Atkins v Parks Victoria - [2022] FedCFamC2G 439

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Atkins v Parks Victoria [2022] FedCFamC2G 439

File number(s): MLG 4337 of 2020

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 8 June 2022

Catchwords: INDUSTRIAL LAW – FAIR WORK – adverse action claim – where the employee made a number of complaints about workplace bullying – where the employee was investigated for misconduct allegations relating to harassment, sexual harassment and bullying – consideration of what conduct constituted adverse action as defined under the Fair Work Act 2009 (Cth) – consideration of whether the adverse action was taken for proscribed reason – where multiple people were involved in the decision-making process – circumstances distinguished from those in National Tertiary Education Union v Royal Melbourne Institute of Technology – finding that reverse onus on respondent has been discharged – application dismissed.

Legislation: Fair Work Act 2009 (Cth), ss 340, 342, 360, 361

Cases cited:
Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482

Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563

Lees v Asaleo Personal Care Pty Ltd [2021] FCFCA 347

National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Technologyone v Roohizadegan (2021) 309 IR 262

Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122

Division: Division 2 General Federal Law

Number of paragraphs: 173

Date of last submission/s: 15 December 2021

Date of hearing: 13-15 December 2021

Place: Melbourne

Counsel for the Applicant: Mr R Millar

Solicitors for the Applicant: McDonald Murholme

Counsel for the Respondent: Mr J Tracey

Solicitors for the Respondent: Minter Ellison Lawyers
ORDERS

MLG 4337 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SHANE ATKINS
Applicant

AND:
PARKS VICTORIA
Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

8 JUNE 2022

THE COURT ORDERS THAT:
1.The applicant’s application filed on 21 December 2020 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION

Before the court is an application in which the applicant asserts that he has been subjected to adverse action in breach of the general protection provisions of the Fair Work Act 2009 (Cth) (‘FW Act’).
In order to make out his claim, the applicant needs to establish that he was subjected to adverse action, as defined, and that the respondent has not satisfied the reverse onus on it to prove that the reason for that adverse action was not a proscribed reason.
In this case, the applicant asserts that he has variously made a number of complaints about his employment and/or exercised a number of workplace rights. The respondent accepts that the applicant will establish that he has either made a complaint and/or exercised a workplace right as claimed.
The applicant further asserts that as a consequence of the exercise of such workplace rights, he has been subjected to adverse action, in that:
(a)on 14 February 2019, he was threatened with disciplinary action (‘Threat’);
(b)on 16 March 2020, he was stood down from his employment (‘Stand Down’);
(c)on 16 April 2020, a number of allegations were put to the applicant in which it was claimed that he had engaged in harassment, sexual harassment and bullying (‘Misconduct Allegations’);
(d)on 21 September 2020, the applicant was issued with a show cause letter presenting him with the outcome of the investigation into the Misconduct Allegations and inviting him to show cause as to why his employment ought not be dismissed (‘Show Cause Letter’); and
(e)on 20 October 2020, the applicant’s employment was terminated (‘Termination’).
The respondent concedes that the issuing of the Show Cause Letter and the Termination of the applicant’s employment constitutes adverse action but denies that it was taken for a proscribed reason.
In relation to the Threat, the Stand Down and the issuing of the Misconduct Allegations, the respondent’s primary argument is that none of these constitute adverse action as defined. In the alternative, the respondent submits that if any of these incidents are found to amount to adverse action, the evidence shows that none of these actions were done for a proscribed reason.
FACTUAL BACKGROUND
It is common ground that the applicant was employed as a park ranger by the respondent for approximately 20 years. The applicant was based in Traralgon.[1]
[1] Applicant’s Outline of Submissions filed on 25 November 2021 at paragraph [2].
From January 2015 to September 2019, the applicant reported to Mr Darren Hill, the Ranger Team Leader. It is also common ground that the working relationship between the applicant and Mr Hill was difficult and that the applicant made various complaints and inquiries in relation to his employment whilst he reported to Mr Hill and thereafter.
These complaints and inquiries included that:
(a)on 13 February 2017, the applicant sent an email to Mr Fenwick, the Manager of Regional Operations, complaining about Mr Hill micromanaging and bullying the applicant;
(b)on 24 May 2018, the applicant attended a meeting with the Area Chief Ranger, Ms Bridget Grant, and requested an investigation into Mr Hill’s conduct, which the applicant described as being ‘bullying’ behaviour;
(c)on 4 January 2019, the applicant sent an email to the respondent’s legal counsel regarding ‘workplace bullying East region’ in which he foreshadowed that he would be making complaints about these issues to a range of external bodies;
(d)on 15 February 2019, the applicant sent an email to the respondent’s Chief Executive Officer (copying in a range of other senior executives) complaining about bullying being entrenched in the respondent’s management;
(e)on 19 March 2019, the applicant inquired about the status of his bullying complaints and raised concerns about the lack of information provided about the progress of the complaints;
(f)on 8 April 2019, the applicant repeated his complaints about Mr Hill’s conduct in the course of a mediation regarding his bullying complaints;
(g)in late May[2] or August 2019,[3] the applicant made an application to the Fair Work Commission for a stop bullying order; and
(h)after the Fair Work Commission proceeding was dismissed on 20 January 2020, the applicant attended a meeting with his new line manager in February 2020 at which two proposals were put forward regarding his ongoing working relationship with Mr Hill. The applicant complained that neither of these options were fair and rejected them both.
[2] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [31].
[3] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [22].
It is also common ground that the applicant met with Ms Rebecca Quinn on 14 February 2019. There is a dispute as to whether Ms Quinn threatened Mr Atkins at this meeting. I will explore the evidence in relation to this further below.
Moreover, it is also common ground that:[4]
(a)on or about 1 April 2020, the applicant was stood down on full pay, pending an investigation into certain allegations about his conduct towards a fellow employee in the Traralgon office;
(b)on 16 April 2020, the respondent sent the applicant a letter enclosing details of allegations made against him. That correspondence stated that, if substantiated, the allegations could constitute a breach of various applicable policies, that the investigation would be conducted by Lander & Rogers and set out the process that would be undertaken in the investigation; and
(c)by letter dated 30 July 2020, the respondent advised the applicant that the investigator had concluded that the applicant had, on the balance of probabilities, engaged in sexual harassment, harassment and bullying. The 30 July 2020 letter also summarises the investigator’s findings and advised the applicant that he would have an opportunity to respond to the findings.
[4] Respondent’s Outline of Submissions filed on 3 December 2021 at paragraph [12].
As stated, the respondent then sent a ‘show cause letter’ to the applicant on 21 September 2020, and ultimately, the applicant was given notice of termination of his employment by letter dated 20 October 2020.
ISSUES FOR CONSIDERATION
As stated, it is conceded by the respondent that the applicant exercised workplace rights and/or made inquiries relating to his employment. The respondent also concedes that the Show Cause Letter and the Termination constitute adverse action. In relation to these issues, the only question for this court is whether the respondent took this action for a proscribed reason.
In relation to the ‘Threat’, the ‘Stand Down’ and the putting of the ‘Misconduct Allegations’ to the applicant, the court must determine whether any of these actions amount to adverse action and then if so, whether any of these actions by the respondent were taken for one of the proscribed reasons.
Before dealing with each of these issues, I will firstly deal with the evidence upon which each of the parties rely.
EVIDENCE
Evidence of the applicant
The applicant has filed and relies upon his affidavit of 9 March 2021 and his reply affidavit of 15 April 2021. As stated, the applicant claims that he was bullied and micromanaged by Mr Hill in the period from 2015 to September 2019 when he ceased reporting to Mr Hill.
Mr Atkins raised his concerns about Mr Hill’s management style numerous times and with various different people within Parks Victoria. The applicant’s own evidence is that on one occasion, when complaining about Mr Hill to Ms Grant, Ms Grant advised him to ‘make an official complaint to Margaret Gillespie – People and Culture’.[5] In his email to Ms Gillespie, Mr Atkins said he would lodge complaints with various external agencies until ‘Parks Victoria [sic] current course of action is…looked at more seriously’.[6]
[5] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [14].
[6] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [15].
Evidence of Ms Rebecca Quinn
It is Ms Quinn’s evidence that on 23 August 2018, another employee (i.e. not the applicant) made a complaint about Mr Hill’s management style.[7] Ms Quinn’s evidence is that following this complaint, the respondent engaged Metis Pathways to conduct a ‘health check’ to determine whether there were issues at the Traralgon branch, where Mr Atkins, the whistleblower and Mr Hill all worked. The health check involved Metis Pathways conducting interviews with staff from the Traralgon branch, collating the information gathered and preparing a report outlining their findings and recommendations.
[7] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [15] and following.
Ms Quinn further states that in the course of the health check process, Mr Atkins made a complaint about Mr Hill bullying him. This led the respondent to commission a different agency, Grange Advisory, to conduct a preliminary external investigation into Mr Atkins’ complaints.[8] Grange Advisory was engaged to review the concerns raised by Mr Atkins to determine whether an external investigation was necessary.
[8] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [28] and following.
In March 2019, Grange Advisory provided a report to Parks Victoria in which it concluded that even if the concerns raised by Mr Atkins were substantiated, they would not constitute bullying, as they fall within the concept of reasonable management action. Grange Advisory therefore did not recommend a formal investigation be undertaken.
It is also common ground that in late May or August 2019, Mr Atkins lodged a stop bullying claim with the Fair Work Commission (‘FWC’). Ms Quinn’s evidence is that the matters raised in this application by Mr Atkins were substantially similar to those raised and reviewed by Grange Advisory.[9] Ultimately, on 20 January 2020, the FWC delivered its decision in relation to Mr Atkins’ stop bullying claim. In summary, the FWC concluded that Mr Atkins had not been subjected to workplace bullying, and rather, that the actions taken by Mr Hill amounted to reasonable management action.
[9] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [31].
It is not in dispute that in December 2018, following the Metis Pathways health check process, a debrief meeting was held with the staff of the Traralgon branch, including Mr Atkins. Ms Quinn’s evidence is that this meeting was attended by Mr Graeme Baxter, the Regional Director, Regional Victoria and Ms Galbally from People and Culture.[10] Ms Quinn says that Mr Baxter reported to her that the applicant had yelled at him and Ms Megan Galbally during the health check debrief meeting, that Mr Baxter believed that Mr Atkins was recording the meeting and that Ms Galbally was ‘quite shaken up’ after the meeting as a result of Mr Atkins’ behaviour.
[10] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [22] and following.
Ms Quinn’s evidence is further that it was her view that given the cultural issues that they were seeking to address at the Traralgon branch, rather than dealing with the matters raised by Mr Baxter as a disciplinary matter, she would take an informal approach with Mr Atkins to try and resolve the issue.[11] On this basis, Ms Quinn arranged an informal meeting with Mr Atkins on 14 February 2019. I will deal with the 14 February 2019 meeting in further detail shortly.
[11] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [24].
Ms Quinn also gives evidence that notwithstanding the FWC findings regarding the stop bullying application, the respondent still wanted to provide Mr Atkins with options moving forward given the concerns that he had raised about him continuing to work with Mr Hill. In this context, her evidence is that she worked together with others within the organisation to consider what alternative options might be available.[12]
[12] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [33] and following.
Ultimately, Ms Quinn’s evidence is that two options were put to Mr Atkins, namely that he continue reporting to Mr Hill in his substantive role, or that he transfer to the Sale branch where he could report to Mr Chris Corbell. It is common ground that Mr Atkins did not accept either of these options when they were put to him in a meeting on 21 February 2020.[13]
[13] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [23]; affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [35].
It is against this background that allegations were made about Mr Atkins’ behaviour towards a fellow staff member in the Traralgon branch, which ultimately led to misconduct proceedings being initiated against Mr Atkins pursuant to the applicable enterprise agreement.
LEGISLATIVE FRAMEWORK
Section 340 of the FW Act relevantly provides:
(1)      A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right: or
(ii)       has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)       to prevent the exercise of a workplace right by the other person.
…
As stated, the fact that the applicant exercised a workplace right is not in issue in this proceeding. Section 342 then goes on to define ‘adverse action’, and relevantly, in the case of an employer, it states that an employer takes adverse action against an employee if:
the employer:
(a)       dismisses the employee; or
(b)      injures the employee in his or her employment; or
(c)       alters the position of the employee to the employee’s prejudice; or
(d)      discriminates between the employer and other employees of the employer.
Relevantly, section 342(2) provides that ‘adverse action’ includes threating to take action as defined and section 360 further provides that for the purposes of Part 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’.
Moreover, section 361 further provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being taken for that reason or with that intent unless the person proves otherwise.
As noted by the Full Court of the Federal Court in Technologyone v Roohizadegan (2021) 309 IR 262 at paragraph [34]:
[34]Whether a respondent has discharged the “reverse onus of proof” is a question to be resolved at the end of a proceeding, and upon consideration of the entirety of the evidence adduced. As Jessup J (Rangiah J agreeing) explained in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services ) Pty Ltd (2015) 238 FCR 273 at [27]:
27In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which include a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it.
Before turning to consider whether any adverse action taken in this case was taken for a proscribed reason, and in circumstances where the respondent concedes that the Show Cause Letter and the Termination constitute adverse action, the court needs to determine whether any of the following constitute adverse action as claimed:
(a)the Threat;
(b)the Stand Down;
(c)putting the Misconduct Allegations to the applicant.
WHAT CONSTITUTES THE ADVERSE ACTION?
The Threat
In relation to the Threat, there is a dispute as to whether any threat was made by Ms Quinn at the 14 February 2019 meeting. If so, a secondary issue arises as to whether such a threat constituted adverse action.
The applicant’s evidence is that he attended what he understood to be an informal meeting to discuss the health check, but in which Ms Quinn threatened him with disciplinary action.[14] Mr Atkins says that when the meeting commenced, rather than discuss the health check, Ms Quinn started to discuss his conduct rather than the issues that he had raised about Mr Hill. He further says that in the course of this meeting, he was accused of having recorded the debrief meeting in December 2018. Mr Atkins said that he felt threatened and bullied by Ms Quinn’s comments in the meeting of 14 February 2019.[15]
[14] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [16].
[15] Court transcript at page 17.

On 15 February 2019, following his meeting with Ms Quinn, Mr Atkins wrote to Mr Matthew Jackson, the CEO of Parks Victoria, Ms Gillespie and Mr Simon Talbot in which he said:
When I got to the meeting I found that the meeting was about my said behaviour and that Rebecca was here to try to avoid the need for disciplinary action, however I have received no formal or official complaint made against me I found this strange and shocking.
I was told by Rebecca that my current behaviour is bullying and that I should stop right away or disciplinary action may be taken against me.
After this threat I was then accused of illegally recording the meeting that was held on 21/12/18 [and] this too was a shock to me as once again no complain (sic) formal or official has been made against me.
…
I was of the view that bullying and threats by management was just a local issue but now I’m left wondering if this behaviour is intrenched (sic) throughout Parks Victoria’s management both higher and lower.
I find it very hard to co-operate with you when I’m being threatened by senior management and my trust of a fair process is now severely eroded away to the point that I thinking (sic) of just pulling out of this investigation and informing the authorities straight away.
Please let me know why I should not follow this course of action and what Parks Victoria intend to do about this unacceptable behaviour from senior Parks Victoria managers.[16]
…
[16] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at Exhibit SA-5.
It is clear from Mr Atkins’ evidence in cross-examination, as well as from his email on 15 February 2019, that he was very upset about the way in which the meeting with Ms Quinn unfolded. He felt ambushed in that meeting, which he was told was an informal meeting, but which then moved to a discussion about his conduct and the possibility of disciplinary action.
I accept that Mr Atkins felt unheard and perhaps even targeted. However, the way he felt is not determinative in this case. Ultimately, the issue is whether on the totality of the evidence, Mr Atkins has established that Ms Quinn in fact threatened him with disciplinary action.
Ms Quinn denies that she made any such threat. Her evidence is that in calling this informal meeting with Mr Atkins, she wanted to provide him in an opportunity to explain his perspective on the debrief meeting held in December 2018.[17] It was also an opportunity for her to provide Mr Atkins with some feedback about how his conduct was received by others who were in attendance at the debrief meeting.
[17] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [37] and following.
It is common ground that at the 14 February 2019 meeting:
(a)Ms Quinn raised the issue of Mr Atkins’ behaviour at the debrief meeting;
(b)Ms Quinn raised the issue of whether Mr Atkins had recorded that meeting;
(c)Mr Atkins denied recording the debrief meeting, asked who had made that allegation and then gave Ms Quinn both of his phones to satisfy herself that he in fact had not done so; and
(d)Ms Quinn said words to the effect that if he continued to behave in the same manner, it could lead to disciplinary proceedings against him.
The issue is whether the last of these points was said as a threat or whether, as Ms Quinn’s evidence would suggest, was said in a way to put Mr Atkins on notice that his behaviour as reported, and as observed by Ms Quinn in the 14 February 2019 meeting itself, was not acceptable and could be perceived as being bullying behaviour and that Mr Atkins ought reflect on the impact of his behaviour on others. Ms Quinn’s evidence is that it was in this context that she told him that if his behaviour continued in this way, it could lead to disciplinary action.
When it was put to Mr Atkins that he used an angry tone in his meeting with Ms Quinn on 14 February 2019, he said ‘… it’s not the tone I normally take but when I am accused, I do not like it’.[18]
[18] Court transcript at page 19.
The following exchange then occurred:
Counsel for respondent: And you get angry, don’t you?
Mr Atkins:I will stand up for myself. If you want me to admit that I get angry, … I won’t admit that, but I had been putting up with this whole sordid affair for over seven years, and as I said in my statement, I am tired of Parks Victoria’s bullying, their lying, and all the other things they did to try and sweep all of this … under the carpet. And then they turned it around, after they specifically asked … staff to identify bullying … behaviour within management. They turned everything around and made me out to be the bully. So it’s like a game of Whack-o-Mole. You stuck your head up, you made the sacrifice, and they whacked you down and said ‘Right. Now we’re going to say you’re the bully. You’re the one making all … these accusations.’ And they haven’t just done it to me, they’ve done it to many other people. I’m just one of the few people that stood up and spoke out about it.[19]
[19] Court transcript at page 19.
Having regard to the totality of the evidence, I prefer Ms Quinn’s evidence on this issue. On the totality of the evidence, I find that Ms Quinn did not threaten Mr Atkins with disciplinary action. Rather, I find that she called an informal meeting with Mr Atkins in which she sought his view about what had happened at the debrief meeting in December 2018. In this context, Ms Quinn invited him to reflect on how others might perceive his behaviour to be intimidating. This was entirely appropriate in the circumstances. She also told him, and he concedes this and indeed refers to it in his almost contemporaneous email to Mr Jackson the following day, that Ms Quinn was there ‘to try to avoid the need for disciplinary action’.[20]
[20] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at Exhibit SA-5.
Moreover, the observations made by Ms Quinn of Mr Atkins in her meeting with him on 14 February 2019 were consistent with the manner in which Mr Atkins gave evidence in this court. It was evident from Mr Atkins’ evidence that he was upset in his meeting. It is also clear from his evidence that he took particular umbrage at the suggestion that he had recorded the debrief meeting in circumstances where he maintained that this was not correct. I find that he was upset in the course of his meeting with Ms Quinn and that he expressed this to her.
I accept that Mr Atkins felt that Parks Victoria was not addressing his concerns appropriately. I also accept that he was surprised when the discussion on 14 February 2019 became about his conduct, rather than the concerns that he raised in the course of the health check. I also accept that he was upset at the suggestion that he had unlawfully recorded a meeting in circumstances where he had not done so.
I accept that it would have been difficult for Mr Atkins to hear what Ms Quinn was saying to him in their meeting on 14 February 2019. I also accept that in the context of his perspective at the time, he may well have understood Ms Quinn’s reference to the possibility of disciplinary action as a threat. However, as conceded by counsel for Mr Atkins, that is not the test. The question is whether, objectively speaking, what Ms Quinn said to Mr Atkins constituted a threat. I do not accept that it did on the totality of the evidence before me.
Mr Atkins therefore has not established that Ms Quinn’s conduct in the meeting on 14 February 2019 constituted adverse action as claimed.
The Stand Down
It is common ground that Mr Atkins was stood down from his duties on full pay by letter dated 1 April 2020. The issue is whether, as Mr Atkins claims, this stand down constituted adverse action. The respondent submits that it did not.
Having regard to the definition of adverse action in section 342 of the FW Act, the question in this instance is whether the decision to stand Mr Atkins down was a decision which:
(a)injured Mr Atkins in his employment; or
(b)altered Mr Atkins’ position to his prejudice.
It was submitted for the applicant that the stand down made Mr Atkins’ employment less secure, bringing him closer to the termination of his employment and in this way fell within the definition of adverse action. The respondent submitted that the stand down did no such thing.
Before turning to the relevant case law on this issue, it is appropriate to set out the terms of the stand down letter in some detail. The letter is at Annexure RQ-7 to Ms Quinn’s affidavit of 30 March 2021. Relevantly, after advising that Ms Quinn had authorised an investigation into allegations of misconduct and attaching a copy of clause 28 of the Parks Victoria Enterprise Agreement 2016, that letter states:
Pending the outcome of an investigation, you are not to attend Parks Victoria workcentres and are relieved of all Parks Victoria duties on full-pay, due to the concerns/risk to the health and safety of staff. You are also not permitted to contact other staff, other than your manager, in relation to your absence or pending the outcome of the investigation.
The letter then further says:
If the allegations are not substantiated, the process will conclude and you will be informed accordingly.
In the event that one or more of the allegations are substantiated; disciplinary action may be taken against you. The Agreement at clause 28.8 prescribes the following disciplinary outcome: formal verbal counselling, a formal warning, a final warning, transfers to another role or another location, termination of employment or by agreement demotion to a lower grade or lower salary point within the grade.
It was submitted for the respondent that:
(a)as the applicant was stood down on full pay, he was not prejudiced in his employment;
(b)the applicant has given no evidence of any prejudice that he suffered as a result of being stood down; and
(c)the temporary nature of the stand down on full pay while an investigation was undertaken did not lead to any real or substantial prejudice to Mr Atkins.
Whilst clearly he was not financially prejudiced in circumstances where he continued to be paid, there are other ways in which the applicant might be said to have been prejudiced in his employment by the issuing of the stand down letter.
The applicant referred the court to the recent decision of Riley J in Lees v Asaleo Personal Care Pty Ltd [2021] FCFCA 347 (‘Lees’) at paragraph [64] in which her Honour summarised the relevant legal principles.
In Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 (‘Visy’) at paragraphs [103] to [104], Murphy J outlined that it is possible that action taken to discipline an employee in good faith and properly carried out might still constitute adverse action. That, however, is not determinative of whether the adverse action is unlawful. Relevantly, his Honour stated:
[103] … in my opinion an investigation brought in good faith and carried out properly may nevertheless constitute adverse action. It must be accepted that an investigation which threatens the possibility of dismissal (as in the present case) will operate to reduce the security of future employment of the employee concerned. If it does so, CPSU v Telstra at [17] – [18] is authority for the proposition that it constitutes adverse action.
[104]However, it should not be thought that this means that an employer that brings and carries out an investigation properly and in good faith may be seen to have acted unlawfully. Plainly this is not so. Employers must be able to properly investigate concerns regarding employment related misconduct. If unable to do so they may be forced to take disciplinary action on the basis of flawed or incomplete information, allow misconduct to go unpunished, or even allow it to continue. It is important to remember that while an investigation may constitute adverse action, it is only unlawful if the investigation is carried out for a prohibited reason. An employer has not acted unlawfully where the reason for the investigation is other than a prohibited reason.
Similarly, in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at paragraphs [30] to [32], as extracted in the judgment of Riley J at paragraph [67] in Lees, the Full Court of the Federal Court relevantly noted:
[32]The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.
It was submitted for Mr Atkins that having regard to these authorities, the court could comfortably find that the stand down was ‘not simply an innocuous event in the course of employment with no prejudicial effect. It was setting him up for dismissal. It was an alteration of his position’.[21]
[21] Court transcript at page 139.
The respondent concedes that any action by an employer which alters the position of an employee to their prejudice will be adverse action, but only where there is ‘an actual alteration to the employee’s position and the alteration is real and substantial, rather than merely possible or hypothetical’.[22] However, the respondent submits that in circumstances where the stand down was temporary and was on full pay, it did not amount to a real or substantial alteration to the applicant’s position.
[22] Respondent’s Outline of Submissions filed on 3 December 2021 at paragraph [25].
Accepting this as a general statement of principle, it is further submitted for the respondent that the employee must be, individually speaking, in a worse situation after the employer’s acts than before them, that the deterioration has been caused by those acts and that the acts were intentional in the sense that the employer intended the deterioration to occur.[23]
[23] See Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [54] and Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122 (‘Unsworth’) at [24].
It is important to note that many of the cases referred to by each of the parties related to provisions which might be called precursors to the current adverse action provisions. For example, Unsworth is one such case. Relevantly at paragraph [25] of Unsworth, the court said:
[25]Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[22]. “Injury” is concerned with an adverse effect upon an existing legal right, or “compensable” injury. Prejudicial alteration of position goes beyond that concept. …
Even if one were to accept that this is the correct statement of the law, and noting that the cases relied upon by the respondent were largely cases involving one of the predecessor provisions to section 342, not section 342 itself, in this case, by standing down the applicant, and initiating an investigation through the provision of a statement of allegations, the applicant was in a worse situation in that he was one step closer to being terminated for misconduct.
On balance, and applying the principles identified in Visy (and the cases referred to therein), I find that the stand down did constitute adverse action as defined, in that it altered the applicant’s employment to his prejudice. Mr Atkins was stood down pending an investigation. That investigation related to serious allegations. Indeed, according to Ms Quinn, the decision to stand Mr Atkins down pending the investigation was in part based on the seriousness of the allegations. Leaving aside the merit of the investigation and whether it was undertaken for a prohibited purpose, and therefore amounted to unlawful conduct, subjecting an employee to an investigation, the outcome of which might result in the termination of their employment, could be said to prejudice the employee in their employment in that once the investigation is underway, the employee’s employment is less secure.
Of course there is a prospect that the investigation will conclude that there has been no misconduct and the employee’s employment will continue. However, there is a prospect that it will not. This is a prejudice to the employee’s employment within the meaning of that term as used in section 342. Standing an employee down pending such an investigation is clearly an alteration to the employee’s employment; it imposes a limitation on the employee undertaking their normal duties and on their interactions with other staff, and for the reasons set out above, it does amount to an alteration to the employee’s prejudice.
With respect, I do not accept the respondent’s submission that in circumstances where the stand down was only temporary for the duration of the investigation, it did not render the applicant’s employment less secure in any real or substantial way. The stand down was justified in part on the basis that the allegations made, albeit not yet proven, were serious. The stand down, together with other aspects of the investigation process, were steps along a path which may have led to the termination of the applicant’s employment. In this sense, the stand down, as one step in that process, did make the employee’s employment less secure, just as the show cause letter and ultimate termination of the employee’s employment did.
For each of these reasons, I therefore find that the Stand Down therefore does fall within the concept of adverse action as defined.
Misconduct Allegations
It is also submitted that the provision of the misconduct allegations by letter dated 16 April 2020 constituted further adverse action.
For similar reasons to those set out above in relation to the Stand Down, the issuing of the misconduct allegations was part of the investigation process. Subjecting an employee to an investigation of serious allegations, which if proven could result in the termination of an employee’s employment, does amount to an alteration to the employee’s prejudice.
In one sense, the separation of the Stand Down and the issuing of the Misconduct Allegations is somewhat illogical. Ultimately, they are essentially steps in an investigation process. It is the investigation process in its entirety which, in my view, falls within the definition of adverse action on the facts in this case. That investigation process commenced with the stand down decision, included the issuing of the misconduct allegations, and as conceded by the respondent, clearly included the issuing of the show cause letter and the ultimate decision to terminate Mr Atkins’ employment.
I therefore find that the issuing of the letter of Misconduct Allegations on 16 April 2020 also falls within the definition of adverse action.
WAS ANY ADVERSE ACTION TAKEN FOR A PROSCRIBED REASON?
The crucial and remaining issue is whether any of the employer’s adverse action was taken for a proscribed reason. It is asserted by the applicant that the respondent took the various forms of adverse action because the applicant had raised a number of complaints or made a number of inquiries relating to his employment.
Relevantly, the applicant submits that he has been a strong advocate for his rights in the workplace, particularly since he started reporting to Mr Hill in 2015 and that this is the reason, or one of the reasons, for the adverse action taken against him in 2020. The applicant submits that he had become a problem for the organisation by raising his concerns about Mr Hill and the organisation’s failure to address his concerns appropriately. In effect, the applicant submitted that the respondent saw the complaints made by Ms Browne as a means by which it could rid itself of Mr Atkins, who had by that time become a problematic employee.

Relevantly, the applicant relies on the following factors in support of this submission:
(a)the timing of the launching of the investigation into allegations that Mr Atkins had engaged in harassment, sexual harassment and bullying of a co-worker, namely, a matter of months after the FWC handed down its decision in relation to the applicant’s stop bullying allegation;
(b)Mr Hill, against whom Mr Atkins had made complaints of bullying, had a role to play in the initial complaint made against Mr Atkins which led to the misconduct inquiry;
(c)the investigation report found that a number of allegations were not substantiated, or to the extent that they were substantiated, found that they did not amount to sexual harassment, harassment or bullying; and
(d)there was nothing in the findings of the investigation report which justified the termination of Mr Atkins’ employment, particularly having regard to his prior length of service, and that some other less serious consequence was more appropriate in all of the circumstances.
It was further submitted for the applicant that the court should draw an adverse inference from the fact that the respondent did not call evidence from the following key witnesses:
(a)Ms Browne, the person who made allegations of inappropriate conduct by Mr Atkins;
(b)Mr Hill, who was involved in bringing these allegations to the respondent’s attention;
(c)the individuals who conducted the external investigation and prepared the investigation report; and
(d)two of the individuals who endorsed the decision to terminate Mr Atkins’ employment.
As stated, the respondent does not take issue with the fact that the employee has exercised a variety of workplace rights as stated. The respondent effectively says that any adverse action taken by it was not taken because of the applicant’s exercise of his workplace rights.
The onus is on the respondent to prove that the reason for taking the adverse action against Mr Atkins was not because he had exercised his workplace rights. I will deal with the evidence in relation to each alleged adverse action in turn. Given the interrelationship described between the decision to stand Mr Atkins down from his employment and the decision to provide him with the misconduct allegations, I will deal with those matters together.
Stand Down and Misconduct Allegations
As identified above, it has been submitted for the applicant that the court ought to draw an adverse inference from the respondent’s failure to call certain other witnesses to give evidence in these proceedings. In particular, the applicant submits that the court should draw an adverse inference from the failure to call Ms Browne, Mr Hill or the investigators from Lander & Rogers. For example, it was suggested that Mr Hill appears to have been involved in bringing this matter to the attention of Parks Victoria and that had he been called, he could have been exposed to cross-examination on his role in this matter, a crucial issue, it is submitted, given the conflict between Mr Atkins and Mr Hill.
I do not accept these submissions. As noted above, the key issue in dispute in this matter is the reason for the adverse action taken. The onus, as stated above, is on the respondent to establish that the reason for such action, was not, or did not include, a proscribed reason. That requires the respondent to identify the relevant decision-makers and lead evidence from them as to the reason for their decisions.
In this case, the decision to commence an investigation, stand Mr Atkins down and issue Mr Atkins with details of the allegations made against him was made by Ms Quinn, informed by Ms Lisa Basler and endorsed by Mr Simon Talbot. Evidence has been given in these proceedings by each of those individuals and they were all extensively cross-examined about their involvement in this matter and what motivated their actions. They each maintained that they were in no way motivated by the fact that Mr Atkins had, or had exercised, any of his workplace rights. I accept their evidence in this regard.
Evidence of Ms Rebecca Quinn
Ms Quinn gave evidence that when she was made aware of the allegations against Mr Atkins, she formed the view that it was appropriate to stand him down pending an external investigation.[24] Ms Quinn’s evidence is that she received a memorandum from one of her team members, Ms Basler, regarding allegations made against Mr Atkins, in which Ms Basler sought approval to undertake an external investigation into the allegations. Ms Basler also sought permission to stand Mr Atkins down on full pay pending the investigation.
[24] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [52] and following.
The memorandum, dated 17 March 2020, is at Annexure RQ-5 to Ms Quinn’s affidavit. Relevantly, that memorandum notes that:
(a)the complainant had been trying to manage the situation with support from a peer of hers, Mr Adam Van Baalen;
(b)on 10 March 2020, Mr Van Baalen reported the issue to his superior, Mr Hill;
(c)Mr Hill then had a conversation with the complainant and Mr Van Baalen in which he was provided further information about the alleged conduct; and
(d)Mr Hill briefed his manager, Ms Grant, who in turn contacted the complainant and the respondent to check on their welfare.
In support of her recommendation for an investigation and for permission to stand Mr Atkins down, Ms Basler also noted that:
(a)both the complainant and Mr Atkins work at the Traralgon work centre;
(b)the complainant feels unsafe attending the workplace while Mr Atkins is there;
(c)the complainant had taken leave from 10 to 13 March 2020 and returned to work on 16 March 2020; and
(d)Mr Atkins had been absent on leave since the complainant made the report and provided a medical certificate stating that he was unfit for duty from 13 to 31 March 2020.
The memorandum indicates that it was approved by Ms Quinn on 19 March 2020. Ms Quinn’s evidence is that on reading Ms Basler’s memorandum, she agreed with the recommendations. She formed the view that it was appropriate to stand Mr Atkins down on full pay pending the investigation in circumstances where:
(a)the allegations were very serious;
(b)if substantiated, the allegations posed a risk to the complainant’s health and wellbeing in circumstances where the complainant had already taken some personal leave and stated that she felt unsafe being in the same workplace as Mr Atkins; and
(c)both the complainant and Mr Atkins worked in the same workplace.[25]
[25] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [55].
Ms Quinn also approved the recommendation for an external investigator on the basis that she wanted to ensure that the investigation was unbiased. She further stated that she ‘was conscious that Mr Atkins may have perceived the investigation not to be impartial if it were conducted internally’.[26]
[26] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [56].
It was put to Ms Quinn in cross-examination that there were other options rather than standing Mr Atkins down from his employment. Ms Quinn did not agree and said that given the nature of the work in the various offices in the region, there was a risk that the complainant and Mr Atkins may come across each other even if they were not working in the same office.[27]
[27] Court transcript at page 120.
Ms Quinn categorically states that the reason for deciding to stand Mr Atkins down and to undertake an investigation into the allegations by the complainant, including giving him the statement of allegations, was not because of any prior complaints or inquiries (i.e. exercise of workplace rights) that he had made. Ms Quinn was subject to cross-examination. Her evidence in this regard did not change.
In this context, the following exchange occurred:
Counsel for applicant:             … you knew from that discussion with (Ms Basler) that there were sexual harassment allegations being made against Mr Atkins: that’s correct?
Ms Quinn:  That’s correct.
Counsel for applicant:             And you knew at that point that, well, you could put on hold the plans to find another job for Mr Atkins, because it might not be necessary; that’s right?
Ms Quinn:  No.
Counsel for applicant:             You received that news, and you knew that you needed to make sure from that point that the investigation that would be pursued would have to have the appearance of having everything above board; do you agree with that?
Ms Quinn:  No. I wouldn’t agree with that
…
The investigation needed to have procedural fairness and needed to be unbiased, and an independent investigator needed to be appointed for Mr Atkins, to ensure we ran a procedurally fair and unbiased process.
Ms Quinn further annexed to her affidavit at RQ-7 a copy of the letter that she sent to Mr Atkins on 1 April 2020 in which, among other things, she stated that he would be provided with a statement of allegations shortly.
Ms Quinn’s further evidence is that the investigators prepared the allegations, which she then attached to her letter dated 16 April 2020 to Mr Atkins, annexed to her affidavit and marked RQ-8. In that letter, Ms Quinn stated:
It is alleged that during the period between mid-November 2019 and 3 March 2020, you engaged in harassment, sexual harassment and bullying towards Gabrielle Browne … The allegations and the particulars giving rise to these allegations are set out in Attachment 1 to this letter.
Annexed to this letter were 15 separate allegations and particulars.
I accept the evidence of Ms Quinn that in putting these allegations to Mr Atkins she was in no way motivated by the fact that he had or had exercised a workplace right as alleged or otherwise. I accept that Ms Quinn was motivated by the need to investigate allegations made against Mr Atkins, in the same way that Parks Victoria had put in place processes to inquire into the allegations made by Mr Atkins against Mr Hill.
In relation to the preparation of the misconduct allegations, Ms Quinn’s evidence is that the final statement of allegations was formulated by the investigators after meeting with the complainant.[28] So much is evident from the investigation report itself.[29]
[28] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [70] and following.
[29] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at RQ-9.
Evidence of Ms Lisa Basler
Ms Basler also gave evidence which was consistent with that given by Ms Quinn about her recommendation to stand Mr Atkins down on full pay and undertake an external investigation and the reasons for that recommendation. Ms Basler also denies in any way being motivated by any earlier complaints or inquiries made by Mr Atkins.
Ms Basler states that she was aware of Mr Atkins’ earlier complaints and inquiries about bullying conduct because of her role in commissioning the health check in Traralgon which was conducted by Metis Pathways.[30] Ms Basler also states that she was aware that Mr Atkins had made an application to the FWC for a stop bullying order and that in January 2020, the FWC had found that Mr Atkins had not been subjected to workplace bullying.
[30] Affidavit of Ms Lisa Basler sworn and filed on 30 March 2021 at paragraph [7] and following.
Ms Basler gives further evidence about the steps that she was taking to try and find an alternative to Mr Atkins and Mr Hill continuing to work together given the issues between them, notwithstanding the FWC findings that there had been no bullying.
Ms Basler’s evidence is that she became aware of the allegations against Mr Atkins on about 10 March 2020.[31] According to Ms Basler, there were various conversations between herself and Mr Atkins’ manager, Ms Grant, over the course of the next couple of days about this matter.
[31] Affidavit of Ms Lisa Basler sworn and filed on 30 March 2021 at paragraph [14] and following.
Ms Basler’s evidence is that in the course of determining how to respond to the allegations made by the complainant, she had a meeting with Mr Hill and Ms Grant on 12 March 2020. At this meeting, Mr Hill gave a brief summary of the allegations that had been reported to him. Ms Basler further states that she told Mr Hill that he was not to be involved in managing this matter other than to provide support to the complainant as her manager.
In this regard, Ms Basler relevantly said:
I said this because I did not want Mr Atkins to perceive that any investigation or process which was to follow was biased as a result of Mr Hill being involved.[32]
[32] Affidavit of Ms Lisa Basler sworn and filed on 30 March 2021 at paragraph [19].
Ms Basler further explains the basis of her recommendations that Mr Atkins be stood down pending the investigation and why she formed the view that it was appropriate that the investigation be conducted by an external organisation.[33] Ms Basler expressly gives evidence that she did not make any of these recommendations because he had, or had exercised, any workplace rights.
[33] Affidavit of Ms Lisa Basler sworn and filed on 30 March 2021 at paragraph [24] and following.
Ms Basler was cross-examined extensively about her involvement with Mr Atkins. Ms Basler’s evidence was that following the FWC decision, she was tasked with trying to find a solution which saw Mr Atkins not reporting to Mr Hill, notwithstanding the conclusion reached by the FWC that Mr Hill had not engaged in bullying conduct towards Mr Atkins.
In this context, the following exchange occurred:
Counsel for applicant:             … Now … there was an easier way through that avoided the need to have to make any difficult decisions, and that was the making of sexual harassment allegations which came to your attention. What do you say to that?
Ms Basler:  I disagree with that.
Counsel for the applicant:        … there was a silver lining, … to these allegations that it would enable you to avoid having to make a difficult decision on what to do with Mr Atkins if he was removed on other grounds? What do you say to that?
Ms Basler:I disagree. I think there were no winners in what happened and ultimately it was not my decision. I’m an adviser and I provide alternatives to the managers to make a final decision.[34]
[34] Court transcript at page 84.
It was further put to Ms Basler that she made a recommendation to stand Mr Atkins down ‘for reasons that included that this solves the problem about what to do with him after he had made bullying allegations’. Ms Basler categorically denied that.[35]
[35] Court transcript at page 87.
In relation to the provenance of the allegations by the complainant, Ms Basler gives evidence that the complainant had initially raised concerns with a co-worker and that ultimately, that co-worker sought support from Mr Hill.[36] At the time that the allegations by the complainant were made, Mr Hill was Ms Browne’s manager. In those circumstances, it is not surprising that the allegations were initially reported to Mr Hill. I accept Ms Basler’s evidence that other than providing initial information about what he had been told, Mr Hill did not have any further involvement in the investigation process.
[36] Affidavit of Ms Lisa Basler sworn and filed on 30 March 2021 at paragraph [14] and following.
Ms Quinn gave similar evidence in relation to this matter. It was also put to Ms Quinn that she was aware that Mr Hill had been involved in raising the allegations against Mr Atkins. In response, Ms Quinn said:
From my understanding, the initial allegations were raised with Mr Hill, but he escalated it directly to Ms Grant, choosing to step aside.[37]
[37] Court transcript at page 120.
The following exchange then took place:
Counsel for applicant:             The allegations in the end were drafted by Lander & Rogers, but the initial complaints came to the surface after Darren Hill heard them and then briefed Bridget Grant: is that your understanding of what occurred?
Ms Quinn:The initial allegations were communicated from Ms Browne to Adam Van Baalen and then Adam Van Baalen spoke to Mr Hill.
Counsel for applicant:             And it was Mr Hill that went to Bridget Grant, the manager, on the broad allegations. That’s right?
Ms Quinn:Mr Hill communicated to Ms Grant that there had been allegations made and she need to follow up on it.
…
Counsel for applicant:             Didn’t you have alarm bells ringing when you thought, well, hang on Darren Hill is making these allegations hot on the heels of the decision in the Fair Work Commission where Mr Atkins had made allegations against Mr Hill?
Ms Quinn:No I saw the allegations coming from Ms Browne and the experience she had had.
With respect, I accept Ms Quinn’s evidence in this regard. Whilst the allegations came to Parks Victoria’s attention via Mr Hill, he quite rightly escalated the matter to his manager immediately, and he was, again, quite rightly directed to have nothing to do with the investigation other than to support his staff member, the complainant. The decision to remove Mr Hill from the investigation process and to outsource the investigation itself reflects the lengths that Parks Victoria was prepared to go to keep these two processes separate.
I accept the evidence of Ms Quinn and the evidence of Ms Basler regarding the circumstances in which the allegations came to their respective attention, the action they took, and importantly for this proceeding, the reason for taking that action. I also accept that they were each alive to the fact that the issues between Mr Atkins and Mr Hill had not yet been resolved and that it was important not to conflate these two proceedings.
Evidence of Mr Simon Talbot
In her affidavit, Ms Quinn stated that prior to standing Mr Atkins down, as required by Parks Victoria protocols at the time, she sought the agreement of Mr Talbot, the Chief Operating Officer, who approved that decision.[38]
[38] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [61].
Mr Talbot’s evidence is that he received an email from Ms Quinn on 31 March 2020 seeking approval to stand Mr Atkins down pending an investigation into allegations of sexual harassment.[39] Mr Talbot stated that his concern was to protect the complainant whilst at the same time balance that against the need to afford Mr Atkins procedural fairness in the investigation process. His evidence was therefore that based on information provided by Ms Quinn in a telephone call about the nature of the allegations against Mr Atkins, he approved the stand down and the appointment of an independent investigator.
[39] Affidavit of Mr Simon Talbot sworn on 13 April 2021 and filed on 14 April 2021 at paragraph [10].
Mr Talbot was cross-examined extensively on the reasons behind his approval of this approach. He did not resile from his evidence in chief on this issue. Mr Talbot impressed as a very credible witness whose concern in responding to the serious situation which was presented to him was to ensure fairness was afforded to both the complainant and to Mr Atkins.
I accept his evidence as to the matters which motivated his decision-making. I accept that his only concern was to appropriately balance the need to protect the complainant during the investigation process, whilst at the same time affording Mr Atkins with procedural fairness in circumstances where the allegations had not been substantiated at that stage. Mr Talbot also gave evidence, which I accept, that he was not motivated by any complaints or inquiries made by Mr Atkins in relation to his employment or because Mr Atkins had or had previously exercised any workplace right.
For each of these reasons, I therefore find that the respondent has established on the balance of probabilities that the decision to stand Mr Atkins down on full pay and to put the allegations to him was not motivated by the fact that he had or had exercised any workplace rights, or for any other proscribed reason.
Show Cause Letter and Termination

It is common ground that the decision to terminate an employee’s employment at Parks Victoria is a decision which must be made by the Chief Executive Officer. Clause 28.12 of the Parks Victoria Enterprise Agreement 2016 relevantly provided:
All matters involving possible termination of employment will be referred to the Chief Executive. If termination of employment is considered the most appropriate sanction the following process will be followed:
(a)Other than cases of serious misconduct which warrants summary dismissal the Chief Executive will write to the employee advising that the Chief Executive has carefully considered the evidence and the findings and is of the view that termination of employment is the most appropriate sanction.
(b)To enable the Chief Executive to make a final decision the Employee will be invited to provide any further information or material which he or she thinks is relevant which should be considered by the Chief Executive before the chief Executive makes a final decision.
(c)The employee will also be provided with an opportunity to meet with the Chief Executive before a final decision is made. If the Chief Executive is unavailable, the Chief Executive can delegate this responsibility to another Executive Manager.
(d)The Chief Executive will consider all of the evidence including the additional material provided before a final decision is made to terminate employment.
Mr Jackson is, and was at all material times, the Chief Executive Officer of Parks Victoria. He gave evidence in this matter as to his decision to issue the show cause letter and then to terminate Mr Atkins’ employment and the context in which these decisions were made.
Relevantly, he gives evidence that:
(a)he is committed to ensuring that all staff have a safe place of work free from any harassment or bullying conduct;
(b)he has a zero tolerance attitude to sexual harassment, harassment and bullying;
(c)he has made his position in this regard clear to staff on numerous occasions;
(d)Parks Victoria has various policies in place which deal with bullying and discrimination and participates in the bi-annual People Matter Survey;
(e)he is aware that the results of the 2018 People Matter Survey indicated that a certain percentage of staff perceived there to be bullying and harassment in the workplace and that there had been an improvement in this regard by the time the organisation conducted a survey in 2019; and
(f)in the 2019 Roadshow held across five locations in Parks Victoria, he communicated to employees that there would be specific training rolled out to deal with bullying, harassment and sexual harassment.[40]
[40] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [7] and following.
Mr Jackson gave evidence that he had been briefed on three issues involving or related to Mr Atkins, namely:
(a)the whistleblower complaint which led to the health check process in the Traralgon branch;
(b)Mr Atkins’ complaint of bullying against Mr Hill in early 2019 which was independently reviewed; and
(c)that in May 2019, Mr Atkins had filed a stop bullying claim in the FWC and that in January 2020, the FWC dismissed that application.[41]
[41] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [15] and following.
Mr Jackson confirms that he received Mr Atkins’ email on 15 February 2019, following Mr Atkins’ meeting with Ms Quinn on 14 February 2019.[42] He says that he asked Mr Ian Sargent to respond on his behalf, which he did by email dated 18 February 2019.[43]
[42] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [22].
[43] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraphs [26]-[27].
Mr Jackson states that on 4 September 2020, he received a memorandum from Ms Quinn seeking his approval to propose the termination of Mr Atkins’ employment as the most appropriate sanction following the results of an investigation into the allegations made by a fellow employee in the Traralgon branch.[44] Mr Jackson states that he read and considered the memorandum from Ms Quinn, together with the investigation report which was attached to the memorandum, before determining whether to approve Ms Quinn’s recommendation. Mr Jackson approved Ms Quinn’s recommendation on 11 September 2020. This then set in train a process whereby Mr Atkins was sent a show cause letter and ultimately his employment was terminated.
[44] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [31] and following.
On 7 October 2020, Mr Jackson received a further memorandum from Ms Quinn seeking approval to proceed with the termination of Mr Atkins’ employment.[45] Relevantly, this memorandum contained the following:
7.On 21 September 2020, Chris Corbell, Regional Director East Region and Lisa Basler, People and Culture Advisor provided Mr Atkins with the Proposed Sanction Letter (Attachment 2).
…
9.There was no formal response to the proposed sanction received from Mr Atkins or the AWU by 28 September 2020 following 5 working days as provided in the letter of proposed sanctions.[46]
[45] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [42].
[46] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at MJ-5.
The 7 October 2020 memorandum was endorsed by Ms Quinn and approved by Mr Jackson. It was also endorsed by Ms Kylie Trott, the Executive Director, Operations and by Mr Andre Didenkowski, Senior Legal Counsel.
Mr Jackson’s evidence is that he did not have regard to the fact that Mr Atkins had previously made any complaints or inquiries in relation to his employment in:
(a)accepting Mr Quinn’s recommendation to propose terminating Mr Atkins’ employment; or
(b)approving the decision to terminate Mr Atkins’ employment.[47]
[47] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraphs [41] and [48].
Mr Jackson also gave evidence that the decision to issue a proposed sanction and to terminate Mr Atkins’ employment was his decision alone.[48]
[48] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [50].
In relation to the involvement of Ms Trott and Mr Didenkowski, Mr Jackson states that they were copied into the 4 September 2020 and the 7 October 2020 memoranda in accordance with Parks Victoria procedures. He states, however, that neither Ms Trott nor Mr Didenkowski had any input into his decision to provide Mr Atkins with a show cause letter or to terminate his employment.
Neither Ms Trott nor Mr Didenkowski gave evidence in these proceedings. It was submitted for the applicant that the failure to call them to give evidence is significant and crucial in this matter. It was submitted that the failure to call them leaves the court with no evidence as to the reasons why they endorsed the recommendations made by Ms Quinn and the decisions ultimately made by Mr Jackson.
In making this submission, counsel for the applicant relied upon the decision of Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 (‘NTEU v RMIT’). In that case, Gray J relevantly said at paragraph [25]:
[25]Barclay was a case in which there was a single decision-maker, who made the decision to take adverse action against the employee concerned. It is necessary to read what was said in Barclay with the understanding that the Court was not faced with any issue of the possible involvement of more than one person in the making of the decision. Earlier authorities have dealt with that question, in circumstances where a decision is made by a committee or other deliberative body, but also in circumstances in which there is collaboration between officers of an employer at various levels in the employer’s hierarchy, leading to an ultimate decision. Counsel for the NTEU and Professor Bessant argued that the present case is a case where people other than Professor Gardner contributed to the making of the decision. It is therefore necessary to examine the state of the authorities.
His Honour then referred to the plurality in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at paragraph [583], where they said:
[583]A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.
His Honour went to say at paragraph [26]
[26] … The same can be said of states of mind other than knowledge, such as reason or intent. In Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198, the question was whether an employee in local government had been dismissed from her employment for a proscribed reason. Although the local council itself had made the ultimate decision to dismiss, Evatt J found that it was an earlier decision of the finance committee that was the critical decision. The council had merely “rubber stamped” the recommendation of the finance committee later on the same evening. The finance committee consisted of eight councillors, six of whom had not been called as witnesses. His Honour held that the decision to dismiss the employee had not been proved not to be actuated by the proscribed reason alleged.
In this context, his Honour said at paragraph [128]:
[128]The evidence makes it very clear that Professor Gardner took no step to investigate the reasons why Professor de la Harpe and Ms Gough signed the memoranda in question. She relied entirely on them. In those circumstances, whatever reasons Professor de la Harpe and Ms Gough had for making their decisions that were an essential part of the process leading to the ultimate decision to make Professor Bessant redundant are reasons of RMIT for that ultimate decision. This follows from the proposition that, without Professor de la Harpe and Ms Gough deciding to keep each memorandum on its path to Professor Gardner, no ultimate decision could be made.
His Honour’s comments, however, have to be considered in the context of the particular facts and evidence in that case. Professor Gardner was the Vice-Chancellor of RMIT at the time. Professor Bessant was a senior academic. Relevantly, Professor Gardner’s evidence was that she was the sole decision-maker in concluding that Professor Bessant’s employment was to be made redundant. There was a lengthy background to these proceedings including a long-running dispute between Professor Bessant and her Head of School, Professor Hayward. This dispute had been brought to the attention of Professor Gardner in 2010 when Professor Hayward made it clear to Professor Gardner that he could no longer work with Professor Bessant. Without going into the detail, the court accepted that Professor Hayward wanted Professor Bessant’s employment to be terminated.
Again without going into unnecessary detail, the decision-making process which resulted in Professor Gardner as the Vice-Chancellor of the University approving a decision to make Professor Bessant’s position redundant involved Professor Hayward seeking this approval via a memorandum which, prior to being considered by Professor Gardner, required the endorsement of Professor Hayward’s superior.
Relevantly, a preliminary issue arose as to whether Professor Gardner’s evidence was sufficient to discharge the onus on RMIT to establish that the reason for the redundancy in that case was not based on a proscribed reason. Relevantly, in the course of giving her evidence, Professor Gardner gave evidence as to the reasons she says she made the decision to approve the redundancy. As noted by the court at paragraph [6] of the decision:
[6]… She was not asked, and did not give evidence, that any of the specific reasons alleged in the statement of claim were not reasons for the decision.
Ultimately, an application was made to reopen the respondent’s case to address this issue. That application was refused. It was in that context that his Honour said:
[90] … it is necessary to review the evidence given by Professor Gardner, for the purpose of determining whether, on the assumption that she was the sole decision-maker, her evidence is sufficient to discharge the onus of proof borne by RMIT that it did not dismiss Professor Bessant because she had, had exercised, and proposed to exercise, her workplace rights, which the statement of claim alleged to have been among the reasons for her dismissal. Professor Gardner was not asked specifically whether any of those alleged reasons had been among her reasons for making the decision on 28 October 2011 to treat Professor Bessant as redundant, or for her affirmation of that decision after she considered the report of the Redundancy Review Committee and the submissions of Professor Bessant about the issues raised by that report.
[91] Counsel for RMIT submitted that the evidence of Professor Gardner should be taken to have been exhaustive of her reasons for making those decisions. He placed heavy reliance on certain passages in her evidence.
…
[97] None of these passages of itself is inconsistent with the possibility that Professor Gardner was motivated by reasons other than the purely financial ones she asserted. Although the focus of these passages in her evidence is on alleged financial reasons, there is no element of exclusivity in that focus. The assertions that there were financial reasons remain consistent with the possibility that there are other reasons. Indeed, the concession that the grounds were “largely financial” tends to indicate the possibility of other reasons.
…
[99]The references to the reasons being “largely” or “primarily” financial, and to the “central” reasons, being Professor Gardner’s own expressions, and not those put in her mouth by counsel, provide grounds for declining to accept he proposition that, when she was giving evidence as to her reasons for decisions at various stages of the process, Professor Gardner was giving evidence exhaustive of those reasons. I find that she was not.
It was in this context that his Honour then went on to say at paragraph [100] that ‘[i]t is therefore necessary to go to the circumstances in which the various decisions were made to see whether they assist RMIT in discharging its onus of proving on the balance of probabilities that the reasons for the decisions to dismiss Professor Bessant from her employment were made because of the reasons alleged in the statement of claim’.
His Honour then noted that it was clear from the evidence that Professor Gardner was aware of the conflict between Professor Bessant and Professor Hayward, including the complaints about Professor Hayward that were made by Professor Bessant.
Moreover, his Honour concluded that the memorandum recommending Professor Bessant’s position be made redundant was ‘devoid of any reasoning that would support the choice of Professor Bessant’s position as one of the two to be made redundant’.[49] The court also had regard to the fact that the decision to make this position redundant was the subject of an internal review by the Redundancy Review Committee which also concluded that there was an absence of any criteria against which Professor Bessant’s position was chosen. Moreover, the court was also concerned about the nature of the evidence given by Professor Gardner about the reasons for her decision.
[49] NTEU v RMIT (2013) 234 IR 139, 174 [108].
His Honour then went on to observe at paragraph [119]:
[119]The lack of a clear and cogent process of reasoning, leading to the conclusion that Professor Bessant needed to be made redundant, at any stage of the lengthy and detailed process, is a major factor pointing to the conclusion that there may well have been reasons other than those that were expressed for the making of that decision. …
His Honour further stated that in circumstances where Professor Gardner was well on notice that Professor Hayward wanted to have Professor Bessant dismissed, ‘… it might have been expected that Professor Gardner would take steps to ensure that the “business case” that was being made was not designed to conceal an ulterior motive on the part of Professor Hayward. Professor Gardner did no such thing. …’.[50]
[50] NTEU v RMIT (2013) 234 IR 139, 178 [120].
Having reached this conclusion, his Honour went on to consider whether Professor Gardner was in truth the sole decision-maker in any event. At paragraphs [125] to [126] he said:
[125]… The case put by counsel for the NTEU and Professor Bessant was that Professor Gardner was doing no more than rubber-stamping the recommendations of Professor Hayward in his memoranda of 2 March 2011 and 28 June 2011. The argument was that Professor Gardner’s mind was therefore tainted by whatever unexpressed reasons Professor Hayward had. This case is not so simple, however. It is clear from the evidence that Professor Gardner had her own views about the financial issues raised by Professor Hayward and that she acted on those views. …
[126]Of greater significance are the roles of Professor de la Harpe (as the substitute for Professor Fudge) and Ms Gough.
… She then said of Professor Fudge:
he is the decision-maker because if he doesn’t endorse it, it can’t – it won’t come to me.
… so the head of school has to have the endorsement of the Pro-Vice-Chancellor.
Professor Gardner also accepted the proposition that if the Executive Director, Human Resources did not sign the document, it would not come to her either.
His Honour’s ultimate conclusions in relation to this matter are set out at paragraph [131] where he said:
[131]My conclusion that RMIT has not satisfied the onus of proving that the reasons alleged in the statement of claim were not among the reasons for the dismissal of Professor Bessant is based not only on the failure of Professor Gardner to give explicit evidence that none of those reasons was operative in her decision. My conclusion is based in part on the fact that Professor Gardner’s own evidence contains indications that she had reasons other than those to which she referred explicitly. … Finally, it is based in part on the fact that Professor Gardner’s decisions would not have been made without decisions on the part of each of Professor de la Harpe or Ms Gough to forward to Professor Gardner the memorandum of 28 June 2011, without which Professor Gardner would not have been called upon to make any decision at all. The failure to call either Professor de la Harpe or Ms Gough to give evidence means that RMIT has failed to demonstrate that their decisions, which were an essential part of the decision to make Professor Bessant redundant, were not made because of the reasons alleged in the statement of claim.
I have set out the reasoning in NTEU v RMIT in some detail as it is necessary to have regard to the detail in that case to understand the court’s reasoning. I am of the view that the facts in the case before me are distinguishable from those in NTEU v RMIT in a number of respects.
First of all, whilst Mr Jackson is the ultimate decision-maker, he clearly made that decision on the basis of a range of information, including information provided to him in the memoranda prepared by Ms Quinn on 4 September 2020 and 7 October 2020. Ms Quinn has given evidence about what motivated her to make the recommendations that she did in each case. She expressly states that the fact that Mr Atkins had, or had exercised, any workplace right played no part in her decision to make the recommendations that she made.
Mr Jackson’s evidence is that he understood the recommendations in each of the memoranda from Ms Quinn to be her recommendations. There is no suggestion, other than the appearance of their signatures, that any of the recommendations in the memoranda of 4 September 2020 or 7 October 2020 were made by either Ms Trott or Mr Didenkowski. Unlike the case in NTEU v RMIT, there is no evidence that had they not endorsed the relevant memoranda, that the matter would not have progressed to Mr Jackson for decision. Indeed, Mr Jackson’s evidence was to the contrary.

His evidence was that Ms Trott was copied in to the memoranda because Mr Atkins was a staff member within her operational area of responsibility.[51] Similarly, Mr Jackson stated that Mr Didenkowski was copied into the memoranda in his capacity as Senior Legal Counsel ‘for the purpose of determining whether there were any material legal risks which ought to be brought to my attention before I made my decision’.[52]
[51] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [56].
[52] Affidavit of Mr Matthew Jackson sworn and filed on 30 March 2021 at paragraph [54].
Mr Jackson further stated that neither Ms Trott nor Mr Didenkowski provided any input into the decision to issue the proposed sanction to Mr Atkins or the decision to terminate his employment and was not involved in the decision-making process. For each of these reasons, the facts in this case are not the same as in NTEU v RMIT. Caution therefore must be expressed in extrapolating from Gray J’s comments in that case.
In the course of cross-examination, Mr Jackson accepted that it was entirely appropriate for an employee to raise any concerns they might have about how they are being treated in the workplace, including to stand up for themselves if they considered that necessary. For example, at one point in response to a question from counsel for the applicant, Mr Jackson said:
… I’m very comfortable that anyone can stand up to have a voice in the workplace. We take it very seriously. As I mentioned before, I think we’ve got very robust processes in place … The opportunity has been at all times for Mr Atkins to be involved or make a case … whilst that can be concerning correspondence, there were also concerns raised at the time by Mr Atkins’ behaviour in that meeting, and also prior. …[53]
[53] Court transcript at page 42.
Mr Jackson stated that he was aware of Mr Atkins’ application to the FWC and the efforts being made, once the FWC decision was handed down, to try and find an alternative to Mr Atkins and Mr Hill having to work together. He said that his knowledge about these matters was at a ‘high level’,[54] by which I understand he meant that he was not across the specific detail.
[54] Court transcript at page 44.
Insofar as the sexual harassment allegations against Mr Atkins, Mr Jackson’s evidence was that he was aware, at a general level, that allegations had been made against Mr Atkins, that he had been stood down by Mr Talbot and that an external investigation was underway into the allegations.
Mr Jackson confirmed in cross-examination that he received Ms Quinn’s recommendations in September 2020 together with the investigation report. He conceded that he did not read all 500 pages of that report, but said that he did read the relevant parts of the report, considered the issues and then made his decision. In response to a question that he had only read the ‘highlights’ and ‘not the bulk of the 500 pages’, Mr Jackson said:
No. I can confirm that I went through, including some of the statements where the investigator has made reference to bullying, harassment and sexual harassment, that this was a pattern of behaviour over time, rather than one-off incidences, including where Mr Atkins has agreed with the comments, and also where Mr Atkins has disagreed with the comments. So whilst I didn’t read the whole 513-odd pages, I read enough that I believe, in line with the summarised memorandum of understanding – that I could … make an appropriate response, noting that Mr Atkins would have a right of reply … under our processes on the sanctions that were recommended.[55]
[55] Court transcript at page 47.
In this context, the following exchange occurred:
Counsel for applicant:             … you were told by Ms Quinn that 13 of the 15 allegations had been substantiated; that’s right?
Mr Jackson:       That’s correct.
Counsel for applicant:             But did you then go through and work out, well, of each one of these substantiated allegations, does that mean there is misconduct?
Mr Jackson:What I read on the report was the findings and the commentary from the investigator, as I mentioned before. The wording, some of that meant that it did meet bullying, harassment and sexual harassment of nature of longer than a single episode. And then also the 13 substantiated, I went through each one of those, including some that were acknowledged by Mr Atkins of taking place … I then took the view with the commentary provided by the report, in line with our zero tolerance, plus our culture of our one PV, and … our obligations under the Occupational Health and Safety Act, and that the employee that was challenged in this is in a position of discomfort, I took on the balance that I believed that they were grounds for sanctioning for termination, subject to Mr Atkins further response … in line with our processes.[56]
[56] Court transcript at pages 48 to 49.
It was also put to Mr Jackson that when one looks at the specific particulars to each of the allegations, whilst a number of the allegations were found proven, they were not found to constitute sexual harassment, harassment or bullying conduct. It was put to Mr Jackson that the effect of this is that the investigator found that whilst the conduct occurred, in relation to those matters, Mr Atkins did not do anything wrong. In response, Mr Jackson said:
Well yes. You can see it that way, but I’ve also seen that also his conduct on Ms Browne overall, this was in the pattern of behaviour that has many other substantiated allegations, so on balance I was reading ... that he was still having conversations with Ms Browne that were borderline or were inappropriate…[57]
[57] Court transcript at page 50.
In response to the proposition that the statement that 13 of the 15 allegations were substantiated was misleading, Mr Jackson stated:
… I would say you can see that perception. The report that I’ve gone through and read, on balance, came through that there were other behaviours that were substantiated that implied a pattern of behaviour with Mr Atkins over time, and to be frank, under, under our obligations, one substantiated is sexual harassment and bullying … so I get the principle of what you’re saying … but I have to take on reflection and reading that report plus the memo plus our policies and procedures, the recent training that we’ve done on bullying and harassment, including Mr Atkins attending those with our zero-tolerance approach.[58]
[58] Court transcript at page 51.
Mr Jackson further rejected the proposition that the report was actually ‘not that damning’ of Mr Atkins. He maintained that the report disclosed a pattern of behaviour which was found to constitute harassment, sexual harassment and bullying. He also categorically rejected the suggestion that he was in a rush to move to terminate Mr Atkins’ employment because he was a trouble-maker.[59]
[59] Court transcript at page 51.
In relation to Mr Hill’s involvement, Mr Jackson was not aware that he had had any involvement in bringing these matters to the attention of the respondent.[60]
[60] Court transcript at page 52.
Mr Jackson conceded that it was open to him to take a less serious sanction against Mr Atkins, rather than terminate his employment. However, he maintained that his view was that the allegations which were substantiated were sufficiently serious to warrant termination, having regard to the organisation’s zero tolerance of such behaviour, the recent training that had been undertaken by staff, including Mr Atkins, and the fact that the findings demonstrated a course of conduct and not a one-off incident.[61]
[61] Court transcript at pages 55 to 56.
Relevantly, Mr Jackson maintained throughout extensive cross-examination that he was not in any way motivated in his decision by the fact that Mr Atkins had previously raised complaints or made inquiries about his employment or alleged that he had been the victim of bullying behaviour by his managers and more extensively within the respondent.
As noted, in relation to Ms Trott and Mr Didenkowski, Mr Jackson rejected the proposition that they were each recommending the sanction proposed and that he relied on their recommendation. He said:
No. Kylie (Trott) was acknowledging that there’s a sanction coming with one of her operational staff. … and Andre (Didenkowski) being …the senior legal counsel at the time was making sure there’s no other legal matters that need to be brought to my attention, which is standard process, not just for this incident or this case, all the other cases that come through for termination. … the only person to make the decision and made the decision was myself, and my role was the only role that can make that decision in the organisation.[62]
[62] Court transcript at page 59.
In this context, the following exchange then occurred:
Counsel for applicant: And if you had a proposal come to you that had not been endorsed by Ms Trott or Mr Didenkowski, you would not have signed off as having approved it?
Mr Jackson:To date, I haven’t had one come to me, Mr Millar … and again, it’s about the operational impacts, not the decision-making
… the decision-making, again, comes down to the evidence provided to me from a completeness point of view. … So the decision is still mine. The evidence in the reports are mine. Their decisions didn’t influence my decision. If they weren’t ticked on the boxes, I would … have to look at that to make sure that comprehensively the legal position was known, and then it’s just an operational implement, so Ms Trott, in theory, could be told at any stage, but I’m just being transparent on the process … when we make these kind of decisions.[63]
[63] Court transcript at page 60.
In the present case, the evidence before the court is that only the Chief Executive Officer has the power to determine whether to terminate the employment of an employee. However, it is clear that the Chief Executive Officer made that decision on the basis of the recommendation made by Ms Quinn. It is also clear from the evidence before the court that Ms Quinn had some ‘history’ with Mr Atkins, and for both those reasons, the respondent quite properly led evidence from Ms Quinn. Had it not done so, it would have been exposed to the reasoning relied upon in NTEU v RMIT.
However, on the face of the memoranda from Ms Quinn of 4 September 2020 and 7 October 2020, it is apparent that she is the author of the memoranda and that Mr Jackson is the intended recipient. Mr Jackson’s unchallenged evidence is that Ms Trott and Mr Didenkowski were advised of the proposed course and that their signatures on the memorandum indicated that they had been so advised, but that they played no part in making the recommendation. There is nothing in the memoranda itself which would suggest otherwise.
For each of these reasons, I find that Mr Jackson made the decision to recommend a sanction of termination and then to terminate Mr Atkins’ employment and that in doing so, he had regard to the reasons advanced by Ms Quinn in her memoranda to him. The failure to call Ms Trott or Mr Didenkowski does not, in my view, support the applicant’s submission that the respondent has not discharged its burden of proof.
Nor do I draw any adverse conclusions from the fact that the respondent did not call any evidence from the people involved in the making of the complaints against Mr Atkins or bringing those complaints to the attention of the respondent. I accept that Mr Atkins and Mr Hill had a troubled working relationship, to put it mildly. However, the respondent appropriately managed that once a complaint about Mr Atkins’ conduct was brought to its attention. Ms Basler’s evidence, which I accept, is that once she was made aware of the complaints by Ms Browne, she directed Mr Hill not to have any involvement in the matter other than to provide support to Ms Browne who was a member of his team. There is no suggestion in any of the material to suggest that Mr Hill did not comply with this direction.
In addition, the evidence of Ms Basler and Ms Quinn is that external investigators were engaged to provide further separation between employees of the respondent who may have had prior involvement with Mr Atkins and the investigation process.
FINDINGS
The evidence of Mr Jackson and Ms Quinn, which I accept, is that they were in no way influenced by the earlier complaints and inquiries made by Mr Atkins in making their recommendations and/or decisions relating to his ongoing employment, but rather, made their decisions on the basis of the findings made about his conduct following an external investigation. Moreover, they give specific evidence, which I also accept, about the factors which motivated their decision-making in relation to Mr Atkins.
I accept Mr Jackson’s evidence that he considered the substance of the investigation report produced in relation to the allegations made against Mr Atkins. I accept that having reviewed the allegations and the findings made in their entirety, these were the only factors which operated on his decision as to what action ought to be taken.
Unlike the case of NTEU v RMIT, there was an internal consistency in the approach taken by Mr Jackson. The respondent appropriately investigated allegations made by a whistleblower, by Mr Atkins and against Mr Atkins. The fact that there was a different outcome in each of these investigations is not evidence of unlawful action. Serious allegations were made about Mr Atkins’ conduct. It was incumbent upon the respondent to investigate those allegations and take appropriate action.
Much was made about the fact that the reference to 13 of the 15 allegations having been substantiated was misleading when consideration was given to the fact that a number of the particulars were either not substantiated, or even if substantiated, were not found to have constituted sexual harassment or bullying.
Ultimately, Mr Jackson’s evidence is that when he reviewed the investigation report in its entirety, he formed the view that Mr Atkins had acted in a manner which was inconsistent with the organisation’s various policies and procedures, as well as with the organisation’s zero tolerance to such conduct. The conclusions reached by Mr Jackson were reasonably open to him on the basis of the information contained in the investigation report.
This is particularly so having regard to the following:
(a)the investigator interviewed a range of witnesses, some of whom corroborated the complainant’s claims;
(b)the investigator had regard to various contemporaneous notes which also corroborated some of the complainant’s claims;
(c)the investigator made reference to various concessions made by Mr Atkins himself;
(d)the investigator made credibility assessments of each of the witnesses who gave evidence; and
(e)the investigator made positive findings that Mr Atkins had engaged in sexual harassment, harassment and bullying behaviour in relation to Ms Browne.
Having regard to the totality of the evidence, I find that the respondent has established on the balance of probabilities that the adverse action taken against the applicant was taken for a reason which was not, and did not include, a proscribed reason.
Moreover, as noted, the applicant takes issue with the timing of the investigation into Mr Atkins’ conduct, namely, that a complaint was made shortly after discussions were being held regarding what steps could be taken to accommodate both Mr Atkins and Mr Hill. However, in light of the difficulty in their working relationship, this timing is not in and of itself evidence that the investigation into the allegations, the stand down, the show cause letter and the termination were because of the complaints and inquiries made by Mr Atkins.
The allegations which were put to Mr Atkins related to conduct in the period from November 2019 to early March 2020. Allegation 15 related to an incident which occurred on 3 March 2020. The investigation report records Mr Van Baalen as giving evidence that after he spoke to Mr Atkins about this incident, he was sufficiently concerned about his behaviour that he raised it with his team leader.
There is a reasonable explanation for the commencement of the investigation process, including its timing. I am not satisfied that Mr Atkins’ complaints about bullying in the workplace or any other complaint or inquiry he made led to the investigation. The two processes, whilst close in time, were not causative of each other.
CONCLUSION
For each of these reasons, I therefore dismiss the applicant’s application.

I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.
Deputy Associate:
Dated: 8 June 2022

File number(s):	MLG 4337 of 2020
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	8 June 2022
Catchwords:	INDUSTRIAL LAW – FAIR WORK – adverse action claim – where the employee made a number of complaints about workplace bullying – where the employee was investigated for misconduct allegations relating to harassment, sexual harassment and bullying – consideration of what conduct constituted adverse action as defined under the Fair Work Act 2009 (Cth) – consideration of whether the adverse action was taken for proscribed reason – where multiple people were involved in the decision-making process – circumstances distinguished from those in National Tertiary Education Union v Royal Melbourne Institute of Technology – finding that reverse onus on respondent has been discharged – application dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 340, 342, 360, 361
Cases cited:	Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 Lees v Asaleo Personal Care Pty Ltd [2021] FCFCA 347 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 Technologyone v Roohizadegan (2021) 309 IR 262 Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122
Division:	Division 2 General Federal Law
Number of paragraphs:	173
Date of last submission/s:	15 December 2021
Date of hearing:	13-15 December 2021
Place:	Melbourne
Counsel for the Applicant:	Mr R Millar
Solicitors for the Applicant:	McDonald Murholme
Counsel for the Respondent:	Mr J Tracey
Solicitors for the Respondent:	Minter Ellison Lawyers

MLG 4337 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SHANE ATKINS Applicant
AND:	PARKS VICTORIA Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	8 JUNE 2022