2 March 1998);

* to be available for a minimum of four hours, over at least two days, per week for student consultation;

* to comply with marking and assessment responsibilities as requested by Subject Co-Ordinators, the Chief Examiner and the Assistant Registrar.

* by 31 January 1998 to provide evidence of one paper that had been submitted for publication arising from work carried out by Mr Stewart's Bachelor of Animal Science Student in 1996 ("Paper 1") or if not submitted, reasons for non-submission and a timetable for submission;

* by 31 January 1998 to submit to a refereed journal at least one of the papers arising from his own original research which has been in the course of preparation but which has not already been submitted ("Paper 2");

* by 31 March 1998 to have in the final stages of preparation a further publication for submission to a refereed journal ("Paper 3").

* submission of a plan for development of his research activities, including provision of applications for funding or confirmation of specific collaborative links. To be provided by 15 January 1998 as well as copies of any grant applications submitted in 1997 (this date was subsequently deferred until 17 February 1998 - see document 87 in Exhibit University 1).

* by 31 March 1998 to provide evidence of progress made in following his 1997 research development plan (referred to above), and to provide copies of grant applications made in 1998;

* provision of details or steps taken to develop a post-graduate training program in Veterinary Pharmacology or Cardiology, or collaborations entered into to permit participation by Mr Stewart in post-graduate supervision in 1998;

* attendance at the "Research Orientation Workshop for New Academic Staff" on 15 February 1998.

* attendance at the workplace, as a general rule, during normal working hours;

* to notify the Assistant Registrar's office when he was in the Preclinical Centre and when he was going to be away.

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

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

of the objectives. In my view the particular requirements set related to Mr Stewart's obligations as a senior lecturer or Level C academic. The position classification standards for such a position require specific standards of performance in respect of teaching, research and administration[103].

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

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

- supervision and conduct of scheduled practical classes;

- consulting with relevant subject and year co-ordinators;

- review and revise pharmacology and cardiology lecture notes;

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

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

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

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

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

"(a) he had produced only one refereed publication since 1985 (and that was in 1990);

(b) he had not supervised a postgraduate student since 1982;

(c) he had not obtained research funding since 1991;

(d) approximately only 500 hours per year could be accounted for by Mr Stewart's teaching load (comprising 100 student contact hours, and an allowance for lecture preparation and examination marking and reporting of approximately 400 hours), and he had light administrative duties. A full time academic should be able to account for 1800 hours per year ..."

"In light of Mr Stewart's moderate teaching load and minimal administrative responsibilities, and the significant shortfall of accountable hours for full time academic activities, significant research activities would be expected. It is generally accepted that the distribution of effort between the performance areas of a member of academic staff may vary from year to year and may vary from staff member to staff member. In other words, by way of example, if a staff member has a high administrative load relative to others, then the expectations of that staff member in other areas (such as teaching or research) would be correspondingly diminished. In these circumstances, the failure by Mr Stewart to obtain funding for research activities since 1991 and to actively pursue research funding opportunities was of considerable concern. That Mr Stewart's research activities were not of a level expected of a Level C academic was reinforced by his failure to supervise a post-graduate student since 1982. It is expected (and has been for the last ten years or so) that academics seek out funding and grants for research projects. Mr Stewart failed to obtain any funding in the seven years prior to his termination in circumstances where all other members of academic staff in the Department, above Level A, were involved with at least one externally funded research project. Further, during this period there is record of Mr Stewart submitting only two applications for research grants; one in 1992, and another in 1995. Both were unsuccessful. Further, I refer to paragraph 126 of this statement in respect of this aspect."[105]

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

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

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

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

"No performance appraisals were conducted in the Faculty in 1996 (in respect of the 1995 academic year). A performance appraisal was not carried out in 1997 as Mr Stewart was absent on sick leave and other leave during the relevant period. An appraisal was not conducted following his return from leave in March 1997 as Mr Stewart was involved in a program of work objectives, which followed a recommendation for a "return to work" program from a Work Cover conciliator. In

1998 no appraisal was undertaken in respect of 1997 as Mr Stewart's performance was already under review, in circumstances set out in more detail in this statement."[107]

[137] It is apparent that contrary to the policy of the University, no formal performance appraisal of Mr Stewart took place in respect of the 1995, 1996 or 1997 academic years. But in my view this did not impact on the fairness of the January to April 1998 review. I am satisfied that Mr Stewart was aware of the perceived deficiencies in his performance prior to the commencement of the review. On 12 September 1997 he received a copy of a letter sent from Professor Studdert to the Vice Chancellor[108]. The letter contained a number of allegations regarding unsatisfactory work performance and recommended that Mr Stewart's employment be terminated.[109]

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

"... having published 200 papers myself, you just don't write a paper when someone else tells you to write it. You write a paper when the results are ready and when you have got the data together and you have got around it."[112]

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

"I refer to paragraph 4[3] of Mr Stewart's statement in which he refers to the deadlines imposed on Mr Stewart by Professor Studdert as part of the review of his performance conducted in 1998. Based on my experience in having research papers published, I believe that these deadlines were very unrealistic. Because the process of preparing a paper for publication depends very much on the co-operation of third parties including collaborators, referees and publishers, the process is often drawn out and time lines cannot be predictably determined. Moreover, the views of collaborators and referees will often result in the need for further research and/or revisions of the paper."[113]

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

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

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

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

"1. Equine Atrial Fibrillation, Cardiac Glycoside and Quinidine Therapy.

... More recently attention has been paid to signs of quinidine toxicity in the horse and improved means of administration using the intravenous route, in conjunction with Professor C. B. Chapman of the Victorian College of Pharmacy, and Dr. P. Huntington, Equine Species Specialist of the Victorian Department of Agriculture.

This research provided the basis for 1991-92 Summer Vacation Scholarships for two successful Third-year students, Miss K. Blaszak and Mr. P. Sammartino. It is anticipated that the work with these students whilst in Fourth- and Fifth-years will provide the basis for a publication on the subject_. ..._

4. Cardiac Toxicity of Phalaris Alkaloids in Sheep

This study was undertaken earlier in conjunction with Dr. C. Culvenor of CSIRO Animal Health Laboratory, Parkville. It was the subject of a staff seminar in 1991 and when time permits will be published_._[118][emphasis added]

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

1. Further development as cases become available

2. Application to AERF for grant to work with the undergraduates from last summer

1. Collate data in preparation for publication in 1993_."_[119][emphasis added]

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

"A large body of data accumulated on electrocardiography in the racehorse continues to provide the basis for publication and international and local consultation on the subject."[120]

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

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

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

"During this period, I continued to pursue my interests in equine cardiology and exercise physiology whenever possible, and have data in readiness for publication on several aspects of these fields. Now for the first time since 1979, I have a more manageable teaching load and have been relieved of much administrative work. Thus I welcome the opportunity to recommence publication of material already available here in Parkville. With only five years before retirement and after thirty five years work in equine cardiology, I feel a responsibility to that discipline to publish these results in the context of equine management and exercise performance."[122]

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

"Being the only staff member in my discipline, for several years my heavy teaching load and my administrative responsibilities as Associate Dean (Students-Preclinical) (1986-89 and 1992-94), have permitted less than desired time and resources for my research interests in cardiovascular physiology and pharmacology. Having relinquished the position of associate dean, and in 1995-96 having almost completed revision of my undergraduate courses, including production of the lecture notes and practical manuals now required, I decided that from 1996 my research interests would receive greater attention. To that end, this year I am supervising a B.Anim.Sc. student in equine cardiovascular physiology as well as working on other cardiovascular projects. The B.Anim.Sc project will continue to the end of 1996 and perhaps even into January 1997 for finishing touches to the papers likely to be submitted for publication."[123]

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

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

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

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

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

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

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

[155] In relation to an earlier period - 1996/97 - Mr Stewart accepted the proposition that given his teaching load and administrative responsibilities at that time there was a significant amount of time for research activities.[126] Later in his evidence Mr Stewart accepted that his teaching load had not changed much since 1996.[127] The inference being that his 1998 teaching load also provided a significant amount of time for research and other activities.

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

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

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

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

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

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

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

[161] Bearing in mind that Veterinary Pharmacology was Mr Stewart's specialist subject and one that he had taught continuously since 1965[131] I do not accept Mr Stewart's evidence on this issue. In particular I find it highly improbable that it took 46 hours to reformat and arrange for the relevant lectures to be printed.

[162] Mr Stewart's capacity to meet the review objectives was also affected by illness during the review period. There is a considerable amount of evidence dealing with this issue.[132] I am satisfied that Mr Stewart's ill health[133] would have compromised his ability to meet all of the specified objectives within the original time frame specified for the review. But the University took steps to accommodate Mr Stewart's illness. Lectures were rescheduled to 11 a.m. or later and the review period was extended by four weeks until 27 April 1998.[134]

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

[164] These documents are not medical certificates as such, in that they do not specify a particular period during which Mr Stewart was unable to carry out his duties. The same observation can be made in relation to Dr Orchard's correspondence of 30 March, 2 April and 20 April 1998.[136] Further, in relation to Dr Orchard he recommended that the "review of duties be deferred for four weeks" on the basis of Mr Stewart's ill health.[137] This extension was granted and no further extension was sought on medical or any other grounds.

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

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

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

[168] Mr Stewart's concerns principally related to the impracticability of the deadline of 31 January 1998 for the submission of Paper 2 because it required input from the other authors. Mr Stewart also raised the sequencing of the papers and his desire to complete Paper 2 before commencing on Paper 3. Ms Cooper's letter to Mr Stewart of 13 February 1998[144] clearly sets out the review objectives in respect of this matter.

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

"In your letter to me dated 4 February 1998 you stated, `I am heartened to note that you do not claim that the performance objectives set are unreasonable...'. At that time my interpretation of the objective set out in Professor Studdert's letter, dated 26 December

1997, was that the paper on ionised calcium to the Journal of Applied Physiology would satisfy the requirements for the work with my B.An.Sc. student (1996) and my own original research (1997), and that one other paper would be needed to complete the requirements. However at the meeting with Professor Studdert on 18th February 1998, she indicated she required three papers by 31st March 1998. As my interpretation was for work on two papers by that date, and in view of the apparent change in objectives, I now claim those objectives were unreasonable. Again this appears to indicate lack of understanding by Professor Studdert of the processes involved in producing papers for international journals."[145]

[170] In the above extract Mr Stewart claims that there was an "apparent change in objectives" in respect of research papers required which rendered the objectives unreasonable. In my view the objectives did not change in the manner suggested by Mr Stewart. The review letter sets out the relevant objectives and they were dealt with in Ms Cooper's letter of 13 February 1998 and were discussed at the review meeting held on 18 February 1998.[146]

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

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

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

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

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

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

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

* delivery of specified lectures (when scheduled);

* consultation with relevant subject and course co-ordinators (before 2 March);

* displaying notice of his availability to students for consultation in his office;

* complying with deadlines for setting and marking examinations;

* attendance at the Research Orientation Workshop in February 1998.

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

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

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

[181] Two other absences were covered by medical certificates provided by Dr Mansie in respect of the period 20-28 March 1998.[150]

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

[183] Mr Stewart was aware of the need to provide a medical certificate to explain why he was absent or unable to perform his normal duties.[151] On 8 April 1998 he submitted an application for ten days sick leave in respect of three periods: 20-25 March; 27 March-1 April; and 3-6 April 1998.[152] The application did not attach any medical certificates but contained the notation "Provided separately by Dr Orchard". Professor Studdert wrote to Mr Stewart on 17 April 1998 stating, among other things, that she was not prepared to approve his sick leave application at that stage because no medical certificate had been provided. Professor Studdert also made it clear that the letters from Dr Orchard, dated 30 March and 2 April were not sufficient for this purpose.[153]

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

evasive under cross examination.[154] He also appeared confused at times[155] and had difficulty recalling specific events[156]. There were a number of instances where he changed his evidence under cross examination.[157] I did not find him to be a credible witness.

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

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

[187] During the course of these proceedings Mr Stewart provided a statement in respect of the issue of his attendance at practical classes held on 20, 22 and 27 April 1998.[158]

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

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

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

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

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

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

"5. On 27 April 1998 I received an email from Professor Virginia Studdert requesting information as to whether Mr Stewart had attended the veterinary pharmacology practical class scheduled that day from 10.00 am to 1.00 pm. A copy of that email is attached at Annexure V1-1.

6. At 11.38 am approximately, on 27 April 1998 I responded to Professor Studdert's email, by return email confirming that Mr Stewart had not, at that time, attended the practical class.

A copy of that email is attached at Annexure V1-2.

7. I have no recollection of whether Mr Stewart attended the remainder of the practical class on 27 April 1998, following the forwarding of my email to Professor Studdert."[161]

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

"All students are accounted for this week and Tony did not attend this class. He called last week to tell me he would not be available but he did not call today as yet."[162]

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

"The subject matter of this class related directly to my lectures on Autonomic Drugs. I have a clear recollection of attending one of the two practical classes on this topic. The other practical class on this topic was scheduled for 20 April, 1998 and, as I have stated above, I did not attend this lecture because of a time-table clash. I have checked my diary entry for 27 April 1998 and there is a notation indicating that I attended this practical class."[163]

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

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

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

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

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

"Your classroom duties in 1998 will, in general, be similar to those of 1997. They will include delivery of specified lectures in Veterinary Pharmacology and Veterinary Physiology 1. You will again contribute to the supervision and conduct of practical classes in both subjects, but since you now have prior experience with those exercises you commenced in 1997, I expect a higher level of responsibility with more assistance given in each case."[165]

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

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

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

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

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

* the revision of cardiovascular notes to include notes to accompany the lecture on antiarrythmic drugs.

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

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

An apparent deficiency in your cardiovascular lecture notes has been brought to my attention. You currently have scheduled an entire lecture on antiarrythmic drugs, but there are no lecture notes covering this important topic. Since these lectures will be given in April, you should have your notes revised to include this material and copies sent to me by 31 March 1998."[166]

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

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

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

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

* consult with Associate Professor Whithear to obtain advice in the issue;

* investigate how other veterinary faculties, in Australian and internationally, use the World Wide Web and multimedia in their teaching programs; and

* draft an outline of a computer based practical examination for Veterinary Pharmacology.

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

"In accordance with your direction dated 26 December 1997, by which details in writing were required by you by end February 1998, I submit a progress report on the following matters:

1. Contact with Associate Professor Kevin Whithear on Best Utilisation of Multimedia in my Teaching.

I have discussed this matter with Associate Professor Whithear and registered my interest in incorporating multimedia into my teaching. I have set this out in an E-mail to him as Chairman of the "Towards the Online Veterinary Course Steering Committee". I then received from him an Aide Memoire of the first meeting of the steering committee, which is scheduled to have its second meeting on 2nd March 1998. I hope to meet the steering committee members after that meeting and obtain a better idea of the budgetary implications for your consideration.

Associate Professor Whithear also informed me that the Information Technology Working Group in the Department, as mentioned in your directive dated 26 December 1997, no longer exists.

2. How other Veterinary Faculties in Australia and Internationally Utilise the World Wide Web and Multimedia in their Teaching Programs.

(a) I have enquired by E-mail to Dr. Elizabeth Post of the Sydney University Veterinary School, with whom I had previously communicated on cardiovascular physiology and am awaiting a reply or referral to the most appropriate person.

(b) I have endeavoured to obtain other relevant E-mail addresses through the Assistant Registrar's office, but so far no others have been found for me. I will continue with this search through other sources as well.

(c) The Pharmacology Department here is active in investigating this, but I have been advised that those working on it have found little of direct value that is freely available.

(d) Nonetheless I have arranged with Mr. E. Ghiocas to explore the internet with this objective, next Tuesday, March 2nd, which is his first available day.

3. Drafted Outline of Computer-based Practical Examination for Veterinary Pharmacology.

This is attached. If it is to proceed to a computer-based examination, negotiations will be necessary with the Pharmacology Department, which has the program. No doubt this will include costs for imaging, data transfer and perhaps software purchase. Do you wish me to proceed along these lines?"[172]

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

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

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

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

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

[216] Attachment C to the University's revised contentions[175] sets out the eight days on which it was said that Mr Stewart was unavailable for consultation with students. Medical certificates were provided in respect of three of these absences and Mr Stewart was absent on compassionate leave on 3 March 1998, in order to assist his daughter who had broken her leg. Of the remaining four days there is some confusion as to whether the University pressed the claimed absences on 6 and 13 March 1998.[176] For the purpose of my conclusion I have assumed that Mr Stewart was available for consultation on those days.

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

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

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

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

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

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

[223] A final draft of Paper 2 was provided by Mr Stewart to Professor Studdert on 31 January 1998. The paper was not submitted to the relevant journal until 11 May 1998. A copy of the completed paper was provided to Professor Gilbert as Appendix F to Mr Stewart's letter of 21 May 1998.[178]

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

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

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

"Work on this paper will be recommenced after the plasma calcium paper has been finalised. In view of other demands on my time in the next two months, data preparation may take 4 - 8 weeks for completion. Writing of the paper in journal format will depend on early responses of J. Appl. Physiol. to the plasma calcium paper. Choice of journal will significantly influence the format used. Writing should commence after First Semester lecture notes in Veterinary Pharmacology and Veterinary Physiology 1 have been completed."[180]

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

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

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

"In your letter to me dated 4 February 1998 you stated, `I am heartened to note that your do not claim that the performance objectives set are unreasonable...'. At that time, my interpretation of the objective set our in Professor Studdert's letter, dated 26 December 1997, was that the paper on ionised calcium to the Journal of Applied Physiology would satisfy the requirements for the work with my B.An.Sc. student (1996) and my own original research (1997), and that one other paper would be needed to complete the requirements. However at the meeting with Professor Studdert on 18th February 1998, she indicated she required three papers by 31st March 1998. As my interpretation was for work on two papers by that date, and in view of the apparent change in objectives, I now claim those objectives were unreasonable. Again this appears to indicate lack of understanding by Professor Studdert of the processes involved in producing papers for international journals.

My second research paper is entitled, `Incidence of T wave abnormalities in the equine ECG and their prognosis for racing performance'. This is an extension of work which I had presented to the 4th International Conference on Equine Exercise Physiology in 1994. Because of interruptions due to medical problems and undergraduate teaching, progress has been slower than expected. Nonetheless, recently I purchased at my expense the two latest copies of the Australian Thoroughbred Statistical Record, which will enable me to bring performance data up to date. Thus the data are almost ready for the final stages of preparation of this paper. Depending on the response from the Journal of Applied Physiology to the paper already submitted, the second paper should be submitted either to that journal or the Equine Veterinary Journal_, published in England."_[182]

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

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

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

"You should also prepare a plan for development of your research activities during 1997, including provision for applications for funding or confirmation of specific collaborative links, and forward that to me by 1st June."[183]

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

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

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

[234] Mr Stewart provided Professor Studdert with his 1997 research plan, updated to February 1998, at the review meeting held on 18 February 1998.[184] No grant applications were made in 1997 or 1998. Counsel for the applicant submitted that Mr Stewart complied or substantially complied with the relevant objectives.

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

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

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

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

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

"As I have no postgraduate students in the department in 1998, I approached Dr. R. Beilharz in the Department of Animal Production, Institute of Land and Food Resources, regarding potential collaboration by me in projects he is supervising and involving racing performance and behaviour in horses. As a result, in March I became a member of the supervisory committee for the project entitled, `The mental evolution of the horse and its consequences for horse training', which is being undertaken by a PhD student, Mr. Andrew McLean. Other members of the supervisory committee are Dr. Beilharz, and Dr. G. Hutson, Department of Animal Production, and Professor P. Hemsworth, VIAS, Centre for Animal Welfare. It is intended now to incorporate continuous Holter-type ECG recording into various stages of the project. Through earlier successful contact with Mr. H. Packer, of Cardiac Agencies Pty. Ltd., Belmont, NSW, I am negotiating for the loan of equipment for this part of the project from Schiller AG, Switzerland."[185]

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

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

[242] The review letter does not specify a time deadline for the submission of the relevant material. But given that there was a nominated review period which was to have concluded on 31 March 1998, and was later extended to 27 April 1998, it is implicit that the relevant information should have been provided to Professor Studdert by the end of the review period. This interpretation is confirmed by the `summary of timelines' document attached to the minutes of the review meeting held on 14 January 1998.[186] Under the heading `March 31' the following notation appears: "evidence of steps taken to develop a postgraduate training program in veterinary pharmacology".

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

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

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

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

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

1. the performance requirements to be met by Mr Stewart during the review period were fair and reasonable in the circumstances;[189] and

2. the tasks and objectives set in the review letter, as varied by Professor Studdert's letter of 22 April 1998, were achievable during the review period.[190]

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

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

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

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

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

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

"... In order to make a decision on the request in Dr. Orchard's letter, I would like you to supply me with all the work you have completed to date. For example, I would like to see evidence of submission of the article you had planned in the Journal of Applied Physiology, the drafts of the revised cardiovascular pharmacology notes, draft grant applications for 1998 and an update of the 1997 research plan."[192]

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

[255] Professor Studdert wrote to Mr Stewart on 17 April 1998 seeking, among other things, medical certificates to support his application for sick leave and again requested copies of work completed to that date. Professor Studdert also offered to "make appropriate arrangements for photocopying to be undertaken at the University or elsewhere," so as to ensure that the materials requested were provided by 20 April 1998.[194] In a subsequent letter to Mr Stewart, dated 22 April 1998, Professor Studdert advised him that she had decided to extend the review period until 27 April 1998 and he could defer fulfilling her earlier requests until that date.[195]

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

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

"Mr Moore: Well, it's not exactly the most co-operative approach to your head of department and supervisor, is it? It's not a co-operating approach is it? You say you're going to do things and you don't do them?

Mr Stewart: Then it wasn't done, yes, I see what you're saying."

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

"Mr Moore: You were just not co-operating in the process were you?

Mr Stewart: I was not co-operating in some areas, I will agree. There were other areas in which it was not possible to co-operate.

Mr Moore: And yet this process was concerning whether or not your employment would be continued, wasn't it?

Mr Moore: And so you are saying to the Commission that you were not co-operating in some of the process despite the importance of it in that sense?

Mr Stewart: Yes, well I suppose I would have to say that there were parts where I was not co-operating and what you have said would make me answer that way."[197]

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

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

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

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

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

"I have carefully considered the information in your report and that of Professor Studdert. I have come to the conclusion on the evidence before me that your performance is not at a level which could be reasonably expected of a senior lecturer, and hence I consider your performance to be unsatisfactory.

I am now required to decide what action I should take in accordance with clause 11(e) of the Award.

In your submission to me you provide a series of medical reports, principally from Dr Orchard, a psychiatrist, and Dr R Frazer. It is difficult from those reports to determine the extent to which your performance was affected by illness and/or a psychological condition. You have submitted reports from Dr Frazer and Dr Orchard indicating medical problems,

but these did not state your unfitness for duty. Dr Orchard provided a separate letter dated 19 May indicating that your medical problems were significant and that he had recommended your retirement from the University on medical grounds.

In order to determine the extent to which ill health may have adversely affected your performance, I seek your agreement to submit to a medical examination by a medical practitioner nominated by the University. I also seek your agreement for that report to be provided to me.

Please let me know by Monday 29 June 1998, if you agree to this course of action, and appropriate arrangements will be made."[200]

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

"Following careful consideration of the information before me, I have determined that I should take disciplinary action in accordance with Clause 11(e)(iii) of the Award. I have decided that the most appropriate course of action is to terminate your employment with the University.

Under clause 11(g) of the Award, you have 5 working days in which to request a review of this decision in accordance with Clauses 13 and 14 of this Award. I formally give you notice that in accordance with the notice period stipulated in your employment contract, your employment with the University will cease on 31 January 1999."[201]

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

[265] On 1 December 1998 the Vice Chancellor forwarded a letter to Mr Stewart advising that he saw no reason to vary his earlier decision that Mr Stewart's performance had been unsatisfactory and that the appropriate disciplinary action to be taken was termination of his employment. The letter also confirmed that Mr Stewart's employment with the University was to cease effective 31 January 1999.[203]

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

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

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

"I am bound by the provisions of the Universities and Post Compulsory Academic Conditions Award 1995 to provide you with 10 days in which to respond to that letter, and have therefore taken no action and made no decision."[205]

The letter referred to was Professor Studdert's report.

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

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

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

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

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

"This was a serious process. I realised that it could lead to Professor Studdert reaffirming her recommendation for my dismissal."[211]

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

[275] In Windsor Smith v Liu and others[212] a Full Bench of the Commission said:

"Under the Workplace Relations Act 1996 the principal question is whether the termination was harsh, unjust or unreasonable. In considering that question the Commission is to ensure that a "fair go all round" is accorded to both the employer and the employee concerned."

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

"The procedures and remedies referred to in paragraphs (1)(a) and (b), and in the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a `fair go all round' is accorded to both the employer and employee concerned.

Note: the expression `fair go all round' was used by Sheldon J in re Loty and Holloway v Australian Workers Union_._[213]

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

"I believe that in the modern context expressions used in the older cases such as `harsh', `oppressive' and `unconscionable' as determinants as to whether intervention by an industrial authority is in its discretion permissible are properly interpreted on the basis simply of firstly deciding in all the circumstances, even though in the dismissal (be it summary or on notice) the employer has not exceeded his common law and/or award rights, whether the employee has received less than a fair deal. Mr Commissioner Manuel in a recent case put it in a nutshell and in language readily understood in the industrial world when he conceived his duty to be to ensure `a fair go all round'. In my

view, the use of the old adjectives, with their overtones from other jurisdictions, tends to distort this basically simple approach in that they can be strained to mean that an employer can be less than fair in exercising his right to dismiss and yet stand outside the permissible area within which an industrial authority in its discretion may act."[214]

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

"There is little doubt that s.170CA(2) enjoins the Commission to apply basic notions of fairness in carrying out its functions under Division 3. This injunction is not limited to the manner in which the hearing is conducted or the consideration of the remedy to be awarded but extends to the Commission's consideration of all of the relevant circumstances. Were it otherwise the reference to Loty and Holloway would not make sense." [215]

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

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

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

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

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

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

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

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

Unemployed Males: Duration of Unemployment by Age.[218]

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

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

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

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

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

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

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

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

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

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

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

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

Extract from the University Personnel Policy and Procedures Manual

Applicant's reply to respondent's revised contentions

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

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

Applicant's Response to the Draft Agreed Facts Document

Respondent's Further Submission on the Applicant's Reply

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

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

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

Respondent's Response to Draft Agreed Facts Document

Letter from FH Johnston, Registrar to Mr GA Stewart

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

Letter from Mr GA Stewart to Associate Professor VP Studdert

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

Letter from EA Bare to Associate Professor VP Studdert

Letter from Associate Professor VP Studdert to Mr GA Stewart

Letter from Mr GA Stewart to Associate Professor VP Studdert

Letter from Associate Professor Studdert to Mr GA Stewart

Letter from Mr GA Stewart to Associate Professor VP Studdert

Letter from Associate Professor VP Studdert to Mr GA Stewart

Application for Appointment as Reader - Mr GA Stewart

Memorandum from Professor VP Studdert to Mr GA Stewart

Memorandum from Professor VP Studdert to Mr GA Stewart

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

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

Statement of Objectives -Teaching Veterinary Pharmacology - Mr GA Stewart

Statement of Objectives - Veterinary Pharmacology - Mr GA Stewart

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

Universities and Post Compulsory Academic Conditions Award 1995

Worker's Claim for Compensation form of Mr GA Stewart

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

Memorandum from Professor VP Studdert to Professor Ivan Caple

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

Letter from Professor VP Studdert to Professor Ivan Caple

Letter from Professor VP Studdert to Professor Alan D Gilbert

Letter from Professor Barry Sheehan to Mr GA Stewart

Letter from Michael Pegg to Professor Barry Sheehan

Letter from Holding Redlich to Professor VP Studdert

Letter from Professor Alan D Gilbert to Mr GA Stewart

Letter from Professor Alan D Gilbert to Professor VP Studdert

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

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

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

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

Letter from Mr GA Stewart to Professor Alan D Gilbert

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

Letter from Professor Alan Gilbert to Mr GA Stewart

Memorandum from Professor VP Studdert to Mr GA Stewart

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

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

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

Letter from Dr William H Orchard to Ms Wendy Cooper

Letter from Professor VP Studdert to Dr William H Orchard

Letter from Professor VP Studdert to Dr William H Orchard

Letter from Professor VP Studdert to Dr William H Orchard

Letter from Dr William H Orchard to Professor VP Studdert

Letter from Dr William H Orchard to Professor VP Studdert

Memorandum from Professor VP Studdert to Mr GA Stewart

Letter from Professor VP Studdert to Professor Alan D Gilbert

Letter from Professor VP Studdert to Professor Alan D Gilbert

Letter from Mr GA Stewart to Professor Alan D Gilbert

Memorandum from EA Baré to the Professor Alan D Gilbert

Memorandum from EA Baré to Professor Alan D Gilbert

Letter from Dr William H Orchard to Professor Gilbert

Letter from Professor Alan D Gilbert to Mr GA Stewart

Letter from Mr GA Stewart to Professor Alan D Gilbert

Letter from Professor Alan D Gilbert to Mr GA Stewart

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

Table of Schedule of Lectures and Practical Classes 1998

Letter from Ian D Walker to Associate Professor Jenny Morgan

Extract from Report of 1994 Veterinary Schools Accreditation Committee.

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

Handwritten notes on attendance of Mr GA Stewart[219]

Letter from Dr William Orchard to Whom It May Concern

Letter from Mallesons Stephen Jaques to Holding Redlich

Letter from Dr William Orchard to Professor Alan Gilbert

Letter from Associate Professor Morgan to Rhidian Thomas

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

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

Opening submissions of the University to the Unsatisfactory Performance Review Committee

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

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

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

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

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

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

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

Letter from Associate Professor W Kimpton to Associate Professor J Morgan

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

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

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

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

Facsimile from Peri Hall to Professor Caple and Professor Studdert.

Publications for 1997 for the Department of Veterinary Science.

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

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

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

Workcover Certificate of Capacity of Mr G A Stewart.

Workcover Certificate of Capacity of Mr G A Stewart.

Memorandum from Professor Frank P Larkins to Deans of Faculties.

Document setting out Overview of Equine Research Activities for RIRDC.

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

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

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

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

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

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

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

Infrastructure Grants to Faculty of Veterinary Science 1993 - 1998.

Summary of 1998 Budget, Faculty of Veterinary Science.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* The conduct of tutorials, practical classes etc.

* The preparation and delivery of lectures and seminars.

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

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

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

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

* Initiation and development of course material.

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

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

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

* The conduct of research or contribution to knowledge through scholarship, publications, etc.

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

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

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

* Significant role in research projects including, where appropriate, leadership of a research team.

* Supervision of postgraduate research projects and postgraduate students engaged in coursework.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Printed by authority of the Commonwealth Government Printer

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

[9] See document 1 of Exhibit University 1.

[10] See document 142 of Exhibit University 1.

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

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

[13] See document 46 of Exhibit University 1.

[14] See document 55 of Exhibit University 1.

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

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

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

[19] Document 71 of Exhibit University 1

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

[21] See document 82 of Exhibit University 1.

[22] See document 74 of Exhibit University 1.

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

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

[25] See document 76 of Exhibit University 1.

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

[27] See document 83 of Exhibit University 1.

[28] See document 85 of Exhibit University 1.

[29] Document 86 of Exhibit University 1.

[30] Document 88 of Exhibit University 1.

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

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

[33] See document 93 of Exhibit University 1.

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

[35] See documents 106 and 107 of Exhibit University 1.

[36] See document 108 of Exhibit University 1.

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

[38] See document 97 of Exhibit University 1.

[39] Document 107 of Exhibit University 1.

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

[41] See document 103 of Exhibit University 1.

[42] See document 105 of Exhibit University 1.

[43] See Exhibit University 3 at paragraph 62.

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

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

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

[47] See document 110 of Exhibit University 1.

[48] See documents 111 and 112 of Exhibit University 1.

[49] Document 112 of Exhibit University 1.

[50] Document 113 of Exhibit University 1.

[51] See document 114 of Exhibit University 1.

[52] See document 166 of Exhibit University 1.

[53] See document 117 of Exhibit University 1.

[54] See document 118 of Exhibit University 1.

[55] See document 120 of Exhibit University 1.

[56] See document 121 of Exhibit University 1.

[57] See document 155 of Exhibit University 1.

[58] See documents 122 and 123 of Exhibit University 1.

[59] See document 124 of Exhibit University 1.

[60] Document 126 of Exhibit University 1.

[61] See document 150 of Exhibit University 1.

[62] See document 127 of Exhibit University 1.

[63] See document 131 of Exhibit University 1.

[65] See document 134 of Exhibit University 1.

[66] See document 132 of Exhibit University 1.

[67] See document 135 of Exhibit University 1.

[68] See document 136 of Exhibit University 1.

[69] See document 137 of Exhibit University 1.

[70] Exhibit University 4 at paragraph 51.

[71] (1995) 185 CLR 410.

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

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

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

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

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

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

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

[79] See Exhibit University 3, paragraph 156.

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

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

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

[87] Exhibit University 3 at paragraph 134.

[88] See document 55 of Exhibit University 1.

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

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

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

[93] Exhibit University 4 at paragraph 16.

[94] Exhibit University 4 at paragraph 28.

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

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

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

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

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

[100] Document 79 of Exhibit University 1.

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

[102] Exhibit A20, revised contentions of the applicant.

[105] Exhibit University 3 at paragraph 24.

[106] See Exhibit University 3 at paragraph 22.

[107] Exhibit University 3 at paragraph 18.

[109] See document 71 of Exhibit University 1.

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

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

[115] Transcript, 9 June 1999 at p.346.

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

[117] See Exhibit University 3 at paragraphs 50-66.

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

[119] Document 25 of Exhibit University 1.

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

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

[123] Document 172 of University 1 at p.2.

[124] Exhibit University 3 at paragraphs 48 and 84.

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

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

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

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

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

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

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

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

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

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

[135] Document 101 of Exhibit University 1.

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

[137] See document 110 of Exhibit University 1.

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

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

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

[141] See document 82 of Exhibit University 1.

[142] See document 93 of Exhibit University 1.

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

[144] Document 96 of Exhibit University 1.

[145] See document 127 of Exhibit University 1.

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

[147] See document 121 of Exhibit University 1.

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

[149] See document 155 of Exhibit University 1.

[150] See document 155 of Exhibit University 1.

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

[152] See document 166 of Exhibit University 1.

[153] See document 117 of Exhibit University 1.

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

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

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

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

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

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

[162] Annexure V1-2 to Exhibit University 6.

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

[165] Document 79 of Exhibit University 1.

[166] Document 79 of Exhibit University 1.

[167] Document 116 of Exhibit University 1.

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

[169] See documents 127 and 157 of Exhibit University 1.

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

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

[172] See document 104 of Exhibit University 1.

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

[174] Documents 104 and 144 of Exhibit University 1.

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

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

[178] See document 159 of Exhibit University 1.

[179] Transcript, 8 June 1999 at p.140.

[180] See document 91 of Exhibit University 1.

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

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

[184] See document 160 of Exhibit University 1.

[185] Document 127 of Exhibit University 1.

[186] See documents 80 and 87 of Exhibit University 1.

[187] See paragraph 77 of Exhibit University 3.

[188] Document 143 of Exhibit University 1.

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

[192] See document 115 of Exhibit University 1.

[193] See document 116 of Exhibit University 1.

[194] See document 117 of Exhibit University 1.

[195] See document 121 of Exhibit University 1.

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

[197] Transcript, 9 June 1999 at p.272.

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

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

[200] Document 131 of Exhibit University 1.

[201] Document 134 of Exhibit University 1.

[202] See document 135 of Exhibit University 1.

[203] Paragraph 51 of Exhibit University 1.

[204] See document 123 of Exhibit University 1.

[205] Document 126 of Exhibit University 1.

[206] See document 127 of Exhibit University 1.

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

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

[209] Document 71 of Exhibit University 1.

[210] See document 76 of Exhibit University 1.

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

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

[213] [1971] AR (NSW) 95.

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

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

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

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

[219] Objection upheld - no weight attached.