FEDERAL COURT OF AUSTRALIA Baker v University of Ballarat [2005] FCA 99 Mahon v Air New Zealand Ltd [1984] AC 808 cited Reg v Monopolies and Mergers Commission; Ex Parte Matthew Brown Plc [1987] 1 WLR 1235 cited Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646 cited Re Tiki Village International Ltd [1994] 2 QdR 674 cited Bowen v Australian Workers Union (No 2) (1948) 77 CLR 602 cited Twist v Randwick Municipal Council (1976) 136 CLR 106 cited R v Marks; Ex parte Australian Building Constitution Employees Federation (1981) 147 CLR 471 cited Lloyd v McMahon [1987] AC 625 cited Calvin v Carr (1979) 22 ALR 417 cited CLIFTON SYDNEY BAKER v UNIVERSITY OF BALLARAT VID 78 of 2005 SUNDBERG J 15 FEBRUARY 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIADISTRICT REGISTRY VID 78 OF 2005 BETWEEN: CLIFTON SYDNEY BAKER APPLICANT AND: UNIVERSITY OF BALLARAT RESPONDENT JUDGE: SUNDBERG J DATE OF ORDER: 15 FEBRUARY 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for an interlocutory injunction be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIADISTRICT REGISTRY VID 78 OF 2005 BETWEEN: CLIFTON SYDNEY BAKER APPLICANT AND: UNIVERSITY OF BALLARAT RESPONDENT JUDGE: SUNDBERG J DATE: 15 FEBRUARY 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant's employment with the respondent commenced on 10 February 2003. It was a probationary employment for twelve months in the School of Business. The probation requirements were settled between Professor Lowe, Head of School, and the applicant on 21 February. There were regular probation meetings in July, August and November 2003 at which the Head's concerns about the applicant's performance were made known. This led to an extension of the probationary period. The applicant was initially unhappy with the extension, but at a meeting with the Head on 12 February 2004 agreed to it. 2 At a meeting between the Head and the applicant on 16 February 2004 it was agreed that the latter's performance would be assessed under three criteria: contribution to the School, teaching and research. The mechanisms for assessment were set out in a memorandum from the Head to the applicant dated 19 February. Probationary meetings were held in May and July at which the Head said he was not satisfied with the applicant's performance. The applicant disputed the Head's view. 3 In a memorandum of 4 August the Head concluded that, measured against the probationary criteria, the applicant "fails to match up to the performance expectations of a senior lecturer". The memorandum was not itself in evidence, but is summarised in another document. 4 On 9 August the Deputy Vice‑Chancellor wrote to the applicant stating that the applicant had failed to meet his probation requirements and, as a result, his appointment would not be confirmed. The applicant was given six month's notice of termination. The letter continued: "You have, as stated in your contract, the opportunity to respond to any adverse material taken into account in arriving at this decision. You may also avail yourself of an opportunity to meet with Professor Lowe and myself to discuss this." The reference to the applicant's contract is to the following provision therein: "At any time during the probation period, the University can – · confirm your appointment · extend the probation for a further period · annul the appointment. In the event annulment occurs, you will be advised of, and given an opportunity to respond to, any adverse material taken into account in a decision to annul your employment." The letter then drew the applicant's attention to the appeal provisions in the University of Ballarat Enterprise Agreement 2000‑2003 (the Agreement). 5 The applicant availed himself of the opportunity to respond, and did so by letter of 18 August, at the conclusion of which he asked that it be treated as a notice of appeal. He did not avail himself of the offer of a meeting with the Head and the Deputy Vice‑Chancellor. The appeal was heard on 27 October before the Probation Appeal Committee. The applicant represented himself and the University was represented by an administrative officer. On 5 November the Committee recommended that the appeal be dismissed. By letter of 26 November the University informed the applicant of the outcome of the appeal, and summarised the Committee's findings. The letter concluded by saying that the Vice‑Chancellor had accepted the Committee's recommendation. 6 The applicant's first complaint is that the Deputy Vice‑Chancellor did not accord him a hearing prior to sending the letter of 9 August. In order to deal with this point it is necessary to refer to provisions of the Agreement. Clause 22.6 provides: "During the probationary period, the staff member shall be subject to formal assessment and provided with continuing constructive counselling and support to confirm progress and/or identify difficulties and develop strategies for their resolution. The roles of the supervisor are to: · review progress · provide constructive feedback on the staff member's performance · discuss problems and concerns · provide assistance and advice · identify and address any professional development needs · clarify the requirements of the position and · make a recommendation/decision to confirm or not to confirm employment, after a final review." Clause 22.7 provides: "If the supervisor is not a Head of School/Executive Manager or other appropriate senior manager, the supervisor shall make a recommendation to the relevant senior manager. If the supervisor is a Head of School/Executive Manager or other appropriate senior manager, s/he shall decide on the action to be taken as a result of the final probation review." Clause 22.8 provides in part: "Before the end of the staff member's probationary period and as a result of the final probation review, the supervisor may recommend/decide that: · the appointment be confirmed in accordance with the contract of employment; or · the appointment be terminated, or · the probationary period be extended …." Clause 22.9 provides that if the result of the final probation review is termination of employment, six months' notice will be given. It does not say by whom the notice is to be given. 7 Thus, where the supervisor is a Head of School, he or she is to decide on the action to be taken: clause 22.7. In such a case the supervisor may decide that the appointment is to be terminated: clause 22.8. Where the supervisor does so decide, six months notice must be given: clause 22.8. 8 At their several probation meetings the Head put his point of view as to the applicant's failure to satisfy the agreed criteria. The applicant put his. It was plain from the applicant's contract that the meetings were held so that the University, through the Head, could determine whether to confirm the appointment, decline to confirm it or extend the probationary period. I do not accept the applicant's contention that the Head was obliged to warn him that his appointment might be terminated. That was one of agreed options that might result from the assessment process. The Head did say he was considering an extension of the probation period. The applicant says he replied that this was unacceptable – "that I would not accept a further period of probation". The applicant knew the Head was unhappy with his performance, and that the applicant had ruled out accepting an extension of the probationary period. The remaining option was non‑confirmation, resulting in termination. 9 Under the Agreement the Deputy Vice‑Chancellor was not the decision‑maker, though as it happened, he wrote the termination letter. The letter does not record a decision made by him, though it does comply with clause 22.8. There was no occasion for him to afford the applicant a hearing. 10 Thus far I have assumed that the respondent's officers proceeded in accordance with the provisions set out at [6]. However the applicant's evidence, which was not challenged, was that he "consistently dealt with Professor Lowe on the basis that he was making a recommendation and it would be determined by Professor Robinson". Despite the fact that the letter of 9 August does not record a decision made by the Deputy Vice‑Chancellor, I will assume that he was the decision‑maker. 11 The agreed procedure set out in the contract was that the applicant would be given an opportunity to respond to any adverse material taken into account in the decision to terminate the appointment. As I have said, he availed himself of that opportunity, though not of the offer of a meeting. The Deputy Vice‑Chancellor was not obliged to afford the applicant a hearing before sending the letter. The agreed procedure may not precisely accord with what the common law might have imposed as procedural fairness had the contractual provisions not existed. But there was nothing unfair about it. The applicant was able to, and did, put his case to the Head. He sought, at the various meetings, to answer the Head's concerns. Having heard him put his case on this application, I have no doubt that he would have put it forcefully, though as it happened unsuccessfully. The termination letter, as required by the contract, invited the applicant to make submissions in response to the decision. It also offered a meeting at which he could discuss the matter with the Head and the Deputy Vice‑Chancellor. It drew his attention to the appeal provisions. The applicant made written submissions in response to the invitation, though he did not seek a meeting. He utilised the appeal process. He thus had ample opportunities to put his case. 12 The applicant's other complaints are that the Vice‑Chancellor did not give him a hearing before terminating his employment, that he was not given certain documents before the Appeal Committee hearing, and the Committee received a briefing on the meaning of "natural justice" in his absence. 13 The Committee had extensive and ample powers to conduct a full review of the events that had happened. It had power to · allow the staff member and the University to be assisted or represented by an agent of their choice who is not a practising solicitor or barrister · provide an opportunity for the staff member to be interviewed by it and ensure that he/she has adequate opportunity to answer adverse findings and to put his/her case · interview any person it thinks fit to establish the merits or facts of the particular case · conduct all interviews in the presence of the staff member (or the staff member's representative) and the University's representative(s) · ensure that the staff member (or his/her representative) and the University's representative(s) have the opportunity to ask questions and to make submissions. Both parties shall have the right to present and challenge evidence · take into account such material as it believes necessary and appropriate to the case. 14 The applicant had a full hearing before the Committee. The Agreement contains detailed provisions relating to the appeal and its conduct, and requires the Committee to prepare a written report to the Vice‑Chancellor containing its recommendation. Clause 22.10.6 enables the Vice‑Chancellor to seek advice and/or clarification on any recommendation from the Chair of the Committee. Clause 22.10.7 provides: "The Vice‑Chancellor may approve or not approve the recommendation of the Appeal Committee. Should the Vice‑Chancellor decide not to approve the recommendation, he/she will provide a written statement setting out the reasons to the Chair of the Appeal Committee." Clause 22.10.8 provides that the Vice‑Chancellor's decision is final. 15 The relevant parts of the Agreement make clear that a dissatisfied staff member is entitled to a hearing before the Committee. The Agreement records the agreed arrangements between staff members and the University as to the content of the rules of procedural fairness applicable. They do not require a hearing before the Vice‑Chancellor. 16 The applicant's second complaint is that he had not been provided with relevant documents that were before the Committee. In a letter of 5 October 2004 the University's Manager, Human Resources, informed the applicant that various listed documents would be considered by the Committee. One category of documents was described as "recommendations and supporting documents from the Head of School to the Deputy Vice‑Chancellor (A&R)". 17 It was common ground that that group of documents had not been supplied to the applicant prior to the Committee meeting. However, at the meeting the applicant was provided with a document prepared by the University which summarized his employment record. At clause 22.7 the contents of the recommendations was summarized. It is sufficient, as an example, to record the summary of a memorandum of 4 August 2004 from Professor Lowe to the Deputy Vice‑Chancellor: "Professor Lowe provided details regarding Baker's performance as follows: 1. Performance against the criteria set out in his letter of offer is poor. 2. As a senior lecturer he has teaching evaluations and unit evaluations that are very low. Showed some improvement in 2004 but still below average. 3. Produced only one paper since coming to Ballarat and that was sent to publisher the day before probation meeting. 4. Contribution to the school has been reactive and marginal, even though he has been provided with opportunity to make a contribution through assisting in the management of graduate programs. 5. Announced he would not be participating in Open day showing a lack of commitment to the School. 6. He may argue that he has improved, but any improvement is marginal and below expectation. 7. Baker has raised difficult working relationships in his discipline group but rejected offers of mediation. 8. Talented lawyer but against criteria set in probation and MSALs he fails to match up to the performance of a senior lecturer." I have set out this passage for two reasons. First, it conveyed to the applicant the substance of the memorandum even though the memorandum itself had not been provided to him. Procedural fairness requires that any person who may be adversely affected by a decision not be "kept in the dark as to the risk of the finding being made": Mahon v Air New Zealand Ltd [1984] AC 808 at 820‑821 per Lord Diplock. It is enough that "each party has its mind brought to bear on the relevant issues": Reg v Monopolies and Mergers Commission; Ex Parte Matthew Brown Plc [1987] 1 WLR 1235 at 1242. See also Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646. Procedural fairness does not require all documents to be physically handed to the applicant. It was satisfied in this case because the applicant was apprised of the content of the communications passing between Professor Lowe and the Deputy Vice‑Chancellor. Second, the content of the memorandum did not tell the applicant anything of which he was unaware. He certainly disagreed with the views that Professor Lowe had been expressing for some time. But the memorandum simply told the Deputy Vice‑Chancellor what the applicant knew Professor Lowe thought about his performance. The applicant was not taken by surprise or disadvantaged. He had the opportunity to make submissions to the Committee about, or otherwise deal with, the contents of the memoranda. 18 The third complaint relates to the briefing on natural justice. The members of the Committee were not lawyers. They certainly needed to know what was involved in the concept before embarking on an appeal in which denial of natural justice was the principal issue. In its decision the Committee said: "It met again on 27 October immediately prior to the hearing to receive at the Committee's request advice from the University Legal Secretariat on points of procedural fairness and natural justice. No matters substantive to the appeal were discussed …." It is generally a breach of natural justice to obtain legal advice on points of substance without informing the parties: Re Tiki Village International Ltd [1994] 2 QdR 674. However, a briefing on the meaning of natural justice as a concept, without any concern to apply that briefing to the facts of the case, is unexceptionable. The Tribunal set out its understanding of natural justice. The applicant did not assert that it involved any error. He made his own submissions, which the Committee recorded and appears to have accepted. Even if, contrary to my view, the Committee should have had its briefing in the presence of the applicant, nothing turns on its failure to do so. 19 Had I been of the view that the applicant was entitled to a hearing before the Deputy Vice‑Chancellor sent the 9 August letter, I would have concluded that the appeal to the Committee "cured" that defect. A properly conducted internal appeal may cure a lack of procedural fairness at first instance: Bowen v Australian Workers Union (No 2) (1948) 77 CLR 602 at 619,632; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 111, 114, 118; R v Marks; Ex parte Australian Building Constitution Employees Federation (1981) 147 CLR 471 at 485; Lloyd v McMahon [1987] AC 625 and Calvin v Carr (1979) 22 ALR 417. Dr Forbes describes what "properly conducted" involves (Justice in Tribunals (2002), at 219‑220): "If an internal appeal is to 'cure' an earlier breach of natural justice, it must afford the defendant the same opportunities to canvass the issues that the defendant would have had if the primary hearing had been properly conducted. In practice this means that the appeal must take the form of a rehearsing de novo – a re‑trial and a fresh decision reached without any restriction or presumption arising from the original adjudication." The Committee's powers and proceedings met that condition. 20 For the foregoing reasons the applicant has not persuaded me that any of his natural justice contentions give rise to a serious question to be tried. In summary of the main points: · under the Agreement the decision to terminate was committed to the Head · it was not contended that the Head had failed to accord the applicant procedural fairness, nor had he done so · if the decision was made by the Head, there was no decision‑making role for the Deputy Vice‑Chancellor, and accordingly no requirement that he accord the applicant procedural fairness · if the decision‑maker was the Deputy Vice‑Chancellor, he was obliged by the applicant's contract to give him an opportunity to respond to any adverse material taken into account in deciding to terminate the appointment · the Deputy Vice‑Chancellor gave the applicant that opportunity, and the applicant availed himself of it · the Deputy Vice‑Chancellor was not also obliged to afford the applicant a hearing before making the decision · under the Agreement the Vice‑Chancellor was not required to give the applicant a hearing · the Committee did not breach the rules of procedural fairness by receiving a briefing on the content of the rules of procedural fairness · in the circumstances the applicant was not denied procedural fairness by not receiving certain memoranda prior to the Committee hearing. 21 Having regard to the foregoing it is strictly unnecessary to consider the balance of convenience. However, although there are considerations going both ways, one that militates against the grant of relief is that relations between the parties have seriously broken down. To place them back together in a working environment, even on an interlocutory basis, with any expectation that they could work together, is unrealistic. Further, I consider that the interests of the applicant's students would suffer if he remains consumed with his dispute with the University, which he thinks has seriously wronged him, and devotes his time to pursuing his grievance rather than attending to the needs of his students. 22 The application is dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 15 February 2005 The applicant appeared in person. Counsel for the Respondent: M Rinaldi Solicitor for the Respondent: Australian Higher Education Industrial Association Date of Hearing: 9 February 2005 Date of Judgment: 15 February 2005