PN1

VICE PRESIDENT CATANZARITI: Good morning. The Bench this morning is myself, it's Colman DP, and Johns C. I'll take the appearances, please.

PN2

MR Y SHARIFF: May it please, your Honour, my name is Shariff, S‑h‑a‑r‑i‑f‑f, initial Y. I seek permission to appear, and I am instructed by Mr McDonald and Mr Marriott.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Shariff.

PN4

MR M HARDING: Your Honour, my name is Malcolm Harding. I seek permission to appear with Ms Burke on behalf of the respondent, Dr Zhao.

PN5

VICE PRESIDENT CATANZARITI: Thank you. Permission to appear is granted. Some preliminary matters before we hear from counsel: first, ordinarily hearings are in public under section 593 of the Fair Work Act. Obviously because of COVID‑19 this is not a public hearing in the strict sense in that members of the public can walk in. It's only the people that are on this telephone call that can hear it, however the transcript itself, it will be available to the general public. Secondly, if at any point you drop out, could you please notify my Chambers immediately, and finally, we do thank the parties for the very detailed written submissions. The Full Bench has had the opportunity to read the submissions, together with all the material in the appeal book, and so we invite now some short submissions. Mr Shariff, thank you.

PN6

MR SHARIFF: Yes. Thank you, your Honour. I propose to be to the point. What I propose to deal with is three matters. The first was I propose to take the Full Bench through some materials in the appeal book to identify the facts such as they're relevant to the grounds of appeal. Secondly, I propose to deal with the grounds of appeal and I'll focus on our primary grounds of appeal. As your Honours will have read from our submissions, our latter grounds of appeal are subsidiary or contingent upon our primary grounds of appeal, and finally, I'll address the question of public interest.

PN7

Could I then first start with the facts, and if I could trouble the Full Bench to go to our written submissions that were filed on the appeal, and in those submissions at paragraph 28 we identify that Dr Zhao's employment was governed by, relevantly, over material times, two enterprise agreements being the 2014 enterprise agreement and subsequently the 2018 enterprise agreement. They contain the terms in relation to academic work allocations, and your Honours will see from the clause that we've extracted from the early agreement, clause 37.5, and the subsequent agreement, 38.5, that academic staff would be consulted about their workload and it would be allocated fairly and equitably, and to achieve that end and to monitor workloads of academic staff, the workloads would be assigned in accordance with the principles of allocating workloads set out in relevantly the faculty work guidelines.

PN8

Just pausing there, there was no issue in the proceedings below, as your Honours will have read, that Dr Zhao had a workload allocation of 40 per cent to research, 40 per cent to teaching, and 20 per cent to the commitment to community and other endeavours. That was not in dispute. There was a dispute about the relevance or otherwise of, or differences between, the academic work guidelines and the faculty benchmarks. Just very quickly on that point, can I take your Honours to the academic guidelines? They appear in the appeal book at page 413. Can I immediately note about the academic work guidelines under the heading of 'Aim,' what the academic staff workload guidelines are about were the fair and equitable and transparent workload allocation. So what the guidelines were driving towards was allocation of work, and also, as I'll come to, the setting of expectations, but one of the central arguments with the university in the proceedings below was that ultimately performance would be governed by the plans put in place as between academic and supervisor, but I'll come to that in a moment.

PN9

Just staying on this page on 413, your Honours will see in the second paragraph under the heading, the guidelines recognise that each academic unit has expectations of workload allocations appropriate to the disciplines, such as threshold research teaching and learning and so on, and recognised academic units in formulating workload procedures will need to be, and I emphasise the words 'informed by' faculty performance management benchmarks that ensure transparency and to assist academic staff to more clearly understand what they should be aiming for in delivering in order to have successful academic careers. And then the final sentence says all relevant accreditation requirements, e.g. AACSB, must also be considered. Could I just say two things about this? The first thing is that the relevant - sorry, I should say there's three things about this. The first point I've already made, which is that the guidelines are about allocation of workload. The second is that in this second paragraph what is being referred to is that the workload allocations will need to be informed by the faculty benchmarks, the faculty performance management benchmarks. Your Honours will see that there's a footnote for that, and footnote 2 says that those are currently under development, and your Honours will have noted that they were subsequently published and there was an issue that emerged about whether they were to be implemented in 2021, but with movement towards that implementation, but the point is that the workload allocations were to be informed by those benchmarks. The third point is that the relevant accreditation requirements in the AACSB must also be considered, not that they would be determinative of allocations, but that they must be considered.

PN10

Could I then trouble your Honours to go over the page to 414 of the appeal book and you will find under the clause 4.1.2 the heading, 'Research and Scholarship,' and you will see text that appears there:

PN11

Academic workloads -

PN12

their appointments again, the focus was on the workload -

PN13

will incorporate research that leads to the advancement of knowledge and is consistent with the business school, university and academic community expectations.

PN14

Then it says:

PN15

The minimum requirement for all academic staff is to maintain scholarship at the level needed to fulfil their academic duties effectively, especially teaching. Research and scholarship activities may include authorship of high quality, peer‑reviewed journal publications and peer‑recognised books -

PN16

and so on. After the bullet points, your Honours will see the text that appears:

PN17

Recognised academic unit workload allocation procedures should take account of the impact and quality of research outputs as well as the quantity.

PN18

And then again, for example, 'consideration of ABDC journal rankings with a status of a grant‑awarding body.' In other words, these academic guidelines were not being prescriptive about the particular expectation on a particular academic, but setting the framework for the guidelines with expectations which, we say, were then to be translated into particular work plans and work settings and goals and objectives for particular academics.

PN19

Can I then move to the next point I wish to make about this? Your Honours should have received a list of authorities as a hyperlink, and in that list of authorities the final item in our list of authorities is item 10, which if your Honours click and the technology permits will take your Honours through to the University of Technology Sydney Academic Enterprise Agreement 2018. Once your Honours have done that, could I trouble your Honours to turn up clause 34 of that agreement? It has a cognate provision in the earlier agreement that's - just for convenience, if I could take you to this one. Does each of the Members of the Full Bench have that, and have they been able to go through to clause 34?

PN20

VICE PRESIDENT CATANZARITI: Thank you, Mr Shariff.

PN21

MR SHARIFF: Thank you. When we look at clause 34, it falls within the part D, Performance and Development, and it provides in 34.1 that:

PN22

Each staff member will have a nominated academic 'supervisor', and will be advised in writing of the name and/or position of the nominated supervisor.

PN23

And in 34.2, it sets out the principles that:

PN24

Supervisors have a range of responsibilities, including those in relation to Performance and Development, Probation reviews, consulting with staff on their workload allocations

PN25

importantly -

PN26

addressing performance issues and for the approval of leave in accordance with Part C. Supervisors also have a role to play in the prevention of workplace bullying by taking action when instances of such behaviour come to their attention. The University is opposed to workplace bullying.

PN27

And so on. 34.3:

PN28

The supervisor will be determined by the Dean.

PN29

And then if your Honours then go to 34.4:

PN30

Planning and review for performance and development is intended to be a positive process that balances professional and career development.

PN31

34.5:

PN32

The planning and review process is a process of collegial engagement.

PN33

34.6:

PN34

Supervisors and the staff they supervise will meet at least annually for the planning and review process. The planning and review process will encompass all aspects of the staff member's work, including their professional contribution to the community. The process should identify any developmental needs and support that the staff member may require.

PN35

The supervisor and staff member will jointly prepare a planning and review report which will document performance feedback and plans, including staff development plans, annual and other leave plans. The supervisor will ensure that the staff member develops an appropriate and reasonable plan consistent with available resources.

PN36

The point of this is to identify that either parallel or separately to the idea of workload allocation governed by the academic guidelines is an entrenched process within the enterprise agreement for the development of work plans as between academic and supervisor to be done on an annual basis, which sets the expectations of performance. The fact that that sets the expectations of performance is reinforced by clause 51 of the same agreement, if I could trouble your Honours to go to that, which then deals with, as your Honours will see, discipline and the managing of unsatisfactory performance, and that is the process that was taken here when, as I'm about to come to, following the process of annual plan setting and review. It was concluded by Dr Zhao's supervisor that her performance was unsatisfactory, and that process also, your Honours will see, if you skip ahead to clause 54, permits for a Process Review Committee where a staff member who has received advice of redundancy or disciplinary action, including disciplinary action arising by reason of the management of unsatisfactory performance, to seek a review, and that review is to be conducted by a review committee, and the mechanism for that is set out in 54.4 and following.

PN37

Could I then trouble your Honours to come back to the appeal book and go to appeal book page 334, and your Honours will see what appears on page 334 is the Performance and Development Work Plan and Review for Academic Staff 2016, and it says:

PN38

The performance and development plan process helps staff and supervisors plan and review work to evaluate performance and to identify development needs.

PN39

Your Honours will see at the foot of the page that it has got a reference to the name of the staff member, signed and dated on 19 February 2016, which is a significant date, not the particular date, but the fact that it was being done in February 2016 is important, and your Honours will see that the plan is said to cover the 12‑month period through to 31 December.

PN40

Could I then ask that your Honours turn over to page 337, and you will see that this part of the plan then sets up in column form on the left‑hand side the objectives and key responsibilities, and then on the right‑hand side key performance indicators. This your Honours will infer is objective setting and identification of KPIs by staff, that is, the academic and as approved by the supervisors, and if you turn over to page 388, for Dr Zhao in particular in February 2016 in relation to research and scholarship, you will see there are objectives on the left‑hand side. One of them included, 'Achieve published outcomes by revise/submit existing working papers to high‑quality journals,' and then on the right‑hand side you will see a number of bullet points as to how that was to be achieved, including can I draw your Honours' attention to the final bullet point and the sub‑bullet points, 'Existing working papers - expected outcome: publish the following working papers in referee journals by the end of year 2016,' and could I ask that your Honours in particular note the title of the first one:

PN41

Revise the paper, 'Does stock liquidity have impact on the firm's capital structure,' and aim to publish it in the Financial Review journal, A journal.

PN42

Capital A journal, which your Honours will have picked up the significance of in the written submissions. If we then turn over to page 341 you will see down the bottom, 'Mid‑term goals,' in the penultimate box on the page, 'from two to five years,' and Dr Zhao has identified a mid‑term goal of two to five years from 2016 of making a greater contribution to financial literature with more A star or A journal publications. And then can I take your Honours over to page 343, which is then the review process, and you will see that because - if it's legible on your versions - the review arrow at the top of the page has been blacked out to say this is now the review part and this is now Dr Zhao reviewing her performance herself over the course of the last 12 months, and on page 344, in relation to research, she says at about point five on the page:

PN43

I have worked hard to improve and submit my working papers to referee journals. I have produced two publications from the working paper.

PN44

And then you will see her supervisor's comments at the time, a different supervisor to Professor Michayluk, on page 345, and the earlier supervisor says this:

PN45

In reviewing Lucy's output for 2016 I believe that she has not met the expectations set for a level B academic; not met her 2016 work plan KPIs, nor has she sufficiently met the expectations of the faculty's performance benchmarks. The areas to note are -

PN46

And leaving aside the first bullet point, the second bullet point:

PN47

Despite her 2016 work plan detailing the targeting of an A journal, Lucy continues to produce B and C journal outputs, and Lucy only attended one of 31 research seminars offered by the Finance Discipline Group -

PN48

I'm not sure it is Finance - it's 'FDG,' whatever that stands for -

PN49

and does not actively engage in the research culture of the faculty.

PN50

That was a conclusion reached, your Honours will see on the bottom of the page, on 25 January 2017. If your Honours turn over the page to page 346, your Honours will then see the work plan - top of the page, it's in Landscape - a development plan for 2017 for the period 1 January 2017 to 31 December 2017, with a review on 1 April. If your Honours turn over the page to page 347, this is now the development plan and work plan being set by Professor Michayluk, who had in the intervening period become Dr Zhao's supervisor, and you will see under the development area what needs to be improved - paper one: 'Does stock liquidity have an impact on the firm's capital structure.' That paper is to be completed and have been submitted to the Financial Review, so waiting response. 'If the paper is rejected then revise the paper,' and so on, 'and submit it to an A or A star journal.' And then paper two, 'CEO characteristics,' and submit paper - in the final entry in the second column - 'submit paper to an A or an A star journal.'

PN51

Just on that first paper, 'Does stock liquidity have an impact on the firm's capital structure,' your Honours will recall that that was the same paper on page 338 that in February 2016 Dr Zhao had identified as one of her KPIs that she would develop, revise that paper and get it published in an A journal. A year later, or approximately a year later, the same KPI or agreed development area has been identified. And over the page on page 348, to improve - on the left‑hand side, another goal was to improve the quality of research, and in the next column, 'Attendance at a majority of FDG research seminars is expected to improve understanding of the A and A star process.' Your Honours will then find in the review part of it that there's a progress review that comes on page 350, and then there's a final review on page 352 of the appeal book, and you will see at the bottom right‑hand corner in Landscape style, the date of that was on 12 February 2018.

PN52

So at the end of the 2017 work plan process, two years since the setting of KPIs in February 2016, the supervisor's comment, now from Professor Michayluk, is that, 'This year the development plan has helped Lucy to improve her teaching. Teaching is almost meeting expectations.' In terms of research, 'She has published one paper in a C journal. She has been focusing on improving her research quality by developing one idea of receiving feedback,' and 'Research skill needs to improve,' and in relation to that one paper that had been on the cards, as it were - - -

PN53

VICE PRESIDENT CATANZARITI: Mr Shariff, just read the sentence in full: 'Research skill needs to improve, but her focus and efforts have already shown evidence of improving.'

PN54

MR SHARIFF: That's right.

PN55

VICE PRESIDENT CATANZARITI: Just to be fair.

PN56

MR SHARIFF: Yes, I accept that. What that then led to is - the steps towards the performance improvement plan - it led to an email being sent, and if I can trouble your Honours to go to page 183 of the appeal book. On 16 February, so just to place this in time, the review of performance for 2017 had occurred on 12 February 2018. A few days later, Professor Michayluk sends an email to Dr Zhao:

PN57

Thank you for your efforts this year. You've made a huge effort to try to improve your teaching, and while your targets have not been met there have been improvements.

PN58

Going then to research:

PN59

Your research quality efforts -

PN60

to pick up, Vice President, your point -

PN61

have been improving, though I note that the paper that was published was in a C journal. You did provide a draft paper, but in consulting with another faculty, the research idea needs to be improved. I know you've received most of their feedback and they were waiting for another faculty member's feedback. I do think you have begun to prioritise important research, and I think the potential for improvement is there. However, it is noted that further effort is required to move towards meeting the UGS business score for managing performance academic benchmarks, as you did not have a quality A or A star paper published during the development plan period, with you having last achieved an A level publication before 2014.

PN62

Just pausing there. There's no demur on that fact. There's no dispute between the parties that Dr Zhao had not published in an A or A star publication before 2014. He then says:

PN63

So that we can continue to work towards these benchmarks by improving research performance, I'd like to meet with you on Friday February 23 2018 to discuss implementing strategies and a formal plan to improve your performance.

PN64

That then led to the PIP, the performance improvement plan, and that appears at page 353 of the appeal book, and your Honours will see, when your Honours have that, that on page 354 the areas for expected performance are set. The first item is to achieve acceptance for publication of the paper, 'Does stock liquidity have impact on a firm's capital structure,' and your Honours will now see the familiarity with that same paper being the one that was the subject of the 2016 development plan as a KPI, again in 2017, and here it is again in 2018. 'As part of this goal, Lucy will also be required to provide an update on the status of this paper at the PIP review meetings on the following dates' - and they're specified. The second item was, 'To achieve paper acceptance or revise and resubmit a decision for paper, Stock liquidity.' And then as part of that goal, some very specific things were identified: complete all required data collection; complete a draft working paper by a particular date; successfully obtain feedback; revise paper that needs to be revised; update the status of the paper, and so on. Item 3 was to demonstrate a pipeline of further research by commencing work on a new working paper, and then again some very specific things are identified as ways that Dr Zhao could go about that, and they're set out.

PN65

What came of that PIP was an email that followed it, and that appears at page 187 of the appeal book, and in that email Professor Michayluk says to Dr Zhao about the performance improvement plan, second paragraph - noting that the meeting was also attended by a representative of HR and a representative from the NTEU - Professor Michayluk then says:

PN66

I opened the meeting by outlining my concerns with your performance in the areas of teaching and research -

PN67

et cetera. 'I have made the decision,' he says halfway through it -

PN68

I have made the decision following our meeting last Friday to remove the teaching outcomes from the PIP and to monitor your teaching instead via the 2018 work plan. It is still expected that you continue to make a concerted effort to ensure your teaching is in line with the required standards.

PN69

The next paragraph:

PN70

With respect to your research, I noted in our meeting that your research quality efforts had been improving, but that the paper that you published in 2017 was in a C journal. I noted that during the 2017 development plan period you did not have a quality A or A star paper published, with you last having achieved an A level publication prior to 2014. I hope that by solely focusing on research in your PIP, this will become your primary focus for 2018. So that we can continue to support you and improve your performance to move towards meeting the UGS score, managing for performance academic benchmarks, I informed you during the meeting that we're implementing a PIP, a copy of which is attached.

PN71

The evidence is that ultimately the university concluded at the end of the review process with the PIP, which was extended on two occasions, that Dr Zhao had not satisfied the terms of the PIP; in other words, her performance was unsatisfactory. Critically in that, the conclusion wasn't reached that her performance was unsatisfactory because she hadn't satisfied the faculty benchmarks, but the conclusion that was reached was that her performance was unsatisfactory because over a period of essentially three years she had not met the KPIs, at least in relation to research. Though she had shown some signs of improvement, she had nevertheless not met her KPIs.

PN72

With that factual context in mind, could I then turn to the decision and turn to the second area that I said I would address, which will be what we say (indistinct) in terms of the Deputy President's reasons. I first go to the decision at paragraph 104, and just before coming to 104, after setting the out the test for valid reason and so on at paragraph 102, the Deputy President stated that:

PN73

For the reasons which follow, I have come to the view that the reasons for Dr Zhao's dismissal were not 'soundly based' or 'well founded'. Accordingly, the dismissal was not for a valid reason and when all the relevant matters are properly taken into account, her dismissal attracts the epithet of 'unreasonable', within the meaning of s 387 of the Act. I shall return to these matters shortly.

PN74

His Honour then goes on to general observations, and he said:

PN75

It is generally accepted that most modern universities in Australia and internationally, serve a twofold focus -

PN76

et cetera.

PN77

Views might differ as to what focus is more important and therefore, afforded the most priority. However, in my humble opinion, the teaching of future generations of tertiary qualified students of all ages is the primary purpose of a first-class university.

PN78

We take issue with that. It is an irrelevant consideration. It's not soundly based. We've identified in our written submissions that the statutory and other bases upon which universities in the contemporary era have a mandate to research, to attract funding, to earn income - their responsibility to all their stakeholders, including taxpayers ultimately. At 105, his Honour says:

PN79

That said (and as is sometimes cynically observed), universities can become ruthlessly competitive, if not obsessed, with achieving the top research rankings and reputation in order to attract students ('code' for income) which, to my mind, may tend to distract from the focus of providing a quality learning experience for students.

PN80

Well again we make the same complaints about that point. Then over the page at 106, the Deputy President says:

PN81

I also consider it is self-evident that an academic, like all of us, will have different interests, perspectives, strengths and weaknesses. A university, of all of society's institutions, should have the flexibility to accommodate an academic's personal and professional qualities and attributes, and maximise a particular individual's interests and talents -

PN82

And again, this seems to be referring to some kind of external standard of what universities should do and what they should aspire to do, and our opponents say - our learned friends say well none of this matters. But what our opponents don't say is whether they say whether this is proper, fair, reasonable, whether it had a basis, whether the university in the proceedings below was given notice of it; it wasn't argued; whether we could respond to it, and it seems to have influenced, in our respectful submission, his Honour's analysis at paragraphs 110 and following, where his Honour seems to diminish, in our respectful submission, Dr Zhao's underperformance on the research side of things because of her apparently satisfactory performance on the other 60 per cent of her work, and that's manifest in paragraph 110 in the final sentence, but also in 112 where his Honour says, 'Dr Zhao's markedly improved teaching performance;' at para (c), 'appreciating that Dr Zhao was doing her best,' and then over the page at (i), 'considering flexible work allocations based on Dr Zhao's very good teaching performance by insisting on a rigid 40:40:20 formula.'

PN83

What his Honour doesn't deal with, with respect, is the fundamental issue that the reason for the university's decision to terminate here and conclusion about unsatisfactory performance was that Dr Zhao had not over effectively a three‑year period met the very KPIs that were agreed with her and set for her, and that's just not dealt with. Rather, what the Deputy President appears to have done is to say, well, she's doing her best and she's performing okay on 60 per cent of her workload and that's what universities should be about in any event, and universities should accommodate each academic's personal qualities and preferences, and with respect, we take issue with the idea that the observations in paragraphs 103 to 106 are inconsequential or didn't influence the reasoning in paragraphs 110 and following. They're just not correct. They can't be allowed to stand, and I'll come back to that point when I deal with questions of public interest. That's effectively the gravemente of our first ground of appeal.

PN84

DEPUTY PRESIDENT COLMAN: Can I just clarify, Mr Shariff - it's Colman DP speaking - by this ground of appeal, or in relation to this point, the appellant contends, does it, that it was denied procedural fairness, is that the case?

PN85

MR SHARIFF: We actually say that they're irrelevant considerations, and they also have the effect by his Honour having taken them into account without there having been any notice of it and it not being argued in the proceedings below were deprived the opportunity to actually have engaged with the Deputy President about those matters. So our primary contention is they're just irrelevant consideration; they shouldn't have been taken into account, and they're just not relevant to how the case was put or run, and yes, the consequence of that is that we were deprived the opportunity to be heard on those matters.

PN86

VICE PRESIDENT CATANZARITI: And Mr Shariff, that turns on the view of what you take of whether 107 mitigates against that argument, because he then moves to the particular facts of the case: were they just his musings, or were they in fact material that actually is relevant to his determination.

PN87

MR SHARIFF: Well - and that - - -

PN88

VICE PRESIDENT CATANZARITI: And that ultimately becomes the question for the Full Bench as to what is the weight to be given for those comments, because he does focus on the particular situation of this particular academic and the interrelationship of the benchmarks, and the research, et cetera, and the enterprise agreement. So to get home, you have to say that this trumps the rest of his decision - (indistinct) I'm wondering, Mr Shariff.

PN89

MR SHARIFF: Yes. No, I accept that, your Honour. What I'm saying is that these observations necessarily influenced his Honour's thinking, because - I'm jumping now to our further ground on the second ground, which is the split on 40:40:20 - his Honour just doesn't deal with, as we say in writing, and if I can trouble your Honours now to go back to where his Honour deals with findings as to valid reasons at paragraph 110. At paragraph 110, his Honour says:

PN90

In my opinion, the University did not give weight or sufficient weight to a number of matters.

PN91

So the number of matters that his Honour says that the university didn't give weight to is the fact that Dr Zhao was performing satisfactorily on 60 per cent of her workload, being teaching and administration. What that doesn't deal with is well was she in fact performing adequately in accordance with the KPIs set for her over a process of approximately three years on research. The valid reason that was put forward by the university was that she was underperforming on research - her performance was unsatisfactory there, and so it's hard to look at 110. If you're a person in the position of the university and you look at this case and you say well has the Deputy President actually dealt with my point; my point as the university was she did not - this academic did not over a period of three years meet her agreed performance benchmarks, the ones that she agreed to; forget academic guidelines or faculty benchmarks, just what she agreed to do, and his Honour just doesn't deal with that. And to answer your Honour's question, necessarily his Honour's comments about general observations and musings about what the university should be about have affected that thinking, because what his Honour seems to be saying is well she's an okay teacher, she does all right at the other stuff, and as his Honour says at 112(i), well you should have considered a more flexible workload allocation for her rather than a 40:40:20, because that would have - because she's going okay at teaching, you should have, I don't know, perhaps changed her allocation to 80:20, 80 being teaching and 20 being other, and reduce her research.

PN92

But how does that deal with the actual issue that was put before the Deputy President to say well she didn't agree to do what she said she would do in her KPIs, in her development plan and then in her performance improvement plan? That's the point of it, and associated with that, if I can cut to the chase a bit and be blunt about it, in terms of the public interest that arises here, and I'm now skipping ahead to the final point I wish to make, the reality of this is that there is a published judgment now in respect of a prominent university where a very senior member and a highly respected member of the Fair Work Commission, a member with incredible experience, one who is regarded highly within the industrial community, has expressed views about tertiary education and what the objects of tertiary institutions should be, and has expressed a view that if you're going okay as an academic on 60 per cent of your work, well it doesn't much matter what you do on the other 40 per cent, if that's the focus of development plans and the like for universities. There is no doubt about this that both this university and other universities are extremely concerned that that type of idea gets picked up in subsequent and other cases and heralded to say well, okay, so long as you're doing okay on research and community participation it doesn't matter whether you're a poor researcher, and Sams DP says well, you should focus on teaching, that's what universities should do, and not be ruthless or competitive. And that's the trouble with this, and our opponents seem to say well there's nothing here, this case just got decided on its facts, but it's far more prominent than that because of the particular findings.

PN93

Can I then go to, having made those observations, go to what we wish to say about ground two? Ground two was dealing with the way his Honour dealt with the 40:40:20 split, and it overlaps with the point I've just been making. The particular issue or part of the judgment that we take issue with is the final sentence of paragraph 110 where his Honour says:

PN94

It is difficult to conceptually and rationally conclude that a 60% performance rating equated to poor or unsatisfactory performance overall.

PN95

We do take issue with that. That just can't be right. There are countless examples one could give as to why if you're doing okay on 60 per cent of your job, if it can be split up like that, but underperforming on 40 per cent of your job, that still gives rise to a valid reason for termination. The Deputy President here came to the conclusion that there was no valid reason for termination, which is, we say, with respect on the facts, and I've taken you through the process of the development plans over three years, not correct. One can imagine if one is a partner in a law firm or - and I appreciate each of your Honours has worked in law firms - or an employee in a law firm, you might be terribly good at business development but just be a very poor technical lawyer, or it might be the converse, you might be an exceptionally talented technical lawyer but terrible at business development, or terrible at billing, or terrible at administration. The idea that because you are meeting the mark or passing the mark on 60 per cent of your workload allocation doesn't pass muster one would have thought in terms of performance management in the contemporary era, and ultimately it is for the business or the enterprise, as we have pointed out in the submissions, to set the standards of performance they wish to achieve within the enterprise and to measure against them. The idea that someone can just simply achieve satisfactory performance in some areas and not others and that makes them immune from being disciplined isn't correct and shouldn't be allowed to stand, and that's the essential point that we're making about our complaint with paragraph 110 and what follows in terms of his Honour's analysis about the workload allocation.

PN96

The third area, or the third ground that we focus upon is his Honour's conclusion that what was applied to Dr Zhao's performance was the faculty benchmarks and that that was unreasonable because they hadn't yet come into operation and what should have applied is the academic guidelines. Well I've taken your Honours through the relevant documentation. Firstly, the academic guidelines and faculty benchmarks go to issues of workload allocation. As I've pointed out, the question of performance or expectations within the framework of the enterprise agreement is determined by the plans that are set as between academic and supervisor. Here, irrespective of what was in the benchmarks or the academic work guidelines, Dr Zhao agreed, gave her consensus, to the 2016 work plan, the 2017 - - -

PN97

VICE PRESIDENT CATANZARITI: Mr Shariff, you've said a number of times that Dr Zhao agreed, but when I read all the material it's not in agreement without pressure. It's pretty clear from the evidence it's under some sort of pressure. It's not a genuine 'I agreed' without any pressure. She had no choice, and that is clear from a fair reading of the material.

PN98

MR SHARIFF: Your Honour, we take issue with that in terms of what was set for her in 2016 and 2017. What Dr Zhao said in relation to the PIP was that she raised issues about the 2018 PIP, and ultimately having raised those issues she decided to agree. We reject the categorisation that that amounts to pressure. Dr Zhao was by this time an experienced academic; she participated in the PIP process together with representatives of the NTEU; she had advice from the NTEU, and ultimately she agreed to it. In the classical tests of economic duress or pressure, none of that constitutes anything remotely close to those types of matters, and as I've pointed out, working your Honours through the earlier plans, which were the subject of consensus, she had agreed herself she had set her own KPI to say well, the way I'm going to improve my research output is to publish this particular paper in an A level journal, and she didn't do that - she was unable to do that over a period of three years. It's extraordinary, and when you look at it, there is no demur; there was simply no dispute that Dr Zhao had not published in an A level or A star journal since prior to 2014. So for over a course of four‑and‑a‑half years, she had not been published in an A or A star journal. Is it seriously going to be contended that one of the pre‑eminent tertiary institutions in the state can't discipline an academic in those circumstances? It just sounds extraordinary, and - - -

PN99

VICE PRESIDENT CATANZARITI: Mr Shariff, are you saying that the proposition that you're putting - and bear in mind that from my perspective I am the member responsible for this sector and have done a lot of academic workload disputes - are you putting it this high, that the failure to reach the KPI of the publication in an A journal automatically leads to termination of employment, are you?

PN100

MR SHARIFF: No. No, not at all.

PN101

VICE PRESIDENT CATANZARITI: I wouldn't want you to be saying that, because that's not what happens in the matters I have been dealing with.

PN102

MR SHARIFF: No, but equally - can I say two things about that? No, of course not. The point is that that having been drawn to the academic's attention and there having been development plans implemented over the course of time that they were, and there was still no meeting of those standards, that does warrant, we say, with respect, cause for disciplinary action and ultimately termination of employment. This wasn't something that emerged spontaneously, a standard or expectation that was set upon her overnight. It was a period of time that worked up to it. So of course, your Honour, I don't take issue with the way your Honour puts it to me. But the second thing I'd say is, leaning on your Honour's experience as what was the panel for the tertiary sector - I'm not sure if it exists still - but as your Honour was the head of the panel, your Honour would be well familiar with the idea of a workload allocation of 40:40:20 as not being novel. That has been well‑entrenched within the university sector for scholarly academics for a considerable period of time.

PN103

And your Honour would also know, I'd hasten to add, that your Honour wouldn't express the view that the primary purpose for tertiary institutions should be teaching, or as institutions for a quality learning experience for students - your Honour would know that from your Honour's experience that that's an unsound observation, and your Honour would appreciate the absolute industrial reality of this, that comments like that take a life of their own in the context of a particular unfair dismissal of an academic, where you also have a very highly respected Deputy President saying well if you're underperforming on research it doesn't much matter if you're satisfactorily performing on teaching. Your Honour knows from your Honour's experience what kind of ramifications that would have within the tertiary sector, and that's our point. It may well be that at the end of the day, your Honours say, all right, on the facts of this case you didn't get there, university; you just - you didn't establish it in terms of this particular academic. But to allow comments like that to stand in paragraphs 104 through to 106, and at 110 in the final sentence, would just be, we say, wrong. It would be, as we've said under our grounds of public interest, these types of comments and findings and reasonable process have a far greater ramification for this university and other universities. I hope I've answered your Honour's question and also tried to delineate between the points that we say are the errors and what might be the facts. Have I answered your Honour's question?

PN104

VICE PRESIDENT CATANZARITI: Yes, thank you.

PN105

MR SHARIFF: So just then to round out ground three in terms of the application of benchmarks, as we've pointed out in writing, Dr Zhao didn't have the benchmarks applied to her. They were moving towards getting her to a position where she could be in compliance with the benchmark for their implementation in 2021, but in the meantime her actual performance indicators and KPIs were being set by the development plans and the PIP process. They were the things, and as I've said, within the framework of the agreement in the clauses 37 and so on, that set the standard and expectation for her behaviour, and she was being disciplined for failing to work to those plans, not for failing to comply with the benchmarks. Perhaps that distinction could be noted and made clear, but his Honour seemed to operate on the basis that well you've just applied the benchmark to her, and we say that's not right.

PN106

Your Honours, I have addressed what I think are our three primary contentions in terms of error, being the irrelevant observations that have the effect of depriving procedural fairness in 103 to 106; secondly, the workload allocation points of 40:40:20; and thirdly, his Honour's findings about the application of benchmarks. The other complaints that we raise in our written submissions at paragraphs 43 through to 54 are really further irrelevant considerations or errors that flow from the first three, and I accept that each of those three on their own wouldn't be sufficient for the appeal to succeed. I accept that my client would have to succeed on the first three grounds. I also accept that our grounds two and three that I deal with at paragraphs 55 to 58 of the submissions, dealing with harshness and remedy, are contingent upon the success of those primary grounds. In other words, if there's no error on those grounds, I completely accept your Honours don't get to those grounds. However, we do take issue with what our learned friends say about, well, even if your Honours find error on the first few grounds, the appeal still doesn't succeed. That is because his Honour the Deputy President concluded that there was no valid reason for termination. Because his Honour came to that conclusion, the countervailing balance of harshness and unreasonable factors didn't have as the counterpoint or reference back to a finding of valid reason. So if one says there is a finding of a valid reason for termination, then questions of harshness and appropriateness of remedy are naturally attenuated by the finding that's made on valid reason.

PN107

So we say, if your Honours accept that his Honour erred in relation to those three primary issues I've addressed then the discretion would have to re‑exercised. Your Honours would then have two options, in our respectful submission. Your Honours could re‑exercise that discretion yourself by coming to a finding of valid reason and then balancing that against the harshness issues, or your Honours would remit the matter to a different member, perhaps a member of the Full Bench, to determine those issues afresh based on the record - we're not suggesting there needs to be a whole new hearing, but on the record that might be the most appropriate use of time. In terms of permission to appeal, if I could move to that. Sorry, is the position that I've made in relation to those matters clear enough?

PN108

VICE PRESIDENT CATANZARITI: Yes, it is, Mr Shariff.

PN109

MR SHARIFF: Thank you, your Honour.

PN110

VICE PRESIDENT CATANZARITI: Let's hear about the principal point now, permission - why should permission be granted?

PN111

MR SHARIFF: Well I think I've touched on this, for the very reasons I have been articulating, which is that we have a judgment from a very senior member of the Commission that makes the comments that it does in paragraphs 104 through to 106, and they can't be allowed to stand. They just cannot be allowed to stand. I can perhaps test it this way. Do your Honours subscribe to the idea that focus on competition and achieving top research ranking distract focus for Australian universities from providing a quality learning experience for students? Is that an idea that's seriously to be subscribed to, and do your Honours subscribe to the idea in 106 that a university of all society's institutions should have the flexibility to accommodate an academic's personal and professional qualities to pursue or maximise their particular individual interests and talents? Does that mean that a tertiary institution seeking pre‑eminence would tolerate an academic who might be an extremely good teacher but a substandard researcher, or vice versa, someone who is an exceptionally good researcher but a poor teacher, someone who perhaps their individual interests and talents are ones that make them not amenable to providing an institution or providing a faculty with a quality research environment? These types of musings stand. They stand on the record, and they should be corrected, and it's important that they're corrected. They can't be allowed to stand.

PN112

We think there is a sufficient public interest in that. Equally, we think there's a sufficient public interest in ensuring that a statement like that at paragraph 110 in the final sentence that it is difficult to conceptually and rationally conclude that a 60 per cent performance rating equated to poor on unsatisfactory performance, because it proceeds on the premise that that kind of mathematical exercise can be conducted in something like a tertiary institution where the other 40 per cent in a research institute for an academic researcher is satisfactory. I'm sorry, I might have just - I apologise for it, but Vice President, I think I might have spoken over you. I do apologise.

PN113

VICE PRESIDENT CATANZARITI: No, that's fine. Keep going.

PN114

MR SHARIFF: No, your Honour, otherwise we repeat what we've said in our written submissions, and we do urge the Full Bench to closely examine the parts of the judgment that I identified and to correct those errors, and those errors are ones that are important ones to be corrected. I accept that those errors could be corrected without the outcome on the facts of this case changing. We say they should change, and I've taken your Honours through the facts for that, why a valid reason for termination was established, but we do urge your Honours to correct the errors on the record. Unless there's anything further, that's all I wish to say by way of oral supplement.

PN115

VICE PRESIDENT CATANZARITI: Thank you. I'll just ask - Colman DP, any further questions?

PN116

DEPUTY PRESIDENT COLMAN: No. Thank you.

PN117

VICE PRESIDENT CATANZARITI: Johns C?

PN118

COMMISSIONER JOHNS: No, thank you, Vice President.

PN119

VICE PRESIDENT CATANZARITI: Thank you. Thank you, Mr Shariff.

PN120

MR HARDING: Thank you, Deputy President. I think it's my turn - Vice President - - -

PN121

VICE PRESIDENT CATANZARITI: Yes, Mr Harding. Go ahead.

PN122

MR HARDING: Your Honour, we have filed some written submissions on behalf of Dr Zhao and we rely on those. I won't repeat the detail of those, and so perhaps if I could start perhaps with the public interest issue first and work backwards from there. The central point that's made on behalf of the UTS in relation to the public interest is that it is said that this case raises a range of considerations that are more general to the facts of the case. It's plain, and with respect to Mr Shariff, really much of what he put on the public interest is in the nature of rhetorical flourish than it is based on any facts arising from the material that the Deputy President considered or what he said. I note the UTS have a particular concern about paragraphs 104 to 106, but as you will see from our submissions about that, they just don't matter, and in those circumstances, it behoves the university to establish and persuade you that there are public interest considerations in this proceeding and in this case that arise beyond the mere facts of it that deserve the Full Bench's attention.

PN123

In light of the principles that have been devised in relation to appeals from unfair dismissal proceedings, the Full Bench would, in our submission, require - would need to be satisfied that there really is a genuine public interest that this case rises to, which in our submission it simply doesn't. The seminal case of Glaxo demonstrates that point. In that proceeding, the Full Bench expressed a different view to the Commissioner about the matters that were in issue there, the validity of the reason, and indeed took a different view about the seriousness with which the Commissioner had assessed the question. But, and as the Full Bench made clear, they simply could not find any public interest that gave rise to - or sufficient rise to a scenario in which they felt it required the attention of the Full Bench and leave be given. This case raises similar concerns. Really, there is a resolution of a particular set of circumstances pertaining to one academic in one school of the university in which there was a performance standard applied to her and her alone. We say in a singular way, the Deputy President dealt with that, resolved it, and found against the university. In our submission that should end the matter. Nothing else arises from it.

PN124

DEPUTY PRESIDENT COLMAN: Sorry, Mr Harding. It's Colman DP. Could I ask you, in relation to the public interest, I mean leaving to one side what the appellant says are the considerations of broader concern.

PN125

MR HARDING: Yes.

PN126

DEPUTY PRESIDENT COLMAN: If we were to conclude that there was substance in the procedural fairness ground, I mean that of itself, that would enliven the public interest, wouldn't it?

PN127

MR HARDING: It would, if you were satisfied that the error was material, yes.

PN128

DEPUTY PRESIDENT COLMAN: You say it's not; I appreciate that.

PN129

MR HARDING: Yes.

PN130

DEPUTY PRESIDENT COLMAN: But there's no debate about if you were wrong about that, that that would be something that would enliven public interest?

PN131

MR HARDING: Yes, if I was wrong about it, in the context of an assessment by the Full Bench that it was a matter of significance to the ultimate outcome - - -

PN132

DEPUTY PRESIDENT COLMAN: Yes, and I appreciate that you're - and I think it's the appellants who used the phrase, 'musings' - but you say effectively that they were musings, or in any event that they weren't operative or didn't bear on his conclusion, that's what - - -?

PN133

MR HARDING: Yes, and so the materiality rises in two ways. Firstly, the Full Bench would have to be satisfied that those musings do go to the reasoning that the Deputy President adopted in disposing of the case, and secondly, it would have to be that the procedural anomaly denied, in an actual sense, in a practical way, the university of a right to be heard in relation to a matter of significance to the ultimate decision.

PN134

DEPUTY PRESIDENT COLMAN: Yes. Well I think the test would be that the appellant was denied the possibility of an alternative outcome.

PN135

MR HARDING: Yes. That seems to be how materiality is being viewed by the High Court.

PN136

DEPUTY PRESIDENT COLMAN: Yes.

PN137

MR HARDING: And the possibility - I suppose the outcome is the focus - the emphasis that I am placing on materiality here, if the Full Bench was satisfied that the observations in 104 to 106 are no more than expressions of opinion by the Deputy President which don't materially affect or vitiate his reasoning, then they go nowhere.

PN138

DEPUTY PRESIDENT COLMAN: Yes, that comes first. That's a different question.

PN139

MR HARDING: Yes. It is a different question, and I think the answer is, if you're against me on that, and the natural justice point is of the degree of substance implied in your question, Deputy President, then yes, there would be a public interest in dealing with the matter.

PN140

DEPUTY PRESIDENT COLMAN: Yes. Thank you.

PN141

MR HARDING: On that subject I think it's significant for me, or probably appropriate for me to say something more about those musings, as we characterise them. The university has made clear that the ground of error is a relevant consideration, that is, that the Deputy President took into account those observations in deciding against it, that there was no valid reason for the dismissal. With respect, the difficulty they have is they can't show how that is so in anything that the Deputy President has actually said in coming to the conclusions that he did. The clear way in which he put these observations was that they were general. He made it crystal clear that he was then turning to the facts of the case. He goes from 107 - I think Catanzariti VP, you made this point - from paragraph 107 he starts analysing the evidence, and we don't return to these musings elsewhere in the decision. Mr Shariff has said well, you can somehow infer that he did. Well, with respect, he has to do more than simply make that observation. You have to show how these observations materially affected the reasoning, and he hasn't been able to do so.

PN142

The short point is that the way the conception of irrelevant considerations has developed in law requires a similar assessment of the discussion that I just had with Colman DP, namely, the irrelevant considerations have to be material, and we've provided your Honours and Commissioner with the authority of Lansen v Minister for the Environment and Heritage in the list of authorities. I don't propose to take you specifically to the parts of that case that we've identified in the submissions, but it's clear from paragraphs 90 on to 121 and 122 that the question of irrelevant considerations requires as an aspect of error that the court or tribunal is satisfied that the failure was material. In the absence of that finding there is no error. It's not just a question of discretion. There is no error. We say that when the decision of the Deputy President is read fairly in the way that the authorities require it to be read as a whole, the observations that the Deputy President has stated in paragraphs 104 to 106 are no more than that, and even if the Full Bench was satisfied that there was some public interest justifying a grant of leave, we contend that the decision should stand and that the paragraphs in question simply do not justify a conclusion of discretionary error.

PN143

Mr Shariff has spent a bit of time in dealing with the issue of - in paragraph 110 of the Deputy President's reasons where his Honour reaches a conclusion about the significance of the 40:40:20 split. The short point here is that in the focus of the university on its own reasoning for why it dismissed Dr Zhao, what they overlook is the different standpoint from which the Commission views this issue. The Deputy President was asking the question: is there a valid reason for the dismissal based on performance, or capacity, which is the relevant statutory test. Then her Honour analysed that question and found that when performance was viewed in an overall way that his Honour appropriately considered it that there wasn't a valid reason, and that's apparent from the last sentence of 110. He says:

PN144

It is difficult to conceptually and rationally conclude that a 60% performance rating equated to poor or unsatisfactory performance overall.

PN145

Dr Zhao was dismissed for performance. It was said that her performance as an academic was unsatisfactory. The Deputy President analysed that proposition and found it wanting. It was entirely open for him to do so on the evidence. Mr Shariff has taken you to the work plans and concluded with the - - -

PN146

VICE PRESIDENT CATANZARITI: Just before you move off that point, it's not my recollection that even if the benchmarks say that if you fail in one of the three, it must be termination of employment.

PN147

MR HARDING: Correct. Absolutely correct, Vice President. In fact, to the contrary, they make it clear that it's not to be used in a sort of simplistic pass/fail way, and that's precisely what the university did. She failed to achieve the publishing standards that they had imposed and she was dismissed. It's as simple as that.

PN148

DEPUTY PRESIDENT COLMAN: Well I think you make the point - sorry, it's Colman DP again - I think the respondents make the point in your submissions that the letter from Professor Michayluk says that failure to meet the expectations of the PIP may result in termination. So I mean, it's not - I don't think - it doesn't appear that the PIP process or the setter (?), sort of a categorical outcome, and I think you actually rely on that for a different purpose to say, I think in connection with the contention that was made below that it was accepted by the Deputy President that perhaps it wasn't clear.

PN149

MR HARDING: Yes.

PN150

DEPUTY PRESIDENT COLMAN: So I mean, but who's saying that it was necessarily going to be the case that she would be terminated? I'm just worried that I've missed something.

PN151

MR HARDING: No, I don't think it was said that she would necessarily be terminated, but what is clear from the agreement itself is that a range of outcomes could have occurred as a result of the performance improvement plan, and they're set out in clause 53.3 on page 52 of the 2018 enterprise agreement, and what 53 does is that it's a discipline clause. It applied here, and it describes five levels of disciplinary action. Only one of those is dismissal, or alternatives to dismissal. So we have a range of options that are available to the UTS upon a finding that performance is not up to scratch, and what happened here is we went straight to dismissal.

PN152

VICE PRESIDENT CATANZARITI: Yes. I think, Mr Harding, the point that I was trying to make a bit more clearer is that in that sentence, the last sentence of 110 where the Deputy President comes up with the 60 per cent, right?

PN153

MR HARDING: Yes.

PN154

VICE PRESIDENT CATANZARITI: He's really making the point that you don't have to pass all three to necessarily be safe.

PN155

MR HARDING: Correct.

PN156

VICE PRESIDENT CATANZARITI: And Mr Shariff is saying look at the extended period of not getting a journal out, that's enough to trump the rest of what you're doing.

PN157

MR HARDING: Yes, I appreciate that that's what he's saying.

PN158

VICE PRESIDENT CATANZARITI: That's what he's saying, yes.

PN159

MR HARDING: Yes, I appreciate that's what Mr Shariff is saying.

PN160

VICE PRESIDENT CATANZARITI: But the Deputy President is taking a different view.

PN161

MR HARDING: Yes, and that's my point, which is he's looking at the position overall from the standpoint that he's required to look at it from, and he's saying well, look, have a look at how the assessments actually occurred, and what is clear, for instance, is her teaching substantially improved over the period of time. There was no issue with her service, for instance. When you have regard to the work plans that Mr Shariff took you to from page 334, what you see is a pattern of improvement, a pattern of development, and that seems to be acknowledged by the supervisors - you know, was a (indistinct) sort of discussion between you, Vice President, and Mr Shariff. For instance, on page 338, which is the 2016 plan, Mr Shariff placed a significant degree of emphasis on the papers that are identified in the first - on the right‑hand box on page 338, to revise the paper of 'Does stock liquidity' paper, and of course that's expressed in terms of an aim, as an aspiration, and so is the goal that Dr Zhao identified for herself in 341 - on page 341 of the plan, and it's clear from the supervisor's own view about that is that whilst at the time she wasn't performing to the expectation, there was improvement. What's significant is that the performance improvement plan went from a situation in which better performance was being seen as something she had to aim for, in terms of publishing at the level that the university aspired to, to a scenario on which she had to publish at those standards. Suddenly there was a ratcheting up of the standard that was required of her, which reflected the benchmarks document, which imposed an A or an A‑plus standard for publishing.

PN162

That's the scenario we're looking at here, which is that we have a scenario of improvement in areas that the university identified as of concern. Then we get to the performance improvement plan, and teaching has fallen by the wayside by this time. They accept that she's performing very well indeed in terms of teaching, but research seemed to be inadequate. But now we have a scenario in which she must publish. In other words, she must achieve a scenario which the various A or A‑plus journals that she submitted agree themselves to publish her paper. There's no question, no dispute that she prepared the work and she submitted to those journals. She wasn't successful in achieving the publishment of the document that she had prepared. Of course the Deputy President makes the observation in his reasons that these journals have notoriously low acceptance rates, and that finding is not challenged. So the university now imposed the standard that said you must obtain the consent of journals to publish your material as a condition of you satisfying the improvement that we say you're required to meet. She didn't, and dismissal was the result.

PN163

DEPUTY PRESIDENT COLMAN: So then the Deputy President takes into account this requirement that Ms Zhao publish in his analysis of whether there was a valid reason, correct?

PN164

MR HARDING: Yes.

PN165

DEPUTY PRESIDENT COLMAN: But isn't that something referable to the general observations? I mean, he's expressed a view about the publication aspect of the requirements that are set by universities. I mean, doesn't that - - -

PN166

MR HARDING: (Indistinct).

PN167

DEPUTY PRESIDENT COLMAN: Isn't there a link there?

PN168

MR HARDING: No, your Honour. There's not a link at all. It's a matter of pure speculation. The guidelines make the point themselves. It doesn't necessarily require the Deputy President to state it. On page 414 of the appeal book in clause 4.1.2, you will see that halfway down:

PN169

The minimum requirements for all academic staff is to maintain scholarship at the level needed to fulfil their other academic duties effectively, especially teaching.

PN170

DEPUTY PRESIDENT COLMAN: Yes. I don't mean to put you off track if you're focusing on another aspect, but just going back to this link - or the question of the materiality of the general observations that are in 104 to 106 and whether or not they're musings, as we were saying, or something that was actually relied on as part of the explorative (?) process. And then I'm looking at 104.

PN171

MR HARDING: Yes.

PN172

DEPUTY PRESIDENT COLMAN: The second last sentence in 104 contains the observation where the Deputy President says that in his humble opinion that the primary purpose of a first class university is the teaching, and then there's also then a brief reference in the following paragraph to the publication component and what his Honour says or refers to as, well, that universities can become ruthlessly competitive or obsessed. But I mean, those two aspects of the requirement for an academic, they are what is at stake in the question of the analysis of the valid reason, isn't that right? I mean, because as you were saying before, although - and as I think the Deputy President seemed to acknowledge there was that Ms Zhao was very good on the teaching, but not good - or had this difficulty at least, and the word 'didn't' - didn't publish in the A grade journal.

PN173

MR HARDING: Yes.

PN174

DEPUTY PRESIDENT COLMAN: I mean I'm just wondering, what do you say though to the proposition that the central consideration, or a central consideration in the analysis of whether there was a valid reason, is this question of the significance or otherwise, or the significance or the weight to be given to teaching as opposed to publication, and that just factually they are matters that are raised in the general observations. Is it a coincidence or - - -?

PN175

MR HARDING: I don't know about coincidence, your Honour. The extent to which you say they're raised in the general observations, at an incredibly high level - what happens from 107, and I encourage you to really read the Deputy President's analysis in 107, is that he's descending into an assessment of the evidence, and is - - -

PN176

DEPUTY PRESIDENT COLMAN: The what, sorry? I just missed that word. He's descending into a detail of the what?

PN177

MR HARDING: Of the evidence.

PN178

DEPUTY PRESIDENT COLMAN: Of the evidence, yes.

PN179

MR HARDING: And it's there that he starts to analyse the facts that have been presented to him, not in paragraphs 104 to 106. So in my submission, Deputy President, in order to reach a conclusion that there is some influence, that these general observations have influenced his analysis of the evidence, the UTS would have to show a clear link between that has somehow or other sent his reasoning off in an entirely different direction from the evidence that he assessed and made conclusions about. But in my submission they can't, because what he has done from 107 is specifically deal with the material that was before him, and his conclusions in paragraph 110 and 112 reflect that. They reflect evidence before him and his resolution of the disputed matters that were presented to him.

PN180

DEPUTY PRESIDENT COLMAN: Well there's no doubt - I mean he engages with the evidence and - - -

PN181

MR HARDING: Yes.

PN182

DEPUTY PRESIDENT COLMAN: - - - that was put before him, that's true, but I mean the fact that that happens wouldn't preclude a conclusion that the general observations about teaching and publication were taken into account. But I'm just - anyway, it's more that I wished to just understand what you say we would need to be satisfied of before we would consider there to have been such a link. But if I can just go back to what you were saying before, would you say then that - I mean you effectively say that there's no express link or that there hasn't been an articulated link - for example, that the conclusions in relation to valid reason and at paragraph 12 the various matters of weight are referred to, the Deputy President doesn't for example say: and then referring back to, or based on my views on the relative importance of the components of teaching and publication I then - or something like that. I mean, there's not an express link is what you're saying, is that right?

PN183

MR HARDING: I don't think there's even an implied link. They're entirely separate. The difficulty that you confront if you start to analyse the case in the kind of abstract way that we're discussing, Deputy President, is you start to descend into the function that is reposed in the Deputy President's fact‑finding, rather than an assessment about whether he erred in a discretionary thing. There is, in my submission, nothing wrong with the conclusions in paragraph 110 based on his assessment of the evidence, and it requires - if you don't find discretionary error in relation to his assessment of valid reason, then there's no ground upon which 104 to 106 can have any work to do. That's because - - -

PN184

DEPUTY PRESIDENT COLMAN: (Indistinct) legal error - I mean of course if there were - I mean natural justice should - the procedural fairness point would be a legal error I suppose. But that of course is entirely contingent on there being a link in the first place, as we were discussing earlier.

PN185

MR HARDING: Yes, indeed. I mean even if - this is part of the problem with this analysis, which is that the (indistinct) that they were denied natural justice assumes that there is something that has caused the Deputy President's decision to go awry in a way that prejudices it. I mean it's completely conceivable that if the Deputy President had presented the kind of findings that - well the observations he was making in 104 and 106, then his decision would have still been the same. His analysis of the evidence would have been the same. The findings at 110 to 112 are very fact‑specific. They are dealing with the particular situation that this academic was faced with as a result of conclusions that the Deputy President made, and in order for the university to succeed they will have to point to something about the high‑level character of, say, for instance, the humble opinions in paragraph 104 expressed by the Deputy President that affected his assessment of, for instance, how he viewed the 40:40:20 split. And in no way, in my submission, can they do that. It is undeniable that 40:40:20 expresses aspects of the work required of an academic by this university. It's undeniable that aspects of that service, particularly teaching and the service, met expectations, and in the case of teaching had well and truly met expectations. It's entirely relevant for the Deputy President then to have assessed the validity of the reason for dismissal, which was based on research from the perspective of performance overall. That is what, in my submission, their own documents suggest.

PN186

DEPUTY PRESIDENT COLMAN: But if we just look at 112 - I'm sorry to belabour - I don't mean to belabour this point. I am just interested in what you would say about this question - I mean I'm just looking at 112. It says, 'That said, in my view, appropriate weight was not given to' certain things, and the first two things that are referred to are in (a) teaching, and in (b) publications. And so these are the two matters that are referred to in the high level or the abstract or general comments (indistinct), and then - I mean, just on one view, it's not too much of elite (?) then, is it? I mean what's the link is the question that's at issue. I mean there's some notion here of appropriate weight - I mean, on one view, the appropriate starting point for the assessment of weight, or things that are relevant to the consideration of weight, are the matters articulated in 104 to 106, on one view.

PN187

MR HARDING: Respectfully, Colman DP, I can't see how that's so. What his Honour has said in paragraph 112 in his assessment of what weight he says it should have been given are the specific things that he's identified. Consistently with his finding at 110 is (a) 'Dr Zhao's markedly improved teaching performance.'

PN188

DEPUTY PRESIDENT COLMAN: You say that this is referable to the case‑specific material and the evidence that (indistinct) been talking about?

PN189

MR HARDING: Precisely. He makes the point you can't - don't overlook the word 'overall' in the last sentence of paragraph 110, and what 112 does is he sets out aspects of that overall assessment that his Honour approached the question from a perspective of, and I think that's entirely appropriate. Can I draw your attention in that respect to clause 34.6 of the 2018 agreement? You were taken to this paragraph, and this is headed, 'Planning and Review for Performance and Development,' and then 34.4 and 5 set out some of the aspects of that. May I draw your attention to 34.6, which is that:

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Supervisors and the staff they supervise will meet at least annually for the planning and review process. The planning and review process will encompass all aspects of a staff member's work.

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What his Honour has done is entirely consistent with what the parties have agreed should be the basis for performance review in the enterprise agreement. The singular focus on research adopted by the PIP was unique to the performance approach that had previously been adopted to Dr Zhao. It has looked at other aspects of her work. It's kind of curious that having found that other aspects of her work were satisfactory, we then dip into one part of it and then analyse that specifically, and that becomes the focus for a decision about whether to dismiss, in circumstances and where the agreement itself provides a range of options to the university for assessing what is to be done in a circumstance where performance is found wanting in one or other respects. The Deputy President, charged with the responsibility of viewing the dismissal decision objectively based on all the considerations that were relevant, consistently decided that in regard to all aspects of performance it was difficult to conceptually and rationally conclude, as you said, that a 60 per cent performance rating equated to poor or unsatisfactory performance overall, and when you read the agreement with his Honour's conclusions, that seems entirely unexceptional, and in that sense, to view it in that way, means, in my submission, that paragraphs 104 to 106 have even less impact on how the Deputy President approached the task that was committed to him. Colman DP, have I addressed the concern that you identified?

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DEPUTY PRESIDENT COLMAN: Yes. Thank you.

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VICE PRESIDENT CATANZARITI: Mr Harding, to put it another way, if you take the musings out in those paragraphs, you say that paragraph 110 stands for what it says?

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MR HARDING: Correct.

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VICE PRESIDENT CATANZARITI: And that creates the difficulty for the appellant, in that paragraph 110 is dealing with the factual basis, and the Deputy President has formed a view on the facts, right, that taking research as one component alone would not in his view be enough to be a valid reason?

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MR HARDING: Yes.

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VICE PRESIDENT CATANZARITI: And that's the simple point really. So the appellant is trying to say well you will need to reconstruct that based on the musings as distinct from what the actual words are at paragraph 110?

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MR HARDING: Yes, indeed. They're seeking to impugn that simple factual conclusion by trying to import into that reasoning considerations that simply have no place there, in circumstances in which, in our submission, the Deputy President made pretty clear he was quarantining his observations to precisely that, observations, in circumstances which he made clear that he was turning to the facts of the case from paragraph 107. To read it any other way is to ignore critical aspects of what his Honour said.

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VICE PRESIDENT CATANZARITI: Yes. Thank you.

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MR HARDING: Turning then to the second major issue, which is the question of whether the Deputy President made a significant factual error by including in an impermissible way that the benchmarks had been applied, we have in our written submissions provided a considerable analysis of that question. The central point we make is that the UTS's argument on this subject really does place form over substance. The short point is this: the benchmarks do not come into effect until 2021. Every other academic had the benefit of that period between 2016 and 2021. Dr Zhao, on the other hand, had a PIP constructed that took into account and had regard to the benchmarks, in that the specific requirement that she achieve - I place emphasis on that word - that she 'achieve' a publishing standard that involved these journallers agreeing to publish her work came from the benchmarks. That's the source of it. Nothing in the workload expectation gave anywhere near that.

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I've drawn your attention to clause 4.1.2 of the workload guidelines, which is on page 404 of the appeal book, and if you look at the concluding paragraph of that page: 'Research (?) - recognised academic unit workload allocation procedures shall take account of the impact and quality of research outputs, as well as the quantity, for example, consideration of the ABDC journal rankings.' Well, it required consideration of ABDC journal rankings which are inclusive of A and A star journals, but not exclusive of it. There was no standard promulgated that said one had to achieve the consent of the journals to include your work in their publications as a criterion for your performance as an academic in the School of Business; nothing like that at all. So it is as I think the Deputy President concluded, a significant ratcheting up of the standard that was applied to Dr Zhao to do what they did as part of the performance improvement plan that they adopted for her, in circumstances in which that standard was simply not available to any other academics, or was not available to the university to apply to any other academics, because that benchmark standard, including the requirement to publish in A and A star journals, the requirement, that is, doesn't commence until next year. And again, the Deputy President was concerned with the substance of the thing rather than the form of the thing. That's what he said in his reasons, and in those circumstances it's tolerably clear from his reasons that he found that the imposition of that standard as one that was singular and too high compared with the standard applied to everybody else, and that was the observation I might add that was made by the review committee that was established under clause 54. So he wasn't alone in that respect. The university had an internal conversation, which had the same conclusion.

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Attention has been drawn, or some distinction has been made I suppose between all aspects of the benchmarks and the requirement that was imposed on Dr Zhao. In our written submissions we draw your attention to the email of Professor Michayluk of 26 February 2018, and this is paragraph 36 of our submissions, where he expressly said: 'So that we can continue to support you and improve your performance to move towards meeting' - and he cites the benchmarks - 'I informed you that we're implementing a performance improvement plan.' I don't know how much clearer it could be. It is (indistinct) artifice to try and create a distinction where none existed. They were applying the benchmarks.

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My learned friend has conceded that the remaining parts of their contentions aren't - are (?) decisive of the outcome in circumstances in which you'd find against them on the other grounds. One observation that was one made by Mr Shariff though is the question of harshness, and it was put by him, and I hope I don't misquote him, that the Deputy President's valid reason findings are inexplicably bound up in his conclusions about harshness, and in those circumstances one can't distinguish between them. With respect, that's not correct. Paragraph 119 of the reasons of the Deputy President below make crystal clear that his honour was turning to harshness on an entirely different basis, citing the traditional basis upon which one considers the impact on the employee of the dismissal, and he identifies them, and they're different considerations to those that appear in 110 and 112. So with respect to Mr Shariff, even if you were against us on the issue of valid reason, there is an entirely independent basis to uphold the ultimate finding under 387 of the Act, namely, that there was an unfair dismissal on this case by reference to his Honour's conclusions from 119 on harshness grounds.

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The UTS's joint issue with his Honour's finding about reinstatement, respectfully there is very little evidence that was presented by the UTS against reinstatement, and his Honour's reasoning on that subject is entirely unexceptional and UTS does not seriously contest that reasoning. Your Honours and Commissioner, with respect, they're the submissions for the respondent.

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VICE PRESIDENT CATANZARITI: Thank you. Any further questions, Colman DP?

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DEPUTY PRESIDENT COLMAN: No, thank you.

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VICE PRESIDENT CATANZARITI: Any questions, Johns C?

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COMMISSIONER JOHNS: No, thank you, Vice President.

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VICE PRESIDENT CATANZARITI: Thank you. Mr Shariff, anything in reply?

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MR SHARIFF: Yes. I'll be brief (indistinct) deal with paragraph 110 by reference to the exchanges that have been shared. The first thing to say about paragraph 110 in the final sentence is that the Deputy President refers to a 60 per cent performance rating. There is no such thing as a performance rating here. It wasn't a 60 per cent performance rating. It was - we think fairly that what the Deputy President is saying is that you didn't take issue with 60 per cent of the workload allocation on teaching and community participation in respect of the decision to terminate.

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The next point is this in terms of the linkage: as Colman DP put it out to my learned friend, when one compares 103 and 106, that is, has regard to 104 - sorry, I think I said 103 - 104 to 106 in light of what has been said in 112, the focus in 112 is on the fact that these other aspects of Dr Zhao's performance, being teaching, which links into 110, being that her performance is otherwise satisfactory, not her rating, which suggests that there is a normative benchmark by which Dr Zhao's performance is being measured, and that is in part the trouble with 103 and 106. So suppose, for example, the decision‑maker says in a different analogy, I think all lawyers who work in a law firm should really be technically proficient lawyers.

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VICE PRESIDENT CATANZARITI: Mr Shariff, that wouldn't be a bad thing, would it?

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MR SHARIFF: I was going to say I quite adhere to that, much like it might be said about barristers: they should be technically good lawyers and don't worry about their court craft or their court performance or whether they engage in rhetorical flourish or stick to the issues or not. All that might be accepted; one might have those views, but once you say that that's your view, it does indicate then that your analysis of the performance, your then analysis of the actual evidence, is tainted or influenced by that starting position. So that if a lawyer in that example is then performance‑managed, disciplined, and has his or her employment terminated through a failing to adhere to the standards of the law firm, whether it be billing, achieving targets for billing, or client development or the like, could it really be said that in the objective analysis of that - and I don't disagree with my friend that it's ultimately an objective test for the tribunal - to then arrest the normative standard that really what law firms should be about is churning out technically proficient lawyers and so what does it matter, but so long as they're technically proficient they're not doing the other things.

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And that's the trouble here. That's the essential distinction. It's very much a point of principle. There is a direct linkage, because having made the observations that the Deputy President made in 103 and 106, it is apparent when it comes to 110, the final sentence, and the elements of paragraph 112, which I've addressed on already, that his Honour was looking at assessing the performance here on the evidence that was presented by reference to the fact that Dr Zhao was otherwise performing well in these other areas, or at least to a satisfactory level, and that's the short point. My learned friend's contention is that ultimately paragraphs 104 to 106 were irrelevant, but what my learned friend hasn't addressed - sorry, I should say my learned friends in their written submissions or my learned friend orally - is whether paragraphs 104 to 106 are correct, whether they represent accurate views, and none of that has been engaged in, because it has all been swept aside to say well you don't need to look there because it's just irrelevant, but what does that actually mean, and if they were so irrelevant they wouldn't have found their way into the decision. They were clearly done with the view of the Deputy President establishing his thought process, his reasoning process, for what was to follow.

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I accept the Vice President's point that if you look at 110 independently of 103 to 106, then on the facts, that is, on the evidence, one might come to a conclusion that there was no error in 110, but that would require your Honours to say that 103 and 106 were in error or were irrelevant to the point of just not having any sound basis. And then could I conclude by saying this? The point I think made by Colman DP in the exchange with my learned friend becomes more apparent, if they're to be swept aside as being irrelevant. They might be swept aside as being irrelevant now on appeal, but the trouble we have is that they are present. My client didn't have an opportunity to comment on those issues. They weren't the subject of argument. They weren't the subject of any particular contentions made by Dr Zhao's representatives below, and we didn't have the opportunity to be heard on them to persuade the Deputy President to a different view, which would have influenced, we say, with respect, the Deputy President's analysis of what followed at 110 and following. Unless there's anything further, that's all I wish to say in my brief reply.

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VICE PRESIDENT CATANZARITI: Thank you, Mr Shariff. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.53 AM]