Marrone v University of Tasmania (Menzies Research Institute) and Anor  TASADT 05
25 October 2013
K Cuthbertson and J Bridge-Wright, Tribunal Members
Equal Opportunity - Directions Conference - Notice to Produce Documents
Anti-Discrimination Act 1998 (Tas) s80(2)
1. In December 2011, Dr John Marrone (“the complainant”) was advised by the University of Tasmania (“UTAS”) that his current fixed term appointment as a project manager with the Menzies Research Institute (“the MRI”) would cease on 28 February 2012 in accordance with his employment contract. Dr Marrone has made a complaint to the Anti-Discrimination Commissioner against UTAS and Prof. Haydn Walters in relation to the failure to renew his employment contract, the circumstances of his employment generally and conduct he alleged occurred during the course of his employment. That complaint was referred to the Tribunal for inquiry.
2. The matter has been the subject of a previous directions conference. A timetable was set requiring the complainant to file documents setting out the particulars of claim and details of any orders sought and for each of the parties to file a statement of agreed facts, lists of documents upon which they intend to rely at the hearing and lists of witnesses they intend to call together with a brief outline of their evidence. The Tribunal has also ordered that the matter be referred to a conciliation conference at a date to be fixed.
3. Prior to the conciliation conference being held, UTAS requested a further directions conference. During the directions conference the complainant sought that notices be issued by the Tribunal requiring the attendance of witnesses at a future directions conference to produce documents that the complainant is seeking to obtain.
Tribunal’s Power to Issue Notices to Produce
4. S.80(2) of the Anti-Discrimination Act 1998 provides as follows:
“The Tribunal, by written notice, may require any person to –
(a) attend a directions conference; and
(b) provide and produce specified information and documents to a directions conference.”
5. This provision was considered by the Tribunal in an unpublished decision R v B delivered on 12 July 2005. In that case the Tribunal concluded that the test in determining whether a notice ought be issued was whether the specific documents sought could be relevant to the complaint. The Tribunal also held that a notice should not be issued if there was only a speculative chance or remote possibility that a document may be relevant. Procedurally, the Tribunal determined that there should be an opportunity for the person who has received the notice to object to the production of the document. That opportunity is to be provided to the recipient of the notice on the return of the notice. The recipient of the notice ought also be informed that there will be an opportunity to object to the production of the document on the return date.
Background to Applications
6. In order to assess the complainant’s application that the notices to produce documents ought issue it is necessary to consider how the documents being sought potentially relate to his complaint.
7. By way of summary of the parts of the complaint relevant to these applications to produce, the complainant was employed pursuant to fixed term contracts to participate in research activities at the MRI. In 2011 the complainant made a bullying complaint in respect of a senior researcher at the MRI following a verbal altercation. That matter was dealt with pursuant to UTAS’s grievance procedures and included the participation of the relevant parties in mediation. That mediation occurred in November 2011.
8. At that stage, the complainant’s fixed term contract was due to expire on 28 February 2012. He says it was his understanding that there were ongoing employment opportunities for which he was qualified at the MRI. In December 2011 he was advised that his position would terminate at the expiration of his contract. The complainant sought information from his supervisors regarding the failure to offer him further work. He was told that the studies being undertaken by the MRI which had previously involved the complainant had commenced their next phase under different funding and logistic circumstances. He was advised that an operational decision had been made not to have a project officer in Tasmania in the foreseeable future but to focus on technical staff doing testing in closer integration with clinical labs. He was also advised that there was the possibility of some casual work in respect of another study but nothing could be promised at that stage. Prof. Walters also offered to act as the complainant’s referee.
9. The complainant alleges that the decision to not renew his contract was not based on operational reasons relating to the funding of a position of the type he then held, but was related to the bullying complaint that he had made and the way in which it had played out in the University during 2011. On that basis he says he was victimised by the respondents and that the conduct amounted to direct discrimination based on the prescribed attribute of industrial activity. In respect of this aspect of the complaint, the key factual inquiry relates to the reason or reasons why the complainant was not reemployed, and in particular whether those reasons were purely operational or were at least in part related to his bullying complaint.
Complainant’s Application – Funding Applications and Decisions
10. The complainant has made an application for the production of documents relating to applications for funding and the decisions relating to those applications in the following terms:
“For Prof. Shyamali Dharmage or Prof. Haydn Walters to supply:
1. The National Health and Medical Research Council of Australia (NHMRC) final pdf for the NHMRC grant application title – “What are the lifetime clinical predictors and risk factors for multiple phenotypes of adult asthma, COPD and Sleep Disoreded (sic.) Breathing? Following up the TAHS cohort from 1st to 6th decade (about $1.9 million in NHMRC funds until 2015 application no: 299901).
2. The National Health and Medical Research Council of Australia (NHMRC) final pdf for the NHMRC grant application title – “Breathe Well: a Centre for Research Excellence in chronic respiratory diseases and lung ageing – CRE (about $2.5 million in NHMRC funds until 2016 application no: 1001062).
3. The National Institute of Health (United States of America) TAHS funding application (with Boston University) latest version Word or pdf document.
These documents provide evidence, in addition to the documents already provided to the ATC, that the funding for the research in the position that I was carrying out has indeed continued and that there are millions of dollars in funding for at least 5 years post my termination and up to 10 years post my termination.”
11. The complainant provided an email to the Tribunal from Richard Tooth, a Data Analyst in Information and Communication Management at the National Health & Medical Research Council. He advised that “all publically available information for NHMRC funded research can be found on our website (in summary) … (However the full research proposal is not publically available)”.
12. It is appropriate to deal with each of these documents separately as different considerations apply.
Document 2 – NHMRC “Breathe Well” Application
13. This was the second of the documents referred to in the complainant’s written request for a notice to produce to issue pursuant to s.80(2) of the Act. Copies of extracts from a draft of the application have been provided by the complainant to the Commission in support of his complaint. Those extracts show that the administering institution of any funding obtained would be the MRI.
14. The extracts provided include the names and roles of the research team. The complainant is named in the draft application under the title “Professional Research Persons”. A further extract from the proposed budget contained in the draft application refers to the complainant and a request for a Personal Support Package 3 for a total of five years comprising funding of $66,250.00 per year and a total of $331,250.00. Under the heading “Reason for Salary Request”, the complainant’s qualifications are outlined and it is noted that he is currently holding a fellowship from the Royal Hobart Hospital Research Foundation to end in 2009 and is working on the laboratory phase of the TAHS study. It refers to his roles and responsibilities within the current research program and states:
"We envisage that within 3 years, with the track-record John will build from the clinical and pathophysiological data he is collecting and analysing, he will move into an academic post or obtain his own research salary. The CRE will then need a new post-doc to support these projects."
15. The extracts also contain a table that refers to the complainant’s personal support package and the funding required for that position.
16. There appears to be no dispute that the application for funding was submitted and that funding was granted by the NHMRC. The complainant, however, has been unable to access either the final application that was submitted or a copy of the decision granting funding and the conditions attached to that funding. He is seeking that those documents be produced and claims that they are relevant to his case as they will allow him to ascertain whether he was specified by name in the final application for the grant and whether the application sets out who it is intended will carry out the work and how the funding that is granted will be allocated. He argues that this is relevant because the information in the documents could show that there was funding for an ongoing role for him within the MRI which potentially negates the respondents’ argument that the failure to renew his contract was based on operational and funding reasons only.
17. The respondents have argued that the “Breathe Well” Application and the documents relating to the grant of that funding are not relevant as there is no stipulation in the grant as to how that funding is to be spent. Prof. Walters also argued that the reference to the complainant in the application for funding was in relation to his previous position within the MRI when he was the recipient of a post-doctoral fellowship. At the time the funding was ultimately granted the complainant was a general staff member.
18. The Tribunal is satisfied that the “Breathe Well” Application for funding from the NHMRC could be relevant to the complaint as it is likely to provide information relating to the funding that has been obtained and could be relevant to any determination to be made regarding the reasons for failing to renew the complainant’s employment at the MRI. The matters raised by the respondents may ultimately affect how the information contained in the documents is assessed and applied to the facts of the complaint, however, the Tribunal is not in a position at this stage to make that assessment. It would appear from the material before the Tribunal that the final version of the “Breathe Well” Application that was submitted to the NHMRC and the documentation setting out the NHMRC’s decision in relation to the grant are either in Prof. Walter’s possession or would be available to him. The Tribunal will, therefore, issue a notice pursuant to s.80(2) requiring Prof. Walters to attend a directions conference at a date to be fixed and produce the following:
(a) a copy of the final version of the Menzies Research Institute’s Centres for Research Excellence Application for funding, CRE 09 round for funding 2010 with the title “Breathe Well: a Centre for Research Excellence in chronic respiratory diseases and lung aging” (“the Breathe Well Application”);
(b) copies of all documentation from the NHMRC outlining the amount granted by the NHRMC to the Menzies Research Institute pursuant to the Breathe Well Application and the conditions of that grant.
Document 1 - NHMRC “Lifetime Clinical Predictors” Funding Application
19. This is the first of the documents referred to by the complainant in his written request for notices to produce to issue. In support of his application the complainant referred the Tribunal to an email addressed to him that is included in the documentation in support of his complaint from Prof. Dharmage which is in the following terms:
“I have started to develop the 6th decade proposal but haven’t bothered you as you are on sick leave. However, I cc the second version to you few seconds ago to keep you in the loop. I am nominating as a research staff member within the application and requesting your salary for 5 years as we have discussed in the past. I hope it is still ok.”
20. There are other emails from Prof. Dharmage referring to her hope that the funds are granted, the hard work that will follow and her belief that she could rely on the complainant. These exchanges occurred between March 2011 to July 2011.
21. The complainant does not know whether his name was ultimately used in the final application that was submitted to the NHMRC in respect of this funding proposal. What became apparent from the discussions during the directions conference involving the respondent is that the application was made by the University of Melbourne as the lead investigator. Any funds granted were granted to the University of Melbourne to disburse.
22. There is insufficient information regarding the nature of the funding relationships between the University of Melbourne and MRI. Given that the application was made by the University of Melbourne and the funds were apparently granted to them and not to UTAS or MRI, the Tribunal is not satisfied that the application or the decision in respect of the application could provide evidence that was relevant to the complaint. At this stage, the Tribunal is not satisfied that there is anything other than a remote possibility that the documents may be relevant given that the complainant’s employer was not the recipient of the grant.
23. The Tribunal therefore will not issue a notice in respect of the first of the documents sought by the complainant in his written application.
24. The Tribunal has been advised that Prof. Dharmage is intended to be called as a witness by the Respondents at any inquiry. It may be that further information comes to light during the inquiry that warrants the production of the documents. It is important to note that the power to issue a notice to produce is in addition to a general power granted to the Tribunal pursuant to s97 to require any person to provide specified information or produce specified documents that the Tribunal believes may be relevant to the complaint. Accordingly, the Tribunal has the opportunity at an inquiry to make such a requirement should it become aware of any documents that may be relevant to the complaint.
Document 3 - National Institute of Health Application
25. This was the third of the documents referred to in the complainant’s written application for the production of funding documents. At the directions conference the complainant indicated that he did not know whether the application had been submitted and had no knowledge as to whether funding had been granted. He did not know whether he was mentioned as a participant in the application.
26. The respondents indicated that the application had been submitted, had got through the first round but had not been successful. It appears there are a number of other universities involved in the application, that MRI was not the lead investigator and it was highly speculative that any money would ultimately be granted pursuant to the application which had not yet been finalised.
27. There was no information before the Tribunal that disclosed any possibility that the document sought may contain information that was relevant to the complaint. On that basis the Tribunal has determined that it will not issue a notice to produce the National Institute of Health Application.
Complainant’s Application - Email Correspondence
28. As previously mentioned, each of the parties has been required to file a list of documents upon which they intend to rely during the course of the inquiry and make available copies of those documents to each other party. The respondents have indicated that they seek to rely on email correspondence between Prof. Dharmage, Prof. Walters and Dr Matheson dated 3 November 2011 which refers to the salary being paid to the complainant and how much it costs to employ others doing similar work. The complainant sought from the respondent a full thread of the entire email discussion as he believed the version that had been included in the respondents’ list of documents was truncated. He was advised that the blank area that appeared on the first page of the copied documents was caused by the removal of that part of the email thread where the emails had been forwarded by Prof. Walters to the legal office at UTAS. Legal professional privilege was claimed in respect of that part of the email thread.
29. The complainant has now sought that he be provided with copies of all email correspondence from the period 2 November 2011 to 20 December 2011 between Prof. Haydn Walters and Prof. Shyamali Dharmage regarding the complainant’s position and tenure at UTAS and MRI. It is submitted that the emails may disclose information regarding the reasons why his employment was not continued.
30. The respondents submitted that the complainant’s contract of employment was the ultimate document relevant to the complaint and that any other documentation was irrelevant to any assessment of the reasons why the complainant’s employment was not continued. They submit that as the complainant was a fixed term employee, UTAS was not obliged to continue his employment. The Tribunal does not agree with this submission. The complaint is that the decision not to renew the complainant’s contract was based on matters other than operational and funding reasons. Matters outside of the terms of the contract are potentially relevant to any assessment of the true reason for the decision not to renew that contract.
31. Prof. Walters has also advised that he believes all emails containing discussions concerning the complainant’s employment with MRI and UTAS have been provided and are intended to be relied upon during the inquiry. The Tribunal is not in a position to determine whether or not any further correspondence exists. It is apparent there has been some email correspondence regarding the complainant’s employment. There is a clear possibility that other email correspondence has also occurred.
32. In the circumstances, the Tribunal is satisfied that the email correspondence sought by the complainant could be relevant to the complaint as it may reveal the reasoning behind the decision taken by UTAS not to renew his contract of employment. The period of time and the personnel involved in the correspondence being sought is sufficiently narrow to satisfy the Tribunal that it would be appropriate to issue the notice.
33. The Tribunal will therefore issue notices to Prof. Haydn Walters and Prof. Shyamali Dharmage to attend a directions conference and produce copies of all emails sent or received by them between 2 November 2011 and 20 December 2011 concerning Dr John Marrone’s employment and tenure with UTAS and MRI.
34. The Tribunal Orders:
a. That a notice issue pursuant to s 80(2) of the Anti-Discrimination Act 1998 requiring Prof. Haydn Walters to attend a directions conference at a date to be fixed and produce the following:
i. a copy of the final version of the Menzies Research Institute’s Centres for Research Excellence Application for funding, CRE 09 round for funding 2010 with the title “Breathe Well: a Centre for Research Excellence in chronic respiratory diseases and lung ageing” (“the Breathe Well Application”);
ii. copies of all documentation from the NHMRC outlining the amount granted by the NHRMC to the Menzies Research Institute pursuant to the Breathe Well Application and the conditions of that grant;
iii. copies of all emails sent or received by him between 2 November 2011 and 20 December 2011 concerning Dr John Marrone’s employment and tenure with the Menzies Research Institute and the University of Tasmania.
b. That a notice issue pursuant to s 80(2) of the Anti-Discrimination Act 1998 requiring Prof. Shyamali Dharmage to attend a directions conference at a date to be fixed and produce the following:
i. copies of all emails sent or received by her between 2 November 2011 and 20 December 2011 concerning Dr John Marrone’s employment and tenure with the Menzies Research Institute and the University of Tasmania.