my reasoning on the applicant's second point
58 The task in hand is objectively to determine the intention of the parties from the words of the Agreement considered in the light of the surrounding circumstances i.e. the context: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 at [21] per Finkelstein J. Part of that context, in my opinion, is the evolution of the relevant industrial instruments referred to at paragraphs [32] to [34] above.
59 A reasonable overview is that clauses 16, 17 and 18 and the three schedules in the Agreement contain in substance the provisions previously found in the 1997 Agreement and the 1995 Award. Mr Le Miere acknowledged that. When one turns to clause 9(a) of the 1995 Award one sees that it read as follows:
'All decisions to discipline or terminate the employment of an academic must be in accordance with this clause.'
60 Mr Le Miere relied on that fact that Schedule B to the Agreement, which sets out a summary of changes and commitments given in the course of reaching the terms of the Agreement, contains no references to changes in relation to termination of employment.
61 But, in my view, there are three answers to that point. First, there were not many different sources of obligations and rights spread out in the 1997 Agreement and the 1995 Award. They were all to be found in the 1995 Award (admittedly in several clauses) and simply incorporated by reference into the 1997 Agreement by clause 6 of that document. Secondly, clause 6 of the Agreement deals with the application of Awards and the matter of inconsistency. Thirdly, it is self evident that Schedule B to the Agreement is not exhaustive. Mr S J Moore, counsel for the respondent, took me to four relatively significant differences between the 1995 Award and the Agreement.
62 Mr Le Miere submitted that clause 9 of the 1995 Award was concerned with procedural steps, i.e. the "principal purpose" of clause 9 was to provide the procedural steps to terminate employment or discipline an academic. But he had to concede that those procedures were now essentially reflected in the three schedules to the Agreement.
63 I have already held that clause 16 is only concerned with termination of employment at the initiative of the employer. In my opinion, a literal construction of the clause requires that that subject be governed exhaustively by the three schedules and clause 18 of the Agreement. Furthermore, in my view, such a construction is supported by the context to which I have referred immediately above, subject to clause 17 also being applied to confirm the relevant procedures.
64 I think that those words, "governed exhaustively", expressly exclude the application of what might otherwise have been the applicant's common law rights of termination. Clause 16(c), in my view, confirms that. The long and the short of it is that if the applicant wishes to terminate an academic's employment (otherwise than by mutual agreement) it must do so in accordance with clause 16.
65 Mr Le Miere argued that inability to perform did not fit into the circumstances addressed by Schedule D under the heading "Unsatisfactory Performance". The context, so it was put, was of unsatisfactory performance which was amenable to guidance, counselling and the like.
66 I do not accept that. In my view, there is some substance in the respondent's submission that an employee's inability or incapacity to perform his or her duties is within the notion of "unsatisfactory performance". It also needs to be borne in mind that the University may give directions to the particular employee in question to carry out such other duties as are reasonable and within the limits of his or her skill competence and training - see clause 39.
67 It would be quite understandable for the negotiators and the draftspersons not to have contemplated the somewhat unusual circumstances of Professor Reed's case. But it is, in my view, more likely that they did.
68 The evidence shows that as early as 30 November 1998 the Executive Director of Medical Services at the Hospital had notified the applicant that she had "found what appear to be significant irregularities" in the expenditure of funds from certain trust accounts. By letter dated 15 December 1998 she temporarily suspended Professor Reed's clinical privileges at the Hospital. The evidence is that the parties negotiated the terms of the Agreement throughout 1999 and until March 2000. The temporary suspension of Professor Reed's clinical privileges continued until about June 2000.
69 There is room for an inference, which I make, that the parties had in mind Professor Reed's case when the following definition sub-clauses were introduced into Schedule E of the Agreement ("Misconduct") which came into effect on 23 May 1999:
'(c) "Serious misconduct" shall mean:
. . .
(iv) serious misbehaviour or dereliction of duty in a performance of a role within an institution which has recognised formal links to the University where such a role is undertaken as a result of the employee's appointment to the staff of the University.
(d) Examples of "serious misconduct" include theft, fraud, misappropriation of funds, assault, serious harassment (including sexual harassment); wilfully disobeying a regulation, order, or lawful instruction made or given, or repeated actions of misconduct.'
70 But even if the circumstances of Professor Reed's case do not fit any of the thus far agreed categories for termination of employment, that is not a basis, in my view, for not giving literal effect to the words of clause 16. I accept Mr Moore's submission to the effect that it was quite reasonable for the parties essentially to codify and prescribe the particular grounds upon which termination on initiative of the employer could occur, even if those grounds did not embrace and touch upon every conceivable instance of termination at the initiative of the employer. It was not so long ago that the bases upon which a member of the university academic staff could be dismissed were very limited indeed.
71 In my opinion, the intent, objectively determined, of the parties was to confine termination of employment at the initiative of the employer to being governed exhaustively by the provisions referred to in clause 16(a). If there are deficiencies in draftsmanship, that may have to be something to be dealt with at a later date.