Shaw v University of Queensland [1999] IRCA 3

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

Shaw v University of Queensland [1999] IRCA 3

DR ROSLYN MARY SHAW v UNIVERSITY OF QUEENSLAND

QI 1008R OF 1996

RYAN J

14 APRIL 1999

MELBOURNE

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QI 1008R OF 1996

BETWEEN: DR ROSLYN MARY SHAW

Applicant

AND: UNIVERSITY OF QUEENSLAND

Respondent

JUDGE: RYAN J

DATE OF ORDER: 14 APRIL 1999

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QI 1008R OF 1996

BETWEEN: DR ROSLYN MARY SHAW

Applicant

AND: UNIVERSITY OF QUEENSLAND

Respondent

JUDGE: RYAN J

DATE: 14 APRIL 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application pursuant to s 170EA of the Industrial Relations Act 1988 ("the Act"). The applicant had been employed by the respondent ("the University") pursuant to various contracts of employment under which she held various temporary and fixed-term lectureships between July 1983 and June 1994. On 1 July 1994 the applicant was appointed by the University to the position of Lecturer in the Faculty of Dentistry for a period to expire on 31 December 1998. 2 The Vice-Chancellor of the University, Professor Wilson, wrote to the applicant a letter dated 23 August 1995 which included the following passages: "Following my review of your file and extended consultation with relevant officers of the University, I have reached the conclusion that your 'capacity to perform the duties of [your] office is in doubt' [Clause 14(a)]. Specifically, I am concerned that your continuing disruptive behaviour is evidence of disturbance in your mental state, of a kind that compromises the effective performance of your duties. I therefore require you, in accordance with Clause 14(b), to undertake a medical examination at the University's expense to assess whether you are able to perform your duties. Please contact Dr Tony Arklay at the University Health Service in the first instance. Dr Arklay will refer you to the appropriate specialist(s) for consultation… In the circumstances, I believe it is in the interests of your health and welfare for you to be relieved of your departmental duties until the necessary medical consultations have been completed. Accordingly, you are hereby relieved of the performance of your duties pending the outcome of the medical examinations. Your salary will continue to be paid as normal." 3 On 23 August 1995, the applicant telephoned Dr Arklay at the University Health Service and informed him that she had been required by Professor Wilson to undergo a psychiatric examination. The applicant made an appointment to see Dr Arklay on 25 August 1995. In an affidavit sworn 1 July 1996 Dr Arklay deposed as follows: "5. I met with Dr Shaw on 25 August 1995. Dr Shaw asked me a number of questions about the basis of the allegations and the reports from the psychiatrists. We discussed the award process. She said that she was very upset about the process that the University had embarked upon. She denied any problems. She said she was popular and successful in the Department and saw the requirement that she undergo a psychiatric examination as a conspiracy by the university. I assured her that it would be a fair assessment by an independent psychiatrist. We also discussed whether she would wait for two months to elapse as she was entitled to do pursuant to the awards, or whether she would attend the examination early. She thought about it and indicated subsequently that she would wait the two months. ... 7. I then gave consideration to selecting a psychiatrist to conduct the medical examination. I sought advice from a number of psychiatrists and formed the view that the most appropriate person would be a reputable, experienced and independent psychiatrist with no connection with the University. I decided upon Dr Martin Nothling. ... 9. An appointment was arranged for Dr Shaw to see Dr Nothling on 30 October 1995. I informed Dr Shaw of that in a telephone conversation on 29 August 1995 and confirmed the details in a letter to Dr Shaw dated 30 August 1995." 4 That letter was in these terms: "Further to our telephone conversation of 29 August 1995, I wish to confirm that your appointment to see Dr Martin Nothling, psychiatrist, at Silverton Place, 101 Wickham Terrace, is at 1.00pm on Monday 30 October 1995. I understand this appointment will be a lengthy one (up to four hours) and several consultations probably will be required. If you have any questions about this do not hesitate to contact me." 5 Dr Chiswell, President of the National Tertiary Education Union, wrote to Professor Wilson, presumably on behalf of the applicant, by letter dated 30 August 1995 requesting that Professor Wilson reconsider his decision to relieve the applicant of teaching duties in her Department. Dr Chiswell's letter contained this passage: "I have learnt from Dr Shaw that Dr Arklay is 'briefing' medical practitioners who may possibly agree to undertake the medical examination that your letter to Dr Shaw requires. It would appear to me that such 'briefing' could be extremely prejudicial to the outcome of any medical examination that Dr Shaw may undertake. While in no way suggesting that the medical practitioner who undertakes the examination will operate but at the correct professional level, it does seem apparent that if all the 'adverse' material (which I assume that the University possesses) is given to the practitioner, he/she could be perceived to start the procedure with a bias. Certainly Dr Shaw sees the 'briefing' actions in this light, and consequently sees herself as having to 'defend' herself against psychiatric inquiry." 6 Dr Chiswell again wrote to Professor Wilson on 8 September 1995 reiterating the matters raised in his earlier letter and requested that Dr Shaw be provided with "all that material that has been used by you to form your 'opinion' that Dr Shaw should undergo medical examination". 7 Following written advice from Mr Porter, the University's Secretary and Registrar, Professor Wilson wrote to Dr Chiswell a letter dated 15 September 1995 in which he agreed to release to the applicant medical opinions concerning her together with the relevant file material. The letter contained the following passage: "I do not accept your arguments that the release of the file material to the designated medical examiner would be prejudicial. I would have thought that it was essential. I know that Dr Arklay is also of that view and has received similar advice from Dr Lawrence as well as a request from the designated medical examiner. We must be guided by the medical advice in this matter." 8 The applicant did not keep her appointment on 30 October 1995 with Dr Nothling. In a letter dated 7 November 1995, Professor Wilson wrote as follows to the applicant: "I have been informed that you did not keep your appointment with Dr Nothling, scheduled for Monday, 30 October. I should draw your attention to Clause 16(i) of the award governing academic conditions of employment. [The award has been renamed the Universities and Post Compulsory Academic Conditions Award 1995, following variations handed down by the IRC this year. Clause 16 deals with termination on the grounds of ill health]. The relevant section reads: 'A Chief Executive Officer may construe a failure by a staff member to undergo a medical examination in accordance with these procedures within 3 months of a written notification to do so as prima facie evidence that such a medical examination would have found that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within 12 months, and may act accordingly…' I would therefore remind you of the requirement to meet with Dr Nothling. Since my letter initiating the procedures under this clause was dated 23 August 1995, the three-month period expires on 23 November. Since I am writing to you six working days after your failure to attend the appointment, I am prepared to extend the period within which the appointment should take place until 1 December 1995. Please advise me when you have arranged a further appointment." 9 The applicant did not attend for an appointment with Dr Nothling by 1 December 1995. In a letter dated 12 December 1995, Professor Wilson wrote to the applicant in the following terms: "I wrote on 7 November 1995 reminding you of my requirement that you attend a medical examination with Dr Nothling by 1 December 1995. As you have not undergone a medical examination as notified, I have decided to construe your failure to do so as prima facie evidence that such medical examination would have found that you are unable to perform your duties and are unlikely to be able to do so within 12 months. Clause 6 of the Award provides that I may offer you the opportunity to submit a resignation and I do so now. If I have not received your written offer of resignation by 5pm Friday 15 December 1995, I shall terminate your employment with six months." 10 On 20 December 1995 a meeting was held between the applicant, her legal advisers and the legal representatives of the University including Mr Byrom, the University's legal officer. On the same day, Mr Byrom wrote this letter to Professor Wilson: "The meeting this morning between Dr Shaw and her solicitors on the one side and myself and Mr Bartley of Corrs Chambers Westgarth for the University was unable to reach any common ground over the termination of Dr Shaw's employment with the University. Accordingly, as we have previously discussed, I recommend you act under the Award to terminate her employment with 6 months and I attach a suitable letter for your signature." 11 A letter dated 21 December 1995 from the applicant's legal advisers to the legal advisers of the University included this passage: "We refer to our meeting of 20 December 1995. We confirm the offer put at that meeting that our client will attend and obtain a psychiatric report from a psychiatrist nominated by her. As part of that assessment our client would be prepared to provide to the psychiatrist the material obtained by our client under the Freedom of Information Act which, it would appear, was provided to the two psychiatrists relied upon by the university in relation to the action it has taken. Alternatively, and this is not a matter we raised in the meeting yesterday, our client is prepared to nominate two psychiatrists and the Vice-chancellor or his representative can choose from those two. An examination would then be carried out on the same basis as above." 12 In the meantime Professor Wilson had written this letter to the applicant dated 20 December 1995: "As I foreshadowed in my letter of December 12th, 1995, and acting under clause 16 of the Universities and P[o]st Compulsory Academic Conditions Award 1995, I hereby terminate your employment with six months notice." 13 On 4 January 1996 the applicant applied pursuant to s 170EA of the Act for relief against unlawful termination of employment. Attached to that application was a document headed "Application" in these terms: "Application under the Industrial Relations Act 1988. In addition to the relief sought in the attached form the Applicant seeks the following additional relief: - 1. An order imposing a penalty upon the Respondent as a consequence of breach of clause 16 of the Universities and Post Compulsory Academic Conditions Award 1995. 2. A permanent injunction restraining the Respondent from breaching or continuing to breach clause 16 of the Universities and Post Compulsory Academic Conditions Award 1995. 3. A declaration that it is an implied term of the applicant's contract of employment that the respondent would not conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. 4. An injunction restraining the respondent from breaching or continuing to breach the clause referred to in paragraph 3 hereof. 5. An order specifically enforcing the applicant's contract of employment with the employer. 6. Damages for breach of contract of employment. 7. Such further or other relief as this Honourable Court deems fit and proper." 14 It was submitted by Ms Dick of Counsel for the applicant that the University had been in breach of what, since 11 May 1995, had been known as cl 14 of the Universities and Post Academic Conditions Award 1995 ("the Award"). That clause, so far as is relevant, was in the following terms: "Clause 14 – TERMINATION OF EMPLOYMENT ON THE GROUNDS OF ILL HEALTH (a) The Chief Executive Officer may require, in writing, any staff member whose capacity to perform the duties of his or her office is in doubt to undergo a medical examination by a medical practitioner chosen by the institution at the expense of the institution. (b) The Chief Executive Officer shall provide a staff member with written notice of not less than 2 months that a medical examination is required. Where the staff member elects to apply to the staff member's superannuation fund, prior to the expiry of the period of the notice, for ill-health retirement or temporary disability benefit pursuant to the rules of the superannuation fund, the requirement for a medical examination under subclause (a) hereof shall lapse forthwith and no further action shall, subject to subclause (c) hereof, be taken by the Chief Executive Officer under this clause. ... (d) A copy of the medical report made by the medical practitioner pursuant to subclause (a) hereof shall be available to the Chief Executive Officer and to the staff member. (e) If the medical examination reveals that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within a reasonable period, being not less than 12 months, the Chief Executive Officer may, subject to subclause (f) hereof, terminate the employment of the staff member in accordance with the notice required by the staff member's contract of employment or where no notice is specified a period of 6 months. Prior to taking action to terminate the employment of a staff member, the Chief Executive Officer may offer the staff member the opportunity to submit a resignation and, if such a resignation is offered, shall accept it forthwith and not proceed with action to terminate employment. (f) If within 14 days of the report being made available, if the staff member or a person acting on their behalf so requests, the Chief Executive Officer shall not terminate the employment of the staff member in accordance with subclause (e) hereof unless and until the findings of the report are confirmed by a panel consisting of three medical practitioners, one of whom shall be appointed by the institution, one by the staff member or by a person acting on his or her behalf, and one by the President of the State or Territory Branch of the Australian Medical Association. The panel shall not include the practitioner who made the initial report. ... (i) A Chief Executive Officer may construe a failure by a staff member to undergo a medical examination in accordance with these procedures within 3 months of a written notification to do so as prima facie evidence that such a medical examination would have found that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within 12 months, and may act accordingly; provided that such a refusal by a staff member in these circumstances shall not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report." 15 I did not understand Counsel for the applicant to dispute that allegations had been made with respect to the applicant's behaviour at work. However, Counsel sought to characterise those allegations, not as indicating a disturbance of the applicant's health, but rather as relating to what Counsel termed "employment problems". It followed, so it was submitted, that the allegations related to the "employment problems" of the applicant were amenable to the disciplinary procedures established pursuant to the Award and were not matters comprehended by the procedures established under the Award for investigating alleged incapacity on the ground of ill-health. It was not open to the University to, as Counsel put it, "misuse" the Award by initiating a procedure pursuant to cl 14 of the Award which resulted in the termination of the applicant's employment. Mr Murdoch of Counsel for the University, however, submitted that, notwithstanding that the University had been empowered to proceed pursuant to the disciplinary procedures in the Award if the applicant's conduct was capable of being characterised as "unsatisfactory performance", "misconduct", or "serious misconduct", Professor Wilson was also able to invoke cl 14 of the Award upon his forming a doubt as to the capacity of the applicant to perform her duties. 16 Sub-clause 14(a) of the Award, it will be remembered, provides: "The Chief Executive Officer may require, in writing, any staff member whose capacity to perform the duties of his or her office is in doubt to undergo a medical examination by a medical practitioner chosen by the institution at the expense of the institution." 17 That sub-cl confers on the Chief Executive Officer a discretion to require a staff member to undergo a medical examination provided that two criteria are satisfied. First, the power is to be exercised if, and only if, the person required to undergo the medical examination is a staff member whose capacity to perform the duties of her office "is in doubt". Secondly, I infer from the use of the expression "is in doubt"(emphasis added), that the doubt must exist contemporaneously with the exercise of the discretion by the Chief Executive Officer. 18 While sub-cl (a) does not specifically require that the doubt be that of the Chief Executive Officer, it would, in my view, be inappropriate to read the sub-clause as allowing the Chief Executive Officer to exercise a discretion to require a staff member to undergo a medical examination where the Chief Executive Officer did not hold, or at least share, a doubt as to the staff member's capacity to perform the duties of his or her office. 19 It follows, in my view, that any decision by the Chief Executive Officer to require a staff member to undergo a medical examination pursuant to sub-cl 14(a) of the Award must be based upon a doubt presently held, at the very least by the Chief Executive Officer, as to the staff member's capacity to perform his or her duties. 20 Furthermore, the doubt as to the capacity of a staff member to perform the duties of his or her office must, I consider, be a reasonable one in the sense that it must be reasonably open to the Chief Executive Officer upon the evidence. However, it is also to be borne in mind that the existence of the doubt by the Chief Executive Officer as to the capacity of the staff member to perform his or her duties is merely the first operative requirement for the invocation of the procedure stipulated by cl 14 of the Award. In this context, and in the light of the other requirements contained in cl 14, the Award, in my view, contemplated that, although the University bears the onus of establishing the reasonableness of the doubt, that onus is not a high one. 21 The evidence discloses that the Secretary and Registrar of the University, Mr Porter, sent a memorandum dated 5 March 1995 to Professor Wilson, the Vice-Chancellor of the University. That memorandum was in the following terms: "The attached memorandum from the Director of Personnel Services catalogues a series of recent incidents and interactions involving Dr Ros Shaw in the Department of Dentistry. The Pro-Vice-Chancellor (Health Services), the Head of Dentistry and the Director of Personnel Services are at a complete loss as to how to deal with her persistent allegations and complaints. She appears to have continuing difficulty in accepting direction from her Head of Department and in working harmoniously with her colleagues. Would you be prepared to talk to her to see if we can get her to settle down and concentrate on achieving tenure rather than in pursuing what increasingly appears to be a vendetta against pretty well everyone in the University with whom she has any formal contact?" 22 That memorandum had attached to it another memorandum dated 27 February 1995 to Mr Porter from the Director, Personnel Services at the University, Mr Feeney, and also included what was described in Mr Feeney's memorandum as a "summary of the situation with Dr Shaw for the Vice-Chancellor, in preparation for the proposed meeting with her." On 1 June 1995 Professor Wilson had a meeting with the applicant. Professor Wilson's affidavit sworn 29 May 1996 included these paragraphs: "13. On 1 June 1995 I had a 45 minute meeting with Dr Shaw. In the context of her desire to obtain tenure, we discussed her teaching and research performance and relationships within the department. I reiterated the comments made in my letter of 13 July 1994 … about the importance of collegial relations in the effective operations of any department. When I referred to complaints from women staff, Dr Shaw claimed that Mrs Symons had perjured herself in court, spreading slanderous remarks about her. She alleged that Mrs Symons had acted unprofessionally in saying that she would ensure that Dr Shaw would not get promotion. The inference was clear; Dr Shaw regarded Mrs Symons as less well qualified than herself. ... 16. In about June 1995, I had a meeting with Mr Feeney and Mr Porter, the Secretary and Registrar to discuss Dr Shaw's employment. Mr Feeney informed me that the Head of the Dental School and his office staff felt as though they were under siege. He said that Dr Shaw's relationship with a number of her colleagues in the School had broken down and her long, emotive and at times hysterical phone calls were causing distress to a range of staff members in the Dental School as well as in the central administration. We discussed the fact that inordinate time was taken up in dealing with Dr Shaw in person or by phone and in producing file notes of the interactions. Mr Feeney said that he had serious concerns about the state of Dr Shaw's mental health and suggested that her behaviour raised the question whether proceedings under the relevant clause of the award governing academic staff entitled 'Termination on the Grounds of Ill Health' ('the clause') were indicated. We discussed the serious implications of deciding to proceed under the clause. The Personnel Services Department had maintained a file containing documents concerning Dr Shaw since her July 1994 appointment. It was suggested that to enable me to decide whetherto proceed under the clause, a senior psychiatrist should be requested to review that file and offer an opinion on Dr Shaw's state of mind. 17. It was agreed that Dr Feeney should assemble the personnel file on Dr Shaw in chronological order and send it to Professor Raphael in the Department of Psychiatry with a view to her advising me about the appropriateness of moving under the 'Termination on the Grounds of Ill Health' clause. I also requested Mr Byrom to provide me with advice to assist me in making a decision about how to deal with employment problems effecting [sic] Dr Shaw." 23 Mr Byrom, the legal officer of the University, wrote to Professor Wilson on 24 July 1995 a letter which began: "You have asked me to provide comment and advice in relation to certain steps that you are contemplating to assist you to make a decision about how to deal with employment problems affecting Dr Shaw and, in particular, whether to deal with her case under the provisions of the Academic Staff Award that deal with termination of employment on the grounds of ill health. Under that clause, for you to take action you must form the judgement that Dr Shaw is a staff member whose capacity to perform the duties of her office is in doubt. You have received some advice to suggest that this may be so and I confirm my view that it is entirely appropriate for you to seek written advice about this matter from two qualified practitioners who are themselves either on the staff of, or associated with, the University."