C2001/364, Transcript of Proceedings [2001] AIRCTrans 1901 (9 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER HARRISON

C2001/364

APPEAL UNDER SECTION 45 OF THE ACT BY RICHARD
KOCSIS AGAINST A DECISION OF COMMISSIONER RAFFAELLI AT SYDNEY ON 30 MAY 2000 IN U NO 21244 RE
TERMINATION OF EMPLOYMENT

SYDNEY

10.15 AM, TUESDAY, 24 JULY 2001

PN1

MUNRO J: This is matter C 364 of 2001. It is an appeal lodged on the 19th of June, Richard Kocsis against a decision of Commissioner Raffaelli on 30th of May this year. It is the first listing of the matter. Upon the listing of the matter, the - or notification of the listing of the matter, the Commission directed that there be an exchange of full written submissions. The Commission is in receipt of the appellant's written submissions which were lodged on 11 July 2001 by Rosanna Ganino.

PN2

I'm in receipt also of submissions under the AHEIA letterhead on behalf of the respondent, Charles Sturt University lodged on 18 July 2001. Could we have appearances, please?

PN3

MR P. STITZ: Your Honour, I seek leave to appear on behalf of the appellant and I'm instructed by Ms Ganino, your Honour.

PN4

MR R.WILLIAMS: If the Commission pleases, I'm from the Australian Higher Education Industrial Association appearing on behalf of the respondent, Charles Sturt University and I have with me Mr Clarke, who is the Employee Relations Manager of the respondent.

PN5

MUNRO J: Thank you. I take it there is no objection to Mr Stitz - - -

PN6

MR WILLIAMS: No objection, your Honour.

PN7

MUNRO J: - - - appearing. Leave to appear is granted. Yes, Mr Stitz.

PN8

MR STITZ: Thank you, your Honour. Your Honours, the judgment of Commissioner Raffaelli which concludes the circumstances of the appellant's employment, a three year probation period was appropriate is in our submission flawed principally because of factual errors and lack of facts or evidence supporting that conclusion. Your Honours, the jurisdictional point was taken at the outset by the respondents in that, if they could satisfy the Commission that the probation period was appropriate in the circumstances, then the appellant was precluded from seeking the relief as sought.

PN9

The matter proceeded by way of evidence being adduced by the respondents and then evidence was called from the appellant. Now, what is interesting in the sense of the evidence called by the appellant is the evidence that wasn't adduced. What was adduced was generalised evidence about academia, probationary periods in respect of academic positions in general terms but not, and I stress not, in specifics and certainly not in respect of the appellant. In opening, Mr Williams appeared at first instance at paragraph number 39 of the transcript of the 6 March 2001, your Honours.

PN10

Mr Williams outlined the evidence that he was going to adduce, namely Professor Blake, Professor Johnson and Dr Blackford. Specifically he suggested or foreshadowed that Professor Blake will also talk about the individual circumstances of the applicant's employment. Now, when one looks at the evidence of Professor Blake which commences, your Honours, at paragraph number 61, what Professor Blake does not do is give specific evidence about the circumstances of the appellant's employment at all.

PN11

Now, your Honours, in cross-examination by Mr Britt who appeared on behalf of the appellant at first instance at paragraph number 161 - I withdraw that. Paragraph number 163. It is at the bottom of the page, your Honours:

PN12

Sir, he taught for a period of some four semesters. Yes, I presume so. He had a period of research of one semester. It may be true, I haven't got that evidence in front of me. He worked in close proximity to Associate Professor Green. I presume so.

PN13

And it goes on. Paragraph number 171:

PN14

Do you know the numbers of students in the classes that he lectured? No.

PN15

Paragraph number 174:

PN16

Do you know what contact the applicant had with post-graduate students while employed by the university? No but I don't think there was any post-graduate students at Goulburn.

PN17

Paragraph number 176:

PN18

In fact there is, I think, the first doctoral student at Goulburn which has been publicised by the university and by the police academy. I'm not aware of that.

PN19

Now, I could go on, your Honours, but without wishing to criticise the professor, it is quite clear that he does not know really anything about this employee. Does not know what his duties were, does not know what his functions were or his obligations, let alone how he performed them. Now, at paragraph number 177 and paragraph number 178, which deals with the professor annulling a probation period he did so based on the recommendation of the probation review committee.

PN20

But if one looks at those two paragraphs, with respect, your Honour, it would appear that all that the learned professor did was rubber stamp what the probation review committee did. He didn't go behind that decision. Now - - -

PN21

MUNRO J: Was any attack made in the context of the stage of the hearing before Commission Raffaelli on the quality or probity of the probation review committee?

PN22

MR STITZ: No.

PN23

MUNRO J: Mr Kocsis's application under section 170CE, if memory serves me correctly, made some reference or cast some aspersion on the probation review committee, suggesting that it had been stacked, I think, to use my term rather than his.

PN24

MR STITZ: Yes, your Honour.

PN25

MUNRO J: By - this is Professor Collins. Was that allegation advanced or - - -

PN26

MR STITZ: Not before the committee, your Honour. Because of the way that the - - -

PN27

MUNRO J: Was any challenge at all made to the appropriateness of the probation review committee as effectively, if my understanding is correct, the organ that had to both oversight the probation and would, in due course, have confirmed Mr Kocsis or not confirmed him as a continuing employee at the Lecturer Level B level, that is, as a tenurable - or as a tendered appointee?

PN28

MR STITZ: No, your Honour. That - the proceedings didn't get to that point. The jurisdictional point was taken by my friend and - - -

PN29

MUNRO J: I understand that it is only a jurisdictional point that was taken and that goes to whether under regulation 30B the probation was reasonable, having regard to the nature of the employment or whatever the words are.

PN30

MR STITZ: Yes, your Honour, and in so far as - - -

PN31

MUNRO J: But in relation to the question of whether or not probation is reasonable, the function of the probation review committee may or may not appear to have been a relevant consideration.

PN32

MR STITZ: Yes, your Honour.

PN33

MUNRO J: That function itself was not the subject of any direct challenge. I think you have just taken this to the point where Professor Blake is saying: well, I leave these matters to the probation review committee.

PN34

MR STITZ: Yes.

PN35

MUNRO J: Mr Kocsis's contract, if it is spelt out by the letter of - whatever date it was in November that I think he has opened it and says that he signed, refers to that probation review committee in association with the attached policy guidelines. So its function was relatively central to both probation and emerging from probation into a continuing employment for a tenured appointee. That would be clear, would it not?

PN36

MR STITZ: Well, your Honour, the - a challenge to the integrity of the - a challenge to its - to the committee's merits was not, in my respectful submission, relevant to the jurisdictional issue that arose. The appellant entered into the contract of employment and as would be the case with all prospective employees who are new to the organisation, common sense would prevail that that prospective employee, or new employee, would have full confidence in the administration of the institution that it commences to work with.

PN37

So at that point in time, when the probation period was set as it were, he would, at that point in my respectful submission, have no reason to challenge the merits of the committee or its ability to make decisions. Subsequently - - -

PN38

MUNRO J: Perhaps it might both assist you and at least indicate an obstacle that you may face with me speaking for myself, Mr Stitz, if I give this background. I read your submissions or read those presented as the full written submissions and those broadly of Mr Williams in relation to the function of the Commission on appeal, I can perhaps foreshadow that I have one difficulty with what Mr Williams put in so far as jurisdictional point was taken before Commissioner Raffaelli, subject to leave to appeal being granted on the basis of that.

PN39

I think these days we have to take it whether or not there is an arguable case as well as whether or not the matter is of such importance in the public interest that leave to appeal should be granted but subject to leave to appeal being granted, this being a jurisdictional point, probably the approach in Pawel, rather than the approach reflected in House and King applies. Effectively the Commission, the Full Bench level on the hearing of the appeal may have to determine the point for itself.

PN40

It does appear that - and I haven't read these authorities or I'm not sure where Commissioner Raffaelli goes to them, that the point of the reasonableness of relatively standard three year and indeed five year tenure terms under the academic resumes but then determined by some other benches. But if that is the task that the Full Bench has to undertake in relation to the decision of Commissioner Raffaelli, while it can draw upon the conclusions that he has made and it effectively has to determine whether or not he was right, then we confirm the decision.

PN41

In confirming or not confirming, we may take into account whether or not he fell into error but at the end of the day, even if he did, we would need to determine the matter for ourselves in roughly the same way, at least as I understand it. If there was a finding that the dispute is genuine, it is the bench or the court that determines whether there is a genuine dispute in existence. A matter of jurisdictional fact. Now, it is in that context that I raise a point that goes in effect to the heart of what I understand to be your submissions.

PN42

You say the deficiency of Commissioner Raffaelli's approach, indeed of the responding case, was that there wasn't sufficient focus upon the peculiar circumstances for Mr Kocsis.

PN43

MR STITZ: In essence, your Honour, yes.

PN44

MUNRO J: You have a point that, as I understand it, contrasts the appropriateness of probation for the purpose of movement to tenurable appointment and the appropriateness of probation for the purpose of the Act or of not giving access to the Act. In relation to that point, I must say I would be interested to hear the argument because it does strike me as a point of, if not some novelty, it may have some substance in it that we need to address but to the extent that the question is to be determined within the compass of regulation 30B, the position to which Mr Kocsis was appointed is a position that is described relatively fully in the letter at attachment 4, I think it is, to his affidavit or statement.

PN45

That, in effect, says that he is appointed to, on probation, to a position that will become a tenurable appointment under the surveillance of the probation review committee. So it is in that context that I'm going to - what objection, if any, was taken to the probation review committee because I would have to say, speaking for myself, when one looks at the appropriateness of the probation period, one takes into account the protections that are built into the policy.

PN46

There was an issue about the ubiquity of that approach but the evidence about the three years probation occurs also in the context of it being open to have five years probation normally associated, I would have thought, with higher research positions but not uncommonly encountered in the movement from non-tenured vestibule posts into tenured continuing employment posts. I suppose the context on which I've sought to put the question is one that has a contrasting theme to that on which you centrally rely, namely that, as I understand it, less forget without much of this overhang of tenured appointment and of the associated classification practises and movement through a non-tenured appointment, a tenured appointment.

PN47

Just focus upon what Mr Kocsis was doing at the police academy and I don't know how you put it, don't have regard to the fact that whatever is to do after the two years that he had was obliged to stay there, was - survived the third year and then get the tenured appointment or perhaps it seems open, at least, an extension of the probationary period. That is the case in a nutshell though, isn't it?

PN48

MR STITZ: Yes.

PN49

MUNRO J: Yes. Well, though it is in that context that I am going to - I suppose the probation review committee because Mr Kocsis himself seems to have accepted that the first probation review report which was laudatory of him was part of his evidence. The second one I don't think was ever put on although there was an issue taken about its timing and I don't know that the allegation about Dr Collins - or Professor Collins' involvement in its composition or his engineering of the issues that were raised ever became part of the issue before Commissioner Raffaelli.

PN50

I would have to say, speaking for myself, in so far as the probation review committee is part of the system, I would be interested to see what specifically was put to Commissioner Raffaelli about it or can be put to the Commission on the basis of the system that has been applied. Now, it may be that I think there is a Full Bench presided over by Vice President Ross that dealt with - I saw the references to it and I haven't read the decision - that dealt with this matter but it would appear to me that Mr Kocsis's case perhaps raise matters that are common to a number of probationary periods.

PN51

A three year probation which, speaking off the top of my head, I wouldn't have thought was all that uncommon in the - people moving to continuing employment, to use the jargon term - and a tenured post is under-challenged in a particular instance for the reasons that you raise, then it might at least be desirable that there be an attempt by the Commission to resolve the question as far as practicable one way or another.

PN52

MR STITZ: Well, I would - I'm grateful to your Honour for sharing your Honour's preliminary thoughts and observations with us. I will take that on - - -

PN53

MUNRO J: Bear in mind that the purpose of today is short oral presentations, Mr Stitz.

PN54

MR STITZ: Yes. It might be given that, your Honour, that I may wish to make application to adduce some further evidence in that regard.

PN55

MUNRO J: Yes. Well, we will see how we go on that but I wanted you to understand the context in which the point was raised.

PN56

MR STITZ: Yes, your Honour. Your Honour, what was perhaps interesting at first instance is not so much the evidence that was called by the respondent but the evidence that wasn't called by the respondent. No one with any hands on knowledge or actual knowledge of what the appellant did was called and perhaps if someone from the review committee had been called who we would expect to have had an intimate knowledge of the appellant and his circumstances, then perhaps those issues could have been ventilated through cross-examination of that witness.

PN57

As I say, the appellant - the respondents did not call that evidence so at the end of the - at the end of the day in a practical sense, in terms of exploring that issue, where could the appellant go, apart from calling or giving evidence himself. As I say, Professor Blake didn't go behind the reason, clearly didn't know the circumstances of the appellant. In my - and it is not meant to be disrespectful, but in a practical sense he hears what the committee says and follows the recommendation without going behind it.

PN58

That being the case, he has no intimate knowledge of the facts or circumstances underlying it and he can't be attacked because he does not have the requisite knowledge. So the appellant at first instance in terms of ventilating that issue in what was in the circumstances agreed between, it would appear, Mr Britt, Mr Williams and the Commissioner, simply to be an isolated jurisdictional point. Of course, if the appellant was unsuccessful in that regard, he fails.

PN59

Had the jurisdictional point been heard concurrently with the merits of the appellant's application, then I would have thought that issue would most certainly have been ventilated. Your Honour is correct in observing or perhaps surmising that there were some or was some bad blood, as it were, between some of the players involved in the termination of this employment and those - those issues would most certainly have been ventilated, had the matter proceeded to the merits but because of the way it ran, that didn't happen.

PN60

If the court is of the view that that material is relevant and pertinent as part of this jurisdictional consideration, then because of the way the matter proceeded, it would in my respectful submission, be unfair perhaps to the appellant, if he were not in some way afforded an opportunity to ventilate that issue.

PN61

MUNRO J: Isn't the difficulty you face this, that the case that the Charles Sturt makes is that Mr Kocsis was appointed to a position of Lecturer Level B. That position is to be viewed in perspective in effect with all positions of lecturers at the university. It is a tenurable appointment, I think, to use the jargon. To a tenurable appointment attach certain rights and privileges including the oversight of the probation review committee and in this instance it being a three year probation.

PN62

But I think it is 30 months, there is a review that may lead to confirmation as a tenured academic. Thereafter, at least as I understand it, removal from office subject to even more stringent or let me put it - not even more - to more stringent and relatively well guarded dismissal for cause entitlements, somewhat broken down by the Bryant award but not yet probably at any university divorced from the respect that has existed for tenure.

PN63

So the case that the university mounted was one related to the general frame work within which Mr Kocsis's appointment was made and they were defending the reasonableness of the probation by reference to that machinery and that context. The onus effectively was on you if you were attacking that reliance on the machinery and context to do so. Your answer rather was let us focus upon the circumstances of Mr Kocsis himself.

PN64

He was doing things that should have made the probation period a shorter one or he having been there from, I think it is some 20 months, that was already a long enough probation period and anything more was not reasonable. I don't now that at this stage the specifics of the merits of the decision of the particular review committee are going to make that much difference to the task that the Commission faces.

PN65

MR STITZ: Your Honour - your Honours, I should say, the primary defence, as it were, in my submission that the respondent ran with before the learned Commissioner was time. Three years in their case or their submission, I should say, was three years was a reasonable period. If they succeed on that, we fail, end of story. The parties' approach - - -

PN66

MUNRO J: But the three years that they rely upon is in the context of an assessment appropriate to a movement - to a tenured appointment. This is not a fixed term contract that was given to Mr Kocsis.

PN67

MR STITZ: No.

PN68

MUNRO J: It was a probation to an ongoing career or continuing employment at Level B academic status so that the three year term is put in the context of the end entitlement as much as the, I suppose, immediate status of the position. What development of the argument do you make about the inappropriateness of that orientation of a probationary period as contrast to with what you say is the purpose of the Act?

PN69

MR STITZ: Without wanting to be evasive, can I come back to it, your Honour, in regard to that? That is something that I would wish to - - -

PN70

MUNRO J: Yes. Sure. Well, I notice it is one of the appeal points that - I'm just not sure which ground it is but it is one that is raised.

PN71

MR STITZ: If I may, I will come back to that, your Honour.

PN72

MUNRO J: I hope I haven't too cruelly taken you out of the order of your presentation, Mr Stitz, but it did seem appropriate to take you to what I understand to be the meat of the case that you have to address.

PN73

MR STITZ: Well, put it this way, your Honour didn't mean to. Now, as I alluded to in the course of that interchange, your Honours, what is interesting about the respondent's case of first instance is the evidence that wasn't called. The evidence that the learned Commissioner was not provided with in order to determine whether or not three years was a reasonable period and that is the particular circumstances of his employment.

PN74

Now, can I take your Honours just by illustration in respect of that to the decisions at paragraph 13 - sorry, 30 on page 14 of the decision, your Honours. Now, therein the Commissioner is commenting about some specifics in terms of the appellant and I stress some. I also note that in this period at CSU Mr Kocsis only performed one semester of research. Evidence adduced by the appellant. While he lectured for over four semesters, this was by way of distance education courses.

PN75

Again, evidenced from the appellant. He did not lecture face to face. Now, he did not lecture face to face is an interesting observation or perhaps comment from the Commissioner, in my submission. He wasn't employed to lecture face to face. He was employed for distance education courses. So perhaps one would have thought, your Honour, that at the end of a three year probation period, bearing in mind that it was then perhaps open to extend the period to perhaps five years or beyond, the appellant might have been in a fairly difficult position.

PN76

After three years or perhaps five years or after 10 years, he still would not have, if he continued in his current role, lectured face to face. That wasn't his function and yet it would appear that in some way the Commissioner is perhaps making some sort of implied criticism of his lack of experience. The Commissioner goes on, he did not supervise a post-graduate student. Well, with respect to the learned Commissioner, that is wrong. That is not the evidence.

PN77

Paragraph number 600, your Honour, again of the transcript of the 6th of March wherein the appellant gives evidence that he did supervise a post-graduate student and if my memory serves me correctly, he was cross-examined about that and certainly not challenged. So we have got there the comment he did not lecture face to face which seems to be an implicit criticism of his experience or perhaps reflects the lack of understanding on the part of the Commissioner as to what his role was which perhaps in the circumstances the Commissioner can't be blamed for because the respondents didn't adduce that evidence to enable him to know whether or not he was suppose to doing face to face lecturing.

PN78

The Commissioner then - - -

PN79

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It was confirmed, wasn't it, in cross-examination that that student was an enrolled post-graduate student at Charles Sturt University?

PN80

MR STITZ: Yes.

PN81

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But not that particular campus?

PN82

MR STITZ: That is right.

PN83

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But the student was enrolled at Charles Sturt University - - -

PN84

MR STITZ: Yes.

PN85

SENIOR DEPUTY PRESIDENT CARTWRIGHT: - - - as opposed to the other student that Mr Kocsis referred to enrolled at another university?

PN86

MR STITZ: Who I think he lent a hand to. Yes.

PN87

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And it was that other student to whom he referred when he said no, I wasn't her official supervisor?

PN88

MR STITZ: Yes. That is my recollection of the transcript. I can - and the evidence, your Honour.

PN89

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I wasn't quite clear from the transcript whether he was the official supervisor for this other student at Bathurst.

PN90

MR STITZ: Yes. At paragraph number 758, your Honour, that is addressed. This is a re-examination by Mr Britt.

PN91

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It is not all together clear though that he was her official supervisor.

PN92

MR STITZ: Would your Honour just pardon us a moment?

PN93

MUNRO J: There is a reference, I think, at 717 - - -

PN94

MR STITZ: Yes, your Honour.

PN95

MUNRO J: - - - to 719 that might be on the point.

PN96

MR STITZ: That is - Ms Ganino has just pointed that out to me, your Honour. That is the other reference to that evidence. Yes, your Honour, you can see at 117 he is asked about other post-graduate students and then he goes on to give evidence about the female in that he wasn't her official supervisor as opposed to the other one that he was the official supervisor of.

PN97

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes. I must admit that exchange at 718 still did leave me wondering whether he was the official supervisor.

PN98

MR STITZ: I don't know what assistance it gives your Honour in a sense that - certainly my instructions are that he was the official supervisor and further more that wasn't challenged by the respondents at first instance. So if there was any lack of precision in respect of that evidence, it wasn't something that was attacked but I think it therefore must be conceded by the respondent that it is the case that he was and accordingly, the Commissioner has made a factual error which as I say follows hot on the heels of the face to face extract which I've referred to.

PN99

MUNRO J: Is there in the evidence a statement of the duties of Mr Kocsis's position at the police academy?

PN100

MR STITZ: No. No. The - - -

PN101

MUNRO J: There is - no such statement exists?

PN102

MR STITZ: In the sense, your Honour, of a: here are your tasks, here are your duties, here are your obligations, here are the hours you will work etcetera, etcetera, no. It would appear, your Honours, that it was in a sense a - perhaps a niche position which was vital in the link between the university and the academy.

PN103

MUNRO J: We have the amended the offer of employment and that says that you are a full time lecturer in Investigations in the Professional Development Centre Policing within the Faculty of Arts and located at our Goulburn campus and that letter spells out in a broad sense the conditions of employment and imports various references, that the state of evidence and I understand you complain about Professor Blake, vice chancellor's evidence that it is generic, does not go beyond that broad outline of what were the functions of the lecture in investigations and the Professional Development Centre Policing apart from what was stated by Mr Kocsis.

PN104

MR STITZ: Yes, your Honour.

PN105

MUNRO J: He went to some detail of what it was that he did.

PN106

MR STITZ: In fact, your Honour, there is an illustrative extract which - if your Honour will just bear with me - your Honour, at paragraph number 84 - - -

PN107

MUNRO J: That is transcript - - -

PN108

MR STITZ: - - - Professor Blake - again of the 6th of March, your Honour - your Honour, the professor gives a lengthy answer that commences to say that the position classification statements - and this is at line 6 or 7 - for an academic at Level B indicates that the job is multi-faceted. He then goes on to speak about Level Bs in general terms before coming back to - at the end of his question addressing or appearing to address the issue of probation and the reasonableness of the time.

PN109

That generalised answer, your Honour, is in fact a very generalised but brief summary of - just bear with me - - -

PN110

MUNRO J: Well, the position classification standards, I think, are in evidence too, aren't they?

PN111

MR STITZ: Well, they are referred to - well, they are and they are also referred to, your Honour, in the decision at paragraph 22.

PN112

MUNRO J: But my question is going to this aspect and I think they are in - the position classification standards were attached to Mr Kocsis's own evidence or as part of the guidelines and probation and tenure for academic staff.

PN113

MR STITZ: Yes.

PN114

MUNRO J: They were approved in 1994. The question I'm going to is where, if at all, do we find any evidence about what Mr Kocsis was meant to do as a lecturer in investigations in the professional development centre policing. Presumably when he arrived someone said: we want for you to lecture in criminal profiling which I gather is what he did or you are to prepare a course in this or told him that he had to prepare one course or three courses or whatever. Is there no evidence about that or some evidence to say: well, I was never told anything so I just had to sort it out for myself.

PN115

MR STITZ: No, not the latter.

PN116

MUNRO J: Or whenever the probation review came along, they told me that I was doing a good job but they didn't have any particular set of duties to assess me by or I was always being assessed by the classification guidelines. What I'm looking for is how does one identify the detail that I would have to say for myself one would expect that if a person is told to do certain things that are within the broad classification standard, somebody not told, they are just expected to get on with their research, for instance, they would expect it to turn out academically refereed articles and publish or perish, they hardly need to be told.

PN117

MR STITZ: Well, your Honour, if - - -

PN118

MUNRO J: But they would need to be told - lecture to this many students by this technique.

PN119

MR STITZ: There was no singular document to that effect and that may well be, your Honour, because of - - -

PN120

MUNRO J: Well, is there evidence that no such single document existed?

PN121

MR STITZ: No, there is not.

PN122

MUNRO J: I see. Well, where do we find the evidence as to what Mr Kocsis, for instance, says where the duty is?

PN123

MR STITZ: Well - - -

PN124

MUNRO J: Did he identify it? He makes, in the sense, a replication to the criticisms that are made about him and does so in terms that appear to relate to the classification standards to say: well, I was doing some supervision, conducted lectures or I developed planning courses and the like. All of his case seems to be framed by reference to the classification standards too, does it not?

PN125

MR STITZ: I would have to concede that, your Honour, yes. Do your Honours have the exhibits from the hearing of the first instance?

PN126

MUNRO J: I think we have as part of the appeal book the exhibits to Mr Kocsis's statement. I'm not sure how many others we have. Our available - - -

PN127

MR STITZ: Can I seek access to those, your Honour?

PN128

MUNRO J: Yes, most certainly.

PN129

MR STITZ: I will just take a moment. I don't wish to mislead your Honours about things that occurred at first instance when I wasn't there.

PN130

MUNRO J: Yes. Well, there is and I should put it to you because it does seem to me to be relevant. Mr - did I say Collins? I think it is Professor Chambers - is that the dean of the faculty - about - in any event annexure 1 is addressed from Professor Chambers to Mr Kocsis and that does spell out in some particular the expectations of the new position.

PN131

MR STITZ: Yes, your Honour. If I'm looking at the same document that your Honour is, it is titled at the very top of page: Kathryn Collins 1428 10/11/98 plus one questions which was, I assume, annexure or exhibit 1 of the affidavit of the appellant sworn at Sydney on 5 March 2001.

PN132

MUNRO J: Yes.

PN133

MR STITZ: And tendered into evidence of the first instance and became exhibit K10, your Honour, at paragraph number 754.

PN134

MUNRO J: I see. For all practical purposes, we can take that as effectively the functions that Mr Kocsis was to perform expressly within the first period of at least of the probationary appointment to which he was appointed.

PN135

MR STITZ: Well, put it this way, your Honour. That is as close as we can get - - -

PN136

MUNRO J: Yes.

PN137

MR STITZ: - - - to that being reduced in writing.

PN138

MUNRO J: There is no evidence - and I'm not putting it in as proposition, I'm putting it as a question - that there were other additional functions added or that he was subject to some redirection as a lecturer might need, even within probation after the date of this communication.

PN139

MR STITZ: Yes. In fact, your Honour, if I can just take up the document, paragraph 2, the paragraph commencing: the position you have been offered, the second sentence commenced: it is envisaged that you will teach upper level and graduate subjects. The following sentence: all your teaching is likely to be in the distance education mode so it would certainly seem that the role was certainly at that point seen as one that would perhaps evolve and so easier to describe after the event and before the event.

PN140

MUNRO J: Yes, thank you.

PN141

MR STITZ: I think, your Honour, we had - I had arrived at the - going back to the decision, your Honour, at paragraph 30 where I've submitted that the Commissioner made a factual error. It then follows, your Honour, that this would seem to give added weight to the contention that a short period of 12 to 18 months does not provide the requisite level of experience necessary to enable the necessary assessment of the duties of a Lecturer Level B are satisfactorily carried out.

PN142

Now, the fact that the Commissioner has made a factual error following on from what I've submitted is perhaps an implied criticism on his part or at the very least an observation that he didn't do face to face lecturing, when he wasn't required to it would seen and didn't, would most certainly in my respectful submission, undermine the conclusion that the Commissioner has drawn. This would seem to give added weight to the contentions. He is relying upon a factual error to fortify, as it were, his conclusion.

PN143

In my respectful submission, it does the opposite. It undermines that conclusion. Now, your Honour, just before I led into that through the evidence of Professor Blake and if I might just briefly return to that evidence and bear in mind, your Honour, that obviously this evidence was called to assist the Tribunal at first instance in reaching its conclusion and the evidence of Professor Blake was called to give a, as it were, a general overview as to support for the proposition that three years was an appropriate period.

PN144

One would have thought, your Honours, that on the face of it perhaps, Professor Blake wouldn't have an axe to grind as such. He wasn't involved in the committee review process. He followed it, he had no reason to doubt what the committee had decided. He is an eminent academic and is, on the face of it, attempting to give the Tribunal the benefit of his knowledge and experience. At paragraph 88, your Honour, or your Honours, I should say, Mr Williams asked the professor about the appellant's CV. The professor makes a comment:

PN145

I would assess this application as being quite a modest one for the appointment at Level B and I would suggest that has all the hallmarks of an inexperienced academic who shows potential.

PN146

I would invite your Honours to read the balance of that paragraph before I comment on its objectivity.

PN147

MUNRO J: What - the paragraph which you have taken us, is that an assumed misprint? I think a three year period would be required to demonstrate competencies across the range. The criteria that we have identified after all this isn't an application for a tenure to appoint such - the staff member would have an unusual level of security of employment. It means that it is.

PN148

MR STITZ: I think my friend wishes to assist.

PN149

MR WILLIAMS: I think, your Honour, you could probably assume that that is the case, that that is, in fact, a typo.

PN150

MUNRO J: Yes.

PN151

MR STITZ: I'm in my friend's hands. He was there.

PN152

MUNRO J: I don't know if a lot turns upon that particular error but I think you have just submitted to us that - or no, rather I think you have taken us to the passage in Commissioner Raffaelli's decision where he seems to draw a distinction between being appointed to a position of Lecturer Level B and if not being a tenured position but I would have thought it is beyond argument, isn't it, that there was a - Mr Kocsis was appointed to a tenurable position but subject to probation review would have become a tenured position. He was appointed - - -

PN153

MR STITZ: I don't seek to cavil with that, your Honour.

PN154

MUNRO J: Yes.

PN155

MR STITZ: But for the purpose of drawing your Honours' attention to that paragraph was that one almost gets the impression that upon looking at that evidence, that this gentleman was lucky to get the job at all. One gets the impression that he barely scraped in. The very same applicant that they gave an above usual level of pay to. Then at paragraph 89, your Honour, he comments that:

PN156

I finally signed off on the annulment of the appointment and I did that after carefully reviewing all the papers that were relevant and in particular, the particulars etcetera.

PN157

Well, one wonders what relevant material he was provided with, given the evidence that came out when Mr Britt cross-examined him about his knowledge of what the applicant actually did or the appellant actually did.

PN158

MUNRO J: The principal employer in this instance is - in the paragraph to which you have taken us - is alluded to there is a New South Wales Police Service, is it?

PN159

MR STITZ: Would your Honour pardon me? He is at the academy, your Honour, teaching recruits so almost as if perhaps he is on secondment. That is probably not the precise expression but he is put into the academy, he is still with Charles Sturt but he is in there to teach their recruits, the academy's recruits. That is the context in which I think the professor is commenting. So in other words, we are being particularly cautious because we are giving him to the academy to fulfil a very, very important role, or hopefully, a very, very important role.

PN160

I simply draw reference to that evidence, your Honour, because in my respectful submission, it does tend to undermine the proposition that the professor was being completely impartial in his approach to it. It seems that, in my respectful submission, he is extremely eager to justify the decision because the consequences of it are clear and obvious for all to see. The Commissioner then heard from Professor Johnson and Dr Russell. Now, I won't go, your Honour, into specifics of those two gentlemen.

PN161

Suffice to say they support the proposition that three years was appropriate. After all, they were called by the respondent but they didn't have any particular knowledge - nor should they - they didn't have anything to do with the appellant. They didn't have any specific knowledge. They were simply commenting in broad terms but then we get to - again it is through those gentlemen on cross-examination on them, the next - dare I say - vital conclusion that the Commissioner draws at paragraph 27.

PN162

I would invite your Honours to just peruse that paragraph for a moment. Now, your Honours, it is a carefully written judgment. Obviously the Commissioner is careful with his words and means what he says but for him to conclude that the overwhelming evidence, not just the balance of the evidence or the majority of the evidence, but the overwhelming evidence points to the conclusion that an assessment as to the aptitude and capacity of a Level B academic can only - can only be made over a period of years.

PN163

He then goes on to state:

PN164

However, those activities that relate to the teaching and research roles are pre-eminent duties and require on the evidence several years of assessment.

PN165

Now, one often cross-examines witnesses, your Honours, when they use the expression "several". I just try to tie them down as to specifically what they mean and it is not easy but it is generally, in my respectful submission, considered that several might be three or four as opposed to a couple or one. But that is not the evidence and it is certainly not the overwhelming evidence in our submission. Again, your Honours, can I take you back to the evidence of Professor Blake.

PN166

The evidence in this regard in respect to the other two witnesses for the respondent is similar but - and I will briefly take your Honours there because I think it is, in my respectful submission, of some assistance but in so far as Professor Blake is concerned, the line of questioning commences at paragraph number 149 - no, I withdraw that. Perhaps paragraph number 148 wherein Mr Britt asks the professor:

PN167

You said in your evidence that universities are now bench marking themselves against other universities in Australia.

PN168

Answer: yes:

PN169

And Charles Sturt University, I imagine, is bench marking itself against other universities. Now in relation to the University of Sydney, do you know the probation period for academics at the University of Sydney?

PN170

Answer: no. At paragraph number 154, Mr Britt asked if it would surprise him if the period was only six months. Answer: I don't know the conditions at Sydney University. Paragraph number 157, he is asked if he would be surprised if at University of New South Wales being 12 months. No, again he says, I'm not familiar with those universities. Curtin University of Technology has probation period of 12 months. Again, no, as I say, I haven't got all these surmised in front of me.

PN171

Newcastle University, 12 months. Response: no. Now, perhaps your Honours with all due respect to Professor Blake maybe one could be forgiven for not knowing about the University of - sorry, the Curtin University of Technology. It is certainly new to me that Sydney University, University of New South Wales, even for someone residing in the ACT, I would have thought, but might have knowledge of those institutions but not the professor.

PN172

MUNRO J: I'm sorry, where was that reference from that you were taking - that was from Professor Blake's evidence at - - -

PN173

MR STITZ: Commencing at paragraph 148.

PN174

MUNRO J: Yes.

PN175

MR STITZ: I quoted 149, 154, 157, 158, 159. Now then, your Honour, can I go back to paragraph 155 which is perhaps a slightly - slightly different issue - of the fact that he is not aware of what the policies of these other institutions are but he is asked: sir, if they have a - I withdraw that. Would your Honours just pardon me a moment:

PN176

Sir, if they have a probation period of six months, that would suggest that it can review a person's teaching ability within six months. It may be able to. May it be able to consider an employee's research ability in a period of six months? Well, it may. I simply don't know what the arrangements for Sydney are.

PN177

Your Honours, the starting point for a probation period that does not need to be justified is anything up to three months, thereafter the onus is on the employer to show that in the circumstances, that probation period is reasonable. Sydney University - and there is evidence to support this, your Honours, this isn't merely relying on propositions put to the witness and I will take your Honours to that - Sydney University decide that in respect to their academia, double the three months is an appropriate period.

PN178

New South Wales are more cautious, four times, stretching that period out to 12 months. This institution is 30 months.

PN179

MUNRO J: Which institution? Charles Sturt?

PN180

MR STITZ: Yes, your Honour. Three years.

PN181

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I think he means 36.

PN182

MR STITZ: I do? I do? Well, I'm plucking figures out of the air, your Honours, but not evidence.

PN183

MUNRO J: Time probably passes more quickly in Bathurst than Goulburn.

PN184

MR STITZ: Well, we won't go into that. Your Honour, the probation policy of Curtin University of Technology went into evidence at exhibit K4. This is to be found, your Honours, in the evidence commencing - through examination commencing paragraph number 526. The probationary policy of University of Newcastle is in evidence, exhibit 5. University of New South Wales, exhibit 6. Probationary policy of the University of Adelaide, paragraph 7 and six months is the period, your Honours, for Adelaide again only a doubling of the perhaps shall we say minimum three months probation period.

PN185

Not only did the Commissioner have before him, your Honour, the reference to those other institutions sadly of which Professor Blake was ignorant. He also had before him the policies of those institutions and yet somehow, your Honours, he draws the conclusion that the evidence before him was overwhelming, that it has to be years as opposed to months. Several years, whatever that means. Certainly not several months.

PN186

Now, I can almost sense my friend, your Honour, wanting to go to paragraph 33 of the judgment wherein the Commissioner commented that the appellant had responded by pointing to a number of institutions that have significantly less periods of probation. I have considered such. He later comments:

PN187

I've influenced by the specifics of the appellant's job and the evidence in the case including that from himself and senior academics.

PN188

But just dealing with, your Honour, the first quote:

PN189

The respondent by pointing to a number of institutions that have significantly less periods of probation, I have considered this.

PN190

Well, in light of the finding of fact that he had made, at paragraph 27, the very, very strong or strongly worded finding of fact that he made at paragraph 27, one wonders what consideration, if any, he did give to that evidence. He certainly does not spell out what consideration he gave to it and he must have implicitly rejected the policies of those other institutions as being appropriate for him to conclude that the evidence supporting three years was overwhelming.

PN191

But he does not say any of that. He simply in a broad brush manner says I've considered such. The paragraph in its entirety, that being number 33, is in my respectful submission, the Commissioner covering bases as it were and in a very broad brush manner simply stating without any details or specifics, that I've taken matters into account. Well, in view of my observations and perhaps criticisms of his conclusion at paragraph 27, in my respectful submission, the court is left - or would be left in some difficulty in understanding how he drew that overwhelming conclusion unless he placed undue reliance on the evidence adduced by the respondent.

PN192

Just if I may for illustrative purposes, I don't - if your Honour just bear with me a moment. I apologise, your Honour, as I thought I had marked this and obviously I haven't. I seek your temporary indulgence. In fact, I stand corrected in respect of an inference I may have made in respect of the other academics simply in respect of, your Honours, Professor Johnson. He was asked, your Honour, by Mr Britt at paragraph number 259 if he was aware of the six month probation period at the University of Sydney and he says that he was.

PN193

I may have inferred that he did not and if that is the case, I withdraw that submission, your Honour. That is as much as I can usefully assist your Honours with in respect of that issue. Now, your Honours, at paragraph 27 as I've indicated, the Commissioner makes a very strongly worded finding of fact. He then travels to paragraph 30 which I took your Honours to initially that therein contained the reference to face to face and the factual error about supervision of a post-graduate student.

PN194

He fortifies, as it were, and compounds the error that he has made, in my respectful submission, at paragraph 27. He supports his earlier conclusion erroneously, a conclusion which in my respectful submission was erroneously drawn in the first place. Now, your Honour, in paragraph 31 there may or may not be a further error of fact wherein he says: I am not satisfied because experience would warrant a departure from the general lengthy probation period. On his own evidence, he had never held the position of lecturer.

PN195

He had never supervised post-graduate students. Well, if he is talking about some period in the past, then perhaps that might be right but if he is talking about the appellant as he presented before the Commissioner, clearly there was evidence that he had supervised post-graduate students. So again the Commissioner is fortifying his view based on an error of fact. Now, whether that error was due to the lapse of time between the last hearing date, namely the 4th of April and the date of the decision, namely the 30th of May, nearly two months later or whether it was based on a misunderstanding of the evidence or a failure to appreciate it, we don't know.

PN196

The fact is the error is there and it is on the record. In fact - - -

PN197

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It was certainly the case, wasn't it, that at the point of appointment, Mr Kocsis on his own evidence, had not supervised post-graduate students?

PN198

MR STITZ: Yes and that is why I indicated to your Honour that that may or may not be - my reading of it is that it is an error because it is the same error that he made in paragraph 30 but it is the case and your Honour is absolutely correct. Yes, as at the date of commencement so in that sense perhaps it is equivocal but bear in mind he has made the same mistake twice, in my submission. He has got it wrong but it - that particular paragraph is not as clear as perhaps it could be.

PN199

I'm reminded of the informal supervision earlier but we won't trespass that. I appreciate what your Honour was referring to. Would your Honours just pardon me a moment? Can I take your Honour just briefly to, your Honour, the position classification standard which is referred to in paragraph 22 of the decision which appears on page 10. Now, almost by definition, I suppose, a standard needs to try to be inclusive. It is one document that is going to cover a number of different instances.

PN200

The term generic has already been used today and in fact it is on page 12 of the judgment under the heading Position Clarification Standards Introduction. It states:

PN201

The Position Clarification Standards - PCSs - are generic statements used to describe broad categories of responsibilities.

PN202

They have to be and generic is the right word to use but the fact finding mission, as it were, for the - that falls for the Tribunal, yes, one has to look at the classification standard but one also has to look at the circumstances of the employment and it is not sufficient to look, in my respectful submission, at the general classification standard and conclude that three years is an appropriate period. But that seems to be, based on the evidence adduced at first instance, what the Commissioner did because he certainly wasn't assisted by any of the witnesses as to the individual role and the individual obligations that this employee or in fact any other employee had in the circumstances of that employment contract.

PN203

So if your Honours this judgment were to stand, as it were, or perhaps worse still - I withdraw that. Then we have a very general precedent for the proposition that in so far as at least Charles Sturt is concerned, three years is an appropriate period for academic staff. Full stop. End of story. So if one were to read the judgment, in order to compare and contrast another perspective litigant, how could one do that? Because whilst the Commissioner sets out in general terms the roles, he does not get to the specifics.

PN204

In fact, as I've alluded to earlier, in respect of his comment about face to face, if face to face contact with students is required, how could the appellant ever satisfy a probation period? It simply wasn't his task so he shouldn't be evaluated on criteria that don't apply to him. Just as, and I will endeavour to poke a pin into the paper, page 11, point 115: activities that may be related to research role of academic staff member are, the actual performance itself and then it goes on: production of works for exhibition, dramatic and musical performance on stage, screen, radio, any other medium.

PN205

Well, his job never called for that so he used to be evaluated for a failure to put on musical performances. Now, whilst that might be a fairly flippant example, perhaps a very flippant example, these general criteria ought not to be applied in that general sense. You have got to look at the tasks assigned to the particular employee in his role, what were his functions, rather than make a broad brush sweeping comment that academia has a peculiarness about it which automatically dictates, notwithstanding the conduct of some other institutions, that three years is the appropriate period.

PN206

To be judged on criteria that don't apply to you, in my respectful submission, is harsh. The question is, your Honours, what was the appropriate probation period for a person that was doing distance education courses. What was the appropriate probation period for someone who is expected to use a particular computer system in order to assist in that regard. What was the level of supervision made applicable to that particular employee and when all of those criteria and facts are set out, one can then say, hopefully, well perhaps in those circumstances six months or 12 months or 18 months or five years.

PN207

At least one is doing it on an informed basis rather than simply looking at, on a broad brush approach, what a collective of certain institutions are doing, of which Charles Sturt happens to be one. If this case is to be authority for the proposition that three years is appropriate for anyone in an academic capacity in that institution or that body of institutions of which Charles Sturt is one, then perhaps heaven help anyone planning a job there or seeking relief in this jurisdiction. It is a dangerous precinct to set, in my respectful submission, pure and simple.

PN208

Now, I mean, the Commissioner can only go on what is before him. That has to be conceded but even then, your Honours, in my respectful submission, you have got it wrong. He placed undue reliance upon what clearly was not overwhelming evidence. He was overwhelmed by it but on a clear and objective view, that can't be substantiated in our submission. Would your Honours just pardon me? Your Honour raised with me the issue of early on canvassing the issue whether the selection committee or probation committee, I should say, was at any way attacked or how or why it didn't find its way into evidence at first instance.

PN209

That was not something, your Honours, I would turn my mind to prior to that being raised, I confess but I wonder if I might just be briefly given an opportunity to confer with my instructing attorney who was present at first instance and has had carriage of the matter right throughout. Five minutes, your Honour.

PN210

MUNRO J: Do you have any objection to that, Mr Williams?

PN211

MR WILLIAMS: No, your Honour.

PN212

MUNRO J: The Commission will adjourn for five minutes.

SHORT ADJOURNMENT [11.55am]

RESUMED [12.20pm]

PN213

MUNRO J: Yes, Mr Stitz.

PN214

MR STITZ: I'm indebted to your Honours for that brief adjournment. Your Honour raised with me whether there had been an attack on the - or any challenge to the probation committee's process or decision in the circumstances, or its role or function. Whilst in the point 21 attachment to the original application, it was clear that the appellant had indicated that the - he had been subject to a procedure that was not bona fide, was inherently irregular and unnecessarily protracted. He did that as part of his challenge to the decision on the merits.

PN215

Had proceedings got that far, that most certainly would have been one of the, if not the, central plank in his complaint. Somebody had it in for him and used their power against him as it were. That would be it in a nutshell I would imagine, your Honours. But at the commencement of the hearing on the 6th of March, it was Mr Williams who raised the jurisdictional issue, indicated that he wished it to be ventilated, correctly identified that given that the period was in excess of three months, the onus rested with him to satisfy the court that three years was reasonable in the circumstances.

PN216

He then proceeded to adduce evidence in support of that proposition and as we know was ultimately successful at first instance which terminated the proceedings, as it were, so far as any issue of the merits of the original application was concerned. The only issue that was raised by the respondent was the length of the period, not the review process, not the existence of the committee, not its make up, not its performance. The length of the period and if it could do that, then clearly the appellant was under probation at the time of the annulment of his employment or annulment of the probation and they succeed. That is an effective bar and end to the proceedings.

PN217

MUNRO J: Were the witness statements or affidavits - were they of Professor Blake, Dr Blackford and Professor Davidson, was it, or Johnson?

PN218

MR STITZ: Johnson.

PN219

MUNRO J: Were they - those were circulated in advance, I think, were they, to the respondent or made available on the day?

PN220

MR STITZ: Contemporaneous on the day, I'm instructed.

PN221

MUNRO J: I see.

PN222

MR STITZ: As happens from time to time. So the - in an evidentiary sense, the case commenced and concluded on the 6th of March. There were submissions on the next occasion but from an evidentiary view point, that was it on the 6th of March. That was the challenge to the appellant's right to bring in action and the appellant met it as best it could, given the raising of that issue. The respondent did not call witnesses as I've alluded to earlier who had a direct knowledge of the respondent.

PN223

Professor Blake initially said he reviewed the file and was familiar with it but under cross-examination clearly didn't and wasn't familiar with the circumstances of the appellant's employment. His immediate supervisor wasn't called, presumably the person with the best knowledge of what the appellant could have done, or did do, I should say.

PN224

MUNRO J: Who was that? Professor Chambers or Professor Collins.

PN225

MR STITZ: No. Tracy Greene, the head of school of policing studies, I'm echoing. No explanations for the failure to call that witness or indeed Professor Chambers or anyone else that knew what the appellant did and I suppose in a sense a pretty good tactical manoeuvre on the part of the respondent because we can't cross-examination people who know nothing about the appellant. We can't adduce evidence from those people that do know what we did when they are not called.

PN226

Ms Greene or Professor Chambers presumably could have assisted the Commissioner a great deal more than those witnesses that were chosen to be called and bear in mind that they bear the onus but they chose not to call those witnesses. A Jones and Dunkell situation might well apply in those circumstances. No explanation as to the failure to call any of those witnesses on their application, when they bore the onus. So the Commissioner was deprived of hearing that vital evidence. Why is it vital evidence?

PN227

Can I take your Honours to the law briefly? I have these authorities, your Honours, which I can hand up.

PN228

MUNRO J: Are you finished with the original file in this matter too, Mr Stitz?

PN229

MR STITZ: Yes, I have.

PN230

MUNRO J: Can that be passed back? Yes.

PN231

MR STITZ: Yes, thank you, your Honour. I will hand those up in triplicate, your Honour. The ..... occurring, your Honours, firstly can I take your Honours to Nicholson and Heaven and Earth Gallery Pty Limited 126 ALR 233 which is authority proposition that the nature of the job, I quote, is the most important consideration in determining what is a reasonable period. One would have thought the specific nature of the job would be indeed as Wilcox J said the most important consideration.

PN232

What was this person doing? Is a three year probation period appropriate for a heart surgeon who has never operated conflicting or contrasted with one with more experience? Or probation period for a general surgeon who at some point might be called up to do heart surgery or might not.

PN233

MUNRO J: What passage of the law are you taking us to, Mr Stitz?

PN234

MR STITZ: I'm sorry, your Honour.

PN235

MUNRO J: What passage of his Honour are you taking us to?

PN236

MR STITZ: 233, at about point 15, your Honour, paragraph commencing: I reject that suggestion.

PN237

MUNRO J: 233?

PN238

MR STITZ: I'm sorry, your Honour. Pardon me, your Honour. 242. My apology. Now, in my respectful submission, the learned Commissioner was given little, in fact, no assistance by the respondent in helping him to determine those factual issues, proved objective facts as to the exact nature of the employee's position. They bore the onus and were silent on the issue. Then can I take your Honours to the judgment in Ian Lowe and DMA Australia Pty Limited, unreported but print number SO163 of 15 October 1999.

PN239

That, another decision concerning what ought to be taken into account in determining what is an appropriate probation period in respect of a teaching position, your Honour, specifically at paragraph 23.

PN240

The probationary period attached to the employment was approximately the length of the first semester of the teaching year. It was the evidence given on the respondent's behalf that a full semester was required in order to assess the ability of the applicant to perform the standard required by the employer, particularly so as to assess the performance of the students taught by the applicant over that period.

PN241

No evidence adduced by the respondent from the relevant supervisor or those above which would have assisted the Commissioner as to whether one semester, two semesters, four semesters was an adequate opportunity to consider the performance. It would have been easy, I would have thought, for the respondent at first instance to have called Ms Greene or Professor Chalmers to say we didn't think that the time we had him was long enough but they didn't do that.

PN242

We didn't think four semesters was adequate. We didn't think that one semester researching was adequate. They are silent on that issue and yet they bear the onus. Your Honours, the judgment of Commissioner Bacon in the matter of Faruqi - that is f-a-r-u-q-i and Queensland University of Technology print Q4677 10 August 1998 at page 3 at about point 7 where the paragraph commences:

PN243

The wording of the regulation requires a consideration of what is reasonable, having regard to the nature and circumstances of the employment. I do not believe it appropriate to narrowly construe those words to simply require an analysis of whether six or nine months or some other period of probation is unreasonable ...(reads)... in order to establish what is reasonable.

PN244

This is, of course, not new and references made to Nicholson and Heaven and Earth Gallery Proprietary Limited. Your Honours, at paragraph 20 of that judgment on page 4, reaffirms perhaps the obvious:

PN245

The onus is on the respondent to demonstrate that six months which is double the statutory bench mark, is reasonable having regard to the nature and the circumstances of the employment.

PN246

Emphasis added by me.

PN247

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, the paragraph numbers are missing from mine. Where was that on page 4?

PN248

MR STITZ: Page 4 at about point 7, your Honour. Does your Honour have that?

PN249

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, there are no numbers.

PN250

MR STITZ: The paragraph - - -

PN251

MUNRO J: It is underneath the heading, is it?

PN252

MR STITZ: Yes. Lowe and DMA we are looking at, about page 4, paragraph commencing: I'm not satisfied.

PN253

MUNRO J: Sorry. I thought you said Bacon.

PN254

MR STITZ: I'm sorry. I do apologise, your Honours. No wonder you couldn't find it.

PN255

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry. Now which section were you referring to?

PN256

MR STITZ: Paragraph 20 of Lowe and DMA Australia on page 4.

PN257

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Thank you.

PN258

MR STITZ: In simple terms, your Honours, the respondent could and should, bearing in mind its evidentiary onus, have done more than nothing to assist the court in determining the nature of the employment in order to then determine whether the period was reasonable. Your Honours, the evidence that was adduced at first instance which dealt with the experience and the task or role of the appellant were adduced by the appellant.

PN259

It was the evidence of the supervision of the post-graduate student. We have referred to paragraph number 600 in the transcript.

PN260

MUNRO J: I think we have covered that fairly well, haven't we, Mr Stitz?

PN261

MR STITZ: All right. Thank you, your Honour. Your Honours, just on a different note. I was talking about the evidence of Professor Johnson in relation being asked questions about the probation periods at other institutions. That evidence can be found, your Honours, commencing at paragraph 269 wherein he indicated he was not familiar with New South Wales. He was asked at paragraph 270:

PN262

Does it surprise you that they provide for a 12 month period of probationary employment?---It does surprise me.

PN263

He was then asked about Adelaide, and again he expressed a surprise, and that is only a 6 month period. Your Honours, just in closing, may I say this - the concept of probation provides the employer with considerable advantages. They can have a look at the employee and dismiss them during a probation period which in these circumstances, can't then be challenged. The motives can't be challenged in circumstances such as these. The employee is somewhat vulnerable, accordingly.

PN264

If it was a 5 year period, perhaps even more vulnerable. The exercise of the decision to terminate an employee of standing - we are not talking about somebody buttering sandwiches down at the local general store - we are talking about an academic of standing - is not to be taken likely.

PN265

MUNRO J: Indeed, wasn't it in evidence - I've forgotten which of the professors stated this, that in response to a question on how many times has the probation period been used to terminate someone, responded in terms of counting the numbers on a single hand?

PN266

MS GANINO: Yes, sir, Professor Blake.

PN267

MR STITZ: Professor Blake, I'm told, your Honour, and if it assists, I will go straight to that paragraph if I may.

PN268

MUNRO J: Perhaps it will need to be after lunch and it will need to be quick, Mr Stitz. The purpose of the hearing today was the short oral presentation and you will need to get on with. The Commission will resume at 2.15.

LUNCHEON ADJOURNMENT [12.44pm]

RESUMED [2.15pm]

PN269

MUNRO J: Yes, Mr Stitz.

PN270

MR STITZ: That reference, your Honour, was at paragraph 201 of the transcript. Conveniently headed by the Commissioner in paragraph 9, your Honour, is his conclusion and I take your Honours to that, particularly at paragraph 18 where he is - where the learned Commissioner dealt with the Country Fire Authority case. What is a fairly useful summary of a line authority concerning probation periods and point 1:

PN271

The purpose of a probationary period is to provide a period for training to do the work and to allow an assessment to be made for his or her aptitude and capacity to do the work once trained.

PN272

In my respectful submission, the respondent has adduced absolutely no evidence on that point and it is for the respondent to adduce that evidence because the evidentiary onus is on them, and them alone. Where was Miss Green to tell us if or what training was required? Where is Professor Chalmers to tell us what training was required, if it was required? Where is Miss Green to tell us that in her opinion, it takes - - -

PN273

MUNRO J: Mr Stitz, I don't really know that rhetorical flourishes at this stage of your presentation are going to much assist us. They are more likely to test the patience of the Commission.

PN274

MR STITZ: Well, I certainly don't mean to that, your Honour. In any event, that evidence simply has not been adduced. The evidence that has been adduced by the respondent is in general terms only. General policies which do not specifically apply to the individual circumstances of the employee in this case and we don't have an explanation for the failure to call that evidence. It is an evidentiary hurdle over which the respondent had to jump and they didn't leave the ground. Your Honours, unless there are any other specific matters that I can assist you with, they are my submissions.

PN275

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can you just re-state that reference, I thought you said 211.

PN276

MR STITZ: Paragraph 201.

PN277

SENIOR DEPUTY PRESIDENT CARTWRIGHT: 201. Thank you.

PN278

MR STITZ: At about point 6.

PN279

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, thanks very much.

PN280

MUNRO J: Thank you, Mr Stitz.

PN281

MR STITZ: Thank you, your Honour.

PN282

MUNRO J: Mr Williams.

PN283

MR WILLIAMS: Thank you, your Honour. At the outset, I intend to apologise in advance. I didn't expect that the short oral argument would encompass quite as many issues as they have, and I do unfortunately see a need to respond in some detail to what has been put this morning, and I will do my best to do that in a timely fashion and will certainly take notice of the Commission if they think that I am prattling on.

PN284

With respect, at the outset, I will propose to respond to the specific claims that have been made this morning and then perhaps just give a general outline of our submissions in response in general terms. With respect to the evidence of Professor Blake, we say that his evidence was about the circumstances of the employment, the specific circumstances of the employment. We say that his evidence was in the context of the circumstances at the time the employment commenced which is a critical factor that I will get to later.

PN285

Professor Blake is the Chief Executive Officer of the University and he is responsible for ultimately deciding the appropriate probationary period for academics such as the appellant, based on recommendations from a specialised committee that assessed the nature of an applicant's application for the particular position. We say that in the circumstances before you, the policy and procedures were followed and Professor Blake is qualified to give evidence about the nature of the appellant's previous experience prior to his appointment.

PN286

In saying that, I would refer the Commission to paragraph 88 of the transcript which is Professor Blake. You will note that Mr Stitz has previously referred to this particular paragraph. If I could perhaps try and paraphrase what Professor Blake is saying in paragraph 88 and that is that he assessed the application - it was quite a modest one for a level B academic. Now, the opportunity, I suppose - the position wasn't advertised at a level A, but the position was advertised as a level B.

PN287

The applicant - or the appellant, subsequently applied for that position as a level B and we say that on the evidence before - on the basis of the nature of the previous experience, that Professor Blake is quite entitled to considered that it was quite a modest appointment for a level B. On - well, towards the end of paragraph 88 of the transcript on the right hand side of the page, half way in the middle of that paragraph, Professor Blake notes:

PN288

The applicant shows some evidence of interest in those areas and has marginal experience, but there is nothing in the application that will persuade him to waive probationary requirements.

PN289

And he thought indeed:

PN290

A 3 year period would be required to demonstrate the competencies across the range of criteria that had been identified.

PN291

That is, of course, the range of criteria in the position classification standards that you have been taken to this morning. Professor Blake's evidence went to the process of the appointment and the reasons why that 3 year period was, in his opinion, reasonable as the Chief Executive Officer of the University, and as a person that, on his own evidence, has had to make thousands of decisions of this nature.

PN292

His evidence was also called to give detail of the circumstances of the manner in which the policies and procedures applied at the University and we see at paragraph 89 - I beg your pardon, if we go to paragraph 209 and the bottom half of paragraph 209 of the transcript demonstrates that in Professor Blake's opinion, the policy is quite flexible because it does have provision to either waive or shorten probationary period based upon the experience of the applicant in question.

PN293

If we go down to the end of paragraph 210, Professor Blake concluded:

PN294

That on the basis of the document ...

PN295

and that is the appellant's CV that was - - -

PN296

MUNRO J: Is that evidence - allows the extension of the probation period beyond 3 years?

PN297

MR WILLIAMS: I think - - -

PN298

MUNRO J: Was it adverting to that or is that extension to 5 years something that occurs necessarily at the outset of probation?

PN299

MR WILLIAMS: Your Honour, my understanding is the Charles Sturt University policy is that for level A academics the policy provides that the probation period would initially be for 3 years with a possibility of annual extensions up to 5 years. For level B academics and above, the policy provides the probationary period is up to 3 years.

PN300

MUNRO J: I see.

PN301

MR WILLIAMS: So what we are saying here, your Honours and Commissioner, is that there was a policy in place that took into consideration these specific circumstances of an individual application, but in Professor Blake's opinion - and he was the person ultimately charged with making the decision, the application in question didn't warrant a shorter period of probation than the policy provided.

PN302

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It is not suggested that Professor Blake was the decision maker on exactly what the probation period was when the offer was made was it?

PN303

MR WILLIAMS: I think you will find, your Honour, that he accepted the recommendation. I think I'm correct in saying that the ultimate decision is the Vice Chancellors.

PN304

MUNRO J: That is in the termination of the employment.

PN305

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But in the offer, and therefore, the determination of what the period was to be.

PN306

MR WILLIAMS: That is right. I beg your pardon, your Honour, that is quite right. The original committee would have determined what the appropriate would have been and then I think you will find in the evidence, Professor Blake accepted the recommendation of that original committee. Excuse me, your Honour, I will ask from the horse's mouth. Thank you for your patience there. I understand that ordinarily the policy would provide for up to 3 years. Ordinarily the policy will be years and the Vice Chancellor may make a decision to waive or shorten that period on a recommendation from that particular committee.

PN307

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In the situation where the offer letter is signed by the Human Resources Manager, what are we to infer about the decision making process on what the length of the probationary period was to be in this case?

PN308

MR WILLIAMS: I think your Honour, that you would find that that would be standard practice that the Human Resource Manager would make, would sign off on the paperwork after that decision had been made. The Human Resource Manager wouldn't make that decision, or have any part in making that decision, that would be the nature of the hierarchy or the bureaucracy of the institution, I would suggest. I'm getting a nod here from the Manager, Employee Relations.

PN309

I would like to get to this in a little more detail later, but we submit that the authority suggests that regard should be had to the situation at the time the employment commenced and that was why Professor Blake was called. As has been put today, the specific question before the Commissioner in the first instance was whether the 3 year period of probation was reasonable having regard to the nature of circumstances of the appellant's employment.

PN310

As I understand, there is no issue about that, and Mr Britt, at first instance, conceded that the period determined in advance was 3 years. The key point - and this is consistent with the Commissioner's conclusions, was that the 3 year period was needed for two reasons. The 3 year period was needed firstly, so that the university had time to assess the academic's capacity, most particularly in the areas of teaching and research, and secondly, so that the academic in question had the opportunity to meet that criteria as was outlined in the position classification standards and the letter of offer.

PN311

So it is a two-way street. Just to touch on the submissions that were made just after lunch about the question of training, we don't take any issue with the fact that the Commissioner quite correctly found that the specific purpose of this probationary period wasn't so much for training but we do say the Commissioner was correct in identifying that part of the purpose - part of the dual purpose of the probationary period was to provide that opportunity for the academic in question to demonstrate their aptitude and capacity.

PN312

I know that is not the same as training, but that does give them to draw on the resources of the university and nationally, on colleagues, and the like, and the opportunities that may be provided along with that employment to in fact demonstrate that capacity. As far as the evidence going regarding this specific circumstances of the employment, there was also evidence given by the appellant at first instance, or during the proceedings at first instance, about the nature of his previous experience and the - in particular, his curriculum vitae that was attached to his application of employment. I will come back to that a bit later on.

PN313

So what we say is contrary to what has been said today, that there was evidence before the Commissioners to this specific circumstances in question. Fundamentally, the letter of offer provided, that the criteria is in the guidelines and the position classification standards would be a reasonable expectation of what the nature of the job was going to entail. In that letter of offer, as has already been noted, in these circumstances, the appellant was employed as a level B academic.

PN314

It happened that he was employed in a position of a lecturer in Investigations, but that lecturer in Investigations fell within the broader classification as a level B academic. Now, there was some inferences made this morning that that probation could have been gone on for 5 years and I think indeed, there is some suggestion that it might have gone on for 10 years, and I've just explained previously to Munro J, the nature of the policy provides that for a level B academic, the period of probation is up to 3 years and that that was conceded by the appellant in the proceedings at first instance, or I should say, Mr Britt, on behalf of the appellant at first instance.

PN315

If I could refer you to paragraphs 1088 and 1089 of the transcript, we see there that Mr Britt does, in fact, concede that the applicant acknowledged that he was on a 3 year probationary period. That was the maximum period that was determined in advance and that was the period that was in question before the Commission at first instance. As far as the supervision of a post graduate student goes, and the issue that concerned that, the respondent addressed that particular issue at paragraphs 100 to 102 of the written submissions.

PN316

Effectively, what those submissions say is that the appellant conceded in transcript - and that is at paragraphs 648 and 649, that in fact, he had not had any responsibility for supervising a post graduate student prior to the commencement of the employment and I think I correctly recall that Senior Deputy President Cartwright, picked that up this morning, that in fact the appellant wasn't responsible for supervising a post graduate student prior to the commencement of employment.

PN317

Now, we concede, and in the written submissions, I concede, that the Commission did, in fact, err in the sense in that paragraph referred to, that he said:

PN318

The appellant wasn't responsible for supervising a post graduate student during his employment at Charles Sturt University.

PN319

On the evidence, he indeed, was. But what we say, is that does not have any material bearing upon the reasonableness of the period of probation in question given that the Commissioner had to have regard to the circumstances prior to the commencement of the employment. Prior to the commencement of the employment, on the appellant's own evidence, at 648 and 649, he hadn't had responsibility for supervising a post graduate student.

PN320

So in effect, as outlined at paragraphs 100 to 102 of the written submissions, that error that had been referred to, does not have any material bearing upon the outcome of the reasonableness for probationary period given, that this happened after the commencement of the employment. The Commissioner did not err in the situation regarding the supervision of a post graduate student prior to the commencement of the employee.

PN321

MUNRO J: Why do you say prior to the commencement of employment?

PN322

MR WILLIAMS: That is right, your Honour, at 648 and

PN323

649 - - -

PN324

MUNRO J: No, I'm saying, why do you say that is the test?

PN325

MR WILLIAMS: That the situation - to have regard to the situation, your Honour - - -

PN326

MUNRO J: Yes. Is it based on authority?

PN327

MR WILLIAMS: It is indeed, your Honour, that I will get to, and it is a fundamental part of our case. I can refer you to that now, if you like, your Honour, but I certainly did intend to come to that point.

PN328

MUNRO J: Very well.

PN329

MR WILLIAMS: Thank you, your Honour. And that is a fundamental point, and the heart of our submissions, in fact.

PN330

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I had the same questions.

PN331

MR WILLIAMS: All right, I can promise the bench that I will come to that particular issue. So we concede that the Commission did make an error in that - in the manner stated in that he was wrong in saying that the appellant hadn't supervised a post graduate student during his employment at Charles Sturt University. We concede that on the evidence, he did. We also concede - or not concede, we submit that there wasn't much material that went to the nature of that supervision, but nonetheless, that is an error that we say that - and I will come to that - that is an error that does not have any bearing upon the outcome of the reasonableness of the probationary period.

PN332

Throughout the proceedings, we don't shy away from the fact that the evidence did concentrate on the nature of the job as a level B academic as opposed to the nature of the job of a lecturer in Investigations in the Department of Police studies, or howsoever it is called. The evidence was that the type of work performed was consistent with the position classification standards that were identified in the letter of offer and indeed, with exhibit K10, that was tendered on behalf of the appellant, which was the copy of the E-mail about the specific expectations or what was envisaged in the appellant's job as a lecturer in the Investigations.

PN333

That letter has been signed off by Ross Chambers, Dean, Faculty of Arts - this is exhibit K10 that you referred to earlier, and it does clearly say:

PN334

That it is envisaged that the appellant will teach upper level under graduate subjects and post graduate subjects including subjects involving profiling and that all teaching is likely to be in the distance education mode.

PN335

So at that stage, it was envisaged, certainly, that the teaching component of the appellant's job was likely to be in the distance education mode. If we go down to the third paragraph of that E-mail from Professor Chambers, Professor Chambers refers to the fact that the appellant will be expected to undertake research and that he:

PN336

Strongly supported the continuation of the appellant's research and consultancy program, and that some time will be available during teaching period as well as substantial blocks of time during non-teaching periods to give the research the high priority that the nature of the job demanded.

PN337

Just prior to signing off, the Professor notes that:

PN338

The appellant is expected to maintain his current level of activity with regards to research.

PN339

Now, again, we say that this exhibit, K10, does give evidence as to the specific nature of the employment at the time it commenced and that it is consistent with what was put to the Commission that the fundamental components of an academic at level B, are teaching and research, and that was the evidence before the Commission. So what Professor Chambers envisaged, is in our submission, consistent with what the PCS - or the position classification standards envisaged, that accompanied the letter of offer and that the appellant acknowledge throughout the evidence, that these were to be the two main components, teaching and research.

PN340

The evidence that was brought on behalf of the respondent was that it takes time to assess an academic's ability in the areas of teaching and research, and it also takes time for that academic to demonstrate that ability. I, unfortunately, will need to elaborate upon that a little bit later in the submissions. I don't mean to test your patience but that really is another key part of our submissions. So we are saying that contrary to the submissions put this morning, that the appellant was employed as an academic, not as teacher in distance education, or a distance education lecturer.

PN341

It was expected that in his role, that he would have the opportunity, and indeed need to demonstrate, the whole range of functions of a level B academic.

PN342

MUNRO J: The relevant simplicity of that position, Mr Williams, I can understand that is founded almost entirely upon the perception of the classification guidelines for level B academic, and the tenurable character of the position. One point that troubles me is the observation to which we were taken at page 13 of the transcript, paragraph 88, where Professor Blake, speaking of the qualifications, I think, as he assessed them for appointment at level B, concluded his responses in relation to that question by suggesting that:

PN343

Caution is necessary because the person is being appointed at the Police Academy at Goulbourn. It is a partnership arrangement with the New South Wales Police Service and we have to work co-operatively with the Service to ensure that not only does the person fulfil normal academic requirements, but at the same time, has credibility with the principal employer.

PN344

Where is that criterion related to probation or to the classification structure of a level B academic?

PN345

MR WILLIAMS: The short answer, I would expect, your Honour, is that it would be very difficult to tie that in directly to the position classification standard.

PN346

MUNRO J: The reason I'm troubled by it, is credibility with someone who is not the employer and is not entirely clear who is the principal employer. It would seem self evident that the principal employer must be Charles Sturt University, but if the Vice Chancellor of that university is suggesting that the principal employer, for the purposes of assessment of suitability, not only at outset but during probation, is in fact, the Police Academy. How and where do they enter into calculation?

PN347

MR WILLIAMS: I understand unequivocally that the university is the principal employer. That has just been confirmed to me by the Manager, Employee Relations.

PN348

MUNRO J: Well, what do you say about that particular observation? Does it just rest there? It can be a reasonably difficult task, I would have thought, for an academic to serve two masters.

PN349

MR WILLIAMS: I don't think there is any question, your Honour, that the academic is only serving the one master. I would read into that comment by Professor Blake that because there is an external party, if you like, that they have to be particularly confident that the employee in question is going to be suitable. I would suggest it is tied in with general reasons for an extended prior. I can't add to that.

PN350

MUNRO J: Well, Mr Kocsis was not on secondment to - - -

PN351

MR WILLIAMS: No.

PN352

MUNRO J: - - - the Policy Academy.

PN353

MR WILLIAMS: No.

PN354

MUNRO J: The Academy is referred to in his letter of appointment as part of the campus of Charles Sturt. Is that the case?

PN355

MR WILLIAMS: I understand that they are employed by the university to teach police at the Police Academy on policing standards. They are to teach students of the university, I beg your pardon, on policing. So the appellant was employed by the university to teach students of the university in policing studies at that college or campus.

PN356

MUNRO J: Yes. And the Academy is part of the university campus? Perhaps that point is not important, whether it is physically within the obligation in a similar speak, I think.

PN357

MR WILLIAMS: Thank you, your Honour.

PN358

MR CLARKE: Your Honour, I think basically that the - Mr Kocsis was employed by the university to teach in the Diploma of Policing Practice at Goulbourn. We don't call it a campus, but it is at Goulbourn, but I understand that the Academy is also located at Goulburn. That is my understanding.

PN359

MUNRO J: So effectively, he was out based at premises that might in fact, be owned by - - -

PN360

MR CLARKE: That is right.

PN361

MUNRO J: - - - the New South Wales Police, but he was within the establishment and under the direction of the Faculty of Arts.

PN362

MR CLARKE: That is right.

PN363

MUNRO J: Yes.

PN364

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And the students were enrolled in the university.

PN365

MR CLARKE: Yes.

PN366

MUNRO J: Perhaps going back to you, Mr Williams, it is best articulated, I think. The concern I have that has arisen, more or less, fortuitously, is that the possibility that there is as it were, an extraneous line of accountability imposed upon the academic's probation, but not channelled through the Faculty of Arts, raises the question - at least in my mind, as to the appropriate of the mechanism.

PN367

It is more an abstract concern, I have to say, in the context of this case in that it is typified by the comment that to maintain credibility within the Faculty of Arts, or suitable level of academic achievement in response to whatever guidelines or invigilation come from the probation review committee as one thing, but if almost extraneous to that, and perhaps despite achievement of the standard of excellence, or the necessary standards of excellence of - that be the correct way to describe it, relative to the probation review committee, there is a loss of credibility perhaps even because of that standard of excellence.

PN368

My reference to what is here referred to as the principle employer, it raises the question of just how the probation review committee at least, accommodates that demand of the principal employer for credibility and what does it consist of.

PN369

MR WILLIAMS: I can't speak to probation review committee, your Honour. I would suggest that that perhaps isn't a consideration before the probation review committee. My understanding is that there - - -

PN370

MUNRO J: Sorry, is or isn't a consideration?

PN371

MR WILLIAMS: No, isn't. My understand is it is the criteria outlined in the position classification standards and I think that in fact there is a process in place whereby the academic concerned actually - it is not an application as such, it is a summary of achievements in the period leading up to the review, and the academic is assessed upon how he or she has met that criteria in the position classification standards.

PN372

MUNRO J: Well, that is relatively clear and I think with one possible exception, in the evidence, there is something - perhaps it was from Professor Chambers, that except the points against which the probation review committee was to conduct the review or - which Mr Kocsis was invited to respond to the probation committee on the whatever it was - 20 month or 18 month review, and speaking from recollection, I don't know that referred to any aspect of the perception from the Police Academy itself. Well, I think it did not. Is that the case?

PN373

MR WILLIAMS: I will be frank with you, your Honour. I don't know the circumstances about the probation review committee and there is a good reason for that, and that is, that in our submission, what occurred at any of the subsequent probationary review committees - and there were two, my understanding is, one after 6 months and one as you correctly stated, after 18 months - goes to the circumstances after the employment is commenced, and I have purposely not looked at those details because I did not want to confuse myself with the issue of the merits of whether the appellant was treated fairly and the issue of the jurisdiction which was before Commissioner Raffaelli at first instance.

PN374

MUNRO J: Yes. I understand how you put that, and to some extent the question I've just put has intruded as it were, into the detail of the merits, but that appeared to be one way in which one could address this question that is effectively raised, at least in my mind, by that comment from Professor Blake. However, I think we best leave it at that point, Mr Williams.

PN375

MR WILLIAMS: Okay, thank you, your Honour. We say then that Professor Blake was brought to give evidence on the specific circumstances of the employment in question. He did in fact, do that. Now, it was referred this morning the evidence of Professor Johnston and Dr Blackford, we concede that Professor Johnston and Dr Blackford didn't have any knowledge of the applicant's personal - the appellant's personal circumstances and no knowledge of the appellant.

PN376

However, there was a good deal of thought put into the running of this case on the grounds that the respondent was well aware of the onus that rests upon it to establish affirmatively that the period was reasonable. The reason that Professor Johnston and Dr Blackford, was to go to the requirements, the inherent requirements of an academic level B position, that is the fact that teaching and research are components, as I've said earlier, take time to assess and time to demonstrate ability in.

PN377

Professor Johnston significantly, or relevantly, was the Deputy Vice Chancellor at Charles Sturt University some years ago. He was the Deputy Vice Chancellor at the time when these policies were being developed, and he was brought to give evidence on the reasoning behind why there was a need for this extended probationary period. The Commissioner notes Professor Johnston's evidence at paragraph 26 of the decision, and Professor Blackford was brought to give evidence because he was the Executive Director of the Association that I'm currently employed by.

PN378

At the time when the relevant unions and the Association representing the universities negotiated an outcome which went to the structural efficiency principle wage rates back in the late eighties and early nineties, and the outcome of those negotiations was an agreement between the unions and the employers that this was a reasonable period of probation, and Dr Blackford was brought to give evidence upon how and why that policy was developed on the basis of long debate over the nature of academic work by senate committees and the likes, and he was there to demonstrate what we would say, is the unique nature of this type of employment.

PN379

So we concede that the evidence of Professor Johnston and Dr Blackford wasn't intended to go to specific circumstances of the employment, it was intended to go to the circumstances of employment as a level B academic and we say that the Commissioner correctly identified that and took that into consideration. If the Full Bench determines it necessary, I would respectfully invite the Full Bench to consider the evidence that the Commissioner had regard to at paragraph 26 of the decision which was certain parts of the transcript of Professor Johnston and Dr Blackford's evidence in certain parts of their witness statements that were tendered as exhibits.

PN380

On that basis we say that it was a reasonable conclusion, that given the nature of teaching and research, that the evidence was in fact, overwhelming, that this extended period was required and necessary for both parties. Now, in support of that submission, I would use the example of the appellant's own PhD. In his CV that he attached to the original application for employment which was attached as an exhibit. In fact, it was tendered as an exhibit in its own right.

PN381

It was exhibit K3. I beg your pardon, that is not correct. It is exhibit CSU4, and this is the amended offer of employment and also attached to it is the applicant's CV as at - it is the CV that he provided with the application for the job in November 1998, and I would like to say there that with respect to the PhD, the appellant notes on that CV that he expected to complete that PhD in December 1998 and on the evidence before the Commissioner at the time of the termination of his employment, he still hadn't completed that PhD and in fact at the time of proceedings, although he had completed the PhD, he hadn't officially had it awarded to him.

PN382

We say that is a very pertinent example of the time that is needed for both parties, firstly for the appellant to finish the work that he has suggested he would undertake. In actual fact, that has taken more than 2 years longer than he initially anticipated. I would also like to take you to the transcript on the appellant's own evidence at paragraphs 761 to 763 and Mr Britt's re-examining the appellant in this particular section of the transcript and at paragraph 761, Mr Britt asks - or refers to appellant to the CV that I just referred you to a moment ago and at paragraph 762 he refers to two publications that were noted on that CV in November 1998 that they were yet to be published.

PN383

He asks the question were those documents or publications actually published, and the answer was:

PN384

Yes, one of them is being published in two academic meetings now.

PN385

And this is March 2001.

PN386

And the profiling of the property theft, that has been accepted and is in the process of being published right now.

PN387

This is more than 2 years after the appellant has stated on his CV that these publications are under review or to be published. We say that is a perfect example of the time that is needed to produce this research. If we go to paragraph 763, the appellant acknowledges:

PN388

When do you call this first published?---2000. It is a very slow process but I believe it would have roughly January 2000.

PN389

This is a publication that, on the CV, was in fact noted.

PN390

MUNRO J: I don't know the CV is in the material as part of the appeal book, is it?

PN391

MR WILLIAMS: No, no, it may well not be. I brought spare copies, I believe, your Honour, if that will assist the bench. These are spare copies of CSU4. The point I'm making is that the publications that are under "Editorial Review" in November 1998, one was published the appellant believes, in January 2000, and the other had been accepted and was in the process of being published right now, which was April 2001, or March 2001, I beg your pardon. I'm suggesting that on the appellant's own evidence, the nature of this research work is such that it does take a lot of time to produce research material and that in fact, as Munro J suggested earlier on this morning:

PN392

It is the situation of publish or perish, that is the nature of academic work.

PN393

So it wouldn't be fair to not give the appellant the opportunity to have that work published and then assessed. As far as the evidence that goes to the policies and procedures that apply at other universities, I would rely in general terms on the written submissions as paragraphs 118 to 124 of the respondent's submissions. In sum, we say that at paragraph 33 of the decision, the Commissioner correctly identified the respondent's submissions as to the policy and procedures that were in place at the great majority of higher education institutions throughout Australia at the time the appellant commenced employment.

PN394

The Commissioner also noted the appellant's submissions regarding the shorter periods at some other institutions and the Commissioner noted that he did consider those various submissions but at paragraph 33 of the decision, he concluded that he was influenced by the specific - that he was:

PN395

Not influenced by the situations elsewhere, but was influenced by the specifics of Mr Kocsis job.

PN396

We say that the Commissioner was correct in making that assessment. The issue before the Commission was whether the period was reasonable having regard to the nature and circumstances of the appellant's employment, not whether the provision - the period was reasonable having regard to the circumstances at other institutions. In any event, we say that those exhibits that were tendered before the Commission, of the policy or agreement at the University of Newcastle, the University of Sydney, the University of New South Wales, the University of Adelaide, at Curtin University, were, apart from Adelaide University, they were either certified or put in place after the appellant commenced employment.

PN397

In actual fact, at the time the appellant commenced employment, there was one institution in Australia that did not have the extended period of probation as either a policy or a term of agreement, and that was the University of Adelaide.

PN398

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Only one?

PN399

MR WILLIAMS: Only one, in my submission, your Honour. That is at the time that the appellant commenced employment. The University of New South Wales, and the University of Sydney certified agreements were - they were certified some time in 2000, I believe, but certainly after March 1999 when the appellant commenced employment. Your Honour, the written submissions elaborate on them a bit further if you would like to - I've relied upon those paragraphs of the written submissions rather than go too much into that detail now.

PN400

We say that the evidence before the Commission was that the policy at Charles Sturt University was consistent with the standards adopted at other universities at the time, based upon a long history debate as to the reasonableness of the period. It goes back to Dr Blackford's evidence. Also, I would note that in the submissions before the Commissioner in the first instance, it was noted that the Curtin University agreement which is marked as K4, applies to the Kalgoorlie Campus VET Sector, and in actual fact, that is not the actual agreement that applies to Curtin University as such, this is a VET Sector agreement, not a higher education agreement, but that is elaborated on in the written submissions as well. Now, I would like to take you to - - -

PN401

MUNRO J: Vocational education and training?

PN402

MR WILLIAMS: That is right, your Honour, as opposed to higher education. You don't mean to be - to make a distinction on that basis, but it is a clear distinction at Curtin University, in fact.

PN403

MUNRO J: It is simply the anagram that I was trying to penetrate, Mr Williams.

PN404

SENIOR DEPUTY PRESIDENT CARTWRIGHT: As opposed to Veterinary Science.

PN405

MR WILLIAMS: I beg your pardon, that is right, yes. If I can take you, for example, in my respectful submission, the examples that were brought to the Commission from certified agreements, and I would take you to exhibit K5 which is the University of Newcastle academic employees enterprise agreement 2000, if I can take you to clause 32(1) of that agreement which is - - -

PN406

MUNRO J: I don't know that it is before us, unless it was in the appeal book.

PN407

MR WILLIAMS: I beg your pardon, okay. That is a document of the Commission, but it reads:

PN408

The parties agree that for staff in their first full time or part time appointment, a probation period of up to 3 years shall apply. As a condition incidental to employment on probation, a staff member shall be advised of and given the opportunity to respond to any adverse material about the staff member which the university intends to take into account in a decision to terminate employment, upon or before the expiry of the period of employment.

PN409

So the University of Newcastle agreement that was tendered before the Commission as an example of an institution that applied a lesser period of probation, in fact provides for a 3 year period of probation. The University of Newcastle goes on at clause 32(5), and I make specific reference to the exclusions provided by the Act and regulations, and it reads:

PN410

That for the purpose of only being eligible for recourse, under Division 3 of the Workplace Relations Act 1996, for unfair determination, for the purpose of section 170CC(1)(b), a reasonable period of probation shall be no greater than 12 months.

PN411

Now, my reading of that - and we didn't hear any evidence from any of the personnel at the University of Newcastle to explain how this agreement in fact, works, that it appears to me as though the University of Newcastle still consider that they need 3 years to make an assessment about an academic aptitude and capacity but they do acknowledge that after 12 months, or they would only make a jurisdictional objection such as the one before the bench now, in circumstances where the period of probation was 12 months or less.

PN412

In my respectful submission, I'm not certain that the parties in certified agreement in fact can do that, until the Commission, whether it has jurisdiction under those circumstances, because the Commission will always have to have regard to the nature and circumstances of the employment in question, and it may well be that in some circumstances, a 12 month period in fact isn't reasonable. The bottom line is that those exhibits were tendered without anyone coming and speaking to them.

PN413

The respondent brought evidence from Professor Johnston and the agreement that was in place at the institution in which he was the Deputy Vice Chancellor, which is the University of Technology, Sydney, and he actually spoke to his agreement and his policy and the need for the 3 year period, and explained how that policy and procedure worked, whereas these are just documents that stipulate there is a short period of probation. There is no explanation as to how that particular institution goes about assessing the individual academic's aptitude and capacity.

PN414

MUNRO J: The probation review committee referred to in the personnel policy guidelines - - -

PN415

MR WILLIAMS: At Charles Sturt University, your Honour.

PN416

MUNRO J: - - - at Charles Sturt, yes, has its proceedings described in clause 5, is there any agreed source or any aspect of the evidence that indicates how that committee is to be constituted, or in fact, was constituted?

PN417

MR WILLIAMS: I will just take instructions here, your Honour. Apparently at 4.3, on - are you looking at exhibit CSU2, your Honour?

PN418

MUNRO J: Yes, I get it - it is the attachment to Mr Kocsis' statement.

PN419

MR WILLIAMS: 4.3 it lays down that:

PN420

The Dean of the faculty shall establish a standard committee for each school to be known as the probation review committee, comprising -

PN421

and then there is - - -

PN422

MUNRO J: Sorry, 4.3?

PN423

MR WILLIAMS: Are you looking at the Academic staff continuing appointments probation and tenure policy?

PN424

MUNRO J: I'm looking at Guidelines on probation and tenure for academic staff.

PN425

MR WILLIAMS: I beg your pardon, your Honour.

PN426

MUNRO J: Was there another exhibit?

PN427

MR WILLIAMS: There is. It is CSU - it is marked in proceedings as CSU2, your Honour.

PN428

MUNRO J: CSU2. And what is the reference to it?

PN429

MR WILLIAMS: It is the Academic staff tenure policy.

PN430

MUNRO J: At 4.3, is it?

PN431

MR WILLIAMS: 4.3, yes, your Honour.

PN432

MUNRO J: CSU2 at paragraph 4.3?

PN433

MR WILLIAMS: That is right.

PN434

MUNRO J: Well, that is sufficient, I think.

PN435

MR WILLIAMS: Thank you, your Honour.

PN436

MUNRO J: Perhaps you might just read on to transcript, the passage you are relying on? Could you just read how it goes, 4.3?

PN437

MR WILLIAMS: At 4.3, under the heading Probation review committees:

PN438

For the position of senior lecturer, lecturer, associate lecturer, which is levels C, B and A, the policy provides that the Dean of faculty shall establish a standing committee for each school to be known as the probation review committee, comprising the head of school, one member of the professoriate of the faculty, a nominee of the Deputy Vice Chancellor who is not a member of the faculty and is a member of the academic staff, and for each probationary review, a member of the tenured staff of the university from the appropriate discipline.

PN439

MUNRO J: I see, so it is a four member committee. And is that a standing committee, or does it vary from - - -

PN440

MR WILLIAMS: It is referred to as a standing committee.

PN441

MUNRO J: I see, yes, thank you.

PN442

MR WILLIAMS: Just to finish on the situation at other universities, I would want to refer you to the evidence of Professor Johnston and Professor Blackford. Professor Johnston at paragraph 358 and 358 of the transcript and in particular 358. Professor Johnston was asked the question, whether to the best of his knowledge:

PN443

Would more universities have longer than the 3 year period?

PN444

He explained that:

PN445

Yes, to the best of his knowledge, that was the case.

PN446

At paragraph 504 of the transcript, Dr Blackford was asked to comment on the situation as he understood it at the end of 1998, which is when he resigned as Executive Director of the Association, and just prior to the commencement of the employment of the appellant, and in his understanding, he would be:

PN447

My understanding at the end of 1998 is that it was universal or virtually so. I can't think of an exception to have introduced policies that accord with this agreement. In other words, policies provide as a standard, the maximum 3 years probation above level B.

PN448

And Dr Blackford acknowledges that he can't comment in detail beyond 1998. Again, I harp back to the fact that regard should be had at the time of the commencement of the employment. I think I have covered the supervision of the post graduate student and the issue about the mistake there. As far as the position of classification standards go, the respondent acknowledges that it is a generic statement and that it does apply to all academic appointments and reiterate that, again, the appellant was appointed as a level B academic and that on his own evidence, that was the type of work it was envisaged that he would do and on his own evidence, it was the type of work that he in fact, did do.

PN449

As far as the claims about the risk of setting a precedent of this nature, I take the bench to paragraphs 27 and 28 of the Commissioner's decision and the Commissioner specifically refers to his conclusion at paragraph 27 about the need for this period of time to make an assessment. The Commissioner specifically refers to the situation of a level B academic. He does not make any comment about A, C or D academics that this Commission really only goes to the reasonableness of the period for a level B academic.

PN450

Further, at paragraph 28, the Commissioner specifically states:

PN451

That the evidence of three senior academics satisfy me that it does take a period of years for new academics to demonstrate the appropriate level of ability to carry out their duties.

PN452

So he is quite specific in identifying that this isn't necessarily going to be the case for all level B academics, or indeed, for all academics. It will always depend upon the nature of the experience prior to the appointment. Earlier this morning you were referred to the paragraph 23 of the decision and the position classification standards at 1.15 in the middle of page 11, paragraph 23 of the decision, and it was said:

PN453

The equivalent of research may be seen as production of works for exhibition, dramatic and musical performances on the stage, screen and radio, or any other medium.

PN454

What was neglected was the words preceding that which clearly say that:

PN455

In visual and performing arts, the equivalent of research may be seen as.

PN456

And so these position classification standards differentiate between, I suppose you could phrase, the normal type of research academics for the normal type of disciplines as opposed to visual and performing arts. It is quite clear that the appellant was not employed to be an academic in visual and performing arts and that this does not have any bearing upon the nature of his job at all.

PN457

As far as the claims made about - and I've got here in inverted commas, so I trust that I've captured this correctly, that "someone had it in for the appellant" as far as the review committee goes, we say that there no evidence of that, that that is just a claim made by the appellant. We would have to hear further evidence from the other parties involved and that would indeed go to the merits of the case, not to the issue of jurisdiction.

PN458

We would deny the claim that the appellant was treated unfairly in the manner that has been claimed. The issue before the Commission was whether 3 years was reasonable. With respect to the claims that the respondent somehow compromised its case by not bringing forward the evidence of Professors Chambers and I believe, Collins, or Greene as well. As I alluded to earlier, that was:

PN459

A decision that was carefully considered and it was made for the reason that we did not want to confuse the Commissioner with the circumstances after the employment commenced. We attempted to demonstrate the nature of the employment as a level B academic at the time the employment commenced. And that is what the appellant was. We say that the witnesses that were eminently qualified to give evidence as to the nature of the job as an academic level B at the time the employment commenced.

PN460

At this stage, I might refer the bench to some authorities on that point. I would like to refer the further bench to the case of Potter v Australian Capital Territory 2. It is a decision of Full Court of the Federal Court, (1974) IR 403, and I take the bench to page 409, and the Court was required to determine:

PN461

Was 2 year's probation reasonable having regard to the nature and circumstances of the employment?

PN462

Underneath that heading, or underneath that question at the second paragraph, the Full Court agreed with Moore J:

PN463

The reasonableness of the probation period must be assessed having regard to the situation at the date the employment commenced.

PN464

We say that that is consistent with Country Fire Authority case that the Commissioner followed, and I will speak to later, but that is where Senior Deputy President Watson took that dot point from his - he has taken it from Potter, and in his decision, he refers to Potter. It is quite clear from Potter that regard to the situation must be had at the date the employment commenced. That is why we brought the witnesses that we did and we didn't bring the witnesses that we didn't because the evidence of those witnesses would have gone to the employment after it commenced.

PN465

We brought the Chief Executive Officer of the university to give evidence about the circumstances at the time the employment commenced in his capacity as Chief Executive Officer. Reference was made to the case of Nicholson v Heaven and Earth Gallery, which I'm sure I don't need to speak in any great detail on, and we do agree with the proposition that the nature of the job is the most important consideration.

PN466

Again, in Senior Deputy President Watson's decision in Country Fire Authority case, his Honour does make that point and does make reference to Nicholson. We say that the nature of the appellant's job was a level B academic and that that is fundamental to the success or otherwise of our case. Further to that, the exhibit K10 that the bench was referred to earlier shows what Professor Chambers' expectations of the appellant's job were.

PN467

As I submitted earlier, those expectations were that the appellant would be engaged in tasks that went to teaching and research. We are saying that - being very aware of the onus that rests upon the employer in being aware of the beneficial nature of the legislation, that the respondent carefully and with great consideration, attempted to prove on the objective facts, that the core functions of the appellant's employment were teaching and research and that the nature of those functions is such that warrant that extended period of probation.

PN468

So the respondent was very mindful of Nicholson and very mindful of Potter in the way that it ran its case at first instance. The decision in Lowe was referred to, and I haven't got a copy of that decision, but I do note that a paragraph 1108 and 1109 of the transcript that this particular case was brought to the attention of the Commissioner at first instance. Lowe v DMA at paragraph 1108, and at first instance the case was distinguished on the facts and that the issue before the Commissioner in Lowe was the reasonableness of the 6 month period for a consultant and we say that there was a fundamental difference between the nature of the work of a consultant and the nature of the work of an academic.

PN469

We also distinguished by the fact that the applicant in that case had extensive experience that he brought to the employment prior to commencement as opposed to what we said was the relative inexperience of the appellant in question here. You were also referred to the decision in Faruqi.

PN470

MUNRO J: May we take it that we have in the collection of authorities which you have referred plus Lowe, are relatively comprehensive coverage of at least all the Full Bench decisions of the Commission that deal with regulation 30B,

PN471

or - and Full Bench level, or Full Court level decisions of the Federal Court?

PN472

MR WILLIAMS: In answer to that, your Honour, and I will get to this in a moment, it was put to Commissioner Raffaelli at first instance, that the appropriate authority on regulation 30B, and in particular the reasonableness requirement regulation 30B when the period is more than 3 months, that the appropriate authority was the Country Fire Authority case of Senior Deputy President Watson. Now, I understand that is not a Full Bench decision, but what Senior Deputy President Watson does in that decision, is summarise what he considered, or what was put to him, were the relevant authorities on the question of reasonableness.

PN473

The decision in Country Fire Authority case directly addressed the question of reasonableness for a period that was longer than 3 months and he conveniently summarised the authorities on that issue.

PN474

MUNRO J: I can understand that point easily enough, Mr Williams. What I'm seeking some assurance on is, has the Commission got to undertake its own researches or are there no Full Bench decisions that have dealt with the question of probation periods for academic tertiary level staff? It is either yes or no.

PN475

MR WILLIAMS: I understand.

PN476

MUNRO J: I know we have Senior Deputy President Duncan v Faruqi, or Harrison and SDP. I thought I saw somewhere a decision on which Vice President Ross resided, but am I wrong on that?

PN477

MR WILLIAMS: I recall you saying that, your Honour, and I'm not aware of that decision.

PN478

MUNRO J: So far as you are aware, there are no Full Bench's that have alluded your research efforts?

PN479

MR WILLIAMS: No, and they have been extensive, your Honour.

PN480

MUNRO J: So far as you are aware, Potter v Heaven and Earth Gallery are reflective of the Industrial Relations Court's coverage of the subject.

PN481

MR WILLIAMS: I would add, your Honour, Mann v State Rail Authority. I can give you a reference for that. (1999) FCA 273, so that is not - that is not in fact a correct reference. That would, I would say, comes from the internet.

PN482

MUNRO J: That will find it. And whose decision is that?

PN483

MR WILLIAMS: Now, that was a decision of the Full Court of the Federal Court, Ryan, Moore and Marshall JJ, and that is at (1996) 66IR 298. The relevant part of that decision is at page 303, and effectively what Ryan Furney Stockfeeds provides is that:

PN484

Nicholson does not purport to set down any rule of universal application. Each case has to be considered according to its own circumstances. An employer intending to rely upon regulation 30B may well be advised to adduce evidence as to why the probation period in the employment in question is reasonable. Having said that, there is force in the submission of the respondent's counsel that regard should be had to the provisions of the award although its terms are not necessarily determinative.

PN485

And I would add, that this is referred to in Senior Deputy President Watson's decision. There is a decision of Judicial Registrar Farrell, in Cook v Commissioner of Police.

PN486

MUNRO J: If they referred to in SDP Watson's decision, then that is sufficient for my purpose.

PN487

MR WILLIAMS: Thank you, your Honour.

PN488

MUNRO J: It is the ones that aren't referred to I want a conspectus of what you say is - - -

PN489

MR WILLIAMS: I suggest from memory, I'm not certain if Ryan v Furney Stockfeeds were. I believe that Mann v State Rail Authority was referred to in Senior Deputy President Watson's decision.

PN490

MUNRO J: Then - - -

PN491

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I think Furney's is as well.

PN492

MR WILLIAMS: I beg your pardon?

PN493

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Ryan v Furney's is as well.

PN494

MUNRO J: So there have been no decisions at Court level since Country Fire Authority to your knowledge that I refer to?

PN495

MR WILLIAMS: To my knowledge and understanding, that is the authority at the moment on the reasonableness for the purposes of regulation 30B, and it was certainly - - -

PN496

MUNRO J: Could I take you to another point that, Mr Williams, the proposition that I put to Mr Stitz as to the task of the Full Bench should move to appeal be granted, was to the effect that whether or not the employment in this instance was excluded, or was excluded by regulation 30B, entails a determination of the jurisdictional fact that on the authority of Pawel, that is P-a-w-e-l v Samatino and perhaps something else, I can't remember which one. Essentially that means it is a matter for the Full Bench to determine the point for itself. Do you demur from that proposition?

PN497

MR WILLIAMS: I don't, your Honour, no.

PN498

MUNRO J: Yes. It is likely at variance with what you have put I think, in earlier submissions.

PN499

MR WILLIAMS: Yes, I understand that, yes. The point of my submissions with respect to the principles were that if the Full Bench does indeed determine that it has to make a determination itself on these issues, that the test, if you like, is whether the conclusions reached by the Commissioner at first instance, were so unreasonable that a reasonable Tribunal wouldn't have reached the same conclusions.

PN500

MUNRO J: Yes, well, that is where you would seek, I would have thought, to lead the Commission into error, if we adopted that course.

PN501

MR WILLIAMS: I certainly don't mean to do that, your Honour.

PN502

MUNRO J: One of the authorities alluded to in Pontel - I can't remember whether it is Miller or - I think it is Miller. That is the very question that the Full Bench in Miller set itself, I think, whether or not there was error and my understanding of what the Full Court found in Miller was that effectively the Commission had to determine that point for itself, but at least if it has not done that then when one reads through the array of guidance that we have from the High Court and the Full Court, determinations and jurisdictional fact are a matter for the Court or the Full Bench and not simply matters of forming a view about whether or not there was an error in the decision of first instance.

PN503

MR WILLIAMS: Thank you for that instruction, your Honour. I suppose in defence I say that in Pontel, it was noted that the distinction can sometimes can be elusive and I unfortunately, it may have alluded me on this occasion, but I certainly, or we certainly have come to these proceedings on the assumption that the Full Bench may well decide to make a determination for itself on the evidence that was before the Commissioner at first instance and we don't back down from that and would invite the Full Bench to make that determination if it considers - - -

PN504

MUNRO J: I mean, what I'm putting to you is that on the authorities which are very broadly alluded, the obligations on the Full Bench if it does not do that, it is not sufficient simply to express a view about whether the decision at first instance was reasonably open to the Commissioner, which I think is the direction in which you would seek us to go following Pontel.

PN505

Pontel more or less, I think, was to the effect that the matter being a question of discretionary judgment it was effectively reviewable for error only if that discretionary decision by the Commissioner was one that no person reasonably directed could have reached, effectively. In this instance, it is not a matter of discretionary judgment, it is a matter of finding of a jurisdictional fact albeit it one that invites an assessment of whether or not a particular probation period is reasonable.

PN506

The distinction in that sense, I suppose, if not elusive, at least is difficult to get one's mind rapidly around, but it is a finding of jurisdictional fact based upon an assessment of reasonableness, therefore in the same way as a finding of an industrial dispute may be based upon an assessment of genuineness. It is clear that it is a matter for the Full Bench to determine a jurisdictional fact of that kind or it is equally readily done and has been done by the High Court because it is a finding of jurisdictional fact. Yes, I think we are all more or less agreed.

PN507

MR WILLIAMS: Thank you, your Honour, I certainly didn't intend to lead the Commission down a wrong legal path

PN508

and - - -

PN509

MUNRO J: I'm grateful for that.

PN510

MR WILLIAMS: And I certainly don't want to debate that point with you, your Honour, I'm grateful for the education.

PN511

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Nevertheless, we admire your discretion in the choice of cases you have presented.

PN512

MR WILLIAMS: Well, I do think - - -

PN513

MUNRO J: Can't blame you for Miller then, can we?

PN514

MR WILLIAMS: It - going on Wilkinson v Skipper Aviation though, it quite clearly - and I believe you sat on that bench, your Honour - - -

PN515

SENIOR DEPUTY PRESIDENT CARTWRIGHT: You have got all three of us, one way or the other.

PN516

COMMISSIONER HARRISON: No, no, two of us. Two out of three ain't bad.

PN517

MUNRO J: Two out of the three. You wrote the rest in by attempting to get Pontel.

PN518

MR WILLIAMS: Yes, I must admit, I did - I suppose I fell upon that decision and then the question came into my mind whether this was in fact, a decision where the principles in House v the King would apply, and that was a genesis of my submissions and perhaps I got a bit imaginative by bringing in Pontel, but in any event, we certainly appreciate the direction.

PN519

MUNRO J: I think it is clear enough, Mr Williams, that all of those of things need to be read with a fairly nice set of distinctions in mind once you find the word "reasonable", and indeed the passage that is taken from Wilcox J or Chief Justice as then - I can't recall which, suggests that it is whether the decision maker at first instance thinks the matter is reasonable. That followed to slavishly might also lead a Full Bench trying to apply House principles into error, but provided you are not deliberately trying to lead us there and if we go there ourselves via our own volition, then you may be forgiven.

PN520

MR WILLIAMS: Thank you, your Honour. You were talking just before we spoke about those principles about Full Bench authorities on the reasonableness of academic probationary periods, and there is one that I have there before you which is Faruqi v Queensland University of Technology. You referred earlier to the decision of Commissioner Bacon at first instance that that decision was in fact, was appealed, and the decision you have there before you is the Full Bench decision print SO878.

PN521

It is quite an interesting decision. If I take you to paragraph 8 of that decision and your Honour, in answer to your question earlier about Full Bench authorities on the question of reasonableness for academic probation periods, in my research, this is as close as I came. To give you a little bit of background, the decision in Faruqi in first instance involved an academic level C who was initially appointed on a 3 year probationary period.

PN522

He was terminated at the end of that 3 year probationary period and took the opportunity to seek a review of that decision and he effectively was reinstated and placed on a further probationary period of 12 months which was initially 6 months with the possibility of another 6 months extension. Commissioner Bacon at first instance determined that he didn't have to consider the reasonableness of that first 3 year period, that he only had to consider the reasonableness of the 12 month period following Mr Faruqi, or Dr Faruqi being re-employed by the university.

PN523

On reviewing that decision, the Full Bench in this case here, determined that Commissioner Bacon was quite correct in determining that the only period in question as far as reasonableness goes, was the 12 month period, not the 3 year period. So in Faruqi, it was a 12 month period that was tested, not 3 years, but we take some heart at paragraph 8 where the Full Bench says:

PN524

That it been necessary for them to have decided themselves about whether this period ...

PN525

and that is the year probationary period

PN526

was reasonable, that they would have concluded it was.

PN527

And that is as close as I have come in my research to discovering a Full Bench authority on the reasonableness of academic probation periods or 3 year probation periods, I should say. What we do have, is the decision of then Deputy President Duncan, in Hornby v Canberra Institute of Technology, which you also have before you, and in that decision, Deputy President Duncan as he was then, determined that the 3 and a half year period of probation upon which Mr Hornby was employed, was in fact, reasonable for the purposes of regulation 30B.

PN528

I suppose while I have got you there at Hornby, we go right to the end and the last paragraph, just before determination, at page 12 of that decision:

PN529

At the date of the appointment a lengthy probation period up to 3 years was possible, that being so, I would not hold that the date of the appointment even in the Graham context was too short.

PN530

He has emphasised that the judgment has to be made at the time of the appointment which required Deputy President Duncan to find the fact that the assessment decision was made some 16 months into that 3 and a half year period, was irrelevant. That supports the submissions I was making earlier as well, about the authority of Potter which states that you, the Commission is required to have regard to the circumstances at the time of the employment. What happens after that is irrelevant as Deputy President Duncan found.

PN531

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, presumably that comes from the wording of the regulation which requires that the probation period is determined in advance which has been held to be in advance at the employment.

PN532

MR WILLIAMS: That is right, your Honour. That would be my submission.

PN533

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So at the time of offer.

PN534

MR WILLIAMS: That is right, yes.

PN535

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And therefore are you saying to us that given that the period of probation has to be determined in advance, the question of whether it is reasonable is to be based at that point? That is the point of offer?

PN536

MR WILLIAMS: I think the wording is at the date the employment commenced. That is from Potter which referred to Nicholson as well. We would be relying strongly on the authority in Potter, that that is what is in fact, required. I will get to Senior Deputy President Watson's summary of that in Country Fire Authority case. While we are on that issue, I might address that there was a case Previsic v Australian Quarantine Services. Quarantine Inspection Service, which is print 6753.

PN537

This was put to the Commissioner at first instance. Unfortunately I didn't expect that I would need to provide copies of this, but I might refer to it now. It is a decision of Commissioner Whelan. It is November 1997 and Commissioner Whelan looks at the authority in Potter's case and at page 8 of that decision, cites the relevant areas of Potter that I have referred you to earlier, and comes to the conclusion that she rejected Mr McKenny's submission:

PN538

It is appropriate to consider the circumstances which arose after Mr Previsic's appointment in determining the reasonableness of the probationary period.

PN539

So Commissioner Whelan there, I understand, it is a single member of the Commission as opposed to Full Bench, but she quite clearly has applied the principles in Potter and made a conscious determination that what occurred after the commencement of the employment relationship should not be given any consideration. I say that that is a correct interpretation of the authority in Potter, that that is the reasonableness of the period as determined in advance of the employment relationship which, by its very nature, is prior to the commencement of the date of the employment.

PN540

I might go to the Country Fire Authority Case now, if I may, and it was dealt with in submissions. In fact, I withdraw that, I will come to the Country Fire Authority a little bit - in a moment. That is all I have to say with respect to the specific nature of the claims made this morning, but I would now like to take the opportunity to just give a broad outline of the respondent's submissions and invite the bench to pull me up if you think that I'm going over material that you don't need to hear. As I said at the outset, given the way that the proceedings have occurred today, I do feel obliged to respond in kind.

PN541

MUNRO J: Well, I don't know that there is any point in repeating what is already in the written submissions, Mr Williams - - -

PN542

MR WILLIAMS: Okay, your Honour.

PN543

MUNRO J: - - - simply out of a desire to respond in kind. I think the most useful part of the time if need be, if Mr Stitz is to have a reply, it would be on the points of law. I think you can take it that the Commission will familiarise itself with the content of the written submissions.

PN544

MR WILLIAMS: I am very well aware that the Commission does have an understanding and knowledge of those submissions, going on the nature of the questions that have been from the bench so far today, so for that reason, I won't elaborate on the written submissions. I will just quickly if I may, just quickly flick through what I have down here to make sure I haven't missed anything.

PN545

We effectively say that the Commissioner directed himself correctly by applying the principles in the Country Fire Authority case. That is dealt with in the written submissions of the respondent. I harp back again, to the authority in Potter, given the nature of some of the questions that have come from the Full Bench today, particularly with respect to the review, the probationary review that occurred throughout the employment.

PN546

We reiterate that the Commissioner correctly identified that the most important consideration to assess was the nature of the job and that he correctly assessed that nature of the job as being consistent with that of a level B academic which was outlined in the letter of offer and the position classification standards that we have gone to. I would refer in particular, paragraphs 54 to 68 of the written submissions about the nature of the appellant's job, and in particular, I would add that on the evidence, and as is in the written submissions there, references to the transcript demonstrate that in fact, the tasks and duties that the appellant did undertake after he commenced employment, were consistent with those that was envisaged in both exhibit K10 by Professor Chambers and the position classification standards as outlined by the Commissioner in the decision.

PN547

We say that the appellant acknowledge during proceeds that he understood the probationary nature of the position being offered and the need to address the criteria in the position classification standards, and in particular, the need to demonstrate skill in the areas of teaching, research, administration and service to the community. That is at - for your assistance, the evidence at paragraphs 731 to 749 of the transcript.

PN548

I don't understand that it is in dispute that the areas of teaching and research were the primary responsibilities of a level B academic and were indeed, the primary responsibilities of the appellant here in question. As I said earlier, the nature of the evidence brought by the respondents was on that basis. So in sum, we say that the Commissioner didn't err by finding the appellant's employment was to be as a level B academic.

PN549

I reiterate that the Commissioner correctly noted that he had to have specific regard to the entire circumstances of the employment and not merely the circumstances of the position held, and that is referrable to Senior Deputy President Watson's third dot point and I believe again, goes back to Potter at page 409. Given that the entire circumstances as the Commissioner was required to have regard to, is exactly that, not just the position held. So we say that the Commissioner directed himself correctly on that principle.

PN550

At paragraph 32 of the decision I believe, at the last sentence in paragraph 32 of the decision after he has given consideration to Senior Deputy President Watson's third dot point, the Commissioner concludes that he is:

PN551

Still satisfied that given Mr Kocsis' job, the university was acting reasonable in requiring a period of 3 year's probation.

PN552

We say that at paragraph 18 of the decision, the Commissioner correctly identified that:

PN553

It is relevant to consider a probationary employee's previous experience in assessing the entire circumstances of the employment.

PN554

And that is referable to the decision of Senior Deputy President Watson in Country Fire Authority case whereupon Senior Deputy President refers to the decision of Cook v Commissioner of Police. We say, in as strong as possible terms, that the nature of the appellant's previous experience was the subject of extensive submissions from both parties during proceedings and that on the evidence that the appellant did in fact, have limited experience prior to the commencement of the employment, I would refer the Commission here to the evidence of the appellant at paragraph 638.

PN555

I won't submit you to any further pain, but if I could suggest that the next thirty or forty odd paragraphs, say thirty odd paragraphs, go to the nature of the experience of the appellant prior to the commencement of the employment and on the evidence, the prior experience as a casual tutor marker and that the appellant had never held a full time academic position previously, that he had never lectured, and then he had never supervised a post graduate student, that he did not hold a PhD.

PN556

I would refer you back to the submission that I made on the nature of that PhD earlier on. The Commission at paragraph 31 of the decision, makes that conclusion, that - and he correctly notes that in some circumstances a shorter period of probation might apply, depending on the level of experience possessed, but the Commission was not satisfied that Mr Kocsis' experience would warrant departure from the general lengthy probation period. Then he refers to the appellant's own evidence there.

PN557

We say that that conclusion was reasonably open to the Commissioner and consequently, in accordance with the Country Fire Authority case, we say that the Commissioner directed himself correctly at law, that he didn't make an error of law. With respect to the grounds that go to the allegation that the Commissioner erred by failing to consider all the relevant evidence, we say that it is, on the reading of it, on fair reading of this decision, it is a carefully constructed decision.

PN558

The Commissioner clearly outlines the respective submissions and witness evidence that was brought forward by the parties. The Commissioner notes the onus that rests with the employer. We say that the Commissioner then correctly identified the nature of the job in accordance with the principles in Nicholson and that he correctly applied the dot points that Senior Deputy President Watson makes reference to.

PN559

I note, in particular, at paragraph 26 of the decision, that the Commissioner specifically states that he considered the evidence and material before him and then he makes specific reference to a number of areas of the transcript and to a number of exhibits that he must have considered were particularly relevant. They include exhibit K3, which is the appellant's original witness statement I understand, and while - that is right, it is the appellant's original witness statement.

PN560

I would ask the Full Bench if it decides that it does have to have a look at the evidence in this case, to pay particular attention to paragraphs 10 to 23 of the appellant's witness statement, and in my submission, that supports in a nut shell the nature of the work that it did in fact undertake in his employment at the university and that the nature of that work in his witness statement, is perfectly consistent with the nature of the work that is contemplated by the criteria in the position classification standards.

PN561

Without risking - harping on this, but in particular in the areas of teaching and research, which we say the evidence demonstrates is the whole core of needing this extended period of probation. On that basis, again, note paragraph 33 of the decision, that the Commissioner clearly states that he was influenced by the specifics of Mr Kocsis' job and we say that the Commissioner was entitled to reach that conclusion. So consequently we say that there has been no error that would require the Full Bench to interfere with the decision that is before it.

PN562

Effectively, what we are saying is that the appellant is seeking to ask the Full Bench to substitute its conclusions for the Commissioner at first instance, but having said that, I'm very mindful of the principles that apply in the circumstances such as this. Again, on the basis of - I suppose we won't shy away from the fact that this was an important decision for the sector and have never shied away from that.

PN563

That is why such care and consideration went into the manner in which we would adduce this evidence and the seniority of the witnesses that we sought to produce, because of the onus and because of the prime consideration of the nature of the job. I make a particular reference at paragraph 27 of the decision where the Commissioner concluded that the evidence was overwhelming and I think that that is important. It is an important conclusion that the evidence was overwhelming.

PN564

The Commission was quite clearly convinced that the nature of academic work is such that it does take time to assess an employee's capacity and it does take time for an employee to demonstrate that capacity and I might conclude here with a reference to paragraph 28 of the decision wherein - and I have referred to this earlier, wherein the Commissioner refers to the fact that it does take a period of years for new academics to demonstrate the appropriate level of ability to carry out their duties.

PN565

Before the Commissioner in the first instance was the agreement that I referred to earlier between the unions and the Association, struck back in 1991, and in that agreement - it was tendered as an exhibit, Dr Blackford spoke to that in his capacity as the principal industrial officer at the time responsible for negotiating that agreement on behalf of member universities. It is exhibit CSU8. At part 6 in the preamble, the agreement provides that:

PN566

Probation officer period of mutual testing during which decisions about continuing employment can be made. It should be of sufficient length to allow these judgments to be made in each case.

PN567

I will refer you to the decision in Hornby, if I may, behind - in the list of authorities that I've provided to you and I will take you to page 11 of that decision. Your Honour, I may have neglected to include an authority that may be of interest to you here about academic probationary periods, and that is the decision of Graham v University of Wollongong. It is referred to here by then Deputy President Duncan in the decision of Hornby v Canberra Institute of Technology at paragraph 11.

PN568

Now, Deputy President Duncan notes that in Graham v University of Wollongong, the Judicial Registrar observed that:

PN569

For the probationary period to be accepted as being reasonable, it would have to have been of sufficient duration to allow Dr Graham to demonstrate her obvious ability in the research field.

PN570

We say that this goes to this dual purpose of probation. That it is not just for the employer to have the opportunity to assess the academic's capacity. It is also fair and reasonable that the academic concerned has that opportunity to demonstrate their capacity and that in many circumstances, a period of less than 3 years would be unfair on the basis that they don't have enough time to demonstrate that capacity and I say that in these circumstances before the Full Bench, the evidence of the appellant in fact, supports that notion given the time frame and the time that it took to complete the PhD that was expected to be completed in December 1998.

PN571

Also, given the nature of those publications that were under review in November 1998 and didn't get published until early in the year 2000. Therefore, we submit that there is not a demonstrable or significant error shown in the Commissioner's reasonings, or findings, that the regulation operated to exclude the appellant from having his application for unfair dismissal heard, and in closing, we just rely upon the evidence that was before the Commissioner at first instance and of course, the written submissions of the respondent. So unless there is anything further you wish, those are the submissions of the respondent.

PN572

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I have one question of detail. I think you said earlier on that in dealing with the question that there was only one institution at the time of appointment where the probation period was less than 3 years. You said that was covered in submissions and you would deal with it later. I don't recall where you have covered it in the written submission, can you just remind me?

PN573

MR WILLIAMS: In the written submissions? Let me see if I can find them, your Honour.

PN574

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Did I hear you correctly, that you had covered it in the written submissions?

PN575

MUNRO J: I have got paragraph 121, I think.

PN576

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Thank you.

PN577

MR WILLIAMS: Quite correct.

PN578

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Thank you very much.

PN579

MR WILLIAMS: Thank you. May it please the Commission.

PN580

MUNRO J: Mr Stitz?

PN581

MR STITZ: Very briefly, your Honours. In relation to the authority Potter v Australian Capital Territory, we agree that the appropriate time to make the assessment is at the commencement of the employment. The Court has to have a regard to the situation as at the date of the employment. In that regard, however, all that you have, apart from the evidence of the appellant, is the E-mail which is exhibit K10 dated 10 November 1998 and then you have further, the amended offer of employment dated 16 November 1998 which is exhibit K3.

PN582

Again, your evidence from Professor Chalmers who perhaps could have told - or Chambers, I should say, who could have informed the Commissioner the position as at the 1 March 1999, when the appellant actually commenced employment, and just two things, very briefly, your Honours. His Honour has - sorry, the Commissioner's judgment, or decision, paragraph 2, refers to commencement of employment on 25 January 199. That is not the case.

PN583

It was in fact, 1 March 1999 and reference is at paragraph 621 of the transcript. I don't know whether it sheds any light or confuses the situation, your Honours, but - and Commissioner, again the amended offer of employment, exhibit K3, dated 16 November 1998, reads, first paragraph:

PN584

I have the pleasure of offering you employment as a full time lecturer in Investigations in the professional development centre (Policing), within the faculty of Arts, and located at our Goulbourn campus.

PN585

Sorry, that is annexed to exhibit K3, your Honours and Commissioner. And so in an evidentiary sense, in my submission, there is a void as to what the situation was pertinent to this employee in terms of his situation as at the date of the employment commencing on 1 March 1999, and in view of that evidentiary - or on the basis of that evidentiary void, that the respondents argue that - or maintain, or submit, that the period was reasonable.

PN586

All it had given, is evidence in a general sense, that of perhaps a typical level B, might be appropriate, but what about this gentleman who might be answering to two masters, it seems, the Police and his principal employer. They are my submissions, unless there is anything else I can assist the Court with?

PN587

MUNRO J: Yes, thank you, Mr Stitz. The Commission will reserve its decision. The parties will be advised in due course as soon as practicable.

ADJOURNED INDEFINITELY [4.05pm]