T5327 - 5 June
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 MRS JAN SAARINEN and UNIVERSITY OF TASMANIA, LAUNCESTON
Industrial dispute re alleged failure of employer to comply with award conditions. REASONS FOR DECISION This was an application for a dispute hearing made under Section 29 of the Industrial Relations Act 1984 by Mrs Jan Saarinen, who was a lecturer in the Tasmanian School of Nursing at the Launceston Campus of the University of Tasmania (the University). Mrs Saarinen was in dispute with the University over the alleged failure of the University to offer her a tenured appointment or alternatively, the failure of the University to offer her further employment after 31 December 1994. Mrs Saarinen claimed she had been treated harshly, unjustly or unfairly. Some grounds originally relied upon by Mrs Saarinen in the dispute were ultimately abandoned; I do not propose to refer to them in this decision. Mrs Saarinen had been employed at the University for approximately 11 years made up of a number of contracts of employment for varying periods on a fractional 0.6 basis, that is, she was a part-time employee. She said she was the second longest serving of over 40 staff members. In May 1991, following the amalgamation of the University of Tasmania and the Tasmanian State Institute of Technology to form the University, an agreement (the Agreement) was made between the University and two unions (which later amalgamated to form the National Tertiary Education Union (the Union) to ensure the on-going employment rights of those involved. In relation to employment positions Clause 3.4 of the Agreement provided:-
There was no dispute between the parties that Mrs Saarinen had occupied a position `on a fixed term basis for five consecutive years' during the period of her employment and that she was covered by Clause 3.4 of the Agreement which was colloquially known as `the five-year rule'. Mrs Saarinen claimed that the University had been harsh and unjust to her in that it failed by not implementing `the five-year rule' to provide her with a fair opportunity to compete internally for a tenured position. In about 1993, Mrs Saarinen could be said to have become entitled to the benefits of `the five-year rule' but (unfairly, claimed Mrs Saarinen) the University did not advertise any relevant positions until mid 1994. Even then Mrs Saarinen claimed, she was denied the opportunity to compete within the terms of `the five-year rule'. The Professor of Nursing and the Head of the Tasmanian School of Nursing at the University of Tasmania, Mary Magennis, told the Commission in evidence that, following a Commonwealth decision in 1987, nursing education was transferred from the Hospital Sector into the then Colleges of Advanced Education and then, from 1991, into the Universities. As a result of all these changes and transfers, nursing education had advanced from hospital-based registration certificates through diplomas to the commencement of a Bachelor of Nursing course at the University in 1992 and further advances had continued since then. In all this background and with the intention of lifting the number of tenured and more highly qualified nursing lecturers at the University so as to match the higher end qualifications envisaged, at the recommendation of Professor Magennis, the University, after a long delay, advertised eight tenurable positions and two contract positions. In general terms a tenurable position at the University is one in which the employment is made permanent on appointment subject to a satisfactory probationary period. Of the eight tenurable positions advertised, six were external, that is, open to applicants from throughout Australia and two were internal, that is, open only to eligible employees of the University. At the time in evidence there were said to be five employees eligible under `the five-year rule' to apply internally for tenurable positions advertised as a result of a review of the position each one held just prior to the advertising. Mrs Saarinen claimed that by restricting the number of internal positions advertisements to two, the University had breached `the five-year rule' and hence had treated her harshly and unjustly. To comply with `the five-year rule' it was claimed the University should have advertised five positions internally thus giving each of the five eligible employees a fair chance at one position. The University claimed that it was not so bound by `the five-year rule' because there were `exceptional circumstances' in that the Tasmanian School of Nursing was being restructured so as to upgrade the tenure and the qualifications of the lecturing staff parallel with the higher degree qualifications available to students on course completion. As to `the five-year rule' and `exceptional circumstances', in November 1993, the University approached the Union seeking acceptance that the re-profiling exercise did constitute `exceptional circumstances' and therefore allowed the external advertising of six positions as against two internal positions. In January 1995, under the name of a National Industrial Officer the Union confirmed its agreement to the proposed mix of advertisements on the basis of the `exceptional circumstances'. The University relied upon the Union's acceptance of the re-profiling exercise as `exceptional circumstances'. Mrs Saarinen contended that the whole purpose of the 'the five-year rule' was to protect the rights of individuals and both the University and the Union were therefore wrong in claiming that the `exceptional circumstances' overrode her right to apply for an internal tenurable position arising from a review of her position. Even though there were other factors, the nub of the dispute was in my view, the conflict over the interpretation of `the five-year rule'. There were a number of other matters raised by Mrs Saarinen: she alleged that Professor Magennis treated staff preferentially and sought to get rid of those not preferred, especially Mrs Saarinen. A number of witnesses were called in support of Mrs Saarinen's statements, in particular Mr Anthony Ralph, who had been a lecturer at the Tasmanian School of Nursing. Mr Ralph painted a picture of serious internal division within the Tasmanian School of Nursing caused by Professor Magennis' attitudes and methods. The University called a number of witnesses in response, in particular Professor Magennis, who denied the allegations against her and, as well as relying on the `exceptional circumstances' of `the five-year rule', said that Mrs Saarinen had been given a fair opportunity to get a tenurable position but had failed to compete with the high qualifications of the successful applicants. Mrs Saarinen claimed she had been unfairly treated a number of times referring to a denial of annual leave she had applied to take, a transfer to Burnie for some lectures outside her accustomed area of work and obstructions to her work as a candidate for a Masters Degree. Mrs Saarinen also claimed that over the years of her employment she had worked hard, carried out her commitments as an academic and until recently, had never received any negative feedback on her work. She said she had been a forerunner in developing clinical research and attracting grants to her department. Mr Ralph said in evidence, that the Nursing School was also divided over the notion of the ideal educational method for nursing. Professor Magennis he said, favoured an `experiential' model whereas Mrs Saarinen was related more to the old school didactic model. Mr Ralph, who said he was one of those out of favour, curiously said that he supported the Professor's general views in this matter. He said that those seeking preferment supported the Professor's ideology and those who didn't were generally isolated and their presence was not liked: He said the clear inference in committee and other discussions was that they would be removed in the forthcoming appointment processes, that is, the re-profiing exercise. There was also evidence from three witnesses as to alleged organisational chaos at the start of one year's lectures when clear guidelines had not been provided by the Professor and lecturers had to commence not knowing clearly what was required of them. This caused difficult personal confrontations between the Professor and some of the lecturers involved, including Mr Ralph, and exacerbated the unpleasant atmosphere. It was claimed that such a situation was consistent with the general running of the Department. The role of the Union in its dealings with the University over 'the five-year rule' and the `exceptional circumstances' was confusing and ambivalent. Certainly, on 8 January 1995 (rather late) in answer to a letter following discussions with the University, the National Industrial Officer confirmed the Union's agreement to the re-profiling exercise as `exceptional circumstances'. In response, however, Mrs Saarinen brought as a witness the Union's Honorary Tasmanian Division Secretary, Dr Thomas Dunning, who inter alia made the following statement:-
In answer to a question Dr Dunning further stated in evidence:-
It seems the apparent confusion and ambivalence in the Union arose out of the lack of co-ordination between the local part-time industrial representatives and the interstate full-time industrial representatives. Dr Dunning also confirmed Mrs Saarinen's claim that she had been disadvantaged by the delay in advertising because by the time the re-profiled positions were advertised there were many more applicants than there would have been prior to the delay thus reducing Mrs Saarinen's chances of appointment. For completeness it would be fair to say there were a number of other local lecturers who lost employment, albeit, under term contract arrangements as a result of the re-profiling advertisements. The University maintained that it had at all times complied with the provisions of 'the five-year rule' since the possibility of `exceptional circumstances' was provided for in 'the five-year rule'. The University also relied on the fact that, when the re-profiling of academic staff at the Tasmanian School of Nursing was being developed by Professor Magennis, on 17 June 1994 the proposals were put before the Nursing Committee (of which Mrs Saarinen was a member and present) and were endorsed in the following terms:-
The University submitted that Mrs Saarinen should have objected then to the limited number of internal positions proposed to be advertised, rather than delaying any action until the whole process had been completed and she had missed out. As to the meeting on 17 June 1994, Mrs Saarinen claimed she was not aware at the time her rights under `the five-year rule' were being taken away. The University claimed that the delay in advertising the positions actually benefited Mrs Saarinen by giving her time to get her Masters Degree completed and accepted, thus improving her credentials in the competition for the positions advertised. The matter of Mrs Saarinen's thesis for the Master of Nursing Award is concerning. An exhibit of the University (A13) was a copy of a letter sent to Mrs Saarinen on 14 December 1992, it said:-
Professor Michael Hazelton, the Academic Dean of the Faculty of Nursing and the Deputy Head of the Tasmanian School of Nursing in his evidence for the University, advised the Commission that Mrs Saarinen's thesis was the first ever that had been dealt with by the Nursing School or Faculty and he reported that Mrs Saarinen did not accept the Tasmanian School of Nursing Graduate Studies Thesis Committee's strong recommendation that she withdraw it for further work and hence, it went to examination and was failed. Professor Hazelton's view was that Mrs Saarinen had not excelled to date in the area of research publications and conference presentations. He also said that, following a grievance committee recommendation, Mrs Saarinen's thesis had been referred to a second examiner who also failed it. Professor Hazelton confirmed Mrs Saarinen's good academic record up to as far as, but not including, the Masters award, but also made the point that under-graduate work was not to be compared with post-graduate work. Professor Hazelton acknowledged that there were divisions within the Tasmanian School of Nursing and the bad feeling between Professor Magennis and Mrs Saarinen. DECISION: I am not convinced there was any clear injustice done to Mrs Saarinen over the failure of her thesis except in the context of the general atmosphere and position she was in at the Tasmanian School of Nursing and specifically, her conflict with Professor Magennis who was closely involved in the scrutiny of the thesis. In this context I do not propose to find against the University, but I consider the latter factors to be generally relevant in my consideration of 'the five-year rule' implications. Mrs Saarinen in evidence, claimed that she had tried a number of times to raise her concerns as to the unfair situation she was in, but to no avail, and she gave up. Be that as it may, if an injustice occurs and no objection is raised at the time, it does not remove liability merely to claim that no objection was raised at the time. Moreover, if the climate was such as it was claimed to be, and I accept that it was against Mrs Saarinen, it was reasonable for Mrs Saarinen to proceed in spite of the difficulties in the hope that her fortunes would improve. To accept the University's submission of this latter point would be to deny Mrs Saarinen's right to seek a remedy in this jurisdiction - win or lose. As to the University's submission on the significance of the decision of the Nursing Committee on 17 June 1994, and in the abovementioned context, I accept the response on behalf of Mrs Saarinen that, at the same time there was no reference in the Professor's proposals to 'the five-year rule' , nor to those covered by it, nor the intended effect of the re-profiling on that rule, all of which indicated that the University was disregarding 'the five-year rule' deliberately from at least that early stage. I do not accept either, that the significance of the Nursing Committee was all that relevant since it really had no authority to countermand Professor Magennis' recommendations: it was merely an advisory body. I see the failure of the University to offer Mrs Saarinen a fixed term contract position immediately after the end of her 11 year period of employment and the events surrounding the round of advertisements in 1994, as the culmination and part of a sequence of unfair treatment. Without all the preceding events and factors it may not have been significant but, in all the context of this case and my particular finding, I am satisfied that this last move of the University was also harsh and unjust. I find however, that once the advertisements for tenure and other appointments were made in 1994 prima facie there was no evidence of deliberate unfair treatment of any of the applicants for those appointments. There was no evidence that any of the proper, formal University processes in these matters were not carried out correctly nor was the conduct of any of those persons involved shown to be other than professional. I have no reason to doubt the integrity of the witnesses who were brought forward to elucidate that part of the matters in dispute. It is the actions and attitudes of the University, through Professor Magennis in particular, prior to the placing of the advertisements which have been of concern to me and upon which I have based my decision in this dispute. Whilst I do not endorse fully the submissions of Mrs Saarinen's advocate with respect to Professor Magennis' role and actions in this case, I do accept that the Professor, with the support of the University, deliberately ignored 'the five-year rule' and was prepared by so doing, to dump Mrs Saarinen from her well merited senior position at the Tasmanian School of Nursing in the interests of quickly re-profiling the academic staff on a higher qualification basis. In particular, because of 'the five-year rule', I consider that the Professor and the University had a prior responsibility to ensure that Mrs Saarinen had a clear and fair approach to a position which she could recognise as the permanent tenure position equivalent to that which she had occupied just prior to the relevant advertisement. I find that such an opportunity was deliberately denied Mrs Saarinen and I therefore decide that she was treated harshly and unjustly in that respect by the University, her employer. I also find that the decisions and actions of the University, through the Nursing School, leading up to the eventual placing of the advertisements for appointments in 1994 were suspect, unprofessional and not consistent with good management practice. I stress that there was no evidence of anything untoward after the advertisements were placed. Mrs Saarinen submitted that the University had contravened 'the five-year rule' also by not specifically reviewing her position. I accept that there was a review (of sorts) in that it is reasonable and consequential, I believe, to expect that the position of each of the five eligible persons on being so reviewed, would be advertised internally - the fact that only two positions were advertised internally does not indicate that the review did not take place. It seems to me however, that whatever review took place, the end result thwarted 'the five-year rule' since it is impossible to construe definitely that one of those positions was Mrs Saarinen's. I do not accept the contention from the University that Mrs Saarinen would have failed in the competition internally even if there had been five internal positions advertised for the five employees eligible under 'the five-year rule' in mid 1994. The University was at pains to point out that Mrs Saarinen was seventh on the selection committee's priority list of all those who failed to gain appointments and that Mrs Saarinen would therefore have failed to gain an appointment even then. I do not accept that contention because primarily it is not fair to use facts occurring after the event in an argument over what happened prior to an event. Also, there were some other serious and cogent factors, one being the general ill-will against Mrs Saarinen and another being the delay in advertising which, in Professor Magennis' evidence, brought in many more applications than expected thus further limiting Mrs Saarinen's chances. Of all the witnesses for Mrs Saarinen, Anthony Ralph was crucial. He was in some ways unsatisfactory in that he couldn't remember clearly the exact words used and he sometimes became confused. Nevertheless, I accepted him as an honest witness and the general import of his evidence as reliable. Professor Magennis on the other hand, was a witness who was forthright and clear in what she said, but on the whole I regarded her evidence as unsatisfactory. For example, she often refused to answer directly and persisted with her own view when she was clearly wrong. The evidence, even from Professor Hazelton, was that divisions existed in the Tasmanian School of Nursing. Professor Magennis denied any knowledge of it. She consistently sought to have the University carry the responsibility for decisions or recommendations she had deliberately made as Head of her Department. Transcending all the foregoing however, was Professor Magennis' complete disregard for 'the five-year rule' which I consider to be the main factor in this case. I accept Mrs Saarinen's submissions that the Agreement and in particular, 'the five-year rule', was formally and specifically designed to protect the rights of individuals carried over at the time of the amalgamation of the previous educational institutions. I do not accept that the precipitous raising of the standards of the academic qualifications in the University's Tasmanian School of Nursing was anywhere near urgent and serious enough to preclude the operation of 'the five-year rule' for Mrs Saarinen. I accept Mrs Saarinen's submission that "exceptional circumstances mean circumstances exceptional to the employee's position". In the first instance I do not consider that the re-profiling exercise was `exceptional circumstances' for the purposes of 'the five-year rule'. The re-profiling could have taken place over a number of years and no doubt, in the nature of things, will be a continuous process in some form or another anyway. 'The five-year rule' was enshrined in the Agreement between the parties and when it comes to testing its authority it would take at least a similar agreement between the parties to overcome it. Mere exchange of letters between officials would be insufficient. In this case also, the Union's position was somewhat compromised but, even in that area, contrary to the correspondence produced by the University, I am prepared to accept Dr Dunning's evidence that the Union considered Mrs Saarinen to have been disadvantaged. There was some debate between the parties as to jurisdiction in this matter, however, I am satisfied that the Commission has jurisdiction. The harsh and unjust actions taken by the University against Mrs Saarinen took place mainly whilst she was an employee and this directly precluded her from applying internally for her position as she was entitled to do under `the five-year rule'. Technically Mrs Saarinen's employment ceased when her contract was not renewed, but in that regard, I accept the submissions on behalf of Mrs Saarinen as to jurisdiction particularly those based upon the South Australian case of Sinclair and Grainger (31 AILR 433).
On the grounds that the University failed to offer Mrs Saarinen either a tenured or a contract position I find also that the University treated her harshly and unjustly, but, I regard the breach of `the five-year rule' as the primary element in the University's harsh and unjust treatment of Mrs Saarinen. The fact of `the five-year rule' and the entitlements it gave Mrs Saarinen separate this case from any other case and hence precedent cases in other jurisdictions, whilst they do give some insights, are not conclusive when applied to this case. Quite apart from Mrs Saarinen's long period of employment under successive contracts and the harsh and unjust treatment I have found, the fact of her entitlements under `the five-year rule' carried forward past her last contract term. There is no doubt in my mind that `the five-year rule' was an industrial matter affecting the relationship between the University and its employees and hence this dispute clearly is encompassed by the specific and general terms of the definition in the Industrial Relations Act 1984. In all the circumstances of this case I am satisfied that the University did treat Mrs Saarinen harshly and unjustly in that it failed to provide her, in accordance with 'the five-year rule', with a clear opportunity to compete for a tenured position which she could perceive to have been advertised internally as a result of a review of her previous contract position. I am also satisfied that Mrs Saarinen was treated harshly and unjustly by the University in all the circumstances leading to the eventual advertising round in 1994. In all these circumstances Mrs Saarinen was denied any chance of receiving an offer of tenurable appointment. Having reached a decision in this matter I propose to reconvene the parties for the purposes of hearing further submissions as to what remedy should be applied in consequence.
P A Imlach Appearances: Dates and place of hearing: |